UC Santa Barbara Undergraduate Law Journal: Volume 1 by Shruthi Vasudevan

2022

UC Santa Barbara Undergraduate Law Journal UCSB PRE-LAW SOCIETY VOLUME I

Copyright © 2022 by UCSB Pre-Law Society All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. Printed in the United States of America First Printing, 2022 ISBN: 978-1-387-91150-9 Imprint: Lulu.com UC Santa Barbara Santa Barbara, CA, 93106 ucsbprelawsociety.org

Preface and Acknowledgements

It is with the greatest pleasure that we are able to present the first volume of the University of California, Santa Barbara Undergraduate Law Journal. We created this journal in coordination with the UCSB Pre-Law Society, an organization we previously founded in 2021, in an effort to further expand legal opportunities at UCSB. Our mission to create a legal culture here on campus and leave a lasting impact on future generations of UCSB students has been made possible by the creation of this journal, founded and managed by students. We will continue to educate our peers by providing resources and a platform to learn about legal discourse and research skills, improve legal writing skills, and express thoughts and opinions. This journal has quickly grown to become among the largest of the few undergraduate legal publications in the country, and our team of nearly 30 writers and editors has set a remarkable precedent for future generations. This year was a fantastic learning experience for everyone involved; especially those on the editorial board, who developed their leadership skills further through mentoring the editors and writers on authoring/editing articles. We are proud to have created a mechanism for students to learn and adapt to this particular style of writing prior to entering law school or wherever their professional pursuits may take them. Our diverse UCSB community is wellreflected by the wide variety of interests and viewpoints represented in the journal. We are delighted to showcase the literature of students advocating for social justice and better legal apparatus as we look at the past, present, and future of the United States’ justice framework. As we conclude this volume of the journal, we would like to extend our gratitude to those who have guided us through our first year of publication. We owe our gratitude to UCSB’s Professor Gina L. Genova, Esq., for her role 2

in advising our editorial board on the technical aspects of legal writing and her editing advice. Professor Genova generously gave her time to meet with our team and provided us with a multitude of resources to share with our writers, editors, and journal staff. We are thankful for the help from Camille Schaefer, the current Editor-in-Chief of UCLA Undergraduate Law Journal, for taking the time to share advice on how to produce a robust, informative journal while providing an enriching experience for all our writers and editors. We would also like to thank our managing editors Eli Sclar and Shruthi Vasudevan for their significant contributions to both making the law journal possible and for supporting our writers and editors through every step of the process. In addition, we want to thank the valuable members of our campus organization, the UCSB Pre-Law Society, which has connected hundreds of pre-law students on campus. Their feedback and insights were necessary to create and manage a successful journal in line with students’ interests. We also want to show our appreciation to Giselle Woods for her graphic design work on our lovely cover. Lastly, we would like to thank our editors and writers, who have invested a great deal of time into researching, writing, and polishing the articles within. We are deeply thankful for everyone’s patience and understanding as we navigated the process of creating the first volume of the journal. With gratitude, Gabriella Sterritt & Daniel Chu Editors-in-Chief Volume I of UCSB Undergraduate Law Journal

Foreword

I am delighted to finally present the culmination of many months of hard work- the first volume of the University of California, Santa Barbara Undergraduate Law Journal. I was honored to have been selected as one of the first Co-Managing editors in the publication’s history and hope that we will leave a platform for students to learn legal writing and express their thoughts for many years to come. This year was a learning experience for everyone on staff: from those who have already been published before, to those who began their journey with us. Many of our writers had never written a legal research article before, and we were incredibly impressed by our peers’ ability to quickly grasp and articulate complex concepts. It was truly exciting to see the diversity of topics and viewpoints in this volume mature from proposals to the wellcrafted legal articles contained within these following pages. We know it is difficult to balance the rigor of a professional publication with the everyday demands of being a full-time student, but our entire journal staff displayed commendable work ethics and a genuine intellectual interest in the topics they wrote about over the course of these five months. Our experience this year shows great promise for the future of the journal as a place for students with curiosity and interest in the law to learn from each other, and to showcase their respective niches. We are pleased to have had such great interest in the journal in our first year and are excited to showcase the work of students who will surely continue to advocate for a better legal system and contribute valuable analyses and insights to their peers. I would like to thank the Pre-Law Society President Gabriella Sterritt and VicePresident Dan Chu for appointing us for this position which has turned out to be one of the most valuable experiences of my academic career. This publication would also not exist without the tireless efforts of our editors and writers who have graciously extended hours of their time into crafting their 4

articles while working alongside the editorial board to shape the structure and foundation of our society. They have brought forth several contemporary legal issues and explored them with great enthusiasm and insight. I have the utmost confidence that these students will use the skills honed working on the journal this year to achieve several personal and professional successes. Once again, I am grateful for everyone’s dedication and flexibility and hope that they have found this experience to be as exciting as we have. Happy reading! Shruthi Vasudevan and Eli Sclar Managing Editors Volume I of UCSB Undergraduate Law Journal

Disclaimer The views and opinions expressed in this journal are those of the authors and do not necessarily reflect the official positions of UC Santa Barbara or the UCSB Pre-Law Society. Any content provided by our writers is their opinion and built off the information they consider reliable. UC Santa Barbara and the UCSB Pre-Law Society are not responsible for any inaccuracy.

Table Of Contents Technology and Business Patents in Virtual/Augmented Reality: Discussions in Software Patents

Contracts of Adhesion: Inaccessibility and Lack of Consumer Protections on Terms of Use Agreements

Moving Beyond NFIB V. OSHA: Vaccine Mandates Under The Commerce Clause

Democracy Gone Digital: Federal Surveillance Through The Data Marketplace

Corporate Personhood: An Unusual Promise for American Corporate Law and Constitutional Rights

Hae Chan Park

Michael Sun

Joshua Cenzano

Shruthi Vasudevan

Anjali Mani

Reproductive Rights Dobbs v. Jackson Women’s Health Organization: The Future of Abortion Rights in America

A New Political Era in Determining Reproductive Rights

Kinga Grant-Zawadzki

Anisha Raju and Sarah Margaron

Political Geography Ohio Redistricting Maps

112

Michele Chadwick

Opportunity Zones: Uplifting Distressed Communities or Amplifying Inequitable Outcomes?

138

Timothy King and Logan Cimino

Environment Environmental Impact Reports: Elevating Environmental Concerns or Blocking Sustainable Urban Development?

150

Senate Bill 332: An Examination of the Impacts on California

163

Vicente Villasenor

Sydney Arredondo

Contemporary Means To An End: On Affirmative Action

173

Considering Supreme Court Reform

187

The United Arab Emirates: Evaluating the Potency of its Insolvency Regulations

205

The Lack of Action Following the United Nations Declaration of the Rights of Indigenous Peoples

223

The Role Race Plays in the Judicial Systems

239

Delayed Justice As Cases Stall: The Impact of COVID-19 on the Criminal Justice System

250

A Step Towards Innovation: The Right to Research

261

Melody Torres

Damon Meggyesy

Alexander Lewis

Alyssa Jazmyn Rodriguez Hannah Adams

Eva Reyman

Jessy Gonzalez

About The Editors

Gwen Ha is a third-year Political Science major at UCSB. She immigrated from Vietnam to San Diego, CA at the age of six and aspires to attend law school after graduation. Within the upcoming years, Gwen is determined to pursue a career in either international or business law. Dayana Esquivel is a 4th-year Global Studies Major with Minors in Portuguese and Professional Editing from Perris, CA. She is an active member of Hermanas Unidas and the Co-Treasurer and Co-Publicity Chair of the Comunidad Latinx Graduation. She plans to pursue a career in immigration or criminal law. Sofia Carigma is a fourth-year environmental studies major with a minor in philosophy from Los Angeles, California. She currently serves as the administrative chair for the Associated Student's Environmental Justice Alliance at UCSB, as well as a member of the pre-law society. Sofia plans on attending law school following her undergraduate degree to work in a career relating to environmental law and policy. Sayora Shukurova is a second-year philosophy and economics double major. After graduation, she plans on going to law school, hopefully somewhere on the East Coast to be closer to home in New Jersey. Other than the Law Journal, she's also an active member of the Model United Nations club here on campus. Alasdair MacLeod is a Junior and a History Major on a year-long exchange at the University of California, Santa Barbara. This summer Alasdair will be returning to his home University, the University of Edinburgh (UK) for a further year before he graduates. As well as surfing and traveling this past year, Alasdair has taken a particular academic interest in the American withdrawal from Afghanistan and Supreme Court debates on Roe v. Wade. Reena Khanna is a Sociology and History double major from San Francisco, California. Aside from editing the Pre-Law journal, she also writes for the Daily Nexus opinion section on a variety of topics and is a part of the non-profit 9

organization, Dhadkan. After undergrad, she plans on attending law school and hopes to pursue a career in the legal field. Julia Drobish is a first-year History of Public Policy and Law major here at UCSB. She is from Castle Rock, Colorado. Julia hopes to attend law school upon completion of her undergraduate degree.

SECTION I TECHNOLOGY & BUSINESS

Patents in Virtual/Augmented Reality: Discussions in Software Patents Hae Chan Park Edited by Gwen Ha Hae Chan is from the Bay Area. He is a freshman at UC Santa Barbara studying Electrical Engineering. He plans on pursuing law school after achieving his undergraduate degree, eventually culminating his career in his goal of becoming a patent/IP lawyer.

ABSTRACT The metaverse, a general term used to encompass various virtual reality platforms, is a relatively new technological concept in the realm of patents. Regardless, numerous companies believe in the untapped potential of cyberspace as a business, resulting in patentees finding interest in the medium. This article will cover the aspects of U.S. law that influence the patents within virtual reality by reviewing sections of the United States Code that explore patents. After establishing current codes regarding patent eligibility, major events, and landmark cases regarding patents in virtual worlds will be examined. Contemporary examples of virtual/augmented reality-related patents will then be discussed. Current precedents and their implications for the metaverse will be considered. Historically, patents have generally focused on patent-eligibility through hardware means, even with software patents. However, recent history in patents involving virtual reality has circumvented this trend, being nearly entirely virtual and software-based, implying that future metaverse patents will not require unique hardware aspects. INTRODUCTION 12

Virtual reality, as well as similar branches such as augmented reality, virtual worlds, and conceptualized metaverses as pitched by newly branded company Meta, has been a rapidly growing market for technology-based industries. Data suggests that virtual reality (VR) and augmented reality (AR) investments are projected to multiply 21-fold by 2022.1 Arguments discussing the legitimacy of VR as a profitable market continue, however, most of the developed world has begun to have a rudimentary understanding of the novel field. Most modern technology companies have embraced the new medium, making them no exception in the acceptance of VR and AR as viable markets. In 2022, billionaire and Meta CEO of Meta, previously Facebook, declared that their upcoming product promptly named ‘Metaverse,’ will become the ‘holy grail’ of interactive media experiences.2 The release of VR and AR has also introduced controversial legal issues regarding patents along with its success. Prominently, intellectual property law, a segment of the broader category of patent law, discusses the majority of the relevance of the topic. This is due to VR and AR’s reliance on computer programming and software, which is the specialization of intellectual property regulations. This can pose problems if VR and AR platforms are used commercially by non-developer users such as players or other companies as developers have protections on the product, complicating issues even further. On top of copyright ownerships, many software companies are notorious for not filing patents in the industry, with only landmark cases such as Apple’s spatial audio for VR being prevalent.3 1

Iberdrola Corporativa, Virtual Reality: another world within sight. https://www.iberdrola.com/innovation/virtualreality#:~:text=THE%20FUTURE%20OF%20VIRTUAL%20REALITY,15.5%20billion %20euros%20by%202022, (last accessed April 16, 2022). 2 Kara Carlson, At SXSW, Mark Zuckerberg says metaverse is 'Holy Grail' of social experience, Statesman (March 16, 2022, 9:30 AM), https://www.statesman.com/story/business/2022/03/16/sxsw-facebooks-markzuckerberg-says-metaverse-future-internet/7051230001/ 3 Jack Pucher, Apple wins a Patent relating to Spatial Audio in context with Augmented Reality and a Future HMD, Patently Apple (August 24, 2021, 5:37 AM),

However, the greatest issue with VR-related patents is the complications that arise due to the fact that many of the patents regarding VR are software-based. Claimed software patents are difficult to deal with as the regulations covering hardware patents do not necessarily apply to software patents, making it difficult to categorize these claimed patents into actual patents or not. As a result, this article will discuss this problem, as the issue will only expand due to the ever-growing nature of VR and AR as well as the software field as a whole. Data on current patents and landmark cases will be analyzed to answer what traits VR and AR software and hardware constitute as patentable. Section I of the article will cover the important aspects of U.S. Patent Law seen within 35 U.S.C (United States Code), such as regulations in software patents and their application to VR and AR. Section II will discuss major landmark cases and other important court cases in the field to establish a foundation of the USPTO’s views on patents. Section III will finally analyze current software and hardware patents and how the USPTO has evolved to adapt to VR and AR. I.

PATENT LAW

The overarching goal of a patent is for an individual or organization to disclose information on an invention in exchange for ownership of the invention over a predetermined time period, which is often 20 years. A patent is defined as an exclusive right to an invention according to the World Intellectual Property Organization.4 Additionally, patents remain relevant to this day as they are often mutually beneficial, providing others with knowledge of a unique invention and also providing the creator protection on commercial use. The

https://www.patentlyapple.com/patently-apple/2021/08/apple-wins-a-patent-relating-tospatial-audio-in-context-with-augmented-reality-and-a-future-hmd.html 4 Patents, World Intellectual Property Organization, https://www.wipo.int/patents/en/, (last accessed April 8, 2022).

regulations regarding patents are covered in 35 U.S.C. Within the United States Code, sections 100 through 103 pertain the most heavily to this topic. A. SECTION 100 Section 100 establishes the primary definitions relevant to patents that will be important for the following three sections. The following terms are defined in this section: “invention,” “process,” “United States,” “patentee,” “third-party requester,” “inventor,” “joint inventor/co-inventor,” “joint research agreement,” “effective filing date,” and “claimed invention,” wherein the United States describes the territories and states where these regulations are effective. An invention is defined simply as an “invention or discovery,” which is straightforward. A process is defined by the U.S.C. as a “process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” This describes the technical information regarding the patented invention, which is important to applications. A patentee is defined as “whom the patent was issued,” as well as “the successors in the title to the patentee.” The definition clarifies that patentees are not necessarily always the individual who invents the invention, but simply the individual who owns the patent. A “third-party requester” is defined “as a person requesting ex parte reexamination under section 302 who is not the patent owner.” An individual who intends to challenge an extant patent filed by the patent office would be defined as a third-party requester. An inventor, another straightforward term, is defined as “the individual or, if a joint invention, the individuals collectively invented or discovered the subject matter of the invention.” Through the definition of ‘inventor’, the definition of ‘converter’ is practically defined as well, who is just an individual who “invented or discovered the subject matter of a joint invention.” A joint research agreement is “a written contract, grant, or cooperative agreement entered into by 2 or more persons or entities for the performance of experimental, developmental or research work in the field of the claimed invention.” A claimed invention is simply a “subject matter defined by a claim 15

in a patent or an application for a patent.” Regarding the final definition that was not covered, the effective filing date does not pertain to the topic at hand.5 However, the rest of the terms will prove to be important to understand for the remainder of this article. B. SECTION 101 Section 101 is the first major section of the 35 U.S.C, specifically saying, “Whoever invents or discovers any new and useful process, the machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent, therefore, subject to the conditions and requirements of this title.” This section essentially describes the types of inventions that are eligible or ineligible for a patent.6 There are four major categories in this section: process, machine, manufacture, or composition of matter. As defined previously, a process is described as a series of methods or steps. A machine is defined as an object made up of several components such as a computer, which is composed of multiple microcontrollers and integrated circuits. A manufacturer is an object that is created from raw materials and a composition of matter is essentially just a product that is made up of two or more substances, which can be a liquid/chemical mixture. On top of these categories that the invention must fall under, the invention must also be a “new and useful improvement” technology, which does not just fall under the field of engineering. Eligibility for patenting must fulfill three conditions: the claimed patent must be substantial, the claimed patent must be substantial in research (no further research needed), and the claimed invention cannot have a trivial utility attached to it in addition to its credibility.

5 6

Definitions, 35 U.S.C § 100 (2011). Inventions Patentable, 35 U.S.C § 101 (2011).

C. SECTION 102 AND 103 Section 102 discusses whether or not the patent in question is a unique invention. Specifically, it is stated that an invention must be novel when compared to previous prior art searches.7 This categorizes one of the primary conditions for patentability. Similarly, section 103 discusses another condition for patentability, which is based on various unrelated “non-obvious subject matter.”8 II.

HISTORY OF SOFTWARE PATENTS

One of the most inherent problems with VR-based patents is that they typically fall under two major categories: hardware and software. Although the regulations around hardware patents have been long established, much of the software for VR patents have not yet been determined due to the complex nature of the intellectual property. This may lead to some complications when comparing software patents to each other as software is inherently intangible and more serves as intellectual property as discussed earlier. This section will discuss precedents set regarding hardware-related VR patents as well as software-related VR patents. At the end of this section, an overview of how the Supreme Court currently views VR patents will be discussed, as well as potential ways to ensure company patents fulfill these requirements. As hardware patents are well established and understood for VR, software patents regarding VR are going to be the focus instead. Two of the most important historical cases regarding programs, in general, are Parker v Flook 1978 and Diamond v Diehr 1981. Both of these are considered landmark cases that have established precedents for software patents and in turn software-based VR patents. Additionally, a modern patent will be analyzed to determine how the rulings in prior patent cases are applied.

7 8

Conditions for patentability; novelty, 35 U.S.C § 102 (2011). Conditions for patentability; non-obvious subject matter, 35 U.S.C § 103 (2011).

A. PARKER V FLOOK

Parker v Flook, the earlier of these two cases establishes the limitations of purely software-based patents. In this case, a catalytic converter, a device that helps the refining process of oil by separating pollutants, is in question. Specifically, Dale R. Flook applied for a patent for his software, which was based on a complex mathematical formula that automates the process. Although an impressive mathematical feat, the Burger Court, the ruling court at the time, determined in a 6-3 majority that the whole patent was based on a singular mathematical formula that is simply run through software to seemingly create a unique patent. It was officially ruled that because the claimed invention was absent of some other novel or inventive concept, the algorithm as a principle cannot be transformed into a patentable invention.9 B. DIAMOND V DIEHR In Diamond v Diehr, a more relevant topic was at hand. The question was “Can one patent a machine that transforms materials physically under the control of a programmed computer?” To simplify, the question was asking whether or not hardware controlled by software can be a patentable invention, which is especially important to VR as it requires both hardware and software patents working in tandem. In this case, James Diehr and Theodore Lutton invented a press that could cure rubber using a heating system that had its temperature automatically measured and used the values from the hardware to continuously calculate cure times and compute the perfect cure time along with elapsed time. Previously in Gottschalk v. Benson 1972, a similar case was rejected as the court ruled that combining an unpatentable program with an already patented rubber press was an unpatentable concept. However, in this

Parker v. Flook, Oyez, https://www.oyez.org/cases/1977/77-642 (last visited April 22, 2022).

case, the precedent was overturned. In a 5-4 decision, it was determined that a machine that is controlled by a programmed computer is patentable. Additionally, the case also determined that not all computer programs are unpatentable, opening a plethora of possibilities. This was further solidified thirteen years later when the Court of Appeals ruled that all computer programs are patentable under the requirements of a traditional patent.10 One of the most recent patents in VR is the “3D audio rendering using volumetric audio rendering and scripted audio level-of-detail” patent by investors based in Apple, a modern technology company renowned for their handheld devices.11 The invention in question is essentially a softwaredeveloped audio engine that renders sound for a three-dimensional virtual environment. In this case, the holding from Diamond v Diehr applies, where it was determined that virtually all computer programs are patentable under the conditions of traditional patents. As a result, because this audio engine is completely novel, it was determined that this would be a valid patent and applied to VR. However, this is one of the clearer applications of the rulings. There are far more complex ongoing patent applications that are harder to determine. III.

CURRENT PATENTS IN VIRTUAL REALITY

This section will discuss the various patent applications that are in the process of being accepted or rejected related to VR. Due to the sheer number of applications in this field, only one major application will be discussed, that being software.

Diamond v. Diehr, Oyez, https://www.oyez.org/cases/1980/79-1112 (last visited April 22, 2022). 11 U.S Patent No 11,146,905, (filed September 17, 2020).

A. THE PORTION OF A DISPLAY SCREEN WITH A SET OF AVATARS (APPLICATION NO. 29/722,112)

In this application, a portion of the screen is allocated to avatar sets, as the claimed patent entails through the name of the application. In addition, it has specific ornamental designs for avatars that can be applied to various software assets, inclusive of virtual reality, and augmented reality.12 The software applies itself to the VR hardware directly, allowing for both hardware and software viewing, hence making it patentable. The mathematical formulas and algorithms behind this software patent application are intertwined with the hardware, leading to the conclusion that this patent application will most likely be accepted. B. COORDINATING COMMUNICATION LINKS FOR ARTIFICIAL REALITY (APPLICATION NO. 17/171,843)

This patent application addresses one of the more complex aspects of virtual reality, analyzing joint coordination of communication between two devices/beacons. There are two modes of communication that displays information such as transmission time. This references the connection between virtual reality devices and servers or other nodes of connection.13 Considering that this application also utilizes the fact that VR requires hardware, like the previous patent application, it serves as both a bridged hardware and software patent application. This increases the chances of this claimed patent becoming an actual patent in the near future if considering the invention novel. In all, patents regarding VR and software have certainly made it obvious that the software must either be one of the following: virtually entirely novel in algorithms and mathematical formulas or intertwined with physical hardware to conduct a unique action. In addition to both of these untold rules 12 13

U.S Patent Application No. 29/722,112, (filed January 20, 2020). U.S Patent Application No. 17/171,843, (filed February 9, 2021).

of software patents, the claimed patent must not have any coverage from previous software patents, as recycling previous algorithms into your own program would be a violation of the novelty of your invention. However, if the software utilizes previous patents and the inventors develop their own unique algorithms that work alongside the previous patents to produce a novel result, the software is patentable. With these conditions in mind, it is now clear that the process of producing a VR patent is far more difficult than at first glance. CONCLUSION VR has taken the world by storm and will continue to do so, becoming more prevalent each coming year. As technology continues to gradually develop, various companies in the industry will inevitably file for patents to defend their novel inventions. In turn, the regulations regarding patentability for software and intellectual property will have to be set via precedent cases or changes directly in the U.S. Code, the former being more likely as they already have major decisions established. Additionally, due to the heavy emphasis on software patents for VR, software patents should focus on the algorithms behind a novel abstract idea instead of just the name of the invention. As is always the case in software, a real-life version of the idea already exists, therefore, it would be impractical to develop a brand-new patent just for its software application. For example, developing a toaster in real-life is deserving of a patent in its own right, however, making a toaster simulation using software would not necessarily entail the creation of a patent. Instead, courts will have to find a way to differentiate between novel abstract ideas in VR and their algorithms with already existing patents that perform the same action in a different space: real life. As a result of these concerns, VR companies looking to develop software patents should be more vigilant and cautious when applying, as they would need to ensure that their invention properly fulfills the requirements of a patent. 21

Contracts of Adhesion: Inaccessibility and Lack of Consumer Protections on Terms of Use Agreements Michael Sun Edited by Gwen Ha Michael Sun is a third-year political science major from Orange County. He hopes to pursue a fulfilling career in law after graduating from UC Santa Barbara. He is thankful for the opportunity to learn and connect with my fellow pre-law peers in contributing to the first edition of the UCSB Undergraduate Law Journal.

ABSTRACT Consumers today find themselves bound by contracts of adhesion in the form of Terms of Service (ToS) agreements required to access most or all their services. ToS agreements (aka Terms of Use, Terms and Conditions, Conditions of Use, User Agreements) are legally binding documents between service providers and users seeking access to a service; common elements of a ToS agreement include verbiage outlining the rights and responsibilities of the user, privacy policies, intellectual property statements, liability/accountability provisions, etc. Several observants have noted the increasingly anti-consumer nature of industry-standard ToS agreements due to the prevalence of amendat-will-without-notice clauses, binding arbitration clauses, and the nonnegotiability of said terms. The issue of anti-consumerism within ToS agreements has garnered attention from lawmakers who propose legislation such as the ‘TLDR’ Act, which would require service providers to display a “summary statement”

making their terms “easy to understand” while disclosing information on recent data breaches and what sensitive personal data they collect. However, the issue with contracts of adhesion is not limited solely to a lack of understanding- more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. Courts should consider three categories of justifications for strengthening consumer protections vis-à-vis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers meaningless; Congress should place regulations building on consumer protections by prohibiting mandatory arbitration and banning waivers of the right to a class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industry-standard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue. INTRODUCTION A Contract of Adhesion is a legal agreement between two parties with disproportionate bargaining power, wherein one party enjoys substantially more power in setting the terms of the contract than the other. Also known as standard form contracts or ‘boilerplate’ contracts, adhesion contracts are characterized by the inability of the minority party to negotiate terms ex-antethe terms are often presented as a ‘take it or leave it’ agreement drafted by the party of superior bargaining strength and standardized across any number of consumers. The vast majority of economic contracts are contracts of adhesionthey apply to billions of commercial transactions every year, and most consumers who wish to participate in the modern economic system find themselves inevitably bound by the standard form of contract. Common examples of adhesion contracts are Terms of Service (ToS) agreements, Enduser license agreements (EULAs), liability waivers, contracts for

cellular/internet services, insurance, car purchases, and an untold number of other commercial transactions. The development of a modern consumer economy driven by billions of near-instantaneous consumer transactions conducted daily necessitated the advent of standard form contracts to facilitate economic efficiency and prevent the costs of doing business from reaching astronomical levels.1 However, the power imbalance inherent in these type of agreements have led courts to question the conscionable and subsequent enforceability of adhesion contracts- this is especially the case given the prevalence of amend-at-willwithout-notice clauses, binding arbitration clauses, and the non-negotiability of said terms. These factors contribute to increased perceptions of anti-consumer behavior and practices which are exacerbated by consumers’ inaccessibility in reading and comprehending the terms they assent to, and their inability to negotiate upon these terms. The issue of anti-consumerism within ToS agreements has garnered attention from lawmakers who propose legislation such as the ‘TLDR’ Act, which would require service providers to display a “summary statement” making their terms “easy to understand” while disclosing information on recent data breaches and what sensitive personal data they collect. However, the issue with contracts of adhesion is not limited solely to a lack of understanding- more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. Courts should consider three categories of justifications for strengthening consumer protections vis-à-vis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers meaningless; Congress should place regulations building on consumer protections by 1

Llewellyn, K. and Prausnitz, O., 1939. The Standardization of Commercial Contracts in English and Continental Law. Harvard Law Review, 52(4), p.700.

prohibiting mandatory arbitration and banning waivers of the right to a class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industry-standard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue. Due to the pervasiveness of adhesion contracts, more emphasis needs to be placed on strengthening consumer protections in the substantiation and enforcement of the standard form contract. Although U.S. consumer protection mechanisms already exist out of recognition of this, the decentralized nature of legal remedies and reliance on the litigation process means its weakness lies in the unequal reality of who has access to the government and courts.2 I.

ADHESION CONTRACTS – STATUS QUO

A. BRIEF HISTORY OF ADHESION CONTRACTS IN COMMON LAW JURISPRUDENCE

The concept of the adhesion contract originated within French civil law when the famous French civilist Raymond Saleilles, in discussing party autonomy as defined by the recently promulgated German Civil Code, defined the adhesion contract (contract d’adhésion) as “preformulated stipulations in which the offeror’s will is predominant and the conditions are dictated to an underdetermined number of acceptants and not one individual party”.3 It entered American jurisprudence when the Harvard Law Review published an influential article by Edwin W. Patterson in 1919, which was solidified by

Waller, S., Brady, J., Acosta, R., Fair, J. and Morse, J., 2022. Consumer Protection in the United States: An Overview. [online] Papers.ssrn.com. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1000226> [Accessed 7 May 2022]. 3 Bolgar, V., 1972. The Contract of Adhesion: A Comparison of Theory and Practice. The American Journal of Comparative Law, 20(1), p.53.

Freidrich Kessler’s famous comparative article on adhesion contracts published in the Columbia Law Review.4 The concept was subsequently adopted by most American courts, when the Supreme Court of California endorsed their adhesion analyses in Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862, 882 n.10 (1962), affirming the conception of the standard form contract as defined by Patterson and Kessler, and invoking the doctrines of ambiguity and unconscionability which serve as the basis for determining enforceability in adhesion contracts today.5 Adhesion contracts are a category of contracts that contain the following characteristics: (1) Drafted by the party of superior bargaining power and signed by the party of weaker bargaining power (2) Non-negotiable; typically offered on a ‘take-it-or-leave-it’ basis6 (3) Standardized or ‘boilerplate’ language (4) Drafted for an indefinite number of signees There are three different types of adhesion contracts: (1) Browse-wrap contracts - agreements in which users or customers assent to simply by accessing or using the website. Browse-wrap agreements often cover a user’s browsing of a Web site or agreement for a transaction in which the user can browse the terms but does not have to assent by express means. Browse-wrap contracts may require consumers to click through multiple hyperlinks to read and agree to the terms and conditions.

Patterson, E., The Delivery of a Life-Insurance Policy, 33 Harvard Law Review, 198 (1919); see also Friedrich Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629 (1943). 5 SCOCAL, Steven v. Fidelity & Casualty Co. , 58 Cal.2d 862 available at: (https://scocal.stanford.edu/opinion/steven-v-fidelity-casualty-co-27180) (last visited Friday May 6, 2022). 6 Andrew A. Schwartz, Consumer Contract Exchanges and the Problem of Adhesion, 28 Yale J. on Reg. 313 (2011), available at https://scholar.law.colorado.edu/articles/448.

Therefore, courts usually do not enforce browse-wrap contracts because of the procedural unconscionability of buried terms.7 (2) Click-wrap contracts - agreements in which users assent by means of an immediately available pop-up box stating, “I Agree”. Clickwrap legality stems from foundational e-signature law and clickwraps must meet the same standards as other legal agreements; therefore, courts generally enforce click-wrap contracts.8 (3) Sign-in-Wrap contracts - online agreements requiring the user to assent to the terms and conditions by affirmatively signing up for the website or service when the terms and conditions are available only by clicking on a hyperlink”. Sign-in-Wrap contracts require that users electronically accept the terms by clicking “I accept” or “I agree” as the last step of the signup process before allowing consumers to use their products or services. Courts generally enforce Sign-in-Wrap agreements.9 Adhesion contracts are typically deemed enforceable in common law jurisdictions. When determining enforceability, courts look at the type of adhesion contract, as well as examining the doctrine(s) of duty-to-read, ambiguity, reasonable expectations, and unconscionability. 1. THE DUTY-TO-READ DOCTRINE The duty to read is a principle persisting within American jurisprudence that sets the foundation for much of U.S. contract law that holds all contracting parties responsible for the terms for which they signed, as each party has a responsibility to read their contracts,

Jerez v. JD Closeouts, LLC, 36 Misc. 3d 161. Caspi v. Microsoft Network, 323 N.J. Super. 118. 9 Berkson v. Gogo LLC, 97 F. Supp. 3d 359. 8

and one or more parties’ failure to do so does not diminish the force of the contract.10 This notion is exemplified in the following statements:

It is beyond cavil that a party accepting an offer has an absolute duty to read and understand the terms of an offer, and failure to do so will not diminish the force and effect of the resulting contract.11 A person signing an agreement has a duty to read it and, absent a showing of fraud, if the person is capable of reading and understanding the contract then he is charged with the knowledge of what the contract says.... He cannot avoid the consequences of what he signed by simply saying that he did not know what he signed.12 While the duty-to-read doctrine is the basis of general contract law, the disproportionality of bargaining power coupled with the inherent nonnegotiability of adhesion contracts means courts may look less favorably on the party of superior bargaining strength when determining the contract’s enforceability. Empirical evidence suggests that the vast majority of consumers do not read their contracts; moreover, consumer contracts may be written in a way expressly intended to dissuade consumers from reading them.13 Depending on the type of adhesion contract used, courts can strike down adhesion contracts if the contract is ambiguous or if relying on the duty to read necessarily leads to an unconscionable outcome. 2. THE DOCTRINE OF AMBIGUITY

Charles L. Knapp, Is There a "Duty to Read"?, 66 Hastings L.J. 1083 (2015). Available at: http://repository.uchastings.edu/faculty_scholarship/1282 11 66 VMD Assocs. v. Melick-Tully & Assocs., No. L-6584-07, 2oii WL 350316o, at *5 (N.J. Super. Ct. App. Div. Aug. ii, 2011). 12 Nunn v. C.C. Midwest, 151 S.W.3d 388, 402 (Mo. Ct. App. 2004). 13 Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255 (2019), https://lawdigitalcommons.bc.edu/bclr/vol60/iss8/2

The doctrine of ambiguity, also known as the contra proferentem doctrine, is a rule of contractual interpretation that holds in cases of interpreting legal agreements, cases of ambiguity are strictly construed unfavorably to the drafter of said agreement.14 In recognition of this rule, drafters of contractual agreements are called to ensure the terms of the agreement are as clear and explicit as possible, and the scope of the agreement covers as many reasonably foreseeable contingencies as possible. Ambiguity materializes when a document’s language leads a reasonable reader to two or more equally plausible interpretations.15 While the duty-to-read doctrine maintains that a consumer’s failure to read or understand the terms of their contract does not diminish said contract’s force (often resulting in unfavorable outcomes for consumers), the doctrine of ambiguity emerges as a defense to the duty-to-read doctrine. In cases of ambiguity in contractual agreements, courts tend to rule unfavorably toward the drafter of the agreement. However, in the case of adhesion contracts, which by design are drafted for an indefinite number of consumers who by and large are unable or unwilling to read and interpret their contracts, courts are forced to look beyond a contract’s mere substance, but it’s intent. 3. THE DOCTRINE OF REASONABLE EXPECTATIONS The doctrine of reasonable expectations is the principle providing that the

objectively reasonable expectations of a consumer regarding a contract’s terms shall be honored even though the painstaking study of the contract’s provisions would negate those expectations.16 The doctrine of reasonable expectations goes beyond contra proferentem as it may lead courts to rule

88 Colum. L. Rev. 1849 (1988) Insurance As Contract: The Argument for Abandoning the Ambiguity Doctrine 15 John F. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denv. U. L. Rev. 241 (2002). 16 Keeton, Robert E. “Insurance Law Rights at Variance with Policy Provisions.” Harvard Law Review 83, no. 5 (1970): 961–85. https://doi.org/10.2307/1339729.

unfavorably against the drafter of a contract even in cases where language is clear and unambiguous. This principle is applied in insurance law as a defense to a contract’s enforcement- however, the adhesive nature of most insurance contracts may lead courts to adopt this principle out of recognition of instances where an adhesion contract leads a reasonably intelligent consumer to misconstrue the terms of their agreement. This principle is exemplified in the following statement by the Supreme Court of Arizona on how the doctrine of reasonable expectations can be applied to adhesive insurance contracts with unambiguous language:

Where the contract terms, although not ambiguous to the The court, cannot be understood by the reasonably intelligent consumer who might check on his or her rights, the court will interpret them in light of the objective, reasonable expectations of the average insured...,17 It is worth noting the doctrine of reasonable expectations remains controversial within insurance law, and while the principle has proliferated within some jurisdictions, others have refused or been reluctant to do so. 4. DOCTRINE OF UNCONSCIONABILITY The doctrine of unconscionability is a principle derived from Section 2-302 of the Uniform Commercial Code which leads courts to rule unfavorably towards the drafter of an agreement if the terms of said agreement are so ‘unfair’ or ‘one-sided’ that its enforcement would “shock the sensibilities” of the court.18 In the case of adhesion contracts, the disproportionality of 17

682 P.2d 388, 397 (Ariz. 1984) (adopting RESTATEMENT (SECOND) OF CONTRACTS § 211 (1981) 18 70 U. Chi. L. Rev. 1513 (2003) The Philosophical Dimensions of the Doctrine of Unconscionability

bargaining power, non-negotiability of terms, and standardized boilerplate terms can lead draftees of an agreement to create terms that any reasonable person may deem oppressive or unfair. Courts tend to strictly rule unfavorably towards a contract’s drafters when the enforcement of the said contract would be unconscionable. Therefore, it is an important justification for courts to act out of recognition of unfair bargaining practices that occur en masse due to the size and scale of the modern consumer economy. III. JURISDICTION (U.C.C. § 2-302)

(1) “If the court as a matter of law finds the contractor any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” –U.C.C. § 2302 The principle of unconscionability finds its basis in sections 2-302 of the Uniform Commercial Code (U.C.C.). The U.C.C. is a comprehensive code addressing most aspects of commercial law and is generally viewed as one of the most important developments in American jurisprudence.19 The U.C.C. is a model code; therefore, its provisions do not have a legal effect in any given jurisdiction unless U.C.C. provisions are enacted by individual state legislatures as statutes. All U.S. states, including the District of Columbia, Puerto Rico, and the Virgin Islands have enacted the U.C.C. either in whole, or in part. Fourteen states20 have adopted Article 2 of the U.C.C. concerning Sales.21 19

Law.duke.edu. 2022. Uniform Commercial Code (UCC). [online] Available at: <https://law.duke.edu/lib/research-guides/ucc/> [Accessed 7 May 2022]. 20 These states are Arizona, Arkansas, California, Georgia, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma 21 US Legal, I., 2022. States Adopting the UCC – Uniform Commercial Code. [online] Uniformcommercialcode.uslegal.com. Available at:

While section 2-302 was first proposed in the 1940s, the principle of unconscionability was applied long before the code’s introduction. Although section 2-302 is substantially just a restatement of common law (with the concept of unconscionability tracing back to English common law at least as early as 1663),22 U.C.C. § 2-302 represents the first statutory embodiment of the concept of unconscionability, codifying unconscionability as a defense to all actions, legal or equitable, based on sales contracts.23 II.

INACCESSIBILITY AND A LACK OF CONSUMER PROTECTIONS ON ADHESION CONTRACTS

The development of a modern consumer economy driven by billions of nearinstantaneous consumer transactions conducted daily necessitated the advent of standard form contracts to facilitate economic efficiency and prevent the costs of doing business from reaching astronomical levels.24 However, the power imbalance inherent in these adhesion contracts has led legislators to question their conscionably and the anti-consumer practices they enable. Due to the pervasiveness of adhesion contracts, more emphasis needs to be placed on strengthening consumer protections in the substantiation and enforcement of the standard form contract. Although U.S. consumer protection mechanisms already exist out of recognition of this, the decentralized nature of legal remedies and reliance on the litigation process means its weakness lies in the unequal reality of who has access to the government and courts. A. S. 3501: TLDR ACT <https://uniformcommercialcode.uslegal.com/states-adopting-the-ucc/> [Accessed 7 May 2022]. 22 William B. Davenport, Unconscionability and the Uniform Commercial Code, 22 U. Miami L. Rev. 121 (1967) Available at: https://repository.law.miami.edu/umlr/vol22/iss1/8 23 The Yale Law Journal, 1954. Section 2-302 of the Uniform Commercial Code: The Consequences of Unconscionability in Sales Contracts. 63(4), p.560. 24 Llewellyn, K. and Prausnitz, O., 1939. The Standardization of Commercial Contracts in English and Continental Law. Harvard Law Review, 52(4), p.700.

One promising legislative development in the realm of bolstering consumer protections on adhesion contracts is the precedential U.S. Senate Bill S. 3501, termed the “Terms-of-Service Labeling, Design, and Readability Act (‘TLDR’ Act)”. Introduced in the 117th Congress in 2022, this bill purports to: (1) inform consumers of how their data is collected and used; (2) empower consumers to compare simple and standardized ToS Agreements across vendors; (3) facilitate independent oversight and study of ToS contracts. The bill language would require draftees of adhesion contracts to create concise, easy-to-read, machine-readable summary statements located at the top of any existing ToS page. Summary statements are required to contain information on the collection and user of consumer data, and the legal liabilities of the consumer using the service (including their rights to content, mandatory arbitration, and class action waivers). The bill would provide enforcement mechanisms for violation of this law by authorizing the Federal Trade Commission to treat violations as an ‘unfair or deceptive practice’ and authorizing State Attorneys General to bring a civil action against violators of this law on behalf of at least 1,000 affected residents of their state.25 B. PROPOSED SOLUTIONS Although the TLDR Act represents an important first step in bolstering consumer protections on adhesion contracts, the legislation is limited in its focus on consumer readability and understanding. However, the issue with contracts of adhesion is not limited solely to a lack of understanding- more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. I propose the following solutions in going beyond consumer readability and implementing a more robust protective framework on adhesion contracts: 25

GovTrack.us. 2022. Text of S. 3501: TLDR Act (Introduced version) - GovTrack.us. [online] Available at: <https://www.govtrack.us/congress/bills/117/s3501/text/is> [Accessed 7 May 2022].

1. PROHIBITION OF MANDATORY ARBITRATION CLAUSES Mandatory Arbitration is a form of alternative dispute resolution (ADR) in which each party submits their disputes and evidence to an arbitrator, as opposed to receiving judicial attention through the trial process.26 In cases of unconscionability in adhesion contracts, consumers’ only remedy often lies in the court system through the litigation process. Mandatory Arbitration Clauses exacerbate the disproportionality in bargaining power and leverage institutional advantages draftees of adhesion contracts often enjoy when disputes arise. Therefore, Mandatory Arbitration Clauses should be prohibited in standard form contracts as it is not equitable to allow firms to circumvent the judicial process by removing consumers’ right to litigation. 2. PROHIBITION OF AMEND-AT-WILL-WITHOUT-NOTICE CLAUSES

Amend-at-Will-Without-Notice Clauses involve language enabling draftees of boilerplate contracts to change the terms of a legal agreement without the express affirmation of consumers. These clauses are often written in such a way to allow draftees to amend said terms without notifying consumers, and in the case said terms are not amenable to consumers, consumers are expected to terminate the agreement out of their own accord. Some courts have deemed Amend-at-will-Without-Notice clauses as unenforceable because such clauses, by their very nature, do not necessarily

US Legal, I., 2022. Mandatory Arbitration Law and Legal Definition | USLegal, Inc.. [online] Definitions.uslegal.com. Available at: <https://definitions.uslegal.com/m/mandatoryarbitration/#:~:text=Mandatory%20Arbitration%20Law%20and%20Legal%20Definition %20Mandatory%20arbitration,contract%20term%20that%20prevents%20judicial%20att ention%20from%20disputes.> [Accessed 7 May 2022].

require the unambiguous, manifest consent of the provisions amended.27 However, Amend-at-Will-Without-Notice clauses are particularly problematic when consumers are also subject to Mandatory Arbitration Clauses, or lack sufficient wherewithal to receive judicial attention through the litigation process. 3. PROHIBITION OF WAIVERS OF RIGHT TO CLASS ACTION Waivers of Right to Class Action are legal provisions prohibiting consumers from engaging in class and collective action against draftees of their adhesion contracts. Waivers of Right to Class Action find their legal basis in invoking the Federal Arbitration Act (9 USC §§ 1-16) (FAA), an act of Congress that provides for judicial facilitation of a private dispute resolution through arbitration.28 The issue with Waivers of Right to Class Action as applied to standard form contracts, is these contracts by their very nature are drafted for an indefinite number of consumers, often resulting in large groups of collectively affected individuals when a dispute arises. By barring consumers from engaging in representative action, draftees of adhesion contracts are able to raise the costs of seeking judicial attention in instances of unfair or unconscionable practices, effectively denying certain individuals access to judicial remedies the court system is able to provide.

vLex. 2022. Nguyen v. Barnes & Noble Inc., No. 12–56628.. [online] Available at: <https://case-law.vlex.com/vid/nguyen-v-barnes-noble-891226665> [Accessed 7 May 2022]. 28 Content.next.westlaw.com. 2022. The use and enforceability of class action waivers in arbitration agreements in the United States | Practical Law. [online] Available at: <https://content.next.westlaw.com/practicallaw/document/I9f163d1a04d111e798dc8b09b4f043e0/The-use-and-enforceability-ofclass-action-waivers-in-arbitration-agreements-in-the-UnitedStates?contextData=(sc.Default)&transitionType=Default&firstPage=true&viewType=Fu llText> [Accessed 7 May 2022].

4. EXPANDING THE DOCTRINE OF UNCONSCIONABILITY Lastly, courts should consider expanding the Doctrine of Unconscionability to take into account novel developments in the drafting and signing of adhesion contracts in the digital age. Courts should acknowledge the evolving role the unconscionability doctrine has played in common law jurisdictions since its introduction in the 20th century and consider the inherent unconscionability of many standard form contracts prevalent in consumer settings.29 For as long as legislative and statutory procedures are unable to sufficiently provide consumer protections for individuals affected by unconscionable terms contained in adhesion contracts, courts should utilize the unconscionability doctrine to enforce good faith bargaining practices and punish deceptive or unfair boilerplate terms, which certain legislative bodies seek to amend. CONCLUSION Billions of consumers today find themselves bound by contracts of adhesion in the form of Terms of Service (ToS) agreements required to access most or all their services. These adhesion contracts are characterized by disproportionality in bargaining power and are unreadable/non-interpretable by the average consumer, which raises concerns about unconscionability in the drafting and signing of these types of agreements. In order to protect consumers from unfair or deceptive business practices, lawmakers should consider implementing legislative and procedural measures such as the ‘TLDR’ Act, which recognizes the inherent unconscionability of many standard-form contracts. Courts should consider three categories of justifications for strengthening consumer protections vis-àvis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) 29

Scholarship.shu.edu. 2022. [online] Available at: <https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1675&context=student_scholars hip> [Accessed 7 May 2022].

already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers meaningless; Congress should place regulations building on consumer protections by prohibiting mandatory arbitration and banning waivers of the right to a class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industrystandard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue.

Moving Beyond NFIB V. OSHA: Vaccine Mandates Under The Commerce Clause Joshua Cenzano Edited by Reena Khanna Joshua is a second-year History and Russian major at UC Santa Barbara. He is from Port Hueneme, California, and wants to attend law school after finishing university. He is also currently the co-president of the Moot Court team at UCSB, which is what piqued his interest in constitutional law.

ABSTRACT The Supreme Court in the National Federation of Independent Business v. Occupational Safety and Health Administration recently found OSHA’s Emergency Temporary Standard mandating COVID-19 vaccination or weekly testing to all employees in businesses of more than 100 employees to be outside the statutory regulatory authority of the agency as prescribed by Congress. While the executive branch may not currently possess the authority to mandate vaccinations as an occupational safety regulation, this Article will examine whether Congress may regulate the vaccination of private citizens under its Commerce Clause authority instead. Twentieth-century Commerce Clause jurisprudence permitted fairly broad applications of regulation, including acts that affected the production of wheat and marijuana intended for private consumption as well as acts to ban racial discrimination in places of public accommodation. The Court has recognized these applications as legitimate and generally deferred to Congress’ commerce power, scrutinizing laws with the most deferential standard of review.

However, the Court in recent decades has also implemented some limitations on Congress’ commerce power in landmark cases United States v. Lopez and United States v. Morrison. The Court in National Federation of Independent Business v. Sebelius also addressed Congress’ ability to compel commercial activity and again limited its authority. While the general governmental authority to mandate vaccinations has been recognized by the Court since Jacobson v. Massachusetts, the central question to be examined is whether there exists a provision in the Constitution that affords Congress itself the authority to mitigate one of the most potent public health threats to the nation in recent memory, and specifically whether that power is included under Congress’ general authority to regulate those subjects which “substantially affect commerce.” In light of business closures and labor shortages, this Article argues that Congress’s interest in protecting the economy affords it the authority under its commerce power to mandate vaccinations. INTRODUCTION On January 13 of this year, the Supreme Court ruled in National Federation of Independent Business v. Occupational Safety and Health Administration, holding that the Emergency Temporary Standard (ETS) adopted by the Occupational Safety and Health Administration (OSHA) which, inter alia, mandated that most workers in the United States receive vaccination against COVID-19 fell outside its statutory authority as set by Congress.1 Preempting contrary state laws, OSHA attempted to use its existing authority to regulate workplace safety and issued an order which would have applied to “roughly 84 million workers, covering virtually all employers with at least 100 employees.”2 While OSHA has been granted discretionary authority to regulate workplace

Nat’l Fed’n of Indep. Bus. v. Occupational Safety and Health Admin., No. 21A244 (U.S. Jan. 13, 2022) [hereinafter NFIB v. OSHA] (per curiam). 2 Id., slip op. at 1.

conditions, its use of Emergency Temporary Standards is somewhat limited. To enact a permissible ETS, the Secretary of Labor must show “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that the “emergency standard is necessary to protect employees from such danger.”3 This authority had only been exercised nine times previously, and of those only one was fully upheld by a court.4 The Court in NFIB v. OSHA characterized the ETS as a “blunt instrument” that draws “no distinctions based on industry or risk of exposure to COVID19.”5 The Court maintained that “the [Occupational Safety and Health] Act empower[ed] the Secretary to set workplace safety standards, not broad public health measures.”6 While COVID-19 posed a threat to many in the population, the Court made the following distinction concerning the ETS: [I]t is not an occupational hazard in most [workplaces]. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-today dangers that all face from crime, air pollution, or any number of communicable diseases.7 In other words, since the threat of getting sick from COVID-19 does not stem from one’s occupation in most sectors, the ETS fell beyond the authority of OSHA and the Secretary of Labor to enact. That is not to say, however, that OSHA lacked the authority to mandate vaccination in any occupation whatsoever. As the Court noted, the Administration’s statutory authority does reach as far as those professions or situations where infection from COVID-19 is inherently related to the nature of the job (such as researchers who work with the virus or workers in environments with particularly dense crowds of people) but does not permit a 3

Occupational Safety and Health (OSH) Act, 29 U.S.C. § 655 (1970). NFIB v. OSHA, slip op. at 2–3. 5 Id. at 3. 6 Id. at 6. 7 Id. at 6–7. 4

broad blanket mandate simply because COVID-19 is a ubiquitous threat that working people face.8 While OSHA and the Department of Labor were unable to advance a sweeping federal vaccine mandate in the face of a deadly pandemic, the Court only struck down the ETS as outside OSHA’s statutory authority as granted to it by Congress.9 It did not address the issue, however, of whether the authority to mandate vaccines federally falls within the constitutional authority of Congress. While Congress is limited to only those powers enumerated in Article I of the Constitution, its authority under the Commerce Clause has been used to justify regulations of broadly defined activities. While recent Commerce Clause jurisprudence has established limits on the generally broad authority afforded to Congress by the Constitution during the mid-twentieth century, an analysis of Commerce Clause jurisprudence illustrates that a federal vaccine mandate remains nonetheless consistent with existing precedent and could be enacted as an application of Congress’ existing power to “regulate commerce”10 as it has been understood by the Court.11 8

Id. at 7. See also Health Freedom Def. Fund, Inc. v. Biden, No. 8:21-cv-1693-KKMAEP (M.D. Fla. Apr. 18, 2022) (holding that a federal mask mandate was similarly outside the statutory authority of the Centers for Diseases Control and Prevention (CDC) as afforded to it by Congress). While not addressed in this Article, a similar argument could be made for the federal implementation of a mask mandate under Article I instead of under the authority of the CDC. 10 U.S. CONST. art. I, § 8, cl. 3. 11 An important caveat to note, however, is not simply whether Congress has the enumerated power to mandate vaccines, but also whether citizens have a right to refuse vaccination. While the Commerce Clause issue remains unclear and open to interpretation, the substantive due process argument against vaccine mandates has been relatively foreclosed by long-standing precedent and does not merit extensive consideration. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court declined to recognize an inherent right against vaccination during a public health crisis. Furthermore, the Court in Zucht v. King, 260 U.S. 174 (1922), further affirmed this principle, upholding Jacobson as binding precedent and noting that the Court “had settled that it is within the police power of a state to provide for compulsory vaccination.” Id. at 176; see also Boone v. Boozman, 217 F. Supp. 2d 938 (E.D. Ark. 2002) (declining to recognize a fundamental right to refuse 9

ENUMERATED POWERS AND STATUTORY AUTHORITY The power of Congress stems from the specific enumeration of powers within the provisions of the Constitution.12 A key component of this Article’s argument relies on the distinction between the enumerated powers of Congress and the statutory authority of executive agencies. While the federal government’s authority ultimately stems from Congress, the legislature commonly uses its enumerated powers to create and modify regulatory agencies and grants them authority by statute. In this case, a vaccine mandate was found to lie beyond the regulatory authority of OSHA, but only under consideration of the statutes written by Congress which defined its authority. Congress created OSHA because it found that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.”13 While the power to regulate workplaces fell under Congress’ commerce power in creating OSHA, that particular application did not also encompass the power to mandate vaccinations, as the Court held in NFIB v. OSHA. However, this does not preclude the possibility that the Commerce Clause, and not the statutes under which OSHA operates, is itself an enumeration of Congress’ authority to mandate vaccination.

vaccination under modern strict scrutiny analysis, citing Jacobson as precedent). Thus, while the Court in these cases did not establish the enumerated power for the federal government to mandate vaccines, it held that compulsory vaccines in the interest of public health are not a violation of a citizen’s right to substantive due process under the Fifth or Fourteenth Amendments. As such, the primary hurdle to overcome in passing a federal vaccine mandate is whether the Constitution’s enumeration of power over commerce includes mandating vaccinations. 12 U.S. CONST. amend. X. 13 29 U.S.C. § 651.

II.

EARLY APPLICATIONS OF THE COMMERCE CLAUSE Initial applications of Commerce Clause authority in history took on a markedly different character than presently. Most regulations were explicitly commercial (as opposed to more recent examples, as will be seen later), relating to interstate trade tariffs, regulation of debtors, and creation of international commercial trade agreements, inter alia. Most cases dealt with whether Congress could encroach upon state laws under its commerce authority, with the Court hewing to a much stricter interpretation of what it meant to regulate commerce.14 Only during the Great Depression in the 1930s did Congress begin expanding its interpretation of how it may regulate commerce. For example, during the later years of the Depression, Congress passed the revised Agricultural Adjustment Act of 1938 which, inter alia, imposed a maximum allowable quantity that wheat farmers were allowed to grow and sell,15 arguing that the regulation of the price and supply of the interstate wheat market fell under Commerce Clause authority. The constitutionality of this act under the Commerce Clause was brought before the Court in Wickard v. Filburn, one of the first cases marking the expansion of Congress’ power over commerce.16 Roscoe Filburn, a farmer from Ohio, had grown wheat beyond that which was allowable under the act and was consequently forced to pay a fine. He argued, however, that the wheat that he had grown in excess of the limit was only used 14

Mark R. Killenbeck, A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States, 38 J. SUP. CT. HIST. 281, 294–98 (2013); see also, e.g., Kidd v. Pearson, 128 U.S. 1 (1888) (distinguishing between manufacture and commerce, thereby holding that the power to regulate manufacturing is distinct from Congress’ authority to regulate commerce); Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that Congress does not have the authority to regulate working conditions simply because the products of a certain company cross state lines), overruled by United States v. Darby Lumber Co., 312 U.S. 100 (1941); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding that Congress could not regulate the coal industry at the production stage solely because coal companies intended their products to move in interstate commerce in the future). 15 7 U.S.C. §§ 1281–1393. 16 317 U.S. 111 (1942).

for his personal consumption and that of his animals, and therefore could not have had an impact on interstate commerce, making enforcement of the act unconstitutional as applied to him.17 The Court disagreed, citing as precedent United States v. Wrightwood Dairy Co.: The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.18 To that end, the Court held that Filburn’s excess wheat, even if grown for his own personal use, affected the supply and demand of the interstate wheat market when considered in tandem with the aggregate of other farmers like him and therefore constituted an intrastate activity that affected interstate commerce.19 With that distinction, the Court found that the Agricultural Adjustment Act as applied to Filburn was constitutional, significantly broadening the understanding of federal commerce power in so doing. Under this precedent and other contemporaneous cases, the Court established the notion that Congress could regulate those things which substantially affect

Id. at 114–16. United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942). 19 Wickard, 317 U.S. at 128–29. 18

interstate commerce,20 a standard that would be formalized with that language a few decades later.21 III.

COMMERCE POWER AND “SUBSTANTIAL EFFECTS” This “substantial effects” doctrine paved the way for the expansive interpretation of the Commerce Clause that Congress adopted in the midtwentieth century. The Court’s decision in Wickard and similar cases during the New Deal changed the central understanding of the Commerce Clause and was reminiscent of Chief Justice Marshall’s similarly expansive interpretation in Gibbons v. Ogden.22 With the idea of substantial effects established, a number of future cases allowed for the regulation of things that were seemingly more detached from interstate commerce.23 20

See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (holding that Congress could regulate employers that were intrastate in character if their operations were closely and substantially related to interstate commerce); United States v. Darby Lumber Co., 312 U.S. 100 (1941) (upholding the Fair Labor Standards Act of 1938 and finding that Congress could regulate employment conditions even in companies that operate within one state); Wrightwood, 315 U.S. 110 (holding that the price of milk was regulable under the Commerce Clause even in intrastate markets if it affected interstate commerce). 21 E.g., Perez v. United States, 402 U.S. 146, 150 (1971). 22 22 U.S. 1, 189–90 (1824) (“The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”). 23 Detached only in the sense that the regulations in the following cases might have been optically considered as less commercial in nature than a regulation of trade tariffs. The judicial distinction of whether an activity has a direct or indirect effect on interstate commerce is a separate issue and is addressed later. See infra “Noneconomic Activities and Attenuated Links to Interstate Commerce.”

For example, in Heart of Atlanta Motel, Inc. v. United States24 and Katzenbach v. McClung,25 the Court found that racial discrimination in hotels and restaurants that were engaged in interstate commerce was regulable by the Civil Rights Act of 1964 under Commerce Clause authority. In the decades preceding those cases, it had been common in certain regions for hotels, restaurants, and other places of public accommodation to segregate White and Black customers. Amid the political movement for civil rights in the 1950s and 1960s, Congress tried to federally ban racial discrimination and invoked its authority to regulate interstate commerce as the source of its power to do so.26 The Court in Heart of Atlanta held that since racial discrimination posed an appreciable threat to interstate travel and since “[t]he interstate movement of persons is ‘commerce’ which concerns more than one State,” then “Congress ha[s] power to enact appropriate legislation . . . even if it is assumed to be of a purely ‘local’ character, as Congress’s power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce.”27 This understanding was mirrored in the companion case Kat,zenbach.28 The Court in the mid-twentieth century continued sustaining pieces of local regulation under broader Commerce Clause authority, such as in the final

379 U.S. 241 (1964). 379 U.S. 294 (1964). 26 See generally, MARK NEWMAN, THE CIVIL RIGHTS MOVEMENT (2004). 27 Heart of Atlanta, 379 U.S. at 255–56, 258; see also Daniel v. Paul, 395 U.S. 298 (1969) (holding that the federal government could regulate nondiscrimination in a private club that advertised to interstate travelers and sold food bought in interstate commerce). 28 See Katzenbach, 379 U.S. at 302 (“This Court has held time and again that this power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce. We have detailed the cases in Heart of Atlanta Motel, and will not repeat them here. Nor are the cases holding that interstate commerce ends when goods come to rest in the State of destination apposite here. That line of cases has been applied with reference to state taxation or regulation, but not in the field of federal regulation.”). 25

example case Perez v. the United States.29 In that case, the Court upheld congressional regulation of local loansharking activities since it had found that loan sharks who use extortionate means to collect payments on loans are in a class largely facilitated by organized crime with a substantially adverse effect on interstate commerce.30 This finding legitimized the federal regulation of local loansharking under this same idea of regulating things that affect commerce (while not necessarily regulating commerce itself), which Justice Douglas formally codified in his opinion for the majority with three categories: The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods (18 U.S.C. §§ 2312–2315) or of persons who have been kidnaped (18 U.S.C. § 1201). Second, protection of the instrumentalities of interstate commerce, such as, for example, the destruction of an aircraft (18 U.S.C. § 32), or persons or things in commerce, as, for example, thefts from interstate shipments (18 U.S.C. § 659). Third, those activities affect commerce. It is with this last category that we are here concerned.31 This third category as defined by the Court was the pertinent category in Perez and the other foregoing example cases, just as it will be in considering whether Congress can mandate vaccination federally. Under this standard in isolation, Congress would merely have to demonstrate that an unvaccinated citizen, considered in conjunction with the actions of all those like him (following the logic of Wickard), affects interstate commerce. It is hard to deny that the virus itself left lasting effects on the national economy.32 For the sake of analyzing the constitutional issue, this Article will 29

402 U.S. 146 (1971). Id. 31 Id. at 150. 32 See, e.g., Oversight of the Export-Import Bank of the United States: Hearing on Examining the Export-Import Bank’s Recent Activities and Operations, the 730

assume that COVID-19 sufficiently and substantially affected the national economy. The question that remains then is whether the unvaccinated population affects interstate commerce such that it can satisfy the Court’s third category in Perez. One recent study detailed the effectiveness of vaccination in Israel, England, Scotland, Sweden, and the United States from three different vaccines, all readily available in each of those countries.33 A wide body of medical data exists pertaining to this issue, but in the interest of resolving the judicial question, it is reasonable to accept as true the propositions that vaccines are effective in preventing the spread of COVID-19 and that those who are unvaccinated are (or were) a significant and preventable source of COVID-19 transmission.34 Therefore, under the standard described so far, a vaccine mandate would surely regulate that which affects interstate commerce, which legitimizes it under the standard set by the Court in Perez and preceding cases. IV.

NONECONOMIC ACTIVITIES AND ATTENUATED LINKS TO INTERSTATE COMMERCE

Year Reauthorization Legislation, and the Effect of the Disruption COVID–19 Has Had on the U.S. Economy and its Impact on U.S. Exporters Before the S. Comm. on Banking, Hous., and Urb. Affs., 116th Cong. (2020) (statement of Kimberly Reed, President and Chairman, Bd. of Dirs., Exp.-Imp. Bank of the U.S.). 33 David A. Henry et al., Effectiveness of COVID-19 Vaccines: Findings from Real World Studies, 215 MED. J. OF AUSTL. 149, 149–51 (2021); accord Gabriella Marfe et al., Effectiveness of COVID-19 Vaccines and Their Challenges (Review), 22 EXPERIMENTAL AND THERAPEUTIC MED. 1407, 1409–11 (2021); Heidi L. Moline et al., Effectiveness of COVID-19 Vaccines in Preventing Hospitalization among Adults Aged ≥65 Years—COVID-NET, 13 States, February–April 2021, 70 MORBIDITY AND MORTALITY WKLY. REP. 1088, 1088–93 (2021). 34 When new medical data arise indicating either that unvaccinated people pose little risk of transmission or infection or that vaccines are no longer effective, then a vaccine mandate would lose constitutional legitimacy in that it would no longer have an appreciable effect on commerce. It is only reasonable to argue that a vaccine mandate is constitutional if it is implemented in response to an ongoing threat. For the sake of the constitutional argument, it is assumed that COVID-19 is or was an ongoing threat.

However, during the 1990s and beyond, the Court imposed a number of limitations on Congress’ Commerce Clause power. Two types of limitations arose, the first scrutinizing the link between the regulated activity and interstate commerce, and the second scrutinizing the distinction between activity and inactivity. The latter limitation is particularly crucial to the consideration of a vaccine mandate, but it is also pertinent to address the former. In two cases before the Court, United States v. Lopez35 and United States v. Morrison,36 the Court faced similar issues of tenuous links between intended targets of regulation and interstate commerce. In Lopez, Congress had passed the Gun-Free School Zones Act (GFSZA) of 1990, which proscribed possession of a handgun within 1000 feet of a school.37 Alfonso Lopez, Jr., who had been caught in possession of a gun in a Texas high school, appealed his conviction claiming the act was unconstitutional on its face and the Court ultimately agreed. Chief Justice Rehnquist, writing for the majority, held that since the act did not regulate any kind of economic activity that could, through repetition elsewhere, substantially affect interstate commerce that the act was an impermissible application of Commerce Clause authority.38 In Morrison, Christy Brzonkala sought to stand in federal court to seek a civil remedy under the provisions of the Violence Against Women Act (VAWA) of 199439 from two of her classmates after they sexually assaulted her. Antonio Morrison and James Crawford, the two men accused of assaulting her, appealed in federal court, arguing that the civil remedy provision was unconstitutional, and the Court similarly agreed. Chief Justice Rehnquist held for the majority that the VAWA was also not a regulation of an economic activity that could affect commerce directly.40 Furthermore, the Court wrote 35

514 U.S. 549 (1995). 529 U.S. 598 (2000). 37 18 U.S.C. § 922(q), invalidated by Lopez. 38 Lopez, 514 U.S. at 561. 39 42 U.S.C. § 13981, invalidated by Morrison. 40 Morrison, 529 U.S. at 610. 36

that in order to connect violence against women to interstate commerce, it would have to accept a tenuous chain of inferences linking the two, since a direct nexus to interstate commerce was absent.41 With these two landmark cases, the Court established that it would look upon noneconomic regulations under Commerce Clause authority with scrutiny, requiring more than an attenuated link to interstate commerce to legitimize such regulations. A federal vaccine mandate, however, would not fall victim to the same pitfalls as the GFSZA or the VAWA. While a vaccine mandate is likewise not a regulation of economic activity, the distinction lies in the fact that a vaccine mandate involves a direct link between the regulation in question and interstate commerce in a way that the GFSZA and the VAWA do not. Justice Breyer, in his dissenting opinion in Lopez (which was joined by three other justices), argued that guns in schools affected interstate commerce in that they worsen the quality of education, which is “inextricably intertwined with the Nation’s economy.”42 This causal chain was rejected by the majority, but no such chain is required to establish a nexus between a vaccine mandate and interstate commerce. COVID-19 and those the virus infects threaten the economy (as evidenced by the aforementioned data) and vaccines would directly mitigate that threat.43 There would be no need to adopt an inferential chain of causation to legitimize the regulation. Additionally, the mere fact that vaccines are noneconomic is not dispositive. While the Court in both Lopez and Morrison noted that the regulations in question were not economic, it also identified additional constitutional problems that would not exist in the case of a vaccine mandate,44 and even affirmatively clarified that noneconomic

Id. at 612–13. Lopez, 514 U.S. at 620 (joint opinion of Breyer, Stevens, Souter, & Ginsburg, JJ., dissenting). 43 See supra notes 32 and 33. 44 See, e.g., Morrison, 529 U.S. at 610–13 (recognizing four reasons the Court found the GFSZA unconstitutional in Lopez, which were: the noneconomic nature of the act, the lack of a jurisdictional element limiting the scope of the act to interstate commerce, the lack of congressional findings linking the act with an 42

regulations are not categorically unconstitutional.45 Thus, a federal vaccine mandate would be a constitutional application of commerce authority in ways that the GFSZA and the VAWA were not. V.

COMPULSION OF ACTIVITY UNDER COMMERCE POWER

The most relevant Supreme Court precedent, however, lies in National

Federation of Independent Business v. Sebelius, where the Court in a complicated series of opinions upheld parts of the Patient Protection and Affordable Care Act (ACA) of 2010, colloquially known as Obamacare.46 The relevant issue, in this case, was whether the minimum coverage provision of the ACA, which compelled citizens to purchase health insurance,47 was a constitutional exercise of Commerce Clause authority. The Court ultimately upheld the provision as an application of Congress’ power to tax instead, with five justices (albeit in separate opinions) agreeing that the minimum coverage provision was not a permissible use of commerce power. The Government relied on substantial effects arguments to legitimize the provision under the Commerce Clause, demonstrating through congressional findings that a bloc of uninsured citizens adversely affected the health insurance market for all citizens: Congress had far more than a rational basis for concluding that the practices of “forego[ing] health insurance” and “attempt[ing] to self-insure” has a substantial and deleterious effect on interstate commerce. Congress, therefore, had the power under the Commerce Clause to regulate those practices.

effect on commerce, and the existence of an attenuated inferential chain between the gun possession and interstate commerce). 45 Id. at 613 (“While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”). 46 567 U.S. 519 (2012). 47 26 U.S.C. § 5000A.

As a class, the uninsured actively participate in the health care market, but they pay only a fraction of the cost of the services they consume. Congress found that the cost of tens of billions of dollars in uncompensated care provided to the uninsured is passed on to insured consumers, raising average annual family premiums by more than $1000. The minimum coverage provision addresses those defects in the health care market. It creates a financial incentive (by means of a tax penalty) for uninsured participants in the health care market to internalize their own risks and costs, rather than externalizing them to others. This constitutes classic economic regulation under the commerce power.48 Chief Justice Roberts rejected the Commerce Clause interpretation himself and, writing for the Court, upheld the minimum coverage provision of the ACA instead because its “requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”49 In rejecting the Government’s argument that uninsured citizens, when aggregated nationally, substantially affected interstate commerce, Chief Justice Roberts introduced a new standard when considering legislation under the Commerce Clause. This does not imply, however, that the Court necessarily found the Government’s conclusions to be untrue, only that they were not sufficient for the minimum coverage provision to pass constitutional muster under the Commerce Clause. Although the part of the Chief Justice’s majority opinion that upheld the provision as a constitutional application of the Taxing and Spending Clause50 was joined by five justices, the part of his opinion that rejected the Government’s Commerce Clause interpretation was not joined by

Brief for Petitioner at 33–34, Dep’t of Health & Hum. Servs. v. Florida, No. 11-398 (U.S. Jan. 6, 2012) [hereinafter HHS v. Florida] (citations omitted), decided sub nom. Sebelius, 567 U.S. 519. 49 Sebelius, 567 U.S. at 574. 50 U.S. CONST. art. I, § 8, cl. 1.

any other justice.51 In his opinion, his main distinction was that Congress cannot regulate inactivity or compel action from citizens, and the majority held that “our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity,” highlighting the fact that the ACA sought to regulate those inactive in the health care market.52 Distinguishing this case from previous examples of relatively broad applications of commerce power such as in Wickard, Perez, and Gonzales v. Raich,53 Chief Justice Roberts noted that in all previous cases Congress sought to regulate commercial activity, whereas in this case it sought to compel that activity, and from this distinction, he drew the source of the mandate’s unconstitutionality under the Commerce Clause.54 This rationale was echoed in the dissenting opinion of Justices Scalia, Kennedy, Thomas, and

In Marks v. United States, 430 U.S. 188 (1977), the Court explained how its holdings should be understood when there is no majority of justices supporting an opinion. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds.’ ” Id. at 193 (citation omitted). In Sebelius, although five justices agreed that the minimum coverage provision was constitutional under the Taxing and Spending Clause, they disagreed as to whether it was constitutional under the Commerce Clause. As already noted, Chief Justice Roberts authored an opinion arguing that it was impermissible under commerce power. 567 U.S. at 546–62 (opinion of Roberts, C.J.). Four justices disagreed on this point and asserted that the minimum coverage provision was constitutional under either commerce power or taxing power. Id. at 589–619 (joint opinion of Ginsburg, Sotomayor, Breyer, & Kagan, JJ., concurring in part, concurring in the judgement in part, and dissenting in part). Since Chief Justice Roberts’ opinion upheld the minimum coverage provision on narrower grounds than the other four justices (having only recognized it as legitimate as a tax), under the Marks rule, his opinion is considered the holding of the Court. Therefore, the Court held that the minimum coverage provision is beyond Congress’ commerce power. 52 Sebelius, 567 U.S. at 572. 53 545 U.S. 1 (2005) (holding that Congress could regulate local possession of marijuana as part of a larger regulatory scheme that affected interstate commerce). 54 Sebelius, 567 U.S. at 555 (opinion of Roberts, C.J.).

Alito, which, inter alia, argued against the Commerce Clause construction for similar reasons, agreeing in principle with the Chief Justice.55 VI.

VACCINE MANDATES AND SEBELIUS: A COMPARISON

Based on this precedent, it can be reasonably argued that a federal vaccine mandate would not pass constitutional muster as a similar regulation of inactivity, since it would only affect those who elect not to vaccinate. However, this argument can be dispelled for three reasons. First, in passing a federal vaccine mandate, Congress could define the scope of its regulation not as affecting those who fail to vaccinate themselves, but as affecting those who engage in interstate commerce while unvaccinated. This construction, while broad, clearly identifies an activity that involves and affects interstate commerce, accomplishes virtually the same objective, and avoids the constitutional pitfalls that the Court established regarding the compulsion of activity. The Court sustained a similar construction in Darby, where it upheld employment condition regulations as applied to all businesses producing goods for interstate commerce.56 Among the most salient objections to this construction is the possibility of distinguishing a vaccine mandate from the ACA with this added provision. In other words, whether Congress having made the ACA only apply to those engaged in interstate commerce would have saved the act, or if vaccines are uniquely suited for this construction. The answer lies in the nature of the two regulations—the ACA regulated the health care market and the cost-shifting problem that arose when uninsured people were treated, a problem that is detached from citizens’ engagement in interstate commerce. On the other hand, the objective of a vaccine mandate is intimately 55

Id. at 649–60 (joint opinion of Scalia, Kennedy, Thomas, & Alito, JJ., dissenting). 56 United States v. Darby Lumber Co., 312 U.S. 100, 117 (1941) (“Section 15(a)(2) and §§ 6 and 7 require employers to conform to the wage and hour provisions with respect to all employees engaged in the production of goods for interstate commerce.”).

connected with citizens’ engagement in interstate commerce—their engagement in commerce is conceivably one of the principal means of viral transmission. Therefore, Congress could avoid many of the constitutional problems that were presented in Lopez, Morrison, or Sebelius. Second, there is a distinction to be made between commercial and noncommercial inactivity. In his opinion, Chief Justice Roberts rejected Congress’ authority to regulate commercial inactivity specifically: The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.57 In his opinion, he warned against the possibility of Congress creating a market and subsequently regulating or compelling activity in that market.58 A vaccine mandate, however, is not in any sense a regulation of commercial inactivity. Since vaccines are readily available and effective,59 it is reasonable to assume that a vaccine mandate would not place a commercial burden on anyone, and therefore not fall victim to the same constitutional problem that Chief Justice Roberts identified. His opinion only addressed commercial inactivity; it would be an undue extrapolation to summarily assume that non-commercial inactivity is similarly unconstitutional as there is a key difference between the two: the mandated exchange of money for commodities, or lack thereof. A vaccine mandate is therefore distinct from the concerns that the Chief Justice raised in Sebelius. Third, that Chief Justice Roberts authored the opinion regarding the unconstitutionality of the minimum coverage provision under the Commerce Clause with such broad implications is significant per se. Since the extent of his

Sebelius, 567 U.S. at 552 (opinion of Roberts, C.J.). Id. at 552–54. 59 See supra note 33 and accompanying text. 58

reasoning was not necessary to uphold the minimum coverage provision under the Taxing and Spending Clause, it is considered dicta and therefore only persuasive. In general, any holdings of a judge that are superfluous to answering the question before the court are considered to be obiter dicta and only persuasive authority. In Sebelius, several issues were presented, but the relevant question presented to the Court, in this case, was “whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”60 The question presented to the Court did not specifically require consideration of the provision under the Commerce Clause, but the Court naturally considered the Commerce Clause arguments since they were presented by both sides. However, the extent of Chief Justice Roberts’ broad repudiation of any compulsion of activity whatsoever under the commerce power exceeded the scope of the question presented, having gone beyond simply ruling the minimum coverage provision to be outside the purview of the Commerce Clause and instead of ruling that all commercial inactivity is similarly beyond Congress’ authority.61 Chief Justice Roberts, upon deciding that the minimum coverage provision fell outside of commerce power, eventually moved to the Taxing and Spending Clause to save the provision.62 60

Question Presented, HHS v. Florida, No. 11-398. Sebelius, 567 U.S. at 552–55 (opinion of Roberts, C.J.); see also United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir. 2012) (recognizing the possibility that parts of Chief Justice Roberts’ opinion in Sebelius were dicta: “Two days after oral argument in this appeal, the Supreme Court decided National Federation of Independent Business v. Sebelius, which held that the federal statute requiring individuals to purchase health insurance is a valid exercise of Congress’s tax power. Five justices also agreed that the Commerce Clause did not authorize this statute. There has been considerable debate about whether the statements about the Commerce Clause are dicta or binding precedent.”). 62 This “saving construction” was a way for the Court to save the ACA under any constitutional provision it could find. For further discussion, see Josh Blackman, The Saving Construction at 5 Years, 11 UNIV. ST. THOMAS J. L. & PUB. POL’Y 72, 83 (2017) (“The general idea is that even though Congress did not actually enact this law as an exercise of its commerce power, to save the law [the Court] will treat it as if Congress had enacted a law pursuant to its taxing power.”). 61

Since he did not simply stop at finding the ACA outside Congress’ commerce authority and move to the Taxing and Spending Clause issue—where he was joined by a majority of justices—but instead wrote a section of his opinion reasoning that any compulsion of activity is unconstitutional, this section (pertaining specifically to the unconstitutionality of the compulsion of activity in general) is dicta and nonbinding. Since this section would constitute the relevant reasoning from

Sebelius in striking down a federal vaccine mandate, its being only persuasive is particularly relevant to the vaccine mandate discussion. Thus, the constitutionality of a vaccine mandate is not foreclosed by Sebelius for the foregoing three reasons. CONCLUSION Commerce Clause jurisprudence has emphasized the importance of expanding the understanding from simple trade or tariff agreements when defining Congress’ power to regulate commerce. As the Court emblematically held in Lopez, “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”63 Medical data and common experience have shown that COVID-19 substantially affected the national economy and that vaccines are an effective method to mitigate that threat. Under a similar vein, a federal vaccine mandate, while evidently not within OSHA’s statutory authority (as found by the Court in NFIB v. OSHA), is within Congress’ authority under the powers enumerated to it in Article I, Section 8 of the Constitution.

Lopez, 514 U.S. at 560.

Democracy Gone Digital: Federal Surveillance Through The Data Marketplace Shruthi Vasudevan Edited By Eli Sclar Shruthi is a third-year political science major from San Ramon, California. After undergrad, she plans on attending law school and pursuing a career in criminal or immigration law to help indigent clients receive legal representation.

ABSTRACT The data marketplace is a relatively new one, selling a commodity that once held little value for commercial actors, let alone political entities. But in recent years corporations have realized the immense potential for social networking sites, smart devices, and online shopping marketplaces to collect bits and pieces of consumer information, compiling them to create complex “profiles.” These profiles have regularly been used for commercial purposes, such as targeted advertising, but in recent years has become a cost-effective and significantly less laborious method for the federal government to conduct their investigations. This article will explore the ways in which federal law enforcement agencies’ relationships with data brokers contribute to growing inequality in minority surveillance. The current state-led patchwork of data privacy laws is insufficient, in order to prevent surveillance inequality and consumer privacy across the nation, consumers must be given agency over their own digitally stored private information and surveillance intermediaries must be prohibited from engaging in an unregulated exchange or sale of such data. INTRODUCTION 58

When analyzing the role data privacy legislation plays in exacerbating inequity within the realms of immigration and policing, two key actors must be considered. First are the entities that Harvard Professor Alan Rozenshtein has named “surveillance intermediaries,” companies that play the role of the middleman between the general public and law enforcement agencies1. Second are those very agencies within the federal government that use these surveillance intermediaries to extract information on individuals of interest. As of now, there is little regulation of corporate usage of data, outside of individual state policies, such as California, Vermont, and Colorado’s recent data privacy bills. The federal government’s ability to engage in the data marketplace combined with the insufficient digital privacy laws that enable corporations to freely exchange consumer data contribute to marginalized groups experiencing disproportionate vulnerability to their private information being transferred. While data capitalism is a growing concern for all Americans, it particularly affects racial and ethnic minorities because government access to commercially collected digital information could result in deportation, prosecution, and lack of access to public benefits. When looking at avenues for data privacy progress in the future, federal privacy law is imperative to long-lasting protections for consumer control over sensitive personal information. Unlike individual platforms’ privacy policies or a patchwork of state legislation, a standardized privacy law that gives individuals more autonomy over who has access to their data would be the only way to limit not only commercial interests but also the overreach of federal law enforcement agencies.

DEFINING PRIVACY BEFORE THE DIGITAL AGE

Alan Z. Rozenshtein, Surveillance Intermediaries, 70 STAN. L. REV. 99, 105 (2018)

The first landmark case to be consulted prior to exploring the concept of privacy as it relates to the Internet is Katz v. US.2 The petitioner, Katz, was indicted for transmitting illegal gambling information after federal agents attached an electronic listening device to the phone booth he used without a warrant. Katz appealed his indictment on the basis that the incriminating evidence was collected unconstitutionally. The court ruled that the government’s role in listening to and recording Katz’s conversation could be considered a search and seizure, per the Fourth Amendment. As a result, the failure to obtain a warrant to record this conversation rendered the evidence inadmissible. Katz’s conviction was overturned, and the definition of privacy expanded to include places where a person “seeks to preserve as private.”3 The key to this case was Katz’s expectation of privacy within the phone booth, even though it was a space located in a public area. Had Katz been speaking on the phone on the street, he would not have been afforded the same constitutional protections. This ruling led to the creation of the “Katz Test” to determine whether a fourth amendment violation has occurred. The steps are as follows: 1) An individual must have exhibited an expectation of privacy in carrying out some action and 2) That subjective expectation of privacy must be societally recognized as reasonable. If the government has obtained information without a warrant in a scenario where both steps have been met, they have violated an individual’s fourth amendment right to privacy. The Katz Test soon saw an application that held an even more nuanced approach to privacy in the 1976 case United States v. Miller. Mitch Miller was charged with carrying equipment and alcohol without paying the appropriate liquor taxes, and the Bureau of Alcohol, Tobacco, and Firearms subpoenaed his bank records to corroborate the charges. The bank complied and turned over Miller’s account information, leading to his conviction. Miller later appealed his conviction on the basis that his Fourth Amendment rights were violated when the bank released his account information, but the court

Katz v. United States, 389 U.S. 347 (1967) Katz v. United States, 389 U.S. 347 (1967)

ruled that the records had become the banking company’s property and were not Miller’s personal or private papers.4 The Supreme Court’s ruling opinion suggested now that citizens forfeited the expectation of privacy when they consent to the turnover of any personal information to a corporation. In the 1989 case Florida v. Riley, a sheriff received a tip that marijuana was being grown on Riley’s property Upon realizing that the contents of the greenhouse in question were obscured from ground view, the sheriff circled the property in a helicopter being flown at FAA compliant level and was able to detect marijuana plants.5 Upon making these observations, he was able to obtain a warrant and searched the courthouse, after which the defendant was charged with possession. The matter was brought to the Supreme Court to determine if the sheriff’s helicopter usage was considered a warrant-required search; the court ruled that it was not, since Riley’s greenhouse had open sides and a partially open roof. Any member of the public could have reasonably observed the content and activity in the greenhouse, which negates Riley’s claim. In short, the court’s opinion held that a citizen could not have a reasonable expectation of privacy as outlined in the Katz Test for conduct or content that was “visible to the naked eye”. In this final case, the court narrowed down the definition of privacy with regard to a concept more easily applied to the concept of digital data- cell phone records. In the 2017 case, Carpenter v. United States, four men were arrested in connection with several armed robberies.6 One of the four confessed, providing police with his own phone number, and those of the other suspects, upon which the FBI successfully applied for access to transactional records. These records showed that the suspects' phones yielded sufficient evidence to convict Carpenter of aiding and abetting robbery and violating the Hobbs Act.7 Carpenter moved to suppress the evidence on the basis that the FBI needed a probable cause warrant to access his cell records, 4

United States v. Miller, 307 U.S. 174 (1939) Florida v. Riley, 488 U.S. 445 (1989) 6 Carpenter v. United States, 585 U.S. ____, No. 16-402 (2018) 7 Hobbs Act, 18 U.S.C. 1951 5

and the court ruled in his favor, stating that a warrant would have been necessary to obtain the cell records. The court’s ruling affirmed two important concepts. First, the 4th amendment protects reasonable expectations of privacy that include data tracking a person’s “movements and location”. Secondly, the court declined to extend the third-party doctrine stating that information disclosed to a third party does not carry a reasonable expectation of privacy because as seen in this case, a person could be aware that their cell provider keeps logs of their activity, they do not actively consent to and affirm this data collection. The rulings in the above cases are instrumental to the modern challenge of drawing distinctions between where citizens are owed constitutional privacy with regards to digitally collected data, particularly data that is stored, and sold by corporations. Considering the relative novelty of digital data collection, we must defer to the definitions of privacy outlined by these cases in order to engage with the constitutionality of government and commercial interests and the merit of recent regulatory policies. II.

DATA CAPITALISM: A NEW MARKET EMERGES

To understand the privacy violations and inequalities brought about by the flourishing data marketplace, it is key to understand how data capitalism has been able to grow into the sustainable, profitable system that it is today. Data capitalism is defined as the system in which online networks gain social, economic, and political power through the commodification of the data they collect.8 One of the largest emerging markets of the last decade has been the growth of Big Data. As more businesses begin to see the immense profit potential in this lucrative commodity, they invest in measures that allow them to collect more data internally or through methods like web scraping- the usage of manual digital tools or outsourced labor to extract data from any public

West, Sarah Myers, Data Capitalism: Redefining the Logics of Surveillance and Privacy, Business & Society 58, no. 1 (January 2019)

website, essentially a massive scale “copy and paste.” 9 The easiest way for companies to extract data from the consumers that use their services is surveillance. The now-ubiquitous paranoia that every online action is being watched and recorded is not an unfounded one. Several big tech corporations including Amazon, Google, and Facebook engage in the “Grand Bargain,” the provision of free online services that have become all but inescapable in modern society in exchange for the ability to hawkishly track every search, click, post, purchase, and “like”. Particularly for those that grew up using the Internet, privacy has always been the price to pay to access a rapidly growing realm of digital resources. Big tech and social media aren’t the only culprits- the Internet of Things plays a more novel, insidious role in muddling the lines of data privacy. Better recognized as the plethora of “smart devices” present in hundreds of thousands of American homes, these voice assistants, self-driving cars, Ring camera doorbells, health tracking watches, and thermostats feed into corporate data collection by tracking commands, daily routines, and consumer preferences.10 Choices as seemingly innocuous and “offline” as speeding and exercise habits, questions about the weather, and visitors to one’s home are reported back to companies that file away these pieces of data under each consumer. Few customers actively consent to this extraction and aggregation in their daily lives, but their purchase of such devices and usage of Big Tech services essentially becomes their consent.11

Sestino, A., Prete, M. I., Piper, L., & Guido, G. Internet of Things and Big Data as enablers for business digitalization strategies. Technovation, 98, 102173. (2020) 10 Geoffrey A. Fowler, Alexa has been eavesdropping on you this whole time, The Washington Post (May 6, 2019) https://www.washingtonpost.com/technology/2019/05/06/alexa-has-been-eavesdroppingyou-this-whole-time/ 11 Thorin Klosowski, The State of Consumer Data Privacy Laws in the US (And Why It Matters), New York Times (September 6, 2021) https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-in-us/

III.

THE INFORMATION EXCHANGE AND ITS FACILITATORS

There is perhaps no better evidence of corporate benefits of data aggregation than the existence of data brokerage firms. Since there is no standardized national law that mandates companies to notify consumers when their data is used, shared, or sold, they have free reign over what they do with personal data or to whom they give it. Unless a state has specific data privacy laws in place, companies also do not have to notify consumers if their data is breached or revealed to unauthorized parties, meaning consumer data could be exposed to third parties with ill-intent, without them being able to take any security measures to protect personal information.12 This unregulated exchange of consumer data is only exacerbated by the fact that if a company shares sensitive data with a third party, that third parties can also sell or share it without notification. Thus emerged the rise of data brokers- companies that use algorithms and web scraping from hundreds of sources to construct “profiles” that include information on thousands of attributes. A single consumer’s profile may include information about health, family members, income, travel, and spending habits, marital status, medications, what content you gravitate to on Facebook, what impulse purchases made while online shopping, and even record information as personal as knowing if someone is trying to lose weight or end a relationship.13 With so many consumers’ personal preferences and habits neatly aggregated and packaged into profiles, any organization that wishes to target a consumer, or make decisions about their eligibility for jobs or services need only purchase this data from the brokers who have collected it. Larger data brokers like Oracle have their own data but also expand their collection through the acquisition of smaller companies like Crosswise and

Thorin Klosowski, The State of Consumer Data Privacy Laws in the US (And Why It Matters), New York Times (September 6, 2021) https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-in-us/ 13 Justin Sherman, Data Brokers and Sensitive Data on U.S. Individuals, Duke’s Privacy & Democracy Project (August, 2021) https://sites.sanford.duke.edu/techpolicy/wpcontent/uploads/sites/17/2021/08/Data-Brokers-and-Sensitive-Data-on-US-IndividualsSherman-2021.pdf

Compendium. These smaller companies build their datasets through methods like “smart meters and sensors for utility companies” as well as targeted ads. After combining information monitored overall methodologies, Oracle alone holds data from over a billion devices.14 These datasets are composed of a set of objective observations, building a profile that may vary in its accuracy, but will nonetheless be used as a predictor of who a consumer is as a person. A major consumer concern is the potential of data being breached in the transfer between companies and organizations- a worry that can only be remediated by stringent regulations that push for accountability and frequent auditing. Thus emerged the Covid-era Data Accountability and Trust Act which mandates data brokers to authorize the Federal Trade Commission to perform audits on any companies that had security breaches and reveal their security policies upon request. This act proposed data brokers to “(1) establish procedures to verify the accuracy of the information that identifies individuals, (2) provide to individuals whose personal information it maintains a means to review it, (3) place a conspicuous notice on the Internet instructing individuals how to request access to such information, and (4) correct inaccurate information.” 15 The Information Transparency & Personal Data Control Act requires data brokers to get consent to collect sensitive data and go through an annual privacy audit. The FTC would establish requirements for any company that “collects, stores, processes, uses, or otherwise controls sensitive personal information.” Personal information in this context is defined as any data that would not be publicly available such as marriage records.16 Furthermore, the bill requires such companies to give consumers a privacy and data use policy 14

John Keegan, Alfred Ng, There’s a Multibillion-Dollar Market for Your Phone’s Location Data, The Markup (September 30, 2021) https://themarkup.org/privacy/2021/09/30/theres-a-multibillion-dollar-market-for-yourphones-location-data 15 H.R.1282 - 116th Congress (2019-2020): Data Accountability and Trust Act, H.R.1282, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/1282. 16 H.R.2013 - 116th Congress (2019-2020): Information Transparency & Personal Data Control Act, H.R.2013, 116th Cong. (2019), https://www.congress.gov/bill/116thcongress/house-bill/2013.

outlining what information can be collected and how it may be used and would also require them to submit to an annual privacy audit. Lastly, the Data Broker Accountability and Transparency Act of 2020 included a provision for the FTC to compile a national list of data brokers and aimed to mandate opt-outs from these companies for individuals who did not want their data used for marketing purposes.17 The bill mandated data brokers to take measures to ensure that the information they collected was accurate and refrain from collecting data collected under false pretenses. The individual whose data was collected must be able to access their information and correct inaccuracies. It is this last point that raises the most concerning issue around the lack of standard data privacy laws- the ability for firms to consolidate inaccurate information on consumers and then sell that data to third parties. When consumers do not have access to their data or the choice to opt-out of its aggregation, they lose significant autonomy while corporations and government departments access their sensitive information without consent to make targeted decisions that affect various aspects of their lives. None of the previously discussed bills passed in Congress, at least partially due to lobbying from data-collecting companies like Deloitte and RELX 18. Per a study conducted by Markup in 2021, lobbying against data privacy laws was dominated by 25 companies who spent a combined total of 29 million dollars in 2020 alone. These companies were comprised of data brokers as well as companies with vast collections of consumer data such as Oracle, which spent $9,570,000 alone on federal lobbying.19 As concerns rise 17

H.R.6675 - 116th Congress (2019-2020): Data Broker Accountability and Transparency Act of 2020, H.R.6675, 116th Cong. (2020), https://www.congress.gov/bill/116th-congress/house-bill/6675. 18 Alfred Ng, Maddy Varner, The Little-Known Data Broker Industry Is Spending Big Bucks Lobbying Congress, The Markup, (April 1, 2021) https://themarkup.org/privacy/2021/04/01/the-little-known-data-broker-industry-isspending-big-bucks-lobbying-congress 19 Alfred Ng, Maddy Varner, The Little-Known Data Broker Industry Is Spending Big Bucks Lobbying Congress, The Markup, (April 1, 2021) https://themarkup.org/privacy/2021/04/01/the-little-known-data-broker-industry-isspending-big-bucks-lobbying-congress

about the security of these brokers’ troves of data, bills that take a closer look at privacy and security have begun to emerge on the national agenda to replace the existing patchwork of state-wide legislation. The response of data brokers suggests that there is substantial profitability to be lost by mandating FTC regulated transparency and increased consumer autonomy. IV.

INEQUALITY IN LAW ENFORCEMENT SURVEILLANCE

As private entities begin to capitalize on data brokers’ troves of consumer information, the federal government to has taken note of the comparative advantage of relying on existing banks of data over manually compiling it from various sources. As the federal government’s involvement in the data marketplace grows, inequality caused by data privacy becomes increasingly apparent. Before looking at methods in which the federal government exploits data sold and exchanged by brokers and tech corporations, it is the ifirstkey to note that technology literacy and access to digital privacy tools themselves are not uniform across the nation. A report titled “Privacy, Security, and Digital Inequality” conducted by Mary Madden shows that most people living in US households with annual incomes less than $20,000 per year are aware of the risks posed by a lack of digital privacy.20 However many of them state that they do not have access to the tools and strategies that would allow them to take steps to protect sensitive information that is available online. Madden’s report shows that Hispanic adults in particular are particularly exceptional in their sensitivities to digital privacy breaches and they also tended to be more interested in learning more about securitizing their personal information online. It is highly likely that this standout is at least partially attributed to the disproportionate number of foreign-born Hispanics being targeted by American immigration services. 20

As insecurity festers in ethnic households, the US federal law enforcement agencies are reaching out to technology companies with an alltime high number of requests for access to user accounts regarding thousands of investigations. 21 And while these companies vary in their resistance to federal government requests-fluctuating in their willingness to make the process of accessing any consumer’s data easy- the issue persists that they can often be persuaded under the guise of patriotism to cooperate with law enforcement even in the absence of necessary legal process and warrants.22 Once tech companies begin to neglect to verify the legality of law enforcement requests for data, consumers lose the protection afforded to them by their constitutional right to privacy. We need only look to immigration enforcement to see how central the federal government’s data acquisition is in the investigation of noncitizens. During President Obama’s administration, the federal government initially offered policy commitments in exchange for biodata on immigrant arrestees, later reneging on the original deal and offering no compensation for state data that they went on to collect. This type of data acquisition which included information like fingerprints eventually led to the removal of over 142,000 people, the majority of whom were Hispanic.23 Furthermore, policies that seemed on the surface like they aided undocumented immigrants in receiving certification that opened up more opportunities for financial security and welfare made them more vulnerable to immigration agencies’ surveillance and investigations. California’s 2013 Safe and Responsible Driver’s Act was proposed as a way to improve public safety by allowing immigrants without proof of legal presence to apply for and receive a driver's license. In order to be 21

Alfred Ng, Google Reports All-Time High of Government Data Requests, CNET (Sept. 28, 2017, 5:11 PM), https://www.cnet.com/news/google-reports-all-time-high-of-government-data-requests/ [https://perma.cc/LN5Y-758E] (noting that the increased requests have led to privacy concerns). 22 Bruce Schneier, The Public-Private Surveillance Partnership, SCHNEIER ON SECURITY (July 31, 2013), https://www.schneier.com/essays/archives/2013/07/the_public-private_s.html [https://perma.cc/FYR8-7DMZ]. 23 IMMIGR. & CUSTOMS ENF’T, SECURE COMMUNITIES: IDENT/IAFIS INTEROPERABILITY 2 (2011), https://www.ice.gov/doclib/foia/scstats/nationwide_interoperability_stats-fy2011-to-date.pdf [https://perma.cc/P2BF-R7S3].

eligible for a license, immigrants needed to provide proof of identity and proof of residency, which were stored in California DMV database records. The Department of Homeland Security has been known to request data from DMV databases with the justification that they are necessary for criminal investigations when in reality, the information acquired through the data transfer is actually being used to locate immigrants for civil immigration proceedings such as deportations.24 In Texas, the Austin Police Department controls the Austin Regional Intelligence Center (ARIC), a center of over 20 local law enforcement agencies connected in a data-sharing hub that allows for information to be exchanged between local, state, and federal agencies such as the DHS and ICE. In addition to their ability to share information from DMV and utility databases, ARIC has gained access to commercial databases that store social media information, cell phone, location, and retail data on residents all over Austin.25 Considering ARIC’s history of disproportionately surveilling Latino and Black communities26, as well as Occupy Wall Street protesters and marchers, this indicates a troubling future where communities can be targeted and then investigated and arrested with information that was previously unavailable to federal immigration authorities, let alone local police departments27. Madden’s report also showed that low-income individuals were far less likely to trust the police to protect their personal information compared to 24

ACLU of Northern California and National Immigration Law Center, How California Driver’s License Records Are Shared with the Department of Homeland Security (December 2018) https://www.nilc.org/issues/immigration-enforcement/how-calif-dlrecords-shared-with-dhs/. 25 Grassroots Leadership, Just Future’s Law, Mijente, Austin’s Big Secret: How Big Tech and Surveillance Are Increasing Policing https://grassrootsleadership.org/sites/default/files/reports/austins_big_secret_how_big_te ch_and_surveillance_are_increasing_policing.pdf 26 Grassroots Leadership, Just Future’s Law, Mijente, Austin’s Big Secret: How Big Tech and Surveillance Are Increasing Policing https://grassrootsleadership.org/sites/default/files/reports/austins_big_secret_how_big_te ch_and_surveillance_are_increasing_policing.pdf 27 John Anderson, “ARIC and Privacy: ‘Unconstitutional on its Face,’” Austin Chronicle, Aug. 29, 2014, https://www.austinchronicle.com/news/2014-08-29/aric-andprivacy/

higher-income, white individuals.28 There is a basis for this distrust considering the loose restrictions around police accessing digital data compiled by thirdparty companies. The police are able to use “reverse search warrants” to acquire mass amounts of data, and then locate a suspect within those profiles and user accounts. There is great potential for racial and ethnic bias when police are selecting the groups of data they request from tech companies, and it increases the potential of an individual being surveilled and suspected of a crime they had no relation to, just because they shared some characteristic with the real perpetrator.29 V.

THE ROAD AHEAD: DEMAND FOR A FEDERAL PRIVACY POLICY

In 2016, European Union lawmakers passed a comprehensive data privacy policy- the General Data Protection Regulation, or GDPR that sets the standard for regulating the usage and transfer of consumer data by data controllers. In order to ameliorate the condition of data federalism in the US, a similar policy must be pushed for, and lawmakers must ensure that it is not only private, and corporate entities but the federal government too, that is privy to regulations. The GDPR encompasses the following eight key principles that protect consumer control over their personal information:30

Mary Madden, Privacy, Security, and Digital Inequality: How Technology Experiences and Resources Vary by Socioeconomic Status, Race, and Ethnicity, Data & Society (September 27, 2017) https://datasociety.net/library/privacy-security-and-digitalinequality/ 29 Mary Madden, Privacy, Security, and Digital Inequality: How Technology Experiences and Resources Vary by Socioeconomic Status, Race, and Ethnicity, Data & Society (September 27, 2017) https://datasociety.net/library/privacy-security-and-digitalinequality/ 30

Ben Wolford, What is GDPR, the EU’s new data protection law?, GDPR.EU, (2020)https://gdpr.eu/what-is-gdpr/

1) The right to be informed, obliging data controllers to provide consumers with notice of what information will be collected, how it will be used, how long it will be stored, and who it can be shared with. 2) The right for consumers to access any data being processed and review information regarding any decision-making based on their personal information. 3) The right to rectification, permitting consumers to rectify inaccurate or incomplete personal information that is stored about them. 4) The right to request the deletion of any data for which the company cannot provide a compelling reason to continue holding onto. This may extend into search engines having to remove certain results if the subject wishes for them to be unavailable. 5) The right to restrict processing- defined as companies using, viewing, altering, or deleting data. Consumers would be able to block processing data that is inaccurate or unlawfully collected. 6) The right to data portability, allowing consumers to take their data to a different platform or service. 7) The right to object to the processing of their data, requiring data collectors to inform users about this right when they begin using a service or platform. 8) The right to opt-out of automated decision-making processes, or have these decisions reviewed manually. Many of the GDPR’s provisions revolve around giving consumers access to what companies can do with their data - particularly limiting the sale or transfer of inaccurate or incomplete data. These rights are crucial to stop the flow of misleading information to law enforcement agencies that could then use them as the basis for legal decisions. By giving consumers autonomy at the first step on the services and platforms that they use on a daily basis, false information is less likely to be transferred in government requests for data or wind up in the profiles constructed by data brokers. 71

However, currently, only three American states have passed similar data privacy bills - California, Colorado, and Vermont. The strongest of the three in California’s CCPA and its amendment, the California Privacy Rights Act (CPRA), or Prop 24.31 These laws include many of the same provisions as the GDPR but go further to give consumers the right to take data collectors to civil court if they release personal information in a way that harms the individual. Companies are also required to provide an option to opt out of the sale of data. The CPRA closed some of the loopholes established by the initial CCPA and went on to implement a regulatory California Privacy Protection Agency and create a universal opt-out called the Global Privacy Control, which allows users to opt out of “cookies” that track user activity over time. The CPRA also afforded individuals the right to opt-out of the sharing of data altogether and the ability to sue over data breaches. Lastly, it defines “sensitive information” to include social security information, driver's license numbers, geolocation, religion and race, biodata and information pulled from email and text message correspondence.32 Many of these rights - particularly the option for consumers to sue over data breaches and opt-out of data sharing across all platforms distinguish California’s privacy bill from the weaker ones in Virginia and Colorado. Independence from law enforcement and big tech stakeholders’ input may likely be the defining factor that determines the efficacy of a data privacy bill in ensuring equitable protection to all consumers. A law that combines the aforementioned consumer privacy rights with the provisions in the Fourth Amendment is Not for Sale Act, which closes the loophole allowing data brokers to sell information to law enforcement, would be ideal.33 These two entities have an enormous, vested interest in the future of data privacy- profit 31

1.81.5. California Consumer Privacy Act of 2018 [1798.100 - 1798.199.100] The California Privacy Rights and Enforcement Act of 2020, Version 3, No. 19-0021, https://oag.ca.gov/system/files/initiatives/pdfs/190021A1%20%28Consumer%20Privacy%20-%20Version%203%29_1.pdf 33 S.1265 - 117th Congress (2021-2022): Fourth Amendment Is Not For Sale Act, S.1265, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senatebill/1265. 32

for one, and ease of conducting investigations for the other. In order to prevent federal law enforcement agencies power to grow with regards to targeting marginalized groups by taking often illegal shortcuts to quicken investigations, a federal privacy law must be pushed to the top of the agenda by legislators nationwide.

Corporate Personhood: An Unusual Promise for American Corporate Law and Constitutional Rights Anjali Mani Edited by Sayora Shukurova Anjali is a freshman at UC Santa Barbara studying Economics.

ABSTRACT The battle for rights within the United States continues into the 21st century yet the scope of participants engaging in this fight has vastly broadened over time. This is referring to the concept of Corporate Personhood that has planted its roots into American law, raising questions about the interpretation of the constitution’s preamble (“We the People”) and its shift from referring to the American individual to including a corporate entity with innate rights. The Supreme Court has essentially cultivated the legitimacy and normalcy of corporate personhood within American law through cases such as Santa Clara

v. Southern Pacific Railroad Co. and more recently Citizens United v. FEC. This has, in recent years, ushered in a newfound movement against corporate personhood and citizenship as many critics have claimed that the fight for corporate personhood has created new complications which include limiting the average citizen’s influence in elections and increasing corrupt quid pro quo between corporations and politicians. However, while these arguments have validity and express sound reasoning, addressing genuine concerns about the implications of corporate personhood, it is important to address alternate avenues wherein corporate personhood can act as a positive force on American Law, Society, and Democracy - even if it is yet to reach its highest potential. 74

This article outlines the origins of corporate personhood and examines prominent legal cases and their current interpretation in legislation. While there is validity to claims against certain areas of corporate personhood, this article makes a case for the promise of corporate personhood in the context of economic welfare, corporate morality, and democracy via two methods - a mechanism for accountability and increased corporate moral responsibility, and a safeguard of free press and protection of rights - while also addressing its detractors and future implications through possible improvements to its scope moving forward. I. THE CONCEPT OF CORPORATE PERSONHOOD AND ITS LEGAL HISTORY WITHIN THE UNITED STATES

According to the Brennan Center for Justice, corporate personhood in the U.S refers to corporations’ ability to enter contracts, hold and sell property, and engage in civil cases like suing a party or being sued by a party.1 On a much broader scale, corporate personhood generally refers to the notion that corporations can enjoy the same rights and responsibilities citizens do. While the roots of corporate personhood in the United States can be traced back to the presence of joint-stock companies such as the Virginia Company, the concept of corporate personhood as it is known today did not exist until the landmark passing of the Fourteenth amendment in 1868. The 14th amendment was initially created with the purpose of granting citizenship to all persons born naturalized in the United States which includes formerly enslaved people in the aftermath of the civil war. Not only did it grant sweeping civil rights to formerly enslaved peoples, but the 14th amendment also limited state power by prohibiting states from depriving any natural citizens of their life, liberty, or property without due process. However, it was the guarantee that all citizens had an ‘equal protection of the law’ under the Equal Protection Clause of the Ciara Torres-Spelliscy, The History of Corporate Personhood, Brennan Center for Justice (April 8, 2014), https://www.brennancenter.org/our-work/analysis-opinion/historycorporate-personhood 1

14th amendment that would later serve as the first legal basis for corporate personhood in American law - by creating a new precedent for how the 14th amendment could be interpreted beyond civil rights. The 1886 Supreme Court case Santa Clara v. Southern Pacific Railroad Company appealed to the Equal Protection Clause of the 14th amendment. The Southern Pacific Railroad company had claimed that it should not have been the target of differential tax treatment in comparison to natural persons. What is both interesting and unusual about this case, is that the court never once officially acknowledged or attributed the defense’s argument appealing to the Equal Protection Clause as applying to corporations being a factor in its decision to favor the defense. However, it was a headnote added to the decision by a court reporter that would be the basis for subsequent decisions of applying the Equal Protection Clause to corporations. Within the headnote, Chief Justice Morrison Waite articulated:

The Court does not wish to hear an argument on the question of whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.2 The presumption made by Waite opened up the Equal Protection Clause as a medium for corporations to fight for the same rights enjoyed by natural citizens in the decades that followed. Across the 19th and 20th centuries, various state courts would pass general incorporation laws which would allow corporations to be created by any natural citizen without a need for a charter from the state legislature.3 The need for a government charter to create a corporation heavily tied corporations to state governments. In contrast, these statutes, predicated on the concept of corporate personhood set forth by the headnote of the Santa Santa Clara v. Southern Pacific Railroad Company, 118 U.S. 394 (1886) Ciara Torres-Spelliscy, The History of Corporate Personhood, Brennan Center for Justice (April 8, 2014), https://www.brennancenter.org/our-work/analysis-opinion/historycorporate-personhood 2 3

Clara case, established corporations as entities with more rights and fewer ties to the government: in that corporations had the freedom to operate without government charters. Leading into the 21st century, the concept of corporate personhood continued to gain ground, especially through the now landmark 2010 case Citizens United v. Federal Election Commission; the Supreme Court extended the First Amendment protection of free speech to corporations - making corporations exempt from government prohibitions on independent expenditures for political campaigns and other associations. Citizens United also allowed for the creation of Super PACs or political action committees that are able to gather and donate unlimited amounts of money for campaigns. Moreover, labor unions themselves were able to make unlimited campaign contributions, overturning the Taft-Hartley act of 1947 which initially banned them from doing so.4 The rationale behind the ruling was that “independent political spending” was in-line with free speech as spending money was a means of expressing one’s belief or opinion. Citizens United substantially shifted previous interpretations of First Amendment protections awarded to corporations which in turn, established a new precedent for campaign financing laws in the U.S. Following the ruling, numerous dissenters questioned and criticized Citizens United as impeding on Congress’s power to safeguard elections from private sector corruption and collusion: arguing that the private sector, by nature, could not be adequately held responsible nor adequately monitored for quid pro quo. Other cases such as Burwell v. Hobby Lobby Stores saw the U.S Court of Appeals for the Tenth Circuit affirm the defense’s claim that forcing corporations to provide contraception to employees violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA).5 The court reasoned that forcing Hobby Lobby to provide 4

John Dunbar, The 'Citizens United' decision and why it matters Center for Public Integrity, The Center for Public Integrity (October 18, 2012) https://publicintegrity.org/politics/the-citizens-united-decision-and-why-it-matters 5 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)

contraceptives to employees would directly contradict the RFRA which prohibits the government from burdening individuals that are trying to exercise their religious beliefs. Because corporations consist of employers and employees who themselves are individuals, the court extended religious freedom to corporations. The notion that corporations were now protected under religious freedom laws and statutes further raised questions and challenges among dissenters who question the moral and constitutional legitimacy of the now broadening scope of corporate personhood. As it stands today, Article 1, Section 1 of the U.S Code encapsulates the current legal standing of corporate personhood, stating “In determining the meaning of any Act of Congress, unless the context indicates otherwise—the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint-stock companies, as well as individuals”. II. MAKING THE CASE FOR CORPORATE PERSONHOOD In the aftermath of Citizens United and Hobby Lobby, there has been a widescale movement in opposition to corporate personhood and these criticisms range from regulating campaign finance laws to larger attacks on the complete dissolution of corporate personhood. Common Cause, for example, is a watchdog group calling for the stripping of First Amendment speech rights to corporations as they declare “Only People are People” and thus only citizens should enjoy such protections under the constitution. This movement against corporate personhood has voiced critical concerns and provided sound reasoning in questioning the broadening scope. However, entirely deconstructing corporate personhood is a simplistic method of examining its implications. Instead, a deeper, more nuanced analysis is needed of corporate personhood as it is more than just a means for gaining profit by abusing constitutional rights. Corporate personhood can serve as a mechanism for

accountability and newfound corporate moral responsibility while also working as a safeguard to a free press and an asset to democracy. III. A SAFEGUARD OF FREE PRESS AND A PROTECTION FOR RIGHTS Many dissenters, such as the group seeking to pass the We The People Amendment, have called for the creation of a constitutional amendment that would explicitly state that corporations would have no rights under the Constitution that citizens have. However, this exposes a fallacy that neglects the fact that corporate personhood is responsible for the protection and safeguard of free press and speech in the United States. Corporations, through various statutes granting them recognition of personhood, have increasingly served as legal mechanisms for citizens to bring about lawsuits against laws in the U.S that have historically infringed upon freedom of the press and free speech. For example, the 1936 case, Grosjean v. American Press Co, involved 12 of the most prominent newspaper publishers of the state of Louisiana, suing Huey Long and his political machine which passed a law in 1943 taxing newspapers that criticized him.6 Long’s defense was that the 14th amendment did not apply to corporations as in his interpretation, they were not people. However, the Supreme Court sided with the defense by stating that corporations were in fact people and that the Equal Protection Clause applied. They subsequently struck down Long’s discriminatory law. Thus, in cases such as this, corporate personhood acts as a safeguard and protection for the free press by allowing the press to use corporations as a medium to challenge discriminatory laws that infringe on the freedom of the press and free speech. Additionally, not only is corporate personhood responsible for safeguarding free press in the legal system but it also helps protect nonprofit corporations’ freedom of speech and association - showing how corporate personhood doesn’t only work as a means for increasing profit but can act on Dylan Matthews, Like Free Press? Thank Corporate Personhood, VOX (July 2, 2014) https://www.vox.com/2014/7/2/5860732/six-reasons-liberal-should-like-corporatepersonhood 6

behalf of “morally'' aligned nonprofits that benefit society. Historically speaking, organizations like the ACLU and the NAACP have been targeted by the government, especially during the civil rights movement of the 1960s. For example, the 1963 case of NAACP v. Button involved the NAACP’s challenge to Virginian laws which hindered the organization’s ability to start lawsuits that would prompt integration and reduce segregation due to their civil rights affiliations.7 Through corporate personhood and the idea that corporations and non-profits were protected under the First Amendment, the Supreme Court struck down the discriminatory Virginian laws which infringed on their free speech and thus protected non-profits’ freedom of speech and association. The Supreme Court Associate Justice William Brennan, who sided with the NAACP, said:

We think the petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. IV. A MECHANISM FOR ACCOUNTABILITY AND NEWFOUND CORPORATE MORAL RESPONSIBILITY

When most critics of corporate personhood cite it as an abuse of power and a means of gaining rights to evade responsibility, they fail to account that by giving corporations the right to sue and file lawsuits against other parties, corporate personhood allows citizens to in turn sue corporations and hold them accountable for their actions. In Corporations Are People Too, law professor and author Kent Greenfield asserts that corporate personhood allows for a “deep pocket to sue” when they are harmed. This, in his research, proves to be Dylan Matthews, Like Free Press? Thank Corporate Personhood, VOX (July 2, 2014) https://www.vox.com/2014/7/2/5860732/six-reasons-liberal-should-like-corporatepersonhood 7

one of the greatest outcomes of corporate personhood as it increases the power of the public in the private sphere. For instance, in 2021, an Amazon worker was able to sue Amazon for a van collision due to the intense pressure and risk created by the Amazon flex app’s confusing software and layout. The claimant stated that the flex app enabled a dangerous and distracting environment for drivers, leading to crashes and injuries on the road. Whether or not the court will side with the defense, this case underscores the newfound level of accountability corporate personhood brings to corporations and the increase in power natural citizens have in holding them accountable. Moreover, one of the ways in which corporations are often able to evade liability is by deferring blame onto individual workers, such as managers, contractors, and other employees. With corporate personhood, this becomes much harder to do as corporations, now considered people, can be held fully responsible for illegal acts because the entity itself is held accountable. Take for example the Deepwater Horizon oil spill disaster. 50,000 barrels of crude oil spewed into the Gulf of Mexico in 2010 due to a mistake in construction that caused the failure of a blowout preventer. Transocean and BP, the two companies operating and leasing the rig, were ultimately held accountable and were able to compensate those affected in the region while providing the capital for a massive clean-up effort. As stated previously, corporate personhood allows for the corporation itself to be liable for breaking laws instead of individual employees. Thus, Corporate personhood is the reason why these two corporations were held accountable for their actions as the alternative would have been for them to hold individual contractors or construction managers responsible. Kent Greenfield in The Atlantic articulates that if this were the case, there is almost no chance that an individual person unless it were a billionaire like Bill Gates, would be able to compensate all of the victims of such a large disaster.8 Thus, corporate personhood also provides a true and more likely chance of real compensation for victims harmed by corporate actions. Kent Greenfield, If Corporations Are People, They Should Act Like It, The Atlantic (February 1, 2015)https://www.theatlantic.com/politics/archive/2015/02/if-corporationsare-people-they-should-act-like-it/385034/ 8

WHERE CORPORATE PERSONHOOD FAILS: LIMITATIONS,

DETRACTORS, AND CURRENT DRAWBACKS

As stated previously, corporate personhood has been a growing constitutional ideology further supported by legal cases awarding corporations rights normally only granted to persons. However, it is important to note that both detractors and the courts themselves have made it clear that corporations cannot attain all of the same natural rights as some rights are easy to abuse if awarded to entities like corporations. For instance, corporations are not protected under the 5th amendment right against self-incrimination. In United States vs. Sourapas and Crest Beverage Company, the defendant attempted to claim that the word “taxpayer” in several government regulations warranted a warning about the Fifth Amendment protection against self-incrimination.9 Despite appealing to corporate personhood, the court did not agree that corporations were protected by Miranda warnings against self-incrimination. This case underscored certain limitations to corporate personhood, specifically in regard to protection against self-incrimination, as corporations have a wide array of resources available to skirt important regulations. On a much broader scale, corporations are not considered citizens under Article IV’s Privileges and Immunities Clause, also known as the Comity Clause. The Comity Clause states that “[T]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” In other words, the Comity Clause works to prevent a U.S state from treating the citizens of other states partially - thus, it established the principle that Americans, regardless of which state they live in, all have the same rights. However, this principle does not extend to corporations as, going back to 1839, the case Bank of Augusta v. Earle saw the court explicitly refuse to protect corporations under the Comity Clause. Similar to the rationale behind the

United States of America, Plaintiff-appellant, v. S. Steve Sourapas and Crest Beverage Company, Defendants-appellees, 515 F.2d 295 (9th Cir. 1975) Justia Law, 9

exclusion from the Fifth Amendment, the reasoning behind the Comity Clause exclusion was to prevent the skirting of state regulations. The transcript states as follows,

The only rights [a corporation] can claim are the rights which are given to it in that character, and not the rights which belong to its members as citizens of a state. In addition to legal limitations set by the courts themselves, detractors have specifically criticized corporate personhood for the broadening of its scope into elections. As stated previously, Citizens United extended the First Amendment protection of free speech to corporations - making corporations exempt from government prohibitions on independent expenditures and political campaigns. Detractors have noted some valid arguments against corporate personhood’s expansion into campaign financing as it allows corporations to heavily influence American elections by allowing corporations to “vote” with money. Additionally, a more vehement argument against corporate personhood and Citizens United in particular, is aimed at Super PACS which, as stated earlier, are political action committees that have unlimited campaign contributions that are a direct result of Citizens United. Citizens United removed the previous spending limits of $5,000 a year per candidate.10 As a result, nearly 3 billion USD was spent by Super PACs on federal elections from 2010 to 2018 according to the Brennan Center for Justice. This interpretation of money as a medium for expressing free speech, they argue, would lead to increased corruption, collusion, and quid pro quo which Congress would no longer be able to effectively safeguard elections from. VI. POSSIBLE, FUTURE IMPROVEMENTS

Tim Lau, Citizens United Explained, Brennan Center for Justice, (December 12, 2019) https://www.brennancenter.org/our-work/research-reports/citizens-united-explained

In light of the aforementioned failures and drawbacks of corporate personhood, it becomes increasingly evident that the movement of corporate personhood in U.S law is not a zero-sum game in which corporations constitutionally “deserve” all of the rights natural citizens have. Instead, it is important to build upon and improve certain areas where corporate personhood excels, like accountability and rights protections. This is as opposed to focusing on abolishing corporate personhood entirely, solely for the areas in which it toes the line between rights and democratic interference and abuse of power as seen in Hobby Lobby and Citizens United. There is a need for reforms to allow the positive impacts of corporate personhood to come to fruition while balancing the growing power corporations have in the U.S. The solution lies in making corporations more like people. In other words, increase the existing responsibilities and accountability measures that natural citizens have. While it seems counterintuitive to the dissenters, it is important to understand that corporations are essentially legal mechanisms bridging investments with goods and services. Ultimately, the shareholders hold corporations accountable for their actions and it is through stakeholder governance that corporate personhood can be transformed and improved into the promise that it can be.11 Stakeholder governance is the idea that all of a corporation’s investors should be involved in the firm’s governance - predicated on the acknowledgment that not just shareholders, but nonshareholders, have interests and ties to the corporation that need to be accounted for.12 In essence, stakeholder governance would serve as a mechanism for further accountability. It acts as a regulatory measure akin to a legal statute in and of itself by protecting the interests of shareholders and increasing confidence in corporate management being considerate of all key investors in the firm. Moreover, one key opposition to corporate personhood was its impact on elections by interfering with citizens’ interests. Stakeholder governance, by nature, would make corporations more pluralistic and democratic by betterKent Greenfield . “The Promise of Corporate Personhood.” In Corporations Are People Too: (And They Should Act Like It), 208–23. Yale University Press (2018). 12 Kent Greenfield . “The Promise of Corporate Personhood.” In Corporations Are People Too: (And They Should Act Like It), 208–23. Yale University Press, (2018). 11

representing shareholders and non-shareholders - allowing these shareholders and non-shareholders to essentially act as voters through the corporate medium. With that being said, according to law professor Kent Greenfield in the Yale University Press, there are ultimately three great organizational, economic, and political benefits in adding stakeholder governance to corporate personhood: better decision making through increased accountability, less economic inequality, and less short-termism.13 Greater board pluralism through stakeholder governance would encourage dissent, expose and root out bias, and allow for a more diverse discussion from stakeholders of different backgrounds. This cognitive diversity - according to Professor Aaron Dhir at the Osgoode Hall Law School - is an asset to all actors and a crucial step forward to corporate personhood. It thus works as its own legal mechanism without the need for more government intervention. Secondly, studies have shown that reforms in corporate fiduciary duties would allow the reallocation of economic surplus to be better distributed. Including fiduciary duties and interests belonging to those outside of inner corporate management would lead to increased economic equality within the workplace. Lastly, there is little debate about the short horizon in which shareholders are involved in the holding of a company’s stock - reducing a corporation’s moral obligation to adequately invest in interests and projects with future benefits. A corporate governance structure through stakeholder governance would deal with the negative externalities produced by corporations by mimicking the makeup of society and evaluating long-term costs and future benefits more objectively.

Kent Greenfield . “The Promise of Corporate Personhood.” In Corporations Are People Too: (And They Should Act Like It), 208–23. Yale University Press (2018).

SECTION II REPRODUCTIVE RIGHTS

Dobbs v. Jackson Women’s Health Organization: The Future of Abortion Rights in America Kinga Grant-Zawadzki Edited by Sofia Carigma Kinga is a first-year political science major from Orange County, California. In the future, she hopes to attend either graduate school or law school to pursue a career involving international relations, environmental policy, or foreign service. Outside of writing for the Undergraduate Law Journa,l she is also a member of the the UCSB Women's Club Volleyball team as well as various other student organizations.

Author Note: This was written prior to the case ruling on Dobbs v. Jackson Women’s Health Organization and the publishing of the leaked draft majority opinion for the case by Politico ABSTRACT One of the latest reproductive rights cases to be heard by the Supreme Court is Dobbs v. Jackson Women’s Health. The case questions “whether all previability prohibitions on elective abortions are unconstitutional,” as it seeks to determine the constitutionality of Mississippi’s “Gestational Age Act,” which, among other things, prohibits elective abortions after the fifteenth week of pregnancy. The case threatened to overturn Roe v. Wade (1973), the landmark decision that determined the unconstitutionality of state bans on abortion, and Planned Parenthood v. Casey (1992), which reaffirmed Roe v. Wade. This case represents a more significant movement by states and “pro-life” advocates to limit abortion rights. The other two cases involving abortion heard during the Court’s October 2021 term questioning Texas abortion law exemplify this movement to expand limitations on abortion rights. Because the Supreme 87

Court has only heard the case and a ruling has yet to be decided, the possible outcomes of the case, regardless of the decision, will have significant implications on abortion rights in the United States. If the court rules in favor of Dobbs, Roe v. Wade and the cases it helped uphold will effectively be overturned, thus provoking immense changes to abortion rights in America. Conversely, if the court rules in favor of Jackson Women’s Health Organization, Roe v. Wade will be upheld along with the cases it helped determine, but the future of abortion rights will remain uncertain as the six-tothree conservative majority in the Supreme Court and efforts by states to undermine Roe will continue. Through the examination of the history of abortion rights in America, the context of Dobbs v. Jackson Women’s Health Organization, and the case itself, two major outcomes for the case are possible. The future of abortion rights in America is dependent upon this case ruling. I.

INTRODUCTION

In 2021, a Supreme Court case with the capability to completely alter abortion rights in America as we know them was argued. Dobbs v. Jackson Women’s Health Organization seeks to determine the constitutionality of pre-viability elective abortions. The case, originating in Mississippi, made it up to the Supreme Court, illustrating how controversial the issue of abortion rights has become. Abortion rights have always been controversial, especially when looking back on past Supreme Court cases that have affected abortion rights today, such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania vs. Casey. While the case ruling is still undetermined, the implications of the case as a result of a ruling of constitutionality or a ruling of unconstitutionality can already be examined. The possible rulings illustrate a relatively unchanged climate for abortion rights in the United States or the overturning of nearly all pre-existing Supreme Court cases on abortion rights and the implications that come as a result of that. II.

HISTORY OF ABORTION RIGHTS CASES IN AMERICA

Much like the debate over abortion rights today, the issue has been controversial throughout American history. Moral and religious arguments versus women’s bodily autonomy divide the sides of the debate. As with many 88

other social or even public health issues, Supreme Court rulings on the subject have been instrumental in determining the outcome of the issue. The most famous Supreme Court cases are Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Other abortion rights-related cases have passed through the Court since those rulings; however, none have been quite as impactful. When Americans think of abortion rights, they think of Roe v. Wade. The case originated in Texas, where Jane Roe, the fictional name used for the plaintiff, filed a lawsuit against Henry Wade, the district attorney of the county of Dallas, Texas. She sought to challenge a Texas law making all abortions other than those used to save a woman’s life illegal on the grounds that it violated a plethora of her Constitutional rights1. After the United States District Court for the Northern District of Texas ruled in Roe’s favor, Texas appealed the decision to the Supreme Court.2 Ultimately, the court issued a 72 decision for Jane Roe, thus upholding that the Texas law was unconstitutional, determining that it violated Roe’s right to privacy. First, the court found that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court found two main state interests to exist in the case: protecting the potential of human life and protecting the mother’s health. The creation of the trimester framework helped balance those interests, further stating that abortion during the first trimester was a decision left to the woman and her doctor. From the first trimester to fetal viability, the state would protect the interest of maternal health while regulating the procedure, and from fetal viability and beyond, the state interest lies with the fetus unless there is a serious threat to maternal life.3 It is important to note that the first trimester lasts from week 1 to about week 12 or 13, the second trimester lasts from the end of the first trimester until approximately week 26, and the third trimester lasts from week 27 until birth, and that fetal viability normally occurs at around 23-24 weeks.4 The decision 1

NCC Staff, On this day, the Roe v. Wade decision, National Constitution Center (January 22, 2022), https://constitutioncenter.org/interactive-constitution/blog/landmarkcases-roe-v-wade. 2 Id. 3 Roe v. Wade (1973), Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/roe_v_wade_(1973) (last visited April 4, 2022). 4 Pregnancy the three trimesters, UCSF Health, https://www.ucsfhealth.org/conditions/pregnancy/trimesters (last visited April 17, 2022).

in Roe was controversial, with 46 states needing to change their abortion laws as a result of it.5 Arguably the next most famous Supreme Court case involving abortion rights is Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). This case began when several abortion clinics and physicians challenged the Pennsylvania legislature’s amended abortion control law. The case question was: “Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent without violating their right to abortion as guaranteed by Roe v. Wade?6” In a 5-4 decision for Planned Parenthood of Southeastern Pennsylvania, the Court kept three of the main findings from Roe: women have the right to pre-viability abortions without undue interference from the state, the state may restrict post-viability abortions, and the state has a legitimate interest in protecting the life of the fetus and woman’s health.7 Since these two monumental cases in abortion rights, many other cases involving the issue of abortion have passed through the Supreme Court. In 2007, Gonzales v. Carhart upheld a federal statute that banned partial-birth abortions.8 In 2016, the Supreme Court struck down a Texas law requiring abortion providers to maintain admitting privileges and ambulatory surgical centers in Whole Woman’s Health v. Hellerstedt.9 III.

CURRENT STATE OF ABORTION RIGHTS IN THE UNITED STATES

Since Roe and Planned Parenthood of Southeastern Pennsylvania, attempts to restrict abortion rights at various levels have ensued, highlighting the continued salience and controversy of the issue. From the passing of Roe in 1973 to the end of 2021, 1,338 abortion restrictions have been enacted by 5

Roe v. Wade (1973), Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/roe_v_wade_(1973) (last visited April 4, 2022). 6 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (June 29, 1992). 7 Id. 8 Id. 9 Jessica Arons, The Last Clinics Standing, American Civil Liberties Union, https://www.aclu.org/issues/reproductive-freedom/abortion/last-clinics-standing (last visited April 6, 2022).

states, with 2021 being the year with the most abortion restrictions enacted since 1973.10 Even further, 44% of all post-Roe abortion restrictions have occurred in the past decade alone.11 Abortion restrictions have come in many forms across the states. States have established everything from TRAP laws, and targeted regulations of abortion providers to various types of abortion bans.12 TRAP laws make it difficult for hospitals or other abortion providers to meet their requirements, vastly limiting the number of centers that can provide abortions or discouraging doctors or medical centers from providing them altogether. These laws and their subsequent restrictions aim to limit access to abortion services while not conflicting with Supreme Court rulings on the issue. Additionally, states have gone as far as to place outright bans on abortion. The most notable of these bans come from a ban on elective abortions past six weeks adopted in Texas in September of 2021.13 While 13 states have enacted bans on abortion between six or eight weeks of pregnancy, Texas’ abortion ban is the only one not to be blocked by the Supreme Court or other state courts. 14 Despite states' efforts to actively restrict abortion rights or providers, there have also been efforts to expand access to abortions and reproductive health services in general. In 2017, 21 states expanded or protected access to reproductive health and rights.15 States have adopted measures to expand or protect abortion rights and services. For example, in 2017, Oregon and New York set requirements requiring abortion coverage in private health plans without cost-sharing.16 10

Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, December 2021 Policy Analysis (December 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-yearabortion-rights-almost-half-century. 11 Id. 12 Jessica Arons, The Last Clinics Standing, American Civil Liberties Union, https://www.aclu.org/issues/reproductive-freedom/abortion/last-clinics-standing (last visited April 6, 2022). 13 Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, December 2021 Policy Analysis (December 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-yearabortion-rights-almost-half-century. 14 Id. 15 Elizabeth Nash, Policy Trends in the States, 2017, Guttmacher Institute (January 2, 2018), https://www.guttmacher.org/article/2018/01/policy-trends-states-2017. 16 Id.

Although not directly related to abortion rights, one factor that will likely play a significant role in the rulings on Dobbs and other abortion-related cases that pass through the Supreme Court is the conservative supermajority that exists. The confirmation of Justice Amy Coney Barrett in late 2020 solidified the 6-3 conservative majority of the court.17 Additionally, no actual “swing votes'' exist, leading to a split composition. Only five votes are needed to create a majority ruling, so the existence of a 6-3 conservative majority means it will be easy for conservative rulings to occur. However, public opinion will prevent the Court from going on a run of conservative rulings on heavily partisan issues18. If this were to occur, the public would likely view the justices as being partisan, thus violating what is supposed to be an independent judiciary. It is also important to note that the Supreme Court’s conservative majority will continue to exist even with the nomination and possible appointment of Judge Ketanji Brown Jackson to the Court. If she is confirmed, a left-leaning Justice, Justice Stephen Breyer, will merely be replaced by another left-leaning judge, leaving the liberal-conservative balance of the Court the same. IV.

WHAT IS DOBBS V. JACKSON WOMEN’S HEALTH?

In understanding the implications of the possible rulings in Dobbs v. Jackson Women’s Health, it is essential to understand the background of the case. First, it is important to understand the parties in the case. The plaintiff, Thomas Dobbs, is a State Health Officer of the Mississippi Department of Health. The defendant, Jackson Women’s Health Organization, is the last abortion clinic standing in Mississippi. Dobbs v. Jackson Women’s Health Organization begins with the enactment of the “Gestational Age Act” into state law in March 2018. The law prohibited abortions past the fifteenth week of pregnancy with exceptions for

Marcia Coyle, The double-edged sword of the Supreme Court’s conservative majority, National Constitution Center (October 5, 2021), https://constitutioncenter.org/blog/thedouble-edge-sword-of-the-supreme-courts-conservative-majority. 18 Id.

medical emergencies or abnormalities and established that a physician must determine a fetus’ probable gestational age before performing an abortion.19 The day after the law’s enactment, Jackson Women’s Health organization filed a complaint and restraining order against the law in the U.S. District Court for the Southern District of Mississippi. The Court then granted that request based on the Supreme Court’s decision not to allow states to ban abortions before 24 weeks of pregnancy, the point of viability. Thomas Dobbs then appealed the case to the U.S. Court of Appeals for the 5th Circuit, which, in December 2019, affirmed the District Court’s ruling that the ban on abortions was unconstitutional. Finally, Dobbs appealed to the Supreme Court in June 2020 and was granted a writ of certiorari in May 2021. The case is monumental in the realm of abortion rights cases, as it is the first time that the Supreme Court must rule on the constitutionality of a pre-viability abortion ban since Roe v. Wade.20 V.

RULING POSSIBILITIES: CONSTITUTIONAL VS. UNCONSTITUTIONAL

The question presented by the petitioner and accepted to review by the Court is: Whether all pre-viability abortions on elective abortions are unconstitutional21. A ruling that states that pre-viability abortions are constitutional will uphold the ruling in Roe. Because of past Supreme Court cases and recent cases surrounding the issue of pre-viability abortions have deemed them constitutional, a ruling in Dobbs that aligns with this view is likely. However, a ruling stating that pre-viability abortions are unconstitutional will uphold Mississippi’s “Gestational Age Act” prohibiting virtually all abortions past 15 weeks’ gestational age and effectively overturn Roe v. Wade. The ruling in the case can fundamentally alter abortion rights in

Dobbs v. Jackson Women’s Health Organization, Ballotopedia, https://ballotpedia.org/Dobbs_v._Jackson_Women’s_Health_Organization (last visited April 17, 2022). 20 Nancy Northup, Dobbs v. Jackson Women’s Health Organization, Center for Reproductive Rights, https://reproductiverights.org/case/scotus-mississippi-abortion-ban/ (last visited April 17, 2022). 21 Dobbs v. Jackson Women’s Health Organization, Ballotopedia, https://ballotpedia.org/Dobbs_v._Jackson_Women’s_Health_Organization (last visited April 17, 2022).

the United States. Thus, considering the possible rulings posits two different futures for abortion rights in America. VI.

CONSTITUTIONAL

As aforementioned, a ruling that all pre-viability abortions are constitutional would side with Jackson Women’s Health Organization and uphold Roe and the various other rulings affirmed by Roe. Concerning the individual case, a ruling that all pre-viability abortions are constitutional would be a judgment for Jackson Women’s Health Organization. It would mean that the pre-viability abortion ban set forth by Mississippi’s Gestational Age Act is unconstitutional, allowing for abortions before fifteen weeks of pregnancy. On a larger scale, a ruling that pre-viability, elective abortions are constitutional would affirm the Supreme Court cases that dictate abortion rights today and would likely aid in maintaining the state of abortion rights seen in the U.S. today. This ruling in Dobbs would likely even further uphold the provisions set forth by Roe and later Planned Parenthood of Southeastern Pennsylvania. Because a ruling that pre-viability elective abortions are constitutional would align with pre-existing abortion rights cases and their rulings, the status quo of abortion rights as protected by Supreme Court cases would be maintained. A ruling that the case is constitutional is likely to be the outcome if past abortion rights rulings and lawsuits similar to Dobbs are examined. Because the case has the potential to overrule some of the past Supreme Court cases that have defined abortion rights in America for decades, namely Roe and Planned Parenthood of Southeastern Pennsylvania, a ruling that Dobbs is constitutional would maintain these court cases. This would further reaffirm these past cases and maintain the general track that abortion rights and related cases have been on for decades. Additionally, if court cases concerning the viability and the time frame in which abortions can be performed are examined, the same issues Dobbs addresses, the outcomes of those cases may mirror the possible ruling in Dobbs. One such case, Isaacson v. Horne, was heard in 2013 by the United States Court of Appeals for the Ninth Circuit.22 The case concerned an Arizona law barring abortion after 20 weeks for fetal 22

Isaacson v. Horne, 716 F.3d 1213 (9th Cir 2013).

pain experienced during abortions that occur after 20 weeks of pregnancy23. Ultimately, the law was ruled unconstitutional as it violated the Supreme Court’s definition of when abortions could be performed in relation to fetal viability. According to the Supreme Court’s rulings on abortion rights up until when this case was heard, viability did not occur until approximately twentyfour weeks of pregnancy. Because the question posed by this case was virtually the same question that is being posed by Dobbs today, if the same logic and application of prior Supreme Court rulings on abortion rights were used to make the ruling in Isaacson, then Dobbs will be ruled constitutional. VII.

UNCONSTITUTIONAL

A ruling that all elective pre-viability abortions are unconstitutional would be a ruling in favor of Dobbs and would likely lead to a mass reform of abortion laws in the United States. For the individual case, a ruling in favor of Dobbs would uphold the constitutionality of Mississippi’s Gestational Age Act. Therefore, the time frame for women to receive an abortion will be cut down significantly. On a national level, this ruling would virtually overturn Roe v. Wade and have consequences for other Supreme Court cases involving abortion rights, leading to major changes in abortion laws on the state level and other potential changes. According to Roe, fetal viability occurs at around weeks 23-24 of pregnancy, so for all pre-viability, elective abortions to be unconstitutional in the case of an “unconstitutional” ruling in Dobbs would overturn Roe v. Wade. The nine weeks between the fifteen-week cut-off set by the Gestational Age Act and the approximately twenty-four-week cut-off set by Roe would no longer be a time in which elective, pre-viability abortions are allowed. This would lead to a large shortening of the window in which elective abortions are permitted. Furthermore, this would virtually overturn Roe and all other Court cases affirmed by the ruling in Roe, leading to a mass upheaval in abortion rights protections or restrictions set by Supreme Court cases. A ruling stating that pre-viability abortion bans on elective abortions are constitutional would likely prompt many states looking to increasingly restrict abortion rights to create more restrictive abortion laws than those seen 23

Id.

today. According to the Guttmacher Institute, 26 states are certain or likely to ban abortion past that allowed by Roe.24 Many of these states already have various types of abortion bans in place that courts may block, or many other states such as Florida and Indiana had indicators such as past attempts at this abortion-restricting legislature or political compositions that make them likely to ban abortion if offered the opportunity to by the disappearance of federal protections. This would drastically restrict access to abortions, leaving those seeking abortions to need to travel out of state, possibly increasing long distances to abortion clinics for those who already resided in states with one abortion clinic, like Mississippi. Beyond just the Supreme Court’s rulings on abortion rights, a ruling that pre-viability elective abortions are unconstitutional could also affect other rulings involving the right to privacy found in the Constitution by the Court. The right to privacy that protects the constitutional right to abortion in the United States also protects rights such as those related to contraception and sexual intimacy.25 Thus, Dobbs shrinking privacy rights regarding abortion could open up the possibility of shrinking other rights that extend from the right to privacy. CONCLUSION The question and implications set forth by Dobbs v. Jackson Women’s Health Organization present an uncertain future for abortion rights in America. It also echoes a larger movement by states to enact abortion restrictions at the state level through various means. The Supreme Court has seen its fair share of court cases questioning the right to abortion, most notably Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Various laws on abortion such as bans or other laws that aim to restrict access to abortions are becoming increasingly common in the U.S. Ultimately, the two possible cases

ruling in Dobbs will have effects at both the national and state levels as well as effects on the interpretation of the Constitution in general.

A New Political Era in Determining Reproductive Rights Anisha Raju and Sarah Margaron Edited By Alasdair Macleod Anisha is a second-year from San Ramon, CA. She is a Psych and Brain sciences major and is pursuing a minor in writing and feminist studies. She is currently an intern at UCSB’s Legal Resource Center which aligns with her goal to go to Law school after graduation. Sarah is a History Of Public Policy and Law major with a minor in religious studies who plans on going to grad school to study colonization of religion in antebellum America. She plans on attending law school as well. She plans on going into either constitutional or immigration law. ABSTRACT The 1973 Supreme Court ruling in Roe v. Wade protects a pregnant woman’s right to terminate her pregnancy under the Constitution.1 The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution establishes a fundamental right to privacy which protects a woman’s freedom to choose to have an abortion without excessive government restriction.2 The Texas Heartbeat Act, which bans abortion after a fetal heartbeat is detected, is a violation of this right. A fetal heartbeat is detected six weeks after conception, and most women are unaware of their situation this early into their pregnancy. The Roe v. Wade ruling led to a decrease in abortion death rates, however, the new Texas law will pose significant health concerns for women who seek unsafe abortions without the supervision of medical professionals.3 The act

Roe v. Wade, 410 U.S. (1973). U.S. CONST. amend. XIV, § 1. 3 Rebecca Wind, Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, GUTTMACHER INSTITUTE (Oct. 19, 2017), 2

passed by Texas’ Congress affects all people but specifically targets those of lower socioeconomic class who lack access to reproductive healthcare.4 The Heartbeat Act gives private citizens the right to prosecute medical professionals who perform abortions, as well as the people who seek them out.5 The implications of private civil lawsuits restrain those who are targeted from pursuing offensive litigation against the state itself. Dismissing the state’s responsibility to uphold constitutional rights, by allowing the private citizens to file lawsuits, may impose future consequences on other constitutional rights. The Supreme Court’s ruling to let the law stand is unconstitutional and poses a threat to all people with uteri. I.

INTRODUCTION

The present condition of a woman's right to bodily autonomy in the United States is the subject of contentious debate amongst lawmakers across the country. The pro-choice movement fights for abortion to be legal, prioritizing the mother’s free will over the fetus. Contrarily, the pro-life movement argues that the rights of the fetus must be protected regardless of the mother’s feelings towards the pregnancy. While abortion rates have gradually declined over the past decade, state legislatures’ efforts to restrict abortion access have increased.6 In the battle against reproductive rights, fetal “heartbeat” bills have become the anti-abortion legislative measure of choice. These restrictions dictate the time frame in which a woman may seek an abortion before the procedure is criminalized. Several states including Texas have successfully enacted these limitations by the abetment of the Supreme Court. The tactics used to pass the https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-womendespite-dramatic-declines-rates 4 Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html 5 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.208. 6 Rebecca Wind, Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, GUTTMACHER INSTITUTE, (Oct. 19, 2017), https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-womendespite-dramatic-declines-rates

Texas Heartbeat Act by the State’s House of Representatives have been distinguished as unconstitutional by the pro-choice movement. Previous Supreme Court precedents have protected the peoples’ rights to bodily autonomy under the Constitution of the United States yet the law itself presents many legal complications in claiming that civil rights have been breached. II.

IMPORTANT AMENDMENTS

The Fifth Amendment to the Constitution of the United States explicitly protects life, liberty, and property from impairment by the federal government under the Due Process Clause (U.S. Const. amend. V, § 5). The definition of the terms ‘life, liberty, and property has since expanded to support numerous rights related to enumerated rights, including bodily autonomy, without which neither liberty nor justice would exist. At the same time, the Ninth Amendment to the Constitution asserts that the enumerated rights listed within the Constitution are not exhaustive. Therefore the federal government cannot restrict rights not mentioned in the Constitution from the people (U.S. Const. amend. IX). Although abortions are not directly referenced in the Constitution, the people are still awarded this right according to the Ninth Amendment. The Fourteenth Amendment to the Constitution of the United States prohibits the states from curtailing the privileges or immunities of their citizens under the Due Process Clause. The Equal Protection Clause of this legislative addition restrains the states from creating or enforcing laws that deprive their citizens of life, liberty, or property without due process of the law, nor deny any person within its jurisdiction the equal protection of the laws (U.S. Const. amend. XIV, § 1). The final section of the Amendment proposes that Congress possesses the power to enforce the provisions of this article. Prior to its ratification, the protection of individuals provided by the

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Bill of Rights was held accountable only against the federal government.7 These new provisions to the Constitution further applied these rights to the states. It is imperative to recognize the significance of the 5th, 9th and 15th Amendments in order to understand the legal battle waged over anti-abortion legislation. III.

ROE V. WADE

In 1854, the state of Texas first enacted a criminal abortion statute that prosecuted those who sought to terminate their pregnancies. In 1879, this statute was amended to permit the removal of a fetus in the case of a medical emergency, to preserve the mother’s life.8 The next time the state of Texas would revise its abortion laws came when a woman under the pseudonym Jane Roe challenged the Texas’s unconstitutional law by filing a lawsuit against the district attorney, Henry Wade. Citing the Ninth Amendment, the defense argued that a woman’s right to privacy and liberty applies to family, marriage, and sex matters which may include the right to discontinue an unwanted pregnancy. The Fourteenth Amendment was also reviewed in relation to the state’s abortion laws which was rendered a violation of the Due Process Clause. In June 1970, the court ruled that the state’s abortion laws were unconstitutional due to their obstruction of privacy. In the opinion of the Court, the right to privacy is broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.9 In 1973, Roe v. Wade became a super precedent, a case widely referenced for its interpretation of women’s rights in the constitution, when the Supreme Court ruled that the Constitution protects all pregnant persons' right to terminate their pregnancy within the first two trimesters with the exception of medical emergencies during the third trimester.10 7

U.S. CONST. amend. XIV, § 2. Texas Abortion Statute Law 1854, c. 49, § 1. 9 Roe v. Wade, 410 U.S. at 152-53. 10 Roe v. Wade, 410 U.S. at 113. 8

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IV.

THE HEARTBEAT ACT

Forty-eight years after Roe v. Wade was enacted, a new bill regarding abortion was proposed to the Texan Congress. Enacted as Senate Bill 8 (“SB8”), the Texas Heartbeat Act took effect in September 2021. The Heartbeat Act prohibits the termination of pregnancy once an embryonic or fetal cardiac activity is detected which occurs around six weeks after conception. The prolife movement defended that an unborn child’s right to life precedes a mother’s right to bodily autonomy. The exception under, outlined in section 171.204, prevails for medical emergencies which necessitate an abortion to preserve the pregnant person’s life. Section 171.207 of the act grants citizens the right to prosecute those who seek, perform or aid the inducement of an abortion in a court of law. The court may then award the claimant $10,000 for each abortion that the defendant participated in, performed, or induced in violation of the act.11 The statute expresses that questioning the act’s constitutionality is impermissible as a defense in a court of law.12 The legal debate over abortion now centers around whether the Texas Heartbeat bill is constitutional or not. V.

QUESTIONING THE VALIDITY OF THE HEARTBEAT ACT

As aforementioned, The Fourteenth Amendment protects individual rights to privacy which extends to various other rights deemed fundamental to the definition of liberty.13 Previously referenced in the precedent case Roe v. Wade, these rights include but are not limited to family, marriage, procreation, child-rearing, and the right to bodily autonomy. It is on this basis that the Supreme Court ruled in favor of a pregnant person’s right to choose in Roe v. Wade. The Court decreed that the privacy protections granted under the 14th

Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.208. Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.209. 13 U.S. CONST. amend. XIV, § 5. 12

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amendment do not extend to an unborn fetus.14 The Court also noted that until the fetus is considered viable to survive outside of the womb, it is not justifiable to protect the fetus's rights as any other life. The Constitution does not include the applications of any provisions to prenatal beings therefore the motion to recognize and protect a fetus’s potential rights under the Constitution lacks legal standing.15 The debate about when a fetus holds value as a human life has been the foremost issue of reproductive politics in modern American history. Those in favor of the bill, also known as the pro-life movement, argue the fetus is a life when a heartbeat is first detected. SB8 defines fetal heartbeat as the repetitive rhythmic contraction of the fetal heart within the gestational sac which has been interpreted as the sixth week of pregnancy.16 However, the idea that the embryo has developed a definitive heartbeat by six weeks has been discredited by many professionals in the medical field as an inaccurate portrayal of the gestational timeline. Renowned OB-GYN who specializes in abortion care, Nisha Verma, explains that the "the flickering that we're seeing on the ultrasound that early in the development of the pregnancy is actually an electrical activity, and the sound that you 'hear' is actually manufactured by the ultrasound machine.”17 Dr. Jennifer Kerns, an OB-GYN and associate professor at the University of California, San Francisco, adds that “the term ‘fetal heartbeat’ is misleading…the sound of the heart valves usually can't be heard with our Doppler machines until about 10 weeks.”18

Roe v. Wade, 410 U.S. 164. Roe v. Wade, 410 U.S. 164. 16 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.201. 17 Selena Simmons-Duffin & Carrie Feibel, The Texas abortion ban hinges on 'fetal heartbeat.' doctors call that misleading, NPR (Sept. 2, 2021, 4:47 PM ET), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-amedical-term-but-its-still-used-in-laws-on-abortion 18 Selena Simmons-Duffin & Carrie Feibel, The Texas abortion ban hinges on 'fetal heartbeat.' doctors call that misleading, NPR (September 2, 2021, 4:47 PM ET), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-amedical-term-but-its-still-used-in-laws-on-abortion 15

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The group of cells that produce this electrical activity does not constitute a fetal heartbeat according to experts in the medical field and thus calls into question the legality of the Texas Heartbeat bill. Despite their informed opinions, SB8 was passed under the pretense that a fetal heartbeat is detectable at six weeks. The Texas Heartbeat Bill recognizes and prioritizes the rights of embryonic cells over the protected rights of the person who is carrying it. Section 171.008 of SB8 requires documentation of induced abortions, when medically necessary, to preserve the health of a pregnant woman. The failure to acknowledge mental health as a part of a woman’s overall health sends a contradictory message. Many mental health conditions that arise from unwanted pregnancies exacerbate physical symptoms which also affect a woman’s health. Indeed, 15% of women develop severe postpartum depression due to a variety of factors including limited social support, marital conflict, and ambivalence about the pregnancy.19 The risk for suicide is significantly elevated among women suffering from severe postpartum depression and suicide has been found to be the leading cause of death within this population in the United States.20 The Due Process Clause of the Fifth and Fourteenth amendments If the State of Texas authorizes acts that infringe upon the life of the people, it is impossible to protect the liberty of the people. VI.

WHY CAN THE HEARTBEAT ACT PASS ALTHOUGH IT SEEMS TO DEFY THE CONSTITUTION?

Although the Texas Heartbeat Bill infringes upon the rights of the people, SB8’s dependency on the ambiguousness of Constitutional law made the act permissible. Offensive litigation gives people the ability to challenge unconstitutional laws against the government or any officers responsible for 19

Postpartum depression: Causes, symptoms & treatment, CLEVELAND CLINIC (Apr. 18, 2022), https://my.clevelandclinic.org/health/diseases/9312-postpartum-depression 20 V. Lindahl, J. L. Pearson & L. Colpe, Prevalence of suicidality during pregnancy and the postpartum, 8 Archives of Women’s Mental Health, (2005), 77-87.

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enforcing the law. The citizens may seek a declaratory judgment to rule the law constitutionally invalid and prohibit enforcement of the law within their respective cases.21 By eliminating public enforcement of the act, SB8 removes the option to pursue offensive litigation. Since the government officer is not responsible for the violation of the rights holder’s legal rights, the rights holder is not entitled to legal remedy.22 This also applies to state clerks from filing SB8 actions and judges from adjudicating them. State clerks and judges are not true defendants in offensive litigation and therefore cannot challenge constitutional validity. Furthermore, the existence of a law itself does not infringe upon the rights of the people. A potential unconstitutional law regardless of the rights it may violate is insufficient to warrant federal intervention.23 It is only when the actual enforcement of the law imposes punishment against a rights holder through adjudicative proceedings, they may seek offensive litigation. The act imposes crippling sanctions which deter many people from violating the law to avoid incurring liability.24 This has thwarted the efforts of organizations, such as Whole Woman’s Health, to challenge the law in the pre-enforcement process.25 VII.

HISTORICAL PARADIGMS OF FEMALE AUTONOMY

The protection of women's rights stems far past the right to abortions, but even the right to conceive and bodily autonomy. What the Texas Heartbeat Bill fails to directly state but enables is the harmful history of eugenics in the U.S. Buck V. Bell, the 1927 case that followed the study of Carrie Buck, a disabled woman who had been raped after being placed into foster care. The

Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021). 22 Anwar v. Fairfield Greenwich Ltd., 118 F. Supp. 3d 591 (S.D.N.Y. 2015). 23 Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021). 24 Ex Parte Young, 209 U.S. 123 (1908). 25 Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021).

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Supreme Court decided that since she was declared mentally disabled that it was well within Virginia’s rights to forcibly sterilize her. The justification for this was the fact that she had been admitted to a hospital for psychiatric care after her rape, her mother had a history of being mentally disabled, and there were suspicions that her child was. "Three generations of imbeciles are enough.”26 Supreme Court Justice Oliver Wendell Holmes Jr. argues in the closing arguments of the landmark case. Later investigations concluded that neither Carrie nor her child were mentally disabled, but that did not matter. The Court, as per the Fourteenth Amendment, should not be able to overturn someone's right to their own bodily autonomy solely because of their mental or physical well-being. The Court's decision has never been overturned. Criminalizing abortion has never led to a decline of abortion. The World Health Organization has stated that the rate of unsafe abortions is approximately four times higher than it is in countries that have restrictive medical access to these operations. 27According to a 2015 study in Argentina, a country with some of the most restrictive healthcare rights for abortion seekers, unsafe abortions are one of the leading causes of mortality. Access to safe abortions will not be a problem for all Americans, even under these restrictive bills. Upper-class women will be more likely to be able to seek safe abortions somewhere else. Whether that be out of state, or out of the country. Low income or women of lower socioeconomic status women will have to seek out other means of healthcare, which as we have seen historically, is predominantly unsafe, leading to the death of low-income women who seemingly had no other choice, unlike their privileged counterparts.28 This, and

Buck v. Bell, 274 U.S. 200 (1927). Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html 27 Guía para la atención integral de mujeres que cursan un aborto, PRESIDENCIA DE LA NACION (Apr. 2015), http://iah.salud.gob.ar/doc/Documento106.pdf 28 Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & 24

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taking into account the fact that a large number of people of color in America are disproportionately economically disadvantaged due to systematic economic oppression from the system of enslavement, sharecropping, and Jim Crow laws, People of Color in America are inherently more likely to die due to unsafe maternal care than their white counterparts.29 The Heartbeat Bill is not as restrictive to the more privileged, typically white, women who can afford it; instead, it seeks to restrict healthcare access to lower-income women and predominantly Women of Color.

FAMILIES, (Apr. 2018), https://www.nationalpartnership.org/our-work/resources/healthcare/maternity/black-womens-maternal-health-issue-brief.pdf Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (Feb. 23, 2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the state of occurrence, KAISER FAMILY FOUNDATION (2021), https://www.kff.org/womenshealth-policy/state-indicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, (Apr. 2018), https://www.nationalpartnership.org/our-work/resources/healthcare/maternity/black-womens-maternal-health-issue-brief.pdf 29 Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (Feb. 23, 2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the state of occurrence, KAISER FAMILY FOUNDATION (2021), https://www.kff.org/womens-health-policy/state-indicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, (2018), https://www.nationalpartnership.org/our-work/resources/healthcare/maternity/black-womens-maternal-health-issue-brief.pdf

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VIII.

IMPLICATIONS IN OTHER STATES

The Heartbeat Bill has become a massive inspiration under the Bible Belt of the United States to push for more restrictive healthcare laws for women.30 Just a month after the Heartbeat Bill was passed, over 561 restrictions on abortion were introduced, and in September of 2021, 97 new restrictive abortion laws were put into place. The total number of abortion restrictions enacted since

Roe v. Wade's passing is 1,327.31 The restrictions proposed in the first half of 2021 would make about a third of the total restrictions enacted since Roe v. Wade itself. The restrictions for people who need access to abortion that are quickly spreading throughout more conservative states just further the dangers of unsafe abortions potentially resulting in unsafe abortion procedures in these states.32 With the rise in the criminalization of abortion, many women who are unable to access legal abortions because of geographical reasons will find themselves in more dangerous, life-threatening situations. American women have to travel on average 11 miles to be able to access an abortion clinic, but women in these states that are already restricting healthcare will have to travel over 43 miles. Texas, Iowa, and Montana have some of the largest travel distances for abortion.33 This, along with the fact that many abortion facilities often have waiting periods that can be a few days, abortion access is becoming

Justine Coleman, Texas law opens door for other states to pursue abortion restrictions, THE HILL, (Sept. 3, 2021, 10:04 PM ET), https://thehill.com/policy/healthcare/570801texas-law-opens-door-for-other-states-to-pursue-abortion-restrictions/ 31 Elyssa Spitzer & Nora Ellmann, State Abortion Legislation in 2021: A Review of Positive and Negative Actions, CENTER FOR AMERICAN PROGRESS (Sept. 21, 2022), https://www.americanprogress.org/article/state-abortion-legislation-2021/ 32 Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html 33 Alexandra Sifferlin, This is how far women in the US have to travel for abortions, TIME (October 3, 2017), https://time.com/4967735/how-far-american-women-travel-forabortion/

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restricted based solely on where you live, if you have time off, and the means to travel.34 CONCLUSION Roe v. Wade set the precedent not just on how we view abortive rights in the United States but how we interpret the Constitution. Landmark cases such as Roe v. Wade have been ruled in the same way, so that the Supreme Court could interpret the Constitution; so, many landmark cases including Obergefell v. Hodge, the 2015 case that gave LGBTQ+ people the right to marry, Loving v. Virginia which allowed interracial marriage, Griswold v. Connecticut which allowed for married couples to have access to birth control.35 These decisions were brought by the same justification that the Supreme Court used for Roe v. Wade down to the amendment used for its justification, the 14th. Allowing Roe v. Wade to be uprooted in this time not only uproots the right for women to practice their own autonomy but also paves the way for other landmark cases to be uprooted and overturned as well. These cases affect the very day-to-day lives of a large number of Americans and stem far past the right for a mother to be able to decide when to terminate a pregnancy. The overturning of Roe v. Wade overturned the America we know today, down to who is allowed to marry who regardless of race or gender, birth control use, and bodily autonomy. Women who are disabled, lower class, and racial minorities are more likely to be victims of these laws themselves, which inclines us to ask who the laws are truly meant to target. When more privileged, often white upper class, women are able to successfully and safely gain access to abortion then the limitations are not on women; but the lower class, disabled, and women of color who are the ones systematically more likely 34

Alexandra Sifferlin, This is how far women in the US have to travel for abortions Time (October 3, 2017), https://time.com/4967735/how-far-american-women-travel-forabortion/ 35 Obergefell v. Hodge, 576 U.S. 644. Loving v. Virginia, U.S. Supreme Court Pp. 388 U. S. 4-12. 206 Va. 924, 147 S.E.2d 78, reversed. Griswold v. Connecticut, 381 U.S. 479 (1965)

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to be killed, criminalized, and restricted by these bills themselves.36 The issue of abortion is not just one of women's rights, but of a much larger struggle existing within race, class, sexual orientation, and disability. The Heartbeat Bill will not stop abortions, only prevent safe ones. If the public officials who proposed this bill's true intention are to stop lives from being lost, then their efforts are ineffective and useless. Aiming to stop abortion does nothing, but preventing safe ones kills.

David Blumenthal & Laurie Zephyrin, Texas's new abortion law will harm people of color, further entrench racist policies, COMMONWEALTH FUND (Sept. 22, 2021), https://www.commonwealthfund.org/blog/2021/texass-new-abortion-law-will-harmpeople-color-further-entrench-racist-policies Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the state of occurrence, KFF (2021), https://www.kff.org/womens-health-policy/stateindicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES, (April 29, 2022), https://www.nationalpartnership.org/our-work/resources/healthcare/maternity/black-womens-maternal-health-issue-brief.pdf

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SECTION III POLITICAL GEOGRAPHY

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Ohio Redistricting Maps Michele Chadwick Edited by Sayora Shukurova Michele Chadwick is a German & English double major. As an aspiring lawyer, Chadwick cares deeply about systematic inequalities. Currently, Chadwick works for The People's Vanguard of Davis, observing court and everyday injustices.

ABSTRACT Following the reveal of multiple organized attempts of various organizations, Project REDMAP for one example, voters in states including Colorado, Michigan, Missouri, Utah, and Ohio approved changes to their redistricting processes, and adopted restrictions to prevent gerrymandering. In 2018, Ohioan voters passed Ohio Constitution Article XIX, which created a new constitutional regime for congressional redistricting. In 2021, new congressional maps were passed for the first time following the adoption of Article XIX but many found them unfair. In January of 2022, the Ohio Supreme court found those maps unconstitutional and demanded they be redrawn. Now, months before the primary, Ohio races to draw new district maps. However, with these new congressional rules there are some issues and disagreements over drawing legal maps. Ohio’s approach to redistricting requirements and restrictions pales in comparison to more strict states. I. ARTICLE XIX Article XIX of the Ohio Constitution covers three aspects of congressional redistricting: method of adopting congressional redistricting 112

plan, requirements for drawing congressional districts, and the jurisdiction of the Supreme Court and the effect of determination of unconstitutionality. The Ohio Supreme Court found the November 2021 map unconstitutional because it “unduly splits three counties in violation of Section 1(C)(3)(b).”1 Section 1 details the General Assembly’s responsibility of redistricting. The article dictates that no later than the last day of September of a year ending in the number one, the General Assembly must “pass a congressional district plan in the form of a bill by the affirmative vote of three-fifths of the members of each house of the General Assembly, including the affirmative vote of at least one-half of the members of each of the two largest political parties represented in that house.”2 A district plan passed in this way becomes a law and will remain effective for ten years or “until the next year ending in the numeral one” except as provided in Section 3.3 However, should the General Assembly fail to pass a bill in this way before the last day of September, then the Ohio redistricting commission described in Article XI of the Ohio constitution will adopt a plan no later than the last day of October “by the affirmative vote of four members of the commission, including at least two members of the commission who represent each of the two largest political parties represented in the General Assembly.”4 If passed in this way, the plan would remain for ten years except as provided in Section 3. Should the redistricting commission fail to adopt a plan, then the responsibility would return to the General Assembly, who would pass a bill by the last day of November of that year except as provided in Section 3. If the General Assembly passes a congressional district plan by a simple majority, then there are conditions that would apply. The first and foremost is that the General Assembly “shall not pass a plan that unduly favors or disfavors a political party or its incumbents.”5 The General Assembly “shall not unduly split

Adams v. DeWine, Ohio Supreme Court 2022 OH CONST Art XIX § 1 3 Id.§ 3 4 OH CONST Art IX § 1 5 OH CONST Art XIX § 1 2

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governmental units, giving preference to keeping whole, in the order named, counties, then townships and municipal corporations.”6 Additionally, Division (B)(2) of Section 1 of Article XIX “shall not apply to the plan,” the General Assembly “shall attempt to draw districts that are compact” and “shall attempt to draw districts that are compact.”7 Any maps passed in this manner would result in the General Assembly passing “a congressional district plan in the form of a bill by the affirmative vote of three-fifths of the members of each house of the General Assembly, including the affirmative vote of at least onehalf of the members of each of the two largest political parties represented in that house” no later than the last day of September of the year after the year in which the plan expires in 3(C)(e) and would remain until the next year ending in the number 1.8 Additionally, “a congressional district plan passed under this division shall be drawn using the federal decennial census data or other data on which the previous redistricting was based.”9 Should the General Assembly fail to pass the congressional district plan by the last day of September in this manner, then the Ohio redistricting commission would reconvene and adopt a district plan no later than the last day of October of that year by vote with a minimum of four affirmative members “including at least two members of the commission who represent each of the two largest political parties represented in the General Assembly.”10 This plan would also remain in effect until the following year that ended in the number one. If the Ohio redistricting commission fails to adopt a district plan, then the General Assembly will pass a bill no later than the last day of November of that year. If this passed with the three-fifths vote with the minimum one-third vote of the largest political parties, it would remain in effect until the next year ending in one. If it passed with a simple majority vote, all of the following would apply: the plan may not unduly favor or disfavor a party or its incumbents, the General Assembly shall

Id. Id. 8 Id. 9 Id. 10 OH CONST Art XIX § 1 7

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not unduly split governmental units, division (B)(2) of Section 2 of Article XIX would not apply to the plan, the General Assembly must attempt to draw compact districts, the General Assembly must include an “explanation of the plan’s compliance with divisions (F)(3)(a) to (c) of this section” and the map would remain in effect until “the next year ending in the numeral one, except as provided in Section 3 of this article.”11 Section 1 also requires that before the General Assembly passes a congressional district plan or the redistricting commission adopts a congressional district plan under any of the divisions of Section 1 “at least two public hearings concerning a proposed plan” must be held. Additionally, the General Assembly and Ohio redistricting commission “shall facilitate and allow for the submission of proposed congressional district plans by members of the public.”12 Section 1 also details the requirements for filing a congressional district plan. A plan must include “both a legal description of the boundaries of the congressional districts and all electronic data necessary to create a congressional district map for the purpose of holding congressional elections.”13 Section 1 details that when a district map ceases to be effective under Article XIX, the district boundaries remain in effect for elections until a new district map takes effect. Also, should a vacancy occur under the previous district plan, then an election to fill the “vacancy for the remainder of the unexpired term shall be held using the previous district plan.”14 Section 2 of Article XIX details the requirements for drawing the congressional districts. According to this section, each district is entitled to a “single representative in the United States house of representatives in each congress” and that the population of the state be divided by the number of congressional districts apportioned by the Constitution of the United States and the quotient will be the congressional ratio of representation for the next

Id. § 2 OH CONST Art XIX § 1 13 Id. 14 OH CONST Art XIX § 1 12

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ten years.15 Additionally, “boundaries shall be created by using the data from the most recent federal decennial census or from the basis directed by the General Assembly, as applicable.”16 The congressional district plan must comply with the determined following guidelines. First and foremost, the plan must comply with all federal requirements for redistricting “including federal laws protecting racial minority voting rights.”17 Additionally, the congressional districts must be compact, continuous and the “boundary of each district shall be a single nonintersecting continuous line.”18 When a county contains a population that would exceed the congressional ratio of representation, Section 2 outlines the actions to be taken. When a municipal corporation or township is inside of a county that exceeds the congressional ratio of representation, the map drawer must attempt to include “a significant portion of that municipal corporation or township” within a single district, and they may include other municipal corporations or townships in that same district so long as they are within the same county and “residents have similar interests as the residents of the municipal corporation or township” that exceeds the congressional ratio of representation.19 Additionally, if a municipal corporation or township in that county contains a population of no “less than one hundred thousand and not more than the congressional ratio of representation,” it cannot be split.20 In the event of two such municipal corporations or townships in the same county, the smaller of the two may be split. Ohio restricts the number of counties that may be divided as well. The restrictions include the following: sixty-five of the eighty-eight counties must be “contained entirely within a district,” eighteen counties can be split once, and five counties can be split twice.21 There are a few additional restrictions outlined in Section 2. No two congressional districts can share “portions of the 15

OH CONST Art XIX § 2 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 16

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territory of more than one county” with the exception of a county “whose population exceeds four hundred thousand” and the map drawer must “attempt to include at least one whole county in each congressional district.”22 Section 2 describes the qualifications for a county, municipal corporation, or township that is considered to be split, which is defined as “any contiguous portion of its territory is not contained entirely within one district.”23 Should a municipal corporation or township have territory in more than one country, Section 2 considers the contiguous portion that lies in each county to be a separate municipal corporation or township for this section’s purposes.24 Section 3 declares that the “Supreme Court of Ohio shall have exclusive, original jurisdiction in all cases arising under this article.”25 As a result, in the event that a congressional redistricting bill, plan, or any district or group of districts is challenged and is determined to be invalid, then the General Assembly shall pass “a congressional district plan in accordance with the provisions of this constitution that are then valid.”26 A congressional district plan passed under this division must “remedy any legal defects in the previous plan identified by the court but shall include no changes to the previous plan other than those made in order to remedy those defects.”27 If a new congressional district plan is not passed in accordance, then the Ohio redistricting commission shall reconvene and:

Adopt a congressional district plan in accordance with the provisions of this constitution that are then valid, to be used until the next time for redistricting under this article in accordance with the provisions of this constitution that are then valid.28

Id. Id. 24 OH CONST Art XIX § 2 25 OH CONST Art XIX § 3 26 Id. 27 Id. 28 Id. 23

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A congressional district plan adopted under this division must also remedy any legal defects identified by the court but may not include other changes to the previous plan. In November of 2021, Republican Gov. Mike DeWine signed into law a congressional redistricting map in Senate Bill 258. Governor Mike DeWine signed a new congressional map into law on November 20. The Ohio State Senate voted 24-7 to approve the map on November 16. The Ohio House of Representatives voted 55-36 to approve the map on November 18. The maps did not have the “three-fifths of the members of each house of the General Assembly, including the affirmative vote of at least one-half of the members of each of the two largest political parties represented in that house.”29 As a result, the map is subject to Section 1(C)(3) of Article XIX. Before the bill passed, the Senate Republicans said during a press release where they released the maps, that the new map offers seven competitive districts, dividing only 12 counties and keeping seven of Ohio's eight biggest cities whole. During the week between the press release and the bill signing, the map faced many complaints. Governor DeWine said that “When compared to the other proposals offered from House and Senate caucuses, both Republican and Democrat, the map in Senate Bill 258 makes the most progress to produce a fair, compact, and competitive map.”30 Within two weeks of Governor DeWine signing the bill, two organizations sued the congressional map in the Ohio Supreme Court. Two days after the maps passed, the first lawsuit, Adams v. DeWine, was filed. The National Redistricting Action Fund represented a group of Ohio residents in this lawsuit. The plaintiffs of this suit claimed that:

they [The General Assembly and Governor DeWine] enacted a congressional plan under which Democrats can expect to win 29

OH CONST Art XIX § 1 Ohio Governor Mike DeWine Comment on Senate Bill 258 (November 20, 2021) https://governor.ohio.gov/media/news-and-media/governor-dewine-signs-senate-bill-2581122201 30

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just three of Ohio’s 15 congressional seats, making the 2021 Congressional Plan even more rigged than its predecessor and an outlier among partisan gerrymanders nationwide.31 The League of Women Voters of Ohio and the A. Philip Randolph Institute sued the maps on November 30th on behalf of Ohio residents, referred to as League of Women Voters of Ohio v. DeWine. In their original complaint, they allege that “allowing the most conservative margins, the Enacted Plan will provide ten districts that will safely elect Republican candidates, two districts that will safely elect Democratic candidates, and three arguably competitive districts that will favor Republicans” which “safely allocates 67% of the total congressional seats (10 of 15) to the Republican Party for the next four years, despite their predicted 55% share of the vote.”32 In the League of Women

Voters of Ohio v. DeWine’s original complaint, the filing party summed up their complaint with the map as:

Rather than reflecting voters’ actual preferences, Ohio’s newly enacted congressional map, like elections under gerrymandered systems, systematically locks in candidates from the Republican legislators’ preferred party and discourages electoral competition responsive to voters’ preferences.33 On January 12, 2022, the Ohio Supreme Court ruled that the November maps were unconstitutional because it “unduly splits three counties in violation of Section 1(C)(3)(b)” and that “those splits result in non-compact districts that cannot be explained by any neutral factor and serve no purpose other than to confer a partisan advantage to the political party that drew the plan.”34 As a result, the Supreme Court ruled that the General 31

Complaint, Adams v. DeWine, Ohio Supreme Court 2021 Adams v. DeWine, Ohio Supreme Court 2022 33 Complaint, League of Women Voters of Ohio v. DeWine, Ohio Supreme Court 2021 34 Adams v. DeWine, Ohio Supreme Court 2022 32

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Assembly must remedy the maps without any unnecessary changes. The Supreme Court ruled the second round of maps proposed unconstitutional on February 7, 2022, and ordered they be redrawn in 10 days. In League of

Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-789, the Ohio Supreme Court noted that “Senate President Huffman and House Speaker Cupp’s nearly exclusive control over the first two rounds of map drawing was strong evidence of partisan intent.”35 After a third failed proposal of congressional redistricting maps, Ohio Redistricting Commission has decided to hire independent map makers to assist in the redistricting. II. FEDERAL REDISTRICTING POPULATION REQUIREMENTS There are statewide requirements that are universal, such as the equal population requirements. The equal populations requirements come from three Supreme Court Cases in the late 20th Century. The three Supreme Court cases are Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Simms. These cases are responsible for the periodic redistricting that redistributes populations to ensure that a vote is no more powerful or impactful than another. In 1962, Baker v. Carr ruled that federal courts could hear and rule on cases in which plaintiffs allege that a state’s drawing of electoral boundaries violates the Equal Protection Clause of the Fourteenth Amendment. This affirmed that cases regarding political distribution did not conflict with the Political Question Doctrine thus opening the Supreme Court to further redistricting cases. Following Baker v. Carr, in 1964, a voter of the 5th District of Georgia filed Wesberry v. Sanders, stating that his vote was debased because his district population was 2-3 times greater than the other state districts. The court found that Article I, Section 2 of the Constitution requires that one person’s vote should be equal to any others when electing Representatives of Congress. This case established the concept that districts were to be as equal as 35

Slip Opinion, League of Women Voters of Ohio v. Ohio Redistricting Comm.,No. 2022-Ohio-789

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possible. Reynolds v. Simms set the standard of the “one person, one vote” principle in 1964. The court found that the “Equal Protection Clause [of the 14th Amendment] requires substantially equal legislative representation for all citizens in a State regardless of where they reside.”36 These cases lay the foundation of federal redistricting requirements that ensure an individual’s vote is equal to that of other citizens. III. A DEEP DIVE INTO OTHER STATES’ GERRYMANDERING PREVENTION MEASURES

While all states must abide by the constitutional equal population requirements, the Voting Rights Act, and constitutional rules on race, some states have independent regulations that dictate their redistricting process like Ohio. Arizona, California, Colorado, Hawaii, Idaho, Michigan, and Washington have the stricter regulations for their redistricting processes. The commission that drafts maps in Arizona consist of five individuals who may not have been appointed to, or a candidate for, any public office; an officer of a political party; a paid lobbyist; or an officer of a candidate’s campaign committee for three years prior to their appointment to the redistricting commission.37 The state’s commission on appellate court appointments nominates 10 Republicans, 10 Democrats, and 5 individuals who are not registered with the 2 primary parties.38 Out of those twenty-five individuals, the majority and minority leaders in each legislative house, each choose one individual to act as a commissioner then those four commissioners then choose a fifth tiebreaker commissioner who may not be registered in the same party as any other commissioner.39 While this method ensures that the redistricting committee includes a minimum of three different parties, this creates an incentive for the majority and minority leaders to choose 36

377 U.S. 533, 561 (1964) AZ CONST. Art. IV, Pt. 2, § 1 38 Id. 39 Id. 37

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commission members that align with their party alignment. If a Democrat chooses only one democratic party commissioner, then it is guaranteed that only one of the five will be a Democrat. As a result, majority and minority leaders may feel pressure to choose two of their party’s members to join the commission. All of the commissioners must be registered Arizona voters for a minimum of three years and no more than 2 of the first four may live in the same country. This requirement would diversify the committee's experiences and beliefs and ensures that the members are involved in politics. Requiring commission members to be registered for three years is not ideal because it would exclude young and new voters from this opportunity. This would discourage new or evolving beliefs in politics from gaining traction in the state. This devalues young and new voters. Arizona’s constitution requirements for redistricting uniquely begins with “the creation of districts of equal population in a grid-like pattern across the state.”40 After which the grid is adjusted as necessary to comply with the population requirements, and to be contiguous, geographically compact, and to respect communities of interest. This unique grid approach ensures, through a universal measurement, that the districts are not widely distorted through bias. The constitution also states that “to the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts” and “competitive districts should be favored where to do so would create no significant detriment to the other goals.”41 Incentivizing competitive districts is an important part of preventing gerrymandering. Competitive districts ensure that no part is inherently at an advantage. Furthermore, Arizona’s Senate and Assembly districts must be nested. Additionally, to prevent potential bias during drafting, the Arizona constitution dictates that “party registration and voting history data shall be excluded from the initial phase of the mapping process but may be used to test maps for compliance with the above goals” and the redistricting commission may not consider the homes of the candidates.42 40

Id. AZ CONST. Art. IV, Pt. 2, § 1 42 Id. 41

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By initially excluding the data that may influence the commission members, Arizona ensures that the initial draft of the map is entirely geologically based rather than based on the committee’s internal interests. Arizona’s method of redistricting prevents gerrymandered districts through uniform sectioning that also maintains practical physical and social boundaries between districts and emphasizes the importance of competitive districts. Then once drawn, the drafted maps must be available for public comment for a minimum of thirty days.43 By allowing the public the opportunity to critique the map, Arizona’s redistricting is essentially peer-reviewed. In an act of democracy, the state gives the people the opportunity to critique their work. This guarantees that any glaringly obvious issues are addressed before the maps enter into law. California’s redistricting process also involves the public. The commission proceedings fall under the state’s open meeting laws.44 As a result, the commission records, redistricting data, and computer software are all available to the public. Additionally, materials from the meetings including live streams are available online. Any Californian is welcome to submit map proposals online as well. Once again this ensures that the public can easily complain about any inaccuracies, issues or biases before the map is legal. According to the state constitution, California requires that districts be contiguous and preserve the geographic integrity of cities, counties, neighborhoods, and communities of interest.45 Furthermore, districts must encourage compactness and when practical Senate and Assembly districts must be nested within each other so that “each Senate district shall be comprised of two whole, complete, and adjacent Assembly districts.”46 Additionally, the commission excludes candidates’ residences and the constitution explicitly states that maps may not be drawn for “the purpose of favoring or discriminating against an incumbent, political candidate, or political party.” 47

Id. CA. CONST. Art. XXI, § 2 45 Id. 46 Id. 47 Id. 44

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After drafting the maps, the commission must issue public reports after drawing the plans for state legislative or congressional districts, explaining their decisions.48 California’s redistricting process forces the map makers to justify their decisions in the process. While this may not appear significant, requiring public publications to justify their redistricting choices ensures that the commission must have a reason for any issues or discrepancies within the plan. This explanation may then be easily investigated for bias or gerrymandering. Additionally, the public’s involvement allows for any potential points of bias to be openly critiqued before passing into law. The map is subject to a public referendum.49 Should the map fail to pass; the California Supreme Court will appoint “special masters to adjust the boundary lines of that map in accordance with the redistricting criteria and requirements.”50 The word adjust here implies that any constitutional elements of the map would remain in effect. The special masters would only change the faulty lines. This ensures that should the California Supreme Court appoint the masters; they would not have free reign to alter the maps as they will. California’s redistricting commission contains fourteen members who must have voted in at least two of the last three statewide elections and may not have changed party affiliation for at least five years51. This requirement devalues young and new voters as well. However, requiring participation in elections ensures that the commission members have a solid understanding of the state’s current politics. California Code 8252 § A(i-vi) requires that neither the commissioners nor any of their immediate family members may have been, within the last ten years of their appointment to the council or:

(i)Been appointed to, elected to, or have been a candidate for federal or state office. (ii) Served as an officer, employee, or paid consultant of a political party or of the campaign 48

CA CONST Art XXI § 2 Id. 50 Id. 51 8252 CA Gov Code (2019) 49

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committee of a candidate for elective federal or state office. (iii) Served as an elected or appointed member of a political party central committee. (iv) Been a registered federal, state, or local lobbyist. (v) Served as paid congressional, legislative, or State Board of Equalization staff. (vi) Contributed two thousand dollars ($2,000) or more to any congressional, state, or local candidate for elective public office in any year, which shall be adjusted every 10 years by the cumulative change in the California Consumer Price Index, or its successor.52 While this would limit bias, this would also exclude many citizens knowledgeable in politics. This could limit potential pools for committee members. In actuality, this is not an issue, but it is a disadvantage of this restriction. State auditors choose potential committee members. Three state auditors chose twenty Democrats, twenty Republicans, and twenty individuals not registered with those two parties to be nominees for the commission.53 The majority and minority leader in each legislative house may then each cut two people from the pool.54 Out of the remaining nominees, three Democrats, three Republicans, and two independent party members are chosen randomly.55 After which, those eight choose six commissioners, two Democrats, two Republicans, and two independent members.56 This results in a diverse commission of five Democrats, five Republicans, and four independent party members. By allowing the majority and minority leaders to cut a limited number of individuals, the majority and minority leaders exclude any potential sources of extreme bias. Additionally, the random pull of members ensures that no party has a stronger influence over the committee. To pass a map a total of nine votes is necessary, three votes from each of the

Id. 8252 CA Gov Code (2019) 54 Id. 55 Id. 56 Id. 53

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two biggest parties’ members.57 When both parties agree in some part about the maps, it is more likely to be a fair map that depicts a fair opportunity to the largest parties. Colorado utilizes a commission-based primarily on random selection. An initial pool is created from qualified applicants of which three hundred are Democrats, three hundred are Republicans and 450 are individuals unaffiliated with any party.58 Qualified applicants must have been registered with the same party or no party for five years and must have voted in the last two general elections and must not have been, within five years of appointment, a candidate for the legislative office whose maps are drawn by the commission, and they may not have been, within three years of appointment, paid by one of those legislators or their campaigns or within three years of appointment, elected officials, party employees, or lobbyists.59 Once again, the state excludes new voters and political figures. By requiring an applicant to maintain a registration with the same party for five years, Colorado prevents commission members from changing their party alignment to gain more influence in the decision process. For example, if a committee member switched political parties with the intention to side with their previous party, this would be an unfair advantage to the previous party. Preventing an unfair advantage in the initial pool ensures that there are fewer sources of bias during the drafting process. Then a panel of recently retired state appellate judges chooses fifty Democrats, fifty Republicans and fifty unaffiliated individuals to be nominees for the commission out of the initial pool.60 The judges’ panel then randomly chooses two Democrats, two Republicans, and two unaffiliated individuals with each choice representing a different congressional district.61 Once again, random selection prevents bias through the decisions of the majority and minority leaders. The majority and

CA CONST Art XXI § 2 CO CONST. Art. V. § 44.1 & 47 59 Id. 60 CO CONST. Art. V. § 44.1 & 47 61 Id. 58

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minority leader in each legislative house then each put forward ten applicants from the partisan nomination pools. The judge’s panel will select one more commissioner from each of these four pools of ten and two additional commissioners from the unaffiliated individuals in an attempt to represent the diversity of the state.62 This process vets the majority and minority leaders' choices for bias through the judge’s decisions. This method is used twice, once for congressional districts and once for legislative districts. This results in two commissions of twelve members each with four Republicans, four Democrats, and four unaffiliated members.63 For the commissions, nonpartisan staff prepares an initial plan that is subject to public hearings and the commission may modify.64 Final maps require a vote of eight commissioners including two unaffiliated members.65 This guarantees that the public is involved in the decision-making process and that the map has multiple parties’ support. Should the commission fail to agree on a map, nonpartisan staff will prepare a minimum of three plans for the commission’s consideration. Following that, if the commission fails to conclude, “then nonpartisan staff shall submit the unamended third staff plan to the supreme court.”66 Additionally, Colorado will automatically review any map to determine if it complies with the criteria.67 The criteria for Colorado’s maps further the federal population requirements. The commission must “make a good-faith effort to achieve mathematical population equality between districts” with a restriction that there shall not be “be more than five percent deviation between the most populous and the least populous district in each house.”68 Additionally, Colorado adjusts census data to count incarcerated individuals at their legal residence or last known legal residence before incarceration so that

Id. Id. 64 Id. 65 Id. 66 CO. CONST. Art. V, § 44.2,44.4, & 48.2 67 CO. CONST. Art V, § 44.5, 48.3 68 CO. CONST. Art V, § 44.3 & 48.1 63

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incarcerated individuals are included as a part of the general public.69 Including incarcerated individuals results in a more accurate population and ensures that the state does not devalue felons as citizens. Colorado’s constitution requires that the districts must be continuous and preserve communities of interest and whole political subdivisions (i.e counties, cities, and towns) as much as is reasonably possible.70 For state legislative districts, should the commission divide a political subdivision, then it should minimize the number of times any political subdivision is divided.71 This prevents the unnecessary fractions of states which by extension limits gerrymandering. Colorado also requires districts to be as compact as possible and “to the extent possible, maximize the number of politically competitive districts.”72 Incentivizing competition calls for a map void of gerrymandering. Additionally, no map may protect an incumbent member or candidate or with the result of diluting the electoral influence of a racial or language minority group.73 Hawaii’s constitution contains a similar ban on unduly favoring an individual or political faction.74 State statutes also require congressional districts to be as nearly equally populated as practicable.75 For the state legislative lines, Hawaii uses the number of permanent residents with the condition that “no basic island unit shall receive less than one member in each house.”76 The district lines are then divided up within each unit to be as equal in permanent resident population as practicable.77 Additionally, both district and legislative lines must be contiguous; must be compact, if practicable; and must follow permanent and easily recognized features where possible, and coincide with census tracts where practicable.78 These guidelines ensure no 69

2-2-802 Colo. Rev. Stat.§ 2-2-901 – 902 CO CONST. Art. V. § 43 71 CO CONST. Art. V. § 44.3 72 CO. CONST. Art V,§ 46 73 CO. CONST. Art V,§ 48.1 74 HI. CONST. Art. IV, § 6 75 HI Rev. Stat §25-2(b) 76 HI. CONST Art. IV §4 77 HI. CONST Art. IV §6 78 HI. CONST Art. IV §6 70

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district is weakened or strengthened for political influence. Additionally, where practicable, districts must avoid the “submergence of an area in a larger district wherein substantially different socio-economic interests predominate.”79 By keeping community interests separate, Hawaii protects its citizens’ interests from a division that would diminish their inherent value. Hawaii permits multimember districts, but no more than four members may be elected from any single district and state House districts must be nested within state Senate districts where practicable.80 Finally, at least one public hearing “shall be held in each basic island” before the redistricting plan is finalized.81 This ensures that all members of the public have equal access to the maps, regardless of which island they live on, before they pass into law. Idaho’s redistricting proceedings are open to the public and subject to the state's open meeting act and the redistricting data and plans submitted by the public are all available to the public.82 Under the state’s open meeting act, any redistricting meeting is completely open to the public. This allows public participation in the process of map drafting as well as the decision process. The public can raise issues of contention during the drafting process, as well as after. Idaho’s redistricting committee consists of a total of six members, four of which are chosen by the majority and minority leader in each legislative house, and two are chosen by the “state chairmen of the two largest political parties.”83 The only restrictions on commissioners are that no commissioner may be an elected or appointed official in Idaho when appointed to the commission or have been registered lobbyists within the last year — or elected officials or district, county, or state party officers within the last two years.84 The Idaho constitution and state law mandate the legislative districts be contiguous and both congressional and state legislative districts mandate the 79

HI. CONST Art. IV §6 HI. CONST Art. IV §6 81 HI Rev. Stat §25-2 82 72-1505 ID Code 83 ID CONST. Art. III § 2 84 ID. CONST. Art III § 2, 72-1502 ID Code Twin Falls Cnty. v. Idaho Comm’n on Redistricting (Idaho 2012) 80

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preservation of counties’ traditional neighborhoods, communities of interest, and (if possible) voting precinct boundaries; and that districts not be oddly shaped.85 The only data available for drafting maps is the population data and Idaho forbids division of county lines to protect a political party or incumbent.86 By excluding party information and only providing the population data, Idaho prevents the commission members from drawing maps with political parties’ interests in mind. Michigan does not restrict the data used in its redistricting process. However, the commission must publish both the plan, the data, and reference materials used in drafting it with a report explaining the basis for the proposed map.87 This allows the public to clearly understand the commission’s intentions when drawing the map. Additionally, the commission meetings are subject to the state’s open meeting laws and must hold at least ten meetings.88 Then after drafting the maps, the commission must publish the proposed plans and hold at least 5 public hearings throughout the state on the proposals with a minimum of forty-five days for the public to comment before the maps are put to a vote.89 This requirement ensures that no one can quickly push a map into law without public critique. The maps must “reflect the state’s diverse population and communities of interest” and they must not provide an advantage to any political party based on “accepted measures of partisan fairness” or favor or disfavor an incumbent or candidate.90 This ensures that the new map does not devalue voters because they are in the minority. A lower priority consideration should consider the county, city, and township boundaries; and they should be “reasonably compact.”91 The commission for drawing maps consists of thirteen members of individuals registered in Michigan who are not nor their immediate family members have been, within 85

72-1506 ID Code, Twin Falls Cnty. v. Idaho Comm’n on Redistricting (Idaho 2012) Id. 87 MI CONST. Art. IV § 6 88 Id. 89 Id. 90 MI CONST. Art. IV § 6 91 Id. 86

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six years of appointment, a candidate or elected official in partisan office, a political party officer, a paid consultant or employee of an elected official, candidate, campaign, or PAC, an employee of the legislature, a lobbyist, or state non-civil-service employees. Additionally, commissioners are not eligible to hold partisan elected state or local office in Michigan for five years after serving on the commission.92 While other states forbid political figures from being commission members, forbidding commission members from holding office is not as common. Through this, Michigan prevents commission members from exploiting their power on the council to gain a place in office. The Secretary of State solicits applications for the commission and mails at least 10,000 applications to randomly selected voters.93 This ensures not only a wide pool to choose from but by soliciting applicants, the state ensures that the applicants are interested in this opportunity and care about their state government. If an individual was not interested in politics, then they would not apply. The Secretary of State then randomly selects thirty Democrats, thirty Republicans, and forty of neither from solicited applications, and thirty Democrats, thirty Republicans, and forty of neither from randomly sent applications. Legislative leaders may then strike five candidates each from the pool of two hundred candidates.94 Finally, the Secretary of State randomly selects four Democrats, four Republicans, and five nonpartisan candidates.95 Michigan guarantees that the political leaders cannot bias the maps because all of the commission members are randomly selected. Then the commission must pass the maps with a nine-person quorum.96 The maps necessitate an affirmative vote of seven commissioners, including two Democrats, two Republicans, and two nonpartisans.97 This requirement establishes multi-party support for the map. Should the commission fail to agree on a final plan, then a plan is chosen from among the individually submitted commissioners’ plans 92

Id. Id. 94 Id. 95 Id. 96 Id. 97 Id. 93

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that maintain the highest preference from the commission so long as two commissioners with differing party alignments from the designing commissioner rank it within the top half of the proposed plans.98 This provides that multiple party preferences are incorporated into the plans should the commissioners fail to agree, hopefully resulting in a fairer map. Washington’s commission consists of five commissioners. The majority and minority party leaders in each legislative house each select one registered voter to serve as a commissioner and then the four commissioners choose a nonvoting commissioner.99 The majority and minority party leaders' choice of commissioner may influence the committee’s map with partisan intent but hopefully, the fifth commissioner would act as a fair and neutral member. The inclusion of a nonvoting commissioner is rather unique. This member should provide a valuable outside opinion of the map. Should the commissioners fail to choose their fifth commissioner, then the Washington Supreme Court will select one.100 The constitution states that no commissioner may have been an elected official or elected district, county, or state party officer within two years of appointment to the commission and the state law prohibits those who have been registered lobbyists within the last year from serving as a commissioner.101 The commission’s districting plan must be approved by a minimum of three of the commissioners and it may be amended if it has a two-thirds vote of the house.102 Requiring three of the five members to agree would result in a majority agreeing that the map is fair. The state legislature prohibits legislative amendments from including “more than two percent of the population of any legislative or congressional district.”103 The commission’s meetings are subject to the state’s open meetings act and the commission must publish a report explain their plan.104 The criteria for the 98

MI CONST. Art. IV § 6 WA. CONST. Art. II, § 43 100 Id. 101 WA. CONST. Art II,§ 43, 44.05.050 WA Rev. Code 102 WA. CONST. Art. II ,§ 43 103 44.05.100 WA Rev. Code 104 Id. 99

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redistricting map require that the state legislative districts be as equally populated as practicable excluding nonresident military personnel. Washington also adjusts the census data to count incarcerated individuals at their legal residence or last known legal residence before incarceration so that incarcerated individuals are included as a part of the general public.105 Washington also requires that to a reasonable extent both constitutional and state legislative districts should be contiguous, compact, and convenient, allow natural geographic, artificial, or political subdivision boundaries, preserve areas recognized as communities of interest, and that the number of divided counties and municipalities be as small as possible and should not favor or discriminate against any political party or group.106 Additionally, Washington requires the commission “to provide fair and effective representation and to encourage electoral competition.”107 Once again, encouraging competitive districts ensures that no party can easily gerrymander districts. IV. A CRITIQUE OF OHIO’S ANTI-GERRYMANDERING LAWS Ohio’s attempt to prevent gerrymandering fails as a result of the members of their commission. Rather than relinquish the power to draw maps to the citizens, Ohio’s constitution allows the legislators to control the maps.108 This is the primary issue. If the Ohio redistricting commission consisted of members of the public, then the committee would be more inclined to agree. Instead, the Ohio legislators chose to push unfair maps through legislation rather than come to an agreement on a map. Following the recent Supreme Court's rulings, it is clear that this process should not be trusted by the legislators as they cannot draft an adequate map. Rather, a more effective amendment would be to transition the power to create maps to the people instead. If legislators believed that a randomly selected commission like 105

WA. CONST. Art II § 43, 44.05.090 WA. Rev.Code WA CONST. Art. II, § 43 107 44.05.090 WA. Rev. Code 108 OH. CONST. Art. XIX, § 1 106

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Michigan’s redistricting committee would not adequately draft a map, then they could strike inadequate nominations as California does. Or Ohio could follow the more common procedure of majority and minority leaders choosing commission members like Arizona, Idaho, and Washington states do. Starting with a predetermined grid that mimics Arizona would also lessen potential gerrymandering. Ohio should also include a better solution for disagreements during map phases. When the redistricting committee fails to agree, there should be a drastic change like California’s special masters. As Ohio’s process currently stands, the responsibility of map drafting transfers back and forth without a consequence or change in the process. This allows those in power to continue proposing unfair maps without losing their position on the committee. Ohio’s attempt to prevent gerrymandering fails to address any of the causes of bias. While Ohio agreed that gerrymandering is not acceptable and amended the constitution accordingly, Article XIX provides no hindrance to gerrymandering. Instead, Article XIX is a useless collection of words that provides no value in the fight for democracy. It does not result in fair maps, and it does not provide consequences for failing to pass a fair map. As a result, Governor DeWine avoids collaboration in order to push unfair maps forward and into legislation

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Opportunity Zones: Uplifting Distressed Communities or Amplifying Inequitable Outcomes? Logan Cimino & Timothy King Edited by Dayana Esquivel Logan Cimino is a third-year student studying Economics, Geography, and History. He is from Temecula, California. After undergrad, Logan aspires to become an urban planner and to live in a bustling city. Timothy King is an undergraduate student originally from Downey, CA. He is currently pursuing majors in Economics and Environmental Studies, as well as a minor in Spatial Studies, in addition to working roles for UCSB's Geography and Environmental Health & Safety departments. After college, Timothy would like to pursue efforts related to corporate sustainability and finance, and he likely plans to stay somewhere in California.

ABSTRACT Opportunity zones stemmed from the 2017 Tax Cuts and Jobs Act (Pub.L.115-97) that was signed into law by the Trump administration. Their intended purpose was to use a place-based economic incentive to uplift disadvantaged communities from economic distress. Place-based economic incentives are used as policy tools to boost job creation, economic growth, and investment within areas that previously witnessed an economic decline or disinvestment. This paper intends to focus on the construction of many, often luxurious, student housing facilities funded by opportunity zone legislation. The effects of the production of these housing facilities on residents and 138

communities alike will be discussed; through a comparison of incomes and rental prices of former and new buildings/tenants. Housing affordability statistics will be showcased through visuals including graphs. Based on the paper’s findings, the researchers chose to draw parallels to the concept of gentrification and recommended policy goals related to student housing production and economic place-based incentives. This paper intends to further the limited academic literature on the positive and negative effects of opportunity zones, and the extent to which these pros and cons outweigh or balance one another. I.

THE HISTORY OF PLACE-BASED ECONOMIC INCENTIVES IN AMERICAN LEGISLATION

Place-based economic incentives have played a key role in economic development-related legislation for several decades within the United States. The idea of a place-based economic incentive was first popularized on a federal scale by former President Bill Clinton in the 1990s. It has since progressed into what is now known as “opportunity zones” and was established under former President Donald J. Trump in his infamous Tax Cuts and Jobs Act of 2017 (Pub.L.115-97). In order to understand opportunity zones, their historical and geographical context, and their legal significance, it is necessary to elaborate on the history of place-based economic incentives within the framework of American law. Before place-based economic incentives were designated in federal legislation, they became commonplace in the United States at a state level during the 1980s. These enterprise zones were modeled after the Thatcherite enterprise zones that were enacted under Thatcher’s reign in the UK in the early 1980s.1 So-called “enterprise zones” rapidly gained popularity across the United States but were legislated solely at the state-level as opposed to being

Leslie E. Papke, Tax Policy and Urban Development: Evidence from the Indiana Enterprise Zone Program, 54 Journal of Public Economics, 37, 39

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driven by federal law.2 Enterprise zones were state-enacted policies that aimed at reducing economic inequalities that were geographic in scope. The significant popularity of enterprise zones resulted in federal attention, culminating in national laws being catered to such zones. The first of which was passed under the Clinton administration as federal empowerment zones. Former President Bill Clinton introduced the concept of an “empowerment zone” in 1993 in response to rising tensions within economically distressed areas across the country. For decades, these areas were deprived of investment and subsequently faced resentment from residents and activists. The Empowerment Zones and Enterprise Communities Act of 1993 set the stage for the rapid spread of place-based economic incentives within federal and state policies. Towards the end of 1994, Bill Clinton announced that both urban and rural zones would be selected as empowerment zones.3 Empowerment zones included major place-based tax incentives that “encourage[d] private investment and direct financial assistance to support local revitalization efforts,” which arguably falls in line with Bill Clinton’s other “neoliberal” legislative policies; those that incentivized deregulating capital markets and increased private investment.4 Bill Clinton’s empowerment zones had a lifetime of twenty years as they were set to expire in 2013. Once officially terminated, Barack Obama continued this encouragement of economic growth on a geographic basis by introducing his so-called “promise zones.” Obama’s promise zones played a key role in his presidential campaign that centered on urban politics and uplifting marginalized communities. Promise zones were single and continuous zones

Leslie E. Papke, Tax Policy and Urban Development: Evidence from the Indiana Enterprise Zone Program, 54 Journal of Public Economics, 37 3 Deirdre Oakley & Hui-Shien Tsao, A New Way of Revitalizing Distressed Urban Communities? Assessing the Impact of the Federal Empowerment Zone Program, 28 Journal of Urban Affairs, 443 4 Deirdre Oakley & Hui-Shien Tsao, A New Way of Revitalizing Distressed Urban Communities? Assessing the Impact of the Federal Empowerment Zone Program, 28 Journal of Urban Affairs, 443, 446

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that were deemed to be economically distressed.5 The designation of being a “promise zone” ultimately made a geographic area more favorable for federal and local planning grants. The small-scale approach of the promise zones made them unique to Obama’s urban policy. They heavily stressed localized urban planning measures in contrast to enterprise zones, Clinton’s empowerment zones, and Trump’s opportunity zones. In total, Obama established twentytwo promise zones across the nation, many of which served as precursors to the geographic areas selected as opportunity zones just a few years later. To further examine Obama’s place-based economic incentives, it is important to analyze the federal grants that his promise zones were structured on the basis of. Within the promise zones program, these zones were required to encompass, “an existing boundary of a current Promise Neighborhoods or Choice Neighborhoods implementation grant or a BCJI grant, and the lead grantee and major partners of those activities were required to play a ‘substantial role’ in the activities of the Promise Zone.”6 Together, these grants made up the “The Neighborhood Revitalization Initiative (NRI).” The Byrne Criminal Justice Innovation (BCJI) program was a place-based economic program initiated under Obama in an attempt to reduce crime in areas deemed to be crime hot spots. Meanwhile, the Promise Neighborhoods program was a similar place-based economic grant program but focused more on education. Instead of attempting to reduce crime in these hot spots directly, the Promise Neighborhoods designation sought to use grants in a manner that promoted increasing educational opportunities and probabilities of students attending college. Both of these programs played a key role in the promise zone designation; a designation that is crucial when it comes to affordable housing.

Robert P. Stoker & Michael J. Rich, Obama’s Urban Legacy: The Limits of Braiding and Local Policy Coordination, 56 Urban Affairs Review, 1607, 1617 6 Robert P. Stoker & Michael J. Rich, Obama’s Urban Legacy: The Limits of Braiding and Local Policy Coordination, 56 Urban Affairs Review, 1607, 1617

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These zones became vital in community revitalization and incentivized the production of affordable housing. Cities across the country such as Los Angeles, Philadelphia, Atlanta, and more, were encouraged to increase their affordable housing stock in hopes to be designated as a promise zone and gain access to much-needed federal grants.7 According to Cheye-Ann Corona, a Senior Policy Associate at the Aspen Institute, the United States Department of Housing and Urban Development (HUD) specifically sought out zones that had development plans in place to increase their affordable housing stock, preserve their existing affordable housing stock, or to implement strategies to maintain or encourage their housing affordability.8 Unlike the opportunity zone designation that came along with the 2017 Tax Cuts & Job Act (Pub.L.115-97), this component of the promise zone program revealed, at least to some degree, a legislated intent to uplift residents in zones that would receive any grants, fundings, or investments. Opportunity zones (OZs) were sanctioned in Donald Trump’s infamous 2017 Tax Cuts and Jobs Act (Pub.L.115-97).9 The premise behind them is relatively similar to that of the aforementioned place-based economic incentives. State governments were permitted to designate up to twenty-five percent of their Census tracts as OZs. Unlike promise zones, which were centered around federal grant funds, OZs are directed to the private sector. Within the opportunity zones, wealthy investors are given “preferential tax treatment” toward their capital gains. Under the current system, investors are able to defer their capital gains taxes until the end of 2028. The bipartisan public policy organization, Economic Innovation Group, introduced OZs following the Great Recession in 2008. They brought their idea to Congress in a 2015 paper and claimed that the initiative for the 7

Cheye-Ann Corona, Examining Promise Zones: Prioritizing Affordable Housing During Revitalization, 28 Harvard Journal of Hispanic Policy, 44, 45 8 Cheye-Ann Corona, Examining Promise Zones: Prioritizing Affordable Housing During Revitalization, 28 Harvard Journal of Hispanic Policy, 44, 58 9 Campustown Opportunity Zone Fund I, https://opportunity-funds.com/wpcontent/uploads/2019/03/1421_geodir_fundfile1_CampusTownOpportunityZone_FundI_s.pdf

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program was to funnel private investment into low-income and economically disadvantaged communities; they would support entrepreneurship and new business growth communities, and to help make the country more accessible and equitable regarding geography.10 However, upon analyzing the program, its current status, and its potential for the future, one may question the extent to which OZs have been able to uphold the supposed good intention of the program’s founders. Particularly in real estate investment, it is important to question and further research the degree to which these investments are making the country more accessible, fostering entrepreneurship and respectable job growth in distressed areas, and benefiting local communities, their economies, and their most vulnerable residents. II.

GETTING OPPORTUNITY ZONES PASSED: THE IDEA, THE LOBBYING, & THE HUSTLE

Sean Parker, an American entrepreneur, and philanthropist, was originally inspired to develop the idea of opportunity zones after seeing systemic poverty in the distressed neighborhoods of San Francisco. He began floating the idea for the project in 2013 at the World Economic Forum. This idea provided the rich and powerful elite of our nation with an avenue for their own private investment and betterment; all wrapped up in do-good-for-the-poor packaging. They could masquerade under the idea that they were uplifting economically disadvantaged communities. To support this, Parker with his supporters and confidants founded a nonprofit organization, the Economic Innovation Group (EIG). As a nonpartisan group, they argued that geographic inequality was equally important as income inequality, through garnering academic validation, via case studies and scholarly articles. Once the EIG was well established, the legislation began to be crafted. There was some pushback towards the idea of spatial tax incentives, 10

Economic Innovation Group, Opportunity Zones, https://eig.org/opportunityzones

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but the group fought with intense lobbying for both Republican and Democratic senators like Tim Scott and Cory Booker. With their pockets now filled, the EIG had notable senators on both sides of the political spectrum who were willing to back the idea. Parker’s group then shifted its focus to creating the public perception that they were a credible economic think tank by hiring Hamilton Place Strategies, a notable public relations firm.11 The EIG advertises itself as, “a new national community investment tool that connects private capital with low-income communities across America.”12 They further present the project as helpful for those systematically disadvantaged when they say that the “economically distressed communities” that they support “encompass 11 percent of the country’s white population, but 35 percent of its black and 37 percent of its native populations.”13 However, as cited by David Wessel, a senior Fellow in Economics studies at the Brookings Institute, some OZ investment opportunities could be easily criticized because there was no mandate requiring “good” intentions. One investment opportunity up for critique is luxury student housing, “eligible only because college kids show up as poor in census tallies.”14 III.

LUXURY & STUDENT HOUSING IN OZS: IS IT HELPING OR HARMING LOW-INCOME RESIDENTS?

Luxury and student housing are inevitable byproducts of opportunity zone designations. Given that opportunity zones, by nature, incentivize real estate development, it is not surprising to grasp the extent to which housing 11

David Wessel, Only The Rich Can Play: How Washington Works In the New Gilded Age. 23-60 (2021). 12 Economic Innovation Group, History of Opportunity Zones, https://eig.org/opportunityzones/history. 13 Economic Innovation Group, Opportunity Zones, https://eig.org/opportunityzones/facts-and-figures. 14 David Wessel, “How a Tech Mogul Pushed Through a Tax Break”, The Wall Street Journal (Sept. 16, 2021 10:04AM) https://www.wsj.com/articles/how-a-tech-mogulpushed-through-a-tax-break-11631801059?mod=article_relatedinline.

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developers have taken advantage of the program. Student housing is particularly interesting when it comes to opportunity zones. As cited by David Wessel in his book about opportunity zones, Only the Rich Can Play: How Washington Works in the New Gilded Age, so-called college towns are disproportionately likely to be represented in the opportunity zones program. Because full-time students tend to have little to no income given their full-time status, the Census bureau tends to overrepresent geographic areas with high student populations as low-income or economically distressed, even if this is not always the case.15 One report from the Americans for Financial Reform Education Fund suggests that opportunity zones are actively and will continue to exacerbate the affordable housing crisis as opposed to helping limit its impact on low-income populations. The organization also found that the OZ program and patterns associated with OZ real estate development have been actively displacing Black and Brown residents while amplifying gentrification in certain zones.16 One project that arguably demonstrates this disturbing trend is the 32 E. Green multifamily complex in Campustown, Illinois—just outside of the campus limits of the University of Illinois at Urbana-Champaign. The development was funded through a Qualified Opportunity Zone fund, the funds that all OZs are established through. In Graph #1, the median monthly household income for the gentrifying district is about $597 (derived from the annual median household income of $7,166)17 and according to Apartments.com, the median rent for a two-bedroom apartment at 32 E. Green is approximately $1,800.18 Given that rental housing is considered to be 15

David Wessel, Only The Rich Can Play: How Washington Works In the New Gilded Age. 236 (2021). 16 Americans for Financial Reform Education Fund, Wall Street’s Big Opportunity: Opportunity Zones are a corporate tax break masquerading as community development, https://ourfinancialsecurity.org/wp-content/uploads/2020/06/Wall-Streets-BigOpportunity-6-2020.pdf 17 Social Explorer, U.S. Opportunity Zones, https://www.socialexplorer.com/3d320463d6/explore 18 Apartments.com, 32 East Green, https://www.apartments.com/32-east-greenchampaign-il/525j2qm/

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affordable if it does not exceed thirty percent of a household’s income19, it can be argued that this complex does not serve the original purpose of OZs; it is unaffordable and does not seem to uplift the pre-existing residents of the Campustown community. In order to deem the apartment complex as affordable to the median household, the median household income of the Census tract would have to be $6000, almost ten times higher than the reported median household income that made the tract available for selection as an OZ in the first place.

Graph #1: 32 E. Green Affordability Statistics Similarly, the newly constructed Fig 31 apartment complex adjacent to the University of Southern California (USC) is another example of how opportunity zone-funded student housing projects could be at odds with the original intent of the program. The Fig 31 complex is also developed through a Qualified Opportunity Zone Fund; but unlike 32 E. Green, the Fig 31 complex charges rent per person for their apartments. For their median two-

East Bay Housing Organizations, Understanding Affordable Housing, https://ebho.org/resources/what-is-affordablehousing/#:~:text=Housing%20is%20affordable%20if%20it,area%20median%20income %20(AMI).

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bedroom apartment, the property charges $3,325 monthly per person.20 Thus, in order to be affordable, using the thirty percent threshold, the median income for constituents in the area must be over $11,000.21 For context, the median household income for the relevant Census tract is just above $965 (derived from an annual median household income of $11,585).22 Given that the median household income in the Census tract is less than one-tenth of this, and that the median household size is not one (there is generally more than one person included in the tract’s definition of “household”), it is abundantly clear that the Fig 31 complex does not meet the requirements to be deemed as even remotely affordable to the current residents of the opportunity zone in which it is located. Therefore, just like 32 E. Green, the Fig 31 USC student housing complex can be seen as an example as to how opportunity zone-induced real estate developments could be exacerbating gentrification in these zones while also avoiding the original intention of the program as a means to benefit current residents in these economically distressed areas.

Graph #2: Fig 31 Affordability Statistics 20

Apartments.com, The 505, https://www.apartments.com/the-505-los-angelesca/80cbr71/ 21 Social Explorer, U.S. Opportunity Zones, https://www.socialexplorer.com/3d320463d6/explore 22 Social Explorer, U.S. Opportunity Zones, https://www.socialexplorer.com/3d320463d6/explore

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By the same token, the 698 Prospect development located in proximity to the University of North Carolina Pembroke’s rural campus is another representative of this trend. This is particularly noteworthy given UNC Pembroke’s status as an institution that serves a majority of Black and Brown students. 698 Prospect, like Fig 31 and 32 E. Green, is also funded via a Qualified Opportunity Zone fund. According to Census data, the median monthly household income for the tract in which 698 Prospect lies is approximately $1,515 (derived from an annual median household income of $18,179).23 Similar to Fig 31, 698 Prospect charges rent per person. Despite being significantly cheaper than both 32 E. Green and Fig 31, 698 Prospect still has a median rent that exceeds standards of affordability ($589 per month per person).24 The median monthly income per renter would have to be almost $2,000, which is still significantly higher than the current median household income of just over $1,500. As with the other developments, it appears as though 698 Prospect goes against the core intent of the opportunity zone program. If luxury student housing is not affordable in relation to the median household incomes that are used to determine whether specific Census tracts are eligible for opportunity zone designation, then luxury student housing serves as a direct example of the limitations of the OZ program to match its supposed intent.

Social Explorer, U.S. Opportunity Zones, https://www.socialexplorer.com/3d320463d6/explore 24 Apartments.com, 698 Prospect, https://www.apartments.com/698-prospect-pembrokenc/g50h37y/

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Graph #3: 698 Prospect Affordability Statistics That being said, there are some housing developments that have been constructed with Opportunity Zone funds that seem to match the program’s intent to uplift residents and communities facing economic hardship. The Ox Fibre Apartments in Frederick, Maryland serves as a prime example. The apartment complex has one-bedroom units that rent for approximately $1,154 per month.25 As can be observed in Graph #4, given the median income for the Census tract ($51,944 per year), this apartment complex does fit into the range of “affordability.”26 Hopefully, more Opportunity Zone funds will be used to develop affordable housing complexes like the Ox Fibre Apartments as opposed to the other luxury student housing developments that were discussed earlier in this paper. If affordable developments like the Ox Fibre Apartments become increasingly popular under the guise of the OZ program, it is arguable that the intent of the program will become increasingly actualized within the built environment.

Apartments.com, Ox Fibre Apartments, https://www.apartments.com/ox-fibreapartments-frederick-md/70lstdz/ 26 Social Explorer, U.S. Opportunity Zones, https://www.socialexplorer.com/3d320463d6/explore

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Graph #4: Ox Fibre Apartments Statistics CONCLUSION There are plenty of Opportunity Zone investments going towards luxury student housing that do not match the intentions of the project as advertised by the Economic Investment Group. Their website displays a quote from the current governor of Illinois, J.B. Pritzker, that the project funds could “creat[e]... opportunities in communities that have suffered from a lack of investment for decades.”27 However, there is a clear and inherent lack of regard for the disadvantaged in the opportunities which are being pursued. This precedent goes beyond just the three examples of the University of Illinois, the University of Southern California, and the University of North Carolina. It can be found in the majority of luxury student housing projects based in the many campus towns across the nation. That being said, housing development under the Opportunity Zone program still has significant potential. Affordable developments such as the Ox Fibre Apartments have begun to spring up around the nation with the help of OZ funding. In the future, it may be in the best interests of members of Congress and lawmakers to retrofit the OZ program to mandate or at least incentivize the production of affordable

Economic Innovation Group, Opportunity Zones, https://eig.org/opportunityzones

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housing developments as opposed to luxury housing options that are out of the range of affordability. Future research should emphasize policy strategies that can guide the revision of this program and highlight plans to ensure that the OZ program is aimed at investments that truly uplift communities and residents that are dealing with ongoing financial hardship.

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SECTION III ENVIRONMENT

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Environmental Impact Reports: Elevating Environmental Concerns or Blocking Sustainable Urban Development? Vicente Villasenor Edited By Dayana Esquivel Vicente Villaseñor is a third-year student at UCSB, from Los Angeles that is pursuing a degree in Hydrologic Science and Policy. He is a contributing photographer in a student-run newspaper organization, The Bottom Line, and works as a research assistant in the Conservation Economics Lab. After receiving his undergraduate degree, Vicente hopes to attend a law school where he can apply his knowledge and raise social justice concerns to the forefront of environmental legislation.

ABSTRACT The California Environmental Quality Act, or CEQA, is a California law that was passed in 1970 to raise attention to environmental impacts that a proposed project may have, embracing input from the public, local political actors, and state agencies. The benefits of CEQA revolve around developers being transparent about the potential harmful impacts their proposed project has on the environment and public health. Due to the importance of such legislation in the development of communal projects, CEQA has since altered the urban planning process, drawing criticism and appraisal from various interest groups. Those in opposition to this environmental law criticize CEQA on the grounds of increasing legal battles between land developers and environmental organizations. Their criticism stems from the frustration in preventing the development of new projects and expensive delays. Despite these pressing 150

concerns, many environmentalists appraise CEQA for its ability to recognize and keep developers responsible for the damages they intend to introduce to the communities and environments where the projects are proposed. Over 50 years, CEQA has increased the tension between these two parties, questioning the extent to which CEQA should remain a placeholder for the environmental review of public and private projects. This article explores the history of related significant CEQA cases in establishing precedents, how California's Superior court and the Supreme Court decisions have changed and aligned the CEQA review process with public safety concerns, and future statutes of CEQA concerning climate change risks and housing availability. INTRODUCTION During Governor Ronald Regan’s administration, at a time of environmental concern, the state followed the national government’s footsteps with the adoption of the National Environmental Policy Act, or NEPA, and passed the California Environmental Quality Act, or CEQA. Adopted after the infamous Santa Barbara Oil Spill in 1969, environmental values were becoming embedded into the national agenda. Passed by President Nixon, the purpose and function of NEPA were to consider the environmental impacts of a federal agency’s actions. In doing so, the agency must provide a statement on their proposed actions that detail any actions significantly affecting the quality of the human environment, thus informing the public and considering the damages that may be brought up in their project or proposed actions. With its overarching goals, NEPA sought to “use all practicable means and measures to foster and promote the general welfare, create and maintain conditions under which nature can exist in productive harmony, and fulfill social, economic, and other requirements of present and future generations of Americans.”1 Although not entirely understanding the gravity of such a law, the birth of NEPA marked the beginning of pro-environmental legislation in America and 1

42 U.S.C § 4321 (1997)

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what would lead to the establishment and jurisdiction of environmental quality. Following a similar political and legislative path as NEPA, CEQA was passed to ensure environmental quality was prioritized at a state and local level. The purpose of CEQA can be understood in four basic principles: inform, identify, prevent, and disclose.2 With CEQA, an organization is held responsible to inform governmental decision-makers and the public about the potential effects of proposed activities, identify ways that those effects can be avoided, prevent avoidable damages through mitigative methods, and disclose reasoning for the approved projects. In attempting to fulfill these basic principles, a developer must submit an environmental impact report, EIR, or a negative declaration. An environmental impact report is a public document that is created by the developer and used by a governmental agency to analyze significant environmental effects of a proposed project and disclose ways to reduce or avoid possible environmental damage.3 A negative declaration is when an agency deems that a project has no substantial evidence that a project may have a significant environmental effect.4 In theory, this law is perceived to reduce environmental damages and lower public health risks associated with a project, but in practice, the intricacies of CEQA unfold and add turmoil to the progression of these projects. When evaluating a project under CEQA, the process follows a preliminary review to an initial study process, preparation of CEQA related documents, a public review period, and finally a project approval.5 If there are any unaddressed concerns, parties pursue CEQA litigation to alter the EIR or negative declaration to ensure those concerns of the public are prioritized. Although there are regulations written in the legislation to reduce delay and 2

Cal. Code Regs. Tit. 14 § 15002 General Concepts (1975) CA Pub Res Code § 21061 (1976) 4 CA Pub Res Code § 21064 (1976) 5 Carr C., N. Dhillon, and L. Grunbaum, The CEQA Gauntlet: How The California Environmental Quality Act Caused the State’s Construction Crisis And How to Reform It, Pacific Research (Feb. 8, 2022), https://www.pacificresearch.org/wpcontent/uploads/2022/02/CEQA_Report_Final.pdf 3

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paperwork, CEQA has proven to be an extensive and expansive process that many developers dread. Within the extensive goals of ensuring environmental quality, “CEQA requires that decisions be informed and balanced. It must not be subverted into an instrument for oppression and delay of social, economic, or recreational development or advancement.”6 The inclusion of an EIR becomes problematic when analyzing the onsets of a public health concern. As public involvement is an integral component of CEQA legislation, the introduction of the public’s comments on the project requires developers to reevaluate their EIR and alter the ways in which environmental impacts are perceived and depicted in the EIR. Through every process in reviewing a project’s environmental impact, the public is recommended to bring attention to their concerns ranging from noise pollution to the release of particulate matter from construction practices. Further emphasizing one of CEQA’s policies, that is to demonstrate that an “EIR serves not only to protect the environment but also to demonstrate to the public that it is being protected.”7 With the integration of public review, CEQA has seemingly evolved into a troublesome law that frustrates both the land users who must continually meet and compromise their project with the well-being of any public comments. These issues eventually pan out into legal feuds. CEQA provides various opportunities for environmental degrading practices to be addressed and solved, but the nuisance of the legislation results in concerning issues that do more regression to urban development. To further understand how CEQA is used today, a historical approach must be taken into consideration to explain, at a legal level, how ‘projects’ are perceived, the degree to which environmental impacts are identified, and the ability of the public to influence a proposed project. With a historical lens, CEQA creates a jurisdiction for many developers to establish projects today and dictates how they approach an environmental review.

6 7

Cal. Code Regs. tit. 14 § 15003 Cal. Code Regs. tit. 14 § 15003

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HISTORY

When CEQA was enacted, its section codes and policies remained open-ended and vague and shared a common language with NEPA. As litigations grew in response to the requirement of CEQA for certain projects, the complexity of this law began to arise when plaintiffs questioned what specific projects required an environmental review process, let alone allow the public to comment on their developments. To this day, litigation continues to increase throughout the state with certain projects and actions that are not clearly defined in the legislation. A pivotal court case in the establishment of CEQA precedents revolves around the ruling of how a ‘project’ is identified under CEQA. The arbitrary nature of legal terms under CEQA guidelines prompted many litigation court cases that would continue throughout the 20th century to be defined by the California Appellate court. The court case, Friends of Mammoth v. The Board of Supervisors of Mono County reveals the frustration that many local communities and businesses faced initially when dealing with this new regional planning law. The confusion that many developers faced was which projects fit under the requirements to undergo an EIR process. The fault and blame do not lie on the plaintiffs or defendants, but rather many local policymakers did not understand the scope of CEQA’s applicability. Despite not having explicit goals and definitions in the legislation, CEQA was brought to national attention when Friends of Mammoth v. The Board of Supervisors of Mono County was introduced to the California Supreme Court, bypassing the Courts of Appeal. The environmental organization, Friends of Mammoth, was suing Mono County on the grounds that their project should have undergone an environmental review process falling within CEQA’s jurisdiction.8 The complications lie in that the project was taken up by a private party, and CEQA legislation never clarified whether private projects would have to endure an environmental review process. The 8

Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247 (1972)

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court ruled in favor of the environmental organization, raising the idea that any action requiring state or government approval, via a permit, must produce an EIR.9 As NEPA served as a model for CEQA, the Court used the language and goals embedded in the national environmental policy as a placeholder for what CEQA should reflect in its policy. This court case helped to set a precedent by defining what a “project” means under CEQA and what an EIR should detail regarding environmental concerns that are shared by the public. Additionally, the Court took the stance on the basis of the significance of the environmental impacts derived from a project in relation to the drawing requirement for an EIR. The pressure that the environmental organization raised in the Supreme Court case forced CEQA to declare what the legislation believed to be protected in its original intent and writing. Thus, amending CEQA and establishing an additional policy stating that CEQA “was intended to be interpreted in such a manner as to afford the fullest possible protection of the environment within reasonable scope of the statutory language.”10 Furthermore, as litigations would develop in the state, these cases would strengthen CEQA’s requirements to further protect and ensure environmental quality. As the litigation and revisions with CEQA’s policies increased over time, the premise of these cases supports explicit detailing of what should be included in an environmental review. With the support of the California Supreme Court and other pro-environmental related policies, this court ruling disclosed to developers the importance that any project or action must be reviewed when dealing with the potential damages to the environment. II.

CURRENT STATE

The success that CEQA aims to achieve is associated with mitigating environmental and public health harm. When projects are reviewed, the goal

Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247 (1972) Cal. Code Regs. tit. 14 § 15003

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of CEQA is not to extinguish the plans, but to find methods to avoid environmentally degrading practices. There are many successes with CEQA that employ these tactics to reduce these harmful practices. One specifically relevant case is Bozung v. Local Agency Formation Commission of Ventura County. The Local Agency Formation Commission, or LAFCO, had received approval from the county for the annexation of agricultural land and its development without requiring an EIR.11 Community members, like plaintiff Richard Bozung, brought up their concerns that without a clear direct use of the land, the community would be unaware of the potential impact that the city and county would be responsible for imposing on the public. The plaintiffs contended that LAFCO should be required to complete an EIR before receiving the rights and use of the land. The California Supreme Court agreed with the plaintiffs and the EIR was completed in 1977.12 Success stories, like this in Ventura County, prove that CEQA should be at the forefront of ensuring environmental quality, noting that any project regardless of receiving permission, should inform the public about its potential impact on the environment and their community. Broadening CEQA policy guidelines, and using this court case as a precedent, the environmental law was amended, reinforcing the idea that the “purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind.”13 Success is not only limited to the establishment of an EIR but mitigating efforts that have not been identified or recognized. Another case study that evaluates the relationship with a developer and the harmful impacts they have identified was with the City of Hanford. After an initial introduction to the planning and EIR of their project, the city council allowed the construction of the project, but after its initial start-up, local community members started to desist the projects on the grounds that the EIR produced

Bozung v. LAFCO(1975) 13 Cal.3d 263 Bozung v. LAFCO(1975) 13 Cal.3d 263 13 Cal. Code Regs. tit. 14 § 15003 12

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did not correspond to the damages from their development.14 In the Court, the defendants were being evaluated on the sufficiency of the EIR for their coal power plant and the ability for the City Council to approve such a project. The Court ruled in favor of the plaintiffs, concluding that the EIR produced was inadequate and the City Council should seek approval from external agencies.15 The Court ruling with the City of Hanford amended CEQA in establishing, yet another policy stating that “CEQA does not require perfection in an EIR, but rather adequacy, completeness, and good faith-effort at disclosure. A court does not pass upon the correctness of an EIR’s environmental conclusions, but only determines if the EIR is sufficient as an informal document.”16 In both court cases, CEQA is continuously upheld to increase the public and environmental concerns for the damages that could come forward with inadequate EIR. CEQA may be deemed successful from an environmental lens where certain environmental issues are addressed, but the current state of CEQA produces extensive delays at times when much-needed infrastructure is required. In situations where projects need to increase the speed of the CEQA process, there have been many legal attempts to override these issues. To deal with legal complexities coupled with CEQA, policymakers have started means to supersede the process in an EIR to get projects approved and developed. An example of how legislators have tried to overcome the hurdle of time in the EIR process is through Senate Bill 7. Senate Bill 7 has been adopted from various assembly bills since the early 2010s as a method to streamline the CEQA process by going through a Court of Appeals.17 The purpose of the bill is to enable projects that are capable of meeting pro-environmental criteria and can shorten the time a project can be approved from CEQA processes, thus providing communities with much-needed development. Additional state 14

Kings County Farm Bureau v. City of Hanford(1990) 221 Cal.App.3d 692 Kings County Farm Bureau v. City of Hanford(1990) 221 Cal.App.3d 692 16 Cal. Code Regs. tit. 14 § 15003 15

Judicial Streaming Legislative History, Governor Office of Planning and Research, https://opr.ca.gov/ceqa/judicial-streamlining/history.html (last visited April, 2022)

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legislation that follows similar pathways include Senate Bill 375, which has a focus on sustainable community strategy and streamlining projects that could provide housing in urban areas.18 Although these bills provide developers with less pressure from public input, the conflicting nature with CEQA legislation and statutes prompts CEQA to be upheld in the court of law, which ultimately does not give local legislators the opportunity to advance the development of projects that continue to be delayed. The rise of many conflicting statutes would soon clash with environmental advocates and community members who misuse the public involvement aspect of CEQA. Often, lawmakers are struggling to deal with CEQA impeding their projects, so exemptions only seem probable with urban development. There have been many advancements for CEQA, in terms of the measure of environmental quality, such as evaluating future greenhouse gas emissions and risks associated with climate change, but the litigation and literature that surrounds CEQA revolves around delayed costly projects. There are still many proposed solutions to how Californians should try to reform, but the bill remains largely untouched. III.

SOCIETAL IMPLICATIONS

The shortcomings of CEQA can be consequential to low-income communities that diminish their accessibility to projects that may be resourceful to them. Ranging from the limiting housing availability to climate change risks, CEQA has not adapted to efficiently address these projects, nor has it made any effort to speed up valuable projects for the community, despite addressing significant environmental impacts. Housing availability has been a major concern for many Californians since the late 20th century and has only worsened due to the rising property values within metropolitan areas. There are numerous case studies that

SB 375 CEQA Streamlining, Sacramento Area Council of Governments, https://www.sacog.org/sb-375-ceqa-streamlining (last visited April, 2022)

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examine the difficulty it takes in developing these dire residential projects, but continuously get delayed or get overturned. One critical case study that examines the difficulty in developing housing is related back to the University of California. Adjusting to its increased student enrollment, UC Berkeley attempted to develop plans to create student housing. A lawsuit came forward: Save Berkeley’s Neighborhood v. Regents of the University of California.19 The lawsuit was filed on the basis that UC Berkeley “increased enrollment well beyond the growth projected in the 2005 EIR without conducting a further environmental review.” Although this issue has brought major headlines as early as March 2021, the ongoing legal battle for the UC system has been going on for nearly a decade. Scholars have identified organizations, like Save Berkeley’s Neighborhood, as Not-In-My-Back-Yard-ers, or NIMBY, who oppose the development of projects simply because they have personal reasons to oppose them.20 With NIMBY increasing in the public involvement component of CEQA, the UC system must embrace the concern that increasing enrollment is directly correlated with environmental damages associated with their project. The plaintiff’s concern has been introduced to the UC system for some time, but their concerns seem only present when the project seems to have been approved by public agencies, pressuring the NIMBY to accept the project. Political actors in California have tried to challenge CEQA and streamline university housing projects as an exemption to CEQA, on the grounds that ‘students are not pollutants’, and the ability to produce positive environmental effects that CEQA does not take into consideration in its process. The societal implication that is associated with delayed projects are not addressed in CEQA’s legislation and has the potential to provide ulterior consequences to Californians. CEQA’s shortcomings do not limit themselves 19

Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) Cal. 5th 20 Carr C., N. Dhillon, and L. Grunbaum, The CEQA Gauntlet: How The California Environmental Quality Act Caused the State’s Construction Crisis And How to Reform It, Pacific Research (Feb. 8, 2022), https://www.pacificresearch.org/wpcontent/uploads/2022/02/CEQA_Report_Final.pdf

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to housing but can extend to the threatening risks associated with climate change risks or the reduction of pollutants. With advancing technology and understanding of the physical and chemical making of the environment and the effect of anthropogenic actions, CEQA must be altered in a way to address these consequences so they can be incorporated into the legislation. Scholars have questioned the legitimacy, and legal disputes have arisen due to the extent to which certain environmental, economic, or societal issues are significant to avoid or delay any projects in high-risk areas. More research needs to be associated with how CEQA should incorporate these regulations and risks when compiling future analyses and reviews of projects. IV.

RECOMMENDATIONS FOR THE FUTURE

CEQA has been adapting and adjusting after continuous court rulings that constrain certain developers, economic progression, and valuable projects for various communities. One aspect that policymakers focus on when dealing with CEQA is creating bills to streamline or exempt projects from an environmental review process. In doing so, a developer can accelerate the process that would typically belong to reviewing, remove the public’s involvement, and focus on the construction of that project. Although this has a positive impact in terms of the speed at which projects are constructed, public involvement is a critical and necessary component in deciding what projects will be approved in certain communities. So, the selection of what projects are deemed acceptable needs to have a higher standard for what is accepted. Some scholars believe that a central authority or agency needs to monitor projects that are deemed exempt from the CEQA processes to see if they fit certain criteria to override these rules and disclosures. With a central monitoring pathway, projects that are in desperate need of integration into cities will be prioritized and given more attention to ways they could rid environmental impacts and safely produce a project. Policymakers and urban planners argue that CEQA needs to be changed entirely. With climate change exacerbating extreme weather events, 160

environmental assessments need to be altered so agencies can evaluate the risks certain projects would entail, including being present in a fire-prone or floodprone area. Moreover, the representation of lower-income and ethnic communities needs to become incorporated into the decision-making component of the public involvement processes. Typically, plaintiffs are wealthy or have businesses that are threatened by certain projects, and they have the financial and social representation needed to defend such land; but these marginalized communities need to have a say in the review process. Even without the knowledge that some projects may incur on these communities if the public review is subjected to only a handful who want to misuse the legislation, these communities will be forced to accept the living conditions in which they coexist with developers. In doing so, the public involvement is truly not holistic and would be making the environmental impacts inaccurate and worsening the state of the public’s health and wellbein CONCLUSION CEQA is a crucial environmental law that maintains the integrity of the environmental review process by focusing on the harms a project may incur on society and the environment. As stated in its legislation, “EIR requirement is the heart of CEQA” and may become its biggest downfall with the way it's structured. 21Even though CEQA has great intentions, a plethora of legal battles has stemmed from this intricate review process that continuously gets revised to ease the process of an environmental review. Once a law that was designed to prompt a healthy relationship between human action and the environment, has now become a law that misuses its legal power to thwart the progression of much-needed development in cities throughout California. Stemming from the lawsuit of Friends of Mammoth v. The Board of Supervisors, that was within the first five years of the legislation being enacted, revealed the complexity and broad nature of CEQA. Defining a project would 21

Cal. Code Regs. tit. 14 § 15003

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shape how the public and agencies would perceive what a “project”, and later, “actions” may produce environmental impacts. Making this lawsuit a turning point in what developers would soon accept, and what development will require a comprehensive EIR. Furthermore, students at the University of California System are experiencing the shortcomings of CEQA firsthand with many housing insecurities that arise that failed to address their Long-Range Development Plan. The lawsuit of Save Berkley’s Neighborhood v. Regents of the University of California provides substantial evidence for why significant reform in the CEQA legislation or process is necessary. Even though the UC system has provided enough prepared documents to validate and comply with the environmental impacts associated with their project, the lawsuits are indicative that there is a greater barrier preempting much-needed infrastructure, like student housing, from being developed. CEQA's capability to create a survey for potential environmental impacts for new projects is necessary for moving toward climate-neutral goals that minimize environmental harm, but from recent litigation, CEQA may be steering away from its original endeavors. Used in defense to preserve communities for how they once were, CEQA may continue to be abused by many constituents who are affluent and capable of influencing such a review process and should be taken seriously in developing sustainable or critical development for California. The question now is how CEQA should be changed to prioritize the original environmental concerns it was designed to assess and protect its constituents.

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Senate Bill 332: An Examination of the Impacts on California Sydney Arredondo Edited by Reena Khanna Sydney Arredondo is a second-year Psychological and Brain Sciences major from Vista, California. Aside from being a writer for the journal, she is also an active member of Alpha Delta Pi sorority Gamma Xi Chapter, as well as the Tri-Alpha Honors Society. After completing her undergraduate studies at UCSB, she hopes to attend law school and eventually pursue a career as a litigator.

ABSTRACT As of January 1st, 2022, Senate Bill 332 went into full effect after being signed off by Governor Newsom. Prior to the new bill, in the state of California, the law stated that any person found grossly negligent in setting a fire, letting it burn outside of the range onto other property, or flourish past what was intended would be liable for costs of medical services, property damage, and containing the fire. The new law provides more flexibility stating that no individual should be held liable for containing or putting out a prescribed burn under certain parameters such as cultural burning, ecological maintenance, silviculture, or agriculture. It also outlines new acknowledgments in regard to the indigenous community in California and the practices of cultural fire practitioners. The new law has been a controversial one with many supporters, but also harsh critics. In my article, I intend to explain the new law and compare it to that of the preceding one and take a closer look at both the supporting arguments and the opposing ones. Senate Bill 332 has been a controversial subject of debate transitioning into 2022. With the new law in place, there is more leeway pertaining to the regulations surrounding prescribed burns, and there is less liability as to who will be held accountable if said fire gets out of control. One of the more popular arguments is that the small portion of people who are impacted 163

positively in a very minuscule way, do not outweigh those who are negatively impacted in a much larger realm. The new law exists in a state that already has a pre-existing issue with the wildfire season. Without any accountability on the people who set these prescribed burns, it could lead to higher burn rates in California, and in return negatively impact those affected by the fires by making it nearly impossible to file an insurance claim and sue for reparations, and ultimately can lead to a higher rate of negligence and overall damage. I.

BACKGROUND, SENATE BILL 332 AS OF 2021

Prior to the bill's amendment in 2022, 332 had very specific parameters pertaining to who could set a fire, and the reasoning behind why the fire was being set in the first place. To quote directly from the document in place, the “law requires the agreement to designate an officer of the Department of Forestry and Fire Protection or a certified burn boss as the burn boss with final authority regarding the prescribed burning operation and to specify the duties of, and the precautions taken by, the person contracting with the department and any personnel furnished by that person.” (Senate Bill 332). A “burn boss” is certified through the California State Office of the Fire Marshall, and this individual is involved in the planning and execution of a pre-planned “blaze''. The burn boss ensures that the correct plan is laid out and developed and is responsible for the obtaining of permits that enable these burns to take place. Once the fire is taking place, they monitor the fire in order to determine whether or not it poses a risk and ensure that it doesn’t burn too far and cause any unwanted damage or harm. After the fire, they also do an evaluation in which they determine whether or not it was successful and document any damages or possible external effects which created the issues. It is clear that this process comes with a lot of additional responsibilities because burning a fire can be extremely hazardous. For this reason, there are several critics of the new law in place that has created more flexibility regarding these burns that was put into effect as of the first of the year.

II.

SENATE BILL 332 AS OF 2022

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The modified version of the bill has undergone some significant changes in regard to limitations. To start, the new law asserts that no single person or persons shall be held liable for any damages and or expenses such as fire suppression and medical expenses caused by a prescribed burn. While there are a lot of the same regulations in place regarding what is needed in order to get approval to burn the fire, there is some flexibility in some cases. For example, in Section 1, paragraph 2 and 3 of the Civil Code, it states that in order to burn a fire, “A person certified as a burn boss pursuant to Section 4477 of the Public Resources Code reviewed and approved a written prescription for the burn that includes adequate risk mitigation measures.”, (Cal. Civ. Code § 3333.8, (2021)) and “The burn is conducted in compliance with the written prescription.” 1 (Cal. Civ. Code § 3333.8, (2021)). But there are some exceptions. In the case of cultural burns which are often associated with rituals and practices of Native American tribes, they are now exempt from these regulations, and a person deemed as a “cultural fire practitioner” is allowed to burn a fire for purposes such as stated in the bill, “to achieve cultural goals or objectives, including subsistence, ceremonial activities, biodiversity, or other benefits.” (Cal. Civ. Code § 3333.8, (2021)) This is one of the more significant changes as it allows indigenous people a lot more freedom in setting prescribed burns without much regulation from the State of California as before. III.

THE UPSIDES TO THE NEW BILL

Looking through the lens of those who find it to be favorable, there are a few positions on why the bill is a positive contribution to California. First, California is home to the highest number of indigenous residents in the United States. According to the census that was recorded in 2010, “California represents 12 percent of the total Native American population (approximately 720,000) identified themselves as Native American.” (CFCC Forum) This is significant as the new law enables more freedom for Native American tribes to perform ritual burns and burns that aid in agricultural purposes. Many supporters are glad to see more freedoms awarded to indigenous people in California. The bill is the first one that addresses and appoints “cultural fire practitioners” as such and recognizes them as professionals in their craft 1

Cal. Civ. Code § 3333.8, (2021)

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alongside California-certified burn bosses. AB-642 which is affected directly by bill 332, falls under the same section and highlights many of the benefits that may be reaped through these modifications as it explains, “Partnering with California Native American tribes, tribal organizations, and cultural fire practitioners to expand the practice of cultural burnings upon landscape provides an opportunity to restore landscape resilience while preserving Native American cultural identity and also improving forest health, ecosystem abundance, maintaining species diversity, and decreasing the risk of catastrophic wildfires.” (Cal. Civ. Code § 3333.8, (2021)) Not only does it hold a lot of positive impacts on the environment in terms of how it affects our indigenous communities, but it also reaffirms their identity and awards them more flexibility in the process. Native Americans were one of the founders of controlled burns for vegetation and preservation of the land, and they are some of the most skilled in how to properly burn and maintain properties for agricultural purposes, this has finally been recognized and acknowledged legally and set in writing. Burns can be utilized in ridding the environment of dense forests and promoting vegetation. In clearing the surrounding area of potential brush that can fuel burns, it decreases the risk of wildfires during our windiest and hottest seasons, and in the process makes room for more plant life that supports tribes in silviculture, the practice of growing and utilizing resources to produce just enough food for the individuals or groups themselves, as opposed to mass production which usually leads to selling food and making profit. Besides the many benefits for recognized tribes in California, there is also resounding support from farmers and environmentalists as demonstrated in a statement provided from the California Cattlemen’s Association. In their response, they explain that prescribed burns are a valuable tool for them in similar terms to that of which Native American tribes use them in agriculture, clearing out spaces for vegetation. Utilizing prescribed burns can also have very lethal ramifications. In practicing them, farmers are able to remove harmful patches of brush or unnecessary forestry that could otherwise contribute to wildfire season and the severity of said fires. They also believe that passing the bill creates less liability for the individuals setting the burns unless found grossly negligent, it

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“[incentivizes] greater application of prescribed fire.” 2 This allows for less stress and provides a shield to the burners from potential lawsuits that may have been more prevalent prior to the new law being enacted. Another supporting argument of the amendment of the bill comes from environmentalists and attorneys regarding pollution and water quality. As touched upon by Somach Simons and Dunn, Attorneys at Law, it is addressed that while prescribed burning reaps a lot of benefits in terms of preserving biodiversity as well as preventing a more intense wildfire season, it also” maintains water quality in managed watersheds by reducing smoke and ash, decreasing erosion, and protecting desired plant communities.” 3 By reducing the amount of air pollution and ash as a result of wildfire season by practicing more controlled burns, it in return aids California in maintaining our fresh waters which we have struggled with in the past. One example being “the aftermath of the Caldor fire on the famously blue waters of Lake Tahoe. “which resulted in the pollution of the lake with debris and ash particles which had a negative impact on the clarity of the water as well as the algae. IV.

CRITICISMS AND COMMENTARIES

While there is a vast amount of support for 332, there are also some criticisms and negative impacts that are questioned heavily. As previously touched upon above, the California Cattlemen Association makes a point that the decreased liability issues regarding prescribed burns serve as an incentive to practice prescribed burns more often in hopes of achieving the agricultural benefits as well as depleting more of the unnecessary brush that fuels our fire season. For this reason, there are some critics who assert that by increasing the flexibility of the law, more farmers, cultural fire practitioners, and burn bosses will begin to set more fires and in return, this could result in higher rates of negligence and as a result, issues when it comes to suing for fire suppression costs and 2

Katie Roberti, Governor Newsom signs CCA-sponsored SB 332 California Cattlemen's Association (2021), https://calcattlemen.org/2021/10/06/sb332/ (last visited Mar 23, 2022). 3 Michelle E Chester, How promoting prescribed burns may improve water quality in the long term - SOMACH simmons & dunn: Attorneys at law Somach Simmons & Dunn | Attorneys at Law (2021), https://somachlaw.com/policy-alert/how-promoting-prescribedburns-may-improve-water-quality-in-the-long-term/ (last visited Mar 23, 2022).

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reparations if there are some damages or harm that come as a result. There is also the surrounding question of whether or not this affects the rights of Californians as a whole. John Hernandez, a California attorney, outrightly criticizes it, inquiring, “Why is it then that the rights of California’s citizens need to be limited for these new fire bosses to do their jobs? …SB-332 will sacrifice the rights of Californian citizens to sue for damages to allow the state to do a job that many of its citizens already perform. Should we not be allowed to hold the state accountable when its failures cause property damage or, worse, death?”4 (Hernandez, AB-642 article) He explains that many landowners in California, especially those that own farms or ranches do partake in a lot of these prescribed burns as is and in return do a hefty amount of the fire prevention and preservation of the environment in return, basing their prescribed burns on the previous law. His critiques widely surround litigation and how those negatively impacted will be able to rightfully sue for any damages or harm that may come their way at the hands of people who set these fires. In return, it can become an insurance issue resulting in the party that was wronged being caught in a battle trying to sue their own insurance company which can lead to bigger losses and more difficulty in obtaining compensation for injury or reparations. There is also the wide critique regarding the fact that California is a widely known hot spot for wildfire season during our hotter and drier months of the year and that by setting these prescribed burns more often and with the possibility of negligence due to the lack of responsibility for those who lit them, it could actually lead to a higher risk of more fires that get out of control or that spread and break off into more brush fires. Looking at AB-642, the law amended as of 2021 acknowledges California’s long struggle with lethal fires and that it has progressively become worse since 2018. In the bill it states as follows: “Wildfires in California are continuing to increase in frequency and intensity, resulting in loss of life and damage to property, infrastructure, and ecosystems. In 2020, wildfires burned more than 4.1 million acres. The August Complex Fire in northern California, the largest fire in California’s modern history, burned over one million acres. In total, wildfires caused 33 deaths and destroyed over 10,000 structures in 4

John Hernandez, What you need to know about SB-332: California Personal Injury News Hernandez Law (2021) https://hernandezlaw.co/what-you-need-to-know-about-sb-332/ (last visited Mar 23, 2022).

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2020. The land area burned in 2020 more than doubled the previous record, roughly 1.8 million acres, which was set in 2018.”5 (C.F.R §5117.8, (2021)) In a state that already battles a deadly wildfire season that is continuing to become more out of control each year, those who align themselves with the critics often wonder if the small portion of Californians who reap positive benefits outweigh the negative effects that could impact so many others. With less reign over the prescribed burns, people worry that in return these fires will be allowed to grow out of control and in return will burn farther than anticipated leaving many with property damage, severe injuries, or even worse, death. In return, those who are against the bill worry that on top of the potential for more fires with worse outcomes, the aftermath of trying to battle with insurance companies for reparations or fire suppression costs when they would originally address the state of California has become a widespread worry for many. V.

POTENTIAL MODIFICATIONS/SOLUTIONS

In acknowledging both the criticisms of Senate bill 332 and AB-642, as well as the widespread support, it’s important to recognize that both sides hold legitimate concerns and there is certainly room for growth and development to address many of the worries as well as the positive impacts that are currently being prodded and debated. One effect that the law doesn’t address is the statistical evidence pertaining to the hotter and drier months of the year when wildfire seasons begin and destroy the most. One potential modification that could be made is taking a look at this and perhaps reshaping some of the parameters regarding when these fires can be burned. This could entail being stricter with regulations and permits, in regard to the time of year when the fires are being lit and burned. For example, when looking at statistical evidence from Cal Fire’s database. 6 There are over 15 pages of incidents recorded for just 2021 alone, with an estimated “2,568,948 Acres” burned throughout the state over the span of “8,835” incidents, with a good majority of the worst/most damaging ones following a pattern. A large majority of these fires 5

C.F.R §5117.8, (2021) California Department of Forestry and Fire Protection (CAL FIRE), 2021 incident archive Cal Fire Department of Forestry and Fire Protection, https://www.fire.ca.gov/incidents/2021/ (last visited Mar 23, 2022). 6

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took place during the hotter, drier months of the year, falling during summer months of July-August, or our combination months of October-November when we have hot, windy, and dry weather all at the same time. Having this information and looking at the statistical data, although fires are a widespread issue all throughout the year, a good majority of them do fall during the months we designate as “wildfire season” here, and there are not currently any specific parameters or regulations regarding this currently set in place. While the wildfire dilemma here is a complex issue with many external factors playing into how the laws surrounding it are shaped, this could be a potential area to workshop in order to not only create a safer environment, but to also possibly ease the worries of those who are concerned about the new bill and their criticisms surrounding it. VI.

CONCLUDING THOUGHTS, THE RELEVANCE?

The new bill that was passed has been a major point of discussion. Many Californians are unaware that this took place as well as the impacts, both positive and negative and aren’t informed enough on a topic that pertains to our daily life and quality of living. My objective is to inform and present information on both opposing arguments which will allow people to build some knowledge and hopefully bring awareness to the importance surrounding Senate Bill 332 as well as AB-642 since it is a significant change. Considering the statistical data on the Native American population, there are some major modifications that impact indigenous people directly in a very beneficial way which is quite notable and something to be looked at considering they make up a significant part of California’s population. There are also major changes regarding lawsuits and civil action that are also severely impacting all citizens of California as a whole, which should be acknowledged since California is such a hotspot for wildfires. In 2022 alone so far, Cal Fire’s database has documented nearly “736 incidents” with just about “6,055 acres” alone being scorched along the way. 7 The numbers are significant considering we are only about 3 months into the year in current time (March of 2022), and we still have not reached our hottest and driest months where we will really see 7

California Department of Forestry and Fire Protection (CAL FIRE), 2022 incident archive Cal Fire Department of Forestry and Fire Protection, https://www.fire.ca.gov/incidents/2022/ (last visited Mar 23, 2022).

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the blazes start to pick up and become more damaging during what is considered to be our actual “wildfire season”. In return, during these months and along the way, we will also start to get a closer look at how the new bill will fall into play and how it will impact Californians as a whole. In the process, we will also learn whether or not the concerns expressed regarding the modifications will come to fruition and if we will see the bill being altered again going into the following year.

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SECTION III CONTEMPORARY

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Means To An End: On Affirmative Action Melody Torres By Shruthi Vasudevan Melody is a first-year political science major from El Monte, CA. She is involved in other organizations on campus, such as Legal Education Association for Diversity, and has done advocacy work as a UCAN ambassador. Her goals after undergrad are to attend law school, in hopes of pursuing a career in criminal or intellectual property law.

ABSTRACT The court case of Regents of the University of California vs. Bakke became a landmark U.S. supreme court case involving the agendas of race, education, and affirmative action. Argued on October 12, 1977, a 35-year-old white man by the name of Allan Bakke presented the court with two medical school rejections and a statement that accused the UC Davis School of Medicine of violating the Title VI of the Civil Rights Act of 1964, in addition to the fourteenth amendment’s Equal Protection Clause. Ending in a no single majority opinion, the 8-1 decision for Bakke presented by Justice Lewis Franklin Powell, addressed the university’s use of racial quotas during its admission process as unconstitutional. This ruling also ruled the school’s use of affirmative action to accept more minority applicants as constitutional only in certain circumstances. Although this court case was tried several decades ago, the discussions that once reached their peak regarding affirmative action remain prevalent today. Using the court cases of Grutter vs. Bollinger and Fisher vs. University of Texas, the arguments that are made against affirmative action continue to rise substantially as more students express that affirmative action represses opportunity, rather than obtaining it. Affirmative action can be viewed as a step in a positive direction by some, due to increasing representation amongst marginalized racial, ethnic, and socioeconomic groups. The effects of affirmative action have displayed themselves through socioeconomic status, and the changing narrative for minorities. The 173

arguments presented have caused a phenomenon of discourse that continues to this day. INTRODUCTION Affirmative action began as a phrase in the workplace and evolved to being formally used within college admissions cycles. The issue of racial representation sparked during John F. Kennedy’s presidency, when he issued an executive order regarding affirmative action in the workplace. This executive order was meant to establish an Equal Employment Opportunity1 that was founded as a catalyst to the Civil Rights Act of 1964.2 During the Civil Rights Movement, there was a high desire for equalizing opportunity for African Americans and people of color.3 Following Kennedy’s presidency, Lyndon B. Johnson and Richard Nixon’s presidential eras experienced an influx of discrimination against minorities in the United States, as the Civil Rights movement highlighted the voices of marginalized communities by emphasizing the need to end inequality.4 Richard Nixon’s domestic policies often originated from his willingness to end discrimination in the workplace against minority groups.5 His policies ranged from the conservation of environmental protection to lowering the voting age to 18 per the Voting Rights Act of 1965.6 The court cases of Regents of the University of California vs. Bakke, Gutter vs. Bollinger, and Fisher vs. The University of Texas, demonstrate how the effects of affirmative action have contributed to the changing narrative for minorities within college admissions cycles.

U.S. Equal Employment Opportunity Commission, “Laws Enforced by EEOC”, https://www.eeoc.gov/statutes/laws-enforced-eeoc (last visited March 12, 2022). 2 Ibid., (last visited March 12, 2022). 3 Anti-Defamation League, “Civil Rights Movement”, https://www.adl.org/education/resources/backgrounders/civil-rights-movement (last visited March 12, 2022). 4 Kent B. Germany, “Lyndon B. Johnson and Civil Rights”, (2014), https://prde.upress.virginia.edu/content/CivilRights 5 Dean J. Kotlowski, “Richard Nixon and the Origins of Affirmative Action”, Taylor & Francis, Ltd, (1998), https://www.jstor.org/stable/24451639?seq=1 6 Richard Nixon Foundation, “Richard Nixon’s Top Domestic and Foreign Policy Achievements”, https://www.nixonfoundation.org/richard-nixons-top-domestic-andforeign-policy-achievements/ (last visited May 2, 2022).

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AGAINST AFFIRMATIVE ACTION

In order to assess the divide between Americans’ stances on affirmative action, it is important to highlight college admissions cycles and the associated controversy throughout the years. Affirmative action is most associated in reflection of the Kennedy presidency, remaining true to advocate for minorities within college admission cycles. However, Kennedy’s advocacy had led to claims that affirmative action is meant to help disadvantaged individuals. These claims are premised on the fact that minorities are “disadvantaged” in the first place, based on case studies on intergenerational poverty amongst people of color in the United States.7 In a survey on intergenerational poverty amongst African-Americans and white Americans, statistics display that 71.7% of white Americans never lived in poverty as opposed to 29.6% of AfricanAmericans.8 The effects of discrimination in America has branched out from its systemic origins of intergenerational poverty into college admissions cycles. The court case of Regents of the University of California vs. Bakke prompted the discussion of affirmative action and the violation of the Civil Rights Act of 1964.9 In terms of the arguments made surrounding affirmative action, there is more in play than simply ending discrimination. Students’ wills to pursue a higher education, engulfing themselves in the college admissions cycle where they wait and see if they are a university’s best fit is at stake. Some argue that affirmative action poses a divide within the admissions process, as bias is likely to occur, because it enables minorities and underrepresented individuals to pursue higher education. This, in turn, creates the claim that there are limited spots in university classes.10 The negative take to affirmative action is that admissions processes for universities are often founded on the

Tricia Young, A Change Must Come: The Intersection of Intergenerational Poverty and Public Benefits, 14 DePaul J. for Soc. Just., 1, (2021), https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1242&context=jsj 8 Robert L. Wagmiller Jr. “Childhood and Intergenerational Poverty”, (November 2009), http://www.nccp.org/wp-content/uploads/2020/05/text_909.pdf 9 U.S. Department of Labor, “Legal Highlight: The Civil Rights Act of 1964”, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964 (last visited March 12, 2022). 10 Walter Feinberg, “On Higher Ground: Education and the Case for Affirmative Action”, Teachers College Press, (November 30, 1997), https://eric.ed.gov/?id=ED423800

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ideals of being under a “holistic review”.11 Under holistic review, it takes the application submitted by an individual and highlights their unique experiences through multiple components including essays, personal statements, grade point average, and transcripts, but not the component of race. Despite this, there have been accusations against prestigious universities across the nation such as Harvard College, as they have been accused of discriminating against Asian American applicants.12Affirmative action defies these “accusations”, as race is considered, causing those outside of the minority to question if their chances of getting into the same university are lessened simply because they are not a person of color or have indigenous background. II.

FOR AFFIRMATIVE ACTION

Affirmative action has historically caused a divide across racial and socioeconomic groups in the United States. For instance, affirmative action enables disadvantaged students of minority backgrounds to attend and reap the benefits of a higher-ranked university.13 There has been a discussion of evident racial gaps when it comes to higher-end education in the United States. In a research study conducted by Stanford University, the achievement gap has significantly declined in all grades, ranging from 4th to 12th, amongst Hispanic and Black students in the United States.14 This decline was credited to educational opportunity, furthering the argument that affirmative action serves as a contingency for minorities and those of lower-income families. In defiance against this argument that affirmative action benefits those of lower socioeconomic status, the use of racial quotas has initiated this divide amongst

Stanford University Contributors, “AI and Holistic Review: Informing Human Reading in College Admissions”, (February 7, 2020), https://dl.acm.org/doi/abs/10.1145/3375627.3375871 12 Adam Liptak, “ Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C.”, (January 24, 2022), https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-actionharvard-unc.html 13 Peter Arcidiacono, Michael Lovenheim, “Affirmative Action and the Quality-Fit Tradeoff”, National Bureau of Economic Research, (2015), https://www.nber.org/system/files/working_papers/w20962/w20962.pdf 14 David Elliott, “This is what the racial education gap in the US looks like right now”, (October 16, 2020), https://www.nber.org/system/files/working_papers/w20962/w20962.pdf

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Americans that introduces the vindication of universities admitting “less qualified candidates.”15 The importance of higher education in today’s society makes it imperative to understand how drastic an opportunity such as a college education can open up to a family of a minority or lower class.16 Given the elitist stigma that surrounds the college admissions process in terms of financial factors17, we see that affirmative action can have positive effects on socioeconomic status amongst minorities. For years, these cycles have become more competitive as admissions rates for higher education continue to decrease.18 With affirmative action allowing a door to open for minorities, they are able to move upwards towards the social ladder, and towards a better socioeconomic status. In a 2019 survey, it is displayed that a white household in the United States is more likely to afford to send their children to four-year institutions, whereas minorities are not able to afford these institutions.19 This alone furthers the stance of a divide across racial and socioeconomic groups within the United States. As an effect of minorities being able to attend and receive a higher education, affirmative action minimized the unemployment rate in the United States.20 This is so because those who were able to pursue higher education and receive the proper credentials such as a bachelors or masters degree, paved the way for more opportunities, despite the racial gap that prevailed.21

Khrista Sayo, Elissa Choi, “How Race PLays a Role in College Admissions”, (December 15, 2016), http://studentpress.org/nspa/wpcontent/uploads/sites/2/2017/09/121516-p06.pdf 16 National Center for Education Statistics, “College Enrollment Rates”, (2020), https://nces.ed.gov/programs/coe/pdf/coe_cpb.pdf 17 Elise Brezos, “Elitism in Higher Education and Inequality: Why Are the Nordic Countries so Special?”, (2018), https://www.intereconomics.eu/contents/year/2018/number/4/article/elitism-in-highereducation-and-inequality-why-are-the-nordic-countries-so-special.html 18 Ibid., (2018) 19 National Center for Education Statistics, “Indicator 19: College Participation Rates”, (2019), https://nces.ed.gov/programs/raceindicators/indicator_rea.asp 20 Noriko Amano, “What are the Effects of Affirmative Action Regulation on Workers’ Careers?”, (January 12, 2017), https://isps.yale.edu/news/blog/2017/01/what-are-theeffects-of-affirmative-action-regulation-on-workers’-careers 21 Jon Marcus, “Racial Gaps In College Degrees are Widening, Just When States Need Them To Narrow”, (August 13, 2021), https://hechingerreport.org/racial-gaps-in-collegedegrees-are-widening-just-when-states-need-them-to-narrow/

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III.

UC REGENTS v. BAKKE

The court case of the Regents of the University of California vs. Bakke22 fueled the ongoing conversation about the use of affirmative action within college admissions cycles. This case began when a thirty-five-year-old white man by the name of Allan Bakke brought up his rejections from the medical school at the University of California, Davis. Given that his test scores were considered to be above the average admitted, his application was denied which in turn made him question the racial quota of the admissions system at the University of California, Davis. Bakke had taken his rejections to the Supreme Court as he filed and sued the university for using racial quotas. His main argument hinged on the university's practice of reserving approximately 16 seats for minority students.23 These 16 seats for minorities out of 100 for the University of California, Davis School of Medicine were viewed as a violation by the Supreme Court as it did violate the laws that were heavily applied to this case being the United States Constitution Amendment XIV, and Title VI of the Civil Rights Act of 1964. This led to the court ruling that the university was in violation of the Equal Protection Clause. When describing the context of this case, we see that the University of California, Davis had instilled an Affirmative Action Program24 prior to Bakke’s admission cycles. Allan Bakke had applied for the UC Davis School of Medicine during the admission cycles of 1973 and 1974, ultimately getting rejected in both cycles. It is important to emphasize the fact that the University of California, Davis had an explicit compliance to affirmative action.25 The Executive Vice Chancellor had released this document, and this affirmative action program specifically catered to employment opportunities for minorities and females, similar to how 22

Oyez, “Regents of the University of California v. Bakke”, https://www.oyez.org/cases/1979/76-811 (last visited March 12, 2022). 23 Supreme Court of the United States, “Regents of the University of California v. Bakke”, (1978), https://aishouzuo.org/en/Regents_of_the_University_of_California_v._Bakke4622422624 24 University of California, Davis, “Affirmative Action Program for Minorities and Females”, (December 31, 2017 - December 30, 2018), https://compliance.ucdavis.edu/sites/g/files/dgvnsk5096/files/inlinefiles/UCD%20AAP%20Women%20Minorities%20FINAL%204.18.18_2.pdf 25 University of California, Davis, “Compliance and Policy; Affirmative Action”, (November 30, 2021), https://compliance.ucdavis.edu/affirmative-action

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affirmative action first started during Kennedy’s presidency. In addition, Allan Bakke’s rejections relied on his age as he was in his early 30s applying to medical school.26 By the institution's standards, his applying at this age catered to his ultimate decision of getting rejected. After receiving his initial rejections, Bakke had brought his case to a state court and incorporated the topic of affirmative action, highlighting it as the reason for not being admitted into the school in the first place. This court case had fractured the court, a result of becoming politicized throughout United States history. This case specifically had divided the court, as nine justices had issued a total of six different opinions. The decision that was written by Justice Lewis Franklin Powell had come to the ruling that the inclusion of race as a factor for university admissions was plausible to promote “educational diversity”. However, this inclusion of race must be a factor amongst all other factors including test scores, personal statements, etc. so the applicant can be based on an all-round rather than the singular use of racial quotas.27According to the Equal Protection Clause, the decision that the University of California Davis had against the 16 out 100 being minority applicants was discriminatory towards whites. The court was in favor of Allan Bakke due to the fact that the racial quotas used by the university were a violation of the Equal Protection clause under the 14th amendment, leading to the final decision of Bakke being admitted into the University of California, Davis School of Medicine. The precedent that this case had set was the variables considered during the admissions process of universities and how the racial quotas are a violation of said clause mentioned previously. It was seen as a violation, however race in itself can be factored into an application, but it must not outweigh the other characteristics and merit of a university application. This landmark case helped to highlight the true boundaries of the Equal Protection Clause and the definite decision of racial quotas being unconstitutional in admissions cycles by universities, in the eyes of the Supreme Court. With that precedent, this sparked court cases further down the road with the introduction of Grutter vs. Bollinger and Fisher vs. University of Texas. 26

NCC Staff, “When the Supreme Court First Ruled on Affirmative Action”, (June 26, 2021), https://constitutioncenter.org/blog/when-the-supreme-court-first-ruled-onaffirmative-action 27 Robert E. Knowlton, “Commentary: Regents of the University of California v. Bakke”, heinonline.com (last visited March 12, 2022).

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IV.

GRUTTER v. BOLLINGER

As discussed in the previous court case of Regents of the University of California vs. Bakke, the discussion of affirmative action in other universities became prominent as there had been precedent set-in place in terms of racial quotas being involved and them being unconstitutional in a sole use of a university’s admission cycle. The case of Grutter vs. Bollinger28, had been set in Michigan revolving around the University of Michigan Law School. In 1997, a white woman by the name of Barbara Grutter applied for admission to the University of Michigan Law School. Given her statistics with a 3.8 undergraduate GPA and an LSAT score of 161, she was ultimately denied admission, despite her statistics being significantly on par with those who get accepted into the University of Michigan Law School.29 The University of Michigan Law School had formally admitted to using race as a component of their overall applicant pool. However, unlike in the court case with Bakke and the University of California, Davis, Michigan Law School factored in race, along with the other holistic traits, during its admissions cycle. Even on their website, the school presents a continued bannered message that states, “At Michigan Law, we view our commitment to diversity, equity, and inclusion as central to our mission as an educational institution and we seek to ensure that each member of our community has full opportunity to thrive in our environment”30. Ultimately, the Supreme Court decision had rejected the district court’s finding that Michigan Law had violated the use of any racial quotas. Just two decades after the Regents of the University of California vs. Bakke court case, in a 5-4 opinion that was delivered by Justice Sandra Day O'Connor, the court made the ultimate ruling that the Equal Protection clause does not explicitly prohibit the Law School’s use of race in admissions to further their educational diversity. The Court took into consideration that 28

Oyez, “Grutter v. Bollinger”, https://www.oyez.org/cases/2002/02-241 (last visited March 12, 2022). 29 David L. Chambers, Terry K. Adams, “Who We Were and Who We Are: How Michigan Law Students Have Changed Since the 1950s: Findings from 40 Years of Alumni Surveys”, (2009), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1749&context=articles 30 “Diversity, Equity, and Inclusion”, https://michigan.law.umich.edu/student-life-andcommunity/diversity-equity-and-inclusion (last visited March 20, 2022).

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The University of Michigan Law accounts for all aspects of an applicant, not just race. The difference between Grutter and Bakke includes many factors, but the key distinction is that the University of California, Davis Medical School had already 16 slots out of 100 dedicated to minority applicants (use of racial quota). Not only does that go against the Equal Protection Clause31, but is solely focused on race when admitting those 16 students, without heavily considering other factors. In opposition to Bakke, “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants”32, the non-minority applicant being Barbara Grutter. It is important to consider all factors when admitting an applicant into a prestigious school and Law program, and perhaps the holistic review of personal statements had been what made other applicants stand out as opposed to Grutter, and not race. Despite Justice O'Connor's ruling, there had been other justices that had thought that the University’s “plus” system was an unconstitutional quota system. There had been evidence to depict that the number of minority applicants mirrored accepted applicants, stating how the statement of being racially diverse is a statement to up the ante and diversity depiction in the Law School. Chief Justice Rehnquist, Kennedy, Scalia, and Thomas had all dissented that the Court had failed to apply strict scrutiny, as opposed to Justice Powell’s decision during the Regents of the University of California, vs. Bakke. Nonetheless, Grutter was not admitted into the University of Michigan Law School and the Law School continues to pride itself on being progressive in the sense that they consider race, along with other factors, to make their program as diverse as possible.

“Citizenship Rights, Equal Protection, Apportionment, Civil War Debt”, https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv (last visited March 20, 2022). 32 Grutter v. Bollinger, Supreme Court of the United States, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2002/02-241.pdf (last visited March 20, 2022).

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FISHER v. THE UNIVERSITY OF TEXAS

In a more present-day scenario, a 2013 court case, Fisher vs. The University of Texas33 incorporated precedent from previous court cases such as Regents of the University of California vs. Bakke, to defy the stance on racial quotas in university admissions cycles. In 1997, the Texas legislature enacted a law that initially required the University of Texas to admit the top ten percent of high school seniors, ranked in their respective classes.34 This law brought out the discussion of whether or not this law is biased as minority students were not given a fair chance as statistics showed how the top ten percent of classes were not diversified. Given this, the University of Texas had decided to modify its race-neutral admissions policy that continued to admit students in the top ten percent of their class, however, the factor of race was included in the overall holistic review during the admissions process, whereas before the law, it was not. This case features Abigail N. Fisher, a white female who had applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, which made her compete in an applicant pool with more in-state students outside of the top ten. Ultimately, Fisher’s application was denied, and she filed a suit against the university, stating how they used racial quotas, a call back to Grutter vs. Bollinger. By filing a suit for the use of racial quotas by the University of Texas, this decision had brought out the precedent of the Equal Protection Clause of the fourteenth amendment. The question of the hour was whether or not a race-based affirmative action admissions policy at the University of Texas really violates the 14th Amendment Equal Protection Clause. The court with a 7-1 majority delivered by Justice Anthony M. Kennedy, the opinion that the government policy is unconstitutional and violates the 14th Amendment Equal Protection Clause. However, with an affirmation of the lower court, that the University’s admission policies had permitted the consideration of race in undergraduate admissions decisions,

Oyez, “Fisher v. University of Texas”, https://www.oyez.org/cases/2012/11-345 (last visited March 20, 2022). 34 Rute Pinhel, “Texas Top 10% Law”, (February 15, 2008), https://www.cga.ct.gov/2008/rpt/2008-R-0116.htm

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under a standard of strict scrutiny.35 Strict scrutiny is essentially a form of judicial review that the courts use to determine the “constitutionality” of laws.36 Thus, the University of Texas affirmative action policy did not violate the equal protection clause under the 14th amendment and is unconstitutional. The University of Texas had won, and Abigail Fisher lost, resulting in her initial rejection. Fisher did not get rejected due to affirmative action, but because she was not considered within the top ten percent of her graduating class. According to the statistics for the years that she applied to the University of Texas, about three-fourths of the spaces went to the top ten percent of students and automatically she was not eligible for that spot, Throughout the case, the University of Texas was put through a series of questions on their goals to compel the state interests. They ended up trying to promote cross-racial understanding as well as preparing their students to continue diversifying their narratives within the workforce. Their concept had not been the same as the racial quota discussed in previous cases which had caused them to win the case because they did not illegally admit students just based on race. They had used a highly holistic individualized review of each application that does not undergo a racial quota that can be seen in the University of California, Davis with Bakke back in 1973/1974. When reviewing the court’s final decision, the constitutionality of a public university’s affirmative action must be controlled through strict scrutiny and the goal that their educational motive is to ensure a diverse student body first, without the use of a racial quota. With this in mind, the topic of affirmative action oscillates as the university must withstand strict scrutiny if they continue to use affirmative action, and if they are true to their statement on abiding by the student body and its diversity. VI.

AFFIRMATIVE ACTION IN THE WORLD OF MODERN LAW

Without a shadow of a doubt, affirmative action will always benefit marginalized groups. It will always appear as if minorities are getting more opportunities solely on the basis of their race, but that has not always been the 35

Fisher v. University of Texas at Austin, Supreme Court of the United States, https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.PDF (last visited March 20, 2022). 36 Cornell Law School, “Strict Scrutiny”, https://www.law.cornell.edu/wex/strict_scrutiny (last visited March 20, 2022).

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case. Our social justice system today lacks what it is meant to serve. Equal economic opportunity. Equal political opportunity. Social rights. The role of universities and how social justice comes into play is when these universities are meant to provide higher education for everyone, no matter their race. For decades, the topic of affirmative action has brought a sufficient amount of challenges to universities and their admissions programs. Despite lawsuits from white applicants, to claims of reverse racism, our American institutions have been founded upon the idea that represses those of minority background and rejects the concept of equal opportunity. More recently, during the Trump administration (2016-2020), there was action taken to abandon the Obama administration policies that had universities considering race as a factor, otherwise properly referred to as affirmative action policies.37 The Education and Justice Departments had claimed that these policies were beyond the Constitution in itself. In regard to the Constitution, it is important to highlight that throughout these cases discussed, Regents of the University of California vs. Bakke, Grutter vs. Bollinger, and Fisher vs. The University of Texas, the precedent that was used for all three cases was the Equal Protection Clause of the fourteenth amendment. It states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law”38. The Equal Protection clause enabled states to practice equal protection.39 With this equal protection, the cases regarding affirmative action in opposition to the federal or state government were able to bring their lawsuit as a guaranteed right, given the Equal Protection clause. In addition to the Equal Protection Clause, the Title VI of the Civil Rights Act of 1964 was also considered a precedent when discussing cases that dealt with affirmative action. This Title VI prohibits discrimination on the basis of race, color, or national origin in any circumstance that involves Federal funds or Federal financial assistance.40 This is important when 37

Eric L. Green, Matt Apuzzo, Katie Bennter, “Trump officials Reverse Obama’s Policy on Affirmative Action in Schools”, (July 3, 2018), https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.PDF 38 Fourteenth Amendment, https://constitution.congress.gov/browse/amendment14/section-1/ (last visited March 20, 2022). 39 Cornell Law School, “Equal Protection”, https://www.law.cornell.edu/wex/equal_protection (last visited March 20, 2022). 40 Title VI of the Civil Rights Act of 1964, https://www.justice.gov/crt/fcs/TitleVIOverview (last visited March 20, 2022).

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discussing affirmative action since it takes place in a university setting. Attending college is a costly investment, and typically a reason why most underprivileged students, predominantly minorities, are more likely to not attend college in the first place. However, as time has progressed, there have been more efforts to provide these students with more financial opportunities such as taking out subsidized/unsubsidized loans and work-study programs. CONCLUSION The basis upon which affirmative action stood was initially meant to bring about equity and opportunity to underprivileged groups. As time progressed, however, the divide between those of different socioeconomic status in the United States became more visible, causing the discussion of affirmative action to deviate from its intent of closing that gap. Affirmative action, stemming from John F. Kennedy’s presidency, was a means to end discrimination within the workplace and on college campuses. The progression of racial discrimination throughout history has been ever progressing.41 There is still systemic inequality within the workplace and evidently within our very own universities as communities of color are undermined continuously.42 “Fairness” when it comes to this subject comes down to whether or not universities are implementing affirmative action in a way that is constitutional. Using the precedent that cases such as Fisher vs. The University of Texas has set forth, affirmative action can be implemented into college admissions cycles, based on intermediate scrutiny.43 Given the more recent years and the historical context of affirmative action, there have been propositions made specifically to disregard the affirmative action initiative. For example, California Proposition 209 has banned the use of affirmative action since

Pew Research Center, “Deep Divisions in Americans’ Views of Nation’s Racial History - and How To Address It”, (August 12, 2021), https://www.pewresearch.org/politics/2021/08/12/deep-divisions-in-americans-views-ofnations-racial-history-and-how-to-address-it/ 42 American Council on Education, “Enrollment in Undergraduate Education”, (2016), https://www.equityinhighered.org/indicators/enrollment-in-undergraduateeducation/race-and-ethnicity-of-u-s-undergraduates/ 43 Cornell Law School, “Intermediate Scrutiny”, https://www.law.cornell.edu/wex/intermediate_scrutiny (last visited March 20, 2022).

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1996.44 This proposition caused a domino effect for admissions to the University of California. Since the proposition was put into effect, the admissions rate for underrepresented minorities at the University of California, Berkeley has dropped significantly. The percentage of the number of applicants who were underrepresented minorities fell from 18.9% to 16.0% between three years after the California Proposition 209 was passed. This led to the admission rates for these underrepresented minorities dropping from 54.6% to 20.2% per the University of California statistics.45 These statistics demonstrate how affirmative action changed the narrative for minority students as they were able to have an opportunity if anything to attend a prestigious university. With the discourse around affirmative action and propositions put in place to derail it, the divide amongst racial and socioeconomic groups in the United States is accentuated as underserved minorities continue to face systemic issues. Affirmative action is and will continue to be a never-ending course of action to the inequity that minorities face as it evolves for less privileged groups in America.

BallotPedia, “California Proposition 209, Affirmative Action Initiative,” (1996), https://ballotpedia.org/California_Proposition_209,_Affirmative_Action_Initiative_(1996 ) 45 Respondents, “Brief of the President and the Chancellors of the University of California As Amici Curiae in Support of Respondents”, (November 2, 2015), https://universityofcalifornia.edu/sites/default/files/14981bsacThePresidentAndTheChancellorsOfTheUniversityOfCalifornia.pdf

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Considering Supreme Court Reform Damon Meggyesy Edited By Julia Drobish Damon Meggyesy is from Oakland, California and is a first year at UCSB. He was an Ignite Fellow for Teach for America and served as the Associated Student's Committee on Committees Outreach and Recruitment Coordinator during the 2021-2022 school year.

ABSTRACT As the highest court in the country, the Supreme Court has a massive influence on shaping laws that affect Americans across the country. From gun rights to abortion, the Supreme Court has the power to make lasting decisions on some of the most divisive issues facing the country. However, many believe the Supreme Court doesn’t reflect the values of the nation, and dissatisfaction with the court is on the rise. The increasingly conservative Court looks to be drifting further away from the values of young Americans and many fear the Court is losing influence and prestige. In order to address the multitude of problems plaguing the Court, serious reform must be considered to modernize the Court in order to ensure its longevity and protect its legitimacy. Serious proposals have been floated by both legal scholars and experts that seek to address the divisive appointment process, aging justices, and entrenched conservatory majority. Instead of proposing a reform, this article instead seeks to weigh the merits of a diverse range of proposals, offering an overview of potential reforms and situating them within a broader context. Through a discussion of many types of reforms, of varying scopes and focuses, the article attempts to highlight the

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most important changes necessary to modernize the Supreme Court for a new age. INTRODUCTION Supreme Court reform has entered the political sphere as a serious area of concern for many. Many Americans have begun to call for changes to the Court that has lost its credibility among the public.1 In response to this outcry for reform, President Biden created a presidential commission dedicated to reviewing Supreme Court reform. This commission published its findings in December of 2021 to little public attention. Since then, it feels as if the momentum and energy surrounding serious reforms has fizzled out. Despite this, Supreme Court reform remains necessary for its continued success and longevity. Like recent appointments, the upcoming appointment of the newest nominee, Ketanji Brown Jackson, is all but certain to be fraught with partisan fighting and division.2 This inevitable partisanship underlines the importance and lasting need for Supreme Court reform, bringing back legitimacy and perceived impartiality of the Court. While achieving meaningful reform is unlikely in our current divided political climate, this article seeks to explore a vast range of proposed changes for future implementation or further examination. This article will address both moderate and radical reform proposals. This article does not seek to advocate for one proposal but rather conducts an overview of the reform debate and explores past research and proposals by legal professionals. In doing

Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement, Pew Research Center (February 2, 2022), https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-courtturned-more-negative-before-news-of-breyers-retirement/. 2

Stephen Collinson, Another testy Supreme Court battle is the last thing America needs – but it’s probably what lies ahead, CNN (January 27, 2022, 5:46 AM EST), https://www.cnn.com/2022/01/27/politics/joe-biden-supreme-court-nomineefight/index.html.

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so, meaningful discussion and frameworks can be created and advanced in preparation for political circumstances when reform is more likely and more popular. Surveying a vast range of reforms also attempts to avoid overpoliticization within this article. While Court reform may be viewed as inherently liberal, introducing a wider range of proposals incorporates a variety of perspectives from across the political or legal spectrum. Proposals can be weighed by considering both the merits and challenges associated with them. Each solution should address a pressing issue facing the Court. Considering feasibility and public opinion can explore the likelihood of a proposal's future implementation. Each proposal should additionally strive to create balance and neutrality within the Court. This divorce of partisanship from the Court reinforces Americans’ trust and confidence in the Court, an essential component of its success. Lastly, attempting to weigh how the Court represents American values is important to each proposal. The Court should be able to adapt to the changing ideals and beliefs of the American people and should be a representation of the majority instead of a shrinking minority. In considering each proposal, it is also important to evaluate the challenges of implementation and the potential political blowback of each. How does each proposal affect judicial independence? Will proposals change the Court with each new administration? Will changes to the Court invoke a response from oppositional forces? Considering these hypotheticals can help paint a more detailed picture of each proposal and allow us to consider the repercussions of each. I.

COURT PACKING

One of the most commonly proposed and talked about reforms is the idea of “packing” the Supreme Court. In other words, adding additional justices to the current nine-member bench. These new justices would likely share the views of the party in power and could quickly swing the Court’s balance of power one way or the other. Court-packing is not a new idea. President 189

Franklin D. Roosevelt initially floated the idea to protect his New Deal legislation.3 While his proposal never reached Congress, it may have succeeded in applying political pressure to the Supreme Court. Today, Democrats have floated the proposal of court-packing to add more liberal justices to the Court. Many Democrats feel the Court does not reflect the values and opinions of the majority of Americans and believe basic rights such as access to voting, abortions, and healthcare are under attack.4 Additionally, the newest three justices, not including the recent hearings of Justice Jackson, have been appointed under extremely divisive circumstances.5 Justice Gorsuch was appointed after Senator Mitch McConnell prevented an Obama nominee from being confirmed, Justice Kavanaugh was appointed under allegations of sexual misconduct, and Justice Barrett was appointed against the dying wish of the late Justice Ginsburg, who wished the nomination to wait until after the upcoming 2020 election.6,7,8 The argument 3

FDR & The Court Packing Controversy: Full Script, Supreme Court Historical Society, https://supremecourthistory.org/schs-historical-documentaries/fdr-courtpackingcontroversy-full-script/. (last visited April 15, 2022). 4

The Associated Press, Abortion rights jump to a top priority for Democrats in a new poll, NPR (January 13, 2022, 1:55 AM EST), https://www.npr.org/2022/01/13/1072671395/abortion-rights-jumps-to-a-top-priority-fordemocrats-in-new-poll. 5

Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, The Washington Post (October 8, 2020), https://www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/. 6

Amita Kelly, McConnell: Blocking Supreme Court Nomination 'About A Principle, Not A Person', NPR (March 16, 2016, 12:31 PM EST), https://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-courtnomination-about-a-principle-not-a-person. 7

Terry Gross, Reporters Dig Into Justice Kavanaugh's Past, Allegations Of Misconduct Against Him, NPR (September 16, 2019, 3:29 PM EST), https://www.npr.org/2019/09/16/761191576/reporters-dig-into-justice-kavanaughs-pastallegations-of-misconduct-against-him. 8

Matthew Choi and Josh Gerstein, Ginsburg's wish: 'I will not be replaced until a new president is installed', Politico (September 18, 2020, 11:26 PM EDT), https://www.politico.com/news/2020/09/18/ginsburg-rbg-dying-wish-418108.

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follows that adding more justices would balance the Court and retroactively correct the past appointments. Packing the Supreme Court is not as difficult as one might assume. The Constitution does not explicitly outline the number of justices on the Supreme Court. Despite criticism of the plan as ignoring the current system of checks and balances, the Constitution gives Congress the power to determine the number of justices on the Court. Packing the Court would be relatively simple. Under current rules, a simple majority in the House, 60 votes in the Senate, and presidential approval would be all it would take to expand the Court. While currently, the Senate is split 50-50 among Democrats and Republicans, it is feasible that packing the Court could occur in the future. Despite low public confidence in the Court, a majority of Americans oppose court-packing. In a poll conducted by Mason-Dixon Polling and Strategy, one of the highest-ranked polling firms by FiveThirtyEight, 68 percent of Americans opposed any form of court-packing.9,10 Despite this public opposition, many view court-packing as one of the most effective proposals for returning the Court to equilibrium. Implementing court-packing would quickly shift the balance of power in the Supreme Court. Under the current administration, this would likely result in the appointing of liberal justices to oppose their conservative counterparts. With many accusing Republicans of attacking voting rights and restricting access to voting, this new alignment of the Court could potentially expand and solidify Democratic power. In his article for the Atlantic, Harvard Law professor Michael Klarman argues that expansion of the Court will serve

FiveThirtyEight’s Pollster Ratings, FiveThirtyEight (March 25, 2021, 8:00 AM), https://projects.fivethirtyeight.com/pollster-ratings/. 10

Kelly Shackelford, Americans agree: Court packing is dangerous, The Hill (April 25, 2021, 8:00 AM ET), https://thehill.com/opinion/judiciary/549966-americans-agree-courtpacking-is-dangerous/.

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to protect the basic infrastructure of American democracy.11 Klarman argues that “Unless Democrats expand the size of the Court… democratic reform will be doomed before it even begins” because the current Republican-leaning Court is likely to strike down such necessary reforms. Additionally, reforms and rights that the majority of Americans desire could be protected and expanded. The legality of abortions, the introduction of Medicare for all, more expansive climate change regulation, and controls on firearms would be feasible under a rebalanced Supreme Court.12 These issues are supported by the majority of Americans but are in jeopardy under the current makeup of the Supreme Court. If packing the Supreme Court was such a good option, why hasn’t it been passed? In addition to staunch Republican opposition, many worry about the negative repercussions of packing the Court. Many argue that packing the Court would only further politicize and delegitimize the Court in the public’s view. Additionally, a common criticism of court-packing is that it might solicit a similar response from Republican legislation and Congress, who might look to swing the Court in their favor.13 However, some have suggested that significant political changes may create a new political equilibrium instead of eliciting a response. In their article in the Yale Law Journal, Daniel Epps and Ganesh Sitaram suggest that liberal court-packing to introduce voter protection and anti-gerrymandering laws could introduce a “new progressive equilibrium.”14 Despite some optimism, it is equally possible that the Court’s balance could shift each election, destroying the political independence of the Court 11

Michael Klarman, The Democrats Last Chance to Save Democracy, The Atlantic (February 22, 2021), https://www.theatlantic.com/ideas/archive/2021/02/expandingcourt-now-or-never/618063/. 12 Lydia Saad, Americans Still Oppose Overturning Roe v. Wade, Gallup (June 9, 2021), https://news.gallup.com/poll/350804/americans-opposed-overturning-roe-wade.aspx. 13 Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, The Heritage Foundation (October 5, 2020), https://www.heritage.org/courts/commentary/why-court-packing-would-be-devastatingour-republic. 14 Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148 (October 2019).

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and essentially killing American democracy as we know it.15 No longer would there be an independent, neutral check on the legislature and president; instead, the Court would simply serve as an extension of the other two branches of government. II.

TERM LIMITS

Another commonly proposed reform for the Supreme Court is the introduction of term limits for the justices. Justices have increasingly served longer and longer terms throughout American history. From 1941 to 1971, justices served for an average of 12.2 years, while from 1971 to 2006, justices served an average term of 26.1 years - a nearly three-fold increase.16 This means that the American people have less input on who sits on the Supreme Court, with much less frequent vacancies, and has also resulted in the average age of a Supreme Court justice increasing. Older and older justices are deciding important issues who, despite their wealth of experience, are less in touch with younger Americans.17 The increasingly long terms of Supreme Court Justice have also resulted in increased politicization of the appointment process. Since nominations are far less frequent, their importance is magnified. This increased importance of nominations sparks political fights and controversy, damaging the prestige and legitimacy of the Court in the nation's eyes.18 No other developed democracy in the world has lifetime tenure for the judges of

Bruce Ledewitz, A Call for America’s Law Professors to Oppose Court-Packing, 2019 Pepp. Law. Rev. 1 (May 30, 2020). 16

Stephen G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harc. J.L. & Pub. Pol’y. (2006). 17 Stuart Taylor Jr., Life Tenure Is Too Long for Supreme Court Justices, The Atlantic (June 2005), https://www.theatlantic.com/magazine/archive/2005/06/life-tenure-is-toolong-for-supreme-court-justices/304134/. 18 Calbresi & Lindgren, at 813.

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their highest courts, and the vast majority of US states also avoid lifetime appointments.19 Supporters of the term limit suggest that it would de-politicize the Supreme Court appointing process, as openings on the Court would occur more frequently and ensure that Justices remain intellectually fit and in touch. Before joining the Court, Chief Justice Roberts said, “setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality… It would also provide a more regular and greater degree of turnover among the judges. Both developments would… be healthy ones”.20 Steven G. Calabresi and James Lindgren wrote one proposal garnering support. They propose an 18-year term limit for Supreme Court justices and draw from a proposal by Professor Philip Oliver from the University of Arkansas that would stagger vacancies every two years.21 Article III of the Constitution guarantees life tenure for Supreme Court Justices. It states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”22 Given this, most legal scholars agree it would be necessary to amend the Constitution to impose term limits upon the Court. A commonly proposed term limit is 18 years. This exceeds the average tenure that Justices have served over the lifetime of the Court but is far less than the incredibly long terms that modern-day justices serve.23 While 19

Sital Kalantry, Lessons from India on the issue of Supreme Court justice term limits, The Hill (April 20, 2021, 4:00 PM ET), https://thehill.com/opinion/judiciary/549263lessons-from-india-on-the-issue-of-supreme-court-justice-term-limits/. 20 Gwynn Guilford, 117 years of data show why today’s Supreme Court nominees have more influence than ever, Quartz (July 10, 2018), https://qz.com/1324841/brettkavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-avery-longtime/#:~:text=That%E2%80%99s%20about%20where%20it%20was,the%20court%20w as%20around%2053. 21

Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 Ohio St. L.J. 799 (1986). 22 U.S. CONST. art. III, § 1, cl. 2 23 Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 Ohio St. L.J. 799 (1986).

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constitutional amendments are inherently difficult, it is reasonable to imagine that a proposal for modernizing the Court with term limits could garner bipartisan support. Some legal scholars suggest that term limits should be applied to the existing justices as soon as the proposal passes, arguing that it is necessary to fix the Court immediately.24 However, it is likely that Republicans would be less willing to give up their current 6-3 majority immediately rather than phasing the majority out eventually. While a constitutional amendment is likely the most permanent and enforceable solution, some have argued that term limits are possible without amending the Constitution. The Senate could require potential nominees to pledge they will retire after their outlined term limit expires. Term limit pledges have existed, and there are pushes for pledges when legislation is impossible. The obvious flaw of this proposal is that Justices could easily renege on their commitments to retire. The Senate would have little recourse or enforcement methods other than impeachment. It has been suggested that asking judges to pledge to step down would damage judicial independence, and other judges might look down on those willing to make pledges just to secure a spot on the Court. Term limit reform might also come from within the Court itself. Internal rules outlining term limits could be created by the Court itself. Similar to pledges to the Senate, these rules would not be legally enforceable; however, internal pressure from other Justices or other methods of incentive/pressure could do the trick. Congress might aid this process by providing financial incentives for retiring, such as a large pension, or by reducing the number of legal aids for those who do not. Individual Justices could lead the way by selfimposing term limits, creating a tradition on the Court that might lead to more concrete rules in the future. Term limits are incredibly popular amongst the general public and seem to be popular amongst politicians on both sides of the political

Id.

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spectrum.25 In a 2020 poll conducted by PSB, 77% of Americans favored restrictions on Supreme Court Justices’ tenures, and a 2021 survey by the Marquette Law School found that 72% favored fixed terms over lifetime appointments.26,27 Support for the proposal cut across party lines and its widespread public approval makes term limits one of the most feasible reforms. Imposing term limits would help to create a younger, more accountable Court and would reinforce the Court’s legitimacy in the eyes of the public. As Justices have served longer and later into their lives, instances of mental decrepitude as well as the risk of serious injury or illness have increased dramatically.28 Term limits would force Justices to retire before the onset of mental decline and would help protect the Court from illness or injury, as younger Justices would largely be more resistant to injury and illness. Additionally, the American people would have more of a say in the Court's makeup and decisions. The Supreme Court is filled by the representatives of the people. Thus, more frequent retirements and confirmations give the public more opportunities to appoint justices who represent their ideals of legal philosophies. Lastly, by introducing more opportunities for appointments, it is plausible that the increased politicization surrounding the appointment of justices would dissipate, restoring the prestige and legitimacy of the Court. Each president would have two opportunities to appoint justices every two years, making each confirmation less important and contentious. In his article for the Harvard Journal of Law and Public Policy, Boston University Professor Farnsworth mounts a defense of the life tenure for Supreme Court Justices. Farnsworth attacks the proposal in three major ways. 25

Seung Min Kim & Robert Barnes, Supreme Court term limits are popular — and appear to be going nowhere, The Washington Post (December 28, 2021, 6:00 AM EST), https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/. 26 New Poll Shows SCOTUS Term Limits Still Popular Across Party Lines, Fix the Court (June 10, 2020), https://fixthecourt.com/2020/06/latest-scotus-term-limits-poll/. 27 Marquette Law School Supreme Court Poll November 1-10, 2021, Marquette University Law School Poll (Novemeber 2021), https://law.marquette.edu/poll/wpcontent/uploads/2021/11/MLSPSC05Toplines_CourtItems.html. 28 Roger C. Cramton & Paul D. Carrington, “A Rise in ‘Mental Decrepitude’ on the Court” in Reforming the Court 41, (2006).

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He notes that there will inevitably be a political loser from such a policy, making it inherently partisan, and thinks that who sits on the Supreme Court is not a priority for most voters.29 Farnsworth also looks to discredit the claims that the appointment process is especially partisan and divisive, a claim that has not aged particularly well since its publishing in 2006. One of the most important aspects of the Supreme Court is the idea of judicial independence. Justice’s life-long terms ensure they are free from political forces and public opinion. This principle is meant to allow justices to rule fairly and impartially, without the fear that their decision could potentially jeopardize their livelihood. Critics of term limits have argued that changes to this system can damage judicial independence and public confidence in the Court. However, proposals that guarantee long terms, lifetime salaries, and preclude judges from serving multiple terms, such as that outlined by Calabresi and Lindgren, effectively maintain judicial independence. Justices have nothing to gain or lose by pandering to politicians or the public, just as under the current system of life-long appointments. Supporters of life-long tenure have also cautioned that the Court's balance could easily be entirely swung by a single president.30 A two-term president would be able to nominate four justices to the Court and would have a large influence over its makeup. However, the assertion that a president might always be able to swing the Court is not rooted in historical fact. Some of the most liberal Justices on the Court were appointed by Republicans, while some of the most Conservative were appointed by conservatives. This makes it more likely for the Court to have a diverse range of voices, regardless of the president. Additionally, one could argue that it is beneficial for the American public, through the president, to be able to dictate the makeup of the Court. The president, in theory, represents the views of the majority of Americans and thus can create a Court that reflects American values at the time.

Ward Farnsworth, The Ideological Stakes of Eliminating Life Tenure, 29 Harv. J.L. & Pub. Pol'y. (2006). 30 Stephen G. Calabresi & James Lindgren at 845.

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Additional arguments against the proposal are that it might diminish the Court’s prestige and those retiring Justices might look to go out with a dramatic splash. Some argue that constant turnover in the Court might reduce its prestige. However, 18-year terms are still longer than the historical average, and the essential role of the Court remains unchanged, preserving its high status and prestige. Additionally, it is reasonable to assume that Justices retiring because of term limits would act similarly to those retiring under the current rules. Justices seem to act normally when retiring, and we haven’t seen Justices attempting to make large political statements before their retirement.31 III.

THE SUPREME COURT LOTTERY

Daniel Epps and Ganesh Sitaraman propose a so-called “Supreme Court Lottery” system in the Yale Law Journal.32 It draws from the proposal outlined by John O. McGinnis, Justice Without Justice. Much of the research and legal support for this proposal was conducted by Epps and Sitaraman. The Supreme Court Lottery would replace the current system of nine Supreme Court Justices with around 180 Justices who comprise the federal court of appeals. These 180 justices would make up the pool of potential justices of which a bench of 9 would be created, at random, to hear each case. To ensure a relatively balanced bench, the 9-judge bench would have no more than five justices appointed by a president of one party. In other words, out of the nine justices, a maximum of five could be appointed by either a Republican or Democratic president, ensuring some level of balance. The proposal suggests that panels would serve 2-week rotations, ensuring the Court is rotated often while making it impossible for lawyers to time their suits to target a specific bench over another. A 6-3 supermajority would be required to rule a federal statute unconstitutional.33 31

Id. at 849-851.

Daniel Epps & Ganesh Sitaraman Id. at 181-182.

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Under the current system, Justices are incentivized to time their retirements to ensure they are replaced by like-minded individuals, and a panel of 9 justices has a drastic influence over the lives of millions. Individual justices can impose their own legal or philosophical ideologies throughout their decades of service and often, a single swing vote can decide the outcome of cases. The lottery system looks to address these issues by randomizing the makeup of the Court. Epps and Sitaraman argue that their proposal could be implemented through statute instead of a constitutional amendment. Like expanding the Supreme Court, as discussed earlier, Justices could be added to the Court without changes to the Constitution. While some argue that the size of the Court is a settled norm, it is largely agreed upon that Congress has the power to expand the Court.34 Under the proposal, the Court would be expanded to 180 justices who would serve dually as “associate justices” of the Supreme Court as well as on the Federal Appeals Court. Epps and Sitaraman defend the constitutionality of their proposal from potential attacks. Firstly, they argue that the dual appointment of the Justices would be constitutional because Supreme Court Justices have served multiple posts in the past. Early Supreme Court justices traveled the country, hearing cases within their respective circuits.35 Article III of the Constitution implicitly notes that decisions are to be made by a simple majority. This may challenge the proposal’s requirement for a supermajority for deciding the outcome of federal statutes. However, supermajorities exist amongst state courts (Nebraska and North Dakota) without constitutional challenge, supporting the constitutionality of the proposal.36 34

Michael Stokes Paulsen, Checking the Court (2016). 10 NYU Journal of Law & Liberty 18 (2016), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 1608. 35

Early Supreme Court Justices Ride the Circuit, National Park Service, https://www.nps.gov/articles/000/riding-circuit.htm. (last visited April 15, 2022). 36 Daniel Epps & Ganesh Sitaraman at 192.

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The introduction of a lottery system to the Supreme Court would drastically shake up the makeup of an important American institution. The proposal would help reduce partisanship in the Court and encourage deference to the other branches of government. Partisanship in the Court can be reduced as the stakes of each nomination are drastically reduced.37 While it is plausible that nominations to the federal appeals courts would become more contentious due to their increased importance, it's logical to assume that each nomination would be much less politicized and contentious compared to the status quo. This benefits the Court by increasing the Court’s legitimacy by removing politics from the equation and might make the Court seem more impartial in the eyes of the public. Balancing the benches would ensure a relatively equal balance of power on each Court, and quick rotations of judges would prevent Justices from promoting their political agendas. Federal appeals court justices are more likely to defer to precedent or the other branches of government than Supreme Court Justices.38 With experience in the federal appeals courts and an expanded number of justices, justices might be less likely to develop popular followings and might be less willing to make legal splashes. The Court would hear fewer ideological cases, and less radical shifts would occur as the balance of power shifts.39 No one justice would be able to push forward a personal agenda or get overly involved in a specific case or issue. Critics of the proposal could challenge the constitutionality of such a proposal. Additionally, the plan does little to address issues of aging judges and might make individual Justices less accountable to the American public. Additionally, the Court would be less responsive to the voting swings of the public.

Id. at 184. John O. McGinnis, Justice Without Justices, University of Minnesota Law School Scholarship Repository (1999), https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1541&context=concomm. 39 Daniel Epps & Ganesh Sitaraman at 184. 38

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As life expectancy continues to rise, justices can continue to serve longer and longer terms. Mentally inadequate justices could face less scrutiny as members of a larger group. This could result in a gradual weakening of the pool of judges and undermine public confidence in the system. This issue might be addressed by introducing term limits, as discussed earlier, or a mandatory retirement age, a proposal that raises its own issues. With only nine Justices, one administration could dramatically influence the Court by appointing multiple justices. This power reflects the desire of the American people who voted the president in power, something that might become problematic given the rise of more restrictive voting laws in many states and allows the public to shape the Court. However, this might also be harmful. The proposal dilutes the power of the public and one president and makes the Court system more resistant to radical swings. This stability in the Court could benefit its public perception and its long-term viability in an increasingly divided time. IV.

THE BALANCED BENCH

In their article, Epps and Sitaraman outline another plan, the "balanced bench." The proposal would create a 15-judge Supreme Court comprised of five democratic justices, five republican justices, and five justices agreed upon unanimously by the ten party-appointed judges. The five visiting justices would serve one-year terms on the Court and are selected from a pool of federal judges. The balanced bench would make each appointment less important and divisive as both of the major parties are guaranteed five affiliated justices no matter the president.40 The proposal would guarantee a moderate bench and necessitate cooperation amongst the Republicans and Democrats. Without compromise between the ten politically affiliated justices, the Court can’t function. The proposal also attempts to restore the Court’s legitimacy in the eyes of the 40

Daniel Epps & Ganesh Sitaraman at 196.

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public. By balancing the Court, decisions won't be viewed as purely political as decisions aren’t based entirely on party affiliation. The Balanced Court proposal shares similar challenges to its constitutionality as the Supreme Court Lottery Proposal. As discussed earlier, a judge could likely serve on both the Supreme Court as well as a lower court at the same time. See the Supreme Court Lottery Section for more details. Another constitutional challenge rests upon the question of whether or not a partisan requirement can be imposed on the Supreme Court.41 Additionally, even if the proposal passes, who is to define political affiliation? What is to stop a judge from self-identifying as an independent or completely reversing their political label for the benefit of the party? Epps and Sitaraman give an example that illustrates this point, writing that in the early 2000s, two Republican members of Congress identified as Independents to fill seats on the US Commission of Civil Rights under George W. Bush.40 This allowed the Republicans to skirt quotas and rules concerning the number of party members on specific congressional committees. Even if the proposal was completely legal, it is hard to imagine widespread support in an increasingly divided nation. Both liberals and conservatives would likely have difficulty compromising their abilities to drastically shift US policy. A balanced bench would likely not outlaw abortion based upon precedent, an important issue for many on the right. On the other side, a balanced Court might be less likely to rule in favor of incredibly liberal policies such as a single-payer healthcare system. Creating a more politically balanced Court would make closer, more consensus-based decisions. Eric Segal, a law professor at Georgia State, argues for a completely balanced bench as it wouldn’t allow a group of five justices to push their ideologies over decades and would reduce the importance of a justice’s death or retirement to the political makeup of the Court.42 This 41

Id. at 203.

Eric J. Segall Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 Pepp. L. Rev. 547 (2018).

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theory was backed in reality. The Court’s October 2016 term, in which the Court was down a justice balancing it 4-4, saw the most consensus in over 70 years.43 The proposal would also drastically decrease partisan fighting surrounding appointments. As discussed in other sections, with either the expansion or balancing of the Court, the appointments become less consequential or pointless to fight over. This would benefit the Court with increased legitimacy in the public eye. Additionally, the proposal would favor moderate views of the law. Neither incredibly liberal nor conservative interpretations of the law would be viable as moderate justices would have the deciding votes on politically decisive issues. This is music to moderate ears but may seem like less good news to those who want to see either drastic liberal change or hold more conservative views. Introducing a rotating panel of neutral judges also lessens the celebrity status of being a Supreme Court justice. Ideally, these new justices would be relatively unknown and wouldn’t have time to develop cults of personality that surround many of today’s Justices.44 New Justices also introduce new opinions and perspectives to the Court that lifetime Supreme Court Justices might be lacking. Many proposals focus on divorcing politics from the Court; however, the Balance Court proposal does the opposite and makes politics a permanent fixture of the court. Many critics oppose introducing politics to the court of law and desire justices that are impartial and loyal to the law. However, in the current status quo, politics is no doubt baked into the Supreme Court. The Balanced Court proposal recognizes and addresses this issue as it is difficult or impossible to remove politics from today's Supreme Court completely. Another criticism of the proposal is that it does not respond to the political trends or changes in the nation. If, for example, the democratic party

43 44

Daniel Epps & Ganesh Sitaraman at 197. Id. at 195.

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wins the presidency for five terms in a row, shouldn’t the Court reflect the popular support for more liberal policies and justices? Epps and Sitaraman argue that even if one political party strings together multiple victories, the nation's politics may be incredibly close to 50/50.45 Additionally, the proposal might mitigate the effects of strict voting legislation that would disenfranchise or limit the ability of many to vote. The proposal would also allow the winning party to appoint justices to the federal appeals courts, the justices who make up the pool of non-party affiliated judges. Critics of the proposal point to its inability to respond to dramatic shifts in public sentiment. If the country rapidly becomes more liberal and a vast majority of people support, say, the implementation of a single-payer healthcare system, a balanced Court might prevent the Court from accurately representing the desire of the American people. This is similar to the issue discussed previously. CONCLUSION The current system of the Supreme Court is deeply infused with politics and is losing legitimacy in the eyes of the public. Without meaningful structural change, the Court will continue to suffer from its current ailments and will likely not recover organically. While there is no silver bullet that will solve all of its problems, there exists a multitude of well-developed proposals that would significantly modernize the Court and strengthen it for the future. Hopefully, a proposal or pieces of multiple proposals can garner widespread bipartisan support to ensure that the Court can continue its role in our democracy and in ensuring the rule of law in America. Without real change, even an optimist would find it difficult to be hopeful for the future of the Court.

Daniel Epps & Ganesh Sitaraman at 199.

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The United Arab Emirates: Evaluating the Potency of its Insolvency Regulations Alexander Lewis Edited by Gwen Ha Alex is a second-year student at UCSB majoring in Economics. Outside of the Pre-Law Society, he is a Financial Analyst for UCSB's Investment Advisory Committee and plans to pursue a career in corporate law after graduation. He is extremely grateful to be a part of UCSB's first Undergraduate Law Journal and would like to thank his editor, Gwen, for her continuous support.

ABSTRACT To the casual eye, Dubai is a tax haven for foreign investors and entrepreneurs alike, with individuals from all over the world flocking to the city for its ostentatious architecture and thriving business opportunities. Amidst the global financial crisis of 2008, this ‘new frontier’ image came to a halt when the world was made aware of Dubai’s massive debt issues. Unlike the neighboring state of Abu Dhabi, Dubai’s petroleum wealth is relatively scarce with much of its economy being based on commerce and services, hence the emirate is heavily dependent on foreign investment and tourism. As a consequence of this, financial matters are considered to be of the utmost importance, and foreigners are often imprisoned for minor debt issues, with penalties, such as late payments on a single bounced check carrying a jail sentence of up to 3 years. Moreover, if the incarcerated fail to pay off this debt by the end of their sentence, their prison conviction will be extended. In most countries debt is considered a civil matter, but the UAE’s dual legal system, founded upon civil and sharia law, treats unpaid debt as a remarkably grave crime. For decades, 205

this negative feedback loop has kept hundreds, if not thousands, of foreigners trapped within the prisons of Dubai, and yet this misuse of power has remained relatively unnoticed by the rest of the world. This paper will elucidate upon the insolvency dilemma of entrapped foreigners within the UAE through points of comparison between the Emirates’ judicial framework and that of the United States. It will introduce two federal statutes that were recently promulgated by the UAE and will argue that the loopholes and limitations within these regulations ultimately deem them completely inefficacious in protecting foreign investors. The article will also further examine the UAE’s relationship with Interpol in conjunction with the organization’s issuance of Red Notices, which are international arrest warrants, on behalf of the federation. The purpose of this paper is to further publicize the UAE’s mistreatment of debtors in an effort to continue bringing justice to those who have been wrongfully imprisoned. INTRODUCTION A. THE IMPRISONMENT OF RYAN CORNELIUS The 21st of May 2008 marks the collapse of Ryan Cornelius’ life, wherein a last-minute stop to Dubai on his flight home to Bahrain ensnared him within a perpetually vicious debt trap. As Cornelius exited the Dubai International Airport, he was met by three undercover police officers and thrown into a vehicle en route to Dubai’s police headquarters. In the aftermath of a lengthy interrogation and unaware of his purported crimes, Cornelius was thrown into a bare jail cell and deprived of all outside communication for the next ten days. Prior to his arrest, Cornelius was in the midst of a new business venture in Dubai, and as the second police interrogation revealed, he stood accused of fraud at the behest of the Dubai Islamic Bank (DIB) regarding the alleged misuse of his property business had borrowed. Consequently, Cornelius was convicted of fraud and sentenced to three years in prison. Entangled within the incredibly complex apparatus of the UAE legal system, Ryan Cornelius has 206

served 14 years in jail for what was originally a three-year sentence, and currently remains incarcerated in a maximum-security prison in Dubai. A combination of dire financial instability along with the COVID-19 pandemic has prevented Cornelius from seeing his wife or three children since February of 2019. His sentence having been extended twice already, Cornelius is, at present, expected to be released in 2040 at the age of 85.1 At 67 years old, he is desperately clinging to the hope of eventual release, however, given his diminishing health in conjunction with the UAE’s draconian legal system, there are obvious fears that Ryan Cornelius may never live as a free man again.2 B. THE INDEBTED CITY-STATE OF DUBAI Despite popular belief, Dubai’s economy is not dependent on oil as it contributes to less than 1% of the emirate’s GDP.3 The city-state actively thrives as a business and transportation hub with most of its wealth being generated from various revenue streams, such as the financial, tourist, and service industries. By shifting its attention to the tourist industry, Dubai effectively diversified its economy and has established itself as a luxurious oasis for foreigners. Its towering skyscrapers have caused wealthy tourists and social media moguls to flock to the city in large droves, and its “frontier mentality”4 has eventuated in an overwhelming expatriate majority that composes 85% of Dubai’s total population.5 In 2004, Dubai created the Dubai International

Isolde Walters, May Never See My Husband Again, Daily Mail (Jan. 28, 2022), https://www.dailymail.co.uk/news/article-10451575/Wife-British-businessman-lockedDubai-jail-die-prison-repay-millions.html 2 Matthew Valencia, Opinion, The Dubai Debt Trap, Economist (London), Dec. 15, 2021, at 3 Dubai Economy, Dubai.com, https://www.dubai.com/v/economy/ (last visited May 4, 2022) 4 Valencia, supra note 2 5 Dubai Population 2022, World Population Review, https://worldpopulationreview.com/world-cities/dubai-population (last visited May 4, 2022)

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Finance Center (DIFC) via UAE Federal Decree No. 35 of 2004,6 which transformed the emirate “into a commercial hub where service industries such as finance, property and tourism flourish”7. This free-trading zone paired with the UAE’s lack of income taxation8 has crafted a seemingly investor-friendly image and contributed to a massive consolidation of Westerners, such as the likes of Ryan Cornelius, to come in search of new lucrative business ventures. A caveat to this attractive open market is the prominence of illegal activities occurring at large due to a lack of governmental oversight, a shortcoming that was widely exposed during the 2008 Financial Crisis.9 The emergence of a worldwide financial plight revealed that Dubai owed approximately $59 billion worth of debt, a staggering amount that would have most likely resulted in collapse if not for the UAE’s capital, Abu Dhabi, stepping in to provide $20 billion worth of assistance.10 The calamity broadly unveiled Dubai’s shaky financial framework and high dependence on foreign investment, but more importantly, it resulted in a transformation of the city’s legislative system as evidenced by its tight crackdown on insolvency regulations. C. THE UAE’S LEGAL SYSTEM The UAE maintains a dual legal system based upon civil law with much of its underlying principles being drawn from Islamic Sharia and is notorious for its approach to financial matters, especially in the case of unpaid debt.11 Inspired by French and Egyptian civil laws, the UAE is a civil law jurisdiction with its 6

Laws & Regulations, Difc, https://www.difc.ae/business/laws-regulations/ (last visited May 4, 2022) 7 Valencia, supra note 2 8 Taxation, The United Arab Emirates’ Government Portal, https://u.ae/en/informationand-services/finance-and-investment/taxation (last visited May 4, 2022) 9 Valencia, supra note 2 10 The Economic Crisis in Dubai 2008, IvyPanda, https://ivypanda.com/essays/theeconomic-crisis-in-dubai-2008/ (last updated Oct. 16, 2019) 11 The Federal Judiciary, The United Arab Emirates’ Government Portal, https://u.ae/en/about-the-uae/the-uae-government/the-federaljudiciary#:~:text=The%20UAE%20adopts%20a%20dual,(the%20system%20of%20law) (last visited May 4, 2022)

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regulatory framework being built on strict codified statutes and mandates. This code-based law is implemented in bench trials within the UAE’s Sharia courts12, placing the accused under the jurisdiction of a single judge.13 The DIFC was able to overcome the strict nature of Sharia Law through Federal Law No. 8 of 2004, which created its own legal system and principles derived from English Common Law. The common law structure of the UAE emphasizes case law, and its utilization of juries allows for more flexibility than its civil counterpart, thus facilitating economic growth and providing legal support for foreign investors. Unfortunately, the majority of businesses in Dubai are subject to UAE federal jurisdiction- and the scrutinization of financial activity that comes with it- instead of DIFC regulations as they fall outside of the Financial Free Zone, which maintains remarkably strict qualification requirements that most corporations are incapable of fulfilling.14 As explained by the debt team at Detained in Dubai: “Unlike Western countries, the UAE treats debt as a criminal matter rather than a civil one. The result being that if a borrower is late with payments, they can be sentenced to jail for up to three years. However, the debt is not cleared because of this sentence, only the ‘criminal’ act of not paying it/the installments due. After the initial sentence, the debtor is freed for thirty days to allow them to arrange payment of the money due. If they do not have the money to pay, a civil case is then taken by the creditor, and the debt victim is sent back into jail indefinitely until the money is paid.”15

Id. Difference Between Common Law and Civil Law, Bin Eid, UAE Law Firm, https://bineidlawfirmuae.com/blog/difference-between-common-law-and-civillaw/#:~:text=The%20main%20difference%20between%20the,published%20judicial%20 opinion%20holds%20importance (last visited May 4, 2022) 14 Valencia, supra note 2 15 The Truth About Leaving a Debt Behind in Dubai, Detained in Dubai (Sept. 24, 2020), https://detained-in-dubai.prowly.com/104096-the-truth-about-leaving-a-debt-behind-indubai-nbsp 13

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This mechanism essentially places debtors in an incessant negative-feedback loop, leaving them entirely dependent on family and friends to bail them out. The UAE’s legal system has entrapped hundreds of Westerners like Ryan Cornelius in its inconspicuous laws. After serving three years in Dubai for fraud, Cornelius was sentenced to another ten years of imprisonment for “defrauding the state.” When his sentence concluded, he remained incarcerated for two more years for reasons unknown. Thereafter, he was convicted for an additional 20 years for failing to pay off his debt per Dubai’s Law 37, which had been imposed two years after Cornelius was initially accused of fraud, a retroactive act that is explicitly prohibited in the UAE’s Constitution. Since his arrest, Ryan Cornelius has “not once been allowed to address the judge during the more than 100 court sessions he attended in over ten years of hearings and appeals…” This article will attempt to engage with the UAE legal system at length to shed light on its insolvency regulations and how it compares to that of the United States’ legislative framework. Evidentiary support and analysis will commence in the introduction of two insolvency ordinances issued by the UAE: 1) UAE Bankruptcy Law No. 9 of 201616 and 2) UAE Federal DecreeLaw No. 14 of 2020.17 Further analysis will commence in the form of a comparison between the two legislations and US bankruptcy laws to emphasize how the UAE's insolvency statutes fail to adequately protect the rights of the individual. Additionally, this article will examine the role of Interpol Red Notices in connection to the international detention and arrest of persons by the UAE for matters regarding debt.

Federal Law by Decree No. (9) of 2016 on Bankruptcy, United Arab Emirates Ministry of Finance (Sep. 20, 2016), https://www.mof.gov.ae/en/lawsAndPolitics/govLaws/Documents/Bankruptcy%20law% 20in%20English%2004%20May%202017%20%28ready%20for%20publishing%29.pdf 17 Federal Decree Law No. (14) of 2020 Amending Certain Provisions of the Federal Law No. (18) of 1993 Concerning the Commercial Transaction Law, United Arab Emirates Ministry of Economy (Sep. 27, 2020), https://www.moj.gov.ae/assets/2020/Federal%20Decree%20Law%20No.%20(14)%20of %202020%20Concerning%20the%20Commercial%20Transaction%20Law.pdf.aspx

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I. UAE BANKRUPTCY LAW NO. 9 OF 2016 Since the exposure of its debt issues in 2008, Dubai has gone to great lengths to conduct damage control and re-establish its reputation as a pivotal hub for foreign investment. In 2016, the UAE acknowledged the shortcomings of its legal system and pledged to refine laws in an effort to safeguard the protection and safety of foreign investors and ensure the foreign flow of money into the state. Staying true to its word, UAE Federal Law by Decree No. 9 of 2016 (the ‘Bankruptcy Law’) came into force in December as an edict designed to “provide a legal framework to help distressed companies in the UAE to avoid bankruptcy and liquidation through different mechanisms,” including but not limited to “financial restructuring” and “the potential to secure new loans under terms set by the law.”18 On the surface, this decree appears to be a major step toward financial security and legal support within UAE legislation. By publicly recognizing the flaws and limitations of its legal framework, the UAE has shown a resolute will toward reform; thus, it has made significant progress in restoring its image abroad as one of the foremost locations for overseas investments and commercial undertakings. A. A MISGUIDED ATTEMPT AT REFORM: PROTECTION FOR COMPANIES RATHER THAN INDIVIDUALS

Nevertheless, upon further review of the legislation, it is difficult to ascertain the potency of the decree and largely calls into question its actual effectiveness. Given that the current framework pertaining to insolvency is primarily found across Commercial Transactions Law and Commercial Companies Law, the scope of UAE legislation to safeguard against debt is principally aimed at companies rather than the individuals who run them.19 The enactment of Decree No. 9 of 2016 has not amended this as the language directly states that 18

Law on Bankruptcy, The United Arab Emirates’ Government Portal, https://u.ae/en/information-and-services/finance-and-investment/taxation (last visited May 4, 2022) 19 supra note 15

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“the law does not apply to natural individuals,” rather, it strictly pertains to (i) companies governed by the Commercial Companies Law (Federal Law No 2. of 2015), (ii) companies that are partly or fully owned by the federal or the local government, (iii) companies and institutions established in free zones that are not governed by existing bankruptcy laws, (iv) individuals who are classified as a “trader” under the Commercial Transaction Law relating to commercial transactions and (v) civil companies.20 As described in portion (iii), this new legislation is not applicable to companies governed by existing bankruptcy laws, including but not limited to DIFC and the 3600+ companies under its scrutiny.21 In regard to section (iv), Article 23 of the Commercial Transaction Law explicitly states, “A non-national may not engage in trade in the State unless he has a partner or partners who are nationals of the State on the terms and within the limits provided for in the Commercial Companies Law.”22 Due to the broad nature of written legislation and an inability to translate Arabic texts, the extent of these terms and limits are not explicitly known but given that less than 11% of nationals make up the UAE’s population,23 it is safe to assume that the amount of Emirati businessmen collaborating with foreigners is a rather minute number. Hence, the majority of foreign individuals pursuing business ventures in the UAE are not classified as ‘traders’ under the new legislation and consequently, cannot be afforded the amended protections present in the decree. These limited protections, due to the narrow range of the edict, evade what is at the heart of the UAE’s

supra note 18 Dubai International Financial Centre, Difc, https://www.difc.ae/ (last visited May 4, 2022) 22 Federal Law No. (18) of 1993 Concerning the Commerical Transactions Law, THE UAE CODE OF COMMERCIAL PRACTICE (Sep. 7, 1993), https://ded.ae/ded_files/Files/%D8%A7%D9%84%D9%82%D9%88%D8%A7%D9%86 %D9%8A%D9%86%20%D9%88%D8%A7%D9%84%D8%AA%D8%B4%D8%B1%D 9%8A%D8%B9%D8%A7%D8%AA%20PDF/Federal_Law_(18)_1993_Concerning_Co mmercial_Transaction_Law.pdf 23 United Arab Emirates Population Statistics 2022, Global Media Insight, https://www.globalmediainsight.com/blog/uae-population-statistics/ (last visited May 4, 2022) 21

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insolvency problems as it continues to sustain the abandonment of insolvent individuals to the hands of the UAE criminal system and its draconian tactics. B. THE US BANKRUPTCY REFORM ACT OF 1978 To better understand the limitations of UAE Federal Law by Decree No. 9 of 2016, it can be compared to that of the United States’ bankruptcy legislation, which while not perfect, provides a much wider range of protections for individuals regarding insolvency issues. Bankruptcy refers to “a legal proceeding involving a person or business that is unable to repay their outstanding debts,”24 and has been a prevalent aspect of US legislation since the colonial era. Article 1, Section 8, Clause 4 of the US Constitution states that Congress shall have the power to enact “uniform laws on the subject of bankruptcies throughout the United States.”25 In the 19th and 20th centuries, Congress followed suit with a number of short-lived bankruptcy laws that ultimately failed as they lacked uniformity and impartiality between creditors and debtors.26 The Bankruptcy Reform Act of 1978 amended these issues through the establishment of a uniform federal law that oversaw all bankruptcy cases in the US. This federal legislation, codified as Title 11 of the United States Code, delineated the proper insolvency legal procedures and treatment of bankrupt individuals that we see today.27 It created a framework for honest debtors to repay their dues and start anew with a clean slate, rather than being forced to 24

Alicia Tuovila, Bankruptcy, Investopedia, https://www.investopedia.com/terms/b/bankruptcy.asp#:~:text=Bankruptcy%20is%20a% 20legal%20proceeding,creditors%2C%20which%20is%20less%20common. (last updated Nov. 15, 2021) 25 U.S. Const. art. 1, § 8, cl. 4 (Constitution Annotated through ) 26 US Bankruptcy Code, Corporate Finance Institute, https://corporatefinanceinstitute.com/resources/knowledge/other/us-bankruptcycode/#:~:text=History%20of%20the%20US%20Bankruptcy,was%20later%20repealed% 20in%201878. (last visited May 4, 2022) 27 Process- Bankruptcy Basics, United States Courts, https://www.uscourts.gov/servicesforms/bankruptcy/bankruptcy-basics/process-bankruptcy-basics (last visited May 4, 2022)

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conceal their accumulated debt out of fear of imprisonment. Chapters 7, 11, 12, 13, and 15 of Title 11 provides crucial information to insolvent individuals concerning common types of bankruptcy cases. The scope of these five chapters cover: 1) liquidation of a debtor’s property, 2) reorganization of a corporation or partnership, 3) adjustment of debts for a “family farmer” or “family fisherman,” 4) individual debt adjustment, and 5) ancillary and other cross-border cases, respectively.28 These diverse options support the varying and unique needs of debtors in the United States, with Chapters 7 and 13 being, by far, the most common forms of bankruptcy filed. Those who file for Chapter 7 are required to liquidate their wealth to creditors if their assets cross the legal threshold requirement. That being said, approximately 95% of debtors in this situation do not meet the asset requirements and will not be compelled to relinquish their property. Additionally, 96% of debtors who file bankruptcy with respect to Chapter 7 receive a full discharge of their unsecured debts. Indebted individuals under the scrutiny of Chapter 13 are permitted to form a repayment plan with their creditors based on their own income, and approximately 40% of debtors receive a discharge of their debts.29 Both cases provide insolvent individuals with a near-assurance of financial security and, in most instances, a guarantee of debt relief. There are, of course, repercussions that come with declaring bankruptcy, with the primary example being a greatly diminished credit score. However, a dropped credit is still a significantly more favorable outcome than imprisonment or a complete seizure of all assets. The most significant aspect of the US Bankruptcy Code in comparison to that of the UAE’s insolvency regulations is its universality and impartiality. Section 109(a) states that any “person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor 28

Id. Paul Kiel, Bankruptcy: What’s the Difference Between Chapter 7 and Chapter 13?, ProPublica (Sept. 27, 2017), https://www.propublica.org/article/bankruptcy-differencefiling-chapter-7-13success#:~:text=About%2096%20percent%20of%20debtors,a%20discharge%20of%20th eir%20debts 29

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under this title.”30 The US regulation code is a blanket statement that encompasses all individuals residing in the country and as such, foreigners and undocumented individuals are eligible to file for bankruptcy even if they lack proof of a permanent residency. II. UAE FEDERAL DECREE-LAW NO. 14 OF 2020 At the heart of the UAE’s insolvency problem is its treatment of debt as a criminal matter.31 Disregarding circumstances, if a check bounces as a result of insufficient funds or a false signature, the debtor will be held liable for fines or criminal punishments. As stated in Article 401 of the UAE Penal Code, debtors will “be sentenced to detention or to a fine, whoever draws in bad faith a cheque without sufficient funds or who, after giving the cheque withdraws all or part of the funds, so that the remaining balance is insufficient to cover the amount of the cheque, or gives an order to the drawee to stop payment, or if he deliberately writes or signs the cheque in such a manner as to make it nonpayable.”32 Furthermore, Article 641 of the UAE Commercial Transactions Law (UAE Federal Law No. 18 of 1993) states that “A fine or imprisonment shall be imposed on anyone who has committed one of the following acts: 1) Deliberately and falsely claiming that there is no consideration for a cheque or that the consideration is less than the amount payable on the cheque. 2) Refusing, in bad faith, payment of a cheque drawn on a bank to a bearer against whom no valid countermand has been issued, despite the existence of the consideration for the check.”33 If a debt is not paid in full, debtors are 30

Who May Be a Debtor, 11 U.S.C. § 109 (Cornell Law School, Legal Information Institute through 2022) (effective Nov. 6, 1978) 31 supra note 15 32 UAE Penal Code, Abu Dhabi Judicial Department (2011), https://cdn.expatwoman.com/s3fs-public/UAE%20Penal%20Code.pdf 33 Federal Law No. (18) of 1993 Concerning the Commerical Transactions Law, THE UAE CODE OF COMMERCIAL PRACTICE (Sep. 7, 1993), https://ded.ae/ded_files/Files/%D8%A7%D9%84%D9%82%D9%88%D8%A7%D9%86 %D9%8A%D9%86%20%D9%88%D8%A7%D9%84%D8%AA%D8%B4%D8%B1%D 9%8A%D8%B9%D8%A7%D8%AA%20PDF/Federal_Law_(18)_1993_Concerning_Co mmercial_Transaction_Law.pdf

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viewed as criminals in the eyes of the UAE justice system and are subject to criminal punishment. As stated by a legal consulting firm, “The UAE laws are drafted in such a way to protect the interests of the beneficiaries of the cheques and imposes strict criminal charges as well as civil actions against those who offer cheques with insufficient balance. At the point when the cheque is dishonored, the payee is legally entitled to lodge a criminal complaint as well as a civil case in order to ensure punishment to the defaulter while getting their money back. In this way, the creditors are very much protected under the law.”34 Beyond its disproportionate effect on borrowers, this legislation further harms the economy as it signals a lack of faith in investments, which ultimately dampens the UAE’s market activity. A. THE UAE’S MISLEADING LEGISLATION In an attempt to protect the interests of investors and bolster its economy in 2020, the UAE promulgated Federal Decree Law No. 14 to amend Certain Provisions of the Federal Law No. 18 of 1993 Concerning the Commercial Transaction Law. The ‘Decree’ amends Articles 600, 641, 642, 643, and 644 of the current UAE Commercial Transaction Law. Additionally, it removes Articles no. 401, 402, and 403 from the UAE Penal Code, and consequently decriminalizes the failure to recompense a check.35 Arguably, the amendment is most noteworthy for implementing a requirement that compels banks to accept partial payment of a check if the debtor does not have the ability to pay the value in full. Although the provision had already been instituted as part of Article 617 of the Commercial Transaction Law, it was never made a

Tony Maalouli, Bounced Cheque and Its Legal Consequences in the UAE, ProConsult, https://uaeahead.com/bounced-cheque-and-its-legal-consequences-in-the-uae/ (last visited May 4, 2022) 35 Mohamed Abdelrehiem & Mostafa Emad, Bounced Cheques for Insufficient Funds Is No Longer a Crime in the UAE, International Financial Law Review (May 10, 2021), https://www.iflr.com/article/b1rpvttmqwy8vl/bounced-cheques-for-insufficient-funds-isno-longer-a-crime-in-the-uae

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requirement and was therefore largely ignored by the banks.36 To resolve this issue, Article 641 of the new 2020 Decree states that anyone who “reject[s] partial payment of the cheque value, issuing a certificate to this effect, or giving back the origin of the cheque as per the provisions stipulated in (2) of Article (617) of this Law ... shall be subject to a penalty of no less than 10% of the cheque value, subject to the minimum of AED 5,000 (AED Five Thousand), and no more than twice the cheque value.”37 Nevertheless, the new Decree includes a number of loopholes. As stated by Abu Dhabi litigation firm Al Tamimi & Co., “The newly introduced provisions treat the insufficient funds’ notice of the drawee as a writ of execution according to the executive regulations of the Civil Procedure Law.”38 This preserves the legal rights of the check’s beneficiary and permits them to use the insufficient check as a civil executive deed, which in turn, gives them the right to open a civil case against the debtor in accordance with UAE Civil Procedure Law. A direct result of this can be the seizure of assets or other possessions up to the value of the unpaid check-an inevitable financial catastrophe for the debtor. In most cases, debtors do not have the viable assets necessary to pay for the debt in full and are often sentenced to a jail term that is not absolved until the debt has been paid off. Despite the decriminalization of debt, a creditor still possesses the right to open a civil case against the debtor, and accordingly authorizes the court system to imprison individuals who fail to successfully pay off their debt.39 As in the case of Ryan Cornelius, 36

Mohamed Al Marzouqi, Criminal Penalties for Dishonoured Cheques After Legislation Is Repealed in UAE, Al Tamimi & Co., https://www.tamimi.com/law-updatearticles/criminal-penalties-for-dishonoured-cheques-after-legislation-is-repealed-in-uae/ (last visited May 4, 2022) 37 Federal Decree Law No. (14) of 2020 Amending Certain Provisions of the Federal Law No. (18) of 1993 Concerning the Commercial Transaction Law, United Arab Emirates Ministry of Economy (Sep. 27, 2020), https://www.moj.gov.ae/assets/2020/Federal%20Decree%20Law%20No.%20(14)%20of %202020%20Concerning%20the%20Commercial%20Transaction%20Law.pdf.aspx 38 Marzouqi, supra note 36 39 Ali Al Shouk, Bounced Cheque Cases Don’t End with Prison Term or a Fine in UAE, Top Dubai Judge Clarifies, Gulf News (Aug. 14, 2019), https://gulfnews.com/uae/bounced-cheque-cases-dont-end-with-prison-term-or-a-fine-inuae-top-dubai-judge-clarifies-1.65591285

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imprisoned debtors often have their assets frozen and are issued travel bans, hence trapping them in their predicament. In sum, Federal Decree-Law No. 14 is a piece of legislation that misleads foreign investors into believing their investment in the UAE comes with little risk. The creditor’s ability to take civil action against the debtor completely undermines the potency of the debt decriminalization regulation and leaves the insolvency dilemma of the UAE still without a clear solution. B. PROTECTIONS FOR INSOLVENT INDIVIDUALS IN THE UNITED STATES

The US equivalent to the UAE’s ‘Decree’ is found within Chapter 127 of the United States Code, codified as Title 28 US Code 2007 states that a) “A person shall not be imprisoned for debt on a writ of execution or other process issued from a court of the United States in any State wherein imprisonment for debt has been abolished,” and b) “Any person arrested or imprisoned in any State on a writ of execution or other process issued from any court of the United States in a civil action shall have the same jail privileges and be governed by the same regulations as persons confined in like cases on process issued from the courts of such State.”40 Individuals in the US cannot be imprisoned for simply being insolvent. However, similar to the UAE, creditors can still open a civil case against debtors for failing to pay off their debt. That being said, during the span of a case, the Fair Debt Collection Practices Act of 1977 protects debtors from unnecessary harassment and communication from a creditor.41 Creditors must accurately state the correct amount and due date of the debt and are prohibited from threatening to seize assets or collect more than what the debtor originally owed.42 Under the Sixth Amendment of the US 40

Imprisonment for Debt, 28 U.S.C. § 2007 (Legal Information Institute through 2022) (effective Feb. 1, 2010) 41 Federal Trade Commission Fair Debt Collection Practices Act, X C.F.R. § 2092 (2010) 42 Sean Pyles, 5 Ways the Fair Debt Collection Practices Act Protects You, Nerdwallet (Nov. 30, 2021), https://www.nerdwallet.com/article/finance/fair-debt-collectionpractices-act

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Constitution, accused debtors have the right to an attorney, “a speedy and public trial,” and “to be informed of the nature and cause of the accusation.”43 In contrast, the trials and creditor-debtor relationships within the UAE are rife with corruption and partiality. Drawing upon Ryan Cornelius’ case, throughout the duration of UAE capital trials, “the prosecuting lawyer often sits next to the judge on the bench. Foreigners on trial have observed discussions between prosecutor and judge in which the former appeared to be giving instructions to the latter. Defendants are often blocked from giving evidence. Cornelius has not once been allowed to address the judge during the more than 100 court sessions he attended in over ten years of hearings and appeals since his arrest. He often struggled to understand what was going on because of poor translation.”44 Predictably, a deception of information from creditors combined with these Machiavellian court maneuvers will often result in one-sided verdicts that leave the accused ensnared in an indefinite entrapment. Owing to the Bankruptcy Reform Act of 1978 and a multitude of individual protections, debtors in the US are very rarely imprisoned for unpaid debt. Nevertheless, if a debtor is ever imprisoned for failing to act in accordance with a court order, the aforementioned federal statutes grant the individual a number of rights that are largely neglected in the UAE. Furthermore, the US Supreme Court case Williams v. Illinois (1970) held that the State “may not under the Equal Protection Clause subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.”45 Moreover, legislation protecting the rights of debtors in the United States is woven into the very foundation and heart of the nation, whereas in the UAE the laws are relatively modern. The United States Constitution, which protects the rights of debtors and the accused, created the basis of US insolvency legislation in 1787 and has been an integral component of the 43

U.S. Const. amend. 6 (Legal Information Institute through ) Valencia, supra note 2 45 Williams v. Illinois, 399 235 (1970) 44

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nation’s progression. Issued in 1948 and still in effect to this very day, Statute 28 US Code 2007 ensured that all debtors were entitled to their deserved rights and liberties. Conversely, the only major legal reforms proposed by the UAE concerning debt correspond to UAE Bankruptcy Law No. 9 and UAE Federal Decree Law No. 14, which were announced in 2016 and 2020 respectively. Since the legislations are fairly recent, the UAE’s legal framework will take years to fully adapt to this new legislation, and those who were accused before the first law went into effect in 2016, such as the likes of Ryan Cornelius, remain unjustly imprisoned. III. INTERPOL RED NOTICES The International Criminal Police Organization, commonly referred to as Interpol, is an intergovernmental organization operating on a global scale through the management of police databases, investigative support, and the facilitation of police cooperation. 46Although the organization does not possess any legal authority to make arrests, Interpol is commonly known for its issuance of Red Notices- “a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.”47 Red Notices contain the information necessary to identify a fugitive (name, date of birth, nationality, etc.), as well as information concerning the crime they have committed (armed robbery, murder, rape, etc.). Article 83 of Interpol’s Rules on the Processing of Data (RPD) provides the specific conditions required for a publication of Red Notices, stating “Red notices may be published only if the offense concerned is a serious ordinarylaw crime.”48 Furthermore, Interpol demands that “Red notices may be

What Is INTERPOL?, Interpol, https://www.interpol.int/en/Who-we-are/What-isINTERPOL (last visited May 4, 2022) 47 View Red Notices, Interpol, https://www.interpol.int/en/How-we-work/Notices/ViewRed-Notices (last visited May 4, 2022) 48 INTERPOL, INTERPOL’s Rules on the Processing of Data, C.F.R. § 83 (2019)

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published only when sufficient judicial data has been provided.”49 This judicial data will be considered sufficient if and only if it includes at least: (i) a summary of the facts of the case, which shall provide a succinct and clear description of the criminal activities of the wanted person, including the time and location of the alleged criminal activity; and (ii) charge(s); and (iii) law(s) covering the offense… Furthermore, “to seek to prevent Interpol mechanisms from being used for minor offenses, if an individual is sought for prosecution, the conduct must be punishable by a maximum deprivation of liberty of at least two years.”50 Under this jurisdiction, Interpol does not have the authority to chase unpaid debts. However, the UAE bypasses this mandate by “illegally reclassifying the debt as ‘fraud.”.51 Public officials have begun to recognize this practice, such as former British director of public prosecutions, Sir David Calvert-Smith, who “flagged the UAE’s abuse of red notices and its ‘undue influence’ over Interpol.”52 Nevertheless, neither the UAE nor Interpol have commented on these accusations. IV. CONCLUSION This article seeks to accentuate the insolvency conundrum found within the UAE’s convoluted legislative and judicial framework. It introduces two UAE regulatory statutes, Bankruptcy Law No. 9 of 2016 and Federal Decree-Law No. 14 of 2020 and provides evidentiary analysis to undermine these statutes’ potency and effectiveness. Furthermore, it scrutinizes the role of Interpol Red Notices in relation to the international detention of insolvent individuals by the UAE. The impetus of this article is to convey why the UAE’s treatment of individuals in debt is a matter that must be addressed. In a disregard for the sanctity of human rights, the UAE has continued to trap individuals, like Ryan Cornelius, within the inextricable entanglement that is its judicial system. Due 49

Id. Id. 51 supra note 15 52 Valencia, supra note 2 50

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to the inconspicuousness of the issue, the UAE is able to maintain this practice with very little resistance from abroad. If there is any hope of freeing those who have been convicted under the UAE’s insolvency legislation, foreign countries, such as Britain and the United States must openly warn their citizens of the risks that investing in Dubai entails and publicly denounce the UAE’s corruption. Given its dependence on foreign investment, the UAE is an extremely PR-conscious country53 that responds rapidly to any negative publicity that has the potential of damaging its “frontier” image. Therefore, its maltreatment of debtors will only be addressed when financial growth is hindered. Henceforth, until the unthinkable occurs, the UAE’s austere insolvency regulations will proceed in an unobstructed fashion and innocent individuals will continue to be ensnared within a web of deceit and abuse.

Valencia, supra note 2

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The Lack of Action Following the United Nations Declaration of the Rights of Indigenous Peoples Alyssa Rodriguez By Sofia Carigma Coming from Los Angeles, California, Alyssa Rodriguez is a third-year International and Global Studies student of indigenous heritage. She held the position of Outreach Coordinator on the UCSB Pre-Law Society board for the 2021-2022 school year and is also a general member of the Legal Education Association for Diversity. After completing her time as an undergraduate, she hopes to go to law school to become a legal professional in the fields of international and indigenous law.

ABSTRACT From its colonial foundations, indigenous law revolved around restricting indigenous people’s access to their human rights, ultimately cultivating an international culture of violence and disregard in relation to indigenous peoples’ presence. Nevertheless, monumental milestones such as the United Nations Declaration on the Rights of Indigenous People (UNDRIP)1 laid essential foundations for the pro-indigenous framework evoked in the protection of their rights. However, its non-legally binding nature confirms the declaration’s framework as little more than a strong suggestion. As a result, states are delivering a facade of pro-indigenous legislature pretending to be a part of the indigenous rights movement whilst taking no form of action following the passing of legislation to support indigenous communities. By doing this, they actively allow for the continuation of genocide, as seen in nationwide epidemics of missing and murdered indigenous women, cases concerning the forced removal of indigenous children in adoption systems, and the general lack of 1

General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (Oct.2, 2007).

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inaction that sustains the high rates of violence facing Indigenous women worldwide. In examining various states with distinct populations of indigenous people, the evidence reveals that despite nations ratifying the UNDRIP, there are virtually no authoritative bodies actively ordering the international community to deliver on their promises. Such is confirmed in the case studies analyzing government policies in the United States, Mexico, and Australia. The continuation of genocide against indigenous peoples most benefits the capitalist class, as they benefit from exploiting the natural resources that indigenous people protect, sacrificing their right to their ancestral environment for the elite class’ capitalistic agenda. The degradation of this elite capital class is achievable only through a global movement away from capitalism and a fundamental realization of the value of human rights simply to pursue humanity. The continuation of capitalism’s domination over the protection of fundamental human rights will inevitably lead to the genocide of Indigenous peoples globally. In response to the urgency of the indigenous humanitarian situation, it requires the international community to introduce a declaration modeled on the UNDRIP but with a clause to legally bind states to ensure respect for the indigenous communities' human rights. INTRODUCTION: A HISTORICAL OVERVIEW OF THE FIELD OF INDIGENOUS LAW

Since the moment colonists stepped foot on lands inhabited by native peoples, their distinct inhumane behaviors and ideologies forever diverted the path of legal processes. Within the legal field, the horrific treatment of Indigenous people through the federal implementation of legislation designed to oppress native communities functioned as a tool to actively continue the genocide of native populations. The discriminatory culture of post-colonial states is visible in cases such as Oliphant v Suquamish (1978)2 and Alberta (Aboriginal Affairs and Northern Development) v. Cunningham (2011)3, Indian Boarding School Policy4, and the unknown status of the Indian Child Welfare Act5. Antiindigenous policies and legislation pushed native communities into the 2

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, CA. No. 33340 (2011). 4 Civilization Fund Act, Pub.L. No. 15–85, 3 Stat. 516b. 1819. 5 25 U.S.C. § 1901-1963 (1978). 3

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involuntary experience of long-term violence. Ultimately, it manifests today through national epidemics, the threat of cultural genocide through native children’s forced removal, and the targeting of indigenous environmental activists. International law has acknowledged the prosecution of indigenous peoples due to prejudice and capitalistic interest by creating legislation incriminating those who would attempt to violate their human and indigenous rights. Adopted by the United Nations in 2007, the United Nations Declarations on the Rights of Indigenous Peoples, known as UNDRIP, is an international document that is not legally binding but can be called upon legally once states endorse the declaration in their home country. The declaration lays the framework to guarantee land, cultural, and civil rights to indigenous communities worldwide and aid them in achieving their autonomy. The United States chose not to endorse the declaration, although they preached support to save their political reputation. However, many states with significant indigenous populations and a history of racism supported the declaration, despite their previously opposing stance; Australia in 2009, New Zealand in 2010, and Canada in 2021. The United States remains the only state opposing the declaration. Nevertheless, the declaration marks a milestone in international indigenous rights law. Following the endorsement, a case in Australia embodies the articles outlining genocide, effectively highlighting the gravity of cultural genocide. In the case, Nulyarimma v Thompson6, an aboriginal woman sought justice for her forced removal from her indigenous family, specifically for placing her into a European-descended household to assimilate her into a nonindigenous culture. Due to the lack of identification of the mens rea, or in this case, the intention to commit cultural genocide, the federal court was unable to find the defendant guilty of genocide. Still, the calling upon and implementation of the articles stated in UNDRIP highlight a growing global awareness of the hostile situations many indigenous people endure, shedding light on a glimpse of hope for the future of international indigenous law enforcement. I.

THE STATE OF MODERN INDIGENOUS LAW

Nulyarimma v Thompson, FCA 1192 FCA [1999] (Austrl.).

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Today's primary concern of indigenous legislation revolves around undoing previously discriminatory policies and the crises they created. In Mexico, additional legislation was passed to distinguish autonomy and selfdetermination of their native reservations, known as Pueblos Originarios. Additionally, legislation passed to protect indigenous fashion designs, and recognize the identification of Afro-Indigenous peoples7. In Brazil, indigenous activists are actively protesting the passing of anti-indigenous legislation that would permit the destruction of the native people’s land for the exploitation of natural resources8. In the United States, politicians reacted to this global shift towards self-awareness by removing racist policies. The Harvard Law Review highlights a bill in the process, which hopes to implement the Truth and Healing Commission9 on Indian Boarding School Policy, to document and share the historical records and human experiences of indigenous peoples forced to enter Residential Boarding Schools. These same boarding schools faced exposure for harboring thousands of indigenous remains in mass graves. The policy also recognized the frequent violation of human rights in these spaces and identified the federal boarding school policy as cultural genocide. Additionally, the commission calls for federal reparations in access to healthcare and educational opportunities to heal the deeply rooted intergenerational trauma established by the schools. The United States failed to provide these reparations, despite its northern neighbor giving approximately 1.9 billion dollars to reparations in indigenous communities. The largest effort the Native American community experienced from the federal government came in the form of an apology; on December 19, 2010, the United States federal government created the Native American Apology Resolution.10 The resolution apologizes on behalf of the entirety of the nation to the native 7

The National Law Review, New General Law for The Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities in Mexico, (July 27, 2022). https://www.natlawreview.com/article/new-general-law-protection-cultural-heritageindigenous-and-afro-mexican-peoples-and 8 Human Rights Watch, Brazil: Reject Anti-Indigenous Rights Bill, (August 24, 2021 3:33PM EDT), https://www.hrw.org/news/2021/08/24/brazil-reject-anti-indigenousrights-bill 9 Truth and Healing Commission on Indian Boarding School Policies Act, S.2907 (117th), U.S. (2021). 10 Harvard Law Review, Recent legislation: Truth and Healing Commission on Indian Boarding School Policy Act (Nov. 21, 2020), https://blog.harvardlawreview.org/recentlegislation-truth-and-healing-commission-on-indian-boarding-school-policy-act/

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community by acknowledging the historical actors that perpetrated violence and the continued neglect that sustains said violence. Nevertheless, the apology provides no action or plans to move forward in addressing the inflated rates of violence afflicting native peoples. The lack of federal action to repair native communities tarnished by their former policies clarifies the government’s unbothered position and evidently reveals that it will continue to remain inactive in protecting and restoring indigenous peoples unless a larger entity pressures the state to do so. II.

CASE STUDY: THE UNITED STATES

Since the genocide of millions of Native Americans by colonists, the colonial regime established a culture of violence and abuse toward Indigenous Americans. The first recorded case of legal case interactions between Native Americans and colonists was Fletcher v Peck (1810)11. The legal case laid the groundwork for the legal delegitimization of indigenous claims to their homelands, evidently marking the beginning of a chain of anti-indigenous legislation. An abundance of cases further targeted the community, such as in Oliphant v Suquamish (1978)12, which officially deemed that Tribal courts hold no jurisdiction over non-tribal members, further putting the native community in a legally sanctioned position of helplessness. The decision indirectly enables non-tribal members to abuse and mistreat native individuals on reserved land, making them legally exempt from tribal prosecution and encouraging the violation of indigenous human rights. The culture of protecting offenders against native Americans has cultivated a violent environment that birthed an epidemic of violence against Native American women, girls, and two-spirited individuals. Since Columbus' arrival, the Missing and Murdered Indigenous Women Girls and Two-Spirited people’s epidemic has called the United States home. Nevertheless, the preservation of violence against native women resulted in a humanitarian crisis, in which primarily women and girls frequently disappeared, being met with nonchalance and a lack of involvement from state and federal law enforcement. With one of the highest rates of experienced 11 12

Fletcher v. Peck, 10 U.S. 87, (1810). Id. at 2.

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violence, if not the highest, indigenous people are most susceptible to homicide, sexual violence, and human trafficking. “American Indians and Alaska Natives are 2.5 times as likely to experience violent crimes and at least 2 times more likely to experience rape or sexual assault crimes compared to all other races. More than 4 in 5 American Indian and Alaska Native women, or 84.3 percent, have experienced violence in their lifetime. Homicide is the third leading cause of death among American Indian and Alaska Native women between 10 and 24 years of age and the fifth leading cause of death for American Indian and Alaska Native women between 25 and 34 years of age. In 2017, the top three cities with the highest number of MMIWG cases were Seattle, WA (45); Albuquerque, NM (37); and Anchorage, AK (31). The top three states were New Mexico, Washington, and Arizona. In the U.S. and Canada, an average of 40 percent of the women who were victims of sex trafficking identified as American Indian or Alaskan Native.”13 The epidemic of violence is ever-present. The United States made efforts to recognize the awful conditions women of the indigenous communities endure, by establishing the Violence Against Women Act of 200714 which identified the United States' legal responsibility to use federal resources to assist tribal governments in safeguarding the lives of indigenous women and girls. The legislation also allowed tribal courts to prosecute non-tribal members for violent crimes committed on native lands. However, the legislation did not contribute to assisting tribal governments or addressing the epidemic. Violence continued to wreak havoc and diminish indigenous communities; Alaska maintains its place as the state with the greatest number of women murdered by men, indigenous women’s percentage of 40% of murders representing double their state population makeup.15 Despite indigenous women being targeted disproportionately, the efforts made by indigenous activists in 2019 to have the Violence Against 13

Association on American Indian Affairs, Indigenous Peoples and Violence. International Violence Against Women Act, S.2279 (110th). U.S. (2007). 15 Megan Mallonee, SELECTIVE JUSTICE: A CRISIS OF MISSING AND MURDERED ALASKA NATIVE WOMEN, Alaska Law Review 93–117 (2021). 14

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Women Act reauthorized, demands for federal action against the waves of violence resulted in silence. In the place of legal-supported legislation, Congress established May 5th as a national holiday, raising awareness of the situation, and an executive order resulting in the creation of Operation Lady Justice16, a task force to address MMIW. These policies are crucial to spreading participation in activism and shedding light on the humanitarian crisis occurring unbeknownst to the public; native women are being murdered, assaulted, and human trafficked with the government's knowledge. Still, there is no sufficient legislation to legally bind the federal government to defend the lives of the women they made vulnerable to violence. Additionally, major legislation that preserved children's cultural identities within the adoptive system by placing them with adoptive parents of the same tribe when the opportunity arose is in danger. The Indian Child Welfare Act (ICWA) of 197817 created in response to a situation of cultural genocide; private agencies and state child welfare removed one-third of indigenous children from their homes and families, placing 85%18 of them in non-native homes. This policy was one of many utilized to erase the child’s connection to their native heritage, but ICWA put an end to the cultural genocide. Nevertheless, recent accusations of racial discrimination threaten the future of the law. In the case Brackeen v Haaland19, a non-indigenous couple attempted to adopt the Navajo boy they had cared for since he was ten months old; ICWA’s policy removed him from the home to place him in an unrelated Navajo family. The case won on the state level, quickly proceeding to the supreme court. The case remains unheard, but if the court deems the law racially discriminatory, other major legislation within indigenous law will be vulnerable to being dismantled, hence leaving indigenous rights more vulnerable than before. Of the many legislation left vulnerable, the dismantlement of the following laws represents an enormous change in the Native community’s relationship with the federal government; the Major Crimes Act20 which determines the federal government’s position when enforcing law on indigenous land, the Environmental Protection Agency policies which allow 16

Exec. Order No.14053, C.F.R. 64337 (2021) Id. at 5. 18 Noah Y. Kim, Politifact - Understanding the battle over the Indian Child Welfare Act (2021). 19 Brackeen v. Haaland, 5th Cir. No. 18-11479 (2021). 20 18 U.S.C. § 1153 (1885). 17

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tribes the ability to force oil and gas industries respect their environmental protection goals, as well as federally implemented programs aimed to improve healthcare and welfare services to native communities21. The abolishment of the Indian Child Welfare Act directly affects the preservation of the essential policies which constitute the basis of modern indigenous law. Hence, without the endorsement of UNDRIP by the U.S. government, there is no international legal document influential nor binding to pressure the U.S. government to actively pursue legislation to guarantee indigenous rights, address the MMIWG crisis, or prevent cultural genocide. Although colonization seems ancient to many individuals, it thrives for the Native American community and is in motion daily. III.

CASE STUDY: MEXICO

The vivid state of Mexico harbors a population of indigenous peoples reaching within the top five countries with the highest number of native peoples present today. The nation’s highest density is within the states of Chiapas, Yucatan, and Oaxaca, where a culture of indigenous revolution resides. The Zapatista Army of National Liberation (EZLN) often uses the foliage of Chiapas as shelter and has made a home in the state. The EZLN rebelled violently to expose the conditions indigenous people of Mexico live in and communicate their rights to culture, education, and land in the Peace Accord of 199622. Although little change followed the peace accord, the party has contributed to highlighting the normalcy of Mexican state-sponsored violence, as seen in the Universal Periodic Review for the United Nations Human Rights Council in 2018, “Between 2012 and 2016, the organization Red Nacional de Organismos de Derechos Humanos Todos los Derechos para Todos reported 302 aggressive actions against environmental journalists in the country, ranging from threats to extrajudicial executions. [...]. Pedro Canché is an Indigenous journalist who faced wrongful imprisonment in Quintana Roo for supposedly sabotaging waterworks after reporting on a 21

Id. at 11. Jeffrey N. Gesell, Customary indigenous law in the Mexican Judicial System, (1997). https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1495&context=gjicl 22

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protest over water costs in Mayan communities. He had no relation to the protest leaders and was illegally held for nine months before his release23” While the nation maintains a large population of indigenous peoples, their disregard for indigenous rights is made evident through frequent accounts of unjust detainment and cruel punishment upon indigenous communities, sometimes with no other goal than intimidation of the native community, and the lack of justice is evident. Mexico makes its stance against indigenous peoples clear through its state-sponsored violence against indigenous environmental activists. A recent report by Mexico’s Center for Environmental Rights (CEMDA) found that authorities were responsible for at least 43% of violent attacks targeting environmentalists, many of whom are indigenous24. Since signing the UNDRIP in 2007, the state has outlined precisely why the declaration must become legally binding. Additionally, failure to respect the outlined rights should result in international criminal prosecution through the International Criminal Court as to establish a global cultural norm of respecting indigenous rights. When its violence is not state-sponsored, the state often turns a blind eye to the abduction and murder of native communities. Mexico’s National Institute of Statistics and Geography reveals that 66.1% of girls aged 15 or above had survived gender-based violence at least once during their lifetime and that 43.5% of women had endured gender-based violence from their partners25. The Mexican government created a facade of compassion by signing international treaties to protect women, such as the General Law on Women’s Access to a Life Free of Violence and the Gender Violence Alerts26, but little change has resulted from these legislations. Without international law to enforce the Mexican state into implementing the articles of UNDRIP, which each of these incidents violates, the state is free to continue abusing and allowing torture, unjust detainment, sexual violence, and femicide within its borders.

CulturalSurvival.org, Observations on the State of Indigenous Human Rights in Mexico. 2018. 24 Id. at 14. 25 Id. at 14. 26 Secretary General, La Ley General de Acceso de Las Mujeres a una Vida Libre de Violencia, (February 1, 2007) (Mex.).

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IV.

CASE STUDY: AUSTRALIA

Similar conditions occurred during the colonist’s superimposed political dominance over aboriginal peoples of the land. Legal legislation such as the Aboriginal Protection Act of 186927 gave colonists the authority to wield complete control over the lives of their aboriginal counterparts, dictating where they were employed, whom they married, and where they lived. Progress toward a more humane environment for indigenous communities was demonstrated through the Aboriginal Lands Act of 197028, giving the indigenous lands legal rights to indigenous peoples through land deeds. The first Aboriginal Legal Service was established in the 1960s to address cases of racial discrimination and injustices, and the first national committee was formed in 1987 to investigate cases of suspicious police indigenous violence in the form of the Royal Commission into Aboriginal Deaths In Custody (RCADIC)29. Soon after, the High Court of Australia supported the aboriginal stance in the 1992 case, Mabo v Queensland30, which recognized the indigenous people of Australia and Torres Strait Islander’s legal claim of ownership over ancestral territories within Australian territory prior to settler-state sovereignty declarations. “Accordingly, Mabo No 2 found that native title and Crown sovereignty coexisted, but only to the extent that the Crown had not exhibited a ‘clear and plain intention’ to extinguish native title. In Mabo No 2, those whom the state recognizes as ‘Aboriginal and Torres Strait Islanders’ were granted rights called ‘native title’. Mabo No 2 generated confusion because it was not clear what constituted a ‘clear and plain intention to extinguish or what processes were required to prove native title31”.

Aboriginal Protection Act, 33 Vic. [No. 349] (1869) (Austrl.). Aboriginal Lands Act, [No. 8044] (1970) (Austrl.) 29 Commonwealth Government of Australia, Royal Commission into Aboriginal Deaths In Custody, (1987-1991) (Austrl.). 30 Mabo v Queensland [No. 2] (1992) 175 CLR 1, 5 (Austl.). 31 Stephen M Young, THE MATERIAL COSTS OF CLAIMING INTERNATIONAL HUMAN RIGHTS: AUSTRALIA, ADANI AND THE WANGAN AND JAGALINGOU, 20 Melbourne Journal of International Law 598–643 (2019). 28

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The cases demonstrate movements toward a pro-indigenous space for their human rights, but it also manifests how the matter of interpretation often poses an obstacle to protecting indigenous rights, as states often utilize this loophole to evade internationally established principles. Although the nation ratified the UNDRIP in 2009, inflated rates of injustice towards the indigenous community expose the perseverance of limited access to essential services such as clinical care and high rates of violence experienced by these communities. Concern about indigenous people's treatment maintains its presence through direct and indirect violence on aboriginal communities. Despite Australia being ranked the third wealthiest nation internationally on the United Nations Human Development Index (HDI), the HDI ranking of Australia’s indigenous peoples reflects the HDI of states experiencing war and violence, such as El Salvador32. Regardless of its pledge to protect aboriginal rights in Australian territory, statistics within the justice system reveal a disproportionate rate of indigenous peoples being incarcerated than their white majority counterparts. Although aboriginal people make up approximately 3% of the population, they represent 28% of prison populations and over 50% of the juvenile system’s population33. The nation demonstrates no effective actions towards cultivating an equal society to coexist with aboriginal people. Instead, its silence actively enables continued violence against indigenous communities, proving its high human development index as a misleading statistic gaining a reputation of progressiveness without any movements towards achieving equity for their indigenous population. Additionally, the prolonged struggle to preserve cultural identity in the next generation of aboriginal people is evident through family law cases. The cultural genocide of aboriginal children reached national awareness in 2008 when Prime Minister Kevin Rudd delivered a monumental speech, the National Apology to Australia's Indigenous Peoples34. In the said speech, Prime Minister Rudd apologizes on behalf of the Australian states' anti-indigenous legislation from 1910 to 1970 that systematically enabled a cultural genocide through the forced removal of indigenous children from indigenous communities 32

Police violence against Aboriginal people in Australia, Harvard International Review (2020), https://hir.harvard.edu/police-violence-australia-aboriginals/ 33 Id. at 18. 34 National Indigenous Australians Agency, Anniversary of the Apology to Australia’s Indigenous Peoples, (February 16, 2021), https://www.niaa.gov.au/newscentre/indigenous-affairs/anniversary-apology-australias-indigenous-peoples

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assimilated into white homes. These aboriginal individuals who struggled to maintain their cultural identity are commemorated as the Stolen Generations. This previously existing anti-indigenous stance within family law remains evident through modern legislation such as the Nulyarimma v Thompson35 case that highlights an aboriginal woman’s struggle with developing a cultural identity due to her forced removal and placement into a nonaboriginal family. Similarly, other legislation, such as the Aboriginal and Torres Strait Islander Child Placement Principles (ATSICPP)36, fails to adequately develop cultural care guidelines for indigenous children in child protection services. The Australian child protection system sees concerningly high rates of child removal from parental care and resentment from indigenous communities due to this culturally violent practice37. Therefore, in 2015, data revealed, “Indigenous children were nearly 7 times more likely to be the subject of a substantiated notification than nonIndigenous children. The disproportionate number of Indigenous children in out-of-home care requires us to critique the child protection system and ask questions about how child protection authorities are interpreting ‘risk’ to children and families.”38 Within indigenous child protection laws, determining the conditions sufficient for the forced removal of these children is open to the state’s interpretation. There is no outline of what treatment definitively signals the necessary removal in the unique case of a native child being displaced from their familial relationships. This lack of guidelines when dealing with indigenous child protection cases further allows the state to disregard the disproportionate rates of displacement affecting indigenous youth, damaging the indigenous community’s ability to preserve their cultural survival. Indigenous communities must be consulted in cultivating plans for maintaining indigenous cultural care for children who are displaced from their 35

Id. at 4. Australian Institute of Health and Welfare, Connection between family, kinship and social and emotional wellbeing, (2021). 37 Adelaide Titterton, INDIGENOUS ACCESS TO FAMILY LAW IN AUSTRALIA AND CARING FOR INDIGENOUS CHILDREN , 40 UNSW Law Journal 146–185 (2017) 38 Id. at 23. 36

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ancestral homes for one reason or another. It is crucial for indigenous community leaders and parents to participate in discussions surrounding the guidelines for interpreting dangerous conditions for a child. Consultation in both cases is of the utmost importance to prevent cultural genocide and establish a culture of collaboration between the federal state and indigenous communities when pioneering indigenous law. The lack thereof following several years after the ratification in protecting the rights outlined in UNDRIP highlights the lack of action initiated by the national government. Instead, similarly to the previously discussed case studies of Mexico and the United States, the Australian nation demonstrates that it enables violence against aboriginal peoples by failing to follow up on its promises in the 2009 UNDRIP ratification. The inaction proves the nation’s compliance in the indigenous rights movement as nothing more than a phony policy to save face on the global stage. INDIGENOUS LAW IS AN INTERDISCIPLINARY FIELD Due to the complex nature of its existence, indigenous law is inevitably interdisciplinary. Constituting human rights, civil rights, women’s rights, cultural rights, family law, environmental law, and international law, the field of indigenous law has only been scraped at its surface level. There is ample work for activists and awareness to spread in the uphill battle to secure indigenous rights. There is a fundamental need for the creation of legally binding documents that ensure the state’s obligation to deliver on promises outlined in the UNDRIP, respecting and reflecting the complexity and intersectionality of indigenous rights. The failure to support the fundamental rights of native people will directly lead to the continued genocide of indigenous people, as seen in the examined case studies. With each pro-indigenous law passed that results in no follow-up and no change, hundreds of native women and girls lose their lives, environmental activists will experience abuse, and children are torn from their cultural communities. The situation is dire, and time is of the essence. Each day men and women die, culture disappears, and entire languages are lost indefinitely. In order to develop major progress within the field of indigenous law, international bodies must act critically to stop the continued genocide of indigenous people on a global scale. 235

INDIGENOUS LAW’S MAIN ISSUES

Capitalism’s influence on the international stage. It is the very thing that fueled Columbus to sail across the sea, the motivator for slavery and slaughter, and the imprisoner of native peoples today. Nations build relationships with contrary states to pursue economic interests rather than progressing towards the common good. The culture of many indigenous tribes across the globe embodies capitalism’s antithesis, revolving around communism and socialism. There is little room for capitalism in this space so filled with community. Yet, capitalism’s presence on the modern nation’s agenda exposes itself; governments refuse to pass legislation legally obligating themselves to safeguard the rights of their native population. Clearly, the way of life established in indigenous communities poses a threat to capitalist entities, not only through their fundamental difference in perspective but also their relentless protection of the environment. Therefore, establishing the indigenous communities as an obstacle to major industries operating within deforestation and mineral extraction reveals the indigenous community as a barrier to the capitalist agenda. As long as capitalist-minded nations maintain the ability to deny human rights, which prevents their profit, these neoliberal post-settlercolonial nations will never revoke the ability to deny them said rights. Lack of negotiation with indigenous communities. The exclusion of indigenous peoples when defining their necessities and human rights demonstrates an approach reflective of the firm hand of these states' former colonial presence. In a report conducted in 2008 surrounding the Victorian indigenous populations, an individual raised concerns that the Charter’s definition of self-determination would undermine the Koori indigenous community’s struggle for the right to self-determination. “Recognition in the Charter would need to be based on words and concepts of the Koori community, arising from negotiation and not mere consultation. No government can tell us what selfdetermination is. Only we can determine what self-

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determination means to us. That is the first step to selfdetermination.39” In order to properly pioneer the field of indigenous law on the international stage, federal states must actively seek consultation with the very indigenous communities their legislation will affect. By outlining legislation according to the native population’s communicated desires and needs, the state will effectively begin the eradication of direct and indirect continued genocide of indigenous peoples and mark the beginning of an era of indigenous empowerment. Too much room for interpretation. A main issue with the UNDRIP is its lack of a legally binding clause that would hold states accountable for the accountability of International Law. Nevertheless, for the declaration to have full legal force within the nation, it must be domestically implemented. Giving the states the ability to choose whether to ratify the declaration domestically and the ability to interpret what actions are sufficient to address indigenous rights effectively gives these nations the choice to pursue achieving indigenous rights if they wish to do so40. There must be strict guidelines for preserving indigenous rights. It is crucial to implement transnational campaigns by NGOs to normalize a culture of respect toward indigenous communities. By cultivating a new global norm to work toward human progression, it attempts to deconstruct colonial racial biases as seen in postcolonial countries and encourages the masses to push their governments to integrate international frameworks for indigenous rights through domestic legislation. CONCLUSION Due to the centuries of historical oppression the indigenous community experienced, the colonizer’s imported capitalist mindset also established deep roots in the nations they overtook. The effects of colonialism today can be seen in the MMIW epidemic and the vulnerability of the Indian Child Welfare Act41 39

Taryn Lee, The Rights Granted to Indigenous Peoples under International Law: An Effective Means for Redressing Historical Wrongs?, 18 International Community Law Review 53–71 (2016). 40 Id. at 22. 41 Id. at 5.

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in the United States, as well as the hostile environment in Mexico for indigenous environmental activists, and sustained violence against native women, despite its signing of the United Nations Declaration on the Rights of Indigenous Peoples in 2007. These cases in which the governments actively allow their indigenous populations to fall vulnerable to violence, even sponsoring said violence as seen in Mexico, are unacceptable and should be condemned by the International Criminal Court. NGOs such as Human Rights Watch, Amnesty International, Cultural Survival, and the International Work Group for Indigenous Affairs must collaborate to bring awareness to the situation indigenous peoples endure while also encouraging an international movement towards the importance of human rights and away from economic domination. Additionally, these non-governmental organizations must establish accurate data on indigenous peoples affected by violence by funding surveys to be conducted locally and to unite indigenous activists and experts in the field of indigenous law and international law. Only will collaboration and a united front against the violation of indigenous rights prove effective in communicating the necessity for a legally binding document to enforce the implementation of indigenous rights internationally. Lastly, it would most benefit the indigenous collaborative group to establish themselves as non-communists to avoid the wrath of Western capitalist ideals. Instead, the community should reiterate their socio-economic beliefs within language reflective of neutrality while distinguishing their beliefs clearly from western thought and communism’s teachings. Pursuing the necessity of basic human rights and cultural rights proves impossible in the face of communism’s ideological enemy, as seen in conflicts such as the United States with communist Cuba and the Cold War. Ultimately, the community is vulnerable to the violence cultivated after colonization and continues to fall victim to its after-effects. With lives lost each day and too many missing, the indigenous community needs change implemented internationally as soon as possible. If not, the killing, the abuse, and the torture will never end.

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The Role Race Plays in the Judicial System Hannah Adams Edited by Alasdair Macleod Hannah Adams is a first-year English major who has a long-standing passion for journalism. She is originally from Fullerton, CA. She is involved with two newspapers on campus, as well as a California law-based journalism internship. After undergrad, she hopes to pursue either a journalism-related career or a law-related career, or perhaps a mix of both.

ABSTRACT The equal protection doctrine of the 14th amendment states that persons in similar circumstances must receive similar treatment under the law. Held by that standard, the courts of this country are supposed to reach verdicts that punish defendants equally and accordingly. But in recent events, it appears that the equal protection doctrine does not extend to every American. Racial disparity in sentencing is gaining traction as a grave danger that violates the rights of people of color in America. Statistically speaking, 1) “Young black and Latino males tend to be sentenced more severely than comparably-situated white males”; 2) “Whites receive a larger reduction in sentence time than blacks and Latinos for providing "substantial assistance" to the prosecution”; 3) “Black defendants who victimize whites tend to receive more severe sentences than both blacks who victimize other blacks (especially acquaintances), and whites who victimize whites”; 4) “...the race of the defendant also affects sentencing outcomes, with minority defendants more likely to receive a death sentence than white defendants.”¹ These are only a few of the raciallymotivated issues that are responsible for the U.S. judicial system’s corruption.

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It is without a doubt that there are differences in the respective cases’ conditions just as there are differences per the judges that view them. But when there is such an apparent disparity that it is statistically proven that Latino and Black Americans face harsher persecution than their white counterparts, it is evident that systematic racism is an internalized problem within the US judicial system on all levels. It is the responsibility of this country to ensure that it is defined by a universal standard of equality, and yet for some, equality has become an unattainable privilege INTRODUCTION The Fourteenth Amendment's Equal Protection Clause states that no state shall “deny to any person within its jurisdiction the equal protection of the laws”.1 Held by that standard, it is the legal obligation of the courts of the United States to reach verdicts that punish defendants equally and accordingly. But recently, it appears that the equal protection doctrine does not hold true for every American. Racial disparity in sentencing is a flaw in the United States that violates the rights of people of color guaranteed to them by the Constitution. Statistically speaking, 1) “Young black and Latino males tend to be sentenced more severely than comparably-situated white males”; 2) “Black defendants who victimize whites tend to receive more severe sentences than both blacks who victimize other blacks (especially acquaintances), and whites who victimize whites”; 3) “...the race of the defendant also affects sentencing outcomes, with minority defendants more likely to receive a death sentence than white defendants.”2 These are only a few of the racially-motivated issues within the U.S. judicial system. To ensure equal protection under the law for all individuals, the U.S. judicial systems from the Federal to the local level need to adapt to expel this racial bias.

U.S. Const. amend. XIV, § 2 Tushar Kansal, RACIAL DISPARITY IN SENTENCING: A REVIEW OF THE LITERATURE (2005), https://www.opensocietyfoundations.org/uploads/764bf150-13d84330-b08b-b04ae313308f/disparity.pdf 2

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HISTORICAL BACKGROUND

The Civil War led to the adoption of the 14th Amendment to the Constitution. It was intended to grant citizenship to all persons born or naturalized in the United States—including formerly enslaved people and guaranteed all citizens “equal protection of the laws.”¹ Initially, only black male U.S. citizens benefited from this clause — and only slightly, for that matter. But throughout the 19th and 20th centuries, several Supreme Court cases helped ensure the application of the 14th Amendment to expand and include other groups, as well as to strengthen its enforcement of equality. During the 1920s, the Supreme Court started a trend of increased application of the 14th Amendment on both state and Federal levels. During the 20th century, the two-class theory, the belief that the 14th Amendment only applied to black U.S. citizens facing discrimination from white Americans, excluded other minority groups from the rights of the 14th Amendment. Until 1946, when the Ninth Circuit Court of Appeals in Mendez v. Westminster School Dist., 64 F. Supp. 544 (S.D. Cal. 1946) ruled that the forceful segregation of Mexican American students via their ancestry, skin color and ability to speak Spanish violated the 14th Amendment. This case, along with many others, solidified a foundation of upholding the Equal Protection Clause of the 14th Amendment, essentially ensuring the landmark Supreme Court ruling in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Arguably the most renowned victory in light of this Amendment, Brown v.

Board of Education ruled that the previous “separate but equal” segregation standard established by Plessy v. Ferguson, 163 U.S. 537 (1896) violated the 14th Amendment by subjecting minorities to a lower standard of education, services, among other things. In spite of efforts made to enforce the 14th Amendment (and, by extension, the equal protection clause), racial disparity continues to plague the judicial system today.

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II.

HARSHER SENTENCES

In the U.S. judicial system, it is very clear that white Americans are favored when sentenced. Groups are more likely to receive harsher sentences than their white counterparts. ² One example of this racial bias could be the disparity in severity between People Of The State Of Colorado v. Aguilera-Mederos (2019), and Texas Vs. Ethan Couch (2013). Both of these cases feature four counts of vehicular manslaughter, although the cases themselves vary. On April 26, 2019, Mederos was arrested and charged with multiple counts of vehicular homicide following a highway crash when his semi-truck he was driving as well as four other vehicles. Mederos was initially under investigation for vehicular manslaughter, but on May 3, 2019, the charges were revised to 40 different ones, including six counts of first-degree assault and 24 counts of attempted first-degree assault. Mederos claimed that his brakes failed to work; however, this claim could not be properly investigated due to the state of the semi after the crash. At the time, the company Mederos was working for, Castellano 03 Trucking LLC, bore a history of 30 safety violations within the two-year period prior to the crash. The most relevant of the violations included employing truck drivers who could not understand highway signs due to language barriers. Interstate 70 in Colorado, the site of the crash, contains many English-only signs between Genesee and Colorado Mills Parkway that warn truckers of the perils of the mountainous road, as well as the locations of runaway truck ramps. Mederos's trial began on September 28, 2021, in Jefferson County, and on October 25, 2021, a jury found Aguilera Mederos guilty of four counts of vehicular homicide. In accordance with the state's minimum statutory — in the words of sentencing judge Bruce Jones — Mederos was sentenced to 110 years in prison. In response to immense backlash, Governor Jared Polis granted Mederos clemency, reducing the sentence to a 10 year period instead. As for Couch, on the night of June 15, 2013, according to authorities and trial testimony, surveillance video showed Couch stealing two cases of beer from a Walmart store and then driving with seven passengers in his father's red 242

2012 Ford F-350 pickup truck at 70 miles per hour in a designated 40-mile-perhour zone. On Burleson-Retta Road, approximately one hour after Couch’s Walmart incident, Couch’s vehicle collided with motorist Breanna Mitchell's sport utility vehicle, crashing into bystander Brian Jennings's car which in turn hit another oncoming vehicle. Couch's truck then flipped over and struck a tree. Prior to the crash, Hollie Boyles and her daughter Shelby, who lived nearby, had come out to help Mitchell, as her vehicle stalled. While Mitchell, Jennings, and both Boyles were killed, Couch and his seven other passengers survived. Following the incident, Couch, 16, was found to have had a blood alcohol content (BAC) of 0.24 percent, three times the legal limit for adult drivers (21 years old and older) in Texas. Couch also had traces of marijuana and diazepam in his system. Couch was subsequently charged with four counts of intoxication manslaughter and two counts of intoxication assault. Tarrant County prosecutors sought a maximum sentence of 20 years' imprisonment for Couch. Ultimately, it was revealed that Couch was sentenced to 10 years’ probation, and a hearing on April 11, 2014, confirmed that Couch began treatment at the North Texas State Hospital in Vernon, Texas. Without a doubt, discrepancies exist between the jurisdictions over these cases. While Couch was defended under the premise that he is too wealthy to understand morality, Mederos was punished for a mistake on his company’s behalf, a mistake that his company had been known to make in the past. These two cases are not an identical match, which goes to say that many circumstances of each case, including the age of the defendants as well as their respective states’ statutes, also play a part in the final verdicts. Wealth is another considerable factor in that it gave Couch a higher caliber of lawyers to choose from. Nevertheless, these cases are similar; Mederos’s initial verdict, as opposed to Couch’s final verdict, speaks volumes about the mistreatment of minorities in the U.S. judicial system.

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III.

HARSHER SENTENCES CONTINUED

It is also statistically proven that higher punishments are given to people of color for victimizing white people than vice versa. ² In the ongoing trial cases of Marc Wilson (2020) and Eric Barber (2021), although they have yet to reach a definitive end, it is clear that being African American is typically a greater disadvantage when it comes to evading higher punishment in the American legal system. According to an article written by Kami Chavez, 34% of white/Black shootings are ruled as legal while only 3% of Black/white shootings are ruled as such in states where 'stand-your-ground' laws and doctrines exist. ² Marc Wilson is an example of the unfavorable odds against black Americans in the U.S. judicial system. On the night of Jun. 13, 2020, Wilson and his girlfriend at the time, Emma Rigdon, felt threatened by a pick-up truck of young, white males while driving on Statesboro’s Veterans Memorial Parkway in Georgia. Fearing that he and Rigdon would be forced off the road, Wilson fired two shots: the first one as a warning, and the second one into the back window of the truck, where the bullet struck and killed 17-year-old Haley Hutcheson. Following the incident, Wilson turned himself in on Jun. 17, from which he spent 20 months in pretrial detention before being released on a $100,000 bail. The original judge of the case, Judge Muldrew, was recused; he was succeeded in the legal proceedings by Judge Ronnie Thompson due to his jurisdiction being tainted by a “racially charged atmosphere permeating the trial proceedings.”3 Currently, Wilson is awaiting trial to see whether or not he is immune to his charges by way of the “stand your ground” law that exists within Georgia. Conversely, Eric Barber received a much lighter sentence for a comparable crime. On the night of Nov. 3, 2021, Barber fatally shot his neighbor Justin King in Bourbon, Missouri after allegedly trying to diffuse an unrelated conflict. Initially, Barber and King had what other neighbors 3

Nicole Henderson, Judge Michael Muldrew’s removal from the Marc Wilson Case, Just Georgia (2022), https://www.just-georgia.org/press-release-february-4

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deemed a “cordial” exchange, but within an hour, King returned to Barber’s residence enraged. Investigators concluded that there was an altercation that seemingly forced Barber’s hand, leading him to shoot King three times. After a coronary analysis, it was revealed that King tested positive for methamphetamine and THC metabolites — the main psychoactive compound in cannabis. In a Facebook update on Nov. 8, the Crawford County Sheriff’s Office confirmed Barber’s release from custody the following day. In accordance with Missouri’s castle doctrine, Barber legally had the grounds “to use force against intruders, without the duty to retreat, based on the notion that your home is your "castle."”4 However, King’s family as well as other neighbors within the community assert the belief that officials severely mishandled the case — as a result, the FBI is currently investigating the case. Again, there are discrepancies between the two cases, with the main ones being the difference in the judges themselves as well as state differences. While one was at a private residence, the other arose from an argument. And while Wilson was released from pretrial detention after a 20-month period, Barber was released within days of him being taken into custody. The authorities in Wilson’s case failed to automatically recognize and apply the “stand your ground law,” while the authorities in Barber’s case seemed eager to apply it in spite of the community’s views on Barber. The willingness of the authorities to assume Barber’s innocence versus Wilson’s innocence — although in different circumstances — illustrates one of the many examples of what racial disparity looks like in the U.S. courts. IV.

GREATER RISK OF DEATH PENALTY

It is statistically proven that people of color are more likely to receive the death penalty than white people in similar circumstances. ² Filicide — the act of intentionally murdering one’s own child — defines the somewhat similar cases of Melissa Lucio and Lois Jurgens. But while Jurgens only served eight years, Lucio became the first woman in Texas history to be sentenced to death. 4

Mo. Rev. Stat. § 563.031(2016)

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On February 17, 2007, Mariah Alvarez, the two-year-old daughter of Melissa Lucio, was found unresponsive and not breathing with evidence of abuse on her body. While Lucio attributed Alvarez’s injuries to a fall down a set of stairs, it was later determined that Mariah's arm had been broken prior to her death, and an autopsy revealed a head injury and bruising of the kidneys, lungs, and spinal cord. Alvarez was pronounced dead upon arrival at a local hospital. Following her daughter’s death, Lucio admitted to disciplining Alvarez, but denied ever having seriously abused her. Ultimately, Lucio was found guilty of capital murder; she was sentenced to death in 2008. In January 2022, Cameron County officials signed an execution warrant for Lucio. Her execution is scheduled for Apr. 27, 2022. On the morning of April 11, 1965, Dennis Jurgens died at the hands of Lois Jurgens, his adoptive mother. The official cause of death was peritonitis due to perforation of the small bowel. Lois Jurgens had a history of abusing her children — especially Dennis Jurgens. Including prior records of starvation, scarring, and bite-marks on his genitalia, there was also evidence of lacerations and layers of bruises. In spite of this evidence, Dennis Jurgen’s death was ruled as an accidental slaying. For years, Dennis Jergen’s murder went cold until his biological mother, Jerry Sherwood, sought justice for her deceased son. On May 3, 1988, Lois Jergens was sentenced to at least 15 years of state prison on one count of second-degree murder and two counts of thirddegree murder. L. Jurgens only served eight years of her sentence and was released early on the premise of good behavior. Although these cases both feature filicide, they occur in different states as well as different time periods. This is significant in that during her time, Lois Jurgens would not only have had her whiteness to her advantage, but the society and law enforcement of the mid-1960s were indirectly sympathetic to Lois Jurgens, as the concept of a middle-class child being abused was (at the time) unheard of. Consequently, proving Lois Jurgens murdered her son would have been nearly impossible. There was blatant physical evidence pointing towards abuse, and yet the medical examiner initially categorized it as 246

deferred, i.e. the examiner thought that there was insufficient evidence to even classify the death as an accident, let alone a homicide. V.

DISCLAIMER

In the above-mentioned cases, there are moments of inconsonance — both negligible and significant — that led to the respective cases’ results. Be it state law differences, such as different levels of punishments as well as different statutes, era differences — i.e. what society deemed as acceptable and what it understood – or age differences, the inconsistency of America’s courts makes it difficult, impossible, even, to find identical cases for a flawless comparison. Alongside these differences, judge bias undoubtedly plays a crucial role in the execution of a case. Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the United States Sentencing Commission (USSC) reported that there has been an increase in racial disparity in sentencing.5 This is in part due to the fact that the Booker case allowed federal judges to be more liberal with sentencing by facilitating the imposition of higher or lesser sentences than the USSC's sentencing guidelines called for. Prior to the Booker verdict, federal judges were expected to follow those sentencing guidelines. As a result, racial bias from judges, be it unconscious or explicit, has found a perversely legal way to obstruct the U.S. judicial system from granting all of its citizens equal justice. There is such an apparent disparity that it is statistically proven that minority groups face harsher persecution than their white counterparts, therefore it is evident that systematic racism is an inherent problem ingrained within the US judicial system’s sentencing processes. As enshrined by the Constitution, the preamble Declaration of Independence - 'All men are created equal.', and yet for some, equality has become an unattainable privilege.

Demographic Differences in Sentencing, Demographic Differences In Sentencing (2017) https://www.ussc.gov/research/research-reports/demographic-differencessentencing

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VI.

SOLUTIONS

As daunting as it may seem to rebuild the foundations of the U.S. judicial system, it can be done. Marc Mauer, the executive director of the Sentencing Project, suggests that to improve the system, there must be a unified front between policymakers, law enforcers and community groups to eliminate any chance of underrepresentation and bias.6 One strategy that Mauer proposed is to consider the racial impact of criminal justice policies, both in practice and proposed, which would allow the opportunity for discussion of racial disparities that would prevent any biased policies. This could be done by creating a task force of both community members and representatives of the criminal justice system. Mauer outlines the purpose of this task force; “(to) [review] and [analyze] data on prosecutorial practices and [develop] initiatives designed to promote the twin goals of maintaining public safety and reducing disparity.” ⁶ The different backgrounds would minimize the chances of underlying bias manifesting itself in the creation of new policies CONCLUSION The U.S. Department of Justice projects that if current trends of racial bias persist, one-fourth of all black males born today will go to prison in their lifetimes; one-sixth of every Latino males born today will follow.7 Although incarceration rates amongst women are statistically lower than for men, the projected future for minority women mirrors that of their male counterparts.⁷ To be a person of color in America’s judicial system is to be prosecuted in a 6

Marc Maurer, Justice For All? Challenging Racial Disparities in the Criminal Justice System, American Bar Association (2010) https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/hu man_rights_vol37_2010/fall2010/justice_for_all_challenging_racial_disparities_criminal _justice_system/ 7 Glen Kessler, The stale statistic that one in three black males ‘born today’ will end up in jail, Washington Post (2015) https://www.washingtonpost.com/news/factchecker/wp/2015/06/16/the-stale-statistic-that-one-in-three-black-males-has-a-chance-ofending-up-in-jail/

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system that favors white people, a direct consequence of sentencing practices aimed to benefit or punish certain demographics. Currently, a legal system that maintains equality under the law is merely a theoretical concept. America’s tradition of racial discrimination is as old as the country itself. But as opposed to keeping up with tradition, it is time to build an America that champions racial equality under the law.

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Delayed Justice As Cases Stall: The Impact of COVID-19 on the Criminal Justice System Eva Reyman Edited by Julia Drobish Eva Reyman is a second-year anthropology major from El Cerrito, California. She is the secretary for Literature Club and also works on campus. After undergrad, she plans on attending law school and pursuing an impactful career she is passionate about.

ABSTRACT

When COVID-19 hit in 2020, it sparked unprecedented upheaval and uncertainty. The pandemic brought legal issues to the forefront, from social justice to gender inequality, and demonstrated the importance of advocating for what is right. It also caused changes in the criminal justice system. Numerous questions arise, namely: what has happened to court cases since the pandemic, and what laws relate to or have come about in response to these changes? It is important to understand the pandemic’s role in shaping this phenomenon because it provides insight into social justice in the modern world. The first section of the article lays out the issue of case backlogs. It considers specific cases in which defendants still await cases and impacted families long for justice. The second section of the article focuses on laws pertaining to the delays and how many of these, including constitutional rights, are not being upheld by courts. In particular, the Sixth Amendment guarantees criminal defendants the right to a speedy trial. Additionally, the Speedy Trial Act of 1974 clarifies that a trial must start within seventy days of the prosecutor filing the indictment. Clearly, people are not following these 250

laws, as both prisoners and those who have been wronged continue to wait for much longer than the aforementioned time frame. The article will exhibit how these issues undermine an equitable legal system that protects human rights and offer potential solutions. INTRODUCTION This article aims to discover how COVID-19 has impacted the United States criminal justice system, specifically how it has stalled cases and delayed justice around the country. The states' responses to cases illustrate the pandemic's effect on criminal justice across the nation. Each state has imposed regulations pushing back cases as the pandemic lingers, with court officials citing large congregations and the inability to maintain social distancing as reasons for the delays. For example, the pandemic caused Alaska to suspend criminal trials until January 10, 2022.1 Other states adopted similar suspensions following the pandemic's onset, and over the past two years, delayed justice permeated the entire country. However, critical new legal rulings and the laws that have emerged from the pandemic, specifically in response to and discussing COVID-19, provide a solution to the delay. One way of addressing the backlogs caused by COVID-19 through new laws is lengthening the time prisoners remain at home, and upon the end of this period, re-evaluating the necessity of their return to prison.2 This option offers a remedy to the intensity of the case delays and helps preserve prisoners' rights by allowing those who have complied with the conditions of home confinement to return to society, not prison. Ultimately, this article examines how and why COVID-19 caused a significant backlog in criminal cases, what laws pertain to this issue, and what 1

Court Operations During COVID-19: 50-State Resources, JUSTIA (Dec. 2021), https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-duringcovid-19-50-state-resources/. 2 Garland, Merrick, Statement by Attorney General Merrick B. Garland, THE UNITED STATES DEPARTMENT OF JUSTICE (Dec. 21, 2021), https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland-0.

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new legislation has been created to address this delay of justice. The circumstances caused by COVID-19 show how global changes vastly impact important areas of human life and that the only way to address these lapses in human rights is to use the legal system to create fair laws in response to a rapidly evolving world. I.

DELAYED CASES

The pandemic caused significant disruptions in normal court operations and procedures, resulting in countless stalled cases. Courts began suspending trials and dismissing cases when COVID-19 emerged in the United States in 2020. Since the beginning of the pandemic, a pattern of unresponsiveness has continued throughout the country, creating unease and unrest as countless individuals and families wait for justice. The phenomenon that began two years ago continues to this day: cases arise, courts disregard them, and attempt to focus on pre-existing ones, but even these become obsolete as courts battle further obstacles. It began speeding up COVID-19 when cases decreased but fell again due to the winter surge beginning around November 2021. With rapidly increasing cases throughout the winter months, California experienced the largest spike since January 2021. David A. Carrillo, executive director of the California Constitution Center, referred to the halting of jury trials and the increase in online courtroom proceedings as a decision between access to justice and public safety.3 His comment illuminates how the case backlog has only gotten worse as COVID-19 lingers on, causing major issues early on in the pandemic but also recently, during this past winter. One impediment to criminal justice and keeping the cases on schedule is the issue of jury trials; due to the pandemic's social distancing laws and countrywide measures dissuading large gatherings, courts are conducting fewer 3

Lyons, Byrhonda, Covid Surge Upends Some California Courts – Again, CAL MATTERS (Jan. 7, 2022), https://calmatters.org/justice/criminal-justice/2022/01/covid-california-court/.

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jury trials. Some contend that it is impossible to continue these jury trials as COVID-19 cases break out among judicial officers, court staff, lawyers, litigants, and jurors.4 Furthermore, prisoners are disproportionately suffering from COVID-19 as their shared living conditions make social distancing almost impossible and lead to a higher risk of disease transmission, extending the backlog and harming prisoners' health.5 This poses a substantial threat to criminal justice, but courts insist they will not compromise the criminal justice process even as social distancing is a major factor. They opt to either push back trial dates or move forward, but with virtual hearings. Rather than offering a viable alternative, both options have disproportionate consequences for both individuals in prison and their families and people affected by crime. By delaying trials, courts force those awaiting justice to wait even longer, with no clear end date. In March 2020, when the pandemic had just begun in the United States, an incident occurred at Brooklyn hospital. Eightysix-year-old Janie Marshall was shoved for allegedly having violated social distancing rules in her shared room at the hospital. This action resulted in her death. Although aggressor Cassandra Lundy was charged with manslaughter and assault as the death was ruled a homicide, courthouses were closed, and jury trials canceled, so Marshall's family waited over a year for justice. Similarly, a criminal district court in Bexar County, Texas, witnessed a 67% increase in felony cases from March 2020 to February 2021. One case involved Scott Deem, a firefighter killed battling a fire in a gym in May 2017. His family was forced to wait an exceedingly long amount of time, no doubt extended by the pandemic, as they still waited into 2021.6

What Is COVID-19's Impact on Speedy Trial Rights? MOLO LAMKEN LLP (ML) LAW FIRM/ATTORNEYS, https://www.mololamken.com/knowledge-What-Is-COVID19s-Impact-on-Speedy-Trial-Rights (last visited Mar. 24, 2022). 5 PISTOR, KATHARINA, COVID-19 AND PRISONERS' RIGHTS, 1–16, Essay in LAW IN THE TIME OF COVID-19 (Apr. 2020). 6 Chan, Melissa, 'I Want This Over.' For Victims and the Accused, Justice Is Delayed as COVID 19 Snarls Courts, TIME (Feb. 23, 2021, 10:12 AM), https://time.com/5939482/covid-19-criminal-cases-backlog/.

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Legal issues occupy the forefront of this devastating delay. When the pandemic began, the Justice Department aimed to provide more agency to the chief justice and other top judges, giving them room to choose if they postponed hearings. For example, the Department under Attorney General William P. Barr shut down court operations early in the pandemic, much to the dismay of criminal justice reform advocates and civil libertarians, as cases piled up and the number of people awaiting justice increased substantially. Jeffrey Robinson, director of the American Civil Liberties Union's Trone Center for Justice and Equality, stated that Civil rights leaders are enraged. This example, among others, appears not to consider the defendant's lives and, further, families affected by crime. He contends that the proposed law does not make anyone safer and instead could create more unrest as it allows for suspended criminal rights, stripping people of their constitutional protections and guaranteed privileges outlined in the criminal legal system. He maintains that this law and subsequent shutdown only illuminates people wanting power but lacking consideration for human rights, as the government employs this tactic to showcase its authority.7 Although Congress has the ability to delegate more powers to agencies in times of crisis, the federal government's response to COVID-19 has been dismal. Instead of creating more opportunities to uphold citizens' rights, it appears that governmental agencies have stifled the rights of those affected by the criminal justice system by allowing for a backlog to emerge. Furthermore, virtual courts pose an additional problem as cases continue to stall. Some defendants do not have the resources for computers or access to them and the internet. By creating a sole solution through virtual courts, financially challenged families are at a significant disadvantage as they may not have access to computers or reliable internet. Yet even this solution of online trials still does not address all of the cases, and the backlog continues to 7

Zapotosky, Matt, Justice Department's Coronavirus Considerations Rankle Civil Liberties Advocates, THE WASHINGTON POST (March 23, 2020), https://www.washingtonpost.com/national-security/justice-department-coronaviruslaws/2020/03/23/6b860018-6d01-11ea-b148-e4ce3fbd85b5_story.html.

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worsen. The pandemic has also made it increasingly difficult to acquire legal representation, even for someone financially stable in the current world. It is especially hard during COVID-19 to obtain any kind of legal help, much less strong representation when a person faces economic difficulties. Individuals without legal representation, especially those facing economic hardships and accessibility needs, have had a more difficult time adapting to the more technologically reliant legal world COVID-19 has brought about. For example, litigants without computers are burdened by what certain people promote as a positive and accessible step and cannot participate in these online proceedings. The courts' adoption of technology at such a quick rate and its implementation as the sole mode of conducting trials has disproportionately affected people who do not have readily available access to both legal representation and the internet. While the online platform opened up avenues for litigants with lawyers, making it much easier to file cases in bulk, litigants without legal representation found it harder to navigate everything online.8 In order to address the backlog, it is imperative that courts begin with the issue of providing access to all, whether that entails in-person trials, lending computers, or offering a private place to go with reliable internet. Moreover, defendants without legal representation due to a variety of factors suffered significantly when they also faced issues such as language barriers or cognitive disabilities. Unfortunately, no specific pandemic-related law as of yet speaks to this population's needs. If such disparity in the criminal justice system exists, it will remain difficult to move forward and fight against the stalled cases. Even as conditions improved over summer 2021 to address the backlog, courts still faced this issue. For example, Georgia's Fulton County hypothesized that its 10,000-case backlog would take thirty-six months and

How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, THE PEW CHARITABLE TRUSTS (Dec. 1, 2021), https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courtsembraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations.

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$60 million to get through.9 Even with increased staffing, defendants' rights to a speedy trial with unnecessary delays are not upheld. Efforts such as these illustrate how the pandemic has uprooted the criminal justice system, and its profound consequences highlight the need for additional laws addressing the delays. The legal system and revolutionary legislation must respond to COVID-19's disruption. II.

NEW LAWS EMERGE IN RESPONSE TO COVID-19, BUT CONSTITUTIONAL RIGHTS STILL NOT UPHELD

Various laws pertaining to the criminal justice system are already in place, but COVID-19 has brought about the emergence of many new ones in response to the pandemic's effects. However, the pre-existing laws give rise to issues as they fail to deliver reprieve while COVID-19 upends the criminal justice system. For example, a key legal issue relates to the Sixth Amendment to the U.S. Constitution, which guarantees criminal defendants the right to a speedy trial.10 This amendment protects criminal rights as it prohibits prosecutors from waiting an inordinate amount of time, therefore safeguarding justice. The Speedy Trial Act requires the government to file an indictment within thirty days of an arrest, and the trial must begin no later than seventy days following the indictment. COVID-19 has caused two modifications of the act to be invoked. First, the Speedy Trial Act can be modified, and the timetable extended if a defendant or crucial witnesses are unavailable, meaning they resist appearing for the trial. The pandemic provided a reasonable excuse for courts to delay criminal trials, as parties involved in countless cases became ill or were 9

Nahra, Alia, How Covid-19 Is Still Battering the Criminal Legal System, BRENNAN CENTER FOR JUSTICE (June 16, 2021), https://www.brennancenter.org/our-work/analysisopinion/how-covid-19-still-battering-criminal-legal-system. 10 What Is COVID-19's Impact on Speedy Trial Rights? MOLO LAMKEN LLP (ML) LAW FIRM/ATTORNEYS, https://www.mololamken.com/knowledge-What-Is-COVID-19sImpact-on-Speedy-Trial-Rights (last visited Mar. 24, 2022).

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uncomfortable in a social setting due to the social distancing guidelines. As the pandemic lingers, however, the question of this extension's legality arises. As vaccines, masks, and decreased cases remove the justification for the continuation of trials. Second, a court is allowed to lengthen the guarantees of the Speedy Trial Act if it "serves the ends of justice." Some courts employ this terminology by using the government's directions to social distance and avoid large gatherings to prevent people from contracting the virus. They contend that these rules "serve the ends of justice," creating yet another legally based justification for stalling criminal rights. Both reasons illuminate COVID-19's devastating impact on cases' delay: earlier in the pandemic, defendants and key witnesses frequently fell ill and felt uncomfortable attending a trial in person. Nevertheless, minimal excuses remain, but courts still delay, ignoring the constitutionally protected rights enclosed in the Speedy Trial Act. Paralleling the inequities discussed with regard to the prior guarantees of the Sixth Amendment, other protections secured in this amendment, as well as the Fifth Amendment of the U.S. Constitution, also suffer. The Fifth Amendment ensures that all defendants have a fair trial,11 which the pandemic disrupts in various ways. Furthermore, the pandemic’s introduction of virtual courts calls the soundness of the Fifth Amendment into question, as certain populations serve as jurors much less than others, limiting juries' partiality. For example, the elderly, people with pre-existing health conditions, and minorities face the majority of issues as they are more likely to suffer worse consequences of COVID-19. Additionally, healthcare workers labor even harder as they manage the frontlines, so they must remain at their jobs and thus appear less on juries. These factors reflect COVID-19's effect on defendants' constitutional rights; a limited juror pool removes the guarantee of impartiality as a much less representative population makes its way through and serves on

Criminal Procedure, LEGAL INFORMATION INSTITUTE, (last visited Mar. 16, 2022), https://www.law.cornell.edu/wex/criminal_procedure.

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the jury or even has the chance to be selected.12 During jury selection, parties must remain unbiased and not discriminate based on race or gender, as established in Batson v. Kentucky, 474 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994).13 But the elimination of potential key jurors generates a substantial issue, and people of certain gender identities and ethnicities are less likely to be considered for a jury position. One response to the pandemic's disproportionate effect on criminal justice as cases stall is a new proposed Bill, SB 315.14 This expands upon preexisting legislation that provides a pretrial diversion program for anyone charged with a misdemeanor. It does so through the introduction of the COVID-19 Alternative Adjudication Program, which would call for courts to dismiss an accusatory pleading if six months have passed since the defendant was released from custody and as long as they were not charged with a subsequent misdemeanor or a felony. The Immigrant Legal Resource Center is a strong proponent of the bill and believes that it could directly improve the backlog and protect public health as it provides judges with the ability to dismiss low-level criminal cases.15 The bill was revolutionary in the time of COVID-19 and would even erase the record of the initial arrest. The COVID 19 Alternative Adjudication Program depicts how new changes to criminal procedure can help fight back against countless barriers to justice that have only increased in severity as the pandemic remains. 12

Constitutional Concerns Related to Jury Trials During the COVID-19 Pandemic, NCSC (Mar. 29, 2021), https://www.ncsc.org/__data/assets/pdf_file/0034/57886/Constitutional-ConcernsRelated-to-Jury-Trials-During-the-COVID-19-Pandemic.pdf. 13 Criminal Procedure, LEGAL INFORMATION INSTITUTE, (last visited Mar. 16, 2022), https://www.law.cornell.edu/wex/criminal_procedure. 14 SB-315 Criminal procedure: COVID-19 Alternative Adjudication Program, CALIFORNIA LEGISLATIVE INFORMATION (Jul. 29, 2020, 9:00 PM), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB315. 15 Horiuchi, Kimberly, Criminal Procedure: COVID-19 Alternative Adjudication Program, TRACKBILL, https://trackbill.com/bill/california-senate-bill-315-criminal-procedurecovid-19-alternative-adjudication-program/1693172/ (last visited Apr. 7, 2022).

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Additionally, one can view this bill as a response to backlogged cases and an attempt to accelerate the recently halted criminal justice process. The aforementioned bill, among other new laws, presents an exceptional solution to the current backlog; through the legality of the criminal justice system itself, policymakers find avenues to reclaim justice. The introduction of such bills provides a different outlook on COVID-19 and the criminal justice system. This new path lays the foundation for laws that improve the lives of incarcerated populations by ameliorating the backlog issue. Similar bills can help these populations in the United States and even all around the world, as they face asymmetric consequences and unfair phenomena like case delays. Another way of addressing the backlog through new legislation is extending prisoners' home confinement and not requiring everyone to go back to prison. One example of this path is that on December 21, 2021, Attorney General Marrick Garland released a statement declaring that people who have cooperated with the requirements of home confinement should be allowed the opportunity to continue transitioning back into society instead of returning to prison.16 He issued this regarding the Office of Legal Counsel's decision permitting the Bureau of Prisons to allow those in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act to remain there. In January 2021, the office had previously stated that the prisoners would have to be recalled when the COVID-19 emergency ended.17 This decision is crucial to upholding justice as it grants relief to incarcerated populations and ameliorates the immense case backlog by allowing them to return to society rather than prisons. Using laws and legislation to improve the criminal justice system is an important and now essential step due to the pandemic's impact.

"Statement by Attorney General Merrick B. Garland." "Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency." 17

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CONCLUSION COVID-19 caused dramatic changes to the criminal justice system. The pandemic uprooted the standard timeframe of criminal procedure and created inconceivable case delays. This backlog had a tremendous effect on those awaiting justice as victims of crime and prisoners whose rights have not been fully upheld amidst COVID-19. Virus breakouts and social distancing laws changed the legal landscape over the past two years and made in-person trials more difficult. However, attempting to conduct cases virtually proved an insufficient response as financial challenges and equal access to the internet stand in the way of technological equity. Therefore, new legislation that combats the delays while promoting social justice is a pivotal response to these issues and a crucial step towards establishing an improved criminal justice system.

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A Step Towards Innovation: The Right to Research Jessy Gonzalez Edited by Eli Sclar Jessy Gonzalez (he/him) is a second-year chemical engineering major from San Jose, California. He is currently an undergraduate researcher in the O’Malley Lab at UCSB and the Kemat Lab at Northwestern University as part of the chemical engineering and synthetic biology departments and serves as the Senate President Pro-Tempore for UCSB’s Associated Students and the Technology Director for the Isla Vista Tenants Union. Jessy plans on pursuing a J.D./P.h.D joint program after undergrad and adventure into business law in hopes of one day starting a biotech company for renewable energy.

ABSTRACT Scientific research is a fundamental pillar of human advancement and has revolutionized democracies across the world—from genetic engineering to space exploration to sustainable driverless cars. However, as scientific and technological advances continue to deviate from current physical limitations, such research has been subjected to numerous regulations that impose substantive restrictions on experimentation, the most recent being the development of “designer babies” (genetically selected or altered embryos) and COVID-19 mRNA vaccinations. Consequently, the constitutional right to conduct scientific research free from inquiry has been called into question. Some argue that the law should substantially limit research that raises ethical dilemmas or that is dual use in nature, while others contend that restrictions on specific types of research are futile due to (1) legislative inertia; (2) the law’s 261

imprecision in outlining complex and rapidly evolving scientific models; and (3) the susceptibility of legislators to partisan and parochial interests. Nevertheless, as science becomes more embedded into contemporary society, a scientist’s “right to research” has never been directly addressed by the U.S. Supreme Court, especially the extent to which the First Amendment protects the communication of scientific results. Ergo, these claims of the “right to research” to which there is scant judicial authority should consider how inveterate the research in question is within our democratic institutions and culture. This article will examine these uncharted domains of constitutional law and explore non-traditional, scientist-developed alternatives to utilizing substantive regulations, including codes of conduct, voluntary standards, and universal norms. I.

INTRODUCTION

Public attempts to regulate scientific research have proliferated in the past several years, with the public influencing and intervening in decisions concerning applied research, the utilization of specific subject groups, and the methods to conduct research, as evidenced by the recent and continuing debate over using CRISPR/Cas9–based systems to genetically engineer human embryos. While the amalgamation of society and science may seem sensible, the trend for public control over science threatens to politicize and even confine the liberties of scientific research. The suppression of research based on substantive content has, of course, occurred in other historical and geographical contexts. For instance, Lysenkoism (a political campaign that sought to constrain genetics and science-based agriculture) in the Soviet Union terminated scientific creativity, the freedom to express opposing views, and the social benefits of novel discoveries. In the 1930s, Soviet officials placed Trofim Lysenko, the biologist behind Lysenkoism, in charge of the agricultural department, where he eviscerated the Soviet Union’s genetics community. Lysenko imposed 262

policies that forced scientists to reject genetics or else find themselves under the heel of the secret police. Overall, “hundreds if not thousands of others were rounded up and dumped into prisons or psychiatric hospitals. Several got sentenced to death as enemies of the state or, fittingly, starved in their jail cells.”1 While the science may seem wildly unreasonable or illogical for others to impose, Soviet allies, such as China, adopted Lysenko’s policies in the 1950s. During China’s Great Leap Forward (a period where the country shifted from an agrarian economy to a communist society), the influence of Lysenkoists on agrarian policy2 contributed to the Great Famine, where around 30 million3 people starved to death. All in all, Lysenkoism oppressed contrasting scientific perspectives and, arguably, plunged Russian biology back almost half a century.4 In general, most scientists would agree that any government restriction infringes on their right of free scientific inquiry to choose their methods and goals in accordance with scientific validity.5 In 1985, U.S. President Ronald Reagan issued the National Security Decision Document 189, which asserts that “to the maximum extent possible, the products of fundamental research [shall] remain unrestricted.”6 Likewise, under U.S. President George W. Bush’s administration, the White House Office of Science and Technology Policy Director, John Marburger, argued that “[w]here the marketplace of ideas is

Sam Kean, The Soviet Era's Deadliest Scientist Is Regaining Popularity in Russia, THE ATLANTIC (2017), https://www.theatlantic.com/science/archive/2017/12/trofim-lysenkosoviet-union-russia/548786/. 2 Glenn Kucha & Jennifer Llewellyn, The Great Chinese Famine, ALPHA HISTORY (2020), alphahistory.com/chineserevolution/great-chinese-famine/. 3 Vaclav Smil, China's great famine: 40 years later, 319 PUBMED CENTRAL 1619–1621 (1999), , www.ncbi.nlm.nih.gov/pmc/articles/PMC1127087/. 4 JERRY A. COYNE, FAITH VS. FACT: WHY SCIENCE AND RELIGION ARE INCOMPATIBLE 221 (2016). 5 Carl Cohen, When May Research Be Stopped?, 296 NEW ENG. J. MED. 1203– 1210 (1977); Dewitt Stetten Jr., Freedom of Enquiry, 81 GENETICS 415– 425 (1975). 6 NSDD-189: National Policy on the Transfer of Scientific, Technical and Engineering Information, NATIONAL SECURITY DECISION DIRECTIVES, irp.fas.org/offdocs/nsdd/nsdd-189.htm (last visited Apr. 13, 2022).

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regulated, the quality of thought diminishes, and science suffers.” 7 In essence, public and governmental interventions violate a scientist’s right to conduct research and are pernicious to progress. The government nor the voters decide research practices and activities, and the scientific community may even be considered its own autonomous body. But, because of recent growing public interventions, it is essential to ponder whether our legal system recognizes the freedom of scientific inquiry as a right or a privilege? Does the U.S. Constitution protect this freedom? Can the government restrict and heavily regulate research methods? When is it appropriate for the public to intervene? These questions challenge the “handsoff” approach to basic science. Much of the tension surrounding the freedom of scientific inquiry derives from the confusion over the constitutionality of the issue. The following section analyzes several sources of this right. II.

CONSTITUTIONAL STATUS

The potential existence of a right against government intervention in choosing the means to pursue specific research or the choice of a research topic does not assert that such decisions are entirely immune from government regulation. Of course, the right denotes that in the absence of government intervention, one is entirely free to engage in any research activity and that only specific governmentimposed regulations would be valid. Without a doubt, many if not all rights are limited when they conflict with other legitimate state ends—generally referring to state interests, objectives, or justifications. Consequently, the right to research must submit to weighty public interests, like how the rights of journalists 8 and speakers9 must yield when their exercise imposes high costs on others, such as screaming “Fire!” in a crowded theater.10 7

John Marburger, Remarks to the National Academy of Sciences/Center for Strategic and International Standards Workshop on Publishing in the Life Sciences (January 09, 2003). 8 Branzburg v. Hayes, 408 U.S. 665 (1972). 9 Adderly v. Florida, 385 U.S. 39 (1966). 10 Schenck v. United States, 249 U.S. 47 (1919)

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To determine what degree of harm must exist before any right may be limited, a test must be applied to indicate the government’s regulatory validity in restricting such freedom. Typically, the individual challenging the state enactment is charged with establishing that the specific law is unjust or has no relation to the public’s goals of health, welfare, safety, or morals that the state may seek. Unfortunately, the downfall of substantive due process since the 1930s has allowed legislative discretion to be immensely broad and leave a substantial burden on the challenger. A court may even “presume the legislature has a rational basis for the law even if no facts in the record support such a conclusion.”11 For instance, in Bowers v. Hardwick12, the Supreme court upheld the constitutionality that homosexual acts of intimacy, even when conducted in private settings, were criminal and therefore lay outside their “right to privacy”13 for reasons primarily fearing that the Court will go down a road of illegitimacy. On the other hand, the standard of validity for state impingement on constitutional rights is much higher. First, instead of the challenger, the government has the burden of conveying the exact need for the law. Second, only those particular needs that are considerable, enthralling, or potent will be upheld. Third, the restriction must be fabricated in a way to limit the constitutional right to the minimum extent necessary. For instance, in Roe v. Wade,14 the Supreme Court characterized the legislature’s interest in advocating for the potential life of fetuses as captivating but only after the fetuses become viable (which is usually after the first trimester); however, this interest in fetus viability was later rejected in Planned Parenthood v. Casey.15 In short, a state infringement of a constitutional right institutes strict scrutiny for the legislature’s selection on both the ends and means. Frequently, under a rational relation test, burdens imposed to achieve state ends would not pass strict

Harpaz, Leora, Due Process Review, WESTERN NEW ENGLAND UNIVERSITY SCHOOL OF LAW, www.wneclaw.com/conlaw/dueprocessreview2012.html. 12 Bowers v. Hardwick, 478 U.S. 186 (1986) 13 Id. at 2844. 14 Roe v. Wade, 410 U.S. 113 (1973) 15 Planned Parenthood v. Casey, 505 U.S. 883 (1992)

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scrutiny. Thus, the latter test resolves uncertainty in favor of the challenger; the former test in favor of the regulation. Frankly, state regulations would be difficult to enact if the freedom to choose the means and ends of research is constitutionally protected since the state will have to substantially justify the need, which, in many cases, may not be evident. Only where there is a demonstrable necessity could the state impose regulations with any doubts resolved in favor of the science. However, this higher standard of strict scrutiny will come at a cost; research that contravenes valid interests unjustifiably would not be regulated. Although the research right may be justifiably recognized, owing to the fact that the costs to the breached interests are less significant than the costs to science would result in a “looser standard” of scrutiny to regulating research. While the United States Supreme Court has never directly dealt with the freedom of scientific inquiry, progress in a few areas suggests that the right to research does indeed have constitutional protection. III.

RIGHT OF ASSOCIATION

Support for the right to research should be considered in the constitutionally protected right of association. Under the First Amendment, the Constitution secures the freedom to associate with others who share similar interests.16 In this case, scientific research entails association regarding human participation and collaboration. During specific experiments, the researcher and the human subject associate with one another when the human subject allows the researcher to manipulate, observe, or interview themself for purposes of scientific discovery and investigation. The same could be said for when researchers associate among the scientific community to carry out joint experiments or discuss potential hypotheses cooperatively. Therefore, restrictions imposed on both the means and ends of research could impair the 16

FindLaw Attorney Writers, First Amendment Freedom of Association, FINDLAW (December 13, 2021), constitution.findlaw.com/amendment1/first-amendment-freedomof-association.html.

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capacity for researchers to gather among themselves or meet with their subjects for scientific purposes, ultimately suggesting that such restrictions violate the right of association. Although not all types of associations are protected under the First Amendment, research does involve significant speech interests. As evidenced in Moore v. City of East Cleveland,17 Justice Stewart postulated that the Constitution guarantees certain rights of association under the first amendment "because it is often indispensable to effectuation of explicit First Amendment guarantees. . .[and] has been limited to the constitutional need that created it." 18 Undoubtedly, these speech interests produce information and ideas, typically through formal research papers, essential to the scientific community’s progression. However, the argument for research as a legitimate association may hardly support the dispute that research is a constitutional right because its guarantee as some classification of an association depends on the recognition that the means of the research is particularly a speech or expressive activity. In accordance with Justice Stewart, without that kind of recognition, it would not have independent standing, but with that recognition, it would be unnecessary to seek protections as a right of association. Nevertheless, that is not to say that the argument for research as an association should not be utilized; there may be instances where acknowledging the various association aspects of research will surely reinforce the free speech claims that may result when government restrictions and regulations infringe on the willing researcher-subject relationship or populations of scientists. For instance, prohibiting conferences so scientists may meet to deliberate and plan future investigations and experiments would be subject independently to transgress on association grounds, even though it may very well violate the right to research. All in all, if there is any doubt about the extent or existence of the right to research, the right of association argument will be vital to the conversation.

17 18

Moore v. City of East Cleveland, 431 U.S. 494 (1977) Id.

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IV.

RIGHT TO FREE SPEECH

Furthermore, the research right may derive from the First Amendment concerning “that there be full opportunity for expression in all its varied forms to convey a desired message.”19 The full opportunity for expression serves multiple ends, including societal and individual—society may enjoy the information necessary to make decisions surrounding politics, and individuals may simply enjoy personal expression and perhaps some fulfillment. In Roth v. United States,20 the Supreme Court asserts that “all ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees.”21 Therefore, to ensure that the state may meet these goals, they shall not contrast the worth of ideas. With that being said, scientific ideas and information are evidently within the guarantee of the First Amendment, similar to the protection of political speech. Science provides relevant knowledge to a wide range of social and individual decisions, whether that may be in government policies, in deciphering which product to buy, or how we decide to view nature. Indeed, mankind cannot progress in the modern world without easy access to scientific information. If the goal of free speech is to ensure the free flow of information for private and public decision-making, then all the features—developing, collecting, distributing, and receiving—of information must be secured. The right to free speech would undoubtedly protect research, specifically the process of collecting information, for two reasons. First, research collection involves traditionally protected activities, such as oration, publishing, and writing. So investigative interviews in the social, psychological sciences, and similar fields that use willing interviewees would be protected since both participants, the interviewer and interviewee would be exercising their First Amendment right to 19

Young v. American Mini Theaters, Inc., 427 U.S. 50, 76 (1976) Roth v. United States, 354 U.S. 476 (1957) 21 Roth v. United States, 354 U.S. 476, 484 (1957). 20

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talk with one another. Secondly, a scientist’s right to publish would be ordinarily guaranteed under the First Amendment rights to publish. Furthermore, the Supreme Court has upheld free inquiry historically. In Sweezy v. New Hampshire,22 the Court addressed the issue of free inquiry in a broader context of academic freedom, stating that "teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die." Justice Frankfurter goes further to concur, “For society's good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulations in others of reflections upon them, must be left as unfettered as possible.” Obviously, since research produces information crucial to societal and individual purposes, scientists shall have the right to research free from inquiry. V.

ISSUES WITH REGULATING SCIENCE

The law is indeed one of the most powerful tools to establish a tangible change in society and guide human behavior. As a result, when individuals deliberate the need to regulate the means and ends of research, they are almost certainly pointing towards the law, whether it may be in the form of legislation or policy. However, the law has significant limitations in its capabilities, especially when it comes to regulating research. The following section will outline a few of these limitations. VI.

UNINTENDED LEGISLATIVE INERTIA

When a law passes and is publicly publicized, it is challenging to revise the law even when it has become evidently clear that the law is obsolete. The interaction between political and institutional powers produces inertial pressures that render laws stagnate, serving neglected purposes and obsolescent policies. In 22

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

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1986, the United States Office of Technology Assessment (OTA) addressed this issue concerning the intellectual property system and asserted that “once a relatively slow and ponderous process, technological change is now outpacing the legal structure that governs the system, and is creating pressures on Congress to adjust the law to accommodate these changes.”23 With fascinating discoveries every day and rapidly evolving scientific fields, this raises significant issues with regulations since such laws will have trouble keeping up with these advancements. The process of developing legislation coupled with the judicial case-law system is notoriously slow. Despite the plethora of issues out there, Congress, along with similar legislatures, may only address a small amount of them during general sessions; not to mention, during litigation, a single case may take months to years before receiving a judicial decision, further increasing the probability that the judicial opinion could perhaps be obsolete at its issuance. For instance, in 1958, New York Congressman James Delaney sponsored an amendment to the Food, Drugs, and Cosmetic Act, colloquially known as the Delaney Clause. The clause prohibited any food additive that was “found to induce cancer in man, or, after tests, found to induce cancer in animals.” When the clause was enacted, society was unaware of all the different chemicals that could cause cancer, and, at the time, carcinogenic additives were viewed as uncommon in human diets. However, emerging scientific knowledge proved that at least half of all known chemicals had the potential to cause cancer in animal tests at high doses and that almost every food additive contained traces of carcinogens. As a result, the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA) attempted to revise the Delaney Clause, suggesting exemptions to additives with insignificant cancer risks, but the courts constantly rejected their actions. The courts deemed that only Congress may make such

Intellectual Property Rights in an Age of Electronics and Information, U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, books.google.com/books?id=utHf_v2yGSsC&ots=jRAmdxpT7e&lr&pg=PA19#v=onepa ge&q&f=false (last visited Apr. 22, 2022).

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changes to the outdated views on carcinogenic additives in the Delaney Clause.24 In the end, it took until 1996—38 years after the enactment—for Congress to finally update the statute and address these outdated policies concerning science. VII.

UNPREDICTABILITY

Scientific research constantly proceeds in unanticipated directions; numerous mistakes and accidents have led to novel and famous discoveries, such as the accidental discoveries of Penicillin25 and microwaves.26 Molecular biologist Robert Weinberg of the Massachusetts Institute of Technology, after listing numerous examples of “serendipitous discoveries” that have advanced cancer comprehension, noted that “[n]o one could have predicted how these discoveries would arise and play themselves out.”27 Therefore, it is implausible for anyone (a scientist or a lawmaker) to have the necessary forethought to dictate what may result from a research project, including if an experiment may or may not go in the direction of unsuitable risks. Sure, if we restrict certain fields of scientific inquiry, we could avoid any potential unethical or pernicious advances; however, these blockades will also impede novel discoveries that may behoove mankind.

Richard A. Merrill, FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress, 5 YALE J. ON REG 1 (1988), heinonline.org/HOL/P?h=hein.journals/yjor5&i=7. 25 American Chemical Society International Historic Chemical Landmarks, Discovery and Development of Penicillin, AMERICAN CHEMICAL SOCIETY (November 19, 1999), www.acs.org/content/acs/en/education/whatischemistry/landmarks/flemingpenicillin.html . 26 Matt Blitz, How the Microwave Was Invented by Accident, POPULAR MECHANICS (February, 24, 2016), www.popularmechanics.com/technology/gadgets/a19567/how-themicrowave-was-invented-by-accident/. 27 Robert A. Weinberg, You Can't Get There from Here: The Tortuous Road to Basic Research, 69 ACADEMIC MEDICINE 441– 442 (1994), oce.ovid.com/article/00001888199406000-00002/HTML.

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VIII.

PAROCHIAL INTERESTS28

External pressures and influences dictate the strength of the legislative process, holding it accountable to the public. Yet any issue dealing with ethics or science policy is highly probable to become an ostensibly non-political matter, often generating partisan, broad, or unpredictable results. For instance, in 2002, numerous members of Congress made an effort to hold scientific proposed legislation hostage to ban reproductive cloning, which is almost universally supported internationally,29 unless a more controversial prohibition on therapeutic cloning is also enacted simultaneously. Additionally, the FDA’s extensive delays in approving over-the-counter sales of the “morning-after” birth-control pill are arguably based on political and ideological reasons. These are perhaps the very reasons why courts have been extremely skeptical of legislators relying on moral and ethical concerns as a legitimate reason for restricting the rights of others.30 With any line of research, the potential benefits are highly unpredictable, far into the future, and require exceedingly complex technical knowledge; thus, it is doubtful for there to be much of a constituency among the general public for supporting specific research fields with the possible exception of research that concerns promising health benefits. On the other hand, it is relatively easy for any politician to demagogue controversial research such as “designer babies,” as illustrated by Senator Proxmire’s “Golden Fleece” award, where he singled out dubious-sounding federal research efforts for

Parochial interests are those that benefit a specific group who shares the same interests but can never describe the interests of an individual. 29 Susan M. Wolf, Ban Cloning? Why NBAC Is Wrong, 27 THE HASTINGS CENTER REPORT 5 (1997), https://www.jstor.org/stable/3527794?seq=1. 30 Dana Remus Irwin, Freedom of Thought: The First Amendment and the Scientific Method, 2005 Wis. L. REV. 1479 (2005), https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/wlr2005&id =1493&men_tab=srchresults

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public ridicule that in many situations actually turned out to generate highly important and valuable information.31 As even Robert Sinsheimer, an outspoken advocate of heavily regulating research, asserts, “Our experience with constraint upon science has hardly been encouraging. From the Inquisition to Lysenko such constraint has been the work of bigots and charlatans.”32 No doubt, it cannot be denied that democratic oversight is important, but the highly partisan, short-sighted, and often superficial approach to issues, especially issues concerning the sciences, commonly demonstrated by Congressional members, suggest that legislatures are substandard locations for developing intricate and carefully delineated regulations on research. IX.

ALTERNATIVES

Although legal instruments to regulate scientific research are prone to be ineffective and counterproductive, this does not mean that science should never be regulated. Instead, these attempts to legally regulate research should be enacted only in the most extreme cases that contain unavoidable and pernicious risks. First, however, it is essential to distinguish two critical motivations for prohibiting the sciences. The first being research that is “dual-use” in nature, having both beneficial and malevolent applications. Although this research is not morally objectionable, it potentially can be deliberately or accidentally utilized to cause harm to society. For instance, COVID-19 vaccine research is crucial to better comprehend SARS-CoV-2 (the virus that causes the COVID19 disease) to prevent further outbreaks, but such research may also be used to instigate more lethal bioterrorism attacks. The second motivation comes when members of the public feel that the research and its potential applications are 31

Alan I. Leshner, Don’t Let Ideology Trump Science, SCIENCE (November 28, 2003), https://www.science.org/doi/full/10.1126/science.302.5650.1479. 32 David A. Bantz, Philosophy of Science, 51 THE UNIVERSITY OF CHICAGO PRESS 3 (1984), http://www.jstor.org/stable/187502.

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morally objectionable. Unlike dual-use research, the benefits cannot be separated from the unsavory aspects of the research as they overlap. Some examples may include research that involves the production of genetically modified embryos (designer babies), the formation of human-animal chimeras, or research that investigates the relationship between intelligence and race. Generally, there is little disagreement in dual-use research that the beneficial applications are desirable, and the harmful ones are not; the controversy is weighing the two. However, for research considered morally objectionable or unethical, there may be significant disagreements since the distinctions between what is moral and what is not are absolute. X.

MANAGING UNDESIRABLE APPLICATIONS To address dual-use research, one obvious approach is to control or

direct the knowledge of unwanted applications while allowing the beneficial activities to continue. In other words, society may seek to regulate scientific knowledge in the same way other potentially pernicious products such as firearms, automobiles, and fireworks are regulated. As the National Research Council (NRC) report, Biotechnology Research in an Age of Terrorism, concluded with respect to dual-use research that “the key issue is whether the risks associated with misuse can be reduced while still enabling critical research to go forward.”33 The report recommends a series of educational tips, reporting methods, and oversight to accomplish this goal. Needless to say, there may be some research whose harmful applications are too likely and severe that allowing unfettered progress may be unacceptable. XI.

RESTRICTING SCIENTIFIC RESULTS

NATIONAL RESEARCH COUNCIL, BIOTECHNOLOGY RESEARCH IN AN AGE OF TERRORISM 19 (2004),

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Another approach to address dual-use research is instead of prohibiting scientific experimentation, the state should restrict the publication of specific scientific results. For example, scientists should be able to sequence and analyze entire genomes of pathogenic organisms but should only report relevant findings without publishing the whole sequence data that terrorists could use to negatively modify such organisms. In 2007, The National Scientific Advisory Board for Biosecurity (NSABB) released a draft report suggesting that concerning research should be reviewed prior to publication, and in cases where the risks outweigh the benefits, the publication should be regulated either by: (i) modifying the manuscript to delete sensitive material; (ii) delaying publication; (iii) adding information that explains the context of the research; (iv) foregoing any communication and publication; or (v) limiting distribution of publications to qualified experts or those who “need to know.”34 Ultimately, this approach allows the public to still reap the benefits of dual-use research while minimizing the risks involved. XII.

CODES AND GUIDELINES

Adopting consensus codes and guidelines is an effective tool of self-regulation that can readily adapt to unforeseen or rapidly changing circumstances. Generally, scientists are vastly aware of their professional standing and reputation among their fellow peers; thus, it is likely that responsible scientists will adhere to codes and guidelines promulgated by credible scientific institutions such as the National Research Council. Some examples of these selfregulatory initiatives include the NRC’s recommended code of practice for stem cell research,35 which highly discourages specific means of 34

Proposed framework for the oversight of dual use life sciences research: Strategies for minimizing the potential misuse of research information, NSABB WORKING GROUP ON OVERSIGHT FRAMEWORK DEVELOPMENT, https://osp.od.nih.gov/wpcontent/uploads/Proposed-Oversight-Framework-for-Dual-Use-Research.pdf (last visited Apr. 27, 2022) 35 NATIONAL RESEARCH COUNCIL, GUIDELINES FOR HUMAN EMBRYONIC STEM CELL RESEARCH (2005)

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experimentation, such as placing human embryonic stem cells in primate brains. Additionally, a group of leading scientific and industry experts in synthetic biology provided the oversight framework for the field, particularly concerning the commercialization of DNA synthesis.36 Perhaps the most familiar is the recombinant DNA guidelines that were developed as a result of the Asilomar conference.37 Within the scientific community, these norms help foster a culture of responsibility that may be more effective than legal prohibitions. XIII.

DISCUSSION

The capacity for man to understand nature, to understand the universe through science rests on a meticulous method of discovering the truth and a strong willingness to change existing truths as research continuously generates new evidence. State and public interference with a scientist’s right to research—to choose the ends and means of their projects—and obtain data to produce new truths is an interference with the universal criteria of validity that is crucial to the scientific community and fundamentally reduces its social utility. Without a doubt, science is not an unconditional blessing of man’s intelligence. Like the Garden of Eden’s tree of knowledge, its discoveries can drastically augment man’s power for evil, such as the invention of the nuclear bomb. As a result, it is understandable why society, as it provides the resources, bears the costs, and reaps the benefits, may have an interest in the ends and means of scientific research. However, before the state may regulate such research, it needs to observe its limitations. Since research generates new knowledge that is potent for social and individual decision-making, regulating science becomes a matter of regulating the information available to the population for the multitude of private and public choices they may face. 36

Hans Bügl, John P. Danner et al, DNA Synthesis and Biological Security, 25 NATURE BIOTECHNOLOGY 627– 629 (2007), https://doi.org/10.1038/nbt0607-627. 37 In February 1975, Paul Berg, Maxine Singer, and colleagues held a conference in Asilomar State Beach, California to discuss the potential biohazards and regulation of emerging biotechnology.

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Generally, any government control over information is suspect; typically, they must comply with the substantive and procedural standards of the First Amendment. Despite research not being entirely a publication activity, it is a crucial precondition for publication. Overall, public disputes over research methods and goals continue to morph the boundary between science and society. This situation primarily involves questions of how new knowledge—its relative benefits and burdens— is to be distributed. Here ethics collide with social commitment to sway political decisions, within the First Amendment guarantees to assure that the costs of restricting or regulating knowledge to carry out other objectives are carefully weighed. In general, coming up with decisions that precisely outline what kind of research society should accept and the legal implementation of those decisions are problematic. Arguably, scientific research is sacrosanct, in need of self-determination, and to be minimally regulated by the coalescence of public and governmental forces. While there are an endless number of experiments that many people could imagine should be regulated from antibiotic-resistant bacteria to tinkering with embryonic stem cells, the First Amendment does not permit scientists from being persecuted as a result of their ideas or investigations unless such activities directly harm the safety or rights of non–consenting individuals. With this in mind, scientists do have a constitutional right to research. It is what allows engineers to alter the code of life and will ultimately protect Galileo from the Roman Inquisition.

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UC Santa Barbara Undergraduate Law Journal: Volume 1

Articles inside

A Step Towards Innovation: The Right to Research

Delayed Justice As Cases Stall: The Impact of COVID-19 on the Criminal Justice System

The Lack of Action Following the United Nations Declarationof the Rights of Indigenous Peoples

The United Arab Emirates: Evaluating the Potency of its Insolvency Regulations

The Role Race Plays in the Judicial Systems

Considering Supreme Court Reform

Means To An End: On Affirmative Action

Environmental Impact Reports: Elevating Environmental Concerns or Blocking Sustainable Urban Development?

A New Political Era in Determining Reproductive Rights

Democracy Gone Digital: Federal Surveillance Through The Data Marketplace

Corporate Personhood: An Unusual Promise for American CorporateLaw and Constitutional Rights

Moving Beyond NFIB V. OSHA: Vaccine Mandates Under TheCommerce Clause

Dobbs v. Jackson Women’s Health Organization: The Future ofAbortion

Opportunity Zones: Uplifting Distressed Communities or Amplifying Inequitable Outcomes?

Contracts of Adhesion: Inaccessibility and Lack of Consumer Protections onTerms ofUse Agreements

Patents in Virtual/Augmented Reality: Discussions in Software Patents