Plugging the LeaksPrivacy issues have changed since the era of the Pentagon

Papers, but Washington is rushing to catch up.PAGE 12

Crook to Counsel - Page 6Shon Hopwood, a convicted bank robber turned Gates Scholar,discusses his life and the path he has tried to follow.

Space Law - Page 2Ongoing space exploration may yeild a wealth of new resources, provided that the law gets behind entrepenurial efforts.

Ellsberg Interview - Page 16Amicus sits down with the Pentagon Papers leaker to discuss the future of secrecy, and why some things should stay hidden away.

VOLUME 1, NUMBER 1 - WINTER 2013/2014

AmicusYale’s Undergraduate Law Magazine

Table of ConTenTs

1 A note from the editors

2 feaTure - Space law, the final legal frontier - Zein El Azzouni

6 InTervIew - Shon Hopwood - Erica Yurvati

8 opInIon - The chemical model - Ben Weissler

10 feaTure - Two years at law school? - Skyler Ross

12 Cover - Leaky laws - Jonathon Bowyer

15 from The blog - The Kuttner Library at Yale - Tyler Foggatt

16 InTervIew - Daniel Ellsberg - Andrew Tran

20 feaTure - Is Google feeling lucky? - Tyler Foggatt

22 opInIon - Niqabs in court - Nasos Abuel

24 aCademIC essay - Courts and corporations - Laila Robbins

30 opInIon - Elephant in the senate chamber - Cooper D’Agostino

32 Case revIew - Lozano v. Alvarez - Connie Wang

33 Case revIew - McCullen v. Coakley - Robert Flatow

amICus: yale’s undergraduaTe law magazIne

amICusmagazIne.org

edITors-In-ChIef: Robert Peck, Raymond ZhumanagIng edITors: Janine Chow, Andrew Tran

ConTrIbuTors: Nasos Abuel, Zein El Azzouni, Jonathon Bowyer, Devon Breton-Pakozdi, Cooper D’Agostino, Clement Dupuy, Robert Flatow, Tyler Foggatt, Armando Ghinaglia, Rachel Han, Ezra Husney, Michelle Kim,

Tianyi Pan, Laila Robbins, Skyler Ross, William Sadock, Albert Shin, Connie Wang,Ben Weissler, Erica Yurvati, Aiste Zalepuga, Edwin Zhang

prInT and web desIgn by roberT peCk

you Can help wITh wrITIng, desIgnIng, IllusTraTIng and edITIng! emaIl edITor.amICus@gmaIl.Com.

amicus curiae [æˈmiːkʊs ˈkjʊərɪˌiː]: Latin, literally: friend of the court.A person not directly engaged in a case who advises the court.

a noTe from The edITors:

As our university hosts the best law school in the nation, if not the world, it seemed absurd to us as we arrived back on campus this year that another term should pass without some kind of venue to engage undergraduate interest in legal happenings. We created this magazine to provide that venue. Our goal is not to foster complete exper-tise in the law, nor to bring about some sort of fundamental shift in its interpretation — though we would not, of course, be opposed to either. Rather, our hope is merely that by examining these pages, considering the magazine’s contents, and discussing the ideas herein, our readers might gain some level of appreciation or understanding of the law that goes beyond what they previously had. If Yale’s undergraduate law com-munity grows even slightly as a result of our efforts, then we have not labored in vain.

To that end, we have done our best to compile an engaging collection of articles for your enjoyment. The theme of this issue is “privacy versus security in the modern day,” and you can find several pieces on that subject within. However, this edition also examines topics ranging from our campus to London courtrooms to outer space, and everywhere in between. Inside, you can find opinionated outbursts and well-reasoned arguments, colorful tales of kidnapping and deceit, and interviews with some of America’s foremost legal minds. Our writers have discussed workplace violations with New Haven community members, cold-called district court justices in the early hours of the morning and read hundreds of pages of briefs, writs and reports, all in order to deliver their work to you. We hope that you will find it as absorbing as we have.

If you are a Yale student and are interested in helping with the creation of this magazine, please reach out and contact us. We are always happy to find new members of the Yale community who share our interest in the law. You can also find us online at amicusmagazine.org.

roberT peCk and raymond zhu

amICus edITors-In-ChIef

Space Law:The FinaL LegaL FronTier?

By Zein eL aZZouni

Features

The idea of human colo-nization of space has always seemed more suited to the pages of a science-fiction novel than to reality. From Arthur C. Clarke’s vision of colonies on Jupiter, to Star Wars, Star Trek, and even the plans of the Mars Society today, human colonization of space forms a romantic tale of starry-eyed schoolboy dreams and sci-fi fantasies. Progress toward estab-lishing such a presence in space, however, has stalled; ever since the 1990s and the end of the Cold War, no significant progress has been made towards the settle-ment and exploitation of spatial resources.

But (to quote Mulberry Sell-ers), “there’s gold in them thar hills.” Asteroids contain valuable resources such as gold, cobalt, manganese and rhodium, among others, and that’s without con-sidering their abundance of rare earth elements (REE) such as neodymium, yttrium, iridium and platinum. It comes as no sur-prise then, that the prospect of such opportunity has lured in an eclectic mix of billionaire entre-preneurs, investors and govern-ment agencies, all pursuing the idea of an economic exploration of space.

“The resources of Earth pale in comparison to the wealth of the solar systems,” remarks Eric Anderson, co-founder of the commercial space tourism com-pany Space Adventures. Nearly 9,000 large asteroids orbit around us, many containing as much platinum as is mined in an entire

year on Earth, making them po-tentially worth several billions of dollars each. With the right kinds of investment, space could reap huge rewards for those willing to take the risk.

Enter companies like Plan-etary Resources, a billionaire tech asteroid-mining company headed by Google executives Larry Page and Eric Schmidt, and backed by, among others, film director James Cameron and Virgin Mo-bile’s Sir Richard Branson. Simi-larly, Microsoft’s Naveen Jain’s company Moon Express plans to use robots to start mining on the Moon, while Texas-based Shack-leton Energy Company hopes to revolutionize space travel by min-ing the billions of tons of freely available lunar ice.

“If humanity is to have any future beyond Earth, we must learn how to responsibly extract and make what we need in space,” says Shackleton Energy’s found-er, Bill Stone.

But legally speaking, outer-space is like the Wild West. There are no universally accepted space law treaties, and there is still only a vague legal framework in place for the final frontier. Admittedly, efforts to establish jurisdiction and evolve a body of law directly related to space have been grow-ing in recent years; space lawyers even have their own legal journals and programs, like the University of Mississippi’s Journal of Space Law and its corresponding Na-tional Centre for Remote Sensing and Space Law, or the University of Nebraska-Lincoln’s Space, Cy-ber and Telecommunications Law

Program.However, despite attempts

to create a legal framework for space, little has actually been ac-complished in terms of property rights. Lacking legally acknowl-edged rights of ownership, it becomes almost impossible to productively plan for the utiliza-tion of outer-space.

“Property rights have long been considered one of the pil-lars of prosperity in the modern world” notes Rand Simberg, aero-space engineer and consultant in space commercialization and tourism, “and their absence in space – due to the contingencies of the history of international law during the early space age – party explains why we have not yet developed a final frontier”.

International space law as it is known today began to take shape at the height of the Cold War, at a time when outer space was viewed not as a potential fron-tier for human colonization, but rather as an uncharted realm for scientific discovery. In response to the heightened scientific, technical and political needs of the epoch, the 1967 Treaty on Principles Governing the Activi-ties of States’ Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies was created. This docu-ment, commonly called the Outer Space Treaty (OST), not only contributed to a period of dé-tente in the tumultuous Cold War atmosphere, but also laid down the foundations for international regulation of space activities, es-tablishing a legal framework that

has governed all space activities conducted in the past four de-cades. The main body of the OST outlines five central principles:

(a) Recognition of the com-mon interest of mankind in the exploration and use of outer space, including the Moon and other celestial bodies, as an area for space activities of all coun-tries, without any difference in their economic and scientific de-velopment, such exploration and use having become “the province of all mankind”;

(b) Recognition of the free-dom of outer space, including the Moon and other celestial bodies, for exploration and use by all states, on a basis of equality and in accordance with international law;

(c) Stipulation of free access to all areas of celestial bodies;

(d) Recognition of the free-dom of scientific investigation in outer space, including the Moon and other celestial bodies, and promotion of international coop-eration in such investigation;

(e) Renunciation of national appropriation of outer space, including the Moon and other ce-lestial bodies, by any means; and

(f) Confirmation of the ap-plicability of international law, in-cluding the Charter of the United Nations, to activities in the explo-

ration and use of outer space, the Moon and other celestial bodies in the interest of maintaining peace and security and promot-ing international cooperation and understanding.

What the OST managed to achieve was reconciliation be-tween the controversial views of those wishing to preserve space activities only for states and inter-governmental organizations, and those advocating access to outer space for non-governmental enti-ties. Under Article VI, signatory governments bear international responsibility for national ac-tivities carried out in outer-space, irrespective of whether they are carried out by governmental or non-governmental entities.

“By adopting this principle,” notes space-law historian Vladi-mir Kopal, “the negotiating states

paved the way for the private sector to conduct space activi-ties side by side with States and international government organi-zations.”

Alternatively, the inclusion of Article IV of the OST man-aged to specifically target limiting military involvement in space. In conjunction with the 1963 Mos-cow Treaty, a product of the same period of détente that produced the OST, Article IV resulted in, inter alia, a nuclear test-ban be-

yond the limits of the atmosphere “including outer space”, thereby establishing an immense denucle-arized zone around the earth.

Many of the provisions of the OST have also been supple-mented by subsequent interna-tional agreements, chief among them being the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, more commonly known as the Moon Treaty. The main aim of this treaty was to ensure that all off-Earth territories and resources were considered the “common-heritage of mankind,” and therefore were unable to be owned by any one entity. Mod-eled after the 1982 Law of the Sea Treaty (which aims to regu-late deep-sea mining), the Moon Treaty distinctly prohibits the entire idea of property rights in space.

Looking back at The Law of the Sea Treaty, it becomes clear that such a principle would, in ac-tuality, deny most of the rewards of space prospecting to those who would actually undertake it, making it a barrier to any sort of economic expansion (be it mari-time or spatial). As Simberg notes, “the Moon Treaty is essentially a failed piece of international law … The provisions of the Moon Treaty remain a potential disin-centive to the economic develop-ment of space, and underscore the case for the United States to repudiate it by providing an alter-native, more market-friendly legal approach to space-settlement.”

Parallels can also be made to the 1959 Antarctic Treaty. Both

The main aim of this treaty was to ensure that all off-Earth territories and resources were

considered the “common-heritage ofmankind,” and therefore were unable to be owned by

any one entity. The Moon Treaty distinctly prohibits the entire idea of property rights in space.

the OST (in Article IV) and the Antarctic Treaty establish their respective zones as regions for peaceful scientific explora-tion. What the OST fails to do, however, is include any proviso addressing the legality of perma-nent establishments and scientific facilities in outer space. Indeed, many view the similarity between the Antarctic Treaty and the OST to be extremely problematic.

“Because the Antarctic Treaty prevented any nations from estab-lishing sovereignty and contained no provisions for granting prop-erty rights or regulating economic activity, resources in the Antarctic have gone underdeveloped to this day,” Simberg says. “This stands in contrast to the emerg-ing resource boom in the equally inhospitable regions of the Arc-tic, where much clearer property rights exist under the jurisdiction of Arctic nations.” The reason behind such an oversight may be attributed to the historical context of the time: bearing in mind that the OST was formulated dur-ing the Space Race, space travel was probably at the forefront of thought while the idea of economic expansion may have been largely disregarded. Thus, as Kopal states, “[the OST] does not contain any principles that would regulate economic activities for the purpose of exploring and ex-ploiting the natural resources of outer space, the Moon and other celestial bodies, or indeed for pro-ducing energy from outer space for commercial purposes.”

Despite providing appropriate solutions to many problems relat-

ing to outer space at the time, the OST is not a comprehensive legal framework for all existing and foreseeable aspects of space-re-lated activities. Most obviously, it failed to adequately clarify precise interpretations for many of its operative notions, including (but not limited to): “outer space”, “space object”, “orbit around the Earth”, “peaceful purposes”, “exploration of and use of outer space”, and “celestial bodies”. This ambiguity has remained a subject of much controversy among legal scholars. In fact, the OST as a whole leaves us with an, as-of-yet, unsolved conceptual quandary, as it neglects to define any of its operative notions for fear of rendering its provisions obsolete in the light of unforesee-able scientific and technological advances. Article II of the OST, for example, notes that “outer space, including the Moon and other celestial bodies, is not sub-ject to national appropriation by claim of sovereignty, by means of use or occupation, or by other means.” Even a perfunctory glance at this provision seems to suggest a number of fundamental questions which will have to be resolved if man’s spatial explora-tions are to take place within a framework of law and order with minimal friction.

Nevertheless, it must be ac-knowledged that the OST, and many of its subsequent supple-ments, have been respected in the practice of nations and interna-tional organizations alike, and the applications of its principles have not raised significant international

problems as of yet. The treaty belongs to a category of inter-national instruments that have been endorsed by a great major-ity of the international commu-nity, making it, despite its many flaws, one of the most significant achievements in the progressive development of international law attained so far. Labeling the treaty as an archaic, irrelevant document is, therefore, a task that can hardly be undertaken without difficulty.

Still, it may be a task that, sooner or later, the worldwide legal system must take on. With new affordable spaceflight tech-nologies in the pipeline, extensive private activity in space will be a serious possibility in the near future. We won’t be negotiating with Klingon armies or arbitrat-ing terms for inter-galactic ex-peditions yet, but space, in all its vastness and entirety, has many resources available – resources that mankind may come to rely on as we continue to expand our horizons.

Shon Hopwood is a Gates Public Service Law Scholar at the University of Washington School of Law. He served 10

years in federal prison, where two petitions for certiorari that

he wrote on behalf of other inmates were granted review

by the United States Supreme Court. His memoir, Law Man:

My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Re-demption, was published in 2012.

Amicus sat down with Hop-wood to talk about his life.

Amicus: In the beginning of your book, you recall arriving at a federal prison at 23 years old. What do you remember thinking in that moment?Hopwood: I hope I make it out alive—that was the initial thought. I had never been in trouble before, not seriously. I was ner-vous about heading off to federal prison for a decade and was not sure what to expect. I wasn’t a big guy; I was tall and skinny. I didn’t know if I would have to fight as soon as I stepped in.

A: What motivated you to im-prove yourself in such a challeng-ing and stressful environment?H: A couple of things. First, my family decided to stand by me in spite of what I had done, and I didn’t want to hurt them again. My wife (who was not my wife back then) started writing me. She gave me hope for the future. I wanted to be a good man for her, and I needed a career if I ever wanted a wife and family. Also, I really enjoyed helping other inmates through the law. That’s

from Cells To CourTsafTer a bank robbery landed hIm In prIson for a deCade,

shon hopwood has emerged as a legal sCholar

by erICa yurvaTI

IntervIews

Moving up: Shon hopwood haS gone From Living a priSoner’S LiFe To STudying aS a gaTeS SchoLar aT TheuniverSiTy oF waShingTon, puBLiShing a Book and geTTing married. Sang Cho, The Daily uW

the main reason I’m in law school now.A: What was it about the law that initially attracted you?H: The reason I first started legal research was because the Su-preme Court handed down a rul-ing in 2010 that led me to believe I could be resentenced. Once I got into it, I realized I enjoyed the process of legal research and writing. I liked trying to solve legal puzzles.A: You first started working on your own case before assisting other prisoners with theirs. When did you realized that the law might be something to pursue in the future?H: After the John Fellers case had been granted cert by the Supreme Court. Seth Waxman took over the case and said I had done well. Someone of that stature saying that goes a long way. It was the first time I had done something academically and had success at it. My dreams were small at the beginning. I was looking towards being a paralegal. I didn’t think about [becoming a lawyer] until Seth and my wife Annie said I should pursue law school. I had small dreams, not big dreams.A: Is there anything you learned in your role as a jailhouse lawyer that you will apply to your own legal career?H: I have empathy for the posi-tion that my clients are in. A lot of clients come from broken homes and poverty and are uned-ucated. Being able to understand their plight and empathize with them will help me going forward. It’s very hard for most lawyers to empathize. They went to presti-gious schools and forget what it’s

like to come from humble begin-nings. It can be hard for them to communicate with clients. Even if you lose a case, if you com-municate well people feel like you have tried your hardest and are more understanding.A: How did you feel when you learned that the Supreme Court had granted a cert petition that you wrote?H: I found out on the prison yard one morning. My friend came running out screaming my name and had a copy of USA Today. It said how unlikely it was [for the Supreme Court] since John Fellers did not have a lawyer. It’s one of those moments I will remember for the rest of my life.A: Can you describe the expe-rience of assisting prominent attorneys like Seth Waxman from inside the prison walls?H: It wasn’t easy at first. Fed-eral prisons are set up to handle attorney-client phone calls and are not set up for attorneys calling jailhouse lawyers. It took a while to get that set up. I learned so much from Seth. I’m so blessed to have him as a mentor. His ac-complishments speak for them-selves: he has had the second highest number of oral argu-ments in the Supreme Court and has argued 60-plus cases. He’s one of the best law advocates of our generation—and he’s also a Yale Law School graduate.A: You left federal prison in 2008 and were released from custody in 2009. What was that transition like?H: It was difficult for a number of reasons. I got a job where the office was predominantly female, and I had not been around wom-

en for a decade. Technology was also difficult. When I got locked up, all these Apple products were not in existence—iPod, iPhone, iPad. Cell phones were very dif-ferent, too. When I interviewed at Cockle [legal brief printing com-pany], they asked for a reference letter in PDF and I didn’t know what a PDF was. Also, my social skills were not the best after being in prison for 10 years.A: How does law school compare to doing legal research on your own?H: It’s much easier because I can use computers and legal data-bases instead of just books. What would take a week in prison now takes a couple of hours. Law school can be frustrating because some of the things we learn I’ve learned 10 years ago. I have to remind myself to be patient. With all my other projects, it can be hard to sit in a classroom for a lecture on something I know a whole lot about. But there’s a large portion of subjects I have no experience with, so I do enjoy that.A: What have been the most dif-ficult parts of law school besides the material it covers?H: Balancing my time. I have a lot of cases I’m involved with and I have two young children on top of law school. I’m 38 and can’t keep the same hours as someone who’s 24.A: Did you ever imagine yourself where you are now when you were younger?H: No. If you would have asked people in high school if Shon would go to law school they probably would have laughed. I did not see this coming.

Two months ago, on Aug. 21, the civil war in Syria escalated, in the eyes of the international community, from minor concern to humanitarian crisis. What hap-pened that was so cataclysmic that day? The use of chemical weapons. Over a hundred thou-sand casualties of the ongoing bloodbath weren’t enough to provoke the world’s ire—but, in the words of President Obama, with the introduction of chemi-cal weapons, “the situation pro-foundly changed.” Why?

Wielding chemical weapons is a particularly egregious form of violence because their use is a violation of one of the most hal-lowed weapon treaties: the Chem-ical Weapons Convention (CWC). The CWC is a great, if not the greatest, arms-control success story of the modern era. After the recent deal brokered by the Russians—whereby Syria agreed to sign and ratify the treaty and relinquish its chemical weapons—the CWC now counts among its ranks 190 nations, out of a pos-sible 196 signatories. As of July 2013, 81.10 percent of the world’s

chemical stockpile has been de-stroyed. Parties to the convention cover 98 percent of the world’s landmass and represent 98 per-cent of the global population.

The march toward a world without chemical weapons, in other words, seems a foregone conclusion. Nuclear disarmament, by contrast, is far less assured. True, the global nuclear stockpile has subsided from its 1986 peak of 65,056 warheads to 17,272 warheads today, thanks chiefly to the Non-Proliferation Treaty (NPT) and a series of bilateral arsenal reductions (e.g., New START between Russia and the United States). Yet the future of nuclear weapons is shrouded in uncertainty. While a nuclear attack is unlikely in the current geo-political climate, so too are any

meaningful global arsenal reduc-tions. It is, for instance, difficult to imagine India and Pakistan stepping away from their arsenal. Similarly, if the US-Russia rela-tionship continues to grow in-creasingly testy, that tension could put an end to nuclear coopera-tion.

This mismatch—between the inevitability of chemical weapon abolition and the tenuous pros-pect of nuclear weapon aboli-tion—is intriguing. It suggests, perhaps, that the nuclear abolition movement has something to learn from the drive to eliminate chem-ical weapons.

The CommonalitiesChemical and nuclear weap-

ons have far more commonalities than differences. First and most obviously, they’re both gruesome causes of death. Without a doubt, there’s something unsavory about trying to compare the incommen-surable brutality of two obscenely powerful lethal instruments. But let’s admit it: they probably come out on equal footing, though the threats they pose differ. Nuclear weapons threaten us in

The chemicaL modeL: whaT

nucLear diSarmamenT can Learn From The cwc

By Ben WeiSSler

OpInIOn

an abstract, existential way—they promise to “end life as we know it.” That’s not to say actual nu-clear detonation is a pretty thing: think of instant vaporization within a certain radius, followed by nuclear fallout and ghastly radiation sickness. On the other hand, the excruciating anguish of chemical agents is no less vis-ible or lurid. Poet Wilfred Owen provided a harrowing illustration of that in his famous Dulce et Decorum Est, which recounts the effects of chlorine gas during World War I: “the blood / Come gargling from the froth-corrupted lungs, / Obscene as cancer, bitter as the cud.”

Disarmament for both chemi-cal and nuclear weapons is beset by the same logistical difficulties. First off, disarmament of either kind is costly. As one might imag-ine, safely neutralizing chemical weapons in custom-built facili-ties is an expensive proposition. In the US defense budget, the “Chemical Agents and Munitions Destruction” line-item soaks up a whopping $1.3 billion. The exact costs associated with pruning the nuclear stockpile are more ob-scure because they are grouped in with the larger cost of maintain-ing the arsenal (that larger figure is $179 billion over the next 9 years). A second logistical dif-ficulty facing both chemical and nuclear disarmament is the neces-sity of avoiding undesirable spill-over effects. Chemical weapon disarmament, if it casts too wide a net, could begin encroaching on valuable scientific research. Simi-larly, overzealous nuclear abolition

could jeopardize nuclear energy. To address those concerns, the CWC and NPT carefully carve out space for chemical research and nuclear energy development, respectively.

It might be argued that the gap in success between the beloved CWC and the more contentious NPT is simply a function of chronology. After all, chemical weapons, first deployed dur-ing World War I, predate the atom bomb by nearly 30 years. Shouldn’t we expect efforts to get rid of chemical weapons to be 30 years more advanced? This line of reasoning overlooks the fact

that the NPT went into effect in 1970, 28 years before the CWC. If anything, the timeline makes the CWC’s success all the more striking—it has gathered greater momentum than the NPT in less than half the time.

Different Fates?If not the cruelty of each

weapon’s effect, nor the logistical impediments to disarmament, nor even the chronology, what then can account for the divergent fates of chemical and nuclear dis-armament? To answer this ques-tion, we must first recognize the significance of the Cold War. It’s

impossible to talk about nuclear weapons without considering the Cold War. Even the post-war era is still defined by the residual effects of the Cold War, which elevated the nuclear bomb from mere weapon to strategic chess piece. Essentially, though nuclear bombs are destructive, they are, in a sense, (partially) redeemed through utility. A careful web of nuclear deterrence and counter-balance underpins and stabilizes the current “world order.” This is now the nuclear bomb’s higher purpose.

Chemical weapons have no such redeeming purpose. Therein lies the crucial difference. Nuclear weapons are more sophisticated and, with the exception of a few rogue states (North Korea), are inaccessible to the world at large. Because the proprietors of nuclear weapons are largely stable, predictable countries—the type of country you would expect to find at the G20—there is less of an imperative to remove those weapons. Chemical weapons, because they are accessible to just about any (read: volatile) country, are deemed more necessary to restrict.

Perhaps we should acknowl-edge that deadly weapons in the hands of stable countries have the potential to be just as dan-gerous as deadly weapons in the hands of more volatile coun-tries. Only by striking down this logic—that big boys deserve big toys—can nuclear disarmament begin making the types of great strides chemical weapons disar-mament has seen.

At the 11th annual Co-lumbia University Big Apple Invi-tational Tournament, a collegiate mock trial tournament whose participants are often judged by real attorneys, one attorney judge commented that the legal prowess that the undergraduate students had demonstrated is the reason why law school should be two years rather than three. The issue is very much one present in the minds of anyone engaged with the law. During his speech at Binghamton University, President Barack Obama made an unex-pected statement: “Law schools would probably be wise to think about being two years instead of three years.” This comment touches on one of the most controversial issues in the field of legal education, as prospective law students grapple with massive prospective debt and limited job prospects after graduation, while supporters of the current system believe that removing a year from law school inhibits crucial skill de-velopment and will produce less qualified lawyers.

While American law schools granted degrees after two years through the nineteenth century,

the modern educational frame-work is based on a foundation of three years. In the first year, students at most law schools take a core curriculum consisting of entry-level classes. For example, Yale Law School (YLS) requires students to take four courses in their first year: Constitutional Law, Contracts, Procedure, and Torts. By the third year, students take a series of electives about the law of a particular narrow issue, such as “Law and Globalization” or “Law and Terrorism,” both of which will be offered at YLS in spring 2014. Supporters of the current system believe that elec-tive seminars, many of which are taken in the third year of law school, teach crucial analyti-cal skills necessary for complex legal thought. Were the third year eliminated, Georgetown Univer-sity law professor Philip Schrag wrote in a letter to the editor of the New York Times, “Small semi-nars to teach research and writing would vanish.” Some profession-als, such as Douglas G. Morris, an assistant federal defender, believe that the third year of law school is crucial.

“Compared with second-year students, third-year students stand

out,” he wrote in a letter to the editor of The New York Times. “They know more. They analyze legal issues better. They conduct themselves more professionally. My counterproposal is this: Make law school four years.”

Proponents of a two-year law degree, however, cite the inability of recent graduates to apply the theoretical knowledge learned in the classroom when they first be-gin practicing law. These students, they argue, would be better pre-pared if they spent what would otherwise be the third year of law school in the workforce develop-ing practical skills. At Bingham-ton University, President Obama commented that the students “would be better off clerking or practicing in a firm, even if they weren’t getting paid that much.”

Some law schools are address-ing the issue of preparedness by retooling the second- and third-year curricula. Columbia Law School, for instance, has developed a wide range of new intensive courses and programs that combine legal doctrine with close study of the surrounding business, regulatory, institutional, political, or social settings within which law develops…Covering

Two years aT law sChool?whIle a legal eduCaTIon TradITIonally lasTs for Three,

opInIons around The aCademIC CommunITy vary

by skyler ross

Features

a wide variety of subjects, these offerings enable students to see firsthand the many different roles lawyers can play, while also sharp-ening different analytical, theo-retical, and practical skills.

Columbia’s course offerings for the 2013-14 scholastic year include “Negotiation Workshop,” “Law of Government Secrecy,” and “Punishment: Theory and Practice.”

A strong majority of recent law school graduates support a switch to a two-year law degree system, according to a recent study by the Kaplan Bar Review. When asked the question, “do you think the traditional three-year law school education can be condensed into two years without negatively impacting the practice-readiness of new attorneys,” 63 percent answered yes. Further, 97 percent of respondents believe

that more clinical training should be featured in the existing third-year curricula in order to promote practice readiness.

The other major argument that proponents of a two-year system make is that by reducing the amount of time required to obtain a law degree, law students will incur less debt in a field where job prospects are limited. But from the perspective of the law schools, less revenue from tuition will create an even larger financial strain as many schools struggle to fill seats. Moreover, legal restrictions in most states require bar candidates to have completed three years of law school. This means that in or-der to reduce the length of legal education, individual states would need to pass laws changing their exam requirements.

Daniel B. Rodriguez, Dean

of the Northwestern University School of Law, and Samuel Est-reicher, a professor at New York University Law School, believe that a middle ground is necessary:

“We should allow students to take the state bar exam after two years of law school instead of the three now required. Law schools would no doubt continue to provide a third year of legal instruction, and most should, but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.”

Loosening current legal re-strictions on when a prospective lawyer is allowed to take the bar exam could force law schools to improve the quality of third-year education so as to entice students to come back. But, either way, opinions remain divided as of yet.

CuT The fluff: Some Law SchooLS, Such aS The SchooL aT coLumBia univerSiTy (aBove) incLude courSework in Their Third year ThaT recenT gradS See aS unneceSSary For The Bar exam. CreaTive CoMMonS

Chelsea Manning: a trai-tor, or a patriot? It’s a controver-sy that racked the United States shortly after Americans began recovering from the shock of WikiLeaks’ posting of classified U.S. military information. The following investigation of Chel-sea Manning (formerly Bradley Manning) has made many Ameri-cans question the nature of true patriotism. While some condemn Manning as a traitor, others regard her decision to leak infor-mation a patriotic act, designed to better the United States by mak-ing questionable war practices more transparent.

And although the medium used to leak information has changed over time, this debate is not novel. Whistleblowing has sparked impassioned debate for decades. Indeed, many of the Manning arguments today re-semble those surrounding leaker Daniel Ellsberg’s release of the Pentagon Papers. Yet unlike Ellsberg, whose charges were dismissed, Manning was tried

with far more serious potential punishments, including death, and was eventually found guilty on nineteen charges brought against her. How did these charges differ from those brought against previ-ous whistleblowers, and why were her punishments significantly harsher?

As a soldier in the United States Army, Manning was for-mally charged under the Uniform Code of Military Justice (UCMJ), which regulates the conduct of military personnel. Soldiers are brought before a military judge in a court-martial, and, under Article 32 of the UCMJ, are tried by “the military equivalent of a grand jury.” Soldiers have the option to turn down this jury option, as Manning did, and instead to be tried solely by the court judge.

Aside from these procedural issues, being tried under the UCMJ also meant that Manning was held to the articles laid out therein in addition to those of federal law. Previous whistle-blowers like Ellsberg were tried solely under the Espionage Act

of 1917, but this could not be done directly in Manning’s trial since he was being tried not before federal court, but before a military court. Instead, the prosecution brought twenty-two charges against Manning under three Articles of the UCMJ: UCMJ 92 (failure to obey order or regulation), UCMJ 104 (aiding the enemy), and UCMJ 134 (the General Article).

Under this last article, UCMJ 134, the prosecution was able to charge Manning under the Espionage Act as well as UCMJ statute. Article 134 of the UCMJ is known as the General Article, or the “Devil’s Article”, because it authorizes punishment for non-specific crimes. The text of the article includes vague terminol-ogy such as “all disorders and neglects to the prejudice of good order and discipline in the armed forces,” as well as “all conduct of a nature to bring discredit upon the armed forces,” so that ac-tions not explicitly stated illegal in the UCMJ may also be tried, depending on the circumstance.

COver

leaky lawsby JonaThon bowyer

Wing Commander D. B. Nicho-las explains that this ambiguity “indicates the possibilities of its abuse,” giving rise to the name “Devil’s Article.” Sixteen of Manning’s twenty-two charges came from violating this article. Many of these changes were pulled from civilian statutes in the United States Code, like the Espionage Act and the Computer Fraud and Abuse Act. In the end, Manning faced multiple charges that could only be brought under the UCMJ, in addition to virtu-ally all of the same charges that previous whistleblowers such as Ellsberg have faced.

Because Manning faced charg-es under the civilian statutes and the UCMJ, his overall potential jail time, 136 years, was much larger than that of most other whistleblowers. But aside from the pure number of charges, the allegations she faced were also far more serious. Of all of the charges levied against him, vio-lating article UCMJ 104 was the most grave, and carries a possible sentence of death. This article

prevents soldiers from abetting the enemy by giving them aid through practically any form—ammunition, equipment, or, in Manning’s case, information. According to the Military Judges’ Benchbook, four elements must be met for a successful case under this article:

“(1) That (state the time and place alleged), the accused, with-out proper authority, knowingly gave intelligence information to certain person(s), namely: (state the name or description of the enemy alleged to have received the intelligence information);

(2) That the accused did so by (state the manner alleged);

(3) That (state the name or description of the enemy alleged to have received the intelligence information) was an enemy; and

(4) That this intelligence infor-mation was true, at least in part.”

The prosecution argued that Manning did not have proper authority to be leaking this infor-mation to WikiLeaks, and thus she indirectly gave intelligence to the enemy—who not only could

access this information, but actu-ally did access the information and referred to it in subsequent videos.

The defense raised three ob-jections to this supposed viola-tion. First, the defense argued that courts have empirically required a showing of specific criminal intent. While the pros-ecution agreed that a showing of criminal intent must be made, they argued that the statute re-quires only a showing of mens rea – a showing of general crimi-nal intent. The difference here is crucial. If specific criminal intent is required, then Manning needed to intend to aid the enemy. If a general criminal intent is required, then Manning only needed to intend any criminal action – such as leaking classified documents – while knowing that the enemy might benefit from the leak. The prosecution also offered that, given the availability of the leaked evidence, it can be inferred that Manning knew the enemy would access this information, and thus she held the necessary criminal

The courTs’ TreaTmenT of whisTleblowers such as chelsea manning and edward snowden has

changed significanTly as The naTure of

leaking has Transformed over Time.

intent.The defense’s second objection

stemmed from the due process clause of the Fifth Amendment. The defense contended that the prosecution’s claim that Manning “indirectly” gave evidence to the enemy is unconstitutionally vague. The Fifth Amendment holds that “[a] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must neces-sarily guess at its meaning and differ as to its application violates due process.” Due process thus requires laws to be clearly stated, and it further compels lawmakers to give fair notice of applicable standards under which individu-als will be tried. Manning’s lawyer argued that a ruling constru-ing posting information online as constituting indirectly giving evidence to the enemy uses too broad an interpretation of the word “indirectly”.

The prosecution, however, gave two responses: first, that “[a] soldier could reasonably under-stand that compromising intel-ligence through an intermediary was subject to criminal sanction in the U.S. Army,” and second, that many mandatory training ses-sions for soldiers underscore the possibility of punishment if any information is leaked online.

Finally, the defense argued that allowing this interpretation of “indirectly” would lead to a viola-tion of the First Amendment. In its Motion to Dismiss Article 104, the defense stated that this interpretation creates “a criminal prohibition of alarming breadth.”

They continued: “Article 104 is substantially overbroad because, if the term “indirectly” is given the interpretation that the Gov-ernment puts forth, a substantial amount of constitutionally pro-tected speech would fall victim to Article 104’s sweeping prohibi-tion.” The prosecution disagreed, and proffered that their usage of “indirectly” is contextualized through intent: Manning posted

the information with knowledge that the enemy would likely access the website, so their interpretation of “indirectly” giving information also requires a form of intent.

This last objection by the defense illustrates one of the broader issues raised in these cases: what is the exact bright line to our freedom of speech? The threshold is often illustrated through the classic example of moviegoers in a cinema. While we are entitled to freedom of speech, we are not free to shout “fire!” in a movie theater unless we genuinely believe there is a fire, as doing so can cause very real harm to other people. In the same way, the prosecution aims to construe Manning’s actions as shouting “fire!” in a movie the-ater: the information she leaked might have given the enemy cru-cial information, perhaps causing real damage to American troops. Because Manning released infor-

mation that might have caused harm to U.S. troops, she might be considered unlike Ellsberg, who only released information regard-ing past decisions of the U.S. government regarding the Viet-nam War.

In the end, Judge Colonel acquitted Manning of aiding the enemy, but did find her guilty of nineteen of the twenty-two charges. Manning faces up to

thirty-five years in jail, though after serving one-third of her sentence she will become eligible for parole. Her case is still under review by the presiding author-ity, Major General Buchanan, and if he upholds confinement for at least a year, or alternatively upholds dishonorable discharge, the case will be sent to the inter-mediate Army Court of Criminal Appeals.

Until then, the debate over true patriotism will rage on: is it better to support the country you love by keeping its secrets, or by exposing them?

The prosecution aims to construe Man-ning’s actions as shouting “fire!” in a movie

theater. The information she leaked might have given the enemy crucial information, perhaps

causing real damage to American troops.

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yale’s new kuTTner

lIbrary boasTs a ColleCTIon of

mIdIeval

Common law resourCesby Tyler foggaTT

FrOm the BlOg

On September 13th, the Lillian Goldman Law Library received a new addition to its already extensive collection on medieval canon law: the library of the Stephan Kuttner Institute. The Kuttner Library, comprised of over 2,000 printed books, 900 microfilm reels, and 15,000 journal offprints from all over Europe, is a valuable collection of some of the most influential pieces in medieval canon law. Sur-prisingly, according to rare book librarian Mike Widener, the indi-vidual monographs and offprints in the collection are not particu-larly priceless on a standalone basis. It’s the fact that all of these significant writings are together in one place that makes the Kuttner Library an invaluable resource not only those for interested in canon law, but also for people with a general interest in legal history.

Stephan Kuttner, a renowned legal scholar and expert on canon law, spent most of his life search-ing for medieval manuscripts to

add to his personal library, which he then analyzed in order to trace the foundations of modern constitutional law back to the law that once governed the Catholic Church. Kuttner was the first person to hold Yale’s T. Lawrason Riggs Chair of Catholic Studies, an area of study he presided over for five years. In 1964, his me-dieval canon law collection was actually housed in Yale’s Sterling Memorial Library. But in 1970, Kuttner was chosen as the Direc-tor of the Robbins Collection in Roman and Canon Law at the University of California, Berke-ley—and when he moved there, his library moved with him. After his death, the Stephan Kuttner Institute Library returned to Kuttner’s home country to reside in the University of Munich. But now, in an exciting turn of events, Yale has recently made an agree-ment with the Kuttner Institute to house the collection in the Lillian Goldman Law Library for the next 25 years. “We’re excited to have it here and hope to keep it for a while,” Widener stated, “It has been a great investment of time and resources.”

The Kuttner Library contains books that were written long, long ago. The majority of the collection’s offprints are from the late 19th and 20th centuries, but there is also a small but signifi-cant group of incunables (books printed before 1500). The collec-tion’s earliest imprint is actually from 1482, and while this is not on display with the rest of the library, it is available to examine upon request.

When asked about what stu-dents can gain from viewing the Kuttner Library, Widener said that most people view canon law as something that’s outdated, because it’s Catholic law from the Middles Ages and doesn’t seem relevant today. However, Widener argues, this is a complete miscon-ception. A lot of today’s most important legal concepts stem from canon law, which is some-thing that Kuttner spent most of his life proving. Ideas like beyond reasonable doubt, innocent until proven guilty, the right to remain silent, and the right to confront witnesses can all be seen in medi-eval canon law and were set forth by pieces of the Kuttner Library.

“It’s amazing that Yale stu-dents even have access to such important legal artifacts,” said Yale undergraduate student and aspiring lawyer Eugenia Zhu-kovsky. “Being able to look at this library and view these historical works, in the setting of our very own campus, is a remarkable experience.”

The Kuttner Library can be found in the Upper East Side of the Lillian Goldman Law Library, right next to the fish tank. Widen-er and the other librarians encour-age students to come in and ask about the library’s rare books.

“We aggressively collect mod-ern scholarship on canon law,” Widener said. “It’s a great place to do research.”

Both Lillian Goldman and Bei-necke Rare Books Library have medieval canon law collections, and students are encouraged to take advantage of these resources.

Daniel Ellsberg is a formermilitary analyst for the RAND

Corporation. He most famous for hisrelease of the Pentagon Papers to the

New York Times in 1971. Amicuseditor Andrew Tran sat down with

Ellsberg at his home in Kensington, Calif.

IntervIews

Amicus: What was the main thing you hoped to accomplish by releasing the Pentagon Papers?Ellsberg: The hope was, in the fall of ’69 at first, that Nixon, if these came out right away through the Senate Foreign Rela-tions Committee, could seize on this evidence of inadequate and incompetent handling of the war by Democrats to say that, al-though it was a noble conflict and should have been pursued, it was now hopeless – as it was, indeed – and put it on the Democrats to get out of it. In other words, as a Democrat myself, I was prepared to see the Democrats being charged with responsibility for mishandling the war, which was fair. And I hoped that Nixon would use that excuse, really, to divest himself of the war, as peo-ple thought he was prepared to do. In the campaign, he had indi-cated that he intended to end the war. He did say “honorably,” but people thought, “well, that’s just a word, and what he really means is to get out one way or another.” Actually, that was wrong. He had no intention of getting out, and no desire to use the evidence I was giving him, if he had it then. So if it had come out then I don’t think it would have affected his policy. He had no intention of losing the war.A: How did you come to the conclusion that Nixon was lying to the American people?E: When I had worked for [Hen-ry Kissinger] earlier, I had done a study of our options in Vietnam for his first presentation to the National Security Council. And

he had had it redrafted somewhat, by a colleague of mine Fred Ikle. He had dropped out the option that I felt was a great option: it was extrication. In the military, General Andrew Goodpaster had been so contemptuous of that option that he didn’t want to present it in front of the Joint Chiefs at all.A: And they added the option to win?E: Well no, that’s a little differ-ent. They showed an interest in invading Cambodia even at that time, one that I hadn’t put in. So no, I don’t think there were any real, added options. But it was often reported – I even saw this recently – that one of the options was nuclear war. It was corrected; I had wanted it out. A man sent me a draft of the his-tory, and it implied that an option was using nuclear weapons, and I said, “quite the contrary.” When someone had raised that possi-bility, I said “I will have nothing to do with the study if it even considers the possibility that we will use nuclear weapons.” Now actually, little did I know, Nixon and Kissinger were considering exactly that. Not so much using them as threatening with a readi-ness to use them. In the fall of that very year, unknown to me, plans were made for possible use of nuclear weapons. In the fall of 1969, Roger Morris was referring to documents on using nuclear weapons a mile and a half from the Chinese border in North Vietnam, to send a very strong signal to the Chinese of where this war was going.

A: And this was the experience that made you believe Nixon Administration was lying to the American people?E: Well yes, in effect, because I did hear about them again un-der Morton Halperin, who was now working for Kissinger as a Deputy. Because I had drafted these options — I think there were five main options with a lot of sub-possibilities under each one — he informed me over the phone, very easily, he said that that they were going with Op-tion 3. In other words, Nixon was not getting out. I was made aware of that and we were able to communicate quickly on that in a language of the options. He was rejecting options for getting out, which he hadn’t even submit-ted to the NSC, and was in fact planning to stay on. Now in fact, more than even Halperin realized then, he was relying on threats of escalation, eminently, but he was in any case not getting out. So that was crucial to my decision to put out the Pentagon Papers. Not that I thought that he was about to escalate — on the contrary, I would have been astonished to learn that — but that he was stay-ing in. And I felt that in the face of a failure to win the war, he was likely to escalate, like his prede-cessors.A: Was there an unexpected nega-tive effect by releasing the Penta-gon Papers?E: There could’ve definitely been an effect of tightening the secrecy system. Actually, I didn’t know in starting this that we did not have an “official secrets act,” or some-

thing like it, so I assumed that I was violating some law when I did it. Most people believed then and still do imagine that we do have such a law – that for ex-ample, Julian Assange has broken such a law with WikiLeaks, or Bradley Manning. And Bradley Manning is accused of violating the same law that I was charged with. What I didn’t know was that I was the first person ever to be charged with that, and the rea-son was the Espionage Act was not intended for leaks, for disclo-sures, and we don’t have the kind of official secrets act that most countries do have (Britain has it), which criminalizes all releases of classified information. Now, as I said, I didn’t know we didn’t have it. I came to know after about a year in the trial. There had been no prior case like ours, which my lawyers were really quite surprised to discover. And very few lawyers to this day, or judges, or journal-ists, are aware that my prosecu-tion was the first for leaks, for disclosure of classified informa-tion. And the reason for that was the lack of a law that I had clearly broken. But once we knew that of course, the risk was there that we might acquire such a law by my successful prosecution. If I was convicted and the Supreme Court held it up, then the Es-pionage Act would serve as an official secrets act. So it could’ve been that my action would lead, actually, to the emergence of a new regime here of an “Official Secrets Act” where leaks would be prosecuted much more. My case didn’t lead to that because it

was dismissed.A: You’re known for your work on Decision Theory. Did you apply your theory when you were thinking about leaking the Pa-pers?E: No, I didn’t operate that way. I could’ve. My mind is influenced, probably, by decision theory to some extent, including my own work. But not crucially, I would say. And I did not do any formal analysis of it, no.A: But were you weighing costs and benefits?E: Oh absolutely. And I would not have gone ahead if I didn’t think there was some chance that it would succeed or have a useful effect. I wasn’t doing it just to re-lieve myself or just to set the his-tory straight, for example. To do it, I had to believe that there was some chance that it would short-en the war. But what is notable is that what had changed in me was a willingness to go to prison, for life, just for what seemed like a quite small, and not easy to calcu-late, chance that it might help the war. And that was a state of mind I hadn’t been in years earlier.A: Do you think new technol-ogy make a significant difference when it comes to leaks?E: When it comes to large-scale leaks, yes, it makes a difference. Now most leaks are either oral or just summarizing some informa-tion, or perhaps just a page or two of a document. And for that, almost any technology would do, even handwritten notes in fact. Starting in ’68 I remember I did give some handwritten copies of some things to Neil Sheehan. So

technology is not crucial there, but for a large release, like mine, I couldn’t have done it without Xerox, or some equivalent tech-nology. 7,000 pages, even with Xerox, to make enough copies to keep the FBI from getting one took a long time. And it couldn’t have been done otherwise. I couldn’t, of course, have done what Bradley Manning is accused of doing in giving WikiLeaks something like a million pages al-together. Hundreds and hundreds of thousands of documents – that couldn’t be done without the digital technology now. You couldn’t do it just on Xerox. So it does make a difference.A: You had to read every single thing you copied. Do you think technology decreases discretion? E: Well I had read it all for my study I was doing. I didn’t just come across it. Interesting ques-tion; would I have put it out if I had not read everything? I think I would have probably not put out information that I hadn’t read or if I didn’t know what it was. Although as in the case of the material that WikiLeaks got, it’s possible to read a large sample of it and make some good guesses as to what you had for the rest of it. But on the whole, it wouldn’t be advisable to do what WikiLe-aks did do, which was to put out a whole lot of information that hadn’t been thoroughly looked over. However, the chance actu-ally that that would be damaging to the country is not zero, but it’s not large. The fact is that so much is classified that does not need to be classified from the

point of view of national security. The chance of hitting something would depend on the kind of things you were putting out. The kind of material they were putting out was only “Secret” by the way, which is a relatively low classifi-cation actually. People think that Top Secret is the highest classifi-cation above Secret. It’s not true. Really sensitive secrets are classi-fied much higher than Top Secret. And there, for example, it would be much more questionable to put that out, or a lot of that out, without knowing what you were putting out. Since it was only Secret, the chance of harming the United States is pretty low.A: Do you think the government should keep anything secret from the public?E: Well yes. A very recent exam-ple would be Valerie Plame’s work as a covert operator. She was the wife of Joe Wilson, who was revealed and exposed, in order to punish Joe Wilson for telling the truth about basically a mission he’d been on to determine wheth-er Saddam Hussein was connect-ed with trying to buy uranium yel-low cake in Niger. And when he revealed that, they really wanted to punish him by destroying the career of his wife Valerie Plame, who was a covert operator. And if you ask should there be secrets, yes. There always will be and a number of them are legitimate. There are no doubt lots of cor-porate trade secrets, and secrets in private life; the secret formula for Coca-Cola is guarded very care-fully, and so is the identity of the Oscar winners. That’s legitimate

in competitive terms.A: How about secrets in diploma-cy? I feel like that’s a grayer area.E: Yeah, diplomacy in general is worth keeping private to a large extent. You know, one aspect – it’s not covered by an “Of-ficial Secrets Act,” unless some of these cases succeed. And remember that one question is whether things are properly kept secret and whether someone who

reveals them should be subject to administrative penalties. Being denied access to material, losing clearance, even losing a job, being ostracized, or losing promotions, are very strong administrative sanctions that keep most people from revealing secrets. They just aren’t on the team. That’s a little different, a little distinct, from whether there should be criminal penalties for revealing secrets. We have only very few secrets that are protected clearly by criminal prosecution. In general, we don’t threaten people who reveal par-ticular secrets with prison. And I think that’s a good thing; it should remain that way though it probably won’t. We very likely will change that and become like oth-er countries, in that respect: more like China, or the Soviet Union, or for that matter, England. But whether that’s necessary I think is another matter. We keep too many secrets just by the threat of

losing clearance or losing jobs – more secrets than should be kept are in fact kept by those threats. And another consideration is this: every organization starting with corporations, but really everything from unions to any social groups have their secrets. And in the case of corporations, we know from the many examples of pharma-ceutical disasters (asbestos or to-bacco), the secrets are extremely

well kept. Hundreds of thousands of people die a year because of the secrets surrounding carcino-genic and addictive properties of tobacco, which only one or two people finally exposed. That’s half a million people a year dying from that (tobacco) – for reasons that actually could have been prevented I think if much more truth had been told earlier. Now, the people who kept that secret were not threatened with prison. Nobody has been prosecuted for keeping that secret or for not telling the secret. The secrets are very well kept just by these threats, which also exist in the government the same way they do in companies. So people don’t keep secrets primarily because they’re afraid of prison if they don’t keep them — well, that’s a very unusual statute. People assume that to keep a secret you have to have a law that prevents you from telling it.

People don’t keep secrets primarily because they’re afraid of prison if they don’t keep

them - that’s very unusual. People assume that to keep a secret you have to have a law that

prevents you from telling it.

On October 31, 2012, new data emerged from Com-Score (a third-party internet analytics company) naming Gmail the world’s largest email provider. With 425 million ac-tive users, Gmail now claimed supremacy over Hotmail, Yahoo, and its other competitors. Gmail, which had only been around since March of 2004, was rapidly grow-ing in comparison to companies like Hotmail (launched in 1996) and Yahoo (launched in 1997). Gmail’s future was nothing but promising, as it continued to ac-cumulate users and thrive in com-parison to other email providers.

It’s now year later, and Gmail faces several lawsuits that could undermine the vast success it seems to have had so far. Google has been charged with two counts of wiretapping, and suits have been filed against the company for using this practice to col-lect user data via Google Street View, and for collecting user data contained in emails. While creating its Street View database, Google collected a large amount of “payload data” by accessing unencrypted private communica-tions. Its Street View mapping

cars drove across the world, equipped with hardware that was meant to improve Google’s loca-tion services but also intercepted information transmitted through open Wi-Fi networks. The cars succeeded in collecting names, addresses, passwords, and medical records, among many other pieces of personal information. While Google was accused of violating the Wiretap Act, they held that they did not; the Wiretap Act excludes radio communications that are readily accessible to the public, and Google claimed that intercepting data from non-pass-word protected Wi-Fi networks was similar to intercepting open radio communications, because both are readily accessible. The court did not agree with Google’s broad interpretation of the Wiretap Act, and the case is now being reviewed in Federal District Court. And, even more recently, Google has been facing another major lawsuit—a lawsuit that is the direct result of Gmail’s ques-tionable advertising practices.

According to the plaintiffs in this suit, Google doesn’t just deliver emails to its users—it intercepts these messages and scans their content in order to

decide which advertisements to display to its users. This is why if, you email your friend about Ital-ian food, Google might show you advertisements for Italian restau-rants in your area. By scanning your messages, Google is able to provide you with tailored adver-tising. However, the plaintiffs view this as a blatant violation of the Electronic Communications Privacy Act, which is supposed to prevent companies from wiretap-ping electronic data that is trans-mitted via computer. In the words of the plaintiffs’ lawyers:

“Google uses Gmail as its own secret data-mining machine, which intercepts, warehouses, and uses, without consent, the private thoughts and ideas of millions of unsuspecting Americans who transmit e-mail messages through Gmail.”

Therefore, the main issue at hand is that Gmail doesn’t simply intercept and scan the messages sent out by its voluntary users, but it also scans the messages received by these users. In other words, if you have a Hotmail account and send a message to your friend’s Gmail account, the information in that message is scanned and used by Google. The

Is google feelIng luCky?If a suIT fIled agaInsT The InformaTIon gIanT Is

suCCessful, prIvaCy onlIne Could be forever alTered

by Tyler foggaTT

Features

plaintiffs in this suit view this as a breach of privacy, and believe that Google is breaking the law by doing this.

Google disagrees. It tried to dismiss the accusation, stating that “just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use web-based email today cannot be surprised if their com-munications are processed by the recipient’s electronic communi-cations service provider in the course of delivery.” Furthermore, they’ve stated for years that any scanning of email is not done by actual people at Google, but by an algorithm, so user privacy is not being invaded because no human is looking at these emails.

Even if people don’t buy this argument and continue to see these wiretapping practices as a violation of the law, Google claims that their use of wiretap-ping is legally sanctioned, as it is a part of their “ordinary course of business.” Congress has ex-cluded certain activities from the restrictions in the Electronic Communications Privacy Act if they fall under the service pro-vider’s “ordinary course of busi-ness” and are therefore necessary for the company to carry out its duties. Google performs several operations on every email sent and received through Gmail: headers are scanned and read to determine who the email will be delivered to, each email is scanned for viruses and checked for spam, the messages are indexed so that they can be searched later and are

sometimes labeled as “priority” messages depending on the key-words used in the email, and the messages are converted to HTML so that they can actually be viewed by Gmail users. And while all of this is happening, Gmail also scans these messages to de-termine which advertisements to show next to them when they’re opened.

Google scans emails to carry out all of these procedures, and for the most part, the govern-ment and the general public have accepted this as a part of Google’s “ordinary course of business.” Google believes that its advertising procedures are also part of their ordinary course of business, and that these pro-cedures are something that the world’s largest email provider has been informing us about for years. Gmail’s terms of service clearly states that “advertise-ments may be targeted to the content of information stored on the services.” U.S. District Judge Lucy Koh, who declined Google’s attempts to throw out the case, doesn’t think this statement was indicative of the fact that Google would actually be intercepting emails—it only demonstrated that Google had the capacity to do this, not the intent to. Moreover, wiretapping law is supposed to protect communications in transit as well, while Gmail only speci-fied that advertisements may arise from the content of stored com-munications. The plaintiffs think that these procedures aren’t vital to the operation and success of Gmail. This wiretapping for ad-

vertisement purposes doesn’t fall under the category of “ordinary course of business” because it’s done solely for profit. This is why customers are angry, and why the lawsuit isn’t going away.

Gmail’s use of wiretapping and targeted advertising is not surprising. Gmail introduced these practices back in 2004 with “AdWords Contextual Advertis-ing,” which was how it were able to fund the one gigabyte of stor-age space for its new, free email service. AdWords displayed ads according to the content of the emails sent and received by Gmail users, while there were com-plaints, Google Spokesman David Krane stated that although they were in the early phrases of test-ing, “the reaction so far has been very favorable from people who have tested and used it.”

The reaction now is far less favorable. Judge Koh has ruled that this case can go forward to trial, and it’s possible that Google may still come out ahead. But if they don’t, this will have large consequences not only for Gmail, but for other email providers as well. Gmail is the largest email provider in the world, with about half a billion people use its ser-vices. If the court rules against Google and the case is certified as class action, Google will not only be forced to pay steep fines, but the way all email providers go about using their data will have to change. The amount of infor-mation that companies can use and distribute will decrease, and internet confidentiality could take on a completely new meaning.

When the defendant in an intimidation case in Blackfriars in London, UK was summoned to the Crown Court, everyone was astonished to see a Muslim woman wearing a niqab that covered her entire face take the stand. Standing in front of the jury was a defendant covered in clothing from top to bottom, with only her eyes left exposed. In a controversial ruling, Judge Peter Murphy prevented her from taking the stand without remov-ing her face garment, although she was allowed to wear it for the remainder of the proceedings.

His decision has spawned some debate in the UK, pitting the advocates of religious expres-sion against those who praise the judge for his adroit handling of

the matter.Critics of the decision have

alluded to Article 9 of the Eu-ropean Convention on Human Rights that safeguards the indi-vidual’s right to religious expres-sion without being discriminated against or disadvantaged in any way whatsoever. Viewed through this prism, the incident in Black-friars is portrayed as the violation of a woman’s freedom to mani-fest her religious beliefs in public and is condemned as yet another flagrant instance of Western prejudice against Islamic norms and customs. Critics claim that whether a woman wears a niqab or not is irrelevant, since the jury should only consider her testimo-ny, not what she wears or the way she looks. Under this approach, a witness should testify however

best she feels comfortable and never have to fear being subjected to the bias and disdain of the jurors. In this case, it could be argued that a Muslim woman who has been accustomed to wearing the niqab outdoors all her life may feel ashamed or terrified if she is forced to remove it and ex-pose herself to a group of strang-ers, and as such, her testimony will be affected by her disturbed state of mind.

Overall, it is alleged that forc-ing a Muslim woman to subject herself to secular rules of attire is not only disrespectful of her faith but also obstructs justice by distressing the defendant.

But although the sensitive chord of religious liberty may have been plucked, there are sev-eral reasons that should compel a

nIqabsIn CourT

By naSoS aBuel

OpInIOn

In modern england, safeTy should Take prIorITy over faITh

court to impose upon a Muslim woman to temporarily take off her niqab.

A witness’ facial expressions are enlightening in assessing the credibility of her testimony. Be-yond considering the gravity of her words, the jury must inspect the witness’ demeanor and her facial expressions in judging her truthfulness. To believe that a witness is merely a voice box without emotions to be appreciat-ed is to ignore the dimensions of human nature. Particularly when it comes to the truth, a witness’ speech is not only the product of her words but also of her accom-panying physical reactions. The niqab vitiates the judicial process by not allowing the jury to holisti-cally appraise her testimony.

When it comes to the right of

Muslim women to manifest their religious convictions, it should not elude us that the law provides that, in certain occasions, it may be limited or curtailed. It is not unprecedented for religious rights to be tempered in the public sphere if the public interest over-whelms the possible discomfort of the individual. For example, Muslim women are instructed to remove their niqab during airport control because their individual right to religious expression is offset by the overriding concern for public safety.

The same principle holds in this case. Justice should be blind to religious rights in certain oc-casions if upholding these rights encumbers the judicial process and prevents the court from ful-filling its duties.

Consequently, Judge Murphy’s decision is in the right direction. The court must do its best to facilitate the jury’s evaluation of the veracity of a witness’ testimo-ny. Allowing a woman to testify with her face covered would not serve this purpose. To depict the incident at Blackfriars as an assault on a religious symbol (i.e. the niqab) is to misunderstand the issue. The judge’s decision was based on his judgment of what would best serve the judicial process. In this reasoning, the Muslim woman’s religious identity was not intentionally targeted. But just as the court would not allow someone to testify wearing a helmet or a mask, in the same fashion, it cannot permit a veiled woman to take the stand without showing her face in trial.

courTs andcorporaTions

aCademIC essay

by laIla robbIns

The Supreme Court has always dealt with cases regarding the clash of corporate power and governmental power, but the way it has dealt with them has dramat-ically changed over two centuries. In this paper, I argue that what originates as a question as to what the government’s role should be in the economy and private companies has only recently be-come a question as to how much power these private companies should have in government and politics. This upheaval of agenda reflects the dramatic change in the Court’s attitude towards corporations: for centuries, the Court strictly limited unrestrained corporate action for the “public good.” Eventually, the Court used this same rationale, that “curb-ing corruption” (in the form of limiting monetary contributions by corporations in elections) contributed to the “public good,” in order to limit corporations’ in-volvement in the political sphere, as opposed to just limiting cor-porate action in the free market. The passage in 2002, however, of the McCain Feingold Act, which allowed for 527s (a group that could accept monetary contri-butions from corporations and use these funds on political ads), coupled with the decision in Citi-zens United v. FEC, which cre-ated Super PACs (similar to 527s but have more freedom) obliter-ated this precedent, and has led to a court more pro-business than any since World War II. At the same time, the Court became stricter with unions’ rights, sug-

gesting that while corporations’ rights have increased over time, unions’ influence and rights have decreased.

Critics may argue that indi-vidual cases decided before the McCain Feingold Act and Citi-zens United presented a similarly pro-business Court, or that cases throughout time have presented a Court interested in limiting gov-ernment control. However, isolat-ing anomalous cases presents a skewed view by disqualifying the vast majority of anti-business cases, and also ignores the fact that these anomalous cases do not even handle or overturn the fundamental principle of limiting corporate interest in campaigns for the general welfare: they only scratch the surface of corporate interests in politics. Similarly, al-though over time some cases did limit governmental involvement, these cases were rare, and in fact provided the Court a platform to define governmental involvement more broadly for the future.

Marshall CourtThe Marshall Court handled

the landmark case Dartmouth College v. Woodward in 1819, in which New Hampshire al-leged that it could take over Dartmouth, a college originally founded to educate colonial chil-dren and Native Americans. The Court ruled that since Dartmouth was completely privately funded, had a valid contract and was not founded for the sake of the state, New Hampshire did not have the power to take it over.

Although the Court ruled in

favor of the institution, it simul-taneously defined government’s role in limiting companies very broadly in this decision, setting a new precedent that allowed for increased governmental involve-ment. This case mainly dealt with contracts: since contracts create corporations and institutions, government regulation was es-sentially regulating contracts. The question the Court drew from the implications of this case was to what extent the state could regulate contracts. Ultimately, the Court held that the state could regulate all contracts except those explicitly enumerated as exclu-sions. Furthermore, the Court decided that the state can inter-vene if a contract either creates a civil institution or receives any public funds. This broad view of state regulation of contracts/cor-porations, on one hand, reflects a growing fear that monopolies would hinder economic develop-ment. On the other hand, this decision, which, despite defining government’s regulation power extremely broadly, passed in a 5-1 vote, demonstrates the Court’s compelling interest in limiting corporate rights.

TaneyThe infamous Taney Court

ruled even more decisively against corporate rights in 1837, in Charles River Bridge v. Warren Bridge, and expanded the idea that corporations’ rights could be limited for the “public good.” In 1650, a grant entitled Harvard to the “exclusive and perpetual” right to operate a ferry between

Charlestown and Boston. After the ferry was destroyed and a bridge created in its place, Mas-sachusetts sanctioned another bridge, Warren Bridge, which would be close to the Charles Riv-er Bridge. Charles River Bridge sued, claiming that Massachusetts breached its contract. The Court ruled that Charles River Bridge could not claim the rights of the ferry, because the ferry no longer existed, and those rights were only granted to the ferry. Further-more, in cases where the public interest was at stake, charters had to be interpreted narrowly: this meant that nothing could pass through implication. This de-

stroyed the Charles River Bridge’s entire case, which relied purely on implication/presumptions, since the charter never explicitly prohibited the state from making another bridge, if the ferry were destroyed. Ultimately, the prec-edent that arose from this case was that nothing can be implied or presumed when the public interest is at stake. In this way, the Court answered its question, as to what extent the government could harm the rights of a cor-poration for the public good, by boldly declaring that the govern-ment could obliterate certain charters, even though they were regarded as sacred at the time.

Federal Election Campaign

Act of 1971.The Federal Election Cam-

paign Act (from here on, denoted as FECA) traces its roots back to Theodore Roosevelt, and marks the continuation and expansion of limiting corporate and wealthy influence in elections. In 1905, Roosevelt wanted to ban corpo-rate contributions for political campaigns and did so successfully, in the Tillman Act of 1907. Imag-ine an act passing through Con-gress banning corporate political donations now: it simply would not happen. This demonstrates, however, that the Court was not alone in its desire to strictly limit corporations’ rights. More laws

passed in the next few years that limited the influence of wealthy individuals and special interest groups on federal elections in or-der to deter corruption. In 1971, Congress consolidated these efforts into the FECA, which, in 1974 was amended, due to grow-ing concerns about the power of money in politics. The Federal Election Campaign Act had three main effects. First, it increased transparency, by requiring more disclosure of contributions in federal campaigns. Second (after being amended), it placed overall limits on campaign contributions. Third, it created the Federal Elec-tion Commission, whose duties are “to disclose campaign finance

information, to enforce the provi-sions of the law such as the limits and prohibitions on contribu-tions, and to oversee the public funding of Presidential elections.”

In the late 20th century, many cases arose, challenging the FECA and the ban on corpo-rate donations. There were many challenges to the FECA, but each time, the Court upheld it, dem-onstrating its steadfastness in the principles of limiting corporate and wealthy influence. Two no-table challenges to the FECA are Buckley v. Valeo and California Medical Association v. FEC. In 1975, Senator James L. Buckley challenged the law, asserting that it violated the 1st Amendment right to freedom of expression. The Court, in 1976, ultimately upheld limits on campaign con-tributions, but allowed candidates to give unlimited amounts of money to their own campaigns. In California Medical Association v. FEC, the Court also upheld the FECA, explaining, “the rights of a contributor are not impaired by limits on the amount he may give to a political committee [PAC].”

Two notable challenges to the ban on corporate involve-ment were Austin v. Michigan Chamber of Commerce and Nixon v. Shrink Missouri Govern-ment PAC. In Austin v. Michigan Chamber of Commerce, in 1990, the Supreme Court upheld the Michigan Campaign Finance Act, which prohibited corporations from supporting candidates in election The Court held that argu-ing that the Michigan Campaign Finance Act did not infringe

This law, for the first time, enabled employees the right to form unions, and collectively

bargain with their employers. Since this law, corporations have attempted to curb unions’ influence,

and have recently begun to succeed.

upon First Amendment rights, ex-plaining that the compelling state interest stemmed from the de-sire to combat corruption, since “corporate wealth can unfairly influence elections.” Similarly, in Nixon v. Shrink Missouri Govern-ment PAC in 2000, the Supreme Court held that Buckley v. Valeo (which limited campaign contri-butions) also was relevant with respect to state campaigns. Ste-vens significantly stated “Money is property; it is not speech.”

Unions and NonprofitsIn 1935, Congress passed

the National Labor Relations Act (NLRA), also known as the Wagner Act. This law, for the first time, enabled employees the right to form unions, and collectively bargain with their employers. Since this law, corporations have attempted to curb unions’ influ-ence, and have recently begun to succeed. Significantly, the Court’s attitude towards unions and non-profits was initially just as hostile as it was towards corporations. This attitude, unlike that towards corporations, only deteriorated over time. The Court, at first, treated unions similar to corpora-tions. In Communication Workers of America v. Beck in 1988, Beck alleged that his union used his dues to advocate politically for a cause he did not believe in. The workers argued that the fee from the union was too high to solely be for legal “collective bargaining activities,” that this created unfair representation, and finally that this violated their First Amend-ment rights. The Supreme Court

ruled that unions can collect from non-members only the money necessary to be a “collective bargaining” representative- only to defend their interests, but not to advocate politically. As time passed, the Court began to grow more hostile towards unions’ political activity. In Davenport v. Washington Education As-sociation in 2007, the Supreme Court held that a state can re-quire unions to get consent from a non-member before spending his/her agency fees on election causes.

Independent GroupsAs the Court became more

restrictive on union action, it began to loosen up on other independent entities. The Court began to allow for unaffiliated groups to donate to elections, which unaffiliated groups eventu-ally become the infamous Super PACs. This trend of separating unaffiliated groups from corpo-rations and unions, and treating them differently, first arose in FEC v. NCPAC in 1985. A provi-sion of the Presidential Election Campaign Fund Act prohibited groups not directly associated with a candidate from spending more than $1,000 on a public funded Presidential nominee. This was overturned by FEC v. NCPAC, in a heavily contested split verdict (4-4). This treatment directly separated these indepen-dent groups, these PACs, from corporate entities, and therefore set the stage for a different set of laws to govern them.

After this precedent was set,

bans on corporate expenditures as applied to independent groups were soon deemed unconstitu-tional. In FEC v. Massachusetts Citizens for Life in 1986, the FEC thought that Massachusetts Citizens For Life (a nonprofit which distributed 100,000 copies of a flyer captioned “Everything You Need to Vote Pro-Life” with pictures of candidates) had vio-lated the FECA’s ban of corpo-rate spending on federal elections. The Supreme Court ruled that the law’s prohibition on corporate expenditures is unconstitutional, but only regarding a specific type of nonprofit, independent group. In Colorado Republican Federal Campaign Committee v. Federal Election Committee in 1996, this separation of independent entities from political parties and corporate entities clashed: the Colorado Republican Federal Campaign Committee alleged that it had not worked with a candi-date on its advertising campaign, and therefore the FEC could not regulate it. The Court found that “the expenditure[s] here [are] ‘independent’ expenditure entitled to First Amendment protection… The Colorado Party developed its advertising campaign inde-pendently… The Court’s prior cases forbid regulation of such expenditures.” All these decisions set the stage for the creation of Super PACs, as these independent groups began to be viewed as a loophole for corporations and other entities wishing to donate. While it makes sense that cor-porations would seize this quasi-loophole as an opportunity, it

does not fit the Court’s precedent to rule the way it did in Citizens United.

McCain-Feingold andCitizens UnitedThe Bipartisan Campaign

Reform Act, also known as the McCain-Feingold Act, in 2002 prohibited corporations from spending their general treasury funds on express advocacy; in other words, corporations couldn’t make ads telling citizens to vote for a specific candidate. In order to limit corporations’ influ-ence, the Supreme Court banned electioneering communications within 30 days of a primary or 60 days before a general election if corporations paid for them. Ac-cording to the Supreme Court, an electioneering communication is “any broadcast, cable, or satellite communication [that] refers to a clearly identified candidate for Federal office” and is “publicly distributed,” which in “the case of a candidate for nomination for President … means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election … is being held within 30 days.” By broadly prohibiting ads that even mentioned a candidate during this time period (during which citi-zens are most likely to be recep-tive to ads, as it is so close to the election), the law sought to limit corporate influence in elections.

Although BCRA limited corporate influence, it did allow for 527s. 527s are independent groups, similar to Super PAC’s, with a few key differences. They

have neither a limit on contribu-tions nor a prohibition on who can donate to them. 527s can-not “expressly advocate” for one candidate, so most produced issue advocacy ads. They also could not air ads 30 days before a primary election or 60 days before a gen-eral election. 527s also must regis-ter with the IRS, and disclose do-nors, and can be audited. For this reason, some corporations feared spending through 527s, and did not use them. Many corporations, however, did use 527s in the same way they now use Super PACs.

In Citizens United v. FEC, the BCRA’s ban was challenged, as well as disclaimer requirements. (BCRA required ads funded by outside groups to have a disclaim-er identifying who made the ad, a link to a website for that person or his/her company, and the dis-claimer that the candidate did not authorize the ad.)

In January 2008, Citizens United, a nonprofit corporation, released a documentary, Hillary: The Movie, which criticized Hill-ary Clinton. Citizens United ad-vertised for the documentary and wanted to use its general treasury funds to pay for ads to be broad-cast on television, but couldn’t due to BCRA. It soon filed suit.

In a 5-4 decision, the U.S. Supreme Court ruled that cor-porations have the same right to political speech as individuals. It allowed corporations to make independent expenditures, spe-cifically in the form of express advocacy. In an 8-1 decision, the Court also upheld disclosure laws.

This represented a huge break

from the treatment of corpora-tions in the past, and soon other decisions reflected the Court’s newfound view of corporate in-volvement in the political process: the Court now accepted corpo-rate involvement in politics, and the new question facing the Court was how much involvement could be permitted.

Post-BCRA andCitizens UnitedAccordingly, laws after BCRA

and Citizens United expanded corporate and overall monetary influence in politics. In Randall v. Sorrell in 2006, the first law was struck down: it had limited finan-cial donations to politicians, but was ruled unconstitutional, as it hindered free speech.

Similarly, in FEC v. Wisconsin Right to Life in 2007, the Court overturned a portion of the BCRA which prohibited corpo-rations from broadcasting ads 30 days before a primary or 60 days before a general election. It decided that issue ads could not be banned before a primary or general election, unless they “ex-pressly advocate” for the success/defeat of a candidate: no longer was mentioning a candidate’s name enough for a ban.

In Davis v. Federal Election Commission in 2008, the Court held that Sections 319 a and b of the BCRA infringed First Amendment rights. Section 319 a said that contribution caps for a candidate who was not financing himself were tripled, and that he/she could receive contributions from his/her national political

party with no cap. 319 b required candidates to declare how much of one’s own funds he/she was going to spend on an election, but only if they had more than $350,000. The Court ruled that campaign finance limitations must apply equally to every candidate, but must also be narrowly drawn, while 319 only restricted the candidate’s right to finance him/herself.

All these cases demonstrate a significant departure from the “public good” and “anti-cor-ruption” reasoning for limiting corporations’ influence in politics and government, and have lead to a dramatic increase in corpora-tions’ involvement in politics, and an upheaval of regular agenda. One cannot determine the far-reaching effect that the Citizens United decision will have on future politics, but can look to its current influence, specifically through state elections. Many argue that Citizens United has created a world where politicians have to pander to corporations, and that corporations can now support the candidate of their choice, and win the election because they have the ability to outspend their opponents. This is a compelling argument, but I want to focus on another, less discussed implication of Citizens United: Voter ID laws.

The American Legislative Exchange Council (from here on known as ALEC) most clearly demonstrates this upheaval of agenda. Most of ALEC’S money [contributions] comes from cor-porations, because ALEC con-

sists of state legislators and of corporations, who work together to create bills, and push them through state legislative bodies. Although ALEC consists of both corporations and legislators, if corporations veto a bill, legisla-tors cannot present it to their assemblies. This veto reflects corporations’ dramatic increase of power in politics. ALEC has grown at what NBC calls an “un-precedented rate” due to Citizens United, which allowed corpora-tions to spend unlimited amounts of money.

A large focus of ALEC was creating voter ID bills, which require photo ID to vote. In fact, since Citizens United, 62 voter ID bills have been proposed in 37 states, and more than half of these are attributed to ALEC. 30 states have enacted some kind of voter ID law. The Brennan Center found that 10% of citi-zens don’t have drivers licenses or other ID’s, so these bills would disenfranchise 10% of people. While the aim of these bills seems positive, voter fraud is incredibly rare and not a real threat. The Brennan Center finds that only 4 individuals committed voter fraud out of 9 million in Ohio in the closely analyzed 2004 election. News21 reports that there have only been 10 cases of voter fraud in the U.S. in the past decade. The Brennan Center explains that the probability, overall, of voter fraud

is .00004%. This means one is more likely to be struck and killed by lightning than experience voter fraud in one’s lifetime.

This group’s ability to pass bills that harm the “public good” and actually increase the appear-ance of corruption” is significant for two reasons. First, it dem-onstrates the sudden increase in corporate influence in politics and legislature, which serves no purpose other than suppressing voters who likely would not vote in favor of corporate interests. Voter ID laws consistently affect

the poor, elderly and minorities more than any other group, all of whom are far more likely to vote for Democrats than Republicans. Second, and most fundamentally, due to Citizens United, people cannot vote. The election process depends upon enfranchisement, and if people are disenfranchised for no reason, the democratic election process is no longer democratic. It seems that we have valued corporate speech over our most fundamental expression of freedom of speech: our right to vote.

Editor’s note: it is Amicus policy to publish accepted essay submissions

exactly as they appeared when they were submitted for class. To submit an essay

to Amicus Magazine, emaileditor.amicus@gmail.com.

It seems that we have valued corporate speech over our most fundamental expression

of freedom of speech: our right to vote.

Let’s address the elephant in the room: the U.S. government shutdown was a massive politi-cal blunder. Standard & Poor’s estimated our economy lost $24 billion dollars, slowing national economic growth by 0.6 percent. The story is inescapable: Repub-licans led by members of the “Tea Party” movement sought to cripple the Patient Protection and Affordable Care Act (better known as Obamacare) through passing the Continuing Appropri-ations Resolution 2014. While the bill kept the federal budget afloat, it also contained provisions for defunding the PPACA. Unsur-prisingly, the Senate stripped the bill of said provisions. Gridlock ensued. The end result: govern-ment shutdown. Approval of Republicans plummeted, with 58 percent of those polled believing Republican control of the House of Representatives is “bad for the country.” Some even called the push to defund the PPACA “blackmail.”

The GOP must have expected

this after such an extreme push—weren’t Republicans afraid of angering their constituents and losing the general election? To put it bluntly: no. Both Demo-crats and Republicans have estab-lished formidable buffers between themselves and political account-ability, in the form of gerryman-dered districts.

Gerrymandering is hardly a foreign concept: a state legislature controlled by one party re-draws election districts so to give the dominant party more control, allowing more representatives from said party to be elected to Congress. The public finds ger-rymandering distasteful, but has endured it since the 1780s. From a legal standpoint, partisan ger-rymandering is nigh on unstop-pable. The Supreme Court has found claims of gerrymandering to be “nonjusticiable because no judicially discernible and manage-able standards for adjudicating such claims exist.” In essence, since there is no standard metric to prove whether or not partisan gerrymandering has taken place,

the Court cannot deliver a verdict. Thus, most partisan gerrymanders pass uncontested. Nonetheless, the United States must reconsider its stance on gerrymandering, re-forming the redistricting process accordingly.

Gerrymandering is a shield. Its primary objective is to pro-tect incumbents from the needs and voices of unaffiliated and oppositional voters. An incum-bent Democrat has no need to worry about the concerns of the Republicans in his district; he’s bound to win the general elec-tion anyways. Gerrymandering makes matters worse in fostering political extremism, as politicians no longer need to adopt centrist positions to pick up swing votes. Primary elections exacerbate this, as candidates try to “out-partisan” each other so to win the favor of the already partisan district. This, allegedly, was the role of gerrymandering in the 2013 government shutdown. As President Barack Obama noted in a press release, GOP moderates were “much more worried about

gerrymanderIng:The elephanT In The senaTe

Chamber, and why The shuTdown

Couldn’T have happened wIThouT IT

by cooper d’agosTino

OpInIOn

a tea party challenger than they [were] about a general election where they’ve [had] to complete against a Democrat or go after independent votes.” GOP moder-ates took the radical stance of de-funding the PPACA because they feared losing their seats to more radical Tea Party candidates. They followed Ted Cruz’s lead because they feared losing their own seats to his affiliates.

Some, however, claim gerry-mandering is not such a crucial issue. Nate Cohn of New Republic claims current gerrymandering practices “may actually increase the number of moderate[s]” in Congress. Yet his conclusion does not follow his own reasoning. As Cohn duly points out, partisan state legislatures generally pack members of the opposing party into already safe districts; suppos-ing a district is already 60 percent Republican, the state legislature will intentionally put Democrats into the district, keeping the dis-trict a safe 52 percent Republican while other districts become more Republican by losing Democrats. This, says Cohn, should make dif-ferent districts more moderate.

But moderation is not depen-dent on the margin of safety in the district. It’s instead depen-dent on the disposition of the dominant party. Politicians will invariably pander to the control-ling group; should that group be extremely partisan, politicians will adopt similar views. The other voices are excluded. Consider the issue at hand: many moderate Re-publicans fear the rise of extreme Tea Party candidates in their own

districts, as the Tea Party has a controlling stake in Republican primaries. If the incumbent loses the primary, then he will not be re-elected. Thus, it’s best to pander to the Tea Party while in office, so as to keep one’s seat. The moderate voices on both left and right don’t matter; they’re not the ones deciding the election. Gerrymandering, in giving the primary the importance of the general election, compounds this. The dominant party need not run a moderate candidate to win the general election, since it already has a majority.

Worst of all, partisan ger-rymandering unfairly silences hundreds of political voices. Gerrymandering gives politi-cal candidates license to essen-tially ignore both members of the opposing party and certain, non-controlling, factions of the dominant party. This tarnishes the First Amendment. Though the SCOTUS has found partisan gerrymandering nonjusticiable from a Fourteenth Amendment perspective, Justice Kennedy has given credence to approach-ing gerrymandering from a First Amendment perspective:

“After all, allegations [of ger-rymandering] involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process.”

Unless the government has a compelling state interest, then rendering the voice of nearly half a political district useless may not just be unethical, but illegal.

Then again, having the court

decide every gerrymandering case would be highly inefficient. In-stead, the United States ought to fundamentally change the district drawing process, eliminating the legal and ethical threat of partisan gerrymandering before the SCO-TUS gets involved. Currently, state legislatures monopolize the redistricting process. Once one party controls the state legisla-ture, partisan gerrymandering can commence. Politically indepen-dent redistricting boards face a different problem: promises of political access and ingratiation can serve as corrupting influ-ences. A rule must be in place to keep such behavior in check.

Interestingly enough, the very gridlock experienced in the gov-ernment shutdown might be the best hope for redistricting com-missions. The Arizona redistrict-ing commission is composed of five members, two from each of the major parties and one from a third party. The partisan voices balance each other out, prevent-ing either side from enacting a partisan gerrymander. Should the four be unable to compromise, the fifth voice promotes modera-tion.

Application of similar reforms on a national level could prove a huge boon to mitigating partisan gerrymandering. So long as fair districts are created, candidates are held accountable. The speech of the citizenry is protected.

The process will be slower, no doubt, but at least there will be a moderating voice in the chambers—a voice our current Congress very clearly lacks.

Lozano v. Alvarez is, simply put, a case about child abduction. Generally, we expect to find child abduction featured on the evening news report or interlaced with the drama of Hol-lywood films—not in front of the Supreme Court of the United States. But this particular child abduction story has a few plot twists that render it an interest-ing legal conundrum. This is a story in which the abductor and the parent are one and the same, transforming it into a custody dispute, but a custody dispute em-broiled in international law. With Lozano v. Alvarez, the Court will be asked to interpret Article 12 of the Hague Convention on Civil Aspects of International Child Abduction, and, in particular, the specifications of the “now set-tled” defense claimed by Alvarez. The debate over this issue can be neatly summed up with two ques-tions: first, whether equitable toll-ing applies to the one-year period during which a parent may file for return of child, and second, whether a child’s illegal immigra-tion status can void the legitimacy of the “now settled” defense.

Diana Lucia Montoya Alvarez and Manuel Jose Lozano met in

London in 2004, began dating, and, one year later, had a child to-gether. Both Alvarez and Lozano acknowledge that the relation-ship was turbulent, although their respective characterizations of this turbulence differ significantly. Lozano reports that they encoun-tered “normal couple problems,” while Alvarez claims that it was an abusive relationship, alleging violence and rape. In 2008, Alva-rez took the child and fled, resid-ing in a women’s shelter for some time before relocating across the Atlantic in July 2009. The mother and child ended up in New York, where they were taken in by Alva-rez’ sister.

After several months of at-tempting to locate Alvarez and the missing child, Lozano finally discovered their whereabouts. On November 10, 2010, he proceed-ed to file a Petition for Return of Child in accordance with Article 2 of the Hague Convention and the International Child Abduc-tion Remedies Act, 42 U.S.C. § 11603 (ICARA). He requested that the child return to the UK, after which a British court would be responsible for making a cus-tody determination. The District Court for the Southern District of New York ultimately denied Lozano’s request on the grounds that he filed the petition after the one-year period set by the statute of limitations in Article 12 of the Hague Convention. Because over a year had elapsed, Alvarez was able to invoke the affirmative defense that the child was “now settled” in New York. The case was then appealed to the Second

Circuit.On appeal, Lozano disputed

the district court’s decision on the basis that equitable tolling should apply to the one-year period specified in Article 12. Equitable tolling is a legal prin-ciple that allows for the suspen-sion of a statute of limitations if the plaintiff was unaware of the injury until after the period set by the statute had expired. Lozano argued that because Alvarez had concealed the whereabouts of the child, equitable tolling should ap-ply and the one-year filing period should not have begun until he was actually able to locate the child. In conjunction, Lozano posited that the “now settled” de-fense was inapplicable given that neither Alvarez nor the child had legal immigration status in the US. However, the Court of Ap-peals affirmed the district court’s decision, citing Article 12’s ex-plicit statement that the one-year period begins “from the date of the wrongful removal or reten-tion,” and is thus not subject to equitable tolling, and establishing that “when making a now settled determination, courts need not give controlling weight to a child’s immigration status.” Following the Second Circuit’s decision, Lo-zano filed a petition for certiorari to the Supreme Court, asking that the Court resolve inconsistencies between the circuits as to whether equitable tolling can be applied to the “now settled” defense. The court granted certiorari.

Oral arguments for Lozano v. Alvarez are set to begin on Dec. 11, 2013.

Case revIews

lozano v. alvarez

by ConnIe wang

This year, the Supreme Court will hear a case that could force left-leaning thinkers to decide which convictions they are most committed to upholding. McCullen v. Coakley combines two issues to which many Demo-crats feel committed: free speech and a woman’s right to a safe abortion. In this case, these issues are on opposing sides.

The case challenges a Mas-sachusetts law originally enacted in 2000 that made it a crime for people to “enter or remain on a public way or sidewalk” within 18 feet of an abortion clinic unless the person is entering the clinic, the person is using the sidewalk by the clinic simply to walk to another destination, or the per-son is a clinic employee. In other words, the intent of the law is to keep protestors at least 18 feet away from abortion clinics. In 2007, Massachusetts Governor Deval Patrick approved legisla-tion extending this zone to 35 feet, which has incurred a new flurry of legal challenges on the grounds that the law unconsti-tutionally prohibits free speech. Plaintiffs argue that the law is not a content-neutral restriction on speech—a restriction that does

not discriminate based on the contents of the speech or the viewpoint of the speaker—but instead is geared primarily at anti-abortion activists since they are the only ones not permitted in the buffer zone. Such challenges were mounted when the law required protestors to keep only an 18-foot distance, but all of them failed. In this current case, the First Circuit Court of Appeals upheld the law, and the plaintiffs appealed to the Supreme Court, which agreed to hear the case on June 24.

To complicate matters further, this case involves another furrow: a precedent that may be over-turned or limited. In 2000, the Supreme Court upheld a similar law in Hill v Colorado. The law at issue in Hill prohibited people within 100 feet of any healthcare facility from approaching within eight feet of another person without that person’s consent. The effect of this law was to prevent activists from passing out literature to unwilling patients of the facility. The Hill decision was 6-3, and Justice Stevens wrote on behalf of the majority comprised of Chief Justice Rehnquist and Justices Ginsburg, Breyer, Souter, and O’Connor. Justice Stevens wrote that the law’s restrictions were content-neutral. In other words, the law banned all types of speech, not just speech expressing a particular viewpoint. He also found that the state does have a compelling interest in protect-ing citizens exiting or entering a medical facility from unwanted speech. Perhaps most important-ly, Justice Stevens wrote that since

the legislature had a compelling interest in passing this law, it did not matter that it did not pursue the least restrictive means of sup-pressing communication so long as other channels were left open. This represented a departure from typical First Amendment jurisprudence.

Can the current Court invali-date the law at stake in McCul-len without overturning the Hill precedent? Yes - the Court could leave intact its Hill precedent in-tact while invalidating the Massa-chusetts law in one of two ways. First, it could find that the Hill law, through its eight-foot restric-tion, sought to prevent unwanted distribution and approaching, not unwanted speech. The Mas-sachusetts law, on the other hand, clearly seeks to prevent only speech. This interpretation of Hill is shaky, however, because the justices clearly thought that they were sustaining a law that curtailed speech, not approach-ing. In fact, Justice Souter wrote a concurrence in Hill arguing that the law was constitutional because it banned only unwanted approaching, but his opinion garnered only three other votes, from Justices O’Connor, Gins-burg, and Breyer. It did not earn a majority and is not binding prec-edent. Second, as the petitioners point out in the current case, the Massachusetts law leaves open few of the alternatives relied on by the Hill majority.

Oral arguments have been set for Jan. 15, 2014, and will surely attract much attention and scru-tiny when they take place.

mCCullen v. Coakley

by roberT flaTow

Case revIews

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