Blog Archives

Disunion in Right-to-Work States

3/31/2015

By Alexandra Aaron

Alexandra Aaron is a sophomore at the University of Wisconsin-Madison studying Political Science and History.

On Wednesday February 25th, 2015 the Wisconsin legislature passed a highly contentious right-to-work bill that will prevent private-sector employers from requiring their workers to pay union dues. On March 9, presidential hopeful, Governor Scott Walker signed the bill into law, making Wisconsin the 25th so-called right-to-work state.

Proponents of this type of legislation argue that the states that have prohibited compulsory union participation attract more business and create more jobs. [1] The opposition contends that these new jobs fail to provide workers with necessary training, security, and adequate wages. [2] Both sides supplement their argument with constitutional claims that address the benefit or harm caused by requiring private-sector employees to pay union dues.

Military Medals: The Implications of United States v. Swisher

3/30/2015

By Dan Zhang

Dan Zhang is a student at the University of Pennsylvania.

In United States v. Swisher (2014), the U.S. Court of Appeals for the Ninth Circuit, citing United States v. Perelman (2012) [1], held that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with intent to deceive. [2] This ruling may have implications for future cases involving First Amendment rights.

The defendant, Elvin Swisher, was enlisted in the United States Marine Corps from 1954 to 1957. Since being honorably discharged, Swisher twice applied for disability benefits from the Department of Veterans Affairs (formerly the Veterans Administration), once in 1958 and again in 2001. In both claims, Swisher recounted events that involved him being awarded several military medals. Swisher’s 2001 claim for service-related Post-Traumatic Stress Disorder benefits was honored. However, in 2002, the VA received information from military personnel that the 2001 application contained fraudulent information. In 2006, further investigation demonstrated that the application was indeed forged, and the VA reversed its 2001 decision, compelling Swisher to pay back the benefits.

Comparing Peshat to Constitutional Originalism

3/24/2015

By Rebecca Heilweil

Rebecca Heilweil is a freshman at the University of Pennsylvania.

Religion and legal doctrine have a long, shared history. Before church and state began to move apart, moral ecclesiastic authority and legal force held equal importance. Canon law was often written within civil code, citing Biblical verses. But more than simply providing another source of statutes, Abrahamic religion underlied the meaning and authority of political compacts. The Mayflower Compact, for instance, considered America's first constitution, recognizes God, and creates a parallel between the famous biblical covenant and its own political doctrine.

Most early colonial legal documents, perhaps saving Roger William's, which celebrated the non-denominational nature of Rhode Island, embraced Christian rhetoric. References to the Holy Trinity and Jesus Christ were abundant. However, when comparing methods of interpreting religious and legal documents, it is interesting to note the similarities between how rabbinic scholars discuss the Jewish Torah and the Supreme Court analyzes the Constitution.

Samantar: Questions of Immunity and Human Rights Remain

3/20/2015

By Natasha Kang
Natasha Kang is a senior at the University of California, Davis.

Few issues can be considered black-and-white with a clear, absolute answer – except violations of human rights, right? Even the overriding international norms of jus cogens do not allow for human rights abuses such as torture and arbitrary imprisonment. [1] However, this is not simple in practice, as seen in the recent history of the case against Mohamed Ali Samantar, a government official under the brutal regime of the late dictator of Somalia, Mohammed Siad Barre. [2] Serving as Defense Minister and later as Prime Minister during the regime, Samantar oversaw armed forces that engaged in acts of torture, rape, abduction, extrajudicial killings, and groundless imprisonment. After moving to the US in 1997, Samantar recently filed his third petition for writ of certiorari in a long battle against the members of the Isaaq clan, victims of Samantar’s actions while he was working under the regime. [2]

In 2004, the Center for Justice & Accountability (CJA) filed a complaint with the U.S. District Court for the Eastern District of Virginia. [3] Samantar was charged for the “extrajudicial killing; arbitrary detention; torture and cruel, inhuman, or degrading treatment; crimes against humanity; and war crimes” committed by the armed forces he oversaw. [4] After a struggle to enforce a subpoena in order to obtain documents concerning human rights and military issues in Somalia, Samantar’s motion to dismiss was granted based on statutory immunity grounds. This meant that under the Foreign Sovereign Immunities Act (FSIA) [4], Samantar possessed “immunity from civil lawsuits to foreign states and to their agencies and instrumentalities” because officials acting on orders should be treated as an agency or instrumentality. [5]

Our Right against Imprisonment

3/19/2015

By Tanner Bowen

Tanner Bowen is a freshman at the University of Pennsylvania.

It is often an understatement that Arizona is America’s most recent and continual “Laboratory of Democracy.” As wittily opined by Justice Louis Brandeis, a “Laboratory of Democracy” is used to describe how a “state may, if citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” [1] The Ninth Circuit Court of Appeals has often struck down these laws. Over the summer, it ruled Arizona’s law refusing recipients of Deferred Action for Childhood Arrivals (DACA)--the Obama administration’s policy of allowing immigrants who entered the country while they were young to receive an exemption from deportation-- from obtaining drivers licenses was unconstitutional. [2] The Ninth Circuit has spoken again, and this time they ruled that the infamous Proposition 100 was a violation of the Due Process Clause of the Fourteenth Amendment. [3]

The Lopez-Valenzuela v. Arpaio (2014) case originated after voters in the State of Arizona provided an overwhelming approval for an amendment to the state constitution that would deny immigrants illegally residing in the United States bail if they had previously committed “serious felon[ies]” and if the “proof is evident” to present charges. [4] Plaintiffs Angel Lopez-Valenzuela and Isaac Castro-Armenta sued the state of Arizona after they were charged with state crimes and held in the Maricopa County Jail without the possibility of bail, declaring that this law was not only a violation of the Fourteenth Amendment, but also breaches of the Excessive Bail Clause of the Eighth Amendment and the Supremacy Clause.

Paul Singer Takes On Argentina

3/19/2015

By Sam Nadler

Sam Nadler is a senior at Vanderbilt University studying history.

The U.S. Supreme Court met on June 12, 2014 to decide the fate of an 11-year long legal battle. On one side was the billionaire investor and head of Elliott Management, Paul Singer, and on the other the nation of Argentina. Argentina had appealed a lower court's decision, which forced Argentina to pay Singer $1.4 billion for bonds that he bought after the country defaulted in 2001. The Court decided not to hear the case, affirming the previous ruling against Argentina.

The significance of this decision cannot be fully understood without the context of the legal actions prior to Argentina’s appeal to the Supreme Court. The story began twenty years ago in New York, when Argentina agreed to the Fiscal Agency Agreement (FAA) with Banker's Trust for the purpose of issuing bonds eventually valued at $82 billion. Section 12(d) of the FAA stated that Argentina would default if, among other eventualities, “a moratorium on the payment of principal of, or interest on, the Public External Indebtedness of the Republic [were] declared by the Republic.” [1] Furthermore, and of specific interest to later legal developments, section 22 of the FAA stated that Argentina was to “expressly accept the jurisdiction [...of] any state or federal court in the City of New York [... for] any action arising out of or based on the Securities or this Agreement by the holder of any Security.” [2] Thus, Argentina fully acknowledged and accepted that any potential future litigation regarding the bonds could be filed in the United States.

Riding Circuit: How Supreme Court Justices Can Act Alone

3/17/2015

By Sebastian Bates
Sebastian Bates is a first-year law student at Keble College, Oxford University.

At some time between 1:52 p.m. and 3:39 p.m. on Wednesday, July 23, 2014, United States Supreme Court Justice Anthony M. Kennedy fielded what may have been one of the most harrowing phone calls of his life.

According to the New York Times, the phone call that Justice Kennedy received was part of a three-pronged strategy. The other two were appeals to the District Court of Arizona and a call to three members of the state’s Supreme Court. These strategies were employed by the lawyers of Joseph R. Wood III in their bid to save their client’s life. [1]

Kennedy was asked to halt the execution on the grounds that the nearly two-hour long procedure, during which Mr. Wood appeared to gasp repeatedly, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. Justice Kennedy refused. Mr. Wood died shortly thereafter, at about ten minutes to four. The unusual and distressing circumstances of his death will undoubtedly raise questions about capital punishment, but his lawyers’ attempts to secure a stay of execution likely will provoke curiosity in those unfamiliar with the byzantine procedures of the Supreme Court. Why, reasonable minds may ask, did Justice Kennedy handle the matter? Surely the Court as a whole ought to have been consulted?

Solitary Confinement

3/12/2015

By Alexandra Aaron
Alexandra Aaron is a sophomore at the University of Wisconsin-Madison studying Political Science and History.

Last year a U.S District Court Judge ruled that 24 hour isolation of prisoners violated their due process rights, and that Virginia’s Department of Corrections would have to review prisoners on a case-by-case basis. The state appealed this decision and on October 28th a three-judge panel of the 4th U.S. Circuit Court of Appeals heard arguments.

The Virginia prisoner who brought the lawsuit is on death row, where prisoners are often subjected to solitary confinement. Prison officials assert that solitary confinement is necessary for the health and safety of the general prison population, as well as of the prisoners being isolated. They argue that prisoners on death row are more likely to incite violence and cause harm because, ostensibly, they have less to lose. [1] They have also pointed to the increased desperation of death row inmates and the likelihood of an escape attempt. Experts have refuted these claims, contending that years of data have disproved the widely held misconception that death row inmates are more dangerous than other prisoners. [2]

Paving the Way to US-China Economic Engagement

3/12/2015

by Natasha Kang

Natasha Kang is a senior at the University of California, Davis.

China, the fastest-growing economy in the world, [1] was already made headlines four years ago in 2010 when it overtook Japan as the world’s second-largest economy. [2] It took another leap forward when the International Money Fund declared China as the world’s largest economy in late 2014 as it overtook the United States. Of course, this is just in terms of purchasing power (the amount of goods and services that can be purchased), as China still has ways to go before surpassing the US in raw terms. [3] This development bears much value, as a bilateral investment treaty with China now takes more priority than ever before.

According to the United Nations Conference on Trade and Development, a bilateral investment treaty (BIT) is an agreement “between two countries for the reciprocal encouragement, promotion, and protection of investments in each other's territories by companies based in either country.” [4] BITs act as tools to break down market access barriers by setting terms and conditions for foreign investment while giving foreign investors special rights and legal protections. These substantial protections include foreign companies being treated as favorably as local ones, letting investors transfer funds in and out of a host country using the market exchange rate, and even limiting host governments from adopting inefficient practices that may harm trade. In addition, BITs give investors the right to submit an investment dispute with the government of the host country directly to international arbitration. [5]

Walking the Line: Copyright Infringement in Music

3/10/2015

By Dan Spinelli

Dan Spinelli is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE).

In November 1970, former Beatle George Harrison released his first solo single, "My Sweet Lord" in the United States. Upon release, the song made waves on international charts and held the No. 1 spot on the U.S. Billboard Hot 100 list for four weeks. Not even John Lennon’s legendary song “Imagine” can claim that distinction. By 2010 – nine years after Harrison’s death – the song had sold over 10 million copies.

However, with incredible popularity comes enhanced scrutiny, as Harrison duly learned. On February 10, 1971, Bright Tunes Music Corp. filed a lawsuit against Harrison and his international record distributors. Bright Tunes claimed that “My Sweet Lord” plagiarized the 1962 song, “He’s So Fine” by the all-girl band the Chiffons. Bright Tunes demanded 75 percent of the royalties and wanted Harrison to surrender officially the copyright for “My Sweet Lord.” After a protracted legal battle, the judge ruled that the two songs were essentially the same, with only miniscule differences in melody. Despite the judge’s affirmation that the songs were decidedly similar, he maintained that Harrison did not intentionally pillaged the song. In stunning legalese, typical of musical plagiarism cases, the judge found Harrison guilty of “subconsciously plagiarizing” the Chiffons’ song. Harrison kept the copyright to his song, but had to cough up $1,599,987 to compensate Bright Tunes. [1]