Blog Archives

Seeing the Future: The Supreme Court and Predicting Justices’ Decisions

3/31/2017

By Gabriel Maliha

Gabriel Maliha is a senior at the University of Pennsylvania studying criminology.

The recent nomination of Judge Neil Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, to the Supreme Court touched upon the usual debate about the predictability of a nominee’s judicial philosophy and ideological leanings. It is hoped that his writings, his record as a judge, and his Senate confirmation hearings will provide some clue as to his votes on potential issues that will come before the Court. [1]

Article III, Section one of the U.S. Constitution states: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and “The judges, both of the Supreme Court and inferior Courts, shall hold their offices during good behavior.” The Constitution is silent on the qualifications of justices. There is no age, legal experience, or citizenship requirement. However, all those who have been nominated or served have been lawyers. The framers have clearly understood “good behavior” to be a lifetime appointment meant to preserve the independence of the judiciary against encroachment by the other branches. The “good behavior” standard is considered to be lower than “high crimes and misdemeanors.” Still, only fifteen federal judges have been impeached (none from the the Supreme Court) and eight convicted by the Senate in the history of the republic. [2]

The End of Gerrymandering’s Good Ol’ Days

3/28/2017

By Thomas Cribbins
Thomas Cribbins is a junior at the University of Michigan studying Political Science

A curiosity of the American electoral system revolves around the practice of state legislatures redrawing the map of electoral districts every 10 years. This may seem strange, akin to someone judging their own trial, since these very legislators have a vested interest in keeping their job and therefore drawing their district to optimize job security. Moreover, America’s electoral districts exemplify vehement partisan tendencies. There has been a long legal history of judicial intervention (and non-intervention) in gerrymandering. Some of the more recent developments in gerrymandering case law, specifically dealing with gerrymandering for partisan reasons, have been Cox v. Larios (2004) and Wake Citizens Assoc. v. Wake County (2016). These cases both dealt with state legislature-drawn electoral maps that were ruled overly partisan and violated the “one person, one vote” principle extrapolated from the 14th Amendment’s Equal Protection Clause.

Sixth Amendment Fairness Proves Ineffective in an Unfair Justice System

3/27/2017

By Shannon Alvino
Shannon Alvino is a junior at The George Washington University majoring in Political Science and Criminal Justice

The United States Supreme Court has entertained an eight-decades-long complicated relationship with the Sixth Amendment’s right to counsel. Here is an overview:
· Powell v. Alabama (1932) required that trial courts appoint legal representation in capital cases “where the defendant is unable to employ counsel, and is incapable of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like.”
· Johnson v. Zerbst (1938) lengthened the guarantee to any defendant facing federal criminal charges.
· Betts v. Brady (1942) declined to extend the right to indigent defendants in all criminal cases; counsel was appointed only when failure to do so would be “offensive to the common and fundamental ideas of fairness.”
· Gideon v. Wainwright (1963) firmly established indigent defendants’ Sixth Amendment privileges, labeling counsel “fundamental and essential to fair trials.” Due process demanded that states conform to this federal interpretation, overruling Betts and entrenching notions of fairness.
· United States v. Wade (1967) reasoned that “today’s law enforcement machinery involves critical confrontations” that trigger the Sixth Amendment, including post-indictment lineups.
· Kirby v. Illinois (1972) specified a “critical stage” as any instance after the initiation of formal adversarial proceedings. Custodial interrogations, post-indictment corporeal lineups, preliminary hearings, arraignments, trials, sentencing hearings, and first appeals constitute “critical stages.”
· Argersinger v. Hamlin (1972) announced “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.”
· Scott v. Illinois (1979) argued convicted individuals could be incarcerated only if they received legal assistance. If the defendant is not sentenced to “actual imprisonment,” even if the applicable law allows for it, the Sixth Amendment does not apply.
· Strickland v. Washington (1984) created a standard for the resolution of ineffective counsel claims. The first prong assesses attorney performance, requiring the defendant to “show that counsel’s representation fell below an objective standard of reasonableness.” The second prong hinges on prejudice; a defendant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Algorithms and the Feds: A Violation of Due Process?

3/24/2017

By Tanner Bowen
Tanner Bowen is a junior at the University of Pennsylvania studying business.

In my last blog post, we started talking about potential legal hurdles endemic to the usage of machine learning algorithms by federal and state governments. Particularly, we mentioned some issues that courts will grapple with in deciding whether these algorithms violate the nondelegation provision of Article I of the United States Constitution. But, as one can imagine, there are a plethora of legal issues that might make it onto the dockets of federal courts concerning the proliferation of technology in government rulemaking decisions. In this post, we will examine the question: Do machine learning algorithms in lieu of rulemaking violate our guarantee of due process as citizens?

Due process considerations are not novel when it comes to the federal government. Since federal agencies have been making and executing rules, they have had to justify actions that could deprive individuals of property or entitlements for centuries. Yet, as discussed in my last post, it seems that if these algorithms are used in a more support or research function, then we might not cross the issue of due process. But let us assume that these algorithms will be used for large-scale policy decisions. What does our current legal system hint at concerning these optimization techniques?

Qatar: Possible Advancement in an Overlooked Human Rights Issue

3/22/2017

By Jonathan Lahdo
Jonathan Lahdo is a freshman at the University of Pennsylvania studying business and international studies.

As a region, the Middle East often finds itself under scrutiny due to human rights abuses that span the entire spectrum, from well-known examples like censorship and restrictions on freedom of speech to some that are less prominent from the rest of the world’s perspective.

The Gulf Emirate of Qatar is a pertinent example in recent history of a Middle Eastern state in which human rights abuses that had previously been ignored by most mainstream media outlets were brought to the surface. Namely, the issue was the treatment of migrant labourers working on the construction of the stadium for the FIFA 2022 World Cup in Qatar. At least 1,200 migrant workers died during the three years after Qatar was awarded the World Cup bid. [1] This highlights the lack of action being taken on the part of the Qatari government to protect these migrant workers that are exploited by their employers, often forced to live in squalid conditions and have their wages withheld and passports confiscated. [2]

Keepers of Peace or Perpetrators of Abuse?

3/20/2017

By Harshit Rai

Harshit Rai is a third year student at the Symbiosis Law School, Pune.

The neighbourhood in Bangui is plundered at the height of civil war, but in a number of homes, women are raising newborns. They say these are children of U.N. troops who sexually abused them. They are called “Peacekeeper babies,” by the United Nations.[1]

Native Americans and Adoption: Examining The Indian Child Welfare Act

3/17/2017

By Habib Olapade
Habib Olapade is a first-year law student at Yale University.

The Indian Child Welfare Act of 1978 (ICWA) was passed in response to abusive child welfare practices resulting in the separation of large numbers of Native American children from their families through adoption or foster care placement in non-Native American homes. From 1969 to 1974, 25%-35% of all Native children were separated from their families and placed in foster care or adoptive homes. [1] In many states, this mass displacement lead to large discrepancies between the Native and non-Native adoption rates. In South Dakota, for instance, Native children were 40 times more likely to be adopted than their Caucasian peers, notwithstanding the fact that they were only 7% of the juvenile population. [1]

During ICWA hearings, Congress specifically found that state adoption agents, many of whom were ignorant about Native American social norms, would often impose western cultural values on Native families, and then resort to vague, pre-textual reasons such as neglect or social deprivation in order to justify child removal. Some Native cultures, for example, reject the nuclear family concept. Consequently, a Native child may have dozens of extended relatives within the tribe that the nuclear parents treat as close, responsible family members. An untutored social worker, however, might incorrectly believe that leaving a child with these relatives for extended periods of time constitutes good cause for custody removal.

Public Opinion and Judicial Interpretation

3/14/2017

By Luis Bravo

Luis Bravo is a sophomore at the University of Pennsylvania studying sociology.

Fearful of tyranny, the founding fathers made a concerted effort to limit the breadth of the United States government. For many decades, the Supreme Court ruled down efforts to expand the role of the government, citing federalism as outlined in the constitution. Yet, fast forward to today and we find the government being an inescapable presence in people’s daily life. Though many of these changes can be attributed to the introduction of the interstate commerce clause, different generations of the Supreme Court have interpreted the same enumerated power distinctively. What accounts for these different interpretations and why do different Supreme Courts amend previously held stances? Underlying fixed legislation is a dynamic public opinion that fluctuates based on societal conventions of the time. Though it is only one of a multitude of factors, public opinion is a powerful force with the ability to shape legal interpretation at all levels, including the Supreme Court.

Interview with Theodore Ruger, Dean of Penn Law

3/13/2017

Roundtable: you’ve done a lot of work in the field of health law, so what is it specifically about that that attracted you to health law?

Theodore Ruger: Well, obviously as Dean of the law school, I think many areas of the law are fascinating and always changing. But I think particularly with health law, it’s an area of law that obviously impacts people’s lives dramatically. And it is so connected with developments in, so health law is connected with developments in the medical sphere, in the health insurance and policy sphere. So it really is a great lens by which to look at the way law is impacted by economic and political trends and in turn law shapes interactions that have real impact on people’s lives. Another thing that fascinates me with health law is it’s a product of every aspect of the US legal system. So health law is created by the Federal Government and the State Government. It’s created by courts and legislatures, administrative agencies and private negotiations. So when we look at legal change in the health law range, we are seeing the full breadths of legal institutions that we study. There are some areas of law that may be we just look to the Supreme Court, or we just look to Congress, but with health law because it’s both a statutory and a common law topic, because it’s a federal and a state law topic, we really see a lot of institutional variations, and that itself is very interesting.

Federal Judge rejects Ohio’s Lethal Injection Procedure: An Ongoing Constitutional Question

3/13/2017

By Natasha Darlington

Natasha Darlington is a third year at the University of Warwick studying Law.

Executions due to take place in the coming months have been delayed in Ohio when on January 26, 2017, a federal judge ruled that the state’s new lethal injection process was unconstitutional. The ruling by Magistrate Judge Michael Merz was in regards to a three-drug method, which the state planned to use on February 15 on Ronald Phillips.