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Judicial Deference to OLC Opinions

12/29/2016

By Habib Olapade

Habib Olapade is a senior at Stanford University studying political science.

Federal administrative agencies interpret, enforce, and in some cases adjudicate disputes arising under congressional statutes. Agency officials acquire an intimate and complex understanding of the regulatory laws they carry out because they interact with them on a daily basis. Bureaucratic expertise is a double edged sword.

On one hand, agency specialists facilitate compromise between the political branches by allowing lawmakers to agree on broad, non-controversial principles and then passing the buck to agency staff who turn those principles into a concrete set of policies. Congress benefits from this arrangement because members can claim credit for any agency accomplishments while avoiding responsibility for agency malfeasance by arguing that they do not promulgate agency directives or were misled in an oversight hearing. Likewise, the general populace also benefits from agency expertise because it receives a public good that would otherwise not be available, calibrated to the particular needs of society as a whole or an influential segment of society.

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A Continued Conservative Majority on the Supreme Court?

12/28/2016

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By Gabriel Maliha

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

As soon as November 8th ushered in a new president-elect, speculations began as to who Donald Trump would appoint to the current vacancy on the Supreme Court left by the passing of Justice Antonin Scalia in February 2016. The judicial position remains unfilled because the United States Senate had not acted on President Obama’s nomination of Merrick Garland [1]. As a candidate, Trump had taken the unusual step of publicizing a list of about twenty individuals including judges that he felt might be suitable for the position. Unsurprisingly, they all appear to be ideologically conservative.

Filling the current vacancy with a conservative justice would maintain the right-leaning majority on the court that has existed since 1971. However, the opportunity to appoint two, or even three, more justices over the next four to eight years of a Trump administration could be a true game changer. Due to age, many Justices may be reaching the end of their tenure on the Court, as Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78. The first two are reliably liberal and Mr. Kennedy is the swing vote, so their replacement could substantially hurt liberals.

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Legal Roadblocks Surrounding Transference of Medical Care

12/27/2016

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By Nicholas Parsons

Nicholas Parson is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics (PPE).

Our innovations and understanding of the world is constantly growing and improving. In the healthcare industry, we have made leaps and bounds in how we understand ourselves. In recent decades, there have been vast developments in the understanding of the human genome, in the control of previously irrepressible diseases, and in such incredible accomplishments as bionic limbs and the growing of organs. In such cases of marked improvement, we can only hope that policy will grow to accommodate for these developments. However, many legal roadblocks still exist which pose challenges to quality and expediency of care. One of these issues lies in transfers of patients’ medical information from facility to facility.

Many situations can necessitate a transfer of medical information from one medical establishment to another, including but not limited to: a change of insurance, a different location of residency, or a general unhappiness with one’s current care provider. Depending on the direness of the situation, it can be vital that the medical records are transferred quickly. Given that we live in an increasingly computerized age, these records ideally could be sent immediately. However, the reality of the situation is far more complex.

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Remembering Korematsu in the Era of Trump

12/13/2016

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By Derek Willie

Derek Willie is a sophomore at the University of Pennsylvania.

Yet another of Donald Trump’s vocal surrogates has dipped into the United States’ racist past to justify one of the President-elect’s prospective policy proposals— this time, a national registry of Muslim immigrants. In an interview with Megyn Kelly, Carl Higbie, president of the pro-Trump group Great America PAC, cited internment of “the Japanese” during World War II as legal “precedent” for requiring people visiting or emigrating from Muslim-majority countries to register with a database. At Kelly’s almost incredulous rebuke, Higbie quickly clarified that he was not “at all” suggesting the country reinstate internment camps, but that he would support “having people that are not protected under our Constitution have some sort of registry so we can understand — until we can identify the true threat and where it’s coming from…” [1]

We should note that there are two glaring problems with Higbie’s remarks: first, as Kelly implies, it is logically spurious to defend the morality of a proposition— in this case, the Muslim registry— by analogizing it with what one supposedly regards as its morally indefensible antecedent— Japanese internment. Either Higbie mistakenly employed internment as precedent, or his adamant dissociation from it is insincere. Second and perhaps more concerning, however, is Higbie’s misstatement of history: during World War II, the United States government interned not the Japanese, but Americans of Japanese descent. Indeed, it was Fred Korematsu, a native Californian and Japanese-American, who sued the government over his displacement in the landmark case Korematsu v. United States, where the Supreme Court judged the forced internment of Japanese-Americans constitutional. [2] Intentionally or not, Higbie’s analogy conflates the Muslim immigrants he hopes to monitor with ethnically Japanese, constitutionally protected, American citizens. In this sense, the ignorance of Mr. Trump’s surrogate nourishes a cultural conception of non-white people— regardless of their citizenship status— as the fundamentally un-American “other.” Echoing the sentiment latent in his surrogate’s speech is the President-elect himself, specifically as he indiscriminately labeled Mexican-Americans rapists and murders while exploiting a judge’s Mexican heritage to invalidate his legal opinion. [3, 4] From his campaign’s inception, Mr. Trump began to facilitate further the already prominent ostracism of non-white Americans, positioning his surrogate’s casual treatment of forced internment within a much larger narrative of cultural exclusion. Thus, Trump and his followers live in a universe where a person’s legal status matters not, where people of non-white ethnic origins are perennially foreign.

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Donald Trump and Sovereign Immunity

12/9/2016

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By Sanjay Dureseti

Sanjay Dureseti is a sophomore at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

The election of Donald Trump as president has ushered in a period of unprecedented uncertainty. Never has a person bereft of any political or military experience taken the oath of office of president. Along with his status as a governmental neophyte, Trump ran a campaign in which he refrained from articulating substantive policy points about a variety of issues, leaving the country in the dark about his plans to implement his legislative agenda. But perhaps the biggest shadow looming over Trump’s future is the status of several pending and active lawsuits against the incoming President and his vast conglomerate.

75 cases involve Trump and his holdings, and, though many of them are frivolous, several legitimate charges could threaten the stability of his regime. Trump, in the days after his electoral victory, attempted to postpone some of these trials until after his inauguration. These civil claims, other than potentially derailing the transition of power from President Barack Obama to his successor, also raise fundamental questions about the judicial liabilities, or lack thereof, that face the highest office in the land.

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Copyright Law: A Tool of Social Control

12/8/2016

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By Marco DiLeonardo
Marco DiLeonardo is a junior at the University of Pennsylvania studying International Relations.

In relation to law and society, the Digital Millennium Copyright Act (DMCA) demonstrates how law can be used as a tool for social control, especially in the genre of Remix. Remix consists of sampling, or extracting media from different sources, and mixing them together. [1] By hampering the creation of Remix music, law acts as a tool for social control of up-and-coming DJs and artists. According to popular theorist Donald Black, law’s function is to regulate and constrain the behaviors of individuals in their relationship with one another. [2] In other words, parties and lobbyists can promote specific interests through law. On the other hand, according to sociologists, laws are simply a guide for action, needing interpretation and enforcement. The DMCA prevents the distribution of an artist’s work. While there is no formal law explicitly limiting a work’s dissemination, the legal apprehension and administration of the DMCA prefers music labels and suppresses the creation of Remix work.

Copyright law controls the people by hampering the creation of revolutionary music. Through an interpretation of Black’s philosophy, one may postulate that laws governing copyright are designed to limit and suppress unfamiliar musicians for the benefit of popular artists. Artists caught unlawfully remixing music are punished through compensation, a contractual obligation in which the violator owes the victim restitution, typically financial. However, I argue that remixing established music is a “crime without victim.”

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The Widespread (Un)Popularity of the Narcocorrido

12/2/2016

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By Clarissa Alvarez

Clarissa Alvarez is a sophomore at The George Washington University studying political science and economics.

For years, Mexican drug ballads known as narcocorridos that depict the now powerful and lavish lives, as well as the humble beginnings, of cartel leaders have taken the U.S.-Mexico Borderland region by storm. For many young Mexicans living in the Northern States of Mexico and Mexican-Americans living along the southern border states, narcocorridos have unexpectedly become a trendy theme. However, many also believe that these ballads only show how Mexican youth have lost their values and now idolize the nefarious and criminal drug lords. The origin of the narcocorrido stems from the corrido, which often depicts the political themes of immigration, struggle, and the U.S.-Mexico border. There has been a dramatic shift in popularity from the corrido to the polemical narcocorrido since Felipe Calderón announced the infamous “war on drugs” in December 2006.

Calderon’s “war on drugs” exacerbated violence and corruption by fracturing large and stable cartels into smaller, more violent groups. During Calderon’s presidency, the “war on drugs” claimed over 60,000 lives and 25,000 disappearances, though the latter numbers are often regarded as extreme underestimations. A recent Mexican National Survey on Victimization and Perception of Public Security shows, “93.7% of crimes were not reported by victims, due mainly to a lack of faith in police and the judicial system. [1] For many Mexicans, narcocorridos are ballads that give voice to the grievances of their nation’s dire situation. In other words, the narcocorrido is an esteemed part of “narco culture” that has overwhelmingly become a way of life for many Mexican and Mexican-American youth.

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The Roundtable

Judicial Deference to OLC Opinions

A Continued Conservative Majority on the Supreme Court?

Legal Roadblocks Surrounding Transference of Medical Care

Remembering Korematsu in the Era of Trump

Donald Trump and Sovereign Immunity

Copyright Law: A Tool of Social Control

The Widespread (Un)Popularity of the Narcocorrido

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