The Roundtable
Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
 By Habib Olapade
Habib Olapade is a second-year law student at Yale University. Throughout the last seventy-five years, the Supreme Court has explicitly and implicitly articulated two normative models for understanding the political activity in our representative democracy: liberalism and republicanism. [1] The models differ in that each provides a unique explanation for the social basis of human interests and legal rights as well as insight into what motivates citizens to engage in political activities. Republicanism posits that in substantive conflicts each state has a common interest that is independent of its constituents’ individual interests. [2] Under this theory, social and political rights are contingent upon political consensus rather than natural law or a commitment to a certain political philosophy. [3] Republican communities seek to establish and sustain a set of rights best suited to the community’s conditions and mores. [4] On the other hand, liberalism theorizes that, outside debates on procedures designed to ensure justice, the state can have no common interest that is independent of its constituents’ diverse desires. [5] Under this theory, the state’s citizens (and perhaps those outside the state) have a core set of rights that must be respected regardless of the voting majority’s political preferences. [6] Republicanism and liberalism require its citizens to deliberate to achieve an end. Traditional deliberation requires participants to exchange ideas so that the polity can arrive at a reasonable answer to a public issue by voting. [7] Alternatively, voters can interact strategically, considering his or her own interests and then make conditional offers to others in the hopes of striking a bargain before the voting process begins. [8] This deliberation can serve one of two purposes. First, engagement may develop and refine one’s identity by forcing an individual to empathize with others and grapple with their views. In this theory, the political process provides benefits that are largely unconnected with casting a ballot. Second, deliberation may be valuable because it provides a forum for voters to assert and defend their rights and interests. These deliberative models can appear in republican and liberal states.
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 By Habib Olapade
Habib Olapade is a second-year law student at Yale University. In January 2008, Hillary Clinton surprised most political commenters by winning the New Hampshire primary. Clinton’s chances were thought to be severely diminished after Barack Obama defeated her in the Iowa Caucus. Indeed, some pre-election polls in New Hampshire showed Clinton trailing Obama by as much as 13 points. Although political pundits attempted to explain this surprise by pointing to polling errors, groupthink among reporters, identity politics, and a critical, decisive mass of undecided voters, one explanation has been neglected: ballot order. Before 2008, New Hampshire created a two-step process for primary ballots. First, state officials randomized the name order, and then they rotated name order on ballots precinct by precinct. This method ensured that each candidate appeared first on the ballot for approximately the same number of voters. The New Hampshire State Secretary refused, though, to rotate names during the 2008 primary. The result? Joe Biden was listed first, followed by Hillary Clinton in the fourth slot, and Barack Obama in the eighteenth position. This ordering triggered the ‘primary effect’ phenomenon whereby individuals are more likely to select one of the first choices on the ballot. Judging from historical data, this may have given Clinton as much as a three-point bump – her margin of victory – on Election Day.  By Habib Olapade
Habib Olapade is a first-year law student at Yale University. Electoral structures are highly path dependent. Specific institutional structures and legal rules, not a preexisting popular will or ideology, are responsible for our political system’s virtues and vices. America’s two-party system, for instance, is a by-product of the nation’s single member district election scheme. [1] This insight was best articulated by French political scientist Maurice Duverger. She observed that in single district political systems, in which the candidate who receives the most votes wins office, two party political systems dominated. [2] This disposition is not necessarily harmful. Two-party systems facilitate democratic decision-making by responding to constituent concerns, competing for votes among undecided members in the electorate, and stabilizing and streamlining dissident minority interest groups. [3] But what happens when one party – or both – seeks to entrench itself in the government at the public’s expense? In resolving this question, it can be helpful to think of the democratic political process as an economic market. This analogy is valid because the principle-agent dilemma between the parties and the electorate closely resembles the sometimes troubling relationship between a company’s board of directors and its shareholders. [4] Both elected leaders and corporate board members claim legitimacy for their actions by appealing to their constituents’ interests and seek to enact procedural and substantive hurdles that prevent their voters from throwing them out of office. [5] Political processes and economic markets also rely on robust competition and clear rules of engagement. [6]  By Habib Olapade Habib Olapade is a first-year law student at Yale University. The perfect crime has preoccupied man’s mind for eons. Clytemnestra secretly slayed her husband, Agamemnon, with nary a scintilla of contrition. Othello privately smothered Desdemona in her uneasy slumber. And Massachusetts-native Lizzy Borden became an American pariah after she slaughtered her father and stepmother with an axe. These tales are as popular as they are gruesome. The United States Code, however, contains an unknown but interesting natural parks statute that is more sensational than any of these tragedies. It involves a careful mélange of forestry and forgotten constitutional commands. The Constitution imposes requirements on where a criminal jury trial can be held and the places where the government can draw jurors from. Article III § 2 states that the trial must take place in the state where the crime was committed. [1] The Sixth Amendment goes even further and declares that the jury must be drawn from the state and judicial district where the crime was committed. [2] What happens, though, when a crime is committed in a place that is inside the boundary of one state and the government can only procure jurors from judicial districts outside the state? A thin sliver of land in Wyoming’s Yellowstone National Park fits this hypothetical. Nine percent of the Park is actually in Montana and Idaho. [3] According to the latest census, this portion of the reserve is uninhabited. [4] Yellowstone was created in 1872 before Congress admitted Montana, Idaho, and Wyoming into the union. [5] Each state, however, transferred its authority over Yellowstone to the federal government upon obtaining statehood – which means that only federal criminal statutes can be enforced in the reserve. [6] When Congress established a federal district court in Wyoming, the incorporating statute purported to give the court territorial jurisdiction over the entire Yellowstone area. [7] This means that if someone were to commit a federal crime in the Idaho (or Montana) Yellowstone area, she would have to be tried in Idaho (or Montana) because of Article III § 2. However, the government would be unable to gather jurors for the case because the Idaho and Montana portions, the exclusive area from which the government can recruit jurors, are unpopulated. The result? Our criminal receives a free walk.
Don’t go on a crime spree just yet, though. There are other ways the federal government could hand you your just deserts. Some arguments are more persuasive than others, however. First, Congress could redraw the Wyoming district following public exposure of the loophole. It is questionable, though, whether this correction would allow prosecutors to pursue an offender who acted before the relevant changes were made because such a move would violate the constitution’s prohibition on retroactive punishment. [8] Indeed, two federal circuit courts have confirmed this observation. [9] Second, the federal government could argue that the Montana and Idaho park area is a federal enclave like the District of Columbia. This argument would make the Sixth Amendment restrictions on where the government can draw jurors inapplicable because the amendment’s reference to “states” would be beside the point. It is clear, though, that the Montana and Idaho park areas are still a part of Montana and Idaho respectively. Indeed, a federal statute explicitly states that some parts of “Yellowstone National Park [are] situated in Montana and Idaho.” [10] This argument falls flat as a result. Third, the government might be able to charge you with an offense with multiple elements. For instance, if one conspires with her friend in California before committing the crime in the park, she has committed part of the offense in a state where jurors can be drawn. [11] The government could also try someone with a petty crime that carries a maximum sentence of less than six months in prison – The Supreme Court has held that these crimes do not require a jury trial. [12] Finally, assuming the government did not give chase, the victim’s family could sue the criminal in tort for wrongful death. In short, there are several ways to botch the job but thanks in part to poor congressional drafting and historical accidents the possibility of a perfect crime is still on the table. Needless to say, this brief foray into criminal law is not a call to illicit action. [1] U.S. Const. Art. III § 2. [2] U.S. Const. Amend. VI. [3] 16 U.S.C. § 21. [4] http://factfinder.census.gov. [5] Supra note 3. [6] 16 U.S.C. § 24. [7] 28 U.S.C. § 131. [8] U.S. Const. Art. I § 10. [9] United States v. Louwsma, 970 F.2d 797 (11th Cir. 1992). Zicarelli v. Dietz, 633 F.2d 312 (3rd Cir. 1980). [10] 28 U.S.C. § 131 (2000). [11] 18 U.S.C. § 1951 (1948). [12] Callan v. Wilson, 127 U.S. 540 (1888). Photo Credit: Yellowstone National Park The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.  By Habib Olapade
Habib Olapade is a first-year law student at Yale University. One way to measure whether an individual is an equal community member is to ask whether that person is eligible to serve in the community’s highest office. The gratuitous burdens that non-white and female presidential candidates must endure regardless of their talent is a testament to our society’s continuing struggle with racism and sexism. [1] Our unconscious prejudice, however, is not a formal legal barrier to the presidency because “there is no superior, dominant, or ruling class” in this country. [2] Indeed, any thirty-five year old who has lived in the United States for fourteen years can technically run for the highest office in the land. [3] And it is a fundamental proposition of American life that every child can conceivably grow up to be our commander-in-chief. But, is this narrative flawless? Not exactly. Article II § 1 of the U.S. Constitution states that “no person except a natural-born citizen…shall be eligible to the Office of President.” [3] The Framers were not trying to fence out babies born through Caesarian sections. Instead, this provision targets infants who were born to non-citizen couples outside American territory. [4] The natural-born citizen requirement is an exclusive outlier in an otherwise inclusive document, because it assumes that some citizens are more authentic and trustworthy than others. Nearly twenty-six million U.S. residents, some of whom have invested their all in, and risked everything for, this nation, can never lead the country because they were born abroad to non-naturalized parents.  By Habib Olapade
Habib Olapade is a first-year law student at Yale University. Article II §1 of the Constitution requires the President-elect to take an oath that she or he will “preserve, protect and defend” the document before entering the Oval Office. [1] This precondition implicitly assumes that the oathkeeper has read the constitution (which is only about 4,500 words) or at the very least has attained a basic understanding of its content and structure. Based on comments he has made about libel laws throughout his campaign, and brief tenure in office, Donald J. Trump has done neither. On February 26, 2016, speaking at a rally in Fort Worth, Texas, Trump promised that if elected, he would “open up our libel laws so that when [the press] write[s] purposefully negative…articles, we can sue them and win lots of money.” [2] Mr. Trump, to his credit, has backed up this vow by threatening to sue the New York Times for publishing an article detailing two women’s allegations that he kissed and groped them without their permission. [3] Trump’s lawyers claim that the New York Times article is “reckless, defamatory, and libelous per se,” and was published with flagrant disregard for the truth. [4] If these allegations were true, Trump could collect compensatory (but not punitive) damages in a libel suit against the Times. [5]  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.  By Habib Olapade
Habib Olapade is a first-year law student at Yale University. Federal Rules of Civil Procedure often lag behind technological developments. This gap is particularly acute in the case of Rule 4, which, among other things, regulates how plaintiffs may serve domestic and international defendants with orders to appear before a federal court. [1] Under Rule 4, domestic parties may only be served in person, through an individual living in their housing unit, or through an agent. Foreign parties, on the other hand, may be served in any manner that complies with constitutional due process requirements and other requirements in Rule 4. Under the Fourteenth Amendment’s due process clause, notice must be “reasonably calculated, under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” [2] In practice, this fuzzy standard has been interpreted to include service of process via physical delivery, letters rogatory, repeatedly published notices in newspapers, telex, email, and Twitter posts. Private Facebook messages (not public wall posts) have been authorized by a few district courts, but only as a supplemental mode of delivery. [3]  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.  By Habib Olapade
Habib Olapade is a senior at Stanford University studying political science. Pokémon Go has added nearly $8 billion to Nintendo’s total market capitalization since its debut in early July 2016. Indeed within the short span of two months, the app has acquired more active daily users on Android than Twitter. Pokémon Go is an augmented reality application that runs on users’ smartphones. Once the user downloads the application, the game accesses her phone’s GPS and clock, superimposes computer-generated graphics and sound, and displays an anime-like version of Google Maps to make Pokémon characters appear on the phone’s screen. The game has been credited for marshalling legions of couch potatoes and Generation Y members out of doors. Augmented reality games such as Pokémon Go, however, come with a distinct set of legal difficulties that courts will have to grapple with. Users often have to trespass on private property to catch Pokémon. Placing Pokémon on private property can create attractive nuisances, exposing owners to absolute liability for injuries trespassers suffer on their property. Finally, the constant movement that is required to play the game makes it inaccessible to some physically and mentally disabled persons possibly exposing Nintendo and Niantic, the game’s owners, to liability under Title III of the Americans with Disabilities Act. |
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