Law and Society Review

CORNELL UNDERGRADUATE LAW AND SOCIETY REVIEW Volume IV Fall 2018 Issue I Articles Special Counsel Investigations 1 and the Balance Between Independence and Accountability By Matthew Chakov ‘20

The War on Terror 11 On the United States Government and the Extent of Its Power Over International Terrorism By Tiffany Chen ‘21

Reform Section 702 of the Foreign Information Surveillance Act 19 By Jonathan Harris ‘21

Is Affirmative Action Still Doing Its Job? 27 By David Schulman, NYU ‘20

Legal Issues in the NFL’s Concussion Crisis: 37 How CTE Awareness is Changing Football By Alexander Masotti ‘21

Non-Uniformity of Electronic Wills 45 By Steven Yeh ‘21

Balloting Benevolence: 51 How Voting Rights Ambiguity Compromises Equality By Hayden Stokley ‘21

CORNELL UNDERGRADUATE LAW AND SOCIETY REVIEW Executive Board, Fall 2018

Vincenzo Guido Editor-in-Chief Cal McKinney Associate Editor Natalie More Associate Editor Prof. Jill Frank Advisor

SPECIAL COUNSEL INVESTIGATIONS AND THE BALANCE BETWEEN INDEPENDENCE AND ACCOUNTABILITY

Matthew Chakov

AUTHOR’S NOTE

After this article was written, Attorney General Sessions resigned1 on November 7th, 2018 and was replaced by Matthew Whitaker, Sessions’ Chief of Staff, who has taken over as Acting Attorney General.2 As a result, Acting AG Whitaker has taken control of the Russia Investigation from Deputy Attorney General Rod Rosenstein, so Acting AG Whitaker is now Special Counsel Mueller’s supervisor.3 However, much like former Attorney General Sessions, Acting AG Whitaker might be advised to recuse himself from the investigation because of conﬂicts of interests and the appearance of bias which might taint public opinion of the investigation.4

INTRODUCTION

In the United States, nobody, not even the president, is above the law. So, when facts come to light that warrant the investigation of the president or high-ranking members of their administration, the United States has a system in place for an investigation that ensures that despite the stature and power of these members of the government’s upper echelon, the truth still ultimately comes out. When questions surrounding President Trump and his campaign’s possible coordination with Russia hit a boiling point in May of 2017, Robert J. Mueller was appointed as Special Counsel by the Acting Attorney General Rod J.

1While Attorney General Sessions technically submitted his resignation letter, the phrasing in the letter and the sources inside the administration indicate that the situation was more akin to being fired. This nuance matters in relation to who will temporarily serve as Acting AG until a new AG is Senate confirmed. See Steve Vladeck, Opinion — How Matthew Whitaker’s surprise promotion could help Trump shut down Mueller, NBCNews.com (2018), https://www.nbcnews.com/think/opinion/trump-wants-stop-mueller- jeff-sessions-resignation-matthew-whitaker-s-ncna934161 (last visited Nov 17, 2018). 2Id. 3Id. 4Brent D. Griffiths Quint Forgey, Whitaker consulting ’ethics officials’ on possible recusal from Mueller probe, POLITICO (2018), https://www.politico.com/story/2018/11/12/whitaker-recusal-mueller- investigation-985257 (last visited Nov 18, 2018).

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Rosenstein5 beginning the latest chapter of the United States’ independent investigations into the highest levels of government.6 Since Mueller’s appointment, three companies and thirty-two people have been issued more than 100 criminal counts.7 Mueller and the Russia Investigation are covered constantly in the news media, but the coverage is mostly focused on the Special Counsel’s latest indictments or speculation about the future of the investigation; there is a dearth of coverage about how the investigation really works. This article will cover the framework the Russia Investigation and Special Counsel Mueller operate, in the context of the balance between independence and accountability and discuss the potential problems with the status quo framework that could lead to the truth never seeing the light of day.

BACKGROUND ON INDEPENDENT INVESTIGATION

President Nixon’s abuse of ofﬁce and investigatory meddling during his presidency led Congress to pass the Ethics in Government Act of 1978 (EIGA); this law was the country’s ﬁrst major legislative foray into the area of independent investigations.8 Over the course of more than the next two decades and through multiple reauthorizations of the independent counsel9 part of the law, the EIGA was used to investigate malfeasance at the highest

5Attorney General Jeff Sessions recused himself from “any existing or future investigations of any matter relating in any way to the campaigns for president of the United States.” Therefore, any regulation discussed going forward that mentions the Attorney General will then apply to the Acting Attorney General, Rod Rosenstein, in the context of the Russia Investigation because of Sessions’ recusal. When discussing the regulation in the specific context of the Russia Investigation, Acting Attorney General will be used instead of AG, otherwise Attorney General will be used. See Aaron Blake, Transcript of Jeff Sessions’s recusal news conference, annotated, The Washington Post (2017), https://www.washingtonpost.com/ news/the-fix/wp/2017/03/02/transcript-of-jeff-sessionss-recusal-press-conference-annotated/?utm term= .7ff800d8145b(lastvisitedNov18,2018). 6Rebecca R. Ruiz Mark Landler, Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation, The New York Times (2017), https://www.nytimes.com/2017/05/17/us/politics/robert- mueller-special-counsel-russia-investigation.html (last visited Nov 18, 2018). 7Everyone Who’s Been Charged as a Result of the Mueller Investigation, The New York Times (2018), https://www.nytimes.com/interactive/2018/08/21/us/mueller-trump-charges.html (last visited Nov 18, 2018). 8Stephen Charles Mixter, The Ethics in Government Act of 1978: Problems with the At- torney Generals Discretion and Proposals for Reform, 1985 Duke Law Journal 497 (1985), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2912context=dlj. 9When the EIGA was first passed, the investigators were called “Special Prosecutors,” but Congress changed their name to “Independent Counsels” in 1983, then when the independent counsel statute was allowed to lapse and new DOJ regulations that are the focus of this article were promulgated, the investigators began to be called “Special Counsels.” December 2018 3 levels of government.10 The most famous investigations during this time period were the investigation relating to the Iron-Contra affair during the Reagan Administration and the Whitewater investigation that later morphed into the Lewinsky investigation during the Clinton Administration.11 While the independent counsel statute was still active during the late 70s through the late 90s, there were many debates about whether the law both brought the truth out into the light while making sure to balance the accountability of the independent counsel with their independence. In 1999, during congressional hearings entitled the “Future of the In- dependent Counsel Act,” many senators and expert witnesses discussed whether the EIGA should be renewed.12 Senator Fred Thompson, Chairman of the Governmental Affairs Committee, seemed to capture the zeitgeist of Congress when he opened the hearings.13 He said that Congress was striving for as much independence as constitutionally allowed when they created the EIGA, but he said “If somebody truly is independent, they probably are a danger.”14 Congress finally let the law permanently expire in 1999 which was on the heels of the Clinton impeachment and two decades of lengthy and expensive investigations into the executive.15 16 In July 1999, the Attorney General (AG) amended the Code of Federal Regulations to introduce new Department of Justice (DOJ) regulations that would replace the independent counsel statute.17 The new regulations put into place were supposed to strike a better balance between independence and accountability, and they are the regulations that Mueller is currently working inside of.18 The final rule that went into effect in July of 1999 contained Title 28 Part 600 of the Code of Federal Regulations, or 28 CFR Part 600, and inside of Part 600 were 600.1 - 600.10 which are all of the rules specific to a Special Counsel §§

10Special Prosecutors and Independent Counsels Records, National Archives and Records Administration, https://www.archives.gov/research/investigations/special-prosecutors-indept-counsels (last visited Nov 18, 2018). 11Id. 12United States. Congress. Senate. Committee on Governmental Affairs. Future of the Independent Counsel Act. United States: 1999. https://congressional.proquest.com/congressional/docview/t29.d30.hrg- 1999-sga-0006?accountid=10267. 13Id. at 7. 14Id. 15”Ethics in Government Act of 1978.” ProQuest Congressional. October 26, 1978.https://congressional. proquest.com/congressional/docview/t41.d42.95 pl 521?accountid=10267. 16Independent probes of Clinton Administration cost nearly $80 million, CNN (1999), http://edition.cnn.com/ALLPOLITICS/stories/1999/04/01/counsel.probe.costs/ (last visited Nov 17, 2018). 17Ofﬁce of Special Counsel, 64 Fed. Reg. 131 (July 9, 1999). Federal Register: The Daily Journal of the United States. https://www.gpo.gov/fdsys/pkg/FR-1999-07-09/pdf/99-17327.pdf 18Id. 4 CULSR setting up an investigation, running an investigation, and ﬁnishing an investigation.19 To understand what parts of the status quo framework could present problems going forward in regards to ending up with an incomplete investigation, the most salient parts of the 28 CFR Part 600 will now be delineated.

THE SPECIAL COUNSEL IS NOT THAT INDEPENDENT

Even before a Special Counsel is appointed, the AG should act in good faith according to various regulations and recuse themselves from an investigation that they are conflicted in. Take the Russia Investigation as an example. During the 2016 campaign, Attorney General Sessions was an advisor to Trump and he was the first sitting Senator to endorse him.20 According to 28 CFR 45.2 which governs recusal in the DOJ, it says (in brief) that an employee of the department cannot participate in a criminal investigation if they have a political relationship with a person substantially involved in the conduct being investigated or a person who has an interest that would be affected by the outcome of the investigation.21 A political relationship, as defined by 28 CFR 45.2(c)(1), “means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.”22 An unbiased reading of these federal regulations shows that Sessions had a political relationship with President Trump. Even if at the time of Sessions’ recusal Trump’s conduct was not necessarily the subject of the investigation, it would be hard to argue that President Trump did not have “a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution” in the words of 28 CFR 45.2(a)(2).23 Clearly, AG Sessions should have recused himself (and he eventually did). However, according to Helen Murillo at the Lawfare Institute, while Sessions was therefore legally mandated to recuse himself from the Russia Investigation inside of DOJ, there is “no practical legal enforcement mechanism.”24 Murillo goes on to say that because ethics regulations are enforced by internal disciplinary hearings, Sessions would be responsible for disciplining

19Id. 20Elizabeth Chuck Alexandra Jaffe, Trump taps Alabama Sen. Jeff Sessions for attorney general post, NBCNews.com (2016), https://www.nbcnews.com/politics/politics-news/trump-taps-alabama- sen-jeff-sessions-be-attorney-general-n685796 (last visited Nov 18, 2018). 2128 C.F.R. 45.2 1996. § 22Id. 23Id. 24Helen Klein Murillo, Does Sessions Have to Recuse Himself on Russia Investigations? Lawfare (2017), https://www.lawfareblog.com/does-sessions-have-recuse-himself-russia-investigations (last visited Nov 18, 2018). December 2018 5 himself, which would not happen.25 Ultimately, there were no mandatory safeguards or enforcement mechanisms in place to ensure that AG Sessions did the right thing, and while Sessions did eventually recuse himself, he did not have to.26 27 What if Attorney General Sessions committed crimes that he was afraid would come to light with a Special Counsel investigation? How would have that changed the dynamic if there was no legal mechanism to force him to recuse?28 This theme, that people who may be self-interested in the truth not coming to light having to make decisions about the investigation, keeps appearing when looking at the investigatory framework. This theme is extended when looking at 28 CFR 600.1 named “Grounds for appointing a Special Counsel.”29 It says that a Special Counsel should be appointed when an investigation undertaken inside of the standard DOJ channels would present a “conﬂict of interest for the Department or other extraordinary circumstances,” and therefore the appointment of the Special Counsel would be in the public interest.30 This makes sense because it is pertinent for American conﬁdence in its government that investigations are conducted in a way that best ensures an outcome the country can trust. The person that makes this de- termination is the Attorney General.31 Just like with the subject of recusal, the Attorney General has too much power in a process that is supposed to be independent from the standard DOJ channels. Because of this power they wield, they need to act in good faith, and they must be the type of person that wants the truth to eventually come out.

25Id. 26Attorney General Sessions Statement on Recusal, The United States Department of Justice (2017), https://www.justice.gov/opa/pr/attorney-general-sessions-statement-recusal (last visited Nov 18, 2018). 27Kathleen Clark, a legal ethics professor at Washington University in St. Louis, was quoted in Reuters agreeing with this analysis. In an article that talks about the new Act- ing AG, Matthew Whitaker, the article said “Clark said there was no clear enforcement action, like a lawsuit, that could force Whitaker to recuse himself if he declined to follow the rule.” See Jan Wolfe, Factbox: Can the new U.S. attorney general shut down the Mueller..., Reuters (2018), https://www.reuters.com/article/us-usa-trump-russia-mueller-factbox/factbox-can-the-new- u-s-attorney-general-shut-down-the-mueller-probe-idUSKCN1ND00S (last visited Nov 18, 2018). 28While this article focuses on opinions that say there is no penalty if the AG were asked to recuse and did not, The Washington Post reports that if ethics officials at DOJ recommend that an AG recuse and the AG refuses, if the ethics officials feel strongly enough they can then re- fer the AG to the “Justice Department’s Office of Professional Responsibility, and his license to practice law could be put at issue.” See Devlin Barrett, Matt Zapotosky Josh Dawsey, Act- ing attorney general Whitaker has no intention of recusing himself from Russia probe, associates say The Washington Post (2018),https://www.washingtonpost.com/world/national-security/ trumps-acting-attorney-general-matt-whitaker-has-no-intention-of-recusing-from-russia-probe-associates-say/ 2018/11/08/a5bc8d90-e370-11e8-ab2c-b31dcd53ca6b story.html?utm term= .5fa6a7d59fb3(lastvisitedNov18,2018). 2928 C.F.R. 600.1 1999. § 30Id. 31Id. 6 CULSR

It is not just appointing a Special Counsel that the Attorney General is responsible for, they also completely determine the jurisdiction that the Special Counsel must operate in.32 The Code of Federal Regulations makes it very clear in 28 CFR 600.4(a) that “The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated.”33 In the Russia Investigation, Acting AG Rosenstein delineated Mueller’s jurisdiction with the order that appointed him as Special Counsel on May 17, 2017.34 His order said that the Special Counsel could conduct an investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation; and any other matters within the scope of 28 C.F.R. 600.4(a).”35 On its face, this seems like a pretty wide jurisdiction for a Special Counsel to§ have. Acting AG Rosen- stein was specific initially in the order when he gave authority for Mueller to investigate Russian collusion as it has been termed in the American zeitgeist. The second part of the jurisdiction statement was very broad and allowed Mueller to investigate any other matters that he might find in the course of the larger investigation.36 However, Mueller once again is at the mercy of the Acting Attorney General in the case of the Russia Investigation because the Acting AG will still need to give him permission “depending on whether what Mueller discovered was closely related to the original investigation” according to Adam Sewer of The Atlantic.37 This is pretty clear when looking at 28 C.F.R. 600.4(b) that says that Mueller must consult with the AG (or in this case the Acting AG) if Mueller “con- cludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation.”38 The most important aspect of the investigatory framework where the Special Counsel is at the mercy of the Attorney General is in the case of 28 C.F.R. 600.7 which is called “Conduct and accountability.”39 28 C.F.R. 600.7(b) says that “The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.” However

3228 C.F.R. 600.4 1999. § 33Id. 34Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presiden- tial Election and Related Matters, Department of Justice (2017), https://www.justice.gov/opa/press- release/file/967231/download (last visited Nov 18, 2018). 35Id. 36Id. 37Adam Serwer, Mueller Can Pursue Whatever Crimes He Uncovers, The Atlantic (2017), https://www.theatlantic.com/politics/archive/2017/07/mueller-can-follow-the-rabbit-hole-wherever-it- goes/534525/ (last visited Nov 18, 2018). 3828 C.F.R. 600.4 1999. § 3928 C.F.R. 600.7 1999. § December 2018 7 immediately after it says that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”40 This supervision of the Acting AG in the Russia Investigation greatly constrains Mueller’s authority because the Acting AG has “discretion to assert control if he finds the applicable standard satisfied.”41 For an investigation that is supposed to be fairly independent and alleviate any concerns about conflict of interest and executive interference, that is certainly a lot of discretion from the very top of the Department of Justice. The Government even concedes the Acting AG has significant authority over the Special Counsel. In a Brief for the Government in Andrew Miller v. United States, the Government says various parts of 28 C.F.R. Part 600 provides the Acting AG with “substantial means to direct and supervise the Special Counsel’s decisions.”42 Even beyond being able to essentially shut down proposed courses of actions of Mueller, the Acting AG even has the power to fire and discipline the Special Counsel unilaterally.43 The relevant part of the regulations is found at 28 CFR 600.7(d) which says that “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, in- capacity, conflict of interest, or for other good cause, including violation of Departmental policies.”44 On first glance, this may seem like the Attorney General is drastically restrained in when it comes to firing the Special Counsel, however, a recent court decision says the contrary. In United States v. Concord Mgmt. & Consulting LLC, United States District Judge Dabney L. Friedrich said:

These grounds for removal may impose only a minimal restriction (emphasis added) on the Acting Attorney General because ”misconduct,” ”dereliction of duty,” and especially ”other good cause” are susceptible to broad readings. They might permit removal, for example, if the Special Counsel refused to follow an order from the Acting Attorney General, even if the order involved decisions that would otherwise be within the scope of the Special Counsel’s discretion.45

So the Acting AG can countermand the Special Counsel’s actions if the Acting AG ﬁrst gives “great weight to the views of the Special Counsel” then determines that the Special

40Id. 41The applicable standard discussed is if the Acting AG feels like they gave “great weight to the views of the Special Counsel,” See https://www.justsecurity.org/wp-content/uploads/2018/10/Miller. SCBrief.CTADC .pdf (16-17) 42Id. 4328 C.F.R. 600.7 1999. § 44Id. 45United States v. Concord Mgmt. Consulting LLC, 317 F. Supp. 3d 598 (D.D.C. 2018). 8 CULSR

Counsel’s actions are ”so inappropriate or unwarranted under established Departmental practices.” However, the Acting AG can also ﬁre the Special Counsel if the Acting AG disagrees with an order that would “would otherwise be within the scope of the Special Counsel’s discretion.”46

SPECIAL COUNSEL REGULATION “BRIGHT SPOTS”

Despite the extraordinary accountability the Special Counsel has to the Attorney General which constrains the Special Counsel’s independence dramatically, there are some bright spots in the regulations that govern Special Counsel investigations that are worth taking a look at. Sprawled throughout 28 CFR Part 600 are numerous sections and subparts that increase transparency by mandating that reports are exchanged between the Special Counsel, the Attorney General, Congress, and the public. In 28 CFR 600.8 or the “Notification and reports by the Special Counsel” section, the regulations mandate transparency between the Special Counsel and the Attorney Gen- eral.47 According to the section, the Special Counsel must send reports to the AG about their yearly budget, reports when “significant” events occur in the course of their investigation, and a confidential report at the end of the investigation “explaining the prosecution or declination decisions reached by the Special Counsel.”48 An even more important part of the regulations as it relates to transparency and the truth coming to light is with 28 CFR 600.9 that mandates the AG notify the “Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action: (1) Upon appointing a Special Counsel; (2) Upon removing any Special Counsel; and (3) Upon conclusion of the Special Counsels investigation.”49 However, the most critical subpart of section 600.9 is subpart c which says the AG can determine whether the “public release of these§ reports would be in the public interest.”50 Overall, the reports the regulations mandate are beneficial because it lets Congress know about the Special Counsel investigation. But, the most important part of 600.9 is the section that talks about the Attorney General and their discretion when it comes§ to releasing reports to the public concerning the Special Counsel investigation. The regulation should give the Attorney General less wiggle room when it comes to releasing reports so that the American people have more information about the conduct of those at the highest levels of government.

46Id. at 611. 4728 C.F.R. 600.8 1999. § 48Id. 4928 C.F.R. 600.9 1999. § 50Id. December 2018 9

CONCLUSION

When the Special Counsel regulations were first promulgated in 1999, the order putting the regulations into place included a background section which said, “These regulations seek to strike a balance between independence and accountability in certain sensitive investigations, recognizing that there is no perfect solution to the problem.”51 The sentiment that “there is no perfect solution to the problem” is certainly correct, and the regulations do not say that the Special Counsel should be completely independent from the Justice Department, nor does this article take that position.52 However, the United States should strive for an investigatory framework that does better than the status quo because currently there is too little independence and too much accountability. Of course, there are risks to giving a Special Counsel too much independence and therefore less accountability; they can run amok investigating with zeal and without the necessary safeguards in place to prevent this kind of investigatory abuse.53 However, in a world without a perfect solution, where the United States has to choose between too much independence and too little accountability, or a world with too little independence and too much accountability, the United States should choose the former. Americans have the right to know what goes on in their government, so even if that means less privacy and more scrutiny of government officials, that is a necessary evil and ultimately the price these government officials pay for going into public service. Maybe additional scrutiny will even serve as a kind of sorting effect to better insure that the government officials at the upper echelon especially have less skeletons in their closet than they otherwise would have. An investigatory framework that gives the Special Counsel more independence is well worth the cost and helps to ensure that the truth about American government officials comes out in the end.

51Ofﬁce of Special Counsel, 64 Fed. Reg. 131 (July 9, 1999). Federal Register: The Daily Journal of the United States. https://www.gpo.gov/fdsys/pkg/FR-1999-07-09/pdf/99-17327.pdf 52In the order promulgating the Special Counsel regulations, the “Background” section says the regulations exist to help, when the public interest would be served, to remove “a large degree of responsibility for the matter from the Department of Justice.” See supra note 51. 53This hypothetical framework is not so hypothetical in the opinion of many political and legal scholars, the EIGA was seen as the realization of a framework with dramatic independence and a lack of accountability, as discussed at the start of this article.

THE WAR ON TERROR: ON THE UNITED STATES GOVERNMENT AND THE EXTENT OF ITS POWER OVER INTERNATIONAL TERRORISM

Tiffany Chen

INTRODUCTION

The events of September 11, 2001 presented to the United States government an unprecedented justification for the institutionalization of powers against foreign enemies. The Bush administration launched its War on Terror with a particular focus on countries associated with al-Qaeda. However, the War on Terror was largely misdirected, and ultimately led to actions taken against a group of people, the majority of who had no direct or largely influential role on the events that forever altered the way the United States handled international enemies. At the very root of the War on Terror lies the idea of human rights and what constitutes proper conduct during a time in which a country’s survival depends on the actions it takes against suspected terrorists. The issue here concerns the degree to which the government can punish or pressure these prisoners, under the justification that doing so now may decrease the chance of a large-scale terrorist attack that parallels that of September 11. In modern times, international law has been defined as the “rules and principles of general application” that deal with the conduct of nations and international organizations, and their relations with each other.1 This reworked definition reflections the integration of humanitarian law and human rights that previously governed the relationship between nations. World War II presented a precedent for development in humanitarian law; among the most significant of developments was the principle that a violation of certain humanitarian and international laws could result in individual criminal responsibility. As stated at the International Military Tribunal at Nuremburg, ”[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”2 Individuals who

1Restat 3d of the Foreign Relations Law of the U.S., 101 (3rd 1987) § 2“Principles of International Law of the Charter and Judgment of the Nuremberg Tribunal, Formulated by the International Law Commission, Second Session.” International Organization, vol. 4, no. 4, 1950, pp. 714–721. JSTOR, JSTOR, www.jstor.org/stable/2704024. 12 December 2018 committed violations against humanitarian law could now be sole person held responsible for their conduct. The same could be applied to nations at large. The United States has faced issues with its conduct during the times of the War on Terror, especially regarding terrorist suspects or other individuals detained in the crossfires of conflicts in Afghanistan and Iraq. The human rights argument thus comes in conflict with the critical need for the United States to force information from its detainees in order to avoid greater destruction in the future.

HABEAS CORPUS AND INCREASING JURISDICTION

Ex parte Quirin3 was a 1942 Supreme Court case during World War II that upheld the jurisdiction of a United States military tribunal over the trial of eight German spies in the United States. This case decided that military commission was lawfully constituted and that the eight Germans were being lawfully detained.4 Their petitions for writs of habeas corpus were also denied on the grounds that enemies who invade a country, clandestinely or not, have no privilege to question their detention by habeas corpus.5 If these prisoners of war are denied the writ of habeas corpus, it is inescapable that petitioners are not entitled to it. Whatever privilege may be accorded to such enemies is accorded by sufferance, and may be taken away by the President. Alien enemies – even those lawfully resident within the country – have no privilege of habeas corpus to inquire into the cause of their detention as dangerous persons. The Court rules that the German saboteurs had no right to be given access to civilian courts because they were

“plainly within the ultimate boundaries of the jurisdiction of military tribunals. . . charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform – an offense against the law of war. . . which the Constitution authorizes to be tried by military commission.” 6

This set the precedent for future cases of trial by military commission of any illegal combatant against the United States. In response to the events of September 11, 2001, President Bush declared his War on Terror, using Ex Part Quirin as the legal basis for his order. The Authorization for Use of Military Force Against Terrorists7 gave the President the authority to use all “use all necessary and appropriate force” against all individuals, countries, or terrorist organizations

3Ex parte Quirin, 317 U.S. 1 4Id. 5Id. 6Id. 7107 P.L. 40, 115 Stat. 224 December 2018 13 that he believes played a role – either directly or indirectly – in the terrorist attacks that occurred on September 11, 2001, in order to prevent any future actions of terrorism against the United States by said individuals, countries, or terrorist organizations.8 Similarly, the detention, treatment, and trial of certain non-citizens in the War against Terrorism sought to detain and try enemies by military commissions solely under presidential power.9 The broad language of both military orders grants the President powers of an unprecedented nature. As a result, the United States government faces no barriers or restrictions as to who can be legally detained under the umbrella of the War on Terror.10 However, because of this broad language, different interpretations of Quirin and the military autho- rizations call into question the validity of Quirin as a basis for the use of military tribunals in the War on Terror. Under Quirin, the Supreme Court holds that even enemy combatants unlawfully detained within the United States are still granted access to representation and review of the legality of their detention.11 Thus, these rights should not be denied for any United States citizen and other individuals who are lawfully in the United States. In the Supreme Court case of Hamdi v. Rumsfeld,12 a petition for writ of habeas corpus was brought on behalf of Yaser Esam Hamdi, a United States citizen who was being in- deﬁnitely imprisoned at Guantanamo Bay. The Supreme Court rules against the power of the government, deciding that any American citizen held at Guantanamo had the constitutional right to petition federal courts for habeas review under the Due Process Clause of the 14th Amendment.13 “The Constitution of the United States. Although the Court upheld the power of the government to detain enemies, including citizens of the United States, it also decided that prisoners who are citizens have a right to fair treatment under the traditional judicial system, and the ability to challenge their detainment in front of an unbiased authority.14 This case challenges the idea of a military tribunal, which operates outside the conventional criminal justice system. With a military tribunal, the government is granted a degree of autonomy and independent judgment in deciding how to handle those who fall outside the United States justice system. Outside of this system, there are fewer repercussions for the unlawful treatment and detainment of enemy combatants. The Hamdi case emphasizes that any individual who is a United States citizen has the legal right to be brought under normal criminal and civil proceedings.15 This decreases the power that the government holds in punishing enemies of the country, as stricter and more speciﬁc laws dictate proper

8Id. 9Id. 10Id. 11Ex parte Quirin, 317 U.S. 1 12Hamdi v. Rumsfeld, 542 U.S. 507 13U.S. Constitution. Amendment XIV, cl. Due Process Clause 14Id. 15Hamdi v. Rumsfeld, 542 U.S. 507 14 December 2018 conduct and the consequences if conduct is deemed unlawful. Furthermore, the Hamdi case presents another threat to the power of the United States government in regards to its conduct on Guantanamo Bay. Military authorities that faced the choice of either submit- ting to the traditional criminal justice system of the United States or releasing a suspected international enemy simply keep detainees abroad.16 Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen.17 Traditionally, because Guantanamo Bay falls outside the confines of what is physically considered the United States – within the borders of the nation – whatever happens at the detention camp is not subject to the same laws as those in the states.18 However, given that jurisdiction is mainly a matter of geography and sovereignty, the ability for a United States citizen detained at Guantanamo Bay to receive fair treatment under conventional law, as decided in Hamdi, implies that the Supreme Court has established some jurisdiction in the Guantanamo area.19 Because the government has stated that it would not challenge habeas corpus by an American citizen held in Guantanamo, it is possible that jurisdiction could be established at the base.20 In this case, the power of the government as justified under the War on Terror decreases, as unlawful treatment of detainees could be more severely punished. The right for a Guantanamo detainee to file a petition for writ of habeas corpus is not, however, only limited to a United States citizen. Foreign detainees held at the detention camp petitioned in federal court for a writ of habeas corpus to review the legality of their imprisonment in Rasul v. Bush.21 The Supreme Court decided against the executive powers of the United States government and held that prisoners at Guantanamo Bay have a statutory right to petition federal courts for habeas corpus review.22 This case held that detainees at Guantanamo Bay have a statutory right to petition federal courts for habeas review.23 This jurisdiction also extends to aliens held in a territory over which the United States exercises exclusive jurisdiction, but not “ultimate sovereignty”.24 As confirmed in 28 U.S.C. Section 2241,

“the writ of habeas corpus shall not extend to a prisoner unless – . . . (4) He, being a citizen of a foreign state. . . is in custody for an act done or omitted

16Id. 17Id. 18Id. 19Id. 20Id. 21Rasul v. Bush, 542 U.S. 466 22Id. 23Id. 24Id. December 2018 15

under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission. . . of any foreign state. . . ”.25

This law now not only applies to American citizens, but to any individual detained by the United States. The jurisdiction applies to any geographical area in which the United States has exclusive jurisdiction, Guantanamo Bay included. This strengthens the Hamdi v. Rumsfeld decision in which it could be implied that the Supreme Court holds some sort of jurisdiction over the detention camp. Extending the law to any detainee presents a challenge to the government’s intentions of seeking retribution in the War on Terror. There is a limit to the degree of severity with which the government can force or pressure information out of a prisoner.26 Even if this conduct is justiﬁed as a form of protection against future large-scale terrorist attacks, Supreme Court jurisdiction can detain the administration from overexerting its power.27 Finally, along with Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, Boumediene v. Bush28 found that the right of habeas corpus review granted by the Con- stitution applies to any person held at Guantanamo Bay and to anyone deemed an enemy combatant on that territory. If Congress ever intends to suspend this right of habeas review, the Supreme Court holds that an adequate substitute must offer any detainee the opportunity to demonstrate that his detainment is unlawful.29 The landmark Boumediene case challenged the power of the United States government on international territory.30 Guantanamo Bay is not formally part of the United States, and under the agreement made between Cuba and the United States, Cuba maintains ultimate sovereignty over the Guantanamo territory, while the United States exercises exclusive jurisdiction.31 Given this jurisdiction, the government should have unrivaled power in the detainment of terrorist suspects. However, the Boumediene Supreme Court case restrained this power by denying the constitutionality and legality of the treatment of prisoners. As explained before, the different court cases surrounding detainee jurisprudence all increase the strength of Supreme Court jurisdiction over Guantanamo Bay, allowing prisoners greater control over their involvement in the criminal justice system.

2528 USCS 2241 § 26Hamdi v. Rumsfeld, 542 U.S. 507 27Id. 28Boumediene v. Bush, 553 U.S. 723 29Id. 30Id. 31Id. 16 December 2018

INTERNATIONAL LAW

The Military Commission Act of 2006 granted the President the power to designate certain people with the status of “unlawful enemy combatants” and thus subjecting them to military commissions, where they have fewer rights outside of the conventional justice system.32 Many individuals have submitted reports alleging that the United States, in denying prisoners access to the evidence used against them and subjecting them to trial by military tribunal, violates international law. The Geneva Convention extensively establishes the standards of international law for humanitarian treatment in war and of wartime prisoners. The First Geneva Convention33 covers the amelioration of the wounded and sick in armed forces in the field; the Second Convention34 covers the wounded, sick, and shipwrecked members of armed forces at sea; the Third Convention35 relates to the treatment of prisoners of war; and finally, the Fourth Geneva Convention36 relates to the protection of civilian persons in time of war. Although warfare has changed dramatically since the 1949 Geneva Conventions, they are still considered the foundation of international humanitarian law. This given, international law is just that: it should apply to any individual. Thus, even prisoners of war, including the detainees at Guantanamo Bay, should be given status under international law. This means that the enemy is either considered a prisoner of war under the Third Geneva Convention, a civilian under the Fourth Geneva Convention, or a member of the armed forces as covered by the First and Second Conventions. The specificity of the Geneva Conventions suggests two things. The Conventions im- ply that any individual during a time of war falls under one of the four categories mentioned in the four treaties. On the other hand, because the laws are so specific, it can be argued that those who the government deems as not qualifying for any of the four categories thus fall outside the confines of international law, and can be treated as such. This has the potential to create an international loophole for the United States government to deal with enemy combatants outside of the law.

32MILITARY COMMISSIONS ACT OF 2006, 109 P.L. 366, 120 Stat. 2600 33ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Con- dition of the Wounded and Sick in Armed Forces in the Field, 2nd edition, 2016. 34ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 2nd edition, 2017. 35ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 1960. 36ICRC, Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1958. December 2018 17

IMPLICATIONS FOR THE FUTURE

All of the court cases mentioned above have provided a comprehensive framework to understanding the circumstances under which one could be granted the rights to petition against the lawfulness of his detainment. The War on Terror began with the specific purpose of targeting those responsible for the September 11, 2001 attacks. However, the government soon began to unleash its unprecedented power over terrorist suspects and prisoners. Early into the war, military orders gave the president the exclusive power to use all tools at his disposal to bring the responsible criminals to justice.37 In the grand scheme of things, this power did allow the government to try and detain many who were influential in the horrific events of September 11. But it can also be argued that the broad scope of the military orders provided the United States with a justification to unleash its power on any and all people it saw as a threat to the country. It was no longer just about preventing another large-scale terrorist attack; it also became a way for the administration to unleash its power on a group of people demonized as the monsters after September 11. The increasing jurisdiction of the Supreme Court over Guantanamo Bay territory presents immense implications for future cases and foreign policy. The government can no longer unleash unprecedented power over enemy combatants as Supreme Court law tackles these injustices and mistreatments to the core. There is no saying what the future of the detainees at Guantanamo looks like. Whether or not the prisoners will be released is a different issue. However, it can be assumed that detainees will fall more and more under the protection of the law. While in the past, there was no legal restriction as to how prisoners were treated, physically and in terms of legal rights, court cases being brought forward by Guantanamo detainees have the potential of slowly bringing all prisoners into the light of the conventional United States justice system – a system in which all individuals can be protected under the same laws that govern everyday people. These court cases bring to the service more criticisms of the government’s justification of an exclusionary policy of sweeping proportion, as well as emphasize the dangerous stereotypes brought to the surface by a policy initially created to tackle a very specific group of individuals.

37Ex parte Quirin, 317 U.S. 1

REFORM SECTION 702 OF THE FOREIGN INFORMATION SURVEILLANCE ACT

Jonathan Harris

In the early 20th century, the Department of State formed the United States’ first peace- time cryptography department. For its short life span, the department collaborated with telegraph companies to sift through the cable information and data sent and received by foreign leaders and embassies. When Henry Stimson ascended to the Secretary of State position soon after, he swiftly terminated the cryptography program proclaiming, “Gen- tlemen do not read each other’s mail.”1 Since then, the advent of new technologies, wars and terrorism, and shifting politics among many other factors have influenced a distinct divergence from Stimson’s way of thinking. Section 702 of the Foreign Information Services Act (FISA) authorizes the Intelligence Community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes.2 Section 702 was included in the original FISA legislation which was amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act) and extended by acts of Congress in 2008 and 2017. FISA, and Section 702 more specifically, have allowed for successful efforts to interfere with terrorist activity in the United States, including stopping the 2009 conspiracy to bomb parts of the New York City subway system and providing information leading to the killing of top ISIS leader Haji Iman.3 However, the interpretations and applications of Section 702 by the intelligence community are a violation of American’s rights to be protected “against unreasonable searches and seizures” and Americans’ right to be confronted with a warrant in such case of a search as guaranteed by the 4th amendment of the Constitution.4 The government’s interpretations and applications of 702 contradict the intention and language of the statute which culminates in two specific unconstitutional actions. These are the backdoor search loophole and “about” searches. The backdoor search loophole is a method for intelligence agencies to search and surveil American citizens’ communications

1McCoy, Alfred W. In the Shadows of the American Century: The Rise and Decline of US Global Power. Chicago: Haymarket Books, 2017. 2https://intelligence.house.gov/ﬁsa-702/ 3Id. 4U.S. Const. amend. IV 20 December 2018 and data without the requisite warrant. They can do so without a warrant because of the Section 702 statutorily protected manner in which it was gathered.5 The NSA and other intelligence agencies are also infamous for their “about” searches which bear resemblance to the aforementioned loophole. In these searches, the NSA will gather similar communications and information “about” a target, rather than to or from the target. This again culminates in sweeping up communications from non-targets who are often Americans residing in the U.S. The fundamental conﬂicts between FISA and the Fourth Amendment began with the development of Fourth Amendment jurisprudence. The number of cases based in Fourth Amendment protections which preceded the inception and passage of FISA laid the foundation for the framework I will use to prove Section 702’s unconstitutionality. In its 1928 decision, Olmstead v. United States, the Supreme Court instituted a common law and “physical trespass” doctrinal understanding of the Fourth Amendment. The Court sided with the government in its contention that the items enumerated in the amendment –persons, houses, papers, and effects– had not been searched nor seized.6 The Court asserts here that since there had been no physical search of the tangible properties included in the Fourth Amendment, there had been and can be no violation. In 1967 the Court changed its interpretation of Fourth Amendment cases in deciding Katz v. United States. Instead of accepting the “physical trespass” test and doctrine, it held famously that the 4th amendment “protects people, not places” overturning the precedent set in Olmstead.7 Katz had taken a phone call in a closed telephone booth which the government had wiretapped to catch him in the act of gambling across state lines. The Court held that Katz had the reasonable expectation of privacy when he closed the door to the phone booth. The Katz decision is crucial to the expansion of Fourth amendment rights into the digital surveillance age as the Court acknowledged that it not only protects the property rights of citizens, but also their reasonable expectation of privacy.8 The precedent set in Katz supersedes that which was established in Olmstead, and a number of recent cases should, and do, go even further to the protect the rights of American citizens against unreasonable government search and seizure. The Katz decision, establishing that the Fourth Amendment protected “people, not places” as well as the creation of a “reasonable expectation of privacy” are crucial to re- forming or even destruction of the rights-infringing aspects of Section 702. In Carpenter, the Supreme Court held that the government’s acquisition from wireless carriers of the defendant’s historical cell-site location information (CLSI) was in fact an invasion of the

5https://www.eff.org/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying 6Olmstead v. United States, 277 U.S. 438 (1928) 7Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967) 8Id. December 2018 21 reasonable expectation of privacy.9 In United States v. Rigmaiden, the Court’s opinion details that for Fourth Amendment claims to proceed the individual who is subject to a search must have a reasonable expectation of privacy, which is established by two components.10 The defendant must prove an actual, subjective expectation of privacy and whether that expectation is “one that society is ready to recognize as reasonable.”11 It was further established in United States v. Tuggle, using the Katz framework, that the reasonable expectation of privacy is “one that society is prepared to recognize as reasonable” when an individual “seeks to preserve something as private.” Furthermore, Tuggle establishes that “What a person exposes to the public is not private, even in his home or office, but what he seeks to preserve as private, even in a public area, may be constitutionally protected.”12 This reasonable expectation of privacy standard, its components, and precedents through aforementioned case law must be applied to Section 702 in order to align the law to the governing principles of the 4th Amendment. The backdoor loophole in addition to “about” searches and other warrantless communication collection and surveillance efforts are violations of the Fourth Amendment by way of invasion of citizens’ reasonable expectation of privacy. Looking at Section 702 through the framework established in Katz, Carpenter, Rigmaiden, and Tuggle, the personal communications of American citizens residing in the U.S. which the government seeks to surveil, are inherently private. Following Tuggle, and the precedent that “what he seeks to preserve as private, even in a public area, may be constitutionally protected” regardless of whether an individual’s electronic communication takes place in public or in private, it is protected by the Fourth Amendment. Unless there is considerable evidence to show that an individual desired the communications to be public, they take place between two or more persons and with an expectation of privacy. The two-component test of reasonable expectation of privacy decided in Rigmaiden is also satisfied. The Supreme Court’s decision in the 2014 Riley v. California case is further evidence supporting the unconstitutionality of Section 702 applications. The defendants alleged that their phones were taken, and the electronic contents searched to charge them with more crimes. The Court held unanimously that the electronic contents of the phones could not be searched without a warrant. The Court cited privacy concerns and lack of evidence that the digital data could be used by the defendants to harm the officers or effectuate their escape.13 This reasoning comports with previous Fourth Amendment case law precedent

9Carpenter v. United States, 138 S. Ct. 2206, (2018) 10Smith v. Maryland, 442 U.S. 735, 740—41, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004) 11Smith, 442 U.S. at 740-41. 12Unites States v. Tuggle, 2018 13Riley v. California, 134 S. Ct. 2473. 22 December 2018 as it defines the digital data compiled on a cellphone as a valid privacy concern as the data is “a digital record of nearly every aspect of their lives.” The Court further argues that there is a substantial privacy interest when digital data is involved.14 The intelligence community’s drastic increases in digital surveillance and collection since FISA’s implementation is inherently contradictory to the recently reaffirmed Fourth Amendment protections enumerated in Carpenter, Tuggle, and Riley. We should not simply accept “national security interests” as the ultimate justification for the mining, surveillance, and sifting through of our digital data. If the police require a warrant to look through your cellphone, then so should the NSA. Section 702 itself is written to explicitly exclude American citizens residing in America from such data surveillance. The true intention of 702, as a tool to target the communications of non-Americans located outside the U.S. for foreign intelligence purposes, is an important one. However, if this is the true purpose of the law, the facets of Section 702 and its application which are blatantly unconstitutional must be reformed or blocked by the courts. The intelligence community’s justification of nefarious and illegal actions with 702 dilutes the positive change that the statute has affected. The Foreign Intelligence Surveillance Court (FISC) was established by Congress in 1978. The Court entertains applications made by the United States Government for approval of electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes.15 The FISC should provide protection for Amer- ican citizens against 4th Amendment violations, but it has failed. This Court has abdicated its responsibility to be a check on these Executive Branch requests and is too ready to ‘rubber stamp’ the government’s surveillance requests. The Court did not deny a single government request until 2003 when it rejected four out of the 1,727 presented. Since its genesis in 1978, the Court has rejected a mere 84 applications. To put that number in context, the lowest number of applications in a single year was in 1979 at a total of 199. Since 2002 there have been no fewer than 1,200 applications presented to the Court.16 In addition to FISA applications pertaining to foreign intelligence, FISC is also tasked with reviewing National Security Letter (NSL) applications presented by the government. These applications authorize the FBI to disclose customer records held by banks, telephone companies, Internet Service providers, and others. The Department of Justice Office of the Inspector General found that in applying their NSL authority, the FBI had consistently and significantly violated the law and regulations.17 While law-making bodies and agencies in addition to the judicial arms that are supposed to check them fail to perform their duties, we must take action to protect our rights.

14Id. 15http://www.ﬁsc.uscourts.gov 16https://epic.org/privacy/surveillance/ﬁsa/stats/ 17Id. December 2018 23

Since the issuing of the Katz decision and others like it, the government and intelligence agencies alike have consistently pushed the boundaries of search and seizure constitutionality. This concerted effort is reﬂected in surveillance actions such as abuse of the backdoor loophole and wide utilization “about” searches, but also through quite liberal invocation of the State Secrets Privilege. The State Secrets Doctrine allows for the government to block the release of any information in a lawsuit which it determines to be harm to national security should it be disclosed. Its invocation and the rules surrounding it were decided upon and enumerated in United States v. Reynolds.18 Further magnifying the problem, the broad application of the State Secrets Doctrine by the U.S. Government has made it nearly impossible for plaintiffs to expose or litigate the abuses of government surveillance. In the ACLU v. NSA decision issued by the U.S. Court of Appeals for the 6th Circuit, the plaintiffs, a collection of associations and individuals, argued for an injunction to be placed on all warrantless wiretapping. They ﬁled six separate complaints and made arguments on grounds of the First and Fourth amendments, Separation of Powers Doctrine, Administrative Procedures Act (APA), Ti- tle III Omnibus Crime Control and Safe Streets Act, Foreign Intelligence Surveillance Act (FISA). The District Court granted a permanent injunction prohibiting the warrantless wiretapping under George W. Bush’s Terrorist Surveillance Program (TSP) and declared “IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III[.].”19 The ACLU, on behalf of the plaintiffs, alleged that due to the nature of their occupations and frequency of their communications with people outside of the U.S., the NSA must have been illegally eaves- dropping into their communications. The District Court established the 4th amendment as an absolute rule in its opinion and announced that “searches conducted without prior approval by a judge or magistrate were per se unreasonable.”20 However, the government invoked the State Secrets Doctrine and subsequently argued that the plaintiffs could not establish legal standing. In this case, the State Secrets Doctrine halts all potential evidence and proof from being admitted or shared in discovery because the government determines it to be privileged in the interest of national security.21 Upon appeal, the U.S. Court of Appeals for the 6th Circuit vacated the district court’s order on the precedent of no “doctrine of hypothetical judgement” established in Steel Co. v. Citizens for a Better Environment.22 Because the government had invoked the State Secrets Doctrine, the plaintiffs were unable to provide evidence of wrongdoing and the

18https://www.aclu.org/other/background-state-secrets-privilege 19CLU v. NSA, 493 F.3d 644, (2007) 20ACLU v. NSA, 493 F.3d 644, (2007) 21Tenenbaum v. Simonini, 372 F.3d 776, 777, 96 Fed. Appx. 998 (6th Cir. 2004) 22Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) 24 December 2018 court could not issue a judgement based on a set of hypothetical facts or evidence. While the ACLU suffered a crushing loss, the appeals court did establish, however, that proof of the alleged invasion of privacy would be all that is necessary to establish standing and continue with the litigation under the Fourth Amendment. While the argument against Section 702 thus far has been based primarily in its unconstitutionality and hypothetical dismemberment through litigation, there were bills introduced in the Senate and the House of Representatives which sought to reform Section 702. H.R. 4124 and S. 1997, otherwise known as the USA Rights Act, would introduce common sense reforms to Section 702 like abolishing the backdoor search loophole which accounts for most warrantless spying and rights infringements.23 As a nation committed to civil liberties, democracy, and one founded on the idea of inalienable rights, we set a dangerous precedent should we allow the government to infringe upon our Fourth Amendment rights through Section 702. If the government, or any arm of it, can suspend our constitutionally assured rights so easily here, what would stop them from doing so with other freedoms and liberties? There is surely evidence to prove so. Woodrow Wilson, following John Adams’ precedent, limited and criminalized political speech with his Sedition Act of 1918, Franklin Delano Roosevelt interned American citizens during World War II, and Abraham Lincoln famously suspended habeus corpus in border states during the Civil War. Perhaps the most dangerous aspect of these egregious violations is their root in the War on Terror. Adams, Lincoln, FDR, Wilson and others jus- tiﬁed their violations of the constitution through arguments of war time necessities much like the arguments in support of FISA, Section 702, and other surveillance policies. Where Section 702 and past constitutional violations diverge, however, is in their life span. The War of 1812, the Civil War, and both World Wars all ended and took with them their unconstitutional policies. In sharp contrast, the War on Terror seems to have been constructed whereas there is no end in sight to the ﬂaming rhetoric, military expansion, torture programs, extraterritorial prison systems, or surveillance programs. This inherently makes the War on Terror likely to lead to and catalyze more rights transgressions and unconstitutional activity beyond even Section 702 and “enhanced interrogation.” Simply put, we can, and must, actively work against the provisions and applications of FISA that infringe upon our Fourth Amendment rights. Whether it is through statutory readjustment or lawsuits, this issue is pervasive and prevalent. As former Secretary of State Henry Stimson would advise us: “Gentlemen do not read each other’s mail.”24 Although the legal question at the center of this issue has not been addressed, draw- ing from previous case law and statute: surveillance, collection, or monitoring of U.S.-

23https://www.congress.gov/bill/115th-congress/senate-bill/1997q=%7B%22search%22%3A%5B%22 USA+Rights+Act%22%5D%7Dr=2 24McCoy, Alfred W. In the Shadows of the American Century: The Rise and Decline of US Global Power. Chicago: Haymarket Books, 2017. December 2018 25 residing, American citizens under Section 702 of FISA is unconstitutional. Not only does it contradict what lawmakers themselves assert the purpose the law serves, but such actions are speciﬁcally prohibited by the law. The long history of Fourth Amendment case law supports the argued unconstitutionality of Section 702’s application. Evolving from the Katz decision, the 2018 Carpenter decision has created the case law precedent necessary to litigate Section 702. The most effective route would be through the doctrine of reasonable expectation of privacy.

IS AFFIRMATIVE ACTION STILL DOING ITS JOB?

David Schulman⇤

ABSTRACT This paper seeks to explain the origins of affirmative action and its history with higher education in the United States and how affirmative action needs to be reformed to function better. Through this explanation, landmark cases are discussed that involve undergraduate and graduate admissions practices. These cases explain the legal limitations universities face in using affirmative action as well as what they are allowed to do. Essentially, affirmative action for education operates in a gray area and this paper seeks to not only discuss that, but to also show where affirmative action seems to fail or be a detriment to the communities it is meant to help. Statistics, theories, and other research is used to analyze where affirmative action seems to be a disadvantage to some. Overall, this paper aims to show that affirmative action needs to be updated as society is not the same as it was during its introduction roughly fifty years ago. Colleges are far more diverse than they once where and affirmative action seems to now be hurting white and Asian applicants in their admissions chances to elite universities. In addition, Harvard is at the forefront of a major case, which addresses affirmative action practices.

WHY AND WHEN WRITTEN

This paper was originally written this past winter and updated throughout the 2018 summer for general publication. The motives behind it other than seeking publication were to learn more about afﬁrmative action’s history and current practices. Prevalent in today’s society are the class-action law suits against universities such as Harvard University and as such, it seemed a worthwhile article to write.

⇤New York University 28 December 2018

Affirmative action is one of the most hotly debated topics in higher education today. The concept of affirmative action began in 1961 with President John F. Kennedy’s Exec- utive Order 10925. Its original purpose was to equalize opportunities in the workforce. It stated, ”take affirmative action to ensure that applicants are employed and that employ- ees are treated during employment without regard to their race, creed, color, or national origin.”1 As the Civil Rights Movement of the 1960’s progressed, so too did the federal government’s agenda in pushing affirmative action. One of the greatest divides in our nation is between whites and minorities, and to try and rectify this issue our government has set up numerous laws and programs requiring equality. Although initially meant for jobs, the current usage of Executive Order 10925 has transformed into colleges interpreting it to mean they should give preferential treatment to those that are discriminated against. To- day, there is the goal of promoting diversity and helping minorities gain access to higher education. As such, colleges across the country are not only trying to recruit minorities to apply to their schools, but also are actively accepting them in lieu of other, perhaps more deserving students all for the sake of diversity. Upon its introduction, these actions were certainly necessary in order to try and help underrepresented people, but today it seems to have created a case of reverse discrimination and has even hurt Asian-American applicants. There are of course strong supporters of affirmative action admission policies, but there is a growing number of dissenters, even amongst the minorities the program sets out to help. Given the recent legal battles that have been waged across the United States over affirmative action, it seems that the government should take a hard look at the current policies in place and start to reform the practice, if not completely repeal the act. There have been numerous cases of students suing the nation’s premier institutions based upon admissions processes that they see to be skewed against them. To fully understand how affirmative action policies fit in today, these cases must be presented. The first true landmark case and the one that firmly made race allowable legally as a factor in admissions decisions was Regents of the University of California v. Allan Bakke.2 In 1973, Allan P. Bakke applied to the medical school at UC Davis for the first time, and he was rejected with an overall applicant score of 468 out of 500 and an MCAT score of 72. The average score of an admitted student was 69.3 There was a special admissions program and committee that the school had recently put in place to admit disadvantaged minorities. The purpose was to admit 16 minorities students every year through this program. Bakke was a white male and thus applied normally. He reapplied the following year after encouragement from the Assistant Dean, Peter Storandt, and was rejected once again. He filed a lawsuit as he stated that this program violated the equal opportunities laws and was

1Exec. Order. No. 10925, 3 C.F.R 303 (1961) 2Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) 3Skelton, Chris. “Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).” Justia, Justia, supreme.justia.com/cases/federal/us/438/265/case.html. December 2018 29 actively against fair admissions policies. He cited that these students did need to meet the minimum requirement of a 2.5 GPA and that their average MCAT score was 33.4 The Supreme Court upheld the lower court’s decision in that Allan Bakke was disadvantaged by this admissions process and must be accepted to UC Davis. However, they did not state that race could not be allowed in holistic admissions processes. Instead, the justices found that UC Davis over-extended its reach in instituting a quota system and that this was a violation of the rights of white applicants.5 In essence, affirmative action policies did not change, but this marked the first instance of the Supreme Court officially allowing race to be at play in admitting students. The next two landmark cases both involve the University of Michigan in 2003. Both occurred simultaneously, one dealing with undergraduate admissions policies, Gratz v. Bollinger, with the other dealing with the law school, Grutter v. Bollinger. Gratz is significant because it further established the limitations that race can play in admissions decisions, specifically that no minority can have their application boosted overtly because of their ethnicity. The petitioners, Patrick Hamacher and Jennifer Gratz were suing under the auspices that there were, “violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Four- teenth Amendment... and for racial discrimination.”6 The University of Michigan began to utilize a 150-point system to judge applicants, with at least 100 points necessary to guarantee admission. If an applicant was an underrepresented minority, such as Hispanic, Native American, or African-American, they would automatically receive 20 points. To put this point system into perspective, a perfect SAT score was worth only 12 points.7 The Supreme Court ruling from this case was that this point system was a clear violation of the Equal Protection Clause Fourteenth Amendment because giving automatic points to minorities gives a distinct advantage to them in the admissions process. In essence, all this holding meant was that universities could not blatantly boost minority applications, but that race could still be used to determine whether an applicant should be accepted or not. The other concurrent case against the University of Michigan, Grutter, is simple in its holding, but extremely divisive. Barbara Grutter, who was a Michigan resident, was suing because she believed that she was rejected due to race preferences by the school.8 Essentially, the court found the admissions process to be legal, as despite underrepresented minorities potentially being favored in the process, there was no quota system in place as

4Id. 5“Regents of the Uni v. of Cal. v. Bakke.” Cornell Law: Legal Information Institute, Cornell University, www.law.cornell.edu/supremecourt/text/438/265. 6Gratz v. Bollinger, 539 U.S. 204 (2003) 7“Gratz v. Bollinger.” Cornell Law: Legal Information Institute, Cornell University, 23 June 2003, www.law.cornell.edu/supct/html/02-516.ZO.html. 8Grutter v. Bollinger, 539 U.S. 306 (2003) 30 December 2018 in Bakke.9 There were numerous other individual aspects of each application that were counted so while race may have been a plus on someone’s application, it was not necessarily to the detriment of white applicants. Justice Sandra Day O’Connor wrote the Court’s majority ruling, stating that, “. . . the United States Constitution does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”10 The school said that race was necessary in their admissions process because they needed to create a “critical mass” of minority students for diversity’s sake. O’Connor implies in the opinion that affirmative action should not be legally allowed forever and that eventually a process without race as a factor should be used. Specifically, she wrote: ”race-conscious admissions policies must be limited in time. . . The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”11 The divisiveness of the case stems from this aspect of the opinion, specifically the phrase ”25 years from now.” Justice Clarence Thomas wrote a dissenting opinion saying that the system was ”illegal now” and only agreed with the majority that 25 years from a racially-biased process would still be illegal. Thomas and the other dissenting judges found the University’s admissions process to be a “a thinly veiled and unconstitutional quota system.”12 Justice Rehnquist cited in his dissent, “that the percentage of African- American applicants closely mirrored the percentage of African-American applicants that were accepted.”13 Based on this case, the longevity of affirmative was now in question, but the legality of it was not as long as schools were discrete and did not overtly advantage minority applicants. The next and final landmark cases are Fisher I (2013) and Fisher II (2016) as they are both Fisher v. University of Texas.14 Abigail Fisher, a Texas native, stated that she was rejected from UT Austin due to affirmative action policies in place. Fisher I was distinctly complex because the time the case was heard by the Court, Fisher had already graduated from college and was only seeking her application fee in damages. Ultimately, it was heard because the Judges found that possible racial discrimination should always be discussed

9“FindLaw’s United States Supreme Court case and opinions.” Findlaw, Thomas Reuters, caselaw.findlaw.com/us-supreme-court/539/306.html. 10Grutter v. Bollinger, 539 U.S. 306 (2003) 11Id. 12Id. 13Id. 14Fisher v. University of Texas at Austin, 579 U.S. (2016) December 2018 31 due to the Equal Protections Clause and that the case could be used as a follow up to need for a “critical mass” in the make-up of college classes.15 The decision that was reached was the Fifth Circuit Court of Appeals did not apply “Strict Scrutiny,” which is necessary in all cases concerning the Constitution, and such the case was sent back to be retried and the previous decision voided.16 Fisher II is the more prevalent of the two cases, not only because it is the most recent, but also because the dissent brings up the many current issues with affirmative action. Just like in the first trial, the Fifth Circuit found that UT Austin was compliant with the law in its admissions practices. Fisher was displeased with the result and sought to have the Supreme Court review this new trial. Once again, her case was heard by the Justices. This time, the holding was to affirm the Fifth Court’s decision that the use of race in UT Austin’s admission decisions was legal under the Equal Protection Clause.17 Some Judges, during the oral hearing and in their dissent, brought up the issues of affirmative action such as mismatch theory and how the preferential treatment of minorities has seemed to have only grown, rather than decrease over time.18 Mismatch theory or effect was first presented by Richard Sander and then later confirmed in a study by Professors Jesse Rothstein and Albert Yoon. Essentially, the theory states that by accepting elevating minority students into schools that they would not have been accepted to if they were not given a diversity boost, does not help them, but instead discourages them and tends to create a sense of failure, which leads to a high dropout rate.19 Findings indicated that despite gaining admission through affirmative action, about half of black college students found themselves in the bottom 20 percent of their classes, black law school graduates are four times as likely to fail bar exams as whites are, and that interracial friendships among students are more likely to develop when students are at the same level of academic preparedness.20 Basically, Sander’s point was that it is more a detriment to the majority of the minorities who are supposed to benefit from affirmative action as they are going to schools where they could not possible be ready to suc-

15Skelton, Chris. “Fisher v. University of Texas at Austin, 579 U.S. (2016).” Justia, Justia, supreme.justia.com/cases/federal/us/579/14-981/. 16Fisher v. University of Texas at Austin, 579 U.S. (2016) 17Id. 18Skelton, Chris. “Fisher v. University of Texas at Austin, 579 U.S. (2016).” Justia, Justia, supreme.justia.com/cases/federal/us/579/14-981/. 19Sander, Richard, and Stuart Taylor Jr. “The Painful Truth About Affirmative Action.” The Atlantic, Atlantic Media Company, 2 Oct. 2012, www.theatlantic.com/national/archive/2012/10/the-painful-truth- about-affirmative-action/263122/. 20Rothstein, Jesse, and Albert Yoon. “Mismatch in Law Schools.” National Bureau of Economic Re- search, National Bureau of Economic Research, Aug. 2008, www.nber.org/papers/w14275.pdf. 32 December 2018 ceed at.21 At the same time, it is fair to say that while Rothstein and Yoon confirmed these findings, they did note that without affirmative action there would be “a 63 percent decline in black matriculants at all law schools and a 90 percent decline at elite law schools.”22 There are certainly benefits to affirmative action, but do these benefits outweigh the cons and has the policy been successful overall? Another major finding that conclusively and quantitatively proved the advantage that minorities have in the college admissions process is a study in 2004 by Thomas Espen- shade and Chang Chung. They studied the effects of affirmative action on race and special groups at three highly selective private universities. They looked at the SAT scores (out of 1600) of those admitted from different groups of applicants and compared them. They found that non-legacy and non-recruited whites gained 0 points, blacks gained 230, His- panics gained 185, Asians lost 50, recruited athletes gained 200, and legacies gained 160.23 This is concrete evidence of the unfair advantage that being a minority presents and the detriment that being Asian is when applying to college today. This data is still applicable today because admissions practices at private universities have not changed since 2004, and, in 2018, we still find cases where minorities are admitted to schools with stats that would be deemed inferior based upon the average SAT score of the respective institution. Currently in the news are lawsuits about Asian-Americans suing Harvard, University of North Carolina-Chapel Hill, and other schools for discrimination against them in the admissions process. While many Asians are accepted to these elite schools, even more are rejected. Although it is not conclusive why they are unfairly rejected, further research has shown that they do have significant obstacles to overcome. In 2009, Thomas Espenshade and Alexandria Radford found that Asian-Americans needed SAT scores of 1550 out of 1600 to have an equal chance of being accepted at a top private university as whites who scored 1410 and African Americans who got 1100.24 Furthermore, after controlling for various family backgrounds, athletics, grades, etc., they concluded that whites were three times, Hispanics six times, and blacks more than 15 times as likely to be accepted at a US university as Asian-Americans.25 This seems to be hard evidence that Asians are being discriminated against and are no longer being considered a minority in the admissions process at most colleges.

21Sander, Richard, and Stuart Taylor Jr. “The Painful Truth About Afﬁrmative Action.” The Atlantic, Atlantic Media Company, 2 Oct. 2012, www.theatlantic.com/national/archive/2012/10/the-painful-truth- about-afﬁrmative-action/263122/. 22Rothstein, Jesse, and Albert Yoon. “Mismatch in Law Schools.” National Bureau of Economic Re- search, National Bureau of Economic Research, Aug. 2008, www.nber.org/papers/w14275.pdf. 23Espenshade, T. J., Chung, C. Y. and Walling, J. L. (2004), Admission Preferences for Minority Students, Athletes, and Legacies at Elite Universities*. Social Science Quarterly, 85: 1422–1446. 24Espenshade, Thomas J., et al. No longer separate, not yet equal: race and class in elite college admission and campus life. Princeton University Press, 2009. 25Id. December 2018 33

Diversity is certainly a necessary component of today’s society. No one will argue that whether it be in the workforce or on a college campus that having people of all ethnicities, religions, and backgrounds is a benefit for everyone. The only way for us to grow as a society is to constantly be exposed to different people and ideas. The issue seems to be that what started as an equality-driven social program has turned into one that is in a major gray area of the law and no longer fulfills its original purpose. Currently, the Department of Justice is investigating claims of discrimination at Har- vard due to the many complaints of a group of Asian-American organizations. These organizations claim that “high-achieving Asian-American applicants [have been] pass[ed] over for admission in favor of less-qualified black, white, and Hispanic applicants.”26 The DOJ has requested that Harvard hand over confidential applicant and student records, so that they could determine if there was any discrimination in the actual admission decisions of past years. Harvard had original refused to comply, however, they agreed to do so only after being threatened by a lawsuit from the DOJ.27 What has now come out of the investigation is how Harvard ranks all applicants as well as how Asian-Americans are statistically disadvantaged in the process. “In its admissions process, Harvard scores applicants in five categories — ‘academic,’ ‘extracurricular,’ ‘athletic,’ ‘personal’ and ‘overall.’ They are ranked from 1 to 6, with 1 being the best.”28 Asian-Americans, on average, received lesser scores on subjective aspects of their applications, specifically “personal” when compared to other applicants. On the flip side, a majority had higher academic rankings than their peers.29 Also uncovered by the investigation was that in a 2013 internal review, Harvard did state that if Asian-Americans were to be admitted on purely academic stats, their percentage of the freshman class would rise to 43%.30 Given this statistic alone, it does seem that there is some bias against Asian-American applicants. Beyond Students for Fair Admission’s (the plaintiff in the major case against Harvard) belief in meritocracy, this treatment does seem to go against Title VI of the Civil Rights Act of 1964. The law states, “Simple justice requires that public funds, to which all tax- payers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] dis-

26Hartocollis, Anemona. “Harvard Agrees to Turn Over Records Amid Discrimination Inquiry.” The New York Times, The New York Times Company, 1 Dec. 2017, www.nytimes.com/2017/12/01/us/harvard- justice-department-discrimination.html. 27Id. 28Hartocollis, Anemona. “Harvard Rated Asian-American Applicants Lower on Per- sonality Traits, Suit Says.” The New York Times, The New York Times, 15 June 2018, www.nytimes.com/2018/06/15/us/harvard-asian-enrollment-applicants.html. 29Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al 30Hartocollis, Anemona. “Harvard Rated Asian-American Applicants Lower on Per- sonality Traits, Suit Says.” The New York Times, The New York Times, 15 June 2018, www.nytimes.com/2018/06/15/us/harvard-asian-enrollment-applicants.html. 34 December 2018 crimination.”31 Given that Harvard does receive federal funds for some of its research, any bias or even boost that minorities are given would be against this law. Considering that peer elite institutions also receive federal funding, it comes as no surprise that seventeen schools have filed an Amicus Brief in defense and support of Harvard.32 These similar colleges all practice the same style of admissions with variation depending on their individual university needs. As such, they too have a large stake in the case. The findings of this investigation have the potential to be game-changing as the gray area that affirmative action rests in seems to be becoming more fragile every single day. With the trial expected to begin in October, what results will have resounding impact on the American college admissions process. Additionally, of merit to note is that in all the previously mentioned cases before the ongoing one, the only plaintiffs were white. Now, however, more complaints are being filed and it is not only whites that are leading the charge, but also minorities stating racial discrimination is at play. All that has been established thus far by the Supreme Court is that affirmative action is legal as long as no quotas are in place and no blatant boosting of minorities occurs. With Harvard under fire right now, the question of where we go from here must be on many people’s minds. One possibility is getting rid of affirmative action completely or beginning the phasing out of it. A trial run at one or two private schools could be an effective study. The University of California public school system has already banned all usage of race in its admission programs. In addition, seven other states have also banned affirmative action at its public universities: Washington, Florida, New Hampshire, Michigan, Nebraska, Arizona, and Oklahoma.33 Halley Potter, a senior fellow at The Century Foundation, writes about how these public institutions are trying to maintain the same level of diversity without affirmative action as they did: “The most basic test of these new strategies is seeing if they produced at least as much racial and ethnic diversity on campus as the race-based affirmative action programs they replaced. Based on my analysis, at 7 out of 11 public flagship universities for which data was available, enrollment of African American and Latino students under race-neutral admissions reached or ex- ceed the level seen in the year before the ban.”34 Based on her analysis, there seems to be a need for reform at the minimum as there is a growing public desire for a change in the way schools admit applicants. If these

31Title VI Statute, 42 U.S.C 2000d - 2000d-7 §§ 32Ryan, Celine. “AAUP, Ivy League Defend Harvard’s Affirmative Action Policies.” Campus Reform, The Leadership Institute, 9 Aug. 2018, www.campusreform.org/?ID=11205. 33Potter, Halley. “What Can We Learn from States That Ban Affirmative Action?” The Century Founda- tion, The Century Foundation, 18 Apr. 2016, tcf.org/content/commentary/what-can-we-learn-from-states- that-ban-affirmative-action/. 34Id. December 2018 35 public institutions are able to still be diverse while only admitting based on merit, why can’t private schools achieve the same results? While in certain cases, such as law school admissions, affirmative action has been proven to increase minority attendance, the fact still remains that these students are “mismatched” and out of place. It does no good to accept a student to a school that is more academically rigorous than he or she is prepared for. As such, a balance must be achieved between seeking diversity and fairly deciding who academically fits in at the school. While earning a prestigious college degree may open up doors for minorities who are accepted because of affirmative action, these admissions programs do nothing to ensure the students succeed after and instead tend to create cases of reverse discrimination. Although there is push from both sides of the issue to take action, there is no clear solution in mind, and so affirmative action is currently stuck at the status quo. Certainly, universities should prioritize diversity as the collegiate experience is meant to be one of maturing through academic challenge and social and ethnic differences. Having too much of any one racial group would be a detriment to the missive these colleges put forth. What does need to be done is finding a better way to create racial diversity without harming some groups the notion of Affirmative Action is meant to serve. What the future holds, no one knows, so for now students need to continue doing what they’ve always done; they will keep working hard and studying to gain admission to those elite universities everyone dreams of attending.

LEGAL ISSUES IN THE NFLS CONCUSSION CRISIS: HOW CTE AWARENESS IS CHANGING FOOTBALL

Alexander Masotti

INTRODUCTION

Watching Football every Sunday is a cultural tradition that Americans have cherished for decades. There is nothing like supporting favorite teams go at it with their rivals, watching the modern day “gladiators” lay hard hits on each other, and staying up late into the garbage time of the Monday Night game to keep tabs on its fantasy implications. However, what has become such a tradition in our country also has extreme physical and mental consequences for the players who have made a career out of the game. Players are constantly straining muscles, tearing ligaments, and breaking bones. But possibly the worst of these injuries are the inevitable concussions and head injuries. Many have labeled concussion the “invisible injury” because it is not an injury that is visible to the eye or appears on an X-ray. In addition, evidence of the long-term health implications of concussions has only recently been shown, contradicting what players historically were told about safe return to the ﬁeld after brain trauma. Complicating matters, football players, coaches, and supporters often stigmatize these injuries and downplay them as legitimate reasons for keeping players out of long spans of games, when in reality recovery from a concussion can often take as long or longer to heal than a broken bone. This, as most reasonable people would expect, encourages players to play through injuries, exacerbating the health risks of concussions. When someone gets injured while performing a job, in this case a professional sport, litigation often follows. This analysis will explain the legal impact that increasing awareness of concussions has on the game of football. It will address how a class action settlement of NFL players’ claims against the NFL came to be and how it impacts players’ rights and the NFL’s efforts to keep players safe today. Finally, it addresses legal liability issues that still exist on Riddell, a helmet equipment company that also misrepresented players’ risks for concussions. 38 December 2018

CONCUSSION DEFINED

The short-term symptoms of a concussion include headache, nausea, dizziness, sensitivity to light or sound, memory loss, and much more.1 The recovery time for immediate concussion symptoms could range anywhere from a few days to many months.2 In the short term, it may seem realistic for a player to tough out a game or two with a headache, however repeated and ongoing concussions can lead to serious medical issues later on in life. Of many effects, including memory loss and depression, one of the most detrimental is a disease called Chronic Traumatic Encephalopathy (CTE), which is commonly found in the brains of former athletes.3 CTE is a “degenerative brain disease” caused by repeated head injuries and concussions. CTE symptoms can be “cognitive, behavioral, or mood impair- ments,” ranging from headaches, lack of focus, depression, anxiety, memory loss, mood swings, suicidal thoughts, suicide, executive function problems, full-blown dementia, and more.4 There is no cure for CTE, and studies have linked the loss of brain cells associated with it to diseases, such as Parkinson’s and Alzheimer’s.5

THE NFL’S NEGLIGENCE AND FRAUD

Players have the right to know the risks of playing the game of football with head injuries, especially when coaches and team doctors encourage them to continue playing with head injuries. Yet, for decades, the NFL ignored and misled players about the impact of brain injuries. In 1952, an important medical report was published claiming that athletes who have logged three concussions should stop playing football.6 In the years that followed this report, it has been known by associations, such as the NFL, that their players are at extreme risk as a result of their concussions. In the 1990s, the NFL decided to organize a commission to study mild traumatic brain injury (“the MTBI Commission”).7 The MTBI Commission was made up of NFL professionals and team doctors without expertise in concussions, and was led by a NY Jets team physician (a rheumatologist) without expertise in brain injuries.

1Center For Disease Controls Website, Traumatic Brain Injury and Concussion, https://www.cdc.gov/traumaticbraininjury/symptoms.html 2Id. 3McKee, A., et. al., The Spectrum of Disease In Chronic Traumatic Encephalopathy, Brain (2012). 4Id. 5Id. 6. Thorndike, Serious Recurrent Injuries of Athletes - Contradictions To Further Competitive Participa- tion, 247 New England Journal of Medicine 554, 555 (1952). 7Pellman, E., et. al., Concussion in Professional Football: Players Returning to the Same Game – Part 7, Neurosurgery, Vol. 56, Issue 1, pp. 79-92 (Jan. 1, 2005). December 2018 39

In 2003, the MTBI Commission issued a highly controversial Mild Traumatic Brain Injury Report.8 The MTBI Report ignored much science and made unsupported claims about the long-term health impact of concussions. Some of the outright false claims de- tailed in the Report were that NFL players can recover from concussions in as short as one our, that players were not at risk of exacerbating their symptoms or incurring future injuries by returning to play immediately, and that the NFL player is less susceptible to post-concussion syndrome than the average population.9 The Report also stated that the NFL was unaware of any cases of CTE in its players. The Report succeeded in downplay- ing the effects of concussions to players themselves, which resulted in them continuing to play and not reporting ongoing head issues if subjected to them.10 The Report failed to consider how many players purposely do not report their concussions to team doctors out of fear for their job security. Since an NFL player’s job and therefore livelihood is not protected beyond a season, it results in a pressure to play through injury and downplay their symptoms. In 2002, an influential study examining the brain of a player who passed away was conducted by Dr. Omalu. This contradicted many of the conclusions about CTE made by the NFL report.11 The study concluded that the player suffered from CTE, and shed light on how “repeated mild concussive brain injury” from playing in the NFL could result in CTE.12 Upon learning of Dr. Omalu’s findings, the NFL demanded he retract his incriminating finding on CTE, as opposed to addressing the serious issue it brought up.13 Numerous other studies administered near this time also reinforce the dangers that arise from repeated blows to the head in football, contradicting the NFL’s efforts to conceal the long term implications of concussions and the instances of CTE in former NFL players.14 The NFL’s efforts to hide the true impact of concussion and head injury came to a head in 2009 when Congress conducted its own hearing into concussions in football.15 Even though the NFL continued to downplay the risks of head injuries, growing criticism from independent researchers, players, and Congress led to change. In 2009, the NFL finally

8Id. 9Pellman, E., et.al., Concussion in Professional Football: Injuries Involving 7 or More Days Out – Part 5, Neurosurgery, Vol. 55, Issue 5, pp.1100-1199 (Nov. 1, 2004). 10See generally, Pellman, E., et. al., Concussion In Professional Football, Parts 1-13, published in Neuro- surgery from 2004-2006. 11Omalu, B., Chronic Traumatic Encephalopathy in a National Football League Player, Neurosurgery, Vol. 57, p.128 (2005). 12Id. at 131. 13PBS Website, Timeline of NFL’s Concussion Crisis, https://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nﬂs-concussion-crisis/ 14Id. 15Id. 40 December 2018 issued new guidelines and began to take head injury more seriously.16 There have been many changes to protocols and guidelines over the last nine seasons.

THE NFL CLASS ACTION SETTLEMENT WITH RETIRED PLAYERS

The class action known as Turner vs. the NFL (In re NFL Players’ Concussion Injury Litigation) was a turning point in the debate about the NFL’s duty to its players. In 2011, close to 6,000 former NFL players ﬁled lawsuits against the NFL, claiming the NFL failed to take reasonable actions to protect its players and misrepresented the risks of playing the game. Players argued that they suffer illnesses, including dementia, depression, and Alzheimer’s, and CTE, as a result of the constant blows to the head they suffered while playing football.17 In 2013, the parties came to a settlement over the lawsuit. Through the settlement, approximately 20,000 former players could make claims to recover money for long-term injuries, such as moderate dementia, Alzheimer’s disease, death with diagnosed CTE (before 2014), Parkinson’s Disease or ALS. Factors, such as the amount of NFL seasons played and amount of prior concussions, inﬂuenced the amount of money a former player could recover. In 2015, a district court in Pennsylvania approved the class action settlement.18 In deciding whether the class action was fair, the court addressed claims by a small number of former players who opposed the settlement. These objectors were especially angry that the NFL was able to settle without admitting their guilt and before enough discovery had been complete to show evidence of NFL’s wrongful, fraudulent actions.19 The objectors also argued that the settlement should have covered CTE claims with the many injuries and symptoms that come from CTE.20 The district court deemed the settlement to be reasonable and fair.21 The court believed resulting to a settlement was better than moving forward with a trial. It felt that the trial could cover years and may result in players not being successful in proving their case. In particular, the district court believed that the players would have trouble showing “cause” – that the players condition was actually caused by the NFL’s actions and not brain trauma

16NFL Website, Press Release, Return to Play Rules (Dec. 2, 2009). http://www.nﬂ.com/news/story/09000d5d814a9ecd/article/goodell-issues-memo-changing-returntoplay- rules-for-concussions 17PBS Website, Timeline of NFL’s Concussion Crisis. 18Turner v. NFL (In re NFL Players’ Concussion Injury Litigation), 307 F.R.D. 351 (E.D. Pa 2015), aff’d, 821 F.3d 410 (3rd Cir. 2016). 19Id. at 390-91. 20Id. at 397. 21Id. at 394-395. December 2018 41 endured in college or even high school.22 Despite many players believing the CTE claims were the most critical, the court rejected CTE claims, arguing that the proposed impacts of CTE were only speculative.23

RECENT COURSES OF ACTION BY THE NFL TO ADDRESS HEAD INJURIES AND REDUCE LIABILITY

What does the settlement mean for NFL’s future liability and recourse for players when it comes to concussive head injuries? To avoid legal liability for the sustained injuries of NFL players moving forward, the NFL has created and enacted new rules and policies to help protect players from these inevitable injuries.24 Just this year, the NFL has implemented a rule for no tolerance against late hits to the head. In a game in October 2018, Eric Reid laid a controversial helmet to helmet blow on Ben Roethlisberger. In recent years, this would have just been a 15-yard penalty. In addition to a penalty during the game, the referees ejected Eric Reid from the game.25 The NFL has also changed its concussion protocol.26 If a concussion is at all suspected, the NFL calls for that player to be immediately removed from the game. The player is then required to be examined by independent neurological consultant before returning to scrimmage. The NFL has also changed the protocol for returning to play after being diagnosed with a concussion. The NFL recognizes that it is very dangerous for a player to return to the ﬁeld before being fully recovered. The concussion protocol now sets rules on how and when a player can return to play to make sure that there is a full recovery.27 Automatic removal from the game and return to play protocol protect players by making them feel like they can honestly report head injury symptoms without feeling that the security of their job is on the line if they don’t return to play before it is safe for them. Ultimately, the game of football is inherently dangerous, and NFL players know that injuries are part of the nature of the game of football. Accordingly, it may be hard for NFL players to bring future actions if the NFL continues to enforce these types of rules. NFL’s liability may depend on whether it actually enforces its new rules and penalties to limit illegal tackles and hits to the heads, including imposing the real penalties of ejecting players and ﬁning teams. Similarly, a failure to follow its concussion protocol could give

22Id. at 393. 23Id. at 397-98. 24NFL, Play Smart Play Safe Webpage, Health and Safety Rules. 25UPI Website, https://www.upi.com/Sports 26NFL, Play Smart Play Safe, Concussion Protocol. 27Id. 42 December 2018 rise to legal action if not strictly enforced. For example, Tom Savage was allowed to reenter the game in the 2018 season after appearing to have a seizure on ﬁeld.28 The NFL has seemingly taken other steps that at least appear to make the game safer. For example, in 2016, NFL promised to give $100 million to conduct independent medical research on brain injuries.29 By taking these types of steps, the NFL can avoid the hole it previously dug itself into by its efforts to hide head injuries. By confronting and informing the league of the risk of head injuries, players no longer can argue that they did not know the risks.

RESPONSIBILITIES OF HELMET COMPANIES FOR FOOTBALL-RELATED BRAIN INJURIES

An ongoing issue remains with the liability of helmet companies. Helmets were introduced in the game of football to prevent skull fracture. Despite serving as a barrier between a players head and the striking force delivering the blow, repeated hits to the head have long-term negative impacts that are inevitable regardless of helmet use. Given what we now know about head injuries, helmets cannot prevent the NFL’s concussion problems. Around the same time as the NFL litigation, NFL players sued Riddell, Inc., a helmet maker, for misrepresenting its product’s ability to prevent concussions.30 A class action about Riddell’s fraud continues today based on Riddell’s knowingly false claim that its “concussion reduction technology” could reduce concussions by 31%, even though the company had no evidence to back that up.31 A potential issue for the helmet company’s liability are studies that now recognize that repeated head trauma can cause CTE, as this unfortunate circumstance is present despite helmet use.32 Separate from litigation over prior misrepresentations, helmet makers may continue to face liability issues even with new and advanced technologies for modern helmets if they exaggerate or mislead the public about what they can and cannot do. The nature of football is that players will endure repeated blows to the head, meaning NFL players will continue to face signiﬁcant rush of getting a concussion when even when wearing one. When companies, such as Riddell, make claims about the protections their helmets offer, it may expose them to claims of misrepresentation, especially since Riddell has used the present hysteria of concussions as a market to brand their new helmets.

28Tom Savage Shaking On Ground After Massive Hit, Brieﬂy Returned To Game, ESPN Website (Dec. 10, 2017) 29Pelissero, T., NFL Says It Will Commit $100 Million In Concussion Initiative, USA Today, (Sept. 14, 2016). 30In Re Riddell Concussion Reduction Litigation, 121 F.Supp.3d 402 (D.N.J. 2015). 31Id. 32Mez, J., Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football, Journal of the American Medical Association (2017). December 2018 43

CONCLUSION

Hopefully, the NFL settlement will aid NFL players as they handle the implications of the head injuries that came when they were football players. The NFL settlement highlights the importance of the NFL taking concussions seriously and acknowledging the risks of play. However, regardless of this, football is a dangerous games and collisions to the head occur on virtually every play. This requires the NFL to be rigorous in its efforts to protect players by imposing harsh enough penalties and by strictly regulating back-to- play protocols in order to avoid claims that it is responsible for making the game unsafe. Hopefully, as studies begin to conﬁrm what the players themselves know about their CTE symptoms, the league and others will also take CTE more seriously and make efforts to help players suffering from the many symptoms of CTE.

NON-UNIFORMITY OF ELECTRONIC WILLS

Steven Yeh

INTRODUCTION

Everyday technology becomes a more and more integral part of our lives, phasing out traditional tasks with methods that are more convenient, accountable and efficient. Such technology has been applied to signatures; they have transitioned from a physical pen- to-paper affair to something that can be done remotely and saved not only to one piece of paper, but uploaded and protected in a digital archive. Indeed, with the digitalization of signatures, which constitute a personal identity, comes with risks of identity theft and forgery. The United States federal government mandates that digital signatures abide by the Digital Signature Algorithm (DSA). The DSA uses prime number generations and an RSA encryption standard; the author of the technical paper and holder of the patent, computer scientist Johannes Buchmann, suggests security issues, including future techno- logical breakthroughs such as quantum computers, may make the algorithm susceptible to being broken by attackers.1 The Uniform Electronic Transactions Act (UETA), approved by state legislatures, and ESIGN Act, a federal law, adopted at the start of the 2000s, have pushed to increase the uniform acceptance of electronic signatures in order to increase efficiencies of interstate commerce. These acts exclude wills and codicils in their scope. On the issue of electronic wills, the added concern compared to other electronic signatures is that the main party of reference to the document is deceased when the will is probated and executed. The Uniform Law Commission, the non-profit association that drafted and promoted UETA, is currently drafting the Electronic Wills Act to be accepted by state legislatures.2 However, with a survey of multiple state court decisions, which are not particularly uniform in final arguments and previous state legislature failures at adopting their own electronic wills statutes, the Electronic Wills Act will not be as easily adopted by states as UETA was. There should be a federal law such as the ESIGN Act in reinforcement to UETA, but pertaining to electronic signatures for wills, federalism-type conflicts will ensue particular to the lack of conformity of state statutes and general distrust of the authenticity of electronic wills. 1Johannes Buchmann, The Digital Signature Algorithm (DSA) (2001), CRYPTEC, http://www.cryptrec.go.jp/exreport/cryptrec-ex-1003-2001.pdf. 2National Conference of Commissioners on Uniform State Laws, Draft for Discussion Only, Electronic Wills Act, Uniform Law Commission (2018). 46 December 2018

I. ELECTRONIC WILLS

Electronic wills are what they sound to be like: wills created by electronic equipment such as computers. The term also encompasses its use of an electronic signature and electronic storage. With the creation of electronic wills comes many questions that must be satisfied by uniform law in order to be of accordance with laws regarding traditional wills. These include: Does an electronic signature carry the same weight in identifying a person as a handwritten signature? Is there a way to rectify specific state statutes of requirements of a valid will into a uniform law? How does witnessing work for the creation of an electronic will? Lastly, if the whole process of creation through to execution of the will is to be digitalized, how can the law ensure secure storage of the electronic will? The current draft of the Uniform Electronic Wills Act does not fully address all of these questions, and with too many differences among individual states in treatment of traditional wills and electronic wills, some conflicting even with the draft of the act itself, a uniform law on electronic wills does not seem promising in its adoption.

II. BACKGROUND ON THE UNIFORM ELECTRONIC TRANSACTIONS ACT (UETA) AND ESIGN ACT

The Uniform Electronic Transactions Act (UETA) and the ESIGN Act are two pinnacle legislative achievements for electronic signatures; UETA is a Uniform Act ﬁrst proposed in 1999 and passed by individual state legislatures, while the ESIGN Act is federal law and passed by Congress in 2000. The ESIGN Act appears to be the federal version of the UETA, as it explicitly states that “[it] constitutes an enactment or adoption of the Uni- form Electronic Transactions Act as approved and recommended for enactment in all the States. . . ”3 UETA does not apply to a transaction that relates to the “creation and execution of wills, codicils, or testamentary trusts”; the ESIGN Act follows suit with congruent language concerning wills. However, in a memorandum by Professor Patricia Fry of the American Law Institute, on behalf of the Uniform Law Commissioners, she states that “UETA is more comprehensive than the federal legislation. . . ” and that ESIGN “has no provisions dealing with mistakes or errors in electronic communications”.4 In addition, while UETA defers to provisions of other state laws for more speciﬁc determinations of the validities of electronic signatures, the ESIGN Act does not “affect any legal requirement beyond requirements for writings.”5 While the ESIGN Act was approved by the House of Representatives in overwhelming favor (426-4) and similarly by the Senate (98-0), the dis-

315 U.S. C. 96. § 4Patricia Brumﬁeld Fry, Why Enact UETA? The Role of UETA After E-Sign National Conference of Commissioners on Uniform State Laws (2002). 5Id. December 2018 47 senting view by Representative Howard Coble of North Carolina to the Committee on the Judiciary highlights a convolution of the role of the federal law and UETA adoption is subject to individual states: “If the UETA is law in one [state], but not in another, what is the Federal rule? This seems to promote confusion, not uniformity.”67New York, Washington and Illinois stand out as states that have not adopted UETA; instead they have their own state statutes that are similar in nature to enforcing the legality of electronic signatures.8

III. SPECIFICITIES OF THE PROPOSED ELECTRONIC WILLS ACT

Again, the main worry of electronic wills is its authenticity. This raises the apparent questions: how does witnessing work for electronic wills? How can electronic wills be rescinded? How can electronic wills be stored in a way that secures its authenticity? Some of the rules that apply to traditional wills remain the same in the proposed Elec- tronic Wills Act, including that the individual “is of sound mind and is under no constraint or undue influence” and a will is self-proving with all witnesses to the electronic will physically present while the testator makes the signature.9 The electronic will must “a writing in a record”, with “record” defined as “information. . . on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”10 In reference to the necessity of witnesses to the signing, the draft of the Electronic Wills Act states that there must be “at least two individuals, each of whom signed within a reasonable time after the individual, in the physical or electronic presence of the testator”; the given definition of “electronic presence” is “being in a different physical location from an individual but able to communicate with the individual by means of an electronic device or process.”11 The Drafting Committee states that “remote attestation will not create excessive risks.”12 In short, this would allow for a sort of video-conferencing type communication to go on while the signing of the final will and testament is done. If witnesses are not physically present, the electronic will is made self- proving by acknowledgement of the testator and affidavits of the witnesses made before a notary or other authorized person; electronic notarization without witnesses can also be done.

6Senate Validates E-Signatures, Insurance Journal (2000). 7Electronic Signatures in Global and National Commerce, Committee on the Judiciary Report with Dis- senting Views (To accompany H.R. 1714). 8Enactment Map, National Conference of Commissioners on Uniform State Laws, Draft for Discussion Only, Electronic Wills Act, Uniform Law Commission (2018). 9National Conference of Commissioners on Uniform State Laws, Draft for Discussion Only, Electronic Wills Act, Uniform Law Commission (2018). 10Id. 11Id. 12Id. 48 December 2018

IV. STATE LAWS

Wills, estate and probate laws differ from state to state, and this is a sign of the poor outcome from the efforts of the Uniform Law Commission to promote the adoption of the Wills Recognition Act. The draft was completed in 1977, but only nineteen states to date have adopted the Wills Recognition Act into state law.13 The lackluster performance of the Wills Recognition Act suggests wills, in contrast to other types of legal documents, such as consumer contracts, that were within the scope of the UETA, may be a hurdle to uniformity. If there is no uniform consensus for the treatment of wills, it is hard to imagine one for the treatment of electronic wills. For wills in general, there is stark difference to the rules that apply in different states. For instance, a “holographic will”, which is the term for a handwritten will, is valid under Maine statutes if it was written by the testator, however, in Florida, the holographic will of a nonresident of Florida is deemed invalid for execution.14 15 A historical example is that in Tennessee, all wills executed before 1941 needed three witnesses to the will, while it is prevalent throughout many other states that only two witnesses are needed.16 On the discussion of electronic wills, Nevada is the only state that has passed a statute validating electronic wills. There have been efforts made in multiple states including Ari- zona, Indiana, New Hampshire, Virginia and Florida. There is opposition within individual states to the adoption of electronic wills, and that is certainly not conducive to the adoption of a law to make treatment of electronic wills uniform. In 2017, the Florida state legislature had passed its own Electronic Wills Act, but Governor Rick Scott vetoed the act, citing exposure to fraud and exploitation and that “remote-notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction.”17 This exactly counters the thesis given by the Drafting Committee of the Uniform Laws Commission, which speciﬁed that “states may want to encourage electronic notarization.” In New Hampshire, a state senate bill, noted as the New Hampshire Electronic Wills Act, did not make it past committee.18

13Enactment Map, National Conference of Commissioners on Uniform State Laws, Wills Recognition Act, Uniform Law Commission (1977). 14Fla. Stat. 732-502. § 15Me. Stat. tit. 18 2-503. § 162012 Probate Guide, Probate Committee of the Tennessee Clerks of Court Conference (2012). 17Breaking news: Governor Rick Scott Vetoes Florida Electronic Wills Act, Florida Probate Trust Liti- gation Blog (2017). 18New Hampshire SB40 — 2017 — Regular Session, LegiScan. December 2018 49

V. S URVEY OF STATE COURT CASES

There have been notable developments in relation to the validity of electronic wills in state courts. In Tennessee, in the Probate Guide for clerks serving courts with probate jurisdiction, the keyword “electronic” is nowhere to be found, and thus it is unsurprising that a case involving the authenticity of an electronic will would be subject to the discussions of a court.19 In Taylor v. Holt (2003), the testator had prepared his last will and testament on a computer and then used a computer-generated signature in place of a traditional signature at the end of the document in the presence of two witnesses. The sister of the testator brought the case to court, claiming the testator died intestate and the will deemed invalid.20 Had there been a traditional signature by the testator, then the will would conform as a non-holographic will that is valid as a regular “written will” and it would have been more difficult to contest; the main crux of the case is the presence of the computer-generated signature. The court ruled the will valid as the requirement of two attesting witnesses was attained and the electronic signature made complied with Tennessee state statute. Upon an appeal, the state appellate court affirmed the decision, stating that the “computer generated signature made by Deceased falls into the category of ‘any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record’. . . is sufficient to constitute proper execution of a will.”21 However, this case does not shine a light on how Tennessee statutes treat cases where the attesting witnesses also use electronic signatures, in fact, this Taylor v. Holt does not do any more to make electronic wills acceptable in Tennessee other than admitting the authenticity of only the testator’s electronic signature. In Connecticut, Litevich v. Probate Court (2013) was a case concerning the prepa- ration of the last will and testament using an online commercial service, but without the electronic signature of the testator.22 Although it was argued that the testator had to con- firm the contents of the will prior to making a credit card payment, the court held firm to the rule that a signature was needed in order to properly recognize the will. The interesting part of this case is the testator had a traditional last will and testament in addition to his online one, which was later deemed invalid; the court admitted the previous traditional will.23 In this case, the previous traditional will has precedence over the electronic one. On the detail of revocation of wills, the Drafting Committee of the Uniform Law Com- mission stated that there was discussion about the inherent problems with electronic wills

192012 Probate Guide, Probate Committee of the Tennessee Clerks of Court Conference (2012). 20Taylor v. Holt, 134 S.W.3d 830, 2003 Tenn. App. LEXIS 764. 21Id. 22Litevich v. Probate Court, 2013 Conn. Super. LEXIS 1158, 2013 WL 2945055 (Conn. Super. Ct. May 17, 2013). 23Id. 50 December 2018 in that multiple copies may be made. They concluded with “permit[ting] revocation by revocatory act but require clear and convincing evidence of the testator’s intent to revoke the will.”24 It is almost certain then that the deﬁnition “clear and convincing evidence” will be attuned by the interpretation of the courts.

VI. CONCLUSION

As technology progresses and pen-and-paper processes become digitalized, the law plays catch up. In this instance, the law must uniformly govern the validity and usage of electronic wills across all states. However, without a successful blueprint of a uniform law for traditional wills, it is hard to imagine one that will be successful for electronic wills. Other obstacles include intrinsic differences in individual state statues, limited foundation provided by the interpretations of state courts and setbacks in individual states approving electronic will acts. Therefore, it is surmised that the passage of the Electronic Wills Act will endure through a harsher path to uniform approval compared to the routes of approval other “digitalization” uniform laws, including UETA and the ESIGN Act, have taken.

24National Conference of Commissioners on Uniform State Laws, Draft for Discussion Only, Electronic Wills Act, Uniform Law Commission (2018). BALLOTING BENEVOLENCE: HOW VOTING RIGHTS AMBIGUITY COMPROMISES EQUALITY

Hayden Stokley

INTRODUCTION

On November 2nd in Starkville, Mississippi, Sally Hyde-Smith, while campaigning for election to a seat in the senate, told an onslaught of media personnel and rally-goers that college students “remind [her] that there’s a lot of liberal folks in those other schools who that maybe we don’t want to vote. Maybe we want to make it just a little more difficult. And [to her]...that’s a great idea.”1 This statement was not made in the 60’s, 70’s, or even early 2000s. Hyde-Smith’s statement occurred in 2018, just days before she won over 40% of the general vote in the state election and advanced to a runoff election later in the month.2 The senator’s comments were dismissed as a joke by staff-members, but this pro-suppression rhetoric only emphasizes how pervasive such comments in favor of voter suppression still are in modern American society.3 The United States democracy serves as the figurehead of a unique conglomeration of equality, exceptionalism, and diversity. Having survived for hundreds of years, the framework of the democratic process is inevitably intricate and subject to controversy; yet, one of the most basic principles has continued to safeguard the integrity of democracy. This basic principle is popular sovereignty. Voting has prevailed as a centralized and egalitarian method of civilian participation, and the concept is simple: every person contributes to a unified decision on who governs them. The VotingRights Act in the 1960s catalyzed hundreds of landmark voting rights cases. Previous court precedents provided an arbitrary basis for legal controversies subject to a multitude of varying interpretations. Extending into recent years, these debates have resurfaced with insurgence in 2016, as swift partisan tensions exacerbated the debate over

1Michael Brice-Saddler, GOP SENATOR: IT’S A ’GREAT IDEA’ TO MAKE IT HARDER FOR ’LIB- ERAL FOLKS’ TO VOTE , THE WASHINGTON POST (2018). 2Mississippi Senate Election Results 2018: Live Midterm Map by County Analysis, POLITICO (2018), https://www.politico.com/election-results/2018/mississippi/senate/. 3Willa Frej, GOP SENATOR SAYS VOTER SUPPRESSION IS A ’GREAT IDEA’, HUFFINGTON POST (2018). 52 Decemeber 2018 voting regulations. Allegations of voter fraudulence and plans to circumvent individuals’ rights to vote induced questions of redistricting, identification laws, and state mandates on early voting. The question has been one of significant weight since America’s founding, but the controversy of American voting rights has remained ambiguous at best. All of the resulting rulings aim to further define and preserve the democratic process, but the question remains: to what extent do restrictions on voting preserve democracy. Subsequently, do strict voting laws do anything to promote the process of democracy? The Supreme Court’s treatment of voting rights discrepancies must consistently extend a clear boundary between promoting democratic integrity and defending it. It can do so by implementing a codified and unilateral set of protections on citizens’ rights to vote, but also by acknowledging the threats to democracy that attempt to circumvent the democratic process’ legitimacy.

THE PATH TOWARDS EQUALITY RIGHTS

The right to vote has remained an intrinsic assurance in American political culture, but this assurance is fraught with contradictions, conditions, and unmet criterion only further complicating its supposed equalized accessibility. Voting eligibility was not guaranteed in the United States Constitution until 1870, and no constitutional provision mandates specific regulations across all states to codify voting access, processes, and applications of methods. It is perhaps because of this federal silence that a number of supreme court cases have permeated the public conscious. These cases focus on determining the true level of jurisdiction that states and the federal government possess in voting laws, but rulings across the country often contradict other court precedents. The freedom that this ambiguity allows states to possess often determines who, truly, accesses the right to vote. The 15th, 19th, and 26th Amendments established the beginning sources of security in voting rights. Supported by the Constitution, these amendments do circumvent state legislation as supreme laws to be upheld. They affirm that no person may be denied the right to vote based on their sex, race, or age; however, the 15th Amendment was not substantially enforced for over a hundred years after ratification, and, as discussed further on in the text, is arguably not upheld effectively even today. Though the constitutional law serves as a supreme source of legislation, the states still have undermined the outcomes of the polls. While the ballot box remains equal in access to all on paper, through specific state law modifications, it has been concealed from the eyes of oppressed groups of American citizens. The Voting Rights Act was enacted in 1965 to “enforce the 15th Amendment of the Constitution”, implementing further and unilateral support towards enabling all races to experience the same voting rights and strike down any barriers implemented by the states.4

489 P.L. 110, 79 Stat. 437, 89 P.L. 110, 79 Stat. 437 December 2018 53

Yick Wo v. Hopkins (1886) was the first landmark case to emphasize the Equal Pro- tection Clause, which guarantees the equal protections of individuals under the constitutional law regardless of race, nationality, or any other factor subject to unequal treatment. In deciding whether or not non-US citizens enjoyed the benefits of the Constitution, the Supreme Court ruled that voting is ”a fundamental political right, because [it is] preserva- tive of all Rights.”5 The Court declared that it was unconstitutional for legislative policies to not be applied equally in legislation and law enforcement. In doing so, it cemented the Equal Protection Clause as a court precedent to be upheld, streamlining the next generation of voting rights legislation. Almost a hundred years later, voting rights, in relation to race, still operated under deep consideration and criticism by the courts. In 1963, Reynolds v. Sims found that the Equal Protection Clause supported the argument for proper proportional representation in voting within their district, stating that ”no less than substantially equal state legislative representation for all citizens,” was admissible.6 In this case, the democratic process was deemed “a bedrock” of the political system in America.7 Yet another landmark case, Tennessee v. Lane (2004), established a secondary precedent used in future voting litigation. The Supreme Court ruled that Congress could “enact prophylactic legislation proscribing practices that are discriminatory in effect [even] if not in intent.”8 In light of this ruling, Congress has the authority and legislative support to deem state voting laws unconstitutional for causing discrimination, even if it cannot be proved that the laws were implemented with the deliberate objective to restrict equal access to individuals of specific races, genders, abilities, or social identities. For voting litigation and constitutional protection to the right to vote, this assures congressional capacity to challenge legal choices that cause individuals to experience discrimination. Subsequently, it enables the federal government to try state restrictions that result in race, gender, or age discrimination. Tennessee v. Lane characterized what would eventually be coined as disparate impact, a term used to describe the social inequalities individuals face, even when those causing the discrimination are unaware or unintentional in the execution of such harm. When policies or legal statutes that are originally considered neutral or positive are tried in court and alleged to cause harm on a social group, whether or not the actor intended to cause harm, intention no longer matters to the ruling at-large. In the end, what matters is the resulting discrimination. Recently, however, controversy behind voting appears to be divided into two categories on each end of the spectrum, one side arguing ardently for stricter voting laws and

5Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886) 6Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964) 7Id. 8Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978 (2004) 54 Decemeber 2018 the other arguing for more lenient voting laws. Ultimately, constitutional authority remains ambiguously poised in its rights to counteract state authority with the ability to alter state regulations on elections. Speciﬁc language in the U.S. Constitution dictates that the states may determine the regulations and standardized procedures of elections; however, Congress is also granted the right to “by Law make or alter such Regulations.”9 Further deﬁnition and extension of congress’s rights, in order to unilaterally enable citizens to vote with the same processes regardless of state, is a central source of discourse in 2018 voting litigation law.

MEASURING THE WEIGHT OF THE BALLOT BOX

Since the Voting Rights Act, voting denial has surfaced as the central focus in American voting litigation, with controversies over voter ID laws and redistricting amassing debate on all political and legal fronts. Veasey v. Abbott (2016) found that Texas voter ID laws unfairly discriminated against marginalized groups, causing undue difficulty to access the right to participate in election voting. The Fifth Circuit Court ruled that the disparate impact of the voter ID law was enough to prove that its discriminatory effect was unconstitutional, asserting that “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”10 In this language, results stands out, insinuating that a practice, regardless of initial intention, that results in unfair denial to exercise civic rights is inherently unconstitutional. In this instance, the court ruled that the law did violate the Voting Rights Act due to its discriminatory restrictions on minority voters, but another example two years earlier found that another state’s voter ID law was legal and non-discriminatory in effect. In 2014, the 7th Circuit Court ruled that Wisconsin was able to uphold its voter ID laws in the case Frank v Walker.11 The ACLU alleges that the voting restriction “imposes a substantial burden on the right to vote by requiring photo identification that many voters do not have, and that many voters cannot easily obtain, in violation of the Fourteenth Amendment of the Constitution.”12 The ACLU also alleges that the strict identification requirements violate the Section 2 of the Voting Rights Act; however, despite the observed “negative impact on racial and language minorities”, Wisconsin’s voting restrictions remain intact.13

9U.S. Const. art. I, 4. § 10Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) 11Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis. 2014) 12Frank v. Walker: Fighting Voter Suppression in Wisconsin, AMERICAN CIVIL LIBERTIES UNION (2016), https://www.aclu.org/cases/frank-v-walker-ﬁghting-voter-suppression-wisconsin. 13Id. December 2018 55

The Frank v. Walker (2014) lawsuit characterizes a kaleidoscope array of complica- tions that are often associated with voting rights litigation and constitution-oriented debates. Not only was the case brought forth by the American Civil Liberties Union, originally successful in ruling that the identification law was unconstitutional, but multiple contentions disparaged the pathway for the final ruling to take place. The initial court ruling was reversed ten months after the lawsuit was filed, but it was not implemented until after the April 2015 primary. This specific trial also demonstrates several of the nuanced “compromises” evident in voting litigation that reveal a necessity for uniform legal regulations. The controversy of whether individuals incapable of obtaining an ID could submit an affidavit ballot is among them, which has since been brought to the Seventh Circuit Court for consideration. These two parallel cases, mirrored in situation yet contrasting in consequential ruling, attest to the necessity for uniform voting laws. These are vital to cement the requirements for voting and enable American citizens across all states to access the same resources and civic rights as their counterparts. Without federal standardization of voting rights access, states will continue to contradict legislation across state lines, and discriminatory disadvantages will fall on racial and language minority groups. This continued opposition is evident in many of the other cases tried across the United States debating the authenticity and constitutional basis for voting ID laws.

AREVISION THAT OPENED DOORS TO DISCRIMINATION

While the Voting Rights Act has remained implemented throughout the 21st century, voter discrimination has still pervaded the American substratum of voting legislation. All of these examples originated from state-based authority, posing controversy on a federal level primarily because the state’s jurisdiction enabled discrimination, while the Consti- tution and the Voting Rights Act did not. In Mississippi, an attempt to resurrect a dual- registration policy, initially enacted in 1892 and which disenfranchises nonwhite voters, was heavily contested and ultimately struck down.14 In 2004, Waller County in Texas began restricting accessibility for early voting registration near the historically black Prairie View AM University.15 These examples were not isolated scenarios, nor did they take place in the 1800s. Even now, the legal authority given to states to dictate voting rights appears to catalyze disenfranchisement across the country. In a 2013 Supreme Court decision, Shelby County v. Holder eradicated a segment of the Voting Rights Act of 1965, declaring Section 5 unconstitutional. The text of Section 5 indicated the unconstitutionality of “denial or abridgement of right to vote on account of

14The Journal of Mississippi History, LXXVI THE JOURNAL OF MISSISSIPPI HISTORY (2014). 15Ralph Blumenthal, 2 VOTER RIGHTS CASES, ONE GRIPPING A COLLEGE TOWN, STIR TEXAS THE NEW YORK TIMES (2008), https://www.nytimes.com/2008/05/28/us/28texas.html. 56 Decemeber 2018 race or color through voting qualifications or prerequisites; establishment of violation.”16 The language of the court’s decision purported that “jurisdictions identified by the coverage formula in Section 4(b) no longer need to seek preclearance for the new voting changes, unless they are covered by a separate court order entered under Section 3(c) of the Voting Rights Act.”17 The effect was anticipated to be null, and yet, multiple dissents were written to highlight the discriminatory results of the court’s decision. Justice Ruth Bader Ginsburg released her criticism in a dissent of the Shelby County decision, asserting, “Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22.”18 She clarified that the statute would cause a paradoxical ceasefire of lawsuits, and yet, the subsequent discrimination, albeit unno- ticed, would exponentially grow. Justice Ginsburg further commented, “If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime.”19 The commentary Justice Ginsburg provided emphasizes the court precedent set in previously addressed trials, affirming the critical importance of voting rights’ uniform adhesions to state law in judicial review. North Carolina NAACP v. McCrory (2013) struck down a series of voting restriction laws in 2016 that were enacted three years prior, citing a prevalent “intent to discriminate”. In 2013, the initial bill HB 589, which was designed to apply voter ID laws to the state’s elections, was revised; additional restrictions on registration dates, early voting periods, and pre-enrollment were appended. The additions were rendered soon after the Shelby County decision, and it was this precise application, in light of the ruling, that crystal- lized a purpose to the court. The Fourth Circuit Court of Appeals struck down the law, commenting that the bill was designed to “target African Americans with almost surgi- cal precision.” This insinuates an emphasis on the necessary “results” addressed above, echoing the precedent set in Veasey v. Abbot, declaring the constitutional requirement of non-discriminatory effects as opposed to purpose. In this instance, North Carolina NAACP v. McCrory found that the voter restriction laws generated both a discriminatory result and precipitated from discriminatory purpose.

CONGRESSIONAL AUTHORITY AND ADHERENCE TO THE ELECTION MANDATE

In 2004, the Arizona state election featured a component on the ballot, known as Arizona Proposition 200, that reconsidered several of the voting rights that Arizona citizens pre-

16Shelby Cty. v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013) 17Id. 18Id. 19Id. December 2018 57 viously enjoyed. The bill, known as the Arizona Taxpayer and Citizen Protection Act, passed successfully and was approved as an initiated state statute. The initiative required that voters present a proof of citizenship, provide a source of identification, and pass eligibility verification mandated by the state, while simultaneously tightening the restrictions on immigration law through what consisted of a felony charge in relation to voter fraud crimes. Nine years after the bill was implemented by Arizona, the United States Supreme Court overturned portions of the act, “holding that the state law’s documentary-proof-of- citizenship requirement is pre-empted by the NVRA.” In this instant, the federal government, on behalf of the National Voter Registration Act, upheld what the act maintained: “Discriminatory and unfair registration laws and procedures can have a direct and damag- ing effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” The act disparaged any resulting discrimination through voter proof documents, which caused an undue stress on minority populations who are less likely to have the required documentation. Up to of eligible African American voters do not have a form of photo identification, while only 8% of white Americans lack a photo ID.20 Because of the Supreme Court’s call for removal of the proof-of-citizenship requirement, the federal government’s authority within the scope of election regulation and congressional jurisdiction was clarified to a moderate extent. “The Elections Clause imposes on States the duty to prescribe the time, place, and manner of electing Representatives and Senators, but it confers on Congress the power to alter those regulations or supplant them altogether.” This clarification has resonated among court cases superseding the voting rights litigation of 2013, adhering to the controversies surrounding voting rights from the presidential election of 2016 and into the rhetoric of the 2018 midterm elections. This clarification has successfully enabled the Supreme Court to present a unified form of ruling on other states calling federal jurisdiction in elections into question. Ambiguity, however, as evident in the court cases tried from 2016 to 2018, still pervades. It has clearly been affirmed that federal mandates asserting clear and reasonable regulations on United States elections may contribute to a country where individuals of all states enjoy the same voting rights and benefits so that no minority group may be disenfranchised in the voting process.

20CITIZENS WITHOUT PROOF: A SURVEY OF AMERICANS’ POSSESSION OF DOCUMEN- TARY PROOF OF CITIZENSHIP AND PHOTO IDENTIFICATION, CITIZENS WITHOUT PROOF: A SURVEY OF AMERICANS’ POSSESSION OF DOCUMENTARY PROOF OF CITIZENSHIP AND PHOTO IDENTIFICATION (2006).