newjerseyprelawland-blog

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Crisis at the Texas Border: Immigration Showdown Unfolds

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

March 26, 2024

Texas has been shrouded in controversy after finding itself at the center of an immigration scandal following the enactment of “Senate Bill 4” or “SB4.” The new anti-immigration measure gives law enforcement the power to detain and deport any residents who have illegally entered the state of Texas. In reality, the bill empowers local and state police officers to round up and arrest anyone they suspect of inhabiting the state illegally. Additionally, those arrested will be deported back to entry ports along the state’s border with Mexico—regardless of whether the migrant is actually even from Mexico.

In response, the Biden Administration has severely admonished SB4 and viewed the State’s transgression as a gross breach of the limits set by the Constitution. Based on previous legal and Constitutional precedents, the federal government should be the only governing body with the power to enforce immigration law.

Currently blocked by an appeals court, the law has remained in a legal limbo of sorts after becoming the target of various lawsuits filed by the U.S. government and the ACLU. Originally, Senate Bill 4 was scheduled to take effect on March 5th. However, the lawsuits delayed this enactment. In particular, a district judge allowed for a “preliminary injunction” to prevent law enforcement from making arrests or unjustly deporting residents while the case was being heard [1].

In his 114–page decision— Judge David A. Ezra of the Western District of Texas—states that “No matter how emphatic Texas’s criticism of the federal government’s handling of immigration on the border may be to some…disagreement with the federal government’s immigration policy does not justify a violation of the Supremacy Clause” of the Constitution [2]

Subsequently, the state of Texas appealed the injunction and the appeals court sought the input of the Supreme Court. The Supreme Court of the United States failed to rule on the constitutionality of the measure and sent the case back down to the lower level appeals court. Thus, ultimately enabling the law to take structure and be implemented for a few hours before the appeals court once again blocked it by issuing an order to allow the previous injunction to stand.

Interestly enough, as the state of Texas continues to deal with various immigration conflicts, the Courts may have to account for international fallout from the rulings as well. According to an Amicus Brief filed with the 5th US Circuit Court of Appeals, Mexico warned of “substantial tension” in regards to U.S.—Mexico relations.

According to the brief: Mexico believes that “Enforcement of SB4 would inappropriately burden the uniform and predictable sovereign-to-sovereign relations between Mexico and the United States, by criminalizing the unauthorized entry of noncitizens into Texas from outside the county and creating diverging removal requirements between and among individual states and the national government…”

Attorneys told the court that the “Enforcement of SB 4 would also interfere with Mexico’s right to determine its own policies regarding entry into its territory, undermine U.S.-Mexico collaboration on a legal migration framework and border management, and hinder U.S.-Mexico trade…”

Foreign Minister—Alicia Barcena—of Mexico: has echoed the U.S. Federal Government's sentiments. According to Barcena, similar to Mexico’s own legal system, U.S. immigration issues should fall under Federal jurisdiction; therefore, the Foreign Minister regards SB4 as “deeply unconstitutional” [3].

As previously cited by Judge Ezra, Republican lawmakers in Texas appear to overwhelmingly support the immigration measure as a means to compensate for the Biden Administration's “permissive” border policies.

According to Texas solicitor general—Aaron Nielson—Senate Bill 4 is necessary because “it helps address what even the president has called a border crisis.”

Nielsen also denies that Texas is trying to appropriate the immigration enforcement capabilities under the Federal Government’s purview.

He states: “That's really not true” and instead believes that "What Texas wants to do is to be able to coordinate with the federal government" [2].

As Texas remains embroiled in political and legal woes, many are reminded of the 2012 Supreme Court decision—Arizona vs. United States. For context, Arizona attempted to create immigration laws that dealt with offenses as “state crimes.” The law required immigrants to carry their legal documents on their persons and present them to law enforcement when prompted to do so. It also gave local and state law enforcement personnel the ability to detain anyone suspected of illegally entering the country. This law left undocumented immigrants fearful of leaving their homes or driving anywhere across the state. The United States Government tried to prevent the measure from being enforced by taking the Arizona state government to federal district court. Ultimately, SCOTUS sided with the Federal government and struck down on most of the provisions enacted by the law [4].

Based on past legal precedent and cases such as Arizona V. United States, many federal prosecutors believe that the much more expansive Texas Law will eventually be deemed unconstitutional. Yet in the meantime, the back-and-forth legal drama does not reflect conducive or effective law-making and enforcement within the country.

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Anika Ponni is currently a student at Rutgers University - New Brunswick, pursuing a finance degree in the Honors Program. She hopes to attend law school upon graduation.

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[1] Sullivan, B. (2024, March 20). What to know about SB 4, the Texas immigration law in the courts now. NPR. https://www.npr.org/2024/03/20/1239651676/sb4-texas-immigration-law

[2] Healy, J. (2024, March 19). Texas’ Immigration Crackdown Recalls Arizona’s Divisive “Show Me Your Papers” Law. The New York Times. https://www.nytimes.com/2024/03/19/us/texas-arizona-immigration-law.html

[3] Cole, D. (2024, March 21). Mexico warns US court of “substantial tension” if controversial Texas immigration law takes effect | CNN Politics. CNN. https://www.cnn.com/2024/03/21/politics/mexico-warns-of-substantial-tension-with-the-us-if-federal-court-allows-controversial-texas-immigration-law-to-take-effect/index.html

[4] Arizona v. United States. (n.d.). Oyez. Retrieved March 25, 2024, from https://www.oyez.org/cases/2011/11-182

[newjerseyprelawland-blog]

The Uncertainty of a Woman’s Right to Choose

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

January 20, 2024

In recent years, especially following the Supreme Court’s decision to overturn Roe V. Wade in 2022, access to abortion has become increasingly uncertain in parts of the country. To better understand today’s political landscape in relation to abortion rights, one must examine the detrimental impact of SCOTUS’s ruling on Dobbs v. Jackson Women’s Health Organization. This case essentially nullified Americans’ constitutional right to abortion.

Despite the American legal system’s antagonistic stance on this topic, the overwhelming majority of Americans believe in the importance of having safe and equitable access to abortions. According to a survey conducted by Gallup Polls, 69% of Americans believe abortion should be legal within the first three months of pregnancy. In the aftermath of Dobbs v. Jackson Women’s Health Organization, 63% of Americans agreed that overturning Roe V. Wade would be detrimental for women’s reproductive autonomy [1].

However, as political campaigns begin to ramp up in the new year, there appears to be some confusion within the Republican party. On one hand, Donald Trump—former president and potential 2024 United States Republican presidential nominee—has triumphantly claimed responsibility for overturning Roe V. Wade.

During a Fox News town hall, Trump stated: “For 54 years they were trying to get Roe v. Wade terminated, and I did it and I'm proud to have done it” [2].

Yet, at the same time, numerous House Republicans appear to be backing away from a bill that essentially institutes a nationwide abortion ban. For context, in 2021—Michelle Steel, a California Republican—cosponsored the Life at Conception Act. The bill equates a fertilized egg to a person; therefore, granting the egg equal protections under the 14th Amendment. Ultimately, this bill aims to eliminate access to safe and legal abortions.

At the time of the Life at Conception Act’s introduction, 166 House Republicans (including Ms. Steel) signed onto the bill. Nevertheless, Democrats who controlled the House during this period, refused to bring the bill onto the floor for a vote. Additionally, Roe V. Wade was also still intact at this point in time as well. Consequently, the Life at Conception Act was merely a symbolic gesture by House Republicans to convey their opposition to abortion; since, it was an impossible measure to implement as long as Democrats controlled the House.

However, the political landscape has significantly shifted in today’s day and age. Currently, Republicans narrowly control the House and therefore can determine what bills reach the floor for a vote. Yet, in this post Dobbs v. Jackson Women’s Health Organization era, an increasing number of Republicans are hesitant to sign onto the bill. For instance, Representative Michelle Steel waited more than a year to sign onto an identical bill introduced by House Republicans in 2023. Ms. Steel just signed onto the bill in early January of 2024. Additionally, almost 36 Republicans who signed the previous bill have flip–flopped and steered clear of the more recent anti-abortion measure introduced by their colleagues. In particular, many former cosponsors such as Republican Representatives David Valadao, Mike Garcia, and Nancy Mace are avoiding the bill in bids to appeal to more voters amidst close elections and so called “purple” districts. Furthermore, Republican lawmakers are also attempting to appease more female voters in hopes of maintaining their measly control within the House of Representatives as a whole [3].

Apart from the political turmoil, overturning Roe V. Wade has directly resulted in serious repercussions for women all across the country. To name just a few salient examples: Yeniifer Alvarez-Estrada Glick died from pregnancy complications that could have been avoided had she been recommended and granted an abortion. Kate Cox was forced to cross state lines in order to have an emergency abortion after her fetus was discovered to be non-viable. Similarly, a 10-year old rape survivor was also forced to flee the state in order to have an abortion as well. Another woman was compelled to travel across the country to New York in order to have an abortion after her fetus was found to have severe skull deformities. In Tennessee, nine women are collectively suing the state for an abortion ban that jeopardized their lives, along with women across the state as a whole [4].

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Anika Ponni is currently a student at Rutgers University - New Brunswick, pursuing a finance degree in the Honors Program. She hopes to attend law school upon graduation.

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[1] Saad, L. (2023, June 14). Broader Support for Abortion Rights Continues Post-Dobbs. Gallup.com. https://news.gallup.com/poll/506759/broader-support-abortion-rights-continues-post-dobbs.aspx

[2] Ibssa, L., & Kim, S. R. (2024, January 10). Trump boasts of role ending Roe v. Wade, says abortion bans must have “concessions.” ABC News. https://abcnews.go.com/Politics/trump-boasts-role-ending-roe-wade-abortion-regulations/story?id=106280890

[3] Karni, A. (2024, January 12). With Roe Gone, Some House Republicans Back Away From National Abortion Ban. The New York Times. https://www.nytimes.com/2024/01/12/us/politics/house-republicans-abortion-ban.html

[4] Bassett, L. (2024, January 12). Republicans Need to Answer for Women’s Suffering. The Cut. https://www.thecut.com/2024/01/republicans-must-answer-for-suffering-under-abortion-bans.html

[newjerseyprelawland-blog]

Students’ Response to the Israel-Palestine War

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

October 25, 2023

Hamas's October 7th attack on Israel led to the tragic loss of over 1300 innocent Israeli civilians and initiated a long and brutal war between Israel and Palestine. Amid the ongoing conflict in the region, incendiary statements made by law students and college groups are drawing sharp criticism from a vast number of organizations and firms.

For example, New York University Law Student Bar Association's (SBA) president—Ryna Workman—published a controversial statement three days following Hamas’s attack on Israel. In the newsletter, Workman expressed their pro-Hamas perspective by declaring their “unwavering and absolute solidarity with Palestinians in their resistance against oppression towards liberation and self-determination.” They also claimed that “Israel bears full responsibility for this tremendous loss of life. This regime of state-sanctioned violence created the conditions that made resistance necessary.” Understandably, Workman’s insensitive comments drew widespread condemnation [1].

Immediately after the release of Workman’s newsletter, the SBA sent out a separate statement distancing itself from Workman’s comments. In a letter to NYU law students, the SBA stated that “The remaining members of SBA are writing to clarify that we did not write, approve, or see this message before it was published…The ‘Message from the President’ reflects their personal views and does not represent the views of SBA as an organization or any of its officers.” Moreover, the SBA also revealed that the “Board [had] voted to initiate the removal of the SBA President” [2].

In addition to losing their leadership position within the Student Bar Association, Workman also faced repercussions that affected their professional career as well. As a former summer associate at prestigious firm Winston & Strawn, Workman had been extended a full time position upon graduation.  However, following the release of Workman’s statement, their employment offer was formally rescinded by Winston & Strawn. In response to Workman’s newsletter, the firm released a statement of its own, writing that “Winston & Strawn learned that a former summer associate published certain inflammatory comments regarding Hamas’ recent terrorist attack on Israel and distributed it to the NYU Student Bar Association. These comments profoundly conflict with Winston & Strawn’s values as a firm. Accordingly, the Firm has rescinded the law student’s offer of employment.”

The firm also reiterated its position by affirming: “Winston stands in solidarity with Israel’s right to exist in peace and condemns Hamas and the violence and destruction it has ignited in the strongest terms possible. We look forward to continuing to work together to eradicate anti-Semitism in all forms and to the day when hatred, bigotry, and violence against all people have been eliminated. Our strength lies in our unity, empathy, and shared humanity” [3].

Incendiary statements by students only serve to exacerbate the already painful and complex war between Israel and Palestine. Ryna Workman is not the only student to be triggering backlash for their controversial comments. Multiple student organizations were also publicly denounced following the release of their own controversial statements.

In the days that followed Hamas’s attack, the Harvard Undergraduate Palestine Solidarity Committee, along with over 30 other student groups, issued a statement which declared that they held: “the Israeli regime entirely responsible for all unfolding violence.”

Similarly, over 20 student organizations at Columbia signed a letter that read in part: “The weight of responsibility for the war and casualties undeniably lies with the Israeli extremist government and other Western governments.”

Public condemnation was immediate. The Harvard Jewish Centre categorized the Harvard Undergraduate Palestine Solidarity Committee’s statement as “anti-semitic.” 

Three law students from the top tier institutions previously mentioned, such as Harvard and Columbia, also had their employment offers rescinded once their associations with pro-Hamas letters were revealed. Esteemed firm Davis Polk & Wardwell said the views “are in direct contravention of our firm's value system.” The firm also stated that student leaders who signed onto the statements were “no longer welcome in our firm.”

US judges and prominent law professors have also joined the conversation to condemn students who squarely placed the blame of Hamas’s attack on Israel [4].

Additionally, these statements, along with others, have inaugurated an ongoing conversation between notable CEOs and company executives who called for a “blacklist” of all the students who expressed pro-Hamas sentiments.

For instance, notable individuals like Larry Summers, who previously served as Harvard’s president and former US Treasury Secretary—along with Bill Ackman—Harvard alumnus and billionaire hedge fund manager, have urged Harvard University to release the names of students associated with the pro-Hamas statements. However, many of the aforementioned students have already been exposed after a van circulated around campus plastered with the pictures and names of protesting students [5].

The list of powerful and influential figures demanding the release of student names includes CEOs of shopping club FabFitFun, health tech startup EasyHealth, Dovehill Capital Management, Sweetgreen, Pershing Square Capital Management, etc [6].

However, despite the fierce opposition against students’ controversial claims, an argument for free speech arises. For instance, the Foundation for Individual Rights and Expression (FIRE) acknowledged the complex nature of current circumstances and highlighted how the Israel-Palestine conflict had ignited one of the most tense student free speech debates in decades.

FIRE’s director—Alex Morey—accepted that “From a legal perspective, corporations have the right to rescind job offers, private citizens can say they never hire anyone from Harvard. But Fire urges pause” and issued a foreboding warning by urging citizens to consider the question: “Do we want to live in a society where everybody has to have one orthodox view to get a job?” [4]

Republican presidential candidate and entrepreneur Vivek Ramaswamy echoed Morey’s views. Ramaswamy recognized that the students were “fools” for co-signing anti-Israel letters. However, he also pointed out that it was “not productive for companies to blacklist kids for being members of student groups that make dumb political statements on campus.” He also urged firm executives to agree with him on “the wisdom of avoiding…cancel-culture tactics” [7].

Understandably, the war between Israel and Palestine has evoked intense emotions within our society. Students have often found themselves at the forefront as they share controversial statements and express unpopular opinions regarding the ongoing conflict between Israel and Palestine. Thus, igniting an acrimonious conversation on the topic of free speech. The question that persists—should individuals be punished for expressing (as Vivek Ramaswamy categorized them) “dumb political statements?” Thus far, employers have overwhelmingly leaned towards YES–students should be held accountable for their words.

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Anika Ponni is currently a student at Rutgers University - New Brunswick, pursuing a finance degree in the Honors Program. She hopes to attend law school upon graduation.

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[1] Thakker, P. (2023, October 17). Pro-Palestine NYU Law Student Speaks Out After Job Offer Was Rescinded. The Intercept. https://theintercept.com/2023/10/16/pro-palestine-students-campus-gaza-war/

[2] A Message from the SBA | NYU School of Law. (2023, October 10). Www.law.nyu.edu. https://www.law.nyu.edu/101123-sba-message

[3] Winston. (2023, October 10). Winston & Strawn LLP on LinkedIn: Today, Winston & Strawn learned that a former summer associate published…. Linkedin.com. https://www.linkedin.com/posts/winston-%26-strawn-llp_today-winston-strawn-learned-that-a-former-activity-7117616256760905729-4ZLy?utm_source=share&utm_medium=member_desktop

[4] Wendling, M. (2023, October 18). Harvard letter: Law students who took anti-Israel stance lose job offers. BBC News. https://www.bbc.com/news/world-us-canada-67152271

[5] Tribe, M. (2023, October 11). Winston Scraps NYU Student’s Job Offer Over Israel Comments (1). News.bloomberglaw.com. https://news.bloomberglaw.com/business-and-practice/winston-scraps-nyu-law-students-job-offer-over-israel-email

[6] Egan, M. (2023, October 11). Harvard student groups issued an anti-Israel statement. CEOs want them blacklisted | CNN Business. CNN. https://www.cnn.com/2023/10/11/business/harvard-israel-hamas-ceos-students/index.html

[7] Soave, R. (2023, October 16). Vivek Ramaswamy is right to oppose the blacklisting of Harvard students. Reason.com. https://reason.com/2023/10/16/vivek-ramaswamy-cancel-culture-harvard-israel-hamas/

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From Likes To Lawsuits: How Responsible Are Social Media Platforms For Their Users?

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

October 24, 2023

Snapchat, first released in 2011, has been a staple in every teenager’s phone for nearly a decade. A fun way to interact with friends and meet new people under the guise of extensive privacy, the platform has become a communication medium that presents a low-risk alternative to communicating over more “personal” platforms, like text message or Instagram. The platform’s main calling card is the aforementioned privacy it enables, with messages disappearing after a day and screenshot notifications making it difficult to keep receipts on conversations. This is great for teenagers who want to do and say things without fear of exposure, however the lack of fear of exposure also makes it a breeding ground for much more sinister activity. In June 2021, 17 year-old Brooke Badger was found dead in her California home, victim to what seemed to be an opioid overdose. However Brooke’s mother questioned the story, seeing as Brooke was a stellar student who she didn’t think would even take drugs, much less overdose. After gaining access to her daughter’s Snapchat days later, Brooke’s mother found evidence of conversations between Brooke and a dealer regarding the purchase of Roxicet, a prescription medication containing acetaminophen and oxycodone typically prescribed for pain relief. Brooke’s fatal mistake was not realizing that the Roxicet pill she received was a fake, laced with fentanyl, a stronger prescription drug that is currently experiencing a wave of illegal, dangerous production in the United States that has led to accidental overdoses throughout the country [1]. In April 2023, relatives of more than 65 victims of situations just like Brooke’s filed suit against Snap, the parent company of Snapchat, claiming that the app facilitated the sales of the substances, and therefore should be liable for the deadly consequences [2].

One of the most influential pieces of legislation of the modern age is the famous Section 230 of the Communications Decency Act. 26 words, written in 1996, but likely to serve as precedent for technology related cases for centuries, it states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” [3]. This line is the reason why any social media platform enables its users to speak, because if kanyelover123 tweets that Taylor Swift’s breath stinks, Swift cannot sue Twitter for defamation of character, only the bitter tweeter. Section 230 has long protected social media platforms from having to worry about censoring every individual user for fear of a lawsuit, however there still remain limits to the protection that Section 230 provides, limits that the class action lawsuit is attempting to exploit. Companies have to act responsibly and in good faith to prevent illegal activity to take place in order to have immunity from liability for any illegal activity that may take place anyways, and Matthew Bergman, the lead attorney for the plaintiffs, argues that Snapchat has not done so.

The merits of the Snapchat case remain to be seen, but the suit does bring an important issue into the public eye, the amount of liability that social media platforms should have, and the extent of their responsibility to prevent wrongdoing on an ethical level. Earlier this year, Tik Tok faced questioning from the US Congress, officially due to concerns over the privacy of user data, but following years of controversy over the sometimes deadly “challenges” that can originate from the app [4]. Every so often there seems to be a new case of a child dead or seriously injured from something they did because of Tik Tok, whether it be purposely attempting to black out through self-strangulation [5] or taking large amounts of allergy medicine Benadryl [6]. The conversation following these events splits into a valid ethical debate, is it Tik Tok’s fault for letting these terrible ideas be spread through their networks, or at a certain point is it on people to be smart enough to not overdose on Benadryl? In the legal world the balance is struck through the concept of negligence, where it is the victim’s responsibility to take care of themself until it can be proven that there was a degree to which the other party acted irresponsibly. This should be fair since people should generally be smart enough to avoid harm, and it is impossible to ask any social media platform to make sure that no individual out of its hundreds of millions of users does something ridiculous, but it often ends up with a lot of tragedy and no one that can be blamed for it. It may be that that’s how life is, and sometimes tragedy is just tragedy, but it is a hard pill to swallow and difficult to spark a conversation that we should be protecting those who don’t know any better. The issue will rage on, but it remains that every time a company is protected by Section 230 or similar liability laws, more people get hurt.

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[1] “Fentanyl Drugfacts.” National Institutes of Health, U.S. Department of Health and Human Services, 3 Mar. 2023, nida.nih.gov/publications/drugfacts/fentanyl.

[2] Buller, Robin. “Their Kids Died after Buying Drugs on Snapchat. Now the Parents Are Suing.” The Guardian, Guardian News and Media, 18 Oct. 2023, www.theguardian.com/technology/2023/oct/18/snapchat-sued-overdose-deaths.

[3] Ortutay, Barbara. “What You Should Know about Section 230, the Rule That Shaped Today’s Internet.” PBS, 21 Feb. 2023, www.pbs.org/newshour/politics/what-you-should-know-about-section-230-the-rule-that-shaped-todays-internet.

[4] Paul, Kari, and Johana Bhuiyan. “Key Takeaways from TikTok Hearing in Congress – and The Uncertain Road Ahead.” The Guardian, Guardian News and Media, 23 Mar. 2023, www.theguardian.com/technology/2023/mar/23/key-takeaways-tiktok-hearing-congress-shou-zi-chew.

[5] Carville, Olivia. “‘Blackout Challenge’ on TikTok Is Luring Young Kids to Death.” Bloomberg.Com, Bloomberg, 30 Nov. 2022, www.bloomberg.com/news/features/2022-11-30/is-tiktok-responsible-if-kids-die-doing-dangerous-viral-challenges.

[6] Watson, Michelle, and Carma Hassan. “A 13-Year-Old Died in Ohio after Participating in a Benadryl Tiktok ‘Challenge.’” CNN, Cable News Network, 19 Apr. 2023, www.cnn.com/2023/04/18/us/benadryl-tiktok-challenge-teen-death-wellness/index.html.

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The Right to Copy Copyrights: Entering the Public Domain

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

October 1, 2023

In April 2021, Florence Welch of indie rock band Florence and the Machine announced plans to debut a Broadway adaptation of the American classic novel The Great Gatsby, leading to great anticipation for a fresh take on a seminal social commentary on the American dream and the aristocracy. And just two months earlier, plans to make an animated feature film were announced by DNeg Feature Animation. And a month before that, in January 2021, a prequel novel titled Nick was published by Michael Farris Smith, intended to tell the story of Gatsby narrator Nick Carroway. [1] So did pandemic reading remind everyone of their high school English novel? Not quite. Having been published in 1925, 2021 marked The Great Gatbsy’s 96th birthday, and the expiration of the 95 years US intellectual property law affords copyrighted works protection, meaning that the novel entered the public domain, a concept that reflects the true spirit of property law and presents interesting dilemmas surrounding the field as a whole.

T[1] he public domain is a rather straightforward term, referring to any work that for whatever reason lacks copyright protection. This typically occurs either when the work is ineligible for a copyright, or, in the topic at hand, the copyright has expired. Despite being designed to protect the rights of creators, there has always been a temporary aspect to said protection, and US law has always included guidance on how long it lasts. The regulations have changed throughout the years and remain complex, but the 95 years of protection is the most relevant in 2023, with all works published prior to 1928 currently available for adaptation, quotation, and free usage [2]. Newer legislation has declared any works published in 2002 and later protected for 70 years after the death of the author [3], more in spirit of the general idea of copyright expiry: that because creators do not last forever, their created works cannot be considered theirs forever. So once copyright expires, “writers and artists can mine the characters and plots of a work for their own purposes without having to ask permission or pay a fee” [4]. However the concept of usage under public domain, especially following expiry, is not as straightforward as it seems.

To understand what one can do with non-copyrighted works, it’s important to first understand what one can’t do with copyrighted ones, and why. Copyright law exists to motivate creatives to create things by promising exclusivity, a right to what one has created. People are legally barred from copying whatever one has made, enabling one to build a reputation and earn money. Of course direct copies are not the only things banned, if a singer writes a hit song and the next day someone decides to change one word and claim it as their own creation, it wouldn’t take a particularly good lawyer to block this from happening. This is easier to understand with concepts like music or writing, as it is simple to quantify the similarities between two works. However, it gets trickier with more abstract things like characters. West Virginia University School of Law professor S. Sean Tu explained in an interview that

“There's something called the Scène à Faire doctrine, which means that there are stock characters present in every story, like the comic relief character who's a bumbling buffoon, right? That's fair game to use, as long as you don't describe him or her in enough terms that breathes life into the character itself. If you've got a copyright on Harry Potter, does that mean that all boy wizards are copyrighted, or all stories with a wizard in it? No. But the closer you get to a boy wizard who fights an evil wizard that has seven lives, that looks a little bit closer. And if that boy wizard goes to Hogwarts, okay, that clearly is the expression that's protected." [5]

So when a work is copyrighted, the very core of the original idea is under protection, meaning any further usage of this has to come with the express approval of the copyright holder, typically for a fee. In order to produce the 2006 film The Da Vinci Code based on the 2003 novel of the same name, Columbia Studios paid author Dan Brown $6 million for the film rights [6]. The film was an undeniable financial success, grossing $760 million worldwide, and Dan Brown was appropriately credited for his role in its creation, even being credited as an executive producer on the film [7]. Creative expression was enabled, the proper people got their compensation, and everyone won, a perfect example of the spirit of copyright law. But just as important as protecting copyrighted works is protecting that which is not copyrighted. If everything was copyrighted forever, it would be difficult to create anything new without the argument that it was influenced to some degree by an existing idea or concept. Literary critic Northrop Frye articulates this well, quoted as saying that “Poetry can only be made out of other poems, novels out of other novels.”

Therefore, people are allowed and encouraged to put out new ideas without having to worry about infringing on a concept from ages ago they’ve never heard of, or even were subconsciously inspired by.

In Law and Literature, legal scholar and former federal judge Richard A Posner writes that under the test of “substantial similarity” that many courts use to determine copyright infringement,

“Romeo and Juliet itself would have infringed Arthur Brooke’s play The Tragicall Historye of Romeo and Juliet, published in 1562, which in turn would have infringed several earlier Romeo and Juliets, all of which might have infringed Ovid’s story of Pyramus and Thisbe—which in A Midsummer Night’s Dream Shakespeare staged as a play within the play: still another infringement of Ovid’s ‘copyright.’” [8]

This is an extreme example, but shows the extremities that the law could be used for if copyright law were allowed to run amok.  Tomas Lipinski, professor in the University of Wisconsin-Milwaukee School of Information Studies, states that “Copyrights expire because a copyright is a limited monopoly under the law…The purpose of copyright is to benefit society, not reward authors alone” [5]. Besides stimulating creativity, the limited nature of copyrights increases accessibility to historical works, and minimizes the possibility of impossibly hard legal dilemmas. As previously mentioned, in the year 2023 all works published prior to 1928 have entered the public domain. However there are still many, many pieces of historically valuable creative work that were created post-1928, and because of the age of some of these pieces, they are covered by copyright but have no ascertainable copyright owner, making them what is considered “orphan works”. This is especially relevant to the case of film preservation, where copies of newsreels, documentaries, instructional films, and even some Hollywood studio productions, are being lost to the winds of time because they cannot be digitized due to copyright infringement, and there is no way of finding out who actually holds the copyright [9].

The public domain is just as important a concept to copyright law as copyright itself is. So by making copyrights temporary, it keeps the protections it offers in check and ensures that no one has the ability to abuse it. There’s no perfect amount of maximum time to set for copyrights, but striking the balance between safeguarding the author’s work and recognizing when the work culturally no longer belongs to the author is vital, and in some cases it is even essential to recognize that the work is needed for the betterment of the public. Because of the extremely long lengths of copyright protection (currently life plus 70 years for natural authors, and 95 years from publication for works of corporate authorship), it is highly unlikely that one will see any works from one’s lifetime enter the public domain, creating extra costs for libraries, educational facilities, and creatives, all for copyrights that no longer benefit anyone in particular. It’s an interesting debate more philosophical than objective, but one that should be guiding policy making for the coming future.

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[1] Dolan, Lindsey. “‘The Great Gatsby’ Entered the Public Domain a Year Ago - Here’s How Creators Are Reimagining It.” Bookstr, 10 Apr. 2022, bookstr.com/article/the-great-gatsby-entered-the-public-domain-a-year-ago-heres-how-creators-are-reimagining-it/

[2] “The Public Domain.” The Public Domain | UC Copyright, University of California, copyright.universityofcalifornia.edu/use/public-domain.html

[3] “Libguides: Copyright Services: Copyright Term and the Public Domain.” Copyright Term and the Public Domain - Copyright Services - LibGuides at Cornell University, Cornell University, guides.library.cornell.edu/copyright/publicdomain.

[4] Williams, John. “The ‘Great Gatsby’ Glut .” The New York Times, The New York Times, 14 Jan. 2021, www.nytimes.com/2021/01/14/books/the-great-gatsby-public-domain.html.

[5] Kiger, Patrick J. “What Does It Mean When a Book, Movie or Song Enters the Public Domain?” HowStuffWorks, HowStuffWorks, 18 Jan. 2023, people.howstuffworks.com/what-does-public-domain-mean.htm.

[6] Getlin, Josh. “As Film Nears, Publisher Goes Into ‘Da Vinci’ Mode.” Los Angeles Times, Los Angeles Times, 3 Apr. 2006, www.latimes.com/archives/la-xpm-2006-mar-14-et-davinci14-story.html.

[7] “Dan Brown | Writer, Producer, Actor.” IMDb, IMDb.com, www.imdb.com/name/nm1467010/.

[8] Posner, Richard A. “Copyright, Plagiarism, and Creativity.” Law and Literature, 3rd ed., Harvard University Press, Cambridge, MA, 2009, pp. 527.

[9] “Why the Public Domain Matters.” Center for the Study of the Public Domain, Duke Law, web.law.duke.edu/cspd/publicdomainday/2019/why/.

Image from https://copyright.universityofcalifornia.edu/use/public-domain.html#:~:text=No%20permission%20is%20needed%20to,and%20can%20be%20quoted%20extensively

[newjerseyprelawland-blog]

DC's Own NYSE: The Shady World Of Congressional Stock Trading

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

September 13, 2023

On January 24th, 2020, before the average American knew what a pandemic was, the United States Senate received a private briefing on the dangers of the then early-stage coronavirus from the soon-to-be-famous Anthony Fauci of the National Institute of Allergy and Infectious Diseases. That same day, Senator Kelly Loeffler of Georgia (R) began selling dozens of stock holdings, totalling millions in value, trades that her household would continue to make throughout February. On average, the 15 stocks that Loeffler offloaded, all from companies soon to be vulnerable to the pandemic, lost a third of their value between then and March 2020, when COVID-19 became a more public threat [1] [2]. Naturally, when The Daily Beast published a report detailing this series of events, the American public was less than pleased. Loeffler had various defenses for her actions, claiming that the shares were owned by her husband Jeffrey Sprecher, chairman of the New York Stock Exchange, (later admitting that most were jointly owned), and later tweeting that third-party advisors handled her investments without her or her husband’s knowledge [3]. This, along with several other Senators who engaged in similarly dubious trades, resulted in a large-scale investigation by the Senate Ethics Committee on allegations of insider trading, allegations that were dismissed on June 16, 2020 [4].

Loeffler was by no means an isolated incident. Senators and virtually anyone with a high level role in government, being privy to sensitive information on a daily basis, have had questionable investments frequently come into scrutiny. The ethical troubles of government employees being able to trade goes beyond just insider trading, there are clear paths to conflicts of interest that could compromise decision making capabilities. In 2008, then-Speaker of the House Nancy Pelosi (D) received an invitation to participate in an IPO for Visa, purchasing 5,000 shares of Visa at the initial price of $44 dollars. Two days later it was trading at $64, giving the Pelosis a hefty $100,000 profit. At the same time Pelosi received this invitation, there was a piece of legislation that would harm the credit card company floating around the House. It never reached the floor for a vote, and was only passed two years later after it initiated in the Senate [5]. This activity was not made public until a report by CBS in 2011, and the outrage that followed lead to the passing of the STOCK Act of 2012, which formally criminalized lawmakers acting on private information for trading and increased mandatory financial disclosures and their public availability, and yet even these stringent guidelines were quietly scaled back in 2013, making it near impossible to actually locate this information to keep politicians in check [6]. Reports show that 78 members of Congress have violated the STOCK Act between 2012 and 2023, and after making excuses “including ignorance of the law, clerical errors, and mistakes by an accountant”, are typically only given a fine around $200, a slap on the wrist considering the potential severity of their actions [7].

Insider trading laws exist to provide equity among investors, to make sure that no one has an unfair advantage over another. In a Congress where the majority of members are millionaires, and typically double or even triple their net worth during their years of service [8], it’s hard to argue that it’s an entirely fair fight against the average American. Already on a hefty salary, and with the very simple opportunity to expand their wealth during their tenure, trading while in office is a slippery slope to outright corruption. A company with more malicious intent than Visa could easily promise representatives access to beneficial trades in exchange for their voting support, and with the difficulty of proving a causal relationship between trades and votes it would be incredibly difficult for anyone to say no. Debates over how to handle this issue come and go, with the public largely forgetting about the issue after it inevitably circles back to the fact that the only people that can regulate politicians are the politicians themselves. There have been movements to ban congressmen from trading altogether, such as the recently proposed Ban Congressional Stock Trading Act spearheaded by Senators Jon Ossoff of Georgia (D) and Mark Kelly of Arizona (D) [9]. But similar bills in the past have failed to gain bipartisan traction, and still leave unanswered questions of the specifics of banning trading. Would it be fair to extend this ban to family members who would likely just be told the relevant sensitive information? How much extended family would be included in this? By this logic close friends would also have to be banned, and ignoring the impossibility of defining a close friend, at what point does this interfere with the free market? The law is a specific endeavor, and finding a logical and ethical solution that can be written down is extremely difficult, especially when those deciding the specifics are the ones directly harmed by the regulations. It’s unclear what a solution to these issues would look like, and what influence citizens could ever have besides being upset. Perhaps it’s a necessary evil in a democratic republic, but at the very least transparency and awareness can do a lot to keep any seedling of corruption out of the country.

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[1] Markay, Lachlan, et al. “Sen. Kelly Loeffler Dumped Millions in Stock after Coronavirus Briefing.” The Daily Beast, The Daily Beast Company, 20 Mar. 2020, www.thedailybeast.com/sen-kelly-loeffler-dumped-millions-in-stock-after-coronavirus-briefing. 

[2] Lowrey, Annie. “An Invitation to Corruption.” The Atlantic, Atlantic Media Company, 1 Apr. 2020, www.theatlantic.com/ideas/archive/2020/03/congress-insider-trading-problem/608488/. 

[3] Loeffler, Kelly [@SenatorLoeffler]. “This is a ridiculous and baseless attack. I do not make investment decisions for my portfolio. Investment decisions are made by multiple third-party advisors without my or my husband's knowledge or involvement.” Twitter, 20 Mar 2020, https://x.com/SenatorLoeffler/status/1240856941435502592?s=20

[4] Levine, Marianne. “Senate Ethics Committee Drops Probe of Loeffler Stock Trades.” POLITICO, www.politico.com/news/2020/06/16/senate-ethics-committee-drops-probe-loeffler-stock-trades-323795.

[5] Condon, Stephanie. “New Details on Visa’s Attempt to Influence Pelosi.” CBS News, CBS Interactive, 15 Nov. 2011, www.cbsnews.com/news/new-details-on-visas-attempt-to-influence-pelosi/. 

[6] Keith, Tamara. “How Congress Quietly Overhauled Its Insider-Trading Law.” NPR, NPR, 16 Apr. 2013, www.npr.org/sections/itsallpolitics/2013/04/16/177496734/how-congress-quietly-overhauled-its-insider-trading-law. 

[7] Levinthal, Dave. “78 Members of Congress Have Violated a Law Designed to Prevent Insider Trading and Stop Conflicts-of-Interest.” Business Insider, Business Insider, www.businessinsider.com/congress-stock-act-violations-senate-house-trading-2021-9#sen-dianne-feinstein-a-democrat-from-california-1.

[8] Evers-Hillstrom, Karl. “Majority of Lawmakers in 116th Congress Are Millionaires.” OpenSecrets News, 19 Oct. 2022, www.opensecrets.org/news/2020/04/majority-of-lawmakers-millionaires/. 

[9] “Sens. Ossoff, Kelly Introduce Bill Banning Stock Trading by Members of Congress.” U.S. Senator for Georgia Jon Ossoff, 12 Sept. 2023, www.ossoff.senate.gov/press-releases/sens-ossoff-kelly-introduce-bill-banning-stock-trading-by-members-of-congress-2/. 

[newjerseyprelawland-blog]

Equal Launchpad? The Discrimination Allegations Rocking SpaceX

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

August 27, 2023

With all the controversy surrounding Elon Musk’s ventures into the website formerly known as Twitter, one almost forgets that he also runs spacecraft manufacturer and designer SpaceX. But the South African entrepreneur has had his hands full recently, with SpaceX being named in a lawsuit by the Department of Justice on August 24th, alleging discrimination in its hiring policies over claims that the company has unfair hiring practices with regards to asylees and refugees [1]. In United States of America v. SPACE EXPLORATION TECHNOLOGIES CORP. d/b/a SPACEX, the DOJ cites various examples of violating the Immigration and Nationality Act, a seminal piece of legislation from 1952 that governs all things immigration and citizenship in the United States. The complaint states that “online postings and statements by [Musk] and other SpaceX officials and recruiters… discouraged asylees and refugees from applying to the company by wrongly stating that SpaceX can only hire U.S. citizens and lawful permanent residents” [2].

            Seeking asylum and refugee status are some of the most important concepts in international law, legally protecting the rights of citizens being unfairly persecuted by their own governments, and allowing them to migrate to other countries for their own safety. The process of seeking asylum and refugee status (slightly different concepts that will be used interchangeably for the purposes of this article) in the United States is rather complex and in need of reform, but the country houses a significant amount of these persons, as the U.S. has welcomed more than three million refugees since 1975 [3] and averaging about eighteen thousand asylum seekers entering the country yearly since 1990 [4]. However, neither people granted asylum or refugees are eligible to receive citizenship or a green card for at least a year after entering the country, and this immigratory gray area is what SpaceX has been accused of discriminating against. It is perfectly legal to work in the United States while awaiting a green card, and the DOJ reference 8 U.S.C. § 1158(c)(l) and Section 7.3 (Refugees and Asylees) of the U.S. Citizenship and Immigration Services Handbook for Employers as argument for this assertion.

And yet Musk alone was cited to have claimed that the company was not allowed to hire employees that did not have a green card on multiple occasions, both on Twitter and in video tapings of interviews. Furthermore, SpaceX’s own hiring records show multiple instances of applicants being rejected due to their lack of US citizenship, including a case of “an asylee who had more than nine years of relevant engineering experience and had graduated from Georgia Tech University” being rejected by a recruiter using the code “"not authorized to work/ITAR ineligible". Another case involved a job applicant rejected by a recruiter using the more neutral code "doesn't meet preferred qualification," while a hiring manager listed the reason as, "not U.S. citizen or green card." But the most concerning statistic of all? Out of more than 10,000 hires in between September 2018 and May 2022, SpaceX hired only one individual who was an asylee and identified as such in his application, merely four months after the company was notified that they were under investigation by the  Immigrant and Employee Rights Section (IER) in 2020.

The IER’s investigation concluded in November 2022 after delays caused by SpaceX’s drawn out submitting of key records, and “found reasonable cause to believe that SpaceX had engaged in a pattern or practice of unfair immigration-related employment practices in violation of 8 U.S.C. § 1324b(a)(l)(B).”, leading to the DOJ’s lawsuit. Lawyers and judges will decide on the merits of the case, but the publicity that has stemmed from the lawsuit, not to mention what will be said if the courts rule in the DOJ’s favor, will do nothing but hurt the SpaceX reputation already faltering due to Musks’ other ventures.  A new bipartisan swing-state poll from Global Strategy Groups showed 82 percent of voters marking that they “believe the immigration system is broken” [5], indicating that immigration policy is an extremely relevant issue in current politics. The United States has always been a country founded on immigrants, but the modern political landscape now more than ever is focused on reform, and takes issues such as discrimination more seriously. In this sense SpaceX has already lost from this case, with the company surely being forced to publically reevaluate their hiring practices regardless of the eventual verdict.

______________________________________________________________

[1] Davenport, Christian. “Justice Department Accuses Spacex of Hiring Bias against Refugees.” The Washington Post, WP Company, 25 Aug. 2023, www.washingtonpost.com/technology/2023/08/24/spacex-hiring-elon-musk-lawsuit/.

[2] United States of America v. SPACE EXPLORATION TECHNOLOGIES CORP. d/b/a SPACEX

[3] “Refugees in America: USA FOR UNHCR.” USA for UNHCR. The Un Refugee Agency, www.unrefugees.org/refugee-facts/usa/. Accessed 27 Aug. 2023.

[4] “How Many People Seek Asylum in the US?” USAFacts, USAFacts, 13 July 2023, usafacts.org/articles/how-many-people-seek-asylum-in-the-us/.

[5] “Biden Is Ignoring Immigration Issues, Voters Say in Poll.” POLITICO, www.politico.com/news/2023/04/19/immigration-poll-title-42-biden-00092684#:~:text=More%20than%20eight%2Din%2D10%20voters%20in%20the%20poll%20%E2%80%94,as%20children%2C%20and%20Temporary%20Protected. Accessed 27 Aug. 2023.

[newjerseyprelawland-blog]

Legal Transformations in Illinois

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

August 10, 2023

In late July, Illinois Governor J.B. Pritzker signed over 150 bills into law. However, one new law in particular is garnering a lot of attention from all across the country. Starting January of 2024, HB 3751 will allow non-citizens to become police officers. After receiving backlash from conservatives, Pritzker defended the bill by clarifying eligibility. According to Pritzker, only individuals legally allowed to work in the U.S. and also legally own a firearm could qualify to become police officers.

During a press conference, the Illinois Governor explained the new bill, stating that “We have the ability for people who are legally here in this country, and permanent residents and DACA residents, to apply for jobs as police officers” [1].

However, Republicans—such as Congresswomen Mary Miller and Lauren Boebert—were among those to condemn the bill, arguing that the legislation would allow individuals who entered the U.S. illegally to apply for positions as police officers.

Illinois Representative Mary Miller—a Republican—tweeted that “No sane state would allow foreign nationals to arrest their citizens, this is madness!” [2]

An exasperated Pritzker fired back at critics with: “I am tired of the right wing twisting things,” he said. “They put it on Facebook, they tell lies. There are people out there that think we’re just allowing anybody to become a police officer. That’s just not accurate” [1].

Republican Senator Chapin Rose attacked the bill by calling it a “fundamentally bad idea.”

Currently, federal laws prohibit non-U.S. citizens from becoming law enforcement officers.

Groups like the The Fraternal Order of Police (FOP) have also expressed their outrage with Pritzker’s new law. In a statement, FOP said: “What message does this legislation send when it allows people who do not have legal status to become the enforcers of our laws?" It was called “...a potential crisis of confidence in law enforcement at a time when…officers need all the public confidence they can get.”

On the other hand, Democratic lawmaker Barbara Hernandez argues that the bill merely stems from already existing norms. For instance, a 2021 federal ruling allowed certain undocumented individuals to work as health care and military service members [2].

The bill was passed in Illinois as a result of statewide police shortages. Thus, in hopes of recruiting more law enforcement personnel, lawmakers have relaxed eligibility requirements.

Former Chicago mayoral candidate Dr. Willie Wilson has also threatened to take any action necessary in order to have the new law repealed. Having already spoken to his attorneys, Wilson is ready for a showdown in court come January 2024, if the bill is still in place [3].

In addition to expanding candidate pools for law enforcement, Governor J.B. Pritzker has also made headlines for recent prison reform measures that are simultaneously taking effect in January 2024. The new law seeks to change Illinois’s current supervised release system. Specifically, it will address the issue of how over 25% of individuals released from prison in Illinois will find themselves incarcerated within three years of their release. Primarily, this is not because of repeat offenses. Rather, it is often due to non-criminal technical infractions, such as failing to check-in with a probation officer. 

The new bill will also require that drug tests for parolees can only be ordered if there is “reasonable suspicion of illicit drug use and the basis of that suspicion is documented in the Department of Corrections' case management system.” Additionally, if the offender adheres to all other terms of their release, such as abstaining from drug use and  refraining from possessing a firearm, “the Prisoner Review Board ‘shall,’ rather than ‘may,’ reduce the length of the supervision by 90 days if the offender earns a high school diploma, bachelor's degree, career certificate or vocational technical certificate while on supervised release” [4]. Thus, the new measure effectively allows parolees to regain control over their lives by allowing the state supervised release system to function like it was initially intended—as a support system for formerly incarcerated individuals transitioning back into society.

In contrast to HB 3751, the supervised release reform bill has received much more favorable attention. Pritzker’ received activist and rapper Meek Mill’s seal of approval, who stood alongside the Governor during the bill signing. Meek Mill—a former prison inmate and parolee—has become a beacon for criminal justice reform through the REFORM Alliance, a foundation he helped co-found [5].

The true ramifications of these bills on the lives of Illinois residents still remains uncertain, further insights will only be known in January 2024—when these laws are slated to go into effect.

______________________________________________________________

[1] Pritzker defends Illinois bill that allows non-citizens to become police officers. (2023, July

31). NBC Chicago.

s-non-citizens-to-become-police-officers/3197709/

[2] Halon, Y. (2023, August 1). Illinois Gov. Pritzker allows non-US citizens to become police officers with new law: “Fundamentally bad idea.” New York Post. https://nypost.com/2023/08/01/illinois-gov-pritzker-allows-non-us-citizens-to-become-police-officers-with-new-law-fundamentally-bad-idea/

[3] Schneider, S. (2023, July 31). New Illinois law allows non-citizens to become police officers.

FOX 32 Chicago.

[4] Hancock, P. (2023, July 28). Gov. Pritzker signs bill overhauling mandatory supervised release. ABC7 Chicago. https://abc7chicago.com/illinois-new-laws-jb-pritzker-supervised-release-bill/13564563/

[5] Clark, J. (2023, July 28). Pritzker signs law reforming Illinois parole, mandatory supervised release. MyStateline.com. https://www.mystateline.com/news/local-news/pritzker-signs-law-reforming-illinois-parole-mandatory-supervised-release/

[newjerseyprelawland-blog]

Taco Bell Bombshell: One Man's Fight Against Serving Sizes

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

August 10, 2023

If you’ve ever ordered fast food with any sort of consistency, you’ll likely have had some issue with the serving sizes. Although employees are trained on exactly how much of any given ingredient to give each customer for any given meal, human error understandably leads to inconsistencies, and sometimes one is simply dissatisfied with the often meager amount of food on one’s plate. New York resident Frank Siragusa took this dissatisfaction to a new level, claiming in New York Federal Court that Taco Bell has engaged in false advertising after a Mexican Pizza he ordered in September 2022 contained “ approximately half of the beef and bean filling that he expected” [1].

In a class action lawsuit filed on July 31st, Siragusa and his lawyers attack Taco Bell about various items on their menu, namely the “Crunchwrap Supreme”, “Grande Crunchwrap®”, Vegan Crunchwrap®, “Veggie Mexican Pizza”, and the fateful “Mexican Pizza”, that have an alleged disconnect between actual serving size and serving size advertised online and in stores. The complaint cites various photos from real customers found off Reddit and YouTube to argue that Taco Bell repeatedly misrepresents their products. If Siragusa had known the amount of food that was really present in the Mexican Pizza, perhaps he would not have purchased said item, meaning that Taco Bell made financial gain off his misfortune. Siragusa requested $5 million in damages to be split among the class, and the case remains to be given a court date.

While a rather comical story on the surface, Siragusa and similar complaints may have an effect on the way food companies are allowed to represent their product going forward. Siragusa himself has two other pending false advertising lawsuits against Wendy’s and McDonald’s for similar issues, and had yet another complaint against Burger King dismissed last year [2]. Partially just a man with a vendetta and a little too much time on his hands, but also indicative of the general discontent people have with food advertising. The Federal Trade Commission (FTC) is in charge of regulating advertising, and for the most part there is a rather strict hand on what can and cannot be said to promote a product. An advertisement cannot have a “false or misleading label” under the Federal Food, Drug, and Cosmetic Act, and there are even standards as to the fill of a container [3][4]. In 2019 Kellogg settled for $20 million after a class action lawsuit claimed it advertised cereal containing added sugars as “healthy and nutritious” [5]. However the Kellog case was more the exception than the rule, as most class actions of the sort get dismissed as frivolous due to their often pedantic nature. Nonetheless, the publicity these sorts of cases get lead to a snowball of similar lawsuits, leading to more headaches for corporations and more focus on risk aversion on all levels. In a way it's an expression of democracy, and ordinary citizens exercising their right to seek justice even against these massive corporations. And on the off chance that Siragusa’s claims get traction, it could lead to the most costly Mexican Pizza ever prepared.

______________________________________________________________

[1] New York Supreme Court. Siragusa v. Taco Bell Corp. 31 July 2023.

[2] Stempel, Jonathan. “Taco Bell Is Sued for False Advertising of Crunchwraps, Mexican Pizzas.” Reuters, 31 July 2023, www.reuters.com/legal/taco-bell-is-sued-false-advertising-crunchwraps-mexican-pizzas-2023-07-31/?taid=64c805e14c0e53000146ab49&utm_campaign=trueAnthem%3A%2BTrending%2BContent&utm_medium=trueAnthem&utm_source=twitter. 

[3] 21 U.S.C 343a

[4] 21 U.S.C 343h

[5] Devenyns, Jessi. “Kellogg Agrees to $20m Settlement of ‘healthy’ Sugary Cereal Lawsuit.” Food Dive, 25 Oct. 2019, www.fooddive.com/news/kellogg-agrees-to-20m-settlement-of-healthy-sugary-cereal-lawsuit/565796/. 

[newjerseyprelawland-blog]

The High Price For Making Cheap Clothing: The SHEIN Lawsuit Explained

By Gregory Martinez,  Rutgers University–New Brunswick  Class of 2026

July 16, 2023

SHEIN is known, somewhat notoriously, as a platform to get dirt cheap clothes of varying quality. The face of the fast fashion industry, the Chinese based company has long been controversial for its questionable manufacturing practices and the impact it, like all fast fashion brands, has on the environment [1]. Investigative journalism since the company rose to prominence has consistently shown abysmal working conditions in SHEIN factories, from financial misdeeds like workers working without contracts and sometimes not being paid, to safety violations like 17 hour shifts and lack of emergency exits. In addition, the rapid-fire pace in which SHEIN produces its clothes, a staple of its business model that allows it to mass produce products shipped globally, is completely unsustainable and results in unsafe levels of carbon emissions. Despite these controversies business continued as usual, with many young Americans continuing to buy from the brand, however a new challenge has arised as the company was accused of violating the federal anti-racketeering act [2], with these allegations tarnishing the company’s already bleak reputation.

Three artists — Krista Perry, Larissa Martinez and Jay Baron — allege Shein made exact copies of their work and used them on clothing designs for profit. In an official complaint filed on July 11th, the three artists cite various examples of their artwork and designs being used on SHEIN products without their authorization, with stolen ideas being used on wall art and overalls. This is not the first time SHEIN has faced heat for stealing designs, with small business owners having spoken out about similar experiences for years [3]. However the issue with all of these cases has been the thorny world of copyright law when it comes to any form of art and design. Lawyer and journalist Julie Zerbo explained in an interview with NPR that “the law doesn't allow companies to copyright ‘useful things, at least not in their entirety.’” A designer cannot copyright an article of clothing that serves a basic function, such as a sweater, just because they happen to make said article of clothing. What they can copyright is “the creative aspects of their work that make it different from the norm”, a rather vague concept that is difficult to defend in a court of law. For example, if one designs a shirt with a picture of a flower on it, the shirt would presumably not be protected by copyright, but the picture would be. However if someone else were to use the same photo, but with the colors of the flower inverted, that person could argue that the design is different enough to not violate the copyright, despite it looking like the same flower. Because of these frustrating defenses most legal attempts to stop design stealing goes in vain, however the severity of the federal charges brought forth by the RICO allegations could prove a hefty opponent for SHEIN’s lawyers.

The Racketeer Influenced and Corrupt Organizations Act (RICO) is a section of the penal code most well known for its usage against organized crime. Racketeering is an umbrella term used to describe crimes committed in business dealings, and this latest lawsuit aims to convict SHEIN because of “egregious copyright violations”. The filing stated that “Shein has grown rich by committing individual infringements over and over again, as part of a long and continuous pattern of racketeering, which shows no sign of abating,” and “It is not an exaggeration to suggest that Shein’s pattern of misconduct involves commission of new copyright and trademark infringements every day” [4]. Perry, Martinez, and Baron aim to use the grandeur of SHEIN’s activity to finally cripple the company, and the outcome is far from clear.

______________________________________________________________ [1] https://time.com/6247732/shein-climate-change-labor-fashion/ [2] https://www.npr.org/2023/07/15/1187852963/shein-rico-racketeering-lawsuit [3] https://www.npr.org/2021/07/20/1018381462/why-indie-brands-are-at-war-with-shein-and-other-fast-fash ion-companies [4] https://time.com/6295035/shein-lawsuit-copyright-infringement/

[newjerseyprelawland-blog]

Caught in the Frame: The Legal Dilemma of Paparazzi Photography

By Gregory Martinez, Rutgers University–New Brunswick Class of 2026

July 4, 2023

A fixation on the rich and famous has been a staple of society since the beginning of the television age, and with this admiration has come an insatiable appetite for details about the personal lives of celebrities. Ordinary people are fascinated by the idea of these glamorous people going about the minute parts of life like picking up groceries or getting out of a car, and tabloid media pounced on this market. Media outlets such as People and TMZ make their living on essentially following these celebrities around and reporting their every word, and a large part of their content comes from the notorious paparazzi photography industry. Typically freelance workers who sell their photos to these larger magazines, they track celebrities 24/7 and get as much content as they can, with the goal of being as up close and personal as possible.

This may come to the discontent of celebrities, who already have every detail of their lives scrutinized and only wish for a smidge of privacy. Daniel Radcliffe once told a humorous anecdote about how he wore the same outfit for six months while in London for his play Equus just to make any paparazzi photos mundane and unusable [1], but not all celebrities have been as nonchalant about the matter. Actor Woody Harrelson has had numerous violent encounters with paparazzi over his long career, once punching a man after he refused to stop taking pictures of Harrelson and his daughter at an airport [2].  Even beyond just being a nuisance, at times paparazzi can present genuine danger to celebrities, and even commit crimes. The tragic death of Princess Diana in a car crash is widely blamed on the paparazzi who were relentlessly following the Princess’ car, which was speeding in an attempt to escape them [3]. In a horrific incident on the day of actress Emma Watson’s 18th birthday, paparazzi pursued the Harry Potter star to take pictures up her skirt, and by her account “because [she] had just turned 18 they were legal” [4]. But despite the widespread disdain of paparazzi, in the eyes of the law it remains a curiously unregulated industry. After all, it is perfectly legal to stand in public and take pictures, and despite the ethical claims against the practice, celebrity news media is protected under free speech according to the First Amendment. There exist some restrictions against paparazzi, who are notably limited to public property. California Senate Bill No. 606, passed in September 2013, criminalizes “any person who intentionally harasses the child or ward of any other person because of that person’s employment” [5], and other states have similar statutes in place prohibiting or limiting photos taken of children. In more extreme cases, celebrities can get restraining orders or claim harassment against individual photographers, but cannot block all paparazzi by means of their profession. But besides that, paparazzi are essentially free to do as they please.

Paparazzi are looked down upon and colloquially considered “legalized stalking” in the public eye, but it remains difficult to do anything to protect against it. Any blanket ban against the profession immediately runs into the aforementioned First Amendment issues, as it is once again perfectly legal to stand in public and take pictures. And ethics aside, the real issue lies in the intersection of what is considered paparazzi and what is considered journalism. Despite having a negative connotation and a reputation for salacious, reactionary content, media outlets like TMZ and People are arguably forms of journalism. They provide news and information just like the New York Times, and while it may be easy to differentiate between the two in casual conversation, it’s more difficult to put into writing. Scurrying around Walmart to take photos of Kim Kardashian getting groceries would rather commonly be considered invasive paparazzi, and waiting outside of the Oscars to capture Doja Cat’s latest outfit seems to be relatively mundane journalism. But what if the photographer on aisle nine was asking Kardashian for comments on some legal trial? Would that fall under the vested profession of journalism? Is there a difference? And like when Tom Hanks berated photographers who got too close and accidentally tripped his wife after a screening of his new movie [6], what constitutes being invasive if one is at an event where photographs and news coverage are expected? It is practically impossible to differentiate between good, real journalism and bad, invasive paparazzi in a courtroom, and because of this laws regarding paparazzi always run the risk of imposing on the work of the journalism industry. Complaining about a proposed Hawaii Senate Bill 465, which gave celebrities the right to sue photographers taking unwanted photographs (and was later signed into law), Frank Bridgewater, a vice president and editor of the Honolulu Star-Advertiser, said that “The biggest problem we see is that it’s way too vague and broad. If [Former Aeorosmith singer and driving force behind the bill] Steven Tyler comes to a courthouse after a hearing, can we not take a picture of him for a legitimate news reason?” [7]. “Vague and broad” is the problem with many of these laws, and usage of them runs the risk of setting dangerous precedents, as if a celebrity can sue unwanted photographers, then who qualifies as a celebrity, and who decides if a photo qualifies as unwanted? All of these questions make it hard to enact any real change.

Laws regarding paparazzi are unlikely to dramatically shift anytime soon. In the eyes of the courts, at least in the United States, public figures have to expect a certain loss of privacy. While frustrating and at times dangerous for these public figures, it is impossible to really separate bad coverage from good coverage in a way that is legally sound and irrefutable. After rapper Kanye West faced assault charges after attacking a photographer in 2013, he suggested that celebrities be able to profit from paparazzi work about them through the claiming of their own image rights, but this has not caught on as photographs are generally considered one’s own property. Nonetheless, the debate will rage on in public spheres, and the cameras will keep clicking on these unamused stars.

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[1] “Daniel Radcliffe Is Growing Up.” CBS News, 9 Feb. 2017, www.cbsnews.com/news/daniel-radcliffe-is-growing-up/.  

[2] Heller, Corinne. “Woody Harrelson Punches Man Who Allegedly Refused to Stop Taking Photos of Him and His Daughter.” E! Online, 7 Oct. 2021, www.eonline.com/news/1305233/woody-harrelson-punches-man-who-allegedly-refused-to-stop-taking-photos-of-him-and-his-daughter. 

[3] Samuelson, Kate. “How Princess Diana’s Death Changed the British Media.” Time, 27 Aug. 2017, time.com/4914324/princess-diana-anniversary-paparazzi-tabloid-media/.

[4] Leaper, Caroline. “Emma Watson Talks about the Disgusting Way Paparazzi Have Treated Her, and Other Female Celebrities.” Marie Claire UK, 11 Mar. 2016, www.marieclaire.co.uk/news/celebrity-news/emma-watson-paparazzi-took-pictures-up-my-skirt-on-my-18th-birthday-14485.

[5] State of California, Senate. Senate Bill No. 606. 2013. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB606

[6] Melendez‍, Miguel A. “Tom Hanks Yells at Fans to ‘back the F**k Off’ after Rita Wilson Trips.” Entertainment Tonight, 16 June 2022, www.etonline.com/tom-hanks-yells-at-fans-to-back-the-fk-off-after-they-cause-wife-rita-wilson-to-trip-185890.  

[newjerseyprelawland-blog]

J*ry N*llification: The unspoken power of the juror

By Gregory Martinez, Rutgers University–New Brunswick Class of 2026

June 26, 2023

In August 1731, the newly appointed Governor of the Province of New York William Cosby arrived stateside from England. His four-year tenure is among the most notorious in British-American colonial history, but one of his most influential grievances is largely unknown. A series of feuds found Cosby suing the publisher of the independent political magazine the New York Weekly Journal, John Peter Zenger. Cosby’s authoritarian style and propensity for political scheming had earned him the ire of the magazine, which frequently published pieces reporting the governor’s misdeeds, and so the politician responded by suing the paper for libel and having Zenger thrown in prison. In today’s law, true statements cannot be deemed libelous. However, according to the English law of the day, the truth of the statements only made the crime of libel worse, meaning that Cosby’s lawyers only needed to prove that Zenger had published the statements to prove his guilt. The trial was a short one, as it was rather obvious that the critical comments had been published, and the Chief Justice presiding over the case explicitly told the jurors that the law quite clearly pointed to a guilty verdict. But after only 10 minutes of deliberation, the jury returned with a verdict of not guilty anyways, in one of the first uses of jury nullification in the United States [1] [2].

The right to a trial by jury is a fundamental part of the American justice system dating back to the Bill of Rights. The idea that one’s peers should be the ones to decide punishment is one of the most important values in the legal system, and because of this, there are various protections and rights that jurors have to ensure that a fair trial takes place. One of these rights is jury nullification, meaning that a jury has the power to “[return] a ‘not guilty’ verdict even if jurors believe beyond a reasonable doubt that the defendant broke the law” [3]. This typically happens for two reasons, either because the jury wants to make a statement about some grander social issue, such as when Jack Kevorkian was acquitted of murder charges in an assisted suicide case [4], or because the jury does not agree with the law in place or its application, such as the case of Melroy Cort, where a man driving from Ohio to Washington D.C. was acquitted of unlawful firearm possession charges in D.C. [5]. The controversial practice places a lot of responsibility on juries, who technically have the ability to apply the law however they see fit, and some argue that it is too much power for the common man.

Despite jury nullification largely being considered a right, it is a touchy subject in and around courtrooms, as promoting the practice seemingly encourages juries to ignore the law. In People v. Iannicelli and People v. Brandt, two men were accused of jury tampering after handing out pamphlets about jury nullification outside a Colorado courthouse [6]. The cases of Julian P. Heicklen and Keith Wood in New Jersey and Michigan respectively [7] [8] also lead to charges of jury tampering, and while all three cases resulted in charges being dropped, jury nullification remains an extremely taboo subject in the courtroom, and something rarely talked about or mentioned. Some feel that it is a slippery slope, as having the right to ignore the law seemingly renders the law useless, and that decisions would stem largely from the personal opinions of the random people selected for a jury. To further complicate the issue, different states have different stances on jury nullification, with a notable example of 2001’s People v. Williams in the state of California explicitly prohibiting the usage of jury nullification in the state. Jury nullification can still occur in states where it is illegal or more heavily frowned upon, as a verdict of “not guilty” cannot be overturned due to double jeopardy laws, and jurors cannot be prosecuted for any decision regardless of misconduct or reasoning. But with precedent, jurors can be dismissed from a case if it is found they intend to nullify. And so, nullification exists in a constant state of gray. Defense attorneys are not allowed to tell juries about nullification during a trial. Judges are not allowed to inform juries about their right to utilize this right. If a judge finds out a juror intends to nullify, the juror may be removed from the trial. But if a juror manages to nullify at the last moment, then they cannot face any legal repercussions. It’s a confusing mix of unspoken rules, resulting in an unspoken ritual that can’t be spoken about, but should be.

Despite the taboo surrounding the practice, jury nullification remains an important right in courtroom procedure. It is perhaps the most direct way for ordinary citizens to protest against bad laws, and while getting public opinion is always a double-edged sword, sometimes it can lead to clear good. When slavery was still legal in the United States, many Northern jurors took advantage of their rights to acquit people who helped runaway slaves in violation of the Fugitive Slave Act [9]. Mandatory sentencing laws regarding drug possession that stem from systematically racist policies dating back to the crack epidemic are often nullified with this power [10] [11], and as lawmakers see the clear signs of public discontent, it may force direct action in ways that voting cannot.

Aaron Schwartz was a programmer and controversial activist who faced charges for using the MIT network to mass download large amounts of academic journals and papers from the subscription-based online library JSTOR. Schwartz settled with JSTOR and MIT, but the federal government got involved and pressed charges, wishing to punish Schwartz for his other battles with the law. Schwartz was threatened with up to thirteen felony counts and decades in jail, and after two years of grueling prosecution, Schwartz committed suicide at 26 [12]. In an impassioned essay about the tragedy, politician and Schwartz’s personal friend David Segal argued for jury nullification as a solution to cases like Schwartz’s. He wrote that “we needn't entrust our hopes for reform to risk-averse politicians who fear their constituents' reactions and, sometimes of greater bearing, those of their underwriters in the private prison industry. We can take matters into our own hands, by engaging in conscientious jury nullification—and perhaps force a reorientation of the entire criminal justice system.” [13]. Jury nullification comes with the same pros and cons that giving people any sort of decision-making power does, as the power to make good decisions always comes with the power to make bad ones. But in a country quite literally founded in protest to abuses by those in power, it is important to have traditions like these in place, to protect the power and sovereignty of the individual, and to ensure that all voices are heard, whether it is to the ultimate benefit or detriment of society.

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[1] Linder, Douglas, “The Trial of John Peter Zenger: An Account” SSRN, 2001, http://dx.doi.org/10.2139/ssrn.1021258

[2] “John Peter Zenger.” Fully Informed Jury Association, fija.org/library-and-resources/library/law-and-legal-cases/john-peter-zenger.html.

[3] “Jury Nullification.” Legal Information Institute - Legal Encyclopedia, www.law.cornell.edu/wex/jury_nullification. Accessed 25 June 2023.

[4] Lessenberry, Jack. “Jury Acquits Kevorkian in Common-Law Case.” The New York Times, 15 May 1996, www.nytimes.com/1996/05/15/us/jury-acquits-kevorkian-in-common-law-case.html.  

[5] Alexander, Keith L. “Marine Amputee Acquitted on Gun Possession Charges.” The Washington Post, 14 Jan. 2009, www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302840.html.  

[6] Colorado Supreme Court. People v. Brandt. and People v. Iannicelli. 23 Sep. 2019.

[7] Weiser, Benjamin. “Jury Nullification Advocate Is Indicted.” The New York Times, 25 Feb. 2011, www.nytimes.com/2011/02/26/nyregion/26jury.html.  

[8] Chicklas, Dana. “Jury Finds Man Guilty of Jury Tampering after Passing out Juror Rights Pamphlets.” FOX 17 West Michigan News (WXMI), 1 June 2017, www.fox17online.com/2017/06/01/jury-finds-man-guilty-of-jury-tampering-by-passing-out-juror-rights-pamphlets.  

[9] Butler, Paul. “In Defense of Jury Nullification.” Litigation, vol. 31, no. 1, 2004, pp. 46–69. JSTOR, http://www.jstor.org/stable/29760463. 

[10] Gilens, Naomi. “It’s Perfectly Constitutional to Talk about Jury Nullification: ACLU.” American Civil Liberties Union, 22 Jan. 2019, www.aclu.org/news/free-speech/its-perfectly-constitutional-talk-about-jury-nullification. 

[11] Newman, Tony. “Jury Nullification: An Important Tool against Drug War Injustices?” HuffPost, 22 Feb. 2012, www.huffpost.com/entry/jury-nullification-an-imp_b_1165640.

[12] “Aaron Swartz.” Fully Informed Jury Association, fija.org/library-and-resources/library/law-and-legal-cases/aaron-swartz.html.

[13] Segal, David. “How to Make Sure What Happened to Aaron Swartz Doesn’t Happen Again.” VICE, 28 July 2014, www.vice.com/en/article/nze337/aaron-swartz-jury-nullification-demand-progress.  

[newjerseyprelawland-blog]

Held v. Montana: Youth Race Against Climate Clock

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

June 14, 2023

The picturesque state of Montana boasts awe-inspiring landscapes that encompass the majestic Rocky Mountains, Yellowstone National Park, and a wealth of unique wildlife, including bison and grizzly bears. Montana’s natural beauty is so vital to the state that its Constitution guarantees and protects the right to a “clean and healthful environment.” Moreover, the Constitution requires that “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Yet, the so-called “Treasure State” has also become a climate warzone in recent years due to its booming fossil fuel industry. In addition to housing numerous natural wonders, the state possesses some of the country’s largest recoverable coal reserves. Thus, a significant portion of Montana's economy relies on fossil fuels including coal, oil, and natural gas [1].

According to the Environmental Protection Agency, Montana’s climate has rapidly deteriorated which has led to “snowpacks melting… more frequent heat waves and increased risk of wildfires.” Furthermore, Montana’s 2015 climate assessment reports that the annual average temperature has risen somewhere between 2 and 3 degrees Fahrenheit in the period from 1950 to 2015.  The climate report also concluded that Montana’s average winter precipitation decreased by “an inch and the number of days exceeding 90 degrees Fahrenheit in any given year grew by an average of 11” in the period from 1951 to 2010 [2]. To further contextualize the severity of the issue, federal data puts the rise in Montana’s average temperatures since the beginning of the 20th century, at more than twice the global average [1].

Despite these alarming findings, Montana’s Republican officials have made it impossible for the state to institute any real measures to protect its delicate environment. In fact, Montana’s Republican lawmakers have passed aggressive anti-climate legislation “that bars state agencies from considering climate change when permitting large projects that require environmental reviews, including coal mines and power plants” [2].

Yet, despite the destructive and dangerous approach taken by state leaders towards Montana's environmental future, young Montanans have been advocating for change as proponents of more environmentally conscious policy making. On Monday, June 12, 2023, 16 of Montana’s youth are doing just that by taking the State to court in Held v. Montana. The youth aim to create more accountability from state’s leaders in matters involving the future of the environment.

According to the plaintiffs, Montana’s continued and enthusiastic support of the fossil fuel industry within the state violates residents’ “constitutional right to a clean environment.”

Prior to Monday’s case, lawyers defending the state, including Attorney General Austin Knudsen, a Republican, incessantly tried to have the case Held v. Montana thrown out. But their attempts proved to be futile; since, a June 6th ruling by the State Supreme Court rejected the latest attempt to dismiss the case. Justices refused to intervene so close to the case’s scheduled trial date, especially one that was “literally years in the making.”

Held v. Montana will rely heavily on witness testimony which will highlight how “wildfire smoke, heat and drought have harmed residents’ physical and mental health” [3]. For example, Grace Gibson-Snyder, a 19 year old plaintiff from the case, recounts how coal trains plowed through Missoula—scraping away pieces of her beloved hometown in the process.

Grace Gibson-Snyder: “Smoke chokes Missoula every summer…It matters acutely for everyone’s well-being.” Her town regularly experiences heavy plumes of smoke as a result of neighboring wildfires, drought, and decreasing levels in local bodies of water [4].  According to Grace, “The question is not only can we create sustainable policy, it’s how can we dismantle the policy that’s actively harming Montana?” [3]

Montana’s youth are being represented by Our Children’s Trust, a nonprofit law firm geared towards climate centered issues.

According to the Trust’s attorney Phil Gregory, by the end of this case, Motanans will understand that they “have a substantial role in causing the climate crisis, and will be dramatically affected by the climate crisis unless something is done.”

Other experts like advocate and executive director of Families for a Livable Climate—Winona Bateman wonders “How much of the summer will they [Montanans] be able to enjoy?” “Will they be able to ski? Will they be able to hunt and fish?” as Montana’s landscapes continue to decline [4].

Additionally, Cara Horowitz, director of the environmental-law program at the University of California, Los Angeles law school predicts that “Depending on how this trial goes, maybe Montana will push the bounds of climate leadership. It could show what it means to take responsibility for future generations seriously as Montana’s constitution requires it to do” [5].

As the case unfolded in court on Monday, Rikki Held–a 22 year old plaintiff from the case, led the testimonies with an emotional plea as she discussed how extreme weather, droughts and wildfires had ravaged her family ranch.

Rikki Held: “I know that climate change is a global issue, but Montana needs to take responsibility for our part of that…You can’t just blow it off and do nothing about it.”

Roger Sullivan, a lawyer for the young residents, said in opening statements: “Montana’s warming climate will have cascading environmental and economic impacts” [6].

Thus far, Held v. Montana has already served a purpose by further underscoring the urgency of more environmentally conscious legislation. Regardless of the outcome, this case holds the potential to shape future climate litigation.

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Anika Ponni is currently a student at Rutgers University - New Brunswick, pursuing a finance degree in the Honors Program. She hopes to attend law school upon graduation. 

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[1] Burga, S. (2023, June 11). 16 Montana Kids Are Suing the State Over Climate Change.

Here’s What to Know About the Trial. Time. https://time.com/6286358/held-v-montana-trial-starts/

[2] Tigue, K. (2023, May 17). Montana GOP just passed an aggressive law to thwart climate

science. Mother Jones. https://www.motherjones.com/politics/2023/05/montana-republicans-pass-anti-climate-science-law/

[3] Brown, M., & Hanson, A. B. (2023, June 11). Youth environmentalists bring Montana climate case to trial after 12 years, seeking to set precedent. AP NEWS.

https://apnews.com/article/youth-climate-trial-montana-18e301a701fcf4badc904984455406fc

[4] Dance, S. (2023, May 19). Why Montana is emerging as a must-watch climate battleground. Washington Post; The Washington Post. https://www.washingtonpost.com/climate-environment/2023/05/19/montana-climate-bill-gianforte-youth-trial/

[5] Timms, M. (2023, June 11). A Bellwether Climate Case in Montana Seeks More Action Under State Constitution. Wall Street Journal. https://www.wsj.com/articles/a-bellwether-climate-case-in-montana-seeks-more-action-under-state-constitution-88847825?mod=Searchresults_pos1&page=1

[6] Baker, M. (2023, June 12). A Landmark Youth Climate Trial Begins in Montana. The New York Times. https://www.nytimes.com/2023/06/12/us/montana-youth-climate-trial.html

[newjerseyprelawland-blog]

Airb 'n' NYC: The Latest Fight For Short-term Rentals In The Big Apple

By Gregory Martinez, Rutgers University–New Brunswick Class of 2026

June 12, 2023

If you’re one of the two-thirds of New York City residents who occupy a rented home [1], your living options may be under fire. A lawsuit filed on June 1 by Airbnb, Inc. against New York City seeks to fight back against new citywide restrictions on short-term (less than 30 days) rentals. Airbnb, as it is colloquially known, was founded in 2008 as a platform where common homeowners could rent out their living spaces for only a few days at a time, allowing travelers living spaces in areas that attract fewer tourists and therefore have less traditional hotels available. The San Francisco-based company has enjoyed tremendous success in its 15 years of life, to the point where it has emerged as a genuine threat to the traditional hospitality industry, with mammoth hotel chains lobbying for greater restrictions on the short-term rentals that make the company what it is, and various cities nationwide complying.

New York City and the Office of Special Enforcement in particular has been longtime foe of Airbnb, having settled with the company in separate lawsuits filed in 2016 and 2018 about short-term rental fines and city demands for Airbnb to share information about its listings respectively [2] [3]. However, the result of this newest lawsuit could have more drastic effects on the fate of the company in the city, with the Big Apple looking to take more forceful and direct action against the company. A city law passed in 2021, set to be enforced in July 2023, required anyone who wished to rent out a property short-term to go through an extensive registration process with the city, on top of the already strict eligibility requirements that include a ban on hosting in a rent-regulated unit [4] [5].

On June 1, 2023, Airbnb finally struck back by filing a 112-page complaint and motion for preliminary injunction with the Supreme Court of New York County [6]. In the complaint, Airbnb called the new laws “[NYC’s] most extreme and oppressive regulatory scheme yet” and a “de facto ban against short-term rentals.” The thorough case against New York City argued that:

The anti-short-term rental laws were “arbitrary and     capricious”, and were designed to drive Airbnb out of the market

There was a breach of the contract of the aforementioned 2016 settlement

There was a breach of good faith in the 2020 settlement     (which settled the aforementioned 2018 lawsuit)

The anti-short-term rental laws clashed with section 230 of  the Communications Decency Act

among other things.

The “arbitrary and capricious” claim is the most blunt of the bunch. New York’s increasingly strict laws surrounding registration make it extremely difficult for hosts to enter the world of short-term rentals, to the point where as of May 2023, the city had only approved nine new registrations for short-term rental hosting, a massive loss in an area that currently has a market of 20,000 hosts. Dan Wasiolek, a senior equity analyst at Morningstar Research Services, says that “A fraction of one percent of Airbnb listings have gotten official verification, which is a sign that the law is extremely restrictive … it’s my understanding the city isn’t explaining to people why their application is rejected” [7]. It can be difficult to keep up with the plethora of laws and regulations on what makes a legal short-term rental property, and many people who would otherwise be inclined to enter the market might not even bother.

These laws, Airbnb argues, actively discourage people from using their platform, threatening their business and “ significantly harming tourism and the New York City economy.”

Understanding the second and third claims requires a deeper understanding of the 2016 and 2018 lawsuits, and the respective settlements mentioned previously. In October 2016, then-governor Andrew Cuomo signed a law that allowed for fines of up to $7,500 for illegally listing a property on rental platforms like Airbnb. New York City banned rentals shorter than 30 days in 2010, and although these bans had been largely ignored by landlords, and properties were listed on platforms like Airbnb anyways, Airbnb argued that the new fines were a step too far in imposing on their business. The complaint filed by Airbnb stated that “In order to be assured of avoiding liability, including potential criminal prosecution, Airbnb would be required to screen and review every listing a host seeks to publish,” a financial burden too great to put on the company [8]. The saga was resolved with a settlement only two months later, under the condition that fines would only be placed on the hosts performing the illegal activity and not Airbnb, Inc. [2]. However, as previously mentioned, the battle between New York City and Airbnb raged on with another lawsuit in 2018. This was yet another response to efforts to crack down on illegal short-term rentals, with the New York City Council voting on a bill in July 2018 that would require online rental companies like Airbnb to provide the addresses, names, and more of every host in its network to the Office of Special Enforcement. Airbnb cited privacy concerns as reason for its opposition to the bill, and after a drawn-out court battle, an eventual settlement in 2020 “limited Airbnb’s reporting obligations to short-term rentals that were rented for more than four days and that either (a) included an entire dwelling unit or (b) were rented to three or more individuals at the same time” [6]. Both these settlements have lied dormant in electronic filings for years, but with the latest action by New York City, Airbnb now alleges that the city is breaking both agreements. The argument is that New York City have broken the 2016 contract by making it more difficult to advertise the Airbnb product, and that the 2020 contract was violated because the newest laws require Airbnb to report every short-term rental, as opposed to the specific ones outlined above.

But the crux of the case possibly lies in the fourth claim, that New York City’s actions violate the famous Section 230. The seminal line, buried in the relatively obscure Communications Decency Act, states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”, and is the center of any legal argument surrounding free speech on online platforms [9]. It protects online platforms from being liable for the content posted on them, meaning that if someone slanders another person on Twitter, the victim can sue the slanderer, but not Twitter. This provision allows media companies to exist without an overarching fear of being buried in lawsuits brought on by its users and has been a part of countless court rulings since its passing. Airbnb argues that by imposing on its business in an overarching manner because of the threat of illegal rentals, it is essentially holding the company liable for the activities of its users, clearly a violation of Section 230. In a similar case, Gonzalez v. Google, LLC (2021), the Ninth Circuit Court of Appeals dismissed the suit of the family of a victim of the 2015 ISIS attack in Paris who alleged that Google was liable for the attacks due to Google-owned video sharing platform YouTube being used as a recruiting device by the terrorist organization, on the grounds that Google was protected under Section 230 [10]. If the court finds that Airbnb has similar protection, it may prove more difficult for New York City’s lawyers to make a case against the rental platform.

With so many arguments on Airbnb’s side, it begs the question of why exactly New York City has remained determined to fight against the company. Throughout its years of fighting short-term rental, the city has maintained the position that it is all part of the battle against the housing crisis. New York City has struggled to fit its enormous population into proper living conditions for decades, and the problems are only getting worse. Rent is rising, conditions are terrible, and many people face eviction and possible homelessness daily [11]. So when companies like Airbnb make repeated short-term rentals more profitable than long-term ones, it discourages landlords from servicing New York residents looking for a home to make their own, decreasing the supply for the increasing demand for property. Furthermore, studies have shown that Airbnbs have a tangible financial impact on the communities they occupy. A US report published in 2020 suggested that a 1% increase in Airbnb listings leads to a 0.018% increase in rents and a 0.026% increase in house prices, which on average translates to an annual increase of $9 in monthly rent and $1,800 in house prices [12].

Lawyers and judges will be the ones to decide the legal merits of Airbnb’s arguments in this lawsuit, but in the bigger picture there still remains question as to whether or not taking action against Airbnb and the short-term rental industry should be the focus of the housing debate. Airbnb vigorously rejects the housing argument, claiming that the city’s true motives are to protect the hotel industry that the company competes against, to the point where Airbnb once published a list of City Council members and how much the hotel industry had contributed to their respective campaigns [13]. Perhaps Airbnb is just an easy target to blame for rising housing costs and the struggles the city faces, and interfering in the short-term rental business is not going to solve any of the real issues. The short-term rental industry is a highly complex sector that without real federal standards has struggled to move past the complicated world of navigating countless different local ordinances. Because it is so difficult to have a conversation about the industry, it has struggled to counter the narrative that it ruins communities and economies. And even if short-term rentals do ultimately harm communities and average citizens, it begs the question of if governments have the right to drive out and regulate companies operating within the confines of the law once they meet the definition of “harming communities”.

But whether or not governments have the right to do this, they are already taking action. On June 9, 2023, shortly after the latest fight in New York City, French Finance Minister Bruno Le Maire announced that France was actively working to close tax loopholes that often benefitted short-term rental companies like Airbnb [14]. Once precedent is set, other major cities such as San Francisco and Los Angeles that already have heavy restrictions on short-term rentals may follow and crack down even further on the industry. The relatively obscure battle is ultimately further shuffling as lawmakers attempt to find a balance between making housing affordable and available for its citizens and allowing the free market to flow. Whether or not short-term rentals belong in this conversation, or are simply politicians’ attempts to sidestep the real problems, are but small cogs in this grand wheel.

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[1] U.S. Census Bureau (2021). American Community Survey

[2] Benner, Katie. “Airbnb Ends Fight with New York City over Fines.” The New York Times, 3 Dec. 2016, www.nytimes.com/2016/12/03/technology/airbnb-ends-fight-with-new-york-city-over-fines.html.  

[3] “City of New York and Airbnb Reach Settlement Agreement.” The Official Website of the City of New York, 12 June 2020, www.nyc.gov/office-of-the-mayor/news/432-20/city-new-york-airbnb-reach-settlement-agreement. 

[4] Zaveri, Mihir. “Airbnb Sues New York City over Limits on Short-Term Rentals.” The New York Times, 1 June 2023, www.nytimes.com/2023/06/01/nyregion/airbnb-sues-nyc-rentals.html. 

[5] “Registration for Hosts.” NYC - OSE, www.nyc.gov/site/specialenforcement/registration-law/registration-for-hosts.page. 

[6] New York Supreme Court. Airbnb, Inc. vs. New York City Mayor’s Office of Special Enforcement et Al. 1 June 2023.

[7] Kelleher, Suzanne Rowan. “Why Airbnb Can Survive a ‘de Facto Ban’ in New York City.” Forbes, 8 June 2023, www.forbes.com/sites/suzannerowankelleher/2023/06/07/why-airbnb-can-survive-a-de-facto-ban-in-new-york-city/?sh=3442c17d7570.  

[8] Benner, Katie. “Airbnb Sues over New Law Regulating New York Rentals.” The New York Times, 21 Oct. 2016, www.nytimes.com/2016/10/22/technology/new-york-passes-law-airbnb.html. 

[9] Ortutay, Barbara. “What You Should Know about Section 230, the Rule That Shaped Today’s Internet.” PBS, 21 Feb. 2023, www.pbs.org/newshour/politics/what-you-should-know-about-section-230-the-rule-that-shaped-todays-internet.  

[10] United States Court of Appeals for the Ninth Circuit. Gonzalez v. Google, LLC. 22 June 2021.

[11] “In New York City, Housing Supply Continues to Fail to Meet Demand.” Spectrum News NY1, 10 Oct. 2022, www.ny1.com/nyc/all-boroughs/housing/2022/10/07/new-york-city-housing-supply-demand.  

[12] Barron, Kyle and Kung, Edward and Proserpio, Davide, “The Effect of Home-Sharing on House Prices and Rents: Evidence from Airbnb.” SSRN, 4 Mar. 2020

[13] Greenberg, Zoe. “New York City Looks to Crack down on Airbnb amid Housing Crisis.” The New York Times, 18 July 2018, www.nytimes.com/2018/07/18/nyregion/new-york-city-airbnb-crackdown.html?action=click&module=RelatedCoverage&pgtype=Article®ion=Footer.  

[14] Thomas, Leigh. “France Plans to Close Tax Loophole Benefiting Airbnb.” Reuters, 9 June 2023, www.reuters.com/business/france-plans-close-tax-loophole-benefiting-airbnb-2023-06-09/.  

[newjerseyprelawland-blog]

Artificial Rappers, Artificial Copyright Claims? How "AI Drake" Could Spell Danger For Musicians Worldwide

By Gregory Martinez, Rutgers University–New Brunswick Class of 2026

June 5, 2023

It started as a trend on Tik Tok. As early as March 2023, content creators began flooding the app with “covers” created using artificial intelligence, taking pre-existing vocals from artists such as Ariana Grande, Kanye West, and Rihanna. Using software such as Chinese-developed DiffSVC, creators could feed clips of real life songs, acapella snippets, and even features by any given artist to this AI until the program could learn to replicate their voice nearly perfectly [1]. From there creators were free to use this voice to sing whatever tune their heart desired, and the humorous adaptations that followed struck gold with the absurdist Tik Tok community, and everything seemed in good fun until user ghostwriter977 uploaded a snippet of his song “Heart on my Sleeve” to Tik Tok halfway through April [2]. The song, which had been posted in full on various streaming platforms some days prior, was an original song with a twist: it featured the voices of Canadian musicians Drake and The Weeknd. Ghostwriter977 claimed that he had used artificial intelligence to put their voices to his words, and it took the online community by storm not only because of the song’s quality, but because of the awe at the method used to create it.

Just as soon as it came it was gone, with Universal Music Group (UMG), who represented both Drake and The Weeknd, requesting the song be removed from streaming services immediately due to alleged copyright infringement, and the platforms readily complying [3]. Many details of the situation remain a mystery, with questions remaining about the legitimacy of the claim that it utilized AI, the claim that Ghostwriter977 even wrote the song, and the existence of any actual lawsuit by UMG over the copyright dispute. The last point in particular has drawn the focus of legal experts across the country, as there remains little legal precedent for issues surrounding relatively new AI technology that is at the root of this musical battle.

Copyright law is a thorny field filled with gray, and when entering seemingly uncharted territory, difficulties arise. Chris Mammen, an intellectual property expert and partner at Womble Bond Dickinson, says that “The law evolves by analogy. Something new comes up, and we figure out what it’s analogous to, and then that gradually becomes settled law. What’s happening right now is this is changing so fast that it’s hard even to come up with the analogies to figure out how we want to think about it before it changes again.” [4]. At the center of the AI cover debate are rights of publicity. A federal decision in the case of Haelean Laboratories, Inc. v. Topps Chewing Gum, Inc. (1953) distinguished the idea of rights of publicity, which amounts to the idea that one cannot use the name or likeness of a celebrity for commercial purposes without authorization [5]. This has been a part of privacy law for decades, but with the nuances for the AI debate come questions of what constitutes “name” or “likeness”. In the case of AI Drake, did Ghostwriter infringe on Drake’s name if he expressly stated that it was made with artificial intelligence? Does one’s voice alone count as part of one’s likeness? UMG reportedly used the argument that Drake’s music was not authorized to be put into the program to create AI Drake’s voice, rendering the final product a violation of the copyright on the song, but what if someone were to create a faux Drake without using any of his songs? Can one copyright a voice? The issue enters the even thornier world of ethics when it comes to artists who have already passed away. In the case of the various Michael Jackson covers floating around the internet, is it even right to use a dead man’s voice and legacy for monetary gain? All of these and more are questions raised by this seemingly innocuous event, and decisions are being made and challenged quickly as time passes.

The US Copyright Office has it stated in the Compendium of U.S. Copyright Office Practices that human authorship is a requirement for something to be copyrighted [6]. This would seemingly discount work made by AI, a machine, logic used to refuse a copyright claim on a piece of AI-generated artwork in February 2022 [7]. However in the case of AI music covers, it could be argued that because a human was required to put in the vocals and train the AI to sound like whatever artist it was imitating, the cover can be considered humanly authored and therefore an independent entity that could itself be copyrighted. Using this argument Ghostwritter977 could claim that his song should be reuploaded on streaming platforms and even available for commercial benefits, sparking an entirely new debate. This would be of great concerns to the artists themselves, who can no longer protect their voice, which is undoubtedly associated with their brand in the public eye, and could hypothetically be removed from the creative process. If a label can use Drake’s vocals to create an entire AI-generated album, then the label does not need to pay Drake anymore.  If the law cannot protect these artists, then it has the potential to upend the entire music industry, with production time and expenses drastically reduced by using AI rather than an actual human musician. Court rulings for years to come will help better define in what direction the law chooses to view these issues, and time will tell if AI’s increasing legal protection will come at the detriment of the humans that created it.

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[1] Spencer-Elliott, Lydia. “Drake to Ariana Grande: How Tiktokkers Are Making Those Viral AI Cover Songs.” The Tab, 14 Apr. 2023, thetab.com/uk/2023/04/14/how-to-make-ai-song-cover-tik-tok-303346.  

[2] Pearson, Jordan. “A Viral AI-Generated Drake Song by ‘ghostwriter’ Has Millions of Listens.” VICE, 17 Apr. 2023, www.vice.com/en/article/wxj5gw/heart-on-my-sleeve-ai-ghostwriter-drake.

[3] Pearson, Jordan. “Viral AI-Generated Drake Song ‘heart on My Sleeve’ Removed from Spotify, YouTube.” VICE, 18 Apr. 2023, www.vice.com/en/article/xgwx44/heart-on-my-sleeve-ai-ghostwriter-drake-spotify.

[4] Schwartz, Drew. “Drake or Fake? A Lawyer Explains the Legality of Ai-Generated Music.” VICE, 21 Apr. 2023, www.vice.com/en/article/4a3vmn/heart-on-my-sleeve-ai-music-drake-the-weeknd-lawyer-explains.

[5] Vile, John R. “Right of Publicity.” Right of Publicity, www.mtsu.edu/first-amendment/article/1011/right-of-publicity#:~:text=fair%20use%2C%20Wikipedia).

[6] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2021).

[7] Re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071) (Report). Copyright Review Board, United States Copyright Office.

[newjerseyprelawland-blog]

Justice Clarence Thomas’s Alleged Ethical Violations

By Anika Ponni, Rutgers University–New Brunswick Class of 2026

April 23, 2023

Diverting from precedent, the latest controversy to engulf the United States Supreme Court surprisingly involves an influential Justice as opposed to an influential case. According to a bombshell investigation conducted by ProPublica, an investigative journalism non-profit organization, Justice Clarence Thomas has allegedly accepted a host of luxury gifts and vacations from Republican billionaire—Harlan Crow.  ProPublica’s report spans the last 20 years and illustrates the extent to which Thomas was able to enjoy certain perks he received through his connection to Crow. For instance, Justice Clarence Thomas experienced glimpses of an entirely different and extravagant world through private yachts, private jets, and a private resort owned by real estate tycoon Harlan Crow.

For example, to better picture the luxury the Justice’s exclusive friendship awarded him, let us take a closer look at the events that transpired at the end of June in the year 2019. As soon as SCOTUS “released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.”

The cost of chartering a private plane AND a private jet for this particular trip would have been upwards of $500,000. However, fortunately for Justice Clarence Thomas, he did not have to go to such lengths to secure arrangements for the lavish expedition—instead, he was joining “Republican mega donor Harlan Crow, who owned the jet — and the yacht” for a vacation that summer.

Despite working as a public servant and making $285,000 in yearly income, Thomas has traveled across the globe through his access to Crow’s superyacht, private plane, and ostentatious private resort nestled in the Adirondacks [1].

Nevertheless, although Clarence Thomas has been accepting these sorts of luxurious gifts from Crow for over two decades, they appear nowhere on his financial disclosures. Thus, prompting a major public outcry over the Justice’s conduct and ethical violations.

According to officials, Thomas’s failure to disclose the gifts could be seen as a violation of a post-watergate law. This law, along with the Ethics in Government Act of 1978, requires justices to “annually file financial public disclosure reports detailing sources of income, gifts, and reimbursements.’ The law also directs the ‘Judicial Conference of the United States,’ which Chief Justice John Roberts presides over, to ‘establish a Judicial Ethics Committee,’ to ‘receive such reports of judicial personnel,’ and to ‘ascertain possible violations of conflict of interest laws’”  [2].

Skepticism over Justice Thomas’s conduct and ethics is not a new topic. Previously, Thomas found himself in hot water for refusing to recuse himself from a case involving his wife–Ginnie Thomas—and her role in trying to overturn the 2020 presidential election. “Ginni Thomas exchanged text messages with then-White House Chief of Staff Mark Meadows, asking him to take steps to overturn the 2020 elections in favor of former President Donald Trump.”

In light of Thomas’s recent allegations, many prominent Democratic Congress members have openly expressed their disdain for the Justice’s ethical violations:

Senator Dick Durbin: “The highest court in the land shouldn't have the lowest ethical standards…This behavior is simply inconsistent with the ethical standards the American people expect of any public servant, let alone a Justice on the Supreme Court” [3].

Representative Alexandria Ocasio-Cortez: “This is beyond party or partisanship. This degree of corruption is shocking - almost cartoonish. Thomas must be impeached…Barring some dramatic change, this is what the Roberts court will be known for: rank corruption, erosion of democracy, and the stripping of human rights.”

Representative Bill Pascrell: “This is a timely reminder that Clarence Thomas also heard election cases while his wife conspired to overthrow democracy. Clarence Thomas is corrupt as hell and should resign from the Supreme Court” [4].

Senator Cory Booker: "There is no reason that the justices who sit on the highest court in the country should continue to be held to ethical standards that are lower than those of any employee of our federal government…It underscores why we must implement a binding, enforceable code of conduct for the Supreme Court. Americans deserve a Supreme Court that is beyond reproach, commands respect, and does not undermine people's faith in our justice system."

Senator Alex Padilla: "Justices must be held to the same rigorous ethical standards as other public officials — Thomas' actions make crystal clear that we need an enforceable code of ethics for the Supreme Court,"

Justice Clarence Thomas's behavior raises a serious question: should the United States Supreme Court—the highest court in the nation—formally adopt a code of ethics? Doing so would allow the Justices to be held accountable for their actions, especially in instances with such heinous ethical violations. However, creating a formal set of ethics has its own challenges and is still very far out from becoming a reality. In the past, “the Project on Government Oversight and the Lawyers Defending American Democracy each attempted to write a Supreme Court Ethics code. But a lack of political consensus — or indeed within the court itself — has prevented any progress on an official code” [3].

For now, we must wait and see whether Justice Clarence Thomas will face any repercussions for his clear ethical violations.

______________________________________________________________

[1] Mierjeski, J. K. E. (2023, April 6). Clarence Thomas Secretly Accepted Luxury Trips From Major GOP Donor. ProPublica.

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

[2] Naham, M. (2023, April 6). Justice Thomas accused of breaking the law with “superyacht” trips, and his billionaire pal had a telling response. Law & Crime. https://lawandcrime.com/supreme-court/justice-thomas-accused-of-breaking-the-law-by-going-on-secret-superyacht-trips-and-his-billionaire-pal-had-a-telling-response/

[3] Bustillo, X. (2023, April 6). Report on Justice Thomas’ trips renews calls for a Supreme Court code of ethics. NPR. https://www.npr.org/2023/04/06/1168414781/report-on-justice-thomass-trips-renews-calls-for-a-supreme-court-code-of-ethics

[4] Vu, N. (2023, April 6). “Corrupt as hell.” “Almost cartoonish.” Democratic lawmakers expressed anger and called for action after a report on luxury vacations gifted to Clarence Thomas. Www.politico.com. https://www.politico.com/minutes/congress/04-6-2023/scrutiny-over-thomas-report/

[newjerseyprelawland-blog]

The International Criminal Court’s Role In The Russo-Ukrainian Conflict

By Emily Gill, Rutgers University–New Brunswick Class of 2026

March 25, 2023

In 1998, 120 countries adopted the Rome Statute of the International Criminal Court, which created the International Criminal Court (ICC) in 2002. The ICC is headquartered in The Hague, the Netherlands, and prosecutes perpetrators of crimes like genocide, crimes against humanity, and war crimes.

The court is made up of the President (currently Piotr Hofmański of Poland), two Vice-Presidents (Luz del Carmen Ibáñez Carranza of Peru and Antoine Kesia-Mbe Mindua of the Democratic Republic of the Congo), and sixteen other judges [1]. These eighteen total judges are divided and assigned among the Pre-Trial Division, Trial Division, and Appeals Division, and then further among the Pre-Trial Chambers, Trial Chambers, and the Appeals Chamber. Aside from the judges of the court, there is the Office of Prosecutor, which is headed by Karim Khan KC from the United Kingdom as well as his deputies, Mame Mandiaye Niang of Senegal and Nazhat Shameem Khan of Fiji [2]. The Office of the Prosecutor consists of 380 staff members total including attorneys, analysts, psycho-social experts, individuals with experience in diplomacy, and more.

Any country that is a party to the treaty (the Rome Statute) can request the Office of the Prosecutor to begin an investigation [3]. If a state is not a party to the treaty, they can accept the jurisdiction of the ICC and request an investigation. The ICC has jurisdiction in crimes that take place in a state party to the agreement or if the perpetrator of a crime is a national of a state party to the agreement. After an investigation takes place, the Pre-Trial Chamber (at the request of the Office of the Prosecutor) can issue an arrest warrant [4]. Because the Court does not have their own police force, to make arrests they rely on the cooperation of member states. If a country is party to statute, they legally must cooperate with the Court. If the ICC’s jurisdiction is triggered by the United Nations Security Council, who can refer crimes to the ICC by the UN charter passing a resolution, all UN Member States must cooperate [5][6]. The crimes that the Court deals with are crimes that are considered the gravest to humanity such as war crimes and genocide.

March 17, 2023 the ICC issued arrest warrants for Vladimir Putin, the President of Russia, and Maria Lvova-Belova, the Children's Rights Commissioner of Russia for the unlawful deportation and transfer of Ukrainian children [7]. Ukraine has alleged that more than 16,000 children have been unlawfully removed from their home country. Russia does not dispute these claims, but rather states that the children were removed from the war zone for their own safety. Since Russia is not a party to the ICC, they do not recognize their jurisdiction. Additionally, they state that they have done nothing wrong.

If either of the recipients of these warrants travel to one of the 123 countries that are parties to the Rome Statute, that country is legally obligated to arrest them [8]. This potentially could drastically limit Putin’s travel. However, it is unlikely that Putin will be arrested anytime soon. The most likely effect of Putin’s arrest warrant will be the weakening of his public image, both in Russia and outside of Russia. Especially because the crime he is accused of has to do with children. The President of Ukraine, Volodymyr Zelenskyy, has given praise to the arrest warrants issued, but it is worth mentioning that Ukraine is not a party to the ICC. In fact, out of the countries involved directly (Russia and Ukraine) or more indirectly (the US and China), none are a party to the Court. This has brought many criticisms against the Court, primarily that they are not effective and do not have any real power. A few days after the arrest warrants were issued, Russia opened a criminal case against the ICC [9]. In their statement, Russia said that the criminal prosecution by the ICC is illegal, as they have no legal jurisdiction in the country. The case is specifically against the Prosecutor of the court, Karim Khan, and against three judges, Tomoko Akane, Rosario Salvatore Aitala and Sergio Gerardo Ugalde Godinez. Russia has also announced that they will be holding a meeting of the UN Security Council to explain what they consider to be the true situation, which will most likely take place in April [10].

The ICC is continuing to investigate Russia and has stated that they recognize their reputation may suffer if they issue indictments but fail to obtain custody of those accused. While there is still no telling when or how this conflict will end, these arrest warrants are likely to garner foreign support for Ukraine and diminish or at least make it more difficult for countries to support Russia.

______________________________________________________________

[1] “Presidency and Chambers - International Criminal Court.” PresidencyAndChambersENG.pdf. The International Criminal Court, 2021. https://www.icc-cpi.int/sites/default/files/Publications/PresidencyAndChambersENG.pdf.

[2] “Office of the Prosecutor.” Office of the Prosecutor | International Criminal Court. International Criminal Court. Accessed March 23, 2023. https://www.icc-cpi.int/about/otp.

[3] “Understanding the International Criminal Court.” understanding-the-icc.pdf, 31. Accessed March 21, 2023. https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.

[4] “Understanding the International Criminal Court.” understanding-the-icc.pdf, 20. Accessed March 21, 2023. https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.

[5] “Understanding the International Criminal Court.” understanding-the-icc.pdf, 26. Accessed March 21, 2023. https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.

[6] “Understanding the International Criminal Court.” understanding-the-icc.pdf, 36. Accessed March 21, 2023. https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.

[7] Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova. International Criminal Court, March 17, 2023. https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimir ovich-putin-and.

[8] Law, Tara. “The ICC Has Issued a Warrant for Vladimir Putin. Will He Actually Be Arrested?” Will Vladimir Putin Actually Be Arrested for ICC Warrant? | Time. Time, March 17, 2023. https://time.com/6264280/vladimir-putin-icc-warrant-arrest/.

[9] Trevelyan, Mark. Russia defies Putin arrest warrant by opening its own case against ICC. Reuters, March 20, 2023. https://www.reuters.com/world/europe/russia-opens-criminal-case-against-icc-judges-prosecutor-over-puti n-arrest-2023-03-20/.

[10] Lederer, Edith M. “Russia to Hold UN Meeting on Ukraine Kids Taken to Russia.” Russia to hold UN meeting on Ukraine kids taken to Russia | AP NEWS. Associated Press, March 20, 2023. https://apnews.com/article/russia-ukraine-abducted-children-un-security-council-667a131be7ba09157e0a c21b0545bccb.