By: Eleni Christofides Between the 1890s and 1950s, the United States existed in a tumultuous world. From armed conflicts abroad, such as World Wars I and II, to movements at home such as Progressive Era activism and the impetus to mitigate the damage of the Great Depression, there was a need to keep up with a changing, fluctuating world. As a result, U.S. history during this time is marked by significant shifts in policies and public attitudes surrounding economic theories, and even what constitutes basic individual rights. The Supreme Court had an important role during this time to interpret laws and decide on their constitutionality, and many landmark Supreme Court cases can be found during these decades. However, it is important to note how those decisions and the reasoning behind them developed and evolved through those years. Though changing Justices can certainly make a difference in the Court's interpretation, there is also evidence of the ways in which outside societal forces tended to affect and influence the Court's decisions, particularly in the midst of stressful political periods. This evolution can be highlighted through a few key cases, which showcase the Court's increasingly restrictive treatment of economic liberty cases, as well as freedom of speech during wartime.
In the early 20th century, the accelerating Industrial Revolution led to a huge increase in capitalist enterprises; in response to this, the Court began to adhere to the idea of substantive due process. This meant that the Court could decide if a law was in violation of principles that were fundamental to democracy and overrule those that failed to pass that test. This often guided its decision-making process on economic liberties, and thus narrowed the scope of the legislature's police power to enforce regulations—the Court was not necessarily pro-business, but was committed to protecting economic liberties through due process. Lochner v. New York (1905) was one of the Court's most infamous rejections of police power, holding that a New York law had failed to establish a public health need for regulating the number of work hours for bakers, thus prioritizing individual economic liberty. Though the Court would create some exceptions to Lochner for classes of people that needed "special protection"—such as women in Muller v. Oregon in 1908—this would mark the Court's dedication to economic liberties at the expense of regulation. Thus the Court resisted much of the early Progressive Era pressures to protect workers and provide safety regulations, and this particular case would lead to a renewed push by Progressives to make protective laws. The Court would then uphold the Commerce Clause power of the Congress through the 1910s and through World War I, through cases such as Houston E. & W. v. United States in 1914, in which the Court expanded the power to some intrastate situations. This was in part because of a greater deference to presidential powers exerted by President Woodrow Wilson during a period of war. This time period was also marked by increased restrictions on liberties through freedom of speech, with cases like Schenck v. United States in 1919: the Court held here that there were appropriate restrictions on freedom of speech under the 1st Amendment when that speech could create a “clear and present” danger to the US during wartime. It's clear here how the Court's attitude was shaped by the government's war efforts during World War I and the fear of that effort being undermined; this emphasizes how outside influences can often shift the Court from one side of the due process versus societal protection spectrum to the other. But by the 1920s, after the Great War, U.S. history was marked by extreme consumerism and an emphasis on a laissez-faire economy, for which the Court would reassert its support. An important case for this was Adkins v. Children’s Hospital (1923), when the Court struck down a D.C. minimum wage law for women, deeming that they were no longer in need of special protection under the law due to the passage of the 19th Amendment and thus falling on the side of economic liberty again. This economic liberty stance continued through the 1930s, at which point the Great Depression and World War II would again require some changes in the Court's treatment of regulation. The Court resisted much of FDR's New Deal program in its early years, treating it as an incredible government overreach into the economic lives of Americans, but soon began to uphold economic regulations as the people were in great favor of changes to mitigate the Great Depression: this includes Nebbia v. New York (1934), when the Court held that New York’s minimum price laws for milk did not violate due process, since they were reasonably designed to promote general welfare and as mitigation to the economic problems; it also includes West Coast Hotel Company v. Parish (1937), when the Court held that the State creating a minimum wage law for women did not violate due process, thus overturning Adkins and placing greater restrictions on what employers were allowed to pay their employees. These cases show another shift away from laissez-faire economics and toward police power, particularly in response to the needs and pressures of the culture rather than strictly constitutional precedence. This shift was maintained through the 1940s as the Court upheld acts and federal powers of the government to take control of economic matters during wartime, again expanding the Commerce Clause. In fact, in United States v. Carolene Products Co. (1938), the Court created new jurisprudence that gave the presumption of constitutionality to economic regulation. There was also a continued restriction on individual liberties like freedom of speech or the basic right to live where one chose: WWII saw the horrible Korematsu decision that upheld the government's right to intern Japanese American citizens because their rights were outweighed by "emergency" and the fear of espionage. The period after World War II and during the Red Scare saw the Dennis v. US (1951) decision, when the Court continued its non-absolutist stance on freedom of speech and upheld the government's ability to restrict an act that is intended to overthrow the government. This attitude now continued past “true” war time into the Cold War, and was fueled by a fear of Communism. By examining this time period as a whole, it is clear that the Court saw a significant shift from its early days of emphasizing economic liberty through due process at the expense of regulation, to a time where war efforts and economic need pushed the Court to recognize a greater degree of governmental regulatory power at the expense of individual liberty—even extending beyond economic life to restrict speech and expression. Though the Court of course used the Constitution and precedence in its decisions through this period, the historical context of each decision is essential to understand it, and the external sway of the culture, especially fear of foreign enemies during World Wars I and II and the Cold War, no doubt influenced this period. This phenomenon did not end after the Cold War: the current national climate surrounding gun control has pitted safety regulations and policing power against liberties and economic interests in a similar way. The Courts will no doubt become involved in this debate; short of a Constitutional Amendment, the Supreme Court will become the final arbiter. It is likely that we will witness the influence of cultural context on the interpretation of law in real time. References: 1. Adkins v. Children's Hospital of D. C, Oyez, https://www.oyez.org/cases/1900-1940/261us525 2. Dennis v. United States, Oyez, https://www.oyez.org/cases/1940-1955/341us494 3. Korematsu v. United States, Oyez, https://www.oyez.org/cases/1940-1955/323us214 4. Lochner v. New York, Oyez, https://www.oyez.org/cases/1900-1940/198us45 5. Muller v. Oregon, Oyez, https://www.oyez.org/cases/1900-1940/208us412 6. Nebbia v. New York, Oyez, https://www.oyez.org/cases/1900-1940/291us502 7. Schenck v. United States, Oyez, https://www.oyez.org/cases/1900-1940/249us47 8. Shreveport Rate Cases, Oyez, https://www.oyez.org/cases/1900-1940/234us342 9. United States v. Carolene Products Company, Oyez, https://www.oyez.org/cases/1900-1940/304us144 10. Urofsky, Melvin and Paul Finkemlan. A March of Liberty: A Constitutional History of the United States, Volume II: From 1877 to the Present (Oxford University Press, 2011). 11. West Coast Hotel Company v. Parrish, Oyez, https://www.oyez.org/cases/1900-1940/300us379
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By: Zack Valdman Ohio’s opioid crisis has reached epidemic-type levels, and the statistics are shocking. According to the Ohio Department of Health, in 2016, 4,050 deaths occurred due to fatal unintentional drug overdoses (with over half of those relating to opioids), averaging out to around 11 people per day. From 2000-2015, Ohio’s death rate due to unintentional overdosing increased by over 642%, and this increase stems largely from opioid overdoses. Ohio is the second worst state in the country in terms of unintentional overdose deaths, and this epidemic continues to plague both families affected and the state of Ohio itself. In fact, the Ohio Department of Health estimates that combining both the direct and indirect costs of unintentional fatal drug overdoses, Ohio lost $2 billion in medical and work loss costs in 2012 alone.
On Monday February 26th, 2018, Ohio Attorney General Mike DeWine sued four major distributors of pharmaceuticals due to their alleged role in this opioid epidemic. Listed in the lawsuit filed in a state court are McKesson Corp, Cardinal Health Inc., AmerisourceBergen Corp, and Miami-Luken Inc. According to DeWine’s statement: “They knew the amount of opioids allowed to flow into Ohio far exceeded what could be consumed for medically necessary purposes, but they did nothing to stop it…” The lawsuit pursues both compensatory damages and punitive damages arising from the increased costs to the Ohio healthcare, criminal justice, and social services systems. Similar cases have been met with adamant denials of wrongdoing from the companies named as defendants in the lawsuit; Cardinal Health labeled the suit “unfounded”, AmerisourceBergen reiterated its commitment to reducing opioid diversion, and McKesson explained that it has reported thousands of suspicious drug orders in previous years. Whether this lawsuit is political posturing or a sincere attempt to help curb the opioid crisis is up for debate. The duty of corporations to monitor and attempt to diminish the amount of opioids is not defined, and some believe that rather than suing the corporations that manufacture the drugs, suing the clinics that distribute them in inordinate amounts would be a better use of time and resources. Others believe that corporations need to take more responsibility for this issue, and the lawsuits are well warranted. Regardless of where one falls on the issue, the opioid crisis in Ohio must be addressed one way or another. Whether the ultimate answer is lawsuits, legislation, innovation, awareness, or a combination of these factors remains to be seen. Sources Cited: https://www.odh.ohio.gov/health/vipp/drug/dpoison.aspx https://www.cincinnati.com/story/news/2017/12/21/ohios-overdose-deaths-soar-again-state-ranks-2nd-worst-nation/973220001/ https://www.reuters.com/article/us-usa-opioids-litigation/ohio-accuses-drug-distributors-of-helping-fuel-opioid-epidemic-idUSKCN1GA2MG https://www.ohio.com/akron/news/breaking-news-news/ohio-sues-drug-distributors-in-battle-to-curb-opioid-epidemic http://www.mobihealthnews.com/content/ohio-hosts-innovation-competition-combat-opioid-crisis By: Zack Valdman Freedom of speech, the lynchpin of American discourse, is seeing less and less support from Millennials. This worrisome trend arises from recent polls such as Pew Research in 2015, showing that 40% of millennials believe that the government should be able to prevent people from statements that are offensive to minority groups. To be clear, this column does not in any way support speech that is offensive to minorities; this type of speech is abhorrent and absolutely should not be tolerated by American society. However, there is a fine line between not tolerating speech from a cultural and societal perspective and believing that the government should be able to prosecute individuals who engage in such speech. The first amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As repugnant and repulsive as some speech is, the courts have interpreted the first amendment to protect all forms of speech that are not calls to violence, defamation, perjury, true threats, etc. Speech that is offensive, however, is not an exception to the first amendment. The Court has even interpreted burning the U.S. flag a form of symbolic speech protected by the first amendment. Burning the flag is an extremely controversial act and offensive to many, but the First Amendment of the Constitution protects it. The way the courts have interpreted the First Amendment, neither flag burners nor those who utter speech offensive to minorities can be prosecuted under the law. Now that is not to say there cannot be other ramifications for these individuals, as it is well within the law for employers to fire them and society to ostracize them. But this speech is considered protected by the Constitution of the United States, and the government should not be able to prevent people from uttering these statements by depriving them of life, liberty, or the pursuit of happiness in imprisonment. Exemplifying the dangers of a country without a First Amendment that protects freedom of speech is Poland. According to The Human Rights Watch, in January, the Polish government created a law that made it a crime punishable by up to three years in prison to claim that Poland was either responsible for or even participated in crimes committed by the Nazis during World War II. This law essentially criminalizes historical conversation, and rather than fostering a milieu that encourages debate on Poland’s role in the Holocaust, seeks to whitewash history. The law makes using the term “Polish death camp” illegal, and will enable the state body “tasked with establishing an official historical narrative and prosecuting Nazi and Communist-era crimes…to claim compensation from anyone “damaging the reputation” of Poland.” (Human Rights Watch). Under the guise that this term “falsifies Polish history” and “slanders” Poles, the government seeks to ban phrasing that makes it seem as though Poland was responsible for the Holocaust. While the camps were indeed set up and run by Germans on Polish soil, this law restricts freedom of speech and academic research, and serves to revise history by concealing Poland’s part in the Holocaust. Laws such as these only serve to exemplify the need for any country to protect freedom of speech, regardless of whether it is perceived as offensive by some or not. Without freedom of speech, any country’s government, even America, could pass the same draconian law. Sources: http://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limiting-speech-offensive-to-minorities/ https://www.hrw.org/news/2018/02/10/polands-twisted-holocaust-law https://www.ft.com/content/ccaf3370-0da7-11e8-8eb7-42f857ea9f09 https://www.theatlantic.com/international/archive/2018/02/poland-holocaust-law/552842/ By: Eleni Christofides This February marks the forty-second year that Black History Month has been recognized at a national level in the United States. In honor of the history, successes, and continuing fight for civil rights, this essay will examine a recent Supreme Court case: Shelby County v. Holder from 2013. The ruling in this case makes it especially important to remember that the goals and vision of the Civil Rights Movement did not end in the 1960s, and must continue to be supported legally if progress is to be maintained and expanded.
The Voting Rights Act of 1965, a critical piece of civil rights legislation, includes sections that aim to eliminate forms of discrimination which constitute voter suppression and disenfranchisement of minority groups in state elections. Section 4(b) of the Act defines the districts that can fall under the purview of the Act, and the Section 5 states that eligible districts are not allowed to change election laws without gaining authorization from the federal government, to ensure that the change does not have a discriminatory effect (2). Shelby County in Alabama, the petitioner in the case, filed a suit in the district court that argued Sections 4(b) and 5 of the Act were unconstitutional because they imposed a permanent restriction on the county. The district court and D.C. Circuit Court upheld the constitutionality of the statutes and Congress's rights to renew them (3). In the further appeal that would be Shelby County v. Holder, the Supreme Court would answer the following question: does the Voting Rights Act of 1965 continue to pass the standard of constitutionality, and does Congress have the authority under the 14th and 15th Amendments to renew Sections 4 and 5 of the Voting Rights Act? (3). The Court ruled partially in reverse, deciding that no, Section 4 of the Voting Rights Act is unconstitutional due to its unnecessary discriminate treatment of certain states and counties. Congress thus exceeds its powers granted by the 14th and 15th Amendments by renewing the statutes (2). The Court reasoned that states retain sovereignty under the Constitution and that sovereignty must be equal among all states; the Voting Rights Act violates that principle because it makes states apply for changes to election law, and thus the requirement will inherently affect certain states more than others. Thus it creates substantive standard differences between states for their burden of proof if sued, and slows their process of enacting election laws. Most importantly, the Court argued, the Act is no longer necessary because minority voting turnout in the targeted states has improved so that disparities no longer exist. Since the statute's enforcement should be justified by "current needs," and those needs no longer exist, the statute no longer meets the necessary criteria to be used and creates an undue burden for those eligible states (2). The Courts says Congress used old data in an attempt to justify the law, and this discriminates against states' abilities to regulate their own election laws. Unfortunately, the majority decision in this case fails to recognize the importance of the law for retention of progress. If indeed these voting rates have improved in targeted states, then unless it can be proven that there is another causal factor, it is likely that the Voting Rights Act had a significant role in this change. If that is the case, it makes the legislation far more important to keep, in order to prevent the loss of progress, and would constitute a justifiable burden for a legitimate congressional interest. The Roberts Court majority in this case conveniently focuses only on “current needs,” and seems to ignore the fact that minority voter suppression is a well-documented, continuing problem, even if it becomes less blatant than it has been in the past. Indeed, this ruling has led to aggressive laws that removed early voting and same-day registration policies—Golden Week in Ohio, for example—and purged voter registration rolls (1). By effectively making it more difficult to prove discrimination, this decision implies a declining dedication to protect the civil rights that were fought for so arduously. Civil rights legislation needs to remain on the books to provide constant protection, but its value is also symbolic: it acknowledges that the struggle is not over, that there are improvements to be made, and that the federal government is a willing partner in that fight. That, in particular, is what makes the attitude in Shelby so troubling. References: 1. Fuller, Jaime. “How has voting changed since Shelby County v. Holder?” July 7, 2014. https://www.washingtonpost.com/news/the-fix/wp/2014/07/07/how-has-voting-changed-since-shelby-county-v-holder/?utm_term=.bba1b72510b7 2. "Shelby County v. Holder." Justia, https://supreme.justia.com/cases/federal/us/570/12-96/#annotation 3. "Shelby County v. Holder." Oyez, www.oyez.org/cases/2012/12-96. By: Ben Lipkin Recently the American news cycle has been a steady stream of sexual assault allegations, from politicians such as Senator Al Franken to Hollywood celebrities such as Kevin Spacey it appears as though anyone could be a perpetrator. This sudden outburst forces the public to ask why. While possible answers like stigmas exist and may be part of the overall problem, one underlying legal loophole may be worsening the issue. Non-disclosure agreements (NDAs), which were intended to protect confidential business information, are being used to silence victims.
NDAs, or confidentiality agreements, are contracts between two parties wherein one or both participants agree not to disclose confidential information for a specific length of time or in perpetuity (Harroch, 2016). NDAs usually come in two forms: mutual NDAs are used when both parties share confidential information and non-mutual NDAs are used when only one side is divulging confidential information. These agreements usually describe both parties, the date information is being shared and when, if ever, the agreement expires (Harroch, 2016) Most information regarding research or company financial information can be covered in an NDA; however, not everything can. NDAs do not have infinite capabilities; for example, any information known to the public or information the receiver of information knew before the disclosure is not covered. One important caveat is that any information required to be disclosed to authorities is also not covered (IPR, 2015). For example, an NDA cannot cover criminal activities such as fraud. NDAs are also not valid if there is a lack of mutual assent to create the contract, if the contract was not thought to be legally binding, or the contract itself lacks definitiveness (Garfield, 1998). These cases are decided by courts; however, even with these exceptions, current law can cause serious problems. NDAs are not just used in a business setting; people in positions of high prestige and power utilize NDAs to protect their reputation. Celebrities may use NDAs to silence the details of their prenuptial agreements or their whereabouts; however, NDAs become problematic when they are used by people like Harvey Weinstein to silence victims of harassment (Greenfield, 2027). Contracts used to silence victims of harassment are generally done so under the guise of protecting reputation and personal information. An example of this type of agreement is a contracting stating: “’not disclos[e] to any person or entity any information … about any one at the firm’” (Greenfield, 2017). Although not explicitly stated, this type of agreement forces victims to keep silent about anything that could disparage anyone at the firm. Sexual harassment claims certainly harm the reputation of the accused and thus are prohibited under the agreement. The “me too” movement shows the effect of this very clearly. Arguably, American culture is such that victims are supported when they speak out, but don’t feel comfortable doing so; however, it is questionable whether NDAs can regulate these types of issues. According to the ACLU such agreements may fall under the “unconscionable” caveat wherein mutual assent could not have been possible. In cases with extreme power differentials, or coercion, contracts of this nature may not be viable. The ACLU furthers that such agreements may be contrary to the public good, presumably because perverse individuals would not be punished (Roth, 2018). One current law which could void NDAs in sexual harassment cases is the National Labor Relations Act (NLRA) which passed in 1935. Originally intended to allow workers to unionize, the NLRA has evolved over time. In the case of Phoenix Transit Sys. v. NLRB (2003) a United States Court of Appeals found that “an employer’s policy of requiring confidentiality in all sexual harassment investigations was overbroad and unlawfully interfered with the employees’ Section 7 rights (Klauser, Adam, et al, 2011). While there is still a dichotomy among the legal community as to how applicable the NLRA is in sexual harassment cases, it is still an important consideration. It is clear that the ambiguity of this law is not sufficient; however, our legislature is taking steps to correct this issue. Arizona Rep. Maria Syms (R-Paradise Valley) recently proposed House Bill 2020 which would directly address this issue. The bill reads A. A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO A SEXUAL ASSAULT OR SEXUAL HARASSMENT, INCLUDING FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT, IS AGAINST THIS STATE'S PUBLIC SAFETY AND POLICY AND IS VOID AND UNENFORCEABLE. B. A PERSON MAY NOT ENTER INTO A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT BY AN ELECTED OFFICIAL. C. THIS SECTION DOES NOT APPLY TO THE DISCLOSURE OF A MINOR CRIME VICTIM'S MEDICAL OR PERSONAL IDENTIFYING INFORMATION OR TO OTHER INFORMATION THAT IS SPECIFICALLY PROTECTED FROM DISCLOSURE BY LAW. (US Congress, 2017) This bill would retroactively invalidate all NDAs relating to sexual harassment and assault in Arizona; such a change, if enacted at the national level, would have unpredictable consequences. Although there are documented cases of NDAs being utilized in this way, the extent to which they are is unknown. NDAs are certainly an integral part of contractual law; they are universally recognized and breaking their terms can have severe consequences. These consequences, however, may be deterring victims of harassment from coming forward with their mistreatment. In current law NDAs may or may not be valid in these cases, and legislation is being proposed to bring much-needed clarity. Works Cited Garfield, Alan E. “PROMISES OF SILENCE: CONTRACT LAW AND FREEDOM OF SPEECH.” Cornell Law Review, vol. 83, no. 293, 1998. Greenfield, Rebecca. “How NDAs Maintain a Culture of Silence around Workplace Sexual Harassment.” The Independent, Independent Digital News and Media, 19 Oct. 2017, www.independent.co.uk/news/business/news/ndas-sexual-harassment-culture-silence-harvey-weinstein-non-disclosure-agreement-law-firm-a8008376.html. Harroch, Richard. “The Key Elements Of Non-Disclosure Agreements.” Forbes, Forbes Magazine, 10 Mar. 2016, www.forbes.com/sites/allbusiness/2016/03/10/the-key-elements-of-non-disclosure-agreements/#5c1b8015627d. Klauser, Adam, et al. The National Labor Relations Act Is Not Just for Unionized Employers Anymore. Cornell University School of Hotel Administration, 1 Nov. 2011, scholarship.sha.cornell.edu/cgi/viewcontent.cgi?article=1001&context=cihlerpubs. Non-Disclosure Agreement: a Business Tool. European Union, 2015, www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-Non-Disclosure-Agreement.pdf. Accessed 6 Feb. 2018. Roth, Emma J. “Is a Nondisclosure Agreement Silencing You From Sharing Your 'Me Too' Story? 4 Reasons It Might Be Illegal.” American Civil Liberties Union, American Civil Liberties Union, 24 Jan. 2018, www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silencing-you-sharing-your-me-too. United States, Congress, Confidentiality Agreements; Sexual Assault; Harassment . 2017. Maria Syms. By: Zack Zaldman Does the United States government need a warrant to search through your phone records to determine your location? That is the question up for debate in Carpenter v. United States, a potentially landmark case for which the Supreme Court heard oral arguments on November 29th, 2017.
Case Background: In 2011 police arrested four men with suspicion of multiple armed robberies. One of the men gave the FBI not only his cell phone number, but those of his co-conspirators accused of the crime as well (including Carpenter’s number). The FBI then used this info to extract “transactional records” from the phone numbers under a court order, but not a warrant from a judge. This record included date and time of calls on the phone in addition to the location of those phone calls. The FBI then indicted Timothy Carpenter with aiding and abetting robbery based on this location data. Issue: The issue at hand is whether the collection of Carpenter’s cellphone records is constitutional. Without a warrant for the records request, Carpenter and the ACLU argue that the Fourth Amendment protects against the warrantless search and seizure of location records, while the U.S. government argues that a court order granted under the Stored Communications Act is sufficient to obtain Carpenter’s records. Carpenter requested the cellphone location information be suppressed from the case because it was obtained unconstitutionally. The District Court denied the motion to suppress and the Sixth Circuit Court of Appeals affirmed the District Court’s decision, leading to an appeal heard by the Supreme Court. The justifications for obtaining cellphone records comes from the 1979 Supreme Court decision Smith v. Maryland, stating “a person has no legitimate expectations of privacy in information he voluntarily turns over to third parties”. Since all phone information goes through cell providers, this information is technically turned over to third parties as soon as a contract for cell service is signed. Whether this third party doctrine applies to the location from which calls are made however, remains up for debate. Result: If the Court rules in favor of Carpenter it would be a victory for right to privacy advocates and those concerned with the increasing trend of unrestricted digital surveillance. Early signs from the justices during oral arguments seemed to favor Carpenter. Nevertheless, the ultimate verdict remains to be seen and will be forthcoming sometime later this term. Works Cited https://www.oyez.org/cases/2017/16-402 http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2/ http://reason.com/blog/2017/11/29/today-at-scotus-warrantless-cell-phone-t#comment By: Eleni Christofides
It is difficult to imagine a time (perhaps for college students in particular) when Americans were forbidden from manufacturing, selling and transporting alcohol. But nearly 100 years ago, the passage of the 18th Amendment began the period of Prohibition. This lasted for 13 years, before the 21st Amendment was passed and turned the 18th Amendment into the only constitutional amendment ever to be repealed (1). In honor of the 21st Amendment's 84th anniversary on December 5th, here is a brief legal history of America's short lived period as a dry nation. The 18th Amendment banned the manufacture, sale and transportation of intoxicating beverages, but it did not prohibit individuals from possessing or using such products (2). The Volstead Act, which was intended to function as the federal enforcement mechanism for Prohibition, failed to close these loopholes. Thus, Prohibition laws were not able to eliminate the consumption of alcohol, and instead led to some creative strategies to drink outside of their purview. First, Prohibition included a legal exemption of pharmacists, who were still allowed to sell whiskey to fill prescriptions, and this made pharmacies a convenient front for the innovative bootlegger (2). The law's vagueness when it came to home brewing also led many Americans to take up the hobby of distilling their own liquor or wine. Obviously the law had little impact on Americans' drive to drink, and their resourcefulness led to circumvention of the law—occasionally with grave consequences. The stealing and eventual selling of industrial alcohol, the kind used in paints, solvents and fuels, led the Coolidge Administration to employ a new discouraging method: by having chemists add denaturing formulas that were difficult to reverse, the alcohol became not only foul-tasting, but deadly (3). The addition of poisonous chemicals did not succeed as a deterrent for drinking during Prohibition, but instead became a death sentence for a significant number of people. In 1926, 1,200 New Yorkers fell ill due to the poisonous alcohol, and 400 died; the death toll reached 700 people in 1927 (3). It is difficult to say if Prohibition-era laws truly led to a reduction in alcohol consumption, as statistics from the period were difficult to collect. According to tax stamp records, there may have been a decrease in alcohol use before Prohibition and after, and during the 13 years of the 18th Amendment's existence, some data suggest a decline in alcohol-related diseases (4). However, many localities likely saw increases in alcohol use (2). Therefore, it is most important to note that, not only did the illegality of alcohol lead to a number of horrific poisoning deaths that arguably would not have occurred otherwise, but any benefits it had by reducing alcohol consumption are offset by the increase in alcohol-associated crime. Specifically, the banning of the substance created a national crime syndicate for illegally moving liquor and profiting from it. Gang crime certainly existed before this era, but it operated on a local level; the national nature of Prohibition encouraged the creation of an unprecedented level of nationally organized crime (4). The huge number of Americans involved in bootlegging and the illegal liquor trade also led to a surge in arrests and adjudications; as courtrooms became inundated with criminal cases, plea bargaining became a necessity to keep the system moving, and this began its reign over the use of the trial, which the American criminal justice system still sees today (2). The story of Prohibition's failures has important implications for the fight over currently controlled substances: ultimately, the 18th Amendment attempted to prevent alcohol use by targeting the supply of the product, not the demand for it. Similar tactics have been and continue to be utilized in the War on Drugs enforcement, and given the continued rate of drug use and related arrests, this strategy may become even more reminiscent of America's previous attempts at Prohibition; eventually it may become just as obviously inadequate for addressing substance use in this country, if it has not already done so. References:
By: Jason Allen Jason: Can you give a general overview of your career arc since law school?
Robert Solomon: In law school, I decided I wanted to be a litigator. I was a communications major in undergrad, and I was drawn to the idea of being in the courtroom and arguing appeals. In law school you don’t major, but you have the opportunity to take courses that feed into your interests are during your second and third year, and so that’s what I did. I did the legal clinic, I took trial advocacy courses, and I took appellate advocacy. My first job out of law school was as assistant attorney general of Ohio, which was really cool and challenging. I got both feet wet right away, which is the benefit of working for the government, because while you get great money at big law firms, it will be a long time before you’re the man or woman in the courtroom. You’re going to be carrying someone’s suitcases for a long time. I loved [working in the attorney general’s office], it was a really great experience. I loved the writing and being in the courtroom. One of the big misconceptions about litigators is the people don’t understand that litigators write a lot. Many of your cases will be disposed in written form, and you’ll never actually see the courtroom. It’s only a small percentage of your cases that you’ll actually go to court for. So, you don’t only need great oral skills but also writing skills. At the attorney general’s office, I worked in three different areas. The first was in federal litigation. I primarily worked on habeas corpus cases. Those are cases in which people are in prison and they’re trying to get out, claiming their constitutional rights were violated. My job was mostly to explain the ways in which they were not violated, and that was mostly appellate work. Also in federal litigation, we did federal employment cases based upon federal statutes for employment discrimination. The second area I worked in the attorney general’s office was in worker’s compensation. The reason I moved to that division was because federal cases take a long time to work through the system, and as a new, young lawyer, I wanted to see more work to get experience. By statute, the state of Ohio requires that workers compensation cases are supposed to be resolved within six months. That meant I was able to have my workload increase a lot and get a lot more jury trial experience in. The third position within the AG’s office was the children’s protection division. I went to that division because I was promoted to management, becoming assistant chief, and eventually Acting Chief. I did administrative law cases, foster care and child care. I was prosecuting, revoking licenses for people who weren’t meeting their requirements. I left the attorney general’s office to become a magistrate, where I heard small claims cases, evictions, minor traffic offenses, wage garnishments, and different things like that. While I was doing that, I was teaching business law at the undergraduate level at Columbus State Community College. That sparked my interest in legal education. I got the opportunity to teach trial advocacy at Ohio State’s law school, so I left the court completely to do that. Over Over the years, I became the Dean for Admission at the law school. Eventually, another opportunity came to join the United States Attorneys Office at the US Department of Justice. I was at the law school for almost five years, and I sort of missed practicing law full time, even though I always keep my license current and I still do some practice. I really loved working in the Justice Department, but after some time I returned to the law school. The person who had replaced my me in my old position at the law school left, and I had the opportunity to create an Office of Diversity and Inclusion in the law school as well as continue in my former role of Dean for Admission. So I came back to the law school as Chief Diversity Officer and Dean for Admission and Financial Aid, and I continued to teach. I started teaching evidence law when I came back. I did that until I got the opportunity just a little over two years ago to work here at the university’s Office of Diversity and Inclusion. The work I did as the law school’s Chief Diversity Officer sort of laid the foundation for the work I do now at the university’s Office of Diversity and Inclusion, and so that’s what I do now. J: That is really amazing. I didn’t know about your time with the DOJ. What was the specific work that you did there? RS: It was similar to what I did for the state attorney general but instead at the federal level. I was a civil litigator, working in civil defense. The worked on federal tort claims, which could be anywhere from a slip and fall in the US Post Office, to a medical malpractice in the Veteran’s Hospital. I did employment discrimination cases under Title VII, Medicaid and Medicare subrogation cases, and condemnation cases, which we call imminent domain at the state level. J: So, you said you are still doing a bit of practice now. What kind of work are you keeping up with? RS: It’s all pro bono stuff. To the extent I’ll have time, I’ll help someone out. It could be as simple as writing some legal counsel for someone when they have a problem. It’s really just helping out when I can. J: It’s remarkable how broad-based your career arc has been. How do you feel like law school helped to prepare you for such a versatile set of jobs? RS: I definitely think a legal education is a very broad-based and comprehensive education. You’ll learn the foundations of the law, but more than anything I think a legal education teaches you how to think critically, analytically and how to solve problems. Whatever your job is, you’ll be confronted with problems, and you’ll have to figure out what is the most efficient, intelligent, appropriate way to solve the problems. Law school teaches you how to do that, and I think that’s why the education is so transferable. Very specifically, it teaches you how to practice law, but I also think that the foundation of learning how to think and learning problem solving in a clear and concise way are skills that translate to just about anything that you might want to do. In law school, you learn how to be a great writer and communicator, and I think those skills apply to just about everything I have done. A legal education prepares you for the specific, but it prepares you for the general as well with transferable skills that can be applied to almost anything, with the exception of things that are so specialized, of course. Studying the law isn’t going to help you practice medicine, or being an electrician or engineer, but it could certainly help you lead a hospital, or be the CEO of an engineering firm. J: What helped you to decide where to go to law school, and what kind of things would you advise prospective law school students to think about and prioritize when trying to decide where to apply and attend law school? RS: Well, I definitely think that my personal process isn’t one I would advise anyone to take. And that’s not because I didn’t make a good choice. I think I made an excellent choice. You all have such better access to information than I did when I went to school. Back during that time, there was no internet, so when I wanted to go to law, I had to look it up in a bound book and send a card off to the school asking for them to send me their books and information. We couldn’t go online and do virtual tours and everything, so I didn’t really know that much when I was looking at going to law school. I am from Ohio, so naturally I wanted to go to the flagship law school in my state. I actually almost went to Temple law school because there was a mix up and I got my admission from there first, but eventually things started coming in from Ohio State. In terms of deciding where to go, there are a lot of things a person should think about. I think there is an over-reliance on US News rankings. There is useful information there, I don’t dispute that, but I think it’s a bad idea to select a school based upon rankings alone. You have to think about what you’re interested in studying and what you might get out of a particular institution. Sometimes, a school might say they have a special program in something, but that doesn’t mean they’ll actually give you exactly what you need and you’ll have to delve a little deeper into things and consider what the curriculum offerings are. Another law school might have very similar curriculum offerings, but they just don’t call it a “special program”. So it can take some work to really compare law schools and see what is and isn’t there. I also think fit is really important. Are faculty members accessible? Do that talk to students and work with students? Talk to current students who are there. What is there environment like? Is it cooperative, is it competitive? What are the alumni like? Are they invested in the institution? Is it a diverse population? Do underrepresented students flourish in the environment? What is the school’s placement rate? Where are [graduates] going to work and what kind of things are they going to do? You have to consider all of these things to decide whether a place is where you want to be. And it doesn’t have to be in the state where you want to practice. You just need to figure out if it’s a place where you want to be for three years. J: I think that’s really valuable advice. What is your perspective on what really went well for you as a law student and what didn’t go so well? RS: The first thing I would note is that I don’t think I really appreciated how important the first year is to setting the tone for what your opportunities will be later on. It’s tough because that’s kind of the learning curve year and you’re trying to get everything figured out, but in terms of employers, a lot of emphasis can be put on your first year. This especially applies to people who want to work for a big law firm. Big firms come to law schools to interview students, and they evaluate the students based off how they did their first year. If you didn’t do well your first year, the law firms may not be interested in you. They’ll make offers for you to come and work as a summer associate during the summer after your second year. If you do well as a summer associate, they’ll offer you employment for after you graduate. So, for a lot of students, there can be a lot riding on how you perform in your first year of law school. That doesn’t necessarily apply for every career path. For government jobs, they might put more consideration into the breadth of your law school career. That is probably true for smaller law firms and for corporations as well. So, I don’t think I really appreciated all that during my time as a law student, but I think things definitely worked out for me in the long run. You do have to work very hard and be very disciplined right out of the box, and sometimes when you come right out of undergrad, you might feel a little burnt out, but you have to gear up and get ready [for law school]. Another important thing for law students to do is to take advantage of what is there at the school. There will be widely renowned people, published people, people who are thought leaders in our nation and the world who will come to speak and who you should go listen to and learn from. That will give you an education inside and outside the classroom. Law school can be so consuming that you might not want to. You might say, “I’ve got homework. I’ll be on call tomorrow in class, I’ve got 115 pages to read, and so I’m not going to be able to go to this lecture or this speaker.” I say that’s a mistake. It may be a once in a lifetime opportunity to see some of these type of people speak, and there’s so much you can learn from it. Figure out how to get your work done, but also take advantage of the opportunities outside the classroom. The last bit of advice I have is about study groups. I was never much of a study group person. I was much more comfortable studying on my own during my first year, but I do think that in law school study groups are very valuable because you get someone to bounce your theories off of. You get to see other ideas that you might be missing. You might have a blind spot and you don’t know it. In law school, you don’t have a bunch of quizzes. You have one test, and that’s your whole grade. So it can be hard to know how you’re really doing. Study groups kind of allow you to hear other perspectives. If someone is like me and not very into study groups, go ahead and study on your own and then meet with a study group. Then you can arrive at things on your own and then bounce it off a study group. J: How accessible are professors in law school? In undergrad, I find that professors are fairly accessible. If you really want to talk to them after class or reach them during office hours, you typically can. Is it like that in law school? RS: Yes, definitely, and in some ways it’s even better, because in law school there are no TA’s. There are no intermediaries, and so things are more direct to your professor. You will get to talk more directly with the person who will be writing your exams and grading them. I have this one analogy that I use to express the challenging nature of law school. I ask people, “what do you feel like the day before a final exam in terms of how prepared you are?” You know all the facts, the details and you’re ready to go. Well, everyday in law school is like the day before an exam in undergrad. That’s the level of preparedness that you need to have going into class everyday in law school. And so that’s why I say [law school] is on another level of preparedness. In undergrad, typically the first day you come and you haven’t read the material, the professor is just kind of introducing him or herself and kind of telling everyone what the class is all about and all of that sort of thing. That’s not law school. The first day in law school, you should expect the professor to walk into class and say, “ Mr. Allen, please tell me about Marbury v Madison. What was the holding? What was this case about?” This is day one, minute one, it begins. Straight to business. There is no kind of warming up. You will know your reading assignments before the first day of class, and you will be expected to have read it to full preparedness to be able to discuss it and answer questions about it. J: What are the resources like in law school? In undergrad, you have access to tutoring and counseling, and there are many options for extracurriculars. How are available are those sort of things in law school? RS: In terms of academic support, it may depend on the law school. Some law schools have very formal programs in place, while a lot of law schools don’t. Generally, if you have questions, you go to ask the professor. Some schools might have systems set up with upperclassmen who can help people with questions. Typically, though, there aren’t really tutoring programs. The presumption is, if you are admitted, you are already operating on a higher level and you are expected to jump in and be able to handle it. If you are at a law school that is on a large university like this one, all the other supportive resources will be available to you just as if you were in undergrad. Whether it’s counseling services or recreational facilities, everything that is available to you as an undergrad will be available to you as a graduate student. If it’s a free-standing law school that is not affiliated with a larger university, I’m not sure how that all works out. The one thing to note is that with most law schools, as it is with Ohio State’s, the school is one building. The library is there, your classes are there, your locker is there, the financial aid office and registrar are there, so it’s pretty easy to get everything you need in that one place. In terms of extracurriculars, you have an entire array of those available. There’s a student bar association, which is the student government. There are affinity groups, like a Black Law Students Association or Latinx Law Students Association or a Middle Eastern Law Students Association. Then you have groups that form around interest, like Sports Entertainment Law Society or a Business Law Society and things like that. J: Were you involved in any organizations? RS: Yes. I was the Vice President of the Black Law Students Association my second year and President in my third year. I was a student bar association senator for two of my three years in law school. I was on the moot court governing board as well. J: Earlier, you mentioned how people can feel burned out heading into law school after having completed their undergrad education. Some people take time off between law school and undergrad, whether it’s to work or travel or do whatever else. Is that something you would advocate for? And if so, how can someone most valuably spend time off between undergrad and law school? RS: I would say that law school is not like business school, where taking time off can be part of a strategy to be an attractive applicant. So, I always tell people, “if you are going to take time off, do it because it’s something that you want to do. Don’t do it because you think it will make you a more appealing law school applicant.” Usually, about 55 to 60 percent of the incoming classes at law schools are coming straight out of undergrad. But if it’s something someone wants to do because you feel burnt out, or you want to travel, or you need to save money and work, then you should do that, but I am just saying that it is not necessarily going to make you a more attractive applicant. It could though, depending on what you want to do. Some people might want to do a master’s degree before they go to law school, or work as a paralegal or legislative intern or something like that, and it ends up being another point of interest that makes you a more appealing applicant. I just don’t want students to think that you have to do this to go to law school, because still the majority of students heading into law school did not take time off. J: What has compelled you throughout the years to make career changes? RS: I think I have kind of settled in now, but initially I was looking for growth opportunities. When I started out as an assistant attorney general, my work was federal litigation. I was doing more appellate than trial work, and I wanted to get more trial work. I was in the habeas unit, but even though I had a full caseload, I would volunteer to second chair to do the work of people who were doing federal trials. That opened the door for me to participate in another aspect of work. I then moved to a division that solely did trial work. Then I eventually moved to another position because it gave me the opportunity to be in a management role. When I left the attorney general’s office, it was for exploration. I wanted to work in the court and be in the quasi-judicial seat of the magistrate. When I moved on to teaching at the law school, it was to explore my interest in legal education. I knew that I could always go back to practicing law full time, so I didn’t feel like it was a big risk to make these moves. I ended up finding that I really love working in the higher education environment. When I went to work for the US attorney’s office, I was going through what I call my “professional identity crisis”. I questioned that, while working for the university, if I was really a lawyer anymore. I felt like I was good at it and that I loved being a lawyer. So, again, making that move was all about career exploration. When I went to the Justice Department, I felt like I was still good at that sort of work, and so I think I just needed to get that out of my system. When I went to the law school the first time, the notion of turning away from practice after it had been my focus for so long made me feel unsure. After I came from the US attorney’s office to the law school, I felt that if I never ended up practicing law full time again, I wouldn’t have any regrets. I kind of reaffirmed that I was really good at it, and now I am doing the kind of work that, if I was independently wealthy, I would still do. I have been fortunate that, in my move from the law school to the university’s ODI, I’ve been able to continue doing the same kind of work. I really do love working in this environment. I help to develop policy that impacts students in a positive way. J: In your time as a professor, did you have students that especially stick out to you? What sort of things did you most appreciate seeing in your students? RS: There are countless students who showed incredible potential and ability, and it really encouraged me that I played a role in helping them to do the sort of work they went on to do. There is a person who is the vice president and general counsel for a corporation right now. I remember her as a first year law student. She actually came to work for me as her first job out of law school. She didn’t take the bar right away, but when she eventually did she became a prosecutor for the city and then she became a law clerk, and it’s just been great to watch her career really blossom. There are a lot more that are like her, just doing incredible things. There is a student who was on the Frederick Douglass moot court team I was the coach and general advisor for who is now general counsel for a large corporation in Chicago. Another one who is a major partner at a large national firm. Some of them have gone back to help other students I’ve taught. I’ll send for them, and one former student will give another some sort of opportunity. The networking process continues when you meet more great people. Now, being in the ODI for as long as I have, the last group of students who I admitted to law school are third years now. Once they graduate, there will be no students in the school who I’ve had contact with. Where it has changed for me is the extent that I am able to contact undergraduate students. It’s on a different end now. Now I am not having contact in the law school, but instead before it. In some ways I think I am able to be more helpful, because when I was the decision maker I had to be more objective and I couldn’t give one student more advantage than the other, but when I’m not the decision maker, I can advocate for you, I can read essays, and do all sorts of things to help you. I’m able to assist students on the front end rather than on the back end. J: In that decision making role, what were the biggest things you were looking for in applications? RS: For me, personally, I was looking for well-rounded students. It goes without saying that you want academic strength demonstrated, but I really wanted well-rounded students and leaders, people who are engaged in the world around them. You can have someone who graduated with a 4.0, but they didn’t do anything but go to class. I suppose that the person can handle things academically, but lawyers really do need to be engaged people. You need more than that. You need a sharp mind, but you also need to be able to engage and connect with people. J: What do you feel like the connections you have made throughout your career have offered you? RS: For me, the best part about it is that it has allowed me to connect others to one another. To me, that is incredibly invaluable. J: Is there anything that we haven’t been able to touch on that you might be able to offer to undergraduate students like me who are leaning towards law school? RS: The most important thing is to get a legal education. Some people say I want to get into Harvard or Stanford and strictly pigeonhole themselves far too much in terms of identifying a law school. There are 200 ABA-accredited law schools out there. There are some great law schools that are not in the top 30 in the nation. I think it is always important to apply broadly. I think you should have a reach school, and then your “mid range” schools, and then your safety school. I think there are some great law schools that people kind of overlook sometimes. Don’t pigeonhole yourself in terms of where you want to go. I always emphasize fit. So, you might get into University of Chicago, and they’re higher ranked than Ohio State, but Ohio State might be a better fit for you. You might still want to go to Chicago, but make sure you’re not choosing Chicago solely because it is higher ranked. Do your due diligence. Consider the faculty, the curriculum offerings, the placement rate, where graduates go to work, the alumni support, and all of those sort of things are important in selecting a law school. By: Spencer Dirrig “I believe it is time to speak up on behalf of all heterosexual males. As a candidate for Governor let me save my opponents some research time. In the last fifty years I was sexually intimate with approximately 50 very attractive females.” That’s how a sitting Justice on the Ohio Supreme Court chose to publicly react on Facebook to sexual assault allegations in the US Senate. Ohio Supreme Court Justice Bill O’Neill is the lone Democrat on the highest Court in the State of Ohio. On November 17th, 2017, the sitting Supreme Court Justice publicly detailed his sexual escapades in a rotten and grossly inappropriate attempt to “speak for all heterosexual males.” Putting aside the distasteful sexism and ignorance of his attempt to defend sexual assailants, the Justice’s comments are gross and unacceptable conduct for a public servant. These statements were unbecoming of a Supreme Court Justice and made an embarrassment of our state. Unfortunately, this is just the newest chapter in a long history of lackluster standards when it comes to the Justices of the Ohio Supreme Court. While Justice O’Neill’s comments were obviously unbecoming, the legacy of corruption and unqualified members of the Court do not end with this Justice. From “not recommended” candidates defeating “highly recommended” Justices to conflicts-of-interest and a disregard for public scrutiny, the Ohio Supreme Court is plagued by less-than-ideal membership. This isn’t the first time Bill O’Neill has neglected his role as a public figure and an upstanding member of the Court. Justice O’Neill declared his candidacy for Governor of Ohio on October 29, 2017. The Ohio Code of Judicial Conduct states that “Upon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office.” So how does Justice O’Neill explain his continued presence on the highest court in the State? He claims that, while he is running for the Democratic nomination for Governor, he is not an “official candidate” until his petitions are filed with the Ohio Secretary of State’s Office. With Justice O’Neill’s most recent behavior, concerning his sexual history statements, it seems the Justice won’t be a competitor for the State’s top job anyhow. Despite this, it is clear that a man who would publicly defend accused abusers like Roy Moore by explicitly detailing his sexual “conquests” to the world does not have the judicial temperament to serve in this capacity. These events are, however, indicative of a much larger issue: we don’t elect quality Supreme Court Justices in Ohio. The elections for each of the seven seats on the High Court are nonpartisan statewide races. The Justices are elected to a six-year term. However, the quality of the candidates may be commonly eclipsed by name recognition and name quality. As there are no party identifiers on the ballot (R or D), many voters cast their ballot for the name they recognize. This creates a serious problem for our court system. If voters choose their candidate for Justice based on name recognition, the effect of monied interests and ad buys become far greater. As such, the races may be tainted by outside spending for unqualified candidates. That being said - voters are not always led to the candidate who spent the most. Justice O’Neill was “famous” for having raised no money for his election campaign. Many believe he won due to his memorable and familiar name: O’Neill. To help voters decide between the candidates for Justice, the Ohio Bar Association examines each candidate’s experience and history in the legal field. After a vote of Bar Association members, the Ohio Bar Association then announces a rating for each candidate: “Highly Recommended, Recommended, or Not Recommended.” The system is meant to ensure that candidates for Justice are experienced and qualified to serve in that capacity. However, the voters don’t always follow these recommendation. “A politically "good" surname can help determine who reaches Ohio's bench, a name game that Ohio's low-information judicial campaigns practically encourage. That's why ratings of judicial candidates by nonpartisan groups, such as the Ohio State Bar Association Commission on Judicial Candidates, can be such a help to voters” (Cleveland.com). Justice Sharon Kennedy, a Republican, was elected to the Ohio Supreme Court in 2012 after defeating Incumbent Justice Yvette McGee Brown, a Democrat. In this critical election, “the Ohio State Bar Association rated Kennedy as "Not Recommended" according to eight criteria: legal knowledge and ability, professional competence, judicial temperament, integrity, diligence, health, personal responsibility, and public/community service” (Ballotpedia). Stunningly, this was the first time the commission gave a “Not Recommended” rating to a supreme court candidate in 14 years. The incumbent Justice Brown, on the other hand, was rated “Highly Recommended” by the commission. With 57% of the vote, Justice Kennedy was elected to a partial term ending in 2014. After her “Not Recommended” rating in 2012, then-incumbent Justice Kennedy declined to participate in the commission’s vetting process in 2014. In what many saw was an affront to the right of the voters to have ample information concerning a Justice’s qualifications, Justice Kennedy simply passed on the opportunity to be examined by the Bar Association. According to Cleveland.com, “that didn't do voters a favor. Ohioans, in picking judges, need more information, not less. Justice Kennedy's decision means voters will have less -- but, perhaps, can infer more.” One possible explanation for Justice Kennedy’s decision to forgo examination could be her troubled approach to judicial impartiality. In March of 2017, Justice Kennedy “gave the keynote speech at Greater Toledo Right to Life's annual legislative briefing breakfast” (Cincinnati Enquirer). Justice Kennedy chose to give this obviously partisan speech despite the fact that the Ohio Supreme Court was scheduled to hear a case that “could close Toledo's last abortion clinic.” This isn’t the first time Justice Kennedy’s views on abortion as a sitting Justice have been brought to the forefront. In 2014, as a sitting Justice, Justice Kennedy responded to a questionnaire for Greater Cincinnati Right to Life and “Kennedy agreed with the statements: “an unborn child is biologically human at every stage of his or her biological development, beginning at fertilization” and “there is no provision in the current Ohio Constitution intended to require the use of public funds for abortion” (Cincinnati Enquirer). While Justice Kennedy’s actions may cause concern over conflicts-of-interest, no one can beat Justice Pat DeWine in that arena. Justice DeWine was elected to the Ohio Supreme Court in 2016, defeating District Court of Appeals Judge Cynthia Westcott Rice. In a familiar trend, Judge Rice was “Highly Recommended” by the Ohio Bar Association while Justice DeWine was “Not Recommended.” According to the OSBA, a “not recommended” vote means the association’s review panel believes the “candidate’s qualifications are not suited to perform the duties and responsibilities of chief justice or justice of the Supreme Court of Ohio” (Plunderbund). In what is, again, a familiar trend, Justice DeWine sparked criticism when responding to a Right to Life of Greater Cincinnati questionnaire as a sitting Judge. The questionnaire asked if the candidates agrees that “laws that require businesses or religious organizations to work for or provide services to gay, lesbian, bisexual and transgender persons despite these entities’ religious or moral objections are unconstitutional.” According to Plunderbund, “other judicial candidates, including those in his own party, refused to take the survey or answer that specific question, but not [DeWine].” Rather, Justice DeWine responded by saying, “The First Amendment’s guarantees of freedom and speech and association are two of our most important rights. Any government effort to infringe on these rights would face the difficult task of meeting strict scrutiny and proving a compelling governmental interest to do so.” This response lead many to believe that Justice DeWine would act against LGBTQ rights on the Supreme Court of Ohio. While this may be alarming, the truly mind boggling element of Justice DeWine’s election is the fact that he is the son of the sitting Ohio Attorney General, Mike DeWine. As the head attorney for the State of Ohio, the Attorney General regularly argues important cases before the very court on which his son now sits. Rather than approach this as a clear conflict of interest, Justice DeWine told Cleveland Plain Dealer that he would “decide on a case-by-case basis on whether he needed to recuse himself.” Here’s the bottom line: our Ohio Supreme Court needs work. Serious work. The highest court in the state makes critical decisions that deeply affect the lives of Ohioans every single day. Republican or Democrat - we need to be proud of the Men and Women we send to this incredibly important court. We need qualified experience, strong ethics and an appreciation for the law. At the end of the day, that’s on us. The voters. If we want to improve the quality of our Court we have to stand up, get informed and get involved. Works Cited
Balmert, Jessie. “Is Justice Bill O'Neill Violating Judicial Code by Running for Governor?” Cincinnati.com, Cincinnati Enquirer, 31 Oct. 2017, www.cincinnati.com/story/news/politics/2017/10/30/justice-bill-oneill-violating-judicial-code-running-governor/814243001/. Bever, Lindsey, and Marwa Eltagouri. “Ohio Governor Candidate Apologizes for Boasting of Sexual History with ’50 Very Attractive Females.’” The Washington Post, WP Company, 18 Nov. 2017, www.washingtonpost.com/news/politics/wp/2017/11/17/ohio-governor-candidate-boasts-of-sexual-history-with-approximately-50-very-attractive-females/?utm_term=.02361ed327c5. Bischoff, Laura. “DeWine & O’Toole Not Recommended for Supreme Court | Ohio Politics | Government Issues & News.” Ohio Politics Government Issues News, Dayton Dailey News, 17 Feb. 2016, www.ohiopolitics.blog.daytondailynews.com/2016/02/17/dewine-otoole-not-recommended-for-supreme-court/. Board, Editorial. “Did Ohio Supreme Court Justice Sharon Kennedy's Speech Disqualify Her from Ruling on Toledo Abortion Clinic Case? Editorial Board Roundtable.” Cleveland.com, Cleveland.com, 18 May 2017, www.cleveland.com/opinion/index.ssf/2017/05/justice_sharon_kennedys_speech.html. Board, Editorial. “Ohio Supreme Court Justice Sharon Kennedy's Bypass of Ratings Process a Disservice to Voters: Editorial.” Cleveland.com, Cleveland Plain Dealer, 27 June 2014, www.cleveland.com/opinion/index.ssf/2014/06/ohio_supreme_court_incumbent_j.html. Breaking News Staff, Lynn Hulsey 8:30 p.m Friday, Nov. 17, 2017 News. “Ohio Supreme Court Justice Boasts of Bedding 50 Women as Part of Defense of ‘All Heterosexual Males.’” Dayton Daily News, 17 Nov. 2017, www.daytondailynews.com/news/ohio-supreme-court-justice-comes-defense-all-heterosexual-males/YsvDbBFZXgS39Qj8W0QagJ/. Chrissie Thompsonfink. “As Court Considers Clinic Closure, Justice Speaks at Anti-Abortion Event.” Cincinnati.com, Cincinnati, 17 Mar. 2017, www.cincinnati.com/story/news/2017/03/16/ohio-justice-sharon-kennedy-toledo-right-to-life-court--abortion-clinic-case/99274538/ DeWitt, DC. “Ohio Supreme Court Has No Place For Pro-Discrimination Pat DeWine.” Plunderbund, Plunderbund, 15 Apr. 2016, www.plunderbund.com/2016/04/15/ohio-supreme-court-has-no-place-for-pro-discrimination-pat-dewine/. Evans, Jack. “Primer: Pat DeWine vs. Cynthia Rice for Ohio Supreme Court.” Cincinnati.com, Cincinnati, 21 Oct. 2016, www.cincinnati.com/story/news/politics/elections/2016/10/20/primer-pat-dewine-vs-cynthia-rice-ohio-supreme-court/92407520/. Gajanan, Mahita. “Ohio Judge Bill O'Neill Brags About Sexual History.” Time, Time Magazine, 17 Nov. 2017, www.time.com/5030487/ohio-supreme-court-bill-oneill-sex-brag/. Heisig, Eric. “Republican DeWine Wins Seat on Ohio Supreme Court, Other Race Too Close to Call.” Cleveland.com, Cleveland Plain Dealer, 8 Nov. 2016, www.cleveland.com/court-justice/index.ssf/2016/11/republican_dewine_wins_seat_on.html. Pureval, Aftab. “Ohio Supreme Court Justice Bill O'Neill Does Not Speak for Me: Aftab Pureval (Opinion).” Cleveland.com, Cleveland.com, 22 Nov. 2017, www.cleveland.com/opinion/index.ssf/2017/11/ohio_supreme_court_justice_bil_2.html Richardson, Seth A. “Sitting Supreme Court Justice Bill O'Neill, Responding to Franken Allegations, Claims Bedding 50 Women.” Cleveland.com, Cleveland.com, 20 Nov. 2017, www.cleveland.com/open/index.ssf/2017/11/sitting_supreme_court_justice.html “Sharon L. Kennedy.” Ballotpedia, Ballotpedia, www.ballotpedia.org/Sharon_L._Kennedy#cite_note-22. Smyth, Julie Carr, and Laura A Bischoff. “Create a New Password.” William O'Neill to Run for Ohio Governor, WHIO 7, 29 Oct. 207ADAD, www.whio.com/news/state--regional/ohio-supreme-court-justice-announces-run-for-governor/5ldNCEFoKdPG2OLqTasDoK/. By: Eleni Christofides The statistics of prison population growth are not new to anyone familiar with the criminal justice system; rates continue to soar above what they have been in previous decades, and mass incarceration is an increasingly common term outside of academia and within public conversation. Yet frequently, this image of the carceral state remains black and white, lacking attention to the human element. Simply, mass incarceration means that institutions often house twice the number of people they were originally designed to house, which unsurprisingly creates deplorable living conditions and indifference—or even outward hostility—toward an incarcerated person’s needs. What does such a situation imply for prisoners’ rights? In the book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, Jonathan Simon examines the unparalleled magnitude of the United States’ incarcerated population through the lens of Eighth Amendment protections against cruel and unusual punishment. Specifically, he argues that this criminal justice model of total incapacitation denies a basic sense of humanity and dignity to prisoners through violence and indifference. After the fear-fueled coverage of prison uprisings such as Attica, and serial killers such as Charles Manson during the 1970-80s, the image of the prisoner changed and sentencing policy goals soon shifted from rehabilitation to incapacitation to deal with this new, violent predator. People felt that any decrease in imprisonment was a direct threat to public safety and viewed offenders as unchanging, permanently dangerous criminals.
Simon focuses on a series of court cases out of California that were necessary to begin dismantling the mass incarceration system and to restore a sense of dignity to prisoner treatment. First was Madrid v. Gomez, which specifically examined supermax-level security prisons and found that the violent cell extractions used by guards violated the Eighth Amendment protection against cruel and unusual punishment; the decision did note that the treatment was particularly egregious for the mentally ill, but did not rule that those violations were inherent to the supermax structure. Instead it levels the blame at insufficient training for the prison guards. Simon calls Madrid a missed opportunity to stop mass incarceration and the associated inhumanity in its tracks. In Coleman v. Wilson, the plaintiffs went beyond the supermax issue of Madrid and filed a class action suit for the mentally unwell in California prisons at all security levels, saying that failure to provide appropriate mental health care was a violation of the Eighth and Fourteenth Amendments. The Court’s order in Coleman for California to create a better mental health system indirectly prioritized the individualized approach to mental health needs; recognizing that an individualized approach is difficult if not impossible to achieve in such overcrowded conditions, the Court began to blame the very structure of mass incarceration for creating these constitutional violations. The inhumanity of mass incarceration was best showcased through the lack of physical health care for an aging prison population, affecting those with and without mental health problems, particularly captured by plaintiffs in Plata v. Davis. This decision is remarkable in its use of human stories that must generate empathy in its readers, detailing the health emergencies that many prisoners suffered or even died from while incarcerated—emergencies that were regularly ignored by staff. Plata showed the ways in which California’s attempts at totalitarian control over prisoners failed: they could not keep track of such a large number of prisoners as individuals, particularly in matters of health, and it revealed the conflict between the dehumanizing mission of incapacitation and the “do no harm” mission of health care providers. Here the federal court officially blamed mass incarceration for this health crisis and thus the constitutional violations. Coleman-Plata v. Schwarzenegger highlighted the overcrowding effect of mass incarceration that ultimately led to California declaring a state of emergency. The federal court issued an order for population reduction, finding clear and convincing evidence that the overcrowding problem was the cause of the unconstitutional state of operation and thus decided that reducing the population was the only practical solution. The Coleman-Plata series of decisions was appealed to the Supreme Court as Brown v. Plata, which put California’s issues of mass incarceration on the national stage. The Court upheld the reduction order and the opinion, making clear that it understood how the very laws and policies themselves needed to change to end this mass suffering. The greatest impact of Brown v. Plata could be in forming a new “common sense” when it comes to prisoners and their treatment in the criminal justice system. The old common sense holds that prisoners are inherently dangerous, but Brown managed to show that many prisoners do not fit this “super predator” description and their risk level does not warrant such treatment. Going forward, Simon argues, the goal of prison and criminal justice sanctions should be to prevent further deterioration in mental and physical health, not to worsen the decline. This set of case law illustrates that appellate courts in this country have not only the power but also the responsibility to create positive change in the way our criminal justice system operates; this will be done both through the legal precedence they set and the effect on public opinion that their decisions may have. As further cases find their way before the Supreme Court that address a denial of dignity, this shift in the common sense will ideally lead to the further dismantling of a system that offers no substantive additional protections and only serves to harm those under its control. References:
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