By: Spencer Dirrig Seven hundred and ninety-seven thousand and seven hundred and twenty-four votes. That’s how many more Americans voted for Hillary Clinton than President-Elect Donald J.Trump. In 2000, it was 540,520 votes that Vice President Al Gore received over eventual President George W. Bush. Many Americans are, understandably, ready for a change.
The Equal Protection clause of the U.S. Constitution promises a democracy founded in the principle of “one person, one vote.” The Electoral College, an outdated vestige of the closed-minded democratic republican government devised more than 200 years ago, has become a real, tangible obstacle to democracy in modern America. Though the majority of the American public prefer a popular vote in lieu of the Electoral College, the legal and political path forward is convoluted to say the least. The Electoral College is concretely written into Article II of the Constitution. So, if we do want to abolish the Electoral College, how do we do it? One answer is a Constitutional Amendment. Though abolishing the Electoral College has been proven to be a bipartisan issue, the deep polarization of state legislatures makes it hard to see a path to getting an amendment passed. But there is another option – and it’s already in motion. It’s called the National Popular Vote Bill and it has already been adopted by 10 states and the District of Columbia. So the question remains: how can be abolish the Electoral College and (more importantly) how do we do it Constitutionally? According to Cornell University Law School, the Equal Protection Clause of the Constitution affirms “the idea … that one person’s voting power ought to be roughly equivalent to another person’s within the state.” The Electoral College has done little to prove its fulfilment of the “one person, one vote” rule. When the Electoral College was created, it was done with the purpose of giving more voting power to smaller states that would otherwise be “outshined” by bigger population areas in a popular vote election. While this has been marginally successful in some ways, the Electoral College failed to serve its purpose. While it took voting power away from voters in large states like Texas and California by assigning disproportionately more electoral votes to small states, it has also managed to take voting power away from small states. The increased power of small-state voters has been majorly diminished by the immensely important swing state voter. Because of the winner-take-all setup of the Electoral College (in 48 out of 50 states), there are a handful of swing states that traditionally have an unfairly strong influence on the outcome of the election. In states like Ohio, Florida, Virginia and Nevada, all one needs to do is flip on a television during election season to see that swing states are flooded with advertisements and visits from the presidential candidates. This power vacuum leaves “solidly red” and “solidly blue” state voters feeling neglected (rightfully so). This is not a phenomenon that is lost on the voters. In a 2013 study conducted by Gallup Research, only 29% of American adults support the electoral college as an institution. On the other hand, 63% of American adults supported abolishing the electoral college. Interestingly, this does not seem to be a partisan issue in any way as abolition of the electoral college was supported by 66% of Democrats and 63% of Republicans. This widespread support for reforming the Electoral College begs the question – why can’t we get it done? The answer is two-fold. First, the Electoral College is deeply ingrained in the Twelfth Amendment of the Constitution. As such, a Constitutional amendment would have to be passed in order to officially eliminate the Electoral College. This prerogative, though widely supported, would almost certainly fail to garner the votes needed to ratify an amendment. With a minimum of 38 states needed to sign onto such an amendment, it’s doubtful that highly polarized state legislatures will be able to pass the motion in enough states. Due to the lack of feasibility in ratifying a Constitutional Amendment, a different approach is necessary. That’s where the National Popular Vote comes in. This legislation, if passed by enough state legislatures, would have the effect of making the popular vote the true elector of the president of the U.S. while still working alongside the established electoral college and operating constitutionally. Whew… that’s a big demand – but it seems like the National Popular Vote (NPV) may be the solution. So what is the NPV? The National Popular Vote Bill would be available to be passed into law by state legislatures across the country. According to National Popular Vote (the grassroots campaign supporting the legislation), the “National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.” The state would, if the same model is followed in the future that has been adopted in 11 jurisdictions so far, pass legislation that promises to deliver all of its electoral votes to the winner of the national popular vote (rather than the vote of that state alone). However, to ensure that these states do not deliver these electoral votes before it is a national norm, the legislation only takes affect after enough states have signed on to reach 270 electoral votes. Once there are enough states to reach the “magic number” that signifies an electoral majority, the national popular vote will decide the majority of the electoral college and, subsequently, the presidency. (I never said it was simple – but it does work). This system begs the ever-important question: is that Constitutional. Though some may argue otherwise, the overwhelming majority of constitutional scholars say yes. Article II of the U.S. Constitution clearly states that every individual state “shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress… shall be appointed an Elector.” In this case, the state legislatures will have directed that their state’s electoral votes be awarded in a manner that reflects the national popular vote. Thus, while inconsistent with the traditional system used, the National Popular Vote Bill and its enforcement would neatly fall within the parameters set by the Constitution for the Electoral College. Despite the overwhelming support for such an action, the chances of the U.S. outright “abolishing” the Electoral College anytime in the near future are slim to none. However, with the implementation of the National Popular Vote Bill, states could take it upon themselves to make the Electoral College nothing more than a formality that simply reflects the popular vote of the nation. It won’t be an easy road – but it is certainly achievable. According to NPV, “the bill has been enacted by 11 jurisdictions possessing 165 electoral votes—61% of the 270 electoral votes necessary to activate it, including four small jurisdictions (RI, VT, HI, DC), three medium- size states (MD, MA, WA), and four big states (NJ, IL, NY, CA).” This is a realistic and achievable way to change the American voting system forever. If we truly believe in the notion of “one person, one vote,” then we must act to pass this legislation nationwide. Works Cited
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By: Maddy Gledhill Professor Deborah Merritt teaches Evidence and supervises Criminal Law Clinics. After law school, Professor Merritt clerked on the DC Circuit for Ruth Bader Ginsberg and then Sandra Day O’Connor on the Supreme Court. She entered private practice for several years before returning to the classroom to educate the next generation of scholars. In 1995 she joined the Moritz College of Law. From 2000-2005 Professor Merritt helped establish the John Glenn Institute of Public Administration, later to be named the John Glenn College of Public Affairs. Spear headed Founding of the college of Public Affairs.
1.What do you do? I devote much of my time to teaching law students, and I do two types of teaching: clinical and classroom. In the clinics I supervise students who practice criminal law. During the fall semester my students prosecute misdemeanor defendants in Delaware County, while in the spring semester they represent indigent defendants in Franklin County. Both clinics give students excellent experience in interviewing witnesses, gathering facts, and solving complex problems. I started doing research in criminal law and then one day the Associate Dean came to me and asked me to oversee the criminal law clinic. I had never practiced criminal law before and I had minimal knowledge of it. In the classroom, I have taught many subjects over the years. Currently, the primary subject I teach is Evidence. This is a basic course that most law students take to prepare for the bar exam and practice. I try to enliven the course with movie clips, testimony from real trials, and simulations. It’s hard to get bored with that type of material! As a professor, I also engage in scholarship and public service. My scholarship has covered many fields, from Constitutional Law to professional ethics. I’ve coauthored a textbook on Evidence and am working with a colleague to write an undergraduate text on Criminal Evidence. My public service focuses on improving educational experiences for law students and expanding the understanding of law among undergraduates and the general public. 2. When did you know you wanted to go into law and why? My initial decision was to study law rather than to practice it. In college I planned to do graduate work in history; I loved both teaching and scholarship. It became clear, though, that there were very few openings for history professors at that time. Law appealed to me as an interesting field to study, and I had the opportunity to attend law school tuition free. I took that opportunity and, once I arrived at law school, discovered that I loved practicing law as much as studying it. I loved anti-trust law which involves the way that companies divide the market in different industries. I was interested in how different industries work. I loved Constitutional law, but it is hard to practice. 3. Do you think law school prepared you for your current job? Only in part. Law school offers excellent preparation in how to read statutes and judicial decisions, as well as how to analyze points of law. But I received no education in how to talk with clients, investigate facts, or resolve the type of multi-dimensional problems we see in the criminal justice clinics. That’s why I teach those clinics: to give students an introduction to more of the skills they will use as lawyers. 4. When did you know you wanted to be professor and why? I always wanted to be a teacher, starting in kindergarten! And, even in elementary school, I loved doing research and writing reports. So becoming a professor was a natural for me. 5. What has been your favorite part of being a professor? The constant ability to learn new things. Teaching, research, and public service all require me to explore new ideas, see problems from different perspectives, and interact with new types of people. I cherish learning in all its forms. 6. What is the most challenging aspect of your job? Figuring out how to teach students complex skills like interviewing, counseling, and problem solving. These are not innate talents; they need to be learned. But we don’t yet have the vocabulary and tools we need to teach students how to do these things. I keep challenging myself to learn better ways to teach these key skills. We think we are giving the students hypothetical questions, but they are streamlined and don’t often encompass the multidimensional problems. 7. Do you have any recommendations for future law students? Actually, I have three:
Want to know more about legal professions? Check-out Professor Merritt’s podcast show! http://www.lstradio.com/ By: Zack Valdman The recent election of Donald Trump as President-elect of the United States comes with a changing of the guard at the head of the Department of Justice, the Attorney General of the United States. President-elect Trump recently announced Senator Jeff Sessions as his pick to replace Loretta Lynch as attorney general. As the head of the DOJ, the attorney general has wide discretion over which of the 4,000+ federal crimes he/she wishes to prosecute, and therefore cultivates some influence over national policies. How might DOJ priorities change under Jeff Sessions? Here's a look at a few areas that might see the most dramatic shifts:
One of the most drastic deviations between Sessions and the current administration pertains to immigration. The DOJ has wide latitude on issues concerning immigration, specifically in its power to prosecute immigration violations and oversee immigration courts. Sessions is known for his hardline stance on immigration. He has argued that prospective immigrants should not have the same constitutional protections as American citizens, and voted against the current Attorney General Loretta Lynch because of her support for some of President Obama’s executive orders sheltering some undocumented immigrants from potential deportation. Session’s appointment will most likely lead to increased restrictions on illegal immigration in general, the full extent of which is still unknown. Senator Sessions also has made it clear that he sides with the government in some of the recent surveillance arguments between tech companies and the government. As the head of the department accountable for representing the United States in surveillance cases, expect to hear about more clashes between the government and the tech industry in regards to national security interests vs. privacy protections for individuals. Since the decision in Shelby County v. Holder that did away with certain states requiring clearance from the federal government to alter any voting rules, the Obama administration’s appointees in the Justice Department have challenged many reforms that states attempt to pass, on the grounds that they disproportionately affect minorities. Sessions has hinted that he does not believe that these state-by-state voting law changes target minorities, and would almost certainly choose not to take states to court over changes in voting laws. Sessions is also known for his staunch opposition to the legalization of marijuana. Sessions could choose to enforce the federal law classifying marijuana as an illegal substance in states that have legalized its use, actions the Obama administration has refrained from. However, with Trump previously stating that the legality of marijuana is an issue best left to the states, it remains unclear whether the DOJ will crackdown on marijuana legalization or opt to continue Obama’s policy of noninterference. These are just a few of the many shifts in policy that may result from Jeff Session’s appointment as Attorney General. Assuming the Senate confirms him as Attorney General (a process that now only requires a majority of votes as opposed to 60), the Department of Justice under Jeff Sessions will have very different priorities than under Eric Holder or Loretta Lynch. Works Cited
By: Eleni Christofides It has been nearly two weeks since the presidential election, and the nation has already seen an upsetting spike in harassment and intimidation of minorities, as some Americans seem emboldened by Trump's election to act on his hate and fear-fueled campaign rhetoric. Civil rights groups such as the Southern Poverty Law Center say that since the election on November 8th, there have been nearly 700 reported cases of harassment and intimidation against minority citizens (1). Both violent crimes and property crimes motivated by hate and bias against race and ethnicity, religion, sexual orientation, gender identification, or disability, are classified as hate crimes by the FBI. It is essential to treat hate crimes seriously and devote attention to them because they are uniquely motivated and often differ from traditional crime patterns. For example, hate crimes are more likely than average crimes to be perpetrated by a stranger or a group of strangers, to be violent rather than property-based, and to be a more severe level of assault. They are especially damaging to communities because they are spurred by tensions between groups and exacerbate those tensions, in addition to making the individual victims feel particularly vulnerable in their own skin. The FBI tracks hate crime statistics and recently reported that, in the last year, reported hate crimes have spiked about 6% with the greatest surge being in crimes against Muslims (2).
Given this recent trend, it is more important than ever that communities empower themselves against hate crimes and that local and state governments pass legislation with the power needed to fight them. Many states lack specific statutes to define and describe punishment for hate crimes. In Ohio, the law does not define a "hate crime" as its own offense, but rather states that bias as a motivation is a factor in determining the severity of the offense and thus can increase the penalty. The Ohio Revised Code defines "ethnic intimidation" in section 2927.12, which prohibits misdemeanor crimes such as aggravated menacing, menacing, criminal damaging, criminal mischief, and some types of telephone harassment "by reason of the race, color, religion, or national origin of another person or group of persons" (6). It is important to note that this definition does not include specific protection against crimes motivated by gender identification, sexual orientation, or other categories described in the FBI's definition of a hate crime. The allowance for "penalty enhancement" when hate or bias is a factor in a crime is a useful tool, but it only applies to misdemeanor charges. It is vital that Ohio lawmakers clearly define hate crimes to better protect the diverse groups who may be victimized. Law enforcement agencies can also improve their strategies for preventing hate crimes and preserving community safety. Police departments can make responses to hate crimes a priority by creating task forces that foster collaboration with other officers and prosecutors. By focusing efforts when bias is involved, law enforcement can improve their expertise and understanding of hate crimes and their ability to combat them effectively while showing the community that they take the problem seriously. By coordinating efforts with prosecutors and judges, the courts can also take a symbolic stand by imposing harsh penalties against perpetrators of hate crimes, showing the local community that such behavior will not be tolerated. Community and problem-oriented policing tactics are also vital in making citizens feel safe and validated. Special in-service training for police officers about hate crimes and the needs of the victimized can help victims to recover from the trauma and trust the authorities, which can improve the success of the criminal case as well. Empowering communities to make their concerns heard, through law enforcement-hosted meetings and town halls, can also improve the trust people have in law enforcement and bring citizens together to protect each other. Educating communities on tolerance and what defines a hate crime, especially in neighborhoods and schools, can combat tension and promote understanding. It is important for law enforcement to remember that a hate crime is distinct from other crimes and must be treated accordingly. Because of the unique reasons for committing these crimes and the deeply adverse and long-term effects they can have on victims and whole communities, it is vital that law enforcement and the people it represents work collaboratively to protect the community in a lasting way. If you or someone you know feels they have been the victim of a hate crime, there are many resources on the Ohio State campus to help you. You can contact the Ohio State Department of Public Safety (614-292-2121) or other appropriate local agencies to report it. There are also additional support services such as the Counseling and Consultation Service at Younkin Success Center (614-292-5766) and the Student Advocacy Center in Lincoln Tower (614-292-1111). Works Cited:
By Olivia Worthington A person judged to have been insane at the time of a crime is considered to be not morally responsible for that crime. Pleading not guilty by reason of insanity is a way of admitting to a criminal act, but is an excuse of the behavior that led to this crime. The definition of legal insanity is that criminal behavior is excused on account of mental illness being so severe that society could not legally punish the criminal. This defense is controversial, because mental illness is on a wide spectrum of severity and can be difficult to clearly diagnose. Defendants offer an insanity defense in less than 1% of all felony cases, and are considered legally insane only about 25% of the time. In the large majority of cases, prosecution and defense expert psychiatrists agree on whether defendants are legally insane. In other cases, the guilty party’s insanity is a tightly contested debate necessitating multiple psychiatrists and extensive mental analysis. The precedent for insanity cases is extensive. However, psychiatrists and legal officials tend to disagree on the actual definition of “insanity,” leading to many cases being contentious. The insanity defense was first used in 1313 by an English court on the basis that the defendant could not “distinguish good from evil.” In 1999, Andrew Goldstein pushed Kendra Webdale in the path of a train in New York, killing her. Goldstein had a history of schizophrenia and claimed to have heard voices. The prosecutor accused Goldstein of using previous mental illness issues to give a false account of the murder. Psychiatrists argued his previous mental illness was grounds enough for insanity, as Goldstein had voluntarily committed himself to mental hospitals leading up to the murder. Ultimately, the prosecution won, as Goldstein admitted he was aware of his actions when pushing Kendra Webdale. Typically, guilt by insanity is fought on the basis of the criminal not being aware of their actions at the time of the crime. Notorious serial killer Jeffrey Dahmer pled not guilty by reason of insanity, and claimed that during at least one of his murders he had no recollection of his actions. His plea was denied, and he was convicted on all fifteen murder charges. Many experts see this as the “death of the insanity plea.” Dahmer was psychologically disturbed, but this case set the precedent that severely disturbed murderous behavior was not viewed as insanity, and likely would not be viewed that way for other criminals. John Wayne Gacy also pleaded insanity and lost his case. A few tests are often used by psychiatrists to indicate mental illness and awareness of criminal activity. An 1843 English case developed the M’Naghten test, which indicates if mental illness allows the offender to know the difference between right and wrong. A modified version known as the Brawner Test is also used, which demonstrates if the criminal has the ability to appreciate the criminality of their actions. Failure to pass these tests can indicate insanity, and are used by many states to determine mental illness severity. The Irresistible Impulse test is also used, which declares that offenders are insane if a mental disorder prevents them from resisting the commission of an illegal act that they know is wrong. Defendants typically advise prosecutors prior to trial if they plan to use an insanity defense. Defense lawyers and prosecutors each obtain their own psychiatrists to examine a defendant, testify at trial, and prove mental stability. Judges can appoint government-paid psychiatrists for poor defendants, but this does not occur often. Defendants have the burden of convincing the jury by either a preponderance of evidence or by the tougher standard of both clear and convincing evidence that they were insane at the time of the crime. Evidence rules do not allow defense psychiatrists to testify that a defendant was legally insane at the time a crime was committed. They can only provide a medical diagnosis concerning whether a defendant has a mental illness, which can hurt the defendant at times when more specific information may have helped convince a jury. Defendants that are found to be not guilty by reason of insanity spend a large majority of the rest of their life in a mental hospital. In some cases, individuals must stay in the mental health institution until a judge is convinced they are reasonably sane. For criminals convicted on the basis of insanity, this rarely happens. Some criminals spend more time in mental institutions than they would have in a prison, which can discourage criminals with lesser crimes from falsely pleading insanity. Pleading insanity is not a “get out of jail free card”. This plea remains controversial among legal professionals and psychiatrists. Lacking a precise definition, existing precedent will continue to lead to uncertainty on pleading insane. Works Cited:
By Samuel Huryn Employment numbers are a major determinant when prospective students decide which law schools to apply to. The American Bar Association’s Standards for Approval of Law Schools “require schools to collect and report data on law graduate employment outcomes, and to do so in a manner that is complete, accurate, and not misleading”2. For the first time in 2016, the ABA turned to an independent auditing firm, the Berkeley Research Group, to measure compliance of data reported by law schools across the nation. The firm selected 10 law schools at random to analyze this information. According to the Daily Caller, the audit “found [that] records at five of the ten randomly selected schools were possibly deficient” in reporting their employment data. If a school fails to meet the ABA’s 95 percent compliance rate, they are considered deficient and undergo a second round of review. The audit found that “one school barely missed the 95 percent benchmark for compliance, while the remaining four schools were between 10 and 40 percentage points below the threshold”1. Clearly, 50 percent of audited schools failing the audit is undesirably high and violates the ABA Standards for Approval of Law Schools. However, these audits are not final, and the ABA has said that “issues uncovered tend to be clerical in nature and were not instances of "gross misreporting" or "attempts to manipulate”3. Regardless, this discovery is an important one, especially in an economy where a degree from law school does not guarantee employment. References
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