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The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping
Get PDFIn this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One dilemma, material in nature, that the Roberts Court faces, is between the federalist component of the conservative legal worldview, that requires federal courts to defer to state courts’ rulings based on state constitutions, and its non-liberal component, based on conservative values. The second dilemma, institutional in nature, stems from the Roberts Court’s legitimacy deficit among substantial sections of the American public, mainly supporters of the Democratic Party, which has increased as a result of the three recent appointments. The legitimacy deficit may make it difficult for conservative Justices to fully implement their judicial philosophy. We further argue that the emerging ambivalence of the Roberts Court, which is a consequence of the combination of these two dilemmas, is manifested, in addition to general avoidance doctrines and the specific state ground doctrine, also in two types of judicial tactics, substantive (such as seeking judicial compromise in order to reach a broad common denominator among the Justices) and procedural (such as encouraging other branches to carry out their obligations until the dispute is reasonably resolved), that the Court adopts in coping with liberal state court decisions based on the state constitution. In the last Part of the Article we illustrate our contentions by analyzing three recent Supreme Court decisions: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), Espinoza v. Montana Department of Revenue (2020) following Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Republican Party of Pennsylvania v. Boockvar (2020)
Big Dreams and Pyramid Schemes: The FTC’s Path to Improving Multi-Level Marketing Consumer Protections in Light of AMG Capital Management and the 2016 Herbalife Settlement
Get PDFMulti-level marketing, also known as “MLM,” is a type of sales business that relies on both sales to consumers and recruitment of sellers into the company’s tiered commission structure. MLMs are wildly and enduringly popular, especially because they claim to be a flexible and easy source of income for people who need it most. However, almost everyone who joins an MLM will lose money, and many MLMs are illegal pyramid schemes. Millions of Americans are harmed by MLMs every year. Despite this, the government does very little to punish MLMs who lie to prospective participants about their odds of success. How are MLMs allowed to operate relatively unchecked? MLMs have a powerful political lobby which has ensured that state and federal regulations remain favorable to their operations. Furthermore, the Supreme Court’s 2021 decision in AMG Capital Management, LLC v. Federal Trade Commission abrogated the FTC’s power to pursue financial restitution for consumers harmed by MLMs. To overcome this setback, this Note argues that the FTC must frequently and aggressively use its Sections 5 and 19 powers to reimburse harmed MLM customers and deter further MLM misconduct, without falling into the pitfalls exemplified by its 2016 settlement with Herbalife, a nutrition MLM. The FTC must also require full disclosure of the odds of success in an MLM, obtain proportionate financial punishments against offenders, and more widely publicize the harmful nature of MLMs
“A Dollar Ain’t Much if You’ve Got It”: Freeing Modern-Day Poll Taxes from Anderson-Burdick
Get PDFHow much should it cost to vote in the United States? The answer is clear from the Supreme Court’s landmark opinion in Harper v. Virginia State Board of Elections—nothing. Yet more than fifty years later, many U.S. voters must jump over financial hurdles to access the franchise. These hurdles have withstood judicial review because the Court has drifted away from Harper and has instead applied the more deferential Anderson-Burdick analysis to modern poll tax claims—requiring voters to demonstrate how severely the cost burdens them. As a result, direct and indirect financial burdens on the vote have proliferated. Millions of voters are required to expend financial resources to provide postage for mail ballots, comply with voter ID requirements, notarize ballots, and pay off legal financial obligations (“LFOs”) in order to vote and have their vote counted. This Note argues that the Court fails to appreciate the special constitutional and statutory protections against wealth-based voting qualifications when it applies Anderson-Burdick to monetary burdens on the right to vote. In highlighting the specific protections afforded by Harper, the Twenty-Fourth Amendment, and Section 10 of the Voting Rights Act, this Note calls for not only the Court, but also Congress, to restore the intended power of these protections and to untangle laws that impose monetary burdens on voters from ordinary voting regulations subject to Anderson-Burdick
Hong Kong’s Extradition Bill: Implications & Ramifications
Get PDFSince June 2019, millions of people in Hong Kong protested against the proposed extradition bill, which would permit the HKSAR government to extradite anyone residing, visiting, or passing through Hong Kong to mainland China with which it has no formal extradition agreement with. This Note will argue that the proposed extradition bill not only created a legal loophole in the existing system by removing legislative scrutiny and judicial oversight, but also violated international human rights law in light of mainland China’s record of serious human rights violation. Instead, the HKSAR and PRC governments should cooperate to create an impartial special court to resolve extradition disputes and deal with extradition requests. To ensure fair trials and judicial transparency, the special court should be composed of distinguished foreign and domestic judges voted in by the general public. Decisions by the court should be published online and made available for public viewing
Mental Illness in the Criminal Justice System: Erasing the Stigma On a Global Scale
Get PDFMental illness has long been misunderstood and severely stigmatized worldwide. For several hundred years, rather than offering prompt and proper treatment, most countries treated mental illness by isolating patients from society. Moreover, that ill treatment remains to this day, with over 90% of the developing world\u27s population living with a mental illness completely untreated and legal systems the world over struggling with how best to treat mentally ill defendants fairly. This Note will scrutinize and compare the treatment of the mentally ill defendants in Western and African nations. It will then focus on the legal systems in Uganda and Ghana for evidence of a persistent stigma and poor treatment faced by the mentally ill in those countries. Finally, this Note will suggest a solution to this treatment based on international pressure and cooperative effort
