Congratulations to the newly-announced JLP Staff, joining us on the new Vol. 9 masthead:
Congratulations to the newly-announced JLP Staff, joining us on the new Vol. 9 masthead:
Women’s Reproductive Rights: One Step Forward, Two Steps Back?
The day Justice Kennedy announced his retirement, a sadness washed over many Americans. Kennedy’s retirement, for those who are not politically conservative, felt like the last pillar of hope falling. After losing the White House to our current administration, moderates and liberals looked more than ever to the Supreme Court to be the voice of reason; a saving grace. Now, Kennedy’s retirement threatens to transport America’s public policy back decades.
Kennedy was initially nominated as President Reagan’s second choice. Reagan’s first nomination, Robert H. Bork, was rejected during his Senate confirmation hearing after his personality and ideology became too divisive in the eyes of the Senate. Justice Kennedy stood juxtaposed to Bork as the less conservative and more amenable choice. Soon after his nomination, he was sworn in as a Supreme Court Justice on February 18, 1988.
Throughout his years on the Court, Kennedy gained the reputation as the “swing-vote” Justice. His record stands as a pattern of siding with liberal Justices on individual rights questions and with conservative Justices on everything else. For example, he voted with conservative Justices on issues concerning campaign finance restrictions and gun-ownership rights. However, he sided with liberal Justices on more than one occasion and often on landmark and divisive individual rights cases. These cases include, but are not limited to, decisions such as Obergefell v. Hodges and Planned Parenthood of Southeastern Pennsylvania v. Casey. Kennedy’s decision in these particular cases made him into a personified judicial barrier and voice or reason in the Court for liberal-leaning Americans by ensuring protections for LGBTQ and Women’s Reproductive rights.
Now, looking forward, we await a new appointee from an administration bent on appointing an ultra-conservative Justice who will help overturn Roe v. Wade and restrict individual rights in the name of conservative beliefs and religious freedom. As a result, many women are seriously concerned that the Casey “undue burden” standard will be restricted to the point of a virtual ban on abortion or a true overturning of Roe. These fears are fully justified as Pro-Life outlets are praising Kennedy’s retirement as an opportunity to overturn Roe until the Court becomes a liberal majority again, which in the context of the Supreme Court could mean decades.
Further, let us remember: reproductive rights issues are public health issues. I have been fortunate to meet one of the plaintiffs in Roe and their experience makes it clear that overturning a woman’s right to a safe and legal abortion means forcing women to have dangerous and life-threatening abortions. The plaintiff in Roe that I met was forced to go out of the country, to a place where they did not speak the language, with a piece of paper with an address scribbled on it, to meet a doctor they had never met, in a place they had never been. Forcing women into this position is dangerous and again, is a public health issue. Abortions will happen regardless of its legal status in the United States as it did before Roe. Regardless of whether it is a virtual ban or full ban that may happen, all we can hope for is that the Justices see this as a public health issue to protect women and not a religious or political crusade.
 Brent Kendall & Jess Bravin, Justice Anthony Kennedy Defined His Career at Center of Biggest Decisions, Wall St. J., (July 1, 2018), https://www.wsj.com/articles/supreme-court-justice-anthony-kennedy-announces-retirement-1530122570. (Kennedy himself has said that he hates this moniker, commenting at a Harvard Law School graduation that, “[t]he cases swing. I don’t.”).
 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
 In an interview with NPR, the President of Students for Life, Kristan Hawkins, praised Justice Kennedy’s retirement as “a day that we’ve been waiting for” and further commented that “[o]ur goal in the pro-life movement has always been to make abortion illegal and unthinkable.” Sara McCammon, What Kennedy’s Retirement Means For Abortion Rights, Nat’l Pub. Radio, (July 1, 2018), https://www.npr.org/2018/06/28/624319208/what-justice-kennedy-s-retirement-means-for-abortion-rights.
Thank You, Justice Kennedy
Justice Kennedy is in the news due to his recent retirement announcement. Once again, many of those speaking or writing about him will mischaracterize his jurisprudence. To most, his voting patterns seem erratic and unpredictable. Yet, after all these decades, more than anyone else on the Court, Justice Kennedy has been uber-consistent and reliable. You would think that more people would better understand him, although a few seem to get it, as evidenced in the titles of some books regarding his jurisprudence. See, here, here, and here.
I became familiar with Justice Kennedy, like many law students, during the first few weeks of Constitutional Law. My professor introduced him to us by saying, “now for all of you libertarians and freedom lovers in the room, you are going to love Justice Kennedy,” and love him I did. His votes were on point with how I would have personally sided on each issue. More than that though, his words swept me up and for the time it took to read his opinion(s), I felt a sense of hope and optimism in the overall good of people. He made me love our Constitution, giving me a feeling that the structure and order it provided existed in perfect harmony, so as to preserve as much freedom as possible.
Many become confused over Justice Kennedy’s voting patterns; one minute he is authoring opinions that make him appear reliably conservative, and the next minute he is penning prose that would make most conservative voters cringe. I must admit, I too cringed when I first read the language he used in Obergefell v. Hodges: what he referred to as “Principles”. While I agreed with his vote, I was confused by his method of Constitutional Law and wondered if I had inadvertently wandered into a philosophy class. While I still have reservations about his methods, I can at least appreciate that to Justice Kennedy there is a point to the Constitution. There are, of course, the words and their dictionary definitions (where most conservatives begin and end), but there is also meaning behind the words chosen, the purpose of crafting the whole document in the first place. To Justice Kennedy, it’s not that the Constitution is ‘alive,’ as many on the left like to view it-subject to modern interpretation, with an updated dictionary. Rather, it is more like the original words and structure point to the Founders hope in penning it. Justice Kennedy simply showed us the fine tension that must exist between federal and state, and between state and person, to ensure that enough space exists in the in-between for breathing, which is a necessary requirement for life, and liberty.
It is ironic, that so many conservatives now feel excitement about the chance to get a true Constitutionalist onto the bench in his stead. Justice Kennedy is nothing but a Constitutionalist. It is also interesting that his votes are tracked, as if the Court has sportscasters, always trying to figure out his next move. I can hear them now saying, “this season he is batting conservative, with only two fly balls out in Left-field.” I can’t imagine how frustrating it has been to be known as some sort of watered-down, unreliable conservative, whose only purpose on the Court is to be persuaded to swing one way or the other. As it is, no one seems to know how to mention his name without also calling him the “swing vote.” See here and here, for a few recent examples.
History should not remember Justice Kennedy as a swing voter, a moderate, or a centrist. All of those descriptions fail to see him for what he has been, a major disappointment. He spent his career disappointing some side of the aisle every day. What I wouldn’t give to have another disappointment of a jurist put on the Court to take his place! We need jurists who have no cause, but the cause of liberty, as defined by the Constitution. Jurists whose personal beliefs and opinions are left at home while they handle the one piece of paper that we must all share. Justice Kennedy showed me that the structure of the Constitution whispers its function. He heard the whispers and shared them with us, and for that, I am grateful. As for the future appointment to the Court, all we can hope for are a few Congress men and women who will follow Justice Kennedy’s example, and be disappointments.
Justice Kennedy: Foot Soldier of the Federalism Revolution
Justice Kennedy has written quite a few groundbreaking opinions in his career. Undoubtedly his most famous opinions are Lawrence v. Texas and Obergefell v. Hodges, both cases extending Due Process protections to LGBT people. But Justice Kennedy has also made enormous contributions to the revolution in the Court’s understanding of federalism. Justice Kennedy joined the majority repeatedly to prevent the federal government from treating the states as administrative appendages instead of co-sovereigns. He voted to create the anti-commandeering doctrine in New York v. United States, to preserve it in Printz v. United States, and to extend it in Murphy v. NCAA just this year. Justice Kennedy’s views on the subject can be found best in a decision he authored, Alden v. Maine.
In Alden v. Maine, Congress had authorized suits against states in their own state courts if the state violated the overtime provisions of the Fair Labor Standards Act. Maine protested, arguing that Congress had no power to authorize suits against the state of Maine in Maine’s own courts. Justice Kennedy, writing for the majority, sided with Maine in a strongly worded opinion supporting the sovereignty of states. Kennedy wrote that the Constitution protected the sovereign status of the states in two ways, first by reserving a substantial portion of power in the states, second by ensuring that the federal and state governments could act only upon people. The federal government could not act upon the states themselves. The principle that the government could not act upon the states themselves, but could only act upon the people, is an echo of the anti-commandeering doctrine which had been previously announced in New York v. United States.
Additionally, Kennedy tied the protection of state sovereignty to the original constitutional design. Looking at the history of the Eleventh Amendment, which prevents states from being sued in federal courts, Kennedy wrote that “Congress acted not to change but to restore the original constitutional design.” The Eleventh Amendment was a reaction to Chisholm v. Georgia, which allowed the state of Georgia to be sued in federal court. The Eleventh Amendment passed Congress and was ratified within a year. The majority understood the swiftness of passage to mean that the people had a very different understanding of the role of the states in the Constitutionally created federal system than the role of the states as understood by the Chisholm court. Thus, Kennedy provided a historical and originalist basis for state sovereign immunity. Sovereign immunity was not created by the Eleventh Amendment, but instead derived “from the structure of the original Constitution itself.”
Finally, Kennedy relied on precedent to show that the federal government could not save the law by appealing to the Necessary and Proper Clause. The Necessary and Proper Clause gives the federal government the choice of means to carry out its Art. I, §8 powers, but does not authorize them to use unlawful means of doing so. None of the Court’s precedents had ever found that an incidental infringement of a state’s sovereignty was a proper use of the Necessary and Proper Clause. Thus, Justice Kennedy cast his majority opinion as a rediscovery of founding principles instead of the judicial activism charged by the dissent.
Justice Kennedy’s opinion in Alden showed that he was a believer in the argument that the states had a vital role to play in the federal system the Constitution had created, that the Constitution intended them to play a vital role, and that they should be given the dignity and respect they deserved as co-sovereigns with the federal government. As he retires, the federalism revolution he helped usher in is well-accepted, having recently been reaffirmed in Murphy v. NCAA this past term. While an overlooked area of his jurisprudence, Justice Kennedy should be seen as more than a necessary fifth vote in the federalism revolution which took place during the Rehnquist and Roberts Court.
Is Brexit the End of European Integration As We Know It?
The United Kingdom’s secession (Brexit) from the European Union (EU) will forever shape the history of the UK and of European integration. While the full impacts of Brexit are unknown, Brexit is the actualization of latent discontent about extensive integration of the European continent. In part, Brexit signals deep dissatisfaction with the concept of free movement of peoples and more porous borders. However, Brexit does not necessarily signal a complete failure of European integration.
Brexit signals the first, and possibly only, ever substantial member state withdrawal from the EU. Britain has always been wary of EU integration and its role as a supranational organization in Europe. The first serious talks of Brexit, as it is now conceived, began during David Cameron’s 2013 re-election campaign. Playing at discontent with the EU, he promised to negotiate new terms with the EU and hold a referendum to let the citizens of the United Kingdom choose whether they want to stay in the EU under these new terms. The Conservative Party unexpectedly won, David Cameron carried through on his promise, and eventually, the European Union Referendum Act of 2015 was introduced in Parliament. Thus, the campaign for the UK’s future in the EU commenced.
The two main campaigns were colloquially known as the “Leave” or “Vote Leave” and the “Remain” campaigns, with their respective titles denoting the positions the campaigns took on Brexit. The Vote Leave campaign realized that their economic argument held little weight and shifted towards severe, anti-immigration rhetoric. Leaders of Vote Leave asserted immigration and national sovereignty as the reason for a decline in economy, loss of jobs, terrorism, the migrant crisis, and more. The simplified message was persuasive: remaining in the EU meant support of failed EU policies that perpetuated the migrant crisis, exhausted jobs, and drained money from the British economy. To paint a poignant picture, Nigel Farage, one of the campaign’s leaders, released a poster of thousands of seemingly Arab refugees coming to the EU. The poster was captioned: “Breaking Point—the EU has failed us all,” and at the bottom, “we must break free of the EU and taken back control of our borders. Leave the European Union.” It was clearly designed to illustrate that “swathes of brown-skinned foreigners were trekking towards Britain’s ‘open borders.’” Thus, the Leave campaign had a simple, strong, xenophobic, and compelling message, albeit misleading and false.
In contrast, the Remain campaign was unorganized, incoherent, and unable to create a singular message around Brexit, an immensely complicated issue. On the defensive, the Remain campaign weakly stirred fear about economic risk. The Remain campaign tried to combat the Leave campaign’s rhetoric with the fact that a withdrawal from the EU held infinite unknowns and potential repercussions. However, the anxiety that the Leave campaign stirred was not petered with the Remain campaign’s slogan of unknown risk of Brexit’s economic impact. In the end, the haphazard, poorly planned campaign failed. With the world watching, on June 23, 2016, the UK voted to leave the EU. Leave won with 51.9,% to Remain’s 48.%, with approximately 71.8% of the population voting. The Parliament confirmed the referendum results with the European Union Notification of Withdrawal Bill on March 13, 2017.
The existence of the EU requires supremacy, free movement of people, and member states to cede a certain amount of state sovereignty. Ultimately, Brexit was the UK’s sign of dissatisfaction with the EU to some level, even if the Leave campaign played on xenophobia and relied on half-truths. However, the UK has always been skeptical of integration and even of the EU. This skepticism is demonstrated in the UK’s history of involvement leading up to the EU, refusal to join the Eurozone, and declination to take part in the Schengen Area. The Leave campaign wove together lies and misleading facts to create a strong message that was easy for voters to understand. Thus, though the results of Brexit are unpalatable, the history of the UK’s approach towards integration signaled a resistance to integration throughout the history of the EU.
Though Brexit will certainly change the trajectory of the UK, it does not signal the demise of European integration post-World War II. There are still organizations, member states, and non-EU countries that support the idea of integration. In fact, states are still seeking to join the EU as part of their national goals. Nevertheless, the EU should take note of the dissatisfaction leading to Brexit and attempt to seek understanding as to why Brexit was able to occur, particularly as it relates to the free movement peoples. The EU must be proactive about stamping out xenophobia and providing platforms for informed debate for its citizens. Doing so will prevent another Brexit, or Grexit, Spexit, Frexit, etc., and further the goals of integration well into the twenty-second century.
 Sans Greenland’s exit in 1985.
 Paul Stocker, Brexit and the Mainstreaming of the British Far Right, London School of Economics and Political Science (Oct. 5, 2017), http://blogs.lse.ac.uk/brexit/2017/10/05/brexit-and-the-mainstreaming-of-the-british-far-right/.
 See Anealla Safdar, Brexit: UKIP’s ‘Unethical’ Anti-Immigration Poster, Al-Jazeera, (June 28, 2016) http://www.aljazeera.com/indepth/features/2016/06/brexit-anti-immigration-ukip-poster-raises-questions-160621112722799.html.
 See id.
 See Stocker, supra note 29.
 It is far easier to understand and join a simple, yet misleading message, while far more difficult to understand a complex but more accurate message. Similarly, it is easier to create a xenophobic, false message, but more difficult to craft a coherent, accurate message that takes into account nuances of reality.
 See Tortsen Bell, The Referendum, Living Standards and Inequality, Resolution Foundation (June 24, 2016) http://www.resolutionfoundation.org/media/blog/the-referendum-living-standards-and-inequality/ (“The legacy of increased national inequality in the 1980s, the heavy concentration of those costs in certain areas, and our collective failure to address it has more to say about [Brexit] than shorter term considerations from the financial crisis or changed migration flows.”).
 See Rafael Behr, How Remain Failed: the Inside Story of a Doomed Campaign, The Guardian (July 5, 2016), https://www.theguardian.com/politics/2016/jul/05/how-remain-failed-inside-story-doomed-campaign.
Semester in D.C.
I have had the distinct privilege, as a law student, to assist with the various Independent Reconciliation Compensation Programs (“IRCP”) administered by The Law Offices of Kenneth Fienberg in the settling of claims against the Catholic Church of New York. Many readers may recognize Kenneth Fienberg as the person responsible for compensation after the 9/11 terrorist attacks, BP oil spill, or any other high-profile disaster or incident of negligence over the past several decades. There are in fact five IRCP’s, each of which represents a different Diocese in the state of New York: New York Archdiocese; Brooklyn Diocese; Diocese of Rockville Centre; Diocese of Syracuse; and Diocese of Ogdensburg. There are eight total Diocese in the state of New York, six of which have implemented compensation programs, but only five of which are overseen by the Feinberg legal team. The Diocese of Buffalo is administering their own version of an IRCP, and the Diocese of Rochester and Albany have not yet instituted an official IRCP, although the Diocese of Albany previously attempted to settle multiple abuse claims over ten years ago.
The first of these funds (New York Archdiocese) began in October of 2016 and all five, in one capacity or another, are still active. All five funds began with set time periods within which those who have previously reported the abuse could participate, known as Phase I. Three of the five funds have also included a phase within which those who had not previously come forward could participate, known as Phase II. Both the Diocese of Syracuse and Ogdensburg, which are the two most recent funds, have not yet agreed to accept Phase II claims. In addition, all of the IRCP’s only cover abuse committed by actual Diocesan priest. Thus, abuse committed by religious order priest, lay members, or nuns is not covered. This has proved frustrating for many victims because religious order priest can account for the majority of the priest in a parish. For example, within the Archdiocese of New York, religious order priest account for 79% of all working priest.
For those who have previously reported the abuse either to the Diocese or to law enforcement, participating in Phase I of an IRCP is generally speaking a relatively quick and streamlined process. First, a claimant registers themselves on-line. Then the Administrators of the fund supply the Claimant a Phase I form. The form is fairly straight forward. It requires the Claimant to name the priest who abused them, as well as the nature of the abuse and its quantity. It also requires the Claimant to list anyone whom they may have previously informed of the abuse. Phase II claimants will likewise first register on-line and then receive a form. The form is identical for Phase I and Phase II claimants, what is different is how those two claims are assessed. It is easier to corroborate a Phase I claim, after all, they have already previously informed either the Diocese or law enforcement of the abuse, which means there is usually a record and possibly a previous investigation into the matter. Since a Phase II claimant is coming forward for the first time, in addition to answering the questions on the form, they also must inform the relevant District Attorney’s office (for some programs), inform the relevant Diocese (for some programs), and provide third-party corroboration for the abuse, such as witness affidavits or therapy records which can show that the Claimant spoke about the abuse to a third-party previous to the start of the IRCP. Once the form and any relevant information is provided it can take anywhere from three weeks to several months to hear back from the Administrators. The Claimant will then receive a settlement offer from the fund Administrators and the Claimant can choose to appeal that amount, accept it, or reject it. Once accepted, the Claimant is required to meet with an attorney (either one of their choosing or if living in New York, one will be provided-free of charge-to the Claimant) who will explain the Release form and witness their signature. The Release stipulates that by accepting the settlement offer, the Claimant forfeits his or her right to sue the Diocese for the abuse. Throughout the process, the Claimant has the right to speak with the fund Administrators, including in-person interviews. Some claimants decide that as part of their review process they would like the opportunity to tell the Administrators face-to-face about the abuse and its effects upon them. Of course, for every claimant who would like a face-to-face interview, there are a dozen who choose to opt out of such an option, they in-fact enjoy the anonymity of the claim process.
There are many criticisms of the various IRCP’s. From the standpoint of victim advocates and attorneys who work for adult survivors of child-hood sexual abuse, the settlement offers are simply too low compared to what they would be able to obtain from a jury, if only the statute of limitation period had not run. From the standpoint of the claimants, the IRCP fails to give them the one thing they may prefer, a public apology and admission of culpability. Lastly, for the various Dioceses’ the IRCP’s have required massive funds, which has led to parish consolidations and loans. As with all settlements, no one party is fully satisfied with the end result, no one side ‘wins.’ It is important to remember though that due to the very short statute of limitation period in New York (three years after reaching the age of majority), all of the claimants who have participated in the various IRCP’s would have been barred from suing the church or their abuser. Thus, the Catholic church is voluntarily offering to settle through the administration of the IRCP and not required. While this appears generous on their part, the motive is colored by the fact that New York is set to shortly pass The Child Victims Act, which would extend the statute of limitations to the age of 53 and provide for a one-year retroactive window, in which all these same claimants could sue the church. Many see the IRCP’s as a way to pay out less now, compared to more when the law changes down the road. For now though, many claimants see this as a chance to finally reveal the secret of their abuse and receive compensation by the organization they hold responsible for the abuse.
Participating in the assessment of claims for the various IRCP’s has been the internship of a lifetime. While many may wonder what I see in the job-after all, as a practical matter, I spend my days reading about minute details of horrific sexual abuse-I see this opportunity as a privilege. For all intents and purposes, I am the first person most of the claimants tell about their secret of childhood sexual abuse. It is no small feat for them to finally speak about such a hard, life-altering experience, much less to a stranger (me), and the Administrators who review my work and make the ultimate decisions regarding an offer for settlement. Every day of work I am in awe at the courage and strength of each claimant. They inspire me to be a better attorney and a more zealous advocate. While not without multiple faults, the IRCP fund programs represent a step in the right direction on the part of the various Catholic Dioceses and meet the needs of the vast majority of claimants, who desire anonymity and compensation.
The Democratic Republic of Congo (“DRC”) is a vast country with a diverse groups of peoples and an immense wealth of natural resources. However, centuries of colonization, imperialism, and civil strife has scarred what should be a thriving society. Its natural resources, a main source of industry, employment, and income, fund rebel groups instead of fueling a healthy economy and thriving families.
Conflict minerals have been a source of human rights abuses since their inception. True to their name, conflict minerals are valuable natural resources that are mined in conditions that perpetuate civil war and human rights abuses. To combat this issue, the global community is scrambling to find solutions to the complex problem that perpetuates egregious human rights abuses.As global awareness increases about conflict minerals and their devastating consequences, international organizations and states have struggled to come to a collective, effective solution. The DRC government is unable, or unwilling, to take measures to effectively end its conflict mineral crisis. Who then is to blame? More importantly, who is to take responsibility?
As the world hegemon, the United States has attempted to lead the global community in eliminating human rights abuses, albeit at times quite unsuccessfully. In wake of the 2008 Great Recession, Congress passed the Dodd-Frank Act in 2010. It was a broad sweeping law that increased regulation of the financial services industry. Notably, there was also a controversial, and unexpected, provision among the hundreds of pages of regulation: Section 1502 – Conflict Minerals. This section specifically addresses regulation of conflict minerals originating from the DRC.
The goals of the provision are to “enhance transparency” and “help American consumers and investors make more informed decisions.” It only requires companies that trade on the U.S. Stock Exchange to participate, and only focuses on conflict minerals stemming from one region in Africa. This legislation and corresponding regulation have effectuated change in minimizing conflict minerals in supply chains.
Though some companies, such as Intel, Apple, and HP, were already shifting towards due diligence and eliminating conflict minerals from their supply chains, Section 1502 has incentivized other companies to do so as well. It mandates companies to “exercise due diligence” and audit their supply chains to ensure that “products  do not contain minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country.” If products in their supply chains do contain conflict minerals, then companies must compile reports and these reports must then be made public through the Securities and Exchange Commission (“SEC”). In order to comply with Section 1502 of the Dodd-Frank Act, companies are setting up systems to identify potential conflict minerals in their products and subsequently to clean up their supply chains. According to the SEC, this action has resulted in a decrease the illegal supply of conflict minerals from the DRC that funds rebel groups and conflict. The United Nations Group of Experts on the DRC wrote to the SEC that “since the signing into law of the Dodd-Frank Act, a higher proportion th[a]n before of tin, tungsten and tantalum mined in the DRC is not funding conflict” and production of such minerals was already beginning to shift to non-conflict mines and areas. While Section 1502 of the Dodd-Frank Act has shortcomings, it is a significant step in combating use of conflict minerals in United States consumer products and should be a model that is continually refined and adopted in other states’ domestic legislation.
 It is also important to note that there are other factors that have eliminated rebel control of some of the mines in the DRC. For example, the Congolese army and the United Nations Force Intervention Brigade have undertaken military operations to neutralize particularly harmful armed groups. African governments are also beginning to take action and attempt to regulate conflict minerals, though these efforts have not been entirely effective. See Fidel Bafilemba, Timo Mueller, & Sasha Lezhnev, Enough Project, The Impact of Dodd-Frank and Conflict Minerals Reforms on Eastern Congo’s Conflict, 1 (June 2014) http://www.enoughproject.org/files/Enough%20Project%20-%20The%20Impact%20of%20Dodd-Frank%20and%20Conflict%20Minerals%20Reforms%20on%20Eastern%20Congo%E2%80%99s%20Conflict%2010June2014.pdf.