THE FORUM: NORTHWESTERN’S PREMIER LEGAL BLOG

Haley Lawson Haley Lawson

Ukraine and the International Court of Justice

Luke Vredenburg

By: Luke Vredenburg

Edited By: Renan Dennig and Anna Westfall

Following the Russian invasion of Ukraine on February 24th, 2022, questions arose about the role international organizations would play in facilitating a peaceful resolution to the conflict. While NATO nations have refused to involve themselves directly in battle with Russia, tensions at the United Nations have reached a boiling point. Just days after the war began, 100 diplomats from Western countries walked out of a speech by Russia’s foreign minister Sergey V. Lavrov at the United Nations Human Rights Council, but this produced little tangible change. [1]  The inaction by these institutions has led the Ukrainian government to take matters into their own hands. Kyiv brought suit against Russia in the International Court of Justice in accordance with a 1948 treaty on the prevention of genocide that both nations signed. [2] The International Court of Justice, the principal judicial branch of the UN often referred to as the World Court, has made influential rulings in past conflicts. However, Russia’s refusal to attend the trial brings the power of the court and international law into question. In order for the World Court to produce tangible results and uphold the reputation of international law, the UN and its member nations must be willing to enforce the court’s decision despite the flaws in the system that can render its rulings ineffective.

The International Court of Justice was established in 1945 by the San Francisco Conference, the same meeting that established the United Nations. Headquartered in The Hague, Netherlands, it is composed of 15 judges who are elected to nine-year terms by a majority vote in the UN General Assembly and Security Council. [3] Since its inception, the World Court has been considered by many to be the primary mechanism for upholding international law, as it settles disputes between states regarding land frontiers, territorial sovereignty, violations of humanitarian law, and economic rights. [4] These decisions are considered to be binding, with the rulings being final and without the option to appeal. If a state refuses to comply with a decision, then the court turns to the United Nations Security Council for enforcement, leading to the vast majority of decisions being upheld. [5] As former ICJ president Peter Tomka stated, this has allowed the World Court to “‘[uphold] and [promote] the rule of law at the international level, in relations between states’” over the course of its existence. [6]

For these reasons, the Ukrainian government has turned to the International Court of Justice as a means of ending Russia’s invasion of the country. The Russian government has justified their military action by alleging the Ukranian government is committing genocide in the provinces of Luhanks and Donetsk in the eastern half of country. In 1948, both nations signed the Geneva Convention, a UN treaty that prohibits genocide and names the International Court of Justice as the forum for resolving disputes over the issue. [7] Russia hoped that in claiming genocide by the Ukrainian government, they could avoid disputes on the international level, but legal experts acknowledge there is no evidence to support the Kremlin’s claims. [8] Instead, Ukraine has brought a suit to trial arguing that Russia has no lawful basis for the invasion and asked the World Court not only to rule against Russia over their false claims of genocide, but to order provisional relief for Ukraine and demand Russia cease its military operations altogether on the basis of Russia committing war crimes by endangering civilians. [9] Russia is thus highly unlikely to win the case, as the major issue for the Ukranian government is not to illustrate the false claims of genocide or even the possible violations of international humanitarian law by Russia, but simply to illustrate guilt high enough up the Russian chain of command that they can obtain a conviction for Russian commanding officers. Ukrainian refugees in Poland have already begun collecting documents and interviews with potential testimony of war crimes. While cases in the ICJ typically take years to resolve, this case was placed under the “fast-track procedure” in order to make a quick ruling, with the trial commencing on March 7th, 2022. [10] 

However, Russia’s impertinence to the World Court makes it unclear whether the court’s decision could have any impact on the conflict. [11] Russia did not attend the trial, a decision that has been criticized by Ukrainian attorney Harold Hongju Koh, a Yale University professor of international law and former legal adviser during the Obama administration. Koh has argued that Russia’s refusal to send any representatives must not go unpunished by the court, as failing to do so would “threaten the post World War II international legal order.” [12] Additionally, one of Russia’s main attorneys, Allain Pellet of France who had been representing Russia on the international level for years, including Ukraine’s suit over the annexation of Crimea in the ICJ, has resigned. He claims that “‘it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it.’” [13] 

Pellet’s statement describes the major issue of the current structure of international law, as although the court’s decisions always carry great symbolic weight, major nations can sidestep their rulings. Russia is highly likely to lose this suit and face legal repercussions, but there is historical precedent for UN Security Council nations utilizing their veto power to void these decisions, a controversial move originated by the United States. In 1986, the ICJ ruled in Nicaragua v. United States that the US violated international law by supporting right-wing rebel groups in their efforts to overthrow the Nicaraguan government and demanded the US pay war reparations. Nevertheless, the US refused to comply with the ruling, and when Nicaragua turned to the Security Council for enforcement of the decision, the US, a permanent member of the Council, vetoed any enforcement of the court’s order. [14] Russia is likely to follow this path as well, as they too are a permanent member of the UN Security Council. Any ruling made in favor of Ukraine can be ignored by the Russian government and then vetoed once the Ukrainian government attempts to enforce the ruling. As a result, the war crimes being committed by Russia can remain unpunished.

In 2014, then ICJ Justice and current ICJ President Joan E. Donaghue wrote about her experiences serving on the bench of the World Court and described her interactions with those who questioned the court's authority. Many individuals’ primary concern regarded the effectiveness of the court in shaping the behavior of states, and even she admits that “at present, we practitioners and scholars of international law are not well-equipped to answer these questions” as “much of what we have to say sounds simply like truisms.” [15] The debate over whether or not countries conform to ICJ rulings and if these rulings play a role in the future of national decision making is highly contested. While Donaghue does not offer a resolution to this debate, she insists that international institutions and international lawyers play a large role in setting global priorities and establishing standards of conduct. [16] Yet, this places international law in a difficult position. For nations like Ukraine that are in need of help from international institutions, the ICJ could be a platform to encourage action from other nations and place heavy restrictions on those that deviate from the standards of conduct established by the UN and agreed upon by its members. However, the current composition of international law affords great power to nations such as Russia and the United States, who already have the means to manipulate nations of lesser economic or military strength. 

Flaws like these weaken the impact international organizations can have on global affairs, making rulings more symbolic than tangible if they lose their enforceability. Reforms such as removing veto powers for permanent members of the Security Council would greatly improve the disparity between nations and make ICJ rulings applied fairly. This idea is not without precedent, as member nations called for an amendment of the UN Charter in 2018 to enact this exact change in the hopes it would allow for underrepresented nations, especially in Africa, to increase their role in the UN. [17] Even small changes, such as refusing permanent members the right to veto ICJ resolutions about their affairs, would allow for the court to have a much greater impact on the “international rule of law” the court claims to protect. Currently, the laws do not apply equally to every nation, which as seen with Ukraine, can have great consequences on a nation's security and health.

NOTES:

  1. Nick Cumming-bruce, “Diplomats Walk out of Lavrov's Speech at the U.N. in Geneva,” The New York Times, March 1, 2022. https://www.nytimes.com/2022/03/01/world/europe/lavrov-speech-un.html. 

  2. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/. 

  3. Karen Mingst, "International Court of Justice." Encyclopedia Britannica, July 25, 2019. https://www.britannica.com/topic/International-Court-of-Justice.

  4. Philippe Couvrer, “Upholding the Rule of Law at the International Level: The Role of the International Court of Justice,” United Nations, Accessed March 9, 2022. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-role-international-court-justice. 

  5. Ibid

  6. Ibid

  7. Patrick Wintour, “International Court of Justice to Fast-Track Ruling on Russian Invasion,” The Guardian, March 7, 2022. https://www.theguardian.com/world/2022/mar/07/international-court-of-justice-to-fast-track-ruling-on-russian-invasion-of-ukraine. 

  8. Rick Noack, Karen DeYoung, and Michael Birnbaum, “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show,” The Washington Post, March 8, 2022, https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-icj-hague/. 

  9. Ibid

  10. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/.

  11. Rick Noack, Karen DeYoung, and Michael Birnbaum, “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show,” The Washington Post, March 8, 2022, https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-
    icj-hague/. 

  12. Marlise Simons, “Ukraine Takes Its Case against Russia to the U.N.'s Highest Court,” The New York Times, March 7, 2022. https://www.nytimes.com/2022/03/07/world/europe/icj-united-nations-ukraine-russia.html. 

  13. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/.

  14. “International Court of Justice: World's Highest Court,” Academy 4SC, March 18, 2021, https://academy4sc.org/video/international-court-of-justice-worlds-highest-court/. 

  15. Joan E. Donoghue, “The Effectiveness of the International Court of Justice,” Proceedings of the Annual Meeting (American Society of International Law) 108 (2014): 114–18, https://doi.org/10.5305/procannmeetasil.108.0114.

  16. Ibid

  17. “Member States Call for Removing Veto Power, Expanding Security Council to Include New Permanent Seats, as General Assembly Debates Reform Plans for 15-Member Organ | Meetings Coverage and Press Releases” United Nations, November 20, 2018, https://www.un.org/press/en/2018/ga12091.doc.htm. 

BIBLIOGRAPHY:

Couvrer, Philippe. “Upholding the Rule of Law at the International Level: The Role of the International Court of Justice.” United Nations, Accessed March 9, 2022. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-role-international-court-justice. 

Cumming-bruce, Nick. “Diplomats Walk out of Lavrov's Speech at the U.N. in Geneva.” The New York Times, March 1, 2022. https://www.nytimes.com/2022/03/01/world/europe/lavrov-speech-un.html. 

“International Court of Justice: World's Highest Court.” Academy 4SC, March 18, 2021. https://academy4sc.org/video/international-court-of-justice-worlds-highest-court/. 

Donoghue, Joan E. “The Effectiveness of the International Court of Justice.” Proceedings of the Annual Meeting (American Society of International Law) 108 (2014): 114–18. https://doi.org/10.5305/procannmeetasil.108.0114.

“Member States Call for Removing Veto Power, Expanding Security Council to Include New Permanent Seats, as General Assembly Debates Reform Plans for 15-Member Organ | Meetings Coverage and Press Releases.” United Nations, November 20, 2018. https://www.un.org/press/en/2018/ga12091.doc.htm. 

Mingst, Karen. "International Court of Justice." Encyclopedia Britannica, July 25, 2019. https://www.britannica.com/topic/International-Court-of-Justice.

Noack, Rick, Karen DeYoung, and Michael Birnbaum. “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show.” The Washington Post, March 8, 2022. https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-icj-hague/. 

Simons, Marlise. “Ukraine Takes Its Case against Russia to the U.N.'s Highest Court.” The New York Times, March 7, 2022. https://www.nytimes.com/2022/03/07/world/europe/icj-united-nations-ukraine-russia.html. 

van den Berg, Stephanie. “Ukraine to Confront Russia at Int'l Court of Justice on Monday.” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/. 

Wintour, Patrick. “International Court of Justice to Fast-Track Ruling on Russian Invasion.” The Guardian, March 7, 2022. https://www.theguardian.com/world/2022/mar/07/international-court-of-justice-to-fast-track-ruling-on-russian-invasion-of-ukraine. 

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NFTs and the Future of U.S. Copyright Law

Luke Vredenburg

By: Luke Vredenburg

Edited By: Alexandre Brunet and Rayyana Hassan

Following years of stagnant growth and ridicule from the majority of investors, cryptocurrency exploded in both popularity and value in 2018. Most headlines emphasized the future of decentralized finance and the role of Bitcoin as a potential universal currency. However, the blockchain technology driving the growth of cryptocurrencies was also being utilized in the digital art world. [1] This development would increasingly interest the public until mid-2021, when the creation and sale of these non-fungible tokens (NFTs) gained national media attention. [2] Despite the recent success of this market, the future of NFTs and their application in a rapidly increasing number of fields is heavily dependent on the legal infrastructure that dictates their effectiveness and security, a fact most evident with respect to copyright law. Thus, the federal government should adjust its copyright systems in order to provide support and protection to online artists.

Understanding the laws around NFTs requires knowledge of the process of making an NFT and their usage. Non-fungible tokens were created in 2014 with the simple goal of letting artists make profit off their online creations and have some autonomy over their work on the internet. [3] The process begins when an individual “mints” a piece of digital art, which attaches a unique link to the file that records all transactions of the work [4]. This allows artists to retain a sense of ownership despite digital art being extremely public, as they can track its usage. [5] However, artists make no money from this process. Unlike fungible assets which can be exchanged for another based on exact fractional values, such as one U.S. dollar being equivalent to ten dimes, NFTs are sold at auction with an assigned market value based on their perceived scarcity and quality. [6] 

By the third quarter of 2021, NFT sales reached $10.7 billion dollars, prompting a variety of industries such as music licensing, banking, and real estate to experiment with methods of implementing NFTs as a means of verifying ownership and reducing transaction costs. [7] For instance, real estate contracts associated with NFTs eliminate much of the paperwork and intermediate steps involved with transferring the property, all while keeping these documents publicly accessible and unalterable. [8] Likewise, musician’s albums can be connected to NFTs, giving consumers a form of digital memorabilia reminiscent of physical records of the past. Athletes often implement this method as well, attaching NFTs to their trading cards and signatures. [9] Although opponents of NFTs argue that they assist in pump-and-dump schemes and scams, the prospect of simplifying online commerce and strengthening digital ownership is enticing to both major corporations and general consumers. However, it requires a strong legal foundation in order to function properly. [10] 

Despite the promising future of NFTs, they present a unique set of challenges under current copyright law. 17 USC § 106 states that the original creator of a work of art has the exclusive ability to make copies of and display the work of art publicly. [11] However, unlike physical art, NFTs are already publicly available. Any individual can therefore make countless perfect replicas of a digital piece, mint them, and pass them off for their own, which can create immense legal repercussions for both the buyer and seller. For the seller, under § 504 of the Copyright Act, the sale of an infringing work, willing or unwilling, can make the seller liable for $750 to $30,000 per infringement. If proved to be a willing copyright violation, the fine increases to $150,000 per infringement. [12] In purchasing an NFT, the buyer must authenticate the piece by proving it is linked to the original artist, but this process still does not illustrate if the work is an original IP or simply a copy of someone else's work. Therefore, reselling the NFT would make the buyer liable for copyright infringement. Due to the lack of legal protections for buyers, this lack of transparency makes the current sale and purchase of NFTs risky, but this problem can be resolved through legal action.

Currently, artists must submit a Digital Millennium Copyright Act takedown request to NFT platforms in order to enforce copyright violations. However, this means NFT owners must constantly monitor countless websites to identify unauthorized productions of their works. [13] Collecting evidence and becoming aware of illegal works is a formidable challenge, so artists are seeking ways to gain further protection from illegal reproduction of their works while reducing the time required to do so. Recent federal legislation offers one way in which this could be accomplished. In late December 2020, Congress approved two new additions to the Copyright Act as part of the Consolidated Appropriations Act 2021. The first of these focused on deterring illegal streaming by creating harsher punishments, a philosophy that should be extended to NFTs and the copying and reselling of digital art. [14] The hope is that these punishments will discourage people from making illegal copies, protecting both producers and consumers. Even if these laws do not eliminate fraud, they will still play an important role in the marketplace. Artists and their customers will gain confidence in their transactions, and the countless industries seeking to implement NFTs into their business models will feel more comfortable doing so. 

Another legal issue regarding NFTs is the first sale doctrine, which states that companies do not have control over the resale of their intellectual property. Yet a key component of the NFT market is the royalties awarded to artists with each sale of their work. U.S. law has traditionally opposed royalties for artists, but this compensation is what attracts artists to post their work online, as they continuously benefit from its transactions. NFTs are coded with smart contracts, which automatically give a percentage of the secondary sale to the original producer. [15] This is useful not only in the world of digital art, but industries such as real estate where commission is a common aspect of the sale and music where artists are paid for the number of streams they recieve. 

However, a 2018 ruling by the 9th U.S. Circuit Court of Appeals in Disney Enterprises Inc. v Redbox Automated Retail LLC claimed that the first sale doctrine does not apply to digital assets, which could greatly benefit the NFT market. In 2017, RedBox began digital access codes to Disney movies at their kiosks despite not having a vendor agreement with the company. [16] These links brought customers to a third party site where users could download the films, which Disney argued constituted contributory copyright infringement. RedBox’s defense attempted to use the first sale doctrine to avoid liability, but this argument was thrown out by the court. The judges alleged that links represented the ability to create a physical copy in the future, but were not tied to a “particular fixed copy of a copyrighted work.” [17] Therefore, there could be no “first sale” of the product, giving Disney control over the resale of these links. [18]

Since the purchase of an NFT simply gives ownership of a link to the digital asset, the first sale doctrine will likely not apply to NFTs as well. Even in cases in which the NFT is associated with a tangible object such as a home or trading card, its ownership is attached to the corresponding digital token, meaning physical purchases may void this doctrine as well. If a similar case is brought before federal court, then smart contracts and royalties can be safely implemented without worry of legal repercussions. Federal and state governments should follow this ruling, as with the rapid growth of the NFT market, removing the hindrance of the first sale doctrine will have immense economic benefits to producers while simplifying aspects of legal contracts.

As countless corporations and celebrities continue to adopt NFTs into their businesses and industries, it is clear that NFTs are here to stay. Correspondingly, the U.S. should alter its copyright law regarding digital art and products. Improving protections for both consumers and producers will foster the development of the market and preserve the qualities of NFTs that attracted public and corporate interest in the first place. These changes do not have to be drastic, but the small details of the policies may make the difference between a new source of commerce and a collapsing market.

NOTES:

  1. Anshu Siripurapu, “Cryptocurrencies, Digital Dollars, and the Future of Money,” Council on Foreign Relations, September 24, 2021. https://www.cfr.org/backgrounder/cryptocurrencies-digital-dollars-and-future-money. 

  2. Gregory J. Chinlund and Kelley S. Gordon, “What Are the Copyright Implications of NFTS?” Reuters, October 29, 2021, https://www.reuters.com/legal/transactional/what-are-copyright-implications-nfts-2021-10-29/. 

  3. Anil Dash, “NFTs Weren't Supposed to End like This,” Atlantic Media Company, April 2, 2021, https://www.theatlantic.com/ideas/archive/2021/04/nfts-werent-supposed-end-like/618488/. 

  4. Simon J. Frankel, “What Copyright Lawyers Need to Know about Nfts,” Blomber Law, July 16, 2021, https://news.bloomberglaw.com/ip-law/what-copyright-lawyers-need-to-know-about-nfts. 

  5. Ibid.

  6. Nathaniel Lee, “'You Can Gain Everything and You Can Lose Everything' - Here's Why Experts Remain Skeptical about the NFT Market,” CNBC, November 29, 2021, https://www.cnbc.com/amp/2021/11/29/heres-why-experts-remain-skeptical-about-the-nft-market.html. 

  7. Ibid

  8. Leighton Emmons, “Why the Future of Nfts Goes Far beyond Gaming and Digital Art Work,” Nasdaq, November 10, 2021, https://www.nasdaq.com/articles/why-the-future-of-nfts-goes-far-beyond-gaming-and-digital-art-work. 

  9. Ibid

  10. Nicole S. Silver, “The History and Future of Nfts,” Forbes Magazine, December 10, 2021, https://www.forbes.com/sites/nicolesilver/2021/11/02/the-history-and-future-of-nfts/?sh=b7112186a163. 

  11. Jonathan Schmalfeld, “How Copyright Violations Can Crash Your NFT Party,” Fortune, August 4, 2021, https://fortune.com/2021/08/04/nfts-copyright-violations-penalties-non-fungible-tokens-collectibles-nfttorney-jonathan-schmalfeld/. 

  12. Ibid

  13. Gregory J. Chinlund and Kelley S. Gordon, “What Are the Copyright Implications of NFTS?” Reuters, October 29, 2021, https://www.reuters.com/legal/transactional/what-are-copyright-implications-nfts-2021-10-29/. 

  14. Sara A. Lieman and Margaret A. Esquenet, “Introduction to New Copyright Law Provisions: Felony Streaming Penalties and The Case Act,” Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, February 18, 2021,

  15. Ingram Yuzek Gainen Carroll & Bertollo, LLP, “Buying & Selling Nfts: Navigating the Legal Landscape,” JD Supra, November 30, 2021, https://www.jdsupra.com/legalnews/buying-selling-nfts-navigating-the-2284166/. 

  16. David Grossman, “Disney Enterprises Inc. v. Redbox Automated Retail LLC,” Loeb & Loeb LLP, August 30, 2018, https://www.loeb.com/en/insights/publications/2018/09/disney-enterprises-inc-v-redbox-automated-retail__. 

  17. Ibid

  18. Ibid

BIBLIOGRAPHY:

Chinlund, Gregory J., and Kelley S. Gordon. “What Are the Copyright Implications of NFTS?” Reuters, October 29, 2021. https://www.reuters.com/legal/transactional/what-are-copyright-implications-nfts-2021-10-29/. 

Dash, Anil. “NFTs Weren't Supposed to End like This.” Atlantic Media Company, April 2, 2021. https://www.theatlantic.com/ideas/archive/2021/04/nfts-werent-supposed-end-like/618488/. 

Emmons, Leighton. “Why the Future of Nfts Goes Far beyond Gaming and Digital Art Work.” Nasdaq, November 10, 2021. https://www.nasdaq.com/articles/why-the-future-of-nfts-goes-far-beyond-gaming-and-digital-art-work. 

Frankel, Simon J. “What Copyright Lawyers Need to Know about Nfts.” news.bloomberglaw.com, July 16, 2021. https://news.bloomberglaw.com/ip-law/what-copyright-lawyers-need-to-know-about-nfts. 

Grossman, David. “Disney Enterprises Inc. v. Redbox Automated Retail LLC.” Loeb & Loeb LLP, August 30, 2018. https://www.loeb.com/en/insights/publications/2018/09/disney-enterprises-inc-v-redbox-automated-retail__. 

Ingram Yuzek Gainen Carroll & Bertollo, LLP. “Buying & Selling Nfts: Navigating the Legal Landscape.” JD Supra, November 30, 2021. https://www.jdsupra.com/legalnews/buying-selling-nfts-navigating-the-2284166/. 

Lee, Nathaniel. “'You Can Gain Everything and You Can Lose Everything' - Here's Why Experts Remain Skeptical about the NFT Market.” CNBC, November 29, 2021. https://www.cnbc.com/amp/2021/11/29/heres-why-experts-remain-skeptical-about-the-nft-market.html. 

Lieman, Sara A., and Margaret A. Esquenet. “Introduction to New Copyright Law Provisions: Felony Streaming Penalties and The Case Act.” Lexology. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, February 18, 2021. https://www.lexology.com/library/detail.aspx?g=61fda160-3821-4538-af06-d703ec57cee5. 

Schmalfeld, Jonathan. “How Copyright Violations Can Crash Your NFT Party.” Fortune, August 4, 2021. https://fortune.com/2021/08/04/nfts-copyright-violations-penalties-non-fungible-tokens-collectibles-nfttorney-jonathan-schmalfeld/. 

Silver, Nicole S. “The History and Future of Nfts.” Forbes Magazine, December 10, 2021. https://www.forbes.com/sites/nicolesilver/2021/11/02/the-history-and-future-of-nfts/?sh=b7112186a163. 

Siripurapu, Anshu. “Cryptocurrencies, Digital Dollars, and the Future of Money.” Council on Foreign Relations, September 24, 2021. https://www.cfr.org/backgrounder/cryptocurrencies-digital-dollars-and-future-money. 

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The Future of the Second Amendment

Daniel Wolf

By: Daniel Wolf

Edited By: Rayyana Hassan and Luke Vredenburg

On November 3, 2021, the Supreme Court heard oral arguments in the case of New York State Rifle & Pistol Association (NYSRPA) v. Buren. The case is about New York State’s handgun licensing law, which has been in place since 1913. This law requires citizens to demonstrate “proper cause” in order to receive a concealed-carry license to carry their guns in public, although new York does not define “proper cause” in its law.[1] The specific question the Supreme Court will be analyzing is whether New York’s law restricting the conditions under which one may attain a concealed-carry permit violates the Second Amendment. An analysis of relevant legal issues and the history of gun laws in America illustrates that New York’s law is constitutional. Still, the Court’s conservative majority–which thus far has demonstrated a desire to revisit long-held understandings of controversial issues (see Whole Women’s Health v. Jackson)--may agree with the NYSRPA. Such an outcome could potentially unravel the precarious agreement between lower courts that have allowed many local gun restrictions to remain in place. 

It is helpful to understand relevant precedent before considering the constitutionality of New York’s law. The Second Amendment to the Constitution states that “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] In the 2008 case of D.C. v. Heller, the Supreme Court held that the Second Amendment protects an individual’s right to keep and bear arms for “traditionally lawful purposes,” namely self-defense within one’s home, for the first time.[3] In the 2010 case of McDonald v. Chicago, the Court selectively incorporated the Second Amendment to the states. Selective incorporation is a constitutional doctrine that allows courts to extend constitutional rights to the states rather than applying constitutional rights only under federal jurisdiction.[4] The Court has not heard a major Second Amendment case since Chicago, but various lower courts have reached a tentative consensus on how to interpret the Second Amendment in the meantime.

At least ten of the thirteen federal appeals courts consistently apply a “two-step analytic framework” when hearing Second Amendment cases.[5] Under this framework, courts subject “severe burdens on Second Amendment rights” to strict scrutiny and “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core’” to the less restrictive intermediate scrutiny test.[6] If a court applies strict scrutiny when reviewing a law that potentially violates a fundamental constitutional right, the law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[7] If a court applies intermediate scrutiny when reviewing a similar law, the law must “further an important government interest” and “must do so by means that are substantially related to that interest.”[8]

Following these criteria, both the district court that initially heard Bruen and the U.S. Court of Appeals for the Second Circuit applied intermediate scrutiny and determined that New York’s law is indeed constitutional. In Bruen, the Supreme Court should apply intermediate scrutiny as well because New York’s law falls under the “less onerous” category outlined in the two-step analytic framework.  

To explain why these lower courts applied intermediate scrutiny and why the Supreme Court should as well, we must examine the history of gun laws in the United States. There have been countless legal restrictions on carrying firearms from the common law predating 1788 to the current day. For example, shortly before America’s creation, North Carolina implemented a law that forbade “going armed at night or day ‘in fairs, markets…nor in the presence of the King’s justices..nor in no part elsewhere.”[10] Moreover, in the 19th century, Georgia and Tennessee outright banned the sale of weapons that could be concealed, and New York’s law itself is more than a century old.[11] The extensive history behind restrictions on carrying weapons is what led the Second Circuit to conclude that “state regulation of the use of firearms in public was ‘enshrined with[in] the scope’ of the Second Amendment when it was adopted.”[12] Thus, New York’s law falls under intermediate scrutiny because it regulates actions that states have regulated for centuries throughout America; it does not impose a “severe burden” on Second Amendment rights. Additionally, there is no disagreement that if the Court were to apply intermediate scrutiny New York’s law is “substantially related” to the “important government interest” of preserving public safety.[13] 

America’s federalist system of government provides more ammunition to the argument that New York’s law is constitutional. The Tenth Amendment to the Constitution states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved for the states respectively, or to the people.”[14] America has a federalist system of government in which the powers to create and enforce laws are divided between a national government and state governments because the states are incredibly different from one another. What laws work in a rural state like Montana are likely to be significantly different from the laws that work in an urban center like New York.[15] Therefore, the Tenth Amendment allows the states to write their own laws accordingly. Since the Constitution does not clarify the rules regarding concealed-carry, the states should be allowed to regulate concealed-carry laws themselves.

The abundant evidence pertaining to the legality of restrictions on concealed-carry licenses is what makes the Court’s decision to hear this case so concerning, especially after two lower courts summarily dismissed NYSRPA’s claims. Among the few judges who disagreed with the “two-step analytic framework” are current Justices Brett Kavanaugh and Amy Coney Barrett. In a dissenting opinion written in 2011, when he was still a lower court judge, Kavanaugh asserted that courts should “assess gun bans and regulations based on text, history, and tradition” and disregarded the “balancing test” between strict and intermediate scrutiny.[16] In a 2019 dissent, Justice Barrett indicated her desire to subject all gun restrictions to strict scrutiny, proclaiming that only “dangerous people” should be restricted from owning guns.[17] Justice Barrett did not consider the practical impossibility of determining who is dangerous and who is not. 

If the Court were to apply strict scrutiny and rule in favor of the NYSRPA, which is entirely possible due to its conservative majority and past opinions written by Barret and Kavanaugh, the current system of gun regulations in America could crumble. Such a decision could render the “two-step analytic framework” moot because the Court could hold that all cases involving the Second Amendment should be subject to strict scrutiny. If the analytic framework were nullified, countless gun restrictions that states have implemented under the framework would suddenly be subject to further review, possibly resulting in a cascade of legal challenges that would threaten gun laws everywhere. Thus, the Court should apply intermediate scrutiny in reviewing the law and rule against the NYSRPA to protect the already tenuous gun restrictions throughout America. 

Notes:

  1. Vkimber, “New York State Rifle & Pistol Association Inc. v. Bruen,” Legal Information Institute, Legal Information Institute, October 28, 2021, https://www.law.cornell.edu/supct/cert/20-843.

  2. “Second Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022,  https://www.law.cornell.edu/constitution/second_amendment.

  3. "Second Amendment,” Legal Information Institute.

  4. “Incorporation Doctrine,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/incorporation_doctrine.

  5. Ian Millhiser, “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws,” Vox, Vox, April 26, 2021, https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.

  6. Millhiser, “The Supreme Court Will Hear.”

  7. “Strict Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/strict_scrutiny.

  8. “Intermediate Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/intermediate_scrutiny.

  9. Vikember, “New York State Rifle & Pistol Association.”

  10. Millhiser, “The Supreme Court Will Hear.”

  11. Millhiser, “The Supreme Court Will Hear.”

  12. Vikember, “New York State Rifle & Pistol Association.”

  13. Vikember, “New York State Rifle & Pistol Association.”

  14. “Tenth Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/constitution/tenth_amendment.

  15. Jeremy Feigenbaum, “In Our Federalist System, States Can Regulate Public Carry,” SCOTUSblog, November 2, 2021, https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.

  16. Millhiser, “The Supreme Court Will Hear.”

  17. Millhiser, “The Supreme Court Will Hear.”

BIBLIOGRAPHY:

Feigenbaum, Jeremy. 2021. “In Our Federalist System, States Can Regulate Public Carry.” SCOTUSblog. November 2. https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.

“Incorporation Doctrine.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/incorporation_doctrine.

“Intermediate Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/intermediate_scrutiny.

Millhiser, Ian. 2021. “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws.” Vox. Vox. April 26. https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.

“Second Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/second_amendment.

“Strict Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/strict_scrutiny.

“Tenth Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/tenth_amendment.

“U.S. Constitution - Second Amendment - Congress.” 2022. Accessed February 10. https://constitution.congress.gov/constitution/amendment-2/.

Vkimber. 2021. “New York State Rifle & Pistol Association Inc. v. Bruen.” Legal Information Institute. Legal Information Institute. October 28. https://www.law.cornell.edu/supct/cert/20-843.

Vkimber. 2021. “New York State Rifle & Pistol Association Inc. v. Bruen.” Legal Information Institute. Legal Information Institute. October 28. https://www.law.cornell.edu/supct/cert/20-843. 

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Daniel Rodriguez Daniel Rodriguez

The Future of American Administrative Law

Daniel Wolf

By: Daniel Wolf

Edited By: Anna Westfall and Kiran Sheth

On February 28, 2022, the Supreme Court will hear oral arguments in the case of West Virginia v. Environmental Protection Agency. The case involves the scope of the powers delegated to the Environmental Protection Agency (EPA) under the Clean Air Act of 1963. Besides having an immense impact on Congress’ ability to pass legislation, the Court’s ruling in West Virginia could fundamentally change the modern landscape of administrative law that has existed since Franklin Delano Roosevelt’s New Deal in the 1930s. 

West Virginia is a peculiar case in that it revolves around an Obama-era regulation that is no longer in effect. In 2015, the Obama administration’s EPA under the Obama administration issued the Clean Power Plan, which created guidelines for reducing greenhouse gas emissions from power plants.[1] The foundation for the Clean Power Plan was the Clean Air Act, a 1963 law that instructed the EPA to determine “the best system of emission reduction” for various pollutants.[2] Soon after Obama announced the impending Clean Power Plan, the EPA determined that the “best system” for reducing carbon dioxide emissions would include radically changing the methods by which power plants generated power.[3] Since some coal plants would have had to shut down under the EPA’s proposed guidelines, more than 20 Republican-led states and coal companies sued the EPA. The plaintiffs argued that the Clean Power Plan could not go into effect until courts had heard all legal challenges concerning the law.[4] In February 2016, the Supreme Court agreed, issuing a stay on the implementation of the law. Notably, this was the first time the Court issued a stay on federal regulations before a lower federal appeals court heard the case.[5] 

Donald Trump’s administration quickly scrapped the Clean Power Plan before it could ever go into effect, replacing it with the Affordable Clean Energy (ACE) rule. The Trump Administration justified ACE by claiming that the EPA should never have had the authority to issue the Clean Power Plan.[6] Climate change activists were displeased with ACE, so Democrat-led states and two other groups of petitioners challenged the law. On January 19, 2020, the U.S. Court of Appeals for the D.C. Circuit overturned ACE, stating that the law was based “on a mistaken reading of the Clean Air Act.”[7] As far as the Court of Appeals was concerned, the Clean Air Act did grant the EPA broad discretionary authority in determining the “best system” for reducing emissions.[8]

The Biden Administration opted not to renew ACE and announced their intention to institute their own climate change regulations. Before the administration could write new rules, West Virginia and a host of other states and coal companies asked the Supreme Court to hear an appeal of the D.C. Circuit’s ruling.[9] At this point, neither ACE nor the Clean Power Plan was in effect, so most Supreme Court observers expected the Court to reject the petitions for appeal.[10] However, the Court unexpectedly granted the appeal in October 2020.

The central question in West Virginia is whether or not the EPA has broad authority under Section 111(d) of the Clean Air Act to implement regulations they deem to be part of the “best system” for reducing emissions.[11] Nevertheless, briefs filed by the petitioners thus far indicate their intention to seek a ruling farther-reaching than one that would cover only the scope of the EPA’s powers under the Clean Air Act. Many briefs invoke the “major questions” doctrine, an administrative law interpretation popular among conservative legal scholars.[12] The major-questions doctrine argues that an executive agency such as the EPA may issue a regulation that would have “significant political or economic ramifications” only if Congress explicitly allows them to do so.[13] Some of the briefs make even larger claims, utilizing the so-called “non-delegation” doctrine to argue that Congress should never be able to delegate its rule-making powers to other agencies. 

Both the major-questions doctrine and the non-delegation doctrine run afoul of the Chevron doctrine, which has been the prevailing approach to administrative law since the 1984 case Chevron U.S.A., Inc, v. Natural Resources Defense Council. The Chevron doctrine asserts that courts should “defer to an executive agency’s interpretation” of a given statute so long as that interpretation is “reasonable.”[14] This doctrine has come to form the foundation of contemporary administrative law. Almost all government regulations today rely on the doctrine, from rules regarding worker safety to air quality.[15]

The Supreme Court’s decision to hear West Virginia despite the “absence of a rule to review” suggests that some of the Court’s conservative justices are interested in issuing a wide-ranging ruling concerning the state of American administrative law.[16] Moreover, Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas have recently indicated their desire to revive the major-questions doctrine, which has been effectively out of use in jurisprudence since the New Deal.[17] The effects would be unimaginable if the Court decides to issue a ruling that replaces the current Chevron doctrine with the major-questions or non-delegation doctrine. In 2019, Justice Elena Kagan noted that replacing the Chevron doctrine could render most contemporary governance unconstitutional because Congress is “dependent…on the need to give discretion to executive officials to implement its program.”[18]

People outside the legal community should begin to pay closer attention to West Virginia. If the Court were to replace the Chevron doctrine with the major-questions or non-delegation doctrine, there would be endless litigation over the countless government regulations that currently rely on the Chevron doctrine. Additionally, there are practical concerns regarding the government’s ability to pass new legislation in the future. It is already difficult enough for our legislature to pass laws today. If Congress had to detail all of their intentions when writing new regulations explicitly, it is exceedingly likely that both parties would agree even less than they already do. 

NOTES:

  1. “West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency. 

  2. Elizabeth Kolbert. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

  3. “The Supreme Court Case.” The New Yorker.

  4. Courtney Scobie. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

  5. “Supreme Court stays EPA.” Americanbar.org

  6. “The Supreme Court Case.” The New Yorker.

  7. “DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

  8. “The Supreme Court Case.” The New Yorker.

  9. “The Supreme Court Case.” The New Yorker.

  10. “The Supreme Court Case.” The New Yorker.

  11. “West Virginia V. Environmental Protection Agency.” Ballotpedia.

  12. Karen C. Sokol. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html. 

  13. “The Supreme Court’s Plan.” Slate.

  14. “The Supreme Court Case.” The New Yorker.

  15. “The Supreme Court Case.” The New Yorker.

  16. “The Supreme Court’s Plan.” Slate.

  17. “The Supreme Court’s Plan.” Slate.

  18. Gundy v. United States, 588 U.S. 17 (2019)

BIBLIOGRAPHY:

“DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

Gundy v. United States, 588 U.S. (2019)

Kolbert, Elizabeth. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

Scobie, Courtney. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

Sokol, Karen C. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html.

“West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency. 

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