THE FORUM: NORTHWESTERN’S PREMIER LEGAL BLOG

Haley Lawson Haley Lawson

The Need for Independent Immigration Courts

Julia Filimowicz

By: Julia Filimowicz

Edited By: Michael Crystal and Renan Dennig

In the realm of immigration is the idea of the“American Dream,” or the belief that an individual’s hard work and discipline ensures them upward socioeconomic mobility. However, the continuous failure of the federal government to establish an effective immigration system makes the American Dream largely unattainable. This deprivation takes the form of family separation, mishandling of asylum-seekers, inhumane detention centers, hundreds of miles of a border wall, and an ultimately unjust immigration court system.

The American immigration court system faces a plethora of issues concerning partisan influence, due process, and lack of adequate funding. As a result, the Biden-Harris administration currently faces an excruciating backlog of 1.6 million immigration cases, nearly double the amount compared to when Trump assumed office in 2016. [1] In an attempt to address immigration reform, the Biden administration appointed 17 new immigration judges to the Department of Justice (DOJ), but received backlash for the lack of professional diversity. [2] The Biden administration’s struggle to resolve the aggregation of failed immigration policies of past administrations exacerbates the broken and overwhelmed immigration court system.

Currently, the immigration system is under the authority of the Justice Department, or more specifically, the Executive Office for Immigration Review (EOIR). Recently, prominent legal organizations including the American Bar Association (ABA), American Immigration Lawyers Association (AILA), Federal Bar Association (FBA), and National Association Immigration Judges (NAIJ) lobbied the House Judiciary Subcommittee on Immigration and Citizenship for the establishment of an independent Article I court. [3] An Article I court is one created by Congress under the power of Article I of the Constitution, and would ensure the insulation of partisan influence and protect decisional independence that is vacant in the current immigration system. [4] 

One argument for an Article I court demands that the immigration courts be transferred from the executive to the legislative branch. However, this presents a conflict, ast the Attorney General supervises the Office of Immigration Litigation (OIL) which contends immigration cases on behalf of the government in the circuit court of appeals. [5] The conflict of interest thus arises because immigration judges are overseen by the chief prosecutor in case proceedings instead of an ombudsman-like entity. 

According to an AILA statement, immigration courts lack protection from executive branch interference which jeopardizes the decision making process for its judges. [6] More specifically, intense performance measures on behalf of the executive branch detract from the significance and integrity of judicial authority concerning immigration cases. To put it into perspective, if the Attorney General disagrees with the decision of a judge, the judge is subjected to negative performance measures and their independence is constantly threatened. [7] Given that the Attorney General is likely to bring forward cases in the interests of government and/or partisan agenda, this enables an overstepping of the executive branch onto the judicial branch. 

Another premise of the argument for the establishment of an Article I court is that it would dissolve the arbitrary hiring practices of the current immigration system. The DOJ has a history of investigations concerning allegations of politicized hiring of candidates. [8] As the executive branch is tasked to hire immigration judges, it presents an outlet to hire loyalists over those with the appropriate experience, with no one to critique its selections. This is particularly observant during the Trump administration, where immigration judges were hired due to ideology rather than experience. [9] The administration also revised the standard requirements so that instead of judges having to be active members of the bar in addition to seven years of litigation experience, temporary appointments were made even before background checks were completed. [10] As a result, in 2019, the American Bar Association (ABA) released a report warning that the selection processes might have allowed “underqualified or potentially biased judges to be hired due to the lack of thorough vetting.” [11]

Ideally, immigration judges should serve as experienced, neutral arbiters that ensure due process to everyone that appears in court rather than following the political agenda of their superior. To reach this goal, the FBA stated that the implementation of an Article I court would contain a merit-selection process in the form of Presidentially nominated, Senate-confirmed appellate judges. [12] Similar to the Supreme Court, this methodology of hiring by a body of employers rather than an individual decision-maker ensures a higher likelihood of someone being hired due to experience rather than pure ideology. 

The establishment of an Article I court would resolve major issues with the current immigration system’s selection processes and partisan influences that impact judicial autonomy. Congress must take definitive steps towards reframing the immigration system so that it extracts partisan influence and ensures due process. Although the timeline for the legislation of independent immigration courts remains unclear, the lobbying efforts of the aforementioned legal organizations have been successful as the proposal for an independent Article I court by Rep. Zoe Lofgren, D-Calif. is currently underway to be passed to the Senate. 

NOTES:

  1. TRAC Immigration, “The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts,” The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, January 19, 2021, https://trac.syr.edu/immigration/reports/637/.

  2. Andrew Cohen, “Biden's New Immigration Judges Are More of the Same,” Brennan Center for Justice, February 9, 2022, https://www.brennancenter.org/our-work/analysis-opinion/bidens-new-immigration-judges-are-more-same.

  3. “ABA Urges Congress to Create Separate Immigration Courts,” Americanbar.org (American Bar Association, July 2019), https://www.americanbar.org/news/abanews/aba-news-archives/2019/07/aba-urges-congress-to-create/.

  4. Ellen M. Gilmer, “Independent Immigration Courts Envisioned in New Legislation,” Bloomberg Government, February 3, 2022, https://about.bgov.com/news/independent-immigration-courts-envisioned-in-new-legislation/. 

  5. “AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts,” American Immigration Lawyers Association, January 4, 2020, https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts.

  6. “AILA - AILA Submits Statement for Congressional Hearing on Immigration Courts,” American Immigration Lawyers Association, January 20, 2022, https://www.aila.org/infonet/aila-submits-statement-for-congressional-hearing. 

  7. “AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts,” American Immigration Lawyers Association, January 4, 2020, https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts.

  8. “Top DEMS Request IG Investigation of Illegal Hiring Allegations at Justice Department,” House Committee on Oversight and Reform, June 6, 2018, https://oversight.house.gov/news/press-releases/top-dems-request-ig-investigation-of-illegal-hiring-allegations-at-justice.

  9. “DOJ OIG Releases Management Advisory Memorandum to the Deputy Attorney General and the Director of the Executive Office for Immigration Review Regarding the Immigration Judge and Board of Immigration Appeals Member Hiring Process,” U.S. Department of Justice Office of the Inspector General, March 31, 2022, https://oig.justice.gov/news/doj-oig-releases-management-advisory-memorandum-deputy-attorney-general-and-director-executive.

  10. Reade Levinson, Kristina Cooke, and Mica Rosenberg, “Special Report: How Trump Administration Left Indelible Mark on U.S. Immigration Courts,” Reuters (Thomson Reuters, March 8, 2021), https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179.

  11. Ibid.

  12. “FBA Statement of Record Submitted to the House Committee on the Judiciary Subcommittee on Immigration and Citizenship, ‘Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts,",” Federal Bar Association, February 4, 2020, https://www.fedbar.org/wp-content/uploads/2020/02/FBA-statement-final-0204-2020_Final-2.pdf. 


BIBLIOGRAPHY:

TRAC Immigration. “The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts.” The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, January 19, 2021. https://trac.syr.edu/immigration/reports/637/. 

Cohen, Andrew. “Biden's New Immigration Judges Are More of the Same.” Brennan Center for Justice, February 9, 2022. https://www.brennancenter.org/our-work/analysis-opinion/bidens-new-immigration-judges-are-more-same. 

“ABA Urges Congress to Create Separate Immigration Courts.” Americanbar.org. American Bar Association, July 2019. https://www.americanbar.org/news/abanews/aba-news-archives/2019/07/aba-urges-congress-to-create/. 

Gilmer, Ellen M. “Independent Immigration Courts Envisioned in New Legislation.” Bloomberg Government, February 3, 2022. https://about.bgov.com/news/independent-immigration-courts-envisioned-in-new-legislation/. 

“AILA - Aila Policy Brief: Restoring Integrity and Independence to America's Immigration Courts.” American Immigration Lawyers Association, January 4, 2020. https://www.aila.org/advo-media/aila-policy-briefs/aila-calls-for-independent-immigration-courts. 

“AILA - AILA Submits Statement for Congressional Hearing on Immigration Courts,” American Immigration Lawyers Association, January 20, 2022, https://www.aila.org/infonet/aila-submits-statement-for-congressional-hearing.

“Top DEMS Request IG Investigation of Illegal Hiring Allegations at Justice Department.” House Committee on Oversight and Reform, June 6, 2018. https://oversight.house.gov/news/press-releases/top-dems-request-ig-investigation-of-illegal-hiring-allegations-at-justice. 

“DOJ OIG Releases Management Advisory Memorandum to the Deputy Attorney General and the Director of the Executive Office for Immigration Review Regarding the Immigration Judge and Board of Immigration Appeals Member Hiring Process.” U.S. Department of Justice Office of the Inspector General, March 31, 2022. https://oig.justice.gov/news/doj-oig-releases-management-advisory-memorandum-deputy-attorney-general-and-director-executive. 

Levinson, Reade, Kristina Cooke, and Mica Rosenberg. “Special Report: How Trump Administration Left Indelible Mark on U.S. Immigration Courts.” Reuters. Thomson Reuters, March 8, 2021. https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179. 

“FBA Statement of Record Submitted to the House Committee on the Judiciary Subcommittee on Immigration and Citizenship, ‘Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts,".” Federal Bar Association, February 4, 2020. https://www.fedbar.org/wp-content/uploads/2020/02/FBA-statement-final-0204-2020_Final-2.pdf. 

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Gerrymandering and Logical Solutions

Michael Crystal

By: Michael Crystal

Edited By: Anna Westfall and Kiran Sheth

The Problem:

The ability to express one’s voice through voting is a cornerstone of the United States’ democracy. As such, the 15th, 19th, 24th, and 26th Amendments have granted voting rights to previously disenfranchised groups, such as women and Black Americans. However, there are still ways in which minority groups are having their democratic voices suppressed. One of them is a process called gerrymandering, which came to prevalence following the Voting Rights Act of 1965. 

Each state has a certain number of congressional districts. In these distinct districts, they elect representatives to send to the House. Both the Democratic and Republican parties want to send as many representatives to the house as they can. Unfortunately, this political desire has led to gerrymandering, a political process of redistricting that manipulates district boundaries to favor a certain party, because politicians have strategically reconstructed congressional districts to maintain their power. Through a process called “packing and cracking,” politicians use their power to retain or gain seats for their party.[1]  “Packing” refers to the act of bunching members of the victim party into the least number of districts possible. In these few districts, they overwhelmingly win the seats. Then, the remainder of the victim party is “cracked,” or split, between other districts in which they do not have enough for the majority. 

North Carolina represents an example of “packing and cracking.” In 2010, the split between congressional delegation was evenly distributed between the Republicans and Democrats. However, in 2011, Republicans took control of the redistricting process for the first time in over 100 years. Their reconstruction of congressional districts led to hyper segregation of Democratic voters, and by 2016, North Carolina Republicans won 10 of 13 districts despite winning only 53% of the statewide vote.[2] The three democratic districts, which were intentionally crafted to remove democratic influence from republican areas, won by over 67% of the vote. By strategically zoning majority democrat areas together, North Carolina Republicans were able to optimize the number of representatives they could send to the house. When asked about the redistricting, Rep. David Lewis (R) said that “electing Republicans is better than electing Democrats,” and his colleagues and he drew the maps to “help foster what I think is better for the country”.[3] He openly explained that the reorganization of congressional districts served the purpose of gaining political power for his party. 

More recently, Texas’s new districting plans have come under fire and the state is  being sued by the Department of Justice due to their racialized and partisan nature. Between 2010 and 2020, Texas’s population has grown by close to 4 million people, with minorities representing 95% of that increase. Because of this population increase, Texas’s House delegation was expanded from 36 seats to 38. Since the acquisition of these two seats is mostly due to the increase of minority voters, it would make sense to create two congressional zones where their voices can be represented. However, the new congressional maps have created two more predominantly white zones. In their lawsuit, the DOJ alleges that the new maps are unconstitutional on the grounds that they strip voters of color of their democratic voice.[4] 

The Solution(s):

This tactic to gain political power through the strategic creation of congressional districts is a harmful practice that needs to be addressed. This problem may seem like an easy one to address in a non-partisan manner. However, if recent politics have taught us anything, simplicity and non-partisanship are rare occurrences. In Wisconsin, a recent poll indicated 72% of the population strongly supports nonpartisan redistricting. Unfortunately, the Supreme Court, through the diminishment and mistreatment of the Voting Rights Act, has made it nearly impossible to challenge acts of gerrymandering. In Texas, although the DOJ has plenty of evidence to suggest that the new congressional maps negatively impact minority communities, it is unlikely that they will receive a favorable ruling. 

The Princeton Gerrymandering Project, which is a leader in the field of non-partisan zoning, has recognized this failure at the federal level. Now, they are pursuing a “federalist approach,” which keys in on state-by-state changes to halt partisan gerrymandering.  Their approach is mathematical. With the goal of partisan symmetry, they use three statistical methods to determine if certain states have been gerrymandered. The first tests for “an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics.” Next, they test for “a discrepancy in winning vote margins between the two parties,” and lastly for “the construction of reliable wins for the party in charge of redistricting”.[5] Through the implementation of these tests, they can construct viable arguments and fight gerrymandering in court. 

Other solutions have been proposed that are designed to completely get rid of the redistricting process of partisanship. Finding an unbiased third party to complete the congressional maps is a solution that some states have already implemented, and others are considering trying.  This is a popular solution, but many opponents say it would be impossible to truly find an unbiased group to complete this task.[6] 

Yet another possible solution is shifting our current voting system to a proportional representation (PR). Currently, our system forces states to divide their population into districts and have each district elect its representative. This allows districts to be gerrymandered and unequally represented. For example, in a state that is 70% Republican and 30% Democrat, the representation in the House from this state should match this split as closely as possible following proportional representation. However, districts are often gerrymandered to gain wins in closely contested races. Then, there are more of these wins for a certain side, resulting in unequal representation. A PR system would ensure that a state with a 70-30 split between the two parties sends a 70-30 split in representatives to the House.[7] However, critics argue that this method would create a large disconnect between representatives, their constituents, and the issues they are supposed to represent.  

Regardless of which solution is chosen, reform to the current system of redistricting must be enacted. Currently, politicians have the ability to choose their voters. To allow democracy to thrive, we need to give our citizens the ability to choose their representatives in a way that accounts for everyone’s voice and opinion. A PR system in particular would add value to votes that are currently undervalued and remove power from overvalued votes. While critics say it creates disconnect, that disconnect already exists. Oftentimes, politicians lobby on issues that are relevant to the community and when they are elected, these issues are moved into their rearview. A PR system would create a more equal system that values collaboration more than partisanship, and that is exactly what our country needs.

NOTES:

  1. “Non-Partisan Analysis”, Princeton Gerrymandering Project, March 26, 2022, https://gerrymander.princeton.edu/info/

  2. “Gerrymandering”, Equal Justice Initiative, November 30, 2020,  https://eji.org/news/history-racial-injustice-gerrymandering/

  3. “Gerrymandering Deep Dive: North Carolina”, Democracy Docket, September 28, 2021,  https://www.democracydocket.com/news/gerrymandering-deep-dive-north-carolina/

  4. “Gerrymandering locked in Republican control for another decade in Wisconsin. The power hungry want even more.”, David D. Haynes, Milwaukee Journal Sentinel, December 10, 2021, https://www.jsonline.com/story/opinion/2021/12/10/gerrymandering-locked-gop-power-wisconsin-they-want-even-more/6421599001/

  5. “The hideous legal obstacles facing DOJ’s new anti-gerrymandering lawsuit in Texas”, Ian Millhiser, Vox, December 7, 2021 https://www.vox.com/2021/12/7/22821274/texas-gerrymandering-justice-department-lawsuit-voting-rights-act-supreme-court-biden

  6. “How America lost its commitment to the right to vote”, Ian Millhiser, Vox, July 21, 2021,   https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan

  7. “Three Tests for Practical Evaluation of Partisan Gerrymandering”, Samuel Wang, Stanford Law Review, June 2016, https://www.stanfordlawreview.org/print/article/three-tests-for-practical-evaluation-of-partisan-gerrymandering/

BIBLIOGRAPHY:

“Gerrymandering.” Equal Justice Initiative, 25 Nov. 2020, https://eji.org/news/history-racial-injustice-gerrymandering/. 

“Gerrymandering Deep Dive: North Carolina.” Democracy Docket, 30 Sep. 2021, https://www.democracydocket.com/news/gerrymandering-deep-dive-north-carolina/. 

Haynes, David D. “Gerrymandering Locked in Republican Control for Another Decade in Wisconsin. the Power Hungry Want Even More.” Milwaukee Journal Sentinel, Milwaukee Journal Sentinel, 10 Dec. 2021, https://www.jsonline.com/story/opinion/2021/12/10/gerrymandering-locked-gop-power-wisconsin-they-want-even-more/6421599001/. 

“Info | Princeton Gerrymandering Project.” Princeton University, The Trustees of Princeton University, https://gerrymander.princeton.edu/info/. 

Jeff Suzuki. “The Self-Limiting Partisan Gerrymander: An Optimization Approach.” The College Mathematics Journal, vol. 45, no. 5, Mathematical Association of America, 2014, pp. 338–48, https://doi.org/10.4169/college.math.j.45.5.338.

Millhiser, Ian. “How America Lost Its Commitment to the Right to Vote.” Vox, Vox, 21 July 2021, https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan. 

Millhiser, Ian. “The Hideous Legal Obstacles Facing DOJ's New Anti-Gerrymandering Lawsuit in Texas.” Vox, Vox, 7 Dec. 2021, https://www.vox.com/2021/12/7/22821274/texas-gerrymandering-justice-department-lawsuit-voting-rights-act-supreme-court-biden. 

Sherstyuk, Katerina. “How to Gerrymander: A Formal Analysis.” Public Choice, vol. 95, no. 1/2, Springer, 1998, pp. 27–49, http://www.jstor.org/stable/30024359.

Stewart, A.J., Mosleh, M., Diakonova, M. et al. Information gerrymandering and undemocratic decisions. Nature 573, 117–121 (2019). https://doi.org/10.1038/s41586-019-1507-6

Vickrey, William. “On the Prevention of Gerrymandering.” Political Science Quarterly, vol. 76, no. 1, [Academy of Political Science, Wiley], 1961, pp. 105–10, https://doi.org/10.2307/2145973.

Wang, Samuel. “Three Tests for Practical Evaluation of Partisan Gerrymandering.” Stanford Law Review, June 2016, https://www.stanfordlawreview.org/print/article/three-tests-for-practical-evaluation-of-partisan-gerrymandering/. 

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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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Haley Lawson Haley Lawson

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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