What is Fair in Fair Use?

By: Noah Coyle

Edited By: Maayan Abouzaglo and Luke Vredenburg

On October 12, 2022, the Supreme Court heard arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.[1] The case concerns whether a series of artworks based on a photo taken more than four decades ago constitutes a copyright violation, and its outcome may stifle the creation of art that relies on references.[2] The case’s origins date back to 1981, when celebrity photographer Lynn Goldsmith took a photograph of the late musician Prince that she would later license to Vanity Fair in 1984.[3] The magazine was authorized to utilize the photograph for an artist reference, in which an artist derives an artwork from an image of reference; it then commissioned artist Andy Warhol to create a piece of pop art using Goldsmith’s photograph of Prince.[4] The result of the commission was a cropped and recolored version of Goldsmith’s photograph that was featured in a Vanity Fair profile.[5] Warhol then reused Goldsmith’s photograph for a Prince Series that comprised more than a dozen other artworks, which only came to Goldsmith’s attention after one of these artworks was featured in a 2016 Vanity Fair issue commemorating Prince’s death.[6] The copyright of the Prince Series is owned by the Andy Warhol Foundation for the Visual Arts (AWF) nonprofit; Goldsmith received no credit for the Prince Series artwork published in Vanity Fair.[7] In Goldsmith's view, the Prince Series — which utilized her original photograph without her permission — amounted to copyright infringement.

Goldsmith notified AWF of its potential violation of her copyright after she learned of the Prince Series, to which AWF responded by suing Goldsmith in an effort to establish that the Prince Series did not constitute a copyright violation.[8] Goldsmith countersued, and the case was brought to the U.S. District Court for the Southern District of New York, which ruled in favor of AWF in 2019.[9] Precedent set by the Supreme Court in 1994 from the ruling of Campbell v. Acuff-Rose Music, Inc. holds that a derivative artwork which “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message” is not in violation of copyright; this standard is known as the fair use principle.[10] Judge John G. Koeltl, who presided over the case, wrote that the Prince Series is sufficiently transformative to meet the fair use principle, as it changes Prince as depicted in Goldsmith’s photograph “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.”[11][12] The case was appealed to the U.S. Court of Appeals for the Second Circuit, which unanimously reversed Judge Koeltl’s ruling.[13] Writing for the panel, Judge Gerard E. Lynch held that the Prince Series “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements” and therefore constitutes copyright infringement.[14]

The case was then heard by the Supreme Court, which granted a writ of certiorari on March 28, 2022 [15]. AWF claimed that under Supreme Court precedent, the Prince Series meets the fair use principle due to its transformative quality, as the meaning of the artwork is distinct from Goldsmith’s photograph.[16] AWF further argued that a work with a distinct meaning necessarily has a distinct purpose as well, stressing the importance of the fair use principle as a means of protecting art from unfettered copyright laws.[17] Nevertheless, Goldsmith asserted that the Prince Series is not sufficiently transformative to fall under fair use as transformative artworks must have a purpose that is different from the material it is derived from in addition to presenting a new meaning.[18] Goldsmith maintained that the Prince Series lacks any purpose beyond that of her photograph and therefore is not protected under the fair use principle.[19] What is thus in question in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the standard a derivative artwork must meet to be recognized as having a distinct purpose from the original piece.

If the Supreme Court is to side with Goldsmith and limit the fair use principle, an optimist may point to how the ruling would make life easier for lawyers and judges by making fair use – and therefore copyright law as a whole – less ambiguous. A pessimist, on the other hand, may worry that such a ruling for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith would do to creative freedom what the ruling of Dobbs v. Jackson Women's Health Organization did to federal abortion rights. An illustrative example would be that of hip-hop. Hip-hop is contingent on fair use as hip-hop beats tend to incorporate samples of others’ music. In fact, the ruling of Campbell v. Acuff-Rose Music, Inc. affirmed the right of the hip-hop group 2 Live Crew to sample the Roy Orbison song “Pretty Woman” in one of its own works.[20] If the Supreme Court rules in favor of Goldsmith, sampling could very well become defunct; if a distinct meaning is not enough to signify a distinct purpose, how could one argue that any given song serves a different purpose than another? In addition to hip-hop, this conundrum applies to all other art forms that rely on artistic reference, from the pop art of Andy Warhol to internet memes. With a decision on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith expected in May or June 2023, the parameters of artistic expression in the United States may tighten mere months from now.[21]

NOTES:

1. “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” Oyez (Oyez.org, October 12, 2022), https://www.oyez.org/cases/2022/21-869#:~:text=Facts%20of%20the%20case&text=Warhol%20made%20some%20aesthetic%20changes,fair%20use%20as%20a%20defense.

2. Oyez, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

3. Leslie R. Irwin and Steven D. Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” Legal Information Institute (Cornell Law School, October 6, 2022), https://www.law.cornell.edu/supct/cert/21-869.

4. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

5. Adam Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince,” The New York Times (The New York Times, March 28, 2022), https://www.nytimes.com/2022/03/28/us/politics/supreme-court-andy-warhol-prince.html.

6. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

7. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

8. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

9. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

10. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

11. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

12. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

13. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

14. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

15. Oyez, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

16. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

17. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

18. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

19. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

20. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

21. Hannibal Travis, “The Future of Creative Freedom Is on the Line, Starring Andy Warhol, Prince and 2 Live Crew,” FIU News (Florida International University, October 26, 2022), https://news.fiu.edu/2022/the-future-of-creative-freedom-is-on-the-line,-starring-andy-warhol,-prince-and-2-live-crew.
    

BIBLIOGRAPHY:

“Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” Oyez. Oyez.org, October 12, 2022. https://www.oyez.org/cases/2022/21-869#:~:text=Facts%20of%20the%20case&text=Warhol%20made%20some%20aesthetic%20changes,fair%20use%20as%20a%20defense. 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Irwin, Leslie R., and Steven D. Mirsen. “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” Legal Information Institute. Cornell Law School, October 6, 2022. https://www.law.cornell.edu/supct/cert/21-869. 

Liptak, Adam. “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.” The New York Times. The New York Times, March 28, 2022. https://www.nytimes.com/2022/03/28/us/politics/supreme-court-andy-warhol-prince.html

Travis, Hannibal. “The Future of Creative Freedom Is on the Line, Starring Andy Warhol, Prince and 2 Live Crew.” FIU News. Florida International University, October 26, 2022. https://news.fiu.edu/2022/the-future-of-creative-freedom-is-on-the-line,-starring-andy-warhol,-prince-and-2-live-crew.

Labor Unions

By: Ian Park

Edited By: Kiran Sheth and Anna Westfall

On December 9, 2021, a Starbucks store in Buffalo, New York made news for becoming the first Starbucks to vote to unionize. Facing heavy pushback from Starbucks for decades, the location’s vote was a decisive first step toward greater union representation across the company and the low-unionized food service industry as a whole. 

However, Starbucks wasn’t too happy with the movement toward unionization. In a report to the Securities and Exchange Commission, Starbucks claimed that “if a significant portion of our employees were to become unionized, our labor costs could increase and our business could be negatively affected by other requirements and expectations that could increase our costs, change our employee culture, decrease our flexibility and disrupt our business” [1]. This antagonistic assessment of unions reflects a view that many for-profit organizations have held for centuries — that unionization is a threat to their business models and only causes trouble. 

The nation’s long and often troubled history with labor unions can be traced back to 1794, when Philadelphia shoemakers formed a union called the Federal Society of Journeymen Cordwainers. The earliest forms of unions were similarly trade workers who banded together for protection and improved working conditions. A time of labor unrest and tension between employers and employees during the late 19th century and early 20th centuries led to major strikes against railroad, steel and coal industries with varying degrees of success. The American Federation of Labor was then established and would later become the country’s largest and most influential union. For decades, unions and labor movements have operated without legal protection and were looked down upon by both the government and companies as disruptive threats to economic productivity. 

It was ultimately the Great Depression that began to turn the tides of government and public sentiment in favor of the unions. Growing worker discontent and high unemployment rates led to a rise in union activity as workers once again turned to unions for jobs and representation. In 1935, Congress passed the monumental National Labor Relations Act (NLRA), a law that encouraged collective bargaining by “protecting workers’ full freedom of association.” [2] The NLRA officially recognized the legal rights of workers to collectively bargain, reflecting a change in government and public sentiment in the favor of unions. The law was instrumental in serving as a sort of “workers’ bill of rights,” laying the groundwork for further legislation.

But why have Starbucks and so many other multi-billion dollar corporations been able to suppress their workers’ rights for so long? To answer that question, we have to understand that the law hasn’t always favored unionized labor. In 1947, Congress passed the Tart-Hartley Act which prohibited certain union practices and increased government oversight on union activities [3]. However, the Act also established workers’ rights to deny union membership, allowing them to avoid coercion and pressure by unions.

Since the Tart-Hartley Act, other legislation passed has continued to erode workers’ and unions’ rights, giving companies more control. Failed bills such as the Employee Free Choice Act by the Obama administration and landmark court cases ruling clearly in favor of companies have further contributed to a recent decline in union membership among businesses to just 6.3% of private sector workers in 2020 [4]. These numbers are even lower for retail and food services, which have 4.6% and 1.2% union memberships respectively. 

As a result of these laws, companies are employing intimidation tactics similar to the union-busting coercion and infiltration of the 19th century. Leaked documents from Amazon’s Global Security Operations in 2020 revealed that Amazon had hired the detective agency Pinkerton to monitor warehouse workers and any union activity [5]. Earlier this year, Amazon was similarly accused of interfering in union votes by sequestering and harassing Amazon workers involved in unionization efforts [6]. Companies have also been using forced arbitrage clauses, legal documents that require employees to waive their rights to lawsuits. The Supreme Court upheld companies’ rights to continue using arbitrage clauses, ruling in Epic Systems v. Lewis (2018) that employers could legally use forced arbitration clauses during employment [7]. This practice has been growing at an alarming rate; a report by the Center for Popular Democracy and the Economic Policy Institute predicts that more than 80% of the private sector’s non-unionized workers will be employed under forced arbitration clauses by 2024 [7]. Without unions and fair laws protecting workers, those in low-paying jobs are left vulnerable to continued exploitation and wage theft. 

Perhaps the biggest flaw in collective bargaining laws is the fact that companies are not obligated by law to reach deals with labor unions. As the National Labor Relations Board puts it, “It is an unfair labor practice for either party to refuse to bargain collectively with the other, but parties are not compelled to reach agreement or make concessions” [2]. As a result, negotiations can end fruitless and unions can find themselves strong-armed out of the demands they make. 

Despite the many systemic barriers to labor reform, the decision by the Starbucks branch in Buffalo is the first step of many toward legitimizing workers’ concerns. While the future of unionized labor is uncertain, Congress needs to reconsider pending legislation such as the Protecting the Right to Organize Act and California’s Private Attorney General Act, both of which would allow employees to join unions at greater ease while holding companies accountable for seeking to undermine local and state laws [8]. With consumer demand spiking amid labor and supply chain shortages, it is more important than ever to ensure that workers are fairly compensated and treated well.

NOTES:

1.  United States Securities and Exchange Commission, “ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934,” United States SEC. https://www.sec.gov/ix?doc=%2FArchives%2Fedgar%2Fdata%2F829224%2F000082922421000086%2Fsbux-20211003.htm. 

2. National Labor Relations Board, “National Labor Relations Act,” National Labor Relations Board, https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act.

3. National Labor Relations Board, “1947 Taft-Hartley Substantive Provisions,” National Labor Relations Board, https://www.nlrb.gov/about-nlrb/who-we-are/our-history/1947-taft-hartley-substantive-provisions.

4. Bureau of Labor Statistics, “Union Members 2020 - Bureau of Labor Statistics,” BLS, https://www.bls.gov/news.release/pdf/union2.pdf.

5. Gurley, Lauren, “Secret Amazon Reports Expose Company Spying on Labor, Environmental Groups,” Vice, https://www.vice.com/en/article/5dp3yn/amazon-leaked-reports-expose-spying-warehouse-workers-labor-union-environmental-groups-social-movements.

6. Palmer, Annie, “Amazon Illegally Interfered in Alabama Warehouse Election, Union Alleges in Complaint to Federal Officials,” CNBC, https://www.cnbc.com/2021/04/19/amazon-prevented-free-and-fair-election-in-alabama-union-alleges.html.

7. “Epic Systems Corp. v. Lewis,” Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/16-285.

8. Hamaji, Kate, Rachel Deutsch, Elizabeth Nicolas, Celine McNiholas, Heidi Shierholz, and Margaret Poydock, “Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back,” Economic Policy Institute, https://www.epi.org/publication/unchecked-corporate-power/.
   

BIBLIOGRAPHY:

United States Securities and Exchange Commission. “ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.” Inline XBRL Viewer. United States SEC. https://www.sec.gov/ix?doc=%2FArchives%2Fedgar%2Fdata%2F829224%2F000082922421000086%2Fsbux-20211003.htm. 

National Labor Relations Board. “National Labor Relations Act.” National Labor Relations Act | National Labor Relations Board. https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act. 

National Labor Relations Board. “1947 Taft-Hartley Substantive Provisions.” 1947 Taft-Hartley Substantive Provisions | National Labor Relations Board. https://www.nlrb.gov/about-nlrb/who-we-are/our-history/1947-taft-hartley-substantive-provisions. 

Bureau of Labor Statistics. “Union Members 2020 - Bureau of Labor Statistics.” Union Members - 2020, January 22, 2021. https://www.bls.gov/news.release/pdf/union2.pdf. 

Gurley, Lauren. “Secret Amazon Reports Expose Company Spying on Labor, Environmental Groups.” Secret Amazon Reports Expose Company Spying on Labor, Environmental Groups, November 23, 2020. https://www.vice.com/en/article/5dp3yn/amazon-leaked-reports-expose-spying-warehouse-workers-labor-union-environmental-groups-social-movements. 

Palmer, Annie. “Amazon Illegally Interfered in Alabama Warehouse Election, Union Alleges in Complaint to Federal Officials.” CNBC. CNBC, April 19, 2021. https://www.cnbc.com/2021/04/19/amazon-prevented-free-and-fair-election-in-alabama-union-alleges.html. 

“Epic Systems Corp. v. Lewis.” Legal Information Institute. Legal Information Institute. Accessed December 13, 2021. https://www.law.cornell.edu/supremecourt/text/16-285. 

Hamaji, Kate, Rachel Deutsch, Elizabeth Nicolas, Celine McNiholas, Heidi Shierholz, and Margaret Poydock. “Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back.” Economic Policy Institute, May 20, 2019. https://www.epi.org/publication/unchecked-corporate-power/. 

The Need for Independent Immigration Courts

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. 

Gerrymandering and Logical Solutions

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/.