THE FORUM: NORTHWESTERN’S PREMIER LEGAL BLOG
Restrictions on the Use of Michelangelo’s David: Cultural Curation or Cultural Censorship?
By: Faith Magiera
Edited by: Jared Fischer and Angie Chung
Michelangelo’s David is an iconic part of the culture of not only Italy but the whole world. The Renaissance sculpture nicknamed “The Giant” which depicts David from the Bible’s David and Goliath story, quickly became a well-known piece of Italy’s history after its completion in 1504. [1] However, it has recently been the subject of censorship and national control debates in Italy, as museum curator Cecilie Hollberg has started to win suits on behalf of the David in order to limit its use as a merchandise item or promotional tool. [2] As the director of the Galleria Dell’Accademia Di Firenze, the main art museum in Florence, Hollberg has come under fire for likening Florentine tourism to a process that has made the city a “prostitute,” an ideology that is consistent with her lawsuits against the widespread use of David. [3] While restricting the use of the sculpture’s image may initially seem like a violation of intellectual property law, the Italian Cultural Heritage Code, made constitutional under article nine of the Italian Constitution “promotes the development of culture” and “safeguards…the historical and artistic heritage of the nation,” complicates the issue. [4]
Italy’s intellectual property law, and the specific implications it holds for museum artworks, is a complex issue that was changed by the advent of Italy’s Code of Cultural Heritage and Landscape, which was updated in 2004. [5] Yet before we dive into the legal implications of Italy’s newest cultural code, let us investigate what is unique about Michelangelo’s David. To understand why David is such an interesting case study, it is first important to delve into how it came to be. A piece commissioned during the Renaissance in Florence, it was meant to be exhibited in the Florence Cathedral but was moved for unknown reasons to the Palazzo Vecchio, which operated as the town hall of Florence at the time. [6] Significant to note here is the shift of David from its traditional religious significance into a nonreligious, political context. [7] During this time, there was also the shift of Florence from a Medici-led dictatorship to an attempted restoration of the Republic, so the sculpture became a “symbol of the Florentine Republic.” [8] Consequently, David came to hold a symbolic significance for the people of Florence, which considered it to represent their “strength and independence,” as explained by the Galleria Dell’Accademia, which now houses the sculpture. [9] This complicated historical, and political context is a reason why it is now considered as the cultural property of Italy, a categorization explained below.
The United States does not have a comparable Act that serves to protect its national heritage, so it is essential to dive into Italy’s Cultural Code to understand what is so different about this categorization of public works. As defined in Italy’s Cultural Code, cultural property is a category of “things which… present historical, archaeological, ethnoanthropological, archival and bibliographic interest” or act as “testifying to the values of civilization,” which includes museum artifacts. [10] As investigated above, David seems to fall into this unique classification because of its historical production and symbolism that allows the Italian government and other institutions, such as the Galleria, to have greater control over its image. Protection of cultural property is defined in this Act as “provisions aimed at conforming or regulating the rights and behavior inherent to cultural heritage” while also making room for “public enjoyment” of these artifacts. [11] This Act also created the Ministry for Cultural Heritage and Activities in order to ensure that the government had an institution ready to deal with the potential actions that would be taken on the act’s behalf, including whether or not the Act can be reproduced or used in merchandise. [12] Unlawful use of cultural property is defined as “a use that is incompatible with [its] historical or artistic nature or which is harmful to [its] conservation or integrity,” which does not necessarily consider reproductions, but certainly shows the commitment of the Italian government to preserving cultural artifacts from being used in contexts that it deems unseemly. [13] As seeking approval from the government is the only alternative in order to ensure that the use will not result in a suit, it is easy to see how Hollberg has been able to leverage this Act in order to stop the proliferation of the image of David on pieces of merchandise that are deemed to be demeaning to David’s image as a cultural icon. This is seen pointedly in one case that ruled that Conde Nast would have to pay fees back to the Galleria because of its unauthorized use of David in a magazine article. [14]
Italy’s Cultural Heritage Code, an unprecedented and extensive Act, clashes with ideas about intellectual property set by the Berne Convention, which Italy agreed to in 1886 and amended in 1979. [15] This treaty set the standard for works entering the public domain 50 years after the death of the author––or in David’s case, the artist––and was signed by 181 countries since its conception in 1886. [16] After a work enters the public domain, there are usually no protections regarding how the work can be used. Therefore, Italy’s Cultural Heritage Code has created a new category of work that can require protection not because of its status as being the copyrighted work of a particular author or artist, but because of its inherent worth or value to Italy’s cultural identity. This new, liminal category allows those interested in intellectual property a lens to see the interaction of cultural, and moral values with ideas of freedom of speech and expression inherent to public domain images. Additionally, it potentially clashes with an agreement in the European Union that puts all works that are no longer copyrighted under the Berne Convention into the public domain, another legal implication of this new type of law. [17]
As Cecilie Hollberg explained in a recent piece for The Guardian, she wants to take a more sustainable approach to tourism that prioritizes preserving not only knowledge of great works but also the character of Florence as a city. [18] She explains that, after her successful suits have stopped the proliferation of David’s likeness, “visitors also look at other objects and give them the dignity and respect they merit.” [19] The question then becomes: is it the power of the museum, or the government on the museum’s behalf, to regulate the use of an image in order to curate an educational or cultural environment? Hollberg’s repeated attacks on tourism and merchandise she sees as “in bad taste” raises legal questions about what the role of the museum is in building a national culture, and how that can be regulated by a national government that is focused on curating a specific image of itself. [20] Whether or not a sculpture, which has been in the public domain for centuries, can be regulated in its use is a question that has ethical and moral implications for what an artwork represents in today’s global, not just national, culture. Currently, the decision for Italy specifically seems to be leaning to the idea of cultural curation as opposed to the free proliferation of images, but the future of global legality is still an open question.
Notes:
Victoria and Albert Museum. 2018. “V&A · The Story of Michelangelo’s David.” Victoria and Albert Museum. V&A. 2018. https://www.vam.ac.uk/articles/the-story-of-michelangelos-david.
Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 2024. AP News. March 28, 2024. https://apnews.com/article/michelangelo-david-statue-italy-protection-heritage-3fa1b7185fea36003e064fa6e2c309fd.
Greenberger, Alex. 2024. “Florence Museum Director Says Tourism Has Turned the City into a ‘Prostitute,’ Drawing Pushback.” ARTnews.com. January 30, 2024. https://www.artnews.com/art-news/news/florence-prostitute-accademia-director-cecilie-hollberg-controversy-1234694564/.
Constitution of the Italian Republic, Art. 9. and Cassady, Daniel. 2023. “Florence’s Gallerie Dell’Accademia Wins Image Rights to Michelangelo’s ‘David.’” ARTnews.com. May 31, 2023. https://www.artnews.com/art-news/news/michelangelos-image-rights-1234670119/.
Code of Cultural and Landscape Heritage, 42, It. (2004).
Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.” DailyArt Magazine. September 8, 2022. https://www.dailyartmagazine.com/david-by-michelangelo/.
Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.”
Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.”
“Michelangelo’s David.” 2021. Galleria Dell’Accademia Di Firenze. November 17, 2021. https://www.galleriaaccademiafirenze.it/en/artworks/david-michelangelo/.
Code of Cultural and Landscape Heritage, 42, Article 2, It. (2004).
Code of Cultural and Landscape Heritage, 42, Article 3, It. (2004).
Code of Cultural and Landscape Heritage, 42, Article 4, It. (2004).
Code of Cultural and Landscape Heritage, 42, Article 170, It. (2004).
Borgogni, Daniel. 2023. “The Court of Florence Finds against Condé Nast for Use of the Image of the David by Michelangelo, Recognizing Image Rights to the Work of Art.” Italy Intellectual Property Blog. June 13, 2023. https://www.ipinitalia.com/copyright/the-court-of-florence-finds-against-conde-nast-for-use-of-the-image-of-the-david-by-michelangelo-recognizing-image-rights-to-the-work-of-art/.
“Berne Convention for the Protection of Literary and Artistic Works.” n.d. Www.wipo.int. https://www.wipo.int/treaties/en/ip/berne/#:~:text=The%20Berne%20Convention%2C%20adopted%20in.
World Intellectual Property Organization. 2019. “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).” World Intellectual Property Organization. 2019. https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.”
Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.” The Guardian, April 18, 2024, sec. Opinion. https://www.theguardian.com/commentisfree/2024/apr/18/tourism-florence-michelangelo-david-visitors-souvenirs.
Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.”
Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.”
Bibliography:
Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 2024. AP News. March 28, 2024. https://apnews.com/article/michelangelo-david-statue-italy-protection-heritage-3fa1b7185fea36003e064fa6e2c309fd.
Borgogni, Daniel. 2023. “The Court of Florence Finds against Condé Nast for Use of the Image of the David by Michelangelo, Recognizing Image Rights to the Work of Art.” Italy Intellectual Property Blog. June 13, 2023. https://www.ipinitalia.com/copyright/the-court-of-florence-finds-against-conde-nast-for-use-of-the-image-of-the-david-by-michelangelo-recognizing-image-rights-to-the-work-of-art/.
Cassady, Daniel. 2023. “Florence’s Gallerie Dell’Accademia Wins Image Rights to Michelangelo’s ‘David.’” ARTnews.com. May 31, 2023. https://www.artnews.com/art-news/news/michelangelos-image-rights-1234670119/.
Code of Cultural and Landscape Heritage, 42 It. (2004)
Constitution of the Italian Republic, Article 9.
Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.” DailyArt Magazine. September 8, 2022. https://www.dailyartmagazine.com/david-by-michelangelo/.
Greenberger, Alex. 2024. “Florence Museum Director Says Tourism Has Turned the City into a ‘Prostitute,’ Drawing Pushback.” ARTnews.com. January 30, 2024. https://www.artnews.com/art-news/news/florence-prostitute-accademia-director-cecilie-hollberg-controversy-1234694564/.
Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.” The Guardian, April 18, 2024, sec. Opinion. https://www.theguardian.com/commentisfree/2024/apr/18/tourism-florence-michelangelo-david-visitors-souvenirs.
“Italy: New Code of Cultural Heritage and Landscape.” n.d. Library of Congress, Washington, D.C. 20540 USA. https://www.loc.gov/item/global-legal-monitor/2016-05-20/italy-new-code-of-cultural-heritage-and-landscape/.
“Michelangelo’s David.” 2021. Galleria Dell’Accademia Di Firenze. November 17, 2021. https://www.galleriaaccademiafirenze.it/en/artworks/david-michelangelo/.
Victoria and Albert Museum. 2018. “V&A · The Story of Michelangelo’s David.” Victoria and Albert Museum. V&A. 2018. https://www.vam.ac.uk/articles/the-story-of-michelangelos-david.
World Intellectual Property Organization. 2019. “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).” World Intellectual Property Organization. 2019. https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
Elon Musk and Tesla Tries to Revive $55 Billion Payment Package After Court Rejection
By: Jaenney Lee
Edited by: Lauren Levinson and Anna westfall
In January 2024, Chancellor Kathleen St. June McCormick ruled against Elon Musk regarding his possession of a landmark compensation package awarded by Tesla’s board of directors that is potentially worth more than $55 billion. The litigation began in 2018 when a shareholder lawsuit targeted Tesla CEO Musk and the company directors. They were charged with violating their obligations to the manufacturer of solar panels and electric cars, which led to the wastage of company funds and Musk’s unfair gain. [1]
The payment package, according to the shareholder’s attorneys, should be void since Musk controlled it and resulted from fictitious talks with directors who were not impartial. Additionally, they claimed that shareholders who received inaccurate and deceptive disclosures in a proxy statement accepted it. [2]
On the other hand, the defense attorney argued that a compensation committee negotiated the payment plan with accurate disclosures, where board members were independent of Musk. They added that Musk was not a controlling shareholder as his owned share was less than one-third of the company at the time. [3]
The payment package was unique because it contained a large portion of stock options divided into twelve equal portions. The options’ payoff depended on on Tesla meeting three sets of progressively challenging growth objectives for its market value, revenue, and adjusted earnings (adjusted for specific expenses). Musk would get a portion of the prize money each time Tesla surpassed both the market value target and one of the other two objectives. When the package was first proposed in 2018, the goals seemed unachievable. However, as much as the achievement looked impossible, the payoff was equally promising – leading two-thirds of shareholders to approve the payment package. By the end of 2022, Tesla and Musk met enough goals for Musk to receive the entire $55 billion package.[4]
Tracing back to when he achieved to receive the entire package, the Court of Chancery in the state of Delaware, where Tesla’s headquarter is located, mentions that “Tesla’s stockholders claim that Elon Musk caused Tesla to overpay for SolarCity through his alleged domination and control of the Tesla board of directors.”[5] Additionally, the board members are required to put shareholders’ interests ahead of their own, which makes hiring, firing, and checking and balancing the CEO some of their important roles. However, as Musk gradually became a big shareholder due to the payment package, it became harder for Musk to be independent from the board members.[6]
A month after the judge’s ruling, Musk stated that he would try to move Tesla’s corporate listing to Texas, where he has already moved company headquarters from Delaware. Moreover, with Neuralink, his privately held brain implant company, he moved the corporate listing from Delaware to Nevada. However, legal experts say that such a movement would not affect the payment case as the case remains to be actions taken while Tesla was incorporated in Delaware.[7][8]
Nearly four months after the ruling, on April 18, 2024, Tesla and Musk are attempting to revive his $55 billion payment plan by exploiting a cryptic corporate law rule. This is an unprecedented strategy that might land the business in litigation once more. Musk is making use of a little-known provision in Delaware corporation law that permits businesses to correct procedural errors that would nullify boardroom decisions. [9]
Professor Eric Talley of Columbia Law School stated that the purpose of the clause is not to overturn significant court decisions, but rather to serve as a “Band-Aid” for minor administrative errors.[10]
Musk’s strategy is not to address the shortcomings McCormick found in the negotiations for the payment plan. Rather, proposed that they had an independent director of a “special committee,” Kathleen Wilson-Thompson, who reviewed the 2018 payment package and stated that it was in the “best interest of shareholders” to resolve the board conflicts. “We suggest simply subjecting the original 2018 package to a new shareholder vote, accompanied by extensive disclosure as to the process undertaken and the potential conflicts of interest that were considered at the time,” the special board committee’s report said.[11]
Furthermore, this process allows the shareholders to vote again for the payment package, and give them 120 days to challenge the proposal if it is approved again. Talley mentions that if shareholders approve, it may facilitate Musk’s appeal victory in the Delaware Supreme Court by shifting the burden of proof to the plaintiffs, who would then have to show that Musk’s compensation was unreasonable.[12]
While Musk and Tesla argue that the majority of the stockholders did not agree with the court’s decision in January, McCormick states that Musk would not be able to prove that shareholders were adequately informed about the deal for his appeal this time.[13]
Notes:
CHASE, RANDALL. 2024. “Elon Musk Pay Package from Tesla Denied by Delaware Judge.”January 30, 2024.
CHASE, RANDALL. 2024. “Elon Musk Pay Package from Tesla Denied by Delaware Judge.” January 30, 2024.
CHASE, RANDALL. 2024. “Elon Musk Pay Package from Tesla Denied by Delaware Judge.” January 30, 2024.
Melin, Anders. “What You Need to Know about Elon Musk’s Voided $55 Billion Pay Package.” February 2, 2024.
Melin, Anders. “What You Need to Know about Elon Musk’s Voided $55 Billion Pay Package.” February 2, 2024.
“IN RE TESLA MOTORS, INC. STOCKHOLDER LITIGATION.” n.d. No. 181, 2022
KRISHER, TOM. “Tesla Wants Shareholders to Reinstate $56 Billion Pay Package for Musk Rejected by Delaware Judge.” April 17, 2024.
Lukpat, Alyssa, Theo Francis, and Denny Jacob. “Tesla Tries to Revive Elon Musk’s Big Payday after Court Rejected It.” April 17, 2024.
Lukpat, Alyssa, Theo Francis, and Denny Jacob. “Tesla Tries to Revive Elon Musk’s Big Payday after Court Rejected It.” April 17, 2024.
Hals, Tom, and Jody Godoy. “Tesla Tries Legal ‘Band-Aid’ to Revive Musk’s Huge Pay Deal.” April 18, 2024.
Hals, Tom, and Jody Godoy. “Tesla Tries Legal ‘Band-Aid’ to Revive Musk’s Huge Pay Deal.” April 18, 2024.
Lukpat, Alyssa, Theo Francis, and Denny Jacob. “Tesla Tries to Revive Elon Musk’s Big Payday after Court Rejected It.” April 17, 2024.
Lukpat, Alyssa, Theo Francis, and Denny Jacob. “Tesla Tries to Revive Elon Musk’s Big Payday after Court Rejected It.” April 17, 2024.
Bibliography:
Chase, Randall. 2024. “Elon Musk Pay Package from Tesla Denied by Delaware Judge.” AP News. AP News. January 30, 2024.
Hals, Tom, and Jody Godoy. 2024. “Tesla Tries Legal ‘Band-Aid’ to Revive Musk’s Huge Pay Deal.” Reuters. April 18, 2024.
“In The Supreme Court Of The State Of Delaware.” In Re Tesla Motors, Inc. Stockholder Litigation. n.d. No. 181, 2022 C.A. No. 12711
Krisher, Tom. 2024. “Tesla Wants Shareholders to Reinstate $56 Billion Pay Package for Musk Rejected by Delaware Judge.” Opb. OPB. April 17, 2024.
Lukpat, Alyssa, Theo Francis, and Denny Jacob. 2024. “Tesla Tries to Revive Elon Musk’s Big Payday after Court Rejected It.” WSJ. The Wall Street Journal. April 17, 2024.
Melin, Anders. 2024. “What You Need to Know about Elon Musk’s Voided $55 Billion Pay Package.” The Seattle Times. February 2, 2024.
What Can We Expect From Biden’s SAVE Plan?
By: Alexandria Henriquez
Edited by: Samantha yip and Ananya Chag
Over the last 3 years of his presidential term, following through on his campaign promises, Biden has pushed through several executive actions forgiving $146 billion in student debt. [1] The most recent addition to Biden’s student loan forgiveness initiative is the Saving on a Valuable Education (SAVE) Plan, an income-driven repayment (IDR) plan that amends the Revised Pay As You Earn (REPAYE) Plan. Those already holding undergraduate loans under the REPAYE plan will “have their payments reduced from 10% to 5% of their discretionary income,” and those with both undergraduate and graduate loans will pay something in between. By redefining discretionary income, the SAVE Plan also brings many individuals’ monthly loan payments to $0. Finally, borrowers under the SAVE plan will not have their loans grow from unpaid interest, and original loans of $12,000 or smaller will receive full forgiveness after 10 years of repayment. For each additional $1,000 borrowed, the plan adds an additional year of repayment. [2]
The SAVE plan comes as a response to Biden’s previous loan forgiveness plan. In June 2023, the Supreme Court nullified Biden’s federal loan forgiveness plan that would have forgiven up to $10,000 in student loans for Americans with incomes below $125,000 and up to $20,000 for those with Pell Grants. [3] The Biden Administration claims the ability to implement federal student loan forgiveness plans from the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), which allows the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency.” [4] The statute that the Biden Administration claimed to be modifying, using the HEROES Act, is The Higher Education Act of 1965 (Education Act). The Higher Education Act was originally created to increase accessibility to educational opportunities by developing a federal financial aid program and three types of federal student loans. In Biden v. Nebraska, the Supreme Court found that Biden’s plan to dismiss almost $20,000 of loans for certain borrowers went too far and could not be seen as a “modification.” They found that “the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.” [5] The court identified that significant loan forgiveness action was taken in response to the COVID–19 pandemic, and the timing of the new program was somewhat suspicious, since “over a year and a half passed with no further action beyond keeping the repayment and interest suspensions in place.” [6] Moreover, the Department of Education announced the waivers and modifications only a few weeks before Biden announced that the “pandemic is over.” [7]
This leaves us wondering whether a similar case or ruling will arise with the new SAVE plan. As of April 2024, eighteen states have filed a lawsuit against Biden, the Department of Education, and Secretary of Education Miguel Cardona to shut down the plan. [8] The two suits, split among the 18 states, argue that the Secretary of Education has overstepped again. However, a key difference between Biden’s recently rejected plan and the new SAVE plan is the SAVE plan’s format as a repayment plan. Nonetheless, its high stakes might provide a reason for the courts to require congressional approval.
Notes:
“President Joe Biden Outlines New Plans to Deliver Student Debt Relief to Over 30 Million Americans under the Biden-Harris Administration,” The White House, April 8, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/08/president-joe-biden-outlines-new-plans-to-deliver-student-debt-relief-to-over-30-million-americans-under-the-biden-harris-administration/.
“Fact Sheet: The Biden-Harris Administration Launches The Save Plan, the Most Affordable Student Loan Repayment Plan Ever to Lower Monthly Payments for Millions of Borrowers.” The White House, August 22, 2023. https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/22/fact-sheet-the-biden-harris-administration-launches-the-save-plan-the-most-affordable-student-loan-repayment-plan-ever-to-lower-monthly-payments-for-millions-of-borrowers/.
Biden v. Nebraska, 600 U.S. 477, (2023), 2.
Higher Education Relief Opportunities For Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904 (2003).
Biden v. Nebraska, 600 U.S. 477, (2023), 12.
Biden v. Nebraska, 600 U.S. 477, (2023), 5.
Scott Pelley, “President Joe Biden: The 2022 60 Minutes Interview,” CBS News, September 18, 2022, https://www.cbsnews.com/news/president-joe-biden-60-minutes-interview-transcript-2022-09-18/.
Tara Siegel Bernard, “Biden’s Student Loan Repayment Plan Is Being Challenged. Here’s What to Know.” The New York Times, April 13, 2024, https://www.nytimes.com/2024/04/13/business/biden-save-student-loans-courts.html.
Bibliography:
Biden v. Nebraska, 600 U.S. 477, (2023)
“Fact Sheet: The Biden-Harris Administration Launches The Save Plan, the Most Affordable Student Loan Repayment Plan Ever to Lower Monthly Payments for Millions of Borrowers.” The White House, August 22, 2023. https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/22/fact-sheet-the-biden-harris-administration-launches-the-save-plan-the-most-affordable-student-loan-repayment-plan-ever-to-lower-monthly-payments-for-millions-of-borrowers/.
Higher Education Relief Opportunities For Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904, (2003).
Pelley, Scott. “President Joe Biden: The 2022 60 Minutes Interview.” CBS News, September 18, 2022. https://www.cbsnews.com/news/president-joe-biden-60-minutes-interview-transcript-2022-09-18/.
“President Joe Biden Outlines New Plans to Deliver Student Debt Relief to Over 30 Million Americans under the Biden-Harris Administration,” The White House, April 8, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/08/president-joe-biden-outlines-new-plans-to-deliver-student-debt-relief-to-over-30-million-americans-under-the-biden-harris-administration/.
Bernard, Tara. “Biden’s Student Loan Repayment Plan Is Being Challenged. Here’s What to Know.” The New York Times, April 13, 2024. https://www.nytimes.com/2024/04/13/business/biden-save-student-loans-courts.html.
The Eviction and Homelessness Crisis: Has the Supreme Court Bitten Off More than it Can Chew?
By: Ana Cucalon
Edited by: Alexandria Ragy and Valerie Chu
The impending Supreme Court case regarding homelessness rules in Oregon serves as a poignant reminder of the interconnectedness between homelessness, evictions, and the broader issue of inequality within the American justice system. As the nation grapples with a growing homelessness epidemic and an escalating eviction crisis, it becomes imperative to understand the underlying causes and their legal ramifications. This article seeks to delve into the complex dynamics at play, drawing upon recent scholarship to explore how rising levels of inequality perpetuate the cycle of evictions and homelessness, consequently exacerbating the justice system crisis.
The case before the Supreme Court revolves around the legality of homelessness in American cities, specifically in Oregon where the case is centered. At its core lies the tension between municipal ordinances wishing to regulate the use of public spaces and the constitutional rights of homeless individuals, namely their right to sleep. The case is set to address an issue so contested that it has united Democrat and Republican politicians as they plead to the Supreme Court for clarification as to how the homelessness crisis should be addressed. Specifically, they want two things to be made clear: what constitutes an adequate shelter, and what constitutes involuntary homelessness. [1]
The Oregon case began in Boise, Idaho, where a homeless group sued the city for violating the Eighth Amendment. After being fined for sleeping in a public space, the group argued that because the city did not have adequate shelter beds, they were involuntarily homeless. Therefore, they argued they should not be punished for sleeping in public spaces as it is an “unusual and cruel punishment” to criminalize the need to sleep. [2] They won their case, and when the defendants appealed to the Supreme Court they were denied. The case, titled Martin v. Boise, is the basis for the case in Grants Pass. There, homeless people were increasingly fined for sleeping on sidewalks and in parks, facing incarceration were they to repeat the offense. Many of them were incapable of paying the fines so stayed in the parks. They proceeded to sue the city, stating that they were violating the Constitution based on the legal precedent set in Martin v. Boise. They argued that they were subject to the same involuntary homelessness described in the case, as Grant Pass did not provide adequate shelter for them to reside. [3] The Oregon case raises three important questions plaguing the American justice system: can cities make it illegal to be homeless? Why is there an increase in homelessness? Is there a deeper issue propelling the crisis at hand?
Legal scholars Colleen Shanahan and Anna Carpenter would argue that there is, and the issue is inequality. Their research underscores how structural disparities within the legal system disproportionately disadvantage marginalized groups, leading to a proliferation of evictions. They discuss how due to rising levels of poverty, increases in rent, and disproportionately poor conditions in underprivileged neighborhoods, people are continuously forced out of their homes. [4] Sociologist Matthew Desmond said this downward residential mobility also propels negative effects such as “adolescent violence, poor school performances, and health risks” (Desmond 89). [5] This reveals a systematic cycle of poverty and inequality, which no matter the attempts to address homelessness and the eviction crisis, continue to exacerbate the burdens on the justice system. In their article "Simplified Courts Can’t Solve Inequality," Shanahan and Carpenter argue that these problems of inequality can’t be solved through legislation. Instead, they believe social safety nets are better equipped to address the issues of systemic poverty that propel homelessness and eviction. [6]
Therefore, it is important to question whether or not the Supreme Court can tackle the issue of homelessness. The strain on the justice system caused by eviction demonstrates that the Court may need to be more capable of addressing the issue it is presented with. Overburdened courts and inadequate legal representation for vulnerable populations perpetuate systemic injustices. Recent research underscores the urgent need for systemic reforms to mitigate the adverse effects of inequality within the justice system.
In conclusion, the eviction and homelessness crises plaguing America's justice system are symptomatic of deeper societal inequities. By examining the interplay between rising inequality, evictions, and homelessness, scholars have uncovered systemic flaws that perpetuate cycles of poverty and marginalization. As the Supreme Court prepares to navigate the legal complexities surrounding homelessness regulations, it may be necessary for policymakers, advocates, and communities to prioritize solutions that address the root causes of inequality.
Notes:
Abbie VanSickle, "Supreme Court to Hear Case Over Homelessness Rules in Oregon," New York Times, September 27, 2023.
"The Supreme Court Takes Up Homelessness," The Daily, podcast audio, New York Times, November 3, 2023.
VanSickle, "Supreme Court to Hear Case Over Homelessness Rules in Oregon,"
Shanahan and Carpenter, "Lawyerless Law Development," Journal of Law and Social Inquiry 42, no. 3 (Summer 2017): 567-589.
Matthew Desmond, "Eviction and the Reproduction of Urban Poverty" (Ph.D. diss., University of Wisconsin-Madison, 2010).
Shanahan and Carpenter, "Simplified Courts Can't Solve Inequality," Stanford Law Review 69, no. 2 (February 2017): 423-445.
Bibliography:
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