The first half of Obama’s term saw the passage of the Waxman-Markey Cap and Trade Bill in the House. Obama nearly quadrupled clean energy production on public land – and yet, portions of his State of the Union Address on January 24^th advocated heavily for that environmental demon, fossil fuel.

Under the ambiguous umbrella of an “all-of-the-above strategy,” the President touted domestic oil production’s 16-year high, an alleged hundred year supply of natural gas, and plans to open 75 percent of our potential offshore oil and gas resources. While the address also included remarks about the importance of passing clean energy tax credit, the number of concrete proposals expanding clean energy was tiny compared to the number of concrete fossil fuel based proposals.

Why is this the case?  Why such rhetoric from a President we all thought would be such a friend to the environment? There are a couple of reasons.

The most obvious reason is an election-year appeal to swing voters. These voters do not care how we lower demand for foreign oil, as long as we do so, and these voters believe in the mantra of Sarah Palin, “drill baby drill.” This constituency is not, however so conservative that they simply would not vote for Obama are courted big time with terms like “all-of-the-above strategy.” A 2011 Rasmussen poll found that approximately 50% of Americans would support drilling in the Arctic National Wildlife Reserve (ANWR). ANWR famously sits on lots of oil, but is also a crucial area of habitat preservation in Alaska. The Obama Administration could woo these voters by expanding oil and natural gas production. In a similar vein, plenty of people are unhappy with the likely presidential veto awaiting that Keystone Pipeline deal. Promising other development of fossil fuels would pacify the people unhappy with the Keystone decision.

Another likely reason relates to the Solyndra scandal plaguing the Obama White House. Solyndra, a company that made silicone-free solar panels, received $528 million in federal stimulus money, and declared bankruptcy in August 2011. American citizens were nonplussed and upset with the waste of government funds. Critics of the Obama Administration cited the incident as proof-positive that the federal government should not subsidize private clean energy efforts. As more information about the scandal surfaced, the situation only appeared bleaker for President Obama. The findings of a House panel indicated that an improper loan restructuring performed by the Department of Energy paid private investors before payment to the government in case of a default. Furthermore, an audit of all of the loan guarantees of the Department of Energy, such as subsidies to clean energy firms, is concluding this week. The breadth and depth of said audit demonstrates the extent of distrust in the Obama administration policies on renewable energy.

It is not easy for any administration to set energy policy. Political controversies emerge from the delicate balance amongst environmental concerns, energy needs, and economic interests. A good example is the recent concern over “fracking”, or hydraulic fracturing for fossil fuel extraction. Fracking illustrated the extent to which sweeping laws like the Clean Air and Clean Water Acts still leave huge amounts of room for interpretation. The issue isn’t helped, either, by the fact that high-level federal courts rarely make rulings on environmental issues.

If you are the president of these United States, you have to take all of these interests and issues into consideration when directing the EPA and making proposals to Congress. I understand why Obama took the State of the Union in the direction he did. I do not think, however, there is a good reason to back away from protecting ecosystems and natural resources, especially fear of conservative criticism and the media. Stop arguing over Keystone, and stop trying to place blame for Solyndra, and give us the clean jobs we were promised.

Julia Reinitz is a first year in the College. 

I think most of us at the University of Chicago can agree that Proposition 8, California’s ban on same-sex marriage, was a very frightening move in the wrong direction for one of the nation’s most progressive states. More worrying still, as with all propositions in California, Prop 8 was voted for by the people of California and approved by a majority of voters in the 2008 election. Following its tumultuous passage, it was challenged in Federal District Court in Perry v. Schwarzenegger (now Perry v. Brown in the federal courts), where it was ruled unconstitutional, but the judgment was stayed pending appeal.

Now, the 9^th Circuit Court has handed down a ruling that effectively follows the landmark District Court decision, written by Judge Vaughn R. Walker. The Ninth Circuit Court ruled the Californian ballot initiative passed by the people deprived certain individuals of rights in violation of the 14^th Amendment’s Equal Protection and Due Process Clauses. Though the case will likely end up in front of the Supreme Court, the current momentum of the ruling provides an interesting insight into how federal judiciaries envision the role of federalism, popular sovereignty and judicial power in the American constitutional system.

The most immediately interesting question the 2-1 Circuit Court decision attempts to answer centers on the constitutional weight held by popularly supported State initiative outcomes. While there has been a history of Supreme Court jurisprudence overruling state initiative decisions like Washington v. Seattle School District (1982), Perry v. Brown, the federal court case replacing Perry v Schwarzenegger, provides an interesting glimpse at the current state of federal interpretation of state initiatives. Though not a momentous decision in the jurisprudence on the matter, Perry v. Brown exemplifies a decades-long trend that places a broad interpretation of the 14^th Amendment ideologically above a strong interpretation of the 10^th Amendment.

Opponents of this trend in constitutional law claim that, despite the fact that Prop 8 was democratically passed directly by Californian voters, nationally ineffable conceptions of Equal Protection still prevailed unjustly. Of course, the reality is more nuanced. Clearly, the 14^th Amendment applies to state legislatures, the traditional bodies of popular sovereignty. As such, it must surely apply to initiatives passed directly by the people.

While the case for gay marriage’s constitutionality over popularly passed initiatives may now seem cut and dry, it is important to look at the specific Equal Protection claims addressed in the decision.  Most notably, the Circuit Court wields the Equal Protection Clause in defense of the rights that were retracted by Proposition 8, not in defense of the rights themselves. Prop 8, passed in response to the In re Marriage Cases, which the California Supreme Court struck down a previous ban on same-sex marriage, revoked rights previously held by a group of individuals. In this way, the Circuit Court sidestepped the thorny issue of the possible designation of homosexuals as a suspect class, which would grant them protections similar to those granted to African Americans, among other minority groups.  Instead of protecting same-sex marriage absolutely, the Circuit Court protected it in the circumstances of California. This means that virtually every other state is free to ban the practice, so long as they are not revoking a right already given at any point.

Now, this sort of decision is to be expected and is, for the most part, the best that can be expected in terms of achieving marriage equality. The current framework for Equal Protection cases, as outlined by cases like Shapiro v. Thompson (1969), is based off a tiered structure of scrutiny that privileges “suspect classes” with a higher threshold for which government action can be accepted. That is to say that governments have a much harder time upholding the constitutionality of their legislation if the legislation discriminates against a suspect class like a racial minority. In Perry v. Brown, the Circuit Court noted that homosexuals could potentially be considered a suspect class, but that Prop 8 was already unconstitutional under a lower level of scrutiny. Without suspect class designation, however, nation-wide gay marriage is much harder to argue on Equal Protection grounds. At the same time, assigning such a designation is a fairly momentous move that would likely require more popular momentum behind the issue. It’s then clear that the Circuit Court was being very pragmatic in their decision, correcting a clear Equal Protection problem locally without getting ahead of public opinion on what has become a particularly thorny issue nationally.

Does this pragmatism mean that nationwide same-sex marriage isn’t going to happen until homosexuals receive a suspect class designation? No. While the Equal Protection route to gay marriage may be the most satisfying ideologically, a much stronger legal argument lies in the unconstitutionality of the Defense of Marriage Act (DOMA) via the Full Faith and Credit Clause (Article 4, Section 1). There is a definite argument to be made that DOMA, which establishes that no U.S. state can be required to recognize the legality of a same-sex marriage performed in another state, violates societal contract components of the Full Faith and Credit Clause. Whatever the path towards constitutionality, however, it is clear that the Circuit Court’s decision this week in Perry v. Brown was nothing if not pragmatic. It is a logical, well-argued piece that, ultimately, does not rock the boat of judicial precedent.

Sean McClleland is a second year Law, Letters, and Society Major in the College. 

Apparently, Swedes love their snus. Snus is an orally ingested form of tobacco consisting of wrapped packets of moist leaves, placed for extended periods under the lip of the consumer. Since the 19^th Century, snus has been manufactured, distributed and consumed in Scandinavia, receiving widespread popularity in Norway and Sweden. Sometimes hailed as a substitute for smoking, it has become remarkably culturally relevant to Swedes in particular, who view the EU’s attempt to ban the manufacture and sale as a commercial and cultural assault on Sweden’s smokeless tobacco industry.

The snus battle is but one of many points of economic contention in a trans-national community that is becoming increasingly defined by a war over unique regional economic policies. Under the current sovereignty distribution scheme, the European Union is forced to make legal and regulatory compromises with joining states, often erecting barriers to the efficient functioning of the Eurozone as a whole.

At the same time, these exemptions often foment discontent among existing member countries. This holds particularly when economic calamity strikes periphery states like Greece, which has had instances of idiosyncratic pieces of legislation that discriminate against non-Greek Europeans. Ultimately, the clash of regional economic ideology in exemption-seeking member states gets to the very core of many issues plaguing the Eurozone as a whole. Similarly, the European attempt to form and maintain a union of disparate economic interests – let alone social, cultural and political interests – brings  to memory many of the struggles in the early years of the United States’ own sovereignty distribution scheme—federalism.

Without a doubt one of the most monumental news sagas in recent memory has been the Eurozone scramble to scrape together enough cash to save Greece from certain financial ruin. Interestingly, this long frenzy has come to be defined not by the largely expected Greek resistance to austerity measures, but instead by the intense hand wringing and inaction on the part of Northwest EU states. At its core, this precipitous time was spurred by deeper-seated economic differences between the core, rich European countries and the poorer periphery. Rich states like Germany, who originally outlined the powerful rhetorical language of EU charters prohibiting discrimination against nationalities (the clearest example can be found in Article 21 Section 2), became outraged at periphery countries and threatened to withhold funds vital to economic rescue.

Most threatening to the cohesion of the European Union, however, was a willingness years earlier to overlook the financial problems of entering member states. Greece was largely admitted to the Eurozone (and, importantly, reached the highest level of integration in the European Monetary Union—adopting the Euro as common currency) despite no visible progress towards cooperation with critical economic regulations outlined in EU charters. Among the charters, those concerned with deficit limitation (for example, Article 126 of the Treaty on the Functioning of the European Union, under which deficit limit was set at roughly 3% of GDP) were routinely ignored by Greek legislators and, indeed, not adequately enforced upon Greece by core EU countries.

In fact, as later became clear, the flaw in the EU’s structure lied in the relatively weak ability of the central EU authorities to force member states to adopt any sort of regulatory scheme; any sort of deficit-reduction matter would have to be pushed upon Greece under threat of default.

As a burgeoning political confederacy, the EU shares many traits with the United States under the Articles of Confederation and, indeed, American sovereignty distribution up until the Civil War. Even in the post-Civil War era of federal dominance, many powerful statutes at the national level are only able to influence the states by dangling fund incentives or threatening grant reductions. For example, Sections 1122 and 1124 of No Child Left Behind encourage states to “teach to the test” in order to earn federal grants. Using the proverbial stick, Section 158 of The United States Code on Highways outlines the manner in which the federal government can withhold highway funds from states that do not comply with minimum drinking-age laws. Acts like these manipulate portions of the American Constitution such as the 14^th Amendment, The Commerce Clause (Article 1, Section 8, Clause 3) and the Supremacy Clause (Article 6, Clause 2) to get around the spheres of power held by the states under the 10^th Amendment.

Looking at the trajectory of the United States—a transition from decentralized power reminiscent of the modern European Union to a system more or less dominated by a federal government intent on pushing its agenda upon the states—gives us a glimpse as to how the regional exceptions in the EU may pan out. Either the Swedish snus industry (or Greek’s high deficits) gets curtailed, the European Union earns stronger enforcement mechanisms and existing regional exceptions get systematically removed in favor of a stronger centralized European authority or the threats to social cohesion (whether social, political or economic exceptions) prevail. That is to say that the European Union must either become more federal or must devolve into something more akin to a free trade area. Europe’s current regulatory regime that is predicated on the interaction of uniquely individualized countries interacting within a weak regulatory community is inherently at odds with the current paragon of European achievement: the Euro.

Either the EU becomes more cohesive, specifically abolishing regional exceptions, or suffers the fate of the Articles of Confederation, which aptly described their doomed framework as a “firm league of friendship.”

Sean McClelland is a second year Law, Letters, and Society major in the College.

In McCleskey v. Kemp (1987), the United States Supreme Court issued a controversial ruling on the role of race in the criminal justice system. The case was an appeal of a sentencing in the 1978 case of Warren McCleskey. In the original case from Atlanta, Georgia, McCleskey was found guilty of murdering an off-duty police officer and was sentenced to death. McCleskey subsequently appealed the conviction, and the case arrived in the Supreme Court in August of 1986.

The defense team for McClesky intended to show that this ruling was unconstitutional, arguing the jury members were predisposed to racial prejudice. In a 5-to-4 vote, however, the Supreme Court ruled sentencing disparities for similarly situated defendants were “an inevitable part” of the administration of justice. Furthermore, “any mode for determining guilt or punishment has its weaknesses and the potential for misuse.” The Court upheld the original verdict, and McCleskey suffered execution by Georgia’s electric chair in September 1991.

McCleskey v. Kemp highlighted findings from a 1983 study contemplating the connection between race and the death penalty, conducted by David Baldus, George C. Woodworth, and Charles A. Pulaski, Jr. The “Baldus study,” as it came to be known, compiled data from the prosecutions of over 1,000 Georgia homicides and subjected them to an intensive statistical analysis. After controlling for 39 nonracial variables, the authors of the Baldus study concluded that defendants accused of killing white victims were 4.3 times as likely to receive the death penalty – of these defendants, those who were black were most likely to be sentenced to death.

The official handbook for trial jurors in the United States asserts that as the protectors of life, liberty, and the pursuit of happiness, members of the jury “must be men and women possessed of sound judgment, absolute honesty, and a complete sense of fairness.” The Baldus study indicates that one’s outward “complete sense of fairness” may be undermined by subconscious biases. As the Supreme Court acknowledged, such a claim:

“Throws into serious question the principles that underlie the entire criminal justice system… [and] easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender.”

However, the Court felt that to upend the criminal justice system on such “potentially irrelevant factors” was unnecessary and unwarranted. The Court statement indicated without “exceptionally clear proof” of an active and purposeful “intent to discriminate,” there was no evidence of racial bias.

John Dovidio, professor of Psychology at Yale University, believes that explicit, conscious racism in the United States is on the decline, while subconscious racism is becoming increasingly ingrained in the American psyche. His views are corroborated by a social neuroscience study completed at Yale last month, in which authors Harrison Korn, Micah Johnson, and Marvin Chun used both traditional tests of racial bias and neuroimaging to predict how much money subjects would award victims of hypothetical employment discrimination cases. The traditional black/white, good/bad Implicit Association Test (IAT) were unable to make accurate predictions; however, fMRI (functional MRI) scans measuring neural activity in the right inferior parietal lobule and the right superior/middle frontal gyrus – both areas associated with visceral prejudices and preferences – could be used to make accurate predictions about a “juror’s” decision to award money to a “victim.” According the study’s authors, the results are significant because they show “that neuroimaging data can measure a racial bias that is reflected in juror decisions more effectively than a common behavioral measure–– the IAT.”

Even so, the IAT is a significantly better indicator of social biases than the method currently used for jury selection, which relies on self-reported measures of prejudice.

Korn et al. point out that, due to potential cost and privacy concerns, they “are not suggesting that potential jurors be put in an MRI machine during jury selection for cases where race is salient.” However, their results show that, as explicit racism is increasingly subverted to visceral prejudices, the active “intent to discriminate” is no longer a sufficient marker of the unjust juror. The Sixth Amendment states that every defendant has the right to be tried by “an impartial jury;” accordingly, the jury selection process should be reformed in order to take into account implicit as well as explicit biases. While a truly impartial jury may be impossible, we do not have to resign ourselves to regarding race-based sentencing as inevitable.

Margaret Sivit is a second year in the College. 

Welcome to the first weekly segment of the University of Chicago Undergraduate Law Review: Weekly Legal News Roundup.

The Weekly Legal News Roundup will feature four news stories, starting with an honorable mention, and then counting down the top three stories of the week.

So, without further ado, the best legal news of this past week:

Honorable Mention: Pakistani Prime Minister Yousaf Raza Gillani v. the Supreme Court of Pakistan
Pakistani Prime Minister Gillani’s government is plagued by accusations of corruption. For example, President Asif Ali Zardari bears the unattractive nickname “Mr. 10%”, a sly reference to alleged kickbacks for illegal government services. The Supreme Court, which is allied with the powerful Pakistani military elite, recently has engaged in several raucous fights with the Gillani administration. The heart of the current dispute concerns the failure to prosecute individuals charged with corruption by the Gillani administration. Last week, the Chief Justice of the Supreme Court threatened Mr. Gillani with contempt of court, a charge he strenuously denied when he appeared in court on the 19th. While the case is still unfolding in Pakistan, the government appears ready for battle with its military and judicial rivals. Al Jazeera has covered this unfolding story in detail, and offers crucial insight on both sides of this judicial conflict with bonus video coverage. It remains to be seen if the law shall triumph over the government or if the power of the courts will be quashed by the Gillani regime.

Third Best Story: YSL v. Louboutin
Oh, Ms. Carrie Bradshaw would have a field day with this case, if she still wrote her sassy (and fictional) Sex and the City column. The New York Times Style Section is not a classic source of legal news. The section, however, produced a magnificent piece on a feud between two giants of luxury fashion and copyright protection for appeal. Christian Louboutin, founder of the modern company, created his coveted pumps with a red sole, allegedly inspired by an assistant painting her nails a bright rogue. This trademark rendered Louboutin heels as instantly recognizable, but under federal law, items of apparel do not enjoy the same protections from infringement. Yves St. Laurent, a venerable fashion house, produces shoes with red soles, and Louboutin is calling foul with a lawsuit against YSL. While the case has yet to be decided in court, the New York Times piece lends depth to an ordinary fashion feud with a look at the laws governing fashion merchandising and branding. I personally hope the federal courts will answer that enduring question in fashion – can you trademark the color red?

Second Best Story: Documentary Film Makers v. Aggrieved Parents
An Oscar story caught my eye on the BBC website this week, telling a revealing story about justice, loss, and redemption. Paradise Lost 3: Purgatory, the Oscar-nominated documentary, chronicles the struggles of the “West Memphis Three”. In 1993, three eight year-old boys were murdered in West Memphis, Arkansas. The alleged killers, three teenagers, maintained their innocence, but the courts convicted two to life in prison and one to a death sentence. Despite the conviction, doubts remained about the integrity of the conviction while the three teenagers spent eighteen years in prison. In 1996, the first of the Paradise Lost 3 films aired in the United States, and these critically acclaimed films helped gain the three convicted murderers freedom under an Alford plea. The documentary’s Oscar nomination infuriated one of the victim’s families, which is no claiming insensitivity by the Academy and the directors. The unfortunate truth of this case is that no one, regardless of the outcome, experiences closure. Hopefully, the Oscar season can give these cases of wrongful conviction a welcome chance in the media.

Best Story: Drug Dealers v. DC Police and the FBI
The United States v. Jones claims the honor of the most discussed and debated case of the week. This Supreme Court case, better known in the news media as the “GPS” case, considered the implications of the Fourth Amendment and modern technology. In 2004, the FBI and the DC Police began surveillance on Antoine Jones, a DC nightclub owner and suspected drug trafficker. The joint task force fitted a global positions system (GPS) device on Jones’s car without obtaining a warrant from a judge and monitored Jones for approximately one month. In 2008, the joint task force arrested Jones on drug trafficking and possession charges, and Jones was sentenced to life in prison.

However, the defense team for Jones appealed to the US Court of Appeals for the District of Columbia, and the appellate court found in Jones’s favor. The government appealed to the Supreme Court. The crux of Jones’s argument involved the alleged violation of his Fourth Amendment rights against unreasonable search and seizure. Without the necessary warrant obtained through a judge demanded by the Fourth Amendment, the defense argued the joint task force performed an illegal search of Jones’s property. The judges of the Supreme Court agreed unanimously with Jones, but the majority opinion was split between the liberal and conservative judges. The case of the United States v. Jones is compelling in its intricacies and details.

Nina Totenberg, NPR’s legal affairs correspondent, summarizes this popular story exquisitely. The story contrasts the two sides of the majority opinion with insights into the primary authors of each decision, Justices Sotomayor and Scalia, but subsequently joins their work into a cohesive piece. The audio transcript is just icing on the legal cupcake.

Molly Cunnigham is a third-year in the College, studying Philosophy and Human Rights. She is the Blog Editor for the Undergraduate Law Review. You may contact her with any questions or concerns. 

The recent destruction of Megaupload, the set of websites that host to four percent of Internet traffic, proved one thing to the Internet community. The Department of Justice, stripped of potential SOPA and PIPA powers, was perfectly content to exercise its duties. The closure of Megaupload came under what is the only enforceable law under whose authority content producers can enforce copyright claims on the web. This federal law, the Digital Millenium Copyright Act of 1998 (DMCA) sets up the environment for all ‘net companies – big and small—exist and innovate. While the current legal framework has come under fire in the wake of the seizure of Megaupload, it is the most robust protection of Internet free speech to come out of our modern copyright regime. The DMCA establishes, among other things, legitimate takedown procedures for copyrighted material that grant protections to hosting companies.

The DMCA contains all sorts of copyright protection provisions that are largely attempts to duplicate traditional media copyright protections in cyberspace. Most central to the topic of Internet censorship, however, is a key provision, 512(c). This clause grants Internet “intermediaries”—usually Internet Service Providers (ISPs) and websites—immunity from prosecution for copyright infringement. There’s one catch though. To get this immunity, websites must follow what is known as the “notice-and-takedown” provision (also in Section 512(c)), removing copyrighted material if they receive a complaint from a rights-holder.

Until recently, Megaupload gathered Megavideo and its associated sites its digital umbrella. Here’s where Megaupload erred: Megaupload and its founder, Kim “Dotcom”, did not follow the “notice-and-takedown” provision of the DMCA. Indeed, the lack of compliance with the “notice- and-takedown” provision was precisely how the group received such high traffic. The sites provided a convenient run-around for those looking for copyrighted material, particularly irritating movie rights-holders by offering free streaming of popular titles. The very nature of Megaupload—the creation of this “digital locker” site where files are held and stored in a format that is unsearchable from within the site itself—relied on the exploitation of private media collections. Its exploitation of copyrighted material was veiled from searches by authorities, and more importantly, it guaranteed patrons that upload would not be taken down. Megaupload repeatedly dodged FBI requests that copyrighted material be removed. Therefore, Megaupload voided any immunity it would have received under the DMCA.

With this news, many Internet rights activists are up in arms by the dismantling of Megaupload, prophesying that other sites will follow suit. The activists foretell the government unnecessarily limiting free speech and communication on cyberspace. Implicit in these claims is the idea that the current framework—anchored by the DMCA—is somehow faulty. While based in reality, these fears mostly are overblown.

Ultimately, the DMCA is the best protector of innovation on the web. It allows dynamic social media operations – Facebook, Youtube, Twitter, Google and Wikipedia – to survive and thrive amidst an otherwise hostile copyright environment. Without the powerful “safe-harbor” provisions of the DMCA, rights-holders for everything from indie music singles to blockbuster Hollywood flicks would be litigating major Internet companies for one form or another of copyright infringement as set out in other sections of the DMCA. While the large, established Internet giants like Google would be able to handle the litigation, smaller companies would likely be driven under before they could afford to pay either their legal expenses or the hefty fines for copyright infringement.

Regarding these provisions, the Electronic Frontier Foundation, one of the foremost legal activist groups with regards to Internet privacy, free speech and innovation issues, claims that the safe harbor provisions “…have been essential to the growth of the Internet as an engine for innovation and free expression”. In other words, without the “safe-harbor” provision of the DMCA, we would have a copyright system that has many of the same qualities as we would have had under SOPA/PIPA.

At the same time, rights-holders also have quite a bit to cheer about the DMCA. With the “notice-and-takedown” provision, they get a strong guarantee that copyright infringement will be stamped out once found. Without such a provision, there would be virtually no protection for rights-holders, as Internet companies would have almost free-reign to keep copyrighted material up on their websites.

For everyone to be happy, websites like Megaupload have to be taken down by the U.S. government. The DMCA is uniquely situated between rights-holders, ISPs and websites, providing a passable compromise that ultimately allows for an innovative Internet. Like any compromise law, both sides dislike certain provisions. The Internet does not appreciate restricting access to copyrighted material and rights-holders would like stronger disincentives for hosting such material. Ultimately, however, the DMCA provides an excellent legal framework for copyright claims on the Internet, guaranteeing the rights of rights-holders, establishing a predictable system of copyright enforcement and ensuring a vibrant and flourishing Internet of free communication.

Sean McClelland is a second-year Law, Letters, and Society major in the College. 

 In the early morning hours of August 1, 1966, Charles Whitman sat at his typewriter and began to compose his suicide note: “I don’t really understand myself these days,” he wrote, “lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.”

Just a few hours earlier, the 25-year-old had taken a kitchen knife and stabbed his wife to death in her sleep. The note continued with chilling detail: “It was after much thought,” Whitman continued typing, “that I decided to kill my wife, Kathy, tonight, although I cannot pinpoint any rational reason for doing this.”

Whitman, however, was just getting started. Later that morning, Whitman packed a trunk full of guns and ammunition and made his way to the top floor of the University of Texas Tower. From there he began firing at the observation deck below, killing thirteen people – including a pregnant woman – and, ultimately, shooting himself.

What at first seemed to be a senseless crime was proven otherwise during Whitman’s autopsy. In his suicide note, Whitman requested an autopsy be performed on his brain. Although what he felt was “overwhelming”, these violent impulses didn’t quite feel natural. Shockingly, he was right. Whitman’s autopsy revealed a tumor wedged between three regions of his frontal lobe – the thalamus, the hypothalamus and the amygdala – the latter of which is involved with the control of fear and aggression. If the tumor had been removed while Whitman was still alive, it is very likely that his violent impulses would have disappeared.

Dr. Russell Swerlow, a neurologist who removed a brain tumor in a similar case of tumor-caused criminal behavior, reflected, “The most interesting part of this is getting into the hardwiring of morality and free will. It raises the question, how free is free will?”

In most states, the insanity defense is the main legal criterion for delineating what is free will. The insanity defense is rooted in the belief that rational judgment is the most universal human property. Without rational judgment, the person’s “true” self is somehow not even present in their own body, and individuals, therefore, cannot be held accountable for certain actions. To qualify, the defendant has to prove that he or she cannot recognize the distinction between right and wrong. In other words, they must be incapable of reason.

In the case of Charles Whitman and others like him, the tumor, however, does not impair one’s ability to distinguish between right and wrong. Such tumors only makes it much more difficult – perhaps impossible – to resist the urge to behave immorally and unlawfully. It is on this point that the law fails to draw a clear line between guilt and innocence in cases of brain dysfunction, because, according to Richard Bonnie of the University of Virginia School of Law, there is “… no objective basis for distinguishing between… the impulse that was irresistible and the impulse not resisted.”

While it seems wildly unjust to punish someone for having cancer, or any other affliction that is entirely outside of his or her control, Whitman’s actions cannot be rightly called involuntary manslaughter, because he was certainly intending to commit murder. The traditional insanity defense does not encompass the “irresistible impulse” crimes of individuals with brain tumors or brain disorders. As we continue to learn more about the correlation between brain structure and human behavior, it will become increasingly necessary to provide a criterion beyond mere recognition of right and wrong – to delineate the qualities of free well, the self, and the parameters of legal responsibility.

Margaret Sivit is a second year in the College.  

Let’s begin with a little history of eugenics in the United States of America.

In 1907, Indiana became the first state to pass a forced sterilization law. It called for reproductive ability to be removed in any individual deemed “socially inadequate”. Throughout the 1910s, 20s, and 30s, approximately thirty states would follow suit by passing their own sterilization laws. Many sterilization programs, especially of the mentally ill, continued into the 1970s.

These laws were largely based on a model regulation crafted by then-leading biologist Harry Laughlin, whose research was in turn largely based on Darwin’s ideas of natural selection. Involuntary sterilization laws were upheld 8-1 in 1927 in Buck v. Bell, in which Virginia’s “Racial Inetgrity Act’ was challenged for having allowed the sterilization of Carrie Buck, a patient in an institution for epileptics. When delivering the majority opinion of the court, Justice Oliver Wendell Holms, Jr. wrote,  “It is better for all the world if, […] society can prevent those who are manifestly unfit from continuing their kind.”

It is shocking to think eugenics flourished in our own beloved America long before it got started in Nazi Germany.  Even more appalling for those interested in the history of American science, leading biologists promoted eugenics programs. Unfortunately, it is almost impossible to find estimates of how many people were sterilized nationwide as part of individual state programs. The surviving data, however, suggests that the number is likely to be in the ten thousands.

This issue has gained recent media attention because of new efforts in North Carolina to compensate victims of the forced sterilization program they adopted in 1929. The program in North Carolina had a disproportionate affect on women, especially women of color. 77% of those sterilized in North Carolina were female, and by the late 1960s 60% of those sterilized were young black women

Such individuals were often sterilized for purported sexual deviance, as in the case of Elaine Riddick. Sterilized in 1968 at age 13 after being raped and giving birth, Ms. Riddick’s story has come to the fore in newspaper articles attempting to dissect the pros and cons of North Carolina’s proposed compensation program.

These programs have spawned uncomfortable questions for our modern American society. What do we as a society owe the people who suffered from these programs? What actions are reasonable to take, especially in a time of tight budgets and even tighter legislative deadlocks? How do we even begin to evaluate the cost of being involuntarily sterilized?

There is a long empirical record of providing monetary compensation for horrible things imposed by the U.S. government. Any compensation for victims of eugenics, however, will be arbitrary. Furthermore, it will not truly be a fair compensation for everyone. There is no way for a group of legislators, or even a group of victims, to decide what is fair for everyone. Each victim of involuntary sterilization has suffered in different ways, and victims were sterilized at different points in their life. How can we equate the suffering of someone sterilized before having any children with that of someone sterilized after having at least one child?

This difficulty is reflected in the different responses victims of eugenics have had to one proposal for a $20,000 compensation sum. Ms. Riddick, for example, wanted $1 million in compensation, saying the state “took away something […] so valuable that I can never get back.” Other victims, like one Ms. Rita Thompson Swords, said the number was “fantastic”.

Furthermore, the state has so far only identified 72 of an expected 1,500-2000 living victims. This is an infinitesimally small fraction of the approximately 7,600 sterilized individuals. Many people may never get any recompense for what was done to them. One particular consideration for compensation is the lack of descendants eligible to receive compensation. After all, victims were medically sterilized and likely couldn’t have children or extended family.

Perhaps, the best thing we can do for victims of involuntary sterilization programs is to ensure they did not suffer in vain. By acknowledging this dark aspect of U.S. history, we can prevent it from occurring again. Think about it – how many of you learned about state-sanctioned eugenics programs in history classes? We are all taught about and condemn the use of eugenic logic in Nazi Germany. Why aren’t we taught the same things in regard to eugenic logic in the United States?

Unfortunately, nothing can be done to enable those who were sterilized to bear children. Financially, there is very little maneuvering room in state budgets through which to pay surviving victims. At least by understanding this issue, we as a society can do better.

Julia Reinitz is a first year in the College. 

On January 19, 2012, AllOut, the online LBGTQ activist organization, added fuel to the “Stop Forced Sterilization” campaign by featuring a message from 21 year-old transgender Love Georg Elfvelin, who under a 1972 Swedish law must be sterilized in order to be officially recognized as male. The video has garnered widespread attention, especially from international human rights activists outraged by the Swedish Parliament’s failure to pass an amendment to the law or repeal it entirely.

The law requires all transgender persons to be native citizens, unmarried, at least eighteen years old, and sterilized in order for his or her gender reassignment to be recognized by the state. The law has been linked to many similar Swedish eugenic laws, aimed at “improving the quality of the population”.

Article 3 of the European Union Charter of Fundamental Rightsexplicitly prohibits eugenics, stating, “In the fields of medicine and biology, the following must be respected in particular: the prohibition of eugenic practices, in particular those aiming at the selection of persons”.

The Swedish Parliament, however, has thus far ignored this disturbing connection and continued to postpone the passage of the anti-forced sterilization amendment.

The deadlock in Parliament is just another example of how minority groups exert their influence to overpower the will of the majority. The Christian Democrats, the only political party that is vocally against repealing the law, have successfully convinced many of the other parties to leave the law intact. The Christian Democrats convinced even the Moderates, the party which originally challenged the law, to cease their campaign to amend the statute. This parliamentary setback has raised the ire of international human rights activists and fellow EU member-states. Portugal, Germany, and Austria struck similar laws on transgender sterilization from their national codes and have condemned the Swedish law.

The main argument against the law is that it does not just violate transgender rights, but human rights protected by Article 3 of the European Union Charter of Fundamental Rights, specifically “the right to respect for his or her physical and mental integrity”. Moreover, Article 4 of the same Charter proclaims, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, a provision LBGTQ rights argue the Swedish law violates.

Transgender individuals who refuse sterilization are forced to endure the public humiliation of having a different sex than the one they identify with on all of their legal documents, including ID cards and driver’s licenses. Those who do undergo the procedure, many of whom had hoped to have children in the future, lose their most basic right: to reproduce, simply because they are transgender.

While outside organizations are putting significant pressure on the Swedish Parliament to either pass the amendment or repeal the law altogether, there is no guarantee that Parliament will act accordingly. After all, similar laws still exist all over the European Union, and as we all know here in the United States, minority groups frequently end up enforcing their will.

Alida Miranda-Wolff is a second-year double major in English and Law, Letters, and Society pursuing a path in law.

Editor’s Note: To protest the sterilization law and defend transgender rights, please sign AllOut’s petition to Swedish Prime Minister Frederik Reinfeldt.

The religiosity of Indian politics makes me uncomfortable. Governmental meddling in issues of law makes me even more uncomfortable. The Indian government meddling in another country’s legal process and using dubious methods of diplomatic strong-arming makes me most uncomfortable of all. Combining these three things results in a bonanza of extreme discomfort for yours truly.

How, you may very well ask, does a government manage to mess up this badly? It must be impossible for an administration to systematically do discomfiting things with such startling regularity, right?

‘Right,’ I can see all of you nodding, probably thinking that if you nod hard enough, the inevitable rant might be postponed. I wish it were so.

Really, I do. But the real answer to the question is wrong, so very wrong.

Our story begins in June 2011 in the Russian city of Tomsk. The state prosecutor’s office initiated a proceeding against ‘The Bhagavad Gita As It Is’ for being ‘extremist literature.’ Russian law includes a list of certain such texts, whose reproduction and distribution, for fear of the social discord they might produce, are banned. On this list are other books which, the author would presume, make for not-so-pleasant reading. Such luminaries as Hitler’s ‘Mein Kampf’ reside on the list.

The prosecutor’s case was centered on the assessment of three ‘experts’ from Tomsk State University. Observers speculated that the influence of the local Russian Orthodox Church had also played a hand in initiating the case. The judge — smart cookie that she was — found the assessment inadequate. The court subsequently ordered another assessment be conducted from another state university and postponed the final verdict till December 28th, 2011.

I’m only skimming the surface of the details, not because they do not deserve attention, but because the focus of this article is the Indian parliament’s, in my opinion, rather obscene reaction to the whole business.

On December 19th, 2011, the leader of a right wing party brought the issue up in parliament. Bhartruhari Mahtab, the parliamentarian in question, demanded to know “what the Indian government was doing to protect the religious rights of Hindus in Russia.”

Note the language here: not the religious rights of Indians, but the religious rights of Hindus. Angry members of parliament, across party lines, screamed such statements as ‘we will not tolerate an insult to Lord Krishna!’

Tad overdone, the whole thing, if you ask me. A particularly bright chap in the Rajya Sabha even let loose another beautiful example of characteristically mistimed Indian political rhetoric about the December 19th session of the House, ‘A golden day in our history when all differences were deleted to express solidarity for Gita, the book of India.’

Hold on a sec, right there, my man. The book of India. It may be a lot of things, but the book of India, it is not.

The next day, Sushma Swaraj, the leader of the Opposition in the Lok Sabha, asked that the Gita be declared India’s national book. Nothing interesting to the outside observer, but, this statement comes  from a prominent member of a Hindu right wing party. On December 21st, however, the situation escalated. The BJP sent a delegation to the Russian embassy to talk to the Russian consul, demanding that the Russian government ‘take suitable measures’ to dismiss the court case immediately as baseless. Jolly, the unfortunately named leader of said delegation, expressed high handed surprise that, given ‘how important Indo-Russian relations [were], that the Russian government had allowed the court case to go on so long.’

The government of India had a more muted, though no less forgivable, reaction. They sent over the ambassador to Moscow to the Kremlin to have a word with the powers that be, and more diplomatic wrangling was tried there. I understand that the parliament was putting enormous pressure on the ruling UPA coalition in the house, but show some hubris!

As far as I’m concerned, you cannot, cannot, absolutely cannot interfere with due process in another country. End of story. I don’t see anybody telling Indians what to censor and what not to censor. Coming from the country that banned ‘The Satanic Verses’ and ‘Lajja’ and alienated M.F Hussain, that is mighty arrogant, and I feel ashamed.

Akshat Goel is a second year in the College.