February 1, 2016

Zubik v. Burwell: The Contraceptive Coverage Mandate Returns to the Supreme Court

ACA and RFRA: Setting the Scene The Affordable Care Act (ACA, commonly known as Obamacare) requires employers with 50 or more employees to provide health insurance. This insurance must cover certain contraceptive methods, including the so-called “morning after” pill. However, regulations under the ACA allow non-profit religious organizations to opt-out of providing contraceptive coverage to their employees by filing a notice of their religious objection to the Department of Health and Human Services (HHS) or the insurer or third-party administrator (TPA) of their health plan. Following an organization’s opt-out, the ACA will then require the insurer or TPA to provide separately for contraceptive coverage for the objecting employer’s employees. The Religious Freedom Restoration Act (RFRA) states that the government may not substantially burden a person’s exercise of religion unless the government satisfies the compelling interest test. The government satisfies the compelling interest test where (1) the burden’s application is in furtherance of a compelling government interest, and such application is (2) the least restrictive means of furthering that compelling interest. In Burwell v. Hobby Lobby the Court ruled that closely-held corporations are “persons” for purposes of RFRA, therefore the government is not challenging the assertion that nonprofit religious organizations are [read more]
January 19, 2016

Is This Really Legal? Warrantless Entry, Arrest, and Excessive Force in Alabama

A recent post-game celebration in Tuscaloosa, Alabama received national attention after local news reported an altercation between University of Alabama students and local police. Videos of the incident, captured by bystanders, paint a violent picture as police tasered students multiple times, threw them to the ground, struck them with batons and dragged them outside of their apartment. The video caused an immediate uproar on social media, prompting outrage and calls to eliminate excessive force and police brutality. In response, the Tuscaloosa Police Department promised a full investigation of the circumstances depicted in the video. However, after seeing the videos, many people still have questions about what happened. One Twitter user, reported by the Washington Post, asked a simple question: Is this legal? The short answer is no, and here is why. The facts, as shown in the video, actually raise two legal issues. First, was it legal for the police to enter the student’s apartment without a warrant and issue an arrest stemming from a noise complaint? And, second, was the use of force by the police in making the arrest—including the taser—legal? Let’s start with the first issue. The Fourth Amendment protects against unreasonable search and seizure, including warrantless [read more]
January 13, 2016

Plea Bargains — The Plea Bargainer’s Dilemma

Suppose two of your friends drive over to your house in New Jersey and pick you up for, what you believe, is a night on the town. As their car is pulling out of your driveway, two police cars pull up, sirens blaring, and the officers jump out, weapons drawn. You are arrested and charged as an accomplice in a robbery your friends just committed. You retain counsel, and she has bad news: inexplicably, an eyewitness has identified you at the scene of the robbery, and the case against your friends seems airtight.  She believes you have a strong defense – you have an alibi. The strength of this alibi, however depends heavily on your credibility at trial. She warns you that first degree robbery in New Jersey carries a presumptive sentence of fifteen years, with a minimum sentence of ten years, and you have to serve 85% of the sentence to be eligible for parole. But, there’s a bright side. –The prosecutor recognizes that there’s a possibility you weren’t an accomplice, so he’s willing to offer you a plea bargain: a two year sentence in exchange for your testimony against your friends. Rationally speaking, unless you are almost certain [read more]
January 11, 2016

Is Daily Fantasy Sports Gambling?

In August of 2015, Forbes published an article highlighting the fast-growing daily fantasy sports (DFS) industry. The rise of fantasy sports and most specifically fantasy football has been truly remarkable. In recent years, fantasy football has absolutely exploded with over 30 million Americans playing fantasy football annually. Fueled by over one billion dollars in venture capital and powered by the internet, fantasy football has been rapidly evolving. It is this evolution that has, in many ways, shaped the controversy surrounding daily fantasy sports sites. Traditional Fantasy Sports: Traditional fantasy football gives players a chance to serve as team owners/managers and compete in a “league” of friends. The fantasy season begins with a “draft” process where each participant is permitted to select players for their team. In the standard league, each “owner” is required to fill a team roster. Each week of the football season, owners are matched up against an opposing owner. Points are then allocated based on various athletic achievements made by the players on their team. The winner of the weekly matchup is the team with the most points. The challenges continue until a winner is declared at the end of the football season. In 2006, Congress passed [read more]
January 11, 2016

It’s Time to Act (FAST) on Student Loans

Maybe it’s just because I’m a student, but it seems like every day there are new articles online about the decline of the American education system. Whether it’s test scores or school funding, we are constantly competing with other countries on several metrics. We know highly skilled workers drive our economy, so what are we doing to encourage people to go to college? Not enough. The choice whether or not to attend college is generally only made once, where costs—including both tuition and information costs—are imposed up-front, and benefits—potential earnings—are spread out over a long period of time. For many people, college seems unattainable or not worth it. In fact, 64% Americans think that President Obama’s goal of regaining the highest proportion of college graduates by 2020 is “not at all likely to happen” because “most people can’t afford college.” To tip the cost-benefit analysis in favor of attending college, the federal government provides student aid to lower costs. Still, to even have a chance at receiving federal aid, students must first navigate the bureaucratic beast known as the Free Application for Federal Student Aid, or FAFSA. When faced with the 108-question long complex form it is not hard to [read more]
January 11, 2016

Federal Gun Control: What’s Next After the Brady Act?

Over twenty years have passed since President Clinton signed the Brady Handgun Violence Prevention Act (known as the “Brady Act”). With the publicity surrounding recent school shootings and other mass shooters, people are outraged over gun control policy. Within the past year, there have been forty-seven school shootings. Twenty-six of the school shootings resulted in injury or death to innocent victims, whereas the other shootings were either attempted or completed suicides, where no bystanders were injured or killed. The History of Gun Control To understand the current-day gun policy, a historical approach must be taken. The Second Amendment, which was ratified in 1791, reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Around that time, there were even laws that required every able-bodied man to possess a firearm and enroll in the militia. Federal gun control started in the early 1900s, and over the years, there have been numerous additions and amendments. One law, known as the Gun Control Act of 1968, banned mail orders of shotguns and rifles and was spurred by the tragic assassinations of Martin Luther King Jr. [read more]
December 29, 2015

Do Not Pass Go: Refugee Admission Process

In the wake of the Paris attacks, much of the debate concerning refugees has resurfaced. There have been many talks centered on governors and other state officials trying to block Syrian refugees from entering their respective states. A majority of polled Americans want to block these refugees from coming to America. One interesting thing to note though is that governors may speak loudly, but they cannot block refugees from entering their states. President Obama has the federal law on his side, where he can admit refugees based upon humanitarian concerns. However, constitutionally speaking, governors do not have to aid President Obama in settling refugees into their respective states because the 10th Amendment limits the federal government’s power over the states. Additionally, Congress could enact new legislation to stop refugees from entering the United States. There is a fear that terrorists may try to infiltrate the United States through the refugee program, but that fear is misguided because many people do not know how the vetting process for refugees works. The first step for anyone seeking to resettle in another country as a refugee involves a lengthy application process with the United Nations High Commissioner for Refugees. The UNHCR is an [read more]
December 22, 2015

In a Haze: The Uncertain State of Marijuana on Tribal Lands

With the dawning of the 2016 Presidential election, questions about future of marijuana are beginning to emerge, and the candidates have not been shy about vocalizing their stances. Recently, a Democratic candidate, Hillary Clinton, spoke out about marijuana’s current classification as a Schedule I drug. Clinton believes marijuana should be considered a Schedule II drug, which the federal government recognizes as having a medically accepted use. Alternatively, Republican candidate John Kasich reaffirmed his position against marijuana legalization during his appearance on “The Late Show.” While opposition may still materialize in the future to stop this change, there exists a current trend towards the legalization of marijuana because many states believe it will stimulate their economies.  Currently, four states plus the District of Columbia have legalized the recreational use of marijuana, and many more states are on the verge of doing so. Not surprisingly, many Native American tribes are also looking into potential marijuana operations. They, too, view marijuana as an opportunity for economic empowerment. One tribe is even looking into opening the first “marijuana resort” where guests can freely smoke while enjoying several other amenities. The benefits of these business ventures are plenty. However, there are looming legal concerns that [read more]
November 16, 2015

Who Lives and Who Dies? Just Let Your Car Decide

In fact, autonomous vehicles are supposed to be very safe. Widespread adoption of AVs promises to drastically reduce car accidents resulting from human error, which comprise over 90 percent of car accidents and cost over $400 billion every year. More importantly, AVs could reduce car accident fatalities by 95 percent. But some accidents cannot be avoided. What happens in situations of unavoidable harm, where the AV becomes required to choose between two evils? [read more]
November 16, 2015

Decision Creates Dodd-Frank Whistleblower Circuit Split

The Dodd-Frank Act protects whistleblowers from retaliation by their employer. However, to get that protection as a whistleblower, to whom must a concerned citizen disclose their information? That is a complicated question. Subdivision (iii) of subsection 21F(h)(1)(A) of the Dodd-Frank Act provides protection against retaliatory discharges, discrimination, and demotions for whistleblowing employees who make disclosures protected by the Sarbanes-Oxley Act, which includes disclosures made internally, without any notification to the SEC. Subsection 21F(a)(6) of the Dodd-Frank Act provides that “‘whistleblower’ means any individual who provides…information relating to a violation of the securities laws to the [SEC].” Here is the problem: 21F(a)(6) unambiguously requires disclosure of the wrongdoing to the SEC, and subdivision (iii) unambiguously protects whistleblowers who only disclose the wrongdoing internally to their employer (without any disclosure to the SEC). It appears that these two provisions directly contradict each other. Given a literal reading, 21F(a)(6) would exclude internal whistleblowers from the Act’s protections despite subdivision (iii)’s protections. Surely, this cannot be the way the Act was intended to be construed; why would Congress include subdivision (iii), only to have it partially negated by a different subsection. Judge Newman of the Second Circuit Court of Appeals opines that these provisions are “in [read more]
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