Author: legalj

Protecting the First Amendment in Stopping Cop City: Unconstitutional Overbreadth in Georgia’s RICO Laws

James Swinehart

In March 2021, then-Atlanta Mayor Keisha Lance Bottoms alongside the Atlanta Police Foundation announced plans to build the Atlanta Public Safety Training Center—a massive $90 million police training facility boasting shooting ranges, explosives testing grounds, and a mock city for urban warfare training, bestowing the project with its popular nickname, “Cop City.” Since then, Cop City has been the subject of over two years of ongoing opposition from activists concerned about environmental degradation and racial discrimination. The project has destroyed 85 acres of Atlanta’s 300-acre Weelaunee Forest, a valuable public green space in one of Atlanta’s largest minority communities. Concerns have also surfaced over Cop City’s costly and expansive role in a continued push towards stronger policing in the city’s minority communities, a trend that has risen in Atlanta following the police-centered unrest that took place in the city in 2020. The collective opposition of these groups has come to form “Stop Cop City,” a decentralized movement that has gone on to wage two years of extensive and controversial protests in the Weelaunee Forest and the wider city of Atlanta.

Stop Cop City’s protests commenced following the announcement of Cop City in 2021, with the most notable example being the continued camping of activists in the wooded construction site. This specific form of protest has resulted in regular run-ins with the law over their occupation of the forest, some violent, with one early 2023 altercation resulting in the death of an activist and the wounding of a Georgia state trooper. The act further inflamed Stop Cop City protests, with several charges of arson and domestic terrorism arising after construction equipment for the project was set on fire by protestors. However, legal action against Stop Cop City was just beginning and would soon take a drastic turn.

On August 29, 2023, Georgia Attorney General Chris Carr released a legal indictment charging 61 Defend the Atlanta Forest protestors of racketeering under the state’s Racketeer Influenced and Corrupt Organizations statute, commonly referred to as RICO. Under Section 4 of Georgia’s RICO statute, racketeering is defined as an act of conspiracy between one or more people to maintain “interest in or control of any enterprise, real property, or personal property of any nature, including money,” or to “participate in any such enterprise through a pattern of racketeering activity.” Under Section 3 of the statute, the enterprises controlled by racketeers include property, interests, and institutions, and the racketeering activities can be any crime pertaining to the maintenance of the enterprise. The laws were originally made to target gang and mob activity, connecting individual crimes to larger group-motivated ones, but in the case of the Stop Cop City indictment, Carr maintained that Defend the Atlanta Forest protestors held an interest in stopping the building of Cop City, using racketeering activities including arson, domestic terrorism, and money laundering.

These allegations and the unique usage of RICO laws have elicited extensive debate. While RICO laws were originally made to target organized crime in the case of gangs and mobs, concerns have risen over the fact that Carr’s usage of RICO laws allows them to target protest movements as well. Critics of Carr’s decision hold that using RICO laws against protesting movements is a direct attack on the First Amendment right to peaceful protest, with Odette Yousef of NPR reporting that the indictment is “chilling First Amendment activity” amongst citizens of Atlanta. However, Carr maintains that the protests were not peaceful and deserve to be held accountable for the crimes that the “violent anarchists” committed. The use of RICO laws to go about this accountability in the event of a protest, though, is unprecedented for Georgia. 

Similar usage of federal RICO laws, however, took place when they were applied against anti-abortion protestors in the 1993 Supreme Court case National Organization of Women (NOW) v. Schiedler. The Court found that the protestors could be labeled as racketeers, claiming that the anti-abortion protestors acted in organized crime against the abortion clinics. The case effectively established that under federal RICO laws, unruly protesting could be a “predicate act” for racketeering, or an individual crime contributing to a larger one. Similar to the Stop Cop City case, this usage of RICO laws was controversial. University of Idaho JD Jillian Christensen argues that the usage of federal RICO laws against protesting represents a substantial “clash” between the gang and mob-related racketeering crimes that federal RICO laws were formed to target and their usage against protestors at the time of writing. She cites NOW as setting a precedent for RICO laws to be used beyond their intended purpose against the Black Lives Matter and Antifa movements of 2020 and perhaps future movements. In the greater context of constitutional law, I interpret Christensen’s arguments to claim that the usage of federal RICO laws against protesting represented unconstitutional overbreadth—a type of constitutional infringement that occurs when a statute is used substantially beyond its original intentions. By targeting protestors, federal RICO laws are being used substantially beyond their original intentions of targeting gang and mob-related crimes. By extension, this argument can be applied to the Stop Cop City indictment in Georgia.

When evaluating Attorney General Carr’s usage of Georgia’s RICO against Stop Cop City protestors, unconstitutional overbreadth is apparent and must be acknowledged. As shown in NOW v. Scheidler, overbroad usage of federal RICO laws allows for protesting to be used as a predicate act for racketeering, condemning any protests that can be connected to any sort of crime to the possibility of overbroad racketeering indictments. The same can be seen in Georgia, wherein overbroad usage of RICO laws allowed 61 protestors from Defend the Atlanta Forest to be indicted for racketeering on the grounds that they maintained interest in an act of protest against a political issue. But, as Yousef pointed out, where is the line drawn between the political issue of protesting and racketeering activities? And if this is allowed to happen with Stop Cop City protestors, what precedent does it set for future protests in Georgia? The result of unconstitutionally overbroad usage of RICO laws allows for the First Amendment right for groups to peacefully assemble and protest to be lumped into the criminal equivalent of gang activity if any crime is committed by an individual protestor. The line between protestor and racketeer, therefore, needs to be distinguished for the sake of protecting the right to protest in Georgia, as well as ensuring constitutionality in Carr’s usage of RICO laws. 

To effectively draw this line, I propose that Georgia’s courts should acknowledge the unconstitutionally overbroad use of RICO laws toward protestors in Carr’s Stop Cop City indictment and instead focus on criminalizing the individual crimes within the movement. As suggested by Christensen in addressing the overbroad use of federal RICO laws, courts can potentially achieve a greater distinction between protesting and racketeering by restricting protesting from being used as a predicate act in RICO cases. Protesting can be distinguished from racketeering through its constitutional definition and is generally defined as an act of speaking out in public forums, typically organized. A line could subsequently be drawn between acts of organized protesting and acts of organized crime associated with mobs or gangs. This would restrict RICO laws from unconstitutionally tying Stop Cop City protestors into the criminal equivalents of gang and mob-related crimes, while still allowing Carr to hold individual instances of unruly crime within the protests accountable. This would also set a healthy precedent for future protests, ensuring that future protests within the state are protected from overbroad usage of RICO laws while maintaining RICO laws’ strength against organized crime in the cases of mobs and gangs.

Going forward, the inherent overbreadth of Georgia’s RICO laws must also be acknowledged. As noted by the Atlanta Journal Constitution’s Tamar Hallerman, Georgia’s state-level RICO laws are notoriously broad and allow for even broader usage than federal ones. Georgia’s RICO laws accomplish this by containing more predicate acts to racketeering compared to federal ones, creating the potential for instances of unrelated individual crimes to be lumped into the larger crime of racketeering. This suggests that the overbroad usage of Carr in the case of his Stop Cop City indictment was facilitated by the laws’ broad nature. The overbroad nature of RICO statutes could therefore encourage overbroad usage. If overly broad RICO laws are allowing for acts of protest to be extended to the criminal equivalent of gang and mob-related organized crimes, then for the sake of the First Amendment, protesting’s usage as a predicate act for racketeering should be formally restricted from any RICO laws that allow it. NOW has already received negative treatment for the unconstitutional breadth it gave federal RICO laws. While the broad nature of RICO laws in the context of NOW has not yet been held to be unconstitutional at the time of writing, Georgia’s RICO laws are objectively broader than the national ones used in RICO, and therefore hold the potential to allow for greater overbreadth in their lumping of individual crimes into racketeering—an overbreadth already noted by the American Civil Liberties Union of Georgia’s condemnation of the laws’ “overbroad” usage. Prevailing evidence then dictates that Georgia’s RICO laws require closer observation of their constitutionally—and potentially, resolutions towards their overbreadth. A clear and beneficial resolution would be to formally exclude protesting from being a predicate act to racketeering, effectively ensuring constitutionality by ridding the laws of their overbreadth at the time of writing.

By acknowledging Carr’s overbroad usage of laws against Stop Cop City protesters and limiting further overbreadth in Georgia RICO laws, greater freedoms would be ensured for not only the Stop Cop City movement but for future protesting movements. Carr could argue that protests should be held accountable for group-motivated crimes, however, it can also be seen that his indictment effectively provides a pipeline for protesting to be charged as the criminal equivalent of gang activity. Limiting the usage of Georgia’s RICO laws would still hold protests accountable for individual crimes committed by unruly protestors—it would simply protect protesting and freedom of speech from being lumped in with racketeering crimes that should be reserved for gang and mob activity. Still, it must be noted that any movement against Georgia RICO laws at the time of writing would be highly controversial considering the current climate of their use against famous rappers and the nationally popularized indictment of former president Donald Trump. Nevertheless, acknowledging the unconstitutional overbreadth of Carr’s usage of RICO and limiting RICO’s use against protesting remains the best solution not only for the Stop Cop City movement, but for the future of First Amendment-protected demonstrations in Georgia as a whole.

Under the usage of state RICO laws at the time of writing, Georgians face difficult questions regarding their First Amendment rights for the future. The Stop Cop City movement has continued despite Attorney General Chris Carr’s broad indictment of the protestors, and as long as opposition to the planned police training facility continues, the rights of the peaceful protestors within that opposition ought to be protected. The evidence presented in the indictment overwhelmingly shows that the usage of Georgia’s RICO laws by Carr is unconstitutionally overbroad and that future usage of the laws should be restricted and returned to targeting mob and gang-related crimes. Indeed, one defendant in Carr’s Cop City indictment is challenging the constitutionality of the state RICO law at this time for many of the reasons outlined in this argument. Yousef warns that though the state’s conservative court is unlikely to consider the defendant’s claim, the court’s decision will set a national precedent for how RICO will be used against protestors in the future. For this reason, Georgia courts must find Carr’s usage of the state’s RICO statute unconstitutionally overbroad and reconsider how it should be used in the future—if not for the sake of Georgia, then for the sake of our nation’s Constitution.

“What about Me?”: How Upholding Non-Refoulement Principles Amidst Turbulent Pakistani-Afghani Relations Paves the Way for a More Peaceful Future

Ila Prabhuram

Legal Background

The rights of Afghani refugees in Pakistan are being infringed upon and violated, exacerbating tensions and ongoing ethnic conflicts in the country. On October 3, 2023, Pakistan’s government announced a significant enforcement effort targeting individuals residing in the country without proper documentation. The government indicated its intention to deport these individuals, which has caused concern among undocumented foreigners, including an estimated 1.7 million Afghan nationals. Pakistan’s Constitution does not explicitly include domestic asylum laws and procedures, but this lack of procedural protection does not absolve the state of its obligations to uphold the principle of non-refoulement under international human rights and customary law– which guarantees that no individual person should be returned to a country that has dangerous conditions in which the person would face torture, cruel or degrading treatment or punishment, or other irreparable harm, as Pakistan is in consistent collaboration with the United Nations’ member countries to ensure protection for those seeking safety in the country. Pakistan is a state party of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which furthers the necessity of the obligatory implementation of non-refoulement principles. Civic nationalism, which is where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, should serve as the basis for the enactment of laws centered around migrants, rather than the divisive notion of ethnic nationalism exemplified in the forced deportations of Afghan refugees and migrants.

Pakistan’s interim Interior Minister, Sarfraz Bugti, clarified that this crackdown is not specific to Afghans and will apply to migrants of all nationalities, even though the majority of migrants in Pakistan are of Afghan origin. The Pakistani government alleges that Taliban-affiliated militants, who traverse the shared 2,611-kilometer border between the two countries, have been responsible for attacks in Pakistan and often find refuge in Afghanistan. This move comes at a time of strained relations between Pakistan and its neighboring Taliban-led Afghanistan. These tensions stem from an ongoing dispute over what is known as the Durand Line, an international border inherited by Pakistan after the country gained its independence in 1947. The Afghani government has always refused to accept this agreement, attempting to seize Pakistan’s western provinces of Balochistan and Khyber Pakhtunkhwa over the last few decades. Pakistan has issued repatriation laws that forced residents illegally residing in Pakistan to leave by November 1, 2023.  

The Trial of Pakistani Prisoners of War, Pakistan v. India, Interim Measures, Order (1973) ICJ Rep 328, ICGJ 129, a case before the United Nations International Court of Justice, considered whether or not to grant Pakistan’s request for interim measures regarding the handling of the Pakistani prisoners of war that were currently detained in India. The court heard this case after Pakistan informed the court of its ongoing negotiations with India and requested that the Court postpone consideration of its request for interim measures in order to facilitate those negotiations. This case references the repatriation of prisoners of war and that the process should not be interrupted by the virtue of charges of genocide against a certain number of individuals detained in India. This court decision is what laid the framework for repatriation laws in Pakistan to be both utilized and weaponized against minority groups and prisoners residing in Pakistan. Ultimately, the repatriation laws at hand need to be amended in the context of the geopolitical situation unfolding in Pakistan, as the aforesaid Pakistani Prisoners of War case has made it all the more pertinent to reduce the number of Afghani refugees flowing into Pakistan while protecting the rights and security of existing Afghani refugees currently residing in Pakistan in accordance with non-refoulement laws in Pakistan, as this would help protect the existing resources and political stability in Pakistan while providing a safe haven for Afghan refugees.

Amidst the uptick of violence directed towards marginalized residents in Pakistan, there has been a push from external factors for the Pakistani government to create laws centered around mitigating the ongoing tensions between Pakistan’s government and Afghani residents through a constitutional standpoint, focusing on how the government can play a crucial role in protecting the civil liberties of its constituents to achieve a more peaceful, safe, and tolerant society. Such a result is pivotal for quelling unrest and civil disobedience that has been plaguing both Pakistan and Afghanistan for centuries. Because Pakistan has a government that is much closer to a liberal democracy than Afghanistan, adopting laws promoting civic nationalism, where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, is a viable solution. Quelling these ethnic conflicts would allow the Pakistani government to perpetuate non-refoulement laws that protect Afghani refugees from returning to a conflict-ridden state while limiting further immigration in an effort to preserve Pakistani resources and political stability. 

The History and Legality of Non-Refoulement and Forced Removal of Residents 

To fully understand the geopolitical context of this issue, it is important to consider the history and legality of repatriation laws and how certain countries have weaponized the ability to forcefully remove residents. Repatriation laws, also known as the exercise of the right of return, is the personal right of a refugee or prisoner of war to return to their country of nationality due to specific circumstances rooted in various international, human rights, and customary international law instruments, which bears similarities to the principle of non-refoulement under international human rights law. This principle is expected to apply to all immigrants at all times, regardless of their citizenship or residency status, and this principle is explicitly delineated in the CAT and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Non-refoulement laws are implemented without any exception, and it applies wherever a State exercises jurisdiction or effective control, even when it is outside of that particular State’s territory. 

One case in particular that references the usage of non-refoulement laws and its significance regarding migrants whose residency status is in question is the COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal Appeal decision. The case centered around an Ethnic Hazar from Afghanistan whose family resided in Pakistan and whose subclass 101 visa (which allows a dependent child to enter Australia to live with their parents that are Australian citizens or permanent residents) under the Migration Act of 1958 was canceled. This was because his wife applied for a subclass 309 (Partner) visa that violated the statutory VISA requirements stating that the applicant did not have a spouse or a de-facto partner. The applicant argued that, as an Afghan Hazara with family in Pakistan, being forced to return to Afghanistan would place him and his family in constant danger and fearing kidnapping, shootings, or bombings by Islamic terrorists and cited obligations under Australia’s Convention on the Rights of the Child and Article 23 of the International Covenant on Civil and Political Rights relating to family unity and the non-refoulement obligations (a person should not be returned to a country where they faced imminent harm or danger) under the Convention Relating to the Status of Refugees. 

It is pertinent to consider the rights of individuals who are seeking asylum, regardless of their citizenship status. In Afghan Asylum Seeker v Federal Office for Migration and Refugees, Decision, 13 A 1294/14.A, ILDC 2387 (DE 2014), 15th September 2014, Germany; North Rine-Westphalia; Higher Administrative Court [OVG], an Afghan citizen applied for international protection in Germany and the asylum authority rejected his application; the applicant filed an appeal but this was rejected. The complaint argued that his right to be heard was violated as German consular officials did not question Afghan witnesses within Afghanistan as part of the evidence-gathering process. Ultimately, the core issues at hand were whether or not the right to be heard required the asylum authority to conduct witness interviews on the territory as part of its evidence gathering in an asylum application process, demonstrating how the rights of minority residents and those residing in a particular area are often overlooked if the individual lacks proper documentation, even in the context of basic human rights.

The Danger of Refoulement

The government of Pakistan has recently decided that all of the foreigners currently residing in Pakistan illegally (without valid documentation or those who have overstayed their visas) will be forcefully returned to their country of origin in a “safe and dignified manner.” This process, however, is not exempt under the mandatory human rights principle of non-refoulement. Furthermore, the process of voluntary return will continue, and the illegal foreigners returning voluntarily to their country of origin will not be arrested or detained; the process of returning illegal foreigners is said to be carried out in a ‘smooth and transparent manner,’ but any form of resistance or exploitation by the targeted individual(s) will be reported to authorities who are then at full discretion to take whatever measures they deem necessary in the name of repatriation. This blatant disregard for non-refoulement principles is extremely dangerous, as the individual human rights and protection of the Afghan immigrants are gravely compromised when they are forcefully sent to a country riddled with conflict and violence. Halting the deportations of Afghan nationals following the Taliban takeover and waiting for the human rights situation to level out in Afghanistan would allow the safe and dignified returns of Afghan immigrants. 

As per the appeal in COT15: although it is explicitly stated in the Pakistani Constitution, non-refoulement should be enforced for all Afghan refugees currently residing in Pakistan. Pakistan should stop all forced returns and continue to host Afghan nationals who fled for safety. The government must also ensure their full access to procedures where their individual human rights protection needs and their need for effective protection in line with international human rights and refugee standards, are fully assessed. On the basis of civic nationalism, the case of COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal was incorrectly decided; the appeal should not have been dismissed, as individual rights should be constitutionally protected in accordance with non-refoulement principles. Moreover, using civic nationalism as a basis of constitutionality bars cruel and unusual punishments and methods of torture inflicted upon those residing illegally in the country. Ultimately, in order to sustain political stability and maintain a level of human rights protection among Afghan migrants residing in Afghanistan, the Pakistani government must adhere to the principles of non-refoulement in accordance with the United Nations, as a State party, and put forth repatriation laws in practice in an effort to preserve the individual human rights of those seeking asylum.

Sahelian Storms: Evaluating Host State Mali’s Reacquisition of French Bases- Examining Mali-France Defense Treaties, ECOWAS Court Decisions, and the AfCFTA Perspective

Guest Contributor Ibrahim Ati

Echoing from the blue Tuareg, inhabitants of the Sahara and its deserts for centuries, comes a timeless proverb: ‘Ihanay amghar awar ihiniy alyad ibdadane.‘ In translation, it reveals: ‘Seated, an elder sees farther than a youth standing.’ This profound wisdom, deeply ingrained in Sahel’s dunes and culture, acts as a compass under the blazing sun, offering vision and perspective through the formidable storms furiously blowing over the region.

Preamble

With two coups in Mali (August 2020 and May 2021), two in Burkina Faso (January and September 2022), one in Guinea (September 2021), and the latest in Niger (July 2023), the Sahel is in a period of intense reflection and action, having witnessed nine military coups in four years. Amidst these changes, on September 16, 2023, the new governments of Burkina Faso, Mali, and Niger, turned a new leaf in their collective history by signing the Liptako-Gourma Charter, inaugurating the Alliance of Sahel States to fortify security and deepen regional integration among the three nations.

The region, known for its abundant raw materials and energy reserves, has not just experienced a disruption of its political status quo but has also been thrust into a critical reevaluation of international agreements, international trade commitments, and traditional approaches of dispute resolution. These political upheavals have ignited a widespread rejection of French colonial legacies and prompted sanctions from regional blocs and international entities cutting across economic, financial, military, and political spheres.

This military recalibration has influenced a wave of constitutional reforms and revisions across a variety of international arrangements. A key outcome is the relegation of French from its former status as the official language in constitutions. Currently, the International Organization of the Francophonie (IOF) encompasses 88 member states and governments, yet, as of December 2023, Niger and the IOF have officially suspended their cooperation, highlighting the shifting dynamics of regional affiliations and cultural identity. This change contrasts with the historical roots of the IOF, originally established as the Agency of Cultural and Technical Cooperation in Niamey, Niger on March 20, 1970.

The intensified collaboration with the French military to combat insurgents in the Sahel following the start of Operation Serval in 2013 has been critically reevaluated by the region’s new administrations. The growing discontentment incited a collective disengagement from French ties, evidenced by cancellation of military pacts, insistence on French troop withdrawal, prohibition of French media, and even the expulsion of French diplomats. The three countries have also simultaneously denounced their bilateral fiscal agreements with France, first established in 1972 to prevent double taxation. This departure was marred by conflict and contention, marking a significant shift from the traditional amicable Franco-African legal and economic ties, with profound repercussions on international legal frameworks, diplomatic and trade disputes.

This analysis seeks to consider these events through the prism of international law, beginning with a judicial review of the imposed sanctions and the legal status of foreign military bases following their retake. Additionally, the narrative extends to the evolving legal landscape influenced by the African Continental Free Trade Area (AfCFTA), with a focus on pioneering legal doctrine on trade and the Sahel monetary union.

The objective is to offer an analysis of the legal developments in the region and of the wide-ranging impacts these changes have, not just within the Sahel but also in the global arena of international dispute resolution. The discourse will highlight the nuanced forum issues at play, considering traditional legal avenues and transnational comparison of emerging regional trade agreements.

Decade of Military Collaboration: Contextualizing French Operations and Bases Reclamation in Mali in the Wake of Bilateral Agreements’ Termination

The recent reclamation of Kidal by the new Malian government in November 2023 — a crucial area of rebellion lost in May 2014 — along with other northern territories, coinciding with the departure of French military contingents, potentially prompts questions about sovereignty rights and legal status of erstwhile foreign military bases upon withdrawal of consent. Central to understanding this situation is the nature of French military operations in Mali, undertaken with the consent of the Malian government to combat insurgencies. International law recognizes the legitimacy of foreign interventions, provided they are requested by the host government, reflecting the State’s sovereign authority. This concept is affirmed in the International Court of Justice’s (ICJ) ruling in “Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America)” on 27 June 1986 (para. 246), which acknowledges the acceptability of interventions at a government’s request, specifically highlighted by the phrase “intervention, which is already allowable at the request of the government of a State.”

Additionally, the United Nations International Law Commission (ILC), in its 1979 Yearbook (Volume II, 2nd part, pg. 112, para. 11), categorically affirms that state consent is a fundamental prerequisite for legitimizing foreign military interventions. This consent must be “valid(…), clearly established, really expressed, internationally attributable to the State and anterior to the commission of the act to which it refers.” This principle is further reinforced and elaborated in the case “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)” adjudicated by the ICJ on 19th December 2005, reinforcing the unequivocal State’s right and power to withdraw or annul its consent, thereby altering the initial legal legitimacy of any ongoing foreign military operations. Mali’s withdrawal of its consent was valid under the international law scope. 


Following the withdrawal, the military installations, previously under foreign control for nearly a decade, have been repossessed by Mali. A scrutiny of pertinent international agreements indicates that a significant dispute raised by France against Mali, particularly on potential expropriation grounds, appears improbable. 

Moreover, the legal reversion of these bases to Mali is likely to be affirmed without further recourse to international tribunals to settle the issue, as is easily demonstrated per se by looking at the agreements governing French military engagement in Mali and pre-existing international law. Two key bilateral agreements frame the contours of this relationship: the “Décret n° 2013-364 du 29 avril 2013” and “Décret n° 2016-1565 du 21 novembre 2016,” representing formal, ratified legal commitments between Mali and France, setting out terms for military cooperation and post-operation protocols. They detailed operational norms, rights, and responsibilities, forming a binding legal framework. In the context of international law, as illustrated by the Nicaragua case and principles set forth by the UN ILC, the legality of the French military’s presence for operations in Mali, grounded in bilateral consent, is clear. These operations, as per established international norms, were initially valid. Note, however, that central to this legal structure is Article 8 of the “Décret n° 2013-364,” mandating the return of all facilities used by French forces to Mali upon the mission’s end. Concurrently, Article 11 of the decree prescribes that any disputes arising from the decree’s implementation or interpretation are to be resolved diplomatically, preferring bilateral negotiations and effectively curbing the potential involvement of international tribunals. In a similar vein, the latter “Décret n° 2016-1565” in its Article 24, delineates an internal dispute resolution mechanism involving resolution through a monitoring committee. This decree further establishes primacy of bilateral engagement in addressing the treaty disagreements, opposing external tribunal mandates. 

Clearly, then, the reversion of ownership to Mali is well-grounded within the legal frameworks governing Mali’s cooperation with France. When Mali revoked consent for the continued French military operations, its withdrawal was consistent with the “Armed Activities” precedent which allowed for Mali’s reclamation of the military bases, adhering to the bilateral possession terms. Consequently, the initiation, conduct, and eventual conclusion of French military operations in Mali, including the reversion of military installations to Malian control, seem to have been largely executed in compliance with international law and the specific terms of the Franco-Malian agreements. The initial consent and following withdrawal by the Malian government are likely to have legally governed these operations.

What would occur in the unlikely scenario that the French contemplate asserting expropriation claims for materials and assets lost during its unexpected military withdrawal? A more rigorous legal analysis would then be imperative. The initial phase of this analysis would involve a thorough examination of forum jurisdiction between the two States. Following this jurisdictional assessment, the focus would naturally progress to evaluating the merits of these hypothetical claims.

The principle of expropriation under international law is notably articulated in Chorzów Factory (Germany v. Poland), which mandates compensation for expropriation, and in CMS Gas Transmission Company v. The Argentine Republic, which further dissects expropriation in scenarios involving state and state-entity assets.

Although these precedents set the stage for understanding expropriation, the unique circumstances of military base reclamation by a sovereign state suggest that the direct applicability of such cases may differ in Mali’s context, where military installations are reclaimed under sovereign authority.


A preliminary review suggests that these claims might struggle to demonstrate strong grounding, considering the context and, above all, the content of the agreements between the two nations.

This decadal process, adhering to principles of sovereign consent, appears to align with international law, affirming the unanticipated yet legally sound transfer of control over military installations back to Mali.

This evolution not only mirrors shifts in Mali-France relations but also ties into larger regional frameworks like the Economic Community of West African States’ (ECOWAS) sanctions on Niger and the AfCFTA. Particularly, sanctions on Mali and Niger have catalyzed a move towards tighter integration among the Sahel’s emerging regimes, forming a collective front against ECOWAS’ measures. This unexpected drive towards unity challenges established structures and intersects with the AfCFTA’s ambitions, suggesting that sanctions may promote stronger regional alliances and reinforce oppositional attitudes. This complex landscape of geopolitical, legal, and economic transitions questions old alliances and highlights the necessity for this article to evaluate the impact of sanctions and the potential role of the AfCFTA as a new entity influencing regional integration and governance.

Regional Compliance and Enforcement: ECOWAS Court Affirms Trade and Customs Sanctions on Niger Amidst Growing Tensions

ECOWAS is a regional group representing 17% of the African continent and established by the Treaty of Lagos on May 28, 1975, acted promptly in response to the political turmoil in the region. ECOWAS’ primary objective is to achieve economic integration and collective self-sufficiency among members, forming a vital and essential trading bloc within the African Economic Community. In the wake of the July 2023 coup in Niger, ECOWAS, to enforce compliance, imposed severe sanctions, including the shutting down of borders and the halting of commercial and financial transactions with Niger, urging it to return to constitutional governance. Notably, Nigeria discontinued electricity supply to Niger, significantly cutting more than two-thirds of Niger’s energy consumption. Parallel to ECOWAS’ response, the European Union (EU) also implemented sanctions against Niger, internationalizing the response to the political crisis. These measures, intended to stabilize the region, have significantly affected trade and economic stability, bearing direct consequences on the lives of civilians as well. 

The ECOWAS Court of Justice, seated in Abuja, Nigeria, functions as the judicial arm of the Economic Community of West African States, established as per the Revised Treaty of 1993. Tasked with interpreting and implementing the Community’s treaties, protocols, and conventions, the Court exercises broad jurisdiction in various areas. It can review cases involving non-compliance with Community law, disputes related to the interpretation and application of Community acts, human rights violations and legality of Community laws and policies. 

In December 2023, the ECOWAS Court of Justice addressed two significant cases related to Niger in the sanctions’ aftermath imposed due to the coup d’état and the subsequent detention of Nigerien President Mohamed Bazoum.

On December 7, 2023, the Court heard the first case where Niger sought to challenge the sanctions’ legal basis. Niger argued for interim relief, contending that the sanctions were not only disproportionate but also discriminatory compared to the treatment of other ECOWAS States undergoing transitions, including Mali, Burkina Faso, and Guinea. Central to Niger’s argument was the issue of the admissibility of its plea, considering its origin from a government established just a few months post-coup and deemed illegitimate by many, as well as the urgent need to reevaluate the sanctions’ humanitarian impact. However, the Court dismissed the case, upholding that a regime born from an unconstitutional change, such as Niger’s military junta, lacked the standing to initiate proceedings in the Court, reinforcing ECOWAS’s commitment to constitutional legitimacy. 

On a consequential ruling on December 15, 2023, in the case “Mohamed Bazoum et 2 autres contre l’Etat du Niger” (ECW/CCJ/JUD/57/23), the Court addressed the human rights concerns of the detained President Bazoum. Relying on the Article 10-d as inserted in the Protocol of the Community Court of Justice of the Additional Protocol A/SP.1/01/05 of January 19, 2005, the Court decisively reaffirmed the illegitimacy of the military government and ordered the immediate release of President Bazoum, reinforcing its stance against unconstitutional changes within the ECOWAS. 

The Court’s decision, intended to reinstate constitutional governance by ordering President Bazoum’s release, unexpectedly aggravated the plight of Niger’s civilians. Maintaining sanctions on the military government deepened the nation’s hardship and economic situation.

Those sanctions compounded the adversities faced by the civilian population in Niger, already considered one of the poorest countries on the continent, escalating the crisis in the Sahel region. Judicial interventions, like the ones of ECOWAS, can bring unintended yet increased hardships, where attempts to fortify constitutional governance exacerbate the everyday crisis faced by civilians.

In the context of Niger, ECOWAS’ decision to impose sanctions, including the closure of borders and the suspension of vital transactions going way beyond the financial markets, also casts a spotlight on the strong tensions within regional trade and economic policies, particularly in relation to AfCFTA’s vision for a unified market. This scenario necessitates innovative analysis, encouraging a reassessment of the extent to which sanctions might compromise the broader ambitions for economic integration and seamless trade within Africa. Can the AfCFTA wield its legal authority to oversee regional bodies like ECOWAS, in pursuit of a consolidated market?

AfCFTA’s Free Trade Doctrine and New Dispute Mechanisms: A Potential Supranational Tool to Mitigate Sanctions—Novel Monetary Union Across Africa?

The AfCFTA, adopted on March 21, 2018 and operational since May 30, 2019, is an ambitious Free Trade Agreement aimed at establishing a unified market across Africa. With 54 African member states, its vision is to cultivate a single market for goods and services, facilitated by movement of persons to deepen economic integration of the African continent. The Sahelian governments may see a significant economic opportunity in the commitment to free trade and economic unity, especially as Guinea launches an unprecedented $20 billion project in iron ore, rail, and port development, poised to be the world’s largest mining venture. This free trade vision may also furnish an additional legal foundation for mitigating sanctions imposed by subregional entities, such as ECOWAS, within a larger and perhaps more receptive forum.

Members of the AfCFTA, these States can pursue recourse through dispute resolution mechanisms established in Article 20 of the Agreement, outlining settlement of disputes between State Parties, with formation of panels and an appellate body similar in structure to the dispute settlement system of the World Trade Organization (WTO). In this context, they could contend that those sanctions hinder their rights and responsibilities under the AfCFTA framework, designed to enhance intra-African trade and facilitate economic integration.

In the future, sanctioned African States may ambitiously argue that subregional sanctions conflict with AfCFTA provisions, disrupting the free movement of goods, services, and investment and contravening trade liberalization goals, thus harming both the sanctioned countries and AfCFTA’s broader objectives of African economic unity and integration.

While it’s still early to draw parallels between AfCFTA and the EU’s legal frameworks, even if initial similarities are apparent, AfCFTA shows promise in affecting regional entities like ECOWAS. Similarly to EU legal foundations, notably the Treaty on the Functioning of the European Union (TFEU), particularly Articles 26 and 28 establishing an internal market and prohibiting restrictions on trade among Member States, AfCFTA could require ECOWAS to realign its policies with wider African objectives of economic unity and liberalized trade, surpassing regional trade agreements in legal authority across Africa. 


This scenario would establish AfCFTA’s judicial review of sanctions imposed within Africa, where any measures taken by sub-regional groups should defer to the continent’s unified focus on free trade and economic integration, akin to how EU community law takes precedence over national laws under the principle of primacy, established in the Court of Justice of the European Union’s Costa v. ENEL case of July 15, 1964.

In a decisive stride towards more economic autonomy, the Sahelian Federation is also redefining regional monetary norms. The three countries have convened an economic commission, rumored to also forge the ‘Sahel’ currency, with a new gold-measured standard, poised to supplant the existing national currencies. This ambitious move, bolstered by the establishment of a stabilization fund and an investment bank, poses a direct challenge to the widely criticized Franc de la Communauté Financière Africaine (F.CFA) still being co-regulated by France with the Banque Centrale des États de l’Afrique de l’Ouest (BCEAO) and the Union Monétaire Ouest Africaine (UMOA) as partners. Interestingly, this bold step coincides with ECOWAS’ own intentions to gradually move away from the F.CFA, though the Sahelian Federation’s approach is more immediate and radical.

The AfCFTA now finds itself at a pivotal crossroads. It also faces the complex task of potentially arbitrating this significant monetary transition as part of its free continental trade duties. The crucial decision would lie in whether to align with ECOWAS’ traditional monetary policies or to endorse the Sahelian Federation’s progressive monetary reform. This goes beyond a mere currency change—it represents a critical juncture that could alter monetary disputes and significantly influence regional economic policies.

In this complex backdrop, the ECOWAS Court’s rejection of Niger’s appeal regarding the imposed sanctions also serves as a stark reminder for any new governments established post-coup d’état. The increasing influence of supranational legal systems such as ECOWAS, in matters of trade compliance and sanctions is a significant element to consider for the region’s future, even more with the increasing AfCFTA’s advocacy for free trade.

New Horizons

This development has added layers of complexity to the regional dispute resolution framework, sparking important discussions about where regional teamwork is headed and the proficiency of established mechanisms in managing transnational disputes. Indeed, the shift towards regional alliances, along with constitutional reforms and monetary union, indicates a strong move towards novel structures of governance and dispute resolution.

This collective stance is emblematic of a broader movement among the Sahelian States, which may redefine engagement with traditional regional bodies and external powers.

About the Author

Ibrahim Ati is a dual-educated legal professional with training in both civil and common law systems, having passed the New York Bar and graduated with an LL.M. in Alternative Dispute Resolution from the University of Southern California. Co-Chair of the Middle East region for the Young Institute for Transnational Arbitration, he is also one of the youngest members on the New York City Bar Association’s Arbitration and Professional Discipline Committee, and its youngest representative at the UNCITRAL sessions in the United Nations (New York). In addition to serving as Vice-Chair in the American Bar Association, Ibrahim Ati aspires to be among the new generation of leading international arbitrators, aiming to infuse the field with fresh perspectives and innovative approaches.

Sweet Home Alabama: Navigating Home Rule Status Through State Federalism

Justin Murdock

Abstract

In the intricate mosaic of Alabama’s municipal governance, the echoes of the 1901 Constitution, etched in the tumultuous Jim Crow era, still reverberate through the corridors of legal power. This article navigates the complexities of the state’s non-Home Rule status and the implications of Dillon’s Rule, unraveling the intricate dynamic between municipal powers and taxation. This piece aims not just to dissect the challenges but to propose robust, precedent-backed alternatives to circumvent restrictive federal practices. 

Historical Context: The 1901 Constitution and Non-Home Rule Status

Alabama’s municipal tapestry is woven with threads from the 1901 Constitution, which cast a long shadow over the autonomy of local municipalities, entangling them in a web of legislative intricacies. Its enduring legacy includes the absence of Home Rule status, or the allocation of governing power to local municipalities. The National League of Cities only identifies 10 Home Rule states, stripping local municipalities of the freedom to enact and enforce ordinances independently. Instead, legislative power is concentrated in Alabama’s State Legislature, giving rise to over 977 amendments and the passage of municipal ordinances centrally. This has led to a convoluted regulatory landscape.

Alabama’s non-Home Rule status fundamentally restricts the autonomy of local governments, relegating them to a subordinate role in the broader state governance structure. The implications of this constitutional design ripple through various aspects of municipal governance, with taxation emerging as a focal point of contention.

Dillon’s Rule and Municipal Powers: A Historical Lens

Dillon’s Rule, named after Judge John Forrest Dillon, further complicates the challenges faced by Alabama municipalities. This doctrine dictates that local governments possess only those powers explicitly granted by the state, those necessarily implied, and those essential to the declared objects and purposes of the municipality. Historical decisions, such as Mobile v. Moog, 53 Ala. 561 (Ala. 1875) and Best v. Birmingham, 79 So. 113 (Ala. 1918), have set the stage for the challenges faced by local governments in Alabama, particularly in the realm of taxation.

In Mobile v. Moog, Justice Manning articulated the general rule that municipal corporations possess and can exercise only the powers explicitly granted or necessarily implied. This restrictive interpretation of municipal powers gained further traction in Best v. Birmingham, where the Alabama Supreme Court ruled that municipal corporations have no implied powers beyond taxation, leaving any outside powers to be pertinent to the creation of the corporation. The absence of explicit grants of power and a narrow interpretation of implied powers left municipalities in a precarious position, dependent on state-level approvals for even basic fiscal decisions.

The Nexus of Home Rule, Dillon’s Rule, and Taxation

The challenges arising from the intersection of non-Home Rule status, Dillon’s Rule, and taxation are most pronounced in the financial domain. Sources of revenue are tightly controlled by the State Legislature, as outlined in Section 104 of the Alabama Constitution. This provision prohibits the amendment or extension of the charter of any private or municipal corporation by the legislature.

The pertinent statutory authority for municipalities to tax businesses or trades is rooted in Title 11 Section 11-51-90 of the Alabama Code. Municipalities can only leverage this authority where not prohibited by the State Constitution or laws—yet, this implied power is constrained by Section 104 to levy taxes on corporations at the municipal level. Therefore, local governments are de facto dependent on state-issued amendments or approved legislation for changes to local property taxes. Even local property tax referendums must undergo a second vote by the entire state, exacerbating the challenges faced by local governments in generating revenue.

This intricate web of legal constraints forces local governments to rely on fees and charges, such as concealed pistol fees, vehicle registration fees, and court filing fees, to sustain their operations. In the Spring 2023 legislative session, state legislators passed roughly 60 bills pertaining to revenue generation in municipalities, exacerbating the reliance of government revenue on fines and fees rather than on taxes. In 2021 alone, the local property tax revenue per capita in the U.S. was $1,837, over triple of the revenue garnered from Alabama at $567. Conversely, the per capita local revenue from fees and general charges stood at $982 for the U.S., with Alabama significantly surpassing it at $1,346. Of the fees in Alabama, the favored methods are through vehicle registration and court filing fees, seen in the six bills introduced in the 2023 regular session. This reliance on a piecemeal revenue system, heavily intertwined with the criminal justice system in a relatively impoverished U.S. state (OTD 16.2% poverty rate), paints a fragile financial landscape for Alabama municipalities.

Precedent-Based Legal Alternatives

While striking down clauses related to Home Rule in the Constitution might be an arduous task, exploring alternatives grounded in legal precedent offers a pragmatic route for reform. The following proposals draw inspiration from successful models in other states, providing a blueprint for a successful municipal framework. Tackling both the issues of (1) restricted revenue growth and (2) federal municipal legal authority, this two-pronged solution aims to pragmatically rectify federal rights in Alabama:

Redefinition of Fees as Taxes: Leveraging Colorado’s TABOR Strategy for Alabama’s Home Rule Challenges

Taking from Colorado’s Taxpayer Bill of Rights (TABOR) strategy, the state could put in place limits on the revenue the state government can retain and spend. Although unsuccessful, the collection of medical provider fees known as Colorado Healthcare Affordability and Sustainability Enterprise (CHASE) fees was challenged in the Colorado Supreme Court on the basis that the imposition of hospital provider fees constituted a tax policy change under voter approval. Given the pervasiveness and proliferation of cumbersome fines and fees in Alabama, a TABOR model would allow greater discretion for Alabama citizens in the judicial process to assess the imposition of fees from criminal justice to vehicles. 

Colorado’s example demonstrates the effectiveness of this approach in lessening the impact of restrictive municipal fiscal regulations. By allowing appeals to certain fees under the framework of taxes in TABOR, this would allow for excess revenue to be directly returned to tax-paying citizens. Additionally, by allowing a vantage point to contest cumbersome fines and fees, citizens would have the ability to circumvent them without going directly through the state legislature to renege state-approved bills. Alabama’s adoption of such a strategy has the potential to navigate the intricacies of Home Rule challenges while strategically managing its fiscal landscape. Accordingly, by limiting the amount of revenue the state government can retain and spend, this would implicitly enable municipal powers to do more. 

Granting Autonomy to Select Cities: Manipulating California’s Municipal Charter Classifications

While Alabama municipalities have been sorted into various classes (1 through 8) based on population, this classification is specified only to appoint a council-manager government through the Council-Manager Act of 1982. This only serves as a liaison between the state and local level, not giving municipalities any concrete autonomy over specific local revenue issues. Addressing Alabama’s Home Rule challenges can find inspiration in California’s nuanced governance approach, where cities operate as either charter cities or general law cities. For instance, Los Angeles and San Francisco are prominent examples of charter cities, whereby through commissioning and drafting, they have state approval to exercise greater local autonomy. having adopted their own charters that bestow them with increased local autonomy. These charters allow these cities to tailor their governance structures, enact local ordinances, and manage affairs independently within the bounds of the law.

In contrast, general law cities in California, such as Fresno or Sacramento, operate under the state’s general laws without adopting specific charters. The distinction lies in the level of local autonomy granted—charter cities have broader powers defined by their charters, while general law cities operate under a more standardized framework outlined by state law. By considering the examples set by charter cities in California, Alabama can explore the feasibility of enabling municipalities to adopt charters, offering a legal avenue for increased local autonomy and flexibility in governance.

Conclusion

Alabama’s municipal governance stands at a crossroads, grappling with historical legacies and contemporary challenges. The historical context of the 1901 Constitution, coupled with the constraints imposed by Dillon’s Rule, creates a legal landscape that demands careful navigation. By drawing on legal precedents and successful models from other states, Alabama has the opportunity to craft innovative solutions that balance local autonomy with state oversight. Without upending the long-standing Constitution, legal alternatives through fees redefinition and municipal classifications enable cities greater autonomy and authority without infringing the rights of the state. Accordingly, this would help resolve fiscal restrictions and desperately-needed municipal aid and planning often left ignored or in stalemate.

AI as Legal Inventors?

Ollie Braden

Thaler v. Hirshfeld, decided by the U.S. District Court for the Eastern District of Virginia on September 2, 2021, ruled that artificial intelligence (AI) systems could not be listed as inventors on patent applications. The court wrote that, “based on the plain statutory language of the Patent Act… the clear answer is no.” However, this interpretation insufficiently addresses the ordinary meaning of the statutory text and the ambiguous congressional and constitutional intent behind U.S.C. Title 35, or the Patent Act. In contrast to the court’s view, the Patent Act leaves enough room for granting AI inventorship. Ultimately, the ambiguity around AI’s ability to be an inventor demands more congressional clarity and less judicial intervention.

Before I defend my argument, I want to note that this article does not explore Skidmore deference, which implies that the court ought to defer to federal agency interpretations in proportion with the agency’s ability to persuade, such that the court may be obligated to default to the US Patent Office’s interpretation of the Patent Act in Thaler. Because of this, I do not argue against the Thaler ruling specifically; rather, I question the statutory interpretation employed in the court’s decision absent its deference to the United States Patent and Trademark Office (USPTO). My argument takes issue with the court’s claim that “[e]ven if no deference were due, the USPTO’s conclusion is correct under the law.”

The Patent Act uses the word ‘individual’ to define inventors, meaning that if ‘individual’ can be found to imply natural personhood, inventorship must also be restricted to natural persons. The court relies on the Dictionary Act—which defines “persons” as “corporations, companies, associations, firms, partnerships, societies, and joint stock companies,” followed by the phrase “as well as individuals”—to support its purported ordinary meaning interpretation of ‘inventor.’ In theory, the use of “as well as” here establishes “individual” as “distinct from the list of artificial entities that precedes it.” It is not clear, however, that artificial intelligence would inherently fall under the same category as corporations, companies, and associations. The court’s analysis does not properly account for this nuance. 

The court then cites several federal circuit holdings to support its interpretation, particularly referencing the ruling in Univ. of Utah v. Max-Planck (2013) that “[i]t is axiomatic that inventors are the individuals that conceive of the invention: [c]onception is the touchstone of inventorship,” and that “[t]o perform this mental act [of conception], inventors must be natural persons and cannot be corporations or sovereigns.” This ruling, however, was made in deciding whether corporations ought to be granted inventorship and does not necessarily provide a justification for the exclusion of AI: the philosophical discussion regarding AI’s ability to “think” or have conscious experiences like humans is ongoing, but AI systems can clearly generate and thus “conceive” of ideas in some sense. In Thaler, the plaintiff is explicit in stating that he did not conceive of the invention he was attempting to patent, nor did any other natural person. The invention, however, undeniably exists, and if conception is indeed the “touchstone of inventorship,” we might ask ourselves who, if not Thaler’s AI system, could have done the conceiving. 

When statutory interpretation based on ordinary meaning is at best, ambiguous, it is worth looking at the broader statutory context. Specifically, one must examine Congress’s intent in crafting what is both the most recent reform to the Patent Act at the time of writing and the legislation that introduced the term “individual.” The Leahy-Smith America Invents Act of 2011 substantially reformed the existing Patent Act with a first-to-file rather than first-to-invent system, new procedures for patent application reviews, and the expansion of prior user rights. This legislation also established the aforementioned definition of “inventor” as “the individual(s)… who invented or discovered the subject matter of an invention.” Reviewing the legislative debate, this definition seems to have been added merely to ensure that upon the introduction of a first-to-file system, applicants would still be tasked with proving they truly invented what they were trying to patent; they would just need to prove that they invented it first. In other words, the definition was not included with the intention of restricting the entities who could access inventorship. Rather, it was included to restrict ‘inventor’ to an authentic source of invention.

Congress almost certainly did not intend to exclude AI systems through the use of the word “individual.” Although 2011 saw advancements in AI image recognition and natural language processing, the subject remained an academic niche and was never mentioned in the years of legislative debate that preceded the America Invents Act. Indeed, AI only gained significant attention in US political discourse a decade later, when Andrew Yang made its potential to disrupt the labor market a key issue in his 2020 presidential campaign. Congress likely did not foresee that AI systems would ever demand consideration in questions of inventorship. The 2011 law, then, gives no specific answer to the question posed by Thaler. If anything, the exigency for the America Invents Act—articulated as to promote economic growth, global competitiveness, and scientific progress—implies that this Congress may have been amenable to AI inventorship, were it a pressing issue at the time. 

If congressional intent regarding AI is also ambiguous, the Patent Clause of the Constitution may provide insight. Article I, Section 8, Clause 8 of the Constitution gives Congress power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This clause is  clearly intended to promote innovation and is purposefully vague, as the Founders knew they could not predict how or what inventions would be made hundreds of years in the future. The only specifications made here are that patents can be granted to “authors and inventors” for “writings and discoveries.” This language does not preclude the possibility of AI inventorship, and it may even be interpreted as a deliberate way to account for the ever-changing landscape of innovation without requiring constant legislative amendments. Of course, the Founders likely thought that “authors and inventors” included only natural people, since no other beings at their time would count as inventors. More historical context would be needed to answer this definitively, but the ambiguity I have isolated is sufficient to show there is still room to think that AI inventorship is not beyond the congressional or constitutional pale.

Ambiguous statutory context ought to guide courts in the direction of affirming AI inventorship, or at least practicing judicial restraint. New technology and statutory opaqueness demand clear congressional input, and the courts risk overstepping their boundaries into legislative territory if they ignore this. As the innovative potential of AI systems becomes more apparent and legal scholarship in the field advances, we should not expect Thaler to be the final word on this matter. 

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

Following Dobbs v. Jackson’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, the Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that  “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey, leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida, a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989), stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

Smoke Without a Fire: Gainer’s Overextension of Pennsylvania Gun Law

Anna Ferris

Commonwealth v. Gainer (2010) came before the Superior Court of Pennsylvania to determine how gun operability ought to factor into judgments for defendants accused of unlawfully possessing a firearm. Tarvus Gainer was found guilty of owning a firearm without a license — despite testimony from a weapons expert that he would need access to a sophisticated power tool in order to make the gun capable of firing any projectiles. I posit that Commonwealth v. Gainer was incorrectly decided because the Superior Court overextended the definition of an “operable” firearm without adequate evidence from the state showing Gainer was actually capable of returning the gun to fireable condition.

It first fell to the Pennsylvania courts to elucidate the role of the word “operable” in Commonwealth v. Layton (1973). After being found guilty of owning a gun as a Person Not to Possess a firearm, Layton appealed his case on the grounds that the weapon was incapable of firing a shot, and that he had no means of restoring the gun to operable condition. On appeal, the Supreme Court of Pennsylvania ruled that if the object in question cannot fire a projectile, the possessor cannot be charged with owning a gun unlawfully. Further, because Layton had no demonstrable ability (neither the tools or the know-how) to actually fix the broken gun, the Court ruled that he couldn’t be convicted of firearm possession at all; nothing differentiated the gun from a similarly-shaped, but innocuous, lump of metal. This precedent stood until 2010, when Gainer tightened the definition of “firearm” to include any gun that may be made operable by any means — even those requiring the use of heavy machinery.

Under Pennsylvania law, no one may carry a firearm without a license, and people labeled “Persons not to Possess” — usually for previous felonies — are not able to obtain a license at all. These restrictions are laid out in 18 Pa.C.S.A. § 6106. Note, though, that the statute contains no language about weapon operability. Because of this omission, whether or not a nonfunctional weapon can still be classified as such is a significant legal debate within the state. Another complication is that operability falls on a spectrum: how fixable is the gun, and what tools or knowledge would repair demand? Without any specific language in the statute, judges in Pennsylvania have been left to draw lines in the sand, leaving defendants at the mercy of seemingly arbitrary regulations on what really counts as a firearm.

How does this apply to Gainer? According to the precedent set by Layton, Gainer’s weapon should not qualify as a “firearm” at all because of its inability to fire a bullet. To be able to restore the gun, Gainer would have needed to sand down a large steel burr which prevented a cartridge from being inserted. When the Superior Court decided to move beyond the boundaries of existing precedent, they reasoned that Gainer could theoretically have modified the gun to return it to working condition. Yet Gainer had taken no steps to do so, and the weapon was unfireable upon the defendant’s arrest. The Commonwealth’s only proof that Gainer might have had access to tools that could restore the gun to working condition was the fact that the weapon’s serial number had been smoothly removed, which may have required some similar “grinding” tool. This is shaky, circumstantial evidence at best. After all, the gun was unregistered; it could easily have been a “ghost gun” bought through the illegal street trade, where it would have passed through many hands before reaching Gainer. Any of the previous owners might have removed the serial number, and the Commonwealth failed to provide compelling reasoning that it was Gainer who modified the weapon. It is even feasible that, for instance, a simple hand-held sanding tool was deployed to remove a serial number from a gun, but this machine would not be capable of grinding through the multiple centimeters of steel required to remove (even clumsily) the burr which incapacitated Gainer’s firearm. 

This simple hypothetical scenario casts serious doubt on the claim that removal of the serial number demonstrates an ability to make the firing portion of the gun operable. The weapons expert testifying for the Commonwealth admitted that a novice gun owner (like Gainer, who had no license or demonstrated history of ever owning another firearm) probably wouldn’t understand the issue with the weapon in the first place: “I don’t know if, you know, a layman could look and say oh, that’s the burr caused from dry firing.” These objections to the Commonwealth’s argument demonstrate just how much the Superior Court stretched the definition of “operability” and relied on assumption in making the Gainer decision. The Court moved too far beyond the standard of operability defined in Layton, effectively rewriting 18 Pa.C.S.A. § 6106 to contain detailed language about firearm function not discussed in the statute itself. 

By contrast, New York’s People v. Longshore (1995) produced a much more reasonable outcome under similar circumstances. Longshore established that the state must prove the firearm in question is actually able to fire a projectile (as opposed to potentially operable in the future, given the use of power tools) in order to obtain a conviction. The evidence presented in Gainer proved the opposite but ended with a felony conviction; clearly, the Pennsylvania court’s definition of operability extends beyond rational interpretation of the word.

Regardless, Gainer is good law at the time of writing, so it is worth investigating some of the real-world implications of this highly theoretical debate over “operability.” Gainer’s strictness might have an unintuitive impact: it could put strain on Pennsylvania’s criminal justice system, overburdening public defenders and negatively impacting low-income citizens. A majority of attorneys seeking to defend clients on trial for gun crime are county-appointed public defenders. According to a report from the U.S. Department of Justice, 82% of all accused felons are represented by public defenders. In Pennsylvania, possession of a firearm by a Person not to Possess, possession of a firearm with the serial number removed, and possession of a firearm without a license are all felonies, meaning punishment can easily entail jail time. These statistics provide a small window into the fact that the disadvantaged, and their public attorneys, will bear the brunt of punishment for stricter gun laws. Obviously, more cases will go to trial if more difficult-(but not wholly impossible)-to-fix firearms are deemed “operable,” directly causing an increased workload for the Office of the Public Defender (OPD). This means each client will have less time devoted to his or her case, and it also requires more in-court time (i.e., less preparation time). It is not difficult to imagine what comes of further burdening the already-overworked OPD: reduced quality of defense, longer waiting times for those seeking free representation, and an ever-wider outcome gap between those defended by private versus public attorneys. Gainer’s potential impact on the least-resourced defendants in the legal system seems contrary to the imperative that no citizen should face prison time for lack of adequate representation. 

By uprooting the precedent set in Commonwealth v. Layton, Commonwealth v. Gainer fails to uphold the rigorous standard of evidence to which we should hold our prosecutors accountable. Without being able to prove that Gainer had access to a metal-grinding tool (or, indeed, the ability to use such an implement should he come into possession of one), the Commonwealth won a new gun operability precedent that continues to greatly disadvantage the defense in gun cases. Even viewed in “the light most favorable to the Commonwealth,” the evidence does not add up to conviction “beyond a reasonable doubt.” Gainer should be overturned, and the Layton precedent should be returned to its definitive role in Pennsylvania firearm law.