Online Journal — Columbia Undergraduate Law Review

SEC v. Ripple: The Regulation of Cryptocurrencies as Securities

Securities and Exchange Commission v. Ripple—a current case regarding the legal status of cryptocurrency—could be taken to the Second Circuit Court of Appeals (if not the Supreme Court) and set a precedent for the amount of jurisdiction that the U.S. Securities and Exchange Commission (SEC) holds over future cryptocurrency transactions. [1] Because this case could designate a new legal “guardian” for cryptocurrency, it has generated significant interest within the cryptocurrency community. [2] However, an evaluation of cryptocurrency against the standards established in the 1946 Supreme Court case Securities and Exchange Commission v. W. J. Howey Co. points to an ambiguous legal future for cryptocurrency. XRP, the cryptocurrency at issue in Ripple, appears more likely to satisfy the Howey test due to the centrality in its distribution and its exhibition of vertical and horizontal commonality. Thus, despite the furor regarding this case, the final decision in Ripple may not constitute a conclusive legal determination for all cryptocurrencies.

Skylar WuJanuary 19, 2022cryptocurrency, Ripple, securities regulation, Defi

Rectifying Bad Precedence: A Re-Examination of Strickland v Washington (1984) in New York State Courts

Gideon v Wainwright (1963) is a landmark Supreme Court case that incorporated the Sixth Amendment through the Equal Protection Clause of the Fourteenth Amendment, requiring states to provide public defenders to criminal defendants that cannot afford counsel. [1] However, since the Supreme Court’s ruling, it has been commonly observed that defendants receive less than effective representation from counsel, as public defenders are often stretched too thin and forced to grapple with enormous case loads, back-to-back trials, and abysmal funding by the state. Attempting to rectify this, the Supreme Court defined “effective assistance of counsel” in Strickland v Washington (1984), with the majority opinion adopting a loose set of requirements public defenders should meet. [2] This, however, has spawned its own issues. As Justice Marshall’s dissenting opinion predicted, the Court’s attempt to define counsel ironically exacerbated the issue by allowing courts to determine that lawyers have met the criteria of effective counsel without actually having provided it. Therefore, revisiting Strickland reveals that the Strickland test has done more harm than good, the dissenting opinion should have been considered more seriously, and the Supreme Court has a responsibility to rectify the injustices it has caused through this decision.

Jake PetrilloJanuary 19, 2022civil rights, precedence, justice system, sixth amendment, right to counsel

The Andy Warhol of Cryptocurrency: Legal Pursuit of Non-Fungible Tokens

The works of Andy Warhol are known for their popular element and pragmatic flair. Not unlike blockchain technology, the repetitive faces of Marilyn Monroe are an appealing democratization of society’s likenesses. Indeed, both pose questions about cultural and individual copyright, and whether popularity excuses infringements on ownership. Cryptocurrency has given birth to a new form of technology responsible for enormous growth in the art trade and an accompanying slew of legal discrepancies. Non-fungible tokens, or NFTs, are a revolutionary kind of digital ledger that allows creators of art and music to tokenize unique online assets of their work. [1] Yet they come almost as an anachronism to a legal environment not entirely prepared to regulate them. [2]

Henry WagerJanuary 19, 2022NFTs, art, intellectual property law, copyright law

Hostile Architecture meets COVID-19: Why Anti-Homelessness Laws Must be Re-evaluated

In 2019, the U.S. Supreme Court refused to hear an appeal to the Ninth Circuit Court of Appeals’ decision in Martin v. Boise (2018), which asserted that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” [1] The Supreme Court’s refusal renders the Martin decision final, setting a national precedent for the civil rights of those experiencing homelessness. However, the increased presence of hostile, or anti-homelessness, architecture in urban areas still inhibits the homeless individuals’ access to public spaces, essentially placing criminal sanctions on one’s status of homelessness. The COVID-19 pandemic increases the vulnerability of the homeless population by increasing financial instability and limiting shelter capacity. The Martin v. Boise decision does not explicitly protect those experiencing homelessness from anti-homeless architecture; however, its basis on the Eighth Amendment’s protection from cruel and unusual punishment suggests that hostile architecture similarly violates the Eighth Amendment rights of those experiencing homelessness. Hostile architecture must be explicitly challenged in courts to protect the rights of those experiencing homelessness during this particularly exigent time.

Munirat SuleimanJanuary 18, 2022hostile architecture, homelessness, eighth amendment, COVID-19

The Clean Air Act and Space Tourism: A Case Study in the Ambiguous Standards for Resolving Statutory Conflict

With the acceleration of man-made global warming, environmental regulatory frameworks have come under severe scrutiny for not tackling climate issues with enough urgency. The advent of space tourism presents even greater challenges, since environmental regulations must now encompass innovations they were never intended to govern. At the center of this ambiguity is the Clean Air Act (CAA), the landmark 1970 law responsible for regulating U.S. atmospheric pollutants. The CAA laid the groundwork for the Environmental Protection Agency (EPA) to establish air quality standards for a variety of pollutants, including particles whose environmental implications were discovered after the law’s passage. Notably, the CAA does not explicitly regulate any emissions sources, but rather establishes different standards based on the classification of the emission source as either stationary or mobile. [1] However, the growing space tourism industry raises new concerns about the CAA’s regulatory prowess, because space rockets exhibit characteristics of both mobile sources (lower emissions standards) and stationary sources (higher emissions standards). Yet, the CAA does not include a resolution for potential mobile-stationary source classification overlap. [2] Given that technology moguls such as Richard Branson intend to expand space tourism thirty-fold in the next decade, space tourism has the potential to become one of the main contributors to greenhouse gas emissions in the near future. Hence, the classification of rockets as mobile or stationary is incredibly consequential. [3]

“Mood Forever”: Rethinking Fair-Use Cases in the Age of Social Media

In 2019, model Emily Ratajkowski faced a copyright lawsuit from photographer Robert O’Neill. O’Neill, a paparazzi photographer, had taken a street photograph of Ratajkowski. Ratajkowski later reposted the photo on her Instagram story, a feature of Instagram where one can temporarily post a picture for 24 hours, with an additional caption superimposed over the photo stating “mood forever.” [1] Under Section 106 of the Copyright Law of the United States, O’Neill held the exclusive right to authorize the reproduction of the photograph. Citing this exclusive right, O’Neill subsequently filed a complaint against Ratajkowski for her “unauthorized reproduction” of the photograph. However, Section 107 of copyright law outlines certain exceptions that fall under the category of “fair use,” stating that if the original work is reproduced “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then the reproduction does not constitute copyright infringement. [2] Ratajkowski’s lawyers argued that the Instagram story is fair use. In the photograph, Ratajkowski holds a bouquet of flowers over her face, blocking her face from paparazzi; in her repost, Ratajkowski also adds the text “mood forever.” Ratajkowski’s lawyers thus argued that the addition of the text transformed the photograph into a critique of the “abusive, aggressive, and harassing practice of paparazzi.” [3]

Phoebe LuJanuary 18, 2022social media, fair-use, transformative-use, parody

Child Labor and the Human Rights Violations Embedded in Producing Technology

Every new Apple release comes with a media blitz about the new iPhone’s improved camera quality, the speed of the M1 processor chip in the latest MacBooks, or the sound quality of the next generation AirPod Pros. An Apple product’s design interface is carefully curated—all with the goal of arousing a feeling of sleekness and fashion in the consumer. However, despite Apple’s futuristic facade, its labor model is backwards and deeply problematic. Indeed, Apple’s cobalt batteries are built on the backs of child labor in mines, causing severe physical harm to children and violating international standards of human rights.

Amogh DimriJanuary 18, 2022technology, children, children’s rights, human rights, child labor

HIPAA Constraints on Brain Fingerprinting Evidence in Criminal Court: Pitfalls & Possibilities

Orwellian fears of mass-government use of neurotechnologies and the rise of a “thought police'' are seemingly moving beyond fiction to the status quo. Novel neurotechnological applications have emerged in the courtroom, in public policy decision-making, and even in legal education through conferences and coursebooks. Municipalities are aware of this move: they have actively funded it. Sustaining this proliferation is millions of dollars worth of research grants from government agencies like The John D. and Catherine T. MacArthur Foundation. [1] Yet, these investments are not without reason. The current applications of neuroimaging technologies—namely fMRI, EEG, and PET scan evidence—are extensive and versatile when verifying the credibility of witness testimony. From proof of inability to waive Miranda rights to inability to form criminal intent, as well as evidence that certain plaintiffs are still experiencing pain after their accidents, the possibilities are endless. [2] The most recent development, the P300 EEG response tool, is already in use by the CIA, though details surrounding usage are currently undisclosed. [3]

Isabella SouzaJanuary 18, 2022HIPAA, neurotechnologies, EEG, privacy

Consequences of Plea Bargaining: In Consideration of the Rights of the Accused

As Americans currently look to reform the nation’s criminal justice system, with its high incarceration rates and immense racial disparities, plea bargaining is an important consideration. In a plea bargain, also known as a plea deal, the defendant agrees to plead guilty or “no contest,” in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence that is acceptable to the defense. In turn, this allows the defendant to receive a reduced sentence. [1] A plea bargain is a facet of the American criminal justice system that initially became commonplace in the 1920s in order to expedite the trial court process. The prevalence of plea bargaining is constantly being reexamined as the United States reconciles constitutional principles and legal precedent with historic prejudices in its criminal justice system.