Roundtable #29: Authority and Its Limits: Comparative Perspectives on the State and its Boundaries
Section I: Surgical Castration and the Eighth Amendment: The Constitutional Argument for Its Use in Aggravated Sexual Crimes Against Minors
On August 1, 2024, a Louisiana law went into effect allowing judges to order defendants found guilty of certain sex crimes against minors to undergo castration. Surgical castration involves a physician removing a person’s testicles, resulting in a permanent reduction in the production of testosterone. Since testosterone is linked to libido, the goal of the Louisiana law is to limit the drive that compels sexual predators to abuse minors. However, the discretion granted to judges making such sentences in sex-related convictions raises issues regarding consent, permanence, and the effectiveness of the procedure. This has led some legal scholars to view punitive castration, as permitted by Louisiana, as unconstitutional. However, when examining the constitutionality of the law as well as the state’s substantial interest in reducing the recurrence of sexual offenses, there is some degree of legal permissibility for taking this aggressive course of punitive action.
When assessing the constitutionality of legal punishment, the courts have historically looked to the language of the Eighth Amendment. The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” To understand if surgical castration abides by the amendment, it must be examined whether it pertains to cruel or unusual punishment. The Court has argued that a punishment becomes cruel or unusual if it is grossly disproportionate to the crime. In Solem v. Helm (1983), the Court ruled that a sentence of life without parole for a minor convicted of a non-felony offense is disproportionate, given that life without parole is typically a punishment reserved for the most egregious offenses where the defendant is deemed a substantial risk to public safety if allowed out of prison. Looking at sex offenders, the gravity of the offense—particularly the abuse of minors—inflicts profound and often lifelong harm on the victim, which range from psychological trauma to long-term developmental, emotional, and relational injuries. “Thus, this could reasonably be viewed as a serious crime that might warrant castration. When examining the severity of the offense, castration would be proportional to the nature of the criminal offense.
However, issues arise depending on the degree of the sexual offense. The Louisiana law specifies adults found guilty of aggravated sex crimes, including rape, incest, or molestation, where the victim was under 13 years old. The narrow construction of the law prevents judges from requiring those convicted of low-level sexual offenses to undergo surgical castration, where, in those cases, it would be disproportionate to the severity of the crime.
Moreover, the Court has also applied the “evolving standards of decency” test when determining if a punishment is cruel and unusual. In Trop v. Dulles (1958), the Court argued that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” There is a growing consensus, catalyzed by movements raising awareness about sexual abuse, that sexual predators who target minors are abhorrent and deserving of severe punishment as a means to protect the health and safety of the public. While the offense itself has widespread demands for strict punishment, courts generally look at evolving trends surrounding the punishment in question rather than societal demands.
The issue here is the limited quantitative data on public opinion regarding castration for sexual offenders makes it difficult for the courts to assess whether the general public today views such a punishment as morally acceptable. Many global human rights groups, such as the Hastings Center for Bioethics and the Marshall Project, have objected to castrating sexual offenders. With the understanding that rape is a terrible crime, these organizations argue that castrating rapists is an unjustifiable and unethical solution to the issue of sexual abuse. However, these global human rights groups led by academic experts are not representative of the general population. Due to the lack of data on public opinion regarding castration, courts struggle to apply the evolving standards of decency test as it pertains to castration, but they should consider how strong public support for aggressive action against sexual offenses could make surgical castration an acceptable solution under the legal test.
It is also essential for a punishment to serve a valid state purpose, such as deterrence. Since testosterone is linked to sexual impulsivity that can facilitate sexual abuse, surgical castration may deter individuals who have previously committed aggravated sexual offenses from repeating them. This introduces a possible avenue to reducing recidivism rates among convicted sexual offenders once they are released on parole. Studies on surgical castration performed on sexual offenders in Europe report low recidivism with rates ranging from 2–5%. This presents a drastic difference from the 50–84% recidivism rates observed among sexual offenders who were not punished in this way.
However, this argument relies on the belief that sexual impulsivity is what prompts people to rape. Rape is, at its core, a crime centered on exerting control and power over another person. The sexual act is merely the instrument through which the offender asserts control and dehumanizes the victim. Even if rape is centered around power rather than sexual desire, castration still strips the perpetrator of a central means of carrying out that domination by preventing them from weaponizing their sexuality to inflict harm. Given its ability to deter the repetition of aggravated sexual battery, this punishment arguably serves a legitimate purpose. The Court has a substantial interest in preventing minors from harm, and for those identified by the justice system as guilty of aggravated sexual offenses, this punishment allows the state to advance that substantial interest.
A legally feasible challenge that Louisiana’s law may face is that the punishment produces permanent bodily harm, which the courts may view as a “cruel punishment.” Globally, there is a historic precedent against surgical procedures which alter the genitalia beyond male circumcision. For example, female circumcision has been widely condemned by the World Health Organization and has been branded as “mutilation.” The connection between surgical alterations of an individual’s reproductive anatomy and mutilations may dissuade the courts from protecting this form of punishment as part of a criminal’s sentence.
However, there is a clear distinction between genital mutilation and castrations authorized under Louisiana law. Female circumcision serves no legitimate purpose. Often, advocates for female circumcision justify the act as preserving the morality of women, a purpose that is rooted in misogyny and adversely alters the female sexual anatomy. On the contrary, surgical castration for sex offenders serves the purpose of deterring future acts of sexual harm, a legitimate purpose that protects the safety of the broader public. The reason that male circumcision is protected by many people and medical organizations is due to a combination of proven health benefits, and thus serves a legitimate purpose. The distinction between male circumcision, which yields genuine benefits that female circumcision lacks, is why they vary in acceptability.
Because surgical castration has disproportionate benefits for society, it can be considered a legally sound surgical intervention, as it implores the same logic used to justify legal protections of male circumcision. While fears of castration turning into reproductive mutilation are valid, the public safety benefits of surgical castration would likely prevent it from falling into the category of socially and legally unacceptable physical alterations of genitalia in the same way female circumcision is classified as. Moreover, Louisiana also allows predators to choose between surgical castration or an extended sentence. The consensual nature of the punishment further limits its classification as cruel or unusual.
Ultimately, while surgical castration represents one of the most severe punishments available in the American criminal system, Louisiana’s statute can be defended as constitutionally permissible. The law’s narrow application to aggravated sex crimes against minors and alignment with the state’s substantial interest in preventing future harm weighs against categorizing it as “cruel and unusual” as defined by the Eighth Amendment. Although ethical objections and the absence of clear public opinion data complicate the analysis, the proportionality and legitimate purpose provide a strong constitutional justification for this controversial yet reasonable state action.
By Ayodele Ayoola
Edited by Gabi Fabozzi
Section II: Democratic Backsliding in Hong Kong Following the 2020 National Security Law
In June 2019, various protest groups in Hong Kong assembled to protest against a proposed extradition law, which would have sent criminal defendants to mainland China to be prosecuted. In some cases, the protests amounted to up to two million peaceful protesters. In response to these nonviolent demonstrations, the Chinese government bypassed Hong Kong’s independent legislature and implemented the National Security Law. This law, with its vague language, stringent threshold for bail, and system of specially appointed judges, has since been used to convict people for exercising their rights to freedom of expression, opinion, and peaceful assembly.
Following the implementation of the National Security Law, Hong Kong also revived a colonial-era sedition law that had been dormant for decades. Hong Kong’s Article 23 law, originally introduced by the British colonial government to target anti-colonial activities and dissenters, defines sedition broadly, punishes anyone who incites “hatred or contempt or excites disaffection” against the government, or who raises discontent among Hong Kong people, even without incitement to violence. This directly contradicts the standards expressed in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 19 of the Universal Declaration of Human Rights (UDHR), which both state that everyone has the right to hold opinions without interference and to seek, receive, and impart information and ideas of all kinds. Article 19 of the ICCPR also restricts the circumstances under which the right to freedom of expression can be limited, stating that limits must be legal, pursue a valid aim under Article 19, and be necessary and proportionate. Through the criminalization of the legitimate exercise of free expression and the decrease in judicial autonomy in cases pertaining to freedom of expression, Hong Kong is both violating international human rights standards and experiencing democratic backsliding.
Under Article 39 of the Basic Law, Hong Kong’s constitutional document, the provisions of the ICCPR retain the force of domestic law. The justiciability of the ICCPR in Hong Kong is further protected by the Hong Kong Bill of Rights Ordinance, enacted in 1991, which incorporates most of the ICCPR’s rights directly into the statute law. The ICCPR guarantees everyone the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds. It also obligates states to take extreme care to ensure that sedition laws conform to the strict requirements of legality. However, with its implementation of the 2020 National Security Law and its reintroduction and contemporary interpretation of its colonial-era sedition law, Hong Kong violates this standard by actively suppressing its promised freedom of expression.
This flagrant disregard for human rights standards was demonstrated in June 2020 during the “Hong Kong 47” case, in which 47 pro-democracy activists were arrested and charged under the National Security Law for organizing and participating in unofficial “primaries” for the 2020 Legislative Council elections. In the main trial judgment, the court held that the primary election was one step in a “larger scheme” to obtain a majority in the Legislative Council, Hong Kong’s unicameral legislature. They would then veto all budgets and public expenditure bills, forcing the Chief Executive to accede to the “Five Demands,” a set of protest goals that emerged during the anti-extradition bill protests. In this case, the judges reasoned that, under Articles 22 and 23 of the National Security Law, anyone who, “by force or threat of force or other unlawful means,” interferes with or undermines the performance of duties and functions by state organs could be punished. This case deemed classic forms of political participation, such as peaceful political speech, journalism, and symbolic acts like wearing clothing with slogans or singing protest songs, as “unlawful.” This application of the National Security Law represents the Hong Kong government’s increased control over the activities of its constituents.
Another key case is HKSAR v. Tong Ying-kit (2021), where Tong, a Hong Kong civilian, was sentenced to nine years for carrying a protest slogan that read “Liberate Hong Kong, Revolution of Our Times” and refusing to stop at police checkpoints. In its judgement, the Court of First Instance held that, in the political context of July 1st, 2020, that slogan was “capable of inciting others to commit secession” and concluded that Tong was intending to communicate a separatist message to the public. On this basis, Tong was convicted of inciting secession and terrorist activities, with the court characterizing his conduct as a deliberate challenge to the law and order rather than protected symbolic speech. International free-speech standards on “incitement” demand a close, causal link between the expression and a real risk of imminent lawless action, particularly violence, which was not identified in Tong’s case. In fact, there was no evidence that anyone in the crowd was prompted by the slogan to attempt secessionist acts or violence against the state, making the conviction a clear violation of international human rights standards.
During this period, Hong Kong-based journalists also began experiencing harassment and online intimidation. In April 2024, ten journalists and press freedom advocates were detained in Hong Kong. Article 54 of the National Security Law requires Hong Kong authorities to “strengthen the management of and services for” foreign news agencies. In practice, this has led to the heightened scrutiny of foreign correspondents and tighter controls on international NGOs. This article has been accredited by press-freedom groups and governments for the growing pattern of denied or non-renewed visas for foreign journalists. The suppression of international commentary on the political state of Hong Kong represents a shift from independent media functioning under ordinary rule-of-law safeguards to one where foreign journalists and NGOs operate under political control. Not only does this expand the government’s ability to limit freedom of expression, but it also represents censorship and the suppression of available information available to citizens.
Article 14 of the ICCPR guarantees the right to equality before courts and tribunals and to a fair trial in both criminal and civil proceedings. Given that the ICCPR is legally binding for Hong Kong, Article 44 of the National Security Law directly violates the ICCPR by granting the Chief Executive the authority to designate the incumbent magistrates and judges responsible for adjudicating “national security” cases. By doing so, Hong Kong fails to maintain proper judicial autonomy.
The National Security Law also requires the Chief Executive to exclude from consideration any judges who have made statements or behaved in a manner deemed to “endanger national security.” Considering Mainland China's immense involvement in Hong Kong politics, this caveat is easily taken advantage of to remove judges who are not likely to rule in favor of China. Given China’s use of state censorship to maintain the rule of the Chinese Communist Party, curb political opposition, and prevent collective action and social unrest, it can be assumed that judges empowered by the Chinese government would uphold the same stringent restrictions on freedom of expression.
Since the implementation of the National Security Law, many overseas justices have stepped down from Hong Kong’s Court of Final Appeal, the city’s highest appellate court with final judicial authority. Lord Sumption, who resigned shortly after the conviction of the “Hong Kong 47”, described the “paranoid atmosphere” created by China in Hong Kong, stating the rule of law was under “grave threat.” In his statement, Lord Sumption further described Hong Kong as a totalitarian state where the rule of law is profoundly compromised whenever the government feels strongly about an issue. Specifically, he wrote, “the judgment on the 30[th] of May against the 14 democracy activists was a major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds.” The mass resignation of judges is a clear indicator that Hong Kong is no longer upholding an independent judicial system that protects judges and allows them to make decisions free from interference.
Ultimately, the erosion of free expression and judicial independence in Hong Kong reflects a decisive shift away from the rights and protections guaranteed under both the Basic Law and the ICCPR. By criminalizing peaceful political participation and dissent through the National Security Law and the revival of the sedition ordinance, Hong Kong has undermined the freedoms it is legally obligated to protect. Together, these developments reveal a legal and political environment in which democratic participation is discouraged, critical voices are silenced, and the courts can no longer operate autonomously. If Hong Kong is to restore trust in its institutions and safeguard the rights of its people, it must reverse these trends and reaffirm its commitments to both international human rights law and the principles of open, accountable governance.
By Anonymous Writer
Edited by Gabi Fabozzi
Section III: Deregulation, Digital Platforms, and Executive Power: Recalibrating U.S. Merger Control under Trump
Merger enforcement in the United States has long reflected the prevailing political economy of the moment, swinging between expansive interpretations of antitrust law and periods of deference toward market consolidation. Under President Biden, the Department of Justice (DOJ) and Federal Trade Commission (FTC) embraced an unusually interventionist posture. The agencies asserted that decades of lax enforcement had allowed dominant firms, especially in the technology field, to entrench their power.
During the second Trump administration, however, merger control has undergone a rapid recalibration. The federal government has shifted from aggressive stances on mergers and acquisitions with Trump’s repeal of Biden-era executive orders. In particular, a 2021 Executive Order directed federal agencies, such as the FTC and the DOJ, to scrutinize mergers and target consolidation in agriculture, tech, telecommunications, and internet platforms. As executive power transitions from Biden to Trump, the U.S. M&A landscape is becoming more permissive, particularly for large and technology-focused transactions. While this shift toward a laxer M&A regulatory environment resembles past pro-business Republican transitions, unique historical forces—like digital platform power, post-pandemic dealmaking pressures, and emerging international competition—raise new questions about the adequacy of party-driven policy swings in safeguarding market competitiveness.
The Biden administration’s aggressive merger enforcement fundamentally changed the legal landscape for Big Tech and its dominant market players, as embodied by the 2023 Merger Guidelines and landmark cases against companies like Google. The 2023 Merger Guidelines lowered concentration thresholds, placed an emphasis on “dominant” firms and “nascent competitor” acquisitions, and included close scrutiny of labor market effects, multi-sided platforms, and minority ownership and partial acquisitions. Under these standards, mergers resulting in a market share above 30% or a post-merger Herfindahl–Hirschman Index, an index measuring market concentration, score of above 1,800 were presumably unlawful. These thresholds were significantly lower than those applied by prior Democratic or Republican administrations.
In the United States v. JetBlue/Spirit (2023), the DOJ successfully blocked the transaction under Section 7 of the Clayton Act, arguing that eliminating Spirit, the largest ultra-low-cost carrier, would “substantially lessen competition” in multiple regional markets. The court accepted the DOJ’s claims that this merger would have resulted in tens of millions of travelers being faced with higher fares and fewer choices, ultimately protecting consumers “who otherwise would have no voice.”
If the failed JetBlue and Spirit merger showcased Biden’s structuralism in traditional industries, DOJ v. Google extended that philosophy into digital-platform markets, specifically Big Tech. DOJ v. Google (2023–2025) marked a historic application of Section 2 of the Sherman Antitrust Act, with Judge Amit Mehta finding that Google maintained unlawful monopolies in search and digital advertising. Google held 90% of the market share for desktop searches and 95% of the market share for smartphone searches. This excessive market dominance was reinforced by multiple exclusive default contracts with smartphone manufacturers and browsers. Mehta’s ruling ordered restrictions on such contracts and enhanced access to Google’s ad-tech data.
The transition back to a Trump administration marks a clear pivot. Within months, the DOJ and FTC began signaling a retreat from the Biden-era standards. Initial signals under Trump’s administration pointed to the DOJ being willing to challenge deals that are anticompetitive: the DOJ's January 2025 lawsuit to block Hewlett Packard Enterprise’s (HPE) $14 billion acquisition of Juniper Networks, as HPE’s and Juniper Networks’ combined share would be just over 30%. Regardless, with Trump’s flexibility in interpretation of Biden’s 2023 Merger guidelines, the DOJ ultimately settled, and HPE successfully acquired Juniper Networks in July 2025. Other transactions, such as Google/Wiz, CoreWeave/Weights & Biases, and Getty Images/Shutterstock, within only the first few months of Trump’s administration, reflect the shifting climate of M&A towards decreased enforcement of anticompetitive ideologies. Only a few years ago, under the Biden administration, these large-scale and often AI-adjacent transactions would have faced intense skepticism.
Under previous Republican presidencies, such as Ronald Reagan, they placed “consumer welfare” as the main goal of antitrust enforcement. Under Assistant Attorney General for Antitrust J. Paul McGrath’s advisory, this was enforced through the updated 1984 merger guidelines. In contrast to its predecessor, the 1968 guidelines, the 1984 guidelines encouraged mergers as their primary benefit was their “efficiency-enhancing potential,” which increases competition and results in lower prices to consumers. While President George H.W. Bush refined the guidelines in 1992, he did not change the core tenet of consumer welfare.
What distinguishes Trump’s second-term antitrust posture from previous GOP leadership is the presence of direct presidential control over independent agencies alongside his championing of the tech and AI sectors. The apparent paradox between Trump’s anti‑regulation executive orders and record levels of tech and mega‑deal activity is not a contradiction but a defining feature of his second-term agenda. In this administration, ‘competition’ is pursued by deregulating and centralizing control over agencies, while merger enforcement retreats to a narrow band of traditional horizontal cases, leaving the bulk of platform and AI consolidation to proceed with limited scrutiny.
On April 9, 2025, Trump issued EO 14267, Reducing Anti-Competitive Regulatory Barriers, framing regulation as the anticompetitive threat. Thus, he proposes that agencies, in consultation with the FTC and Attorney General (both of which are appointed by President Trump himself and confirmed by a Republican majority Senate), complete a review of regulations and identify those that create de facto or de jure monopolies, unnecessary barriers to entry for new market participants, and other causes that limit competition. Agencies now will focus their energies on deregulating sectors such as housing, transportation, food and agriculture, healthcare, and energy. However, what’s even more alarming is Trump’s EO 14215 Ensuring Accountability for All Agencies, asserting strong presidential supervision over “independent” agencies, including the FTC, while eliminating statutory protections that prevent members of such agencies from being removed. Since then, President Trump has removed two Democratic FTC commissioners without cause. Precedent established by the 1935 Supreme Court case Humphrey's Executor v. United States, which held that a president could only remove members of independent agencies for "cause," such as "inefficiency, neglect of duty, or malfeasance in office.” Additionally, U.S. District Judge Loren AliKhan ruled against the removal of FTC commissioners until the case escalated to the Supreme Court. Ultimately, the court granted President Trump’s dismissal of the FTC commissioner without cause as a part of their “emergency docket.” By weakening protections for FTC commissioners and routing agency rules through the White House, the current Trump administration has demonstrated that merger enforcement priorities will track presidential preferences rather than longer-term institutional consensus.
Alongside this selective enforcement of merger control, the emergence of artificial intelligence and the global race to monetize the technology have led to Trump announcing a new policy initiative in July 2025, Winning the Race: America's AI Action Plan. The plan focuses on accelerating AI innovation, building American AI infrastructure, and leading in international AI diplomacy and security. Trump’s deregulatory approach dismissed the proposed state enforcement of AI-related laws for ten years under the House Budget Bill and instead directs federal agencies to consider state AI regulatory frameworks. These strategic moves strengthen the position of current digital platforms and lower the regulatory risk of consolidation in AI-critical markets.
Ultimately, Trump’s M&A landscape has consolidated power over merger enforcement in the executive branch through its supervision of independent agencies at precisely the moment when digital platforms and AI infrastructure are consolidating in the marketplace. The second Trump administration raises doubts about whether party-driven swings can ensure stable competitive conditions.
By Stephen Lin
Edited by Gabi Fabozzi
This piece was reviewed and finalized by Qizhen (Kiara) Ba, Ananya Bhatia, and Lukas Roybal.