by Tyner Helms

Obtaining meaningful employment is one of the most important aspects of life to people in this country. Fundamental to the “American dream” is the notion that if you work hard and apply yourself, you will be able to provide a good life for you and your family. This has become increasingly difficult in today’s society for individuals with a criminal background. Many employers ask about an applicant’s criminal history on job application forms. Furthermore, in the information age that we currently live in, businesses can easily access an applicant’s criminal record by conducting background checks. This is significant due to the fact that many employers have a policy of immediately disqualifying applicants with criminal records without taking into account the nature of the crime, the amount of time that has passed since the conviction, or the qualifications of the particular individual. A conviction is not always needed to disqualify an applicant from employment. Many job applications ask if the individual has merely been arrested for a crime, even if the charges were eventually dropped.[1]

Some restrictions only apply to applicants who have committed a felony, or that have actually been convicted of a crime. Many felony convictions have blanket provisions attached to them, resulting in non-violent, first time offenders to be grouped in with violent criminals.[2] In addition, a felony is a crime that is punishable by imprisonment for a period of one year or more, which includes many seemingly minor crimes.[3] For example, in Maryland, it is a felony to injure a racehorse, or to possess fireworks without a license.[4] In addition, some states have laws prohibiting licensing boards from issuing licenses to applicants with felony convictions.[5] This presents an enormous barrier to employment because the number of occupations subject to licensing has grown substantially in recent history. Doctors and lawyers are not the only professions that require a license. Many occupations that are attractive to “low-skilled workers” are not regulated by licensing boards, such as ambulance drivers, barbers, and contractors.[6] Although hiring policies of this nature are rampant among businesses, these restrictions are not limited to the private sector. Several states have placed an absolute ban on public employment for ex-felons, and other ban ex-felons from working for the state for a certain amount of time after their release from prison.[7]

Employment restrictions for people with a criminal background have faced equal protection challenges under the Fourteenth Amendment of the Constitution. Unless a statute burdens a “fundamental right” or discriminates against a “suspect” class of people, it will be evaluated using a rational basis review.[8] Under rational basis scrutiny, the statute will be upheld as long as it is rationally related to a legitimate government objective.[9] This is an extremely low standard to meet. Applying this analysis to the situation at hand, employment is not considered a “fundamental” right under the law, and felons are not a “suspect” class.[10] Therefore, a law banning ex-felons from employment only has to pass rational basis scrutiny. Protecting the health, welfare, and safety of the public is a legitimate government objective, and generally speaking, restrictions on employment for ex-felons is rationally related to achieving that purpose.[11] This means that employment restrictions on criminals have a high likelihood of succeeding against an equal protection challenge.

There does seem to be potential success in challenging these occupational restrictions under the Due Process clause of the Fourteenth Amendment. In Schware v. Board of Bar Examiners, the New Mexico Bar denied admission to an applicant partly because of his arrest record.[12] The Supreme Court held that there must be some rational relationship between the occupational qualifications of the bar and the applicant’s fitness and capacity to perform the job

to comply with Due Process, and reversed the bar’s exclusion of the applicant.[13]

The Equal Employment Opportunity Commission (EEOC) has issued regulations attempting to reign in the discriminatory hiring practices of employers. Under the EEOC, employers are prohibited from discriminating based on race, color, religion, sex, or national origin because it is considered disparate treatment.[14] However, individuals with a criminal record are not included in the protected categories of people under the guidelines.[15] As long as employers apply policies of disqualifying applicants with a criminal background neutrally, they will not violate the EEOC regulations. For example, if a business declines to hire an African-American person with a criminal conviction, it cannot choose hire someone who is white with a similar conviction.[16] The EEOC also prohibits discrimination by disparate impact, meaning that hiring practices that disproportionately affect protected racial or ethnic groups can potentially violate the regulations even if there is no intent to discriminate by the employer.[17] Although the disparate impact provision seems effective, employers can often get around it. Instead of disqualifying applicants based on the arrest or conviction itself, employer often consider the conduct underlying the arrest, concluding that such conduct makes the individual unfit to perform the job.[18] Minorities are particularly affected by this loophole because they are statistically more likely to be arrested or convicted than someone who is white.[19]

State legislatures have begun to make progress on this issue. Fourteen states have passed laws prohibiting public employers from having across the board bans on hiring people with criminal backgrounds, forcing them to consider the individual’s qualifications to perform the job.[20] Five states have similar regulations that apply to private employment.[21] In addition, twenty-one states have passed laws that force licensing boards to require a rational relationship between the licensed occupation and an applicant’s criminal record to justify denying him a license.[22] That being said, most states still allow employers to implement blanket bans on hiring applicants with an arrest or conviction, which leaves many people with enormous obstacles to employment.

Since the financial meltdown in 2008, finding a job has been more difficult than it has been in decades, and disqualifying someone simply because of an arrest, without taking into account other circumstances, only adds to the burdens of job hunting. Studies have shown that the most important factor in whether an ex-felon stays out of prison after his release is the ability to obtain meaningful employment.[23] It is understandable for employers to consider criminal convictions when making hiring decisions. Every business wants employees who are trustworthy and can perform the job competently. But applicants should not automatically be disqualified from employment because of an arrest without an analysis of the individual circumstances surrounding the criminal record. Instead, employers should consider factors such as the individual’s job qualifications, the type of crime committed, the amount of time that has passed since the conviction, and the behavior of the applicant since the conviction. Other possible solutions for these employment discrimination problems exist as well. Employers concerned about hiring someone with a drug-related conviction can condition employment on mandatory, random drug testing. State legislatures can prohibit employers from inquiring about an arrest on a job application if it did not lead to a conviction, or allow arrest records to be expunged if the charges were later dropped so that it will not show up on a background check. Lawmakers can also follow in the steps of almost half of the states and require a conviction to be related to the specific employment sought before allowing licensing boards to deny an applicant based on their criminal background. Retribution for wrongful acts is not the only purpose of the justice system. It is also aimed at rehabilitating people so that they can contribute to society in a positive way and pursue the benefits of freedom after they have been held accountable for their actions. To

say that someone with a criminal record is automatically unfit for employment is a slap in the face to our nation’s correctional system, and there remains much progress to be made to reverse this trend.

[1] Standards for Hiring People with Criminal Records, LEGAL ACTION CENTER (last visited October 25, 2015),

[2] Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1599 (2004).

[3] Id.

[4] Id.

[5] Id. at 613.

[6] Id. at 613.

[7] Id. at 612

[8] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 16-17 (1973).

[9] Id.

[10] Schanuel v. Anderson, 546 F. Supp. 519, 524 (S.D. Ill. 1982); see also United States v. McKenzie, 99 F.3d 813 (7th Cir. 1996).

[11] Hawker v. New York, 170 U.S. 189, 198 (1898).

[12] Schware v. Board of Bar Examiner, 353 U.S. 232 (1957).

[13] Id.

[14] EEOC Enforcement Guidance, U.S. Equal Employment Opportunity Commission (April 25, 2012),

[15] Id.

[16] Robb Mandelbaum, U.S. Push on Illegal Bias Against Hiring Those With Criminal Records, The New York Times (June 20, 2012), available at

[17] Id.

[18] Id.

[19] Id.

[20] Standards for Hiring People with Criminal Records, LEGAL ACTION CENTER (last visited October 25, 2015),

[21] Id.

[22] Id.

[23] Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1611 (2004).

Unanswered Questions: Same-Sex Marriage Rights in Alabama Post-Obergefell By: Akiesha Anderson

Unanswered Questions: Same-Sex Marriage Rights in Alabama Post-Obergefell

By: Akiesha Anderson


There is little argument against the claim that the Supreme Court’s decision in Obergefell v. Hodges[1] was both long-awaited and greatly appreciated by the LGBTQ community and their advocates. However, as time progresses the feelings of ecstasy associated with this victory will increasingly become mixed with feelings of frustration and confusion. Such frustration and confusion will be the result of same-sex couples and LGBTQ advocates recognizing and beginning to confront many of the questions and problems left unanswered by the Obergefell decision.

Up until last week, a large portion of the questions left unanswered pertained to the tax obligations of now legally recognized same-sex spouses. In fact, for years, homosexual couples have experienced inequitable tax burdens, benefits, and filing complications in comparison to their heterosexual counterparts.[2] This inequitable treatment had even been the case in states which legally recognized same-sex marriage pre-Obergefell.[3] Thus, although some questions might remain, the IRS’ recent clarification and guidance regarding the effects of the Supreme Court’s decision in Obergefell on tax obligations[4] will be much appreciated by same-sex spouses as the upcoming tax season rolls around.

Beyond tax-related questions, increased controversy and litigation are likely to ensue over the upcoming months and years regarding several other effects of and questions stemming from the Obergefell decision regarding same-sex marriage rights. Particularly, two areas that Alabama and its courts foreseeably may be required to deal with are (1) questions regarding the retroactive effects of Obergefell, and (2) the applicability of Obergefell to common-law marriage. This blog post is intended to briefly analyze the complications and questions left unanswered by the Supreme Court in Obergefell regarding how Alabama is to treat same-sex marriage rights in these two areas. Additionally, this blog post seeks to challenge same-sex couple and LGBTQ advocates to begin thinking about and preparing for the legal challenges and controversy that may ensue in the plight to obtain answers to these questions.

The Retroactive Effects of Obergefell

The full retroactive extent of the Supreme Court’s decision in Obergefell remains unclear.[5]  In the immediate aftermath of the Supreme Court’s decision it was clear that “same-sex couples validly married in states that allowed same-sex marriage prior to 26 June 2015 but who live[d] in states that did not previously recognize same-sex marriage [would] now enjoy the benefits of marriage in their state of domicile.”[6] What is less clear however is the question of whether “the advantages of marriage (e.g. the existence of marital or community property) exist from the time [a same-sex couple’s] marriage was confected or from 26 June 2015?”[7] The answer to this question will have major implications on the legal rights and benefits enjoyed by same-sex spouses. Until states determine and clarify a clear rule of law concerning such, the concept of ‘marriage equality’ will remain murky and the source of additional legal contentions.

Here in Alabama, courts have already begun to be confronted with this legal issue. For example, at the time of the Supreme Court’s Obergefell ruling, the case of Hard v. Bentley[8] had been pending within an Alabama federal court since February 2014.[9] The plaintiff in this case, Mr. Hard, was married prior to 2011 in the state of Massachusetts to Dan Fancher.[10] In 2011, while the couple was living in Alabama, Mr. Fancher was killed in a car accident involving a UPS truck.[11] As a result a wrongful death suit was brought against UPS.[12] In the subsequent case of Hard v. Bentley, the question was whether under Alabama law Mr. Hard was entitled to any of the wrongful death case’s proceeds or whether the late Mr. Fancher’s mother was the only legally recognized beneficiary of Mr. Fancher.[13] This question had yet to be answered at the time of the Supreme Court’s ruling in Obergefell.

Whereas prior to the Supreme Court’s decision the issue in Hard v. Bentley, was likely a question of whether Alabama was required to give full faith and credit to same-sex marriages legally recognized in other states. After the Supreme Court ruled in Obergefell however, the question in Hard v. Bentley became that of whether the Supreme Court’s new ruling ought to be applied to the unresolved Hard case.[14] After the Supreme Court’s decision, the defendants in Hard v. Bentley argued that the Supreme Court’s decision should not be applied retroactively in favor of the plaintiff.[15] The plaintiff however argued that “There is a general rule of retrospective effect for the constitutional decisions of the Supreme Court. Only exceptional circumstances warrant departing from the normal rule….the argument that the Obergefell decision should not be applied retroactively really amounts to desperate grasping at straws.”[16] The U.S. District Court of Middle Alabama agreed with Mr. Hard’s argument and consequently ruled in his favor. Thus, Alabama effectively determined that the Supreme Court’s decision was retroactive because “[t]he Supreme Court decision found it unconstitutional both for states to ban same-sex marriage and for states to refuse to recognize as valid a marriage from another state. It doesn’t matter when Alabama refused to recognize a Massachusetts marriage; it was unconstitutional to do so.”[17]

Despite this ruling Alabama’s stance on the retroactive effects of Obergefell is still somewhat unclear. It is arguable that Mr. Hard’s case was unique in several ways. Particularly the fact that his case was already pending within a court at the time of the Supreme Court’s decision and had not previously been negatively disposed of likely worked in his favor. Questions remain however regarding what would have happened however if his case had already been negatively decided in the months or years prior to Obergefell? Would Mr. Hard have the opportunity to have his case reheard or re-decided based on the Obergefell decision? Although seemingly just a hypothetical, there is not telling me how many LGBTQ persons are in precisely that or a similar predicament on today. What legal relief and rights do they now have? And what about the courts and other past defendants? Will courts re-deciding such cases cause too much difficulty? These are only some of the questions that same-sex couples and LGBTQ advocates will have to fight for answers to in the upcoming years.


Obergefell, Alabama, and Common-Law Marriage

Alabama is one of only a very small number of states which legally recognizes common-law marriage.[18]Accordingly, a unique question that same-sex couples and LGBTQ advocates in Alabama will need to seek clarity concerning is how Obergefell affects the vast-number of same-sex couples who during the years preceding Obergefell may have engaged in a celebratory ceremony or elsewise engaged in the requisite behavior to constitute a common-law marriage. Without now obtaining an official marriage certificate, will these couples be able to enjoy all the legal rights, recognitions, and benefits of common-law marriage? Additionally, will they have to comply with the same legal responsibilities? For example, typically, common-law spouses within Alabama that decide to dissolve their relationship are required to complete the same legal processes to divorce as they would have had they originally obtained a marriage certificate.[19] They also are governed by certain rules and laws pertaining to the splitting of property.[20] Thus what obligations and rights now affect same-sex common-law couples? And who is even considered a same-sex common-law spouse in Alabama? These are questions that LGBTQ advocates and courts can expect to try to answer in the months and years ahead.


After the celebratory high following Obergefell begins to wear off, lawyers, legislators, and legislators are encouraged to begin thinking now about the gaps and questions left unanswered by the Supreme Court’s decision regarding same-sex marriage. Although in theory marriage-equality is a concept now enjoyed by all, in actuality same-sex couples and LGBTQ advocates are aware that in actuality marriage rights are not and will not be ‘equal’ until the questions proposed in this blog post as well as others receive answers. The LGBTQ community and advocates should be vigilant in this present period to ensure that many of the remaining barriers to marriage equality are removed.

[1] 135 S. Ct. 2584 (2015).

[2] See Theodore P. Seto, The Unintended Tax Advantages of Gay Marriage, 65 Wash. & Lee L. Rev. 1529, 1530–92  (2008)

[3] Id.

[4] Paul Caron, Treasury Department Issues Proposed Regs Implementing Obergefell and Windsor On Same-Sex Marriage, Oct. 22, 2015,

[5] Ronald J. Scalise, Jr., Comparative Succession Law: Volume II: intestate Succession 421 n. 128 (Kenneth G. C. Reid et al. eds.,  1st ed. 2015) available at

[6] Id.

[7] Id.

[8] 2015 U.S. Dist. LEXIS 28894 (M.D. Ala. 2015).

[9] SPLC Client Receives Monetary Award After US Supreme Court Rules in Favor of Marriage Equality, August 3, 2015, [hereinafter: “SPLC Client Receives Monetary Award”]

[10] See Litigation in Alabama, Freedom to Marry,

[11] Complaint at 1, Hard v. Bentley, (No. 2:13-CV-922-WKW-SRW) available at

[12] See Lohr v. Zehner, 2014 U.S. DIst. Lexis 75216 (M.D. Ala. 2014).

[13] See SPLC Challenges Alabama’s Unconstitutional Marriage Protection Act and Sanctity of Marriage Amendment, The Southern Poverty Law Center, Feb. 12, 2014,  

[14] See SPLC Client Receives Monetary Award (“The [defendants] argued that the Supreme Court’s marriage ruling should not be applied retroactively to the case.”).

[15] Id.

[16] Zack Ford, Same-Sex Couples Are Securing Retroactive Recognition of their Marriage, Think Progress, Jul. 30, 2014,

[17] Id.

[18] See Jennifer McDonald, Common Law Marriage in Alabama,, July 1, 2013,

[19] Legal Services Alabama, Common Law Marriage in Alabama, Alabama Legal Help, (stating that in Alabama “[C]ommon law marriage…can only be ended by a divorce or by the death of [a spouse].”)

[20] Jennifer McDonald (“couples wishing to dissolve a common-law marriage are subject to…equitable division of property and debt.”)

Foreign Laws are NOT Coming to Take Over the United States Legal System By Said Jabbour

Foreign Laws are NOT Coming to Take Over the United States Legal System


Said Jabbour

The United States is a melting pot of cultures.[1] This statement has been repeated throughout U.S. history, and has even influenced landmark Supreme Court decisions.[2] The idea is that the United States is a nation of multiple cultures coming together to create a national identity while maintaining people’s individuality. This concept is memorialized in our educational system which seeks (at least in theory) to preserve students’ individuality while imparting traditional societal norms.[3] However, this does not mean that we, as a nation, should have multiple sets of laws and rules to accommodate the needs of each and every culture. What should happen is a give-and-take situation where each culture is assimilated into the general national identity to form one whole unit, not a unit of multiple wholes. That is the basic concept of a melting pot; it is a pot where multiple ingredients go in and mix to become one dish.[4]

This article will not deal with situations where the courts of the United States apply foreign laws to a dispute after going through a “conflicts of laws” analysis, or situations where US courts recognize foreign decrees because of “comity.”[5] The focus of this article is on whether the United States could ever honor the decisions of independent tribunals that apply and impose foreign laws. For the purpose of simplicity, this article will focus on the recent outrage spawned by rumors of Sharia law tribunals in Texas. The article will begin by briefly introducing the controversy that inspired this article then move on to present potential argument which dispel the fear that disagreeable foreign laws will influence local decisions.

Back in January (2015), chain E-mails went out about a sharia law court in Irving, TX.[6] Outrage ensued by conservative members of society which prompted the Mayor of Irving, Beth Van Duyne, to go to Facebook with a post that outraged Muslims in Texas.[7] The mayor said that Texas law will not recognize applications of foreign law that violates public policy, statutory, or federal laws, and proceeded to push a bill that codifies this idea.[8] That bill is what is now causing outrage among Muslims in Texas who believe the law is directed at them.[9]

The entire dispute summarized above, and the outrage felt by both the Muslim citizens opposing the Bill and the residents applauding it, is completely unfounded because the bill simply codifies a well-established concept of U.S. law. The idea that U.S. law reigns supreme and supersedes all other laws is first and foremost explicitly stated in the U.S. Constitution in the Supremacy Clause.[10] Additionally, the United States Constitution grants legislative power only to a fixed set of legislative bodies (congress and state legislatures).[11] Case law has allowed Congress to delegate some authority to administrative agencies despite this provision,[12] but this delegation is so severely limited that it would be nearly impossible to contemplate that Congress would delegate any rule-making power to a private tribunal. So, the fear from the chain E-mails is (as is usually the case) completely groundless because no one can create laws that will bind courts in their decisions.

Despite the Constitutional discussion above, many still fear that the tribunals will be able to put their laws in force by influencing court decisions. The fear stems from U.S. court decisions that apply foreign laws to settle disputes in the United States. This fear is also groundless because any application of foreign laws is fraught with legal analysis on Choice of Laws and Comity, and will likely fail this analysis.[13] In a very simple introduction to the topic of comity, courts will look at three factors in deciding whether to apply a foreign decision: (1) the competence and civility of the foreign court, (2) whether there was fraud in obtaining the judgment, and (3) whether the judgment “violated American public policy notions of what is decent and just.”[14] In deciding all these questions, it is important to keep in mind what exactly courts consider as American public policy and civil. The simplest way to think about American tradition is from the cases on substantive due process, where courts state that substantive rights[15] are determined by traditions exemplified in the history[16] of Western civilization based on Judeao–Christian moral and ethical standards.[17] It is very likely that the most feared Sharia law regulations do not meet the standards of this test. One particular Sharia law which comes to mind is the one sanctioning (almost applauding) honor killings.[18] Honor killings allow a male family member – a father, brother, or even first cousin – to slaughter a female family member for disgracing the family name. And what is the “disgrace to the family name in question”? It could be having pre-marital sex with a male (which, to the chagrin of over-protective fathers everywhere, is illegal), eloping with a man that the family does not approve of, or even – GASP! – dressing inappropriately. Obviously (I hope), such foreign laws are at odds with traditional American values and would fail the test on Comity.

In conclusion, the only thing that the Sharia tribunals can do is settle private disputes in a private manner that does not involve the intervention of any law. Such tribunals exists everywhere throughout the U.S. in the business context (where businesses settle disputes privately through negotiations or through private arbitration), as well as in the family context where Catholic and Jewish families settle their disputes in private religious tribunals.[19] Courts do not accept the decisions of such tribunals as final and they do not have to (see discussion above). This means that people who are unsatisfied with the findings of such tribunals can go through the court system to settle their disputes regardless of what the tribunal decides. Therefore, the fear that Sharia law will take over is completely groundless.

[1] An age-old metaphor acknowledged by the U.S. Department of state. About This Issue, Becoming American: Beyond the Melting Pot, March, 2011, at 1, available at

[2] See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).

[3] See generally, Margaret Stimmann Branson & Charles N. Quigley, The Role of Civic Education (1998), available at

[4] A melting pot is a “process of blending that often results in invigoration or novelty,” or “a place (such as a city or country) where different types of people live together and gradually create one community.” Merriam-Webster dictionary, (last visited Oct. 15, 2015)

[5] “Comity is the ‘recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protections of its laws.’” Daewoo Motor America, Inc. v. General Motors Corp., 459 F.3d 1249, 1257-58 (11th Cir. 2006)

[6] W. Gardner Shelby, Sharia court in Irving, Texas? Negative (July 17, 2015, 2:56 PM),

[7] Top Right News, Muslims FURIOUS at This Texas Mayor After She STOPPED Their ‘Sharia Court’ – See Her EPIC Response (September 6, 2015), (please note that I only used this source because it has a picture of the Mayor’s Facebook post, I do not adopt the arguments or opinions in that article).

[8] S.B. 531, 84th  Leg., Reg. Sess. (Tx. 2015)

[9] AM, TEXAS Bans Sharia Law…Democrats and Muslim OUTRAGED, Conservative Post (Sept. 6, 2015), (publishing a statement by a Muslim Irving resident, Omar Suleiman, who believes the law is an “Anti-Sharia bill”)

[10] U.S. Const. art. VI, cl. 2

[11] U.S. Const. art. I, §1. See also, United States v. Shreveport Grain & Elevator Co., 287 U.S. 7785 (1932) (stating that “the legislative powers of Congress cannot be delegated).

[12] Wayman v. Southard, 23 U.S. 1, 41 (1825) (stating that Congress may delegate “powers which [it] may rightfully exercise itself.”)

[13] See, Daewoo Motor, supra note 5, at 1257-58.

[14] Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004)

[15] Substantive rights are those that are not enumerated in the constitution but are implicit to the concept of ordered liberty as viewed through the prism of an Anglo-American regime of liberty. Duncan v. Louisiana, 391 U.S. 145, 163 (1968)

[16] History in this context means “our laws and traditions in the past half century.” Lawrence v. Texas, 539 U.S. 558, 571-572 (2003)

[17] Id.

[18] See generally, Amira El Azhari Sonbol, Women of the Jordan: Islam, Labor, and the Law (Syracuse Univ. Press ed., 1st ed., 2003)

[19] Dina Samir Shehata, Anti-Sharia Bill Dead, but Sentiment Alive, Third time not a charm for foreign law ban in Texas, The Austin Chronicle (May 22, 2015), (giving an example of a Jewish family tribunal: Beth Din).

Student Loans: The Inexpugnable Debt By: Devan Byrd

Student Loans: The Inexpugnable Debt

By: Devan Byrd

The Great Recession of the early 2000s left many Americans drowning in debt, more than $1 trillion of which is student loan debt.[1] At the height of the recession, the average loan debt for those that completed an undergraduate degree was $14,100 up from $6,400 in 1995.[2] Additionally, graduates owing a significant student loan debt also increased to 29% from 9% in 1995.[3] During this time, the employment rate among most traditional borrowers leaving school was unchanged, while unemployment among students leaving for-profit institutions jumped to 20.6 percent.[4] For those able to find work during this time, the same pattern of inequality applied to their earnings.[5]

Although, the increase in student loan debt overall signals a positive trend of more Americans attending college. Many families are unable to afford higher education and have a difficult time making the informed decisions necessary about which institutions and majors will yield the best return on investment. Additionally, these levels of indebtedness are unsustainable long-term and will ultimately effect future American’s decision to attend college.[6] A decision that will have the greatest consequences for first-generation students and minority students further perpetuating achievement gaps and inequality.[7]

What must be done?

The government must step in now to guide those currently drowning in student loan debt safely to shore, while implementing regulations that keep education financially obtainable and connect the availability of student loans to the predatory recruitment practices of for-profit institutions. First, the government should revisit the almost complete bar on discharging student loan debt to provide immediate relief for those in need. Next, the government should adopt a comprehensive definition of “affordable” and a workable framework for the institutions to apply when setting tuition prices and financial aid packages. Finally, the government should reform and regulation student loan lending to attend for-profit institutions.



Beginning in 1976, federal loans were automatically dischargeable after five years of repayment, but borrowers could get out of them earlier if they proved that repayment would cause an “undue hardship.”[8] This benefit ceases to exist.[9] Since 2005, government-guaranteed student loan obligations and those from private lenders are presumptively nondischargeable, even in bankruptcy, absent a showing that the debtor will never be able to afford the monthly payments.[10]

A majority of the federal courts have adopted the Brunner test to determine “undue hardship” in bankruptcy.[11] The Brunner test places the burden on the debtor to prove by preponderance that: (1) the debtor’s current income and expenses, prevent her from maintain a minimal standard of living for herself and her dependents if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the loans; and (3) she has made a good faith effort to repay the loans.[12] Some courts have allowed for partial discharge when repayment of part of the debt does not constitute an undue hardship, but repayment of the entire debt would.[13] Nonetheless, courts have strictly construed the undue hardship test to prevent discharge in almost all cases.

Annually, fewer than 1,000 people try to discharge their student loans using bankruptcy, and the White House is weighing possibilities to make it easier for Americans to expunge certain student loans made by private lenders by treating the loans the same as credit card debt and mortgages.[14] In specific circumstances, for example student loans that fund expensive for-profit degrees that produce poor employment outcomes and high rates of default and delinquency, relief to some degree seems warranted. This will not open the floodgates of the bankruptcy court to frivolous cases, but instead will reinforce regulations on ill-advised lending practices and require for-profit institutions to provide a better service. Additionally, taxpayers should not bear the burden of this loss while for-profit institutions continue to benefit. The institutions should be required to pay back a portion of the discharged loans when their programs are at fault.

Defining “affordable”:

The Lumania Foundation, which focuses on higher education issues, suggests a “Rule of 10” formula for determining affordability based on family contribution.[15] The formula creates a sliding scale that adjusts to each individual family’s circumstances asking them to save 10% of the family’s discretionary income for 10 years, plus students will be asked to contribute while in school by working 10 hours per week.[16] Unlike most discussions on affordability, the Lumina proposal sets out to establish a maximum amount students can reasonably be expected to pay encouraging colleges and policymakers to use the amount as a guidepost when setting tuition prices and designing aid programs.[17] An alternative under the proposal is for the formula to be used to set a maximum amount of loans a student should be expected to borrow.[18] Although, there is little mention of how much families would contribute from current income while a student is in school, the discussion does suggest that families who do not meet the savings standard could be expected to make up for the difference through current earnings, additional work hours, or loans.[19]

Reform and Regulation:

Although, the student loan obligations of Americans are increasing many institutions continue to make high-risk loans to students on behalf of the federal taxpayer to fund educational programs that often do not result in a degree or do not result in a higher-paying job.[20] Associate degrees or certification from for-profit institutions can cost four times more than if obtained from a comparable public institution.[21] The high cost of attendance result in, on average, 96% of the students enrolled to take out student loans.[22] While over half of the students enrolled between 2008 and 2009 left the school without a degree by 2010.[23] What are these institutions doing with all of their money? A majority of their profits go to paying the CEOs millions, marketing, advertising, and recruiting. Only a small portion goes to actual student instruction. The White House has attempted to establish guidelines for these career colleges by requiring that the institutions better prepare students for gainful employment at the risk of losing access to taxpayer-funded federal student aid.[24] Additionally, the White House has initiated a repayment plan linked to income.[25] All Americans with student loan debt should be automatically enrolled in this repayment plan for immediate relief.

[1] Lumina Foundation, A Benchmark for Making College Affordable: The Rule of 10, 2 (Aug. 2015)

[2] Id.

[3] Id. (Significant debt is a debt over $20,000.).

[4] Adam Looney and Constantine Yannelis, A crisis in student loans? How changes in the characteristics of borrowers an in the institutions they attended contributed to rising loan defaults, Brookings Papers on Economic Activity, 21 (September 2015) (Unemployment of traditional 4-year borrowers increased 0.9% and 0.6% of traditional graduate borrowers.).

[5] Looney and Yannelis, Supra note 4, at 21 (median for-profit borrower earned about $20,900, conversely the median graduate-only borrower earned about $56,100 and the median borrower from a selective undergraduate institution earned about $43,200).

[6] Lumina Foundation, Supra note 1, at 2.

[7] Lumina Foundation, Supra note 1, at 2.

[8] Josh Mitchell, White House Floats Bankruptcy Process for Some Student Debt, The Wall Street Journal, (Mar. 10, 2015).

[9] Id. (requiring a showing of undue hardship in all cases no matter how many years of federal loan payments that have been made).

[10] 11 U.S.C.§ 523(a)(8) (2010). See Jordan Weissmann, How the Bush Administration Pointlessly Screwed Over Student Borrowers, Slate, (Apr. 16, 2015).

[11] See Educ. Credit Mgmt. Corp. v. Jesperson, 571 F. 3d 775 (8th Cir. 2009) (declining to only apply the Brunner test); In re Nash, 446 F. 3d 188 (1st Cir. 2006) (declining to apply only the Brunner test).

[12] Brunner v. New York State Higher Educ. Servs. Corp., 831 F. 2d 395, 396 (2nd Cir. 1987).

[13] See 11 U.S.C. § 105(a) (2010); In re Patricia M. Miller, 377 F. 3d 616 (6th Cir. 2004).

[14] Josh Mitchell, White House Floats Bankruptcy Process for Some Student Debt, The Wall Street Journal, available at: (Mar. 10, 2015) (The process is expensive because they must be filed in the federal court system and the attorneys require several thousand dollar retainers.)

[15] Kaitlin Mulhere, A New Way to Define ‘Affordable’ College, Time Money (Aug. 19, 2015).

[16] Id.

[17] Id. (Traditionally focus on college tuition cost, available grant aid, and what students are left to pay.).

[18] Id.

[19] Id.

[20] Looney and Yannelis, Supra note 4 at 36–37.

[21] Fact Sheet, For Profit U (Although for-profit institutions educate only a fraction of the American student population these institutions receive, on average, 25% of all the federal financial aid dollars.).

[22] Id. (One in five students from for-profit institutions default on their loans within three years of entering repayment.).

[23] Id.

[24] U.S. Department of Education, Obama Administration Takes Action to Protect Americans from Predatory, Poor-Performing Career Colleges (Mar. 14, 2014).

[25] The White House Press Secretary, Fact Sheet: A Student Aid Bill of Rights: Taking Action to Ensure Strong Consumer Protections for Student Loan Borrowers (Mar. 10, 2015)(“Pay-As-You-Earn Loans” capping federal loan payments at 10% of their income).

Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship By Elton Darby

Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship


Elton Darby

The campaign trail to the 2016 U.S. presidential election has been unique in a few ways, intense twitter wars and the popularity of non-establishment candidates to name a few.[1] Despite these colorful novelties, how to treat the country’s millions of undocumented immigrants has been, and continues to be, a pivotal issue amongst the candidates. Republican candidates, Jeb Bush and Donald J. Trump, promote “border security” and “defend[ing] the laws and Constitution of the United States” against undocumented immigrants.[2] Democrats, on the other hand, plead to “bring the undocumented out of the shadows” by providing a pathway to citizenship.[3] To many democrats and pro-immigrant groups, a “pathway to citizenship” is seen as the most humane method to treat the undocumented immigrants in the United States. [4] But how would it work in practice?  The Clinton and Sanders campaigns have made their support for a pathway clear, but neither has provided details of how the pathway would be paved. Deep within the bowels of America’s law libraries, however, a solution hides within an infamous creature: The Immigration and Nationality Act (INA). Yes, the ominous, telephone-book sized statute that provides a wide range of fates: from permission to remain in the U.S. on one end, and removal to an ancestral homeland on another. The INA already provides a pathway, it only needs some fresh pavement: Registry.[5] In this blog post, I examine the feasibility of updating the INA’s Registry provision to provide a simple, streamlined pathway to citizenship for undocumented immigrants.

Registry, along with cancellation of removal, are the traditional forms of relief to removal available to non-Lawful Permanent Resident (LPR) aliens. Registry deems an alien lawfully admitted to the United States as long she proves:(1) continuous residence since entry; (2) good moral character; and (3) is not a terrorist, Nazi persecutor, or otherwise inadmissible.[6] The current Registry date is January 1, 1972.[7] In other words, an alien who entered the U.S. before 1972 and avoided criminal convictions may be able to obtain lawful permanent residence status through Registry. LPRs may apply for citizenship after five years of U.S. residence.[8] The justification behind Registry, as explained by Professor Richard Boswell, was the realization that a class of aliens had resided in the U.S. long enough to start families and become “interwoven into the community.”[9] Registry can thus be understood as “statute of limitations to removal for a narrowly defined group.”[10] Despite the periodic advance of the registration date, Registry has always been tailored to a narrowly defined group. At its peak in fiscal year 1966, 2,887 petitions for relief by Registry were granted.[11] By 2013, the number of beneficiaries had dropped to 104.[12]

Although Registry itself has never been expanded, Congress has attempted to create new pathways. In 1986, Congress enacted new legislation, the Immigration Reform and Control Act (IRCA), that granted amnesty and a pathway to citizenship for undocumented immigrants continuously present in the country since 1982.[13] IRCA favored agricultural workers over immigrants in other fields.[14] For non-agricultural workers, the IRCA contained many similarities to Registry, such as a continuous residence requirement and bars to amnesty if the alien had committed certain crimes.[15] IRCA’s enactment was accompanied by major downfalls. Those aliens who entered legally in any way were ineligible for the program.[16] First, the alien had to prove continuous unlawful residence in the United States since 1982.[17] Second, immediate relatives were not eligible to apply for relief. [18] The exclusion of immediate relatives from eligibility meant removal for some family members and amnesty for others. ICRA nevertheless resulted in the receipt of LPR status by 2.7 million undocumented immigrants.[19]

Not unlike the past, the debate over immigration policy continues to rage across the country.[20] Some presidential candidates have highlighted crimes committed by undocumented immigrants as a vehicle to support mass deportations. The solution, however, need not be so dramatic. American society needs nothing less than the institution of costly, wide spread roundup actions aimed at a particular demographic. The potential for catastrophic monetary and civil rights costs would be enormous.[21] A much less divisive method to treat undocumented immigrants is an update of the Registry provision.  Rooted in historical precedent, updating the Registry date to a reasonable time would provide a simple, cost-effective method to bring undocumented immigrants out of the shadows. The Registry date should be updated to reflect a time period when a continuous resident undocumented alien would naturally have developed deep ties to the U.S.[22] The current date requires forty-three years of continuous residence to apply for Registry. Substantial ties can be made to a country in far less time. If the date were updated to, for example, 1995, undocumented immigrants that entered twenty years ago and produce a record of lawful continuous residence since that time would receive an opportunity to obtain LPR status.[23] Changes to the Registry date would undoubtedly be controversial, as an expansion would immediately a defense to removal and eligibility to apply for LPR status.[24] Registry, however, is not without a key benefit to interior enforcement: the separation of criminal aliens from those living lawfully since entry. Currently, undocumented immigrants do not have much benefit to confer with the police: placement in a removal proceeding could mean a bar to re-entry for years. If Registry were updated, not only would immigration enforcement authorities have the ability to exhaust more resources on criminal aliens, but cooperation between well-behaved undocumented immigrants and enforcement authorities would improve.

Admittedly, Registry is a once-in-a-generation solution to the problem of illegal immigration, as it rewards illegal entry. Any update to the Registry date would likely need to be followed by a ramp-up in border security and enforcement. Nevertheless, history teaches us that, every so often, the immigration system breaks down to a point where a wide-reaching solution is needed. An update of the INA’s Registry provision would provide that grand solution at low cost to government resources and human rights.

[1] See e.g., Alan He, Bush and Rubio campaigns jab at each other over fundraising, CBS News, (last visited Oct. 18, 2015) ; See Susan Milligan, The Year of the Underdog?, US News & World Report, (last visited Oct. 18, 2015).

[2] Jeb 2016, “Border Security” (last visited Oct. 18, 2015). ; Donald J. Trump for President, “Immigration Reform” (last visited Oct. 18, 2015).

[3] Bernie 2016, “A Fair and Humane Immigration Policy” (last visited Oct. 18, 2015). ; Hilary for America, (last visited Oct. 18, 2015).

[4] See Jeffery M. Jones, In U.S., 65% Favor Path to Citizenship for Illegal Immigrants, Gallup, (last visited Oct. 18, 2015).

[5] 8 U.S.C. § 1259 (2015).

[6] Id.

[7] Id.

[8] 8 U.S.C. § 1427 (2015).

[9] Richard A. Boswell, Crafting an Amnesty with Traditional Tools: Registration and Cancelation, 47 Harv. J. on Legis., 175, 183 (2010).

[10] Id.

[11] Immigration & Naturalization Serv., U.S. Dep’t of Justice, Annual Report of the Immigration and Naturalization Service 1966-67, 8, available at;view=1up;seq=16

[12] 2013 Yearbook of Immigration Statistics, Office of Immigration Statistics, Dept. of Homeland Sec., 24 tbl. 7 (2013) available at

[13] See IRCA, Pub L. 99-603 (1986) (codified as 8 U.S.C. 1160(a), 8 U.S.C. 1255a(a) (2015))

[14] Boswell, supra note 9, at 196.

[15] 8 U.S.C. § 1255a(a) (2015).

[16] Boswell, supra note 9, at 197.

[17] 8 U.S.C. § 1255a(a)(2)(A) (2015) (“the alien must establish that he entered the United States before January 1, 1982… and that he has resided continuously… in an unlawful status since such date.”)

[18] Betsy Cooper & Kevin O’Neil, Lessons from the Immigration Reform and Control Act of 1986, Migration Policy Institute, August 2005, No. 3, at 3

[19] Id.

[20] See e.g., Emmett Berg, Felon in immigration furor pleads not guilty to San Francisco shooting, Reuters, July 8, 2015. (last visited Oct. 18, 2015). (San Francisco immigration debate rages as convicted felon previously removed five times charged with murder).

[21] Boswell, supra note 9, at n. 136 (1950’s mass deportations had heavy costs and civil rights violations).

[22] See Boswell, supra note 9, at 206 (Registry date should be advanced to encompass a large portion of the undocumented population.)

[23] Boswell, supra note 9, at 205 (arguing for a Registry date five to seven years preceding a potential enactment).

[24] Margaret H. Taylor, What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal, 30 J.L. & Pol. 527, 529 (updating the Registry date “is politically infeasible and perhaps unwise”).

Budget Cuts: Did Alabama’s Closure of 31 DMV Offices Violate The Equal Protection Clause? By Axel Buchwalter

Budget Cuts: Did Alabama’s Closure of 31 DMV Offices Violate The Equal Protection Clause?


Axel Buchwalter

On Sept. 30, the Alabama Law Enforcement Agency (ALEA) announced the closure of 31 part-time driver’s licensing offices.[1] The closures were the result of an $11 million cut in appropriations to the ALEA.[2] While those 31 part-time locations where responsible for less than five present of Alabama Driver License transactions, their closures could pose a serious problem for some Alabama voters.[3]

Alabama is one of 31 states that have some form of voter identification laws in place.[4] Alabama’s voter identification law requires that voters present a valid photo ID to be eligible to cast a regular ballot.[5] Voters without a valid photo ID must cast a provisional ballot.[6] It is unsurprising then, that the majority of Alabamians use state issued driver licenses’ or ID cards to vote. It is important then, that every Alabama resident be able to easily obtain a state issued photo ID.

Disappointingly, the 31 office closures have left 28 counties without a location to obtain a state issued photo ID.[7] A major inconvenience for our states rural residents. But more worrying, the majority of these closures have occurred in counties located in Alabama’s Black Belt.[8] These counties are majority African American and home to Alabama’s poorest residents.[9] It is an open question then, if these closures might have an impact on the constitutionality of Alabama’s voter identification law.

The Supreme Court has repeatedly stressed that voting is of “fundamental significance under our constitutional structure.”[10] Yet, the right to vote is far from absolute. States maintain an active role in structuring voter regulations and elections.[11] It is compelling that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”[12] However, states are limited in the restrictions or qualifications they may impose on the right to vote. The Equal Protection Clause “restrains the States from fixing voter qualifications which invidiously discriminate.”[13] The Court has been clear that restriction on “wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”[14] But, that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” can be tolerated.[15]

Previously, the Court has been asked to evaluate whether voter identification statutes violate the Fourteenth Amendment. In Crawford v. Marion Cnty Election Bd., 553 U.S. 181 (2008) the court upheld an Indiana voter identification statutes that required individuals voting in-persons to present a particular form of government-issued photo identification.[16] The court applied Anderson’s balancing approach and evaluated whether the identified state interests justified the burden imposed on voters.[17] The court identified three state interests, election modernization, voter fraud, and safeguarding voter confidence as compelling reasons for burdening voters with identification requirements.[18] Interestingly, when asked to consider the laws burden on groups of voters who lacked photo identification the Court dismissed the issue as unsubstantiated, concluding that anyone without a proper photo ID could still cast a provisional ballot, that would ultimately be counted, assuming they traveled to the circuit court clerk’s office and executed the required affidavit.[19]

If the courts were asked to rule on the Alabama voter ID law the precedent setout in Crawford would be instructive. It is clear that courts are supportive of the states position that voter identification laws further a legitimate state interest. However, each restriction needs to be evaluated in conjunction with the burden imposed by the rule.[20] The Court has also shown the potential to consider whether a given restriction disproportionately effects a portion of the population. Given the newfound difficulty of obtaining a photo ID in the Black Belt it is an open question whether that burden has risen to the level of an equal protection violation in the eyes of the court. Regardless, it seems likely that a court will be called to make that factual determination shortly.

[1] ALEA Reallocates Personnel to District Driver License Offices, Alabama Law Enforcement Agency (Sept. 30, 2015),

[2] Id.

[3] Id.

[4] Wendy Underhill, Voter Identification Requirements | Voter ID Laws, National Conference of State Legislators (Oct. 6, 2015),   

[5] Acceptable forms of ID include: a valid Alabama driver’s license or non-driver ID card, valid photo voter ID card or other valid ID card issued by any state or federal government, as long as it contains a photo, valid U.S. passport, valid government employee ID card with a photo, valid student or employee ID card issued by a college or university in the state, provided it includes a photo, valid U.S. military ID card containing a photo, valid tribal ID card containing a photo. Alternatively, voters can without a valid photo ID can still cast a regular ballot if they are identified by two election officials as an eligible voter, and bit sign a sworn affidavit. Ala. Code 1975 § 17-9-30

[6] If voting a provisional ballot, the voter has until 5:00 PM on the Friday after the election to bring the required ID. Id.

[7] Kyle Whitmire, Voter ID and driver license office closures black-out Alabama’s Black Belt, (Sept. 30, 2015)

[8] Id.

[9] Id.

[10] Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)

[11] Burdick v. Takushi, 504 U.S. 428, 433 (1992)

[12] Storer v. Brown, 415 U.S. 724, 730 (1974)

[13] Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 666 (1966)

[14] Id. at 668

[15] Anderson v. Celebrezze, 460 U.S. 780 (1983)

[16] Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)

[17] Id.

[18] Id.

[19] Id.

[20] Id.

Something Must Change by Chris Saville

Something Must Change


Chris Saville

The human rights violations in Syria and neighboring Iraq are almost unconceivable; the Syrian government’s intentional targeting of civilians during air strikes[1], the murder of hundreds of men due solely to their religion, and the forced religious conversion of young boys to fuel the ISIS war machine.[2] To anyone who has followed international conflicts over the past sixty, thirty, or even just fifteen years, these horrible events likely sound familiar, and they should. Since the creation of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, there have been numerous genocides, often with little intervention from the United States. [3] Despite cries of “never again”[4], we have repeatedly allowed genocide to take place. And now, we are watching it happen again in the Middle East, with concurrent genocides by the Syrian government and religious extremist group ISIS.

The method for avoiding intervention is insidiously prescribed by the Convention itself. The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as the killing, the deliberately inflicting conditions aimed at destroying, the preventing of births, or the transferring of children from one group to another, with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.[5] When genocide is determined, every party that has signed the Convention, including the United States[6], is required by international law to “undertake to prevent and to punish.”[7] But what happens when a country is bound by law to intervene when such intervention would cause international chaos or even nuclear war, a legitimate concern during the Cold War?[8] One method has simply been to refuse defining the actions as genocide.[9] This was the strategy famously adopted by the Clinton administration during the Rwandan genocide[10], and it appears that both the United States and even the United Nations have similarly adopted it for the current crises in Syria[11] and Iraq.[12] These atrocities, using the Convention’s plain and obvious meaning, are genocide, however the bare refusal to recognize them as such prevents an international duty to act. Using this ridiculous approach, the United States and United Nations are again relieved from intervening in a severely destabilized region.

The brazen rejection of the acts in Syria and Iraq as genocide detracts from what the true issue is. The question should not be “is it genocide”, when at this point it clearly qualifies. Focusing on the existence of genocide at this stage is utterly useless. The question should be “what do we do to stop it?” How do we utilize international intervention in conflicts that both preserves a nation’s autonomy and at least ends, if not prevents, genocide? Of course this is easier to speculate on than to actually achieve. Too strong of a response not only violates the principle of autonomy but also has the potential to destabilize the region and result in further conflict. At the same time, a limp effort will do little to stop the atrocities and may even embolden the perpetrators to push the limits.[13] Perhaps the sweet spot is simply unattainable. Maybe success in stopping genocide is hit or miss, and the public doesn’t recognize successful preventions because they never escalate into the mass horrors we’ve shockingly come to expect. Regardless of the answer, the events in Syria and Iraq are full scale genocide, and history has taught us that it will be very difficult to end the horror without further bloodshed and chaos. Indeed, severe consequences likely accompany a military intervention in Syria and Iraq[14] and thus the will to end the atrocities must be strong enough to overcome fear of those consequences.

The answer to “how do we end genocide” touches on more than simply actions. In prescribing a plan of action, countries need to determine how deeply they desire the goal. Without the will to do what is necessary, there can be no success. A poll taken in 1994 reported that sixty five percent of Americans supported a United Nations, and American, intervention in genocidal conflicts using “whatever force is necessary.”[15] This report echoes polls taken during the Bosnian and Iraqi genocides in the 1990s.[16] Clearly the American people support efforts against genocide, but why? Sixty five percent of Americans supporting whatever efforts are necessary to combat genocide is an impressive response, but twenty three percent responded they only supported whatever efforts were necessary if American interests were involved. [17] Sadly, the past decades of genocides proceeding largely unabated seem to indicate that the truth lies with the twenty three percent, rather than the sixty five. Stopping genocide is a cause that everyone rightfully supports, but actual intervention seemingly has only occurred when it is convenient or our interests are furthered.[18] Polls taken in 2014 are reminiscent of those taken during the 1990’s, showing that the American public supports airstrikes in both Syria and Iraq.[19] After observing the events in Syria and Iraq over the past four years, however, it is safe to assume that humanity alone is once again not a sufficient interest to warrant meaningful intervention from Western leaders.

In this forest of uncertainty there lie several simple truths. In order to move forward we must see the victims as individuals, persecuted on a mass scale. They are not a faceless group. The reason we should care is not because of economic or political interests, but because we are people. Others have championed the end of genocide from a multitude of standpoints, including morality[20], but morality should be the only impetus required. Genocide is a violation of our collective rights as human beings, perpetrated against individuals. Understandably the leaders of the world must act to further the well-being of their people and the answers are incredibly complex. But if the nations of the world intend to act within their respective moral compasses, as they undoubtedly claim, something must change. Ignoring the true nature of the acts as genocide ignores the humanity of the victims. Using statutory loopholes to prevent mandatory intervention not only cheapens the law, it cheapens the lives of those who are suffering. Escalation and destabilization are legitimate concerns but this cannot continue.

[1] Syria Conflict: Aleppo Civilians Suffer ‘Unthinkable Atrocities, BBC (May 5, 2015),

[2] Nick Cumming-Bruce, United Nations Investigators Accuse ISIS of Genocide, N.Y. Times (Mar. 19, 2015),

[3] Samantha Power, “A Problem From Hell” 503 (2002).

[4] Samantha Power, Never Again: The World’s Most Unfulfilled Promise, PBS (last visited Oct. 9, 2015),

[5] Power, supra note 3, at 62.

[6] Power, supra note 3, at 167.

[7] Power, supra note 3, at 62.

[8] Power, supra note 4.

[9] Power, supra note 3, at 508.

[10] Power, supra note 3, at 358-64.

[11] Jennifer Rubin, Kerry won’t Call what is Happening in Syria “Genocide”, Wash. Post (Feb. 27, 2014),

[12]  Nick Cumming-Bruce, supra note 2.

[13] Power, supra note 3, at 506-07.

[14] See Doug Bandow, Russia Follows U.S. Script and Intervenes, Forbes (Oct. 5, 2015), (discussing Russia’s military intervention in the Middle East).

[15] Power, supra note 4.

[16] Power, supra note 4.

[17] Power, supra note 4.

[18] See Power, supra note 3, at 508 (“American leaders did not act because they did not want to.”)

[19] Dan Balz & Peyton M. Craighill, Poll: Public Supports Strikes in Iraq, Syria, Wash. Post (Sept. 9, 2014),; Emily Swanson, Most Americans now Support Airstrikes in Syria, Huffington Post (Oct. 29, 2014),

[20] Power, supra note 3, at 512.


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