The legalization of cannabis in Maryland has raised a host of challenging legal and regulatory questions. The University of Baltimore Law Review will gather Maryland’s foremost experts on cannabis, including policymakers, regulators, and legal practitioners, to address a wide range of criminal, business, and social equity aspects of cannabis legalization. The event will take place on Friday, April 12, 2024, at the University of Baltimore School of Law. Attendance is free and open to the public. Lunch will be served, and a reception will follow the conclusion of the event. Please register at the link below to explore this budding new industry!
If I Go Missing, Be Sure This Folder Gets Entered as Evidence!
*Andrea Hutton
I. Introduction
Scholars often trace the modern obsession with true crime media to Truman Capote’s 1966 best seller, In Cold Blood.[1] Today, the genre’s popularity is at an all-time high thanks to newer media offering these gory tales. Lovers of these stories have endless options such as the still popular true crime novel, dedicated television channels, as well as streaming and podcast offerings.[2]
After several years of true crime at the peak of popularity, critics are assessing the impact of these stories across platforms, posing the question: “Has this gone from entertainment to obsession?”[3] Many say yes. Scholars and critics point out that women are especially susceptible to allowing true crime to take over their daily lives.[4] For some women true crime evolves from entertainment to a real-life threat that leaves them asking, “[w]hat if it happens to me?”[5]
This question looms large for many women, leading some to compile an “If I Go Missing” folder.[6] The concept is simple: a person documents all the information they believe would aid in a missing persons search in the unlikely circumstance they ever go missing.[7] A popular true crime podcast provides a fifty-three-page template to listeners who sign up for its emails.[8] Similarly, stationery retailers offer aesthetically pleasing binders to compile details like the potential victim’s social media logins, distinctive tattoos, and the names and contact information for individuals the compiler thinks the police should question first. [9]
Since the initial rise of true crime podcasts, several pieces of the media have leapt into the real world and altered the course of the legal proceedings surrounding those stories.[10] So far, these legal effects have primarily dealt with reconsiderations of guilty verdicts.[11] But what might occur in the courtroom when such obsession and documentation sadly prove correct, and a victim’s folder makes its way into a trial as evidence?
II. Admitting Evidence and the Victim’s If I Go Missing Folder
One need not attend law school to realize the importance of evidence in proving or disproving a case. Evidence lies at the heart of any court proceeding, so much so that the Supreme Court and Congress worked in conjunction to compile and codify robust common law evidence rules into the Federal Rules of Evidence.[12] While an attempt to admit a victim’s folder would implicate many narrow issues that would require fact-based analysis, courts will have to consider certain broad evidence and Constitutional questions that would apply regardless of specific facts. This section provides an overview of some of those broad questions.
The initial hurdle when determining the admissibility of a victim’s folder, like any piece of evidence, lies in the question of relevance. The relevance of any evidence turns on the proponent’s reason for presenting it.[13] Proffered evidence may be relevant for some purposes, but not others.[14] While the folder’s relevance would be the first, and potentially most important, requirement for admission, such inquiry remains is highly fact-specific, and speculation is not productive. Assuming the court overrules an opposing party’s relevance challenge the opposition next raise a challenge based on authentication—that is, if the evidence is what the proponent claims it is.[15]
A lawyer could authenticate a victim’s folder in several ways.[16] They may offer testimony of a witness who saw the victim completing the information in the folder[17] or who can attest to private information in the document that only the victim would know.[18] If handwritten, a lay person[19] or expert could testify to similarities between the handwriting in the document and the victim’s previously authenticated handwriting.[20]
However, evidence that passes relevance and authentication challenges may still face the law student’s greatest fear: an objection based on the rule against hearsay. The rule against hearsay prevents a party from offering evidence in the form of statements made outside of court as proof that the content of the statement is true.[21] In cases where lawyers have attempted to offer a person’s private writings or recollections as evidence, the opposing party invoked the hearsay rule to prevent admission of the writing.[22] Hearsay challenges can be difficult to navigate for both parties to a case because the rule comes with numerous exceptions and exemptions.[23] One hearsay exception allows for admission of “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).” Absent this use, an opposing party could successfully bar admission of this statement as inadmissible hearsay.[24] This exception could prove helpful if a prosecutor wished to enter certain parts of an If I Go Missing Folder, like a list of people to question that includes the accused, to illustrate the victim’s mental feeling that the accused could cause them serious harm, but not as proof of the accused’s guilt.
Alternatively, if the defense used the folder for a reason other than to prove the truth of the matter asserted, the evidence may be admissible if deemed relevant.[25] When a party offers an individual’s out of court statements as evidence of the declarants state of mind the statement is “not hearsay at all because [it is] not offered to prove the truth of the declaration.”[26] Proponents often offer statements to prove—circumstantially—whether the declarant was of sound mind.[27] For example, a proponent could offer a folder in an attempt to show that its author was paranoid, nervous, or some other mental state if that information is relevant.
The final evidentiary hurdle is based in the Constitution, rather than the Federal Rules of Evidence. In a criminal trial, the Sixth Amendment provides the accused the right “to be confronted with the witnesses against him.”[28] In Crawford v. Washington, the Supreme Court ruled that, in a criminal trial, this clause prevents the admission of otherwise permissible hearsay when the statement is testimonial, the declarant is unavailable for cross-examination, and the statement was not previously subject to cross-examination by the accused.[29] While the Court declined to provide a binding definition of “testimonial” in Crawford, it did propose that a statement may be testimonial if “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”[30] Given the ultimate purpose of these folders—to help police find a missing person—a court would likely rule that its contents are testimonial. Thus, in a criminal case where the author of the folder is not available for cross-examination, the Sixth Amendment would bar admission of this evidence.
III. Conclusion
One hopes that the exploration in this piece is much ado about nothing—that the likelihood of being a victim of homicide remains low and these folders remain filed away from the public eye. However, if opposite circumstances occur, an If I Go Missing folder may prove a novel riddle for the assigned judge. In the interim, if the folders make women feel safer, maybe they are worth the time and money.
*Andrea Hutton is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrea received dual bachelor’s degrees from Louisiana State University in Public Relations and Fashion Merchandising. Before law school, she had a nearly 10-year career in digital marketing and business development. She intends to practice real estate law.
[1] Lindsey Webb, True Crime and Danger Narratives: Reflections on Stories of Violence, Race, and (In)justice, 24 J. Gender Race & Just. 131, 150 (2021).
[2] Id. at 151.
[3] See Emma Berquist, True Crime Is Rotting Our Brains, Gawker (Oct. 12, 2021), https://www.gawker.com/culture/true-crime-is-rotting-our-brains.
[4] See id.
[5] See id.
[6] Fortesa Latifi, ‘If I Go Missing’ Folders for the (Very Unlikely) Possibility That You Do, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/style/if-i-go-missing-folders-binders.html.
[7] Id.
[8] Ashley Flowers & Brit Prawat, If I Go Missing, Crime Junkie, https://crimejunkiepodcast.com/wp-content/uploads/2022/02/CJP-If-I-Go-Missing-2022-Editable.pdf.
[9] “In Case I Go Missing” Binder, Savor, https://savor.us/collections/just-in-case-collection/products/in-case-i-go-missing-binder?variant=42761566224642.
[10] Michael Levenson, Maryland Supreme Court to Hear Arguments in Adnan Syed Case,N.Y. Times (Oct. 4, 2023), https://www.nytimes.com/2023/10/04/us/adnan-syed-serial-supreme-court-maryland.html.
[11] Id.
[12] See G. Alexander Nunn, The Living Rules of Evidence, 170 U. Pa. L. Rev. 956–57 (2022).
[13] See Fed. R. Evidence 401 advisory committee’s note to 1972 proposed rules (explaining the need for a relevancy rule).
[14] See id.
[15] See Fed. R. Evid. 901(a).
[16] See Fed. R. Evid. 901.
[17] Id. at 901(b)(1).
[18] Id. at 901(b)(4).
[19] Id. at 901(b)(2).
[20] Id. at 901(b)(3).
[21] See Fed. R. Evid. 801(c), 802.
[22] See State v. Williams, 133 Ariz. 220, 227 (1982).
[23] See Fed. R. Evid. 803–07.
[24] Id.
[25] Williams, 133 Ariz. at 228.
[26] Id.
[27] Fed. R. Evid. 801.
[28] U.S. Const. amend. VI.
[29] Crawford v. Washington, 541 U.S. 36, 68 (2004).
[30] Id. at 52.
Williams v. Kincaid: Outlier or Trendsetter?
*Christina Charikofsky
I. Introduction
In a summer marked by significant and far-reaching Supreme Court decisions,[1] the Court denied a consequential petition for certiorari in the Fourth Circuit case of Williams v. Kincaid.[2] The denial allowed a landmark ruling, which permitted “gender dysphoria” to qualify as a disability under the Americans with Disabilities Act (ADA),[3] to endure as good law in Maryland, West Virginia, Virginia, North Carolina, and South Carolina.[4] In the months following, the Williams Court’s reasoning has influenced several other federal courts to adopt similar positions when presented with the question of whether gender dysphoria is a qualifying disability under the ADA.[5]
II. Williams v. Kincaid
In 2022, the Fourth Circuit decided the case of Williams v. Kincaid.[6] The plaintiff, Kesha Williams, a transgender woman, was an inmate at the Fairfax County Adult Detention Center.[7] The Detention Center originally placed Williams in women’s housing, but later removed her to male housing after she informed the nurse “that she is transgender, suffers from gender dysphoria, and for fifteen years had received hormone medical treatment for her gender dysphoria.”[8] The nurse changed Williams’ records to indicate her sex assigned at birth, “male”, and consequentially, the Detention Center required Williams to wear men’s clothing.[9]
Subsequently, prison officials denied Williams’ prescribed hormone medication for two weeks.[10] Additionally, Williams suffered severe and frequent harassment by both the male inmates she was housed with and the prison deputies.[11] Williams’ requests to be referred to by female pronouns, shower privately, and be searched by female officers were met with hostile denial.[12] After the conclusion of her incarceration, Williams brought several claims against prison officials, including one under the ADA.[13]
Williams argued she was covered by the ADA because of her diagnosis of gender dysphoria.[14] The defendants argued that gender dysphoria falls outside of the scope of the ADA’s coverage[15] because of a provision prohibiting its application to “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”[16] The District Court of Maryland granted the defendants’ motion to dismiss for failure to state a claim for which relief can be granted.[17] On appeal, the Fourth Circuit considered whether gender dysphoria is a “gender identity disorder,” and if so, whether it results from a physical impairment.[18]
The court found that gender dysphoria does not fall within the meaning of gender identity disorders excluded from coverage under the ADA.[19] The Court held that “the ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of enactment.’”[20] In 1990, “at the time of [the ADA’s] enactment,”[21] the Diagnostic and Statistical Manual of Mental Disorders (DSM) did not recognize gender dysphoria as medical diagnosis, but it did recognize a class of gender identity disorders.[22] As the medical and scientific community’s understanding advanced, the American Psychiatric Association (APA) removed gender identity disorders from the DSM in 2013.[23] At the same time, the APA added the diagnosis of gender dysphoria.[24] The court reasoned that this revision by the APA suggested a meaningful difference between the terms “gender identity disorder” and “gender dysphoria.”[25] Significantly, the definitions between the terms differ greatly, with the latter focusing on the “‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identify and their assigned sex.’”[26]
The court went even further in this distinction, ruling that gender dysphoria can result from a physical impairment, marking another way in which the ADA can cover the diagnosis.[27] The court stated that Williams’ claim that she required hormone therapy leads to a reasonable inference of some physical basis for her gender dysphoria.[28] This was enough to satisfy the minimal pleading standards, and enough for Williams to survive a motion to dismiss.[29]
III. The Trend Following Williams and the Future of Gender Dysphoria Under the ADA
Following the Fourth Circuit’s ruling, the defendants’ petitioned the Supreme Court for certiorari to consider the question.[30] The Supreme Court denied the petition for certiorari, allowing the Williams ruling to stand.[31] The question of whether gender dysphoria is covered by the ADA was an issue of “first impression for the federal appellate courts” when the Fourth Circuit considered it.[32] As the question arises in other circuits, the decision in Williams will likely provide significant guidance and persuasive authority to federal courts. The question becomes; will other circuits follow or break from the key holding of Williams?
In the short time since the Fourth Circuit decided Williams in 2022, other federal courts have found the case persuasive.[33] A federal district court in the Middle District of Pennsylvania (located in the Third Circuit) relied heavily on the reasoning used in Williams to hold that a plaintiff could successfully plead facts to allege that their “gender dysphoria results from a physical impairment.”[34] The Western District of New York (located in the Second Circuit) compared the reasoning of the Williams court with that of courts that have ruled the opposite way.[35] That court found the Fourth Circuit’s reasoning persuasive.[36] Additionally, in the District of Colorado (located in the Tenth Circuit), a federal judge declined to defer to his own district’s precedent on the issue because it was outdated. Instead, the judge cited the Williams decision, saying: “the Court finds persuasive a recent thorough and closely reasoned decision by the Fourth Circuit in Williams v. Kincaid[37]Similarly, the District of Oregon (located in the Ninth Circuit) indicated a nod of approval of the Fourth Circuit’s ruling.[38]
Although the Fourth Circuit’s reasoning in Williams has yet to penetrate circuit boundaries up to the appellate court level, it appears to have gained momentum in only a few short months. Including the Fourth Circuit, five federal circuits have now indicated support for the Williams holding.[39] The quick and continued adoption of the Williams holding will likely pique greater interest among the Supreme Court the next time the issue is presented.[40] Ultimately, only time will tell if the Williams holding will become the rule nationwide.
IV. Conclusion
Williams v. Kincaid remains a historic ruling.[41] In the Fourth Circuit, entities covered under the scope of the ADA must provide reasonable accommodations to transgender individuals dealing with gender dysphoria.[42] While circuits outside of the Fourth have not formally adopted the Williams holding, federal district courts in other circuits have shown a willingness to look to Williams for guidance.[43] The question of whether gender dysphoria is a covered disability under the ADA remains unsettled in most circuits,[44] and the Williams ruling may encourage those with grievances to bring claims under the statute. As a result, many more federal courts will have the opportunity to consider the issue. For now, Williams v. Kincaid will continue to be the leading authority,[45] but the issue seems destined for eventual consideration by the Supreme Court.
*Christina Charikofsky is a second-year student at the University of Baltimore School of Law. Christina received her Bachelor’s in Political Science and Economics from Goucher College—where she was a student-athlete and competed as a member of the Women’s Soccer team. After the completion of her first year of law school, Christina was inducted into the Royal Graham Shannonhouse III Honor Society as a Distinguished Scholar. Christina is currently a Staff Editor for the University of Baltimore Law Review, participates on the Honor Board, serves as the Law Scholar for Professor Matthew Lindsay’s Torts course, and works as a Research Assistant to Professor Dionne Koller. Additionally, Christina is currently completing an externship at Kollman & Saucier, P.A. She is excited to be returning to the firm for the summer of 2024.
[1] See, e.g., Biden v. Nebraska, 600 U.S. 477 (2023); 303 Creative LLC v. Elenis, 600 U.S. 570 (2023); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Groff v. DeJoy, 600 U.S. 447 (2023).
[2] Kincaid v. Williams, 143 S. Ct. 2414 (2023).
[3] Williams v. Kincaid, 45 F.4th 759, 769 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023).
[4] See generally id.
[5] See discussion infra Parts II–III.
[6] Williams, 45 F.4th 759.
[7] Id. at 763.
[8] Id. at 764.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 764–65.
[13] Id. at 765.
[14] Id.
[15] Id.
[16] 42 U.S.C. § 12211(b)(1).
[17] Williams, 45 F.4th at 765.
[18] Id. at 766.
[19] Id. at 769.
[20] Id. at 766.
[21] Id. at 769 (quoting Bostock v. Clayton Cty., 140 S. Ct. 1731, 1750 (2020)).
[22] Id. at 767.
[23] Id.
[24] Id.
[25] Id. at 767, 769.
[26] Id. at 768.
[27] Id. at 770.
[28] Id. at 770–71.
[29] Id. at 770.
[30] Petition for a Writ of Certiorari, Kincaid v. Williams, 143 S. Ct. 2414 (2023) (No. 22-633).
[31] Kincaid, 143 S. Ct. 2413.
[32] Williams, 45 F.4th at 766.
[33] See infra notes 33–37 and accompanying text.
[34] Guthrie v. Noel, No. 1:20-CV-02351, 2023 U.S. Dist. LEXIS 161325, at *27–40 (M.D. Pa. Sep. 11, 2023).
[35] Kozak v. CSX Transp., Inc., No. 20-CV-1845, 2023 U.S. Dist. LEXIS 133299, at *13–16 (W.D.N.Y. Aug. 1, 2023).
[36] Id. at *15.
[37] Griffith v. El Paso Cnty., No. 21-cv-00387-CMA-NRN, 2023 U.S. Dist. LEXIS 32186, at *46–47 (D. Colo. Feb. 27, 2023), adopted by 2023 U.S. Dist. LEXIS 74698.
[38] Gibson v. Cmty. Dev. Partners, No. 3:22-cv-454-SI, 2022 U.S. Dist. LEXIS 189828, at *20 (D. Or. Oct. 18, 2022) (“The Ninth Circuit has not addressed these categorical exclusions. The Fourth Circuit, however, recently held that as a matter of statutory construction, gender dysphoria is not a gender identity disorder, and so nothing in the ADA compels the conclusion that gender dysphoria is excluded from ADA protection. The Court need not determine whether gender dysphoria constitutes a disability under the ADA or Rehabilitation Act to decide Defendants’ motion. Assuming without deciding that gender dysphoria is a disability. . . .” (internal citations omitted)).
[39] See id.; Griffith, 2023 U.S. Dist. LEXIS 32186, at *46–47; Kozak, 2023 U.S. Dist. LEXIS 133299, at *13–16; Guthrie, 2023 U.S. Dist. LEXIS 133299, at *13–16.
[40] See Kincaid v. Williams, 143 S. Ct. 2414, 2415 (2023) (Alito, J., dissenting).
[41] See discussion supra Part I.
[42] See Williams v. Kincaid, 45 F.4th 759, 769 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023); 42. U.S.C. §§ 12101–12213.
[43] See Gibson, 2022 U.S. Dist. LEXIS 189828, at *20; Griffith, 2023 U.S. Dist. LEXIS 32186, at *46–47; Kozak, 2023 U.S. Dist. LEXIS 133299, at *13–16; Guthrie, 2023 U.S. Dist. LEXIS 133299, at *13–16.
[44] See Williams, 45 F.4th at 766 (“[T]he district court held, that the exclusion for ‘gender identity disorders not resulting from physical impairments’ applied to . . . gender dysphoria and barred . . . ADA claim[s]. Whether this is so constitutes a question of first impression for the federal appellate courts.”).
[45] See id.
Term Limits, Age Limits, Or Cognitive Assessments: Evaluating Potential Solutions to America’s Aging Leadership.
*Brendan Bloom
I. Introduction
America’s political leadership is one of the oldest in its history,[1] and the signs are starting to show. In September, 96-year-old federal judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit was suspended from hearing cases after she refused to undergo an evaluation as part of an investigation concerning her mental fitness.[2] The Chief Judge of the Federal Circuit began the investigation into Newman in March after reports that Newman suffered a cardiac incident emerged.[3] Preliminary results from the investigation indicate that court staff witnessed Newman struggle with basic tasks and become hostile with court staff.[4] Similar incidents have occurred in the legislative branch. Senator Mitch McConnell, 81, appeared to freeze and lack capacity to speak in two separate press conferences over the summer.[5] In September, Senator Dianne Feinstein passed away while in office as the oldest sitting Senator at age 90. President Biden, who has announced his run for reelection, would be 82 by the time his second term begins. As our politicians continue to age, issues related to their health and competency will only continue to increase.[6] How should the electorate handle the increasing age and corresponding capacity of its leaders? Instituting age caps and regular cognitive assessments offer two possible ways to handle this growing issue.
II. Congressional Term Limits: A Pipe Dream? Or Legitimate Solution?
Some have suggested that an amendment to the Constitution establishing term limits for members of Congress would solve the issue of America’s aging politicians.[7] This is not a new suggestion. This issue was at the forefront in the 1995 landmark Supreme Court case, U.S. Term Limits, Inc. v. Thornton.[8] Prior to U.S. Term Limits, Arkansas passed an amendment to its state constitution that prohibited a person from serving more than three terms in the U.S. House of Representatives.[9] The Court held, however, that it was beyond a state’s power to impose stricter qualifications for prospective members of Congress than those created by the federal Constitution.[10] The decision had immediate and far-reaching effects, invalidating term limit legislation on the books in twenty-three states. The majority opined that a state’s ability to impose such a change to the Constitution could only come from a constitutional amendment.[11] A constitutional amendment to establish term limits for members of Congress is not out of the realm of possibility,[12] but there are no illusions about the uphill battle supporters of such an amendment would face. The Twenty-Seventh Amendment was the last to be ratified over thirty years ago, though it was actually proposed as part of the initial batch of amendments in 1789.[13]
III. Age Limits
The current argument for congressional term limits fails to adequately address the issue of aging political leadership because it does not account for the executive and judicial branches of our government. For example, as of 2020, the average age of federal judges was sixty-nine years old.[14] Because all federal judicial appointments are for life, some legal scholars are concerned that many of America’s federal judges will soon be at an age in which their cognitive abilities could be in question.[15] To be elected President, a person must only be a natural-born citizen and have attained the age of 35.[16] The two most recently-elected presidents were the second oldest and the oldest in U.S. history, at the ages of 70 and 77, respectively.[17]
As an alternative to term limits, the American people could impose caps on the age of the various political offices and federal judges like the limits imposed on other professions in America such as pilots, police officers, and even judges in some state courts. However, like term limits, this solution would still require a constitutional amendment since qualifications for federal office are expressly laid out in the Constitution. Though constitutional scholars have offered examples of what that amendment might look like,[18] this solution would likely be overbroad since “age is just a number.” Neuroscience holds that people and their brains age differently.[19] There is no automatic decline in cognitive capacity.[20] “The concern for aging in office is not age itself, but the cognitive decline often accompanying it. An Amendment prohibiting individuals from taking office based on age alone could fail this goal by prohibiting a competent and capable eighty-year-old from taking office while allowing a sixty-five-year-old with severe memory concerns to govern.”
IV. A Third Solution
Recently, some politicians have called for a different approach to the age and capacity issue: basic mental competency tests for politicians.[21] While these types of competency tests could theoretically apply to a politician or judge of any age, some scholars cite 75 as the best age.[22] As opposed to a cap, competency tests would not impose a mandatory retirement, but would instead require politicians to answer a variety of basic questions such as how many grandchildren they have or where they were born.[23] Such an assessment could be used to signal budding cognitive issues in political leaders of any age, but particularly those aging and more likely to become subject to cognitive failures.
For the aging judiciary, one scholar has suggested federal judges receive individual cognitive assessments, with the option to keep the results of the assessment private to maintain judicial independence from other branches of government.[24] This could be an effective tool for a situation like the one currently facing Judge Newman.[25] However, requiring a mental competency test as part of a targeted investigation, as in Judge Newman’s case, could feel hostile. A better solution would be to require mental competency tests as a baseline for all federal judges. While this solution is tailored to judges, a similar framework centered on confidential tests could be applied to members of Congress.
A downside to this proposal is the potential for discrimination against people based on age. Forcing a politician or judge to undergo a mental competency test based on their age could raise equal protection concerns.[26] However, requiring all members of a given political body to undergo competency assessment—regardless of their age—could avoid this potential obstacle.[27]
V. Conclusion
The average age for America’s judges, congressmembers, and presidents is increasing. Recent indicators show that concerns about their cognitive health and capacity may become a large issue—if not a crisis—in the near future.[28] Going forward, American lawmakers should consider solutions to this issue, whether by a constitutional amendment limiting terms of office or capping age or by imposing mandatory cognitive assessment tests. Whichever path lawmakers take, navigating potential age-discrimination concerns will be a significant hurdle.
*Brendan Bloom is a second-year student at the University of Baltimore School of Law who is passionate about how history, politics, and law interact. He currently serves as a Staff Editor on the University of Baltimore Law Review. Prior to beginning his law school career, Brendan worked as a federal contractor for five years, helping government agencies achieve compliance with federal records laws. In September 2023, he was inducted into the Royal Graham Shannonhouse III Honor Society. During his first-year summer, Brendan interned at the Maryland Office of Administrative Hearings in Hunt Valley, MD and at Frost Law in Annapolis, MD. He is excited to begin working as a Law Clerk this summer at Schlachman, Belsky, Weiner & Davey P.A. in Baltimore.
[1] Joe Murphy, The 118th Congress Is The Third Oldest Since 1789,NBC News (Jan. 4, 2023, 11:08 AM), https://www.nbcnews.com/data-graphics/118th-congress-age-third-oldest-1789-rcna64117.
[2] Rebecca Falconer, Judge, 96, Suspended Over Refusal to Comply With Order on Mental Fitness Test, Axios (Sept. 21, 2023), https://www.axios.com/2023/09/21/judge-pauline-newman-suspended-age-mental-fitness#.
[3] Michael Shapiro, Embattled 96-Year-Old Judge Suspended in Disability Probe, Bloomberg Law (Sept. 20, 2023, 9:06 AM), https://news.bloomberglaw.com/ip-law/96-year-old-judge-suspended-a-year-by-fed-circuit-colleagues.
[4] Order in re Complaint No. 23-900015 at 3 (Fed. Cir. Jud. Council Sept. 20, 2023), https://cafc.uscourts.gov/wp-content/uploads/JudicialMisconductOrders/September%2020,%202023%20Judicial%20Council%20Order.pdf.
[5] Ivana Saric, Mitch McConnell Appears to Freeze During News Conference a Second Time, Axios (Aug. 30, 2023), https://www.axios.com/2023/08/30/mcconnell-freeze-press-conference-senate.
[6] Daniel L. Murman, The Impact of Age on Cognition, National Library of Medicine National Center For Biotechnology Information, Aug. 2015. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4906299/#:~:text=The%20most%20important%20changes%20in,memory%2C%20and%20executive%20cognitive%20function.
[7] Christopher Rhodes, Opinion, The US Doesn’t Need Age Limits – It Needs Term Limits, Al Jazeera (July 7, 2023), https://www.aljazeera.com/opinions/2023/7/7/the-us-doesnt-need-age-limits-it-needs-term-limits.
[8] U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
[9] Id. at 783-84.
[10] Id. at 837.
[11] Id. at 838.
[12] S.J. Res. 2, 118th Congress (2023). In January 2023, Senator Ted Cruz and others introduced a proposed amendment to the U.S. Constitution to limit the number of terms a member of Congress can serve. Id. The amendment proposes that Representatives be limited to three terms and Senators limited to two. Id.
[13] Steven G. Calabresi & Zephyr Teachout, The Twenty-Seventh Amendment, National Constitution Center (last visited Feb. 7, 2024), https://constitutioncenter.org/the-constitution/amendments/amendment-xxvii/interpretations/165
[14] Frances Shen, Aging Judges, 81 Ohio. St. Law. J. 235, 237 (2020). https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1671&context=faculty_articles
[15] Id. at 235.
[16] U.S. Const. art. II, §1.
[17] Gianna Melillo, Here Are The Oldest US Presidents To Ever Hold Office, The Hill (Nov. 21, 2022), https://thehill.com/changing-america/enrichment/arts-culture/3744771-here-are-the-oldest-us-presidents-to-ever-hold-office/
[18] Derek T. Muller, Blog, What Might a Constitutional Amendment Capping The Age of The President Look Like?, Excess of Democracy (Nov. 14, 2019), https://excessofdemocracy.com/blog/2019/11/what-might-a-constitutional-amendment-capping-the-age-of-the-president-look-like.
[19] Shen, supra note 14 at 235.
[20] Id.
[21] Shauneen Miranda, Nikki Haley Says America “Less Safe” Due to Older Politicians Stumbles, Axios (Sept. 3, 2023), https://www.axios.com/2023/09/03/nikki-haley-mitch-mcconnell-mental-competency-america.
[22] David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 1040 (2000).
[23] Miranda, supra note 20.
[24] Shen, supra note 11 at 309.
[25] See supra notes 2-4, and accompanying text.
[26] Shen, supra note 11 at 278.
[27] Miranda, supra note 20.
[28] Josh Marcus, The Danger of America’s Aging Politicians, The Independent (May 12, 2023), https://www.the-independent.com/news/world/americas/us-politics/joe-biden-age-feinstein-2024-b2335042.html
The Rocky Road to Mining in Space and Boulders in the Way of Global Regulation.
*Collin Riley
I. Introduction
The technological challenges and financial barriers to mining in space remain unconquered as the burgeoning commercial enterprise leaves a trail of defeated companies in its wake.[1] Estimated quantities of precious metals such as platinum, iridium, and gold found in asteroids have prompted staggering evaluations of the industry—some reaching into the trillions.[2] Many believe that helium-3 and water deposits on the moon are essential for the future of space exploration,[3] which is why the idea of mining space resources has garnered so much attention.
With nations and private companies striving to attain the first advantage in the space mining industry, students and scholars worldwide call for more specific international regulations.[4] Current international agreements are vague regarding the collection and ownership of space resources.[5] Proponents for further regulation claim that, without an international agreement, the field could quickly disintegrate into a chaotic free-for-all akin to the California Gold Rush—with much higher stakes.[6] Those in opposition assert that enacting overbearing regulations will stifle development and deter investors.[7] Domestic regulations worldwide serve as an example (or warning) of the industry’s current situation and its likely path forward.[8] The volatile nature of international law and the immense power of certain space-faring countries do not inspire much hope when it comes to enacting global regulations any time soon.
II. A Very Brief History of International Space “Law”
Article II of the 1967 Outer Space Treaty (OST)—the most controlling regulation in current space law—states “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[9] The OST is a multilateral agreement signed and ratified by over a hundred countries including, the United States, Russia, China, and Japan.[10] During the midst of the Cold War and the Space Race between the United States and the Soviet Union, the OST was developed to prevent nations from fighting over territory in space and to avoid the damage that “self-seeking exploitation” might cause.[11] In setting the foundation for the entire industry, the OST prohibits any nation from declaring any celestial body as its own while stating that the exploration and use of space should benefit all of humanity.[12] Since the adoption of the OST, the United Nations also adopted the “Moon Treaty” in 1979, which discussed exploiting the Moon’s resources; however, countries without plans to engage in space mining were the only ones to ratify it.[13]
III. Recent Regulations
In 2015, the United States became the first country to enact space mining legislation with Congress passing the 2015 U.S. Commercial Space Launch Competitiveness Act (Space Act)—giving private citizens and companies the right to “posses, own, transport, use and sell” space resources obtained in accordance with the OST.[14] Following in its footsteps, nations such as Luxembourg and the United Arab Emirates enacted similar legislation that sets up a framework for commercial space mining.[15] Critics of the 2015 U.S. Space Act claim that the legislation might have been pushed through too quickly.[16] Others espouse that the Space Act gives potential miners too much freedom and will hinder the equal access to space resources that the OST calls for.[17]
In 2020, NASA, on behalf of the U.S., launched the Artemis Accords, a non-binding multinational agreement focused on peace, sustainability, and cooperation in space.[18] The Accords reiterated signatories’ compliance with the OST.[19] Although certainly a step in the right direction, certain space-faring nations such as Russia and China remain absent from the signatory list.[20]
IV. What is Driving a New International Agreement
Many individuals have expressed various reasons for further international regulations of the space mining industry. Predominately, proponents suggest a universal framework that would create a legally binding baseline for property rights in space.[21] Comparing the current state of the space mining industry with the California Gold Rush, Mathew Feinman stated: “Like the miners of 1848, these space cowboys will rush in search of the next big ‘score’ while governments of the world try to scramble to piece together the regulations that might ultimately, if the past is any indicator, have to conform to the customs already put in place by the mining companies themselves.” [22]
In addition to facilitating a smooth transition to space mining, advocates for further international regulations emphasize their necessity as a safeguard for the economies reliant on the extraction of precious metals.[23] Should space mining go unregulated, countries like South Africa and Zimbabwe, dependent on platinum mining, or The Republic of Congo, dependent on mining cobalt, could face serious economic threats. Effective regulations could allocate money to stabilize these affected economies while helping to diminish atrocities like child labor often utilized in those countries.[24]
The environmental impact of space mining also dominates regulatory discussions. While advocates of space mining voice the benefits to the Earth’s environment that will come with relying less on terrestrial mining, others have focused on the potential damage to the extra-terrestrial environment.[25] Critics of the legislation on space mining in the U.S. claim that the regulations focus too heavily on ensuring successful business and fail to consider environmental protections.[26] Numerous calls for international regulations make it clear that humanity would benefit from a more specific international framework. However, creating such a framework through international law is challenging.
V. Limitations of International Agreements
International law is a complex system that arises from the actions of states and international actors.[27] In deciding international law cases, the International Court of Justice looks at treaties, customary international law, general principles of law, judicial decisions, and experts’ teachings.[28] Considering the industry’s relative infancy, very few international customs or judicial decisions pertaining to the mining of space resources provide guidance. General principles of law bear relevance but need more specificity. Thus, treaties and experts’ teachings are left to determine international law. However, the lack of ratification by space-faring nations of the Moon Agreement evinces the difficulties of implementing new treaties.[29] Additionally, while various experts around the world have disagreed on paths to achieve new international regulations, a consensus is still possible.[30] Effectively establishing binding international regulations will take a previously unheard-of worldwide coalescence of governments and organizations unified around the common goal of advancing and improving humanity.
*Collin Riley is a second-year day student at the University of Baltimore School of Law and a Staff Editor for Law Review. Before law school, Collin received a Bachelor’s in Business Management from Salisbury University. In May, Collin will join the esteemed staff of Hyatt and Goldbloom, LLC as a summer associate. He would like to take this opportunity to thank the Law Review staff for their immense help in editing and publishing this piece. He would also like to thank his family, girlfriend, and friends for their support and guidance.
[1] See Atossa Abrahamian, How the Asteroid-Mining Bubble Burst, MIT Tech. Rev. (Jun. 26, 2019), https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst-history/.
[2] See Shriya Yarlagadda, Economics of the Stars: The Future of Asteroid Mining and the Global Economy, Harv. Int’l Rev. (Apr. 8, 2022), https://hir.harvard.edu/economics-of-the-stars/.
[3] See Florian Vidal, Helium-3 from the Lunar Surface for Nuclear Fusion?, Polytechnique Insights (May 17, 2022), https://www.polytechnique-insights.com/en/braincamps/space/extraterrestrial-mining/helium-3-from-the-lunar-surface-for-nuclear-fusion/.
[4] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 55–56 (2020); Mathew Feinman, Mining the Final Frontier: Keeping Earth’s Asteroid Mining Ventures from Becoming the Next Gold Rush, 14 Pitt. J. Tech. L. & Pol’y 202, 234–35 (2014).
[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
[6] See Feinman, supra note 4, at 210–14.
[7] See David Sarnacki, Property Rights in Space: Asteroid Mining, 2 Tex. A&M J. Prop L. 123, 146 (2014).
[8] See U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704; Law of July 20th, 2017, on the Exploration and Use of Space Resources, https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html.
[9] Outer Space Treaty, supra note 5, at art. II.
[10] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.S. Dep’t. of State (Jan. 20, 2017), https://2009-2017.state.gov/t/isn/5181.htm#signatory (depicting each country that signed the Outer Space Treaty).
[11] Id.
[12] Outer Space Treaty, supra note 5, at art. II.
[13] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.T.S. 22.
[14] See Maquelin Pereira, Commercial Space Mining: National Legislation vs. International Space Law, 63 Proc. Int’l Inst. Space L. 47, 52 (2020).
[15] Id. at 52–53.
[16] See Craig Foster, Excuse Me, You’re Mining My Asteroid: Space Property Rights and the U.S. Space Resource Exploration and Utilization Act of 2015, 2016 U. Ill. J. L. Tech. & Pol’y 407, 422–23 (2016).
[17] Id.
[18] See The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, Oct. 13, 2020, https://www.nasa.gov/wp-content/uploads/2022/11/Artemis-Accords-signed-13Oct2020.pdf.
[19] Id.
[20] Id.
[21] See Feinman, supra note 4, at 220–21.
[22] Id. at 234–35.
[23] See Yarlagadda, supra note 2.
[24] Id.
[25] See Federico Bergamasco, Space Mining and the Protection of Extra-Terrestrial Environment in the Light of Article IX of the Outer Space Treaty, 60 Proc. Int’l Inst. Space L. 157 (2017).
[26] See Foster, supra note 16, at 427.
[27] Lori Damrosch & Sean D. Murphy, International Law Cases and materials 1 (7th ed. 2019).
[28] Statute of the International Court of Justice, art. 38, ¶ 1.
[29] See Katharina Buchholz, The Countries That Signed the Moon Treaty, Statista (Aug. 23, 2023), https://www.statista.com/chart/18738/countries-that-are-signatories-or-parties-to-the-1979-moon-treaty/.
[30] See Feinman, supra note 4, at 221–35; see Pereira, supra note15, at 55–56; see Yarlagadda, supra note 2.
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