Showing papers in "Fordham Urban Law Journal in 2004"

Blighting the Way: Urban Renewal, Economic Development, and the Elusive Definition of Blight

Abstract: What is "blight"? Over half a century of federal and state urban renewal policy, and a slightly shorter history of local economic development policies, revolve around this question. These policies, ranging from the first stabs at federally-funded urban renewal in the 1940s (1) to the contemporary fascination of local and state governments with tax increment financing ("TIF"), (2) all involve, to some degree, public financing of private economic development or property transactions. (3) In effect, such policies extend the public credit and the public power of eminent domain to private interests--a combination that has often incurred the opposition of both taxpayers and property owners displaced by urban renewal or redevelopment. (4) The legal and political justification for such policies, as a result, leans heavily on an overarching public purpose: the elimination or prevention of blight. (5) But "blight" is rarely defined with any precision in such statutes, and the courts have granted local interests almost carte blanche in their creative search for "blighted" areas eligible for federal funds or local tax breaks. (6) This political and statutory confusion is rooted in a long history of local anxiety surrounding inner city housing, (7) "slum clearance," (8) and the fate of the central business district. (9) A blighted area, as a Philadelphia planner proposed cryptically in 1918, "is a district which is not what it should be," (10) and it is woven through recent history, economic development and urban redevelopment policies. (11) The goals of such policies have always been to eradicate blight; however, as one California state legislator lamented in 1995, "Somewhere along the way ... defining blight became an art form." (12) A few examples underscore the problem. In affluent Coronado, California, local officials declared the entire town blighted in 1985. (13) The resulting TIF zone diverted property tax revenues from the local schools, making the district eligible for supplemental school funding from the state. (14) The city then used the revenues from the TIF to pay for school improvements. (15) In the St. Louis suburb of Des Peres, local officials declared a thriving shopping mall "blighted" in 1997 because it "was too small and had too few anchor stores," and more specifically, because it didn't have a Nordstrom's. (16) The blight designation paved the way for a $30 million TIF deal that was used to attract the upscale retailer and other new tenants. (17) In Lancaster, California, local developers used a blight designation and the accompanying tax subsidies to develop a new mall in the mid-1980's around "anchor" stores including Costco, Wal-Mart, and 99 Cents. (18) When Costco threatened to relocate in 1998, Lancaster officials relying on the old "blight" designation moved to acquire the 99 Cents property through eminent domain--with the intention of giving it to Costco outright, a tack which the courts, in a rare check on local blighting, condemned as "nothing more than the desire to achieve the naked transfer of property from one private party to another ... to satisfy the private expansion demands of Costco." (19) Clearly "blight" has lost any substantive meaning as either a description of urban conditions or a target for public policy. Blight is less an objective condition than it is a legal pretext for various forms of commercial tax abatement that, in most settings, divert money from schools and county-funded social services. (20) Redevelopment policies originally intended to address unsafe or insufficient urban housing are now more routinely employed to subsidize the building of suburban shopping malls. (21) And such policies (especially state TIF programs) not only ignore the ongoing urban crisis, but by subsidizing sprawl, routinely contribute to blight in the cities under the pretext of fighting it in the suburbs. (22) I. FIGHTING BLIGHT: THE LEGAL AND LEGISLATIVE BACKGROUND The modern statutory definition of blight is rooted in our first urban crisis, the Progressive-era response to the urbanization and industrialization in the late nineteenth and early twentieth century. …

The Collision of Church and State: A Primer to Beth Din Arbitrarion and the New York Secular Courts

Abstract: When the United States of America was founded, the concept of the complete separation between Church and State was revolutionary and embedded deep within the foundation of this country. (1) In the twenty-first century, the American legal system embraced a different change: utilizing alternative dispute resolution methods such as arbitration, as an alternative to litigating in court. (2) This Comment discusses the dilemmas that arise when New York courts are asked to enforce arbitration decisions promulgated by a religious arbitration panel called a beth din, (3) which operates primarily under Jewish law. For over four thousand years, Jews have been adjudicating disputes in their own court system in accordance with halacha (4) (Jewish law) and composed of batei din. (5) This practice endured, and the beth din largely mirrors the structure of an arbitration panel. One heralded benefit of arbitration is that an arbitrator can be selected based upon his specialized knowledge in a subject area, and can accordingly make an educated determination of the dispute. (6) In beth din proceedings, the specialized knowledge possessed by the arbitrator is knowledge of halacha. (7) Beth din decisions could become legally binding and enforceable by the secular courts if the parties were asked to sign an arbitration agreement enabling the beth din to decide their dispute. (8) The interaction between the secular courts and beth din arbitration has created a distinct body of case law, where the secular courts have been called upon to either enforce or vacate decisions made pursuant to religious legal principles. These situations test the ability of the secular courts to walk the uncertain line separating Church and State when ruling on the enforceability of decisions made by a religious tribunal. Part I of this Comment will examine the reasons why an independent Jewish religious court system is required and utilized despite the existence of a fair and equitable secular court system. This section will describe the Jewish legal principles involved, and how they impact both Jewish litigants and lawyers. Part II will describe the mechanics of transforming a religious tribunal into a legally binding arbitration panel in New York State. This Comment will focus on courts in New York, the state with the largest orthodox Jewish population in the United States and, consequently, the state with the majority of existing case law. (9) Part III will discuss the limited grounds upon which a beth din award may be vacated through statutory requirements and recent developments in the case law. This Comment will demonstrate the courts' reluctance to treat a beth din as a standard arbitration panel because of the possibility of encroaching on the Free Exercise Clause of the Constitution. (10) Lastly, this Comment will identify areas in which the courts have failed to vacate awards, seemingly deserving of vacature, due to a fundamental lack of understanding of Jewish mores and customs. This failure to vacate thereby demonstrates the need for further reform in this area of law. I. HISTORICAL, HALACHIC, AND PRAGMATIC REASONS FOR THE BETH DI Beginning with a central authority of Jews established by the Roman conquerors to control the population after the fall of Judea in 70 C.E., most secular governments under which Jews lived throughout the Diaspora encouraged them to establish some form of self-government to further their own aims, such as tax collection. (11) Even when there was a general self-government policy for ethnic groups, particularly in Europe, Jews were unique in being allowed their own system of courts wherever they organized community life. (12) The Jewish court system initially developed due to the Talmudic ban on Jews voluntarily presenting their cases to courts governed by idolatrous peoples, courts of Akkum. (13) This prohibition was extended to all secular courts because the phrase "courts of Akkum" was interpreted to include the Muslim courts, which were not presided over by idolatrous peoples. …

Catholic Clergy Sexual Abuse Meets the Civil Law

Abstract: I OVERVIEW OF THE PROBLEM In 1984, the Roman Catholic Church began to experience the complex and highly embarrassing problem of clergy sexual misconduct in the United States Within months of the first public case emerging in Lafayette, Louisiana, it was clear that this problem was not geographically isolated, nor a minuscule exception (1) Instances of clergy sexual misconduct surfaced with increasing notoriety Bishops, the leaders of the United States Catholic dioceses, were caught off guard They were unsure of how to deal with specific cases, and appeared defensive when trying to control an expanding and uncontrollable problem The secular press and electronic media exposed the Lafayette case, and within a year the priest-perpetrator, Gilbert Gauthe, pled guilty to thirty-nine counts of sexual battery, and was sentenced to twenty years in prison (2) In addition, the bishop and the ecclesiastical jurisdiction that had enabled Gauthe's predatory behavior were subsequently subjected to a civil suit for monetary damages (3) The sexual abuse of young boys by Catholic clerics has served as a catalyst for intensive inquiry into two basic aspects of church life: the sexual abuse of persons by members of a clergy obliged to celibacy, and the response by the authority structure of the Catholic Church The scrutiny by the secular media has been relentless, and continues to increase in its fearlessness and intensity (4) This public exposure has strengthened the resolve of vast numbers of victims to disclose their abuse After first approaching Church authorities for assistance and redress, most victims have found the Church's internal system unwilling or unable to provide the relief sought Further, in many cases, the official Church reaction amounted to a re-victimization, whereby the victims were treated as an enemy force (5) This has resulted in the second, but equally vital area of scrutiny--the use of the American civil court system as a means by which victims of clergy sexual abuse seek redress Although there are isolated instances of criminal and civil court actions prior to 1984, the Lafayette case appears to have opened a wide gate (6) Since that time there have been several hundred criminal prosecutions of Catholic clerics throughout the United States (7) Charges have varied from child endangerment to alienation of affection and aggravated rape (8) Sentences have varied from probation, to multiple life terms (9) It is estimated that perhaps 250-300 Catholic clerics have received sentences through the criminal justice system (10) Since 1984, there have been about 3000 civil cases related to clergy sex abuse throughout the United States (11) The vast majority of these cases have ended in settlement There have been about twelve trials, all of which were high profile (12) The twists and turns of the civil discovery process have been the most important factors in exposing the extent and nature of clergy sexual abuse This has also been the most damaging force for the image of Church leadership, because it opened up the Church to public scrutiny on a new and invasive level The problem of clergy sexual abuse has been most visible in the United States, but it is by no means confined to this country Exposure of widespread sexual abuse and consequent hierarchical mishandling has occurred in Canada, Australia, New Zealand, Ireland, Scotland, Wales, Great Britain, Mexico, Spain, Poland, Austria, Germany, France, Argentina, and Hong Kong (13) The denunciation of clerical abusers, their notoriety, and subsequent legal actions against them depends on several factors: the willingness of victims to go public, the cooperation of the secular media in exposing the problem, and the prosecution of suits by the civil legal system Beneath these factors is an over-arching dimension that is perhaps the single most important issue: the place of the Catholic Church in the civic culture …

Let Them Rent Cake: George Pataki, Market Ideology, and the Attempt to Dismantle Rent Regulation in New York

Abstract: INTRODUCTION There are not many issues upon which the editorial boards of all the daily newspapers in New York City agree Yet in the spring of 1997, The New York Times, the Daily News, the New York Post, and Newsday were unanimous in respect to one thing: rent regulation had to go The editorialists (joined, less surprisingly, by their colleagues at the Wall Street Journal and Crain's New York Business) were hardly reflecting popular sentiment A poll of New York City residents in June 1997 found that "[a]t least 70 percent of [New Yorkers]--including homeowners and tenants--said rent regulations were necessary to provide affordable housing and to prevent rents from soaring" (1) What the editorialists were reflecting was the pervasiveness of the idea of the "free market" as natural and beneficial, and of the corollary notion that restrictions on that free market are unnatural, unjust, and counterproductive (2) This theology provided the basic assumption that underlay and constricted much of the policy debate over whether to extend, modify, or eliminate the rent regulation system, a system which was due for its periodic renewal on June 15, 1997 (3) Opponents of rent regulation, of course, had a serious problem with which to deal Rent regulation protected about 25 million people in New York City (4) It was thus crucial for adherents of market theology to don the garb of market populists, and they did so with a vengeance Fundamental questions of greed and power were turned on their head Forget that the principal motive for building owners and their allies might indeed be the maximization of profit Forget that the security of tenure that tenants enjoyed under rent regulation (ie, the right to lease renewals) would evaporate if rent regulation were to end and that, thereafter, tenants could remain in their homes only so long as the arrangement suited the landlord (5) Focus instead on a very different picture painted by opponents of rent regulation: the quintessential landlord was the struggling owner of a small building being deprived of the ability to earn a livelihood (6) The quintessential tenant was the wealthy family shamefully exploiting the system at the expense of their poorer brethren (7) If only regulation were ended, rents might actually go down, and a new era of apartment construction would begin At the center of the controversy was New York's governor, George Pataki, a man firmly committed to market theology, and a man whose reelection campaign was only a year away The Governor, the unquestioned leader of his party, (8) had an ambitious agenda: set rent regulation on the road to its demise while presenting himself as a friend of tenants (9) Through a strategy of concealment, soft-pedaling, and implicit coordination with like-minded, pro-landlord forces, he came close to staging a spectacular short-term victory Instead, he ultimately had to settle for making what was still real and substantial progress (10) toward a day when no apartments would be regulated, and market values would trump all other values Indeed, the June 2003 reprise of the rent regulation debate can only be understood in light of the outcome in 1997 In 2003, anti-regulation forces were happy to consolidate their gains by letting the 1997 system continue for as long as possible; pro-regulation advocates were desperate to recapture lost ground by trying to repeal the core of the 1997 amendments (11) Though not well understood by the public or press at the time, 1997 had been a watershed moment This essay examines the ideological and political struggle over rent regulation that was waged by rent regulation opponents in the Spring of 1997 Part I traces the debate as it unfolded in 1997, including the role of legislative leaders, the governor, the press, and anti-regulation advocates It focuses on the assumptions about the market shared by the various anti-regulation protagonists, and on the factors starkly omitted from their analyses …

Saving Roe is not enough: when religion controls healthcare.

Abstract: INTRODUCTION Gilroy, California, is a small town about thirty-three miles south of San Jose--the heart of Silicon Valley. (1) Gilroy historically has been an agricultural community. It has the highest rates of poverty and teen pregnancy in Santa Clara County. (2) It has one hospital. (3) There are five Ob/Gyns. (4) The hospital is the only site in Gilroy with the appropriate facilities to perform inpatient and outpatient tubal ligations, as well as abortions. (5) In 1999, Catholic Healthcare West purchased the hospital (6) and immediately told the physicians that they must abide by Catholic teachings; they had to stop performing sterilizations and abortions, and family planning supplies and emergency contraception were no longer available at the hospital or in the emergency room. (7) The impact on the community was immense. Physicians were outraged at the interference with their medical judgment and the doctor-patient relationship over providing sterilizations. They organized, wrote letters to the editor, voted as a hospital staff to preserve sterilizations, and even appealed directly to the Bishop--all to no avail. (8) Women, who had the time and could afford transportation, traveled to San Jose to get the services they needed. (9) The Gilroy doctors lost many insured patients, thereby reducing their incomes. (10) Low-income women, who could not manage the thirty-five-mile-each-way bus trip, were left with no alternatives. (11) One woman, pregnant with her ninth child, could not get the voluntary sterilization even though she had already signed her consent form. (12) According to her doctor, another pregnancy would "drastically increase the chance of life-threatening complications." (13) January 22, 2004 marked the thirty-first anniversary of Roe v. Wade (14) which gave women the Constitutional right to seek abortion services until the fetus is viable. (15) Ever since Roe, many have been battling to keep that legal right. Access to abortion, however, and the broader scope of reproductive health services--from family planning to fertility services to HIV and AIDS prevention--also are threatened by an issue which receives much less public attention. This is the increased role in the health care marketplace of religiously-owned-and-operated hospitals and health care entities. While our nation struggles with enormous issues of access to health care for millions of uninsured and underserved individuals, consumers of health care services nonetheless have developed reasonable expectations of certain "patient rights." Health care professionals are held accountable to their patients including the paramount principle of the sanctity of the patient-doctor relationship and patient-doctor communication. Patients expect that they will receive full and medically accurate information that will enable them to control their health care choices. (16) Individual health care providers have a reasonable expectation that they will be able to offer complete information to their patients and to make medical decisions for treatment options based on medical research and generally accepted standards of practice. When a woman decides that the child she is about to deliver is going to be her last, she expects her physician will be able to perform a sterilization; when a woman is raped, she expects that the emergency room to which she is taken will give her emergency contraception to prevent pregnancy; when a woman of child-bearing years is scheduled to undergo chemotherapy that may destroy her future fertility, she expects to be told that she can harvest her eggs for later implantation; when a physician faces a patient with an ectopic pregnancy, she expects to be free to choose the best treatment for the patient; when a dying patient writes advance directives, she expects that they will be honored; when a patient goes to a health care professional, she expects that she will get all of the medically accurate information she needs. …

The Continuing Crisis in Affordable Housing: Systemic Issues Requiring Systemic Solutions

Abstract: I. INTRODUCTION In 1960, my father bought the first home he ever owned. He was forty years old, with one child away at college and two still in high school. As a career military man, my father picked up his family every two or three years and moved lock, stock, and barrel to a totally new location. Until he first bought a house, our family had lived in rented houses, sometimes on military bases. He bought his first house in Manchester, New Hampshire, because there was no housing available on base, and very little rental housing was available in town. Buying the house was not part of a long-term strategy; we simply needed a place to live, and this house was what he found. (1) My father bought his second house under similar circumstances. (2) He had been transferred to Langley Air Force Base in Hampton, Virginia, and he moved into temporary housing for thirty days. Again, he was looking for housing, and did not care whether he ended up with a rental or a purchase. He bought the house he now lives in for $32,950 in 1972. My father put down 5% and obtained an FHA mortgage at 7% for thirty years. (3) The four bedroom, two and a half bath home is in a nice neighborhood, and he has taken good care of it. It is now worth over $150,000. Even today, my father has trouble thinking of himself as owning an asset that is worth over $100,000, because that sounds like "an awful lot of money" to him. (4) As it is for most Americans, (5) my father's house is his major asset. Unlike many Americans, however, my father is not buried under a mountain of debt. (6) Not only has he managed to pay off the mortgage on his house, but he has resisted the many offers that he gets to take out home equity loans, and he pays off the one credit card that he uses every month. My father is not wealthy, although he shares a lot of values in common with the true millionaires described in Stanley and Danko's The Millionaire Next Door. (7) Although all of his income is from his military pension and social security, he has a level of economic security that is surprisingly rare in this rich country. This story about my father provides some important lessons about economic security, and suggests that homeownership plays an important role in achieving economic security for American families. Homeownership has played an important role for many middle-class people in achieving economic security, (8) and I argue in this article that it can do the same for people in poverty. Since 1937, when the first federal legislation was enacted to provide housing for low income people, (9) there has been an acknowledged crisis in affordable housing. (10) The number of people in need of housing and unable to afford it through the private market system has continued to outstrip the number of housing units available to this population. (11) The federal government has enacted a range of programs, generally implemented through state or local housing agencies, to address the crisis. (12) In this article, I survey the affordable housing programs and closely examine a few of the most important ones, considering how successful each program has been in achieving its objectives, and in that process, assessing what role each program plays in our national housing policy. (13) The government housing programs are aimed at people who have incomes that are significantly less than the median income in the area where they live. (14) Although my father is not poor, (15) and he was not a beneficiary of the affordable housing programs for poor and low income people discussed in this article, (16) in the final analysis, as I consider what we need to do to address the crisis in affordable housing in this country, I nonetheless return to this story of my father. (17) I believe that his story is relevant to the discussion of the housing crisis, because we will solve the problem only when we are able to collectively learn the important lessons about economic security that my father has learned, and only when we commit ourselves to making those lessons available to low income people. …

The abortion debate thirty years later: from choice to coercion.

Abstract: For more than thirty years, supporters of legalized abortion have publicly advocated for the practice as a matter of "choice." (1) Initially, these advocates argued for a "right to choose" to be free from governmental interference in the decision to abort. In 1971, Sarah Weddington, who represented Jane Roe (2) in the case of Roe v. Wade, (3) argued before the United States Supreme Court for a "liberty from being forced to continue the unwanted pregnancy" (4) She argued before the Court for a negative right, for a restraint on governmental interference in the abortion decision, not for a positive right of access or governmental entitlement to abortion. But today, advocates of legalized abortion argue for governmental facilitation of abortion and are attempting to shift the debate in the public forum from "choice" to "access," a state of affairs that implies "coercion" of those health care providers who disagree. Academic literature (5) attempting to recast abortion jurisprudence has influenced this public debate. These legal arguments propose reshaping the law's treatment of abortion rights (6) by shifting it from a negative liberty to a positive one, thereby requiring the government to provide access. Governmentally secured access, according to this view, (7) includes forcing unwilling health care providers, both institutional and individual, (8) to participate in abortions. (9) Pro-life supporters now find themselves seeking to protect in law not only the life of unborn children and the authentic freedom and dignity of women, (10) but also their right to not participate in what they regard as a monumental injustice. In addition to working proactively for legal protection for unborn children, pro-life advocates are also working to defend the legal tradition, now at least three-decades old, (11) of protection of conscience rights--more specifically, of protection from forced involvement in abortion. An ideology that calls for abortion on demand, at any stage of pregnancy, (12) and, if a woman cannot afford one, paid for by the government, (13) is largely driving the new public debate about whether all health care providers, including Catholic providers, should be forced to participate in abortions. Another factor fuelling this debate is the very nature of the practice of abortion. Abortions, by and large, are performed in freestanding, specialized clinics located in urban areas. According to the most recent statistics available from the Alan Guttmacher Institute ("AGI"), a research organization affiliated with the Planned Parenthood Federation of America, (14) seventy-one percent of all abortions were provided by abortion-dedicated clinics, (15) and ninety-four percent of all abortion providers are located in urban areas. (16) Only five percent of abortions were provided by hospitals, and only 603 hospitals provided them. (17) This number represents 11.6 percent of all hospitals nationwide. (18) The practice of abortion is also increasingly being consolidated into larger facilities. The AGI confirms the trend: "Between 1996 and 2000, the number of providers declined in each size category except the largest (5,000 or more); thus, abortions were increasingly concentrated among a small number of very large providers." (19) Market pressures account for the practice of abortion by specialized, urban and large case-load providers. To generate a profit margin, abortion clinics have almost exclusively located in urban areas where there is a large population base. The New York Times, for example, interviewed abortion providers about the nature of the business and quoted one abortion provider, Dr. William Ramos, as saying, "Abortion clinics are no different from other specialty services.... In the entire state of Nevada, there is only one Lexus dealer and only one Acura dealer." (20) The article concludes, "Clinic owners say they have little choice but to cluster in cities--that is the only way they can find enough patients. …

Econometric analyses of U.S. abortion policy: a critical review.

Abstract: INTRODUCTION Few social issues in the United States are as contentious as the legal status of induced abortion. Thirty years after the Supreme Court declared state laws restricting abortion unconstitutional in Roe v. Wade, (1) poll results suggest that the United States population is almost evenly split over whether the next nominee to the Supreme Court should support or oppose legal abortion in most or all contexts. (2) The salience of the issue is arguably among the highest of all national issues. (3) The motivation behind many individuals' positions regarding abortion policy hinges on normative judgments. That is, many people arrive at their abortion position based on some moral decision about the relative rights of the mother and the fetus. (4) Presumably there is a consequentialist component to the abortion question that is largely ignored in discussions of public opinion about abortion. (5) This consequentialist component, however, has received the bulk of attention in the social science literature regarding abortion policy. The social science literature on the effects of abortion policy has grown tremendously during the last decade. While public health and demographic scholars had consistently examined the effects of changes in abortion policy even before Roe, (6) there has been an explosion of research on the subject in economics journals in recent years. While a few of these articles are primarily theory based, (7) the lion's share of the increase in attention devoted to this subject has come in the form of econometric or statistical analyses of changes in abortion policy. In many ways, changes in abortion policy, especially the issue of legalization, present empirical researchers with an ideal mechanism through which to identify causal relationships between changes in incentives relating to sexual behavior and a host of demographic and public health outcomes. The costs and benefits of sexual behavior are subjective and are likely to be correlated with many observable and unobservable individual characteristics. This makes it difficult to draw causal inferences about the sensitivity of sexual behavior to incentives. Even if data are available on the costs and benefits of sexual behavior accruing to an individual, a fairly heroic assumption in most contexts, any observed correlations between behavior, or outcomes and changes in those costs and benefits might very well be artifacts of omitted variables biases. (8) Changes in abortion policy, however, generally affect costs and benefits of sexual behavior in known and unambiguous ways. Further, since the changes are generally the result of legislative action or judicial fiat, they are likely to be exogenous. That is, the changes will be orthogonal or unrelated to an individual's characteristics, obviating the concern that the changes in costs and benefits will be correlated with important variables that are omitted in the econometric analysis. (9) Econometric researchers have exploited this attractive aspect of changes in abortion policy to examine numerous important social and demographic relationships. These include the effect of incentives on sexual activity, and the effect of limiting unwanted births on welfare payments, crime rates, and women's educational attainment, as well as the direct effect of changes in abortion policy on abortion and fertility decisions. Setting aside the rights-based arguments for and against abortion availability, these positive analyses have large implications for the evaluation of abortion policy. A sophisticated understanding of what econometric research tells us about the effects of abortion policy could greatly improve social welfare by informing policymakers about the consequences of their actions. Unfortunately, the econometric literature on this topic is technical, placing it beyond the ken of most policymakers. Further, some media popularizations of research in this field have been influenced by the various groups who have a vested interest in seeing abortion policy swayed in one direction or another. …

Hungry, Hungry HIPPA: When Privacy Regulations Go Too Far

Abstract: Privacy has many different definitions ranging from informational privacy to civil libertarian ideas of personal autonomy. (1) It is difficult to define as it arises from a complex set of rules and institutions which determine the limitations and availability of information. (2) As we find new ways to harness the massive amounts of available information, our lives may be subject to unwanted scrutiny and real losses stemming from privacy violations. (3) While absolute privacy is unattainable, there are good reasons for pursuing policies which might prevent the erosion of its boundaries--no matter how gray or ill-defined those boundaries may be. (4) In the area of personal health and medical information, the sensitive nature of the information at stake makes such losses all the more perilous and potentially injurious. (5) Congress, concerned with the specter of privacy violations made possible by advances in technology and the use of electronic data storage, enacted medical privacy regulations with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). (6) HIPAA imposes considerable regulatory burdens on health care organizations in the hope that strict administration and control of information will prevent both real and perceived injuries from unauthorized and unwanted scrutiny of personal health data. (7) These concerns are by no means unfounded, but it remains to be seen whether HIPAA's means of prevention are in fact the best cure. Part I of this Comment traces a brief overview of the general development and regulatory requirements of HIPAA. Part II critiques HIPAA from a law and economics perspective, examining the economics of privacy, the problematic conditions in the market for health care services, whether HIPAA adequately addresses privacy concerns, and the costs and consequences of HIPAA. Part III suggests several alternatives for privacy advocates. In making policy choices, the costs should be carefully weighed against the benefits, and the outcomes should significantly solve the problems the policy was intended to address. (8) The tradeoffs we accept in return for greater privacy protections should reflect our individual preferences to the greatest extent possible, and the solution put into place should have the flexibility to adjust to changing needs and the appropriate incentives to improve over time. Ultimately, HIPAA fails to meet these criteria, creates a number of new legal and economic problems, and adds regulatory and financial burdens to an already complex and costly health care system. I. HIPAA's IMPLEMENTATION While HIPAA's general policy goal was to protect the continuity of employee health coverage when changing jobs, (9) the primary purpose of the privacy provisions was to address the public's concern over employer access to sensitive employee medical information. (10) Other goals included providing additional safeguards against third party access to "protected health information" ("PHI"), (11) establishing procedures for information access, (12) and giving patients notice and access rights to their medical information. (13) The HIPAA legislation gave Congress a self-imposed deadline of three years to enact legislation protecting the privacy of health information. (14) Congress required the privacy regulations to address three specific areas: 1) The rights that an individual who is a subject of individually identifiable health information should have. 2) The procedures that should be established for the exercise of such rights. 3) The uses and disclosures of such information that should be authorized or required. (15) In lieu of Congress meeting the deadline, the Secretary of Health and Human Services ("HHS") was authorized to enact such regulations. (16) Congress failed to act before the HIPAA deadline in 1999. The HHS Secretary then undertook the task, issuing final regulations in April of 2001, which went into effect on April 14, 2003. …

Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice

Abstract: INTRODUCTION For the moral judge each day is a good day to live as well as--in the words of the Plains Indian warriors--"a good day to die." (1) That is to say, the judge embraces his professional life most fully when he is prepared to fight--and be criticized or reversed--in striving for justice. In a democratic republic such as ours, the role of judges is severely circumscribed. They must apply the constitution and laws as adopted by the founders, legislature, and executive--with the interstitial play provided by our common law system. Some discretion to interpret and obtain a reasonable result is afforded. Even in a hierarchical judicial system that provides room for review and correction on appeal, any more unstructured freedom of judges to ignore or apply rules as their personal predilections suggested could lead to a chaotic, arbitrary, and unpredictable system of jurisprudence, impossible for citizens to comply with in their real worlds because they could not foresee when their conduct was in accord with society's not yet delineated demands. When judges can cut themselves free of the law's dictates, it is not a foregone conclusion that all will see fairness the same way. Some German judges were Nazis; some post-Brown judges were segregationists. So, the conclusion is clear: judges must follow the law to avoid a kritarchy (2)--except, it is submitted, when that law requires the violation of the essence of mankind's sense of justice. The incongruity between the law and demands of a core right (call it natural justice if you will) must be absolutely clear if a judge is to rely on this fallback duty to the heart of fairness. In this country, the crisis of conscience was reached most clearly in the contradiction between, on one side, Calhoun and Chief Justice Taney who predicated their views on the assumption that Negroes were inferior to whites and, on the other, Lincoln's and Jefferson's (in his better self) that the Declaration of Independence was decisive in holding that all men are created equal. (3) A subsidiary aspect of that great battle over "race," which dominates our history, was resolved fifty years ago when Brown v. Board of Education (4) overruled Plessy v. Ferguson. (5) The reverberations of that Brown struggle are still being played out. (6) The judge must decide: does this law violate the essence of my duty to self and humanity. The process is gut wrenching. To society it is often confounding. The battle against fundamental injustice is now being waged in trial courtrooms in the confrontation between Federal Sentencing Guidelines (7) designed to punish by those afar without understanding the unnecessary cruelties that result when real human beings before the court are treated as cyphers rather than individuals. That struggle is not yet resolved, though unrelenting pressure by trial judges and others for rationality and justice may be having some effect. (8) This Article discusses the exercise of judicial independence by judges who have opposed racism and other legally-sanctioned injustices, as well as judicial failures to oppose injustice. In illustrating the range of options available to judges faced with the prospect of enforcing unjust laws, only one is ruled out: silent acquiescence. In Germany, the Nazi judges' silence, compliance, and active participation in the gravest crimes against humanity serves as a reminder that the duty to decide cases in accordance with statutes, precedent, or regulations cannot be absolute. (9) As Professor Maria Marcus's article Austria's Pre-War Brown v. Board of Education (10) shows, the Austrian Constitutional Court chose to nullify a 1931 Nazi-inspired effort to separate Jewish and Christian students in Universities rather than to adopt a readily available basis for refusing the case. (11) This judicial choice, made despite pressure and peril, warded off legally imposed university segregation until the Anschluss of Germany and Austria seven years later. …

What Lawrence v. Texas says about the history and future of reproductive rights.

Abstract: On the final day of its term this June, the U.S. Supreme Court handed down its long-awaited decision in Lawrence v. Texas, a case challenging a Texas law criminalizing consensual sex between gay adults. (1) Writing for the Court, Justice Anthony M. Kennedy invalidated the law on the grounds that the Constitution's guarantee of "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and that this liberty extends to gays and lesbians. (2) For reproductive rights advocates, Lawrence is notable because it is grounded in cases dating back to the 1960s that protect the right to use contraception and the right to choose to have an abortion. (3) As a result, it implicitly reaffirms a line of cases--at the heart of which is Roe v. Wade--that has been consistently called into question. (4) However, in reaching its decision, the Court explicitly overturned an earlier decision allowing states to criminalize gay sex, (5) and its discussion about when judges should adhere to or abandon legal precedent could be used by reproductive rights opponents to argue for a reversal of Roe. (6) Finally, with the future composition of the Court in question, the case is noteworthy for what it says--or does not say--about what key Justices may think about personal autonomy, the interest that lies at the heart of reproductive rights. I. RIGHT TO PERSONAL AUTONOMY The Court's decision to strike down a state law criminalizing gay sex between consenting adults is a virtual primer on almost all the major reproductive rights cases of the past four decades. (7) As the Court notes, "the most pertinent beginning point [for our discussion in Lawrence] is our decision in Griswold v. Connecticut," (8) a 1965 case striking down a state law prohibiting the use of contraceptives by married couples. (9) Finding the law unconstitutional, the Court in Griswold held that although the law did not directly implicate any right explicitly spelled out in the Constitution, various "penumbras, formed by emanations" from specific guarantees in the Bill of Rights create "zones of privacy" into which the government cannot intrude. (10) In Griswold, the Court was referring to a right of privacy surrounding the marital relationship. (11) As the Court in Lawrence notes, this right was extended to unmarried people several years later in Eisenstadt v. Baird. (12) This 1972 case involved a challenge to a Massachusetts law prohibiting the distribution of contraceptives to unmarried people. (13) While the Court decided the case on equal protection grounds, (14) Eisenstadt further explicates the right to privacy: [T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (15) These cases, as Lawrence explains, (16) formed the basis for the 1973 landmark decision, Roe v. Wade, which struck down state laws prohibiting abortion and upheld a woman's constitutional right to choose an abortion. (17) Roe grounded the right to privacy in the protection of personal liberty guaranteed by the Due Process Clause of the Fourteenth Amendment, and it recognized a notion of liberty that includes a woman's right to make "fundamental decisions affecting her destiny," such as whether or not to terminate a pregnancy. (18) In its 1977 case, Carey v. Population Services International, the Court subsequently struck down a law prohibiting the sale of non-prescription contraceptives to minors younger than sixteen. (19) In Carey, as in Eisenstadt, the Court held that the privacy right found in Griswold was not limited to married adults. …

Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases

Abstract: Where money is involved, all parties receive all relevant information from their adversaries upon request; but where individual liberty is at stake, such information can be either withheld by the prosecutor or parceled out at a time when it produces the least benefit to the accused. (1) INTRODUCTION You are an attorney for the Criminal Defense Division of the Legal Aid Society in Manhattan, and you go into Criminal Court to work an arraignment shift. The folder with your next client's case--her name is "Jane Smith" (2)--contains only one piece of paper related to the charge: the Criminal Court Complaint. It lists the charge of Grand Larceny and offers only the following facts: that at around 1:00 p.m. on August 1, 2003, near the corner of Third Avenue and Twenty-third Street, "a person known to the District Attorney's office" informed the police that "Jane Smith did steal $3,500" from her. Your client has little information to add because she is innocent. She has no idea what this is about. She only vaguely remembers where she might have been at the time, as the date was more than three months ago. And that one piece of paper, which does not give you the name of the complaining witness, is almost all of the information you will get in this case until seven months later on the morning the trial begins. It is all the information you receive because the statute governing discovery in New York State is highly restrictive and requires little disclosure of information meaningful to the ability to investigate until it is too late. For example, discovery that is as central as police reports containing statements of trial witnesses is mandated only after the jury is sworn. (3) Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, (4) criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. (5) Indeed, some states have heeded the call. Florida allows defense counsel to depose prosecution witnesses; (6) New Jersey has long had broad discovery rules. (7) Around one-third of the states have relatively broad discovery rules or statutes, modeled on American Bar Association standards. (8) But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. (9) The remaining states fall between the two models. (10) New York is on the restrictive end of the spectrum. As Smith's attorney, you need to investigate the case; indeed, you are aware that you have a constitutional duty to do so. (11) But just about all you can do, with the limited information you have, is to visit a vaguely-defined crime scene in a very busy area of Manhattan. This is your situation right up until the start of the trial. Jane Smith has a right, under the Sixth Amendment, to the "effective assistance of counsel." (12) Investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel in a criminal case, one that is necessary to the testing of the facts in our adversarial system. (13) This function has been consitutionalized as the Sixth Amendment duty to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (14) Yet does the representation of Jane Smith ensure an adversarial testing of the facts so as to protect against conviction of the innocent even while convicting the guilty? Is the quantum of investigation that the discovery rules allow defensible under the constitutional principle that adversarial testing cannot take place without defense counsel's independent investigation of the facts? …

In Pursuit of Safety and Soundness: An Analysis of the OCC's Anti-Predatory Lending Standard

Abstract: To borrow a concept from the animal kingdom ... a classic predator traps the unwary and preys on the weak. Put in the lending context, a predatory lender ensnares ... vulnerable customers, offering loan products designed to prey on their weakness, bleed them financially and ... strip them of their most precious possessions. (1) PROLOGUE George Campbell lived his entire life in the same home in Queens, New York. (2) Disabled, living solely on monthly Supplemental Security Income checks, Mr. Campbell had one significant financial asset: the value of his home appreciated substantially over the years and he amassed considerable equity in the property. (3) A few years ago, an aggressive mortgage broker persuaded Mr. Campbell to take out a second mortgage to finance much-needed repairs. (4) The broker claimed Mr. Campbell, with neither a checking account nor an established credit history, was ineligible for a bank loan. (5) Unable to read well, Mr. Campbell did not understand his obligations under the agreement; like countless other unsuspecting borrowers in the United States, Mr. Campbell became the victim of a predatory lender. (6) The terms of the mortgage required monthly payments almost equal to Mr. Campbell's social security income. (7) Predictably, he defaulted. (8) INTRODUCTION Predatory lenders are unscrupulous, aggressively marketing their loans to borrowers who cannot afford their credit on the onerous terms offered. Their prey are some of the most vulnerable members of society: the elderly, persons living in low-income areas, the socially and economically disadvantaged, the financially unsophisticated. The consequences are devastating, and include enormous personal losses, foreclosures on homes, and the devastation that foreclosure brings to entire neighborhoods. Many common abusive lending practices are already illegal under federal law, (9) yet predatory lending continues to destroy communities. (10) In response to this escalating problem, the Office of the Comptroller of the Currency ("OCC"), a federal regulator of the national banking industry, issued a Final Rule on January 7, 2004 ("Final Rule"). (11) The OCC has always prohibited banks from engaging in predatory lending, but difficulties defining "predatory" and the problematic application of conflicting state-lending laws has caused significant supervisory and enforcement problems. (12) The Final Rule addresses these problems and sets forth a uniform federal standard to guide banking policies on predatory practices and to aid regulators' identification of predatory loans. (13) The Final Rule forbids national banks from making consumer loans, including mortgage loans, car loans, and student loans, (14) based predominantly on the foreclosure value of the borrower's collateral. (15) The rationale lies in the OCC's belief that the value of a borrower's collateral does not indicate their ability to repay the loan. As a result, such loans are now per se predatory, and for that reason, prohibited. (16) The Final Rule also preempts several categories of state banking laws (17) that are no longer enforceable against national banks. (18) States now have little authority to regulate the lending practices of those national banks situated within their jurisdictions. (19) Specifically, the Final Rule preempts state regulation of lending licenses, loan terms, interest rates, terms of credit, disclosure requirements, and other conditions of lending. (20) The Final Rule also codifies the judge-made determination that the OCC has authority to enforce Section 5 of the Federal Trade Commission Act ("FTC Act") (21) and regulations thereunder against unfair and deceptive trade practices in banking. (22) Effectively, as a result of the Final Rule national banks are no longer subject to state anti-predatory lending laws. (23) The OCC standard has replaced a multitude of state laws, and national banks are now only accountable to the OCC and its single standard. …

Housing Gideon: The Right to Counsel In Eviction Cases

Abstract: INTRODUCTION In Gideon v. Wainwright, Justice Black commented that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." (1) Since Justice Black made this proclamation in 1963, most Americans intuitively accept the idea of an indigent's constitutional right to counsel in a criminal trial. While lawmakers and advocates debate over how best to deliver these services, and whether or not the right is being met adequately, they generally do not question whether the right exists. (2) Neither the legislative nor the judicial branch, however, has recognized an analogous right to counsel in civil matters. (3) Though government sponsored legal services, public interest law offices and organizations, and pro bono programs at private firms provide legal services to indigent clients, the legal services provided to indigents in civil cases fall far short of the number that are provided to people who are able to pay for legal help. (4) Scholars and practitioners make both constitutional and ethical arguments for the expansion of legal services and for the recognition of a right to counsel for the indigent client in civil matters. (5) The correct functioning of the adversarial process itself relies on the assumption that both sides are coming to the process with equal legal resources. (6) Equality of resources, however, is frequently not a reality for indigent litigants. (7) In the area of housing law and evictions, for example, advocates have argued that recognizing a right to counsel is the only way for government to minimize the effect of inequality in access to justice, and, in many cases, the only way to prevent homelessness. (8) Others have cited both feasibility and public policy in arguments against recognizing a right to counsel in eviction proceedings. (9) Part I of this comment lays out some of the arguments for recognizing a right to counsel for indigents as well as some of the proposed solutions for making such a right a reality, focusing on the arguments made in favor of extending a right to counsel for indigents involved in eviction proceedings. (10) Part II discusses some of the problematic aspects of recognizing the right to counsel for indigent tenants, including Barbara Bezdek's critique of reliance on "access to justice" strategies (11) and Gary Bellow and Jeanne Kettleson's arguments against using the wholesale expansion of legal services as a strategy for ameliorating inequality in the civil justice system. (12) Part III argues that despite these important criticisms, a strong doctrinal basis as well as a deep need--especially in the case of eviction proceedings--to recognize a right to counsel for indigents still exists. (13) I. IN FAVOR OF THE RIGHT TO COUNSEL FOR INDIGENTS IN EVICTION PROCEEDINGS In 1963, the Supreme Court held in Gideon v. Wainwright (14) that the Constitution guarantees every person charged with a felony the right to an attorney even if he or she cannot afford one. (15) Since the Supreme Court recognized the Constitutional right to counsel in criminal cases, advocates have argued for a civil version of Gideon. (16) Proponents of this right argue that in many civil cases the stakes are as high as those in criminal cases, and consequently the concept of equitable access to justice is empty without a recognized right to counsel in these cases. (17) A. Equal Protection Argument Advocates for the right to counsel for indigent litigants have argued that indigents have a right to counsel in civil cases under the Equal Protection Clause. (18) Generally, if a law "neither burdens a fundamental right nor targets a suspect class, [a court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end. …

Leaders, Followers, and Free Riders: the Community Lawyer's Dilemma When Representing Non-Democratic Client Organizations

Abstract: I. INTRODUCTION Democratic participation in decision making is a recurring ideal in many aspects of our society. (1) We are encouraged to vote for candidates for public office; (2) to voice our opinions to our representatives on matters of societal importance; (3) to become involved in civic and social organizations; (4) and to address common concerns through interactive debate and conduct. (5) There is often, however, a considerable dissonance between the participatory ideal and the reality. this is particularly true in reference to community groups in low-income neighborhoods. (6) There is a body of commentary that values the importance of democratic participation over the success of community groups in their legal struggles, but the literature suffers from a narrow and incomplete perpective. (7) One important problem is that it emphasizes legal representation only in the context of the democratic ideal and not with reference to the needs of community groups as they actually exist and function. Moreover, the literature fails to recognize that there are many types of groups and that the ideal of democratic participation is not a one-size-fits-all imperative that suits the goals and modus operandi of each type. (8) This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups. When a lawyer contemplates accepting or continuing the representation of a group from a disempowered community, she must consider much more than the legal merits of the particular matter presented. Before taking on a client a lawyer might consider, for example, whether the group is expressing legitimate community needs. (9) Often a lawyer will look for evidence of broad member participation in the group's decision-making process. (10) The latter issue is particularly important when the lawyer identifies herself as a lawyer who represents community interests in combatting poverty and oppression. (11) The goal of participatory democracy must itself be subjected to careful examination. (12) In much of the commentary on community lawyering, achieving the goal of democratic participation is considered to be a worthy object in its own right. (13) There is little or no critical examination of whether such participation is a prerequisite to meaningful social change or even whether participatory democracy is always an aid to such change. The consideration of these questions raises several subsidiary issues that also have received scant attention in the literature. For example, what role should an attorney play when she becomes aware of self-aggrandizing manipulation or autocratic rule by a leader in a community group? Should she attempt to foster democratic participation when it might jeopardize substantive outcomes that are generally desired by the membership? Do the rules of professional responsibility provide adequate guidance to an attorney who observes such manipulation or autocracy? In essence, the question is whether the maintenance of democratic participation must be part of the mission of a community lawyer. Our conclusion is that the value of participatory democracy is not a given. Rather, it is a function of the nature and goals of a particular group at a particular time and is not a sine qua non of group representation. Lawyers may recognize the legitimacy of groups and their leaders even in the absence of democratic participation. They need not demand, encourage or expect such participation as a prerequisite for beginning or continuing the representation. Regardless of the presence of a participatory process, there are also issues of whether the lawyer must be concerned about discovered manipulation or self-aggrandizement by a group's leaders and whether she must confront such behavior on behalf of the group. …

The Judicial Betrayal of Blacks - Again: The Supreme Court's Destruction of the Hopes Raised by Brown V. Board of Education

Abstract: On May 17, 1954, the United States Supreme Court handed down its historic decision in Brown v. Board of Education, (1) and almost immediately officials of the National Association for the Advancement of Colored People met in Atlanta, Georgia, to celebrate and to confer. On May 23 and 24, they met to plan for a future filled with hope. With the firm belief that their goals could be realized in the wake of Brown, they issued a statement that has come to be known as the "Atlanta Declaration." (2) Over time, this document has been obscured, to an extent that few students of civil rights are familiar with it. But this declaration is, in fact, the most authentic and definitive commentary on the hopes of black Americans following Brown. The NAACP, with other individuals, developed a strategy and embarked on a mission to eradicate the pernicious separate-but-equal doctrine that had been enunciated as the law of the land in Plessy v. Ferguson, (3) a decision in which the Court ignominiously betrayed the hopes of black Americans. No commemoration of Brown can be credible, nor can the decision be evaluated effectively at this point in history, without revisiting and understanding the Atlanta Declaration. The full text of the declaration reads: We, as representatives of the National Association for the Advancement of Colored People from seventeen Southern and Border States and the District of Columbia, have assembled here in Atlanta, Georgia, May 22-23, for the purpose of collectively developing a program to meet the vital and urgent issues arising out of the historic United States Supreme Court decision of May 17 banning segregation in public schools. All Americans are now relieved to have the law of the land declare in the clearest language: "... in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Segregation in public education is now not only unlawful: it is un-American. True Americans are grateful for this decision. Now that the law is made clear, we look to the future. Having canvassed the situation in each of our States, we approach the future with the utmost confidence. This confidence is based upon the many factors including the pledges of support and compliance by governors, attorney generals, mayors, and education officials; and by enlightened guidance of newspapers, radio, television and other organs of public communication and comment. We stand ready to work with other law-abiding citizens who are anxious to translate this decision into a program of action to eradicate racial segregation in public education as speedily as possible. We are instructing all of our branches in every affected area to petition their local school boards to abolish segregation without delay and to assist these agencies in working out ways and means of implementing the Court's ruling. The total resources of the NAACP will be made available to facilitate this great project of ending the artificial separation of America's children on the irrelevant basis of race and color. While we recognize that school officials will have certain administrative problems in transferring from a segregated to a non-segregated system, we will resist the use of any tactics contrived for the sole purpose of delaying desegregation. In pursuit of our objectives, we will accelerate our community action program to win public acceptance of the Court's desegregation order from all segments of the population. To this end, we are confident of the support of teachers, parents, labor, church, civic, fraternal, social, business and professional organizations. We insist that there should be integration at all levels including the assignment of teacher-personnel on a non-discriminatory basis. …

Winter count: taking stock of abortion rights after Casey and Carhart.

Abstract: In 1973, the United States Supreme Court decided Roe v. Wade, (1) the landmark case that established the right to abortion as a fundamental constitutional right. The Court faced its first real opportunity to reverse that monumental decision a mere sixteen years later. In Webster v. Reproductive Health Services, (2) the State of Missouri and the United States explicitly asked the Court to overrule Roe. (3) Women in the United States waited anxiously to see whether the Court would end the brief and besieged era of the constitutional right to abortion. (4) The Court in Webster ultimately ducked the question, but its decision presaged a fundamental change in how the Court would approach the right to abortion. (5) The right would be different from the one announced in Roe, and it would be weaker. Within three years of Webster, the Court's composition changed, and the change boded ill for abortion rights. President George H. W. Bush appointed Justices Souter and Thomas, in quick succession, to replace two of the Court's liberal stalwarts, Justices Brennan and Marshall. (6) Hot on the heels of this shift, the Court accepted review of Planned Parenthood v. Casey, (7) a case in which the government again asked the Court to overrule Roe. The stakes for abortion as a constitutional right could not have been higher. In a surprise decision, the Court declined to overturn Roe, with an improbable alliance of Justices reaffirming what it called Roe's "essential holding." (8) The constitutional right to abortion had now dodged its second bullet, this time with a Court that appeared even less sympathetic to the abortion right. Some commentators proclaimed that the major legal battle over abortion was finished. (9) Indeed, today, at age thirty-one, Roe has yet to be expressly overruled. The Court recently reaffirmed a woman's right to choose abortion, striking down Nebraska's "partial-birth abortion" ban in Stenberg v. Carhart. (10) In that decision, the Court firmly announced it would not reexamine the constitutionality of abortion rights: "This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose.... We shall not revisit those legal principles." (11) A cursory look at Casey and Carhart might lead an observer to conclude that, although the Court has renounced key aspects of Roe's framework, the right to abortion remains well-protected under the federal Constitution. But such a conclusion would ignore the implications of the Court's decision in Casey and would place too much hope in Carhart. Casey fundamentally changed the character of the right to abortion in this country, reinventing the right in a form more vulnerable to continued erosion. (12) And Carhart, although drawing an important line in the sand against extreme abortion measures, did not alter this basic fact. (13) Justice Blackmun, Roe's author, had forecast the sea change in his dissent in Webster. The worst of Blackmun's fears have not been realized: abortion may not be banned altogether and severe restrictions that obstruct access to safe abortions are likewise impermissible. Beyond this bottom line, however, little of Roe's protections remain and the right to abortion continues to be burdened in ever more creative ways. The women most at risk--including many poor women and teenagers--cannot overcome all of the barriers and have effectively lost their right to abortion. (14) In this article, I examine Casey and Carhart to assess the state of abortion rights today. I. WEBSTER V. REPRODUCTIVE HEALTH SERVICES Webster v. Reproductive Health Services (15) presented a constitutional challenge to Missouri's omnibus abortion statute. (16) The legislation was crafted by anti-choice activists specifically to put an abortion test case before the Supreme Court. (17) In a highly fractured decision, a plurality of the Court declined to overrule Roe explicitly although it upheld all of the statute's challenged provisions. …

Conference Report: New York City's Criminal Courts are we Achieving Justice?

Abstract: INTRODUCTION On October 18, 2003, at a conference hosted by the New York County Lawyers' Association and the Fordham University School of Law's Louis Stein Center on Law and Ethics, (1) more than one-hundred professionals, having diverse roles, and from the five boroughs of New York City, came together to identify, evaluate, and begin to solve some of the complex problems firmly embedded in the culture, operations, and practice in our City's Criminal Courts. They came together in an effort to enhance justice in New York City's Criminal Courts. In her welcoming remarks, Judge Juanita Bing-Newton, Chief Administrative Judge of New York City's Criminal Courts, (2) emphasized the extraordinary volume of cases that move through the City's Criminal Courts (3) and stressed the importance of justice in any discussion of the Criminal Court as the Criminal Court is where the "Constitution and the public intersect in a dramatic way."(4) Like Judge Newton, Norman L. Reimer, the day's keynote speaker and president of the New York County Lawyers' Association, (5) stressed the overwhelming number of case filings handled by Criminal Court. (6) It is the Criminal Court that forms the impression of justice for tens of thousands of our fellow citizens--the accused, the victimized, and their families and friends. Reimer concluded that "all too often it is not a good impression." (7) Addressing prosecutors, public and private defense attorneys, judges, court clerks and administrators, probation officials, policy makers, members of advocacy organizations, academics, and others, he emphasized "our collective responsibility to do something about this" as the Criminal Courts have both the power to "destroy and to save lives." (8) Reimer urged the participants to aim for "a system with all components working at optimum level so that the process of deciding who deserves what result is as reliable as possible, and to see that the proper outcome is available and administered fairly and competently." (9) The conference planners (10) designed the conference to emphasize the collective responsibility each organization has for enhancing justice in New York City's Criminal Courts. The courts do not function in isolation; they are part of a complex system with components parts that are numerous, varied, and often independent of the court. Police, prosecution, defense, probation, and corrections, to name the most prominent, are all integral to the functioning of Criminal Court, yet traditionally, each component takes responsibility for only its own, circumscribed role within the court system. Thus, for example, the persistent, deplorable lack of attorney-client interview space in the courthouses is primarily relegated to defense organizations to solve, while in fact it is a problem that negatively impacts the entire system and is emblematic of the negative impressions formed by at least one sector of Criminal Court "users:" defendants. The conference challenged participants to move beyond their traditional workplace roles in Criminal Court and reflect thoughtfully on difficult, system-wide problems. Though defined by law as "local" courts, (11) New York City's Criminal Courts are commonly referred to as the lower courts or courts with "inferior jurisdiction." (12) Under New York State's "complex, somewhat unique, and in the opinion of many, antiquated" (13) court structure, New York City's Criminal Courts have preliminary jurisdiction over all offenses (14) and trial jurisdiction over misdemeanors and violations. (15) The Criminal Courts in each borough (16) handle the arraignment for all arrests, from subway fare evasion, and the subsequent adjudication of all non-indicted felonies, misdemeanors, and violations. (17) As a result of changes in policing policies, the number of misdemeanor arraignments increased more than sixty percent from 1992 to 2002. (18) In 1993, New York City implemented a policing strategy that emphasized maintenance of public order, a policy now commonly referred to as quality-of-life policing. …

The Conception of Brown

Abstract: Brown v. Board of Education (1) is celebrated throughout the nation on its fiftieth anniversary as having changed the face of America, and is called the country's most significant twentieth century decision. Most analysts seem to hail Brown for what it has already done. I do not join that school of thought. Brown has flowered the growth of a large black middle class, but whether this group can seize levers of economic power to prevent its members from being reduced to the working poor when the economy sours, a status most of them occupied before Brown, is a critical question for future resolution. Officialdom can no longer have a hand in ordering, fostering, or maintaining racial discrimination or color barriers of any kind. Yet old habits and practices of racial stereotyping, patronization of white supremacy, and the subordination of people of color still define the country. Only if the veil that presently separates the white world from that of people of color comes down will Brown have effected its full potential. I was born in Florida, but my family was part of the first great migration of blacks from the rural hobbling South to the less restrictive urban North. Six weeks after giving birth to me, my mother took me to Newark, N.J. to reunite with her husband and family. My parents were among the first generation of blacks born free. My father died suddenly after a year's residence in Newark. My mother had above average educational skills for a black woman of her era. She could read and write, and she kept up with the news by close reading of local newspapers, augmented in time by radio and television. It had been a crime to provide slaves with access to educational skills and therefore the first generation of free blacks was largely illiterate. My mother had not planned to work outside the home, but as her husband had died leaving her children to raise, she had to seek outside employment. Being an indifferent cook, her only income-producing alternative was washing other peoples' clothes. When I was about twelve years old our economic fortunes improved, enabling us to afford a middle class lifestyle. I was an excellent test-taker, which at the time was considered evidence of intellectual talent. Thus, I was skipped through grammar school, finished high school at age sixteen, and moved on to college at Lincoln University. I later attended law school at Howard University and then Columbia Law School for a Masters in Law degree. The year at Columbia was not the unalloyed joy I had hoped it would be. The head of the graduate law school program denigrated whatever evidence of scholastic capability I had shown in college and law school because the institutions I had attended were not on Columbia's level. By contrast, a number of colleagues from small law schools in Ohio, Washington State, and Oregon were received with open arms. The First Amendment fascinated me, and in my master's thesis I explored the extent to which preservation of this amendment was needed to maintain a democratic society. I chose as my faculty advisor Noel Dowling, because we had used his case book in my constitutional law class. Had I known that Dowling was from Alabama, I might have paused to reconsider. Dowling had only negative comments on my thesis, but I would not let him get away without questions. "What are your suggestions?" I would ask. He would proffer none. This was his first time dealing with a putative black intellectual on a one-to-one basis. Believing that blacks were deficient in intellectual ability, his first approach was to discourage me so that I would drop out. Instead, I forced him to re-examine his own integrity. He approved the partially completed thesis, allowing me to proceed in securing the Masters in Law degree. After praising me for my fortitude and refusal to be discouraged, he said revealingly: "I hope you don't think I made negative remarks about your work because I am from Alabama." I had been headed for the academy, but the Columbia experience was unsettling. …

Lethal experimentation on human beings: Roe's effect on bioethics.

Abstract: Beginning with the assumption that human life begins at conception, this article explores the problematic terrain accompanying embryonic stem cell research and human cloning. “Lethal Experimentation on Human Beings,” as enumerated in the article’s title, refers to experimentation on and the removal of stem cells from human embryos, both of which ”kill” a human being. The article warns that the holding in Roe v. Wade, which recognizes only a qualified government interest in unborn life, has obscured a pressing need for proponents of embryonic stem cell research to prove why society’s interest in this research outweighs the rights of the unborn human life that is arguably killed during this research.

Austria's Pre-War Brown v. Board of Education

Abstract: INTRODUCTION On May 19, 1930, a Viennese newspaper published an article under the title, "His Magnificence The Rector: Scandal at the University of Vienna." (1) The author analyzed and attacked the government-sponsored University's new regulations dividing the students into four "nations"--German, non-German (e.g., Jewish), mixed, or "other." These regulations had been presented by the Rector as vehicles for voluntary association of students with common ethnic roots. The article noted, however, that under the new system, individuals were precluded from deciding themselves to which nation they belonged. A student would be designated as non-German even if he was a German-speaking Austrian citizen descended from generations of citizens, unless he could prove that his parents and his grandparents had been baptized. (2) The newspaper's editor was criminally prosecuted for this publication on the grounds that he had failed to exercise "press prudence," and had defamed the Academic Senate and the Rector of the University of Vienna by accusing them of promulgating unlawful measures. (3) His defense was that the article had accurately characterized the university regulations as unconstitutional, and that academic officials had no authority to create such student groups. This legal analysis was grounded on the conclusions of an eminent authority, Dr. Joseph Hupka, a former Dean of Vienna Law School. (4) The trial court, presided over by the Justice for Press Affairs, admitted all the defendant's evidence and granted his application to petition the Constitutional Court--Austria's highest tribunal on fundamental constitutional matters--for rescission of the regulations in their entirety. (5) In the hearing before the Constitutional Court, counsel for the defendant editor argued that equality of all citizens before the law prohibited differentiating individuals on the basis of ethnic group, language, or religion. In a chillingly prophetic comment, he suggested that if a government-operated university could lawfully mandate such student separation, then it would be possible for the government to do so in all situations, compelling residence in different parts of town and employment only by a person of the same religion. (6) The response by the Rector was that there was no constitutional defect in the University's regulations because the student groups all had identical rights. (7) Less than twenty-five years later in the United States, the Supreme Court unanimously rejected separate-but-equal claims in Brown v. Board of Education. (8) Constitutional generalities such as equal protection, freedom of association, and rights of citizenship must be unpacked by focusing on their less appealing implications. Consider whether equal protection is satisfied if groups have equal rights but unequal power: whether freedom of association necessarily and invariably encompasses the freedom to exclude; and whether the prerogatives of generations of citizenship are inadequate to trump competing claims. This Article analyzes these questions in two contexts: the little-known legal developments in pre-Hitler Austria that staved off the attempt to segregate University students, and the still-controversial formulation in Brown that sought to end racial segregation of students in America. The United States Supreme Court in the 1950's, like the Austrian Constitutional Court, was asked to interpret a constitutional equality principle that embodied the ideals of a democracy but was in conflict with a violent and historically-entrenched reality. Part I will discuss the actual deliberations of the Austrian Constitutional Court Justices in this case and explore the shaping of their decision, a decision reflecting an uneasy synthesis of opposing views. The Justices rejected the Rector's jurisdictional objections, and instead undertook the responsibility of striking down the Student Orders on the basis of statutory violations. …

The First Amendment: Churches Seeking Sanctuary for the Sins of the Fathers

Abstract: PROLOGUE Imagine you are ten years old. You are proud and honored that one of the most revered, respected, and loved men in your community pays you special attention--he gives you gifts, and invites you to go on special trips. A man who, in your eyes, your friends' eyes, and the eyes of your parents, is the embodiment of God. He is your local parish priest. But he is the furthest thing from God. He has betrayed you, the parish, the community, his vows, and God-he has repeatedly sexually molested you. Now suppose that your trusted bishop knew this priest was a pedophile. Suppose the bishop not only knew the priest had sexually molested parish youth, but had hidden that fact, both from members of the church and the laity. Rather, the bishop clandestinely placed the priest in the parish without any precautions. Reading this, it would seem obvious that the diocese or any other church defendant, like any other employer, would be held legally responsible for the harm caused by its reckless conduct. Even the most fertile imagination cannot create or divine a lawful, just, or defensible reason why any church defendant should be treated differently than any other entity that places children in harm's way. Especially, when the church defendant does not dispute that the abuse occurred, that it knew about the priest's "problem," or that it played a significant part in allowing it to happen. How, then, does a church demur in a situation as described above? In an act of unparalleled audacity and brazen legal maneuvering, the church often argues that the First Amendment of the United States Constitution provides it unfettered immunity and insulation from any accountability to its parishioners or society at large. In so doing, the church perverts our nation's constitution into a form of unholy absolution for the most unholy of acts. This argument, however, is of no avail to the church--it has sought refuge in a legal illusion. The First Amendment contains two clauses addressing religion-the Free Exercise Clause and the Establishment Clause. (1) First Amendment jurisprudence also addresses religion through the judicial abstention doctrine. (2) While these rights are firmly established, their limits and boundaries continue to be defined today. The nation's highest court has yet to address the issue of whether, in the name of the First Amendment, religious institutions can be shielded from otherwise cognizable tort claims caused by their agents and employees. (3) In cases of sexual abuse that involve church defendants, tort claims usually allege negligence, negligent supervision, negligent retention, breach of fiduciary duty, and vicarious liability. (4) Most state courts have held that the First Amendment does not provide any protection from these claims. (5) As the Florida Supreme Court recently stated, "to hold otherwise and immunize the Church Defendants from suit could risk placing religious institutions in a preferred position over secular institutions, a concept both foreign and hostile to the First Amendment." (6) As this Article will explain, the Constitution does not provide a religious institution the right or privilege to operate as a law unto itself--the institution must comply with the law of civil government. Part I will provide a brief introduction and background on the First Amendment. Parts II, III, and IV will analyze the Free Exercise Clause, judicial abstention doctrine, and the Establishment Clause, respectively, and how each operates in relation to sexual abuse claims against clergy. INTRODUCTION I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. (7) The need to distinguish between government and religion was as clear and salient to John Locke in 1687 as it is to our nation today. Written over three centuries ago, his words indicate that the struggle between protecting the freedom to practice religion while maintaining a civil government had formed long before the Constitution and Bill of Rights were enacted. …

Preparing for the Worst: Re-Envisioning Disaster Legal Relief in the Era of Homeland Security

Abstract: INTRODUCTION The New York legal community's response to the September 11th disaster defies the usual stereotypes of the legal profession Ambulance chasers and sharks were in short supply Instead, in the weeks and months following the World Trade Center attacks, New York's bar channeled an unprecedented outpouring of support into uncompensated pro bono efforts on behalf of victims and their families While pro bono assistance was available to all victims, special attention was given to matters facing needy individuals that would not generate fees (1) The bar even stood behind efforts to minimize the subsequent litigation, with the American Trial Lawyers Association ("ATLA"), through its subsidiary Trial Lawyers Care, offering free counseling to family members considering pursuing monetary relief through the federal Victims' Compensation Fund (2) As described in Public Service in a Time of Crisis: A Report and Retrospective on the Legal Community's Response to the Events of September 11, 2001 (hereinafter, the ABCNY Fund Report), (3) there is little to fault in the bar's response to the September 11th disaster Bar leaders worked under extreme pressure--in some instances, having suffered losses themselves--to devise a sound approach to assisting with others' needs The "facilitator" model of providing advice and representation was a sensitive and effective solution to the problem of clients facing multiple issues and multiple lawyers representing a single client And literally thousands of lawyers donated time and resources to provide legal assistance to those in need (4) In short, the New York bar's disaster response deserves consideration as a national model for such efforts At the same time, as tremendous as the bar's response was, it is worth examining on a more systemic level the national approach to providing legal assistance in disasters In the current global political climate, we can anticipate that there will be more disasters giving rise to legal needs, including attacks by domestic or international terrorists Given this heightened need for disaster preparedness, efficient, non-duplicative use of legal resources is a key issue There is much to learn from the ABCNY Fund Report in that regard Nevertheless we should also consider whether there is an even more efficient and comprehensive way to administer legal assistance in the context of a disaster As reflected in the New York experience, disaster legal relief across the United States is typically handled by private pro bono practitioners who mobilize quickly after the disaster strikes Considering that pro bono legal work generally serves three overlapping purposes: 1) providing legal assistance to the client(s); 2) expanding individual lawyers' visions of their role in the community and society; and 3) raising the profession's standing with the public (5)--we should at least ask whether each of these purposes are being best achieved by the current approach to disaster legal services (6) First, in terms of providing actual assistance to individuals, the New York City bar had tremendous success in mobilizing a legal response to the September 11th attacks The overall numbers are impressive But numbers do not tell the whole story In New York and elsewhere, pro bono lawyers providing disaster legal services often lack expertise in the relevant areas and may have little prior experience with the client community affected by the disaster Both of these factors may affect pro bono attorneys' ability to reach and to assist clients, even if the bar's mobilization efforts are effective in enlisting volunteers (7) Further, New York City's experience may be sui generis Collectively, the New York City bar has extraordinary resources No other community in the United States would be able to call upon such a high level of private legal resources--both in terms of numbers and caliber--in the event of a disaster (8) Finally, while the New York bar apparently avoided demoralizing turf battles and the inefficiencies that accompany them, other communities--in all likelihood, those without such extensive resources to draw on--might not be so fortunate …

Casey and Its Impact on Abortion Regulation

Abstract: This year marks two important anniversaries. Roe v. Wade (1) is thirty-one years old. Planned Parenthood v. Casey (2) just turned twelve. Casey is less of a household name than Roe. But in some ways, Casey is more important because it changed the way courts review abortion laws. Casey did not make it easier to ban abortion. After Casey, just as before, the government may not prohibit abortion before viability, nor prevent any abortion necessary to preserve a woman's life or health. (3) But for abortion laws that fall short of a ban, Casey declared that courts should use an undue burden standard, (4) a standard that is more lenient than the strict scrutiny used in Roe. (5) Why the change? The Court admitted in Casey that in previous cases it had not given enough recognition to the states' interest in protecting human life. (6) Combined with the new standard, this meant that after Casey states would be freer to regulate abortion than previous cases had allowed. (7) Casey explicitly overruled earlier decisions that had been too begrudging of state efforts to regulate the abortion procedure. (8) That was how the decision was read by both sides of the abortion debate. Janet Benshoof, a longtime abortion rights advocate, warned that Casey "severely limited [the] women's constitutional protections" given in Roe. (9) A less restrained Planned Parenthood of New York City, two days after Casey was decided, placed a full page ad in the New York Times warning that "Roe v. Wade is dead." (10) Roe's demise was greatly exaggerated. There was, however, universal agreement that Casey left states in a better position to regulate abortion. Just last term, Justice Scalia reminded us that "Casey provided a less expansive right to abortion than did Roe." (11) One way to assess the impact of Casey is to therefore to ask whether the courts have kept the promise made in Casey. Is it easier now to regulate abortion? Do courts now defer to legislatures more than they did before Casey? The answer is mixed. In the twelve years since Casey, judges have rejected some of the more incredible claims made by the abortion industry, but usually only after years of litigation. (12) For example, in Montana, a physician's assistant challenged a law that said only doctors can perform abortions. (13) It seems just common sense that states do not violate the Constitution if they forbid non-physicians from performing surgery. Abortion is a surgical procedure. But a federal court of appeals struck the law down (14) and it took a Supreme Court decision to get it reinstated. (15) In Texas, the abortion industry claimed that it was an equal protection violation to impose stricter regulations on doctors' offices that perform over 300 abortions a year than on those that perform fewer. (16) It is not unusual for legislatures to use numerical cutoffs. (17) But a federal judge struck down the Texas law (18) and again, it took an appeal to get it reinstated. (19) In Indiana, Planned Parenthood claimed that a law imposed an undue burden because it required doctors to meet face to face with patients before performing an abortion. (20) The purpose of the law was to simply to see that women got information about their pregnancies and about abortion before undergoing an abortion. (21) It seems clear that nothing in the Constitution prevents states from requiring doctors simply to meet face to face with their patients to talk about a procedure the doctor is about to perform on the patient. But, again, a federal judge struck the law down. (22) And again, it took an appeal to get it reinstated. (23) All of the claims described above were ultimately rejected. But it took many years of litigation. During all that time, the laws being challenged were not being enforced because they had been enjoined while the litigation was pending. (24) Unfortunately, some of the bad decisions have not been reversed on appeal. …

Reflections on Justice before and after Brown

Abstract: In the 1950's, Mississippi had the largest number of African-American citizens of any state and was, as Professor C. Vann Woodward observed, "profoundly isolated from national life and opinion." (1) Few blacks were registered to vote, (2) white supremacist doctrines governed law enforcement, and the legislature declared that Brown's directive was "unconstitutional and of no lawful effect." (3) After James Meredith's 1961 application for admission to the all-white University of Mississippi at Oxford, I made twenty-two trips to the state during the year and a half of litigation that was needed to compel the school to accept him. (4) An incident that occurred on one of these visits illustrates the intrusive indignities of Jim Crow customs and laws. I took my then nine-year-old son, Joel, with me because Medgar Evers, who was at that time the NAACP director for the state, (5) had three children of about my son's age. Medgar's wife Myrlie decided she would take all the children to the zoo one day and while they were there, my son parked himself on one of the benches. Along came a white policeman and said, "Boy, get up off that bench!" And my son was just startled, he didn't really understand. Myrlie came over to him and explained, "You know, Joel, they allow us to come to the zoo and see the animals, but they don't allow us to sit down on the benches. You have to stand." My son got up and shook his finger in the policeman's face and said, "I'm going to have you arrested!" Joel lived in New York, and that was his first encounter with real segregation. One of segregation's other faces was danger. Lynchers were going unpunished and violence was a common Jim Crow method of repression. (6) United States marshals guarding James Meredith were attacked by armed mobs that were allowed onto the campus by state troopers. (7) Meredith had earned credits in military service toward his college degree and had spent a year and a half at Jackson State University before he was admitted to the University of Mississippi, so he only had a year to finish. During that entire year, federal marshals had to sleep with him in his room. He could not go anywhere on campus without being accompanied by these marshals. Southern resistance to Brown, and to the civil rights activities the decision inspired, took many forms. Martin Luther King started a new movement, challenging state-enforced segregation directly rather than litigating, and it was very effective. (8) He moved around the South to various places where he was invited, founded the Southern Christian Leadership Conference, and organized peaceful marches to protest against Jim Crow. During the course of Dr. King's activities then, adults in Birmingham, Alabama who had been marching got rather tired. Someone then came up with the great idea that they would have the schoolchildren march on a Saturday when they were not required to be in class, knowing that they would not tire as easily. Eleven hundred children did march on a Saturday, but the local school authorities devised an ingenious punishment. All of the participants were summarily expelled from school, and that was one week before graduation. Naturally, the parents were very upset about this. King and his close associates asked the NAACP Legal Defense Fund for help. Leroy Clark and I from the Legal Defense Fund both just happened to be in Birmingham for a case involving the University of Alabama. (9) We filed a suit in the federal district court asking that the expulsion of the students be enjoined. The local Federal District Court Judge, a man named Clarence W. Allgood who had been appointed by President Kennedy, (10) denied our application for an injunction. He did not actually issue his decision until two o'clock in the afternoon, although we had appeared before him at eleven in the morning. He knew that we would be going to the Fifth Circuit before Judge Elbert Tuttle to appeal his decision, and so he held it up, thinking, "Well, if I wait until two o'clock they will miss the last plane to Atlanta, at 3:00 p. …

Are Talebearers Really as Bad as Talemakers?: Rethinking Republisher Liability in an Information Age

Abstract: INTRODUCTION It was a spectacle that "produced without question some of the most bizarre testimony," a district court judge commented in hindsight. (1) The 1982 Pulitzer divorce trial featured tales of sex, drugs, and seances that were splashed throughout magazines and newspapers across the country. (2) Many of the scandalous details involved Janice Nelson, the woman who served as Mrs. Pulitzer's marriage counselor and psychic. (3) Nelson testified on behalf of Mr. Pulitzer because she felt that Mrs. Pulitzer should not have custody of the couple's children. (4) While the high-profile Pulitzer divorce produced juicy fodder for news reports, the media's real gain from the case came five years after the divorce trial when Nelson sued several media organizations for defamation. (5) During the divorce trial, the Associated Press erroneously reported that Nelson conducted seances in the Pulitzer home where ten to fifteen people surrounded Roxanne Pulitzer, who was in bed with a trumpet and a black cape. (6) Both The Miami Herald (7) and The New York Post republished this erroneous dispatch. (8) Knight-Ridder wire service sent out a similar story over its news wire that The Washington Post republished. (9) Newsweek reported the same story based on information from various newspaper and wire service reports. (10) After the publications of these statements, the Associated Press issued a retraction which stated that "[i]n a Pulitzer deposition made available Thursday, [Mr. Pulitzer] describes seances--unrelated to Ms. Nelson--that Mrs. Pulitzer conducted in their home." (11) The court granted summary judgment in favor of the republishers (12) based on a "powerful, but often neglected libel defense" called the "wire service defense." (13) This defense allows the media to republish news without liability for defamation if the information passed over a news wire and the subsequent publisher did not know or have reason to know that the material was defamatory. (14) In certain circumstances, this privilege exempts the media from the strict common law rule that imputes independent liability to third parties who republish libelous statements. (15) Whether the defamed individual is a public or private figure is not a factor in determining whether the wire service defense is applicable. (16) Therefore, the media can potentially get the case dismissed on summary judgment without engaging in litigation concerning whether the defamed is a public or private figure. Over time, spreading the news has become more of a cooperative endeavor. In 1848, the Associated Press was founded as a news cooperative for six New York papers. (17) Today, the Associated Press serves 1700 newspapers and 5000 radio and television stations around the country. (18) More than thirty other news wires, from institutions like United Press International to the two-year-old Women's Enews, relay news to media outlets around the country. (19) Journalists frequently rely on these services for facts or quotes to incorporate into original stories and publications often use entire wire service stories as a replacement for self-generated copy. (20) The very existence--and recent proliferation and expansion--of the wire service privilege illustrates that traditional republication liability does not allow news organizations to function effectively in a society that demands rapid news dissemination. (21) Today, twenty-one jurisdictions currently recognize the seventy-year-old defense, the majority of them electing to do so within the last twenty years. (22) In the past decade, eight jurisdictions have approved the wire service privilege. (23) The acceptance of the defense suggests that the strict common law rule burdening republishers with potential liability should be abolished if there is no showing of actual knowledge that the material was defamatory. Thus, the "actual malice" standard articulated in New York Times v. Sullivan, which applies to public figures, should apply to all individuals in cases involving republishers. …

Playing With Work: Must "Work" be Treated as a "Major Life Activity" for Purposes of the Americans with Disability Act?

Abstract: INTRODUCTION In two recent decisions, Sutton v. United Airlines, Inc., (1) and Toyota Motor Manufacturing, Kentucky v. Williams, (2) the Supreme Court sharply limited the reach of the Americans with Disabilities Act of 1990 ("ADA" or "the Act"), (3) by narrowing the definition of "disability" under the Act. (4) In both cases the Court also signaled that it may further narrow the definition of a disabled person, by excluding from this definition all persons whose infirmities interfere with only their ability to work, and not, for example, with their ability to travel or socialize. Under the ADA, a "disability" is defined, in pertinent part, as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." (5) Under current agency regulations and case law in the lower courts, "work" or "working" is considered a "major life activity" for the purposes of the ADA's disability definition. (6) The Supreme Court, however, has never held that work qualifies as a major life activity, and the Court has signaled in Sutton and Toyota that it may hold that it does not. (7) If the Court does so hold, the social and economic impact could be devastating, leaving several million Americans unable to claim the Act's protection against discrimination in the workplace. This Note examines and evaluates the principal arguments for and against construing the ADA to include work among the major life activities. (8) Part I briefly discusses the history of the ADA and the definition of disability under the Act as explicated in regulations by executive branch agencies. A discussion follows of the Sutton and Toyota decisions and their implications for the status of work as a major life activity under the Act. Part II critiques the Court's reasoning in Sutton and Toyota, and then looks to two other sources for guidance in construing the Act: the language of the Act itself and congressional intent to the extent that this intent is documented in the legislative history. Part III weighs the opposing arguments and arrives at a resolution. This Note concludes that the ADA must be construed to include work as a major life activity, because any other construction would contradict both the plain language of the statute and the clear intent of Congress. I. BACKGROUND AND Issue A. History of the ADA The developments that led to the passage of the Americans with Disabilities Act originated in part in the civil rights struggles of the 1960s. (9) Inspired by the victories of African Americans and other groups, a movement of the disabled developed in the 1970s using many of the same tactics pioneered by these oppressed groups, including public demonstrations, civil disobedience, and lawsuits. (10) Advocates for the disabled also pressed for federal legislation proscribing discrimination against disabled individuals. Between 1973 and 1990, Congress passed several laws against such discrimination, of which the most important was the Rehabilitation Act of 1973. (11) Almost all of these laws limited their coverage to activities conducted by the federal government, or to those supported at least in part by federal funds. (12) Disability issues gained a higher public profile in the 1980s, as seen most obviously in the work of a Presidential commission, the National Council on the Handicapped (since renamed the National Council on Disability). Two reports by the Council, issued in 1986 (13) and 1988, (14) respectively, assessed the bleak condition of disabled Americans, and called for comprehensive legislation to combat discrimination against the disabled. (15) The second report, issued in 1988, included a draft of the legislation which later became the ADA, (16) and bills were introduced in both houses of Congress later that year. (17) The 100th Congress adjourned without either house taking action on the bill, (18) but a revised version was introduced in both houses the following year. …