Showing papers in "Fordham Urban Law Journal in 2006"

Land Use and Housing Policies to Reduce Concentrated Poverty and Racial Segregation

Abstract: INTRODUCTION As metropolitan areas spread over huge stretches of land, residents living at the core, particularly poor Blacks and Latinos, become increasingly isolated from the jobs and other life opportunities that are rapidly dispersing among increasingly farflung suburbs. The concentration of existing affordable housing in central cities (1) and older suburbs perpetuates the isolation of low-income residents and people of color from life opportunities available to suburban residents. (2) One result is to reinforce the racial segregration which is intimately related to the concentration of poverty at the urban core and in older, inner-ring suburbs. (3) Urban sprawl tends to exacerbate residential racial segregation (4) because unchecked development at the fringe permits rapid abandonment of inner-suburban and central-city housing stocks as White residents move into expanding suburban developments. The resulting isolation of non-Whites in the increasingly segregated areas that Whites abandon effectively denies many of those residents access to the sites of opportunity in distant, developing areas of the region. (5) This isolation is perpetuated not only by the concentration of existing affordable housing in central cities and older suburbs, but by the barriers to developing affordable housing in most outlying suburbs. One of the most invidious barriers is exclusionary zoning. Governmental fragmentation--the proliferation of separate political jurisdictions--facilitates structures such as exclusionary zoning laws. (6) By prohibiting the development of housing that only the better-off can afford, these local policies effectively exclude the poor and people of color from the places that erect those policy fences. Together with fragmented school districts that institutionalize the racial segregation of students, practices such as exclusionary zoning unnecessarily burden both the affected individuals and metropolitan regions. (7) The harmful effects of sprawl and fragmentation on people of color have been well documented. Racial segregation concentrates poverty, with or without class segregation, which Douglas Massey and Nancy Denton have demonstrated with their extensive research. (8) Massey and Denton explain that "racial segregation--and its characteristic institutional form, the Black ghetto--are the key structural factors responsible for the perpetuation of Black poverty in the United States." (9) Together with overt racial discrimination, as where realtors steer Blacks and Whites into segregated neighborhoods, (10) the structural racism that restricts affordable housing to ghettoized areas of the urban core intensifies racial segregation and perpetuates poverty. To address both overt and structural racism requires undoing segregation and making it possible for people to live in places where they can access opportunities for jobs, quality schools, and social networks. Making affordable housing available throughout a metro region, rather than in segregated places distant from opportunity, is a significant means to address segregation and concentrated poverty. In recent years, scholarship about potential reform has been increasingly pessimistic, citing enduring local sovereignty over land use as a barrier to regional cooperation, regional planning, regional housing, and regional tax-based sharing. (11) In response, this article reviews housing and land use policies that several states have enacted to increase the availability of affordable housing in metropolitan regions by countering sprawl and the effects of governmental fragmentation. It illustrates these approaches with case examples of the most promising approaches thus far attempted in the nation's metropolitan regions, and summarizes the empirical and analytic research evaluating the effectiveness of these policies. The success of such policies is measured largely by the extent to which they increase the stock of affordable housing available to nonWhite and poor residents, and by their potential to reduce residential racial segregation. …

Rare & inconsistent: the death penalty for women

Abstract: There is also overwhelming evidence that the death penalty is employed against men and not women ... It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes. (1) INTRODUCTION Picture in your mind a condemned murderer being sentenced to death, eating a last meal, or trudging ever-so-reluctantly into the execution chamber. In your mind's eye, do you see this wretched creature as a woman? Most of us do not, given that over ninety-nine percent of the people executed in the United States are men. (2) Female offenders, both girls and women, (3) are so seldom found on our death rows that, once condemned, they may be ignored and forgotten. (4) We are occasionally made aware of women put to death through media coverage of high profile executions. A recent case with front-page national coverage was that of Karla Faye Tucker, executed in Texas on February 3, 1998. (5) Tucker caught the attention of the popular media in part because of the grisly nature of her crime (murder by pickax) and partly because she was a pretty, photogenic white woman. (6) Indeed, a new play, Karla, based on Tucker's crime, trial, and execution, opened in New York in October 2005. (7) An example of an earlier but similarly famous case was that of Ruth Brown Snyder, who was executed in New York on January 12, 1928. (8) An attending journalist surreptitiously photographed Snyder's execution in New York's electric chair, and that dramatic photograph appeared the next morning on the front page of the newspaper, destined to be reprinted many times subsequently. (9) Journalistic descriptions of collections of numerous cases also abound, often tending to exploit them with lurid details. (10) We also have riveting films based on this theme. Some are built around real women's cases. The Florida case of Aileen Wuornos, executed on October 9, 2002, spawned several films. The best known was a semi-fictionalized account entitled Monster, (11) released in 2003 and starring Charlize Theron, a role for which Theron received both a Golden Globe and Oscar. (12) The Wuornos case had been the basis for earlier documentary films based upon her actual life. (13) Nearly half a century ago, the 1958 film I Want to Live provided a reasonably accurate portrayal of the actual case of Barbara Graham, executed in California on June 6, 1955. (14) In a precursor to Theron's recognition for her portrayal of Wuornos, actress Susan Hayward also won both a Golden Globe and an Oscar for her portrayal of Graham. (15) Other films portray fictionalized women under sentences of death. One such example, Last Dance, (16) released in 1996, starred Sharon Stone as a woman sentenced to death and actually executed. (17) Based on a composite of several cases both real and fictional, Stone portrayed a condemned woman who evolves from a tough, foul-mouthed killer into a nurturing big sister and would-be lover before being executed. (18) But what of the rest of the women sentenced to death in the real world and, in some cases, actually executed? Who were they, and why were these extremely rare cases singled out to receive this ultimate punishment? Why are such women so commonly condemned but ignored by our death penalty system, by scholarly research on crime and the death penalty, and to some degree by the popular media? These questions have been asked by previous authors: "Few though their numbers may be, they are on death row, and for the most part terribly isolated, invisible, and alone." (19) A recent investigative report labels them "The Forgotten Population." (20) Apparently a similar tendency to ignore such cases is true in Britain as well, where "their cases remain almost totally unknown." (21) Previous studies of the national landscape around the death penalty for women have identified and analyzed past themes and issues. …

Monetizing the Benefits of Risk and Environmental Regulation

Abstract: INTRODUCTION Should the benefits of risk and environmental regulations be monetized? For economists, this question is not controversial. Benefits of government policies have a value given by society's willingness to pay for these benefits, which by its very nature poses the valuation issue in monetary terms. (1) Government agencies have likewise not shied away from monetizing these benefits. (2) A contrary school of thought, however, has recently emerged, as reflected in the book by Frank Ackerman and Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing. (3) As the title of the book suggests, the authors oppose economists' attempts to monetize the value of environmental amenities and the value of risks to life and health. In this article, I will review the history of how monetization of benefits came to be the norm for government policy and explore some of the key economic debates that have arisen. My point of view is the opposite of that of adherents of the Priceless approach. Monetizing risk and environmental benefits does not devalue these outcomes, but rather gives them real economic value when the effects might otherwise be ignored. Through monetization, policymakers are able to count these policy consequences fully and in accordance with the values attached to these outcomes by the citizens affected by the policy. This is not to say that there are no controversies that remain once the monetization approach has been adopted. This Article will explore many of the most sensitive and problematic concerns, including how we should value risks to life, whether old people or rich people should be accorded different values of life, and the proper role of survey methods in benefit valuations. The existence of such controversies arises because the economic approach confronts these policy matters directly and incorporates recognition of how these concerns are valued by the citizenry. In contrast, the Priceless approach in effect disenfranchises the citizens by abandoning the societal willingness-to-pay approach to benefits. With no effort to quantify citizens' valuations, the policy process will be guided by the subjective preferences of policymakers. From an economic standpoint, the advantages of monetizing benefits are quite strong because establishing this kind of metric makes it much easier to compare benefits with costs and thus make choices across various policy alternatives. (4) For example, if we have $10 million to spend, is it more worthwhile to clean up a hazardous waste site on Long Island, or to reduce water pollution levels in Wisconsin rivers by ten percent, or to adopt safety measures that will lead to an average of three fewer schoolchildren being killed in school bus crashes? Because society's resources are limited, ultimately we must be making choices such as these across different policy domains. To assess which regulatory interventions make sense and which do not, it is essential to have a scorecard by which it is feasible to make such comparisons. Monetization also has an additional practical benefit in a world of regulatory impact analysis. Costs are quantifiable in dollar terms, as are many benefit components, so failing to place a monetary value on seemingly intangible benefits such as environmental amenities may lead to inadequate attention to intangible benefits in the policy choice process. Monetizing these benefits puts them on equal footing with benefits that are perceived to have real economic value because they can be quantified in dollar terms. It is useful at the outset to make clear the target of my discussion. From an economic standpoint, for something to be "priceless" means that it has an infinite value. Thus, if saving the snail darter is priceless, no amount of monetary cost should be spared in preserving these fish, even if it depletes the entire GDP. Because no risk or environmental benefit warrants an infinite expenditure, the practical policy issue is what level of monetary cost is justified to obtain the benefit. …

The Unbearable Lightness of Regulatory Costs

Abstract: Will unbearable regulatory costs ruin the United States economy? This specter haunts officials in Washington, just as fears of communism once did. Once again, the prevailing rhetoric suggests that an implacable enemy of free enterprise puts our prosperity at risk. Like anti-communism in its heyday, anti-command-and-control-ism serves to narrow debate, promoting the unregulated laissez-faire economy as the sole acceptable goal and standard for public policy. Fears of the purported costs of regulation have been used to justify a sweeping reorganization of regulatory practice, in which the Office of Management and Budget (OMB) is empowered to, and often enough does, reject regulations from other agencies on the basis of intricate, conjectural economic calculations. This Article argues for a different perspective: what is remarkable about regulatory costs is not their heavy economic burden, but rather their lightness. Part I identifies two general reasons to doubt that there is a significant trade-off between prosperity and regulation: first, regulatory costs are frequently too small to matter; and second, even when the costs are larger, reducing them would not always improve economic outcomes. The next three parts examine evidence on the size and impact of regulatory costs. Part II presents cost estimates for a particularly ambitious and demanding environmental regulation, REACH--the European Union's new chemicals policy. Part III discusses academic research on the "pollution haven" hypothesis, i.e. the assertion that firms move to developing countries in search of looser environmental regulations. Part IV reviews the literature on ex ante overestimation of regulatory costs, including the recent claims by OMB that costs are more often underestimated (and/or benefits overestimated) in advance. Turning to the economic context, Part V explains why macroeconomic constraints may eliminate any anticipated economic gains from deregulation. Part VI introduces a further economic argument against welfare gains from deregulation, based on the surprising evidence that unemployment decreases mortality. Part VII briefly concludes. I. TWO ARGUMENTS AGAINST THE TRADE-OFF In theory, it would be possible to spend so much on environmental protection that basic economic needs could not be met. At a sufficiently high level of regulatory expenditures, protecting nature and cleaning up the air and water could absorb enough of society's resources to compete with the provision of more fundamental goods, such as food and shelter. From this, it is a short leap to the conclusion that the clash between economy and environment actually is an urgent problem, requiring detailed analysis of regulations to prevent worsening the terms of the trade-off. But the latter statement only follows logically if environmental policy is in fact consuming substantial resources, which are transferable to other, more basic needs. That is, the assumed urgency of the trade-off rests on the implicit assumptions that the costs of environmental protection are both large and fungible. Either of these assumptions could fail in practice; the costs of environmental protection could be nonexistent, or too small to matter, or the reduction of regulatory costs might not produce the desired economic benefits. Environmental protection with little or no costs Costless environmental improvement is frequently assumed to be impossible by definition. The hidden premise underlying this form of the trade-off argument is that the market economy is already performing as well as possible; that is, it has reached a Pareto optimum. (1) From this perspective, any new expenditure on environmental protection necessarily represents a loss, because it diverts resources away from the things that consumers, in their wisdom, have chosen for themselves. (2) Reverence for market outcomes is at odds with the beliefs of many environmental practitioners who assume that environmental improvements can bring economic benefits as well. …

The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking

Abstract: INTRODUCTION The Office of Information and Regulatory Affairs (OIRA) is one of several statutory offices within the Office of Management and Budget (OMB), (1) and can play a significant--if not determinative--role in the rulemaking process for most federal agencies In addition to its many other responsibilities, OIRA reviews the substance of about 600 to 700 significant proposed and final rules each year before agencies publish them in the Federal Register, (2) and can clear the rules with or without change, return them to the agencies for "reconsideration," or encourage the agencies to withdraw the rules About 100 of the rules that OIRA reviews each year are each considered "economically significant" or "major" (eg, expected to have a $100 million impact on the economy) (3) OIRA was created by Congress and has a number of specific statutory responsibilities, but also helps ensure that agencies' rules reflect the president's policies and priorities OIRA's role in the federal rulemaking process has been highly controversial in all four of the presidential administrations in which it has been in existence, but the criticisms directed at the office have varied over time In some administrations, OIRA has been accused of controlling the agenda of the rulemaking agencies too much, directing them to change substantive provisions in draft rules, or even stopping proposed regulatory actions that it believes are poorly crafted or unnecessary (4) At other times, though, OIRA has been accused of exerting inadequate authority over the agencies' rules (5) Other, more persistent criticisms have focused on the lack of transparency of OIRA's regulatory reviews to the public and the sometimes-unseen influence that regulated entities and other non-governmental organizations can have on agencies' rules through those reviews (6) This Article describes the process OIRA uses to review covered agencies' draft rules, OIRA's effects on the rules, and changes in OIRA's procedures and policies in recent years Much of this discussion is drawn from a September 2003 report on OIRA that I helped develop when I was with the General Accounting Office (GAO, now the Government Accountability Office) (7) First, though, this Article provides a brief history of presidential regulatory review and describes how OIRA's review process was established Finally, the Article describes several potential legislative issues regarding OIRA's regulatory review authority, and makes a few concluding observations both about OIRA's recent initiatives and its future THE ESTABLISHMENT OF REGULATORY REVIEW IN OIRA OIRA was created within OMB by the Paperwork Reduction Act (PRA) of 1980 (8) The PRA provided that OIRA would be headed by an administrator who was designated the "principal advisor to the Director on Federal information policy" (9) The Act also provided that the director of OMB "shall delegate to the [OIRA] Administrator the authority to administer all functions under this chapter" (10) Specific areas of responsibility in the PRA that were assigned to the director, and later delegated to OIRA, included information policy, information collection request clearance and paperwork control, statistical policy and coordination, records management, privacy, and automatic data processing and telecommunications (11) With regard to paperwork reduction, the Act generally prohibited agencies from conducting or sponsoring a collection of information until they had submitted their proposed information collection requests to OIRA and the office had approved those requests The PRA's requirements cover rules issued by virtually all agencies, including Cabinet departments, independent agencies, and independent regulatory agencies and commissions (12) Although the PRA gave OIRA substantive responsibilities in many areas, the bulk of the office's day-to-day activities under the act were initially focused on reviewing and approving agencies' proposed information collection requests …

Managing the Regulatory State: The Experience of the Bush Administration

Abstract: The United States Office of Management and Budget (OMB), an organization within the Executive Office of the President, seeks to promote wise expenditures, regardless of whether those expenditures are made through budgetary programs or through unfunded mandates on states or the private sector. The lion's share of these unfunded regulatory mandates is aimed at businesses, but these rules also impact other entities such as state and local governments, unions, colleges and universities, and health care providers. (1) One of the key roles of OMB's Office of Information and Regulatory Affairs (OIRA) is to review new rulemakings and stimulate modernization of existing rules. (2) OIRA performs its regulatory oversight with a team of about thirty career OIRA analysts who apply a "soft" benefit-cost test. (3) OIRA asks whether the quantified benefits of a rule exceed the quantified costs, but OIRA also strives to be sensitive to important "intangible" considerations. These unquantified factors may reflect basic issues of fairness, such as civil rights, or they may reflect a key efficiency concern that cannot yet be fully measured and expressed in monetary units (e.g., homeland security). Considering both matters of efficiency and fairness, OIRA analysts ask whether a rule has adequate supporting analysis and whether the benefits of a rule justify its costs. (4) The distinction between budgetary rules and unfunded mandates is important. (5) The new prescription drug benefit under Medicare was authorized by legislation and implemented through rulemaking. (6) It is considered a budgetary program, however, not an unfunded mandate, because the expenditures are paid for by taxpayers through the federal government's Medicare appropriation. The Department of Transportation's Corporate Average Fuel Economy (CAFE) program, the goal of which is to save oil by boosting the fuel economy ratings of cars, sport utility vehicles, vans and pick-up trucks, is an unfunded mandate. (7) The costs of meeting these federal standards are not paid through the federal appropriations process; they are presumably incurred by consumers, investors, and employees in the motor vehicle industry. This Article focuses on unfunded mandates on the private sector. The purpose of this Article is to explain how Presidential management of federal regulation, through OMB oversight, has been carried out in the first five years of the George W. Bush Administration, during the tenure of Dr. John Graham as the Administrator of OIRA. Part I traces the history of Presidential management of the regulatory state. Part II explores the concept of "smart regulations," and the associated emphasis on rigorous benefit-cost analysis, that Dr. Graham implemented as OIRA Administrator. Part III summarizes the various critiques that have been offered against the "smart regulation" approach, and addresses those arguments. Part IV explores future challenges in regulatory policy. I. PRESIDENTIAL MANAGEMENT OF THE REGULATORY STATE Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. (8) Even critics of OMB acknowledge the legitimacy of a centralized oversight function. (9) Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. (10) Virtually all scholarship on this subject acknowledges the increasing importance of OMB's role in regulatory policymaking over the past thirty years. (11) A. President Nixon President Nixon initiated efforts to centralize regulatory review in 1971 through his "Quality of Life" program. …

A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques

Abstract: "History amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence." (1) "The principle that a State may not knowingly use false evidence ... to obtain a tainted conviction [is] implicit in any concept of ordered liberty." (2) I. INTRODUCTION The December 2002 exoneration of five young men who were convicted of the infamous 1989 attack on a jogger in Central Park highlighted the ease with which standard interrogation techniques can produce false confessions that lead to wrongful convictions. (3) When the jogger was attacked in 1989, the public was convinced that the five Harlem youths, who repeatedly incriminated themselves and each other, were guilty beyond doubt. Meanwhile, the actual attacker committed three more rapes and a rape and murder before he was caught. (4) In 2002, when the case unraveled after the actual perpetrator confessed to attacking the victim by himself, the public scratched its collective head while trying to understand why not only one, but several, of the boys had apparently falsely confessed to their involvement in the brutal attack on the jogger. A significant part of the answer may be attributable to the court-approved interrogation techniques that police have been using for decades in station houses across the country. Principal among these is the routine deception of suspects about a range of issues which influence a suspect's willingness to make an incriminating statement. In the Central Park jogger case, family members of the five exonerated youths have alleged that the police tricked the boys into believing that they were simply giving statements as witnesses, not as suspects, and that once they provided taped interviews, they would be allowed to go home. (5) In addition, the interrogation tactic of leading each boy to believe that others had already confessed and implicated the others was particularly effective. (6) For example, Kharey Wise, one of the exonerated five youths, said he initially told police he knew nothing about the jogger. But when police told him that his friends had said that he was at the scene, "he started making up facts 'just to give them what they wanted to hear.'" (7) Wise said that the police told him he would be able to go home after giving his statement, but instead they took him to jail. In his words, "'I fell for it.'" (8) Other deceptive tactics were also employed. One detective even admitted to falsely telling one of the suspects that his fingerprints would be found on the jogger's shorts. (9) The case of Martin Tankleff presents another high profile example of the pitfalls of police trickery on youthful and other vulnerable suspects. Tankleff was seventeen years old when his parents were discovered stabbed to death in their Long Island home. (10) Tankleff, who had been asleep in the house at the time his parents were killed, immediately became the prime suspect. (11) During the interrogation, the lead detective, by his own admission, told Tankleff untruthfully that his father had awakened at the hospital and identified him as the attacker. (12) Tankleff told the police that his father had never lied to him and that if he identified him as the attacker, maybe he had "blacked out" and in fact killed his parents. (13) The police agreed with Tankleff that he had probably committed the crime but blocked the memory. Tankleff then provided a possible narrative of the crime but was unable to provide any details of the crime apart from information detectives had presented during his interrogation. (14) The detective penned a confession based on this narrative which Tankleff refused to sign and immediately disavowed. (15) The statement contained details of the crime which were irreconcilable with the physical evidence. (16) Nevertheless, the statement was admitted at Tankleff's trial and became the centerpiece of the case against him. …

No Penis, No Problem

Abstract: For eight months in 1999, a special education teacher in Montrose, New York had sex with several teenaged students during private, in-home tutoring sessions. (1) In December of 1998, a thirty year-old church choir supervisor in Shrewsbury, Massachusetts had a sexual relationship with a fourteen year-old member of the choir. (2) In Gwinnett County, Georgia, in 1998, a thirty-six year-old school bus driver exchanged alcohol for sex with a fourteen year-old classmate of the driver's daughter. (3) In 2002, the forty-six year-old music director of a private school in a Boston suburb had sex with a fourteen year-old at the school. (4) In 1998, in Antioch, California, a foster parent-foster child relationship led to the birth of a baby boy. (5) INTRODUCTION Sex between adults and teenagers is not a new phenomenon. Stories of adults molesting or seducing adolescents have littered the inside pages of newspapers for the past several decades, although the behavior itself can be traced back much farther than that. But the anecdotes mentioned above are not just examples of typical cases. In each of these instances, the sex occurred between an adult woman and an adolescent boy. Certainly the paradigmatic example of the female child sexual abuser is Mary Kay Letourneau, the elementary school teacher in Washington State who became infatuated with one of her pre-teen students and eventually fathered two children with him. (6) But while the media portrayed her as an anomaly, Ms. Letourneau is merely the most visible member of a class of criminals--adult women who have sexual encounters or relationships with boys, in violation of statutory rape laws in every state in the United States. Is this a new form of crime? Is the female statutory rapist a new breed of criminal, and the boy a new type of victim? One might think so, given the gendered history of the statutory rape law itself and the academic legal literature on the issue. Legal scholars writing for the past fifty years--a time period that brackets the Supreme Court's decision in Michael M. v. Superior Court of Sonoma Count (7)--implicitly and nearly universally assume that statutory rape defendants are male and their victims female. (8) Moreover, gendered assumptions about the statutory rape drama seem to comport with the obvious facts of life. Society is, after all, dominated by unwritten scripts that tell males and females how to behave sexually and how to respond to stress or fear, (9) and these schemas tend to illuminate acts of male perpetration and female victimization while keeping underground the existence of female-perpetrated abuse and male victimization. (10) Scientists working in the fields of psychiatry and psychology, however, have uncovered evidence that tells a different story. They have found a surprisingly high percentage of female sex abusers in the population and have documented an extensive array of child sexual abuse committed by women against boys, abuse that includes rape, child molestation, and even incest. (11) In so doing, they have started to identify the motivations that underlie this behavior and to assess boys' experience of sexual victimization, which, contrary to popular belief, can be every bit as traumatic as that suffered by girls. (12) Today, twenty-five years after Michael M., the academy's failure to notice female sexual exploitation of male minors puts us at risk of unwittingly reinforcing a gender regime in which the rights of both males and females are decimated by biology. Given the scientific data, legal scholars must resist the temptation to rely on the highly gendered notions of age-differential sexual experiences that have animated scholarship in the past. We can and should use studies of female sexual abusers to inform our understanding of female-perpetrated statutory rape and to suggest ways to alter the criminal justice system's responses to both victims and defendants involved in these crimes. …

Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth

Abstract: "Can a mother forget the baby at her breast and have no compassion for the child she has borne?" (1) Scarlet the Cat of Brooklyn, NY: "In a motherly show of courage, a cat raced into a burning building to rescue her five kittens, one by one. And then with her eyes blistered shut and her paws burned, she made a head count of her young ones, touching each one with her nose to make sure they were all safe." (2) In the United States, unlike the United Kingdom and many other countries, there is no distinctive legislation addressing the killing of infants and young children by their mothers. While our British cousins embarked upon a course of special legislation in 1922 that evolved into a policy of partial decriminalization and medicalization of maternal infanticide, (3) the United States has no distinct law or even settled policies on infanticide. As a result, outcomes in cases raising similar mental health defenses can vary radically, from medical diversion to capital punishment. (4) Yet, in the United States, as in the United Kingdom, two figures, or archetypes, dominate representations of infanticide in popular media and in scholarship: the mad woman and the desperate girl. (5) In the United Kingdom, settled law and policy reflect the conception of maternal infanticide as the work of women who are victims of biology gone awry, and of women and girls who, due to immaturity or adverse circumstances, are not able to accept the maternal role. (6) In the United States, lacking settled law, the dynamic in high profile infanticide cases such as those of Andrea Yates (7) in Houston, and Susan Smith (8) in South Carolina, often propel prosecutors to seek severe sentences and to exploit the counter-narrative of evil. While both explanations--evil and biology--have cultural resonance, the biological explanation may have more traction. Prosecutors have learned that infanticide defendants have powerful allies in prevalent conceptions of motherhood. (9) That a mature woman could be both a sane and lethal mother is not an easy sell. Indeed, prosecutors have difficulty convincing juries that lethal fathers are evil as well, (10) but cases about fathers rarely attract the notoriety that cases about mothers spawn. The mad woman and the desperate girl are beguiling stereotypes that distort the social facts of infanticide and child homicide in the United States. Men commit more homicides of infants and children than women. (11) Why, then, do treatments of infanticide in the popular media, and in legal and forensic scholarship, amplify the role of women and mute the role of men? Why is the mental health of male killers of relatively little interest, despite the fact that the population of fathers who kill includes substantial numbers of men suffering from psychosis and severe depression? (12) The majority of homicides of infants and children are committed in the course of child abuse by parents and other household intimates who do not suffer from severe mental illness. (13) Why is our attention attracted to the cases where a biological explanation is offered for maternal lethality and not the larger class of child abuse homicides committed by both sexes? (14) When the subject is infanticide and child murder, in sum, mothers who kill are brought to the foreground, the role of men is obscured, and the focus is not on intra-family violence, but rather on the piquant question, "Is the mother mad or bad?" (15) My answer to the questions propounded above, in brief, is that infanticide, from the dawn of the criminalization of this ancient practice to the present, has been less about the protection of children than the regulation of women. We profess our commitment to children, but our practice reveals an unimpressive record of child protection and abiding anxieties about female sexuality and motherhood. Our attention slides from the nominal subject--protecting children--to the interesting subject of motherhood. Thus, while the legal regime in the United Kingdom recognizes the links between maternal mental illness and child homicide, it does not provide a beacon that can lead us to a comprehensive policy addressing infanticide and child homicide. …

Mother of atrocities: pauline nyiramasuhuko's role in the rwandan genocide

Abstract: In the courtroom she prefers "plain high-necked dresses that show off a gleaming gold crucifix she usually wears." (1) "[H]er appearance in court suggest[s] a school teacher." (2) "With her hair pulled neatly back, her heavy glasses beside her on the table, she looks more like someone's dear great aunt than what she is alleged to be: a high-level organizer of Rwanda's 1994 genocide who authorized the rape and murder of countless men and women." (3) As Pauline Nyiramasuhuko stands trial before the International Criminal Tribunal for Rwanda (ICTR) (4) for crimes against humanity and genocide, (5) crimes shocking in their depravity, the press seems more fixated on her gender than the significance of her crimes and her prosecution. (6) The press asks: how could a woman, a mother, a female that looks so feminine commit such atrocities? (7) To ask the question is to assume that women are not capable of committing acts of violence and depravity such as rape, mass murder, and genocide. In reality, "[i]t is probably the case that women's peacefulness is as mythical as men's violence." (8) Women throughout history have equaled their male counterparts in their cruelty and in their willingness to plan, orchestrate, and participate in mass atrocities. (9) Women, girls, and mothers also willingly and enthusiastically played important roles in the Rwandan genocide. (10) As a female perpetrator of mass violence, Pauline is not an anomaly. Those who view Pauline's actions during the genocide as somehow inexplicable because of her gender engage in the stereotypical thinking that perpetuates the special victimization of women. History demonstrates that women suffer especially heinous sexual violence in almost every armed conflict. (11) Women become such targets for many reasons, all connected to their otherness, their difference from the patriarchy that perpetuates the conflict. (12) As one writer noted, "if ... war is the continuation of politics by other means, it has been constructed out of hostility towards the female 'other.'" (13) The Tutsi women of Rwanda, like women in countless other conflicts, were sexually violated to denigrate Tutsi men or the Tutsi race, to attack their purity, and to serve as a warrior's reward. (14) To successfully carry out a campaign of sexual terror, the perpetrators had to embrace the myth that sees women as merely an extension of the Tutsi man, merely a tool for the troops' pleasure, or merely a vessel of procreation. (15) This myth also sees rape as a defilement of the woman and her family, her man, and often her entire ethnic group. (16) And because of adherence to this myth, crimes specifically targeting women during armed conflict are rarely prosecuted. (17) Pauline's case challenges the other side of the myth: that women, by their nature, are incapable of being warriors--somehow their roles as women and mothers prohibit them from planning or participating in depraved violence. (18) Pauline's case says more about our continued resistance to view women as equals than it says about her uniqueness among her female peers. Because we continue to view women as less capable than men, as less worthy than men, and as confined to the roles of sexual objects or mothers, women continue to bear the painful scars of sexual violence in times of conflict. Pauline's case will hopefully prove to the world, once again, that women are equally human, even in their capacity for violence. When women begin to be seen as equals, sexual violence against women may lose its purpose. And though we may not live to see that day, we may live to see the day when crimes against women are treated as crimes against humanity, because women are equal participants in humanity. The ICTR, where Pauline currently sits on trial for her crimes, has made significant progress towards ending impunity for the crimes carried out almost exclusively against Rwandan women. (19) The next step toward ending impunity for crimes of sexual violence during conflict is to demystify the nature of women. …

Sexual abuse of women in united states prisons: a modern corollary of slavery

Abstract: I. INTRODUCTION I initially began working on this paper in connection with a project that looked at the transatlantic abolition movement in the United States and Europe from 1830 to 1870 with a focus on early feminist efforts. (1) In that initial effort, it became clear that sexual abuse of women in prison and the sexual abuse of female slaves shared many similarities. This paper addresses the sexual abuse of women in custody as a more contemporary manifestation of slavery. Part II situates the sexual abuse of women in custody and women slaves in their historical context. Part II also charts the creation of the first penitentiaries in the United States and the "Reform Movement," led by Quaker women who were also involved in the abolition movement, and later in the suffrage movement. (2) It further examines the impact that women's entry into male prisons as workers in the 1970s and 1980s--pursuant to Title VII (3)--had on the sexual abuse of women in custody. Part III will discuss the congruencies and the differences that exist between the sexual abuse of women in custody and slavery. Part IV discusses modern advocacy efforts to address sexual abuse of women in custody and explores the relative lack of advocacy by national women's organizations on this issue. Part V concludes that the sexual abuse of women in custody is a serious contemporary issue, similar to slavery, and that the appropriate societal response to this problem is impeded by deeply imbedded views of women in custody as unworthy and undeserving of attention, and to some degree, as responsible for their own victimization. (4) II. HISTORICAL CONTEXT OF SEXUAL ABUSE OF WOMEN IN CUSTODY & WOMEN SLAVES Historically, both women in custody and women slaves experienced abuse by those in authority. A review of the historical contexts of women's imprisonment and slavery demonstrate that sexual abuse of both is deeply imbedded in both experiences. A. Sexual Abuse of Women in Custody As long as there have been prisons (5) and women in them, (6) women have been sexually victimized. (7) Women in the earliest prisons were poor women, usually of the non-ruling or minority class, and women who had deviated from prevailing social norms for their gender. (8) In the 1860s, women reformers in the United States raised public awareness about the increasing number of women in prison and the terrible conditions of confinement they faced, in particular the sexual abuse of women prisoners by male guards. (9) These reformers pointed out that men were luring women and girls into prostitution. (10) Women prison reformers complained that prisons degraded rather than reformed women by subjecting them to sexual abuse. (11) Thus, the sexual abuse of women existed even in the earliest United States prisons. Around 1870, there was a movement to improve the conditions of incarcerated women. This "Reform Movement" (12) was led, in large part, by Quaker men and women involved in, or sympathetic to, the abolition of slavery and gaining suffrage for women. (13) They believed that women who had run afoul of the law were in need of reforming, (14) and thus opened "reformatories" staffed by "matrons" to teach women the skills they needed to make their way in the world--sewing, gardening, laundry, and cooking. (15) The Reform Movement lasted until the 1930s, when it lost the support of some women's groups who felt that women's efforts needed to be focused on gaining the vote for women rather than prison reform. (16) This "abandonment" left the Reform Movement lethargic and left female prisoners languishing in institutions that retained the old characteristics of reformatories, (17) without formal backing from established and respected women's groups. (18) Even after suffrage was granted, there was a definite fracture of the women's movement, with some feminists voicing the idea that scarce resources were being wasted on the task of "reforming" women offenders. …

Subtle but Pervasive: Discrimination Against Mothers & Pregnant Women in the Workplace

Abstract: INTRODUCTION Laurie Anne Freeman, a world-renowned expert on information technology and Japanese politics and a professor in the Political Science Department at the University of California, Santa Barbara, received extremely positive reviews from her department until she had two daughters and took leaves to be with them. (1) The reviews she received after returning from her leaves were increasingly critical of her research and productivity. (2) Despite family-friendly university policies, including rules that prohibited consideration of leave time when evaluating productivity, the department repeatedly evaluated her earlier than scheduled and compared her unfavorably with professors who had not taken leaves. (3) When Freeman came up for tenure, she had an impressive list of accomplishments including two prestigious fellowships, one book published and one under contract, and invitations to present her work at leading institutions including Harvard and Stanford. (4) Overwhelmingly negative assessments from her department, however, culminated in a unanimous recommendation to deny tenure. (5) But that was not the end of the road for Freeman. (6) The Chancellor sent Freeman's case back to the Political Science Department for a new tenure review. (7) Again, the department at tacked her scholarly work. (8) This time, however, the Chancellor could not overlook the overwhelmingly positive assessment of experts in her field and her outstanding resume. (9) The Chancellor granted her tenure. (10) Freeman was not satisfied; she filed a charge of sex discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that her decisions to have children and to use the university's family-friendly policy were the real reasons for her tenure denial. (11) On September 6, 2005, Freeman was granted a rare EEOC cause determination. (12) Charlotte Fishman, Freeman's lawyer, said that she thought the cause determination was important because it drew attention to the sex-plus discrimination that women face in academia. (13) Sex-plus discrimination, however, is not limited to academia. Freeman's story highlights the discrimination that women face in the workplace, even at so-called family-friendly institutions. Despite legislation designed to promote equality for women and mothers in the workplace, including Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pregnancy Discrimination Act (the "PDA"), and the Family and Medical Leave Act (the "FMLA"), discrimination persists. Role-reinforcing stereotypes (14) and the male-centric job model (15) continue to constrain women. The existing statutes are in large part narrowly applied by the courts and, as written, are insufficient to curtail the problem. The passage of the PDA acknowledged that pregnancy discrimination is a problem and began to roll back the paternalistic treatment of pregnant women, (16) but the PDA has not significantly alleviated the problem of pregnancy discrimination. It has been construed narrowly so that in many jurisdictions it covers only discrimination arising from pregnancy itself, as distinct from its side effects. (17) And the PDA does not grapple with many fundamental issues necessary to secure equality for women in the workplace and at home, such as how to structure the provision of childcare and breast-feeding. Women can attempt to pursue these claims as sex-plus claims under Title VII, but that route has proven to be generally unsuccessful. (18) Thus, many women are left unprotected from discrimination in the workplace based on their status as mothers, childcare providers, and producers of breast milk. According to one possible indicator, the number of charges filed with the EEOC, pregnancy discrimination is on the rise. (19) With more than sixty-eight million women in the workforce, including 72.9 percent of women with children under age eighteen, (20) in recent years the EEOC has seen a thirty-five percent increase in the number of pregnancy discrimination charges filed when compared with the number of charges filed in 1992, (21) even though the United States has seen a nine percent reduction in its birth rate. …

Revisiting anna moscowitz's kross's critique of new york city's women's court: the continued problem of solving the "problem" of prostitution with specialized criminal courts

Abstract: I. INTRODUCTION Sex has been traded and sold at least since ancient times. Despite this history, in the United States, forceful anti-prostitution movements have periodically arisen. Such movements have been driven largely by individuals who, for various reasons, believe prostitution is a problem that poses a serious threat to our societal fabric. Time and again, these individuals have turned to the criminal justice system to solve that "problem." In response, jurisdictions across the country have criminalized prostitution and promoted its vigorous prosecution. Yet, the sale and trade of sex continues. Apparently frustrated by the standard criminal justice approach to prostitution, some regions have recently begun to experiment with a non-traditional, judicially-based response--specialized criminal courts. Perhaps the most well-known such institution is the Midtown Community Court in New York City. The Midtown Community Court was established in 1993 as a specialized, "innovative" court intended to address low-level crime, including prostitution, in the Times Square area. (1) Employing a purported "problem-solving" approach to quality-of-life offenses, the Midtown Court was intended to do more than ordinary criminal courts to address sex trade activities, and to help sex workers "leave the life." (2) To achieve its goals, the Court allowed community members to play a strong role in the institution's planning and development, involved itself in shaping local law enforcement responses to prostitution, and departed from existing criminal court procedures and sentencing practices. (3) Following the Community Court's first years of operation, fewer sex workers were seen in the Midtown Manhattan area. (4) Thus, proponents of the Court declared it had succeeded in its "problem-solving" mission and urged other communities to replicate the Midtown experiment. (5) And, indeed, other jurisdictions are following Midtown's lead. (6) In reality, the Midtown Community Court's "innovative" approach is far less novel than many might imagine. The use of specialized criminal courts to address prostitution is nothing new. In fact, it is an old idea that was first attempted in this country about a century ago. Perhaps the most notorious such institution was New York City's Women's Court, which opened its doors in 1910 and ultimately closed in the 1960s, after years of scandal, controversy, and failed efforts to prevent sex work. (7) New York City's Women's Court and the Midtown Community Court are, however, more than conceptually similar. Indeed, their development, their operational methods, and their impact on the practice of prostitution present remarkable parallels. In this Article, I examine the shared features and attributes of these court models, and argue that such institutions present their own set of problems that may threaten our societal fabric more than sex for money. I begin my analysis in Part II of this Article by recounting the history of New York City's Women's Court. In describing the development and operation of the Women's Court, I focus on the critique of Anna Moscowitz Kross. Kross, a contemporary of the institution, called for its reform over several decades--while a law student, a lawyer, and then as a New York City Magistrate serving on the Women's Court bench. Her extraordinary story as one of New York's early woman attorneys and jurists, to date, has not been recounted in legal scholarship. For this reason alone, her Women's Court work is worthy of examination. (8) More than this, Kross's well-founded criticisms of the Women's Court are historically and legally significant. For instance, as Part II describes, she questioned the wisdom of its proponents' moral reform agenda, condemned the undercover law enforcement methods it encouraged, and challenged its courtroom and sentencing practices, which she believed degraded and harmed women. Perhaps most importantly, Kross argued that the institution simply failed to do what it was intended to do--that is, prevent prostitution. …

The Regulatory Flexibility Act at 25: Is the Law Achieving its Goal?

Abstract: I. INTRODUCTION The Regulatory Flexibility Act (RFA), (1) which marked its twenty-fifth anniversary in September 2005, was designed to "level the playing field" for small businesses competing against larger, more sophisticated, and more politically powerful businesses. Recognizing the importance of small businesses in the U.S. economy, Congress enacted the RFA in 1980 to ensure that federal agencies consider the needs of small business and other small entities (2) when new regulations are written. At a basic level, the RFA requires federal regulatory agencies to satisfy certain procedural requirements when they plan new regulations, including: (1) identifying the small entities that will be affected, (2) analyzing and understanding the economic impacts that will be imposed on those entities, and (3) considering alternative ways to achieve their regulatory goal while reducing the economic burden on those entities. Although the RFA does not require federal agencies to choose the regulatory approach that is the least burdensome to small entities, the overarching goal of the RFA has always been to shift the culture within federal regulatory agencies towards an appreciation of the value of small entities and to instill within them a desire to act accordingly. As viewed today, after twenty-five years of implementing the RFA, is the law succeeding in this goal? Section II of this Article explains why small businesses need the RFA. Section III provides a brief overview of the 1980 RFA, the 1996 amendments to the RFA, and Executive Order 13,272, signed in 2002, which was designed to further internalize the RFA's procedures within federal agencies. Section IV discusses recent successes of the RFA. Section V considers remaining weaknesses in the current RFA. Section VI suggests further targeted legislative improvements to the RFA. The Article concludes that in the wake of Executive Order 13,272, the RFA is succeeding in spurring most federal regulatory agencies to improve their treatment of small entities. While some agencies have not yet fully embraced the RFA and made it part of their agency culture, small entities and the American public have greatly benefited from the law. II. WHY SMALL BUSINESS NEEDS THE REGULATORY FLEXIBILITY ACT A. Small Businesses Are an Important Part of the U.S. Economy Small businesses have long been a critical part of the U.S. economy. Using data from preceding years, the U.S. Small Business Administration reported in 1982 that small businesses employed about half of the American labor force, produced almost half of the nation's goods and services, and, according to one study, generated over eighty percent of new jobs. (3) Small businesses also tended to innovate at a higher rate than medium or large businesses. (4) Twenty-five years later, small businesses are still an important driving force in the American economy. Small businesses comprise 99.7 percent of all employer firms in the U.S., they employ half of all the private sector workers, and have generated sixty percent to eighty percent of the net new jobs annually over the last decade. (5) These small firms pay forty-five percent of the total U.S. private payroll, and create more than half of the non-farm private gross domestic product (GDP). (6) Small firms continue to innovate more than large firms, producing thirteen to fourteen times more patents per employee than larger firms. (7) These small firm patents are more likely to be driven by leading-edge technology than large firm patents are. (8) Moreover, during economic downturns, small businesses often fare better than large businesses; increases in small business employment and self-employment often serve to lead the economy out of recession. (9) B. Small Businesses Have Been Inundated By Federal Regulations The 1970s witnessed a flood of new federal agencies and ambitious new regulatory programs. …

The construction of pregnant drug-using women as criminal perpetrators

Abstract: "[W]hat the law tells us to do is not as important as what the law tells us to be." (1) Despite clear lack of intent to harm those whom they carry, drug-using pregnant women have been constructed as de facto criminal perpetrators. When women become noticeably unable or unwilling to carry out their assigned social roles and responsibilities as parents, they have often been demonized as "bad mothers," and criminalized. (2) Women of color who live with poverty have been disproportionately affected by criminalization, (3) which reinforces the view that they are "undeserving" of the right to procreate. (4) Casting pregnant drug users as intentionally harming the fetuses they carry, feticide convictions rest upon the attribution of reckless indifference, "a conscious failure to exercise due care or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof." (5) Drug use, I argue, falls short of being prima facie evidence of intent to harm, particularly in social circumstances where drug-using economies are endemic. Drug use is highly likely in the social and economic circumstances of the vast majority of defendants in these cases, which follow the contours of the localized political geography of illicit drug use in the United States. (6) It is difficult if not impossible to maintain that drug-taking is a conscious act intended to harm a fetus. The cases I examine in this article signal the limits of tolerance and the increasingly conditional nature of public welfare provision by raising the specter of a generation of urban mothers--and grandmothers--unable to care for their kids. These cases also reflect the policy-making role into which hospitals and the courts have stepped in the face of a legislative void. Congressional hearings on maternal crack-cocaine use during the late 1980s and early 1990s elucidate the motives behind state and federal attempts to penalize illicit drug use by pregnant women. (7) Women's rights advocates opposed the principle of criminalization behind these hearings, arguing instead for increased health care access through drug treatment tailored to the specific circumstances of pregnant women. (8) The hearings defined the problem as a decline in maternal instinct (9) that had rendered urban drug-using women "unable to manage their childcare responsibilities." (10) Urban women's maternal incapacity placed a novel strain upon social services because "mothers and grandmothers could no longer care for the escalating numbers of drug exposed infants." (11) If the burning question of social policy was--"who should absorb the costs of social reproduction?" (12)--the answer was that drug-using mothers clearly could not. (13) These Congressional hearings highlighted the fear that drug-using women would shift their burdens to the state. (14) Long used as a potent metaphor for social decline, the figure of the addicted woman encodes compulsion without control, the failures of self-governance, and the overwhelming power of illegitimate desires and insatiable needs. Yet, our view of individual parental responsibility stems from the notion that only those who can govern themselves are "fit" to govern others. Despite their marginalization, addicted women have been held individually accountable by zealous prosecutors for pregnancy "outcomes" over which they have little control. (15) Pregnancy outcomes have come under scrutiny as states have found compelling interests in fetal life and death. Fetal rights proponents owe their momentum to the anti-abortion movement, which strategically salted "the unborn" in numerous policy arenas ranging from child health insurance to separate penalties for the violent assault of a fetus. (16) While prosecutions of pregnant drug-using women may seem separate from the abortion debate, they have galvanized both the pro-prosecution anti-abortionists and the anti-prosecution feminists, civil libertarians, and clinicians who counter them. …

Cost-Benefit Analysis: Where Should We Go From Here?

Abstract: The Viscusi (1) and Scales (2) articles from Fordham University School of Law's symposium entitled The Contemporary Regulatory State present an interesting discussion of some of the intricacies of cost/benefit analysis (CBA). They talk about important issues, and I am tempted to weigh in. Resisting that impulse, however, I want to urge those infected with the cost/benefit bug--either pro or con--to devote some of their attention and energy to considering whether the agencies are implementing CBA appropriately and whether CBA is, in fact, producing better regulatory decisions. If the answer to these questions is "only partially," or "no," I believe we should spend our time and resources identifying and addressing (and hopefully eliminating or minimizing) the obstacles to sensible regulatory decision making. First, my bias: I am pro-CBA. I believe CBA is a sensible and important input to rational decision making. Indeed, I cannot imagine making regulatory choices (or legislative choices for that matter) without a systematic consideration of the intended (and unintended) consequences of a proposed action. And to facilitate comparative evaluations of possible choices, it is helpful not only to quantify but also to monetize both the costs and the benefits of each of the proposals under consideration. Many of those participating in the Fordham symposium have been working to improve CBA methodology for some time now, (3) which is good because it needed a lot of work. The calculation of the cost side of the equation was relatively straightforward. (4) The benefit side was appreciably more difficult, (5) fueling the oft-repeated criticism that CBA does not present a level playing field. (6) These critics assert (correctly) that, in looking only at the monetized costs and benefits, it not infrequently appears that the costs are greater than ("outweigh" (7) or "[do not] justify" (8)) the benefits of a proposal, even though total costs may not exceed total benefits when nonmonetized benefits are considered. (9) In this way, the critics argue, CBA is inherently biased against regulation. Probably true, but there has been a great deal of work in this area, and we are at least approaching parity in our ability to monetize costs and benefits. (10) Let me put to one side another criticism of CBA: the criticism questioning the morality of putting a dollar value on body parts or on a human life. (11) I do not believe that is what is intended or what is being done in monetizing statistical lives or statistical life years saved. My concern is somewhat different. As I mentioned, we have come a long way since we started down this path many decades ago. Much time has been spent and much ink has been spilled debating and ultimately improving the methodology of CBA. But we still do not know whether the agencies are implementing CBA appropriately whether the way the agencies use CBA produces better regulatory decisions. Consider two facts. First, an analysis is only as good as the data being analyzed. So how good are the data? Take cost data. The agencies are supposed to be highly knowledgeable and experienced in the matters within their jurisdiction--that was the original attraction of setting up administrative agencies. (12) But as we moved from agencies' regulating a specific sector--like railroads or food and drugs--to agencies' regulating cross-cutting issues, like workplace safety or the environment--the rule-writers cannot be expected to be as familiar with the actual operations of the varied factories, construction sites, or farmlands that might be affected by the regulations. Accordingly, in many situations, the cost data either originate from, or must be validated by, the regulated entities. For the most part, regulated entities are resistant, if not downright hostile, to the proposals and thus have an incentive to overstate the expected costs. …

Lessons Unlearned: Women Offenders, the Ethics of Care, and the Promise of Restorative Justice

Abstract: Latasha, the child of an alcoholic father and herself an alcohol abuser by thirteen, was arrested at nineteen after she hit a police officer with a baseball bat. (1) The officer was attempting to arrest her when she tried to take her child back from her boyfriend and his new girlfriend and instead ended up assaulting the girlfriend's mother. (2) It was Latasha's second assault arrest. (3) Latasha's mother, who separated from her father at ten, described Latasha as incorrigible; she said Latasha's father "screwed up Latasha by using her to get back at me." (4) Chris, a twenty-two-year-old woman, was arrested for permitting her husband to sexually abuse her five and nine-year-old nieces. (5) Chris's father was an alcoholic and was abusive to his wife and children. Once he pushed Chris's mother down the stairs, breaking her arm, while another time, he beat her brother so badly that his eardrums were broken. (6) In addition, he hit Chris so hard that it caused her speech to be "unintelligible," and as a result, she was described as "'nervous' and slightly retarded." (7) She was placed in special education classes after the second grade, and was "easily led." (8) When she was twenty-one, she married a thirty-five-year-old trucker. In accounting for her failure to stop her husband's abuse of the children, Chris suggested that she acted to please her husband, so he would love her. (9) Betsey, a twenty-three-year-old woman, was a drug abuser whose face was scarred from injuries she received when she was pushed out of a moving car while turning a "trick." (10) Betsey burned her scalp when she improperly applied a delousing salve to kill the imaginary vermin that she thought were crawling in her hair during a drug overdose. (11) She was arrested for possession of drugs, carrying a concealed weapon, check-forgery, fencing stolen goods--crimes she admitted to but was never charged for--as well as a robbery she claims she did not commit. (12) Betsey's mother left her abusive father, who had taunted her by saying that Betsey would have "ninety-nine kids" before she got out of school. (13) As a result, she forced Betsey to wear unattractive clothes, attend church twice on Sundays, and stay home at night. (14) After Betsey dropped out of school, her live-in boyfriend's mother, Marlene, encouraged her to work in prostitution in the streets near a naval base. (15) Marlene's "man" (who prostituted her) introduced Betsey to her "man," and Betsey and her man's two "wives-in-law" (other prostitutes with relationships with the same man) worked together in Milwaukee, Memphis, Nashville, and Florida. (16) She went through many men in her descent into drugs, and she was particularly touched by one man who tried to help her get off drugs without asking anything in return; however, he was ultimately imprisoned for forgery. (17) The steep rise in female offenders since the 1960s (18) has finally caused criminologists, lawyers, judges, and others to consider why they have not learned more about women offenders' lives, in order to better understand and explain why they enter, and how they proceed through the criminal system. (19) The rise in women's crime is particularly confounding because the overall crime rate has dropped. (20) Between 1990 and 1996, the state court convictions of women increased forty-two percent for felonies, thirty-seven percent for drug offenses, and thirty percent for violent felonies, while the overall crime rates in the same courts have dropped significantly. (21) There also has been an "explosion" in the number of incarcerated women. Prior to the war on drugs, about two-thirds of the women were put on probation and they represented less than five percent of the inmate population; however, by 1998, seven-and-a-half percent of all federal inmates were women, and seventy-two percent of them were drug offenders. (22) The study of these disturbing statistics has resulted in a number of theories that try to explain the recent increase in the number of women in prison. …

Statutory Interpretation in the Era of OIRA

Abstract: In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which they operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act (1) ("the Act") is being transformed from a technology-based regime into a cost-benefit regime. I will argue that this transformation is illegal. Given the plain language of the statute, it would be illegal even if the Environmental Protection Agency (EPA)--the agency charged with implementing the Act--had chosen this course. But EPA did not choose this course; OIRA did. OIRA's role in transforming EPA's understanding of the Act robs EPA's interpretation of any deference it might have been given under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (2) if EPA itself had chosen the interpretation. I use the Clean Water Act, and in particular a rule governing cooling water towers for power plants, as my case study. But the analysis applies whenever OIRA foists upon an administrative agency an interpretation of a statute that the agency has Congressional authority to administer. When OIRA's interpretation, not the agency's, prevails, the agency's reluctant embrace of OIRA's views does not deserve the deference Chevron might otherwise afford. Part I of this Article provides background on OIRA, the Clean Water Act, and EPA's rulemaking on cooling water towers. Part II discusses why EPA's interpretation of the Clean Water Act in the proceeding on cooling water towers was in error and why, given OIRA's deep involvement, EPA's interpretation does not deserve Chevron deference. I. BACKGROUND A. The Office of Information and Regulatory Affairs OIRA is situated within the OMB. Created by the Paperwork Reduction Act of 1980, (3) OIRA has the authority to monitor and reduce the paperwork burden of the federal government and private entities. (4) OIRA also oversees the Unfunded Mandate Reform Act, which creates special procedural rules for Congress's consideration of legislation having certain specified effects on obligations of states and local governments; (5) the Information Quality Act, which aims at ensuring the reliability of information disseminated by the federal agencies; (6) and the Small Business Regulatory Enforcement Fairness Act, which requires agencies to consider the effects of their actions on the nation's small businesses. (7) Under the Regulatory Right-to-Know Act, OIRA is also required to publish an annual report on the costs and benefits of federal regulation. (8) Yet, in terms of influence, none of OIRA's statutory obligations has surpassed the authority given to it under two different Executive Orders. The first, Executive Order 12,291, (9) which was issued by President Reagan in 1981, required OIRA to oversee compliance with the Executive Order's new requirement that agency regulations costing $100 million or more be subject to a cost-benefit analysis. (10) The second, President Clinton's Executive Order 12,866, superseded Executive Order 12,291 in 1993. (11) Executive Order 12,866 is similar in many respects to the Order it displaced; it, too, requires cost-benefit analysis for major agency regulations and gives OIRA oversight authority regarding agencies' cost-benefit analyses. (12) Moreover, Executive Order 12,866, like Executive Order 12,291, specifically states that it does not displace any statutory requirements the agencies otherwise face. (13) In its memorandum concluding that Executive Order 12,291 did not unconstitutionally interfere with other agencies' prerogatives, the Department of Justice's Office of Legal Counsel emphasized that the Executive Order did not undo agencies' obligations under existing law, including congressional enactments: [I]t is clear that the President's exercise of supervisory powers must conform to legislation enacted by Congress. …

Willful Blindness: Federal Agencies' Failure to Comply with the Regulatory Flexibility Act's Periodic Review Requirement - and Current Proposals to Invigorate the Act

Abstract: I. INTRODUCTION We live in the age of the bureaucracy. Whether we realize it or not, federal agencies regulate every aspect of our daily lives, including: the cloth in our beds; (1) the fuel for our cars; (2) the way we are paid; (3) and the ingredients in the food we eat. (4) The federal administrative system has the power to dictate to American business how things are done and officials have not hesitated to exercise their power. Recognizing that this wide-ranging power comes with responsibility, Congress passed the Regulatory Flexibility Act (RFA) in 1980 (5) to ensure that regulators take into account the individual rights of ordinary small businessmen and women while achieving the policy goals that the legislature has dictated. One of the ways the RFA did this was through section 610, which requires federal agencies to periodically review existing rules and consider reducing the regulatory burden on small business. Unfortunately, over the past twenty-five years, federal regulators have often ignored section 610 and have not conducted periodic reviews of their rules. Even those agencies which review some of their existing rules under section 610 rarely act in response to their reviews. Most of these agencies comply with the letter of the law for only a small percentage of their rules, and they rarely take action beyond publishing a brief notice in the Federal Register. Ironically, when regulators conduct periodic reviews under section 610, they are far more likely to increase the burden of regulation on small entities than to reduce it. (6) Essentially, since Congress's order to the federal bureaucracy twenty-five years ago to continuously assess the proper balance between regulatory goals and the economic burden on small business, the bureaucracy has responded by ignoring this mandate. Today, Congress is revisiting the history of agency non-compliance and defiance in the face of its order, and is considering legislation to ensure that agencies no longer feel secure regulating the public in perpetuity. (7) This Article first explains the basic requirements of the Regulatory Flexibility Act, and in particular focuses on the periodic review requirement contained in section 610. It then shares the results of research on agency implementation rates of section 610 of the Act and discusses the problems with agency implementation. Finally, it highlights potential solutions to agency noncompliance, and proposes the adoption of three amendments to the RFA: the proposed legislation in the House of Representatives and Senate, which would amend section 610 of the Regulatory Flexibility Act, and two additional amendments, which target problems that are not addressed in the currently pending legislation. II. THE REGULATORY FLEXIBILITY ACT A. What is the Regulatory Flexibility Act? 1. The RFA During the Carter Administration, public attention turned towards a number of actions by the federal agencies which inflicted widespread harm on an already fragile economy. (8) Congress responded in 1980 with the RFA, the express purpose of which was to make agencies: [E]ndeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. (9) The RFA is designed to ensure that agencies consider how their rules will affect small entities. (10) A federal agency must determine whether a rule will result in a "significant economic impact on a substantial number of small entities," and if so, must conduct regulatory flexibility analyses to accompany its proposed and final rules. …

Prosecuting Judges for Ethical Violations: Are Criminal Sanctions Constitutional and Prudent, or Do They Constitute a Threat to Judicial Independence?

Abstract: I. INTRODUCTION On April 29, 2004, the Kings County Supreme Court made legal history by dismissing eight counts of an indictment against then-Justice Gerald Garson. (1) In six of these counts, Justice Garson was accused of receiving reward for official misconduct under Section 200.25 of the New York Penal Law, in that he allegedly obtained or agreed to obtain a benefit in return for violating his duty as a public servant. (2) This is hardly an unusual charge to be leveled against an allegedly corrupt public official, but in Justice Garson's case, the "duty" he was accused of violating was based purely upon the New York State Code of Judicial Ethics. Specifically, it was alleged that Justice Garson acted criminally by conducting improper ex parte communications and by accepting fees for referring unrelated cases to a private attorney. (3) This was only the second time in New York, and the fourth time anywhere in the United States, (4) that a judge was prosecuted for violating ethical strictures that were not explicitly forbidden by a penal statute. In all three previous cases, the appellate courts held that such attempts were improper, characterizing them as violations of the principles of separation of powers and judicial independence. (5) In the Garson case, however, the Kings County District Attorney was ready to try again, claiming that a 1977 amendment to the New York State Constitution explicitly incorporated the ethical rules into the duties of a judge. (6) The Kings County Supreme Court rejected this argument, holding that the considerations of judicial independence, separation of powers, and constitutional vagueness that informed the previous cases were still valid. (7) This decision was affirmed by the Second Department of the Appellate Division, (8) but leave to appeal was granted by the New York Court of Appeals. (9) If the highest court in New York upholds the arguments of the District Attorney's office, it will mark a dramatic shift of power from judges to prosecutors, with local prosecutorial agencies having the ability to selectively pursue indictments against judges for violations of broadly-worded ethical rules. Moreover, by shifting judicial disciplinary authority toward the District Attorney's office, it would undermine separation of powers as well as the role of disciplinary boards in regulating the American judiciary. Accordingly, this Article will examine the constitutional and practical issues surrounding prosecutions of judges for ethical violations. The first part of this Article will focus on the Garson prosecution as an example of unwarranted prosecution of judges for violation of ethical codes. The second part will examine cases elsewhere in the United States in which judges and other public officials have been prosecuted for violations of ethical codes. This part will also analyze the manner in which the courts have dealt with considerations of constitutional vagueness, judicial independence, separation of powers, and the potential for vindictive prosecutions. Finally, the third part will discuss the threats to judicial independence that exist even under the current American legal framework, as well as the growing tendency to blur the line between civil and criminal liability. The Article will conclude that these factors, in combination with the fact that the code of judicial ethics was never intended to be a basis for criminal liability, militate against the use of such codes to define offenses under New York law. H. THE GARSON PROSECUTION The investigation of Kings County Supreme Court Justice Gerald Garson was a product of an ongoing probe into corruption in the Brooklyn courts. On January 24, 2002, Justice Victor I. Barron was indicted on charges of demanding a $115,000 bribe to approve a settlement in favor of an infant. (10) The indictment, which was the result of a two-year investigation, opened a Pandora's box of charges against other Brooklyn judges. …

The Death Penalty and the Debate over the U.S. Supreme Court’s Citation of Foreign and International Law

Abstract: BACKGROUND Is it appropriate to use foreign and international law to interpret the United States Constitution? Should the United States Supreme Court be permitted to cite foreign and international law in interpreting the U.S. Constitution? (1) These questions have generated much interest and controversy. While many justices and commentators endorse citations to foreign and international law, others have argued that it is inappropriate to interpret the U.S. Constitution based on non-U.S. law. (2) Indeed, the appropriateness of using foreign and international law in interpreting the U.S. Constitution is arguably the most controversial jurisprudential issue in recent years. It has invoked impassioned rhetoric and violent death threats aimed at Justice Ginsburg and former Justice O'Connor (3) and has spawned an impressive, ever-growing body of literature comprised of articles by justices, (4) legal commentators, (5) and journalists. (6) Outside the pages of the Court's official reporter, several Justices have spoken publicly about the proper role of comparative legal materials in U.S. constitutional interpretation. (7) For instance, in a rare public debate, Supreme Court Justices Stephen Breyer and Antonin Scalia argued the merits of citing foreign and international law in the Court's opinions. (8) Recently, at the nomination hearings of Justices John Roberts and Samuel Alito, senators fired questions at the candidates regarding the role of comparative legal materials, probing them to publicly announce their views on this explosive issue.(9) Perhaps most strikingly, citations to foreign and international law by U.S. courts have provoked the proposal of a congressional resolution stating that "judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions...." (10) Similarly, the Court's citations to comparative legal materials have provoked the proposal of a bill by several senators stating that in interpreting the Constitution, a court may not rely on "any constitution, law, administrative rule, Executive Order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law." (11) The Supreme Court's use of foreign and international law in interpreting the Constitution is not itself revolutionary; throughout its history, the Court has freely drawn on supranational law. (12) Thus, it is not the Court's mere use of comparative legal sources that has sparked the recent debate, it is the context of these references. The Court has recently cited foreign and international law to support key positions in high-profile cases dealing with hyper sensitive domestic issues, including the death penalty. (13) The Court has more than once abrogated its holdings in prior decisions, in part due to foreign and international law. (14) These references seem to indicate a conscious movement toward a transnational adjudication model and have impelled the dramatic controversy over the relevance of foreign and international law in U.S. constitutional interpretation. (15) The Supreme Court is sharply divided into two opposing factions regarding the function of comparative legal sources in the U.S. legal system. (16) Within the past two decades alone, the relevance of comparative legal sources in U.S. constitutional interpretation has been contested, at times quite heatedly, in eight Supreme Court cases. (17) The split among the Supreme Court Justices has primarily occurred along the liberal/conservative ideological divide--liberal-minded Justices tend toward the internationalist camp while conservative-minded Justices tend toward the nationalist camp. For example, in the highly contentious Lawrence v. Texas decision, Justice Kennedy led a majority of the Court in holding that a Texas statute making it a crime for two persons of the same sex to engage in certain sexual conduct was unconstitutional as applied to two adult males who had privately engaged in consensual sodomy. …

"Special Delivery:" Where do National Security Letters Fit into the Fourth Amendment?

Abstract: INTRODUCTION In the summer of 2005, agents from the Federal Bureau of Investigation ("FBI") visited George Christian, a digital services manager for over three-dozen Connecticut libraries (1) and presented him with a "National Security Letter." (2) The letter directed Mr. Christian to turn over subscriber information and access logs of Internet users at a certain library. (3) Over 30,000 National Security Letters, or "NSLs," are issued each year, presumably to investigate terrorists. (4) But because NSLs require the recipient to keep the letter secret, (5) what do we really know about NSLs? Historically, if an investigation concerned "international terrorist activities" it was subject to little oversight. (6) Serious abuses of investigative power, however, led Congress to enact legislation designed to protect civil liberties, even for "foreign intelligence investigations." (7) After the terrorist attacks of September 11, 2001 ("9/11"), Congress passed the USA PATRIOT Act ("PATRIOT Act") (8) to aid law enforcement efforts to fight terrorism. (9) The PATRIOT Act broadened the scope of certain investigatory tools, making the job of law enforcement easier and subjecting law enforcement agencies to fewer limitations. One such tool, National Security Letters, gives the government the authority to request certain types of transactional records without requiring judicial pre-approval and without giving the recipient a meaningful method to challenge it. (10) This begs the question: what does it mean to "fight terrorism?" Is the goal to prevent further terrorist attacks or to prosecute the perpetrators? That question has some important implications as the government struggles to sculpt a regulatory regime for terrorism cases that will be both effective and constitutional. There are different rules and procedures for domestic criminal investigations than for investigations that focus on foreign intelligence gathering. It is clear that a murder investigation is intended to gather evidence that will lead to the prosecution of the killer. When it comes to counter-terrorism, however, it is not as easy to determine whether the investigation is for the purpose of deterrence or prosecution. Furthermore, what safeguard is there to prevent a law enforcement officer, even one with good intentions, from using the less stringent standards for foreign intelligence operations to gather evidence that wouldn't otherwise be accessible if he had to follow the stricter procedures for a domestic criminal investigation? In several of its sections, the PATRIOT Act combines the procedures for traditional criminal law enforcement with the looser procedural standards that are in place for foreign counterintelligence investigations. (11) In some respects, NSLs are similar to administrative subpoenas--an information-gathering tool for domestic criminal investigations. In fact, the Bush Administration has suggested granting the FBI administrative subpoena power for counter-terrorism investigations so they would have the same tools available to catch terrorists as are already available to catch doctors engaged in insurance fraud. (12) This suggestion, however, over-simplifies the issue and disregards the fundamental differences between foreign intelligence investigations and criminal investigations--especially as related to the constitutionality of warrantless searches. So what are NSLs? Are they ordinary domestic law enforcement tools that have the looser standards of foreign intelligence-gathering tools? Or are they tools for foreign intelligence that may be used for ordinary domestic criminal investigations? Are they constitutional? And even if constitutional, are they still problematic? This Comment will examine NSLs both in the context of foreign intelligence and domestic criminal investigations. There are substantial arguments on both sides of the debate over the constitutionality of NSLs; this Comment will primarily be focused on how to classify NSLs and how to use them in a manner that reduces the potential for abuse or over-reaching. …

The Pendulum Swings Back: Poverty Law in the Old and New Curriculum

Abstract: INTRODUCTION Poverty law was a creation of the 1960s and in a broad sense, an outgrowth of the civil rights movement. Building on the civil rights movement's strategy of using law to effect social change, poverty lawyers sought to move beyond the civil and political rights agenda that was the movement's hallmark to issues of economic justice. (1) The trajectory of this legal activism paralleled developments within the populist arm of the civil rights movement during the 1960s, as movement leaders increasingly urged adoption of reforms that would address poverty as well as voting rights and other political inequalities. (2) As early as 1963, civil rights leader John Lewis asked those attending the March on Washington for Jobs and Freedom, "What is in [President Kennedy's civil rights bill] that will protect the homeless and starving people of this nation?" (3) By 1968, at the time of his assassination, Martin Luther King, Jr., was working in conjunction with welfare rights activists to systematically expand the Southern Christian Leadership Conference's work on class and economic issues. (4) Even in this social and political context, however, the speed with which law schools embraced poverty law was astonishing. Until the 1964-1965 school year, the idea of a non-clinical poverty law course was foreign to major American law schools. (5) Just five years later, a 1969 survey revealed that American law schools offered more than two hundred twenty-eight courses, exclusive of internship programs, that touched on poverty in some significant measure. (6) Once schools began offering the courses, aids for poverty law teaching started to appear. Professor Paul Dodyk of Columbia Law School served as the general editor of the first poverty law casebook, Cases and Materials on Law and Poverty, published by West in 1969. (7) A scant four years later, there was enough new material and sufficient law school demand to support a substantially-revised second edition of the casebook, this time co-edited by Dodyk (who had since left Columbia for private practice) and five Columbia Law School professors. (8) As Professor George Cooper's preface to the new edition stated, The mind boggles at the developments which have swept through this field in the four brief years since publication of the first edition.... In 1969 the subject of "Law and poverty" was more a gleam in the authors' eyes than a developed concept. It is now a fully recognized subject in law school curricula with two published casebooks, and several more casebooks and a treatise forthcoming. (9) The Dodyk casebook was tailored to a poverty law survey course addressing the major legal issues facing low income people. Indeed, the subject matter covered in the casebook was so broad that no single scholar could master it. Instead, the casebook was composed of in-depth sections on income maintenance, family law, housing, racial discrimination, and consumer protection, each written by a different author. (10) Yet even in the 1960s, this survey approach to poverty law was in the minority. The list of poverty law courses compiled for the National Conference on the Teaching of Anti-Poverty Law, held at Fordham Law School in 1969, cites thirty-eight survey courses, but many more specialized courses on social legislation, urban problems, juvenile delinquency, family law of the poor, welfare law, and poverty and race. (11) Even courses with such run-of-the-mill titles as "Torts Seminar," "Criminal Law," and "Labor Law" were listed as poverty law courses, presumably because their content included a special focus on the law relating to poor people. (12) Faced with the wide-ranging concepts of poverty law reflected in these course offerings, Professor Thomas Quinn led off the 1969 conference by posing a question for the law professors in attendance, "[W]hat is poverty law?" (13) Perhaps, he speculated, it is a new subject, like administrative law, that is "scattered" through the curriculum and can benefit from being brought together into one course. …

A return to eyes on the prize: litigating under the restored new york city human rights law

Abstract: "The Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law." --New York Statutes, Construction of Amendments (1) "The courts in construing a statute should consider the mischief sought to be remedied by the new legislation, and they should construe the act in question so as to suppress the evil and advance the remedy." --New York Statutes, Construction of Amendments (2) INTRODUCTION Fifteen years ago, in 1991, New York City enacted comprehensive reforms to its local Human Rights Law (3) in order to fight a civil rights counter-revolution that was already restricting civil rights protections on the national level. (4) These reforms never achieved their potential, a failure due, in significant measure, to the unwillingness of judges to engage in an independent analysis of what interpretation of the City Human Rights Law would best effectuate the purposes of that law. (5) This unwillingness has not been an isolated phenomenon. On the contrary, virtually every judge who has presided over a City Human Rights Law matter has simply asserted that the City Human Rights Law was nothing more than a carbon copy of its federal and state counterparts. (6) The recent enactment of the Local Civil Rights Restoration Act ("Restoration Act") (7) reflects the New York City Council's concern that the City Human Rights Law "has been construed too narrowly." (8) The law explicitly rejects the "carbon copy" theory: "In particular, through passage of this local law, the Council seeks to underscore that the provisions of New York City's Human Rights Law are to be construed independently from similar or identical provisions of New York state or federal statutes." (9) The Restoration Act proceeds along two basic tracks. One track consists of a series of amendments to particular sections of the law. These amendments are significant in and of themselves and in terms of understanding the direction in which the Council wishes to see the law proceed. These amendments expand retaliation protection, raise the maximum civil penalties that may be awarded in proceedings brought administratively, (10) protect domestic partners against all forms of discrimination proscribed by the law, (11) require administrative investigations to be thorough, and restore the availability of attorney's fees in catalyst cases. I defer exploration of these amendments until Part II of this article only because it is the Restoration Act's other track that is intended to be transformative. That second track is designed to eliminate the mechanism by which judges have failed to give the local law the expansive interpretation that the Council has intended. The Act states that provisions of state and federal civil rights statutes should be viewed "as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise." (12) This ought not be a revolutionary proposition. That idea, after all, has found explicit statutory expression for forty years. (13) Nevertheless, the reality is that there has been very little independent development of the local law, even in circumstances where the language of a specific City Human Rights Law provision varies from that of its federal or state counterpart. (14) The Act also amends section 8-130, the construction provision of the City's Human Rights Law, something the 1991 amendments had not done. In so doing, the Restoration Act takes direct aim at the premises and practices that have underlain interpretations of the statute. The construction provision--which is an operative provision as much as any other section of the law--is revised as follows (additions italicized; deletions bracketed): The provisions of this [chapter] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed. …

Applying the Laws of Logic to the Logic of Laws

Abstract: INTRODUCTION Consistency is a necessary condition of a just legal system, without which arbitrariness, unequal treatment, unpredictability, and, ultimately, injustice must result "The truth," remarked Justice Holmes, "is that the law is always approaching, and never reaching, consistency" (1) But beyond meager intuition, or bare observation, is it possible to rigorously examine internal logical consistency (2)--mutual compatibility among legal deductions--in the rule of law? (3) Kurt Godel, in a 1931 publication of a German scientific periodical, disproved the then-common assumption that each area of mathematics can be sufficiently axiomatized as to enable the development of an "endless totality of true propositions" about a given area of inquiry (4) Specifically, he proved that any formal logical system (a concept that I shall more clearly explain below) that entails sufficient means as to support elementary arithmetic (5) is necessarily subject to the inherent characteristic of incompleteness: arithmetical propositions which can be neither proved nor disproved within the system (6) Impliedly, every such system necessarily inheres either incompleteness or inconsistency Further, Godel proved the impossibility of establishing "internal logical consistency of a very large class of deductive systems unless one adopts principles of reasoning so complex that their internal consistency is as open to doubt as that of the systems themselves" (7) If applicable to law (a significant contingency indeed), Godel's proof indicates unavoidable judicial susceptibility to inconsistency, since abstinence from adjudication of formally undecidable cases is impractical Thus, application of Godel's Incompleteness Theorem to the legal context would establish a priori limitations on the capacity for consistency to exist within the law, as well as on the faculty to establish internal logical consistency within the law Perhaps more importantly, the law itself manifests plausible limitations on its capacity to realize formal consistency, or to be examined with respect to its consistency Specifically, formalizing a logical axiomatic legal system--a requirement of rigorously examining internal logical consistency--that retains the fundamental values of justice may prove difficult if not impossible Further, proving or disproving formal legal consistency may require construction of a legal language sufficiently exact to map, or mirror, meta-legal statements--statements about a formalized legal system--within the legal language itself Such construction may prove impossible as well I begin by discussing the difficulties of proving consistency within a formal system generally After establishing the importance of a formalized legal model as a prerequisite of rigorous examination of consistency, I investigate issues intrinsic to the current system of law that may prevent formalization of a just legal system as currently conceived (8) I argue that flexibility inherent in a just legal system (in the sense that judges have the ability to modify, in response to a given case, the presumptions from which that case's outcome will be derived) may foreclose the possibility of legal formalization or any comprehensive model thereof I conclude, however, that a model whose purpose is the examination of consistency within a system need not necessarily retain the dynamic nature of real-world formalization Rather, a static model of legal formalization may avoid the complications confronting a comprehensive formalization of law, while retaining the fundamental values critical to examination of consistency within the law I PROVING CONSISTENCY: A SNAKE EATING ITS OWN TAIL Suppose the creation of a system in which certain natural laws are presumed true Further, specified rules are initially established to allow additional laws to be derived from the presumed natural laws, and to allow further additional laws to be derived from other derived laws, and so on …

Women as perpetrators: does motherhood have a reformative effect on prostitution?

Abstract: An incarcerated prostitute, who had just given birth to a baby girl, awaited the hearing on her decision to give up her child for adoption. (1) As her gaze drifted toward the counselors and social workers who had assisted her in the adoptive placement process, she could not help but wonder if they were the only friends that she had in the world. (2) As part of the adoption process, a termination of parental rights hearing followed, where the judge read her entire criminal history into the record. (3) With a public litany of numerous convictions for drug possession and prostitution, the judge painted a picture of a criminal who was now doubly villainous for choosing adoption for her child. (4) Would not even the prospect of motherhood prove to be redemptive in her life? (5) In 2004, there were 90,231 arrests for prostitution in the United States. (6) One in three women in jail today were arrested for prostitution. (7) Among women in jail for felonies, the rate is even higher--seventy percent of these inmates were initially arrested for prostitution. (8) For women, prostitution is often a gateway crime leading to drug possession and use, (9) or a derivative crime that is committed to sustain a drug habit. (10) For the prostitute who had given up her child for adoption, did her drug dependencies perpetuate a cycle of crime that even motherhood could not break? Or was she a sacrificial heroine for placing her child's best interests above her own selfish desires to keep the child? (11) Could her decision for adoption have been based on the realization that the harmful and illegal circumstances in her life were not likely to change? (12) Is change even possible for a woman who has funded her survival and drug dependency with the sale of her body? This article explores whether motherhood may have any restorative effect on prostitution. (13) Minimal research has been done in this area, but this article will seek to analyze the available data about prostitutes who are mothers, review the literature on this subject to date, and discern whether there is indeed any reformative or restorative effect on the criminal disposition of a prostitute who becomes a mother. Section I provides an overview of the crime of prostitution. It analyzes the underlying themes of autonomy, power, authority, and control, and considers whether prostitution is an example of the ultimate loss of those qualities, or an exercise of complete freedom and liberty in autonomy. Section II discusses how motherhood affects the life of a prostitute. It analyzes current social science research and studies and explores maternal responsibilities in terms of potential work interruption, new personal roles, and anxieties associated with the work/family/crime triad. It also considers the moral concerns of prostitutes who become mothers. Section III analyzes whether motherhood is indeed a reformer of the criminal lifestyle of prostitution. Prostitute mothers share many of the anxieties of any working mother, with some dramatic departures due to the criminal nature of prostitution. Taking this into account, the article's conclusion offers some remedies which may help reform women who are trapped in prostitution. Prostitution is referred to as one of the oldest professions in the world. (14) It is criminally prosecuted in the majority of jurisdictions in the United States, and is illegal in all states but Nevada. (15) Prostitution also has close links with drug use and organized crime. (16) Though criminal activity may arise out of economic necessity, events such as family concerns, health matters, or social issues can trigger the reform of a person's criminal tendencies. (17) This article explores the impact of such trigger events on prostitutes. (18) Specifically, it considers what happens when the women who perpetrate this crime (19) become mothers. What effect does motherhood have on the criminal disposition toward prostitution? Could the responsibility and privilege of motherhood possibly bring reform to that criminal disposition? …

An Assessment of Cross-National Regulatory Burden Comparisons

Abstract: Governments everywhere engage in activities that impose burdens on individuals and businesses. These activities are undertaken in order to generate benefits of many types. Some of these burdens and benefits are readily measurable, particularly those taking the form of financial transactions, such as taxes and fees collected. Such payments are routinely and closely monitored, in ways permitting comparisons among countries. National rankings have been available for many years that are based on government revenues in the aggregate and relative to population, Gross Domestic Product (GDP), and other metrics. While payments by individuals and business to their governments are the most visible and generally largest form of governmental burden, mandated behavior catalogued in regulations also imposes a burden by requiring a substantial expenditure of time and resources. (1) Any portrayal of governmental burden that ignores regulatory compliance costs is misleading, particularly since governments are, to a considerable degree, able to achieve objectives through varying mixes of fiscal and regulatory measures. A government, for example, can construct a water filtration plant using tax revenues, or require businesses to use their own funds to construct it. (2) Traditionally, far more public attention has been focused on fiscal burden than on regulatory burden, largely due to the transparency of budgetary transactions. This is not surprising given the fragmented nature of regulation, which arises independently in dozens of separate governmental agencies and units. The importance of rectifying this imbalance, and making the public more fully aware of regulatory burden, has been underscored by a Canadian finding that "recent research, particularly from the OECD, and better data on regulations, point to strong and almost always negative links between the economic restrictiveness or burden of the regulations and economic performance." (3) Similarly, a World Bank working paper concludes that "a heavier regulatory burden reduces growth and increases [macroeconomic] volatility." (4) Of course, any portrayal of governmental activity that ignores whatever benefits it may produce is incomplete, whether the action is a spending program or a regulatory program. Unfortunately, sufficient characterizations of such benefits exist neither for fiscal actions nor for regulatory actions. The fundamental question of whether the net effect of particular governmental activities enhances societal well-being is rarely answered adequately, either prospectively or retrospectively. As for spending programs, an implicit reckoning exists, in that government must finance its spending, putting in place a political and financial constraint, the effectiveness of which varies over time and across jurisdictions. (5) No such inherent constraint exists, however, for regulatory programs, which explains the rise in many countries of alternative oversight mechanisms such as benefit-cost analytical requirements. (6) Such oversight mechanisms are used with varying success to supplement whatever legislative review procedures may apply to both particular spending and regulatory programs. (7) The United States has made more headway than other nations in bringing benefit-cost principles to bear on regulatory decision making, thanks to efforts of units within the Executive Office of the President that have continued for over three decades. (8) The lead role on that front is now being taken by the Office of Management and Budget (OMB), as detailed in its December 2005 report. (9) Some estimates of overall regulatory compliance cost do exist for a few countries, but they are less widely available and considerably less standardized than are estimates of taxes and fees. (10) Regulatory cost estimates have been generated for the United States Government, (11) and to a much lesser extent for the governments of other countries. …

Miranda, Please Report to the Principal's Office

Abstract: [N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone. (1) The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. (2) Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation (3)--should apply to students interrogated by school officials during school hours. (4) To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school campuses and evaluates how this presence affects the role of school officials. Finally, the high level of cooperation between law enforcement and school officials in criminal law enforcement is considered to determine whether Miranda should apply in the principal's office. (5) A. MIRANDA'S APPLICABILITY TO JUVENILES The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. (6) On at least five occasions, the United States Supreme Court has considered cases involving minors and confessions. (7) The Court's jurisprudence can be easily categorized into two main areas: cases involving Due Process or voluntariness challenges to confessions, and cases addressing purported Miranda violations in obtaining confessions. In both contexts, however, the Court has clearly indicated that there exists a distinction between minors and their adult counterparts in evaluating whether the confession should be utilized in criminal proceedings. As the Court emphasized in Gault, "admissions and confessions of juveniles require special caution." (8) Lowers courts, also, have distinguished between youthful offenders and their more senior peers. (9) These same courts, however, have increasingly been willing to broach the germane issue of who should be evaluated when assessing the voluntariness and admissibility of a minor's confession. (10) Under Miranda and its progeny, the consideration has been strictly limited to law enforcement ofricers--usually police officers. But, with the increased police presence in both public and private schools, courts must now address the relationship between school resource officers (SROs) (those police officers that are regularly scheduled to work at schools in both a school disciplinary and law enforcement capacity) and the teachers and principals who work in conjunction with SROs to maintain safety, order, and discipline on campuses. Lower courts have addressed this sensitive and synergistic relationship in the New Jersey v. T.L.O. search and seizure context, (11) but have not been as forthcoming in the confession arena where students need greater protection, (12) Just two years ago, Justice Breyer resurrected the concept of in loco parentis as it relates to the intersection of school discipline and school law enforcement. (13) Generally, the transition in modern times has been to move away from the more liberal approach taken in Tinker v. Des Moines (14) and toward an increasingly restrictive notion of students' rights in the overlapping criminal law and school discipline context. (15) Students may retain their Fourth Amendment rights, though somewhat diluted, but their Fifth Amendment rights more readily fall victim to the dual capacity of school official as part teacher, part state actor. …

Loyalty's Reward - a Felony Conviction: Recent Prosecutions of High-Status Female Offenders

Abstract: I. INTRODUCTION Over the past four years, the American public has witnessed a seemingly unending number of corporate and white-collar scandals. Corporate scandals in the business world are not a new phenomenon; indeed, every decade has had its share. Michael Milken, the Wall Street wonder of the eighties, along with his associate, Ivan Boesky, were both dethroned in the "junk bond" scandal. (1) This was followed by the Savings and Loan scandal that sent Charles Keating to jail. (2) The Archer Daniels Midland price-fixing scandal (3) marked the nineties, as did the Whitewater investigation that was closely associated with then President William Clinton and his wife, Hillary Clinton. (4) Nonetheless, the present wave of corporate and white-collar scandals distinguishes itself through the sheer number of companies being investigated. (5) It appears that no industry has been safe from scandal. (6) The investigations prompted by the collapse of Houston's energy giant, Enron, were independently responsible for the indictments of thirty individuals as of May 2004. (7) The present scandals are also interesting because they provide us with an opportunity to observe the prosecutions of several women of high status charged with white-collar crime. (8) Other than Susan McDougal, a defendant in the Whitewater case, (9) and Leona Helmsley, the New York Hotel proprietor, (10) one is hard pressed to recall significant numbers of women publicly associated in the past with white-collar crime or corporate scandal at the level we presently see. Between 2001 and 2004, six high-status women were charged with crimes in connection with corporate criminal cases. (11) The public is familiar with some of them, although not all of their cases have been covered equally in the press. The most thorough press coverage was of the arrest and trial of Martha Stewart, former CEO of Martha Stewart Living Omnimedia, whose case has been referred to as "mediagenic." (12) Stewart's public persona drove the coverage, despite the fact her criminal acts were neither the most serious, nor the most extensive, of the six. (13) The other five women are Lea Fastow, former assistant treasurer of Enron; (14) Betty Vinson, former account manager for WorldCom; (15) Kathleen Winter, former director at Marsh & McLennan, Inc.; (16) Helen Sharkey, of Dynegy, Inc.; (17) and Paula Rieker, former Vice President, Managing Director of Investor Relations and Corporate Secretary of Enron. (18) Lea Fastow's prosecution received some media attention, although the simultaneous prosecution of her husband, Andrew Fastow, the former CFO of Enron, undoubtedly motivated the coverage. (19) Similarly, Betty Vinson's case came to the attention of the press because her guilty plea helped secure the government's case against the CFO of World Com, Scott Sullivan. Sullivan eventually entered into a cooperation agreement with the government. (20) His cooperation enabled the government to prosecute Bernard Ebbers, the CEO of WorldCom at the time the telecommunications firm collapsed. (21) Relatively little information can be found in the public domain about the other three women, who have all plead guilty, and are presently cooperating with authorities and awaiting sentencing in 2006. During the same period of time these corporate scandals were unfolding, another "mediagenic" case of a high-status woman was investigated and prosecuted. This woman was rap artist Lil' Kim, whose birth name is Kimberly Jones. (22) At first blush, Lil' Kim's case appeared to fit within the parameters of the prosecutions of the other high-status women. She was, for example, charged with a classic white-collar cover-up crime, as was Martha Stewart. (23) She was charged in connection with an investigation into the actions of others. However, for reasons that will be discussed in Part IV of this Article, Lil' Kim's high status was not sufficient to elevate her case to the level of white-collar treatment. …

Resisting Regulation with Blue Ribbon Panels

Abstract: I. INTRODUCTION Modern health, safety, and environmental regulations rely heavily on scientific information. Consequently, disputes over the reliability of scientific studies, the proper interpretation of scientific data, and the inferences that may appropriately be drawn from an existing body of scientific information arise with great regularity as agencies like the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Food and Drug Administration (FDA) go about their day-to-day business of implementing protective regulatory statutes. (1) These disputes typically raise issues of such mind-numbing complexity that they are virtually incomprehensible to agency decision makers who generally lack scientific training in the specific areas of scientific knowledge that those disputes invoke. Decision makers must therefore rely upon scientists who are familiar with the relevant research to assess the quality of the scientific studies, interpret the scientific data, and define the range of proper conclusions that can be drawn from the data. At the same time, however, the existing body of scientific information is rarely sufficient, by itself, to dictate a "scientifically correct" resolution of such disputes, and regulatory decisions necessarily turn on both scientific information and regulatory policy. (2) Regulatory decision makers therefore face the daunting task of resolving scientific disputes, defining where the science stops and where the policymaking begins, and determining the content of the policy that must necessarily fill the gaps left by incomplete or inadequate scientific information. One tried and true decision-making aid in this context is the "blue ribbon panel," which is composed of neutral experts charged with answering specific questions that have been carefully crafted to limiting the panel's input to scientific issues while leaving the policymaking to agency decision makers. (3) The relevant agency can either appoint the blue ribbon panel on its own or contract with an outside body, like the National Research Council of the National Academies of Sciences (NAS), to assemble the panel and oversee its deliberations. In fact, Congress frequently requires agencies to enter into such contracts with NAS to address especially controversial scientific issues. (4) When such panels can achieve consensus, their reports can be very useful to the agency, both for the information that they provide, and for the legitimacy that they can lend to the agency's ultimate decision. Because the "blue ribbon panel" approach is time-consuming and expensive, it is not appropriate for every regulatory action involving science, but it is ideal for especially contentious scientific disputes that otherwise tend to paralyze regulatory decision-making. Because science plays such a prominent role in the regulatory process, and because the science is invariably contestable, the entities that regularly participate in that process have a strong incentive to present the existing body of scientific information to the agency in a way that advances their preferred regulatory outcomes. One way for a regulated entity to accomplish this result is to assemble its own "blue ribbon panel," populate it with scientists who are likely to resolve disputes consistently with the regulated entity's preferred policies, charge the panel with questions that encompass both science and policy, and subtly attempt to influence the outcome of the panel's deliberations. (5) The panel members are paid generous honoraria or are hired as consultants, and they are flown, all expenses paid, to commodious locations for their periodic meetings. (6) The staff support that the regulated entity provides to the panel creates a built-in mechanism by which it can shape the panel's deliberations. Scientists from the regulated entities are made available to offer input and advice, but the meetings are otherwise typically private affairs. …