Showing papers in "Washington Law Review in 1998"

No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication

Abstract: Anglo-American law has historically prohibited fornication, and through the 1960s fornication remained illegal in all but ten states. Few questioned the validity of laws proscribing various forms of private, adult, consensual sexual behavior until the early 1970s. Aside from legislative repeal, substantive due process has been the primary weapon in the fight against state sex laws. Although the U.S. Supreme Court's substantive due process jurisprudence, particularly in the area of personal privacy, has brought the constitutionality of fornication statutes into question, it has not definitively resolved the matter. This Comment argues that laws prohibiting fornication do not violate substantive due process. It reasons that fornication laws need only withstand rational basis review because history does not support a right to fornicate, and the Supreme Court's privacy jurisprudence does not encompass such a right. This Comment contends, alternatively, that even if the Court were to find a fundamental right to engage in sex, fornication laws would withstand strict scrutiny. Finally, the Comment concludes that states should pass, but not necessarily enforce, fornication laws. Laws prohibiting fornication' remain on the books in at least thirteen states and the District of Columbia.2 Until the 1970s, few questioned the validity of laws prohibiting various forms of private, adult, consensual sexual behavior.3 Today, however, these laws, at the threshold of 1. Although statutory definitions vary slightly, fornication is the act of sexual intercourse between persons who are not married to each other. See Gerhard O.W. Mueller, Legal Regulation of Sexual Conduct 46 (1961). 2. D.C. Code Ann. § 22-1002 (1996); Ga. Code Ann. § 16-6-18 (1996); Idaho Code § 18-6603 (1997); 720 Ill. Comp. Stat. Ann. 5/11-8 (West 1993); Mass. Ann. Laws. ch. 272, § 18 (Law. Co-op. Supp. 1992); Minn. Stat. Ann. § 609.34 (West 1987); Miss. Code Ann. § 97-29-1 (1994); N.C. Gen. Stat. § 14-184 (1993); N.D. Cent. Code § 12.1-20.08 (1985); S.C. Code Ann. § 16-15-60 (Law Co-op. 1985); Utah Code Ann. § 76-7-104 (1995); Va. Code Ann. § 18.2-344 (Michie 1996); W. Va. Code § 61-8-3 (1997); Wis. Stat. Ann. § 944.15 (West 1996); see Richard A. Posner & Katharine B. Silbaugh, A Guide to America's Sex Laws 98-102 (1996) (listing enactment dates of state fornication statutes, ranging from as early as 1692 (Massachusetts) to as late as 1973 (North Dakota)). Additionally, at least four states that do not expressly prohibit fornication have outlawed cohabitation. See Ariz. Rev. Stat. Ann. § 13-1409 (West 1989); Fla. Stat. Ann. § 798.02 (West 1992); Mich. Comp. Laws Ann. § 750.335 (West 1991); N.M. Stat. Ann. § 30-10-2 (Michie 1994). It is also a federal offense to knowingly transport or persuade an individual to travel in interstate or foreign commerce with the intent that such individual enuage in criminal sexual activity. 18 U.S.C.A. §§ 2421-2422 (West Supp. 1998). See generally Posner & Silbaugh, supra (providing state-by-state review of fornication and cohabitation laws, including enactment dates). 3. Richard Green, Fornication: Common Law Legacy and American Sexual Privacy, 17 AngloAm. L. Rev. 226,228 (1988). Washington Law Review attempts to regulate sexual conduct,4 are the subject of much dispute. Courts nationwide are divided over whether fornication is a fundamental right, and whether the right to privacy protects private, consensual sex between unmarried heterosexual adults.' Some lower courts have upheld laws prohibiting fornication or deviant consensual sex between unmarried heterosexual adults as valid exercises of the police power; 6 others have struck down these statutes as violations of the right to privacy.7 The U.S. Supreme Court has found that the right to personal privacy includes an individual's liberty to make choices regarding contraception and abortion;8 nevertheless, it has upheld statutes prohibiting sodomy as applied to consenting homosexual adults.9 The Court has emphasized that its substantive due process opinions, particularly in the area of privacy, have not decided the constitutionality of statutes prohibiting fornication.\" This Comment argues that fornication statutes do not violate an individual's Fourteenth Amendment substantive due process rights. Part I briefly traces the history of fornication laws in the United States. Part II presents the framework for evaluating a substantive due process challenge. Part III summarizes the Supreme Court's privacy jurisprudence\" and notes that neither the U.S. Supreme Court nor lower courts have resolved whether fornication proscriptions are constitutional. Part IV argues that no fundamental right to fornicate exists; thus, fornication statutes are subject to rational basis review. It notes that fornication statutes do not violate substantive due process because states have numerous rational bases for proscribing fornication. Part V contends that, even if the Court were to find that statutes prohibiting fornication warrant strict scrutiny, the statutes would withstand it. Part 4. Id. at 237. If fornication laws withstand substantive due process challenges, legislation related to less conventional private consensual sexual conduct, such as adultery and homosexuality, has a strong chance of being upheld. See id. at 238. 5. See, e.g., Schochet v. State, 580 A.2d 176, 181-82 (Md. 1990) (noting significant division among courts addressing constitutionality of punishing consensual sex between heterosexual adults). 6. See infra note 102. 7. See infra notes 99-100. 8. Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977). 9. Bowers v. Hardwick, 478 U.S. 186, 189 (1986). 10. See, e.g., Carey, 431 U.S. at 688 n.5, 694 n.17. 11. The concept of constitutional privacy has embraced at least two different kinds of interests: the individual's interest in avoiding disclosure of personal matters, and the individual's interest in independence in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). This Comment focuses on the latter. Vol. 73:767, 1998

Asymptomatic HIV as a disability under the Americans with Disability Act.

Abstract: The Americans with Disability Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected under the ADA, but that the analytic framework thus far employed by the courts is flawed. Asymptomatic HIV is a protected disability not because it is independently debilitating, but because the prejudices and fears of other may prevent HIV-infected persons from fully participating in society. The ADA was enacted to prevent exactly this type of discrimination.

Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View of the Proposed Ninth Circuit Split

Abstract: Most academic commentators oppose splitting the Ninth Circuit Court of Appeals. They argue that the court's size is a virtue and either deny that the court has sizerelated problems, such as workload, consistency, and reversal rate, or claim that a split would not address these problems. The U.S. Congress, however, is less sure. It has appointed the Commission on Structural Alternatives for the United States Courts and asked it to study a possible Ninth Circuit split. This Article provides an \"insider's view,\" that of a former elbow clerk, and reveals that a split would significantly decrease the court's workload and increase its consistency and predictability. The so-named \"icebox split,\" which would sever Alaska, Idaho, Montana, Oregon, and Washington from the Ninth Circuit and create a new Twelfth Circuit, would best improve the administration of justice without violating other important policies governing circuit boundary setting for a definable group of Americans knit together by common interests. This Article concludes that the Ninth Circuit should be split and a new circuit created from the icebox states. Chief Inspector Morse: What are the twin bases for successful

Quixotic Attempt? The Ninth Circuit, the BIA, and the Search for a Human Rights Framework to Asylum Law

Abstract: The Ninth Circuit and the Board of Immigration Appeals (BIA) historically have disagreed about the application of human rights norms in many areas of asylum law. Although recent decisions by the BIA indicate more receptiveness toward the Ninth Circuit's broader approach, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 seeks to stifle judicial review in many areas of immigration law, including asylum. This Comment analyzes the potential impact of the law on the development of asylum jurisprudence and recommends areas for future dialogue between the Ninth Circuit and the BIA. \"In the absence of judicial review, grave injustices could take place for which our government and our people would have to bear the moral responsibility.\"1 \"[We have now joined the United States Court of Appeals for the Ninth Circuit in its quixotic attempt to right the wrongs of the world.... 2 Nearly two decades of often vitriolic dialogue between the Ninth Circuit and the Board of Immigration Appeals (BIA) may have finally culminated in cooperation. In the past, the two appeals bodies had exchanged interpretations, and sometimes insults, about the proper approach to asylum law since Congress passed the Refugee Act of 1980.? The BIA's narrow interpretation reflected immigration concerns and U.S. foreign policy priorities, while the Ninth Circuit grounded its opinions in the humanitarian purposes of the Refugee Act. In 1996, however, the BIA issued two precedential opinions that adopted many of the Ninth Circuit's propositions the BIA had long resisted.4 This rapprochement 1. Rodriguez-Roman v. INS, 98 F.3d 416, 433 (9th Cir. 1996) (Reinhardt & Hawkins, JJ., specially concurring). 2. In re H-, Int. Dec. 3276, at 20 (B.I.A. 1996) (Heilman, Board Member, dissenting). 3. Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified as amended in scattered sections of 8 U.S.C. (Supp. II 1996)). The Refugee Act forms the statutory basis for modem asylum law. 4. H-, Int. Dec. 3276; In re S-P-, Int. Dec. 3287 (B.I.A. 1996). The BIA must apply Ninth Circuit precedent within the circuit but can reject it elsewhere unless the Board adopts the reasoning as its own. See Matter of Anselmo, 20 1. & N. Dec. 25, 31-32 (B.I.A. 1989). Washington Law Review Vol. 73:105, 1998 signals a renewed commitment to the human rights underpinnings of asylum law and an opportunity for further development-quixotic or not. The BIA's transformation also exemplifies the positive influence of judicial review in the field of immigration law. Ironically, the breakthrough developed just as Congress tried to limit judicial influence in this field. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminates or narrows the scope of judicial review in many areas, including asylum.' Although the full import of these provisions remains unclear, they could stunt the type of agency-court dialogue that influenced the recent changes within the BIA. Rather than cabining its review functions in the wake of IIRIRA, the Ninth Circuit should continue efforts to advance asylum law. The usual administrative agency deference6 is ineffective and even inappropriate in the asylum setting because the BIA lacks specialized expertise to interpret the Refugee Act.7 Unlike most immigration laws, which reflect evolving policy goals, the Refugee Act requires neutral analysis honoring its humanitarian purpose.8 Undue deference to the BIA, a political body, risks elevating policy goals above humanitarian concerns, which is exactly what Congress wished to avoid when it passed the Act.9 Judicial review prevents potential misinterpretation and stagnation.'\" 5. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 306(a)(2), 110 Stat. 3009-546, 3009-607 (amending Immigration and Nationality Act § 242, 8 U.S.C. § 1252 (Supp. II 1996) [hereinafter INA]). 6. The seminal case on deference to administrative agencies is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The U.S. Supreme Court required deference when Congress left statutes silent or ambiguous and the agency interpretation was not arbitrary or capricious. Id. at 843-44. The facts of Chevron, however, involved agency rulemaking rather than adjudication. Id. at 840-44. See Maureen B. Callahan, Judicial Review ofAgency Legal Determinations in Asylum Cases, 28 Willamette L. Rev. 773, 788 (1992) (urging deference to agency adjudicatory decisions only where warranted under circumstances); Michael G. Heyman, Judicial Review of Discretionary Immigration Decisionmaking, 31 San Diego L. Rev. 861, 907 (1994) (arguing that adjudicatory decisions require less deference than policymaking decisions). 7. Asylum cases constitute only 30% of the BIA caseload. Vicente A. Tome, Administrative Notice of Changed Country Conditions in Asylum Adjudication, 27 Colum. J.L. & Soc. Probs. 411, 425 n.93 (1994). Tome adds that BIA members lack training on foreign country conditions, key factors in asylum claims. Id. at 440. 8. See Callahan, supra note 6, at 788-89; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 444-50 (1987) (reaffirming judiciary's role in interpreting Refugee Act). 9. See Callahan, supra note 6, at 785; Cynthia R.S. Schiesswohl, Judicial Autonomy in the Immigration Adjudicatory System, 21 U. Dayton L. Rev. 743, 756 (1996). 10. See Deborah E. Anker, The Law of Asylum in the United States: A Guide to Administrative Practice and Case Law 23-24 (2d ed. Supp. 1992) (noting deleterious effects of administrative isolation on development of asylum law); T. Alexander Aleinikoff, Aliens, Due Process and \"Community Ties\": A Response to Martin, 44 U. Pitt. L. Rev. 237, 258 (1983) (arguing that Ninth Circuit Review of Political Asylum Cases The dialogue between the Ninth Circuit and the BIA stands as a successful model of judicial review, albeit a work in progress. Important issues still remain unresolved and require the combined attention of the two appeals bodies. The BIA's shift marks an opportunity to address those issues further and remove political overtones from statutory interpretation. This Comment examines the evolving relationship between the Ninth Circuit and the BIA. Part I briefly explains the requirements of asylum and the international roots of the Refugee Act. In Part II, this Comment provides examples of past divergence between the BIA and the Ninth Circuit in interpreting the Refugee Act. It explores how effectively the two appeals bodies have complied with international standards. Part III explains how this dialogue has advanced asylum law by influencing the BIA to give effect to the Refugee Act's human rights purposes. That adjustment remains tenuous, however, and Part IV analyzes whether IIRIRA could prevent future constructive dialogue. This Comment concludes in Part V with recommendations on issues the Ninth Circuit and the BIA should address in future discourse. I. LEGAL REQUIREMENTS AND INTERNATIONAL UNDERPINNINGS OF U.S. ASYLUM LAW Asylum applicants face two obstacles before receiving protective relief under U.S. law. First, they must meet the statutory definition of \"refugee.\" 1 The definition requires (1) a well-founded fear of (2) persecution (3) on account of (4) race, religion, nationality, membership in a particular social group, or political opinion. 12 Most debates between review bodies turn on the interpretation of these key phrases. administrative isolation damages agencies by preventing them from maturing as they would in dialogue with courts). 11. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1) (Supp. II 1996). 12. INA § 101(a)(42)(A), 8 U.S.C. § l101(a)(42)(A) (Supp. II 1996). The full text defines refugee as: [A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1 101(a)(42)(A). Washington Law Review Vol. 73:105, 1998 Second, an applicant who meets the definition also must receive a discretionary grant of asylum from the decisionmaker.13 The decisionmaker may refuse to grant asylum based on negative factors. 4 Early BIA policy allowed almost unfettered negative discretion when adverse factors such as document fraud occurred. 5 The BIA later retreated from that formalistic approach and crafted guidelines that presume positive discretion in most cases.16 Single negative factors are no longer dispositive, and decisionmakers must weigh all equities. 1 7 Restriction on removal, formerly named withholding of deportation, is a companion provision to asylum that eliminates the government's discretionary power and mandates protection if applicants prove their lives \"would be threatened because of\" the grounds enumerated in the statute. 8 The United States cannot refoul, or return, such victims to persecuting countries. 9 Restriction on removal requires applicants to meet a higher burden of proof than the discretionary relief of asylum, 0 but the other terms in the statutes are interpreted identically.2' Applicants denied either form of relief can appeal to the BIA, which is the administrative appeals body.' The statute also provides for review in federal court after an applicant exhausts administrative remedies.' 13. See Cardoza-Fonseca, 480 U.S. at 441. INS asylum officers make some initial asylum decisions. 8 C.F.R. § 208.2(a) (1997). Immigration judges, who are part of the Executive Office of Immigration Review, also make asylum decisions during removal hearings. 8 C.F.R. § 208.2(b) (1997). 14. See Cardoza-Fonseca, 480 U.S. at 441; Matter of Pula, 19 1. & N. Dec. 467, 473-7

A Proposed Conflict of Interest Rule for Attorney-Mediators

Abstract: Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorneymediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that is tailored specifically to attorney-mediators. The integrity of mediation as an alternative form of dispute resolution depends largely on the ethics of mediators. To promote the success of the process and protect the rights of the parties, mediators must remain impartial and must preserve the confidentiality of mediation sessions. Conflicts of interest involving past or future professional relationships can undermine confidentiality and call into question mediators' impartiality. Attorneys who practice both mediation and law are particularly likely to find themselves in situations where the role of \"impartial mediator\" conflicts with the role of \"loyal advocate.\"' The lack of clear ethical guidance for attorney-mediators has become more apparent as more attorneys have entered the practice of mediation. Ethical standards for mediators vary from non-existent to highly comprehensive depending on the jurisdiction. Even in jurisdictions with comprehensive mediator ethical guidelines, the relative authority of attorney rules of professional conduct and mediator ethical standards may not be clear to attorney-mediators. The Washington State Rules of Professional Conduct (Washington Rules) were amended in 1993 to bring attorney-mediators under the 1. Attorney-mediators face many other difficult ethical dilemmas. Indeed, it has been suggested that all mediators should be specifically governed by comprehensive ethics rules covering areas such as \"self-determination,\" \"impartiality,\" \"competence,\" \"fees,\" \"advertising and solicitation,\" and \"confidentiality.\" AAAIABA/SPIDR Model Standards of Conduct for Mediators, reprinted in John D. Feerick, The Lawyer's Duties and Responsibilities in Dispute Resolution: Toward Uniform Standards of Conduct for Mediators, 38 S. Tex. L. Rev. 455 app. A, at 478-84 (1997) [hereinafter Model Standards]; see also Ala. Code of Ethics for Mediators (Michie 1996); Iowa Code Ann. app. § 598 (West 1996). Washington Law Review conflict of interest rule for judges, arbitrators, and law clerks.2 Although this amendment acknowledges the need for conflict of interest rules governing attorney-mediators, its provisions are ultimately inadequate. Recent case law, rules adopted in other jurisdictions, and ethical guidelines promulgated by professional organizations demonstrate that the unique advocacy relationship between attorneys and clients calls for a more comprehensive conflict of interest rule for attorney-mediators than Washington Rule 1.12, and its counterparts in other states, provide. Part I of this Comment provides background on mediation and the need for conflict of interest rules for attorney-mediators. Part II describes the current approaches to resolving conflicts. Part Ill argues that the current approaches are inadequate. It proposes a comprehensive conflict of interest rule for attorney-mediators that should be adopted as part of the Rules of Professional Conduct in all states. I. MEDIATION AND POTENTIAL CONFLICTS FOR