Dateline tag:jurist.org,2010-04-01:/dateline//6 2012-02-07T21:04:30Z Movable Type 5.01 Jones: A Victory for Fourth Amendment Jurisprudence tag:jurist.org,2012:/dateline//6.40430 2012-02-07T21:00:00Z 2012-02-07T21:04:30Z JURIST Guest Columnist Corrie Thearle, University of Pittsburgh School of Law Class of 2012, is a Senior Editor for the Pittsburgh Journal of Environmental and Public Health Law. She discusses the Supreme Court's decision in United States v. Jones and... Megan McKee JURIST Guest Columnist Corrie Thearle, University of Pittsburgh School of Law Class of 2012, is a Senior Editor for the Pittsburgh Journal of Environmental and Public Health Law. She discusses the Supreme Court's decision in United States v. Jones and its implications for Fourth Amendment search jurisprudence...

The Supreme Court's recent decision in United States v. Jones reinvigorated an area of Fourth Amendment jurisprudence that had lain dormant for almost half a century. Since 1967, courts have followed the two-part Katz v. United States test, which requires that a person must 1) have a subjective expectation of privacy that 2) society finds reasonable, in order to determine whether Fourth Amendment protection is triggered. In Jones, a case involving warrantless GPS monitoring of a vehicle, the Court surprisingly revived pre-Katz jurisprudence by using a common-law trespass approach. The Court held that the government's physical intrusion on an "effect" for the purpose of obtaining information constituted a search under the Fourth Amendment. Although not discarding the confusing, if not circular, "reasonable expectation of privacy" standard adopted in Katz, the Court re-established that the Katz test had been added to, but not substituted for, the common-law trespassory test. Thus, the Court reinforced a stable property based threshold, which courts can rest upon while treading the murky waters of a post-Katz Fourth Amendment analysis.

In US v. Jones, the Court considered whether the government violated Antoine Jones's Fourth Amendment rights by installing a GPS tracking device on his vehicle without a valid warrant and without his consent. In 2004, an FBI-Metropolitan Police Department Safe Streets Task Force began investigating two suspects, Antoine Jones and Lawrence Maynard, for narcotics violations. During the course of the investigation, law enforcement officials placed a GPS tracking device on Jones's vehicle, which tracked his movements twenty-four hours a day for twenty-eight days. The GPS device relayed more than 2,000 pages of data over the four-week period.

It should be noted that police initially obtained a warrant to install the device in Washington DC, for up to ninety days, and within ten days of the issuance of the warrant. However, the agents did not install the device until eleven days after the warrant was issued, and they installed it while the vehicle was parked in a public parking lot in Maryland. Agents also later replaced the device's battery while the vehicle was located in a different public parking lot in Maryland.

The government ultimately obtained a multiple count indictment charging Jones and several alleged co-conspirators with conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base. The district court granted a motion filed by Jones to suppress evidence obtained through the GPS device only in part. The court suppressed the data obtained while the vehicle was parked in the garage adjoining Jones's residence, holding that the remaining data was admissible. Jones was found guilty and sentenced to life imprisonment.

Using the reasonable expectation of privacy test, US Court of Appeals for the District of Columbia Circuit reversed the conviction after finding that society would recognize Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements without a valid warrant defeated that reasonable expectation. The case was granted certiorari in June 2011, to resolve the issue of whether the warrantless GPS tracking of Jones's vehicle violated his Fourth Amendment rights.

Delivering the majority opinion, Justice Scalia began by reaffirming that a vehicle is an "effect," which is guaranteed protection from unreasonable searches and seizures under the Fourth Amendment. Scalia held that the physical intrusion conducted by government officials in this case was firmly within the bounds of what would have been considered a "search" under early Fourth Amendment protection. When the government obtains information by physically intruding on a constitutionally protected area, Jones's vehicle in this instance, a search has undoubtedly occurred. By reaffirming this property-based approach, Scalia held that Jones's Fourth Amendment rights did not rise or fall within the Katz formulation, thus removing the tricky question of whether Jones had a reasonable expectation of privacy with regard to the movements his vehicle made in public. Four other justices joined Scalia's opinion, including Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor.

Scalia further distinguished this case from post-Katz methodology by taking it out of the purview of United States v. Knotts and United States v. Karo, also known as the "beeper cases," which involved the tracking of beepers placed in containers used for drug manufacturing. In both cases, at the time the beeper was installed, the container belonged to a third party, and did not come into possession of the defendants until later. These beepers were installed with the consent of the then-owner, and were delivered to a buyer having no knowledge of the presence of the beeper. Because the government came into physical contact with the container before it belonged to the defendants, the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade the defendants' privacy. Jones poses a different scenario, since the government trespassed when it placed the GPS tracking device on Jones's vehicle, while he had a possessory interest in it.

This approach drew criticism from Justice Alito, who in his concurrence joined by Justice Ginsburg, Justice Breyer and Justice Kagan, accused the majority of applying 18th-century tort law that strained the language of the Fourth Amendment. Alito would have used the Katz test to determine that Jones's reasonable expectations of privacy were violated by the long-term GPS tracking of his vehicle. Society has a reasonable expectation that law enforcement agents and others would not, and could not, secretly monitor and catalogue every single movement of a person's vehicle for an extended period of time. In Jones's case, Alito found that four weeks of tracking every movement Jones's car made clearly represented an infringement upon the Fourth Amendment.

However, Alito did not elucidate a clear test to determine whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment infringement. Additionally, under the Katz approach, Alito notes that short-term GPS tracking, even with a physical trespass, would not invoke any Fourth Amendment concern, as it accords with expectations of privacy that society has recognized as reasonable. Alito based this conclusion on the holding in Knotts, where the Court stated that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.

By relying upon the law of trespass, Alito contends that the majority's approach will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. What would happen if, in the present case, the government had conducted the same type of surveillance, via electronic access to a factory, an owner-installed vehicle tracking device or a GPS enabled smartphone? Would the sending of a radio signal to activate the system constitute a physical trespass?

However, Scalia countered Alito's concurrence by stating that the common law trespass approach will not be the exclusive test when dealing with the propriety of Fourth Amendment searches. Situations involving merely the transmission of electronic signals, without trespass, would remain subject to a Katz analysis. Scalia went on to state that case law, specifically Knotts and Karo, would still allow long-term visual observation, conducted by a large team of agents, multiple vehicles and aerial assistance, since a person traveling in an automobile on public streets has no reasonable expectation of privacy in his movements from one place to another. Nevertheless, Scalia suggested that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy. Unfortunately, since this issue was not put into question by the facts in the present case, the majority declined to address it.

Although this may seem too narrow a decision considering the rapid evolution of GPS tracking technology, Alito's alternative approach stands to erode the longstanding protection of the expectation of privacy, which is particularly strong in instances where people possess or control property. In her concurrence, Justice Sotomayor puts into perspective the issues left unresolved by the majority's opinion, but also the inherent dangers in Alito's approach.

Sotomayor joins the majority's opinion because at a minimum, a Fourth Amendment search occurs when the Government obtains information by physically intruding on a constitutionally protected area. Sotomayor wisely warns that exclusive application of the Katz test would discount the constitutional relevance of the government's physical intrusion on Jones's vehicle.

However, Sotomayor also noted that the majority's trespassory test would provide little guidance in cases involving surveillance without a physical invasion on property. Using a Katz analysis, Sotomayor agreed with Alito that long-term GPS monitoring in investigations of most offenses impinges upon reasonable expectations of privacy. However, in cases involving short-term GPS tracking Sotomayor suggests a different approach when applying the reasonable expectations test. Short-term GPS monitoring generates a precise, comprehensive record of a person's public movements, which reflect a wealth of detail about their familial, political, religious and sexual associations. One trip to an AIDS clinic, psychiatrist, union meeting, mosque or strip club can convey information most people would consider private in nature. Most owners of GPS-equipped cars and smartphones would not contemplate that these devices would be used to enable covert short-term surveillance of their daily movements.

Additionally, Sotomayor goes a step further in suggesting that it would be necessary to reconsider the premise that individuals do not have a reasonable expectation of privacy in information voluntarily disclosed to third parties. In today's digital marketplace, people reveal a great deal of information about themselves to third parties, such as websites they visit, phone numbers they dial and even the products they purchase online. It is hard to believe that people would accept without complaint the warrantless disclosure to the government of every website they had visited, or the types of books and medications they purchased online. According to Sotomayor, unless Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy, these types of private electronic transmissions would not be entitled to Fourth Amendment protection.

Although the issue of GPS tracking without physical trespass remains unanswered by Jones, the adoption of the trespass test provides a clear victory for Fourth Amendment jurisprudence. It provides a minimum degree of specific protection involving any case in which the government physically invades personal property to gather information, without having to decipher whether an individual should have a reasonable expectation of privacy with respect to their personal property. Both Justice Alito's and Justice Sotomayor's concurrences show that the Court is ready to address GPS monitoring without physical trespass. However, the majority wisely reserves this issue for the (hopefully) near future. In the meantime, the Court has firmly re-established Fourth Amendment protections that fell to the wayside in the past half-century, after the advent of Katz.

Corrie Thearle currently works for the Pittsburgh City Legal Department, and after graduation she will be a clerk for the Court of Common Pleas of Somerset County.

Suggested citation: Corrie Thearle, Jones: A Victory for Fourth Amendment Jurisprudence, JURIST - Dateline, Feb. 7, 2012, http://jurist.org/dateline/2012/02/corrie-thearle-jones.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Calling for Greater Awareness of Disability Culture in the Legal System tag:jurist.org,2012:/dateline//6.40437 2012-02-07T03:00:00Z 2012-02-07T03:10:24Z JURIST Guest Columnist Robert Borrelle, Syracuse University College of Law Class of 2013, works in the Disability Rights Clinic at Syracuse University. He argues that the current medical model of disability used in the US legal system should be rejected... Elizabeth Hand JURIST Guest Columnist Robert Borrelle, Syracuse University College of Law Class of 2013, works in the Disability Rights Clinic at Syracuse University. He argues that the current medical model of disability used in the US legal system should be rejected in order to further societal and legal recognition of Disability culture...
Litigation has played a crucial role in social movements throughout the history of the US. The importance of Brown v. Board of Education to the Civil Rights Movement is one example of how a lawsuit can be an invaluable asset to furthering an oppressed group's goals. Established legal precedent like Brown can clear a path to a brighter and more dignified future. However, there is more to social movements than lawsuits and legislation. Social change can only occur when there is a change in society's collective attitude towards the oppressed group. These attitudinal changes occur when there is an awareness of a group's culture and an acceptance of the equal rights of the members of that group. What happens when social change is sought through a legal system that lacks this cultural awareness? That is the question facing the Disability Rights Movement. The current lack of awareness surrounding cultural differences, particularly those of Deaf culture, and uninformed assumptions about disability, have produced judgments that frustrate the purpose of the movement. Litigation is undoubtedly important to the future of the Disability Rights Movement, but until there is a greater awareness of Disability culture in the legal system, it will remain an imperfect vehicle to further the movement's goals.

The Disability Rights Movement has at its core the idea that it is not the impairment itself that disables people; rather, it is society that disables people with impairments. This is a repudiation of the medical model of disability, which views disability as a deficit within the individual. The Disability Rights Movement is unique in that it strives to not only change society's perception of disability, but also to change the physical environment itself. To achieve these ends, the movement has adopted the philosophy of "Universal Design"—the concept that structural changes that ensure access for individuals with disabilities simultaneously ensure access for all. The most common explanation of this is the idea that a ramp, which allows people who use wheelchairs to access a building, can be used by everyone entering the building.

The rejection of disability as a medical deficit has empowered individuals with disabilities to celebrate their differences. The manifestation of this pride has been the creation of a collective identity referred to as Disability culture. In the broad sense, Disability culture is comprised of various groups whose identities center on their specific disability. For example, one such group is Deaf individuals. In Deaf culture, there is a distinction between little "d" deaf, the audiological impairment, and big "D" Deaf, the cultural identity. Members of the Deaf community celebrate Deafness as a cultural identity that has its own language, American Sign Language (ASL).

Despite the richness and complexity of this culture, the medical model dominates discussions of Deafness in the law. This is most evident in the 1982 Supreme Court case Board of Education of Hendrick Hudson Central School District v. Rowley. Amy Rowley was a Deaf first-grade student in Peekskill, New York. Amy's parents sought the services of a sign language interpreter for Amy in the general education classroom. Although Amy was an excellent lip-reader, it was estimated that she was missing more than half of what was being said in the classroom. Amy's parents were Deaf and believed Amy should be receiving instruction in her own language, ASL, as opposed to relying solely on lip-reading. When the school denied the request, the Rowleys filed a complaint pursuant to what is now known as the Individuals with Disabilities Education Act [IDEA].

After a series of lengthy court proceedings, the dispute between the Rowleys and the school district ended up in the Supreme Court. In the most important IDEA ruling to date, the Court ruled that Amy was not entitled to a sign language interpreter because her excellent grades made an interpreter unnecessary. "[I]f personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction," wrote Justice Rehnquist, "the child is receiving a 'free appropriate public education' as defined by the Act." Accordingly, as long as the child progressed from grade to grade, the school had done its job under the law.

The holding in Rowley is troublesome because it demonstrates that there is a complete lack of awareness, in the legal system, of Deafness as a cultural identity with its own language. This is evident in the Court's discussion of what constitutes "meaningful access" to education. The Court stated that Congress "did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." The fact that Amy could not access the curriculum in her own language is conspicuously absent from the Court's discussion of meaningful access to education. The Court viewed sign language interpreting as a service that would mitigate any deficits Amy's deafness created in her ability to learn. Because Amy performed "better than the average child in her class and [was] advancing easily from grade to grade," there was no need for the school district to provide her with an interpreter.

To this day, Rowley remains the most important case on the substantive provisions of the IDEA. Federal courts often cite Rowley in IDEA cases due to its precedential importance, but for disability rights activists, and members of the Deaf community, Rowley represents a missed opportunity to address society's general lack of awareness and misguided assumptions about disability. Unfortunately, the Supreme Court has continued to discuss disability through the lens of the medical model. In cases such as Sutton v. United Air Lines and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court held that the plaintiffs' impairments did not limit them enough to qualify as disabilities under the Americans with Disabilities Act of 1991. This narrowing of the definition of disability made it nearly impossible for plaintiffs to qualify as individuals with disabilities under the Act. The Court's preoccupation with the medical aspect of disability was a needless distraction from the Act's purpose of providing legal recourse to a historically marginalized group of people that had no prior way to redress discrimination.

Congress enacted the ADA Amendments Act of 2008 in direct response to Sutton and Toyota. This Act broadened the definition of disability and restored the original purpose of the ADA. Although the 2008 Amendments nullified the damage of Sutton and Toyota, their enactment is another reminder of the lack of cultural competency in the courts. Individuals with disabilities have united around a shared cultural identity that has at its core the rejection of the medical model of disability. The Disability Rights Movement celebrates this culture and works to change society's attitude towards people with disabilities. Litigation is critical to the movement. However, the movement's goals cannot be achieved in a legal system that ignores this cultural identity and insists on viewing disability as a medical deficit. Until the courts recognize this cultural identity, it will remain counter-productive to the Disability Rights Movement for individuals with disabilities to seek justice in our legal system.

Robert Borrelle, in addition to studying law, is pursuing a Master's Degree in Cultural Foundations of Education at the Syracuse University School of Education.

Suggested citation: Robert Borrelle, Calling for Greater Awareness of Disability Culture in the Legal System, JURIST - Dateline, Feb. 6, 2012, http://jurist.org/dateline/2012/02/robert-borrelle-disability-awareness.php.


This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> A Case for Moving Away From the Death Penalty tag:jurist.org,2012:/dateline//6.40370 2012-02-03T03:00:00Z 2012-02-03T19:30:16Z JURIST Guest Columnist Crystal Whalen, Texas Tech University School of Law Class of 2012, is a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas. She argues in favor of moving away from the death... Leigh Argentieri JURIST Guest Columnist Crystal Whalen, Texas Tech University School of Law Class of 2012, is a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas. She argues in favor of moving away from the death penalty and makes a case for its unconstitutionality...

As Americans, we would like to assume that each and every one of us is protected by the US Constitution. We want to assume that the police cannot just come into our homes on a Sunday night, while we are watching television, and randomly search in violation of the Fourth Amendment. We want to assume that if we were arrested, we would have a fair trial, be represented by a competent attorney and judged by a well-informed cross section of our peers according to our Fifth, Sixth and Seventh Amendment rights. As Americans, we believe that these rights are available to us whether we need them or not. However, many Americans do not fully appreciate that our Eighth Amendment right, which protects us against cruel and unusual punishment, is not as secure as it should be. There are 34 states that currently use the death penalty, which owes its existence to an erroneous stamp of constitutional approval, as a punishment for capital offenses.

In Gregg v. Georgia, the Supreme Court concluded that the death penalty was, in fact, constitutional under the Eighth Amendment of the US Constitution. However, since 1976, it has become increasingly clear that a "constitutional death penalty" is a practically unattainable legal fiction, with no basis in the realities of the US justice system. There is no realistic way to administer capital punishment in a manner that is consistent, reliable and free from arbitrariness. The death penalty is cruel and unusual under the Eighth Amendment, and thus, unconstitutional.

A few select statistics will help the reader to better understand exactly why the capital punishment system is unconstitutional. First, the questionable culpability of people sentenced to death evidences the system's unreliability. Since 1973, there have been 140 exonerations based on innocence. This means that there have been 140 people arrested, accused, subjected to a full trial, convicted, sentenced and placed on death row to await their execution for crimes that a court later determined they did not commit. Even with all the procedural safeguards presumed to be in place, mistakes continue to be made. Of the 34 states that currently have the death penalty, only 11 of those have not had individuals on death row exonerated based on innocence.

However, these statistics must be viewed with an critical eye. The "zero statistic" could mean that those 11 states truly have not convicted an innocent person, or it could mean that mistakes have not been caught. Is this a statistic that Americans should be content to live with? Or does even one innocent person being put to death mean the system has failed? The American legal system is fraught with imperfections, as humans are responsible for its administration. The permanence of death and the inability to go back and rectify mistakes makes such fallibility unacceptable.

Second, it is difficult to predict what will be considered proper use of the death penalty in the future, the legal standards are constantly changing. For example, in the 2002 case, Atkins v. Virginia, the Supreme Court held that it was unconstitutional to execute people who have mental disabilities. People with IQ scores of less than 70 are considered mentally disabled for purposes of capital punishment. However, the use of IQ level as a standard in and of itself should be unconstitutional, as it is inherently arbitrary given its dubious accuracy in reflecting one's mental capacity. In the 2005 case, Roper v. Simmons, the Supreme Court held that it was unconstitutional to execute juveniles. Between 1976 and 2005, however, 22 people were executed for crimes they committed as juveniles. This means that 22 people died at the hands of a state in a manner that would be deemed unconstitutional today. In light of our ever-progressing mores, it is difficult to reconcile the continuing evolution of the death penalty with the fact that while we wait for the law to catch up, people are being executed.

Third, regional statistics illustrate the arbitrary nature of the death penalty. Since 1976, there have been a total of 1,278 executions and 1,049 of those executions have taken place in the southern region of the US. Texas leads with the most executions, having executed 477 people. The disconcerting aspect of this regional disparity is further highlighted by the murder rates of the various regions. The South had the highest murder rate in 2010, with 5.6 murders per 100,000 people. Perhaps, at first, it is reasonable to assume that the region with the highest murder rate would be the region in which the death penalty is the most frequently utilized. However, the West, Midwest and Northeast had rates not dissimilar from the South's, at just over 4 murders per 100,000 people. Despite the similarity in murder rates, the South has accounted for 82 percent of all executions in the US since 1976. Thus, a person who commits murder in the South, is exponentially more likely to receive the death penalty than a person who commits the same crime just over the region's border.

Given the unreliable, unpredictable and arbitrary nature of the administration of the death penalty, evidenced by the statistics, the death penalty is inherently unconstitutional and realistically incapable of being made so. Accordingly, the most reasonable solution would be to abolish it and elect to use the punishment of life without parole. The idea of alternative punishments for violent crimes is supported by public opinion regarding methods of deterrence. About 61 percent of Americans believe life without parole, or even life with the possibility of parole, is sufficient. All of the 34 states that have the death penalty also have life without the possibility of parole as an available option. If life without parole is used as an alternative, at the very least, when a mistake is discovered, the exonerated individual can leave prison and attempt to reconstruct his or her life.

For the most part, the current trend in US seems to be moving away from the use of the death penalty. Death as a punishment cannot be reconciled with the Eighth Amendment of the Constitution because it cannot be administered in a reliable, predictable and systematic manner throughout the nation and across cases. As such, we should examine more humane alternatives.

Crystal Whalen is a student at Texas Tech University School of Law, and is a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas.

Suggested citation: Crystal Whalen, A Case for Moving Away From the Death Penalty, JURIST - Dateline, Feb. 2, 2011, http://jurist.org/dateline/2012/02/crystal-whalen-death-penalty.php.


This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> A Legal Alternative to Modern Living in a Changing America tag:jurist.org,2012:/dateline//6.40311 2012-02-01T03:00:00Z 2012-02-01T05:07:45Z JURIST Senior Editor Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, argues that alternative business models can address societal changes in the US... (His opinions are not intended to represent those of JURIST)Americans are restless. A call... Leigh Argentieri JURIST Senior Editor Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, argues that alternative business models can address societal changes in the US... (His opinions are not intended to represent those of JURIST)

Americans are restless. A call for change comes from many corners. The Occupy movement emphasized issues of income disparity, and it unexpectedly brought to light an uneasy challenge to constitutional rights, such as the right to peacefully gather. Whether real change will follow the demonstrations remains to be seen. The Tea Party movement seems to have quieted for the moment, even though a number of its preferred politicians have been elected to public office, offering an indication of the movement's at least brief success. The bipartisan mudslinging of this year's election cycle has steadily trickled down from the candidates and elected officials, to the media, blogs and message boards, right on down to the Twitter and Facebook accounts of average citizens. Almost everyone has an opinion—often informed by nothing more than a distortion of facts—and regardless of the point of actual contention, it seems like most are unhappy with the status quo.

From this unhappiness, another quiet movement seems to be growing, a desire to "just get away from it all." For those seeking an extreme solution, intentional communities may provide both the structure and legal protection necessary for a fresh start. According to the Fellowship for Intentional Community, "Intentional Community is an inclusive term for ecovillages, co-housing communities, residential land trusts, communes, student co-ops, urban housing cooperatives, intentional living, alternative communities, cooperative living, and other projects where people strive together with a common vision." Intentional communities are often sought out as a means to join those with "common spiritual or political convictions" and "to find a friendly, caring place to live, away from the isolation of suburban life." According to the Fellowship, thousands of these communities exist around the world in both rural and urban areas, with nearly 2000 in the US alone. As a legal entity, intentional communities have a variety of options for organization; the focus here will be on the most extreme, 501(d) organizations.

According to the tax code, 501(d) organizations are "religious or apostolic associations or corporations, if such associations or corporations have a common treasury or community treasury, even if such associations or corporations engage in business for the common benefit of the members." Like partnerships, limited liability companies (LLC) or S corporations, in a 501(d), "net profits are divided among all members pro rata to their individual tax returns." Unlike these business entities, 501(d) organizations have fewer restrictions on membership and structure, plus some significant benefits as a tax-exempt entity. Unlike a 501(c)(3), a 501(d) has fewer overall restrictions. For example, a 501(d) can engage in any kind of business and all income is free from taxation at the entity level. Additionally, the assets of a 501(d) can be split between the members after dissolution and the organization can maintain its tax-exempt status even while engaging in political activity.

This legal structure was first proposed in Congress as a means of protecting monasteries and other less common religiously based, residential institutions from unfair taxation. The case law relating to 501(d) organizations has been almost entirely focused on tax issues, both in terms of exemption and income. The most recent case is Stahl v. US. However, the exemption requirements are most fully described in the 1983 Ninth Circuit opinion in Kleinsasser v. US:

The only requirements for the exemption are that there be a common treasury, that the members of the organization include pro rata shares of organization income when reporting taxable income and, implicitly, that the organization have a religious or apostolic character. Once this requirement of form is fulfilled, the exempt organization is unlimited as to function. It can farm, [...] or engage in manufacturing, or any other business or combination of businesses. It is definitionally impossible for a ยง501(d) organization to have unrelated trade or business income. If the organization had income that it failed to allocate to its members, it would simply lose its exemption altogether.

Despite these benefits, forming a 501(d) organization creates several challenges, both legal and social. On the legal side, the nature of a 501(d) limits personal autonomy and wealth accumulation. First, most major decisions for the organization must be made collectively, or at least somewhat democratically. Additionally, all members must understand their legal rights individually and within the organization, and their options/limitations if they desire to leave the community. Second, all members' income, even that earned outside the community, must be split equally among the membership. A third legal issue, which carries over into the social issues, is that a group must come together with common social values and have a common religious or spiritual worldview to qualify for the apostolic designation and wish to live simply and collectively for a long-term commitment. In this sense, one of the most challenging aspects may be finding like-minded, hardworking, adventurous families and individuals.

Another challenge is the generation of income. What types of businesses will a community choose to develop? Where will it find capital and investment opportunities to finance these business endeavors, and who will it turn to for professional assistance? Will a community choose a rural or urban lifestyle, and what benefits or challenges are associated with each choice, particularly in reference to business options? None of these are insurmountable challenges, but they must all be addressed to create an environment that facilitates the success of any intentional community.

The most common criticism of this option is that it promotes socialism, or that it is just a utopian, hippy ideal that cannot exist in reality. The reality is, however, that thousands of intentional communities already exist, whether structured as 501(d)s or something else, and their business ventures coexist alongside more 'capitalistic' business organizations. In any event, it seems unlikely that a small segment of society choosing alternative living arrangements will alter the market values of the entire nation; indeed, this is not even the intent. Instead, those who truly want to live off the land in a communal environment, away from the political circus, have the legal protection of a 501(d) organization if they so choose.

Edward SanFilippo, is the Head of JURIST's professional commentary services. He graduated from the San Diego State University, where he earned degrees in religious studies and political science. His interests focus on issues of development, social change and social movements, the intersection between law and religion, human rights and the environment.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Edward SanFilippo, A Legal Alternative to Modern Living in a Changing America, JURIST - Dateline, Jan. 31, 2011, http://jurist.org/dateline/2012/01/Edward-SanFilippo-intentional-community.php.


This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Judicial Activism and the Recognition of Same-Sex Marriage tag:jurist.org,2012:/dateline//6.40304 2012-01-30T13:00:00Z 2012-01-30T12:18:22Z JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that although it will be described as judicial activism, same-sex couples must be granted the same rights as opposite-sex couples under the Equal Protection Clause... Megan McKee JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that although it will be described as judicial activism, same-sex couples must be granted the same rights as opposite-sex couples under the Equal Protection Clause of the Fourteenth Amendment... (Her opinions are not intended to represent those of JURIST)

The US Court of Appeals for the Ninth Circuit is currently deciding the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. Opponents of the amendment argue that it is unconstitutional based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The US District Court for the Northern District of California determined that the right to marriage is a fundamental right, guaranteed by the Due Process Clause, by looking at 1) the history and tradition of marriage in the US, and 2) whether opponents seek to exercise this right or seek to exercise some other right. The district court ruled that although the history of marriage has never been between same-sex couples, the right to marry has, nevertheless, been the right to choose a consenting spouse to join a household and create a family. Additionally, same-sex couples do not seek a new right; rather, they only seek the right to have their marriages recognized as valid. The court also found that under the Equal Protection Clause Proposition 8 [PDF] is not rationally related to a legitimate governmental interest. If the US Supreme Court hears this case, it will likely have to decide whether same-sex couples should be granted the same rights as heterosexual couples under the Equal Protection Clause.

Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. In Loving v. Virginia, the Court established that state laws banning interracial marriage were unconstitutional, as they lacked a rational purpose, were racist and perpetuated white supremacy. Accordingly, the traditional norms for justifying state miscegenation laws were invalidated and these discriminatory laws were struck down. In Reed v. Reed, the Supreme Court ruled that laws preferring men to women, based on arbitrary legislative choice, were forbidden by both the Equal Protection Clause and the Due Processes Clause. Five years later, in Craig v. Boren, the Court established an "intermediate" or "heightened scrutiny" standard for cases involving discrimination against women. To pass scrutiny and be held constitutional under this standard, discriminatory laws and policies must be found to be supported by an "exceedingly persuasive justification" that is "substantially related to an important governmental objective," and it cannot be found to be based on stereotypes about gender. Originally excluded from equal protection, this case effectively extended the Equal Protection Clause to women.

Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution [PDF], which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a "legitimate legislative end." In Lawrence v. Texas, the Court stated that, "[m]oral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.

The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.

Although it is often described as judicial activism, it is essential that judges use their power to make decisions in spite of popular opinion or the approval of public officials. Following Marbury v. Madison, it has been the province of the courts to determine what the Constitution permits. This decision-making power is crucial to our democratic system, as a balance and division of powers is essential to its maintenance. It is the duty of the courts to protect the rights of the minority, and prevent the tyranny of the majority. Checks and balances created by the Constitution must function in the way they were intended. Courts should remain steadfast in their exercise of proper judicial discretion. Denying a fundamental right to a minority is not only contrary to our values and jurisprudence, it is a threat to our democratic system. Judicial discretion does not mean that courts can simply rule as they please. Rather, judicial discretion charges courts with the burden of making constitutionally appropriate decisions based on precedent.

In terms of equal protection, the Supreme Court has historically been at the forefront of progressing our laws to reflect and create necessary changes in societal values, with some of the most notable cases being Brown v. Board of Education and Roe v. Wade. As long as courts rule in accordance with the Constitution, popular opinion should have no impact on their decisions. Marbury v. Madison has provided the courts with the authority to interpret and apply the Constitution. Accordingly, the Ninth Circuit must adhere to its duty as a reviewer and protector of minority rights. A provision, like Proposition 8, cannot pass through the type of rigorous scrutiny that is required in a case where a fundamental right is at stake. If the courts are to uphold Proposition 8 as constitutional under the Fourteenth Amendment, they must provide a rational and legitimate reason for doing so, as decided in Romer, Reed, Loving and Lawrence. The Ninth Circuit must use its judicial discretion in the form of equal rights activism to provide same-sex couples the rights guaranteed to opposite-sex couples.

Kimberly Bennett is an Assistant Editor for JURIST's Social Media service. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Kimberly Bennett, Judicial Activism and the Recognition of Same-Sex Marriage, JURIST - Dateline, Jan. 30, 2012, http://jurist.org/dateline/2012/01/kimberly-bennett-gay-rights.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at studentcommentary@jurist.org

]]> Setting the Stage for Big Changes to Fourth Amendment Searches tag:jurist.org,2012:/dateline//6.40259 2012-01-27T00:00:00Z 2012-02-07T20:45:34Z JURIST Guest Columnist Joshua Hausman, University of Pittsburgh School of Law Class of 2012, is a Managing Editor for the University of Pittsburgh Law Review and is a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He discusses the Supreme... Dwyer Arce JURIST Guest Columnist Joshua Hausman, University of Pittsburgh School of Law Class of 2012, is a Managing Editor for the University of Pittsburgh Law Review and is a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He discusses the Supreme Court's decision in United States v. Jones and its possible ramifications on Fourth Amendment search jurisprudence...

On Monday, the Supreme Court took a small but significant step towards reconciling the Fourth Amendment's protection against unreasonable governmental searches with the realities of modern surveillance technology. In the case of United States v. Jones, the Court unanimously held that the tracking of the defendant's automobile via a GPS device constituted a Fourth Amendment search. The Court affirmed the decision of the US Court of Appeals for the District of Columbia Circuit, which found that the search, conducted without a valid warrant, was unconstitutional. Though this decision is undoubtedly a victory for privacy rights, the actual holding itself is surprisingly narrow. The good news, however, is that at least five justices appear ready to reevaluate whether an individual may reasonably expect privacy from overly-intrusive governmental searches conducted via modern technology, particularly in cases in which the individual is under surveillance in a public setting.

The case presented defendant Antoine Jones, who in 2007 received a life sentence following his conviction for conspiracy to distribute, and possession with intent to distribute, cocaine and cocaine base in violation of federal law. At his trial, the government introduced as evidence data collected over a period of nearly a month which had been obtained through the use of a GPS tracking device. The GPS tracker had been placed on Jones's Jeep Grand Cherokee while it was parked in a public parking lot, and the battery on the tracker was replaced once during the period of surveillance in the same fashion. The data collected, consisting of Jones's location and movements, was used to connect Jones to a "stash house" containing the narcotics. However, the placement of the tracker and the surveillance that followed was conducted without a valid warrant. The US Court of Appeals for the District of Columbia Circuit reversed his conviction on the basis that the admission of this evidence, obtained without a warrant, violated the Fourth Amendment and the locational data should not have been admitted at trial.

At issue on appeal was whether the use of the GPS tracking device was a search to which the protections of the Fourth Amendment would apply in the first place. The Supreme Court agreed with the DC Circuit that a Fourth Amendment search had occurred, though the majority reached this conclusion in a rather unusual way. Justice Scalia, writing for the majority, reasoned that the placement and use of the GPS tracker on the automobile constituted a search because "[t]he Government physically occupied private property for the purpose of obtaining information." The surprise in this reasoning stems from the fact that, since 1967, courts have relied principally on the reasonable expectation of privacy test to determine whether a Fourth Amendment search occurs. Under that formulation, the protections of the Fourth Amendment apply whenever a person has (1) exhibited an actual expectation of privacy that (2) society can accept as reasonable.

By instead basing its opinion on the physical placement and presence of the GPS tracking device on the automobile, the Court breathed new life into the "common-law trespassory test," which, as emphasized by Justice Scalia, survived the ruling in Katz v. United States. Under this formulation, in addition to the reasonable expectation of privacy analysis, a Fourth Amendment search may occur in situations of "government trespass upon the areas ('persons, houses, papers, and effects') [the Fourth Amendment] enumerates." The government trespassed upon Jones's property by the physical act of placing and maintaining the GPS tracking device to collect information, and thus a Fourth Amendment search had occurred.

The holding in Jones is a good one, at least to the extent that it marginally expands the scope of surveillance methods to which the protections of the Fourth Amendment will apply. On the other hand, the holding itself is not quite a knock-out victory for the Fourth Amendment. As explained by Professor Orin Kerr on The Volokh Conspiracy, the Court did not actually hold that a warrant is required before a GPS device may be installed and used to track an automobile; it only held that a Fourth Amendment search occurred in such a situation. By failing to explicitly state that a warrant is required, the majority opinion seems to at least leave open the possibility that the placement and use of a GPS tracking device on an automobile may still be a reasonable search in some circumstances, even absent a valid warrant.

At the heart of the matter in Jones, however, is whether and to what extent an individual may reasonably expect to be free from surveillance given the ease with which it can be conducted and the extensiveness of the surveillance modern technology allows. By relying on the trespass theory, the majority let an opportunity to deal with this issue slip away, though Justice Scalia clearly acknowledged that the reasonable expectation of privacy test remains the appropriate analysis when a physical trespass upon property has not occurred. He even concedes that, although purely visual observation of an individual on public roads is constitutionally permissible, it may be the case that similar observation accomplished through electronic means is an invasion of privacy. The trespass analysis does not preclude such a finding.

The majority was able to reach a result favorable to privacy rights without rocking the Fourth Amendment boat too much. However, the concurring opinions show that at least five members of the Court are ready to tackle the issue at the heart of Jones now, and many on the Court are clearly contemplating the effect of the world of modern surveillance on the protections of the Fourth Amendment. During oral arguments last November, the character Big Brother from George Orwell's 1984, a dystopian novel about a society utterly crushed under the weight of an all-seeing, all-powerful and all-controlling government, was referenced six times. Justice Alito, concurring in Jones, offers a brief summary of the state of affairs:

Recent years have seen the emergence of many new devices that permit the monitoring of a person's movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movement of motorists ... Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time ... [C]ell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use.
Although Justice Alito believes that the best approach to dealing with the privacy issues these new technologies present is legislative rather than judicial, he had no problem utilizing the reasonable expectation of privacy test to reach the same result as Justice Scalia's majority: the surveillance conducted on Jones was a Fourth Amendment search despite the fact that the surveillance occurred in a public setting. Though individuals may expect to be subjected to "relatively short-term monitoring" on public streets, the longer term monitoring of the GPS device at issue infringed upon Jones's privacy expectations. "[S]ociety's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period." In short, despite the fact that Jones's movements were monitored in public, it was the extensive nature of the surveillance, made possible by modern technology, which resulted in a Fourth Amendment violation. Justice Alito's concurrence was joined by Justice Ginsburg, Justice Breyer and Justice Kagan.

Justice Sotomayor, who joined the majority because she believes in the trespassory test as an "irreducible constitutional minimum," also appears ready to reinforce an individual's right to privacy from the use of modern surveillance technologies. She emphasized that physical trespass will be unnecessary in many other cases of governmental surveillance. "With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS enabled smartphones." She agrees with Justice Alito that longer term GPS tracking will violate a reasonable expectation of privacy, but goes one step further. Due to the very nature of GPS tracking, which can reveal intimate personal details about an individual based on locations that individual may choose to visit, even short-term tracking is suspect from a Fourth Amendment perspective. Justice Sotomayor would even go so far as to reconsider the principle that an individual cannot have a reasonable expectation of privacy in information voluntarily disclosed to third parties.

Prior Supreme Court cases, sometimes referred to as the "beeper cases," have upheld the use of location tracking "beepers" to monitor defendants on public roadways from Fourth Amendment challenges. The Court has explicitly stated in prior cases that "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." The concurrences in Jones show that changes may be in store. Five justices now believe that long-term GPS tracking in the public sphere, though "long-term" is left undefined, violates an individual's reasonable expectation of privacy. Justice Sotomayor believes that the very nature of GPS tracking can make even short-term surveillance subject to the Fourth Amendment, and those joining Justice Scalia's majority appear prepared to at least entertain the notion that such surveillance may, in some instances, infringe privacy in a public setting.

With modern technology making constant and complete surveillance of an individual possible as soon as that individual chooses to step out of his or her front door, it seems that it is indeed time to reevaluate when, and from what, a person's privacy is to be protected by the Fourth Amendment. The Court appears ready to deal with this issue, which will almost certainly be making another appearance before the Court in the near future. "The board is set, the pieces are moving. We come to it at last ... the great [Fourth Amendment] battle of our time."

Joshua Hausman holds an undergraduate degree in Political Science with a minor in Administration of Justice from the University of Pittsburgh. His legal studies have focused on constitutional law and individual liberties. He is the President of the Federalist Society chapter at the University of Pittsburgh.

Suggested citation: Joshua Hausman, Setting the Stage for Big Changes to Fourth Amendment Searches, JURIST - Dateline, Jan. 26, 2012, http://jurist.org/dateline/2012/01/joshua-hausman-jones.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> The Challenges of Repatriation for Iraqi Refugees tag:jurist.org,2012:/dateline//6.40195 2012-01-22T20:00:00Z 2012-01-22T21:28:56Z JURIST Guest Columnist Perveen Ali, Ph.D. candidate in the Department of Law at the London School of Economics and Political Science, is currently researching issues of international refugee and human rights law. Here she discusses the challenges Iraqi refugees face... Megan McKee JURIST Guest Columnist Perveen Ali, Ph.D. candidate in the Department of Law at the London School of Economics and Political Science, is currently researching issues of international refugee and human rights law. Here she discusses the challenges Iraqi refugees face in returning home safely and with dignity...
The 2003 war in Iraq and subsequent internal security crisis led to the forced displacement of four million Iraqis. Insurgents, counter-insurgency operations and sectarian militias targeted persons for their religious, ethnic and political affiliations, subjecting them to kidnappings, rapes, murders, torture, lootings and evictions. Nearly two million Iraqis sought refuge in Syria, Jordan and Lebanon, where they found themselves living in legally precarious situations. Often having no long-term residence or work permits and limited access to public services, they live in fear of arrest, detention and deportation to the violence they escaped in Iraq. Following the 2011 withdrawal of US forces from Iraq, more than 1.6 million Iraqi refugees remain in the region in search of a solution to their plight.

Within the framework of the international refugee protection regime, the traditional "durable solutions" sought for refugees include local integration in their country of asylum, resettlement to a third country or voluntary repatriation to their country of origin. In the Iraqi refugee crisis, local integration seems an unlikely prospect as asylum states in the Middle East claim that they are overburdened. Resettlement to third countries, such as the US, will provide protection for more than 100,000 Iraqis having specific vulnerabilities, such as those who worked with the Multinational Forces or US government contractors in Iraq. The question then is, what is the future for the vast majority of Iraqi refugees remaining? Absent the political willingness of states to allow for local integration or to increase their resettlement quotas, the only other solution under consideration is voluntary repatriation to Iraq.

The right to return to one's country of origin is enshrined in international human rights instruments, including the Universal Declaration of Human Rights, Article 13(2), and the International Covenant on Civil and Political Rights (ICCPR), Article 12. However, repatriation must be voluntary, and refugees must be able to "return in safety and with dignity." The core components of safe and dignified return are identified in the UN's 2002 Global Consultations on International Protection [PDF] and are elaborated further in the Office of the UN High Commissioner for Refugees' (UNHCR) 2004 Handbook for Repatriation and Reintegration Activities [PDF]. They include physical, legal and material safety and reconciliation. Given the ongoing security crisis, political instability, fragile infrastructure and human rights violations that plague the new Iraqi government, each of these components presents particular challenges to successful repatriation.

Securing the legal, material and physical safety of Iraqi refugees will foremost require determining where they will live upon their repatriation to Iraq. The right to return has been interpreted to include the right to return to one's home in Article 12 of the ICCPR, Principle 28 of the Guiding Principles on Internal Displacement and by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities. This right was also recognised in Annex VII of the Dayton Peace Agreement in the case of Bosnian refugees. However, the prospect of many Iraqis returning to their original homes will be difficult to realise in practice. The ethnic cleansing of their former neighbourhoods and the appropriation of their homes by violent militias has left many Iraqi refugees with no place to which they can return. Some refugees also had to sell their property in Iraq to cover their living expenses in their countries of asylum. Iraqis who attempt to return to Iraq may find their homes looted, destroyed or occupied. This places them at risk of further displacement to squatter settlements inside Iraq, where they would join the nation's currently 1.3 million internally displaced persons living in destitution, lacking access to basic services and fearing eviction. The successful repatriation of Iraqi refugees will require the creation of relocation and housing schemes, and effective property restitution mechanisms that will be able to accommodate returnees without exacerbating the precarious political, economic and security situation in the nation.

Iraqi refugees' legal and material safety is further compromised by limited employment opportunities, and continuing problems accessing public services, such as electricity, sanitation and potable water in Iraq. A 2011 report by the International Rescue Committee (IRC) noted that these problems are compounded by the frequent lack of documents necessary for enrolling in public schools, reclaiming confiscated property, accessing medical care, qualifying for food rations and applying for jobs. Undergirding these obstacles is a deep lack of trust in Iraqi governmental institutions, which are still in their formative stages and face allegations of corruption, political manipulation and lack of transparency. Legal assistance, such as that provided by the IRC and UNHCR, can provide critical help in navigating the complexities of these new bureaucracies to returning Iraqis.

Reconciliation is perhaps the most tenuous component of effective repatriation. Both the sectarianisation of Iraq and debates over the country's political future, as either a unified or federal state, have significant implications for reconciliation. Prospects for reconciliation are also impacted by the profound trauma that many Iraqis endured both under the former regime and in the aftermath of the war. Some refugees may find it too psychologically onerous to return to Iraq and participate in reconciliation processes in light of the extreme violence that forced them to flee. In such cases, should country conditions in Iraq change and be deemed stable in the future, these persons should continue to receive protection in accordance with Article 1C(5) of the 1951 Convention Relating to the Status of Refugees [PDF]. Asylum states should refrain from their deportation, and the international community should secure alternative solutions for them.

In the face of such serious obstacles to return, Iraqi refugees have been slow to take advantage of repatriation programs, primarily only doing so when facing severe economic hardships or having expired visas in their countries of asylum. The UN documented that by 2008, 220,000 refugees had returned to Iraq. But in a 2009 report [PDF], the International Organization for Migration noted that rather than returning permanently, many Iraqi refugees in Syria and Jordan travelled back and forth from Iraq, sometimes voluntarily and other times due to repeated forcible displacements. Numerous reasons necessitated these temporary returns, including going to assess the security situation, seeing elderly parents, attending funerals, collecting pensions, borrowing money and selling property. A 2010 survey by the UNHCR revealed that the majority of Iraqis who did attempt to repatriate permanently reported having insufficient resources to meet their families' needs in Iraq and being subjected to bomb explosions, kidnappings and harassment in the areas to which they had returned.

The government of Iraq is developing a plan of action to facilitate the effective return and reintegration of refugees. In 2008, it allocated USD 213 million to support these efforts, and subsequently provided financial and transportation assistance to returnees. In a 2009 report [PDF], the Brookings-Bern Project on Internal Displacement concluded that the effective repatriation of refugees will also require building peace and security, governmental institutions and law and policy frameworks supporting displaced persons in keeping with the International Compact with Iraq [PDF] and Iraq's National Policy on Displacement [PDF]. It further recommended including displacement issues in national development strategies and providing continued humanitarian support for refugees in asylum states. More specific activities critical to return should include creating mechanisms for property restitution; allocating housing and land; increasing access to public assistance, education, infrastructure and livelihoods; and developing meaningful transitional justice mechanisms. Ultimately, the success of such strategies will turn on the willingness of the international community and the government of Iraq to acknowledge and grapple with the formidable challenges of repatriation. And central to any durable solutions framework that results, the right of Iraqi refugees to live in safety and with dignity must always be paramount.

Perveen Ali is writing her Ph.D. dissertation on the refugee crisis in the aftermath of the 2003 war in Iraq. She has been a practitioner in the field of refugee protection for the past ten years and has worked for both the UNHCR and refugee legal aid NGOs, primarily in the Middle East and Africa. She received her J.D. from the University of Washington.

Suggested citation: Perveen Ali, The Challenges of Repatriation for Iraqi Refugees, JURIST - Dateline, Jan. 22, 2011, http://jurist.org/dateline/2012/01/perveen-ali-iraq-refugees.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at studentcommentary@jurist.org

]]> DNS Filtering to Fight Internet Piracy Violates the First Amendment tag:jurist.org,2012:/dateline//6.40034 2012-01-13T20:00:00Z 2012-01-22T20:54:25Z JURIST Guest Columnist Lauren Mack, Benjamin N. Cardozo School of Law Class of 2012, is the Copyright Chair for the Cardozo Intellectual Property Law Society. She argues that two proposed pieces of legislation that seek to curb Internet piracy through... Megan McKee JURIST Guest Columnist Lauren Mack, Benjamin N. Cardozo School of Law Class of 2012, is the Copyright Chair for the Cardozo Intellectual Property Law Society. She argues that two proposed pieces of legislation that seek to curb Internet piracy through the use of DNS filtering violate the First Amendment...
With two controversial bills intended to curb copyright and trademark infringement on the Internet currently pending in both houses of Congress, the debate over how to best fight online piracy is certain to erupt in 2012. The Stop Online Piracy Act (SOPA) in the House of Representatives and the Preventing Real Online Threats of Economic Creativity and Theft of Intellectual Property Act (PROTECT IP) in the Senate both seek to be powerful weapons in rights holders' arsenals by targeting so-called foreign "rogue" websites. The bills differ in their exact definitions of targeted websites, but both seek to curb the damage from websites that sell counterfeited products or distribute copyrighted content without the permission of the rights holders in situations where the website or website owners cannot be reached by other US laws.

Although many agree that something must be done to stop today's rampant online infringement, the debate over how to best accomplish this daunting task has been fierce. The remedies proposed under the current versions of SOPA and PROTECT IP include requiring online advertisers to stop placing ads on the infringing website, payment network providers, such as credit card companies and banks, to cease completing payment transactions to the website and search engines to prevent the website from showing up in search results. However, the bills' most controversial remedy by far is the ability to order access to websites that have been found to contain infringing content to be blocked.

SOPA and PROTECT IP require websites to be blocked through Domain Name System (DNS) filtering. An easy way to understand the DNS is to think of it like a phone book. When a Uniform Resource Locator (URL) is typed into a browser, such as http://jurist.org, the DNS translates this into an Internet Protocol (IP) address — 136.142.59.10 in this case. The IP address tells the Internet browser where to find the website, just as a phone book would tell you a friend's home address. Humans use URLs to tell Internet browsers what website to go to because they are easier to remember than a string of numbers. When a website is blocked through DNS filtering, this is like your friend's address being taken out of the phone book. The offending website is still available on the Internet, but the browser can no longer find the corresponding IP address in the DNS and, accordingly, the website never loads. There are several ways to circumvent the block, including simply typing the IP address into your browser instead of the URL.

One of the big problems with DNS filtering is that it blocks the entire domain name, not just a specific URL. Suppose there was copyrighted content located on http://jurist.org/dateline/ that JURIST did not have permission to reproduce. Instead of just blocking the infringing articles or even just all of the Dateline articles, DNS filtering would block the entire JURIST website. This would include all of the news, commentary, and even the Frequently Asked Questions section located on JURIST. This means that a lot of non-infringing free speech would be blocked along with the infringing content.

Similarly, suppose someone ran a website hosted by Google's Blogger service that contained unlicensed music for free download located at www.freemusic.blogspot.com. DNS filtering would not just block this specific infringing blog, but every single website located at a blogspot.com address, potentially including a blog containing non-infringing legal analysis and political speech. This exact scenario played out in February 2011, when the US Immigration and Customs Enforcement "seized" mooo.com by redirecting the domain name to a page describing the punishment for owning or distributing child pornography. Along with the websites hosting illegal content, 84,000 innocent websites were also shut down for several days and wrongly associated with a serious crime before the problem was corrected.

A law that incorporated DNS filtering has already been challenged and struck down on First Amendment grounds in Center For Democracy & Technology v. Pappert. The Pennsylvania Internet Child Pornography Act (ICPA) [PDF] allowed the Pennsylvania Attorney General or any district attorney in Pennsylvania to seek a court order based on probable cause requiring Internet Service Providers (ISPs) to disable access to child pornography within five days or face criminal liability. The court found that the ICPA did not survive intermediate scrutiny under the First Amendment because although the government had an important interest in eradicating child pornography from the Internet, the incidental restrictions on First Amendment freedoms from the over-blocking of innocent subdomains caused by the DNS filtering were greater than what was essential to the furtherance of that interest. In light of the easy circumvention of DNS filtering, the burden placed on the child pornography business by blocking fewer than 400 domains was not enough to overcome the suppression of free speech located on over a million innocent subdomains. Even if the non-infringing websites inadvertently blocked by SOPA and PROTECT IP are run by citizens of other countries, and whose speech is thus not directly protected by the First Amendment, the US Supreme Court in Lamont v. Postmaster General determined the right of US citizens to receive information from foreign sources is also protected by the First Amendment.

Blocking certain domain names also creates a prior restraint on speech, which is the censorship of speech before it is published. The US Supreme Court in Near v. Minnesota struck down a Minnesota law that allowed state officials to seek an injunction against any publication if it had printed malicious, scandalous or defamatory material. A small Minneapolis newspaper called The Saturday Press challenged the law when an injunction barring further publication of any content by the newspaper was issued. The Supreme Court determined that a law that results in prior restraint creates a heavy presumption against its constitutional validity. The Pennsylvania district court decided that blocking a domain name is similar to a ban on a newspaper name and also invalidated ICPA on this ground. Without a review process to unblock domain names, when infringing content is no longer hosted on them, SOPA and PROTECT IP's DNS filtering will also result in prior restraint. The drafters of SOPA seem to have anticipated this problem, as § 2(a)(1) declares that "[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution." Despite this disclaimer, the bills do not provide a method through which to avoid a prior restraint problem through the use of DNS filtering.

An alternative bill, the Online Protection and Enforcement of Digital Trade Act (OPEN), which has been backed by members of both houses, avoids First Amendment problems by not requiring ISPs to block infringing websites. Instead, OPEN calls for the infringing website's revenue streams from payment network providers and advertisers to be cut off. These remedies — both of which are included in SOPA and PROTECT IP — harm the website operator's ability to profit from the infringing products or content and, unlike DNS filtering, do not cause any collateral damage to non-infringing websites.

DNS filtering will harm First Amendment rights on the Internet without significantly deterring infringers. It is not an effective method of fighting copyright and trademark infringement online because it is easily circumvented and any bill that incorporates it is vulnerable to being struck down on a First Amendment challenge. Congress should seek to find a more equitable balance between fighting online infringement and the First Amendment rights of users in the US by avoiding the use of DNS filtering.

Lauren Mack graduated magna cum laude from Drexel University with a Bachelors of Science in Music Industry. She is a member of Cardozo's Cyberlaw Society and currently clerks for a business and media law firm. You can follow her on Twitter, where she tweets about media and technology law, @MusicN3rd.

Suggested citation: Lauren Mack, DNS Filtering to Fight Internet Piracy Violates the First Amendment, JURIST - Dateline, Jan. 13, 2011, http://jurist.org/dateline/2012/01/lauren-mack-DNS-filtering.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at studentcommentary@jurist.org

]]> Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain tag:jurist.org,2012:/dateline//6.39972 2012-01-13T19:00:00Z 2012-01-13T19:50:02Z JURIST Guest Columnist Leila Sayed-Taha, DePaul University College of Law Class of 2012, currently works as a translator for Ace Languages Centre, where she aids asylum seekers at the Immigration Advisory Service. Here she discusses the ongoing issue of immunity... Elizabeth Imbarlina JURIST Guest Columnist Leila Sayed-Taha, DePaul University College of Law Class of 2012, currently works as a translator for Ace Languages Centre, where she aids asylum seekers at the Immigration Advisory Service. Here she discusses the ongoing issue of immunity as troops withdrawal and private contractors remain, and she examines the circumstances in which Iraqi citizens previously employed by the US military have been left...
In October, the Iraqi Parliament refused to grant immunity to American servicewomen and men serving in Iraq after the initially agreed upon withdrawal date. This withdrawal date had been established by the Bush administration in 2008. After almost nine years of US military engagement in Iraq, Operation New Dawn has come to an end. Regardless of whether this is to be considered a mission accomplished or the prelude to a sectarian war, the fact remains that nothing is certain. The current debate concerning whether withdrawal was a wise move on behalf of President Barack Obama, a popular criticism made by the current presidential candidates, fails to illustrate a clear picture of the reasoning behind the withdrawal. This failure is misleading both politically and legally. The current administration clearly prioritized troop legal protection over military presence in Iraq. After the events that took place at Abu Ghraib and in Haditha, and the legal complexities caused by Blackwater, one cannot blame the Iraqi people for choosing to refuse legal immunity. Ironically, hundreds of private military contractors, a major source of mistrust for many Iraqis, have remained in Iraq after the military withdrawal.

The US-Iraq Status of Forces Agreement [PDF] (SOFA) explicitly states that all US forces stationed in Iraq would be completely withdrawn by December 31, 2011. The implementation of the agreement caused much controversy because the Bush administration withheld the English version of the agreement until after the vote on its legislative enactment by the Iraqi Parliament. Disagreements concerning the interpretation and meaning of some provisions caused the Iraqi government to initially proclaim the agreement to be deadlocked. Areas of dispute included legal jurisdiction over US servicewomen and men responsible for the deaths of Iraqi citizens that occur as a result of operations while on duty. Whilst the Iraqi government in declaring its sovereignty wished to opt for Iraqi legal jurisdiction in such matters, the US preferred all its forces to be legally subject to the Uniform Code of Military Justice. Despite such areas of disagreement, Article 12 of the agreement stipulated that the US would have primary jurisdiction over its members of the armed forces and Iraq shall have primary jurisdiction over US contractors that commit crimes in Iraq in addition to crimes committed by US armed forces in Iraq that do not have active duty status. The latter stipulation was considered a controversial construct, as basing legal jurisdiction on the duty status of the service member is not clear-cut or straightforward. The agreement further stipulated that the US would determine whether or not an alleged offense arose during active duty. According to Army Regulation, duty status has numerous and complex categories, and even if killed or kidnapped a soldier is still considered to have active duty status. The authors of SOFA failed to provide an explicit definition of the term "duty," and its transliteration in the Arabic version of the agreement was argued to be vague and misleading. Without a definitive meaning given to the term, it has been speculated that SOFA failed to establish a common understanding of the word in both the Arabic and English versions of the agreement, and thus the Obama administration was not capable of extending the agreement, specifically in relation to immunity, with the administration of Iraqi Prime Minister Nouri al-Maliki beyond the stipulated expiration date.

Prior to the enactment of SOFA, private contractors were considered to be immune to prosecution under Iraqi law for criminal acts as stated in Order 17 [PDF] of the Coalition Provisional Authority. After the events in Nassour and Haditha and the controversy caused by Blackwater, SOFA was considered to be a means to prevent such a reoccurrence. With the expiration of SOFA, the legal status in terms of jurisdiction and immunity of such contractors remains to be seen. It was reported in October that after the withdrawal of the troops from Iraq, as many as 5,000 private contractors would be employed in order to ensure security of US diplomats. The US Department of State, rather than the military, will be in charge of monitoring the specified roles and contractual duties to be carried out by these private security agents. Currently, the State Department has not released information on the exact nature of the contracts or duties to be carried out by these private contractors aside from providing diplomatic protection.

While the immunity of soldiers and military contractors alike is certainly a serious and ongoing issue, the precarious situation in which Iraqi citizens, formerly employed by the US military, have been left should not be forgotten. Particularly impacted by the withdrawal are those Iraqis who were employed by the US military as interpreters. Many of them, considered to be traitors in their own society, are now targets of Islamic militias, even more so in the face of the present instability. While the 2008 Refugee Crisis in Iraq Act contains provisions that grant fast-track refugee status to those Iraqis employed by US forces, particularly those facing an ongoing threat to their livelihood, the implementation of this legislation has fallen short. Unfortunately, the limitations of the system failed to efficiently provide visas for such individuals, resulting in many applying separately for asylum in European countries out of desperation. In many situations, after waiting for months for their application to be screened, asylum seekers are rejected without any explicit explanation and are not granted any opportunity to appeal. The special visa process, as provided by the statute, allows 5,000 visas per year beginning in 2008. As of October 2011, only 3,415 visas have been granted in the past five years.

Regardless of the supposed justifications for initiating US intervention in Iraq, the justifications for ending this intervention are of a completely different nature. Some may call it a matter of convenience, an ending very far from a stabilized, democratic and peaceful society as proponents of the intervention envisioned. In early December, Vice President Joe Biden declared that Iraq's violence reached an all-time low whilst on a diplomatic trip to the country. However, on January 5, 78 Iraqis were killed near a Shia shrine in Sadr City, the worst attack to hit the country in more than a year. Al-Maliki declared December 31 to be Iraq Day, a symbol of national sovereignty, independence and social unity. Yet the US leaves behind the largest US embassy in the world, twice the size of the White House compound, with a speculated 17,000 employees. Private contracting companies are moving quickly to gain licenses in order to function in Iraq. Even Blackwater (now known as Academi) seeks a license despite being banned from the country. In the face of all this, the plight of those Iraqis who assisted the very forces that sought to liberate them are currently living in fear for their lives, as the legislation put in place some five years ago has failed to fulfill its goal of providing protection. The future of the independent Iraq is anything but certain.

Leila Sayed-Taha is currently an LL.M. candidate at DePaul University College of Law and is focusing her studies on international law with a particular emphasis on human rights law. She works as an intern at Black Association of Women Step Out, where she carries out policy and legal research, and has also volunteered at Bristol Refugee Center, Asylum Justice and Amnesty International Wales. She received her LL.B. from Cardiff University in Wales.

Suggested citation: Leila Sayed-Taha, Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain, JURIST - Dateline, Jan. 13, 2012, http://jurist.org/dateline/2012/01/leila-sayed-taha-iraq.php.


This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Progress in Pakistan: Criminalizing Practices Harmful to Women tag:jurist.org,2011:/dateline//6.39856 2011-12-31T22:00:00Z 2011-12-31T23:14:17Z JURIST Guest Columnist Maira Sheikh, Notre Dame Law School Class of 2012, is a Research Associate at the Research Society of International Law in Lahore, Pakistan. She discusses Pakistan's new women's rights laws and argues that even if these laws... Megan McKee JURIST Guest Columnist Maira Sheikh, Notre Dame Law School Class of 2012, is a Research Associate at the Research Society of International Law in Lahore, Pakistan. She discusses Pakistan's new women's rights laws and argues that even if these laws are not properly enforced, they are still valuable for the social progress they indicate as well as the empowerment they instill...

Pakistan's track record for women's rights is dismal at best. A recent poll by the Thomson Reuters Foundation named Pakistan the third most dangerous country for women based on a documented history of acid attacks, child marriage, honor killings and rampant domestic violence. In recent years, the national government of Pakistan has made some effort to provide women with more rights by attempting to amend laws related to rape prosecution and by codifying anti-harassment laws for the workplace. On December 23, 2011, two new women's rights bills were passed by Pakistan's legislature amending the Pakistan Penal Code and the Code of Criminal Procedure; the Prevention of Anti-Women Practices Bill [PDF] and the Criminal Law Bill [PDF] were both approved by the country's president.

The Prevention of Anti-Women Practices Bill adds a new chapter to the Pakistani Penal Code listing three particular offenses against women. Chapter XXA makes it unlawful to deprive a woman of her rightful inheritance through "deceitful or illegal means." This is punishable by imprisonment for five to 10 years with a possible additional fine of up to one million rupees. This chapter makes it unlawful to give or compel a woman into marriage for the purposes of settling a civil or criminal dispute. This is punishable by imprisonment for three to seven years along with a fine of five hundred thousand rupees. Finally, this chapter makes it unlawful to "compel or arrange or facilitate" a woman's marriage with the Qur'an. This act is punishable by imprisonment for three to seven years as well as a fine of five hundred thousand rupees. The bill also amends the Pakistani Code of Criminal Procedure by making it unlawful for a provincial government to "suspend, remit, or commute" the sentences of those convicted of rape.

The Criminal Law Bill makes bodily violence through the use of corrosive or acidic substances unlawful. It does this by amending Pakistan Penal Code Section 332's definition of "hurt" to include disfigurement and defacing, so that it now reads, "[w]hoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables, disfigures, defaces or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt." Disfigurement is defined under this bill as the "disfigurement of face or disfigurement or dismemberment of any organ or any part of the organ of the human body which impairs or injures or corrodes or deforms the symmetry or appearance of a person." This bill makes it unlawful to cause or attempt to cause hurt through any substance that is corrosive or harmful to the human body upon internal or external contact. The definition of "corrosive substances" is fairly broad and includes anything which may "destroy, cause hurt, deface or dismember any organ of the human body and includes every kind of acid, poison, explosive or explosive substance, heating substance, noxious thing, arsenic or any other chemical which has a corroding effect and which is deleterious to the human body." Any act that violates this amendment is punishable by imprisonment of 14 years to life and a minimum fine of one million rupees. This bill is not gender specific; both men and women may be victims of bodily violence through corrosive substances. However, women are the primary beneficiaries of this bill as they are more frequently victims of this type of violence.

The passage of these bills is hailed as a victory by female legislators and rights groups that have long pushed for increased legal rights and remedies for women. The victory, however, is only a small one. The proponents of these bills readily admit that laws decrease in value without proper enforcement and in Pakistan enforcement is a problem. Protecting women against the practices made unlawful by this legislation will be difficult and irregular, especially in regions where these practices are more commonplace. It may eventually be the case that relatively few convictions are sustained after appeal under these new laws. This wave of pro-women legislation is all fairly new and it is premature to evaluate its numerical impact on Pakistan's civil and criminal dockets. This does not mean that the value of these bills cannot be assessed independently of how many cases are adjudicated under them.

The Prevention of Anti-Women Practices Bill and the Criminal Law Bill do not just pay lip-service to the increasing demand for women's rights in Pakistan. Regardless of whether or not these laws can ultimately be enforced, their existence alone is indicative of positive social progress. Such steps should not be undervalued, especially since only little more than 30 years ago the draconian Hudood Ordinances, laws that left women making accusations of rape vulnerable to prosecution as adulterers, were passed. The Senate's unanimous passage of both the Anti-Women Practices Bill and the Criminal Law Bill and the quick approval thereafter by Pakistan's president indicate strong support for the women's rights movement by the current national government. This means that the national government is no longer satisfied with allowing the treatment of women to be guided mainly by local practices or outdated interpretations of religious custom. This kind of support for women's rights has yet to be demonstrated consistently at the local government level, and the specific provision prohibiting alteration of a rape conviction by provincial governments speaks to this shortfall. At the very least, the passage of these bills is an attempt to standardize the belief that women deserve to be treated in a manner that preserves their dignity and their rights as human beings. For enforcement to eventually occur in a consistent and meaningful manner, people's beliefs need to evolve to a point where these newly prohibited practices are genuinely considered intolerable by the vast majority of Pakistanis. It is only then that women will no longer be at the mercy of their fate, whether born into homes where they are valued as property, as princesses or as anything in between.

These women's rights bills are also valuable for the empowerment and self-worth they encourage within Pakistani females. The eventual impact of these laws on society will be insignificant without the development of female empowerment through basic education and education on rights granted to females as citizens of Pakistan, rights that ultimately supersede regional, cultural or religious practices. Women, especially those that live in communities that most offend women's rights, must teach one another to stand up for themselves and to seek legal remedies when their rights have been violated. The knowledge that there are laws that prohibit practices such as forced marriage for the settlement of disputes or marriage to the Qur'an give women the power and the platform to say "no." For now, that "no" may go unheard or it may be met with an unsavory response, but empowerment means that "no" will become louder and more frequent as women discover that these practices are not the norm and are, in fact, illegal and unacceptable.

Pakistan's social climate is slowly improving, as outdated and undignified practices that are harmful to women are being suppressed. Only time will tell if these new laws are truly successful in providing women with enforceable legal rights and in curbing bodily violence through corrosive substances. For the time being, the measurable value of the Prevention of Anti-Women Practices Bill and the Criminal Law Bill is in the social progress they indicate and the empowerment they bestow.

Maira Sheikh has conducted research on international law topics and on security and development issues in Lahore, Pakistan. She is also a Staff Editor of Notre Dame Law School's Journal of Legislation.

Suggested citation: Maira Sheikh, Progress in Pakistan: Criminalizing Practices Harmful to Women, JURIST - Dateline, Dec. 31, 2011, http://jurist.org/dateline/2011/12/maira-sheikh-pakistan-women.php.


This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Same-Sex Marriage and International Law in the Ninth Circuit tag:jurist.org,2011:/dateline//6.39714 2011-12-29T22:00:00Z 2011-12-30T04:29:47Z JURIST Guest Columnist Nathan Crombie, Columbia Law School Class of 2012, is currently researching the influence of international human rights law on same-sex marriage. Here he argues that international law should influence the Ninth Circuit's ruling on same-sex marriage...The US... Elizabeth Hand JURIST Guest Columnist Nathan Crombie, Columbia Law School Class of 2012, is currently researching the influence of international human rights law on same-sex marriage. Here he argues that international law should influence the Ninth Circuit's ruling on same-sex marriage...

The US Court of Appeals for the Ninth Circuit is currently considering the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. In determining the initiative's constitutionality, the court will follow the approach of Judge Vaughn Walker of the US District Court for the Northern District of California, subjecting Proposition 8 to analysis under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. These clauses will invite scrutiny of the validity of asserted governmental interests in confining marriage to opposite-sex couples. However, traditional constitutional analysis does not involve examination of US obligations under international human rights law. Neglecting to analyze these obligations removes a valuable reference favoring same-sex marriage recognition, bucking an increasing trend among foreign courts.

The principal obligations relevant to the issue of same-sex marriage are contained in the International Covenant on Civil and Political Rights (ICCPR). The US signed the ICCPR in 1977 and ratified it in 1992, subject to a number of reservations, understandings and declarations. Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection under it. In this respect, state parties must guarantee equal and effective protection against discrimination on a number of grounds, including sex, race and "other status."

The Human Rights Committee is a body of independent experts charged with overseeing the implementation of the ICCPR by state parties, and it carries out this task in two ways. First, it periodically issues "general comments" that interpret the rights set out in the ICCPR. Second, it sits in a quasi-judicial capacity and makes non-binding recommendations in response to communications by nationals against those state parties that have acceded to the First Optional Protocol to the ICCPR.

The committee has provided significant guidance on how to interpret Article 26. In General Comment 18, the committee observed that Article 26 is a stand-alone right that prohibits discrimination in "any field" regulated and protected by public authorities. If a state party discriminated in a regulated field, it would need to advance "reasonable and objective" criteria for doing so. In the Toonen v. Australia communication of 1994, the committee held that prohibited discrimination on the grounds of "sex" in Article 26 included discrimination on the basis of sexual orientation. On its face, these two interpretations suggest that in regulating the institution of marriage the US would have to do so on a non-discriminatory basis that included same-sex couples.

However, Article 23(2) provides that "[t]he right of men and women of marriageable age to marry and to found a family shall be recognized." Taking into account the historical context of the ICCPR and its official negotiation records, this right is generally accepted as being limited in scope to opposite-sex marriage. This was confirmed in the Joslin v. New Zealand [PDF] communication of 2002. There, the committee dismissed arguments that Article 26 required New Zealand to provide same-sex marriage. It held that Article 26 must be read in light of the guarantee of heterosexual marriage in Article 23(2). The committee neglected to conduct a "reasonable and objective" inquiry into the denial of same-sex marriage because overwhelming state practice exhibited a "consistent and uniform" understanding that marriage was innately heterosexual. At this time, the Netherlands was the only country to have enacted same-sex marriage.

Since 2002, state practice in the area of same-sex marriage has changed significantly. There are currently 10 countries in the world that allow same-sex marriage, along with six states and the District of Columbia in the US itself. Proponents of same-sex marriage are making substantial gains in countries such as Australia and the UK, suggesting that the number of jurisdictions instituting marriage equality will continue to increase over time. With this increased recognition, the committee would have less room to circumvent a reasonable and objective inquiry on the basis of state practice if the issue of same-sex marriage came before it today. Recent communications holding that the denial of survivor pensions to those who had been in same-sex relationships violated Article 26 furthermore suggest that state parties would have difficulty persuading the committee that there were "reasonable and objective" bases for continuing to deny recognition of same-sex marriage.

Although the US is not a party to the First Optional Protocol to the ICCPR, it would be inadvisable for the Ninth Circuit to ignore the committee's "jurisprudential trend" towards finding that denial of same-sex marriage violates the equality guarantee in Article 26. This is because the "understandings" the US filed upon ratifying the ICCPR indicated that it would provide at least an equivalent, if not greater, guarantee of equality than provided for under the ICCPR. The first understanding asserted that the US Constitution provides "extensive protections against discrimination," and provided that distinctions drawn on a ground that invoked Article 26 would be permitted when they were, at minimum, related to a legitimate government objective. This is a clear reference to Equal Protection Clause jurisprudence under the Fourteenth Amendment. Given that the committee's "reasonable and objective criteria" inquiry raises substantially similar issues as an Equal Protection analysis, the Ninth Circuit should give weight to the committee's rejection of these justifications when it evaluates the state interests advanced in favor of upholding Proposition 8. Doing so will ensure harmonization between the levels of equal protection recognized by the US under the Equal Protection Clause, and by the committee under Article 26. The court will also ensure it fulfills its duty under the compliance with the fifth understanding, which provides that the ICCPR shall be implemented to the extent the federal government exercises judicial jurisdiction over issues raised under it.

Abandoning the traditionally myopic attitude towards international law in the context of same-sex marriage cases will also bring federal courts in line with trends in overseas jurisdictions. Courts in New Zealand and South Africa have specifically invoked Article 26 of the ICCPR when ruling on the constitutionality of same-sex marriage. In New Zealand, two Court of Appeal justices in the Quilter v. Attorney-General [PDF] decision, the precursor to the Joslin communication before the committee, discussed the state's obligation to comply with Article 26 of the ICCPR. Justice Keith concluded that Article 23(2), reflecting traditional heterosexual marriage, was the governing position when set against Article 26. In contrast, Justice Thomas cited the committee's test for compliance with Article 26 by concluding that the state had failed to advance sufficiently reasonable and objective criteria to justify limiting marriage to opposite-sex couples. Similarly, Justice Sachs on the Constitutional Court of South Africa referred to the state's obligations under Article 26 in ruling that denial of same-sex marriage was unconstitutional in Minister of Home Affairs v. Fourie. In the legislative context, advocates of same-sex marriage in recent Australian debates on marriage equality have relied extensively on the Article 26 equality guarantee when making submissions before the Senate Committee considering draft marriage equality legislation.

The invocation of Article 26 by national courts is just one example of a dyadic process between the international and domestic law strata in the development of new human rights norms. The committee is emboldened to give more robust interpretations to the Article 26 equality guarantee when it sees state practice moving more and more in the direction of marriage equality. Likewise, national courts can point to the increasingly progressive interpretations being given to Article 26 by the committee when seeking to insulate their decisions from charges of judicial activism, as occurred in response to the original 2008 Supreme Court of California decision holding that the state denial of same-sex marriage violated the equality guarantees of the California Constitution. More practically, committee communications on Article 26 in the context of sexual orientation discrimination canvass similar issues that arise when courts are faced with direct questions on the constitutionality of same-sex marriage. This is particularly the case in the US, where courts conduct Equal Protection analysis that parallels the "reasonable and objective" inquiry under Article 26. When additional consideration is given to US understandings to the ICCPR, there is a persuasive and sound basis for the Ninth Circuit to consider international human rights law when determining the constitutionality of Proposition 8.

Nathan Crombie is currently an LL.M. candidate at Columbia Law School. He earned his undergraduate law and arts degrees from Victoria University of Wellington in New Zealand before working as a solicitor in the private and governmental sectors. His primary areas of interest are public international law and human rights.

Suggested citation: Nathan Crombie, Same-Sex Marriage and International Law in the Ninth Circuit, JURIST - Dateline, Dec. 29, 2011, http://jurist.org/dateline/2011/12/nathan-crombie-marriage.php.


This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Labor Law Leads to Efficient Operations in the NFL tag:jurist.org,2011:/dateline//6.39673 2011-12-19T18:00:00Z 2011-12-19T20:57:17Z JURIST Guest Columnist Erica Menze, Marquette University Law School Class of 2012, is a member of the Marquette Sports Law Review. She writes on the implications of labor law and antitrust law on the National Football League's operations...During the National... Elizabeth Imbarlina JURIST Guest Columnist Erica Menze, Marquette University Law School Class of 2012, is a member of the Marquette Sports Law Review. She writes on the implications of labor law and antitrust law on the National Football League's operations...
During the National Football League (NFL) lockout in 2011, the National Football League Players Association (NFLPA) — the NFL players' union — decertified in order to bring an antitrust suit against the NFL. If the NFLPA had not decertified, the players would only have been protected under labor law because of the antitrust exemptions it provides for union-employer bargaining in labor disputes. While many players prefer that the NFL operate in the antitrust law arena, more equitable outcomes will likely result from operation in the labor law arena.

Currently, the NFL operates under labor law standards. The union and the employer — in this case, the NFLPA and the NFL owners — negotiate a collective bargaining agreement (CBA) in order to establish rules for how the relationship will work. The CBA covers a broad range of issues, including legal remedies and union earnings. When the negotiations reached an impasse this year, the NFL owners had the legal right under labor law to lockout the players. Usually, when a lockout occurs, the union can still collect employment benefits from the employer, such as insurance or pension benefits. If this occurred during the NFL lockout, the players still would have collected benefits under their union rights, but the owners would incur these costs without earning any profits for the lost football season. In addition, the NFLPA acquired lockout insurance, which guaranteed the players around $200,000 each, if the entire season had been canceled. While this amount is minuscule for many NFL stars, most players could comfortably survive on this amount for a lost season. This move could have been leveraged to push the owners for a new CBA. By staying in the realm of labor law, the players would have avoided the owners' perhaps valid allegations that decertification was a "sham" and that the players continued to act as a union. The NFLPA decertification was extremely risky. By decertifying, the NFLPA left its labor law protections and voluntarily joined the antitrust arena. As a result, the NFL or the NFLPA could have filed an antitrust suit against the other.

The players filed their antitrust suit, Brady v. NFL, first, claiming that the NFL owners engaged in anti-competitive acts in violation of the Sherman Antitrust Act based on how they allotted NFL players in the draft and the use of franchise tags. Furthermore, the suit claimed that the owners prevented the players from reaching their full earning potential by enforcing salary caps. When the lockout ended with agreement on a new CBA, players went back to their teams, training camps started and the players dropped the suit. While football fans are fortunate to have a season, the legal world was left with a lingering question regarding the effects of labor law and antitrust law in the NFL.

Currently, every major sports league in the country operates in the labor law arena: baseball, basketball, football, hockey and soccer. Some sports even enjoy more specific antitrust exemptions, for example the Curt Flood Act in baseball and 15 USC § 1291 in football, which gives an exemption for broadcasting rights. The fact that all of the leagues operate in labor law tends to support the claim that labor law is more beneficial to the sports industry. For example, labor law in sports has provided the industry higher player salaries, large television contracts and in some sports greater disparity among the teams.

However, this does lead to an interesting question: how would the NFL operate if it acted solely under antitrust standards instead of labor law? What if there were no NFLPA, no CBA and no player allotment that comes from this contract? What if American Needle v. NFL applied to everything the NFL does? What if the NFL acted as 32 separate and distinct teams, conducting business with the players? The answers to these questions would create a different version of the traditional NFL.

First, the NFL owners could not negotiate television contracts for the entire league. Each individual team would pursue its own television rights, whether in its market territory or beyond. Teams with large populations in the viewing area would demand higher prices for broadcasting the game. On the other hand, teams in smaller markets, such as Green Bay or Buffalo, would charge lower prices due to the smaller population.

In addition, if the NFL did not operate under labor law then owners could not agree to revenue sharing because it would be anti-competitive, causing injury to any other entity trying to gain entry into the market. Teams would have the ability to earn greater profits depending on their market shares, not only in broadcasting contracts, but also on increased ticket and merchandise sales. Therefore, teams with a smaller market share would not be able to compete with those teams enjoying a larger market share.

Increased profits lead to the acquisition of the best players through high salaries. Since there could be no NFL draft or waiver system if the NFL were operating under antitrust laws, as both would very likely be found anti-competitive, players would have no obligations or incentives to sign with any particular team. Rationally, players would play for whichever team could pay them the highest salary. Accordingly, the small number of teams that would be able to attract the best players through paying the highest salaries would easily dominate the field. While everybody wants his or her own team to win, part of the excitement comes from an indefinite outcome. An increase in disparity among teams would mean losing excitement, which ultimately would mean losing fans for the league. Eventually, teams would begin moving or folding and the NFL would become less national and more regional.

Individual players have different outlooks regarding whether or not the NFL should operate under labor law. The more highly compensated players likely would prefer the anti-competitive method because with no salary cap their incomes would skyrocket, while the lower paid players likely favor labor law, as they benefit from the salary base set by the CBA. Ultimately, with 53 players on an active team roster, there are far more of the latter than the former. These same issues apply to the 32 NFL owners; there are far more owners that would suffer without labor law than would thrive.

Without labor law, each individual team would have to set its own benefits and each individual player would have to set his own demands. This would create an extremely inefficient negotiating process and difficulty in an industry where players risk serious injury for the entertainment of others.

From a fan's perspective, it is easy to see why the NFL and the NFLPA have a relationship under labor law. It allows all the parties involved to thrive and produce maximum profits, while maintaining a presence across the nation. However, the situation in Brady v. NFL proves the owners' argument that the NFLPA decertification was a "sham." If the NFLPA wants the benefits of the labor law exemption from antitrust, the union should also take the legal route carved out for it under labor law. The consequences under antitrust in this case are significant and players, owners and fans cannot bear these extreme consequences.

Erica Menze graduated magna cum laude from St. Ambrose University with Bachelors of Arts in Sports Management and Marketing. Erica interned at NIKE, Inc. as a Sports Marketing Legal Intern and at Gamebreakers, LLC as a Sports Law Intern. At Marquette, Erica is a candidate for the National Sports Law Institute's Sports Law Certificate.

Suggested citation: Erica Menze, Labor Law Leads to Efficient Operations in the NFL, JURIST - Dateline, Dec. 19, 2011, http://jurist.org/dateline/2011/12/erica-menze-labor-law.php.


This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Popular Vote Compact: A Missed Opportunity for Equality tag:jurist.org,2011:/dateline//6.39578 2011-12-15T18:00:00Z 2011-12-16T01:36:23Z JURIST Managing Editor Dwyer Arce, University of Pittsburgh School of Law Class of 2012, is the 2011 Janavitz Fellow in First Amendment Law and serves as a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He argues that an interstate... Dwyer Arce JURIST Managing Editor Dwyer Arce, University of Pittsburgh School of Law Class of 2012, is the 2011 Janavitz Fellow in First Amendment Law and serves as a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He argues that an interstate compact altering presidential elections missed a unique opportunity to partially remedy the denial of federal voting rights to the four million US citizens living in the territories... (His opinions are not intended to represent those of JURIST)

In August, California became one of a handful of states to adopt an interstate compact that would make the nationwide popular vote controlling in presidential elections. Article II of the US Constitution provides that the President and Vice President are elected by the Electoral College, a body of electors apportioned to each state according to the size of its congressional delegation. This has resulted in the current total of 538 Electoral College votes, representing 100 senators, 435 representatives, plus three more awarded from the District of Columbia, as provided by the Twenty-Third Amendment. The Constitution provides that these electors shall be appointed by a state's legislature, which has discretion in determining which presidential candidate will receive the state's votes. Despite this grant of power, the states have uniformly provided that their Electoral College slate be awarded to the winner of the popular vote in that state.

The National Popular Vote Interstate Compact would change the nature of the election by pledging a member-state's Electoral College votes to the winner of the nationwide popular vote, regardless of which candidate wins in the statewide vote. In calculating the national popular vote, the compact requires that states take into account the popular vote in each of the 50 states and the District of Columbia, as certified and reported by state election officials. A trigger provision prevents the compact from coming into force until enough states adopt it to comprise a majority of the Electoral College, 270 votes. With California's adoption of the compact, there are now 132 Electoral College votes tied to it, with over a dozen more state legislatures considering joining the compact. Once it has been adopted by enough states, the Electoral College will be effectively abolished, allowing the winner of the national popular vote to become President. This would avoid the situations occurring in 1876, 1888 and 2000, when the presidential candidate who lost the national popular vote ascended to the presidency with an Electoral College majority alone. One detrimental aspect of the Electoral College which is not remedied through this compact is the disenfranchisement of just over four million US citizens who are currently excluded from voting in federal elections: the residents of Puerto Rico, Guam, the US Virgin Islands and the Northern Mariana Islands. (The residents of a fifth territory, American Samoa, are excluded from this analysis because they are not US citizens).

Puerto Rico and Guam have been part of the US since they were ceded by Spain in 1898. The US Virgin Islands were acquired from Denmark in 1917, and the Northern Mariana Islands came under US control at the conclusion of World War II. Congress granted US citizenship to the residents of Puerto Rico in 1917, those of the US Virgin Islands in 1927, Guam in 1950, and the Northern Mariana Islands in 1986. Each territory elects a Delegate to the US House of Representatives who can vote in committee but cannot vote on the final disposition of legislation, and each hosts a federal district court. These US citizens, living on US soil under constitutional governments organized through the authority of Congress, are excluded from the federal franchise solely due to their geographic location outside of one of the 50 states or the District of Columbia. This geographic discrimination is embodied in the text of the Constitution itself, which provides that voting representatives be elected to the House "by the people of the several states," that the Senate shall be "composed of two Senators from each state, elected by the people thereof," and that the president shall be elected through the state dominated Electoral College process. This federal framework fails to take into account the existence of seemingly permanent US territories populated by US citizens and, as such, excludes them from effective participation in the national body politic.

US citizens living in Puerto Rico and Guam have sued on several occasions to gain inclusion in the presidential vote. In 1984, the US Court of Appeals for the Ninth Circuit rejected one such claim in Attorney General of the Territory of Guam v. United States, holding that plaintiffs had failed to state a claim upon which relief could be granted. This was because the

Constitution does not grant to American citizens the right to elect the President ... Electors appointed by the states elect the President and Vice President. ... Thus, citizens do not vote for the President. Electors, appointed by "each State," vote for the President.
Similarly, following a long line of cases seeking federal voting rights for US citizens in Puerto Rico, the US Court of Appeals for the First Circuit ruled en banc in Igartúa-De La Rosa v. United States that
Voting for President and Vice President of the United States is governed neither by rhetoric nor intuitive values but by a provision of the Constitution. This provision does not confer the franchise on "U.S. citizens" but on "Electors" who are to be "appoint[ed]" by each "State," in "such Manner" as the state legislature may direct, equal to the number of Senators and Representatives to whom the state is entitled.
The rulings by federal appellate courts have been uniform on this issue: US citizens living in one of these territories cannot exercise the federal franchise unless they relocate to a state or the District of Columbia, the territory in which they live becomes a state, or the Constitution is amended to allow federal voting rights in the territories. Despite the steadfast dissent of Judge Juan Torruella on the First Circuit, the findings of a few overturned district court opinions, and the writings of academic observers lamenting the colonial nature of the situation, this constitutional analysis would appear to be correct both textually and historically.

There is now one other option available for enfranchising these four million Americans: the National Popular Vote Interstate Compact. The compact could have provided for the inclusion of the votes cast for president in these four territories in the national vote count that would determine the outcome of the presidential election. Since the decision on whether or not to include these votes would still be entirely within the competence of the state legislature in awarding its Electoral College votes, the inability of territorial residents to vote for president in their own right would become irrelevant.

Unfortunately, this language was not included in the compact. Given the likely controversy that would ensue by attempting to include these territories in the vote totals — some of which was seen during the debate over the Puerto Rico Democracy Act of 2010 — a compact including this language would have faced significant hurdles.

The people of Puerto Rico, Guam, the US Virgin Islands and the Northern Mariana Islands have been Americans for generations. They are US citizens by birth, have been drafted, pay a number of federal taxes, and are subject to most federal legislation. Unlike states, the territories are not sovereign, but instead are subject to the plenary powers of a Congress they have no voting representation in and an Executive Branch they do not participate in electing. Despite the enormous impact federal action has on them, the residents of these territories are excluded from participating in one of the most fundamental exercises of American democracy. It is a shame that a unique opportunity to partially alleviate this fundamental injustice has been squandered.

Well, at least they all get their own quarters.

Dwyer Arce is the Managing Editor of JURIST. He graduated cum laude from the University of Nebraska at Omaha with a degree in Political Science and Islamic Studies. He has previously interned with the American Civil Liberties Union of Pennsylvania and with Judge Nora Barry Fischer of the US District Court for the Western District of Pennsylvania. Arce is also a member of the Puerto Rican Bar Association.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Dwyer Arce, Popular Vote Compact: A Missed Opportunity for Equality, JURIST - Dateline, Dec. 15, 2011, http://jurist.org/dateline/2011/12/dwyer-arce-popular-vote.php.


This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at studentcommentary@jurist.org

]]> Iraq War: Mission Accomplished or Mission Impossible? tag:jurist.org,2011:/dateline//6.39549 2011-12-13T16:00:00Z 2011-12-13T22:25:10Z JURIST Guest Columnist Dominic Hoerauf, Columbia Law School Class of 2012, is a Staff Editor on the Columbia Human Rights Law Review. He argues that the Obama administration's decision to withdraw troops from Iraq by December 31 is misguided as... Elizabeth Hand JURIST Guest Columnist Dominic Hoerauf, Columbia Law School Class of 2012, is a Staff Editor on the Columbia Human Rights Law Review. He argues that the Obama administration's decision to withdraw troops from Iraq by December 31 is misguided as the goals embodied in the authorization for the war have not yet been achieved...

Only a couple of weeks ago, President Barack Obama announced the full withdrawal of US troops from Iraq by December 31, 2011, putting an end to nearly nine years of US military engagement in which more than 4,400 US soldiers and more than 10,000 Iraqi soldiers and police force members lost their lives. One might ask, why now? Is it because the US has achieved the goals set forth in the Authorization for Use of Military Force Against Iraq Resolution (AUMF) and UN Security Council Resolution 1441? What were those goals? Preventing Iraq from using weapons of mass destruction? Keeping Iraq from acquiring weapons of mass destruction? Ousting Saddam Hussein in order to tackle possible, yet unlikely, links between al Qaeda and the then-Iraqi regime, ergo fighting terror? Stabilizing the Middle East to preserve international peace and security?

Admittedly, Saddam Hussein is no longer causing trouble, nor is Osama Bin Laden. Weapons of mass destruction are certainly more out of reach for the Iraqi government than they were in 2003, assuming that it even seeks to acquire weapons of mass destruction. And yet, the question arises whether the mission has been accomplished, whether this is what victory looks like? Although traditional combat action is no longer taking place, deadly bombings and shootings still occur daily, inducing a constant state of fear and terror. Just a few days ago, 43 civilians were killed in bomb attacks, increasing the number of casualties in December to 111. Is this truly what victory looks like? Is this a situation in which we would like to leave the Iraqi people on their own, abandoning a highly volatile state of affairs that could easily turn into another pre-September 11, 2001 Afghanistan? Well, I guess nobody seriously thinks so. The Obama administration, of course, is well aware of that. Yet, it withdraws the troops — despite the AUMF promises to make sure that "the just demands of peace and security will be met." It is withdrawing its troops because this war was and still is costly. An incredibly sad amount of blood has been shed and an enormous sum of money has been spent. In the end, a decision to discontinue military engagement is always subject to a cost-benefit calculation. Since the benefit, not only to the US, but also to its Western allies, is not as tangible and predictable as their costs in terms of lives, money and votes, that ratio has now probably led the Obama administration to conclude that this is as good as it gets.

However, maybe this does not adequately take into account the very special nature of conflict this new generation of warfare presents. Other than the nation-states' wars of the twentieth century, these new wars in Afghanistan and Iraq implicate both state and non-state actors. Unlike previous wars, combat action is not confined to troops or a well-defined battlefield. As a result, the target has changed as well as the definition of victory. As can be seen in Iraq, to a remarkable extent, civilians have been the primary target of insurgent and al Qaeda attacks. In an effort to undermine the people's trust in the capacity of the new government to preserve national security, the enemy tries to induce a state of constant fear and terror. Sadly enough, as mentioned earlier, measured under this goal, they are doing quite a good job. Each day, 14 attacks kill 11 Iraqi civilians on average. Therefore, we are far from proclaiming that either the AUMF's goal of ensuring that "the just demands of peace and security" has been met or from restoring "international peace and security" to the region, as Resolution 1441 sought to do.

Against this background, abandoning Iraq to its fate is the wrong thing to do; it would have devastating consequences — not only for the Iraqi people, but for international peace and security in the long run. It will ultimately threaten the most apparent and legitimate goal for going to Iraq, the preservation of US national security. Again, the AUMF recognizes this potential domino effect in Section 3(a)(1). Yet, the Obama administration draws the wrong conclusions. The young and vulnerable Iraqi democracy, unfortunately, does not yet have the means to counter infiltration by terrorists and insurgents. Without foreign assistance, Iraq is bound to become another failed state, just as Afghanistan became in the 1990s, in the aftermath of its century-long civil war. In Afghanistan, decades of war left behind a severely wounded state without any effective governmental institutions. This lack of governmental infrastructure resulted in a power vacuum of lawlessness and chaos. This chaos benefitted the strongest and most ruthless actors, not the democratically legitimized statesmen. It was this particular constellation that helped the Taliban to come to power, allowing it to later provide terrorist groups with safe havens to plan and train for attacks against the West.

If that is not supposed to happen with Iraq, than under no circumstances should US troops leave the Iraqi people on their own. Let us not stop halfway down the road. There are achievements we should build on. Even though the democracy is struggling, at this point, at least there is a democracy in place. All we have to do to turn a ticking bomb into a potential model for the Middle East is stick patiently to the goals of the AUMF in order to ensure (self-)sustainability. As difficult as this may be and as long as it will take, it is worthwhile, since starting over in 10 or 15 years will be even more costly.

That, however, requires us to alter our perspectives on warfare. In times of asymmetric conflicts, waging war, and especially waging war successfully, which in the instant case means establishing a self-sustaining democracy capable of defending itself, is no longer only about who has the most effective military and weapons. Rather it is about protecting vulnerabilities, which is to say protecting civilians and closely coordinating the (re)building of effective institutions of good governance. It is about generating and preserving trust between the Iraqi people and their government. Yet, trust requires security, "freedom from fear," as the Preamble to the Universal Declaration of Human Rights states. In this respect, the US and its allies have failed. They have failed due to a misconception of warfare. They failed to appreciate that warfare has changed; their weapons are no longer fully up to the task given by the AUMF. Peace and security in Iraq cannot be achieved solely by shooting or detaining the enemy with state-of-the-art weapons. Trust in the domestic government necessitates strong domestic institutions. This is best achieved by peacekeeping forces with an emphasis on institution building, implementing the rule of law and advocating good governance.

That is not to say that we do not need the military. Quite the contrary. The military remains a crucial factor in times of asymmetric warfare, yet with slightly modified perspectives and tasks. Therefore, it should under no circumstances leave Iraq now. The soldiers are needed to provide for a secure atmosphere in which state and institution-building efforts can take place, for domestic tranquility is the precondition for sustainable development. Thus, withdrawing from Iraq at this point is the wrong call. The international community has invested too much to stop now. In order to achieve true victory in Iraq once and for all, to turn mission impossible into mission accomplished, is to modify our strategy by intensifying peacekeeping and protection efforts.

Dominic Hoerauf is an LL.M. candidate focusing on Human Rights and the War on Terror at Columbia Law School. He holds a law degree and a Ph.D. from Humboldt University.

Suggested citation: Dominic Hoerauf, Iraq War: Mission Accomplished or Mission Impossible?, JURIST - Dateline, Dec. 13, 2011, http://jurist.org/dateline/2011/12/dominic-hoerauf-iraq-war.php.


This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]> Trademark Protection for Distinctive Single Color Marks tag:jurist.org,2011:/dateline//6.39428 2011-12-03T19:00:00Z 2011-12-04T04:14:59Z Elizabeth Imbarlina JURIST Guest Columnist Danielle Gorman, Benjamin N. Cardozo School of Law Class of 2013, is a Staff Editor for the Cardozo Arts & Entertainment Law Journal. She writes on the need for a revised opinion in the Yves Saint Laurent v. Louboutin case that would allow for the future protection of certain single color marks in the fashion industry...

Integral to the success of French footwear designer Christian Louboutin is his instantly recognizable, source-identifying mark: the red outsole. The Red Sole Mark received federal trademark registration in 2008, affording protection to "a lacquered red sole on footwear." Despite this preemptively valid registration and the overwhelming association in consumers' minds between the red sole and the Louboutin brand, the Red Sole Mark could lose its federal protection if the US Court of Appeals for the Second Circuit upholds a decision of the US District Court for the Southern District of New York. The district court acknowledged that color alone may sometimes be protected as a trademark — a premise set forth by the Supreme Court in 1995 in Qualitex v. Jacobson — but its analysis of the protectability of a single color trademark was complicated by the fact that the color mark was applied to an article in the fashion industry, where "color serves ornamental and aesthetic functions vital to robust competition."

The Louboutin v. Yves Saint Laurent decision has led other designers, such as amicus curiae Tiffany & Co., to conclude that single color marks in fashion will never be allowed federal trademark protection. This per se bar on single color marks in fashion is problematic because it is based on a generalized analysis of the fashion industry as a whole and could erode trademark protection within fashion beyond just single color marks. Using the district court's rationale, many currently enforceable multi-color marks in fashion, such as the Burberry check, could be canceled under similarly broad constructions of functionality, aesthetic functionality and color depletion theory. As a result, the fashion industry could experience an uncertain or dwindling amount of protection. Moreover, the effects of Louboutin could ripple into other industries. Amicus curiae International Trademark Association fears that "[r]ights granted as a result of the careful examination process of the Federal trademark registration system could be upended arbitrarily" if courts construe the mark holder's mark to be broader than it actually is rather than relying on the specific language and construction of each trademark's registration.

The Second Circuit should vacate and remand the district court's opinion. The district court's erroneous characterization of Louboutin's registration as a "claim 'to the color red'" rather than a claim for "a lacquered red sole on footwear" and its broad construal of the doctrine of aesthetic functionality establish a poor precedent for analyzing the protectability of single color trademarks. Rather than invoking generalizations and criticized theories in order to forego a more specific competitive necessity analysis, courts should make an individual, holistic examination of the trademark in question on a case-by-case basis.

By characterizing Louboutin's claim as a claim to the color red, the district court advanced the color depletion theory. Color depletion theory reflects the concern that the number of colors available for appropriation is limited and granting exclusive rights in any color would thus be anticompetitive. However, in ruling that single colors can serve as trademarks, the court in In re Owens-Corning acknowledged that "following passage of the Lanham Act courts have declined to perpetuate [the color depletion theory's] per se prohibition which is in conflict with the liberating purposes of the Act," and agreed with the Trademark Trial and Appeal Board that "the color depletion argument is an unreasonable restriction on the acquisition of trademark rights." The Supreme Court adopted this position in Qualitex, holding that the color depletion argument is unpersuasive "largely because it relies on an occasional problem to justify a blanket prohibition."

Nonetheless, the district court invoked this theory in order to deem the Red Sole Mark a "monopoly on the color red." Though the court posits "Louboutin would thus be able to market a total outfit in his red, while other designers would not," Louboutin's trademark registration specifically limits the red mark to footwear and includes a line drawing to show placement of the mark on the outsole of a shoe. Moreover, the court neglected the specific facts of the case in favor of applying the color depletion theory at the outset. Owens-Corning and Master Distributors, Inc. v. Pako Corporation provide that each case is to be decided on its facts and where a party has met all the normal trademark requirements, the color depletion theory should not bar the party's single color mark from protection.

In general, the color depletion theory fails to take into account the specific properties of color — including hue, saturation and value — and therefore underestimates the thousands, if not millions, of different colors distinguishable to the human eye. Descriptive word marks address these scarcity issues by requiring secondary meaning for protection. This compromise is also appropriate for assessing color trademarks. Where color, such as Louboutin's red, has acquired secondary meaning, the threat of depletion should be allayed. The invocation of color depletion theory in Louboutin diverges from the modern trajectory set in place by Owens-Corning and Qualitex and sets a defective precedent for the review of other single color marks in fashion.

The district court also erred in its broad construal of aesthetic functionality. Aesthetic functionality is based on the premise that the visual appeal of a trademark may be essential to effective competition or an important ingredient in the commercial success of the product, and must, therefore, be free for all to imitate. In Pagliero v. Wallace China Co., the US Court of Appeals for the Ninth Circuit applied the aesthetic functionality doctrine and found that the defendant was entitled to copy the plaintiff's china designs, since the attractiveness of the design was the primary selling feature of the china and thereby served a non-trademark function. However, the Second Circuit specifically rejected the Pagliero test for aesthetic functionality in deciding the nearly identical case of Villeroy & Boch Keramische Werke v. THC Systems. In Qualitex, the Supreme Court adopted the Restatement standard, which limits aesthetic functionality to situations where the design "confers a significant benefit that cannot practically be duplicated by the use of alternative designs." The use of the aesthetic functionality doctrine for source-identifying marks currently varies by circuit, though most courts have rejected or limited its application.

However, in Louboutin the court reverted to a broad construal of aesthetic functionality, finding that in fashion color is used primarily to advance expressive, ornamental and aesthetic purposes. Rather than examining the availability of alternative designs, the court automatically found a threat to competition based on the premise that color is part of the consumer appeal of fashion items. The question should not have been whether fashion designers in general need to use the color red, but rather whether footwear designers need to use red outsoles in order to compete effectively in their market. The generalized construal of aesthetic functionality in Louboutin could render nearly every mark in fashion unprotectable, with the presumption that a visually appealing mark is necessary for free competition since fashion is premised on aesthetic beauty. The Ninth Circuit recognized the implications of such a standard in Vuitton et Fils S.A. v. J. Young Enterprises, where it rejected the contention that Louis Vuitton's mark was aesthetically functional merely because it appealed to consumers.

Scholars have long argued against such a broad interpretation of aesthetic functionality. Thomas McCarthy, author of the leading treatise on trademark law, contends that "[t]he notion of 'aesthetic functionality' is an unwarranted and illogical expansion of the functionality policy, carrying it far outside the utilitarian rationale that created the policy." Others note that it is contradictory to deny trademark protection to marks on the basis of their consumer appeal and demand, since creation of this demand is a recognized trademark function. Many are wary of the doctrine simply because there is no clear standard or unity among the courts.

In considering Yves Saint Laurent's counterclaim on remand, the district court should consider Louboutin's trademark in the context of its 2008 registration, and specifically ask whether Louboutin's lacquered red outsoles are a competitive necessity. Single color marks in fashion, where those marks meet all other trademark requirements, merit protection because the ability to register such marks would fit well within the Lanham Act and fortify the fashion industry's current shortage of intellectual property protections. The court will probably find no likelihood of confusion between Louboutin's shoes and the Yves Saint Laurent heels that prompted this infringement suit, and thus no likelihood of success on the merits to warrant a preliminary injunction for Louboutin. However, the opinion of the district court must be revised in order to allow for the possibility of protecting distinctive and non-functional single color marks in fashion in the future.

Danielle Gorman is a Staff Writer on "The Cardozo Jurist," the newspaper of the Cardozo School of Law, and a member of the Intellectual Property Law Society. She has interned at the State of New York Office of the Attorney General in the Consumer Frauds Bureau. Danielle received her undergraduate degree at Lehigh University where she studied English and Journalism.

Suggested citation: Danielle Gorman, Trademark Protection for Distinctive Single Color Marks, JURIST - Dateline, Dec. 3, 2011, http://jurist.org/dateline/2011/12/danielle-gorman-trademark-law.php.


This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

]]>