Dateline

Apple v. Samsung: Injunction-Junction, What's Your Function?

2012-10-04T14:10:00Z

JURIST Guest Columnists Natasha Major and Marcus Childs Moore, respectively Class of 2013 and 2012 from Howard University School of Law, analyze the ruling in Apple v. Samsung and argue that granting Apple's request for permanent injunctions against Samsung devices is an unfounded attempt to influence the marketplace from the courtroom...

The Apple v. Samsung case is an early Christmas gift to any intellectual property junkie. The complex litigation covers various areas of intellectual property law. Two teaspoons of trade dress issues, one full cup of design patents, two pinches of software patents and a dash of antitrust are the main ingredients of this case. The lawsuit involves a variety of devices including the iPad, iPhone and over 28 Samsung devices. The jury found that Samsung had infringed on six of Apple's mobile device patents and dished out a $1 billion dollar verdict. We now know that Apple will go for Samsung's jugular: permanent injunction.

Apple first succeeded in obtaining a preliminary injunction for the sale of Samsung's Samsung Galaxy Tab 10.1 tablet based on its alleged design patent infringement. This patent protects the iPad's ornamental design which is the iPad's look and feel. Apple claimed that Samsung's tablet looked like a blatant knock-off, citing the iPad's 9.7-inch screen and border, against the Samsung Tab's 10.1-inch screen and matching border. Additionally, both products have hard silver colored backings and left-hand control buttons. In granting Apple the preliminary injunction, the court considered the following from Amazon.com v. BarnesandNoble.com:

Apple's reasonable likelihood of success based on the merits of their claim;
The irreparable harm to Apple if an injunction was not granted;
The balance of hardships tipping in Apple's favor; and
The injunction's impact on the public interest.

The US District Court for the Northern District of California granted Apple this preliminary injunction that became effective after Apple paid a $2.6 million bond against any damages suffered by Samsung if the injunction is later overturned. This sort of judicial decree, acts as a sort of collateral "oopsey daisy" fund for Apple until trial is over and a verdict is rendered. If it is found not liable, Samsung pockets the $2.6 million.

However, the jury found that the similar design of the tablets were primarily functional and not ornamental. The jury undoubtedly pondered: "How many different ways can one design a tablet? It has to have a screen and buttons." On the other hand, the jury did find that certain functions of the tablet — such as the popular two-finger pinch zoom and the one-finger swipe features — did infringe on the iPad's patents, but these were not the basis for the preliminary injunction. Samsung has moved to lift the preliminary injunction since the jury verdict. Yet, Apple has already moved for permanent injunction against the US sales of eight more Samsung devices that the jury found to infringe on Apple's patents including the Droid Charge, Galaxy S 4G, Galaxy Prevail, Galaxy S2, Galaxy S2 Epic 4G and Galaxy. Apple made the argument that the injunction on the Samsung Galaxy 10.1 Tab should become permanent as well, but the district court lifted the preliminary injunction on October 2, 2012.

Although Apple won the jury verdict, it does not deserve permanent injunctions against Samsung proucts. The Patent Act declares that patents should have the attributes of personal property including "the right to exclude others from making, using, offering for sale, or selling the invention." The courts often look to injunctive relief for all forms of intellectual property infringement cases. The US Supreme Court stated in eBay Inc. v. MercExchange L.L.C. that "the decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion." In the same case, the Court stated that a plaintiff seeking a permanent injunction in a patent infringement case must satisfy a four-factor test. The plaintiff must demonstrate:

That it has suffered an irreparable harm or injury;
That remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
That, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and
The public interest would not be disserved by a permanent injunction.

The Supreme Court rejected an automatic grant of permanent injunctions in patent infringement cases once infringement and patent validity have been adjudged.

Using the framework established by the Supreme Court, we proffer that Apple probably should not be granted a permanent injunction against any of the Samsung devices. Apple appears to be fighting a marketplace battle within the courtroom by even requesting such a remedy. Has Apple truly suffered irreparable harm? Or are they simply fighting for market dominance? Samsung tablets only make up about 5 percent of the current tablet market, while Apple's iPads make up 68 percent of current tablet sales. In the cell phone arena, however, Samsung is making a steady sweep. Samsung sells nearly twice as many cell phones as iPhones. Conversely, it is important to note that consumers know that there is only one iPhone. iPhones only vary in memory size, and not in type, while Samsung concurrently sells over 30 touch screen cell phone varieties, carried by all major cell phone carriers. None of the Samsung devices are carbon copies of the iPhone but each may include one or two infringing parts in a device made of hundreds of components.

The court is certainly able to provide adequate legal remedies. Any harm to Apple can be repaired through ongoing licensing agreements for any Samsung devices that currently infringe on Apple's patents. This permits Samsung to continue to sell the devices that have already entered the market place, prevents Samsung from entering new infringing devices into the market place and allows Apple to reap the financial benefits of their patents. Discounting this option seems to make this motion more of a retributive endeavor.

Granting a permanent injunction would not alleviate hardship for Apple, while conversely rendering a great one upon Samsung. Most of the Samsung devices in question have been on the market for a significant period of time. Moreover, the lifespan of cell phone and tablet technology is relatively short. Sales peak and decline within a year. New iPhones are released annually and Samsung releases new phone models even more frequently. Most of the damage caused by Samsung's infringing devices will have greatly diminished by the time the district court decides this permanent injunction motion. Furthermore, since so many consumers already have the infringing Samsung devices and those consumers have the right to resell those devices, the phones in question would remain in the market place despite a permanent injunction. What Apple is asking for would have little effect on the actual infringing devices but would serve as a major embarrassment for Samsung. Essentially, Apple is not simply asking for relief but for Samsung to be punished — the $1 billion payout was not enough.

A permanent injunction against the Samsung devices could easily be considered a disservice to the public interest. Many people have spent hundreds of dollars on the Samsung devices and an injunction would discourage the availability of replacement parts and devices. Samsung most likely offers warranty contracts for their devices. An injunction could result in breaches of potentially millions of contracts with consumers and cell phone carriers. During the second quarter of 2012, Samsung sold 50 million devices. Thus, it follows that the public has a direct interest in the availability of these devices. Additionally, the aggressive litigation that Apple has engaged in could have a chilling effect on the technology market which would also hurt the consumer in the end.

As both jurists and consumers of the technology, we recognize that this legal process can prove slow when pitted against the constantly evolving nature of technology. When the dust has settled, the appeals have been adjudged and the damages have been paid, the Samsung Galaxy will merely be heralded as a relic from another time.

Sent from an Apple iPad.

Natasha Major is treasurer of the Intellectual Property Student Association and a student attorney in the Intellectual Property and Trademark Clinic. She graduated from Cornell University, where she majored in government with a concentration in latino studies.

Marcus Moore is an Associate at Mercer Law Associates, PLLC. He specializes in entertainment and intellectual property law. He also serves as Associate Counsel for Flo Brands, LLC. He graduated from City College of New York, where he majored in jazz violin performance.

Suggested citation: Natasha Major and Marcus Childs Moore, Apple v. Samsung: Injunction-Junction, What's Your Function? , JURIST - Dateline, Oct. 4, 2012, http://jurist.org/dateline/2012/10/major-moore-apple-samsung.php.

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

Pussy Riot's Implications for Freedom of Expression

2012-10-02T16:15:00Z

JURIST Guest Columnist Karlanna Lewis, Yale Law School Class of 2015, uses the Pussy Riot incident to draw comparisons between Russia and the West in terms of their restrictions and protections of freedom of expression...

Pussy Riot, a Russian feminist punk band, is the subject of much Western attention; however they are not as famous for their music, as for the legal implications of their thinly veiled political trial. On February 17, 2012, five members of the band protested Russian President Vladimir Putin's re-election in Moscow's Christ the Savior Cathedral.

Though the punk prayer lasted less than two minutes before the band was removed from the church, three band members were arrested and tried for hooliganism. The presiding judge, Marina Syrova, refused to hear much of the defense testimony. The trial opened on July 30, 2012 and closed with a verdict for the prosecution on August 17. The three young women — Nadezhda Tolokonnikova, Maria Alekhina and Yekaterina Samutsevich, were found guilty of promulgating religious hatred and sentenced to two years of hard labor.

The impact of Pussy Riot's conviction, which they have now appealed, is not confined to Russia. Following the delay of the band's scheduled October 1 appeal hearing, with little hope or likelihood of a more favorable ruling, a Russian proverb comes to mind — custom is stronger than law. Russia has long been a country of impenetrable customs and traditions and Western criticism has done little to alter Russian officials' opinions of the verdict.

If the band had gone to trial in the US, the defendants' actions would likely have been protected under the First Amendment of the US Constitution. Another possibility is that a summary judgment may have dismissed the case in Pussy Riot's favor. In Russia, while freedom of expression is an ostensible right, like the right to vote in the March 2012 elections, that right is increasingly in name only.

Across the world, artists including Madonna and Green Day have been expressing their solidarity for the band and outrage at what appeared to be a pre-decided trial. In reaction to Madonna's Moscow concert this summer, for which she wore Pussy Riot's name on her back and told the audience she prayed "for their freedom," Russian Deputy Minister Dimitry Rogozin criticized the singer's morality.

While some of the country's lack of protections for women and political dissidents might be excused as part of the recovery from communism, Pussy Riot's trial has drawn attention to the oligarchical political system in Russia's pseudo-democracy. Should we consider Russia a democracy if the elected presidential candidate ran effectively unopposed and, during his time as prime minister, altered laws and the balance of power to allow himself to continue to exercise the highest level of control?

In a country where the president enjoys little popular support yet expressing dissidence, even in artistic forms, can lead to imprisonment, the broader implications for global human rights and democracy are grim. Russia's imbalance of rights extends past issues of expression. For example, despite superficial protections, rape is not a crime in instances in which the victim willingly enters the rapist's home. Along similar lines, in Russia's major newspaper, Pravda, which is translated as truth, published stories are often of questionable factual status.

In the West, and especially in the US, we take for granted our right to free speech — not to mention our right to a just and speedy trial. But when a British journalist, Guy Adams, was recently suspended from Twitter for criticizing NBC, is the West really much better? On one hand, Pussy Riot's trial underscores the strange intersection of law and media. A key prosecution witness was not present at the trial but expressed his offense at the video footage he later saw. On the other hand, Pussy Riot's trial highlights the role of the law regarding religion. As in the US, the law considers it has a duty to protect the religious freedoms of its citizens. Yet in the case of Pussy Riot, religion has been used as a means to protect the state and its laws from any subversion or challenge.

Pussy Riot's musical protest occurred when no services were in session and few people were in the church. The punk prayer's words were not what a reasonable person would consider blasphemous — "Our Lady, chase Putin out!" Orthodox Christian witnesses took offense at their fashion choices. Yet few would consider it reasonable to jail someone for an etiquette faux pas, intentional or not, such as entering a church with bare arms.

Conformity is still the norm in Russia. Though the ideal Soviet citizen model is no longer upheld, what these three bold young women are really being persecuted for is stepping out of line. Their expressed dissatisfaction with Putin as a leader was open and clear. If the band had been around during the Tsarist era it might have expressed its grievances with the ruling few through allegory, but today's stimulated world necessitates a more direct approach for concerns to be heard. The band's defense was as straightforward as the message that initiated the dispute. Nadezhda, the youngest of the three and a philosophy graduate whose name means hope, held fast to the band's political motivations in a written statement. The performance was "a protest against illegitimate elections and Patriarch Kirill's endorsement of President Putin," wrote Nadezhda.

Pussy Riot's conviction is not only about the trio of strong women but about the state of artists and anyone with a voice around the world. In What Is Art?, Tolstoy wrote: "[A]rt is not the artist's handicraft, but is the transmission of feeling the artist has experienced." If the judge's holding in Pussy Riot's case is a sign of future rulings, the status of artists and therefore citizens, in Russia looks dire. Russia is often criticized for its cyclical patterns of oppression and containment of power. Pussy Riot's 2012 conviction recalls hundreds of similar artistic persecutions under the socialist regime of the Union of Soviet Socialist Republics (USSR). Artists were to support Soviet ideals through their work and many fled to escape such artistic restrictions.

Russia's artistic tradition has been strong, but with such a restrictive environment and without the benefits of state patronage, the future might see fewer Tchaikovskys and Dostoevskys and even a fourth wave of artist emigration. If Tolstoy is correct, Pussy Riot may produce even stronger art after their unjust treatment in Russia's courts. By virtue of their defiance, Pussy Riot has brought attention to the inadequacies of Russia's human rights protections and the prevalence of corruption through not only the political, but also the legal system.

In the West, rather than re-opening criticisms of Russia, we might instead draw our attention to our own protected right of freedom of speech. May we ensure, where we have the power, that the First Amendment thrives in this new global age, that "Congress shall make no law... abridging the freedom of speech," and that we exercise that right against any who would alter the notion of a true and free democracy.

Karlanna Lewis is a member of the Yale Ballet Company. Her poetry, fiction and non-fiction works have been published in various outlets. She is fluent in Russian, Latin and Spanish.

Suggested citation: Karlanna Lewis, Pussy Riot's Implications for Freedom of Expression, JURIST - Dateline, Oct. 2, 2012, http://jurist.org/dateline/2012/10/karlanna-lewis-pussy-riot.php.

This article was prepared for publication by Michael Micsky, an associate editor for JURIST's student commentary service. Please direct any questions or comments to him at studentcommentary@jurist.org

Reconsidering Russia's Pussy Riot

2012-10-01T17:15:00Z

JURIST Guest Columnist Rebecca Buckwalter-Poza, Yale Law School Class of 2014, posits that while Pussy Riot advocates much-needed overarching political and legal reforms, it also needlessly tramples current laws in so doing...

On February 21, 2012, five members of the female rock group Pussy Riot invaded Moscow's Cathedral of Christ the Savior, a Russian Orthodox Church, to protest the reelection of Russian President Vladimir Putin. They performed for less than a minute before being ejected. The rockers used those seconds to belt out a song titled "Holy Shit," criticizing Putin and the Russian Orthodox Church — as well as indicting the Virgin Mary.

Soon after, three members of the band — Maria Alyekhina, Yekaterina Samutsevich and Nadezhda Tolokonnikova — were arrested. This August, the trio was prosecuted and convicted for hooliganism motivated by religious hatred. On August 17, 2012, the women were sentenced to two years of labor in the notoriously harsh Russian penal system. The prosecution and sentence have been denounced as extreme and incomprehensible. Even the US embassy in Russia called the sentences "disproportionate." But the global rush to judgment has neglected the nuances of the case. The sentences are out of proportion but the convictions were not unanticipated — or entirely undeserved.

Many of Pussy Riot's lyrical criticisms are substantive. Its disruptive tactics, however, are less commendable. Pussy Riot's tactics include everything from extreme profanity to public masturbation in the windows of local shops. They bragged to the St. Petersburg Times: "We come and take over platforms that don't belong to us and use them for free." Fifty-one percent of Russians polled actively disapproved of the group while just six percent found anything favorable or sympathetic about the group.

The Russian state response was legally and politically predictable — even overdue. Since November 2011, the 12-member group repeatedly has staged tortious (and worse) illegal public performances. Pussy Riot's first major run-in with police came in January 2012 when members of the band were detained and fined after setting off a smoke bomb in front of Saint Basil's Cathedral. The premise of their performances is trespass; their product, nuisance; their stage stunts, littering. The exceptionally volatile and blasphemous February punk prayer stunt and trial were merely the denouement of this saga. Before and after the March arrests, Pussy Riot dared authorities to take action. Purporting to conceal their identities, the musicians wore balaclavas and went by nicknames in interviews but they routinely demonstrated publicly. Their disguises, brilliantly colored dresses, tights and masks, appear to have been performance stunts rather than precautionary.

In their August 2012 song about the trial, the free members of Pussy Riot roared, "Seven years is not enough, give us eighteen!" in reference to the maximum possible sentence each defendant could receive. The rockers rebuffed offers of support from foreign performers, professing "the only performances we'll participate in are illegal ones." The Russian justice system routinely convicts defendants of crimes and doles out sentences that appear antiquated or draconian to international observers. In addition to hooliganism, the Russian penal code forbids swindling and insult, distinguished from slander and defined as the denigration of the honor and dignity of another person. Compulsory works and corrective labor frequently appear among sentences.

More fundamentally, the assumptions and intentions of the Russian justice system differ greatly from those of the US and its counterparts. The US espouses a concept of justice that Russia does not share. Americans enjoy systematic recognition of the right of innocence until guilt is proven. In its best moments, the American system demonstrates uniformly forward-looking policies that focus on incapacitation, rehabilitation and deterrence.

The Russian justice system engenders retributive prosecution, conviction and sentencing. While the constitution of Russia nominally guarantees the presumption of innocence, the state's practices defy that tenet. Prosecutors successfully appeal to judges behind closed doors to extend defendants' detentions — as with the Pussy Riot trio, who spent six months in pre-trial detention. Former US Ambassador William Burns described Russia's penal institutions as "combin[ing] the country's emblematic features — vast distances, harsh climate and an uncaring bureaucracy — and fus[ing] them into a massive instrument of punishment."

The Pussy Riot trial propelled the band into the spotlight, making them an instant cause célèbre worldwide. Yet their path to notoriety highlights the contrast between two models of justice. These musicians deviate from the tamer protest rock genre with which they have been linked in foreign media — by design and because of Russia's culture and justice system.

Protest rock has been a powerful genre of music for the last five decades — and a particularly vital force in the feminist movement for the last three decades. But the cultural context of the riot grrrl movement in the US — in reference to 1990's feminist rock — was radically different from the climate in which Pussy Riot performs. Commenting on Russian society, a member of Pussy Riot explained, "Riot grrrl was closely linked to Western cultural institutions, whose equivalents don't exist in Russia."

Pussy Riot's version of civil disobedience mirrors, rather than rejects, the Russian justice system. The justice system is harsh but Pussy Riot has responded in kind with a destructive, confrontational style of protest. Yet even in so doing — and while diverting attention to the band rather than the Russian people — Pussy Riot has succeeded in sparking a more progressive discourse on justice within Russia.

Aware of the negative impressions of Russia stemming from the Pussy Riot trial, Prime Minister Dmitri Medvedev used the vocabulary of rehabilitation in the first public statement from an official since the conviction. Medvedev said that he is satisfied with the six months the women have already served — and that further imprisonment would not be productive. He stated: "What has already happened — that this well-known group of girls have been in prison quite a long time — is a very serious punishment for everything they did, regardless of the sentence."

Parole or release is the nearest resolution in the Pussy Riot cases. Neither Pussy Riot's provocation nor the predictability of the state's response lessens the injustices perpetrated by the Russian government. Conversely, the validity of Pussy Riot's protests does not legitimate its disruptive course of action. These tensions create a legal impasse — and make future conflicts of a similar nature inevitable.

Rebecca Buckwalter-Poza is a writer and former political consultant. She has worked on political campaigns and projects on five continents as well as co-authoring 40 More Years: How Democrats Will Rule the Next Generation with James Carville. Buckwalter-Poza is also an Institute for Social and Policy Studies Fellow at Yale. Follow Buckwalter-Poza on Twitter @rpbp

Suggested citation: Rebecca Buckwalter-Poza, Reconsidering Russia's Pussy Riot, JURIST - Dateline, Oct. 1, 2012, http://jurist.org/dateline/2012/10/rebecca-buckwalterpoza-pussy-riot.php.

Poker: Game of Skill Tested by a Game of Chance

2012-09-26T16:00:00Z

JURIST Guest Columnist Gerard Dondero, University of Nevada William S. Boyd School of Law Class of 2013, argues that while the recent New York district court decision in US v. Dicristina represents a change in the legal analysis of games of skill, most US states still utilize outdated judicial standards to evaluate gambling...

A recent opinion out of the US District Court for the Eastern District of New York has been making waves. Most US courts confronted with the question of whether poker is a game of skill under the predominance test tend to categorize poker as a "game of chance." However, Judge Weinstein in US v. Dicristina found poker to be a "game of skill," which represents a break from typical analysis. More noteworthy is that the court considered — and was sympathetic to — the concept of skill manifesting in the "long-run." Most noteworthy is that the court used this long-run skill factor to conclude that, even in a single hand, skill predominates chance in poker. So what's not to like?

Despite the obvious victory for poker players, most state courts utilize the dominant factors — or "predominance" — test in determining whether a particular activity is gambling. Even in light of the New York opinion, the predominance test remains mired in uncertainty. In its most general form, the test is whether, in a mixed game of skill and chance, chance predominates skill. If so, then the game is one of chance. While the calculation is straight-forward for an all-chance game like dice, legal analysis gets dicey when the game has elements of both chance and skill. The test lacks guidance for how to evaluate mixed games, even though courts designed the test for that very reason. So, while the New York decision manages to clarify one instance of legal application, the predominance test still fails at generating consistent results or even providing a clear guideline for the legal line between chance and skill. All of this legal murkiness may be fine in a more static area of law, but scholars have noted that so-called mixed games — ones that combine elements of chance and skill — make up the majority of real games. Without a clear test, the amount of inconsistent results will continue to multiply.

The good news is that, through this opinion, a helpful approach to the predominance test becomes possible. First, after determining that the Illegal Gambling Business Act was ambiguous, the court decided that only games "predominated by chance" were considered gambling under the statute. Essentially, the court used the predominance test. In breaking down its particular formulation of the predominance test, the court focused on game elements within a player's control. While a few state courts have hinted indirectly at this analysis, several more have been content to rely on tradition and more superficial examination of a game's rules.

Further, the court stated that poker is a game dominated by skill — even in the context of a single hand — although hard evidence of this may only appear over the course of several hands. The court seemed to implicitly recognize that the proper unit to analyze is the smallest unit where all elements [PDF] of gambling intersect. In the context of a poker cash game, that would be a single hand. Other state courts also undertake a similar analysis.

The problem with demonstrating long-run skill without tethering it to this atomic game element where prize, chance and consideration issue is one of discretion. How can a court decide how long the long run should be? Is it 100 iterations? One thousand? Ten thousand? Other commenters [PDF] have become aware of this seemingly arbitrary cut-off and have even gone so far as suggesting doing away with the predominance test altogether. So, while long-run skill can serve as evidence of skill predomination, it should not be dispositive.

Next, the New York opinion also did away with another problematic trend in developing predominance test state law. The court correctly noted that a player being subject to defeat because of chance does not make the game one of chance — an important point, because multiple states have ruled otherwise. Indeed, the folly of this approach is immediately apparent: how can a game be mixed if the player is not subject to defeat by chance at least sometimes?

However, the court, in its zeal to showcase the prior point, fudged the difference between chance and accident recognized under the predominance test. It probably overlooked the distinction because it was interpreting a federal statute and not officially deploying the predominance test. The court discussed chance's possible effect on games like golf, referring to a "lucky bounce." But, in the predominance test precedent, courts have accounted for such a phenomenon.

Since the earliest cases, courts deploying the predominance test have carved out a distinction between unforeseen actions that interfere with an intended result and external forces relied on to produce the result. The former are accidents, and the latter are — legally, at least — chance. So, when a runner stumbles because of a random gust of wind or a golfer's shot is thrown off by the same, these are accidents according to the law.

Honing in on this distinction makes the court's analysis clearer. In focusing on what elements of a game a player controls, the court is attempting to discern a key fact about the underlying game. Does the chance within the game operate to simulate an accident or does the chance operate within the game operate to produce the final result?

However, instead of taking this route, the court instead relied on a common formulation and battle-axe of the predominance test: the amount of skill must determine more than 50 percent of the outcome. The problem with this 50 percent approach is that it leads to absurd results. If two individuals were competing with one another at flipping coins, then a court would conclude that the coin-flipping game was one of chance. But, what if a certain flick of the wrist could increase the odds of heads or tails from 1:2 to 98:100? Technically, under the rigid formulation above, it would not matter. The game is still one of chance because chance is responsible for half the result.

By funneling its analysis through the 50 percent filter, the court was forced to take some other questionable turns. For example, the expert had to concede that only a small minority of players would ever outperform their raw odds due to skill. This concession is not good for a predominance test analysis. Under the predominance test, the court must look at what an average player can do. But because the New York court set such a high standard, it could only point to a small sample size to bolster or make persuasive its conclusion.

The court backed its analysis by arguing that many players losing is apposite and takes nothing away from the quantity of skill demanded by the game. Perhaps in the realm of federal law, but under the predominance test, it is quite inapposite. The court pointed to chess and stated that though many registrants competed, only a few won. However, the question is not how many winners a game can have. The question is whether the game is one of skill. In chess, it's readily apparent that the skillset — the strategies, the moves — is available to the average player. Games that feature a large element of chance are murkier when it comes to this average player feature.

So, while the New York opinion is an imperfect guide for states in the pursuit of refining the predominance test, it features several helpful points of analysis. States have made several missteps in analyzing predominance. The New York opinion addressed the most serious threats to clarity: being subject to defeat by chance does not make the game one of chance, the game should be one of skill in a single iteration and a rigorous analysis of the game's rules — not a superficial look at traditional perceptions of the game — are all necessary for a clear analysis. I hope the states actually put the New York opinion to use in refining the predominance test, but I am not sure if I would bet on it.

Gerard Dondero is a Notes Editor for the UNLV Gaming Law Journal. Dondero has participated in the Clark County Moot Court Competition and is a member of the Sports and Entertainment Law Association.

Suggested citation:Gerard Dondero, Poker: Game of Skill but Tested by a Game of Chance, JURIST - Dateline, Sept. 26, 2012, http://jurist.org/dateline/2012/09/gerard_dondero_gambling_law.php.

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

I'm a Convention, Hear Me Roar

2012-09-24T20:20:00Z

JURIST Guest Columnist Eileen Ward, St. John's University School of Law Class of 2013, is the author of the fifth article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. Ward offers insight about why the US should adopt the Convention on the Elimination of Forms of Discrimination Against Women...

What do Iran, Sudan, Somalia and the US all have in common? It is not that women who are sentenced to death are raped before being executed — that is exclusive to Iran. It is not that genital mutilation is commonplace — that is Somalia. It is not that women wearing knee-length skirts can be arrested and lashed — that is Sudan. It is, however, that these three countries and the US are the only remaining nations in the world — other than two small island nations — that have not ratified the Convention on the Elimination of Forms of Discrimination Against Women (CEDAW). One might think that the US would be embarrassed to stand alongside countries that are often known for their gross atrocities against women but apparently not. Why is it that the US has failed to take a seemingly simple, yet immensely important, step by not ratifying this convention? The US has tried to justify this disgrace by focusing on other hot-topic issues, claiming that CEDAW would conflict with our current domestic policy regarding abortion, an Equal Rights Amendment (ERA) and prostitution. Although these issues are controversial, using them as a roadblock to ratifying CEDAW is absolutely unfounded.

The CEDAW was adopted by the UN General Assembly on December 18, 1979, and went into effect with the fastest entry into force of any human rights treaty up to that date. Since then, 187 countries have ratified CEDAW, including every other democracy in the world. The CEDAW focuses on eliminating gender discrimination and promoting freedoms in the political, economic, social, cultural and civil realms. Additionally, it contains provisions establishing reporting requirements and a committee to monitor the progress of signatory states. Countries including Australia, South Africa and Uganda, as well as US states such as New York, California and Massachusetts, have incorporated CEDAW provisions into their constitutions to promote equality for women. As for the US, although US President Jimmy Carter signed CEDAW in 1980 and the Senate Foreign Relations Committee has twice voted on it favorably, the US Senate has never voted on CEDAW (due mostly to the Senate prioritizing other items on its agenda). By signing but not ratifying CEDAW, the US shows a halfhearted commitment to women's rights. With 17 female senators, a female secretary of state, three females serving on the US Supreme Court and countless other women in powerful positions, the time is ripe to set our priorities straight and ratify CEDAW.

So how does the US justify this humiliating lack of commitment to its female citizens? Opponents of CEDAW argue that ratification would lead to the promotion of abortion, the establishment of an ERA and the legalization of prostitution. Again, while the use of taboo topics is often successful in quashing the establishment of any new policy, here it is completely baseless. Taking a look at Article 12, Article 14, Article 3 and Article 6 of CEDAW — which deal with abortion, equal rights and prostitution respectively — it is clear that the treaty neither advocates for such changes nor has it been interpreted by other countries to do so.

In fact, nowhere in CEDAW is the term abortion ever mentioned. As Julia Ernst pointed out in her 1995 article, U.S. Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, the Clinton administration straightforwardly stated: "[N]othing in Article 12 requires State Parties to guarantee access to abortion." Additionally, the use of the term "family planning" in Article 12 is not code for abortion, as evidenced by staunch pro-life advocate President George W. Bush who used the term to refer to the right of "every couple to plan the number and spacing of their children" before the Senate Committee on Foreign Relations. Additionally, countries that have prohibited abortion, such as Ireland and Chile, have ratified CEDAW without reservations to those articles, proving that the abortion argument is severely lacking. In summation, nowhere in CEDAW is abortion mandated and the US would not have to change its current policies to properly adhere to the treaty.

Regarding the ERA argument and Article 3 of CEDAW, it is even easier to argue that ratifying CEDAW would not necessitate changes in the US's current domestic legislation. The US has used policies, such as Title IX, to promote equality for women in all aspects of society by affording women the same opportunities that men enjoy. Title IX does not eliminate distinctions between men and women. Rather, it celebrates them and ensures that any distinctions made are not used to discriminate against either sex. The "advancement of women," as demanded by Article 3, cannot be interpreted to mean that women must be treated in the exact same way as men. Not only is it unnecessary to create an ERA upon ratification of CEDAW, it is not even suggested.

And, finally, CEDAW is not some subterfuge to globally legalize prostitution. Although there is no US federal law that criminalizes prostitution, all states except Nevada currently have anti-prostitution statutes in place. By affording protections to prostitutes, CEDAW does not mandate that states legalize prostitution as a profession; it insists that states that have legalized prostitution establish protections to ensure that these women are not exploited. It states that if prostitution is considered a valid profession, prostitutes must be afforded the same employment rights as any other legitimate profession. Additionally, the array of states that have ratified CEDAW, including states that have not legalized prostitution — like the UK — and those that have legalized it — such as France — show that the purpose of Article 6 is to protect prostitutes where the profession is recognized, not to force countries to legalize prostitution.

Getting these forced arguments against CEDAW out of the way, what should the US do now? It is imperative that the US ratify CEDAW immediately. Standing alone with Sudan, Somalia and Iran frustrates the purpose of our active domestic and international agenda. The time is ripe for the US to reinvigorate itself as a staunch advocate of women's rights and reaffirm to all women that it believes in equality of opportunity for women and men alike. The country would only benefit from becoming a party to CEDAW. Our domestic legislation would be augmented, and our international fight against gender discrimination would be strengthened. And, finally, our women would be protected.

Eileen Ward is the Managing Editor of the Journal of Civil Rights and Economic Development. Ward's experience includes internships with the Honorable A. Kathleen Tomlinson of the US District Court for the Eastern District of New York, the Elder Law Clinic at St. John's University School of Law and the International Senior Lawyers Project.

Suggested citation: Eileen Ward, I'm a Convention, Hear Me Roar, JURIST - Dateline, Sept. 24, 2012, http://jurist.org/dateline/2012/09/eileen-ward-womens-rights.php.

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

The Erosion of Constitutional Liberties: Voter ID Laws and Gun Restrictions

2012-09-19T17:10:00Z

JURIST Guest Columnist Katie McLay, University of Pittsburgh School of Law Class of 2014, is an officer for the University of Pittsburgh School of Law's Federalist Society. She compares and contrasts the current controversy surrounding two salient constitutional issues: gun control and voter ID laws...

Over the past few weeks, the news cycle nationwide — and certainly within my home state of Pennsylvania — has been dominated by limited topics. Two of those topics are of direct constitutional relevance: voter ID regulations and restrictions on gun rights.

Recently, the Pennsylvania General Assembly passed a law that would require voters to present one of several prescribed forms of identification in order to be issued their ballot for the November election. Legal scholars, politicians, as well as the public, were infuriated by the law's passage and they have closely followed subsequent litigation.

In Second Amendment discussions, it was the tragic shootings in Aurora, Colorado, that sparked national debate about the propriety of gun possession and the constitutional right of the private individual to carry firearms. The constitutional implication for both issues seems relatively obvious. Pennsylvania voters argue that their right to vote is or will be unduly burdened. Advocates for Second Amendment liberties recall District of Columbia v. Heller and McDonald v. City of Chicago, two recent US Supreme Court cases that explicitly recognize the right of the individual to own and carry firearms.

People are crying out in defense of constitutional liberties in response to both occurrences, but nearly all of those people are upset about the loss of only one or the other. For example, the American Civil Liberties Union (ACLU), an organization involved in challenging voter ID laws in several states, is no fan of expansive Second Amendment liberties. Conversely, many of the legislative leaders who supported the new voter ID law in Pennsylvania also either passed or amended legislation to expand Pennsylvania's castle doctrine. It seems that support of voter ID laws and support of less stringent gun regulation are mutually exclusive beliefs.

But why?

The Pennsylvania legislature may have had many potential rationales for enacting the voter ID law. These reasons include cutting down on voter fraud (the existence of which, under the rational basis test, need not be proven) and ensuring that only US citizens can participate in free and fair elections. The judiciary may even recognize Rep. Mike Turzai's now famous admission that the law will allow presidential candidate Mitt Romney to win the state as a rational reason. After all, the courts have recognized equally corrupt rationales in the past. In 2004, the US Court of Appeals for the Tenth Circuit recognized in Powers v. Harris that protection of one business to the detriment of others by the government was a legitimate governmental interest.

Let us assume for a moment that the rationale behind the law was the assurance that only US citizens would be allowed to vote. It seems reasonable enough, especially with the long-standing national debate about immigration. What we have now is the requirement of proof that an individual is legally eligible to vote in order to actually exercise that right. Corrupt motivations aside, opponents of the bill should struggle to take issue with this rationale. Consider, again, the mutual exclusivity point.

Post-Aurora, gun control proponents had new fodder for their vehement advocacy of restrictions on gun ownership. Rep. Ed Perlmutter, the congressman from Aurora, immediately pledged a revival of the Assault Weapons Ban. The nation's preeminent anti-Second Amendment organization, the Brady Campaign, asked supporters to sign a petition agreeing that the shooting was "yet another tragic reminder that we have a national problem of easy availability of guns in this country." Note, as many have, the firearms restrictions in place in Aurora at the time of the shooting.

In my home state of Pennsylvania, citizens are required to jump through a few hoops in order to exercise their Second Amendment liberties. To purchase a gun, they need to submit to a background check, register the firearm and — of particular interest to the discussion — present state-issued identification and provide a valid Social Security number. In order to obtain a concealed carry permit, citizens must present state identification, an application fee and two character references before submitting to another background check.

Additionally, they must verify that they are legally eligible to exercise the rights provided under the Second Amendment. By submitting to a background check, they also verify for the government that they are fit to own and carry firearms and would present no danger to society. Such danger may be indicated by a history of mental illness or a criminal background. Neither the US Constitution nor the Pennsylvania Constitution states that only the socially or mentally fit are permitted to carry. In fact, Article 1 § 21 of the Pennsylvania Constitution provides that the "right of the citizens to bear arms in defense of themselves and the State shall not be questioned." In Pennsylvania, the legislature has put qualifiers on our right to bear arms.

Why, then, are Pennsylvania citizens up in arms (no pun intended) when the legislature puts qualifiers on other constitutionally guaranteed liberties?

The US and Pennsylvania Constitutions both protect the rights of the individual to vote in a free and fair election. Like many other rights defined by the constitutions, however, the legislature is empowered to place restrictions and qualifiers on those rights no matter how clearly they are defined. It has been done with the Second Amendment's right to bear arms, the First Amendment's right to free speech (time, place and manner restrictions) and now with the right to vote. One political philosophy or party is not more correct than another. All are to blame for the constant and often subtle erosions of individual liberties in our state and our country.

Individual liberties are not political issues and they should never be advocated by one side either according to the ebbs and flows of the political process or only to advance an idea of how society should look. The Constitution is — and should continue to be — blind to preference and political philosophy. The US Supreme Court has been clear that the right to bear and keep arms is guaranteed in by the Second Amendment. But our legislatures and the public that voted for them seem willing to accept restrictions on that right that are far and above what is written in the text of the Constitution. Once one right is restricted based on possession of valid identification, the door is opened for others to be so restricted.

Remember also that the Second Amendment requires that a fitness standard is met in order to exercise those constitutional liberties recognized by the US Supreme Court. Here's hoping that this one door stays closed. The fact is that if we accept restrictions on one of our explicit constitutional liberties, then we accept restrictions on them all.

Katie McLay is a JD/MBA candidate at the University of Pittsburgh School of Law and Katz Graduate School of Business. She is a member of the Journal of Environmental and Public Health Law. She holds a Bachelor of Arts in Communication Studies and Political Science from Grove City College.

Suggested citation: Katie McLay, The Right and Left's Erosion of Constitutional Liberties: Voter ID Laws and Gun Restrictions, JURIST - Dateline, Sept. 19, 2012, http://jurist.org/dateline/2012/09/katie-mclay-voter-ID-guns.php.

Taking Drug Tests Out of the Welfare Equation

2012-09-17T18:10:00Z

JURIST Guest Columnist Frank Barile, St. John's University School of Law Class of 2013, is the author of the fourth article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. Barile explains the negative impact of a new Florida law on welfare law and policy...

The US is on the brink of what could be a watershed moment for welfare law and policy. Florida and the American Civil Liberties Union (ACLU) are currently engaged in litigation regarding the constitutionality of a Florida law that, if upheld, would require all applicants of Temporary Assistance for Needy Families (TANF) to consent to and pay for drug testing. Nearly two dozen other states are considering similar proposals. These laws have garnered substantial public and political support — even Republican presidential hopeful Mitt Romney called the law an "excellent idea," despite a federal trial judge's holding that "there is a substantial likelihood" that Florida's law is unconstitutional.

Arguably the most tragic aspect of these laws is their tendency to perpetuate the stereotype of the poor being lazy, dependent drug abusers who are all "milking" hard-earned tax dollars for drug money. Unfortunately, the only thing that has been routinely "milked" is the stereotype itself — mostly by politicians and supporters of these hurtful and degrading policies for the purpose of drumming up public support. However, the most recent statistics in Florida have found that the state's TANF population was actually using drugs at a rate much lower than that of the Florida population at large, and there is no reason to think that the results would be significantly different elsewhere. So why the continued perpetuation of this falsehood?

The answer is simple, really: this misconception needs to be true in order for Florida — and potentially other states that enact such laws — to withstand a constitutional challenge in a court of law. In order to prevail on Fourth Amendment grounds, a state must show that its policy of mandatory drug testing is warranted by the existence of a "special need" — a circumstance that has only been found to exist when "public safety is genuinely in jeopardy." Frankly, without evidence that TANF applicants use drugs at a higher rate than the general population, let alone at a rate great enough to constitute a concrete danger to public safety, there is no reason why Florida's law and similar laws should survive a constitutional challenge.

The special needs exception to the Fourth Amendment is what separates certain government employees from the rest of the population with regard to drug testing, and it is generally the answer to the popular question: "If I have to take a drug test for my job, why shouldn't somebody who receives government handouts have to take a drug test too?" Under the special needs exception, if your government job requires you to carry a gun, fly an airplane, drive a bus or operate heavy machinery, the government is constitutionally allowed to ask you to take a drug test and with very good reason. But what the government may not do is require you to take a drug test simply because you have fallen on hard times and cannot afford to put a hot meal on your child's plate. The same constitutional rights that prevent the government from drug testing farmers who receive agricultural subsidies, college students who receive grants and scholarships, senior citizens who receive Social Security benefits and business owners who receive tax credits, apply with equal force to applicants for public assistance. The degree of protection afforded by the Fourth Amendment against suspicionless government searches does not vary depending on how much money a person makes.

Proponents of such laws risk making those who ask their government for help even more vulnerable to the effects of poverty, thereby increasing the likelihood that the economy will continue to suffer. Instead of supporting policies that impose barriers to employment and independence, states should be adopting measures that seek to build bridges to such goals. For example, "screen-and-refer" methods, such as those in place in New York, Maryland and Idaho, have proven to be more accurate, less degrading and less costly than across-the-board drug testing. These screens are typically administered via pencil and paper and also seek to identify alcohol abuse and other mental health problems — problems which would be undetectable through a standard urinalysis. Other states such as New Jersey have implemented an intensive case management referral system wherein each substance-dependent client receives an individualized treatment plan according to his or her needs and meets with a case manager weekly.

In July 1996, US President Bill Clinton challenged Americans to view the welfare system "not as a chance to demonize or demean anyone, but instead as an opportunity to bring everyone fully into the mainstream of American life." The popularity of laws that treat the indigent class as if it suspects they are drug abusers is proof not only of the fact that this country has failed to meet President Clinton's challenge, but proof that we are still quite far from it. Stigmatization and exclusion are not the answers. States should instead be adopting programs that focus on rehabilitation and independence. In doing so, they would make a positive and lasting impact on the lives of impoverished individuals and their families, while setting this country back on the path towards economic prosperity and social equality.

Frank Barile is the Executive Notes and Comments Editor of the Journal of Civil Rights and Economic Development. His work experience includes internship positions with Vishnick McGovern Milizo LLP and the Honorable Denis Hurley of the US District Court for the Eastern District of New York.

Suggested citation: Frank Barile, Taking Drug Tests Out of the Welfare Equation, JURIST - Dateline, Sept. 17, 2012, http://jurist.org/dateline/2012/09/frank-barile-welfare-policy.php.

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

Despite Claims, ICC Prosecution of Bush, Blair Would Be Illegal

2012-09-13T15:15:00Z

JURIST Guest Columnist Jesse Oppenheim, Brooklyn Law School Class of 2013, offers legal context to Archbishop Desmond Tutu's recent opinion in The Observer...

On August 28, word leaked out that Archbishop Desmond Tutu had pulled out of an international summit in South Africa because he refused to share a platform with the "morally indefensible" former UK Prime Minister Tony Blair. Days later, Tutu published an opinion article in The Observer explaining his position. The Iraq war "has destabilized and polarized the world to a greater extent than any other conflict in history," wrote Tutu, who was awarded the Nobel Peace Prize in 1984 and the Presidential Medal of Freedom in 2009. Tutu also commented that "in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague." Despite the qualifier that we do not, in fact, live in a more consistent world, many have interpreted Tutu's words as calling for the International Criminal Court (ICC) to arrest and try former US President George W. Bush and Blair for leading the invasion of Iraq. Such an interpretation of Tutu's comments indicates a fundamental misunderstanding about the reach and laws of the ICC; bringing such charges would likely be illegal.

First, it is unclear what crimes would be brought against Bush and Blair. Presumably, advocates for such an indictment would seek to charge Bush and Blair for the crime of aggression in a manner similar to the Tokyo War Crimes Tribunal of 1946. However, the Rome Statute, which grants the ICC its powers, currently lacks a codified crime of aggression despite the 2010 Kampala Review Conference's consensus adoption of such a definition — only one nation, Liechtenstein, has since ratified that definition. As Article 5 subsection 2 of the Rome Statute currently reads:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Even if such a provision were fully adopted and ratified today, the ICC would still be unable to prosecute Bush and Blair. Article 22 of the Rome Statute codifies the principle of nullum crimen sine lege: "A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court." Because the 2003 invasion of Iraq would predate a present adoption of a crime of aggression, Article 22 would preclude such a prosecution. Furthermore, Article 24, the non-retroactivity statute, dictates that "[n]o person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute" and that "in the event of a change in the law applicable to a given case prior to a final judgment [sic], the law more favourable [sic] to the person being investigated, prosecuted or convicted shall apply."

There is, however, a possible argument that the crime could be considered jus cogens — literally, "crimes of thought" — universal atrocities which are prohibited and should be prosecuted regardless of statutory restraints. Such an argument proved persuasive in the Special Court for Sierra Leone's prosecution [PDF] of Sam Hinga Norman, where the use of child soldiers was found to be prosecutable despite a lack of codified statutory law. However, given the Rome Statute's codification of other jus cogens — such as genocide, apartheid and torture (child soldiers are prohibited by Article 8, subsection b, part xxvi) — the canon of statutory interpretation expressio unius est exclusio alterius (the express mention of one thing excludes all others) would likely be found to be controlling, thus precluding charges of aggression against Bush and Blair for commencing the Iraq War.

Article 22 raises even further statutory bars to a prosecution of Bush by requiring that the crime occur within the jurisdiction of the court. Article 12 recognizes that, as a precondition to the exercise of jurisdiction of the ICC, the Court may exercise its jurisdiction only if one or more of the States involved are Parties to the Rome Statute or have accepted the jurisdiction of the Court. In other words, a state must submit itself to ICC jurisdiction. Neither the US nor Iraq has ratified the Rome Statute and, therefore, short of a UN establishment of a Special Tribunal, Bush is beyond the jurisdiction of the ICC. Even if either the US or Iraq ratified the Rome Statute today, such a prosecution would be precluded by Article 11, subsection 2: "If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State."

The UK, however, is a party to the Rome Statute; but, it is still highly unlikely that Blair will be prosecuted by the ICC. Under the principle of complementarity embodied in the Preamble, Article 1 and Article 17 of the Rome Statute, a case is only admissible to the jurisdiction of the ICC when the defendant is citizen to a nation that is "unwilling or unable genuinely to carry out the investigation or prosecution." Surely, the UK has a sufficient criminal justice system in place to prosecute crimes, so the question becomes that of unwillingness. Article 17, subsection 2 establishes protocols to determine unwillingness; however, it is unlikely that the ICC will find that the UK has been unreasonably unwilling to prosecute a crime which had not yet been codified at the time it was allegedly committed — a prosecution that would contravene the ICC's own principles and violate Article 22.

Therefore, an ICC prosecution of Bush and Blair is not only highly unlikely but would also most likely be illegal. Presumably, Tutu knows this. He is a highly skilled and experienced diplomat — hence his qualifier that we live in an inconsistent world — and it is neither the place nor the intent of this article to debate the virtues of Tutu's position, the Iraq War, the ICC or any juxtapositions thereof. This article is intended merely to state that those who call for the utilization of Tutu's declaration as a starting point for an ICC indictment of US and UK leaders simultaneously seek an unprecedented and illegal expansion of the court's power.

Jesse Oppenheim is a Notes and Comments Editor of the Brooklyn Journal of International Law.

Suggested citation: Jesse Oppenheim, Despite Claims, ICC Prosecution of Bush, Blair Would be Illegal, JURIST - Dateline, Sept. 13, 2012,http://jurist.org/dateline/2012/09/jesse-oppenheim-desmond-tutu.php.

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

Marrying Religious Freedom and Civil Rights in New York

2012-09-11T18:00:00Z

JURIST Guest Columnist Michael Pinto, St. John's University School of Law Class of 2013, is the author of the third article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. Pinto explains why expanding the available exemptions to the New York Marriage Equality Act to include individuals could have a detrimental effect on civil rights...

Mention the expression freedom of religion to any political junkie and you are bound to get a rise out of him. Actually, whenever you mention politics and religion in the same sentence, you are bound to get someone's blood boiling. But it seems as if these two subjects have been intertwined in the news a lot these days, appearing in stump speeches of presidential candidates or in front of Congressional committees. The Empire State tackled an issue nearly a year ago that intertwined politics and religion when the New York state legislature passed the Marriage Equality Act, granting same-sex couples the right to marry.

An eleventh-hour provision to the bill ensured its passage in the Senate, where similar bills had failed in previous years. This provision exempted certain non-profit organizations, religious institutions and their affiliates from accommodating or providing services for a same-sex marriage. For instance, the Knights of Columbus, a Roman Catholic fraternal organization, would not be forced to rent its social hall for a same-sex wedding. The exemption also provides that no civil suit can be brought against any of the exempt organizations. Furthermore, the groups' refusal to provide accommodations and services will not have an effect on any benefits these organizations receive from the government, either in the form of monies or other exemptions.

While religious leaders hailed this exemption as protecting the religious freedom of these organizations, some claimed the exemption did not go far enough. Individuals, they argued, should be covered under the exemption just like the religious institutions. As the law stands now, individuals can be sued for refusing to provide services for a same-sex marriage. Those advocating for an exemption for individuals pointed to a variety of lawsuits in other jurisdictions against individuals sued for refusing to provide services that they claimed violated their religious beliefs. For example, outside of New York, individuals have been sued for discrimination in refusing to photograph a same-sex marriage commitment ceremony, operate on a lesbian patient and treat a homosexual in therapy. While this may seem to make a strong case for extending the exemption to cover individuals, including individuals will likely cause more harm than good in the long run.

Allowing individuals the option to refuse to lend their services for same-sex marriages could be used as a veil for bigotry and discrimination. A homophobic business owner, who never participated in a religious service in his life, could claim his deeply held religious beliefs in refusing to grant his services for a same-sex wedding, when the real reason is his bigoted discriminatory views against homosexuals. This also poses a problem for courts that would have to determine whether or not an individual has deeply held religious views on same-sex relationships, especially given the sheer number of religions and sects. By restricting the exemptions to religious organizations and institutions tied to religious organizations, courts will not have to look to an individual's subjective beliefs — simply whether or not the organization being sued falls within the exemption created by the legislature.

Increasing the exemptions to cover individuals could also lead to problems in other areas of the law. For example, there may be Christians or adherents of other religions who view abortion as a much greater sin than same-sex marriage. Expanding this exemption to cover individuals might lead religious freedom advocacy groups to lobby for exemptions for any conduct that an individual finds reprehensible based on his religious beliefs. This scenario could lead to pharmacists refusing to sell birth control pills to women and doctors refusing to perform life-saving surgery to unwed mothers. Both contraception and premarital sex are deeply condemned by the Catholic Church, and other religious institutions, but it would not justify allowing individuals to pick and choose whom they deal with, determined by who leads a life closest to the tenets of their faith.

"What about government workers?" some asked. If an exemption were to cover individual business owners, surely it would have to include individual government workers who find homosexuality contrary to their religious beliefs. An exemption to government workers, however, would be even more devastating than an exemption to individual business owners would be. An elected town clerk from the Finger Lakes region of New York refused to sign all same-sex marriage licenses because she believed God has condemned homosexuality as a sin. She then arranged for a deputy to sign such marriage licenses by appointment. Civil rights advocates have called this unacceptable, especially considering how gays have fought for so long to achieve marriage equality. Now the couple is handed an undue burden of finding either a deputy clerk, or a clerk from another town, to process their marriage papers.

What good does it do that the government giving same-sex couples the right to marry if no one is willing to acknowledge that right? It would be reasonable that a Catholic Church would refuse to perform a same-sex marriage; but is it reasonable that a florist not provide centerpieces or a photographer not provide pictures? It would be even more alarming if the government official refuses to acknowledge the couple's right to marry. If all these individuals and organizations were exempt from civil suits, what recourse would be left for same-sex couples?

While some New Yorkers did push for an individual exemption, the legislature was right to extend it only to religious institutions and their affiliates. The exemption has created an appropriate balance between civil liberties and religious freedom. States looking to grant same-sex couples the right to marry should look to the model set forth by the New York legislature.

Michael Pinto is the Associate Managing Editor of the Journal of Civil Rights and Economic Development. His internship experience includes positions with the Honorable Judith McMahon of the New York Supreme Court and with Mischel & Horn, P.C.

Suggested citation: Michael Pinto, Marrying Religion and Civil Rights in New York, JURIST - Dateline, Sept. 11, 2012, http://jurist.org/dateline/2012/09/michael-pinto-civil-rights.php.

Bahrain Independent Commission of Inquiry: Rule of Law in Post-Conflict Resolution

2012-09-05T16:25:00Z

JURIST Guest Columnist Ryan Suto, Syracuse University College of Law Class of 2013, discusses how the Bahrain Independent Commission of Inquiry acts as a method of rule-of-law in post-conflict resolution and acknowledges its limitations...

On February 14, 2011, Bahrain joined the Arab Spring when thousands of protesters filled the streets, demanding economic reforms from King Hamad bin Isa al-Khalifa and the government. Over the course of a month the scene worsened, as violence and police responses escalated. As the protests continued, a sectarian element became apparent: while the government is headed by the Sunni al-Khalifa family, a majority of protesters were Shia. A contention of the opposition is that the ruling Sunni elite is responsible for politically and economically disenfranchising the kingdom's Shia majority.

Some officials have described the government response as panicked, as many protesters were jailed and quickly convicted of crimes. The world watched the events unfold, as many human rights observers denounced the Bahraini government's handling of uprisings and protests. While smaller protests and incidents in Bahrain littered the international news, the most extensive police crackdowns subsided.

In July 2011, the king ordered the beginning of the National Dialogue, a forum consisting of 300 seats filled with individuals and organizational representatives chosen by the government. While the Dialogue had a promising beginning, al Wefaq, the major opposition party in parliament, pulled out of the talks because the group felt they were numerically unrepresented. Al Wefaq held 18 out of 40 seats in the lower elected house of parliament but only five seats out of about 300 in the National Dialogue. Because of this, despite producing a wealth of information regarding the concerns of Bahrainis, the National Dialogue is largely viewed as a failure.

Earlier in June of that year the king ordered the establishment of the Bahrain Independent Commission of Inquiry (BICI), chaired by Professor M. Cherif Bassiouni, as an independent investigative commission. The BICI was tasked to independently analyze and evaluate the actions of the government of Bahrain during the protests and to make recommendations regarding future government actions.

On November 22, 2011, that body produced a report [PDF] which criticized many government actions and made concrete recommendations on government reform regarding human rights. Possibly due to this criticism, all major stakeholders in Bahrain have viewed the BICI as truly independent and have accepted the resulting report, which made recommendations such as:

• The creation of independent bodies to investigate claims of human rights violations;
• The compensation of victims of human rights violations and their families;
• The review of convictions and sentences of individuals detained during the unrest;
• Changes to the training of security forces and legal personnel to promote and protect human rights;
• Increased human rights and diversity education; and
• The restoration of destroyed Shia mosques.

In late May 2012, Bahrain underwent its second Universal Periodic Review by the UN Human Rights Council wherein calls to implement the BICI recommendations were ubiquitous. It is clear that the BICI report focused on institutional failings of the government branches involved with quelling the protests, as well as functioning of the judicial system. Notably, the document did not address why individuals and groups were protesting in the first place, made no political recommendations regarding the structure of parliament or the status of Bahrain as a kingdom, had little to say in the way of programs for national reconciliation nor discussed the station of foreign workers in Bahrain, who make up 54 percent of the nation's population. Moreover, while the catalyst for the BICI was only in early 2011, sectarian clashes are not foreign to Bahrain. As such, many of the issues brought to the fore of national consciousness laid dormant in the minds of Bahrainis for decades.

After the recommendations were accepted by the government of Bahrain, a follow-up committee was created to track the implementation of the BICI recommendations. That body released its first report on March 20, 2012. Any honest assessment of the government's response to the BICI recommendations will show that the response has been slow and steady. The follow-up committee has stated that Bahrain has made, inter alia, the following efforts:

• All criminal charges related to the protests have been reviewed by civilian courts and cameras have been installed in order to record any custodial investigations;
• A vast majority of employees dismissed for absenteeism during the protests have been reinstated;
• Five mosques are nearly rebuilt, work continues on nine others and eight more are slated to begin; and
• The government has engaged in efforts to compensate victims' families and victims of torture.

While the government of Bahrain cannot be comprehensively viewed as a single bloc (an important divide exists between hardliners and softliners), actions toward the implementation of the BICI recommendations have lagged behind international criticism — it is as if the government acts only to alleviate pressure from important external actors. Regardless of the reasons, many of the government responses are real and can be seen throughout the small kingdom.

While the BICI and its implementation are both far from perfect, the format itself is promising. The creation of the BICI by the Bahraini government and the acceptance of its findings by both the government and major opposition groups have created a common ground upon which any national reconciliation or dialogue may stand. Indeed, one can argue that a flaw of the National Dialogue effort in July 2011 was that it preceded the findings of the BICI. This is because the report includes a narrative which gives Bahrainis a common and objective account of the events following February 14, 2011, as well as recognizing that wrongs have been committed. This is a crucial step as the BICI has placed a mirror in front of Bahrain, allowing the government to honestly reflect and to make possibly fundamental changes. However, as of now the government has only reflected when its eyes have been held open by the scrutiny of the international community.

Presently, the international reconciliation toolkit includes truth commissions (The Truth & Reconciliation Commission in South Africa), indigenous conceptions of justice (Gacaca courts in Rwanda) and political process (Loya Jirga in Afghanistan), consociational democracy (Bosnia & Herzegovina and Iraq), constitutional development (Nepal) and civil society stewardship (Northern Ireland). While not all of these examples are viewed as successes, each offers a lesson for future reconciliation efforts. Bahrain now offers another alternative: the independent commission. After a conflict, an independent commission, such as the BICI, can create an objective narrative of the events of the conflict, assess causes and offer solutions. While the BICI itself neglected causes and narrowly focused on institutional reforms within the structure of the government, it can be taken as a precedent for future independent commissions with more expansive mandates. Thus an independent commission, along with other post-conflict reconciliation policies, can point the way toward transitional justice and institutional capacity building.

Unfortunately for Bahrain, due to the restraint of the report itself even full implementation of the BICI recommendations cannot complete their national reconciliation needs. Deep and serious questions remain unanswered in Bahrain such as what constitutes an acceptable level of economic and political inequality. What form of governance do Bahrainis want? What does it mean to be Bahraini? These questions will need to be addressed both within Bahraini society and the Bahraini government's treatment of those residing within the kingdom's physical boundaries. While Crown Prince Salman bin Hamad bin Isa al-Khalifa represents a moderate force within the government which is most able to navigate compromises between the hardliners and the opposition, he and his faction have soured with respect to reconciliation efforts due to early drawbacks. Without his leadership and major concessions from either the opposition forces or the hardliners, reconciliation prospects remain bleak in Bahrain.

Ryan Suto is a JD/MA in International Relations Candidate at Syracuse University. He worked with the UN Development Program in Manama, Bahrain this past summer.

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

Suggested citation: Ryan Suto, Bahrain Independent Commission of Inquiry: Rule of Law in Post-Conflict Resolution, JURIST - Dateline, Sept. 5, 2012, http://jurist.org/dateline/2012/08/ryan-suto-bahrain-resolution.php.

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

Fisher v. University of Texas: A Guide to Effective Public Discourse

2012-09-03T16:00:01Z

JURIST Guest Columnist Lena Martinez-Watts, St. John's University School of Law Class of 2013, is the author of the second article of a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. She offers insight into the delicate background and issues in Fisher v. University of Texas...

The US Supreme Court has agreed to hear Fisher v. University of Texas, a case about the use of race as a factor in college admissions. Although the court will examine a unique admissions system, wherein the bulk of students are admitted under a race-blind admissions program called the Top 10 Percent Plan, most commentators are framing the issues broadly and speculating that the Court could use this case to mark the end of affirmative action in college admissions.

This case means that race and the educational achievement gap are going to be all over the news and the subject of public discourse dressed up as a violent turf war. As a result, many aspects of this case and affirmative action in general may be misconstrued. It is worthwhile to clarify certain points regarding Fisher in order to have effective public discourse.

The Beginning of Affirmative Action

The term "affirmative action" emerged in 1961 as part of President John F. Kennedy's Executive Order 10925, which addressed discrimination and segregation in the workplace. Three years later, the Civil Rights Act of 1964 addressed discrimination and segregation in the context of education, effectuating Brown v. Board of Education by withholding funds from public schools and federally assisted programs that failed to devise effective desegregation plans. Although the Act did not employ the specific term affirmative action, it developed the concept of affirmative action policy by acknowledging that proactive steps were necessary to comport with new laws. As President Lyndon B. Johnson elaborated in 1965:

You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair ... This is the next and the more profound stage of the battle for civil rights.

In 1968, the Court reinforced this notion that passive desegregation plans were inadequate, holding that "freedom-of-choice" did not satisfy the requirements set forth for desegregation and that "school boards ... operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch."

Holistic File Review

Although the Top 10 Percent Plan fills the bulk of seats at the University of Texas, this is not the portion of the admissions system that is being challenged. What is being challenged is the use of the "holistic file review" system to fill the remainder of seats. This system is used all over the country and is modeled after the Harvard Plan, which the Court has applauded as a fair use of race in college admissions.

A holistic file review system means that admissions officers are looking at more than SAT scores and GPAs to determine who should be awarded admission. Here, officers read admissions essays and recommendation letters first to assess an applicant's writing skills and then to understand the context in which his or her scores were earned.

These factors that officers examine to understand context include: extracurricular involvement, awards and honors, community service, leadership and personal circumstances. The personal circumstances category is subdivided into a second set of factors: family socio-economic status, school socio-economic status, family commitments and race. Taking this list of factors into account, admissions officers provide a comparative analysis of applications to choose the stronger, more qualified applicant. The procedure shows that race is only one factor in a subset of other factors that admissions officers consider. Knowing exactly how race is being used will hopefully inform misunderstandings about what affirmative action means in practice.

Typically, arguments about Fisher revolve solely around quotas, point systems and socio-economic disadvantage. However, legal arguments must revolve around the framework used by the University of Texas, with due consideration to these other relevant factors.

Socio-economics and Re-Defining Merit

Many people argue that the focus in admissions should be on socio-economic status instead of race because socio-economic status can be an important indicator of disadvantage. Luckily, the holistic file review system already takes this into account in the personal circumstances category. However, the use of socio-economic arguments to re-define merit begs the question: why is there no outrage that socio-economically disadvantaged kids are receiving admissions preferences?

In this context, most people see merit in the fact that poor kids have to work for many of the things that rich kids are handed. Similarly, there is merit in the fact that students of color make their achievements while dealing with the persistent effects of both past and present discrimination. At the same time, however, socio-economic status does not serve as an adequate proxy for race because people of color continue to suffer racial discrimination regardless of their income level.

Exclusion

Progressives often talk about "groups that have been historically under-represented in higher education." This articulation ignores the reasons students of color are under-represented in higher education. The achievement gap didn't just happen; it is a product of the fact that students of color were historically excluded from higher education.

The institution of slavery relied heavily on the systematic de-education of black slaves. From the onset, slaves were loaded onto slave ships in patterns that intentionally isolated them from others who spoke their language. This de-education process continued on American soil through laws that forbid slaves from learning to read or write and made it illegal for others to teach them. After the abolition of slavery, legislatures were free to work from the foundation laid by de-education to preclude blacks from voting. At the same time that they were systematically excluded from the voting process, blacks were also physically excluded from society by legislation that reserved certain physical space for "whites only." In Plessy v. Ferguson, the Court upheld these "Jim Crow" segregation laws, determining that "separate but equal" facilities were constitutional.

Decades later, the Federal Housing Administration (FHA) began to employ facially discriminatory practices that produced a new brand of institutionalized discrimination. During the redlining era, the FHA held, as policy, that the presence of even two or three black families could undermine property values. Geographically, this state-sponsored discrimination created largely segregated communities in which suburban whites were allowed to reap the financial benefits of homeownership while urban blacks were limited to renting apartments which afforded no such equity.

By understanding the background of the issues underlying Fisher v. University of Texas, it is possible to have an effective conversation about the case without encouraging argumentative discourse.

Lena Martinez-Watts serves as an Articles Editor on the Journal for Civil Rights and Economic Development. She has worked as a legal intern at the Latino Justice PRLDEF, the Native Hawaiian Legal Corporation, the Community Service Society and the Legal Aid Society.

Suggested citation: Lena Martinez-Watts, Fisher v. University of Texas: A Guide to Effective Discourse, JURIST - Dateline, Sept. 3, 2012, http://jurist.org/dateline/2012/09/lena-martinez-watts-affirmative-action.php.

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

Tobacco and Contraceptives: Legislative Preemption

2012-09-02T15:10:00Z

JURIST Guest Columnist Matthew Cavedon, Emory University School of Law Class of 2015, compares the Department of Health and Human Services's contraception mandate to the Food and Drug Administration's attempt to regulate tobacco...

As 24 lawsuits filed against the Department of Health and Human Services's (HHS) contraception mandate wind their way through the courts over the next year, there will be plenty of controversy regarding religious liberty, sexual rights and public health. However, Congress has already passed 11 laws protecting the conscientious objection to contraception and abortion. Thus, the HHS cannot simply promulgate a contraceptive mandate when the legislative body has already expressed its intent. This situation is comparable to the tobacco industry in 2000, when the US Supreme Court held that the Food and Drug Administration (FDA) could not regulate tobacco when Congress had passed six statutes regulating the substance.

Many people were surprised by HHS Secretary Kathleen Sebelius's decision to force everyone to pay for contraceptives — including several that induce abortions — as part of President Barack Obama's preventive care mandate. Congress has passed statutes protecting the rights of people with conscientious objections to contraception and abortion. Some of these statutes protect medical students from having to carry out or observe abortions during their training. Others protect Medicaid-managed care providers from having to refer patients for abortions. Another class of these statutes protect federal employees from having to purchase contraceptive coverage in their health plans. How can HHS force Americans to support things that Congress says they should be free to reject?

People made a similar objection in 1996 when the FDA tried to regulate tobacco. Under a law passed in 1938, the FDA could regulate "drugs" and "devices." The law broadly defined drugs and devices as things "intended the affect the structure or any function of the body." Tobacco plausibly fits that definition. The FDA was legally required to prove that a drug or device was safe before letting it stay on the market. Since the FDA could not do that for tobacco, its regulation would have led to a ban.

The FDA had never held that it could regulate tobacco under the 1938 law and Congress had repeatedly refused to give it the authority to do so. In fact, Congress had passed six independent statutes to regulate tobacco in the meantime, including one which regulated its labeling and advertising. Congress made it clear that it wanted to keep tobacco on the market, something the FDA could not allow if it also regulated tobacco.

This legal showdown ended in 2000 with the Supreme Court's ruling in FDA v. Brown & Williamson Tobacco Corp. The Court stopped the FDA's proposed regulation and found that Congress had created an overall regulatory scheme in the other statutes — one that an FDA ban on tobacco would overthrow. Congress creates the law in the American system of government, so neither the FDA nor any other unelected agency could decide on its own to ban tobacco.

The HHS contraception mandate is similar to the FDA's proposed tobacco regulation in many ways. Just as the FDA plausibly defined tobacco as a "drug" or "device," HHS can plausibly claim that contraception is a kind of "preventive care." However, the FDA could not ban tobacco when Congress showed that it wanted tobacco to stay in the market; similarly HHS cannot mandate contraceptive coverage when Congress has shown that it believes in strong conscientious protection. Congress repeatedly refused to give the FDA jurisdiction over tobacco. Following this pattern, it has rejected 21 bills over the past 15 years that would have given HHS the authority to mandate contraceptive coverage.

Most importantly, the Patient Protection and Affordable Care Act tells HHS to respect the other laws Congress has passed. "Nothing in this Act," it reads, "shall be construed to have any effect" on federal laws protecting conscientious objection to contraception and abortion. Congress knew it had expressed its intent elsewhere, and it told HHS to take heed. Simply by reading the text of the Act, HHS should have recognized that Congress wanted people to stay true to their consciences.

American democracy depends on the separation of powers, and Americans know that their elected Congress makes the law. Executive agencies do not have the authority to decide controversial questions, be they tobacco bans or contraception and abortion mandates, once Congress has settled them. The HHS mandate runs against Congress's intent in the same way that the FDA's attempt to regulate tobacco did. It should meet a similar fate.

Matthew Cavedon is a student at the Emory University School of Law and the Candler School of Theology. He is pursuing dual JD and Masters of Theological Studies degrees through Emory's Center for the Study of Law and Religion.

Suggested citation: Matthew Cavedon, Tobacco and Contraceptives: Legislative Preemption, JURIST - Dateline, Sept. 2, 2012, http://jurist.org/dateline/2012/09/matthew-cavedon-contraceptive-regulation.php.

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

Expanding Inheritance Rights to Posthumously Conceived Children

2012-08-29T22:45:00Z

JURIST Guest Columnist Daniel Perrone, St. John's University School of Law Class of 2013, is the author of the first article of a 15-part from the staffers of the Journal of Civil Rights and Economic Development. Perrone examines the lack of provision for posthumously conceived children under New York inheritance laws...

In New York, some innocent children, namely, posthumously conceived children, are suffering the consequences of the state legislature's failure to sync the law with technology. Advancements in biotechnology have enabled people to conceive genetically related children, even after their own death. These children, however, face the dire consequence of being denied inheritance rights, referred to herein as a "class gift," merely because of the circumstances surrounding their birth. Admittedly, posthumously conceived children do not come into the world the way the majority of children do, but they are children, who should be granted the same rights, benefits and privileges that other children enjoy.

New York's current class gift statute is called the Estates, Powers & Trusts Law (EPTL). EPTL § 2-1 defines a class gift as a disposition of property to persons who are identified by a common characteristic (i.e., by a group label), such as children or issue. As described, this group label seems to extend class membership to posthumously conceived children. For instance, EPTL § 2-1.3(a)(3) extends class membership to non-marital children. Since posthumously conceived children are non-marital children, they appear to qualify as class members under this section. Likewise, EPTL § 2-1.3(a)(2) extends class membership to children who are conceived before disposition of the class gift becomes effective. Thus, it is a logical assumption that posthumously conceived children, who are conceived prior to disposition, are to be included as class members under this provision.

A literal interpretation of EPTL § 2-1.3, however, proves to be problematic. EPTL § 2-1.3 was enacted in 1966, long before the legislature could have anticipated that children would, or even could, be conceived after one of their parents has died. In fact, In re Martin B., the only New York case to directly address this issue expressly states that EPTL § 2-1.3 was not intended to extend class membership to posthumously conceived children. Rather, EPTL § 2-1.3 is interpreted to limit class membership to children who were conceived during their parents' lifetimes.

To correct this inequity, the EPTL must be amended to extend class membership to posthumously conceived children. However, things are not quite that simple. Certainty and finality in determining class membership are critical to society's interest in the orderly administration of estates. Accordingly, estates cannot be held open for years to allow for the mere possibility that a child may be conceived at some indeterminable point in time. On the other hand, donative intent, as well as the rights of posthumously conceived children, deserves respect and must be taken into account by the legislature.

To adequately strike a balance between these competing interests, the legislature should focus on the inherent nature of class gifts. To create a class gift, EPTL § 2-1.3 requires only that a group label describe the beneficiaries. Thus, the legislature should codify a presumption that the creator of a class gift intends to include, as class members, all those who fall within that group label, including posthumously conceived children. This does not, however, prevent the creator of a class gift from explicitly excluding such children. Rather, it simply creates a default provision that balances the competing interests.

In addition to creating a presumption of intent, the legislature should treat posthumously
conceived children just like any other class member. Since posthumously conceived children are non-marital children, they should have to meet the requirements set forth by EPTL § 2-1.3(a)(3). That section requires non-marital children to establish maternity or paternity to qualify as class members and, therefore, posthumously conceived children should have to do so as well. Similarly, to qualify as class members, posthumously conceived children should have to abide by EPTL § 2-1.3(a)(2), which requires children to be conceived before disposition of the gift becomes effective.

Together, these requirements strike a balance between the competing interests discussed above. On the one hand, they provide for certainty and finality in the administration of estates by closing class membership once disposition of the gift becomes effective. On the other hand, they reflect the fact that posthumously conceived children are, and should be treated, just like any other class member. Thus, these requirements eliminate the possibility that donative intent may be frustrated, while providing posthumously conceived children with the same rights, benefits and privileges that other children enjoy.

There are, of course, those who argue that granting posthumously conceived children
inheritance rights might lead to fraud and other forms of unethical behavior that could negatively impact the distribution of estates. To address this problem, the legislature should simply require the deceased parent's written consent to the posthumous use of his or her genetic material.

Additionally, the deceased parent should be allowed to limit the persons who are allowed to use his or her genetic material to conceive a child, thereby reducing any potential for fraud or abuse by those wishing to conceive a child strictly for inheritance purposes.

The legislature must keep in mind that posthumously conceived children are still children. These children are born after one of their parents has died, which is burdensome enough as it is. The law should not add to that burden by denying these innocent children the right to inherit.

Daniel Perrone is the Editor-in-Chief of the Journal of Civil Rights and Economic Development. His experience includes internships with Kramer, Dillof, Livingston & Moore, St. John's University School of Law's Elder Law Clinic and the New York State Supreme Court. He earned a Bachelor of Arts in political science from St. John's University in 2010. Currently, Perrone interns for the Honorable A. Kathleen Tomlinson in the US District Court for the Eastern District of New York.

Suggested citation: Daniel C. Perrone, Expanding Inheritance Rights to Posthumously Conceived Children, JURIST - Dateline, Aug. 29, 2012, http://jurist.org/dateline/2012/08/daniel-perrone-inheritance-rights.php.

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

Michigan's Off-Reservation Casino Battle

2012-08-13T14:45:00Z

JURIST Guest Columnist Gerald Carr, Michigan State Univeristy College of Law Class of 2013, examines the challenges that the Sault Ste. Marie Tribe of Chippewa Indians face over building a casino on land that is not part of their reservation...

The Sault Ste. Marie Tribe currently operates five casinos in Michigan's Upper Peninsula (UP). The Sault Tribe has proposed plans for a sixth casino — the Lansing Kewadin Casino — which would be located far from the Sault Tribe's land base in Lansing, Michigan. City officials approved plans for the casino and the Sault Tribe amended its gaming ordinance, but Michigan Attorney General Bill Schuette opposes this sixth casino. Schuette asserts that the Sault Tribe's use of settlement funds from the Michigan Indian Land Claim Settlement Act (MILCSA) to acquire land for the casino would allow the Sault Tribe to open a casino anywhere in the US.

Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988 with the purpose of providing a "statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal government." Among the myriad regulations that the IGRA lays out for tribal gaming operations, there are two specific requirements that directly impact tribes seeking to establish casinos off their reservations. First, all Indian gaming must be conducted on Indian lands. Indian lands are defined as "lands within a tribe's reservation, or lands over which an Indian tribe exercises governmental power and are either held in trust by the federal government for tribes or held by any Indian tribe or individual subject to restriction by the US against alienation." The second requirement is the prohibition against gaming "on lands acquired by the Secretary [of the Interior] in trust for the benefit of an Indian tribe after October 17, 1988."

There are three exceptions to these restrictions:

Gaming is permitted on after-acquired lands "within or contiguous to the boundaries of the reservation of the Indian tribe."
Lands can be taken into trust as part of a land claim settlement, the establishment of an initial reservation for a newly acknowledged tribe or as restored lands for a restored tribe.
Gaming is permitted on after-acquired lands through the process called the "two part" determination, in which the Secretary, in consultation with and with the concurring approval of the Governor of the state that the gaming will be in, "determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community."

The Sault Tribe will acquire the land for the new Lansing casino with funds from MILCSA, which paid judgments awarded by the Indian Claims Commission. Section 108 of MILCSA [PDF] directs the Sault Tribe to create a trust fund known as the Self-Sufficiency Fund (Fund), the principal of which consists of the Tribe's share of the judgment and any additional funds the Tribe may add. MILCSA places restrictions on the use of these funds depending on the ultimate source of the money — principal, interest or some other form of income. For instance, the principal of the Fund must be used for economic development or development of tribal resources, but may not be issued as per capita payments. Interest and other income from the Fund may be issued as per capita payments, or used for educational, social welfare and cultural purposes. Both the principal and income components of the Fund may be used to consolidate or enhance tribal lands, but how lands will be held differs depending on which funds are used. According to the plan, "[a]ny lands acquired using amounts from the Self-Sufficiency Fund shall be held as Indian lands are held." Alternatively, "lands acquired using amounts from interest or other income of the Self-Sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe." These two funding sources provide different options for a favorable Indian lands determination.

The Sault Tribe may seek a determination that the phrase "held as Indian lands are held" means that any lands purchased from the Fund principal would be held in restricted fee. Restricted fee lands allow Indian tribes to hold legal title, but prohibits the tribe from alienating or encumbering the land without the consent of the federal government. When tribes purchase land in this manner, the restriction on alienation can attach either by operation of law if a treaty or statute directs or generally through the Non-Intercourse Act of 1790, which prohibits the transfer of Indian land without Congressional approval. Not all land purchased by a tribe, however, is automatically held in restricted fee. If the acquired land is outside the borders of a reservation, then the restriction against alienation will not automatically attach. This, coupled with the prohibition on gaming on off-reservation land held in fee simple, generally prevents tribes from simply purchasing land and gaming on it. If the Sault Tribe gains a determination that the language of MILCSA indicates that land purchased with the Fund principal would trigger the restriction against alienation to attach, then any land purchased in this manner would be gaming-eligible Indian land. Additionally, the Department of the Interior has interpreted 25 U.S.C. § 2719(a) to mean that the prohibition against gaming on after-acquired lands does not apply to lands held by a tribe in restricted fee, but would apply to trust land. Under this theory, the Sault Tribe would be uniquely positioned to bypass many of the obstacles to Indian gaming.

Lands purchased by the Sault Tribe with "interest and other income" from the Fund "shall be held in trust by the Secretary for the benefit of the tribe." Trust lands are Indian lands and therefore gaming-eligible. The statutory authority of the secretary of the interior to take lands into trust on behalf of Indian tribes is provided by 25 U.S.C. §§ 465 and 467. The regulations established under this statute contemplate two types of trust land acquisitions — discretionary and mandatory. Discretionary acquisitions must meet the requirements of 25 U.S.C. § 151.10, for on-reservation acquisitions, or 25 U.S.C. § 151.11, for off-reservation acquisitions. But where Congress has mandated that certain land be taken into trust for a tribe, that statute controls rather than §§ 465 and 467 and the regulations at § 151. Therefore, tribes showing that their proposed trust land acquisition is mandated by statute need not satisfy the requirements of the National Environmental Policy Act or demonstrate a need for the land. Moreover, the secretary of the interior lacks discretion and cannot consider jurisdictional issues, the concerns of local governments or the distance between the proposed site and existing tribal lands. These considerations, however, may arise under other inquiries related to gaming approval.

The types of statutes that may be considered mandatory acquisition statutes include federal recognition or restoration acts and land claim settlements such as MILCSA. A mandatory trust acquisition occurs when a statute directs the secretary of the interior to take certain lands into trust for a tribe and, thus, removes the usual secretarial discretion. This is indicated by statutory language [PDF] that uses the imperative word "shall" and includes specificrestrictions on the secretary's discretion. Such restrictions have been interpreted to include geographical limitations, the absence of adverse legal claims to the property or the occurrence of a specific condition. This is a key issue for the Sault Tribe. They may avoid the after-acquired lands prohibition by arguing that MILCSA is a land claim settlement, but a determination that MILCSA is a mandatory trust statute is more challenging because the act contains the word "shall" but specifies no additional restrictions on the secretary's discretion.

Before the Sault Tribe receives federal approval, the following questions need answers: Does MILCSA mandate that the secretary take into trust lands purchased with interest or other income from the Fund? If the land is purchased with principal from the Fund, will it be held in restricted fee by operation of law? Is the purchase of the Lansing property a consolidation or enhancement of landholdings, or other permissible use of the Fund? Finally, the Sault Tribe will have to demonstrate that they will exercise governmental authority over the Lansing casino site. Given these complex issues, the Sault Tribe's proposal is poised to set significant precedent in the evolving field of off-reservation gaming.

Gerald Carr is a third-year student in the Indigenous Law Program at Michigan State University College of Law. He holds a Ph.D. in Cultural Anthropology, specializing in the languages and cultures of Native North America.

Suggested citation: Gerald Carr, Michigan's Off-Reservation Casino Battle, JURIST - Dateline, Aug. 13, 2012, http://jurist.org/dateline/2012/08/gerald-carr-indian-property.php.

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

Palestinian Children's Health, Israel and White Phosphorus: Part I

2012-08-02T14:45:00Z

JURIST Guest Columnist Mais Qandeel, an LL.M. Graduate from the University of Pittsburgh School of Law, is the author of an eight-part series that explores which party should bear the legal responsibility of providing medical and health care for Palestinian children affected by Israel's use of white phosphorus bombs. This series will explore Palestinian history, the effects of white phosphorus use, the health care situation in the Gaza Strip, the protection of the international human rights and humanitarian law in the West Bank and Gaza Strip. Acknowledging the fundamentally contested nature of the history of Jewish and Palestinians inhabitants of the historical Palestine, Qandeel takes the perspective that Israel is an occupying power. In the first part of this series, Qandeel gives an introduction about her research and discusses the history of the Palestinian territories...

Thousands of articles have focused on global health, and, more specifically, have discussed the universal right to health care. International human rights law instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights state that all people have the right to life and the right to health care. The Convention on the Rights of the Child indicates a special protection for children and recognizes their rights to welfare and life. Moreover, the Fourth Geneva Convention and the Hague Regulations mandate military authorities to provide support to hostile states, including health care.

However, the right to health care for children living in the Gaza Strip is particularly complicated. The history of the Gaza Strip must be acknowledged in order to understand the controversy and complexity surrounding the area. Great Britain occupied Palestine from 1917 to 1948. On May 15, 1948, Great Britain left Palestine and Israel became a new state. Since 1948, Israel has occupied Palestine.

Shortly after the establishment of Israel, the Arab-Israeli War broke out, resulting in Israeli occupation of Palestinian land. As a result, almost 750,000 [PDF] Palestinians were expelled and became refugees. Israel displaced 77 percent of Palestinian land and Palestine was effectively wiped off the map. In 1967, Israel took control of the rest of the Palestinian territories. In 1994, the Palestinian National Authority (PNA) was established in parts of the Gaza Strip and parts of the West Bank. Until now, the PNA has had inadequate control of the divided parts of Palestine. Approximately 4,168,860 Palestinians live in the Gaza Strip and the West Bank — commonly known as the "Palestinian Territories." Most of the population of the territories are Palestinian Arabs along with a small number of foreigners. There are also significant populations of Israeli settlers in the West Bank. In fact, more than 214,000 [PDF] Jewish settlers, who have immigrated from around the world, live in the West Bank and the Gaza Strip. Furthermore, the International Court of Justice (ICJ), the UN General Assembly and the UN Security Council (UNSC) have all stated that Israel is an occupying power on Palestinian land. The Supreme Court of Israel has even admitted that Israel is an occupying power of the West Bank and the Gaza Strip, and therefore the Geneva Conventions are applicable.

Since 2006, the Gaza Strip has been blockaded. From December 27, 2008 to January 18, 2009, Israel began a series of airstrikes on the Gaza Strip under the pretext that Palestinian armed groups had launched rockets into southern Israel. Israel used white phosphorus bombs in response to these rockets, but it used the ordinance against innocent civilians. The airstrikes destroyed homes, killed hundreds and injured thousands. The Palestinian economy has been affected by the Israeli blockade and human rights have been violated. An insufficient supply of fuel for electricity has had a negative impact on health care, water access and agriculture — all of which has increased the level of poverty. As a result of all of this, the health care situation for Palestinian children has deteriorated.

Part II of this series provides an explanation of the white phosphorus bombs used in the Israeli airstrikes and their affect on children. It will also explore the nature of children's health care and the status of health facilities in the Palestinian Territories.

Mais Qandeel received her bachelor's degree in law from Al-Quds University in Palestine, in 2006 and her L.L.M. from the University of Pittsburgh School of Law in 2012. She worked for a year as a trainee lawyer at the Arab Bank, was a legal advisor for the Palestinian Red Crescent Society and also worked as a partner at the Ahmad Qandeel Law Office. Qandeel is the recipient of a Palestinian Rule of Law Program Fellowship, which is administered by the Open Society Foundation

Suggested citation: Mais Qandeel, Analysis of Palestinian Children's Health as a Result of Israeli Actions: Part I, JURIST - Dateline, Aug. 2, 2012, http://jurist.org/dateline/2012/07/mais-qandeel-palestinian-health.php.

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