Page 1

LJ

Loyola Journal LOYOLA JOURNAL A DIGITAL LAW STUDENT MAGAZINE

A DIGITAL LAW STUDENT MAGAZINE ISSUE NO. 22011 | FALL 2011 FALL

INSIDE THIS ISSUE CONSTITUTIOWNALITY OF THE INDIVIDUAL MANDATE

PERRY V. SCHWARZENEGGER AND PROPOSITION H8

THE VOID FOR VAGUENESS CONUNDRUM: IS CALIFORNIA’S BASIC SPEED LAW UNCONSTITUTIONAL?

VICTIMS OF HUMAN TRAFFICKING THOSE OFTEN FORGOTTEN IN THE FIGHT AGAINST HUMAN SLAVERY

CAN I VOTE ON YOUR MARRIAGE?


LJ Loyola Journal A Digital Law Student Magazine 919 Albany Street Los Angeles, CA 90015 Phone (949)291-0194 Fax (213-555-1234 Photo Credits All images from ThinkStock速


EDITOR’S NOTE PAYMON KHATIBI “Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui

officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim i veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor

incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cu consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum ”Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrdolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum. d est laborum.

Paymon Khat ibi Editor-In-Chief


LOYOLA JOURNAL | THE TEAM


LOYOLA JOURNAL DIGITAL LAW STUDENT MAGAZINE

THE TEAM

ANITA MORADIAN is a graduate of Loyola’s Class of 2011. Anita is currently interning at the Center for Health Services Research and Development at the American University of Armenia in Yerevan where she is working on research projects concerning health policy in Armenia. ARPANA PARIKH is a May 2011 graduate of Loyola Law School. While in school, she was president of the South Asian Law Students Association. Upon graduation, Arpana relocated to Texas and plans to practice law there. She currently resides in Austin, TX where she works as a legal assistant for The Martinez Jones Law Firm. JENNIFER WELDY is a fourth year evening student who will graduate in May 2012. Jennifer works for Wood Smith Henning & Berman as a law clerk assisting on cases in the areas of commercial and business, real estate, land use, and employment litigation. Jennifer is also an extern at The Center for Conflict Resolution, where she does mediation and conciliation. ALEX MEGERDECHIAN is a fourth year evening student who will graduate in December of 2012. Alex has been a certified paralegal for the last nine years and specializes in bankruptcy law, real estate law, and litigation. Currently, he works for a Fortune 500 company as an in-house paralegal where he assists in real estate acquisitions, litigation and bankruptcy issues. Alex also spends a significant amount of time volunteering at various centers assisting the edlerly and under privlidged. LAHAINA ARANETA is a third year evening student who will graduate in December ‘12. Lahaina is a law clerk

works with the Law Offices of David M. Dudley and assist in criminal defense trials. She also externs and assists as a grant-writer for the Los Angeles Family Law Help Center. NATALIE LE is a third year J.D./Tax LL.M student who will graduate in May 2012. Natalie is currently an intern in the International Tax Consulting department at Grant Thornton, LLP. DANIEL ELIAV is a recent graduate of Loyola Law School. Prior to law school, Daniel received a Masters in Public Health from UCLA. He has worked as an intern for the Honorable Gary A. Feess, Children’s Hospital, Bonne Bridges, and the UCLA Health System. ROBERT BLANCO is a third year student who will graduate in May 2012. Robert is interested in intellectual property, corporate law, and business litigation. MAIA MDINARADZE is a third year evening student who will graduate in May 2013. Maia works as a law clerk at Bet Tzedek Legal Services where she assists Holocaust survivors in obtaining reparations from German government. Maia also clerks at the Los Angeles County District Attorney’s office where she assists a deputy district attorney in conducting preliminary hearings. JOSH ANDERSON graduated cum laude, Order of the Coif, from Loyola Law School in May of 2011, where he was also on the Dean’s List. He is passionate about family law, and also desires to practice in the area of complex torts. EVELINA SHPOLYANSKY is a fourth year evening student who will be graduating

in May of 2012. Currently, Evelina is an Extern for Judge Sandra R. Klein at the United States Bankruptcy Court for the Central District of California and also an Intern at the California State Controller’s Office. PAUL MCCULLUM is a fourth year evening student graduating in May 2012 with a concentration in tax law. Paul is a judicial extern for the Honorable Sheri Bluebond at U.S. Bankruptcy Court for the Central District of California. He is also a volunteer for the Taxpayer’s Appeals Assistance Program and the Domestic Violence Clinic. SHIBA ETEMADIAN is a 2011 LLS graduate, recipient of the Court Call Award, Byrne Trial Advocacy Competition Award, and the only recipient of the International Academy of Trial Lawyers Award. She is currently an adjunct staff member as a coach for LLS for the Byrne Trial Advocacy Team. Shiba is a law clerk at Ardalan & Associates, where she does civil litigation. DANA OLSEN is a 2011 Loyola graduate. She focused on public interest during her time at Loyola, and externed with Legal Aid Foundation of Los Angeles and Legal Services New York City. After Dana graduated, she went on to work in the editorial department of The American Lawyer magazine.

PAYMON KHATIBI is a fourth year evening student who will graduate in December ‘12. He is on the executive board of the Consumer Attorneys Association of Los Angeles Loyola Chapter. Paymon is the founder and editor-in-chief of the Loyola Journal and currently works as a law clerk at Geragos & Geragos where he assists in both criminal and civil trials.


1 9 15 23 29 31 37

CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE DANIEL ELIAV THE VOID FOR VAGUENESS CONUNDRUM: IS CALIFORNIA’S BASIC SPEED LAW UNCONSTITUTIONAL? JOSHUA ANDERSON CAN I VOTE ON YOUR MARRIAGE? PERRY V. SCHWARZENEGGER AND PROPOSITION H8 NATALIE N. LE THE NCAA’S CLASSIFICATION OF STUDENT ATHELETES AS AMATEURS ROBERT BLANCO LAW SCHOOL TRANSPARENCY DANA OLSEN VICTIMS OF HUMAN TRAFFICKING THOSE OFTEN FORGOTTEN IN THE FIGHT AGAINST HUMAN SLAVERY MAI MDINARDAZE WHEN WILL MORTALITY IMPACT YOUR INVESTMENT PORTFOLIO? OMER IVANIR


table of contents

42 51 61 75 81 89 Top Row (from left): Anita Moradian, Natalie Le, Evelina Shpolyansky, Mai Mdinardaze, Lahaina Aranita, Selina Hartonians. Bottom Row (from left): Alex Megerdichian, Robert Blanco, Joshua Anderson, Paul McCullum, David Stone, Paymon Khatibi, Omer Ivanir

THE FRENCH ROMANI REPATRIATION BREAKING THE LAW TO FURTHER DISCRIMINATION PRACTICES AGAINST THE ROMANI PEOPLE JUDITH FELZ SPLIT BY LAW LAHAINA ARANETA

FARM BILL 2012: THE KERNEL OF EFFECTIVE HEALTH AND AGRICULTURAL POLICY ANITA MORADIAN WEB 2.0 AND THE EMPLOYMENT RELATIONSHIP ARPANA PARIKH

THE FAULTS OF RACIAL PROFILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR EVELINA SHPOLYANSKY BANKRUPTCY DURING THE MORTGAGE MELTDOWN ALEX MEGERDICHIAN


1 | LOYOLA JOURNAL


LOYOLA JOURNAL | 2

CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE DANIEL ELIAV This article questions whether there is a viable argument to challenge the individual mandate to purchase health insurance. Despite the need for reforming access issues in our nation’s health care system, the constitution grants the federal government with only certain enumerated powers. Part II defines some of the problems with health care in the United States today, how the health reform attempts to solve those problems, and the specific issues raised by the individual mandate. Part III analyzes the legal landscape of congressional power to create an individual mandate. Part IV offers a critique of the law as it exists. Part V presents alternatives for achieving health reform without overstepping constitutional boundaries. Part VI offers some applicable conclusions.

I. INTRODUCTION The Need for Health Reform In 2001, the Bachman family’s health insurance premium jumped from approximately $600 per month to more than $1,200 per month. As entrepreneurs owning a boat service center and bait shop, Barbara and Gregory Bachman simply could not afford paying more for their health insurance than for their mortgage. The Bachmans reasoned that paying these premiums along with 20% co-pays, and a $2,500 per person, per incident deductible was more expensive than simply paying their medical bills out of pocket as they came due.1

Increasing health care costs have pushed many Americans to call for reform.2 Healthcare costs continue to rise at $2.3 trillion for total health expenditures and 16.2% of the gross domestic product.3 From 2000 to 2008, the cumulative increase in health insurance premiums rose more than three times as fast as wage increases.4 Furthermore, the increasing costs have contributed to a decrease in employersponsored insurance. 5 One of the main reasons cited for increasing health insurance costs is the lack of insurance. A recent study by the Center for Disease Control found that more than 45 million Americans are uninsured.6 Too many healthy Americans, especially young healthy people, do not purchase insurance. Consequently, the risk pool is disproportionately filled by a majority of people who need health care. Insurance companies claim that in order to underwrite the risk of caring for a high proportion of sicker people, they must charge higher premiums from those people who want insurance. Recently, Anthem Blue Cross, California’s largest for-profit health insurer, attempted to raise premiums by 39 percent. Although state insurance regulators have tried to push back against the increases, their power may be limited.7 In addition to contributing to rising costs, uninsurance leads to poorer health outcomes for everyone. A study by the Urban Institute estimated that deaths arising from uninsurance were as high

as 27,000 in 2006.8 Studies by scholars in the field of health economics suggest there is a positive association between community uninsurance rates and insured adults reporting unmet medical needs.9 Many people, and increasingly those in the middle class, are cutting off or postponing health care because of costs.10 Justifiably so, people are afraid of medical debt and bankruptcy. In 2007, medical debt caused 62.1% of all bankruptcies.11 As people delay needed health care, they are putting themselves and the system at greater risk. Providers are increasingly put under pressure by the rising costs and falling insurance rates. Emergency departments have been closing all over the country.12 From 1994 to 2004, emergency department visits increased by 26%, while 9% of emergency departments closed.13 Emergency department heads describe their units as overwhelmed and close to the breaking point.14 In 2008, $57.4 billion of uncompensated care was given in the United States. From that amount, hospitals provided $35 billion, community based organizations provided $14.6 billion, and private physicians gave away $7.8 billion.15 Considering the growing number of uninsured and increasing costs of delivering care, these statistics confirm that providers are at the breaking point and are struggling to survive under the economic pressures. In response to the need for health reform, Congress passed and President Barack Obama signed The Patient


3 | LOYOLA JOURNAL Protection and Affordable Care Act (the “Act”).16 A main component of the health reform is the individual mandate requiring all Americans to purchase insurance or pay a tax penalty. In fact, Congress and the president have emphasized that the individual mandate is the center piece of reform.17 The Bachman’s were recently shopping for a new car. Their plain was to finance a car for the typical five year term. However, they are not able to purchase a car with a five year term because the individual mandate becomes effective in 2014 and they cannot afford to pay for the finance payments while complying with the individual mandate. On April 9, 2010, the Bachman’s filed a complaint in a Pennsylvania District Court claiming that the individual mandate is unconstitutional exercise of the commerce clause power. The opening line of their complaint reads: “[a]n individual sitting in a darkened basement is not engaged in commerce of any sort.”18 Despite the need for fixing health care access issues, the constitution only grants the federal government certain enumerated powers. Part II explains how the individual mandate attempts to solve health care access issues and identifies the specific constitutional quandaries raised by this legislation. Part III analyzes the legal landscape of congressional power to create an individual mandate. Part IV offers a critique of the law as it exists. Part V presents alternatives for achieving health reform without overstepping constitutional boundaries. Part VI offers some applicable conclusions.

II. THE INDIVIDUAL MANDATE A. Proposed Solution: The Individual Mandate

The individual mandate is crucial for several reasons. To begin with, the risk pool would no longer be imbalanced if everyone had to purchase insurance. As such, those with insurance would no longer have to subsidize the cost of care for those without it and providers would be more fully compensated. Another reason why the mandate is so fundamental to reform is that the government will require insurers to

accept all applicants, regardless of health status or preexisting conditions. Without an individual mandate to expand the risk pool, insurers would have no way to underwrite the expanded risk.19 1. The Individual Responsibility Requirement The Act defines the individual mandate as an “individual responsibility requirement” whereby citizens and legal residents are required to have a qualified health plan. Individuals without a qualifying plan must pay a tax penalty of $695 per year. Families can be penalized up to a maximum of three times $695 ($2,085) per family. The penalty is due to increase annually by the cost-of-living adjustment. Although, it is capped by the cost of the national average premium for the minimum level qualified plan, if it results in a higher amount, the penalty is 2.5 percent of household i n c o m e . Beginning in 2014, these penalties will be phased in gradually by 2016.20 The Act expressly provides that failure to pay the penalty cannot result in criminal liability.21

of the reform argue that the federal government does not have the power to penalize Americans for not engaging in an activity. In this case, the activity is purchasing insurance. Essentially, they argue this is a penalty for being inactive. Using extremes as examples, opponents contend that the next step would be for the federal government to tax Americans for not purchasing a gym membership or buying a hybrid car. On the other hand, it is indisputable that Congress has the power to regulate insurance and the individual mandate may fall under that power. The individual mandate seems to be a unique and unprecedented form of taxation. When an individual mandate was proposed as part of Clinton’s health reform proposal in the early 1990’s, the Congressional Budget office acknowledged that it was an unprecedented form of taxation.23 In addition to the Congressional Budget Office, many legal scholars agree that the individual mandate is a novel idea.24 As such, despite Congress’s power to regulate insurance, the mandate raises new questions on the limits of Congressional power.

“Despite the need for fixing health care access issues, the constitution only grants the federal government certain enumerated powers.”

Of course, there are some exceptions. Exemptions may be granted for religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, if the lowest cost available plan option exceeds 8% of an individual’s income, and if the individual’s income is below the Commerce Department’s poverty level.22 B. Specific Problem: Is The Individual Mandate Constitutional? The major issue regarding the individual mandate is whether it is unconstitutional to require Americans to purchase insurance. Opponents

Within minutes of President Obama having signed the reform bill, 13 Attorney Generals from various states filed suit to challenge the constitutionality of the reform package.25 Since then, another 13 have joined the fight for a total of 26 states.26 Although the Attorneys General have made many claims regarding the constitutionality of the reform, this paper focuses only on the individual mandate.

III. LEGAL LANDSCAPE Congressional Power To Mandate Insurance The legal landscape analysis questions the source of federal power to require individuals to purchase insurance


CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE| LOYOLA JOURNAL | 4 via a penalty tax. Unlike the states, the federal government’s powers are limited to those enumerated in the constitution. Namely, the applicable constitutional clause granting power to the federal government is the interstate commerce clause.27 Of course, the Supreme Court is the ultimate interpreter of the constitution and these powers. As such, the following constitutional analysis first explains the judicial interpretation of the commerce clause. Next, it describes where the individual mandate fits into the judicial interpretation and whether the individual mandate is constitutional. A. THE COMMERCE CLAUSE “Congress shall have power … to regulate commerce … among the several states”28 1. Judicial Interpretation Gibbons v. Ogden was one of the first cases to explain the commerce clause.29 Chief Justice Marshall described commerce as the “commercial intercourse between nations” for which Congress has “complete” power to regulate. At the same time, Marshall also cautioned that this power is limited to “commerce which concerns more States than one.” Since Gibbons, several eras of judicial interpretation have shaped and redefined the test for determining whether Congress has exceeded its commerce clause powers. Before the New Deal era, Commerce Clause decisions rarely focused on the extent of Congress’s power to regulate but rather on the limit to which states could discriminate against interstate commerce. States were given broad powers to regulate production, manufacturing, and mining. Only Congressional regulations that directly affected interstate commerce were upheld.30 After the New Deal era, Congressional power expanded to include indirect effects on interstate commerce. The most expansive example of federal power came in Wickard v. Filburn.31 In Wickard, a farmer’s growth and use of wheat for personal purposes was held to have a substantial effect on interstate commerce and thus subject to federal law. This broad interpretation of the commerce clause continued until 1995 when the Supreme

Court stated the current boundaries of the commerce clause powers in United States v. Lopez.32 The Lopez test identifies three categories under which Congress may regulate interstate commerce: (1) channels of interstate commerce, (2) instrumentalities, persons or things in interstate commerce, and (3) activities having a substantial relation to interstate commerce.33 Since channels and instrumentalities are easily distinguished, most interstate commerce issues do not fall under the first two categories defined in Lopez. Rather the issue usually depends on whether the activity substantially affects interstate commerce. In order to determine whether or not the activity has a substantial affect on interstate commerce, the court considers four additional factors. First, the economic activity test. Here, the court determines whether statute is an “essential part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Second, the court considers jurisdictional element. Here, the court asks whether the statute has an express jurisdictional element which might limit its reach to a discrete set of activities that additionally have an explicit connection with or effect on interstate commerce.34 Third, the court may, but is not required to consider, Congressional findings. Although findings may help the court understand Congressional intent, the courts are the final arbiters of the effect on interstate commerce.35 Finally, if the court finds that the relationship to interstate commerce is overly attenuated, the bill may be struck down.36 Analyzing some of the cases since Lopez will help clarify the boundaries of the substantial effects test and, therefore, the boundaries of Congressional power under the commerce clause today. In Lopez, the court held that Congress could not rely on the commerce clause to create a federal crime out of knowingly possessing a firearm in a school. Under the first prong of the substantial effects test, this criminal statute did not fit into the larger regulation of economic activity. In other words, the government could not argue that the regulatory scheme would

be undercut unless the intrastate activity was regulated. Therefore, the statute had “nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”37 To make such a connection would be overly attenuated. In addition, there was no express jurisdictional element to limit the firearm regulation to instances related to interstate commerce whereby the court could make a case by case determination.38 Finally, there were no Congressional findings in the statute.39 The Supreme Court limited Congressional reach once again in United States v. Morrison.40 There, Congress exceeded its commerce clause powers by creating a civil remedy for victims of gender-based violence. Similar to Lopez, the statute at issue in Morrison was not economic activity and Congress chose not to define a jurisdictional element. Furthermore, despite the government’s attempt to justify the law with legislative findings, as the final arbiter, the court decided against those findings. The court cautioned against the slippery slope of allowing Congress to have powers of “family law and other areas of traditional state regulation” despite findings that the “aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.”41 In 2005, the Supreme Court decided Gonzales v. Raich which helped to further define the limits of the Lopez test.42 The issue in Raich was whether the commerce clause power extended to preventing people from growing medical marijuana in their own homes. Based on Wickard, the court held that growing marijuana at home affected a market, albeit an illegal market, that Congress had the power to regulate. Raich was distinguished from Lopez and Morrison because the statute at issue in Raich regulated “quintessential economic activities.” Economic activity was defined as the “production, distribution, and consumption of commodities.” In contrast, the laws at issue in Lopez and Morrison had “nothing to do with ‘commerce’ or any sort of economic enterprise.” Lopez and Morrison were struck down because the activity was not economic in nature. In


5 | LOYOLA JOURNAL Morrison, the court acknowledged that in “those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”43 Analyzing the government’s arguments in Lopez may help to clarify what types of regulations the court will uphold. In Lopez, the government argued that possession of a gun in a school zone substantially affects interstate commerce because violent crimes impact the national economy in three ways. First, the costs of crime are significant and must be spread across the population through insurance. Second, violent crimes reduce the willingness of people to travel to areas considered unsafe. Finally, guns in school threaten the learning environment and leads to a less productive citizenry. However, all of the government’s arguments were rejected under the reasoning that “if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”44 Therefore, the Supreme Court is unwilling to accept a regulation under the commerce clause when the activity in question is overly attenuated to interstate commerce.

Following language of the substantial effects test in Lopez, Paragraph (2) attempts to show how the requirement to purchase insurance is regulating an activity that substantially affects interstate commerce. Paragraph 2(A) explains that Congress is regulating commercial and economic activity. According to Congress, the activities being regulated are the “economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.” Paragraph ( 2 ) ( B ) explains that health insurance and health c a r e services are interstate commerce s i n c e expenditures comprise such a large part of the nation’s economy and since most of the insurance sold is provided by national companies. Paragraph (2)(C) through (2) (J) identify how the individual mandate is an essential piece of larger economic goals to achieve universal coverage, expand financial security, minimize adverse selection, eliminate pre-existing conditions, reduce administrative costs, and lower premiums.46

“...the government’s power to regulate insurance is undisputed and the Supreme Court could conceivably recognize Congressional power to regulate the lack of insurance as part of that same power.”

2. The Requirement to Maintain Minimum Essential Coverage In Section 1501 (a) of the Patient Protection and Affordable Care Act, Congress explains its power to mandate insurance under the interstate commerce clause. Paragraph (1) is an explicit statement by Congress that it is relying on the commerce clause power to mandate insurance. Paragraph (2) lists eight effects on insurance on interstate commerce. Paragraph 3 cites a Supreme Court case establishing that insurance is interstate commerce subject to federal regulation.45

3. Congress Can Not Mandate Individual Insurance Based on the Interstate Commerce Clause It is unclear whether the commerce clause provides a foundation for Congress to legislate a requirement to purchase health insurance.47 The lack of clarity is due to the fact that it is a novel issue whether Congress can use this power to require individuals to purchase a good a service.48 As explained above, an individual mandate is unprecedented. The first step for a court to determine the constitutionality of the individual mandate is to apply the Lopez test. Since insurance is neither a channel

nor instrumentality of commerce, the analysis would depend solely on the substantial effects test. As such, the determinative issue is whether the activity regulated substantially affects interstate commerce. If there is no economic activity or jurisdictional element, the court should reject the regulation as an unconstitutional exercise of the interstate commerce clause. a. There is No Economic Activity Substantially Affecting Interstate Commerce As stated in Lopez, “where economic activity substantially affects interstate commerce, legislation regulating that activity will be upheld.”49 At first glance, the individual mandate clearly meets this prong. Health insurance is known to affect interstate commerce. The health care industry accounts for $2.3 trillion of the United States economy and 16.2% of the gross domestic product. The lack of health insurance drives costs up since people without health insurance are likely to require health care unexpectedly. Per EMTALA, people without health insurance cannot be kept out of the emergency room and providers are continuously forced to provide uncompensated care. People with insurance subsidize these additional costs with increased premiums. Employers who used to sponsor health insurance must stop providing these benefits when they can no longer afford the premiums. Clearly, health insurance substantially affects interstate commerce. Additionally, in United States v. South-Eastern Underwriters Association, the Supreme Court held that Congress has the power to regulate insurance.50 It follows that since health insurance is “in” interstate commerce, the individual mandate also falls within the Congressional power to regulate insurance. 51 According to Wickard and Raich, an individual’s decision to stay out of the market can be regulated. In Raich, all parties conceded Congressional power to regulate the non-medical use of marijuana. The court used that concession to decide that the power to regulate medical marijuana fell under the same Congressional scheme. Similarly, the government’s power to regulate insurance is undisputed and the Supreme


CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE| LOYOLA JOURNAL | 6

Court could conceivably recognize Congressional power to regulate the lack of insurance as part of that same power. Alternatively, the Supreme Court may find that larger economic scheme would be undercut if this activity were not regulated.52 This reasoning would also follow the approach in Wickard and Raich. Specifically, the choice to grow wheat or marijuana at home instead of purchasing it on the market may be held analogous to the decision to self-insure. Since the aggregate of these decisions have a substantial effect on commerce, Congress can require individuals to act differently. This decision is made without foresight to the long-term negative consequences that result.53 This argument can also be found in the findings of Section 1501. Since there is a substantial likelihood that everyone will need medical care at some point, the individual mandate simply requires everyone to insure themselves against the potential costs they may incur. Based on the above analysis, the individual mandate seems to be a valid

exercise of the commerce clause powers. However, a deeper analysis reveals otherwise. Although the decision to not purchase insurance may substantially affect interstate commerce, this decision is not the type of conduct which the court has traditionally recognized as economic activity. In order for the mandate to be upheld, the court would have to recognize an unprecedented form of Congressional regulation. In Lopez, the court acknowledged that Congress is prohibited from piling inference upon inference to give Congress the same police powers typically held by the states.54 Choosing not to engage in an activity (in this case, choosing not to purchase health insurance) is not commerce but rather it is “inactivity.” An analysis of the activity in some of the more famous commerce clause cases may help to elucidate the issue of inactivity. Gibbons involved the activity of travel. Wickard involved the activity of growing wheat.55 Lopez involved the activity of carrying guns in schools.56 Morrision involved the activity of gender abuse.

Raich involved the activity growing Marijuana.57 All of these cases involve some kind of activity. Lopez and Morrison were struck down because the activity was not economic. Nonetheless there was some activity. Arguably, since the Lopez test identifies categories of activities, inactivity does not even fit into and cannot be judged according to the court’s current commerce clause test. Inactivity is not commerce. It is a right to be retained by the people. In a government of enumerated powers, governing inactivity is not an enumerated power. Therefore, Congress does not have the power to regulate inactivity. Even if the court were to find that not purchasing insurance is an activity, it is arguable that the mandate is not economic activity. In those cases where the activity was upheld, the Supreme Court has always found that an economic endeavor was involved. The Raich court explicitly defined economic as “the production, distribution, and consumption of


7 | LOYOLA JOURNAL commodities.”58 As described above, this was the distinguishing factor which separated Raich from Lopez and Morrison.59 Therefore, Congress does not have the power to regulate non-economic activity. When a person does not purchase insurance, he is not producing, distributing, or consuming commodities. In fact, he is doing the opposite. Contrasting the economic activity in Wickard and Raich to the individual mandate may help to clarify the noneconomic nature of the regulation in question. In order to make a fair comparison between Wickard and Raich to the individual mandate, the economic nature of the activity in those cases should have been completely different. For instance, in Wickard instead of violating the regulation by producing wheat for his personal consumption, the farmer would have been in violation by not producing wheat. The farmer would have been in violation by avoiding wheat consumption and staying out of the market all together. The government’s argument would have been that since the demand for wheat was low, more people had to purchase wheat. The farmer would be in violation because he had an obligation to purchase wheat and not avoid the wheat market.

discrete set of activities with an explicit connection or effect on interstate commerce. The statute at issue in Lopez was struck down because it did not limit its reach to a discrete set of interstate activities to which the court could make a case by case determination. If congress had expressly limited the application of the regulation of guns in school zones to guns that had traveled through interstate commerce, Lopez might have been decided differently.60 Therefore, for the individual mandate to be upheld, the court must have a way to find that a violation of this regulation is related to interstate commerce. To begin with, the jurisdictional element requires an explicit statement by Congress for the court to discern on a case by case basis how the activity is involved with interstate commerce.61 To properly create a jurisdictional element in the individual mandate, Congress could have stated that if an individual fails to purchase insurance and that individual choice affects interstate commerce, she will be penalized. Accordingly, on a case by case basis, the courts could ask if the individual choice affects interstate commerce. However, congress essentially took this case by case determination away from the courts by broadly stating that insurance is inherently tied to interstate activities. For instance, the Congressional findings state: “Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.”62 The problem with this approach is that rather than showing how congress’s regulation is limited to cases of interstate activities, it presupposes that the regulation is always related to interstate commerce.

“Inactivity is not commerce. It is a right to be retained by the people.”

As such, the individual mandate does not meet the economic activity prong. It is unlikely that the Supreme Court will accept the notion that someone who does not purchase insurance is engaging in economic activity. Therefore, the Court will likely reject the argument that there is an analogous form of activity between the mandate and Wickard or Raich. Instead, the court will rely on the Lopez and Morrison decisions to find that that Congress has exceeded the commerce clause power. b. There is No Jurisdictional Element Limiting Congressional Power The second factor of the substantial effect test in Lopez, referred to as the jurisdictional element, asks whether congress has limited the statute to a

In contrast to the government’s findings, the individual mandate could be held to be more of an intrastate regulation of individual choices rather than an interstate insurance regulation. For instance, the court could hold that the choice to live without health insurance

is not part of the traditional insurance regulation recognized by cases such as South-Eastern Underwriters. Insurance laws have typically regulated the insurer, not the individual. As such, the court may hold that there is not an explicit connection to interstate commerce for the court to discern on a case by case basis. Furthermore, the exceptions in the mandate do not limit the jurisdiction to interstate commerce. The only exceptions that remotely relate to commerce are the financial hardship exceptions. For instance, people below the poverty line and people who would have to spend more than 8 percent of their income on health insurance are exempt. These limitations are designed to protect people who are struggling to survive. Rather than showing the courts how to delineate on a case by case basis how the regulation may enter interstate commerce, this limitation is protecting the indigent from excessive burdens. Therefore, the individual mandate does not pass the jurisdictional element. c. Congressional Findings are Not Dispositive Assuming that the individual mandate does not satisfy the economic activity test or the jurisdictional element, Congressional findings showing the opposite will not alter the court’s opinion. As the Morrison opinion stated, “the limitation of Congressional authority is not solely a matter of legislative grace.”63 Therefore, even though Section 1501 states that individuals make “economic and financial” choices about “how and when” to purchase health care services, these findings are not dispositive.64 d. The Link to Interstate Commerce is Unprecedented and Attenuated The final factor under the substantial effects test asks whether the link between the activity and interstate commerce is attenuated. In Lopez, gun possession was deemed overly attenuated to interstate commerce. In contrast to Lopez, insurance has a more obvious link to interstate commerce. The lack of health insurance is related to the rising costs of premiums; as the insurance companies


CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE| LOYOLA JOURNAL | 8 argue, insurers cannot underwrite the risk of only the sickest people without raising premiums. For an insurance risk pool to work efficiently there must be varying levels of risk between the beneficiaries. Despite the obvious relationship between health insurance and interstate commerce, the individual mandate regulates a type of choice that should not be regulated by the Federal government. When considering the attenuated nature of the statute in Lopez, the court held that “to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”65 The Lopez court did not allow Congress to regulate gun possession because it would establish a precedent with no limit to congressional power. Congress could move from gun control to family law and education. In what the Morrison court describes as “but-for reasoning,” the court asks how much further this type of regulation could extend.

environment would be better off if every person planted trees in his front yard. Is Congress going to fine people who decide not to plant trees? Where does it stop? Is there any activity that Congress would be without without power to regulate? Furthermore, as Professor of Constitutional law Karl Manheim argues, the mandate is not a penalty tax, but an unconstitutional violation of individual rights. The Supreme C o u r t differentiates between taxes and prices set by private entities with their own interests. In essence, the government is delegating its taxing powers to private health insurers by forcing Americans to purchase health care. Rather than a tax, the mandate is either a taking of property or a violation of due process.66 Under our constitution, taxation is supposed to include representation.67 However, when we are forced to buy something from a private company, there is no representation. If we do not like something about Social Security or Medicare, we can elect new legislators who will change these programs. In contrast, individuals have no control over their insurance company’s board of directors.

“If the courts strike the individual mandate, most, if not all, of the reform package is doomed to failure.”

Similar to the but-for reasoning used in Lopez and Morrison, allowing Congress to control the individual choice of whether or not to purchase insurance would blur the edges of Federal power to an unprecedented level. Of course, an individual mandate would likely help the nation’s economy, but if we allow Congress to control purchasing decisions, what else can Congress do to help the nation’s economy? Arguably, people could be more productive at work, live longer, and spend less on health care if they were mandated to purchase a gym membership and hire a personal trainer. Congress may argue that obesity is related to heart disease, cancer, diabetes, and higher insurance premiums. Is Congress next going to require that every person purchase a gym membership with weekly training sessions? People would be more productive if they purchased computers and used email communication instead of the post office. Is congress going to require that every person purchase a computer and fine those who do not? The

IV. CRITIQUE: LIMITS OF THE CURRENTLY PROPOSED LAW As an unconstitutional exercise of federal power, the individual mandate will most likely be struck down by the Supreme Court. However, even if the law is found constitutional, there are other important factors that may limit the laws efficacy. A. LIMITED TO AMERICAN CITIZENS One major problem with the individual mandate is that it excludes undocumented immigrants. It is estimated that 15 percent of the nation’s currently uninsured population are undocumented immigrants.68 Even

after the health reform, approximately 7 million undocumented immigrants, or one-third of the total uninsured, will not be covered by the reforms.69 In many instances, these immigrants would likely continue to depend on the safety-net of providers. 70 A health reform bill that ignores this population yet still allows them to take advantage of emergency rooms at no cost via laws such as the Emergency Medical Treatment and Active Labor Act, (EMTALA) leaves huge gaps in the health care system. B. REGULATORY VACUUM IN ENFORCEMENT Another major issue with the individual mandate is that it may be impossible to enforce the penalty tax. Since there are no criminal penalties, people and states who refuse to participate may ruin the goal of achieving universal coverage. Some legal scholars question whether compliance with the mandate will be voluntary.71 For instance, many students do not file taxes. What will happen when these people do not purchase insurance? Examples of people and states choosing not to follow federal law can be found in the experience with medical marijuana. Although medical marijuana is banned under federal law, the sale of this pain reliever can be seen throughout cities in states that chose to ignore the federal law. 72 C. AFFORDABILITY DEPENDS ON INSURANCE REGULATORS The experience in Massachusetts suggests that regulators might have a difficult time keeping premiums affordable for consumers.73 Recently, regulators in Massachusetts have rejected 235 of the 274 proposals by insurance companies to raise premiums. Insurance companies claim that they need these increases to stay solvent, but the regulators are exercising their power to deny the increases. This experience suggests that despite the increase in risk pool that an individual mandate may offer, premiums may continue to rise. If there are rising premiums, the problems currently plaguing providers and beneficiaries will not be solved.


9 | LOYOLA JOURNAL V. ALTERNATIVE CONSTITUTIONAL PROPOSALS & RECOMMENDATIONS If the courts strike the individual mandate, most, if not all, of the reform package is doomed to failure. Congress should prevent this outcome by amending the bill before it reaches the courts. Considering that Congress’s greatest powers stem from the tax and spend clause, the most feasible way to achieve more universal coverage might have been through some alteration to the income taxes instead of requiring individuals to purchase insurance. Some of the other options include creating a public option, offering tax credits, and even amending the constitution. A. PUBLIC OPTION Using the tax and spend powers in the same way it did to create Social Security and Medicare, Congress could have enacted a government health insurance option that offered to cover everyone with some minimal form of health care. Although intuitively it may appear like a much larger expansion of Federal power and thus a greater threat to individual and states’ rights, a public option would seem to be more viable under the current law. Instead of relying on the commerce clause, Congress would simply be creating another benefit program under the well established and broad tax and spend clause. Such an exercise of power would only have to meet the minimal requirements of spending for the general welfare. Of course, the government would have to fund the program through taxes, but it would not need to be through a penalty tax that violates the constitution. Instead, the government could simply raise income taxes on everyone. For instance, instead of creating a penalty tax when an individual chooses to not purchase insurance, the government could increase the income tax and offer free or subsidized coverage for anyone who wants to take advantage of the public option. B. TAX CREDITS A second possible way Congress could have encouraged increased

insurance coverage might have been to offer tax credits to those people who purchased insurance. There are many examples in health care of the government giving tax credits in order to induce actions. In contrast to an individual mandate, this option does not force people to purchase anything. If people elect to buy health insurance, they could be eligible for a generous tax credit. If Congress wanted to be more progressive with the tax credit approach, it might have raised the income tax for everyone and offered tax credit to those people to those people who purchase health insurance. Similar to establishing the public option, this method would rely on the tax and spend powers while not necessarily penalizing individuals who do not give anything to a private company. C. CONSTITUTIONAL AMENDMENT Another option that Congress might have employed was to make the individual mandate constitutional by amending the constitution. In 1895, the Supreme Court held the Federal income tax to be an unconstitutional direct tax because it was not apportioned among the states. By 1913, Congress had ratified the sixteenth amendment to remove apportionment requirement from the federal income tax.74 Similarly, Congress could amend the Constitution to grant the federal government with the powers to create an individual mandate. D. RECOMMENDATIONS Arguably, the problems created by the individual mandate are attributable to politics. Congress could have exercised its powers in ways that would not have been struck down, but those methods might not have been feasible or might not have been received well by the public. As mentioned above, a public option would have been a good way for Congress to rely on the tax and spend powers. However, that option did not have support in the Senate and was finally dropped from the final reform bill. Similarly, raising all income taxes might have been a viable alternative under the tax and spend laws. Of course, raising taxes would have gone against campaign promises by Obama that only the richest people will see tax

increases. Additionally, if Congress would have offered tax credits without a public option, it might have been interpreted by the public as not enough of a reform for the dire status of this country’s health care system. Finally, considering the razor thin majority Congress had to pass the reform bill, it is impossible to imagine that a constitutional amendment would have enough support. As such, the individual mandate as proposed may have been the most viable political option, despite the problems it creates in regards to the constitution. Given the political atmosphere, the most probable way to achieve constitutionality of the individual mandate would be to remove it from being a mandate that all individuals must comply with, and replace it with a tax credit that would be to be too good to resist. For example, instead of charging individuals $695 for not having health insurance, the government could offer a tax credit for purchasing health insurance that would equal $695 in savings. That way, individuals would still be at a loss of $695 if they did not purchase health insurance. Of course, this proposal would require some research as to what tax credits are worth in reality and the actual dollar amount may have to shift up or down based on consumer perception. Nonetheless, this may be the most politically feasible way to achieve the same or similar results. VI. CONCLUSION In conclusion, opponents of the individual mandate have a good argument to strike down the Act as an unconstitutional law. The Bachmans should not be forced by the federal government to pay a third party for health insurance. The federal government has never had the power to require citizens to purchase something from a third party and allowing such a power now would create a dangerous precedent. Maybe next year, the Bachmans will be required to purchase energy saving light bulbs or a General Motors car. Where does it end?


CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE| LOYOLA JOURNAL | 10 ENDNOTES 1. Complaint at 9-10, Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 2011 U.S. Dist. LEXIS 6309, 2011 WL 223010, (M.D. Pa. Jan. 24, 2011) 2. Kaiser Family Foundation/Harvard School of Public Health, The Public’s Health Care Agenda for the New President and Congress (2009), http://www.kff.org/kaiserpolls/upload/7853.pdf 3. Centers for Medicare & Medicaid Services, Department of Health and Human Services, 2008 Highlights (2009), http://www.cms.hhs.gov/ NationalHealthExpendData/downloads/highlights. pdf 4. Henry J. Kaiser Family Foundation, Health Care and the Middle Class: More Costs and Less Coverage (2009), http://www.kff.org/healthreform/ upload/7951.pdf 5. Gary Claxton, et al. The Kaiser Family Foundation and Health Research and Educational Trust, Employer Health Benefits, 2009 Annual Survey (2009), http://ehbs.kff.org/pdf/2009/7936.pdf 6. Centers for Disease Control and Prevention, Early Release of Selected Estimates Based on Data From the January-June 2009 National Health Interview Survey, (2009) http://www.cdc.gov/ nchs/data/nhis/earlyrelease/200912_01.pdf 7. Duke Helfand, Thousands of Anthem Blue Cross Customers Await Decision on Rate Hikes, L.A. Times, April 13, 2010, http://articles.latimes.com/2010/ apr/13/business/la-fi-anthem13-2010apr13/2 8. Stan Dorn, Urban Institute, Uninsured and Dying Because of It: Updating the Institute of Medicine Analysis on the Impact of Uninsurance on Mortality (2008), http://www.urban.org/ UploadedPDF/411588_uninsured_dying.pdf 9. Mark Pauly and Jose Pagan, Spillovers And Vulnerability: The Case Of Community Uninsurance, 26, 5 Health Affairs 1304, 1307 (2007), http://new.healthpolicyfellows. org/pdfs/SpilloversAndVulnerabilityTheCaseOfCommunityUninsurance.pdf (Arguing that it is in the self-interest of the less vulnerable to be concerned about the plight of the more vulnerable.) 10. Diane Rowland, Catherine Hoffman, and Molly McGinn-Shapiro, Focus on Health Reform, Henry J. Kaiser Family Foundation, Health Care and The Middle Class: More Costs and Less Coverage (2009), http://www.kff.org/healthreform/upload/7951. pdf 11. David U. Himmelstein, Deborah Thorne, Elizabeth Warren, and Steffie Woolhandler, Medical Bankruptcy in the United States, 2007: Results of a National Study. 122 The American Journal of Medicine 741, 743 (2009), http:// download.journals.elsevierhealth.com/pdfs/ journals/0002-9343/PIIS0002934309004045.pdf 12. Jack Leonard, King-Harbor Inspection Report Released, L.A. Times, August 14, 2007. (The LA Times has dedicated a website for the King Drew story describing difficulties in responding to quality problems arising from lack of funding and nurses available at http://www.latimes.com/news/local/ la-kingdrew-gallery,0,5651209.storygallery) 13. Arthur Kellermann, Crisis in the Emergency Department, 355 New Eng. J. Med. 1300, 1301. (2006), http://nejm.highwire.org/cgi/reprint/355/13/1300. pdf 14. Julia Paradise and Cedric Dark, Kaiser Commission on Medicaid and the Uninsured, Henry J. Kaiser Family Foundation. Emergency Departments under Growing Pressures (2009), http://kff.org/ uninsured/upload/7960.pdf 15. Jack Hadley, John Holahan, and Dawn Miller, Kaiser Commissionon Medicaid and the Uninsured, Henry J. Kaiser Family Foundation, Covering the Uninsured in 2008: A Detailed Examination of Current Costs and Sources of Payment, and Incremental Costs of Expanding Coverage, 20 (2008), http://www.kff.org/uninsured/upload/7809.pdf 16. Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) 17 President Barak Obamam, Remarks by the President to a Joint Session of Congress on Health Care. Washington, D.C. (September 9, 2009). Transcript available at http://www.whitehouse. gov/the_press_office/remarks-by-the-president-toa-joint-session-of-congress-on-health-care/ 18. Complaint at 2, Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 2011 U.S. Dist. LEXIS 6309, 2011 WL 223010, (M.D. Pa. Jan. 24, 2011) 19. Timothy Jost, Can the States Nullify Health Care Reform? 362 New Eng. J. Med. 869, 870 (2010) 20. Patient Protection and Affordable Care Act,

§ 1501(b) (Adding § 5000A to the Internal Revenue Code) 21. Patient Protection and Affordable Care Act, § 1501(f) 22. Patient Protection and Affordable Care Act, § 1501(b) (Adding Section 5000A (e) to the Internal Revenue Code) 23. Congressional Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance (1994), http://www.cbo.gov/ ftpdocs/48xx/doc4816/doc38.pdf. 24. Jennifer Staman and Cynthia Brougher, Congressional Research Service, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, 3 (2009). Also see Jost supra at 871. Also see Karl Manheim and Jamie Court, Must You Buy Health Insurance? Christian Science Monitor, Mar. 26, 2008, http://www.csmonitor. com/Commentary/Opinion/2008/0326/p09s01-coop. html

49. Lopez, 514 U.S. at 560. 50. United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) 51. Simon Lazarus, American Constitution Society, Mandatory Health Insurance: Is It Constitutional?, 7, (2009) http://www.nsclc.org/areas/federalrights/mandatory-health-insurance-is-itconstitutional/at_download/attachment 52. Lazarus, supra at 7 – 8. 53. Lazarus, supra at 8 – 9. Also see Erwin Chemerinsky, Health Care Reform is Constitutional, Politico, October 23, 2009, http://www.politico. com/news/stories/1009/28620.html 54. Lopez, 514 U.S. at 567. 55. Wickard, 317 U.S. at 111. 56. Lopez, 514 U.S. at 514.

25. Five More States Join Suit Against Healthcare Law, Reuters. April 7, 2010, http://www.cnbc.com/ id/36221949/Five_More_States_Join_Suit_Against_ Healthcare_Law

57. Raich, 545 U.S. at 1.

26. Florida v. United States HHS, 2011 U.S. Dist. LEXIS 8822 *6 (N.D. Fla. Jan. 31, 2011)

59. Raich, 545 U.S. at 25.

27. As of the date of this writing, five courts have rejected the notion that the individual mandate is a tax which can be analyzed under the tax and spend clause. See Florida v. United States HHS, 2011 U.S. Dist. LEXIS 8822*12-13 footnote 4 (N.D. Fla. Jan. 31, 2011) (Holding that it is not a traditional form of taxation, but rather a penalty.); Mead v. Holder, 2011 U.S. Dist. Lexis ____*59 (D.D.C. Feb. 22, 2011)

58. Raich, 545 U.S. at 25-26 (quoting Webster’s Third New International Dictionary at 720 (1966)) 60. See note 36 supra 61. Lopez, 514 U.S. at 567 62. Patient Protection and Affordable Care Act, § 1501(a)(2)(B) 63. Morrison, 529 U.S. at 616.

28. U.S. Const. art. I, § 8, cl. 3

64. Patient Protection and Affordable Care Act, § 1501 (2)(A)

29. United States v. Lopez, 514 U.S. 549, 553 (1995) (quoting Gibbons v. Ogden 22 U.S. 1)

65. Lopez, 514 U.S. at 564.

30. Lopez, 514 U.S. at 553 – 559. 31. Wickard v. Filburn, 317 U.S. 111 (1942) 32. Lopez, 514 U.S. at 558. 33. Lopez, 514 U.S. at 558 – 559. 34. Lopez, 514 U.S. at 562 35. Lopez, 514 U.S. at 557 note 2. 36. Lopez, 514 U.S. at 563-564 37. Lopez, 514 U.S. at 560. 38. Lopez, 514 U.S. at 562. Notably, after Lopez, Congress added a jurisdictional element to the regulation in question in Lopez by requiring the weapons to be shown to have traveled in interstate commerce. The amended regulation was upheld by the Supreme Court because the court could now make a case by case determination. See U.S. v. Danks 221 F.3d 1037 (1999), and cert denied, Danks v. U.S. 528 U.S. 1091 (2000). 39. Lopez, 514 U.S. at 562. 40. United States v. Morrison, 529 U.S. 598 (2000) 41. Morrison, 529 U.S. at 616 42. Gonzales v. Raich, 545 U.S. 1 (2005). 43. Morrison, 529 U.S. at 611. Contrast with Justice Scalia’s concurring opinion: “those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government.” Raich, 545 U.S. at 39. It seems Scalia is in the minority with this opinion as it was not adopted by the majority nor the minority in Raich. For instance, O’Conner writes for the minority “It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or window sill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power.” Raich, 545 U.S. at 49-50. 44. Lopez, 514 U.S. at 564. 45. See United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) 46. Patient Protection and Affordable Care Act, § 1501 47. Staman, supra at 3. 48. Staman, supra at 3.

66. Manheim, supra Professor Manheim also explains that even if this is considered a valid exercise of the commerce clause or tax and spend power, there may be other constitutional challenges based on individual liberties. Those arguments are beyond the scope of this paper. 67. Pollock, 157 U.S. at 622. 68. Immigrants’ Health Coverage and Health Reform: Key Questions and Answers, Kaiser Family Foundation, Focus on Health Reform (2009), 4, http://www.kff.org/healthreform/upload/7982. pdf 69. Maggie Mertens, NPR’s Health Blog Shots Undocumented Immigrant Statistics, http://www. npr.org/blogs/health/2010/03/health_care_for_ all_minus_23_m.html 70. Immigrants’ Health Coverage and Health Reform: Key Questions and Answers at 6 71. Timothy S. Jost, Can the States Nullify Health Care Reform?, New Eng. J. Med., Mar. 11, 2010 at 871, http://nejm.highwire.org/cgi/content/ extract/NEJMp1001345v2 72. Jost, Can the States Nullify Health Care Reform?, supra at 871 73. Kevin Sack, Massachusetts Insurance Regulators Reject Most Requests for Higher Rates, N.Y. Times, April 1, 2010, http://www.nytimes.com/2010/04/02/ health/policy/02rates.html?src=mv 74. Pollock, 157 U.S. at 580.


11 | LOYOLA JOURNAL


LOYOLA JOURNAL | 12

THE VOID FOR VAGUENESS CONUNDRUM:

IS CALIFORNIA’S BASIC SPEED LAW UNCONSTITUTIONAL? JOSHUA ANDERSON

It’s probably fair to say that the way most people interact with our justice system is not through an attorney, or divorce, or any other of a litany of possibilities. No, most people interact with the justice system through one main way: the police. Enforcement of speed limits and the rules of the road is something that most of us deal with on a daily basis, and it impacts not only our conduct on the road, but also our wallets. The question is: why? Why should the conduct of drivers be regulated the way it is, and where does state authority come from to impose such regulation? The simple answer, depending on who you believe, is either that speed limits save lives, or that speed limits save the state’s budget. In any case, the states can enact laws for the common welfare, safety, and benefit of its citizens, and speed limits fall within that purview. The focus of this article will be on federal law generally, and by way of example, California and Montana law more specifically. But the real question is: why have speed limits when more strict enforcement of a reasonableness standard would suffice to guard the general welfare and safety of the citizenry? Possibly because California’s basic speed law is unconstitutionally vague.

A brief history of speed limits The Tenth Amendment to the United States Constitution provides that “[t] he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or the people.” U.S. Const. amend. IX. Those reserved powers are the “police powers” of the states to “protect the health, safety, and welfare of their citizens.” Gonzales v. Oregon, 546 U.S. 243, 300 (2006). These powers are an important part of federalism, in that the states are provided “the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates[.]” Nebbia v. People of New York, 291 U.S. 502, 524 (1934). It is almost a truism that the ability to pass laws to protect the safety of its citizens encompasses a state’s passage of laws regulating the speed of motorists on its roads. Machado-Miller v. Mersereau & Shannon, LLP, 180 Or.App. 586, 595 (2002). In fact, states have been passing laws relating to automobile speed limits since the early 1900’s, with the first reported automobile speed limit set in 1901 in Connecticut at twelve miles-anhour (mph) in cities and fifteen mph in rural areas. (http://www.history.com/ this-day-in-history/connecticut-enactsfirst-speed-limit-law). Additionally,

several early cases upheld statutes that established a general duty of care for drivers to not operate their vehicles at a “greater rate of speed than is reasonable” given the attendant circumstances. Roper v. Greenspon, 198 S.W. 1107, 1108 (Mo. 1917); Opocensky v. City of South Omaha, 163 N.W. 325, 327 (Neb. 1917). Pursuant to the Tenth Amendment, states individually have the right to determine what speed limits they will impose. That is one reason why general regulation of speed for motorists is a difficult thing, because ultimately there are hundreds of different actors working in the system of speed limits. From the states, all the way down to individual cities, each actor has at least some say on what limits will be imposed. See Cal. Veh. Code, §§ 22348 – 22366, discussed infra. And because of that, speed limits vary widely amongst the states. For instance, California currently has a maximum limit of sixty-five mph, while Montana’s speed limits vary by the time of day, with a statutory maximum of seventy-five mph. Cal. Veh. Code, § 22349; MCA 61-8-303(1)(b). “[O]n January 2, 1974, [however,] during the embargo of oil sales to the United States by Arab members of the Organization of Petroleum Exporting Countries (OPEC), the United States

“The simple answer....is either that speed limits save lives, or that speed limits save the state’s budget.”


13 | LOYOLA JOURNAL

Congress established a national fiftyfive mph speed limit in the Emergency Highway Energy Conservation Act” in the effort to reduce fuel consumption. People v. Williams, 175 Cal.App.3d Supp. 16, 21 (1985). This statute, commonly referred to as the Federal Aid Highway Act of 1974, did not expressly mandate a federally imposed maximum speed limit. PL 93-239, 1974 HR 11372. What it did do, however, was mandate that the “secretary of transportation shall not approve any project […] in any state which has […] a maximum speed limit on any public highway within its jurisdiction in excess of fifty-five mph[.]” Id. What this meant was that, while states could still in fact set their own speed limits, they simply would lose federal funding for their highways if the limit was set above fifty-five mph. Id. Solidifying the Act’s validity, federal courts found this exercise of Congress to be a valid exercise of the commerce clause. See State of Nevada v. Skinner, 884 F.2d 445 (“In light of the dramatic influence the energy crisis has had on the shape of American

and international commerce, the fifty-five mph speed limit was a reasoned response on the part of Congress to the many serious problems posed by the crisis.”). The Skinner case was based on the finding that the imposition of the federal national maximum speed limit did not amount to coercion of local government in prompting enforcement of the Act, since the threat to withhold funds was a proper exercise of Congress’ spending power. Id at 449. Additionally, arguments that state legislation complying with the national maximum speed limit was simply a “delegation of legislative power to the federal government” were debunked, because states retained actual power to impose any limit they wanted. People v. Williams, 175 Cal.App.3d at 23. Even under modern commerce clause jurisprudence as promulgated by Printz v. United States, 521 U.S. 898 (1997), there is little doubt that a federal maximum speed limit could be directly imposed. Federal enforcement would be required, however, as state officials

cannot be commandeered by the federal government to act as its regulatory force, and so it is unlikely that an actual federal speed limit would be imposed. See Printz generally. In 1987, however, Congress passed another Federal Aid Highway Act that allowed states to once again establish higher speed limits without fear of losing federal funding. PL 10017, 1987 HR 2. This made sense, as by 1981 the oil crisis had been depressed, and the law found difficulty being followed, let alone enforced. To Examine the Enforcement and Monitoring of the 55-Mile-Per-Hour Speed Limit: Hearing Before the Subcomm. on Surface Transp. of the Comm. on Pub. Works and Transp., House of Rep., 99th Cong. 27, 29 (1985) (statement of Mr. Howard) (noting that the imposition of the fifty-five mph speed limit merely meant that “some [states] in the West passed laws setting a maximum fine of $5 for violations up to seventy miles an hour. It is not considered a moving violation, the driver is charged with wasting fuel. That is not much of a deterrent.”).


THE VOID FOR VAGUENESS CONUNDRUM| LOYOLA JOURNAL | 14

The lifting of the fifty-five mph national speed limit provides for a rousing debate, but it is not within the scope of this particular article. For an interesting in-depth look at the lifting of the national speed limit, see Moore, Stephen, Speed Doesn’t Kill: The Repeal of the 55-MPH Speed Limit, http://www.cato.org/pubs/ pas/pa346.pdf. What is important for our purposes here is that every state now has a statutory maximum speed limit, most of which are sixty-five mph, in addition to a basic speed law that requires a general duty of due care when operating an automobile.

and would be reasonable and safe.” Cal. Veh. Code, § 22349(a); § 22356(a),(b). In such a case, the maximum speed limit may be increased to seventy mph for that section of highway. Id. Those limits are maximums as a matter of law, and may not be violated. People v. Lowe, 105 Cal. App.4th Supp. 1 (2002). Cal. Veh. Code, § 22350, however, sets forth “the basic speed law,” which provides that:

Current law

No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

California, as illustrative, provides for a statutory maximum speed limit of sixty-five mph, unless the Department of Transportation (DOT), in conjunction with the California Highway Patrol, determines that “a speed greater than sixty-five miles per hour would facilitate the orderly movement of vehicular traffic

All states have a basic speed law. The language may vary, but the purpose is very much the same: drive reasonable for the conditions. This basic speed law applies to all roads, and at all times, and with equal force to slow-moving vehicles. Cal. Veh. Code, § 22400 (no one, unless necessary for safe operation of the

vehicle, “shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic.”). This article focuses simply on freeways, since local streets have prima facie limits, meaning that violation of the posted limit shifts the burden to the offending driver to demonstrate compliance with “the basic speed law at the time, place and under the conditions then existing.” Cal. Veh. Code, § 22351(a). Since the application of posted speed limits is much more flexible on local city streets, the analysis of freeways, where statutory maximum speed limits are more likely to be consistently violated, provides a more straight-forward, yet still illustrative, example. I must, however, implore upon you to understand that I am not suggesting that not having speed limits in any situation is a good idea. Quite to the contrary, I think that posted limits are necessary in certain locations, such as in a school zone, or an area frequented by senior citizens (both of which are covered in the Cal. Veh. Code, § 22352(a) (C)(2)(a)-(a)(C)(2)(b)). What I mean to


15 | LOYOLA JOURNAL say here, and what this article espouses, is that there are many situations where a posted speed limit does more to hinder the orderly flow of traffic than it does to facilitate an orderly flow. In those situations, stricter enforcement of the basic speed law would yield positive, not deleterious, effects on traffic and safety. If basic speed law governs, then why not just cite based on application of the reasonableness standard? As long as one is not exceeding the statutory speed limit there is no infraction of the vehicle code, unless the basic speed law is violated. Cal. Veh. Code, § 22349(a); § 22350. That means that at all times a duty of due care is statutorily imposed on all vehicle operators to act reasonably given the circumstances. Id. This begs the question: if the basic speed law requires all operators to drive reasonably, why not just enforce that, rather than fixed statutory maximums? “ Traffic engineers have long known that n e i t h e r posted limits nor the level of enforcement are primary factors” in speed limit enforcement. To Examine the Enforcement and Monitoring of the 55-Mile-Per-Hour Speed Limit: Hearing Before the Subcomm. on Surface Transp. of the Comm. on Pub. Works and Transp., House of Rep., 99th Cong. 27, 125 (1985) (statement of John Tomerlin). On the contrary, “[i]t appears that drivers respond favorably to reasonable speed limits and disregard those that are unreasonably low.” Id. Additionally, studies show that driving-related, and system-wide, fatalities actually decreased when the speed limit was raised. (http://www. ibiblio.org/rdu/65-lives.html; http:// www.ibiblio.org/rdu/sl-irrel.html) What then, is the reason behind maintenance of statutory maximum speed limits? The answer may lie in the state of Montana.

When the Federal Aid Highway Act of 1987 was promulgated, Montana did away with the fifty-five mph speed limit. MCA 61-8-303(1). In its place was put a standard that every driver must drive “at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation.” Id. (before being amended to its current language, currently MCA 618-303(3)). That standard, as the primary restriction on speed, was in place from the Fall of 1995 through the middle of 1999. The reason it only lasted that long is because the Montana Supreme Court found it to be unconstitutionally vague. In State v. Stanko, the defendant was cited for travelling at a speed of eighty-five mph in an area where the road was “narrow, had no shoulders, and was broken up by an occasional frost heave. [Additionally, that portion of road] included curves and hills which obscured vision of the roadway ahead.” 974 P.2d 1132, 1134 (1998). The stop occurred during daylight hours, when “the roadway itself was bare and dry, there were no adverse w e a t h e r conditions,” and the defendant’s car had brand new tires. Id. Given the totality of the circumstances, however, the citing officer testified that he felt that the speed of the defendant was unreasonable. Id. The defendant testified that given the totality of the circumstances “he felt that he would have had no problem avoiding any collision at the speed that he was travelling.” Id. In finding the statute unconstitutionally vague, the court ultimately decided the case under the Montana constitution’s due process clause, but cited to the United States Supreme Court in saying that a statute is unconstitutionally vague when “ordinary people [cannot] understand what conduct is prohibited and [is phrased] in [such] a manner that [encourages] arbitrary and discriminatory enforcement.” 974 P.2d at 1136 (citing Kolender v. Lawson, 461

“...if the basic speed law requires all operators to drive reasonably, why not just enforce that, rather than fixed statutory maximums?”

U.S. 352, 357-358 (1983)). Basically, if the statute’s “prohibitions are not clearly defined” then it is unconstitutionally vague. Id. (citing with approval Grayned v. City of Rockford, 408 U.S. 104 (1972)). The court had a major problem with the indefiniteness of the statute, saying that it basically required “arbitrary and discriminatory enforcement that the due process clause in general, and the voidfor-vagueness doctrine in particular, are designed to prevent.” Id. at 1137. The court pointed to the fact that even the citing officer could not identify what he thought would have been a reasonable speed at the time and conditions the defendant was cited, and worried that motorists also would not know what conduct would be proscribed by the statute. Id. Since the case was ultimately held under Montana state, and not federal law, the ruling is not binding on other jurisdictions. The language of the Montana due process clause, however, basically mirrors the Fourteenth Amendment to the United States Constitution, as does the California due process clause. Mont. Const. art II, § 17; U.S. Const. amend. XIV, § 1; Cal. Const. art I, § 7. What is interesting here is the Montana Supreme Court’s explicit citation to United State Supreme Court precedent regarding the void-for-vagueness test. This seems to indicate that that court believes that the statute would ultimately be unconstitutional under the federal constitution as well, even if that question was never reached in the decision. The next link in the chain is one that is fairly difficult conceptually. If the Montana court found the statute to be unconstitutionally vague, then why is it still on the books? The language is slightly different, but the statute that was somehow too vague to be the one main restriction on speed now functions as the basic speed law in Montana. MCA 61-8303(3)(1). This simply makes no sense. There is now a statutory maximum speed limit of seventy-five mph, MCA 61-8303(1)(a), but a vehicle operator can still be cited for travelling at a speed that is not “reasonable and prudent under the circumstances.” MCA 61-8-303(3). Seems like that would still lead to the same arbitrary and discriminatory enforcement


THE VOID FOR VAGUENESS CONUNDRUM| LOYOLA JOURNAL | 16 that so worried the Montana Supreme Court. California’s basic speed law however, in contrast to the language of Montana’s, has been upheld under state law. See Maxwell v. Colburn, 105 Cal.App.3d 180 (1980). But why? In no case I have found has a California court analyzed the basic speed law with the depth that the Montana court did. See Ex Parte Daniels, 183 Cal. 636, 647-648 (1920). Rather, the California courts seem to just defer to the legislature, and have discussed the standard as being one simply of negligence. Maxwell v. Colburn at 914. So, if the basic speed law says that operators of automobiles have a duty to act reasonably under the circumstances up until one breaches the statutory maximum speed limit, why not apply that standard with more force at all times and do away with the statutory maximum? Understanding that the inherent public policy expressed is that breach of duty occurs ipso facto upon accelerating above the statutory speed limit, I still must ask why? One reason may be because the statute is unconstitutionally vague, and if there is no defined limit, “the lack of clarity in such a standard creates a potential for unfair and arbitrary enforcement[,]” as the Montana court cautioned in Stanko. Margaret Raymond, Penumbral Crimes, 39 AMCRLR 1395, 1438 (2002). If there is such a strong negligence standard in California regarding the basic speed law, however, then there should be no problem enforcing it. Safety no doubt would be a proffered explanation for why statutory maximum speed limits need be in place. Statistics distributed by the Montana DOT, however, show that that state had lower incidents of multiple car accidents, and lower fatality rates, during the period of time in which there was no statutory maximum. (http://www.motorists.org/ press/ montana-no-speed-limit-safetyparadox) Additionally, in a study done by the Federal Highway Administration, the primary factor in how speed plays a part in collisions is not the simple element of speed itself, but derivation from the average speed. (http://www.fhwa. dot.gov/publications/research/safety/ 98154/speed.cfm#speedincidence) Furthermore, studies show that increasing the speed limit would not

increase the average speed of drivers by very much (a mere three-to-five mph), because the average speed is already above the posted statutory maximum. Mark Arner, Boosting speed limits didn’t increase deaths in state, study finds, SAN DIEGO UNION-TRIB., Mar. 11, 2000, at A-1. (When the fifty-five mph speed limit was repealed, “actual travel speeds did not change much—only by one or two miles per hour. Drivers apparently w e r e already going faster than the old speed l i m i t s , and didn’t exceed the new limits by the same margin.”). This all serves to demonstrate one thing: the purpose of speed limits is to create some certainty, because the basic speed law is unconstitutionally vague. The negligence standard obviously can be applied, and so any worry about abolition of speed limits leading to less revenue for states because of less speeding tickets would be inherently fatal. The non-existence of a speed limit would not put safety on permanent furlough, but instead would put the emphasis on reasonableness in all situations, not just those under an artificially low statutory maximum speed limit. The worry, however, is that only having a basic speed law would lead to the arbitrary and capricious enforcement that the Montana Supreme Court was so preoccupied with. Statutory maximums help to add at least some certainty to the potentially arbitrary and capricious enforcement of a basic speed law in place to protect public safety.

be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face.” Id. (quoting Evangelatos v. Superior Court, 44 Cal.3d 1188, 1201 (1988)). But the basic speed law seems to present a situation of a statute that is impermissibly vague in all of its applications, yet it continues to be the law. This begs the question then: if the basic speed law is applicable up until the statutory m a x i m u m speed limit is reached, and that statutory maximum is based on vehicles and infrastructure from over twenty years ago and public misperception of safety concerns, why not have the basic speed law be the speed law? Possibly, because the basic speed law really is impermissibly vague. If application of the reasonable and prudent standard would prove to be ambiguous at higher speeds, assuming the speed limit is abolished, then why is it not constitutionally vague now? If the standard truly is what the Supreme Court laid forth, then how is the basic speed law sufficiently definite in its current incarnation? No one is really in conflict over the fact that the basic speed law serves the orderly flow of traffic in its current capacity, so why not apply it more definitely in all situations? The answers to those questions remain perpetually in the air. But the fact of the matter is that the law is purposefully ambiguous to facilitate such broad application. If the standard really is one of negligence, then maybe it would be best doctrinally to allow it to develop into a more definite standard in application, even if it remains inherently vague on its face, perhaps even constitutionally so.

“...the purpose of speed limits is to create some certainty, because the basic speed law is unconstitutionally vague.”

Conclusion Under California law a statute must “be impermissibly vague in all of its applications” in order to be found vague on its face. People v. Kelly, 1 Cal.4th 495, 534 (1992). “Many, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may


17 | LOYOLA JOURNAL


LOYOLA JOURNAL | 18

CAN I VOTE ON YOUR MARRIAGE?

PERRY V. SCHWARZENEGGER AND PROPOSITION H8 NATALIE N. LE Marriage is one of the “basic civil rights of man,” which is fundamental to our very existence and survival.1 Nonetheless, states are allowed to determine which groups of individuals are entitled to this fundamental right. Currently, only five states recognize same-sex marriages in their jurisdictions.2 However, California has wavered back and forth on this subject. It is now up to the Supreme Court to make the final determination of whether the states can discriminate against homosexual couples in allowing them a right to marriage. Beginning in 2000, California initiated a parallel institution of domestic partnerships for same sex couples, which offered them similar rights and benefits to married couples.3 Less than a decade later, the California Supreme Court struck down this “separate but equal” system as unconstitutional.4 It concluded that the distinction in nomenclature between “marriage” for heterosexual couples and “domestic partnerships” for homosexual individuals is discriminatory and relegates gays and lesbians to second-class status.5 After a short lived victory for proponents of gay marriages, Proposition 8 passed in 2008. It amended California’s Constitution to provide that “(o)nly marriage between a man and a woman is valid or recognized in California.”6 Currently, Perry v. Schwarzenegger is before the U.S. Supreme Court and the plaintiffs are alleging Proposition 8 violates their Fourteenth Amendment rights to the equal protection of the laws.7 Although marriage is a social institution subject to the state’s police power, it is still constrained by the Fourteenth Amendment.8 The Equal

Protection Clause of the Fourteenth Amendment prevents the states from denying any persons within its jurisdiction the equal protection of the laws.9 The Equal Protection Clause “neither knows nor tolerates classes among citizens.”10 In finding a state statute unconstitutional under this law, the court will apply different standards of review based on the particular classification of the group. If the court finds that a law discriminates against a “suspect class,” the Court will apply strict scrutiny.11 Any groups that fall outside a suspect class will receive a less deferential standard of review, such as intermediate scrutiny or rational basis.12 The different levels of review provide protection for “prejudice a g a i n s t d i s c r e t e and insular minorities.” 13 This “discrete and insular” characteristic is interpreted as an immutable trait “which its possessors are powerless to escape or set aside.”14 The rationale behind this standard is to prevent discrimination of groups of people who bear certain traits that are outside of their control. Although the Supreme Court has concluded that race is a suspect class and sex is a quasi-suspect class (which calls for intermediate/heightened scrutiny), the Court has not addressed where sexual orientation falls under this spectrum. 15

and sexual orientation discrimination.16 They argue that sex and sexual orientation are interrelated because sexual orientation is a person’s choice of romantic or intimate partner based on sex.17 Professor Gregory Herek, in testifying for the plaintiffs, explained that sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers are facing in defining sexual orientation are similar to those they face in defining race.18 He also indicated that there is no evidence of a “conversion therapy” that can change a person’s sexuality and that it sends a deceiving message to the young generation that homosexuality is somehow a disorder.19 Thus, it is fair to conclude that sexual orientation is an immutable trait that is not within the control of the individual as most people believe. Nonetheless, even if the Court applied the lowest level of scrutiny, there still cannot be a rational state interest in preventing same-sex couples from obtaining a marriage license.

“Although marriage is a social institution subject to the state’s police power, it is still constrained by the Fourteenth Amendment.”

The plaintiffs in Perry argue for at least heightened scrutiny based on sex

The state interests the proponents of Proposition 8 are advancing are reminiscent of arguments that once accompanied anti-miscegenation laws. Up to the late 1960s, over half the states criminalized mixed-race marriages.20 These anti-miscegenation statutes that prevented interracial marriages were premised on preservation of tradition, protection of the future of its children,


19 | LOYOLA JOURNAL and religion as legitimate state interests. These arguments were in actuality a façade to veil personal prejudices in order to maintain white supremacy. It was not until the seminal case of Loving v. Virginia (1967) that the Supreme Court ruled anti-miscegenation laws unconstitutional because the Fourteenth Amendment requires that the freedom of marriage cannot be restricted by racial discriminations.21 Nonetheless, history has a way of repeating itself. Now Perry v. Schwarzenegger (2011) also stands before the Supreme Court to determine whether the Fourteenth Amendment requires that the freedom of choice to marry can be restricted by sexual orientation discriminations. Synonymously, the proponents of Proposition 8 also premise their arguments on preservation of tradition, protection of the future of its

children, and religion as legitimate state interests. In reality, these arguments are backed by homophobic sentiment and the desire to group homosexual individuals as second-class citizens. This article will argue that there is no rational state interest in banning same sex marriage based on Proposition 8’s alleged state interests. First, preserving the traditions of marriage is never a rational state interest. Second, any concerns for the future of our children living in stable households would only be undermined by the ban. Finally, religion and morality can never be a legitimate state interest. I. State Interest #1: Marriage Is Traditionally An Institution Between One Man And One Woman Because it Promotes Procreation.

The proponents of Proposition 8 argue that the state has an interest in preserving the traditional institution of marriage as between a man and a woman because it promotes stability in naturally procreative relationships.22 Proponents of anti-miscegenation statutes also relied on tradition to support their argument that marriage has always been the tradition of the state to maintain separate marital relations between the whites and black.23 It is an insufficient argument for states to prevent certain marriages merely based on the notions of tradition. To refuse a marriage license to certain couples because the definition of “marriage” does not recognize it and then to reaffirm this definition by reference to tradition, is deceptively circular.24 Of course the obvious difference between interracial heterosexual couples and homosexual


CAN I VOTE ON YOUR MARRIAGE?| LOYOLA JOURNAL | 20 couples is their ability to procreate. However, if there is a legitimate concern about biological differences between the male and female anatomy that allows for procreation, then why are infertile couples also not denied the right to marry either? The true reasons for marriage are love, support and commitment and not just about procreation. The argument that marriage is meant to promote procreation has caused the discussion of same-sex marriages to be filled with sexual undertones. Marriage allows people to be public about their relationship without having to sacrifice their sexual privacy.25 For instance, when people announce that they are getting married, it is rarely asked what they do in the privacy of their own bedroom. People do not automatically assume that a heterosexual couple is getting married

because sex is their primary motivator. However, the privacy that veils sexuality in marriage historically for interracial couples then, and for same-sex couples today is not respected.26 For example, anti-miscegenation laws turned the relationship of interracial couples into illegal, sexual relationships between unmarried couples, making their relationships appear illicit and casual.27 Interracial couples were contrasted with mono-race relationships and viewed as something pornographic between black men and white women.28 Intimacy was ignored and sexual desire and attraction were claimed to be the motivating factor for such relationships.29 Similarly, the ban on same sex marriages also makes homosexual relationships appear illicit and casual. There are stereotypes that sexualize

homosexual individuals, making them seem more promiscuous and, as a result, rarely monogamous. In reality, these relationships exist as much in the gay community as they do in the straight community. Homosexual relationships also vary across the spectrum, but can also be more about love and affection than sex, just like heterosexual relationships. Former President Bush’s statement is the epitome of most anti-gay marriage sentiment based on mere sexuality: “I’m not for gay marriage. I think marriage is a sacred institution between a man and a woman . . . . I will be a tolerant person . . . . I don’t hire or fire somebody based upon their sexual orientation….I don’t really think it’s any of my, you know, any of my concerns how you conduct your sex life. And I think that’s a private matter.”30


21 | LOYOLA JOURNAL He distinguished the intimacies of marriage with that of a sexual relationship. As a result, the debate today really seems to focus on sexuality, rather than marriage.31 The reason why concepts of marriage, such as love and commitment, were ignored when passing laws that ban interracial or same sex marriage may lie in the use of marriage as a mere vehicle to maintain a power imbalance. Antim i s c e ge n at i o n laws protected the state from assimilation of “undesirables” into white society through marriage.32 Thus, marriage was used to maintain white supremacy.33 On the other hand, laws such as Proposition 8 attempt to subordinate homosexual individuals by keeping their relationships invisible and elevating heterosexual supremacy.34 In sum, marriage becomes a means for the majority class to discriminate against minorities among the purported backdrop of the state interest claim of preserving tradition and promoting procreation.

family unit and a homosexual one is that children raised by same -sex couples will not have both a biological mother and father. Gay marriage opponents argue that children need a male and female figure in order to fully develop to their full potential.37 However, as many family structures t o d a y p r o v e , c h i l d rearing is more effective with quality p a re nt i n g s k i l l s , rather than having two biological parents. 38 Children raised by homosexual parents are just as well-rounded as those raised by heterosexual parents. Developmental psychologist Michael Lamb testified, on behalf of the plaintiffs in Perry, that there have been substantial studies since the late 1970s that focus on children raised by homosexual parents.39 These studies all conclude that children do not need to have specifically masculine and feminine behaving parents to be successful and well adjusted.40 Furthermore, other countries have allowed same-sex marriages for years and have yet to prove that children from homosexual households are more disadvantaged. For example, studies of the effects of same-sex marriages in Scandinavian countries have showed homosexual marriages do not “undermine society, harm children or lead to the parade of horribles that opponents have suggested.”41 These children may even be more appreciative and tolerant of human diversity because, like many children of oppressed groups, strength comes through adversity.42 In conclusion, if promoting stable households is really the state interest, its discriminatory effects on same-sex households would only undermine any such interests by putting children raised by homosexual parents at a disadvantage.43

“No matter how deep their convictions, the majority may not use the power of the State to enforce these views on the whole society”

II. State Interest #2: Banning Same Sex Marriage Will Promote Stable Family Structures for the Sake of the Children The proponents of Proposition 8 argue the state has in interest in promoting stable family structures which allow children to be properly raised by both a biological father and mother.35 A similar argument was also made by those who opposed interracial marriages. These same people expressed concern for the health of their future children who would be born into interracial marriages and would therefore lack a real sense of cultural identity because of their multiracial parents.36 Both these arguments are premised on concerns of childrearing as a critical aspect of marriage, arguing that children brought up in same-sex or interracial marriages will somehow be at a greater disadvantage. The difference between an interracial heterosexual

III. State Interest #3: Same Sex Marriage is Immoral Proposition 8 proponents also assert

the moral superiority of opposite-sex couples aback a religious backdrop.44 Similarly, the religious rationale for antiinterracial marriages argued that the “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”45 Both premise their arguments on morality and religion. However, in defending Proposition 8, the defendants in Perry abandoned this arguments because they knew that “(t)he state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”46 Nevertheless, religious proponents of Prop 8 continue to argue that marriage is a sacred institution between opposite sex couples, so same sex marriages are immoral. What individuals believe to be immoral is not always based merely on their religious purview of things, but rather stems from an irrational source. Philosopher John Stuart Mill suggests that individuals tend to collectively interfere with other individuals’ rights as a means to self-protection.47 He stated that “there are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings.”48 Social psychology and neuroscience studies have also made a compelling case that many moral judgments about sexuality are “not the product of a deliberate, rational thought process that involves weighing and evaluating competing arguments…(but instead) are made intuitively, emotionally, rapidly, and largely outside of conscious awareness.49 For example, a leading scholar on moral emotions Professor Jonathan Haidt, conducted a study which college students were verbally presented with brief scenarios describing conduct that violates social norms, including homosexuality.50 The students were then asked questions such as how they felt about the conduct described and whether anyone was harmed by the conduct.51 The study


CAN I VOTE ON YOUR MARRIAGE?| LOYOLA JOURNAL | 22 demonstrated that the participants’ moral judgments correlated with their emotional reactions to the conduct, rather than to any logical reason, because most students condemned the scenarios instantly but stumbled to explain why later.52 For example, one participant gave the following response when asked about her condemnation of a gay anal sex scenario: “I don’t know, um [long pause], I guess, I don’t know, I just don’t really believe in premarital sex anyway, but, and obviously they’re not married so . . . .”53 This study demonstrated that “dumbfounding along with affective condemnation” are signs of emotionally driven judgment.54 Professor Richard E. Redding also argues that most opponents of same sex marriage comes from a deeper sense that homosexuality is disgusting, immoral and sinful.55 He elaborates that the “disgust reaction that many feel toward the sexual practices of gays and lesbians, particularly gay anal sex” results in the “intuition that homosexuality is immoral.”56 What is considered disgusting varies by culture and societal norms.57 We tend to be disgusted with practices and people that are unfamiliar to us.58 As a result, knowing homosexual individuals can substantially reduce homophobic prejudices.59 Our moral disgust is ultimately the source of prejudice and ignorance. For example, menstruating women, the mentally disabled, and interracial individuals have all once been viewed with disgust.60 “If disgust wasn’t a good moral indicator then, why should it be now?”61 Every individual is entitled to his or her own religious beliefs about acceptable behavior. No matter how deep their convictions, the majority may not use the power of the State to enforce these views on the whole society.62 Justice Kennedy in Lawrence v. Texas (2003) clarified that the Court’s “obligation is to define the liberty of all, not to mandate our own moral code.”63 Thus, any arguments that oppose homosexual marriages based on religious morality should be discounted because the state cannot re-enforce the biases of the majority. CONCLUSION Those who wrote the Constitution “knew times can blind us to certain

truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”64 The Constitution protects the “people” and when the majority attempts to silence and trump fundamental rights of the minority, the ten percent of the population in this instance, the judicial branch must step in and protect them. The California District Court in Perry v. Schwarzenegger ruled in favor for the plaintiffs and against Proposition 8. Judge Walker concluded that California has no rational interest in denying same sex couples marriage licenses.65 The arguments that the ban on same sex marriage preserves the traditions of marriage and promotes a stable household are all without merit. Thus, what is left is merely a moral disapproval of a group of citizens, which will not suffice no matter how large the majority shares in such views.66 “Proposition 8 is beyond the constitutional reach of the voters or their representatives.”67 ENDNOTES

17. Id. at 120. 18. Id. at 16; Professor Gregory M. Herek is an internationally recognized author of scholarly articles based on homosexual prejudices. 19. Id. 20. Josephine Ross, The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage, 37 Harv. C.R.-C.L. L. Rev. 255, 262 (2002). 21. Loving, 388 U.S. at 11. 22. Perry, supra note 7 at 123, 137. 23. Ross, supra note 20, at 266. 24. Green, supra note 2, at 32. 25. Ross, supra note 20, at 259. 26. Id. 27. Id. at 263. 28. Ross, supra note 20, at 256. 29. Id. at 278. 30. Id. at 282. 31. Richard E. Redding, It’s Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust, 2007, at 167, available at http://ssrn.com/abstract=1104740. 32. Zvi Triger, Fear of the Wandering Gay: Some Reflections on Citizenship, Nationalism, and Recognition of Same-Sex Relationships, 2011, at 14, available at http://ssrn.com/abstract=1731519. 33. Id. 34. Ross, supra note 20, at 271-72; Triger, supra note 32 at 3. 35. Perry, supra note 7 at 127. 36. Ross, supra note 20, at 267-68. 37. Perry, supra note 7 at 6.

1. Loving v. Virginia, 388 U.S. 1, 12 (1967).

38. Redding, supra note 31, at 140.

2. Sonia Bychkov Green, Currency of Love: Customary International Law and the Battle for Same-Sex Marriage in the United State, Mar. 1, 2010, at 12, available at http://ssrn.com/abstract=1562234 (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire allow same-sex marriage; Rhode Island, New York and the District of Columbia recognize same-sex marriages from other states but do not recognize it in their own states). 3. Aristides N. Hatzis, The Negative Externalities of Immorality: The Case of Same-Sex Marriage, 2006, at 53, available at http://ssrn.com/abstract=909804. 4. In re Marriage Cases, 183 P.3d 384 (Cal 2008).

39. Perry, supra note 7 at 17.

5. Green, supra note 2, at 15. 6. Cal. Const. Art. I, § 7.5. 7. See Pretrial Proceeding and Trial Evidence, Perry v. Schwarzenegger, 3:2009cv02292 (N.D. Calif. filed June 16, 2010) (the plaintiffs also argue under the due process clause, but this article will focus only on the equal protection argument). 8. Loving, 388 U.S. at 7. 9. U.S. Const. amend. XIV, § 1. 10. Lawrence v. Texas, 539 U.S. 559, 584 (2003) (O’Connor, J., concurring). 11. Kari Balog, Equal Protection for Homosexuals: Why The Immutability Argument Is Necessary And How It Is Met, 53 Clev. St. L. Rev. 543, 550 (2005-2006).

40. Id. 41. Green, supra note 2, at 30. 42. Redding, supra note 31, at 152. 43. Perry, supra note 7 at 128. 44. Id. at 8. 45. Loving, 388 U.S. at 2. 46. Perry, supra note 7 at 8. 47. Hatzis, supra note 3, at 58. 48. Id. at 59. 49. Redding, supra note 31, at 163. 50. Id. 51. Id. 52. Id. 53. Id. 54. Id. 55. Id. at 154-55; Professor Richard E. Redding was a elected a Fellow of the American Psychological Association, a distinction awarded “in recognition of outstanding and unusual contributions to the science and profession of psychology.”

12. Id.

56. Id. at 155.

13. U.S. v. Carolene Products, 304 U.S. 144, 153 n.4 (1938).

57. Id.

14. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978)). 15. See U.S. v. Virginia, 518 U.S. 515 (1996) (indicating that sex discrimination is subject to intermediate scrutiny because there are real biological differences between sexes and so it can sometimes be a legitimate discriminator); see Lawrence, 539 U.S. 559, 574 (holding the anti-sodomy laws was ‘‘born of animosity toward the class of persons affected’’ and that it had no rational relation to a legitimate governmental purpose); see Romer v. Evans 517 U.S. 620, 631-32 (1996) (determining that a Colorado constitutional amendment aimed at denying homosexuals minority status protection would not even pass a rational basis, but avoided determining the requisite level of review). 16. Perry, supra note 7 at 5-6.

58. Id. at 165. 59. Id. 60. Id. 61. Id. at 165. 62. Lawrence, 539 U.S. at 571. 63. Id. 64. Id. at 578-79. 65. Perry, supra note 7 at 135. 66. Id. at 24. 67. Id.


23 | LOYOLA JOURNAL


LOYOLA JOURNAL | 24

THE NCAA’S CLASSIFICIATION OF STUDENT ATHELETES AS AMATEURS ROBERT BLANCO

INTRODUCTION The sports industry is a big business. News of star athletes signing contracts for millions of dollars hardly phases the casual sports fan. Although collegiate athletics features amateur athletes, they are certainly not immune from the complications of big businesses. College sports bring in staggering revenues from the sales of licensed products and extremely lucrative television contracts.1 The NCAA has drawn criticism for its insistence on maintaining the amateur status of its student athletes. These critics argue that it is unfair for the NCAA and its member institutions to profit so profoundly from the unpaid performance of student athletes who generate all of the revenue.2 These criticisms are assuaged by the value student athletes receive in the form of scholarships, gifts, and other compensation.3 For example, over 126,000 student athletes receive approximately $1 billion in athletic scholarships each year.4 This figure does not include the miscellaneous gifts that athletes receive, such as clothing, equipment, and various other items. Football players whose teams participate in bowl games regularly receive up to $500 of gifts, including watches, TVs, electronics, clothing, and even recliners.5 Whether they are called scholarships, gifts, or “other compensation”, current student athletes are certainly rewarded for their performances.

However, once student athletes leave school, they can no longer excuse the lack of profit sharing with the type of compensation they received as students. They no longer receive scholarships or gifts from their alma matters or the NCAA, yet the NCAA continues to profit from them.6 Many former student athletes are finding themselves in a variety of media from television commercials to video games, assuming the identity they had as student athletes, all for the financial benefit of the NCAA. While the NCAA makes approximately $4 million per year from licensing revenues, the former athletes receive nothing.7

receiving compensation for the use of their likenesses.9 The NCAA is understandably tepid about sharing the profits they receive from their licensing deals. While the money is a large and important issue, current and former student athletes have much more at stake than simply a share of the profits. The former athletes challenging the NCAA’s position stand to gain or lose control of how their images are used and more importantly, what product, company or event is associated with their images. Furthermore, future student athletes are now faced with a difficult decision, knowing that if they play collegiate athletics, they lose control of their likeness. However, a high school senior is not likely to understand the magnitude of that sacrifice. This is not to say that foregoing collegiate athletics is a better option. For highly touted high school athletes, refusing a scholarship to a prestigious athletic program risks ruining a lucrative professional career, not to mention the publicity and notoriety many college athletes enjoy. Either way, student athletes are faced with negative long term consequences as the situation currently stands.

“...critics argue that it is unfair for the NCAA and its member institutions to profit so profoundly from the unpaid performance of student athletes who generate all of the revenue.”

In a current lawsuit, many former student athletes have challenged the NCAA’s position that the NCAA owns the rights to its student athletes’ likenesses in perpetuity.8 Led by former UCLA basketball star Ed O’Bannon, the class action suit filed in federal court alleges that the NCAA, its licensing arm Collegiate Licensing Company, and Electronic Arts violated antitrust laws and unlawfully deprived former student athletes from


25 | LOYOLA JOURNAL

BACKGROUND NCAA The Collegiate Licensing Company (“CLC”), owned by IMG Worldwide (“IMG”), is the NCAA’s official licensing representative. 10 CLC manages the licensing rights for more than two hundred institutions, including universities, athletic conferences, and even bowl games. This amounts to more than $3 billion in retail sales. 11 CLC and IMG sell the rights to a vast array of merchandise and products, including apparel, media rights to television, video clips for advertising, video games, DVDs, photos, trading cards, posters, and rebroadcasts of classic games.12 The popularity of these items continues to increase rapidly. For example, the NCAA and specific conferences have extremely lucrative television contracts with various stations that are valued in the billions of dollars.13 These telecasts often include clips of past student athletes in order to develop storylines and provide richer viewing

experiences. Former athletes whose images are used have not given permission for such use and are not compensated. Furthermore, there is a rapidly increasing demand for videos of past games and championships. Accordingly, the NCAA now sells thousands of different commemorative DVDs, the vast majority of which contain content exclusively from former student athletes. Videos of past events are also licensed to be shown on television via networks like ESPN Classic and other online “on demand” video sites.14

to preserving the sports’ history and providing an archive, TEM explicitly serves to monetize the footage. 16 TEM creates revenue for the NCAA by licensing videos for use in films, commercials, documentaries, and other media.17 The individual a t h l e t e s captured in the videos cannot voice whether their performance is sold or who it is sold to.

“...the NCAA requires all student athletes to sign forms in order to be granted eligibility to play. One form...requires each player to relinquish all rights to their likenesses.”

One company that facilitates the sale of NCAA videos is Thought Equity Motion (“TEM”). TEM has partnered with the NCAA to manage the extensive library of athletic footage. 15 In addition

According to the complaint filed in the O’Bannon case, the NCAA requires all student athletes to sign forms in order to be granted eligibility to play.18 One form that the NCAA relies on in particular is Form 08-3a, which requires each player to relinquish all rights to their likenesses.19 Part IV of this form states that the student


THE NCAA’S CLASSIFICIATION OF STUDENT ATHELETES| LOYOLA JOURNAL | 26 athlete authorizes the NCAA or an approved third party to use the student’s name or picture to generally promote NCAA championships, events, activities, or programs.20 The NCAA uses this form to justify its sale of student athletes’ likenesses. Arguably anything can be seen as promoting the NCAA’s events, giving the NCAA wide latitude to distribute the likenesses of its student athletes. Furthermore, there is no express time limit, and no language to suggest that the agreement expires upon the student’s graduation. Plaintiffs allege that these terms are limited to current student athletes if they are valid at all.21 In their complaint, they argue that these terms are unconscionable because they do not state clearly what rights are being relinquished, the parties do not bargain over the terms, and the form is often signed by minors.22 Furthermore, plaintiffs argue that the NCAA’s practices are anticompetitive in nature because the CLC, TEM, and other partners control all rights to the distribution of former players’ likenesses.23

FORMER PLAYERS The original suit was brought by Ed O’Bannon, former UCLA basketball star and member of the 1995 NCAA Championship team.24 Since then, he has been joined by a number of other plaintiffs. The most notable addition has been Oscar Robertson, standout at the University of Cincinnati and member of the NBA Hall of Fame.25 Robertson noticed that his collegiate image was being printed on Upper Deck and Donruss trading cards, licensed by CLC.26 These cards feature him in his University of Cincinnati uniform and some even come with pieces of his game-worn uniform attached.27 Robertson took offense to this, noting that he never signed anything agreeing to the use of his collegiate image on trading cards, yet the NCAA earns money from them and he does not.28 His likeness has also been distributed in videos of past championship footage sold by TEM.29

Another plaintiff is former University of Connecticut basketball player Tate George.30 George made one of the most iconic shots in NCAA Tournament history to beat Clemson by one point in 1990.31 The shot is still discussed in the media today, and George is routinely interviewed about it.32 TEM also distributes the video of this shot extensively and it has been used in commercials for Vitamin Water, McDonald’s, Burger King, Buick, Chrysler, and Cadillac.33 Of course, George never consented to have his image associated with these companies and never received compensation for them.34

LAW The right to publicity is a relatively new legal doctrine. It was first delineated as a separate right in 1953, by the Second Circuit.43 In Haelan Laboratories v. Topps Chewing Gum, the court reasoned that “prominent persons … would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.”44 Usually, this right of publicity would not yield them any money, unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures. 45 Thus, the right to publicity protects public figures from the exploitative attempts of third parties to unjustly profit at their expense.

“... the right to publicity protects public figures from the exploitative attempts of third parties to unjustly profit at their expense.”

EA SPORTS Another party involved in the O’Bannon case, as well as other similar lawsuits, is Electronic Arts (“EA”).35 EA makes a variety of sports video games based on both professional and NCAA sports.36 Professional sports games, such as the Madden NFL series, contain the names, jersey numbers, information, and physical characteristics of the players on each team’s roster.37 EA bargains with the NFL and NFL Players’ Association and pays them a licensing fee to use the players’ likenesses.38 In contrast, for EA’s collegiate sports games, the players contain much of the same information that exists in Madden, although their names are not used.39 Players retain the actual physical characteristics, such as height, weight, skin color, and even individual accessories like visors or armbands.40 EA does not have a licensing agreement for player’s names with the NCAA or CLC because EA argues that players’ likenesses are not used.41 EA maintains this stance despite the realistic and specific attributes of the players and the fact that gamers can download rosters from an EA website.42

However, Justice Kennedy expressed her fear that the right of publicity could potentially expand to a point where it is more harmful than beneficial.46 While it seems clear that the right of publicity serves a worthwhile role, Kennedy cautioned that “society’s interests in free enterprise and free expression must be balanced against the interests of an individual seeking protection in the right of publicity.”47 With these interests in mind, how do former student athletes prove that their right to publicity has been abridged? California Civil Code section 3344 awards damages to anyone who has had their likeness used without their consent, for the purpose of advertising or selling products.48 Furthermore, the Restatement (Third) of Unfair Competition section 46 explains what elements must be proved. These elements have been simplified as: 1. Defendants’ use of Plaintiffs’ identity 2. Identity that has commercial value


27 | LOYOLA JOURNAL issues to consider. Society benefits from a strong body of intellectual property law, ensuring that public figures have control of the dissemination and profits associated with their right to publicity. As such, it seems reasonable that former student athletes should control the dissemination of their own likenesses. Arguably, they have a stronger claim to their publicity than the NCAA, an association they were merely associated with for only a short period of time. Because student athletes are young, allowing the NCAA to control their likeness in perpetuity deprives them of a lifetime of control and potential wealth. This is a large sacrifice to ask of an eighteen year old.

3. Use of the commercial value for trade 4. Lack of consent, and 5. Resulting commercial injury49 The first and second elements appear to provide the most room for argument. It is likely that the first element is easily proven by former student athletes. In most cases, former student athletes should be able to point to distinct uses by Defendants of their likenesses. One area of possible difficulty could be the video game sphere, where EA argues that it does not use students’ likenesses. However, even that defense is weak, considering the vast amount of details players and rosters contain. The second element may cause former athletes trouble. The representative

plaintiffs in the O’Bannon case can and have easily demonstrated that their identities are valuable to the NCAA, as evidenced by the merchandise and advertising sales they have generated. However, for a class action suit, alleging damages for all former student athletes, this element could present many problems of proof. There are many student athletes who contribute to the prosperity of their sports, yet they are not well-known. Persuading a court that their present identities, after their playing careers have ended, constitute a commercial value could be difficult, if not impossible. CONCLUSION The claims of former student athletes present a multitude of societal and legal

From a fairness perspective, there is something disconcerting about the NCAA profiting so much from its former athletes. Although the NCAA’s insistence that its athletes remain amateurs has drawn increasing criticism, there is at least a theoretical innocence to it. As noted above, current student athletes also receive a variety of benefits, no doubt financed by the substantial profits the NCAA earns. To deprive former student athletes of their earnings however, is more serious. A ruling for the NCAA would effectively say that the monetary value a former student athlete can provide to the NCAA and other advertisers is more important than the athlete’s autonomy. The ultimate unfairness to a former student athlete occurs not just from the lack of profit sharing, but when the student’s likeness is associated with a product that is disagreeable to him or her. The outcome of the various cases being brought by both current and former student athletes requesting their share of the profits will have drastic effects on the future landscape of collegiate athletics. Should the former student athletes succeed, many will have a very difficult time proving their damages with any certainty. Regardless of how damages are measured, it is safe to assume that it would create a substantial financial strain on the NCAA.


THE NCAA’S CLASSIFICIATION OF STUDENT ATHELETES| LOYOLA JOURNAL | 28 ENDNOTES 1. Thomas O’Toole, NCAA Reaches 14-year deal with CBS/Turner for Men’s Basketball Tournament, Which Expands to 68 Teams for Now, USA Today, Apr. 22, 2010, http://content.usatoday.com/communities/ campusrivalry/post/2010/04/ncaa-reaches-14-yeardeal-with-cbsturner/1 2. Michael Rosenberg, Change is Long Overdue: College Football Players Should be Paid, Sports Illustrated, Aug. 26, 2010, http://sportsillustrated.cnn.com/2010/ writers/michael_rosenberg/08/26/pay.college/index. html. 3 Peter Corbett, Fiesta Bowl to Give Out Thousands of Dollars in Gifts, The Arizona Republic, Jan. 4, 2011, http://www.azcentral.com/news/article s/2011/01/04/20110104fiesta-bowl-teams-gifts.html (last visited Mar. 20, 2011). 4. Undergraduate Athletic Scholarships, http://www. ncaa.org/wps/portal/ncaahome?WCM_GLOBAL_ CONTEXT=/ncaa/NCAA/Academics+and+Athletes/ Scholarships+and+Internships/Undergraduate+Athletic +Scholarships (last visited, Mar. 20, 2011). 5. Peter Corbett, Fiesta Bowl to Give Out Thousands of Dollars in Gifts, The Arizona Republic, Jan. 4, 2011, http://www.azcentral.com/news/articles/2011/01/04/ 20110104fiesta-bowl-teams-gifts.html (last visited Mar. 20, 2011). 6. Peter Corbett, Fiesta Bowl to Give Out Thousands of Dollars in Gifts, The Arizona Republic, Jan. 4, 2011, http://www.azcentral.com/news/articles/2011/01/04/ 20110104fiesta-bowl-teams-gifts.html (last visited Mar. 20, 2011). 7. The Collegiate Licensing Company: CLC History, http://www.clc.com/clcweb/publishing.nsf/Content/ history.html (last visited Mar. 19, 2011). 8. Complaint at 8, Robertson v. Nat’l Collegiate Athletic Ass’n. 9. See Complaint, Robertson v. Nat’l Collegiate Athletic Ass’n. 10. Michael McCann, NCAA Faces Unspecified Damages, Changes in Latest Anti-trust Case, Sports Illustrated, July 21, 2009, http://sportsillustrated. cnn.com/2009/writers/michael_mccann/07/21/ncaa/ index.html (last visited Mar. 19, 2011). 11. Complaint at 39, Oscar Robertson, et al. v. NCAA, et al., 11-388 (ND Cal 1-26-2011). 12. Complaint at 49, Robertson v. Nat’l Collegiate Athletic Ass’n. 13. Thomas O’Toole, NCAA Reaches 14-year deal with CBS/Turner for Men’s Basketball Tournament, Which Expands to 68 Teams for Now, USA Today, Apr. 22, 2010, http://content.usatoday.com/communities/ campusrivalry/post/2010/04/ncaa-reaches-14-yeardeal-with-cbsturner/ 14. Delivering NCAA® Sports Action, http://www. thoughtequity.com/video/home/ncaa.do (last visited, Mar. 19, 2011). 15. Delivering NCAA® Sports Action, http://www. thoughtequity.com/video/home/ncaa.do (last visited, Mar. 19, 2011). 16. Sell your footage with Thought Equity Motion, http://www.thoughtequity.com/video/home/sell_ footage.do (last visited, Mar. 19, 2011). 17. Sell your footage with Thought Equity Motion, http://www.thoughtequity.com/video/home/sell_ footage.do (last visited, Mar. 19, 2011). 18. Complaint at 8-9, Robertson v. Nat’l Collegiate Athletic Ass’n. 19. Complaint at 8-9, Robertson v. Nat’l Collegiate Athletic Ass’n. 20. Complaint at 48, Robertson v. Nat’l Collegiate Athletic Ass’n. 21. Complaint at 48, Robertson v. Nat’l Collegiate Athletic Ass’n. 22. Complaint at 48, Robertson v. Nat’l Collegiate Athletic Ass’n. 23. Michael McCann, NCAA Faces Unspecified Damages, Changes in Latest Anti-trust Case, Sports Illustrated, July 21, 2009, http://sportsillustrated. cnn.com/2009/writers/michael_mccann/07/21/ncaa/ index.html (last visited Mar. 19, 2011). 24. Michael McCann, NCAA Faces Unspecified Damages, Changes in Latest Anti-trust Case, Sports Illustrated, July 21, 2009, http://sportsillustrated. cnn.com/2009/writers/michael_mccann/07/21/ncaa/ index.html (last visited Mar. 19, 2011). 25. Dan Wetzel, Robertson Joins Suit vs. NCAA, Yahoo! Sports, Jan. 26, 2011, http://sports.yahoo.com/top/ news?slug=dw-robertson012611&print=1 (last visited, Mar. 19, 2011).

26. Dan Wetzel, Robertson Joins Suit vs. NCAA, Yahoo! Sports, Jan. 26, 2011, http://sports.yahoo.com/top/ news?slug=dw-robertson012611&print=1 (last visited,Mar. 19, 2011). 27. Complaint at 19-27, Robertson v. Nat’l Collegiate Athletic Ass’n. 28. Dan Wetzel, Robertson Joins Suit vs. NCAA, Yahoo! Sports, Jan. 26, 2011, http://sports.yahoo.com/top/ news?slug=dw-robertson012611&print=1 (last visited, Mar. 19, 2011) (“The arrogance of the NCAA to say, ‘we have the right to do this,’ … is what troubles me the most,” Robertson told Yahoo! Sports on Wednesday. “The University of Cincinnati gets a fee each time my picture is used on a card. I don’t. When I played there, there was nothing like this ever agreed to.”). 29. Complaint at 27, Robertson v. Nat’l Collegiate Athletic Ass’n. 30. Complaint at 4, Robertson v. Nat’l Collegiate Athletic Ass’n. 31. Complaint at 4, Robertson v. Nat’l Collegiate Athletic Ass’n. 32. Complaint at 4, Robertson v. Nat’l Collegiate Athletic Ass’n. 33. Complaint at 4, Robertson v. Nat’l Collegiate Athletic Ass’n. 34. Complaint at 4, Robertson v. Nat’l Collegiate Athletic Ass’n. 35. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 36. Complaint at 77, Robertson v. Nat’l Collegiate Athletic Ass’n 37. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 38. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 39. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 40. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 41. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 42. Trent Merrell, Biggest Problem Facing College Sports: Not BCS, It’s Video Games, IP Watchdog, Feb. 5, 2010, http://ipwatchdog.com/2010/02/05/biggestproblem-facing-college-sports-not-bcs-its-videogames/id=8566/ (last visited Mar. 19, 2011). 43. Anastasios Kaburakis et al., NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the Video Game Industry: The Keller Forecast, 27 Ent. & Sports L. 1, 20 (2009). 44. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 45. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 46. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 840 (6th Cir. 1983) (Kennedy, J., dissenting). 47. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 839 (6th Cir. 1983) (Kennedy, J., dissenting). 48. Cal. Civ. Code § 3344. 49. Anastasios Kaburakis et al., NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the Video Game Industry: The Keller Forecast, 27 Ent. & Sports L. 1, 23 (2009).


29 | LOYOLA JOURNAL


LOYOLA JOURNAL | 30

LAW SCHOOL TRANSPARENCY DANA OLSEN

We have heard it before, and we will hear it again: For law students graduating in the Class of 2011, the job market is bleak. In 1985, 91.5 percent of law graduates were employed, and by 2001, the employment rate had not dropped at all.1 By 2009, however, only 88.3 percent of law graduates were employed, with just 70.8 percent of graduates in positions requiring bar passage.2 Of that 88.3 percent, many of the employed graduates are only working part-time, and a reported 22 percent are looking for other work.3 The legal world is an entirely different place now than it was 25 years ago. In fact, it is an entirely different place than it was in 2007, when most of the current graduates made the decision to attend law school. In that year, a record 91.9 percent of law school graduates were employed.4 Since 2008, approximately 15,000 attorney positions at large firms have vanished, in the form of lay-offs and a failure to hire to new attorneys for positions that have been vacated.5 Above the Law, a popular law blog, reported on one example of unemployment in January 2010. The headline itself is scary enough for law students – “Ivy League Law School Graduate Begs for Work on Craigslist” – and then it gets worse.6 The relevant portion of the ad reads as follows: “Graduate of top-5 law school with big firm and federal government experience seeking employment, preferably full-time but also will consider contract, per diem and part-time work. I have experience in litigation, arbitration, regulatory and administrative matters, among other areas.”7 If an attorney who graduated from a top-5 school with all imaginable types of

legal experience is begging for part-time work, the outlook is not good for the average law student at an average top100 school. As many law students will tell you, hearing horror stories of lack of postgraduation employment does not help abate fear of the same. If the job market is terrible, it does not help to discuss how terrible it is. Instead, law schools and professional legal organizations such as the American Bar Association (“ABA”) are being asked to attack the effect of the economic downturn on job-seeking law graduates by lessening the competition.8 The ABA and law school officials have no control over the current job market. What they do have control of, however, is how many students apply to law school, and how many of them are accepted. Although volume of law school applications dropped a negligible amount in 20119, law school applications were at an all-time high in 2009 and 2010.10 At the same time, most law firms are either on hiring freezes or cutting jobs outright.11 It doesn’t take a mathematician to figure out that this is a problem for law students. Since the beginning of the 2010-2011 academic year, a fundamental change in law school recruitment and admission has been in the works. Law School Transparency (“LST”), a Tennesseebased nonprofit organization dedicated to providing more accurate employment information to prospective and current students, is pushing the ABA and law schools all over the nation to be honest about the cost of law school and the chance of finding a job after graduation.12 In essence, the rationale behind the push, formally titled “Truth in Law School Education,” is that the law schools must stop misleading potential students.13 On July 12, 2010, LST sent a request

to all ABA-approved law schools, asking them to release employment lists for the class of 2010 according to the LST standard. LST sees the request as the first step in changing the standard by which employment statistics are gathered. The ultimate goal is to “help inform prospective law students about the value of a law degree by providing open access to ABA-approved law school employment information.”14 According to LST, their website will ultimately function as an employment information and data clearinghouse.15 There is a major incentive for universities to attract and admit law students by leading them to believe that the ratio of the cost of attending law school to the amount they will make as an attorney is favorable to the student. Law schools are businesses, and tuition is a significant moneymaker. The more students the school attracts, the more money it makes. Law school tuition averages around $30,000 per year, and many prestigious private schools cost upwards of $45,000 per year.16 The only limit to how many students a law school may admit is the physical space in their lecture halls, which means that schools can pack in as many students as fit. Law schools pay a professor the same amount whether they are teaching 10 students or 100 students, but a school rakes in an average of $2.7 million more per year if the class holds 100 students. The incentive for sheer numbers of law students is huge. In order to draw students, law schools must have competitive rates of post-graduation employment. The current problem is that in order to keep up with the competition, admissions departments at law schools all over the country are using questionable methodologies to arrive at their employment statistics.17 In addition, admissions officers are downplaying the cost of attending law school and


31 | LOYOLA JOURNAL encouraging applicants to attend their law school, even if it appears that the applicant is not a good fit for their school, or law school in general.18 In 2007, the Law School Admission Council (“LSAC”) included a cautionary instruction on its website. Before students clicked on the button that would lead them to the application forms to send to their dream school, the schools they’ve deemed satisfactory, and their safety school, they had to go through a page of reasons not to apply to law school. LSAC advised potential applicants that the only reason to attend law school is because of a genuine interest in the justice system; a desire for money or prestige would not suffice. Of course, a passion for the law rather than a passion for high finances is necessary in order to be a happy lawyer. Now, however, money and prestige is not the norm for young lawyers, who may suffer from not only a lack of happiness, but also a lack of money and perhaps even a lack of a job. It is more important than ever to be honest about recruitment and the legal profession. According to GradSchools. com, the five worst reasons to decide to attend law school are as follows: You really like Law & Order, you’re “good at arguing,” you want to earn a sixfigure salary, you don’t know what else to do, and someone else wants you to be a lawyer.19 Sound familiar? Too many people are attending law school for those very reasons. According to LST, law school admissions departments need to make it clear to applicants that those reasons are not good enough to dedicate three years and hundreds of thousands of dollars to a profession they probably do not even want to pursue.20

corrupted law school admissions process. The article said, “A growing number of law schools have begun requiring applicants to specify in writing whether they do, in fact, have some desire to attend law school, or are just using it as a predictable last resort…We want prospective students to know that they will actually have to study the U.S. legal system. As in, the whole thing.”21 While the facts in The Onion article are not true, they do point to a real concern about the students who decide to attend law school. In fact, many law students say the article is not that far off. One secondyear student at Loyola Law School in Los Angeles said she is in law school not because of unwavering ambition to become a lawyer, but because she did not know what to do with life after college. “I am an accidental law student. A domino effect led me here, and a domino effect is why I’m still here,” the student, who wishes to remain anonymous because of it is difficult enough to get a job without admitting in a public forum that she does not actually want to become a lawyer, said. Her story is not unusual, and it is one reason why competition for law jobs is so fierce. According to the United S t a t e s Department of Labor, competition for legal jobs is only going to get worse in the next 10 years as a direct result of growing numbers of law students.22 “Accidental” law students are in a tough spot, because not only are they competing against each other, but they are also competing against thousands of students who actually want to be attorneys.

“...to keep up with the competition, admissions departments at law schools all over the country are using questionable methodologies to arrive at their employment statistics.”

The Onion, a facetious newsmagazine, published an article on September 15, 2010 poking fun at the

When asked whether she was confident about securing a legal job upon her 2012 graduation, the Loyola second-year said, “Refer to what I said about why I’m in law school in the first place. On that note, I am definitely not confident about having a job.” She went

on to explain how the cutthroat nature of law school contributes to her lack of confidence about being hired as a lawyer: “In law school, everyone is the smartest kid in their college class or they are the smartest adult in a non legal profession. That doesn’t leave a lot of room for error. In the end, it’s a crapshoot and whether you are lucky enough to know someone who knows someone who can MAYBE get you an unpaid internship.” Like many other students, if she had known that law school would not serve as a direct path into employment, she may have reconsidered her decision to attend. That is precisely why advocates for LST argue that law schools need to make it clear to applicants that they are probably going to incur a sizeable debt, and they may not be able to pay it off upon graduation. Even if law graduates did attend law school for the so-called “right” reasons – a true passion for the legal field – the investment often does not pay off financially. In January 2011, The New York Times published “Is Law School A Losing Game?,” an article that serves as a cautionary tale about whether the cost of law school is, to put in generally, worth it.23 Although this type of article seems to surface almost every year, The New York Times piece garnered a lot of attention because it concerned the legal job market in 2010, a year that saw almost record-breaking unemployment numbers for attorneys. It calls a law degree a “catastrophic investment,” and concludes that earning the degree often leads to “financial hell” for law graduates, while law schools are “cash cows” that still, unfairly, come out ahead.24 The bottom line? Many licensed attorneys are not making any money, and even those who are making money are not making enough to justify the high cost of law school.25 It is clear that the law school game is in need of major reform. What is not clear is how to do so. The Truth in Law School Campaign believes the best way to ameliorate the law-job crisis is at the admissions level. That campaign has begun pushing the ABA to implement the LST program. The ABA already has Standard 509 in place, which requires all accredited law schools to report on employment statistics within nine


LAW SCHOOL TRANSPARENCY| LOYOLA JOURNAL | 32 months of graduation.26 The problem with Standard 509 is that it leaves a lot of room for misleading information. Right now, the rule reads as follows: “A law school shall publish basic consumer information. The information shall be published in a fair and accurate manner reflective of actual practice.”27 The rule does not require schools to include information differentiating between fulltime, part-time, temporary, and non-legal jobs. In addition, many law schools have attempted in recent years to bolster their U.S. News & World Reports record by creating on-campus jobs for unemployed graduates. For instance, earlier this year, UCLA School of Law Career Services sent out a school-wide email advertising a chauffuerer job to a UCLA alumnus.28 Perhaps the student who took that job was included in UCLA’s “employed” category. While the passage of LST seems like a no-brainer for law students, the ABA and law schools are not so enthusiastic about the measure. As of now, thirdtier Ave Maria School of Law in Naples, Florida is the only school to have adopted LST. The ABA is hesitant to adopt the program because it may shed negative light on the legal profession. Law schools are – understandably – cautious about implementing such a program, because it may affect their ranking. A lower ranking would lessen the number of potential applicants, which would in turn cost the school not only coveted tuition money, but also academic prestige. The LST website makes it clear that they do not blame law schools for the discrepancy in reported and actual employment statistics. Rather, the founders find fault with the ABA’s treatment of the employment issue. They say that Standard 509 simply does not provide law schools with the opportunity to meaningfully report their employment numbers.29 Although the LST team is diplomatic, the fact remains that since the campaign send out a nationwide “request to comply” in July 2010, only one out of 193 accredited law schools has adopted the measure. Administrators at law schools are, however, aware of the problem. According to the LST website, one law school administrator responded to a request for employment data by

saying, “You have, indeed, identified a very real problem: the lack of reliable date for present and prospective students who want a clearer picture of a law school’s placement record.”30 With that in mind, it is difficult for law schools to commit to the LST program because of a lack of resources. Law schools already compile records for the ABA, the National Association of Law Placement, and U.S. News & World Reports. The purpose behind the LST standard is to provide different data, so it would create more work for law schools. In addition to compliance costs, schools have reported that the LST standard poses a risk to their students’ privacy, presumably because the proposed standard asks law schools to provide more detailed information about their graduates. For law students, no topic is more interesting or fear-inducing than the legal job market. There are too many law graduates and third-year students competing for a limited number of jobs, and the search is made even more highpressure by the fact that students are desperate to pay back the exorbitant cost of their loans. LST believes that reaching prospective law students before they make a decision that will forever alter the state of their bank accounts could –at least partly - solve the problem. Because only one law school has adopted the transparency proposition, it remains to be seen whether a picture of the harsh reality of the legal job market would serve as a deterrent for bored, indecisive 22-year-olds. One thing is clear, though: if law school administrators become more direct in their employment reporting, prospective law students will have a more realistic view of the legal profession, and law schools will avoid much of the firestorm from angry graduates. Honesty could very well be the course of action for law schools that are already on the defense. It is not possible for law schools to create attorney positions for their graduates, but universities may be able to prevent post-law-school debt and regret by overhauling the way they measure and report employment statistics.

ENDNOTES 1. The National Association for Legal Careers Professionals, Employment Market for Law School Graduates Wavers, available at http://www.nalp. org/july10trendsgradempl/?404;https://www.nalp. org:443/july10trendsgradempl&CFID=7941450&CFTO KEN=91022511 (last visited October 20, 2010). 2. Id. 3. Accepted Admissions Almanac, available at http:// blog.accepted.com/acceptedcom_blog/2010/6/2/ law-grads-face-lowest-employment-rate-inthirteen-years.html (last visited October 20, 2010). 4. Id. 5. David Segal, Is Law School A Losing Game?, The New York Times, January 8, 2011. 6. Elie Mystal, Ivy League Law School Graduate Begs for Work on Craigslist, Above the Law, available at http://abovethelaw.com/2010/01/ ivy-league-law-school-graduate-begs-for-workon-craigslist (last visited October 20, 2010). 7. Id. 8. See Law School Transparency, available at http:// www.lawschooltransparency.com (last visited March 23, 2011). 9. Katy Hopkins, 10 Law Schools That Receive the Most Applications, U.S. News and World Reports (March 21, 2011) 10. Michelle Fabio, Law School Applications Up: Hiding Out in Law School?, available at http://lawschool. about.com (last visited March 23, 2011). 11. Tresa Baldas, The Layoff List, The American Lawyer (May 19, 2010). 12. Karen Sloan, ABA May Join Push for Law School Transparency, The National Law Journal, available at http://www.law.com/jsp/article. jsp?id=1202473544557 (last visited October 20, 2010). 13. Id. 14. Law School Transparency, Mission, available at http://www.lawschooltransparency.com/mission/ (last visited October 21, 2010). 15. Id. 16. Paying for Law School, Test Prep Review, available at http://www.testprepreview.com/paying_for_ lawschool.htm (last visited February 22, 2011). 17. Law School Transparency, LST’s Origins, available at http://www.lawschooltransparency.com/2010/08/ lst-origins/ (last visited March 23, 2010). 18. Id. 19. Jennifer Baker, The 5 Worst (and 5 Best) Reasons to Apply to Law School, GradSchools, the #1 Graduate School Directory on the Planet, available at http:// www.gradschools.com/article-detail/worst-reasonslaw-school-1788 (last visited October 20, 2010). 20. See Law School Transparency, LST’s Origins, available at http://www.lawschooltransparency. com/2010/08/lst-origins/ (last visited March 23, 2010). 21. Law Schools Now Require Applicants to State Whether They Want To Go To Law School, The Onion, available at http://www.theonion.com/ articles/law-schools-now-require-applicants-tohonestly-sta,18089/ (last visited October 20, 2010). 22. Bureau of Labor Statistics, Occupational Outlook Handbook, 2010-2011 Edition, available at http:// www.bls.gov/oco/ocos053.htm (last visited October 21, 2010). 23. David Segal, Is Law School A Losing Game?, The New York Times, January 8, 2011. 24. Id. 25. Id. 26. American Bar Association, Standard 509. 27. Id. 28. Elie Mystal, UCLA Law Offers Most Depressing Job to a Law Student (2010 Edition), Above the Law, available at http://abovethelaw.com/tag/ucla-law/ (last visited March 23, 2011). 29. See Law School Transparency, The Current Employment Information Reported to the ABA, available at http://www.lawschooltransparency. com/2011/03/the-current-employment-informationreported-to-the-aba/ (last visited March 23, 2011). 30. Id.


33 | LOYOLA JOURNAL


LOYOLA JOURNAL | 34

VICTIMS OF HUMAN TRAFFICKING Those Often Forgotten in the Fight against Human Slavery MAI MDINARADZE

ABSTRACT Human trafficking affects every country in the world. In the fight against human trafficking, the European Union often overlooks the interests of the victims and focuses mostly on investigation and apprehension of human traffickers. Although the European Union claims that it takes a human rights approach to human trafficking, the legal instruments adopted by the European Commission regarding human trafficking do not mandate a sufficient reflection period for the victims and does not require members states to offer temporary residence permits to victims unwilling or unable to cooperate. Yet, both are essential to ensure victims recuperate from their ordeal. A reflection period lasting less than three months is insufficient to ensure that victims recover and have adequate time to reflect on whether to cooperate with authorities. Similarly, if victims are not offered temporary residence permits, victims would face unstable economic conditions due to their inability of obtaining work. Treating human trafficking as a human rights issue mandates that victims are provided with sufficient reflection period to recuperate and that the grant of temporary residence permits is not depended on victim cooperation. To accomplish this, the EU must adopt legislation prolonging the reflection period and replace the cooperation requirement with a procedure establishing an individual as a victim of human trafficking enabling her to receive temporary residence permit.

I. INTRODUCTION “It wasn’t alright then. It isn’t alright now. Modern slavery traps more people today than in the entire 400 years of the transatlantic slave trade.”1 Human trafficking, or as it has been referred to, “the trade of human misery,” constitutes today the largest manifestation of slavery.2 A staggering estimate of 12.3 million men, women, and children are trafficked around the world today.3 Human beings are traded in the international market driven by high profits and demand for commercial sex and cheap labor4. Human trafficking thus affects every country in the world.5 Despite the gruesome reality that victims of human trafficking face, they often lack the assistance necessary to recuperate. To fully recuperate, it is imperative that member states prolong victims’ reflection period and offer them temporary residence permits. The European Union (EU) has adopted several pieces of legislation with respect to human trafficking and victim assistance. Some of these are the Council Framework Decision of July 2002 on combating trafficking in human beings (2002/629/ JHA), the Council Directive of 29 April 2004 on the residence permit issued to third country-nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (2004/81/EC). In addition, the European Commission

proposal for a Directive on preventing and combating human trafficking and protecting victims, repealing the Framework Decision of July 2002 has been adopted on 29 March 2010. However, neither of these instruments provides for an adequate protection and assistance to victims of human trafficking, for they fail to provide an adequate reflection period and mandate a temporary residency permit for victims regardless of their willingness to cooperate with national authorities in investigation and prosecution of trafficking offenders. An examination of the Council Directive 2004/81/EC will reveal an overwhelming focus of the EU law on the prosecution of traffickers and not enough on ensuring victims’ recovery, albeit the EU’s claim that it takes a human rights approach to human trafficking. This Comment seeks to provide an analysis of the assistance that the European Union provides to victims of human trafficking by critically examining the major EU instrument on human trafficking victim assistance, mainly, the Council Directive 2004/81/EC. Part I will discuss the background on human trafficking focusing on victim profile and how human trafficking affects the EU member states. Part II will focus on the Council Directive 2004/81/EC establishing through subsections (i) the reflection period, and (ii) the cooperation requirement for granting residence permits, that it predominantly focuses on the prosecution of human traffickers


35 | LOYOLA JOURNAL and does not adequately provide for victim assistance. The provisions of the Council Directive 2004/81/EC providing for the reflection period are inadequate, for they do not mandate a reflection period lasting at least three months and require only a minimal assistance to victims during the reflection period. A grant of residence permits is based on whether victims cooperate with national authorities demonstrating that the Directive allows the states to use victims of human trafficking to further their objectives of prosecuting offenders with little regard to victims’ human rights. Finally, Part III will focus on proposals for change. It will address the necessity for the EU to lengthen the reflection period to at least three months and to replace the cooperation requirement with a procedure establishing trafficked individuals’ statuses as victims of human trafficking for the purpose of adequately assisting the victims and protecting their human rights. II. BACKGROUND TRAFFICKING

ON

HUMAN

“Trafficking in persons” and “human trafficking” are umbrella terms for crimes that involve holding someone for compelled service. Some of the major forms of human trafficking are sex trafficking, forced labor, involuntary domestic servitude, and debt bondage.6 This article focuses on human trafficking in the form of sexual exploitation because as Europol reports, trafficking for sexual exploitation is the most common form of trafficking.7 A victim of human trafficking cannot be described as having a typical background.8 Traffickers target some of the victims because of their adverse personal circumstances such as abusive families or personal relationships,9 poverty, discrimination, unemployment, and a lack of access to education and economic opportunities in their home countries.10 Many others, however, do not fit this stereotypical background. These victims are educated, may speak several languages, are employed, and in stable relationships.11 They are vulnerable for other reasons such as greater freedom of movement and travel, global communication links, previously

unavailable opportunities to work overseas, and self-confidence.12 Despite different personal circumstances that subject victims to being trafficked, the common factor uniting these victims is deceit, usually in the form of promise of employment, good working conditions, and high salary.13 Trafficking for sexual exploitation affects every region in the world either as a source (i.e. origin), transit, or destination country.14 In the countries of origin, traffickers lure their victims by promise of decent employment into leaving their homes.15 In destination countries, traffickers typically strip victims off their passports and other d o c u m e n t s . 16 They are taen to secure flats, beaten and raped by their “owners” to “break them in.”17 “After that,” As Bianca Jagger, an independent journalist and international human rights advocate describes in chilling words, “it’s a sole-destroying treadmill of dehumanizing servitude, providing sex for 20 to 30 men a day.”18 Europol reports that traffickers move their victims in and around the EU, both across borders and internally.19 The data gathered by the United Nations Office on Drugs and Crime (UNODC) indicates that in 2006, the total number of victims detected in the West and Central Europe was 7,300.20 If about one victim in 20 were detected in 2006, the number of trafficking victims in Europe would have been around 140,000. Human Trafficking affects the EU in three ways. First, domestic trafficking is prevalent in some EU member states. The largest group of victims in the countries affected by domestic trafficking is their nationals. One such member state is Netherlands where the number of Dutch victims of human trafficking prevails all other nationals.21 According to 2008 statistics, while 11% of victims were of Chinese decent and 49% other groups, the Dutch comprised 40% of all victims.22 Second,

some EU member states are countries of origin. The traffickers lure their victims in these countries.23 Lithuania, Estonia, Latvia, Czech Republic, Slovakia, and Hungary were detected as countries of origin of victims in Europe between 2005 and 2007.24 Third, many member states are destination countries for trafficking victims.25 European victims represent just a fraction of the total number of victims detected in the EU member states. The victims of trafficking in the EU come from the most diverse range of origin countries than in any other region.26 The UNODC indicates that Europe is facing a rapid diversification of the origins of its human trafficking v i c t i m s . 27 Tr a d i t i o n a l h u m a n trafficking flows to Europe have originated in the Russian Federation, Ukraine, Lithuania, and Columbia.28 However, the numbers of victims from these countries are decreasing as new nationalities enter the European scene, such as Chinese, Paraguayan, Sierra Leonean, and Uzbek victims.29

“Trafficking for sexual exploitation affects every region in the world either as a source (i.e. origin), transit, or destination country.”

III. ALTHOUGH THE EU CLAIMS TO TAKE A HUMAN RIGHTS APPROACH TO TRAFFICKING, IT FAILS TO ADEQUATELY ASSIST VICTIMS The European Union asserts that it adopts a human rights approach to human trafficking.30 Nevertheless, as the following examination of the Council Directive 2004/81/EC reveals, the EU law overwhelmingly focuses on the prosecution of traffickers and not enough on the assistance to the victim although such assistance is pivotal to their recoveries. The Council Directive 2004/81/ EC focuses on providing short-term residence to victims of human trafficking. However, because it does not provide for an adequate length of a reflection period and requires that victims cooperate with


VICTIMS OF HUMAN TRAFFICKING| LOYOLA JOURNAL | 36 national authorities in investigating and prosecuting offenders in exchange for short-term residence permits, it fails as an instrument protecting human rights. It has even been explicitly declared by the Commission not to aim at protecting victims, but at fostering law enforcement, since ‘[v]ictim protection and witness protection are matters of ordinary national or European law.”31 However, there is no other instrument within the EU either that aims at insuring human trafficking victims are adequately protected. Thus, the directive, although a good step towards ensuring that victims are protected and assisted, does not provide for an adequately protection and assistance to victims of human trafficking since its major aim is not to protect the victims but to ensure the traffickers are found and prosecuted. A. REFLECTION PERIOD The Council Directive 2004/81/EC requires member states to provide a “reflection period” to any non-EU citizen who is identified as a victim of human trafficking.32 The “reflection period” allows victims to recover and reflect on as to whether to cooperate with authorities in investigation of offenders.33 The directive also requires that member states refrain from exercising expulsion orders against victims during the reflection period and provide them with access to emergency medical treatment and interpreting services when necessary.34 The directive does not specify how long the “reflection period” must last. The first draft of the directive stated that it must last at least 30 days.35 Unfortunately, the provision regarding length was subsequently eliminated.36 The final version of the directive leaves it up to the states to establish the length of the “reflection period.”37 Consequently, if member states allow a very short “reflection period,” the victims might not have enough time to recover and reflect on whether to cooperate with authorities. This might render the provision useless.38 Some independent organizations have stressed that a period lasting less than three months would not allow victims to recover and make an independent decision on whether or not to cooperate.39 A London Metropolitan

police officer observed that often, offers of assistance in exchange for victim cooperation are made under hostile conditions and thus, victims refuse to cooperate. He said: “I feel that she was really too scared, but it was her decision. Our offer was made in fairly hostile conditions, during a police interview. This is a case where three month ‘reflection period’ would have been helpful,” while speaking regarding a victim.40 The type of assistance offered to victims during the reflection period is minimal. Although the member states are required to provide emergency medical care, Article 7 of the Council Directive 2004/81/EC leaves it up to the member states to decide whether they wish to provide psychological assistance to the victims.41 If states opt out of providing psychological assistance to the victims, it could have a devastating impact on their psychological state. Cathy Zimmerman in her report on the longterm effects of human trafficking on the victim’s health stresses that trafficking leads to “chronic trauma,” which has an enduring and complex health outcomes for these women.42 Thus, psychological assistance is imperative due to its debilitating effect on the victims of human trafficking. Such assistance must be mandatory, especially since the EU claims it takes a human rights approach to human trafficking.

cooperate with national authorities.44 However, the Council Directive 2004/81/ EC stresses that member states must consider providing residence permits only those victims who agree to cooperate with national authorities.45 As the directive provides, the member states shall consider whether the victim “has shown a clear intention to cooperate.” This permit may be renewed if there is such a need evinced by an investigation or judicial proceedings, and if the victim has shown a clear intention to cooperate and has severed all relations with his or her traffickers.46 There is no mention of those victims of human trafficking who are unwilling to cooperate, unable to cooperate, or do not possess any useful information but are nevertheless at risk of suffering further harm if repatriated.47 The council Directive 2004/81/EC does not consider that the trauma the victims experience as the result of their ordeal might render them unable to cooperate, especially when member states provide a very short reflection period. Research shows that human trafficking victims are at an extremely high risk for suffering medical and mental health consequences of physical and psychological trauma they experience throughout their ordeals.48 Many victims of human trafficking develop range of disorders including Posttraumatic Stress Disorder, dissociative disorders, anxiety disorders, depression, and substance abuse.49 Symptom levels suggestive of Post Traumatic Stress Disorder is reported by 56% of women on entering care.50 Trafficked women’s anxiety, depression, and hostility levels are extremely high— within the top 10th percentile of the norm for the whole female population.51 Suicidal thoughts are reported by 38% of victims, and 95% report feeling depressed.52 These factors help explain why many victims of human trafficking are unable or unwilling to cooperate. Some victims might be so severely traumatized from the horrific events they may have faced that they are incapable of being credible witnesses.53 Some loose

“...the EU law overwhelmingly focuses on the prosecution of traffickers and not enough on the assistance to the victim...”

B. COOPERATION REQUIREMENT FOR GRANT OF RESIDENCE PERMITS When the reflection period expires, the directive provides that member states must consider prolonging victims’ stay.43 The Proposal for a Directive on Preventing and Combating Trafficking adopted by European Parliament on December 14, 2010 provides that member states must ensure that they do not condition victim assistance and support on victims’ willingness to


37 | LOYOLA JOURNAL memory of what has happened and for others retelling the story may lead to retraumatization.54 Without residence permits, it is impossible to work legally, which leaves those without legal status marginalized and in unstable e c o n o m i c c o n d i t i o n . 55 Employers who hire people without residence permits sometimes use the threat of deportation to exploit the workers.56 This in turn perpetuates the abuse of the victims.57 The inability to work legally often leads women who have been trafficked for sexual exploitation back to prostitution because they are unable to find any other work to survive.58 Some of these women face deportation back to their country of origin, which often means falling back into the hands of traffickers.59 Some are returned back to their families, which sold them into the trafficked network in the first place.60 Others return to situations where they are rejected by society once it is known that the women have been exploited for prostitution.61

violation of fundamental human rights.64 The focus on assistance in investigation and prosecution of traffickers as opposed to on the protection and assistance of victims contradicts the EU’s claim of taking a human rights approach to human trafficking. Essentially, the Council Directive 2004/81/ EC allows the states to use victims of human trafficking to further their objectives of prosecuting offenders with little regard to victims’ human rights.65 Therefore, even when victims are able and willing to cooperate, the directive provides little incentive for anyone to cooperate if they believe that they have to leave the country as soon as their usefulness elapses.66

“Many victims of human trafficking develop range of disorders including Posttraumatic Stress Disorder, dissociative disorders, anxiety disorders, depression, and substance abuse.”

Although the EU member states, not the EU itself, are parties to international human rights treaties, in relation to human trafficking, the Commission has committed itself to international human rights standards by stating that an integrated approach based on respect for human rights is needed in order to effectively address human trafficking.62 Additionally, because states not only have an international obligation to investigate, punish, and prevent human rights violators but also to provide remedies to victims of human rights violations,63 the EU, as a regional organization, must adopt laws that not only aim at preventing and combating trafficking but those that also adequately protect victims’ human rights. The European Commission asserts that trafficking in human beings, for whatever reason – sexual exploitation or work – is a

Trafficking violates individual rights protected by the Universal Declaration of Human Rights and the six core U.N. international human rights treaties which most of the EU member states have ratified.67 Trafficking violates the right to liberty and security of person, right to be free from slavery, torture, cruel, inhumane or degrading treatment, and the right to be free form discrimination.68 It also violates a right to privacy, safe housing, self-determination, education, and family life.69 Although it is imperative to ensure that member states adequately criminalize human trafficking, and successfully prosecute offenders, victims’ human rights must not be neglected in the attempts to find and successfully prosecute trafficking offenders. Although the EU claims to be taking a human rights approach70 to human trafficking, the current legislation indicates otherwise. It is imperative to foremost view human trafficking as a human rights problem because “[trafficking] denies almost every human right protected by the body of international human rights treaties.”71 Attaining legal residency, whether temporarily or with the ability to remain

for longer periods in a country, is the threshold for accessing a host of rights to which trafficked women are entitled under international human rights law.72 IV. PROPOSALS FOR CHANGE To ensure that victims are provided with adequate protection and assistance, the EU must address the reflection period more thoroughly and replace the cooperation requirement with a procedure establishing trafficked individual’s statuses as victims of human trafficking. First, the EU must adopt legislation lengthening the reflection period. As discussed earlier, currently the EU legislation leaves it up to the states to set the length of the reflection period. However, as the above discussion indicates, unless the reflection period is long enough, lasting at least three months, it is ineffective.73 Instead of allowing individual member states to decide on how long the reflection period must last, the EU must provide guidelines stating that the reflection period must be at least three months long. Otherwise, as discussed earlier, victims do not have sufficient time to recuperate and reflect as to whether to cooperate with national authorities. Second, to provide adequate protection and assistance, states must allow victims to obtain legal residency. Legal residency, as discussed earlier, should not depend on victims’ cooperation with national authorities. States must initiate a victim certification process as it is proposed by the UNODC in “Toolkit to Combat Trafficking in Persons.”74 The “Victim Certification” proposal provides that States must consider granting residency permits to individuals whom they have certified as victims of human trafficking. The certification process could be handled by courts or tribunals that deal with trafficking. They could certify individuals as victims of human trafficking during proceedings whether or not victims actually participate in those proceedings. Individuals could also be identified and declared as victims of human trafficking by law enforcement, border


VICTIMS OF HUMAN TRAFFICKING| LOYOLA JOURNAL | 38 control, or other officials who encounter them in the course of investigation or prosecution of offenders. Ensuring that all victims of human trafficking are granted at least temporary residence during a reflection period would provide victims with access to employment, education, and medical care necessary for their recovery and reflection on their situation. V. CONCLUSION Human trafficking is a human rights issue and thus, a human rights approach should be taken to fighting the modern day slavery. However, despite the EU’s claims that it takes a human rights approach to human trafficking, the major EU legal instruments, such as the Council Directive 2004/81/EC, are implemented to ensure trafficking offenders are identified, apprehended, and prosecuted and do not focus on ensuring member states provide sufficient victim assistance. Such assistance, however, is imperative to ensure that victims recuperate from their ordeal. The EU must adopt legislation lengthening the reflection period to allow the victims to recuperate and replacing the cooperation requirement with a procedure establishing victims’ statuses as victims of human trafficking for the purpose of granting temporary residence permits. Only then, the EU will truly be taking a human rights approach to modern day slavery. ENDNOTES

13. Id. 14. Interpol, Trafficking in Women for Sexual Exploitation, http://www.interpol.int/Public/THB/Women/Default. asp (last visited Aprl. 3, 2011). 15. Id. 16. Bianca Jagger, Global Urban Development Magazine, Protecting the Victims of Human Trafficking (Mar. 2006), http://www.globalurban.org/ GUDMag06Vol2Iss1/Jagger.htm. 17. Id. 18. Id. 19. Id. 20. United Nations Office on Drugs and Crime, Trafficking in Persons to Europe for Sexual Exploitation, 6, (June 1, 2010), http://www.unodc.org/documents/ publications/TiP_Europe_EN_LORES.pdf.

47. Raffaelli, supra note 35 at 211. 48. Janice G. Raymond Et AL., A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles, and Health Consequences of Sexual Exploitation in Five Countries, 65 (2002), http://action.web.ca/home/catw/attach/CATW%20 Comparative%20Study%202002.pdf. 49. Melissa Farley, Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, in Prostitution Trafficking and Traumatic Stresses, (2003), available at http://www. prostitutionresearch.com/fempsy1.html. 50. London School of Hygiene & Tropical Medicine and Amnesty International UK, UK: Startling New Report on Trafficked Women’s Health Published, Urgent Call for Protection of Trafficked Women, (June 28, 2006), http://www.amnesty.org.uk/news_details. asp?NewsID=17013. 51. Id.

21. Id.

52. Id.

22. Id. 24. Id.

53. Hussein Sadruddin, Symposium: Globalization, Security & Human Rights: Immigration in the TwentyFirst Century: Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 Stan. L. & Pol’y Rev. 405, 396 (2005).

25. Id.

54. Id at 405.

26. Id. 28. Id.

55. VivianaWaisman, RECAPTUALIZING HUMAN RIGHTS: Article: Human Trafficking: State Obligations to Protect Victim’s Rights, the Current Framework and a New Due Diligence Standard, 33 Hastings Int’l & Comp. L. Rev. 385, 424 (2010).

29. Id.

56. Id.

30. European Union External Action, Human Trafficking, http://eeas.europa.eu/human_rights/ traffic/index_en.htm (last visited Apr. 3, 2011).

57. Id.

31. Sarah H. Krieg, Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights 15 Eur. LJ. 775, 790. (Nov. 2009).

59. Id.

32. Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, 04/81, Art. 6, 2004 O.J. (L 19) 19, 21 (EC).

61. Id.

23. Id at 9.

27. Id.

58. Id. 60. Id.

33. Id.

62. Conny Rijken. Symposium: The Commodification of Human Beings: Exploring the Reality and Future of Modern Day Slavery: Symposium Article: The European Union’s Struggle to Realize a Human Rights-based Approach to Trafficking in Human beings, 6 Conn. J. Int’l L. 53, 49 (2009).

34. Id.

63. Id.

35. Rosa Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J 205, 207 (2009).

64. Europa, Fight Against Trafficking in Human Beings, http://europa.eu/legislation_summaries/ justice_freedom_security/fight_against_trafficking_ in_human_beings/index_en.htm (last visited Apr. 3, 2011).

36. Id. 37. Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, 04/81, Art. 6, 2004 O.J. (L 19) 19, 21 (EC).

65. Waisman, supra note 55, at 395. 66. Ryszard Piotrowicz, European Initiatives in the Protection of Victims of Trafficking Who Give Evidence Against their Traffickers, 14 Int’l J. Ref. L. 263, 271 (2002). 67. Alexandra Amiel, Integrating a Human Rights Perspective into the European Approach to Combating the Trafficking on Women for Sexual Exploitation, 12 Buff. Hum. Rts. L. Rev. 5, 19 (2006).

1. Blue Blindfold, You won’t know unless you look, http://www.blueblindfold.co.uk/index.php (last visited Apr. 3, 2011).

38. Rosa, supra note 35.

2. Arun Kumar Acharya, International Migration and Trafficking  of Mexican Women to the United States, in Trafficking and the Global Sex Industry 21, 25 (Karen Beeks & Delila Amir eds., 2006).

40. Cathy Zimmerman, Stolen Smiles: The Physical and Psychological Health Consequences of Women and Adolescents Trafficked in Europe, (last visited Apr. 3, 2011), http://www.humantrafficking.org/ publications/364.

68. Id at 35.

41. Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, 04/81, Art.7, 2004 O.J. (L 19) 19, 21 (EC).

71. Amiel, supra note 67 at 35.

3. Polaris Project, International Trafficking, http://www.polarisproject.org/human-trafficking/ international-trafficking (last visited Apr. 3, 2011). 4. Id. 5. Id. 6. U.S. Dep’t of St., What is Modern Slavery?, http:// www.state.gov/g/tip/what/index.htm#sex (last visited Apr. 3, 2011). 7. Europol, Trafficking in Human Beings in the European Union: A Europol Perspective (June 2009), http://www.europol.europa.eu/publications/Serious_ Crime_Overviews/Trafficking%20in%20Human%20 Beings%20June%202009.pdf. 8. Europol, supra note 7. 9. Id. 10. Meredith Flowe, The International Market For Trafficking in Persons for the Purpose of Sexual Exploitation: Analyzing Current Treatment of Supply and Demand, 35 n. c. j Int’l L. & Com. Reg. 669, 675 (2010). 11. Europol, supra note 7. 12. Id.

39. Id.

42. Zimmerman supra note 40. 43. Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, 04/81, Art.8, 2004 O.J. (L 19) 19, 22 (EC). 44. Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, COM (2010) 95 final (March 29, 2010) (awaiting publication in a journal). 45. Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, 04/81, Art.8, 2004 O.J. (L 19) 19, 22 (EC). 46. Id.

69. Id. 70. European Union External Action, supra note 30. 72. Waisman, supra note 55, at 424. 73. Raffaelli, supra note 35, at 207. 74. United Nations Office of Drugs and Crime, Toolkit to Combat Trafficking in Persons 296 (2008).


39 | LOYOLA JOURNAL


LOYOLA JOURNAL | 40

WHEN WILL MORTALITY IMPACT YOUR INVESTMENT PORTFOLIO? OMER IVANIR

Life settlements is an emerging asset class that has gained exposure and popularity in recent years by institutions and individuals alike. While life settlements deliver superior risk adjusted returns, there are several legal and regulatory challenges as well as reluctance by rating agencies that prevent life settlements from becoming the fourth asset allocation category on your TD Ameritrade account. A life settlement is the sale of a life insurance policy by its owner to a life settlement provider or an investor. The purchaser then continued to pay the premiums on the policy until the death of the insured, at which time the purchaser collected the death benefit. This is referred to as a secondary market transaction with the primary market covering origination of life insurance. Historically, a policy owner who wished to retire her policy would surrender it to the insurance carrier for a cash surrender value. In order to incentivize a policy owner to sell, or settle, the policy rather than surrender the policy, the buyer agrees to pay more than the cash surrender value of the policy, but typically an amount significantly less than the face value, or expected death benefit. Settlement prices are driven by a variety of factors, including the insured’s age, life expectancy, and health condition. Additionally, the expected premiums that must be paid to keep the policy in force during the remainder of the insured’s

lifetime will substantially affect the settlement amount. INDUSTRY ORIGINS The legal basis for the life settlement industry was established in the 1911 United States Supreme Court decision of Grigsby v. Russell, 222 U. S. 149, which ruled that a life insurance policy becomes the personal private property of the owner following its issuance and may be assigned to any person at the owner’s discretion. The modern life settlement industry began as a result of the AIDs epidemic in the late 1980s when insureds suffering from AIDs were often too sick to work and had shortened life expectancies, often less than two or three years. In order to cover healthcare costs and maintain their quality of life, many of these individuals sold their life insurance policies to third parties in transactions known as viatical settlements. The term viatical originated from the latin word viaticum – a communion delivered to a person in danger of death1. As the industry developed, the profile of the typical insured changed from a terminally ill (viatical) insured to that of a U.S. citizen over the age of 65 with a life expectancy greater than 24 months. AN EXPANDING MARKET In 2001, the first institutional investor entered the life settlement market. Subsequently, other foreign and domestic institutional purchasers, attracted by the


41 | LOYOLA JOURNAL superior risk adjusted returns and the fact that returns on life settlements are not correlated to movements in the major financial markets. These purchasers included large banks and European funds, including Goldman Sachs, Credit Suisse, Deutsche Bank, KBC Financial Products, Berlin Atlantic Capital and West LB Life Markets. During the last decade, the life settlement industry has grown significantly and has become a viable liquidity alternative for policy owners. While estimates and studies on the life settlement market vary, Conning Research estimated that in 2008 there was $31 billion of life settlement face value in force.2 According to a survey of life settlement providers performed by the U.S. General Accounting Office 3, industry participants estimate policies with a total face value of around $5.50 billion, $9.03 billion, $12.95 billion and $7.01 billion in 2006, 2007, 2008 and 2009, respectively.4 In addition to an increase in the total value of life settlements the array of buyer and investors also grown to include major institutional purchasers including banks, pension funds, hedge funds, private equity firms, investment banks, family offices and foundations. This diversity of industry players has broadened the products, programs and buying capabilities for life settlements, and resulted in increased liquidity options for policy holders. The rapid growth in the market has been paralleled by an increase in legislation and regulation. The majority of US states have enacted some form of life settlement regulations. Proponents argue that such legislation and regulation provides stability and structure to the industry, and that the added regulatory guidance will promote growth. While some regulatory frameworks increase the transactional costs and encumber the settlement process, the added benefits and protection to consumers are critical. An increasing US population of people older than 65, which increases the supply of marketable policies, coupled with the increasing awareness of life settlements by financial professionals and consumers provide a compelling

basis to the projection for continued growth of the life settlement market. In its 2009 report, Conning Research and Consulting estimates that the average U.S. gross market potential to be $177 billion, growing from $105 billion in 2009 to $209 billion in 2017.5 Moreover, sales of life insurance to seniors in September 2010 are up 8.7% year over year, in spite of the global recession.6 FINANCIAL PERFORMANCE Financial returns on life settlements are unique for several reasons. First, the returns on life settlements are non correlated to any other market class. Secondly, the counter parties, primarily insurance companies, have strong credit ratings and are required to hold a reserve against future policy liabilities. Finally, internal rates of return (IRR’s) on life settlements have increased recently to the 15-20% level from historic norms closer to 9 to 10%.7 Experts believe that the two factors attributed to this dichotomy is the increase in life expectancies resulting from the 2008 mortality table revisions and the impact on the capital markets of economic and regulatory uncertainty.8 However, the life settlement market is expected to benefit as reforms in the U.S. laws regulating the financial services and insurance industries are implemented.9

settlements has been demonstrated by the performance of an “index” of twelve open-end mutual funds from eight different fund families that invest in life settlements. The index shows that investors experienced returns of 11.3% in 2007 and 6.2% in 2008,10 during the same period the Dow Jones Industrial Average experienced returns of 6.34% and negative 32.72% respectively.11 Generally, returns in the life settlements market range from the low doubledigits to the twenties depending upon the structure of the investment and the specific policy profiles. Distressed sales, which are common in today’s marketplace, are targeted to yield in excess of 13% unleveraged IRR’s. Historically, long term investor IRR’s without leverage have yielded 9% to 13% annually based on average holding periods of approximately ten years.

“During the last decade, the life settlement industry has grown significantly and has become a viable liquidity alternative for policy owners.”

As previously mentioned, life settlement are considered an non correlated investment. Assets that are non-correlated with the major financial markets have increased in importance following the recent financial crisis. The non correlated nature of the asset means that there is no direct correlation between longevity and many of the other factors affecting financial market. Said differently, the mortality expectations and results of life settlements do not deviate based on changes in the financial markets; insureds die in bad economic times as well as good economic times. The non-correlated characteristic of life

Another aspect that will significantly change the financial landscape for life settlement is securitizations. Securitization is the process in which an issuer creates a financial instrument by aggregating assets and marketing various tiers of the packaged instrument to investors. The process promotes diversification (returns may be driven by performance of up to several thousand policies) and creates liquidity by allowing smaller investors to purchase shares in a larger asset pool.12 Industry experts and veterans believe that life settlements are poised to become an attractive underlying asset for securitization, which will provide an alternate exit strategy for life settlement owners and infuse tremendous capital into the industry. One of the challenges to growth of the securitization market for life settlements has been the lack of rating agency familiarity and comfort with the asset class. Many large institutional purchasers,


WHEN WILL MORTALITY IMPACT YOUR INVESTMENT PORTFOLIO?| LOYOLA JOURNAL | 42 such mutual funds and some pension funds, are restricted from purchasing unrated securities. The first securitization in the industry took place in January 2009 when Risk Finance, a unit of AIG, completed a life settlement securitization with a face value of approximately $8 billion.13 The transaction, which yielded in excess of $2 billion, and was rated by A.M. Best Co.14 While the ratings were not released, the methodology is publicly available on A.M. Best’s website.15 In addition to A.M. Best, DBRS16 has published rating methodologies for rating life settlement securitizations, and Moody’s is expected to follow.17 As rating agencies become more familiar with the asset class, and rating methodologies are refined, the securitization market should gain momentum. Ultimately, the ability of a purchaser to securitize its assets will depend to some degree upon the quality of the origination. It is anticipated that most rating agencies will require each asset in a securitized pool to meet certain quantitative and qualitative criteria in order to qualify for securitization. REGULATION, LEGISLATION AND LITIGATION As the life settlement industry matures, increased regulation and oversight expected. Life settlement laws have been enacted in the majority of states where a large number of sellers reside, such as California, Florida, Georgia, Illinois, Minnesota, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Texas. As the regulatory landscape becomes more defined, the standardization resulting from the increased oversight is expected to improve market stability and bolster purchaser confidence in the industry. Life Insurance Settlement Association (LISA) is a professional association that advocates for uniform regulation of life settlements. One of the association’s goals is to help legislators and regulators understand a variety of issues impacting the industry. Other similar associations also promote uniform regulation, ethical standards and best practices. The settlement industry, however, is not the only proponent advocating

the passage of effective and balanced laws governing life settlements. Other insurance industry associations have similarly endorsed uniform regulation. The National Conference of Insurance Legislators (NCOIL) recently announced two initiatives for model disclosures to be given to life insurance consumers. NCOIL is currently advocating model language to make disclosure practices more uniform among carriers and settlement providers alike. Historically, approximately 90% of universal life insurance policies lapse as a result of missed premium payments18. When a policy lapses, coverage is not longer provided and, in most instances, all premiums paid through the lapse date are non refundable. Clearly, life insurance companies benefit tremendously from this practice. Unlike an individual insured, an investor who purchases a life settlement policy is unlikely to allow a lapse. This phenomenon affects the general lapse rate in the industry and ultimately is a negative impact on the carriers’ profitability. As a result, over the last few years litigation initiated with life insurance carriers has involved carriers denying claims or seeking rescission based on allegations of fraud in the initial procurement of the policy. The majority rule is that a carrier may, at any time, allege a right to rescind a policy if the original owner did not have an insurable interest at the time the policy was issued, however, rescission based on misrepresentations in the policy application is not permitted after expiration of a policy’s contestability clause (typically 24 months).19

to transfer the ownership or beneficial interest in the policy to an unrelated third party.20 In addition to the risk of a carrier’s resistance to paying a claim if a policy was procured by fraud or as part of a STOLI scheme, there is some risk of adverse claims being posed by unhappy sellers, insureds, or their heirs seeking to rescind a transfer and revert their interest in the death benefit. The validity and success of such claims has recently been quashed by New York court’s ruling in Kramer v. Phoenix Life Ins. Co., 21 In Kramer, a New York appellate court ruled that the insured in that case was entitled to obtain life insurance in the name of an insurance trust, and then immediately transfer the beneficial interests in the trust to an investor despite allegations that the transaction was part of a STOLI scheme. In Kramer, a decision widely viewed as favorable to investors, Mr. Kramer had obtained over $56 million in life insurance during the final years of his life. The policies held by trusts in which his children were the nominal beneficiaries, but the beneficial interests in the trusts were then immediately assigned to investors. Once the contestability periods expired, the trusts sold the policies to subsequent purchasers. When Mr. Kramer died in 2008, his widow filed suit alleging the policies violated insurable interest rules in an attempt to have the policy benefits paid to her as the representative of the estate. The court ruled against her and upheld the purchaser’s rights to the policy benefits.

“Historically, approximately 90% of universal life insurance policies lapse as a result of missed premium payments.”

More recently, carriers have attacked the validity of policies based on the notion of stranger originated life insurance (STOLI). These actions are based on allegations that an insurable interest was lacking at the time of issuance of the policy. Such claims are asserted in instances where, at the time the policy was issued, the insured had a pre-arranged intent

The court’s interpretation of an insurable interest statute turned on whether a policy is obtained based on the insured’s “own initiative” as meaning that the decision to obtain the policy was “knowing, voluntary, and actually initiated by the insured” even though others may have solicited the insured to make the application and even if the insured had a concurrent agreement with a third-party to transfer the insured’s


43 | LOYOLA JOURNAL interests immediately after the policy was issued. Moreover, the court also rejected the argument that an insured’s intent at the time of application had any bearing on the validity of the policy. The Kramer result would presumably have been different if the policies had been issued after the effective date of New York’s new life settlement act, which outlawed STOLI transactions effective, and prohibits settlements during the first two years after origination, effective. Nevertheless, the Kramer decision provides some reassurance regarding the investor’s future ability to collect the benefits under those policies issues before November 19, 2009 and settled prior to May 18, 2010. Other legislation that affects the life settlement industry is the Dodd– Frank Wall Street Reform and Consumer Protection Act signed into law in July 2010. The Act calls for the formation of uniform regulations for the life settlement industry. Additionally, the life settlement industry has approximately nine months to work with the Securities and Exchange Commission (SEC) to define life settlements as a bone fide asset class for securitization. Separately, in 2010 the Life Settlements Task Force was formed by the SEC to examine the life settlement industry and issue recommendations on changes to the U.S. securities laws to include life settlements. On July 22, 2010, the Task Force issued its report suggesting that the SEC consider recommending to Congress that it amend the definition of “security” under the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Company Act of 1940 to include life settlements.22 According to the recommendation, the initial settlement of the policy by the insured or original policy holder would be excluded from the amended definition.23 It is unclear if and when these recommendations will be adopted or implemented. The increased regulation and standardization of life settlement procedures should benefit both consumers and investors. For example, greater transparency of fees and mandatory requirements for life

insurers to inform policy owners of the availability of life settlements should lead to increased confidence in the life settlement marketplace and broader acceptance of life settlements. While nothing is certain, the market momentum and attractive characteristics of life settlements are emerging and the asset class is progressing towards a ‘more’ mainstream investment alternative. ENDNOTES 1. Meriam-Webster 2. Life Settlements, A Buyers’ Market for Now, Conning Research & Consulting, Inc., Oct. 8, 2009, at 17. 3. Life Insurance Settlements, Regulatory Inconsistencies May Pose a Number of Challenges, GAO Report to the Special Committee on Aging, U.S. Senate, July, 2010, at 4. 4. Id. 5 Life Settlements, A Buyer’s Market for 2009, Conning Research and Consulting Strategic Study Series, Oct. 2009. 6. MIB Life Index Reports U.S. Life Insurance Activity off -2.4% in October, MIB (Nov. 11, 2010), http://www.mibsolutions.com/pdf/lipr_2010_10.pdf 7. Paul Siegert, Overview of the Life Insurance Secondary Market from an Investment Perspective, the Life Insurance Settlement Series Edition No. IX, Oct. 29, 2010, at 1 8. Id at 1 9. Id at 1 10. Life Settlements, A Buyers’ Market for Now, Conning Research & Consulting, Inc., Sept. 30, 2009, at 20. 11. Intraday Index Values, Dow Jones Indexes (Dec. 1 2010), http://www.djindexes.com/. 12. Investorpedia, http://www.investopedia.com/ terms/s/securitization.asp. 13. Meg Green, AIG Files First Rated Life Settlement Securitization, Trading Markets.com (Apr. 16, 2009), http://www.tradingmarkets.com/.site/news/Stock%20 News/2275566/. 14. Matthew Goldstein, AIG’s Death Bond Play, Businessweek.com, (Apr. 2007), http://www.businessweek.com/investing/wall_street_ news_blog/archives/2009/04/aigs_death_bond.html. 15. A.M. Best Methodology, Criteria – Insurance-Linked Securities, AM. Best Company, Inc., Nov. 24, 2009. 16. Rating U.S. Life Settlement Securitizations, DBRS (Feb. 2008), http://www.dbrs.com/research/218569/rating-u-s-lifesettlement-securitizations.pdf. 17. Moody’s to Issue Life Securitization Methodology, RiskMarket News (Apr. 27, 2009), http://www.riskmarketnews.com/files/784ee7d59062 1cf12725ead82f407601-31.html. 18. Life insurers Fact Book 19. See: PHL Variable Ins. Co. v. US Bank, USDC, Dist. MN, Civ. No. 10-1197 (opinion and order dismissing carrier’s claim for fraud where action filed one day after contestability period expired). However, under statutes in three states, incontestability clauses do not bar later raised defenses based on fraud (Ark. Code Ann. Sec. 23-91105; Kans. Stat. Ann. Sec. 40-420; Mo. Ann. Stat. Sec. 376.1124). 20. See: Penn Mutual Lif Ins. Co. V. Berck, USDC, Dist. MD, Civ. No. DKC 09-0578 (opinion dated 03/23/2010, Slip Copy 2010 WL 1233980). However, a premium financing agreement that merely transfers a security interest to secure repayment of the loan does not render a policy voidable for lack of insurable interest. Phoenix Life Ins. Co. v. LaSalle Bank, USDC, E. Dist. MI, Case Nos. 2:07-cv-15324 and 2:08-cv-11562 (order dated 03/30/09 on motion to dismiss, Slip Copy 2009 WL 877684). 21. --- N.E.2d ----, 2010 WL 4628103 (N.Y.), 2010 N.Y. Slip Op. 08376 (opinion dated 11/17/10). 22. Staff Report to the United States Securities and Exchange Commission, U.S. SEC (Jul. 22, 2010), h t t p : / / w w w. s e c . g o v / n e w s / s t u d i e s / 2 0 1 0 / lifesettlements-report.pdf 23. Id.


WHEN WILL MORTALITY IMPACT YOUR INVESTMENT PORTFOLIO?| LOYOLA JOURNAL | 44


45 | LOYOLA JOURNAL


LOYOLA JOURNAL | 46

THE FRENCH ROMANI

REPATRIATION B L F D

reaking the aw to urther iscrimination Practices against the Romani People JUDITH FELZ

France is conducting a controversial deportation of Romanian and Bulgarian Roma (also referred to as Romani, Gypsies or travelers) in order to disperse their illegal camps located throughout the country. The most recent dispute began with a battle this last July between French Roma and police in the town of Saint Aignan. France’s deportations have been widely criticized in the European Union countries, especially those to which the Roma were deported. I.

INTRODUCTION

The expulsion of European Union Romani citizens from France violates both European Community law and a number of fundamental rights afforded to all European Union citizens through various European Union Treaties and Directives. This paper first explains why France initiated the Roma Repatriation Programme, and then gives a brief background on the historical discrimination against the Romani (Roma) people. It then examines the various European Community laws, Treaties and/ or Directives that the French repatriation programme may violate with the expulsions of Roma. Lastly, it concludes with an analysis of why the legal response taken against France and is not efficient. II.

BACKGROUND

On July 2010, French police fatally shot 22-year-old Luigi Duquenet, a member of a French “gens du voyage” (community of Roma travelers) as

he drove his vehicle through a police roadblock and allegedly hit an officer.1 Enraged that one of their peers was killed by the police, a group of around 50 male youths from Duquenet’s gens du voyage rioted throughout the village of SaintAignan in central France, south of Blois.2 For two days, the youth attacked the Saint-Aignan police station and destroyed small shops, cars and other public property.3 On the same night that the SaintAignan riots erupted, rioting broke out in a Grenoble neighborhood after French police shot and killed 27-year-old Karim Boudouda, another Roma traveler, during a car chase. This fatal shooting began when police responded to a robbery at the Uriage-les-Bains casino. One of the robbers, Boudouda, tried to evade capture by shooting at the police who in turn fatally shot him during the pursuit.4 For many French citizens, the July riots supported the already widely held stereotypes that Roma are criminals, troublemakers and outcasts.5 The mayor of Saint-Aignan described the rioting as “a settling of scores between the travelers and the gendarmerie.”6 In response to the rioting, on July 21, 2010, France’s President, Nicolas Sarkozy, declared that “the [recent] events are not acceptable,” and announced in a press release that he intended to look into “the problems raised by the behaviors of some among the travelling entertainers and Rom[a],” whose nomadic lifestyle leaves them with “no assimilation into [the] communities” that they live near.7 He also planned to hold a special meeting with his advisors

at Elysée Palace on July 28, 2010, to discuss the issue of “expulsions of all the campings in irregular situation,” which he explained falls under the government’s “fight… against criminality” and the “true war which we will deliver to the traffickers and to the delinquents.” 8 After the meeting at Elysée Palace, on July 28, 2010, President Sarkozy issued an official statement announcing his plan to “put an end to the wild squatting and camping of the Roma.”9 The President stated that the illegal camps were “illicit sources of traffic[ing], [of] deeply unworthy operating living conditions of [] children at ends of begging, prostitution or delinquency.”10 To execute this plan, President Sarkozy initiated the French Roma Repatriation Programme, designed to dismantle 300 illegal camps of travelers and Roma across France within the following three months, and immediately expel Bulgarian and Romanian Roma who have committed public order offences.11 The President assured that “[i]n parallel” to the evacuations, “legislative reform will be undertaken in order to make more effective the fluidic device of the illegal campings.” 12 In the ensuing months, thousands of Roma migrants from Eastern Europe were expelled from France. Since July 2010, at least 51 Romani camps have been demolished, and France has repatriated at least 8,000 Roma, after providing 300 euro per person and 100 euro per dependant as an “incentive” to travel back to their country of origin.13 Although European Union countries often establish programmes to aid in the return of Roma


47 | LOYOLA JOURNAL to their countries of origin, only Romani migrants from countries outside the European Union are usually expelled.14 However, under France’s programme, the majority of Roma that have been expelled from France are citizens of Bulgaria and Romania, two Member States within the European Union. Furthermore, the majority of the estimated 400,000 Roma in France are either French citizens or residents of European Union countries. 15 According to Jean-Pierre Liégeois, a French sociologist and Roma expert, there are only 10,000 to 12,000 Roma in France who are foreigners.16 As citizens of European Union countries, these Romani are supposed to be afforded the right to enter France without a visa and their right to free movement within that area is supposed to be protected. Because of the many legal violations, especially the infringement of rights afforded to all European Union citizens, France’s Roma repatriation programme has proved controversial throughout the European Union and the rest of the world. III. HISTORY OF ROMANI DISCRIMINATION France’s controversial expulsions of Roma have sparked much outrage and criticism in recent months. However, the repatriation of Roma from France to Romania and Bulgaria did not originate on July 28, 2010 when President Sarkozy initiated the French Roma repatriation programme. France has been expelling significant numbers of Roma to Romania and Bulgaria under various schemes since at least 2007 when both countries joined the European Union.17 Nor is France the only Member State to expel Roma who are citizens of the European Union.18 France’s Roma repatriation programme is merely another chapter in the long discrimination against the historically ostracized Roma minority.19 The Romani, the largest minority group in Europe, are nomadic people who have a long history of discrimination and persecution. Do to their migrant nature Roma are also referred to as “gypsies” or “travelers.”20 As separatists, Roma often refuse to assimilate within the communities in the countries to which they move.21 This isolation has

caused many stereotypes to form, including, but not limited to, their being stereotyped as criminals, thieves, vagrants and prostitutes. 22 In turn, this is likely the main reason Roma have been subject to various forms of discrimination throughout history in nearly every country they have lived.23 The Romani were continuously enslaved from the period of the Byzantine Empire until slavery was abolished in the 1840’s and 1850’s.24 In Western Europe, the Romani faced a violent history of persecution and attempts at ethnic cleansing because of their foreign appearance. 25 The most radical attempt at ethnic cleansing took place during World War II, when the Roma were subject to the genocide perpetrated by the Nazis. An estimated 200,000 to 1 million Roma were killed in concentration and extermination camps.26 As recently as 1973, Czechoslovakia began a policy of sterilizing Romani women.27 Amnesty International has reported continued instances of discrimination against Romani during the Twenty-First Century.28

Repatriation Programme affects one of the most basic rights afforded to all citizens of the European Union, the right “to move and reside freely within the territory of Member States.” Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 32. As one European Union scholar explained, “[t]he free movement of persons is one of the four fundamental freedoms of Community law, along with the free movement of goods, services, and capital.”30 According to the Department of Justice and Home Affairs of the Council of the European Union, “[o]ne of the prime objectives of the construction of Europe was to create a large European economic market . . . without internal frontiers, [so] goods, capital and services [could] move about and be exchanged freely without obstacles.” 31 However, to fulfill this goal required the free movement of persons and workers. Therefore, in an effort “to move form a mainly economic community to a political union,” on February 7, 1992, members of the European Community signed the Treaty on European Union (“TEU”), now referred to as the Maastricht Treaty, which established the European Union (to be effective November 1, 1993).32 The Maastricht Treaty was a “symbolic move . . . from the European Economic Community to the European Community and from the Community to the Union,” as it “first introduced the legal concept of citizenship into European Union law.”33 This concept of citizenship challenged traditional borders by conferring the right of citizens of the European Union to move and reside freely within Member States of the European Union for the purposes of working, vacation or study.34

“....France’s Roma repatriation programme has proved controversial throughout the European Union and the rest of the world.”

Therefore, by implementing the French Roma Repatriation Programme, President Sarkozy simply “turned on a community that has long been the default object of suspicion and disdain throughout Europe: itinerant people including gypsies, travelers and Roma.” 29

IV. THE LEGALITY OF THE FRENCH ROMA REPATRIATION PROGRAMME a.

Free Movement and Residence

The expulsion of European Union citizens from France violates both European Community law and a number of fundamental rights afforded to all European Union citizens through various European Union Treaties and Directives. More specifically, Frances’ Roma

On April 24, 2004, the European Parliament and the Council established Directive 2004/38/EC, also known as The Free Movement Directive, which strengthened the right of European Union citizens to move and reside freely


THE FRENCH ROMANI REPATRIATION| LOYOLA JOURNAL | 48 within Member States by creating a single legislative act to govern this freedom.35 The text of the Directive reiterates the principles behind this right, stating, “[t] he free movement of persons constitutes one of the fundamental freedoms of the internal market, which compromises an area without internal frontiers, in which freedom is ensured in accordance with the previsions of the Treaty.” 36 The preamble to Directive 2004/38/EC explains why the Directive is necessary, stating, “Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.”37 In Trojani v. CPAS, the European Court of Justice (“ECJ”) explained, “the right to reside in the territory of the Member States is conferred directly on every citizen of the Union by Article 18(1) EC.” Case C-456/02 Trojani v. CPAS [2004] ECR I-7573, para. 31.38 They further explained that under Article 20(1) of the Treaty on the Functioning of the European Union (TFEU), “[e]very person holding the nationality of a Member State shall be a citizen of the Union.”39 Id. Therefore, because the majority of Romani living in France are citizens of the European Union, they are afforded the right under Article 21(1) TFEU, Article 18(1) of the EC Treaty, and Directive 2004/38/EC, to freely travel to France, another Member State of the European Union, to vacation, live, work or study.40 Furthermore, after five years of residence in a host country, an individual automatically acquires a right of permanent residence. (Art. 16, Directive 2004/38/EC.) However, “[the] right [to move freely] is not unconditional.” Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-7091, para. 84. The ECJ in Baumbast and R v. Secretary of State for the Home Department, explained, “[this right] is conferred subject to the limitations and conditions laid down by the [EC] Treaty and by the measures adopted to give it effect.” Id. Among these limitations and

conditions, Directive 2004/38/EC41 states that European Union citizens (with a valid identification card or passport) who wish to stay in a Member State longer than three months must demonstrate that they are: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). Id. art. 7(1). The ECJ explained that Article 1(1) of Directive 90/364 allows Member States to require a resident to have these resources in order “to avoid [residents from] becoming a burden on the social assistance system of the host Member State during their period of residence.” Id. at para. 92. However, according to the ECJ, even if a foreign national meets the established residency requirements, “[t]he exercise of the right of residence of citizens of the Union can [also] be subordinated to the legitimate interests of the Member States.” Id. at para. 90. In Commission v. Netherlands, the Court held that “Member States may

expel nationals of other Member States… where the person concerned represents a genuine and sufficiently serious threat affecting one of the fundamental interests of the society in question.” Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 34. For example, the ECJ has held that the Free Movement “Directive [] permits Member States to expel [individual foreign] nationals…on grounds of public policy or public security.” Id.42 Article 27(1) of the Directive also allows “Member States [to] restrict the freedom of movement and residence of Union citizens and their family members...on grounds of...public health.”43 According to President Sarkozy, since the Roma repatriation programme falls under the government’s “fight… against criminality,” the repatriations fall within the exceptions created by the Directive, and is therefore in accordance with Community law. 44 President Sarkozy claims that the programme was designed to combat “criminality” by dismantling 300 illegal camps of travelers and Roma across France, and immediately expelling Bulgarian and Romanian Roma who have committed public order offences.45 Furthermore, when President Sarkozy announced his plan to “put an end to the wild squatting and camping of the Roma,”46 he explained that the illegal camps that were to be targeted by the programme are “illicit sources of traffic[ing], [of] deeply unworthy operating living conditions of [] children at ends of begging, prostitution or delinquency.”47 France’s Roma repatriation programme seems to be in accord with the limitations and conditions to European Union residency law established by the above-mentioned Directives and judgments. Bulgarian and Romanian citizens still have the right to enter France without a visa due to their countries of origin being in the European Union, and France can legally repatriate Roma for violating established conditions to residency or for reasons of public health, public security, or public policy. However, an additional layer of judicial deference must be applied to cases regarding infringement on an individual’s right of residency. The ECJ in Baumbast and R v. Secretary of State for the Home Department explained that


49 | LOYOLA JOURNAL although citizens of the European Union’s right “to move and reside freely within the territory of Member States” may be suspect to limitations and conditions, “competent authorities and . . . the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law[.]” Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-07091, para. 92. To comply with Community law, “Member States must take all steps to ensure that the safeguard[s] of the provisions of the directive [are] available to any national of another Member State who is subject to a decision ordering expulsion.” Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 35. 48 The ECJ has explained that a Member State who “exclude[s] [citizens of the European Union] from the benefit of th[e] substantive and procedural safeguards . . . [because they] are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.” Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 35. Adversaries argue that the French Repatriation programme violates Community law by “exclude[ing] [Romani citizens of the European Union] from the benefit of th[e] substantive and procedural safeguards” conferred upon them under the provisions of numerous Directives. Id. More specifically, it is alleged that due the en masse manner in which Roma are being expelled from France, most Roma are not afforded the time or necessary documents to seek judicial review of their expulsion decision prior to being expelled.

C-413/99 Baumbast and R [2002] ECR I-07091, para. 86. Article 30 of the Free Movement Directive (2004/38/EC) states that “[t]he persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.”50 In UNECTEF v. Heylens, the ECJ explained that the right to effective judicial review requires a Member State to give reason for any decision that curtail or deny an EU citizen’s freedom to move and reside in a M e m b e r State, so that the person affected can “defend that right under the best possible conditions.” Case 222/86 UNECTEF v. Heylens [1987] ECR 4097, para. 15. As the ECJ clarified in Goerg Dörr,

“...Romani are not afforded the time or materials required to seek judicial review before their deportation. ”

i.

Judicial Review

According to the ECJ, one of the most important procedural safeguards afforded to European Union citizens “[with] respect [to] the exercise of th[e] right of residence[,] is [that the decision is] subject to judicial review.”49 Case

. . . [I]t is established case-law that all steps must be taken by the Member States to ensure that the safeguard of the right to appeal guaranteed by Directive 64/221 is in fact available to any national of another Member State against whom a decision ordering expulsion has been issued. That guarantee would, however, become illusory if the Member States could, by the immediate enforcement of a decision ordering expulsion, deprive the person concerned of the opportunity to take advantage of the success of the pleas raised in his appeal.51 Case C-136/03 Goerg Dörr v. Sicherheitsdirekton für das Bundesland Kärnten and Ibraham Ünal v. Sicherheitsdirekton für das Bundesland Vorarlberg [2005] OJ. Pursuant to Article 28 of the Directive, a reasoned decision means that “the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic

situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin” “[b]efore taking an expulsion decision on grounds of public policy or public security[.]” 52 Furthermore, Article 3(1) of the Directive requires that an expulsion “be based exclusively on the personal conduct of the individual concerned.”53 Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 5. Accordingly, in order to “take all steps to ensure that the safeguard of the provisions of the directive is available to any national of another Member State who is subject to a decision ordering expulsion,” France must conduct detailed individualized assessments of each Romani’s circumstances before they can order their deportation. Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 35. Therefore, even though France can legally deport European Union citizens for numerous reasons, under “the safeguard[s] of the provisions of the directive,” France must afford Roma the tools necessary to contest their deportation. Id. Adversaries of the French Repatriation programme also claim that due to the en masse nature of the expulsions, officials have not individually assessed each individual Roma to decide whether or not a particular person was “a burden” on the French economy, or employed, or in some instances, if they were in France longer than three months as required by Community law. Furthermore, because of the immediate nature of the expulsions, Romani are not afforded the time or materials required to seek judicial review before their deportation. They also point out that in the months after President Sarkozy initiated the programme, thousands of Roma migrants from Eastern Europe were expelled from France. French Interior Minister, Bruce Hortefeux, estimated that 700 Roma were evicted from 40 camps in the first 2 weeks of the programme.54 Since July 2010, at least 51 Romani camps have been demolished, and France has repatriated at least 8,000 Roma.55 Because Roma are currently being expelled in such large numbers, that question arises of whether French officials could have individually assessed each circumstance.


THE FRENCH ROMANI REPATRIATION| LOYOLA JOURNAL | 50 The European Roma Rights centre (ERRC), an international human rights law organization which works to combat anti-Romani racism and discrimination in Europe, began collecting evidence regarding the France Roma expulsions almost immediately after the 2010 programme was initiated.56 In the process of their investigation, the EERC collected many Roma expulsion (deportation) order forms. The EERC assert that the forms do not assess the specific circumstances of each person’s deportation. 57 For example, many of the expulsion orders collected were identical, pre-printed forms, with room only to insert each person’s name and place of birth. Some examples of the expulsion orders given to Roma by French officials that were collected by the EERC are: 1. Choisy-le-Roi, 12 August 2010: 30 OQTF58 were served on Romanian Roma between 8:10 a.m. and 11:10 a.m. The average rate was one every six minutes, with all but five documents showing the same notifying agent’s signature (two further were not even signed) and the same interpreter throughout (who did not sign a handful of orders). The forms are identical, save for names and dates of birth, which are inserted by hand in all but two cases. The OQTF were issued in the context of a camp eviction, which was reported in Le Monde on 13 August 2010.59 2. Montreuil, 13 August 2010: 9 OQTF60 were served on Romanian Roma in 20 minutes following an eviction procedure in which men were separated from women and children. The nine OQTF affects as many families, as they were only issued to the men. Again, forms are identical and names and dates of birth simply filled in by hand. The process was recorded in Le Parisian.61 3. Corneuve, 19 August 2010: 10 identical OQTF62 were served on Romanian Roma. 4. St Etienne, various dates from 30 July 2010: 20 appended expulsion documents (OQTF and APRF)63 served on Romanian Roma. The documents are similar and show no evidence of individual consideration. On 30 July 8

orders were issued between 9:00 AM and 10.40 AM; on 30 August 3 orders were issued between 9:00 a.m. and 9:35 a.m. Other orders were issued on various times and dates. 5. St Denis, 2 September 2010: 20 OQTF64 served on Romanian Roma. 6. Bobigny, 9 September 2010: 25 identical OQTF65 were served on Romanian Roma.66 These examples confirm that the Roma expulsions were often conducted without individual considerations. Furthermore, many of those interviewed by the EERC also claim that they were in France for less than three months when they were repatriated. And, with no reasoned decisions in these orders detailing why each Roma was being expelled, there is no way to know if French officials assessed an individual’s length of residency, employment history, access to health insurance, and more generally, whether these individuals represent an unreasonable burden on the social assistance system. Another hindrance to equitable judicial review is the ability of Roma deportees to comprehend the process and its associated documentation. In Goerg Dörr, the ECJ explained that “[t]he requirement for legal certainty means that the legal situation r e s u l t i n g from national implementing measures must be sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations.” Case C-136/03 Georg Dörr v. Sicherheitsdirekton für das Bundesland Kärnten and Ibraham Ünal v. Sicherheitsdirekton für das Bundesland Vorarlberg [2005] O.J. Under Article 30 of the Free Movement Directive (2004/38/ EC), a Member State seeking to deport a citizen of the European Union must adhere to the following guidelines when

notifying an individual of a deportation decision:67 1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them. 2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security. 3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification. However, as we have seen in the abovementioned expulsion orders collected by the EERC, the orders did not describe “precisely and in full, [] the public policy, public security or public health grounds on which the decision taken in their case is based[.]” 68 French officials did not include information in the expulsion orders to allow a deportee to “to comprehend its content and the implications for them.”69 Therefore, in a significant number of cases, Roma who were expelled did not understand the legal process for deportation and therefore had no meaningful opportunity to challenge their deportation. For example, some Roma interviewed y the EERC claim that they did not understand the language that their order was printed in and were not given an interpreter. Thus, they did not fully

“Another hindrance to equitable judicial review is the ability of Roma deportees to comprehend the process and its associated documentation. ”


51 | LOYOLA JOURNAL understand why they were being expelled or how to appeal their deportation.70, 71 Other Roma who had been repatriated to Romania told the ERRC that they were asked to sign a document that they did not understand as they entered an airplane in France. And, as one European Union scholar explained, “[t] he vast majority of Roma expulsion cases undertaken in Europe never come to tribunal proceedings, generally due to the difficulty of effectively challenging such acts fo l l o w i n g expulsions, once the person expelled is no longer in the country concerned, and given the limitations on possibilities for legal aid.”72

(ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms).73 Article 4 of Protocol 4 of the ECHR states that the “[c]ollective expulsion of aliens is prohibited.”74 Because all the member states of the European Union are also signatories of the European Convention on Human Rights (ECHR), France must abide to this Protocol. TCIn Čonka v Belgium, 75 the leading case on mass expulsions decided by the European Court of Human Rights, the Court considered five elements to determine whether Article 4 of Protocol 4 was breached:

“The manner in which France expelled Roma is in itself illegal. Such large numbers of expellees amount to collective expulsions that are prohibited.... ”

These documents, combined with the numerical data that establish the expulsions were conducted quickly and en masse, illustrates how France failed to conduct individual assessments of personal circumstances before deportation in violation of the Free Movement Directive. Moreover, officials often did not assess whether these foreign nationals were actually in violation of one of the established restrictions or conditions to residency or were a burden on France’s resources. It observably hinders an individual’s right under the Directive to contest their deportation if they are never given a reason for their deportation before being sent back to their country of origin. Thus, the Romani were not afforded the required judicial review or given the necessary assessments to contest their deportation. ii.

Mass Expulsions

The manner in which France expelled Roma is in itself illegal. Such large numbers of expellees amount to collective expulsions that are prohibited under Article 4 of Protocol 4 of the European Convention on Human Rights

That doubt is reinforced by a series of factors: firstly, prior to the applicants’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation…; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed. Judgment of 5 February 2002, in Application No. 51564/99, para 62. Čonka concerned the deportation of a single Romani family of four from Slovakia. In contrast, France has expelled thousands of individuals and numerous families. Further, the expulsion orders in France meet the first four elements laid out by the Court in Čonka and thus, would establish that France had conducted mass expulsions in violation of Article 4 of Protocol 4. iii.

Non-Voluntary Returns

France maintains that the Roma repatriation programme does not violate Community law or EC Directives because the Romani who left France to

go back to their country of origin did so “voluntarily.” French authorities’ claim that the Roma repatriations, conducted under France’s humanitarian assistance returns programmes, are by choice. However, the extent to which these returns have actually been on a voluntary basis has been questioned by many European Union authorities, including French government agencies, since France began repatriating Roma in 2007. In his 2008 report on France, the Council of Europe’s Commissioner of Human Rights explained, “…such repatriation is not always genuinely ‘voluntary’, as repatriation operations are sometimes coordinated with intimidating, or even improper, police operations. The Commissioner was informed that in some instances of organi[z]ed repatriation, ‘volunteers’ had had their identity papers confiscated until they reached their country of origin, so that they could not change their mind. The Commissioner would like such repatriation to be organi[z]ed with due regard for the rights of those concerned, and a full guarantee of its ‘voluntary’ nature to be given.”76 Based on evidence collected by the ERRC,77 it is clear that in the past two years, France’s current repatriations continue to be less than voluntary. Many Roma who left France chose to obey their deportation order out of fear of reprimand or police harassment. In some cases, during regular raids of Romani settlements, police officers are reported to have threatened the residents with eviction and expulsion, and other individuals reported that the police pressured them to sign papers attesting that they would return to Romania voluntarily.78 Furthermore, the Roma, a notoriously destitute people, were given 300 euro (plus 100 euro per child) as an “incentive” to return to their country of origin. This coercion belies the assertion by French authorities that many of the expulsions were voluntary and that the protections provided by the Free Movement Directive do not apply. Furthermore, in DH and others v. The Czech Republic (57325/00), the Grand Chamber of the European Court of Human Rights, held that a fundamental right of European Union citizenship could


THE FRENCH ROMANI REPATRIATION| LOYOLA JOURNAL | 52 not be waived through coercion. DH and Others v the Czech Republic [2007] ECHR 57325/00 (Grand Chamber) (13 November 2007).79 Thus, as Roma are effectively coerced into leaving France, these so-called “humanitarian returns” are in fact not voluntary and are in violation of the Free Movement Directive (2004/38/EC). V. LEGAL RESPONSE TO THE FRENCH REPATRIATION PROGRAMME As France is a Member State of the European Union, French law must be interpreted “in the light of” European Union Directives and cannot conflict with European Community (EC) law. 80 The supremacy of European Community (EC) law is a fundamental principle of the European Union. As Professor Paul Kirchhof explains, “European law would lose its roots and its power to grow by being made autonomous and separate from the Member States.”81 In Von Colson and Kamann v. Land Nordrhein-Westfalen,82 a case concerning Germany’s inadequate implementation of a Directive, the ECJ ruled: 26. Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular, the provisions of a national law specifically introduced in order to implement [a] Directive… national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the [Directive]. Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, para. 26 (emphasis added). In Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV, the ECJ clarified that the obligation of a Member State to interpret European Union law

into their legal system “applies to the national legal system as a whole, and not only to specific legislation.” Cases C-397403/01 Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835, para. 115. Further, in Ciola v. Land Vorarlberg, the ECJ reaffirmed that “any provision of national law which conflict[s] with directly effective Community law should not be applied.” Case C- 224/97 Ciola v. Land Vorarlberg [1999] ECR I-2517, para. 24. “Thus, the principal of primacy is equally asserted and required by the ECJ whenever directly effective EC law is concerned, [] regardless of whether fundamental national constitutional norms or minor administrative acts are at issue.” Case C- 224/97 Ciola v. Land Vorarlberg [1999] ECR I-2517, para. 24. Therefore, if the law of a Member State is in conflict with EC law, EC law will prevail.83 In Baumbast and R v. Secretary of State for the Home Department, the ECJ explained that for National law to be compatible with Community law it must be applied “in compliance with the general principles of Community law and, in particular the principle of proportionality.” Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-07091, para. 92. The ECJ reasoned, “[t]hat means that national measures adopted on [a] subject must be necessary and appropriate to attain the objective pursued.” Id. para. 92.84 In Dounias v. Ypourgio Oiknomikon the Court clarified that “if [an] administrative procedure is to be compatible with Community law, it must not . . . make it impossible or excessively difficult in practice to exercise rights conferred by Community law.” Case C-228/98 Dounias v. Ypourgio Oiknomikon [2000] ECR I-577, para. 58.85 In Sagulo, the ECJ ruled that while Member States were entitled to impose reasonable penalties against individuals who commit minor EC residence violations, the penalties must not be disproportionate to the offense and must not constitute an obstacle to the exercise of the fundamental right to move freely. Case 8/77 Sagulo, Brenca, and Bakhouche [1977] ECR 1495, paras. 121. Therefore, although Roma citizens of the European Union’s right to move and

reside freely France may be suspect to limitations and conditions, the “national measures adopted to attain the objective pursued,” the expulsion of Roma for often minor offenses or no offenses at all, does not comply does not “compl[y] with the general principles of Community law and, in particular the principle of proportionality.” Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-07091, para. 92. Furthermore, when a Member State imposes a penalty for violating National legislation that is found to be incompatible with Community law, both the legislation and the penalty become invalid. Case C-13/01 Safalero Srl v. Prefetto di Genova [2003] ECR I-8679. 86 Therefore, because the French Roma repatriation programme conflicts with Community law and Directives, the programme and the expulsions are invalid. Based on these judgments, it is evident that France is legally required to supplement their national law to conform to Directive 2004/38/EC (Free Movement and Residence) and possibly numerous other EC laws. In accordance with these conclusions, the European Commission initiated legal proceedings against France for its failure to comply with Community law. European Union Justice Commissioner Viviane Reding called the forced deportations “a disgrace,” and compared France’s behavior towards the Romani to Nazi behavior during World War II.87 The Commission gave France until October 15, 2010, to “integrate” European Union law into its national law.88 On October 15, 2010, France agreed to amend their law to comply with the Directive 2004/38/ EC (Free Movement and Residence) by early 2011. On October 19, 2010, Viviane Reding announced that the Commission was satisfied with France’s response and suspended the infringement procedure.89 In an official statement, Vivian Reding noted that “the European Commission will closely watch over the full implementation of the commitments made by France, in the interest of EU law and EU citizens. . . . In addition, the Commission will continue its work on promoting the economic and social integration of Roma in all EU Member States, whether country of origin or host country . . . [and] we will examine


53 | LOYOLA JOURNAL how EU funds can help to further strengthen national measures for Roma integration.”90 However, the Commission did not ask that France stop the expulsions until French law conformed to Community law. As a result, France has not yet suspended the repatriations of Roma. VI. CONCLUSION It is evident that in numerous cases, the ECHR has concluded that there is “a positive obligation imposed on the Contracting States [...] to facilitate the gypsy way of life.” See Buckley v. United Kingdom, Judgment of 26 August 1996; Chapman and Others v. Untied Kingdom, Judgment of 18 January 2001; Connors v. United Kingdom, Judgment of 27 May 2004. However, it is also apparent that France’s recent actions under the Roma repatriation programme clearly do not facilitate the “gypsy way of life.” Rather, France seeks to abolish this nomadic lifestyle within its borders by dismantling Roma camps and expelling Roma who do not fit into their view of acceptable society. In compliance with laws and directives of the European Union, it is clear that the expulsions of Roma need to stop immediately until the European Commission can make sure that France is following the proper mechanisms for deportation. Until France amends its programme to conform to Community law in early 2011, as promised, France’s programme will remain in violation of various Community Law’s and Directives. ENDNOTES

1. Bruce Crumley, Anger as Sarkozy Targets Roma in Crime Crackdown, Time (July 23, 2010), http://www. time.com/time/world/article/0,8599,2005818,00. html#ixzz14iPWfrTS. 2. Crumley, supra note 1. 3. Richard Baker, Sarkozy Should Leave the Roma Alone and Tackle the Real Issues…, American Chronicle (October 6, 2010), http://www.americanchronicle. com/articles/view/190285. 4. France Fears Widespread Rioting as Youths Rampage After Police Shoot Robber, Mail Online (last updated July 18, 2010, 12:14 AM). http://www. dailymail.co.uk/news/worldnews/article-1295639/ Riot-alert-France-youths-rampage-police-shoot-robber. html; Q&A: France Roma Expulsions, BBC News Europe (last updated October 19, 2010, 11:23 AM), http:// www.bbc.co.uk/news/world-europe-11027288. 5. Crumley, supra note 1. 6. Q&A: France Roma Expulsions, supra note 4. 7. Crumley, supra note 1; Déclaration de M. le Président de la République sur la sécurité [Declaration of Mr. President of the Republic on Safety], Conseil des Ministres [The Council of Ministers], Elysee Palace, July 21, 2010, available at http://www.elysee.fr/president/ les-actualites/declarations/2010/declaration-de-m-lepresident-de-la-republique.9344.html. 8. Déclaration de M. le Président de la République sur la sécurité [Declaration of Mr. President of the Republic

on Safety], supra note 7.

33 . Id.

9. French Romani Repatriation, Wikipedia, (last updated October 26, 2010, 3:30 AM), http:// en.wikipedia.org/wiki/French_Romani_repatriation (citing Fichtner, Ullrich, Sarkozy’s War Against the Roma, Der Spiegel [Spiegel Online International], (August 15, 2010), http://www.spiegel.de/international/ europe/0,1518,717324,00.html); Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], Le Président de la République [The President of the Republic], July 28, 2010, available at http://www. elysee.fr/president/les-actualites/communiques-depresse/2010/juillet/communique-faisant-suite-a-lareunion.9381.html.

34 . Gutman, supra note 13.

10 . Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], supra note 9. 11. Sarkozy Crackdown on Foreign-Born Criminals, BBC News Europe (July 30, 2010), http://www.bbc.co.uk/ news/world-europe-10820457; Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], supra note 9; France’s government spokesman Luc Chatel justified the expulsions of EU citizens, stated “[y] ou can very well be Roma, a traveler, even, at times, French within these communities…[b]ut you’ll have to respect the law of the republic.” Crumley, supra note 1. 12 . Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], supra note 9. 13 . France Sends Roma Gypsies Back to Romania, BBC News Europe (last updated August 20, 2010, 6:29 AM), http://www.bbc.co.uk/news/world-europe-11020429; Jesse Gutman, The Romani People and the Free Movement Directive, Legal Frontiers, (October 16, 2010), http://www.legalfrontiers.ca/2010/10/theromani-people-and-the-free-movement-directive/. 14. Kristi Severance, France’s Expulsion of Roma Migrants: A Test Case for Europe, Center for Research on Globalization, (October 22, 2010), http://www. globalresearch.ca/index.php?context=va&aid=21558. 15 . Precise population statistics are hard to generate as Roma are usually afraid to identify themselves as Romani because of the history of prejudice against their people. Crumley, supra note 1; Severance, supra note 14. 16 . The Council of Europe estimates the number of Roma in Europe to be slightly more than 11 million. Severance, supra note 14; France President Urged Not to Stigmatize Roma and Travelers, Amnesty International, (July 22, 2010), http://www.amnesty. org/en/news-and-updates/france-president-urgednot-stigmatize-roma-and-travellers-2010-07-23. 17 . Kushen, supra note 17; Severance, supra note 14. 18 . Italy and Hungary are two European countries that have recently expelled Roma from their borders and broken up illegal camps. Kushen, supra note 17. 19 . Severance, supra note 14. 20 . Severance, supra note 14. 21 . Antiziganism, Wikipedia, (last updated October 19, 2010), http://en.wikipedia.org/w/index.php?title= Antiziganism&action=history. 22 . Antiziganism, supra note 24. 23 . Antiziganism, supra note 24. 24. Although some historians argue the Romani have been enslaved since the Mongol invasion in Europe in 1241. Romani People, Wikipedia, (last updated November 8, 2010, 9:33 PM), http:// en.wikipedia.org /w/index.php?title=Romani_ people&action=history. 25 . Romani People, supra note 27. 26 . Severance, supra note 14. 27. Marina Denysenko, Sterilized Roma Accuse Czechs, BBC News Europe (last updated March 27, 2007, 7:52 AM), http://news.bbc.co.uk/2/hi/europe/6409699. stm. 28 . Romani People, Wikipedia, supra note 27. 29 . Crumley, supra note 1. 30 . Paul Craig and Grainne de Burca, EU Law: Text, Cases, and Materials 743 (4th ed. 2008). 31. Id. at 232. 32. Id. at 845.

35 . Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and their Family members to Move and Reside Freely Within the Territory of the Member States Amending Regulation (EEC) No 1612/68 and Repealing Directives 64/221/EEC, 68/360/EEC, 72/194/ EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC and 93/96/EEC, [2004] OJ L158/77. 36. Directive 2004/38/ EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/78, preamble, para 2.

37 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member [2004] OJ L158/78, preamble, para 3. 38 . See also Case C-413/99 Baumbast and R [2002] ECR I-7091, para. 84. 39 . See also Case C-184/99 Grzelczyk [2001] ECR I-6193, paras. 30 and 31; Case C-209/03 Bidar [2005] ECR I-2119, para. 31. 40. Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 41 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/93. 42 . See also Case C-459/99 MRAX [2002] ECR I-6591, paras. 61 and 62; see also Case C-503/03 Commission v Spain [2006] ECR I-1097, paras. 43 and 44. 43. Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/114. 44 . Déclaration de M. le Président de la République sur la sécurité [Declaration of Mr. President of the Republic on Safety], supra note 7. 45. Sarkozy Crackdown on Foreign-Born Criminals, BBC News Europe (July 30, 2010), http://www.bbc.co.uk/ news/world-europe-10820457; Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], supra note 9; France’s government spokesman Luc Chatel justified the expulsions of EU citizens, stated “[y] ou can very well be Roma, a traveler, even, at times, French within these communities…[b]ut you’ll have to respect the law of the republic.” Crumley, supra note 1. 46. French Romani Repatriation, supra note 9; Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], Le Président de la République [The President of the Republic], July 28, 2010, available at http://www.elysee.fr/president/les-actualites/ communiques-de-presse/2010/juillet/communiquefaisant-suite-a-la-reunion.9381.html. 47. Communiqué faisant suite à la réunion ministérielle de ce jour sur la situation des gens du voyage et des Roms, [Official statement making following the ministerial meeting of this day on the situation of the travelling entertainers and Roms], supra note 9. 48. See also Case C136/03 Dörr and Ünal [2005] ECR I-4759, para. 49; see Case C-50/06, Commission v. Netherlands, 2007 O.J. (L 170/10) para. 35. (a Member State who “exclude[s] [citizens of the European Union] from the benefit of th[e] substantive and procedural safeguards . . . [because they] are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.”) 49 . See also, on the right to judicial review, Case C-228/98 Dounias v. Ypourgio Oikonomikon [2000] ECR I-577, paras. 64-66; Case C-424/99 Commission v. Austria [2001] ECR-I-285; Case C-1/99 Kofisa Italia [2001] ECR I-207. 50 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/116. 51. See also Case 48/75 Royer [1976] ECR 497, paras. 55-56.


THE FRENCH ROMANI REPATRIATION| LOYOLA JOURNAL | 54 52. Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/115. 53 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/117.

225, 227, available at http://onlinelibrary.wiley.com/ doi/10.1111/1468-0386.00081/abstract. 82. Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, para. 26. 83. French courts do not accept that EC law will always take precedence over the French law. The Counseil Constitutionnel explained that EC law would only be compatible with the French Constitution if the “essential conditions for the exercise of national sovereignty” are not affected. Id. 356 and 357 n. 31.

54 . “French police dismantle some 40 Gypsy camps”, The Associated Press, 12 August 2010, available at: http://www.google.com/hostednews/ap/article/ ALeqM5huDQ-4a0mF82AwSEB7b4VGs0TPuQD9HI1 DG81.

84 . See Joined Cases C-259/91, C-331/91 and C-332/91 Allue and Others [1993] ECR I-4309, para. 15.

55. France Sends Roma Gypsies Back to Romania, BBC News Europe (last updated August 20, 2010, 6:29 AM), http://www.bbc.co.uk/news/world-europe-11020429; Jesse Gutman, The Romani People and the Free Movement Directive, Legal Frontiers, (October 16, 2010), http://www.legalfrontiers.ca/2010/10/theromani-people-and-the-free-movement-directive/.

86. Case C-13/01 Safalero Srl v. Prefetto di Genova [2003] ECR I-8679; Paul Craig and Grainne de Burca, EU Law: Text, Cases, and Materials 309 (4th ed. 2008).

56. The ERRC was assisted by the following organizations: the Association Parudimos, GISTI, Imediat, Médecins du Monde, MRAP93, Romeurope, Sodiarité Rroms St-Etienne and Integro Association. 57 . Robert Kushen, Submission in Relation to the Analysis and Consideration of Legality Under EU Law of the Situation of Roma in France: Factual Update, European Roma Rights Centre, (September 27, 2010), available at http://www.errc.org/cms/upload/file/ france-ec-legalbrief-27-sept-2010.pdf. 58. Kushen, supra note 46, at Appendix 3a. 59. Id. at Appendix 3b. 60. Id. at Appendix 4a. 61 . Id. at Appendix 4b. 62. Id. at Appendix 5. 63 . Id. at Appendix 6. 64 Id. at Appendix 7. 65 Id. at Appendix 8. 66. Kushen, supra note 17. 67 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/116-117. 68 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/116-117. 69 . Directive 2004/38/EC of the European Parliament and the Council of 29 Apr. 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/116-117. 70. Id. at Appendix 10b and 10c. 71. Id. at Appendix 11a and 11b. 72. Claude Cahn and Elspeth Guild, Recent Migration of Roma in Europe 56 [2008]. 73 . Article 4 of Protocol 4. Of The Council of Europe, The European Convention on Human Rights, Rome November 4, 1950. 74. Article 4 of Protocol 4. Of The Council of Europe, The European Convention on Human Rights, Rome November 4, 1950. 75 . Judgment of 5 February 2002, Application No. 51564/99, para 62. 76 . Submission in Relation to the Analysis and Consideration of Legality under EU Law of the Situation of Roma in France, supra note 17. 77 . See for example: http://www.errc.org/cms/upload/ file/france-returns-roma-to-timisoara-20-08-2010. pdf (attached as Appendix 1 of this submission) and http://www.romanicriss.org/report%20France%20 repatriation%2019%20august%20eng.pdf. 78 . Appendix 11a and 11d. 79. DH and others v The Czech Republic (57325/00) (available at http://cmiskp.echr.coe.int/tkp197/view. asp?item=1&portal=hbkm&action=html&highlight =d.%20|%20h.%20|%20%22THE%20CZECH%20REPUB LIC%22&sessionid=58591532&skin=hudoc-en) 80 . Paul Craig and Grainne de Burca, EU Law: Text, Cases, and Materials 287 (4th ed. 2008). 81. Paul Kirchhof, The Balance of Powers between National and European Institutions, (1999) 5 ELJ

85. See also Case C-312/93 Peterbroeck v. Belgian State [1995] ECR I-4599, para. 12.

87 . Oana Lungescu, EU Vice President Sees Red and Attacks France on Roma, BBC News Europe, (last updated September 14, 2010, 1:36 PM), http://www. bbc.co.uk/news/world-europe-11302013. 88. Robert Kushen, Submission in Relation to the Analysis and Consideration of Legality Under EU Law of the Situation of Roma in France, European Roma Rights Centre, (August 27, 2010), available at http:// www.errc.org/cms/upload/file/france-ec-legalbrief-27august-2010.pdf. 89. Severance, supra note 14. 90. Brussels, 19 October 2010, Statement by Viviane Reding, Vice-President of the European Commission, EU Commissioner for Justice, Fundamental Rights and Citizenship, on the recent developments concerning the respect for EU law as regards the situation of Roma in France, MEMO/10/502.


55 | LOYOLA JOURNAL

BY: LAHAINA ARANETA


LOYOLA JOURNAL | 56

SPLIT BY LAW LAHAINA ARANETA

Shirley Tan’s persistent endeavor for immigration reform began decades ago when her cousin had tried to kill her in the Philippines.1 However, Tan’s mother and sister were not as fortunate and were brutally murdered.1 Having visited the United States prior to the incident, Tan met her partner Jay Mercado, an American-Filipina. Fearing for her life as her family’s murderer was released from jail; she reunited with her partner, Mercado, in the United States. 1 Upon her return to the U.S., she applied for asylum, which was subsequently denied, and to this day Shirley Tan is not a U.S. citizen. 1 Although Tan and Mercado have been committed to one another for 25 years, are registered domestic partners and have 12-year-old twin boys, Tan still lives without the permanence of American citizenry.2 Tan has been subjected to the humiliation of being taken away by the Immigration and Naturalization Services in front of her family and was forced to wear an ankle-monitoring bracelet.1 She has struggled with the challenges of being in the United States illegally. Tan was fortunately granted the opportunity to make a testimony to the U.S. Senate Committee on the Judiciary in favor of passing “The Uniting American Families Act: Addressing Inequality in Federal Immigration Law”. 1 However, the legislation still has not passed, Tan is still not a U.S. citizen and the reality still remains that if Tan was straight, her situation would be completely different. 2 Just last year 79,876 U.S. citizens were granted visas for their non-U.S. citizen spouses. 3 Because of their sexuality, Tan and Mercado were not one of these couples. Tan’s partner Mercado is one of the estimated 36,000 homosexuals who are by law ineligible to sponsor their foreign-national partners for permanent residence.4 According to the UCLA

Williams Institute census data, about 6% of same sex couples (an estimated 857,425) are ‘binational’, meaning 51,445 couples are forbidden from petitioning their partner under United States immigration laws (while only 4.6% different sex couples are binational).5 Though five states and the District of Colombia issue marriage licenses to gay couples, a large number of binational couples in long-term relationships live in states that do not allow or recognize gay marriage. 6 Yet, regardless of their marital status, their homosexuality still bars them from the immigration petitioning process. This gives Tan three options, live undocumented in the United States and face the repercussions, allow Mercado to stay in the United States and raise their twin boys independently, or relocate her American family to the Philippines. TAN’S PROSPECTS: THE UNITING AMERICAN FAMILIES ACT (UAFA) Shirley Tan was fortunate enough in April 2009, to receive the attention of California senator, Diane Feinstein, who introduced a private bill to grant Tan clemency; these rare private bills are designed to benefit only individuals or small groups. 7 In this case, it was designed to benefit Shirley Tan and not all other homosexuals in her identical position.7 6 Her temporary reprieve for deportation was contingent on the life of the UAFA. She was only allowed to stay in the United States while the bill was in Congressional review. Thus, if the bill passed, she could stay. But if the UAFA died in the Congressional session, her deportation status would be revived. Senator Feinstein’s private bill allowed Tan to stay in the U.S. for 21 months from April 2009, up until the end of Congress’ 111th session.7 Now that her 21 months has passed, Shirley Tan faces the grim reality of her revived deportation status.

Today Domestic Partnership or even gay marriage can be recognized by individual states, but that does not change the United States immigration policies where only a U.S. Citizen could petition for their opposite sex spouse. 8 Same-sex couples must look to amending Federal U.S. immigration law in order to find relief. Their only hope lies in the Uniting American Families Act (H.R. 2709). This bill was originally introduced in the year 2000 under a different name, 9 but has been reintroduced into Congress in its subsequent six sessions. UAFA’s principle purpose would be to amend current federal classification in favor of same-sex relationships known as “permanent partners.” Under the current law, the U.S. Immigration and Nationality Act, U.S. citizens and legal permanent residents may sponsor spouses and immediate family members for immigration purposes.10 Same sex couples do not enjoy this luxury as they are not considered “spouses” within the framework of Federal law. Despite state marriage law, homosexuals cannot petition their spouses for immigration on family-based purposes resulting in the destruction of same-sex transnational families. 8 These laws could be changed with the passing of the Uniting American Families Act where the sections of the U.S. Immigration and Nationality Act will be augmented to include the definitions for “permanent partner” and “permanent partnership”: 9 UAFA defines Permanent Partner and Permanent Partnership as follows: The term “permanent partner” means an individual 18 years of age or older who--


57 | LOYOLA JOURNAL (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage cognizable under this Act; and (E) is not a first, second, or third degree blood relation of that other individual. The term “permanent partnership” means the relationship that exists between two permanent partners The Uniting American Families act will allow homosexual couples the same opportunity as male-female couples to sponsor their partners. They will go through the same procedure as differentsex couples. This strenuous process includes the requirements to prove the authenticity of their relationship – such as affidavits from friends and family or evidence of a intermingled financial situation.9 They will also be subject, under the Uniting American Families Act, to the same penalties as different-sex couples. Such penalties include prosecution for fraud, which include five years in prison or $250,000 in fines. 10 DISSENTERS TO THE BILL Anything dealing with the lesbian, gay, bisexual, and transgender (LGBT) community has proven to be highly controversial. 11 The same goes for immigration reform as controversies and media frenzy surrounded the Arizona immigration laws passed in 2010. Today conservative think tanks and several religious organizations, such as the U.S. Conference of Catholic Bishops have denounced the bill as regressing when it comes to immigration reform. 11 Anti-gay inclusion in the immigration bill includes concern regarding growth of sham relationships that could overwhelm

the already slow and impacted immigration system.13 It is also argued that the UAFA stands on poor legal grounds since possibly recognizing homosexual relationships would be in conflict with the 1996 Defense of Marriage Act, which would thus undermine traditional marriage.14 Mike Honda is one of the newest allies to the Bill, a Democratic representative from California. Honda responds to the argument that UAFA would counter or conflict the Defense of Marriage Act by stating: “I’m not expanding marriage rights, but I am cognizant of the rights of partners in committed relationships. All citizens should be afforded the same legal right to apply for a visa for their partner.” 13

CURRENTLY The United States Congress is currently in its 112th session, which commenced in January 2011. In the 111th session, Congress reintroduced the UAFA with Democratic Representative Mike Honda as its sponsor. 15 It was then subsequently referred to the House Judiciary committee. This bill has been introduced into Congress under many forms with many sponsors, yet has failed to pass.16 The bill’s last form as H.R. 2709, introduced on June 4, 2009, was cleared from the books.15 The reason for its clearance was because the bill was proposed in a previous session of Congress. With two-year Congressional sessions, all bills and resolutions that are not passed are consequently cleared. Yet, with a strong, but small support for the UAFA, it is likely it will be reintroduced within the coming year. Members of Congress often reintroduce bills that did not come up for debate under a new number in the next session. So while the bill sits at its crossroads, it has the LGBT community patiently awaiting its passing or death. As a result, thousands of relationships continue to sit on the periphery. As of today, Shirley Tan’s clemency, granted by Senator Diane Feinstein, is no longer valid as it was contingent on the life of UAFA. 6 Thus, she has returned to the status of an illegal immigrant. Yet, Tan continues as an advocate for LGBT and immigrant rights for the thousands of same-sex

couples whose relationships are currently hindered by Federal law. ENDNOTES 1. Testimony of Shirley Tan: Hearing Before the United State Senate Committee on the Judiciary, 111th Cong. (2009) http://judiciary.senate.gov/hearings/testimony. cfm?id=3876&wit_id=7999. (Statement of Shirley Tan). 2. Restore Fairness: Uphold Fair Immigration and Racial Justice, Watch Two Moms fight to Stay Together, http:// restorefairness.org/tag/shirley-tan/ 3. http://www.travel.state.gov/pdf/FY10AnnualReportTableII.pdf) 4. Timothy R. Carraher, Some Suggestions for the UAFA: A Bill for Same-Sex Binational Couples, Northwestern Journal of Law and Social Policy. Vol. 4 (2009). 5. The Uniting American Families Act: Addressing Inequality in Federal Immigration Law: Hearing Before the United States Senate Committee on the Judiciary, 111th Cong. (2009) http://www2.law.ucla.edu/ williamsinstitute/pdf/UAFATestimony_June2009.pdf. (statement of Gary Gates). 6. Same-Sex Marriage Civil Unions and Domestic Partnerships, National Conference of State Legislatures (Feb. 28, 2011, 10:01 AM), http://www.ncsl.org/ default.aspx?tabid=16430 7. Rep. Speier introduces Shirley Tan to Senate Judiciary Committee, Congresswoman Jackie Speier Website, (Feb. 10, 2011, 2:45 PM), http://speier.house.gov/ index.cfm?sectionid=48&parentid=46&sectiontree=& itemid=201 8. Amos Lim, Don’t Leave LGBT Families Out of Immigration Reform, Caliornia Progress Report) (Aug. 2, 2010), http://www.californiaprogressreport.com/ site/node/8016 9. Uniting American Families Act, H.R. 3650, 106th Cong. (2000). 10. Immigration and Nationality Act, 8 U.S.C. § 1101. (1965) 11. IMMIGRATION VISAS FOR SPOUSES OF A U.S. CITIZEN, available at http://travel.state.gov/visa/ immigrants/types/types_2991.html 12. Department of Homeland Security, I-864W Intending Immigrant’s Affidavit of Support Exemption, (2007), http://www.uscis.gov/files/form/i-864w.pdf 13. Marriage Fraud, 8 U.S.C. §1325(c) and 18 U.S.C.§1546, 80th Cong. (1948). 14. Julia Preston, Bill Proposes Immigration Rights for Gay Couples, The N.Y. Times, June 3, 2009, at A19. 15. Bishops Support Family Reunification Senate Bill, Not Able to Support Similar House Legislation, USCCB (Jun. 2, 2009), http://www.usccb.org/comm/ archives/2009/09-122.shtml 16. Andrew Harmon, Crossing Borders, The Advocate, Andrew (Aug. 5, 2009). http://www.advocate.com/ Politics/Commentary/Crossing_Borders/. 17. Lauren Docket, Binational Gay Couples Fight to Stay in the U.S., Columbia Graduate School of Journalism: Who What Why NY, (Sept. 30, 2009), http://blog.jrn.columbia.edu/site/whowhatwhyny/ binational-gay-couples-fight-to-stay-in-the-us/ 18. GovTracks: A Civic Project to Track Congress, http://www.govtrack.us/congress/bill. xpd?bill=h111-2709 19. The bill has been introduced under H.R.3650 , H.R 690, H.R. 832, H.R. 3006, H.R. 2221


SPLIT BY LAW | LOYOLA JOURNAL | 58


59 | LOYOLA JOURNAL


LOYOLA JOURNAL | 60

FARM BILL 2012 THE KERNEL OF EFFECTIVE HEALTH AND AGRICULTURAL POLICY ANITA MORADIAN

The Farm Bill is an important piece of legislation that affects many, yet is understood by few.1 This statute, which is passed every five to seven years, drives public health policy in the United States and is a predominant reason our nation suffers from record levels of obesity, heart disease, and diabetes.2 In addition, these policies result in severe malnutrition and hunger both domestically and abroad.3 This is because the Farm Bill encourages overproduction, trade distortion, and depression of world market prices, which directly and immediately drives immigration toward the United States from the developing world.4 The Farm Bill has contributed to the nationwide obesity epidemic, it has made food artificially cheap, it has created food deserts in low-income areas around the country, and it has caused significant environmental degradation to both land and water.5 Rachel Carson, author of Silent Spring said, “It is the public that is being asked to assume the risks…the public must decide whether it wishes to continue to the present road, and it can do so only when in full possession of the facts.” 6 HISTORY OF THE FARM BILL Beginning in the 19th century, commercialization of agriculture led to a decreasing proportion of Americans in the agricultural sector. From 1801 to 1910 the percentage of people that farmed full-time dropped from 95% to 45%.7 The commercialization of agriculture resulted

in large processing companies gaining control of the agricultural industry, and yeoman farmers finding it difficult to make a living on the family’s small farm.8 Those few remaining farmers then suffered severely during the Great Depression as a result of overzealous farming during the 1920s, which resulted in overproduction of most crops.9 Consequently, the first federal programs to manage the supply of agricultural commodities, collectively enacted as the Agricultural Adjustment Act of 1933, emerged in order to stabilize prices and to sustain farm income.10 This was in essence the first incarnation of the Farm Bill and was considered to be one of the most ambitious social, cultural, and economic programs ever attempted by the United States government.11 The first Farm Bill had four goals: (1) to control the acreage of crops in agricultural production and to control the prices of more than one-hundred crops; (2) to set price floors in order to guarantee that farmers would receive certain prices for the crops they produced; (3) to provide a system of credit and loans for farmers; and (4) to address the issue of national hunger, which had intensified from the high rates of unemployment.12 The bill was initially criticized, but the criticism died down as crop prices gradually stabilized, the rising prices

enabled farming families to keep their farms out of foreclosure, and nutritional school lunch programs were implemented to utilize surplus crops while also feeding America’s malnourished children.13 Simply put, every government dollar spent on agricultural policy under the New Deal had a “seven-times multiplier effect” in the American economy; however, most of these increases in the incomes of farmers were artificial market supports in the form of government subsidies.14 After World War II mechanization and modern advances in farming resulted in farmers overproducing and depressing prices again.15 This was because raising the production of commodity crops and their associated fats and sugars was viewed as a solution to under-nutrition in the United States and in the rest of the world.16 However, this time the government did not step in to protect the small farmers from the depressed prices, and instead, the larger farms that had the means to survive bought out the smaller farms and joined forces with other large farms to form the first agribusiness lobby.17 Starting in 1974, the United States Department of Agriculture began to implement a federal “cheap food” policy that encouraged commodity farmers to produce as much as possible.18 Earl Butz, the Secretary of Agriculture at the time, pushed a “get big or get out” motto,


61 | LOYOLA JOURNAL supporting large-scale mega-farms that prioritized crop yields over environmental protection and public health.19 Butz urged farmers to plant from “fencerow to fencerow” to maximize yields of commodity crops regardless of the consequences.20 Agricultural progress began to be measured by commodity crop yield increases only, which disguised many consequences such as environmental degradation and lack of a diverse and nutritious food supply.21 Large grain processors like Cargill (the world’s largest privately owned corporation) and Archer Daniels Midland (ADM) made the goal of providing a steady supply of cheap commodity crops easy and exerted considerable influence over the Farm Bill drafting process.22 Without farmer’s rights advocates to protect the small farmer in the 1970s, the largest mechanized farms and processing companies banded together with federal legislators from the southeastern and upper Midwestern states.23 In fact, by the 1980s, companies like Cargill, ADM, and other corporate giants actually wrote large industry-favorable portions of the Farm Bills.24 Small farms have frequently been displaced by wealthy corporations and have opined twice to Congress on how to change domestic agricultural policy to realign the Farm Bill with its New Deal roots aimed at protecting small family farms, but their advice and pleas have been ignored as Congress has chosen to appease Cargill, ADM and other large campaign contributors.25 Small farmers, without the public’s support, lack the political voice needed to overcome the power that agribusiness and corporations have in the political process.26

in history.27 Then in 2002 President George W. Bush signed the Farm Security and Rural Investment Act, saying that this legislation would preserve the farm way of life for generations.28 In reality though, the Farm Bill has created a very distorted food system because it sends farmers signals in the form of commodity crop subsidies that tell farmers what they need to grow to survive.29 Originally, the Farm Bill subsidized over a hundred crops.30 Unfortunately, over time those with political and economic power have determined which crops to continue to subsidize, resulting in the narrowing of commodity subsidies to a select handful of crops, and distorting the agricultural market by artificially supporting only these select crops.31 These subsidies increasingly benefit the largest of agricultural producers, and have resulted in the death of small farming in the United States.32 One reason that Americans fail to grasp the importance of the Farm Bill and its commodity system is because American taxpayers are disconnected from the programs supported by federal taxes.33 If taxpayers realized that a substantial chunk of their tax dollars provided subsidies to large corporations and wealthy mega farms for crops that are not in demand in our nation, taxpayers would be outraged.34

“The United States’ food industry is built upon commodity crops...that present the American public with fewer healthy options than might otherwise exist.”

The 1996 Farm Bill, the Freedom to Farm Act, was meant to eliminate agricultural subsidies but ended up triggering the largest government payouts

To d a y just 5 crops – corn, cotton, wheat, rice, and soybeans – control the commodity s u b s i d y market.35 American taxpayers spent $172 billion on commodity subsidies in a single decade between 1997 and 2006.36 More than 84% of the $172 billion was spent to subsidize these five crops.37 Corn farmers alone receive more than $4 billion a year from government subsidies, making corn the largest crop in terms of subsidies.38 Despite record profits at mega-farms, agribusiness continues to receive billions

of tax dollars. “In 2006 alone, when pretax farm profits were at a near $72 billion, the federal government handed out more than $25 billion in aid to farms, almost 50% more than the amount it pays to families receiving welfare in the US.39 Although many Americans have a false perception that the government provides financial support to family farms, 3 in 5 farmers receive no subsidies while the richest 5% of farmers each receive a whopping average of $470,000 annually.40 CORN AND ITS RAMIFICATIONS A quarter of United States’ cropland is used for corn production.41 Most of the rest is used for the other four commodity crops.42 This means that farmers use the majority of U.S. cropland for a few low-nutrient crops simply because these crops are favored by federal agricultural policy.43 The United States’ food industry is built upon commodity crops, namely corn and soybeans, that present the American public with fewer healthy options than might otherwise exist.44 The forty-five thousand different items in a supermarket all trace back to a farm field in the American Corn Belt.45 What looks like variety is actually clever rearrangements of molecules from the Zea Mays (corn) plant.46 Corn feeds the steer that becomes steak, the chicken, the pig, the turkey, and the lamb, the catfish and tilapia and increasingly, the salmon (which, is a naturally a carnivore that fish farmers are reengineering to tolerate corn).47 A chicken nugget is essentially corn upon corn: the chicken was cornfed, the starch that holds it together is from corn, the corn oil in which it is fried, and the leavenings are from corn!48 What’s even better? The typical person would probably wash down that chicken nugget with some soda, made from highfructose corn syrup, which also comes from corn!49

What one will notice when looking at the ingredients of any processed food is that corn is bound to be in the ingredient list, whether it is in the form of modified or unmodified starch, crystalline fructose, ascorbic acid, lecithin, dextrose, lactic acid, lysine, maltose, high-fructose corn syrup (HFCS), monosodium glutamate (MSG), polyols, caramel color, or xanthan gum, among many others.50 Corn is in


FARM BILL 2012 | LOYOLA JOURNAL | 62 the coffee creamer, frozen yogurt, T.V. dinners, canned fruit, ketchup, candies, relish, soups, cake mixes, juice, frosting, gravy, syrups and hot sauces, mayonnaise, salad dressings, mustard, and even in batteries, charcoal, toothpaste, trash bags and matches.51 The current Farm Bill causes food choice confusion because it distorts the market, including the price that consumers see at the supermarket, because it makes corn-based and soybased products cheaper than their more nutritious competitors.52 Although they appear cheaper, the reality is that every American pays for these commodity crops five times: first at the supermarket checkout, next, with federal taxes that predominantly line the pockets of subsidized agribusiness, then, with federal taxes for environmental cleanup costs paid by the government because of poor environmental protection standards in the Farm Bill, then again through individualized medical costs linked to obesity, diabetes, asthma, malnutrition, hunger and other illnesses caused by the Farm Bill’s policies, and lastly, again with additional federal taxes paid to collectively support healthcare programs such as Medicare, Medicaid, and emergency room care for lower socioeconomic patients.53 The conclusion? That our nation’s agricultural policies, as implemented through the Farm Bill, are in diametrical opposition to our people’s best interests.54 CHILDHOOD OBESITY A key driver of childhood obesity is the consumption of excess calories, many from inexpensive, nutrientpoor snacks, sweets, and sweetened beverages, most of which are made with Farm-Bill-supported crops.55 And are the record levels of childhood obesity a surprise given our modern “obesogenic” (likely to cause obesity) environment that discourages physical activity and encourages the consumption of caloriedense, nutrient-poor food? Add to that the innate biological propensities to accumulate and conserve energy, which are present in many people, and it should be no surprise at all!56 The childhood obesity epidemic is a problem of current disease, but it is also

a concern for future costs.57 Treatment is expensive, usually ineffective, and has failed to address the worsening trends.58 What’s simply the most logical solution seems to be difficult to accomplish: primary prevention. Preventing children from becoming overweight and obese in the first place would be the best solution and most likely the only long-term solution.59 OBESITY AMONG ALL OF US Research now links obesity increases with the consumptions of added fats, sugars, and refined grains, and the increase in the consumption of the snacks, sweets, beverages, and fast foods in which they are abundant.60 Obesity was supposed to have fallen to a rate of 15 percent or less of adults by now; however, not one state has achieved this goal, which was set forth by the Department of Health and Human Services in its “Healthy People 2010” report.61 In fact, in August, the Centers for Disease Control and Prevention (CDC) reported “negative progress” (or digression, in other words) because the number of states reporting a 30 percent obesity rate had jumped from zero to nine!!!62

factor behind soaring obesity rates was a 300-calorie jump from 1985 to 2000, in how many calories the United States food supply delivered to the average eater.66 Of the extra calories, 24 percent came from added fats, and 23 percent from added sugars.67 Grain, mostly refined grains, accounted for 46 percent of those extra calories.68 In 2007, the USDA data showed that Americans’ average daily calorie intake was 400 calories higher than in 1985 and 600 calories more than in 1970!69 Among the grains consumed, corn calories (from corn flour, corn meal, hominy, and corn starch) led the way with a 191 percent increase since 1970.70 Added sugar intake (from all types of sugar) had increased 14 percent since 1970, but corn sweetener calories alone had increased 359 percent to 246 calories a day.71 By 2005 the average child drank 172 daily calories from sugarsweetened beverages, including those sweetened with high-fructose corn syrup.72 Moreover, of the fats and oils Americans eat, 70 percent were soy oil and another 8 percent were corn oil.73

“ ...our nation’s agricultural policies, as implemented through the Farm Bill, are in diametrical opposition to our people’s best interests.”

Mississippi now leads the nation with the highest rate of obesity in the country: a whopping 34.4 percent of its adult population is afflicted with the condition, according to the CDC.63 But Mississippi is not alone in its dire statistic, and joining it are Missouri, Kentucky, West Virginia, Tennessee, Arkansas, Oklahoma, Louisiana, and Alabama, all of which also have over 30 percent of their adult population classified as obese.64 Colorado, the state with the lowest adult obesity rate in the nation with 18.6 percent of its adults affected, is still above the target.65 In 2002, the United States Department of Agriculture (USDA) researchers reported that the prime

In 2004, Bray et al. observed that the increasing trends of obesity were temporally associated with the increase in the consumption of high-fructose corn syrup.74 Although the increased use of high-fructose corn syrup was offset by a decline in cane-sugar use, there was still a net-increase in total sugar consumption.75 The primary concern is the steady overconsumption of total sugar and not the substitution of one form of sugar with the other.76 This increase in total sugar consumption is a result of increased consumption of beverages that are sweetened with highfructose corn syrup.77 The use of highfructose corn syrup may be a cause of this increase because it is cheaper than cane sugar, which allows manufacturers to use the money they save to buffer the rise in food prices.78 As a population, Americans


63 | LOYOLA JOURNAL

consume 50 grams more sugar per day than they did three decades ago (this is roughly the amount of sugar in 1.5 cans of a regular soda drink).79 American farms, not farms abroad, are the source for many of these extra fats, sugars, and calories.80 The United States is the world’s largest corn producer, but it exports only 20 percent of the total crop.81 The United States is also the world’s largest soybean producer and exporter.82 It produced 20.6 billion pounds of soy oil in 2008, of which 93 percent was used domestically.83 TYPE 2 DIABETES The increased consumption of sugars is one of the contributing factors of the obesity epidemic in the United States.84 Both cane sugar and highfructose corn syrup contain glucose and fructose; however, fructose, unlike glucose, is known to stimulate lipogenesis (the metabolic formation of fat).85 Consequently, dietary fructose might promote the development of nonalcoholic fatty liver disease, which in and of itself,

can result in hepatic insulin resistance (resistance to insulin associated with the liver), a key feature of type 2 diabetes mellitus.86 This is the reason that an increase in the consumption of fructose is of particular concern. Our bodies are well suited to using glucose.87 Glucose uptake triggers the release of insulin, which further helps glucose uptake.88 Once absorbed into tissues, glucose can be stored as glycogen (which is also stimulated by insulin action) or can undergo glycolysis.89 Although fructose has the same chemical formula (is made of the same atoms, namely carbon, hydrogen, and oxygen) and molecular weight as glucose, fructose is chemically distinct.90 Since the atoms in fructose and glucose bind differently to each other, this results in fructose having a different fate in the human body. The breakdown of fructose in the body lacks the tight regulation that is present in glucose breakdown.91 Fructose metabolism in the body is not as responsive to the cellular energy states and within the liver cells, the carbon atoms of fructose

end up in a triglyceride.92 Consequently, many studies have demonstrated that dietary fructose promotes lipogenesis in humans.93 This eventually results in hepatic insulin resistance.94 There is considerable evidence that a high-fructose diet can indeed result in adverse metabolic changes including plasma triglyceride increases, hepatic insulin resistance and hepatic steatosis.95 These effects have been consistently observed in rodents fed a high-fructose diet.96 These effects have also been observed in humans.97 Recently, Stanhope et al. performed a set of studies of overweight and obese individuals who received a portion of their dietary calories either as a glucose sweetened beverage or a fructose sweetened beverage.98 The individuals underwent the two 2-week metabolic studies in which the investigators observed that the subjects assigned to the fructose containing beverages had an increase in postprandial plasma triglyceride concentrations, and de novo lipogenesis was consistent with the increase in the postprandial plasma


FARM BILL 2012 | LOYOLA JOURNAL | 64 triglyceride concentration.99 Although total body weight increased equally in both of the groups, the group receiving fructose containing beverages had a greater increase in intra-abdominal adipose mass (body tissue used to store fat).100 In conclusion, in these studies, the fructose feeding group had increased lipogenesis and developed insulin resistance.101 Consumption of sweetened beverages accounts for the major portion of total fructose consumption, and the remaining is mainly added sugar.102 Recently, it was found that there is an association between individuals with nonalcoholic fatty liver disease who reported consuming more than seven servings of sweetened beverages per week and an increased prevalence for hepatic fibrosis.103 The most important goal should be to prevent these dietary behaviors from becoming established. As a result, the American Academy of Pediatrics clearly advises limitations on juice and sweetened beverage intake for children.104 In particular, infants aged less than six months should not be given any fruit juice.105 Moreover, the Academy has redressed the notion that juices are nutritious.106 If this advice could be implemented across the nation, it would help reduce the likelihood of children developing obesity and type 2 diabetes later in life.107 MALNUTRITION: DOMESTICALLY AND ABROAD We have all heard it before: diets rich in fruits and vegetables can help manage weight and lower the risk for cancer and other chronic diseases, especially when they replace the high-calorie, nutrientpoor foods.108 Nevertheless, less than one in ten Americans meet the levels of fruit and vegetable consumption that are recommended under the latest caloriespecific healthy eating guidelines.109 To meet the recommended levels Americans would have to increase daily fruit and vegetable consumption by 132 percent and 31 percent, respectively.110 Where all this produce is to come from is just as important, and also determined largely by agricultural policy.111 The intense emphasis on growing corn and other subsidized commodity crops

in the United States results in providing our large national population with fruits and vegetables from other nations, which then results in those nations cultivating their best lands for exports to the United States or the European Union.112 This in turn perpetuates global inequality in the sense that locals suffer at the expense of large multinational companies purchasing the best foreign agricultural lands to provide the healthy food supply of the United States.113 If American agricultural policies changed so that our own domestic croplands could become nutritionally efficient, the resulting yields would r e d u c e our need to import produce f r o m a b r o a d . 114 The United S t a t e s produces 43 percent of the world’s corn, and is thereby the world’s largest corn producer; therefore, it is quite possible for the United States to alter its farming and livestock policies in order to implement more efficient agricultural programs that can wean Americans off of foreign produce and allow local foreign communities to benefit from their own lands.115

locally grown food in low-income urban populations, who disproportionately suffer the greatest health consequences from the Farm Bill’s food policies.117 This is because they are the ones who, as a result of these ‘food deserts,’ end up buying the family dinner from the nearest convenience store, liquor store, or fast food restaurant where the only choice is a plethora of corn-based, high-fat, processed foods.118 Although it is clear that healthy, non-corn and non-soy food choices are limited in the supermarket, assuming there is even a local supermarket, critics still contend that food choices depend on personal choice and are thus a personal responsibility.119 This is despite the fact that clear disparities exist in the distribution of obesity, and these disparities are based on gender, race, ethnicity, age, education, and income.120 Obesity is most prevalent among Hispanic, African American, Native American, and Pacific Islander women.121 Among older adult women, a study reported that 53 percent of African Americans were obese, 51 percent of Mexican Americans, and 39 percent of white women were obese.122 From 1999 to 2004, obesity rates were 50 percent higher among adolescents in ‘poor’ families than in ‘non-poor’ families.123 The link between minority populations and the occurrence of obesity is apparent at local levels too. For example, 30 percent of adults in South Los Angeles (a predominantly low-income area) were obese, compared with 20.9 percent for Los Angeles County overall.124 Therefore, the ‘personal choice’ viewpoint fails to account for the Farm Bill’s influence in determining what crops our nation grows, and the prices which those crops and their resulting processed foods will be sold at the market as compared to their unsubsidized but more nutritious counterparts.125

“If American agricultural policies changed so that our own domestic croplands could become nutritionally efficient, the resulting yields would reduce our need to import produce from abroad”

If you thought the implications of the Farm Bill ended there, you were wrong. Our agricultural policies have resulted in an interesting distribution of food groups domestically as well. The Farm Bill subsidies have regionalized agriculture by pressuring farmers to produce corn and other commodity crops on cropland where such production is possible, resulting in a rigid system where corn and wheat are abundant in the Midwest, fruits and vegetables are plentiful in California and Florida, and there is little in urban centers far from agricultural areas.116 As a result, it becomes extremely difficult to find


65 | LOYOLA JOURNAL


FARM BILL 2012 | LOYOLA JOURNAL | 66 The personal choice advocates pressured Congress to enact a piece of legislation called the Personal Responsibility in Food Consumption Act, also known as the “Cheeseburger Bill,” which sought to protect fast food restaurant and food retailers from lawsuits by customers suffering from obesity and other severe health conditions because of the unhealthy food served at such establishments.126 This bill was pushed by the National Uniformity for Food Coalition, which consists of the largest players in the agribusiness and food processing industries including Cargill, Coca-Cola, ConAgra Foods, PepsiCo, H.J. Heinz, Hershey, Kellogg, and others.127 Fortunately, this bill died before reaching a Senate vote.128 The Surgeon General estimates obesity and its related diseases cost $117 billion per year in medical expenses.129 This is about $42 billion more than tobacco related medical costs.130 Moreover, because obesity disproportionately affects indigent and minority populations, who also are the same populations least able to afford health care, nearly half of these expenditures then are channeled through Medicare and Medicaid.131 A few years ago, a House Resolution before Congress warned that obesityrelated health problems are the secondhighest cause of preventable death in the United States, causing about 300,000 deaths yearly.132 In addition, the number of obese and overweight children has doubled since 1980 and now about one in five children is obese.133 The House bill indicated that being overweight and obese substantially increases the risk of certain diseases, including breast cancer, colon cancer, ovarian cancer, prostate cancer, cardiovascular disease, high blood pressure, high cholesterol, type 2 diabetes, stroke, gallbladder disease, arthritis, sleep disturbances, and respiratory problems.134 Not to mention that being obese impacts one’s quality of life, reduces self-esteem and ability to socialize, and increases the likelihood of anxiety and depression.135

BEEF & E.COLI The noticeable increases in food

poisoning cases and outbreaks of viral and bacterial disease are not just a coincidence; they are tied to the Farm Bill’s agricultural policies.136 The source of the problem is centralized in CAFOs, Concentrated Animal Feeding Operations, where livestock are fed a diet high in subsidized corn and other grains.137 In essence, corn moves from the fields to CAFOs to our plates. And in recent years, what’s on our plates all too often contains viral and bacterial contaminations, leaving Americans sick. As Michael Pollan says, “The health of these animals [we eat] is inextricably linked to our own by a web of relationships.”138 Cows have evolved as grass-eating organisms. Altering evolution and shifting their grass diet to a high-corn diet results in Escherichia coli (E. coli), which are acid-resistant says Allen Trenkle, a Ruminant Nutrition Expert at Iowa State University.139 To cope with this, the cattle in CAFOs are injected with large amounts of antibiotics and hormones to keep them alive throughout the corn-feeding process until slaughter.140 Unfortunately, in the course of injecting the cows with antibiotics, E. coli naturally mutate, and deadlier, more antibiotic resistant E. coli emerges.141 One such E. coli strain is E. coli 0157:H7, never seen before 1980, which is a result of the corn diet and the conditions at the feedlots where the animals stand ankledeep in their manure all day long.142 This creates a breeding ground for some of the deadliest forms of E. coli, including E. coli 0157:H7.143 By the time the cattle get to the slaughterhouse, their hides are caked with manure, and with slaughterhouses slaughtering 400 animals per hour, the manure gets onto the carcasses and meat.144 And it gets worse. This particularly deadly strain of E. coli has spread from cows to our crops from the run-off from CAFOs.145 The first produce-related E. coli outbreak was reported in 1991.146 Produce remains a prominent vehicle for the transmission of E. coli infections and accounts for 21% of the outbreaks reported from 1982 to 2002.147 Of this data collected from 1982 to 2002, 34% of produce-related outbreaks were from lettuce, 18% from apple cider or apple juice, 16% from salad, 11% from cole-

slaw, 11% from melons, 8% from sprouts, and 3% from grapes.148 Produce-related outbreaks often occurred in restaurants (39%), and almost half of these (47%) were due to cross-contamination during food preparation.149 None of the produce-related outbreaks were due to imported produce.150 Unfortunately, washing produce with water or a chlorine-based solution is not very effective in reducing counts of E. coli; therefore, little can be done to prevent illness from contaminated produce intended for raw consumption.151 On the other hand, the meat industry believes that it can do something about its contaminated meat supply. As the cases of E. coli contamination to hamburger meat brought national attention to this dangerous issue, federal officials struggled to find a way to make meat safe. Beef Products, Inc. emerged with a solution that the federal officials approved: to spray the beef with ammonia gas.152 Yes. Ammonia. That thing that janitors use to mop the floors. How did this work out? BEEF PRODUCTS, INC. BACKGROUND Beef Products, Inc. wanted to expand into the hamburger business with a product made from beef that included fatty trimmings the industry once used for pet food and cooking oil.153 Today, Beef Products has become a mainstay in our nation’s hamburgers, supplying McDonald’s, Burger King, and other fastfood giants and grocery store chains with its ammonia-treated beef as a component in ground beef.154 Moreover, in just 2008, the federal school lunch program used about 5.5 million pounds of the ammonia-treated beef for school lunches.155 WHAT’S THE DEAL WITH BEEF PRODUCTS’ “BEEF?” Mr. Eldon N. Roth spent the 1990s looking to give Beef Products a competitive edge by turning fatty slaughterhouse trimmings into usable lean beef.156 He did so by liquefying the fat and extracting the protein from the trimmings in a centrifuge.157 This resulted in a lean product that was desirable to hamburger makers.158 The problem with using these trimmings was the fact that


67 | LOYOLA JOURNAL they are particularly susceptible to E. coli and salmonella contamination; however, studies showed that the ammonia process would kill E. coli and salmonella.159 According to a 2003 study financed by Beef Products, the trimmings “typically include most of the material from the outer surfaces of the carcass” and contain “larger microbiological populations.”160 The end product of the Beef Products’ ammonia treatment process is a mashlike substance frozen into blocks or chips, which is used in the majority of the hamburgers sold nationwide.161 As ubiquitous the Beef Products’ meat is, it has nevertheless remained a little known secret outside of the industry and government circles.162 HOW EFFECTIVE IS BEEF PRODUCTS’ BEEF? Within the U.S.D.A. the ammoniatreated beef has been a source of conflict.163 While the U.S.D.A. accepted Beef Products’ own study as evidence that the treatment was effective, school lunch officials had their doubts and required that Beef Products meat be tested like all the other meat.164 One of the toughest hurdles for Beef Products was the Agricultural Marketing Service, the U.S.D.A. division that buys food for school lunches.165 Officials cited complaints about the odor, and wrote in a 2002 memorandum that they had “to determine if the addition of ammonia to the product is in the best interest to A.M.S. from a quality standpoint.”166

“It was frozen, but you could still smell ammonia,” said Dr. Charles Tant, a Georgia agriculture department official. “I’ve never seen anything like it.”170 Unaware that the meat was treated with ammonia – since it was not on the label – Georgia officials had assumed it was accidentally contaminated!!171 The Food and Drug Administration approved the use of ammonia and concluded that it was safe as a processing agent in the food. This is why ammonia was not listed on the label; because the F.D.A. decided to consider it a processing agent rather than an ingredient in the meat. Carl S. Custer, a former United States Department of Agriculture microbiologist, said that he and other scientists were concerned that the U.S.D.A. had approved the sale of the treated beef without getting independent validation of the safety of the product.172 Moreover, Gerald Zirnstein, another department microbiologist, said in an email to colleagues that the processed beef was “pink slime,” and that he “does not consider the stuff to be ground beef, and [he considers] allowing it in ground beef to be a form of fraudulent labeling.”173 However, Beef Products prevailed on the question of whether ammonia would be listed as an ingredient, represented by top lawyer and lobbyist for the meat industry, Dennis R. Johnson.174

“The United States’ Farm Bill subsidies result in depressed global commodity prices that make it difficult for farmers in the developing world to survive financially.”

Other customers also complained about the taste and smell of the beef.167 Complaints about its pungent odor emerged as suppliers of national restaurant chains and government-financed programs began to buy Beef Product meat.168 In early 2003, Georgia officials returned nearly 7,000 pounds of Beef Products meat after cooks who were making meatloaf for state prisoners detected a “very strong odor of ammonia” in 60-pound blocks of the trimmings, state records show.169

When B e e f Products came to Washington in 2001, it already had one study showing that its treatment w o u l d eliminate E. coli from the meat, and another companysponsored study by an Iowa State University professor seconded that finding.175 This ammonia-treated beef, when used as an ingredient in ground beef, would kill pathogens in untreated meat, Roth asserted.176 A top

official with the U.S.D.A.’s Food Safety and Inspection Service said that the ammonia “eliminates E. coli to the same degree as if you cooked the product.”177 The U.S.D.A. endorsed the ammonia treatment and decided it was so effective that in 2007, when the U.S.D.A. began routine testing of meat used in hamburger sold to the general public, they exempted Beef Products.178 BUT IS THE TREATMENT EVEN EFFECTIVE? In testing for the school lunch program, E. coli and salmonella pathogens have been found dozens of times in Beef Products meat!179 School lunch officials said that in some years Beef products testing results were worse than many of the program’s other suppliers, which use traditional meat processing methods. (from 2005 to 2009 Beef Products had a rate of 36 positive results for salmonella per 1000 tests, while the other suppliers had a rate of 9 positive results per 1000 tests)180 Cargill, in 2005-2007 suspended 3 facilities for excessive salmonella. Of those 3, 2 of them were Beef Products plants.181 Beef Products does not disclose its earnings, but according to industry records its reported production of 7 million pounds a week would generate $440 million in annual revenue in 2009.182 CORN AND ILLEGAL IMMIGRATION The United States’ Farm Bill subsidies result in depressed global commodity prices that make it difficult for farmers in the developing world to survive financially.183 As Joseph Stiglitz said, “When subsidies lead to increased production with little increase in consumption, as is typical with agricultural commodities…the result is lower prices for producers, lower incomes for farmers and more poverty among poor farmers in the Third World.”184 Therefore it is not surprising that Farm Bill policies, along with other United States policies, stimulate illegal immigration by creating poverty and economic instability abroad.185 In the last decade an estimated 1.4 million Mexicans have left Mexico in search of work herein the United States because


FARM BILL 2012 | LOYOLA JOURNAL | 68 of free trade policies and the dumping of cheap United States subsidized corn that has destroyed Mexico’s traditional agriculture.186 One of the most popular places that these immigrants find work is in the meatpacking industry. Until fifteen or twenty years ago, the meatpacking workforce was unionized, primarily white, and earned high wages.187 During the Reagan era meatpacking companies moved away from big cities into the country.188 Eventually by 1992 wages fell to an average of twelve dollars an hour and by 1995 unionization was half of what it was in 1963.189 Today, low-paid, nonunion workers, who are often paid only six dollars an hour are the majority of the workers at processing and packing plants.190 Moreover, because meatpacking is the most dangerous factory job in the United States, with one of the highest turnover rates, many companies have actively recruited in areas of high unemployment, such as in many Latin American countries like Mexico and Guatemala to staff the plants.191 As Marc Cooper says, the country’s most dangerous industry is now flourishing due to a “docile, disempowered work force with an astronomical turnover” rate.192

audiotapes, 36 videotapes, and 360,000 pages of documents subpoenaed from Tyson.198 The government spent six years investigating and prosecuting this case; yet, even with all this time, effort, and evidence, the jury found for Tyson on every count.199 Up until this point, the government had not initiated any case of this magnitude, even though its goals are to sanction employers who hire i l l e g a l a l i e n s . 200 And after this case, one could only wonder what went wrong?

“The United States food environment today is a result of decades of policy decisions; therefore, change will not be easy because so many factors are woven into the fabric of our food system.”

The Immigration and Naturalization Service (INS) often deports the increasing numbers of undocumented immigrant workers.193 Others just leave their jobs before an INS inspector comes.194 Undocumented immigrant workers rarely report injuries out of fear of retaliation or of losing their jobs.195 Despite the high turnover numbers, there is a continued availability of illegal immigrant workers and this allows employers to keep wages depressed and exploit the workers’ fear of deportation or loss of employment.196 Beginning in 1997 the INS began an undercover investigation of Tyson Foods, Inc. to collect evidence that the company was hiring undocumented workers.197 This evidence included 422 undercover

Tyson was able to avoid criminal liability for its actions because of the standard for corporate liability that was used in the case.201 One possible solution would have been to change the standard for holding corporations criminally liable to that of strict vicarious liability.202 WHAT IS WRONG WITH THIS PICTURE AND WHAT CAN WE DO TO MAKE IT RIGHT? The next Farm Bill is in 2012.203 In order to successfully redesign the food environment, there must be a longterm commitment to change food availability, relative prices, marketing, and nutrition education.204 In the longterm, what farmers grow is influenced by agricultural policy.205 Thus far, policy options to combat the problems posed by our agricultural policies have aimed at the consumer.206 A new and possibly more effective approach would be to implement changes upstream—by changing agricultural policy itself in order to affect the availability and prices of foods, how food is processed, how employees are treated, and how animals and the environment are treated.207 Daniel Imhoff, a researcher and

author who has focused on farm issues for the past twenty years has told readers that he remains hopeful and believes there are good possibilities for the next Farm Bill.208 He believes this because there has been increased awareness of the food we consume, where our food comes from, how it is produced, and the workers who are producing it.209 Moreover, the Secretary of Agriculture, Tom Vilsack, has made pronouncements regarding the addition of 100,000 farmers to the U.S. food production system.210 This is good news considering the recent times of economic hardship, high unemployment rates, and the shrinking class of farmers that remain. Ultimately, developing the Farm Bill is a privilege that requires the participation and debate of advocates and citizens from all parts of the country.211 This privilege is “the gift of democracy,” Imhoff says.212 OBESITY, DIABETES, AND OTHER HEALTH CONCERNS The United States food environment today is a result of decades of policy decisions; therefore, change will not be easy because so many factors are woven into the fabric of our food system.213 Although it will take time and work to effect change, many different routes to effectuating change have been suggested. But first we must understand that these problems are not only an individual’s problem, but rather a systems problem that spans across our current food system.214 INTEGRATE FOOD AND HEALTH ANALYSIS As with most of the other issues, authority is fragmented and expertise is spread across an overwhelming number of federal agencies such as the United States Department of Agriculture, the Food and Drug Administration, the Environmental Protection Agency, the Centers for Disease Control and Prevention, Health and Human Services, the Consumer Product Safety Commission, the National Institutes of Health, and so on.215 Perhaps what is needed is something like the United Kingdom’s Food Commission, which analyzes food production policies and their effect on health and nutrition policies. 216 FORM ALLIANCES WITH FARMERS


69 | LOYOLA JOURNAL Americans farmers are extremely capable of responding to the policy goals determined for them.217 Accordingly, we need to provide as much research, financial, and other support to domestic fruit and vegetable farmers as has been done for commodity crop growers for decades.218 Such steps could include recruiting and training new farmers, grants or financing on favorable terms for new farmers (i.e. land acquisition, or helping farmers move from commodity to other production), and allowing fruit and vegetable farmers to participate in commodity programs of the Farm Bill.219 INVEST IN RESEARCH FOR THE FUTURE Our nation need a research plan that addresses what diverse mix of crops and farming methods can best meet the nation’s needs while also considering the challenges of greater climate uncertainty, coming water scarcity, pressure on prime croplands, and obesity.220 CODIFY HEALTHIER COMMODITY FOOD PROGRAMS The Farm Bill should align guidelines for healthy eating by raising the nutrition standards for all food served in federal child nutrition programs such as the National School Lunch and Breakfast Programs.221 Unfortunately, many of the surplus commodities produced under the Farm Bill programs that make their way into such programs currently do not conform to the U.S.D.A.’s own dietary guidelines.222 Agricultural production affects several facets of our daily life.223 WWThis policy helps determine not only what farmers grow, but what people eat, how easy it is to access that food, and what they pay for it.224 The approaching Farm Bill’s importance should be as much of a concern for urban eaters as for farmers, and should be equally important for health policy makers as for agricultural policy makers.225 Our nation needs more than just a new Farm Bill. It needs a “Healthy Food, Healthy Farm Bill.”226 ENDNOTES 1. Mitchell, Claire; Gearing up for the 2012 Farm Bill Debate, Food Safety News. 14 Mar 2011. 2. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 214. 3. Id.

4. Id. 5. Mitchell, Claire; Gearing up for the 2012 Farm Bill Debate, Food Safety News. 14 Mar 2011.

47. Id. at 33. 48. Id. at 34. 49. Id.

6. Carson, Rachel; Silent Spring, Mariner Books 2002, 1962.

50. Id.

7. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 217218.

52. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 281.

51. Id. at 35.

8. Id. at 218.

53. Id. at 239-240.

9. Id.

54. Id. at 239.

10. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011.

55 Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011.

11. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 219. Mitchell, Claire; Gearing up for the 2012 Farm Bill Debate, Food Safety News. 14 Mar 2011.

56. Id.

12. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011. 13. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 220. 14. Id. at 221. 15. Id. at 222. 16. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011. 17. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 222.

57. Id. 58. Id. 59. Id. 60. Id. 61. Hurley, Dan, Obesity Reaches Epidemic Proportions; Discover, 02747529, Jan/Feb 2011, Vol. 32, Issue 1. 62. Id. 63. Id. 64. Id. 65. Id. 66. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011. 67. Id. 68. Id.

18. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011.

69. Id.

19. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 223224.

71. Id.

20. Id.

74. Samuel, Varman T., Fructose induced lipogenesis: from sugar to fat to insulin resistance; Trends in Endocrinology and Metabolism. Volume 22, Issue 2, Feb. 2011, pgs 60-65.

21. Id. at 225. 22. Id. at 226. 23. Id. at 223. 24. Id. at 226. 25. Id. at 320. 26. Id. at 231. 27. Id. at 230. 28. Id. 29. Id. at 280. 30. Id. at 221. 31. Id. 32. Id. 33. Id. at 227. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id.

70. Id. 72. Id. 73. Id.

75. Id. 76. Id. 77. Id. 78. Id. 79. Id. 80. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011. 81. Id. 82. Id. 83. Id. 84. Fructose induced lipogenesis: from sugar to fat to insulin resistance, Samuel, Varman T. Trends in Endocrinology and Metabolism. Volume 22, Issue 2, Feb. 2011, pgs 60-65. 85. Id. 86. Rangel, Josefa M.; Sparling, Phyllis H; Crowe, Collen; Griffin, Patricia M.; Epidemiology of Escherichia coli O157:H7 Outbreaks, United States, 1982–2002. http://www.cdc.gov/ncidod/eid/vol11no04/pdfs/040739.pdf

41. Id. at 280.

87. Samuel, Varman T., Fructose induced lipogenesis: from sugar to fat to insulin resistance; Trends in Endocrinology and Metabolism. Volume 22, Issue 2, Feb. 2011, pgs 60-65.

42. Id.

88. Id.

43. Id.

89. Id.

44. Id. at 280-281.

90. Id.

45. Pollan, Michael; The Omnivore’s Dilemma, Thomson Gale, 2006; pgs. 33 and 37.

91. Id.

40. Id.

46. Id.

92. Id. 93. Id.


FARM BILL 2012 | LOYOLA JOURNAL | 70 94. Id.

137. Id.

185. Id. at 238.

95. Tappy M.D., Luc; Le Ph.D., Kim A.; Tran M.D., Cristel; Paquot M.D., Nicolas; Fructose and Metabolic Diseases: New Findings, New Questions; Nutrition Journal, Volume 26, Issues 11-12, Nov.-Dec. 2010, pages 10441049.

138. Id.

186. Id.

139. Trenkle, Allen; “Food, Inc.” Produced by Robert Kenner. 93 minutes. 2008.

187. Harvard Latino Law Review. Page 69

140. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 278.

189. Id.

96. Id. 97. Id. 98. Samuel, Varman T., Fructose induced lipogenesis: from sugar to fat to insulin resistance; Trends in Endocrinology and Metabolism. Volume 22, Issue 2, Feb. 2011, pgs 60-65.

141. Trenkle, Allen; “Food, Inc.” Produced by Robert Kenner. 93 minutes. 2008.

99. Id.

143. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 278.

100. Id. 101. Id. 102. Tappy M.D., Luc; Le Ph.D., Kim A.; Tran M.D., Cristel; Paquot M.D., Nicolas; Fructose and Metabolic Diseases: New Findings, New Questions; Nutrition Journal, Volume 26, Issues 11-12, Nov.-Dec. 2010, pages 1044-1049.

142. Id.

188. Id. 190. Id. 191. Id. 192. Id. at 70. 193. Id. 194. Id. 195. Id. at 71.

144. Trenkle, Allen; “Food, Inc.” Produced by Robert Kenner. 93 minutes. 2008.

196. Id.

145. “Food, Inc.” Produced by Robert Kenner. minutes. 2008.

198. Id.

93

197. Id. at 59.

103. Samuel, Varman T., Fructose induced lipogenesis: from sugar to fat to insulin resistance; Trends in Endocrinology and Metabolism. Volume 22, Issue 2, Feb. 2011, pgs 60-65.

146. Rangel, Josefa M.; Sparling, Phyllis H; Crowe, Collen; Griffin, Patricia M.; Epidemiology of Escherichia coli O157:H7 Outbreaks, page 605. United States, 1982– 2002. http://www.cdc.gov/ncidod/eid/vol11no04/ pdfs/04-0739.pdf

199. Id.

104. Id.

147. Id.

202. Id.

105. Id.

148. Id.

106. Id.

149. Id.

203. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011.

107. Id.

150. Id.

204. Id.

108. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011.

151. Id. at 607.

205. Id. 206. Id.

110. Id.

152. Moss, Michael; Safety of Beef Processing Method Is Questioned; New York Times. Published 30 Dec. 2009, Accessed 3 Mar. 2011. http://www.nytimes.com/2009/12/31/us/31meat. html?_r=2&pagewanted=1

111. Id.

153. Id.

112. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 237.

154. Id.

109. Id.

113. Id. at 236. 114. Id. at 237. 115. Id. 116. Id. at 281. 117. Id. at 281-282. 118. Id. 119. Id. at 282. 120. Winstanley, Chris L.; A Healthy Food Tax Credit: Moving Away from the Fat Tax and Its Fault-Based Paradigm; Oregon Law Review, 2007, 86 Or. L. Rev. 1151, 1159.

155. Id. 156. Id. 157. Id. 158. Id. 159. Id. 160. Id. 161. Id. 162. Id. 163. Id. 164. Id. 165. Id.

121. Id.

166. Id.

122. Id.

167. Id.

123. Id.

168. Id.

124. Id.

169. Id.

125. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 282.

170. Id.

126. Id. at 283. 127. Id. 128. Id. 129. Winstanley, Chris L.; A Healthy Food Tax Credit: Moving Away from the Fat Tax and Its Fault-Based Paradigm; Oregon Law Review, 2007, 86 Or. L. Rev. 1151, 1160.

171. Id. 172. Id. 173. Id. 174. Id. 175. Id. 176. Id. 177. Id.

130. Id.

178. Id.

131. Id.

179. Id.

132. Id. at 1158.

180. Id.

133. Id.

181. Id.

134. Id.

182. Id.

135. Id. at 1159.

183. Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 234.

136 Eubanks, William II; A Rotten System: Subsidizing Environmental Degradation and Poor Public Health with Our Nation’s Tax Dollars, Stanford Environmental Law Journal, June 2009, 28 Stan. Envtl. L.J. 213, 278.

184. Id.

200. Id. 201. Id. at 83.

207. Id. 208. Gearing up for the 2012 Farm Bill Debate, Mitchell, Claire. Food Safety News. 14 Mar 2011. 209. Id. 210. Id. 211. Id. 212. Id. 213. Wallinga, David; Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 1 Apr 2011. 214. Id. 215. Id. 216. Id. 217. Id. 218. Id. 219. Id. 220. Id. 221. Id. 222. Id. 223. Id. 224. Id. 225. Id. 226. Id.


71 | LOYOLA JOURNAL


LOYOLA JOURNAL | 72

WEB 2.0 AND THE EMPLOYMENT RELATIONSHIP ARPANA PARIKH Facebook has over 500 million active users1 and surpassed Google as the most visited site, accounting for 8.93 percent of all U.S. visits from January to November 2010.2 In January 2010, the average person spent about 7 hours on Facebook per month.3 Twitter now has 190 million users and generates 65 million ‘tweets’ per day.4 What this means is that Web 2.0 is here to stay. However, with the ushering in of Web 2.0, new legal issues affecting the employment relationship have developed. But what exactly is Web 2.0? In the most general terms, Web 2.0 is a term associated with web applications that facilitate user-interaction and collaboration in a virtual community.5 Examples of Web 2.0 sites are Facebook, Twitter, Myspace and blogs. In 2009, Global Language Monitor declared Web 2.0 the one-millionth word of the English language.6 Web 2.0 sites have caused a ruckus within the private employment sector. Philadelphia Eagles former employee, Dan Leone, was terminated from employment after he wrote a Facebook post criticizing how the team lost a player.7 Georgia high school teacher, Ashley Payne, got fired because of posted pictures of herself holding an alcoholic beverage on a European vacation.8 There is even a Facebook group devoted to those who have been fired because of their Facebook activity.9 This article will term these types of firings – terminations from employment based on Web 2.0 posts – collectively as “Web 2.0 firings.” I. INTRODUCTION

With all the recent developments in Web 2.0 technology, employees are growing increasingly concerned about intrusions by employers on their privacy. Although many consider privacy a fundamental value, there is no defined right to privacy and the line between work life and personal life continues to blur. However, the privacy concept has been used to protect many different interests such as “shielding certain communications [and] preventing the disclosure of personal information.”10 The notion of privacy in the private employment sector becomes even more complex by the employment relationship itself. Employers have an interest in employees’ off-duty conduct when there are potential legal implications for the employer. This article will discuss the legitimate scope of an employer’s oversight of a private employee’s off-duty Web 2.0 postings. Part II of this article will define the problem employers and employees face with regard to off-duty Web 2.0 activity in the private employment sector. Part III will survey sources of law that address employee privacy interests and how they apply to Web 2.0 communications. In conclusion, Part IV will discuss where the current regulation lacks clarity in its applicability to Web 2.0 communications and how other countries have dealt with the problem. II. THE PROBLEM Once we gain employment we necessarily give up some of our freedom to the control of the employer. The employer wants to maximize efficiency

and productivity, but tensions with the employee arise when the means of doing so are viewed as degrading or insulting. A. What is the employer’s interest in an employee’s Web 2.0 communications? An obvious problem with Web 2.0 activity in the workplace is decreased productivity for the employer. But, what exactly is the employer’s interest in an employee’s Web 2.0 posts made outside of the workplace? The interest lies in the fact that an employee’s use of Web 2.0 can have legal implications for the employer. For example, an employee can put his employer’s business at risk by divulging confidential information in a Facebook status update for his 500 “friends” to see. Or, a supervisor can post discriminatory comments about an employee on his Myspace page thus putting the company at risk of a lawsuit while also damaging its reputation. With these types of risks, an employer’s interest in monitoring his employee’s use of Web 2.0 is not without merit. This article will examine when an employer’s use of an employee’s Web 2.0 communications as the basis for termination of that employee may violate the employee’s privacy rights under the common law. III. LEGAL LANDSCAPE Theories of individualism and freedom of contract have permeated throughout American work law. “The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to


73 | LOYOLA JOURNAL prescribe the conditions upon which he will accept such labor….[A]ny legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.”11 However, individual freedom of contract does not always foster personal autonomy. In 1937 the Supreme Court ruled that freedom of contract was not absolute and that Congress has the power to regulate employment relationships.12 Nevertheless, the economic individualism philosophy is still strong within employment law, and the default presumption of an employment relationship is that the relationship is one at-will.13 Courts tend to view employment contracts as one for the sale of labor without much thought of the employee as a person. One of an employee’s interests in an employment relationship is to maintain a level of privacy with regard to personal details. However, any attempt to protect employee privacy is in direct tension with the at-will employment principle, which provides that either the employer or employee can break the employment relationship with no liability, provided there was no express contract governing the employment relationship. Most nonunion employees who oppose employer incursion into their private lives do so at the risk of losing their job. However, there is some level of protection from the law of privacy in which the employment at-will doctrine is softened. A. Common Law Privacy According to the Restatement Second of Torts, the right of privacy may be invaded by: 1) unreasonable intrusion upon the seclusion of another; or 2) appropriation of the other’s name or likeness; or 3) unreasonable publicity given to the other’s private life; or 4) publicity that unreasonably places the other in a false light before the public.14 “Unreasonable intrusion upon the seclusion of another” and the “unreasonable publicity given to the other’s private life” are the two ways that privacy may be invaded in the employment context. The majority of states recognize these commonlaw causes of action as the basis for evaluating claims for breach of privacy in

private-sector employment relationships. These two categories are discussed in turn in the context of Web 2.0 firings. The basic test used in determining whether the right of privacy has been violated is to first see whether the employee had a reasonable expectation of privacy; then, the second inquiry is whether the employer’s intrusion was highly offensive as to shock the conscious. 1. Do Web 2.0 firings qualify as “an unreasonable intrusion upon the seclusion of another”? Once we enter our work area, our private life ends and it is generally not a place of solitude or seclusion.15 However, some courts have found violations of this right to be left alone. In K-Mart Corp. Store No. 441 v. Trotti, an employer provided lockers to its employees for the storing of their personal items during work hours.16 Although most of the locks were employer-provided, Trotti’s was not.17 She purchased her own lock for her locker and later noticed that her locker and personal items had been searched without her consent. The Texas court defined the invasion of privacy as “an intentional intrusion upon the solitude or seclusion of another that is highly offensive to a reasonable person...”18 The court found that by allowing Trotti to use her own lock, the employer created and recognized a reasonable expectation of privacy in the locker making the search of Trotti’s locker an unreasonable intrusion.19

person had access to Trotti’s locker. Trotti secured her locker with the intention of keeping the contents sealed from others; the purpose of a password on a Web 2.0 site is to prevent others from making unwanted changes to its contents, but the contents are intended to be seen, however, again to only those limited as “friends.” This feature of Facebook and other Web 2.0 sites likely extinguishes any reasonable expectation of privacy the employee had in the information on the page. But with users of Web 2.0, there seems to be a desire for the law to recognize not only the right to be left completely alone or secluded, but to be left alone to communicate with a specific group of people. Illustrating the common law’s failure to recognize this desire is Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J.) (D.N.J.,2009).20 There, two employees created a Myspace page for invited employees to air their grievances about their employer in a password-protected Myspace group.21 The employees’ managers gained access to the group, and later fired the group’s creators for damaging employee morale and violating the company’s core values.22

“...individual freedom of contract does not always foster personal autonomy.”

Using the principles of Trotti, a password-protected Web 2.0 page may provide a basis for having a reasonable expectation of privacy in the page’s contents from others on the web. A password can be analogous to the lock in Trotti, which could make unauthorized access to a password-protected Web 2.0 site also an unreasonable intrusion. However, the difference between Trotti and, say, Facebook is that although Facebook pages are usually passwordprotected, those that are added as a “friend” on Facebook have access to the contents of the page; whereas, no other

Although this case centered on the federal Stored Wire and Electronic Communications Act and whether the managers coerced one of the employees into providing the login information to gain uninvited access to the group, some commentators suggest that this case is a victory for employees and their privacy claims.23 Yet, the jury rejected the employees’ invasion of privacy claim and determined that the employees had no reasonable expectation of privacy.24 Under the common law, the reality is that there is no seclusion on the web. The Myspace group in Pietrylo, although invitation only and password-protected, did not have reasonable expectation of privacy because, within the parameters of the common law, it is unreasonable to expect privacy in matters already disclosed to


WEB 2.0 AND THE EMPLOYMENT RELATIONSHIP | LOYOLA JOURNAL | 74 members of an online group. 2. Do Web 2.0 firings qualify as “unreasonable publicity given to the other’s private life”? The central case illustrating “unreasonable publicity given to one’s private life” is Borquez v. Robert C. Ozer, P.C., 923 P. 2d. 166 (Colo. App., 1995). There, Borquez learned that his partner had been diagnosed with AIDS and that he was at risk for contracting the disease.25 Borquez worked for the Ozer firm as an attorney and decided he could not effectively represent a client in an upcoming deposition.26 He consulted Mr. Ozer to find a replacement and disclosed private, personal facts about his sexual orientation and his need for AIDS testing. Within two days after Borquez’s disclosure, all employees and shareholders of the firm had learned about Borquez’s personal life. A few days later, Ozer fired Borquez.27 The court found that the facts disclosed by Borquez were private and were made sufficiently public by Ozer.28 It determined that Borquez only disclosed those facts and waived his privacy right because he felt it was necessary to meet the responsibilities of his employment.29 The court also stated that privacy rights “may be waived for one purpose and still asserted for another.”30 Under the rationale of Borquez in the Web 2.0 context, communications made on blogs, Facebook, and Myspace could never be considered sufficiently private. Borquez would not have disclosed his personal information if it was not necessary for his employment,31 whereas the communications made on Web 2.0 sites are usually made with the desire and intent to make them known to members of the virtual community regardless of whether our employment requires the disclosure. However, the Borquez court’s noting that privacy rights could be “waived for one purpose and still asserted for another” seems to indicate that perhaps posts on limited access Web 2.0 sites could be deemed a waiver of privacy rights for that limited scope while still retaining it for other purposes. 3. Is there a reasonable expectation of privacy in communications made on limited access Web 2.0 sites?

There is an argument to be made in desiring privacy protection of the law in one’s ability to share information with only a certain group of people on the web. For example, if a person has a Facebook page that is only fully viewable to 20 people while the remaining 200 or so “friends” can view only a limited page, then there seems to be some expectation of privacy with those 20 people. The person intends only to communicate fully with those 20 people, not the remaining 200, and definitely not with the entire online community. Limited access Facebook profiles or other password-protected Web 2.0 sites like the Myspace group in Pietrylo are similar to emails, and common law privacy rights in some cases have protected email communications. An email sent to a specific group of people from a personal email account is analogous to a Web 2.0 page that is viewable also by just that certain group of people. The emails are sent to specified recipients, and information on limited access Web 2.0 sites are viewable also by a select number of users. An argument can be made that limited access Web 2.0 sites are analogous to an email in one’s inbox that can be viewed at any time by only specific recipients.

law of privacy is one of the main sources of protection against Web 2.0 firings. Because the Web 2.0 medium is a relatively new development, the law has not yet evolved to the extent of when Web 2.0 users can, if ever, will have a reasonable expectation of privacy in their Web 2.0 communications. Limited access Web 2.0 sites may have some reasonable expectation of privacy because of its similarity to personal email accounts. However, even this argument does not stand on solid ground because the common law of privacy does not protect against all intrusions into privacy, but only those intrusions that are highly offensive. “The inescapable conclusion is that what the law of intrusion actually regulates is not privacy, but outrage.”34 The common law of privacy does not take into account that employees do not want every single Facebook comment on a friend’s status, Amazon book review, MySpace group post, or shared YouTube video to put their job at risk. Under the common law, even if there were a reasonable expectation of privacy in one’s Web 2.0 communications, using such communications as the basis of an employee’s termination would probably not be considered highly offensive.

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

The way most courts have ruled with respect to the privacy of emails is that there is a reasonable expectation of privacy in one’s personal email account even if it is accessed on a work computer32, but there is no reasonable expectation of privacy in one’s work email even if accessed from home or on a personal computer.33 Because there are strong similarities between personal passwordprotected email accounts and personal password-protected Web 2.0 sites, there is some reasonable expectation of privacy in limited access Web 2.0 sites, such as Facebook and MySpace. IV.

SHORTCOMINGS IN THE LAW For private employees, the common

A. How Have other countries attempted to draw the line between an employer’s interest in the success of its business and an employee’s interest in privacy? 1. The German Model Given Germany’s history of oppression during Adolf Hilter’s reign, German courts “sought to secure adequate breathing space for expressions of individuality and autonomy even in an employment relationship.”35 The summary of the relevant German labor law is: “The right of personality is defined as a ‘right to be respected as a person, not to have one’s individuality infringed, in one’s right to express oneself (in


75 | LOYOLA JOURNAL appearance, writing, and speech), in one’s social standing (honor), and in the private and intimate areas of one’s existence.’ When any of these areas are infringed by employer action, a balancing test is employed to weigh the intrusion or constraint against the business necessity claimed to justify it.”36 Illustrating the difference between the American common law and the German labor law is the example of a personality test given by an employer to an employee.37 To determine whether a personality test violated an employee’s privacy rights under the American common law, one would need to look at the types of particular questions asked. However, under the German law, the administering of the personality test itself would be considered an invasive act “reducing a human being to a mere object of examination.”38 Under the German model, given that Web 2.0 has become a large part of our everyday lives as a tool of individual expression, the mere act of using any Web 2.0 communication made on a personal account may be invasive of one’s “right to personality” and require the employer to state his business reason in using those communications in order to balance the interests between the employer and the employee. 2. An Australian Viewpoint In Fitzgerald v. Dianna Smith t/a Escape Hair Design, Fair Work Australia (FWA), which is comparable to the American National Labor Relations Board (NLRB), considered whether an employer, Escape Hair Design, unfairly dismissed Ms. Fitzgerald after she posted the following status update about her employer on Facebook: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”39 Fitzgerald’s Facebook page was set to “private” allowing only her “friends” to see her status, yet a colleague with access to her page told her employer about the update.40 The Commissioner considered a number of factors in deciding whether Fitzgerald’s termination based on

the Web 2.0 post was justified.41 The factors included whether the employer was named, whether the comments would adversely affect the employer’s business, how long the comments were posted, who could see the comments, and whether the employer raised her concerns about the comments at the time.42 Upon balancing these factors, the Commissioner found that Fitzgerald’s termination was wrongful.43 Yet, the Commissioner also stated, “Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment… It is well accepted that behavior outside working hours may have an impact on employment…It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”44

that doctrine. Under the common law’s standards, “reasonable expectation of privacy” can be extinguished by sharing the information with one other person; and an intrusion that is considered “highly offensive” must usually be so high as to shock the conscious.45 There is less of a balancing of interests and more of the employee having the sole burden of meeting these nearly impossible standards in order to keep any Web 2.0 post, not just the posts that concern the employer, from being used as a basis for termination. Went, employers should develop a social media use policy and provide employees with informational workshops regarding Web 2.0 communications. Doing so would put employees on notice of the risk they undertake in posting statements online and make employees more conscious of their Web 2.0 activity. A. Is there ever going to be a change from the common law trend? Sens. J o h n McCain and John K e r r y h a v e proposed legislation to create an “online privacy bill of rights.” 46 The bill w o u l d require

“Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

This Australian viewpoint is more favorable to employees than the current American common law approach in that a number of factors are considered which allows for more of a balancing of interests between employer and employee rather than the employee having the high burden of establishing a highly offensive intrusion of his reasonable expectation privacy.

V. CONCLUSION Both the German model and the Australian viewpoint above balance the interests of the employer and the employee. The FWA Commissioner is right in saying that employees should be responsible for what they post on the Internet. However, unlike the German and Australian views, the test under the American common law of privacy weighs heavily in favor of the employer because of the “at-will” doctrine and the reluctance of courts to find exceptions to

companies to seek a person’s permission to share data about him with outsiders, and it would also give people the right to see the data collected on them.47 “The move comes amid widening scrutiny of the tracking industry…[P]opular websites install thousands of tracking technologies on people’s computers without their knowledge, feeding an industry that gathers and sells information on their finances, political leanings and religious interests, among other things.”48 If this bill passes, employers would be prohibited from purchasing information from data-gathering companies about their employees without the employee’s


WEB 2.0 AND THE EMPLOYMENT RELATIONSHIP | LOYOLA JOURNAL | 76 permission. The bill is a move one step closer to giving employees, as consumers, more privacy protections in their Web 2.0 activity, but this bill still does not shield an employee from getting fired over something the employee posts on his Facebook or MySpace page, and his employer discovers such information. Nonetheless, change in privacy law is certainly on its way. The Obama administration is seeking to fill key jobs related to privacy policy.49 “People familiar with the matter said the administration is in talks with Jules Polonetsky, who currently heads the Future of Privacy Forum, an industry-funded think tank, to run a new privacy office in the Commerce Department.”50 In the meantime, what can an employee do to protect him/herself from becoming a victim of a Web 2.0 firing? A November 2010 CNN article provides seven helpful tips for employees to protect themselves from a Web 2.0 firing.51 They include points such as, “be picky about who you friend,” “do it on your own time and on your own computer,” and “figure out privacy settings.”52 These tips are, for the most part, focused on actions that may shape one’s “reasonable expectation of privacy,” and were likely developed with the current restraints of the common law and the harshness of the “at-will” employment doctrine in mind. Web 2.0 users should be mindful of the potential consequences of the their postings but remain hopeful for more privacy protections due to the expansion of privacy law.

ENDNOTES 1. Facebook Statistics, http://www.facebook.com/ press/info.php?statistics (last visited Mar. 19, 2011). 2. Facebook was the Top Search Term in 2010 for Second Straight Year, Experian Hitwise, Dec. 29, 2010, http://www.hitwise.com/us/press-center/pressreleases/facebook-was-the-top-search-term-in-2010for-sec/. 3. Ben Parr, Facebook is the Web’s Ultimate Timesink [STATS], Mashable, Feb. 16, 2010, http://mashable. com/2010/02/16/facebook-nielsen-stats/. 4. Erick Schonfeld, Costolo: Twitter Now Has 190 Million Users Tweeting 65 Million Times a Day, TechCrunch, Jun. 8, 2010, http://techcrunch. com/2010/06/08/twitter-190-million-users/. 5. Definition of Web 2.0, Core Characteristics of Web 2.0 Services, http://www.techpluto.com/web-20services/ (last visted Mar. 19, 2011). 6. “Millionth English Word” Declared, Jun. 10, 2009, BBC News, http://news.bbc.co.uk/2/hi/ americas/8092549.stm.

Handbuch 1293 (8th ed. 1996)(reference omitted)). 37. Id. at 262. 38. See id. 39. Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design (2010) FWA 7358 (24 September 2010). 40. See id. 41. See id. 42. See id. 43. See id. 44. See id. 45. See K-Mart Corp. Store No. 441 v. Trotti, 677 S.W.2d 632, 637-638 (Tex.App. 1 Dist.,1984). 46. Julia Angwin, Proposed Bill Would Put Curbs on Data Gathering, The Wall Street Journal, Mar. 10, 2011, http://online.wsj.com/article/SB1000142405274 8704629104576190911145462284.html.

7. Facebook Post gets Worker Fired, Espn.com News Services, Mar. 9, 2009, http://sports.espn.go.com/nfl/ news/story?id=3965039.

47. Id.

8. Teacher in Trouble for Facebook Sues Ga. District, The Atlanta Journal Constitution, Nov. 10, 2009, http://www.ajc.com/news/teacher-in-troublefor-191943.html.

49. Angwin, supra note 31.

9. Fired by Facebook, http://www.facebook.com/ group.php?gid=63470796208&v=info (last visited Mar. 20, 2011). 10. Marion Crain et al., Work Law Cases and Materials, 389 (2nd ed. 2010). 11. Adair v. U.S., 208 U.S. 161, 174-75 (1908)(found that the Fifth Amendment barred limiting the right of an employer to fire an employee due to membership in a labor union). 12. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. I (1937) (declared the National Labor Relations Act of 1935 constitutional). 13. National Conference of State Legislatures, www. ncsl.org/?tabid=13344 (last visited Mar. 19, 2011). 14. Restatement (Second) of Torts § 652B (1976). 15. Ulrich v. K-Mart Group, 858 F. Supp. 1087, 1095 (D. Kan., 1994) (finding no reasonable expectation of privacy for employee in a work area of a K-Mart store) 16. K-Mart Corp. Store No. 441 v. Trotti, 677 S.W.2d 632 (Tex.App. 1 Dist.,1984). 17. Id. at 635. 18. Id. at 636. 19. Id. at 637. 20. Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J.) (D.N.J.,2009). 21. Id. at 3. 22. See id. 23. Rabeh Soofi, Blogged Out of Work: Privacy Concerns and Prying Eyes, The Ice Loop, Jan. 30, 2010, http://www.theiceloop.com/?p=166. 24. Pietrylo, 2009 WL 3128420, at 1. 25. Borquez v. Robert C. Ozer, P.C., 923 P. 2d. 166 (Colo. App., 1995). 26. See id. 27. Id. at 170. 28. Id. at 174. 29. Id. at 175. 30. See id. 31. See id. 32. Stengart v. Loving Care Agency, Inc., 973 A. 2d 390 (2009); Fischer v. Mt. Olive Lutheran Church, 207 F. Supp. 2d 914 (W.D. Wisc. 2002);Van Alstyne v. Elec. Scriptorium, Ltd., 560 F. 3d 199 (4th Cir. 2009). 33. Smyth v. Pillsbury Co., 914 F. Supp. 97 (1996); Garrity v. John Hancock Mutual Life Ins. Co., 18 IER Cases 981 (D. Mass. 2002); McLaren v. Microsoft Corp., 1999 Texas App. LEXIS 4103 (Tx. Ct. App. 1999). 34. Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 Chi.-Kent L. Rev. 221, 228 (1996). 35. Id. at 260. 36. Id. at 261 (quoting Gunter Schaub, Arbeitsrechts-

48. Id. 50. See id. 51. Stephanie Chen, Can Facebook get you fired? Playing it Safe in the social media world, CNN, Nov. 10, 2010, http://edition.cnn.com/2010/LIVING/11/10/ facebook.fi red. social .medi a.eti quette/i ndex. html?hpt=C2. 52. See id.


77 | LOYOLA JOURNAL


LOYOLA JOURNAL | 78

THE FAULTS OF RACIAL PROFILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR EVELINA SHPOLYANSKY The investigative tactic of racial profiling that the Unites States has implemented in its fight against the War on Terror has been ineffective in gathering intelligence against terrorism and has in fact negatively impacted America’s society, our national security strategies and our international standing and relationships. Racial profiling of Arabs and people of Muslim descent is a detrimental policy for the following reasons: it is a waste of our anti-terrorist and law enforcement resources; it has diverted our police and government attention away from genuine threats; it has alienated Arab and Muslim communities in the U.S. and abroad; it has produced discrimination and wrongful stereotyping amongst our society; and it has infringed upon our cherished bedrock of religious freedom, equality and civil liberty. Therefore, before further antiAmerican actions are carried out, we must abandon our racial profiling. INTRODUCTION Prior to the events of September 11th, 2001, there was a strong consensus that all types of racial profiling were unwise and futile. Racial profiling occurs “whenever a law enforcement officer questions, stops, arrests, searches or otherwise investigates a person because the officer believes that members of that person’s racial or ethnic group are more likely than then population at large to commit the sort of crime the officer is investigating.”1 Yet, not all selection of suspects on the basis of race is racial

profiling. When a law enforcement official investigates an individual because his ethnicity or race “matches information about a perpetrator of a specific crime that the officer is investigating” it is not racial profiling.2 However, what followed the 9/11 attack was racial profiling of Arab and Muslim individuals that targeted a group of people without any specific belief in any individual’s involvement in terrorist activities.3 Before the attack on the World Trade Center, President Clinton saw racial profiling as “morally indefensible,” and the 2000 presidential nominees, Al Gore and George W. Bush, agreed that the practice should be abandoned.4 Moreover, in the fall of 1999, 81% of respondents in a national poll disapproved of racial profiling and saw it as unfair.5 However, 9/11 changed how our government and in turn how our nation viewed this issue. Racial profiling of Muslims and people of Arab descent became the strategy. Our government saw that since the September 11th attacks were perpetrated by Muslim men who had links to al Qaeda (a Muslim organization) profiling of people from this ethnic and religious background would be an effective tool in the War on Terror against future terrorist attacks in the U.S. and abroad. This thesis seeks to analyze the ineffectiveness and detrimental aspects of the U.S. racial profiling policy used in our fight against the War on Terror. Part I of this thesis depicts several of the profiling

programs and laws the U.S. government has implemented after 9/11. Part II of this thesis discusses how racial profiling is an ineffective waste of resources, and how by diverting our law enforcement’s attention away from real threats it actually poses a threat to our national security. Moreover, Part II speaks about the fact that racial profiling alienates the Arab and Muslim communities and has negatively affected our relations with Middle Eastern nations. Additionally, Part II discuses how racial profiling fosters discrimination and the development of stereotypes, while at the same time curtailing our society’s religious freedoms and civil liberties. Part III discusses how profiling would likely not have prevented the outcome of 9/11 and why in more recent threats this policy has not proven to be an effective tool against terrorism. Part IV, the conclusion, reiterates the pivotal aspects of why racial profiling must be abandoned. PART I: THE RACIAL PROFILING INVESTIGATIVE TACTICS IN FULL SWING AFTER SEPTEMBER 11TH, 2001 Within days of the 9/11 attack, the Department of Justice (DOJ) launched a large scale racial profiling operation – the detention of persons “based on race and country of origin.” As a result thousands of Arab and Muslim noncitizens were arrested.6 Those arrested were not allowed to have proper communication with their families or their attorneys, and the location and the nature of the charges were also unknown. A


79 | LOYOLA JOURNAL significant amount of individuals were held as “material witnesses.”7 Over 700 Muslim and Arab foreign nationals were detained for an extended period of time and labeled as persons “of interest” to the 9/11 investigation.8 However, since there was no individualized suspicion and these persons were of interest solely because of their collective backgrounds and identities, by February of 2002 the DOJ acknowledged that most of these “special interest” detainees were no longer of importance. Many were found to be in violation of immigration laws and none were indicted for crimes related to the 9/11 attacks.9 To further its racial profiling strategy, in October of 2001, the State Department imposed a twenty-day mandatory hold on all non-immigrant visa applications submitted by men between the ages of eighteen to forty-five from various countries, most of which were Arab or Muslim.10 These applicants became subjected to approval after special security clearances. Certain countries experienced even stricter procedures. For example, beginning in August 2002, all visa applications from Jordan were no longer approved at the American Consulate in Amman, but instead were sent to Washington D.C. for approval, without an estimated response time. Many Arab countries were imposed with similar rules. As a result, America’s racial profiling policy greatly affected people all over the Arab and Muslim world. Professors could not return to the U.S to teach, thousands of students were unable to continue their studies, jobs, fellowships and scholarships were lost, and access to U.S. medical treatment was cut off.11 People’s lives were turned upside down because of our government’s profiling measures. In November of 2001, the DOJ continued on its baseless profiling agenda and initiated a Task Force program to interview over 5,000 immigrant men. Later Attorney General John Ashcroft announced a second round of interviews with an additional 3,000 persons. All the interviewees were men between the ages of eighteen and forty-six who came from Arab or Muslim countries and entered the U.S. after January 1, 2000.12 As part of this program, federal

officials also contacted more than two hundred colleges and universities to gain information about students from Middle Eastern countries.13 This Task Force allowed local law enforcement personnel to engage in more traditional racial profiling. By involving local police, the DOJ was risking discriminatory law enforcement against people of Muslim or Arab descent and other ethically foreign looking individuals. Only twenty people were arrested as a result of these interviews, most had violated immigration laws. 14

programs yielded almost no intelligence or arrests for terrorism offenses.18 In addition to the DOJ tactics focusing on Arab and Muslim noncitizens, the rights of Arab and Muslim citizens were also put in jeopardy. In 2001 Congress passed the USA PATRIOT Act19, which restricted civil rights of citizens and immigrants “by expanding the surveillance powers of the federal government,”20 and by broadening the government’s detention and deportation powers over individuals suspected of terrorism l i n k e d activities. “Civil liberties of ordinary Americans have taken a tremendous b e a t i n g with this law, and none more so than Muslims, South Asians and Arab Americans.”21 According to a recent report from the Justice Department’s Inspector General, which looked into accusations made under the provisions of the Patriot Act, there are countless claims from Arabs and Muslims that were verbally or physically abused while detained by law enforcement officials. Additionally, banks have blacklisted Muslim account holders simply because their names matched those on a government watch list, and when questioned the banks justified their actions under the Act.22

“Test test test

Thus even though the initial arrests provided no terrorist related intelligence, the DOJ widened their racial and ethnic profiling mechanisms of noncitizens and implemented the “Absconder Apprehension Initiative” in January of 2002 and the “Special Registration” program in September of 2002.15 Both programs resulted in additional extended detentions. The Initiative sought to deport all of the foreign born individuals present in the U.S., who were from Arab and Muslim countries, ahead of all others who had pending removal orders. The idea was that by prioritizing the deportation of these individuals terrorist related intelligence would be discovered or a threat would be averted. The Absconder Apprehension Initiative was futile in bringing credible intelligence that would be of help against the War on Terror. 16 The Special Registration program was equally futile when it came to gathering terrorist intelligence. It mandated all Muslim and Arab immigrants residing in the U.S. with temporary visitor visas to personally register with the immigration authorities. These immigrants were fingerprinted and photographed, questioned, and from that point onwards had to submit to routine reporting. This allowed the INS to keep tabs on a significant number of people. Over eighty-two thousand people “voluntarily” registered with the program, out of which over thirteen thousand were placed in removal proceedings for visa violations, though none were charged with “terrorism, terrorist affiliations, or otherwise suspected of terrorist affiliations.”17 Both racial profiling

test jrklellllllllllll lllllllllllllllllll.”

As a result of the implementation of these profiling tactics any suspicion became sufficient, including race.23 A 2002 Zogby poll conducted by the Arab American Institute Foundation found that thirty-seven percent of Arab-American Muslims reported that they were targeted for discrimination based upon their ethnicity or religion, and forty-five percent of respondents knew someone who had been a target of anti-Arab discrimination.24 In addition, ambiguities in interpreting the Patriot Act have led to misapplication and abuse of the law which was exhibited in incidents of verbal harassment and even physical assaults.25 To this day there is substantial evidence


THE FAULTS OF RACIAL PROFIILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR | LOYOLA JOURNAL | 80

that government officials engage in racial profiling of Muslims, South Asians, Arabs and Sikhs.26 Local police frequently stop and question Arab looking drivers, without probable cause or any reasonable suspicion, solely or in part based on their appearance.27 Middle Eastern and Arab looking individuals are also profiled, questioned and humiliated because of their ethnicity.28 With no individualized suspicion required, racial profiling has become a common practice restricting the rights and civil liberties of thousands of innocent people. PART II: THE AFFECTS OF RACIAL PROFILING POLICY I. RACIAL PROFILING IS AN INEFFECTIVE WASTE OF RESOURCES IN FIGHT AGAINST TERRORISM After September 11, many journalists, politicians and pollsters have expressed extensive support in favor of focusing our scrutiny on Middle Eastern or Muslim individuals in order to win the fight against terrorism.29 The discussed

DOJ programs and the Patriot Act were predominantly aimed at individuals from countries known to have links with al Qaeda. However, mathematical analysis proves that only a very small number of Middle Eastern men are actually affiliated with al Qaeda. There are between 2.8 and 6 million of Arab and Muslim immigrants living in the U.S., thus the odds that race or ethnicity alone will yield suspects is in the order of “one in several thousands.”30 Therefore, an individual member of any relevant groups is “very unlikely to be a criminal.”31 With this in mind, law enforcement agencies must not expend their limited resources on racial profiling that tramples upon civil and constitutional right of this minority.32 Instead we must focus our resources on intelligence gathering that deals with real threats and monitors dangerous conduct. 33 Profiling based solely on a group’s race and ethnicity is statistically unsupported and economically inefficient, therefore it must be abandoned. II. RACIAL PROFILING POSES A THREAT TO NATIONAL SECURITY

Additionally, the racial profiling tactics must be abandoned because they are a threat to our country’s national security as determined by a 2004 Amnesty International (AIUSA) report. 34 The report found that targeting millions of innocent people has “undermined … law enforcement agencies’ ability to detect actual domestic security threats and apprehend serial killers, assassins and other purveyors of terror.” 35 As discussed above, in a country as diverse as the U.S., with millions of people representing each racial or ethnic group, the racial profile of an individual has almost no probative value.36 The report determined that racial profiling actually jeopardizes the effectiveness of antiterrorist security measures because it prevents law enforcement from focusing on “the real target – dangerous behaviors and legitimate threats.”37 A race based profile of future terrorists will pose a tremendous threat to our national security. Al Qaeda, an organization that is said to have over one


81 | LOYOLA JOURNAL billion dollars in assets,38 is constantly adapting and learning to circumvent our racial profiling tactics.39 There are no constraints on such a terrorist organization in selecting individuals of different ethnicities or races to carry out their attacks, especially when they know who the U.S. government is looking for.40 Moreover, Professor Wedgwood argues that the leadership of al Qaeda has “realized that the easiest way to avoid American watch lists is to recruit U.S. citizens.”41 Even TSA Deputy Administrator McHale has cautioned against our use of racial profiling. He emphasized that we must establish new protocols because terrorists have a proven history of using “dupes such as women and children” in carrying out their missions.42 Moreover, while not officially substantiated, there are reports that al Qaeda may be recruiting white Muslims from the United K i n g d o m , Albania and Bosnia.43 The racial profiling of innocent Arabs and people of Middle Eastern descent must stop because this policy only shifts our focus away from real threats while jeopardizing our efforts against the War on Terror.

it can also divert our law enforcement’s attention from fighting home grown terrorism. III. RACIAL PROFILING CAUSES THE ALIENATION OF THE ARAB AND MUSLIM COMMUNITIES Racial profiling “adds no security, and can in fact compromise it.”48 Profiling Muslim, Arab or people of Middle Eastern looking descent based on their religion, race, or ethnicity tears at the fabric of our democracy because it specifically relies on an assumption that certain ethnicities or races are “more likely to be terrorists or have knowledge thereof.”49 Such profiling is alienating the Arab and Muslim communities and has probably turned some members of these communities against the U.S. government.

“Test test test

Alienation is not the only evil that can stem from systematic racial profiling of Arab and Muslim American communities. Racial profiling also has the potential to “generate sympathy for the terrorist cause.”56 The danger of the profiling policy is that those who have experienced its humiliation and intimidation will see the criminal justice system as fundamentally unfair, and as a result will lose respect for the law. In turn, those “who have lost respect for the law’s legitimacy are more likely to break the law themselves.”57 Thus by racially profiling Arab and Muslim Americans we are not only losing their cooperation, and intelligence assistance, but we are also creating another potential spring of violence and terrorist activity.58 IV. EFFECTS OF RACIAL PROFILING ON U.S. RELATIONS WITH MIDDLE EASTERN NATIONS

Our government cannot afford to alienate members of the Arab and Muslim American communities because they are essential to our fight against terrorism at home and abroad. 50 These individuals are capable of providing America with intelligence51 which the U.S. is in dire need of, especially when it comes to translation, infiltration and other human intelligence.52 By profiling members of these communities, we are treating these individuals as criminals. This type of treatment insults a person’s self image and his position in his family as well as in society. “Short of imprisonment, intimidation or physical abuse, most of the pain of racial profiling is caused by treating law abiding people like criminals.”53

The U.S. policy towards the War on Terror, including its racial profiling of Arab and Muslim individuals, has damaged our world view and relations with our Middle Eastern allies. These policies have also diminished our ability to fight the war. In the Impressions of America 2004 poll, Zogby found that America’s favorability rating has declined substantially from its 2002 polling.59 By 2005, attitudes towards the U.S. have worsened even further in Egypt, Jordan, Morocco, Saudi Arabia, and the United Arab Emirates – some of our strongest allies in the region. When asked to name the most important factor in determining their attitude, respondents split between the War in Iraq and “American treatment of Arabs and Muslims.”60 A similar poll conducted in 2006, revealed further decline in attitudes toward the U.S.61

If the U.S. continues these profiling tactics and therefore stigmatizes members of these communities as potential terrorists, these people will see themselves as “‘enemies by virtue of [their] ethnic identity.” 54 As a result, it will be very difficult to encourage them to provide intelligence assistance, let alone report suspicious activity. After all, how can we expect assistance from those whom we humiliate, whose reputations we ruin,55 and whom we presume to be

These negative views of U.S. policy towards Arabs and Muslims immigrants, as well as the U.S. actions in the War on Terror have diminished our ability to effectively fight the war.62 These negative opinions towards America’s treatment of Muslim people have in turn produced a level of support for al Qaeda and other terrorist organizations who aim to harm the U.S.63 Additionally, Arab and Muslim populations abroad are increasingly linking the U.S. policies towards Muslims

test jrklellllllllllll lllllllllllllllllll.”

Racial profiling is historically known to divert our law enforcement’s attention from zeroing in on real threats.44 The case of Washington D.C. snipers illustrates an example of relying too heavily on race based profiles. The profile of the D.C. sniper was based on a “white male serial killer profile.”45 Relying on this profile endangered more lives and stalled the law enforcement from finding the real suspects even though they might have had the real killers within their reach at roadblocks after each shooting.46 As a result, it took them a significant amount of time to realize and indentify the killers they were searching for, who were black. The mistake about the “race of the suspects appears to have resulted from plain-old racial profiling.47 Thus, a race based profile can not only pose a threat to national security from terrorism, but

terrorists, all without any cause?


THE FAULTS OF RACIAL PROFIILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR | LOYOLA JOURNAL | 82 not only to the U.S. government, but also to the American people themselves.64 Thus, not only have the U.S. tactics diminished our support in the Middle East and impaired our ability to fight the war, but such tactics are also increasingly placing our citizens in danger of future attacks in America and in their travels abroad. V. RACIAL PROFILING CAUSES DISCRIMINATION AND THE DEVELOPMENT OF STEREOTYPES Race profiling tactics have permeated the U.S. society to such an extent that even private citizens have followed in the footsteps of the federal government.65 Fear of future attacks has made Americans suspicious of Arabs and people of Muslim descent and appearance, even when their actions are entirely innocent. As a result, members of our society are especially likely to discriminate, and draw stereotyped and often wrong inferences about others’ behavior and report their suspicions to law enforcement.66 One example occurred three months after 9/11.67 It involved three men who boarded a Florida bound flight in New Jersey. One man, a Filipino Ph.D. student, who was traveling from London to Tampa, while changing planes encountered his professor, a Sri Lanka national, also traveling to Tampa. They choose to sit together on their ride home, and seated next to them was another man, a Wall Street financial analysis and U.S. citizen born in Guyana. None of the men had any problems going through the security, yet once they were seated on the plane problems arose. After glaring at them for some time, one passenger told the captain that the three brown skinned men were behaving suspiciously. Afterwards, without any explanation, all three men were removed from the plane and questioned. Obviously, the airline did not view these men as a threat because all three were placed on another Florida bound plane.68 Yet, the scared passenger discriminated against these men based on the color of their skin. He chose to profile them, and caused them extensive humiliation, as well as an infringement on their rights and civil liberties. It is important to note that such

events are quite common and that the social costs of racial profiling are immense. In the above described case, as in many others, the men were removed from the plane without any explanation. Thus the incident simply allowed this type of discrimination and “built and reinforced popular stereotypes about the propensity of criminality among racial minorities.”69 Not only did this incident perpetuate an inaccurate stereotype, but because the men were never cleared of any guilt in the eyes of their fellow passengers, such actions will undoubtedly produce future “fear and more pronounced levels of scapegoating.”70 The U.S. racial profiling tactics have thus created a larger societal problem, now even the average American discriminates against Arab and Muslim immigrants/U.S. citizens and sees them as having a propensity for criminality and terrorist activity.

drivers of Arab or Middle Eastern looking descent experience when they are stopped by police solely or in part based on their appearance.73 A d d i t i o n a l l y, the Equal Protection Clause of the Fourteenth Amendment forbids unequal treatment on the basis of race.74 Racial profiling of Muslims, Arabs and those of Middle Eastern descent targets people based on their ethnic and religious background and subjects them to treatment different from all others. This is in direct violation of the Fourteenth Amendment. Yet those who have been racially profiled have no recourse against such experiences because it is difficult to meet the required burden of proof to sustain the equal protection claim.75 Thus, these claims do not serve as a deterrent to racial profiling, and the practice goes unchecked. The U.S. must realize that such profiling results in a loss of constitutionally protected liberties which ultimately violates the essence of American law.

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

VI. RACIAL PROFILING NEGATIVELY AFFECTS OUR RELIGIOUS FREEDOM, RIGHTS AND CIVIL LIBERTIES Another reason why the U.S. should abandon its racial profiling tactics is because by focusing on Arab or Middle Eastern people of the Islamic faith, we are persecuting individuals based on their religion, the freedom of which we fought for and founded our nation upon. How can our government persecute people of the Islamic religion when our nation proudly stands for freedom from religious persecution? Furthermore, our profiling policy is contrary to the Bill of Rights, which protects unpopular minorities from the majority.71 While it is to be expected that fear and tension was high in the time following the 9/11 attack, it is no excuse that the civil rights of this discrete minority are to this day still undervalued. Racial profiling is also in violation of the Fourth Amendment, which is designed to protect individuals from unreasonable searches and seizures,72 which many

PART III: RACIAL PROFILING – AN INEFFECTIVE POLICY Various people argue that racial profiling is an effective policy in preventing terrorism76 and that its use should be acceptable in extreme circumstances when a large number of lives are at risk.77 Moreover, the homogeny amongst the 9/11 hijackers have led several people to believe that racial profiling is an adequate law enforcement policy that might have actually prevented the 9/11 disaster.78 However, upon a closer look racial profiling would probably not have changed the outcome of that day. Not all the hijackers bypassed security without a hitch. After the recommendation of an airline employee, two of the hijackers were subjected to additional scrutiny.79 After two of the perpetrators set off alarms at the security checkpoints, security personnel checked them with hand wands and allowed them to pass


83 | LOYOLA JOURNAL (without conclusively identifying or confiscating whatever triggered the alarm).80 If all nineteen had been profiled, it is possible that some prohibited items might have been confiscated. Yet, who is to say that the security personnel would have identified and indeed confiscated all of these items? Even if prohibited items were found, as today, they would have simply been confiscated, and in the absence of resistance or other indicators, it is unlikely that the denial of boarding would have resulted.81 Thus, they would have still been on board to hijack the planes, and profiling would probably not have prevented the 9/11 tragedy. Yet others argue that because there has not been a terrorist attack on U.S. soil since 9/11, our War on Terror tactics, including racial profiling strategies, have succeeded in turning people away from terrorism.82 However, it is not that racial profiling has been an effective tool against terrorism, it is simply that al Qaeda and other terrorist groups have changed their strategy and began recruiting members from outside our racial profiling spectrum. Those who perpetrated some of the later attacks or attempted terrorist activity do not fit the profile of Arab or Muslim descent. They are examples of the ineffectiveness of racial profiling, and of al Qaeda’s change in terrorist strategy. Jose Padilla, a native born U.S. citizen, described as the “dirty bomber,” was captured on May 8, 2002 as he flew from Pakistan to Chicago, IL.83 Yet, he was not apprehended as a result of racial profiling, but instead because of information gained from Enhanced Interrogation Techniques implemented against Abu Zubaydah,84 a supposed member of bin Laden’s inner circle, who was apprehended in Faisalabad, Pakistan.85 Another terrorist, Richard Reid, known as the “shoe bomber,” also did not fit the profile. He was a British citizen, the son of a British mother who was of white English descent, and a Jamaican immigrant father, of African descent. 86 Reid was apprehended on December 22nd, 2001, aboard his flight from Paris, France to Miami, Florida after he tried to light a fuse which led into his shoe.87 What is interesting about his case, is that he had attempted to board the same flight on December

21st. Yet he was delayed because of his disheveled physical appearance, his inability to answer all the questions of airline security screeners, and the fact that he had not checked any luggage for the transatlantic flight. Thus he was identified, and thoroughly screened, and even additionally questioned by the French National Police. Yet after all this he was simply reissued a ticket for a flight on the following day, December 22.88 Thus racial profiling of an Arab terrorist would have been completely futile against both Richard Reid and Jose Padilla. 89 John Walker Lindth also did not fit the racial profile. Mr. Lindth was an American, who was captured as an enemy combatant during the Battle of Qala-i-Jangi, part of the United States’ 2001 invasion of Afghanistan.90 He was subsequently convicted for his activities with al Qaeda.91 All three individuals were linked to terrorist groups or had a connection to terrorism, yet they were of non-Arabic or Muslim descent and appearance. These examples exhibit the problem with racial profiling and our assumption that future attack will come from individuals who are of a certain ethnicity or descent.92 Al Qaeda has the ability to adjust,93 and it knows that the U.S. is seeking to root out its actions by racial profiling, thus it will seek to convert those who are outside of this racial sphere. CONCLUSION Our government’s starting point in any war should be a strong belief that no racial or ethnic group should be considered more suspicious or dangerous than any other.94 When it comes to the policy of profiling, we must ask ourselves: How likely is racial profiling to be an effective policy in the War on Terror? Because of the ethnic identities of the 9/11 hijackers, most Americans may still feel threatened by people of Arab and Middle Eastern descent. In part because of this fear, our government overvalues the possible benefits of racially profiled security measures. However, this thesis has exhibited the ineffectiveness and disadvantageous aspects of this profiling policy. This policy fosters a misuse of our limited anti-terrorist resources, and because of its inherent nature, it poses a threat to our national security. Moreover, racial profiling of Arabs and Muslims has alienated potential allies in this anti-

terrorist struggle, and is contributing to more anti-American attitudes both here and abroad. This thesis has also demonstrated how such profiling promotes rifts in our society, propagates discrimination and the development of stereotypes, while at the same time stomping on freedom of religion and our civil liberties - our basic rights guaranteed by the U.S. Constitution. Ultimately, we must cease our racial profiling tactics. Our society will be better protected by the implementation of time tested investigation methods especially when al Qaeda and other terrorist organizations are learning to adapt, and to enlist individuals who do not fit our racial profiling mold. ENDNOTES 1. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1415 (2002). 2. Ibid. 3. Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice’s 2003 Guidelines, 50 Loy. L. Rev. 67, 79 (2004). 4. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 174 (2007). 5. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1413 (2002). 6. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 175 (2007). 7. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 27 (2004). 8. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 175 (2007). 9. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 27 (2004). 10. Louise Cainkar, Post 9/11 Domestic Policies Affecting U. S. Arabs and Muslims: A Brief Review, Duke University Press, Comparative Studies of South Asia, Africa and the Middle East 24.1, 245-248 (2004). 11. Ibid. 12. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1417 (2002). 13 Peter Siggins, Racial Profiling in an Age of Terrorism, Markkula Center for Applied Ethics, www.scu.edu/ ethics/publications/ethicalperspectives/profiling.html 14. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 35-36 (2004). 15. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 175 (2007). 16. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 34 (2004). 17. Louise Cainkar, Post 9/11 Domestic Policies Affecting U. S. Arabs and Muslims: A Brief Review, Duke University Press, Comparative Studies of South Asia, Africa and the Middle East 24.1, 245-248 (2004). 18. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 32-35 (2004). 19. Wikipedia, The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001, http://en.wikipedia.org/ wiki/USA_PATRIOT_Act


THE FAULTS OF RACIAL PROFIILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR | LOYOLA JOURNAL | 84 20. Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice’s 2003 Guidelines, 50 Loy. L. Rev. 67, 80 (2004).

51. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 177 (2007).

21. The Institute for Social Policy and Understanding, The USA Patriot Act, Impact on the Arab and Muslim Community: Analysis and Recommendations (2004).

52. Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 659 (2009).

82. Warren P. Strobel & Jonathan S. Landay, U.S. Winning Battles Against Terror, but May Be Losing the War, Sep. 4, 2006 (citing Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 652 (2009)).

22. Ibid.

53. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1427 (2002).

83. U.S. Authorities Capture ‘Dirty Bomb’ Suspect, CNN U.S., June 10, 2002, at A1.

54. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 177 (2007).

84. Michael Isikoff, Justice Report: CIA Memo Used by Cheney to Justify Waterboarding Was Inaccurate, U.S. News, February 20, 2010, at A1.

55. Spencer Ackerman, Driving While Muslim, The Nation, September 21, 2006, at A1.

85. Wikipedia, Abu Zubaydah, http://en.wikipedia.org/ wiki/Abu_Zubaydah

56. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 311 (2008).

86. Wikipedia, Richard Reid, http://en.wikipedia.org/ wiki/Richard_reid

57. Reginald T. Shuford, Any Way You Slice It: Why Racial Profiling is Wrong, 18 St. Louis U. Pub L. Rev. 371, 379-380 (1999).

88. Ibid.

23. Ryan J. Sydejko, International Influence in Democracy: How Terrorism Exploited a Deteriorating Fourth Amendment, 7 L. L. Society 220, 260 (2006). 24. James Zogby, Arab American Attitudes & the September 11 Attacks, supra note 114, at 3 (citing Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 651 (2009)). 25. The Institute for Social Policy and Understanding, The USA Patriot Act, Impact on the Arab and Muslim Community: Analysis and Recommendations (2004). 26. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 39 (2004). 27. Spencer Ackerman, Driving While Muslim, The Nation, September 21, 2006, at A1. 28. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 39 (2004). 29. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1422 (2002). 30. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 44-45 (2004). 31. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1423 (2002). 32. Reginald T. Shuford, Any Way You Slice It: Why Racial Profiling is Wrong, 18 St. Louis U. Pub L. Rev. 371, 380 (1999). 33. Mariano-Florentino Cuellar, Choosing Anti-Terror Targets by National Origin and Race 6 Harv. Latino L. Rev. 9, 12 (2003). 34. Yevgenia S. Kleiner, Racial Profiling in the Name of National Security: Protecting Minority Traveler’s Civil Liberties in the Age of Terrorism, 30 B.C. Third World L. J. 103, 112-113 (2010). 35. Ibid. 36. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 43 (2004). 37. Yevgenia S. Kleiner, Racial Profiling in the Name of National Security: Protecting Minority Traveler’s Civil Liberties in the Age of Terrorism, 30 B.C. Third World L. J. 103, 112-113 (2010).

58. Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 660 (2009). 59. James J. Zogby, Impressions of America 2004, supra note 109, at 1 (citing Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 654 (2009)). 60. James J. Zogby, Attitudes of Arabs 2005: An InDepth Look at Societal and Political Concerns of Arabs 12, tbl. 9 (2005) (citing Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 654 (2009)). 61. Zogby International, Five Nation Survey of the Middle East 3 (2006) (citing Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 654 (2009). 62. Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 658 (2009). 63. Ibid. 64. Ibid at 657-658. 65. Ryan J. Sydejko, International Influence in Democracy: How Terrorism Exploited a Deteriorating Fourth Amendment, 7 L. L. Society 220, 254 (2006). 66. R. Richard Banks, Racial Profiling and Antiterrorism Efforts, 89 Cornell L. Rev. 1201, 1212-1213 (2004). 67. Ryan J. Sydejko, International Influence in Democracy: How Terrorism Exploited a Deteriorating Fourth Amendment, 7 L. L. Society 220, 254 (2006). 68. Ibid.

38. Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev 19, 47 (2004).

69. Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice’s 2003 Guidelines, 50 Loy. L. Rev. 67, 77 (2004).

39. Ibid at 41.

70. Reginald T. Shuford, Any Way You Slice It: Why Racial Profiling is Wrong, 18 St. Louis U. Pub L. Rev. 371, 379 (1999).

40. Mariano-Florentino Cuellar, Choosing Anti-Terror Targets by National Origin and Race 6 Harv. Latino L. Rev. 9, 20 (2003). 41. Ruth Wedgwood, The Enemy Within, Wall Street Journal, June 14, 2002 at A1. 42. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 310 (2008). 43. Ibid at 311. 44. More than 100 years before the D.C. sniper case, a Secret Service agent overlooked President McKinley’s assassin because he admittedly focused his attention on an African American man of whom he was suspicious, and who turned out to be a former police officer. Eric Rauchway, Murdering Mckenley: The Making of Theodor Roosevelt’s America 18 (Hill and Wang 2003). 45. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 302 (2008).

71. Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice’s 2003 Guidelines, 50 Loy. L. Rev. 67, 80 (2004). 72. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated…” U.S. Constitution Amendment IV 73. Spencer Ackerman, Driving While Muslim, The Nation, September 21, 2006, at A1. 74. The Fourteenth Amendment provides, that “[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution Amendment XIV, S 1 75. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 316 (2008).

46. Ibid.

76. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1422 (2002).

47. Nelson Lund, The Conservative Case Against Racial Profiling in the War on Terrorism, at p. 340

77. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 307 (2008).

48. Bill Dedman, Memo Warns Against Use of Profiling as Defense, Boston Globe, Oct. 12, 2001, A 27 49. Ryan J. Sydejko, International Influence in Democracy: How Terrorism Exploited a Deteriorating Fourth Amendment, 7 L. L. Society 220, 248 (2006). 50. Michael P. O’Connor & Celia M. Rumann, Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, 48 Washburn L.J. 633, 659 (2009).

78. Ibid. 79. National Commission on Terrorist Acts upon the United States, The 9/11 Commission Report, 3 (2004) 80. Ibid. 81. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 307 (2008).

87. Ibid. 89. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 310 (2008). 90. Wikipedia, John Walker Lindth, http://en.wikipedia. org/wiki/John_Walker_Lindh 91. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 176 (2007). 92. Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DePaul J. for Soc. Just. 293, 311 (2008). 93. David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. Pa. L. Rev. PENNumbra 173, 176 (2007). 94. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1438 (2002).


85 | LOYOLA JOURNAL


THE FAULTS OF RACIAL PROFIILING AS A U.S. TACTIC AGAINST THE WAR ON TERROR | LOYOLA JOURNAL | 86


87 | LOYOLA JOURNAL


LOYOLA JOURNAL | 88

BANKRUPTCY DURING THE MORTGAGE MELTDOWN ALEX MEGERDICHIAN

1. INTRODUCTION The mortgage meltdown has had a drastic impact on millions of Americans across the United States. Poor economic conditions, high interest rates and unemployment have contributed to the increase number of mortgage defaults by homeowners.1 Many of these homeowners face impeding home foreclosures with no remedy in sight, they have been helpless and have ultimately lost the homes that they had purchased using their blood, sweat, tears and hard work. Unfortunately, for many homeowners struggling to make mortgage payments, loan modifications, also, have not been a viable option.2 Desperate and without hope, these homeowners have sought the only means available to them to buy more time and delay a foreclosure – bankruptcy. For many homeowners bankruptcy is no longer simply an option but rather has become the norm. In fact, serial bankruptcy filings have caused postponement of foreclosure sales resulting in millions of dollars being lost and several homeowners living mortgage free for months, if not years. This paper will provide a brief overview of the imbedded powers vested in filing for bankruptcy, the abusive schemes being used to improperly delay foreclosure, current remedies available to creditors to cure this abusive practice, and necessary implementations needed to prevent abuse of this process. 2. THE FORECLOSURE CRISES IN CALIFORNIA

Foreclosure is the most common outcome for borrowers unable to make payments on their mortgages, followed by short sales. In contracts, loan modifications are rarely used and often do not address long term affordability. This is in part because lenders can earn more from selling a home than from modifying the existing loan.3 Thus, in recent years, the number of households facing foreclosure have multiplied. Housing prices have rapidly falling and many borrowers who purchased homes in the past several years are finding themselves owing more than their homes are even worth. Overall the United States is experiencing one of the worst economic disasters in recent decades and, as we all know, residential real estate is substantially affected with home prices hitting all time lows.

and foreclosure rates. A staggering 1 in every 173 homes is in default.5 Moreover, the social and economical effects of these foreclosures have left many tremendously stressed, with damaged credit scores and ultimately homeless.6 The community and State of California have also been harmed by the foreclosure crises as foreclosed homeowners have not paid their property taxes. 3. CLASHING LAWS OF BANKRUPTCY AND FORECLOSURE LAW Mortgage foreclosure law is focused primarily on the enforcement of the bargain made by a creditor and a debtor, after default. On the other hand, bankruptcy law, is focused primarily on giving an honest debtor a fresh start while treating all creditors equally.7 As the U.S. Supreme Court has stated, the general philosophy of the bankruptcy laws is “to give the [honest but unfortunate] debtor a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. A co-equal purpose of the bankruptcy laws is to promote equality of treatment among creditors similarly situated.” 8 Frequently, the goals of bankruptcy law cannot be accomplished without some modifications to the pre-

“Test test test

test jrklellllllllllll

During the real estate “boom” many Americans were given the opportunity to purchase homes, now those homeowners are finding out that they owe more on their properties then they are worth. Specifically, California led the nation during the housing boom with a median house price of $560,300 in 2007 which was more than double the average.4 The percentage of homeowners during this boom more than doubled and consequently it is those same homeowners that now have California leading the nation in the housing bust

lllllllllllllllllll.”


89 | LOYOLA JOURNAL bankruptcy debtor-creditor relationship. This is usually due to the inherent tension between the state law rights of creditors under mortgage foreclosure law and a bankruptcy law design to provide debtors with relief of such debts. It is no surprise that the intersection of these two bodies of law has conceived a considerable amount of decisional law. Many of these cases are efforts by the courts, primarily bankruptcy courts, to reconcile the state law rights of foreclosing secured creditors and the policies underlying these rights with the federal law rights of bankrupt debtors and their other creditors, often represented by a bankruptcy trustee.

4. BANKRUPTCY AND THE POWERS VESTED IN THE AUTOMATIC STAY All individuals residing in the United States have the right to file bankruptcy to alleviate the debts they have accrued up to the date of filing the petition. While bankruptcy isn’t a constitutional right, it is a matter that is placed under Federal jurisdiction by Congress. There are six types of bankruptcy listed under the Bankruptcy Code. The most common are Chapter 79 and Chapter 13.10 More importantly, when Congress enacted the bankruptcy Reform Act of 1978 to essentially modernize the bankruptcy code11, one of the most significant changes adopted in the reform act was to provide the debtor the right to trigger the automatic stay upon filing of a bankruptcy petition. This rule vested in section 362(a) of the Bankruptcy Code and undoubtedly created one of the most powerful tools for debtors. The automatic stay is especially advantageous to the homeowner-debtors who file for bankruptcy in order to prevent foreclosure. However, these provisions have created great difficulties for bankruptcy court’s presiding over the foreclosures, as judges are hard pressed with interpreting statutory language. In fact, court decisions regarding home

foreclosure problems are frequently inconsistent and many lenders as well as homeowners are often unsure about their respective rights. The courts’ role in the bankruptcy process is to strike a balance between conflicting external and internal goals according to the terms of statue. Moreover, the Legislatures role is to resolve these conflicting goals to the best of their ability. However, it appears that the reform has created many loopholes which have lead to abuses of the system. The automatic stay provides virtually any person with the power to invoke the broad injective power of the bankruptcy court without any of the showings normally required to obtain an injunction. For example, if a homeowner were to file for a temporary injunction in state court, they would be required to show the likelihood of success, the irreparable harm caused or they would have to post bond. However, by simply filling out a couple of documents, filing the bankruptcy petition and paying a filing fee the homeowner gets an automatic injunction, freezing the lenders rights instantly. The power – injunctive power – of the court given to individuals has led some debtors to abuse the automatic stay provision by filing bankruptcy petitions solely to delay foreclosures from taking place. As a result of two bankruptcy court decisions in the mid-1980’s12, until 2002 it was considered well-settled in many jurisdictions that if a bankruptcy filing was made before the debtor’s period of redemption under a foreclosure decree expired, the running of the redemption period would be stayed automatically under 11 U.S.C. § 362(a) upon the filing, until such time as the stay was modified or terminated. The main outcome was to give debtors the chance to extend the period for redemption by a bankruptcy filing, since a creditor would essentially have to file for relief from the automatic stay in bankruptcy --often a time consuming and costly process.13

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

Generally, the automatic stay remains until the debt is discharged, dismissed or relief is granted to a creditor by the courts. In most cases, the stay exceeds more than 30 days after a petition in a bankruptcy is filed by an individual14. Extensions can however be requested by a debtor and are usually granted. It is also customary to hold a meeting of creditors within a month for filing of the petition. However, many debtors abuse the system by not appearing for such meetings, thus causing an automatic extension of the automatic stay. These non appearances can usually delay and hinder the meeting of creditors and cause for several continuance until either a motion for relief is filed or the bankruptcy trustee dismisses the case. REMEDIES AGAINST THE AUTOMATIC STAY Many lenders are forced to expend both time and money in order to get out of bankruptcy and proceed with the foreclosure process. When a debtor files for bankruptcy for the sole purpose of obtaining the automatic stay to prevent a foreclosure, the court may grant relief from the automatic stay. Yet this process is costly and time consuming, as one must hire an attorney, file a motion, obtain a hearing date and have the motion heard before any action can be taken. In fact, most lenders either wait for the bankruptcy to be dismissed or discharged by the bankruptcy trustee or file for a motion for relief once they have had enough of the abuse. A motion for relief is essentially a motion that is filed with the court requesting that the court grant relief from the automatic stay. This enables the creditor to be freed from the bankruptcy and allows creditors to sell the property seven days after obtaining the order without re-noticing the debtor. The relief is instant, especially when there have been several postponements during the period of the automatic stay. The majority of the time, lenders must provide for grounds for relief. There are two grounds for relief: (1) the lender claims the security in the property is inadequate, or (2) the property has no equity and isn’t necessary for an effective reorganization.15 It is worthy to note that when a debtor files for bankruptcy he must do so in good faith. Thus, a bad


BANKRUPTCY DURING THE MORTGAGE MELTDOWN | LOYOLA JOURNAL | 90

faith claim could be an additional cause to getting relief granted. Although there isn’t a specific good faith requirement in the bankruptcy code, the courts have essentially created a judge made doctrine which have several facts where are indicia of bad faith.16

artists’ services and are often left without a home and with a record of unwanted bankruptcies. 17 More importantly, when Congress modernized its bankruptcy laws and added the automatic stay provision as part of the protection debtors receive, it failed to anticipate this type of misuse.

5. THE BANKRUPTCY SCHEMEFRAUD AND DECEPTION Many individuals in foreclosure have fallen victim to scam artists who have developed a scheme to postpone foreclosure sales by filing multiple bankruptcies. These individuals advertise themselves as loan modification consultants, mortgage experts and foreclosure services. In fact, for many years prior to the recent foreclosure crises, bankruptcy courts attempted to deal with abusive filings and victimization of individuals in foreclosures, however, the courts attempts were unsuccessful.

FRACTIONAL INTEREST TRANSFER SCAM Due to the recent foreclosure crisis, fractional interest transfers have become a very popular commodity for scam artist to use in order to delay foreclosures. Many individuals who obtain the services of scam artists allow interest in their home to be transferred to another individual. The interest that is transferred usually varies from 5 to 10%. In some cases, fractional interests were transferred to multiple people. The result thereafter is each individual takes turns filing for bankruptcy, causing delay upon delay to the foreclosure process.19 These delays allow the homeowners to live mortgage free for several months before action is taken by the court or lender to lift the automatic stay. The costs associated with these postponements

Many of these individuals who rely on these scam artists are misinformed, vulnerable homeowners suffering from serious financial setbacks. Moreover, these victims are charged fees for the scam

18

significantly impacts lenders who are not receiving payment on their loans and rather have to stomach each delay, causing them to incur advertising fees for each postponement and legal fees to file a motion for relief. These delays are presumptively abusive and against the law; yet it is very difficult to prove that bad faith delays have occurred as the court generally presumes “good faith” when a petition is filed. As one might assume, filing bankruptcy can significantly damage an individual’s credit history and FICO score20, leaving the obvious question of why would anyone risk filing for bankruptcy to protect another individuals asset? The answer varies depending on the relationship of the individuals and the incentives provided. Many individuals were either compensated monetarily or were in the same shoes as the homeowner up for foreclosure and were ultimately guaranteed that a separate third party would do the same for their property. In essence, these scam artists created a pyramid scheme. In many other cases the debtors appeared to be


91 | LOYOLA JOURNAL

homeless individuals who were paid $200 to allow themselves to be the subject of a voluntary petition or the debtors were individuals who already had bad credit.21

MULTIPLE BANKRUPTCY FILING SCHEME An alternative scam for many homeowners who do not feel comfortable transferring the interest in their property to another person in order to obtain protection from the automatic stay is for themselves to file multiple bankruptcies. Here, bankruptcy is filed by the same person or by related individuals on the title of the home in sequential order. Some of these serial filings have delayed foreclosure more than

a year. For example, in re Villarea, 46 B.R. 284 (bankr. C.D. cal 1984) the homeowner and his wife each filed for bankruptcy and filed a total of three petitions, causing the foreclosure to postpone for over a year. When relief from stay was granted the wife of the homeowner would file a separate petition invoking a new stay. A debtor can also file for bankruptcy and request several extensions from the bankruptcy court, and essentially delay the foreclosure for up to two months before a dismissal is filed. Furthermore, once the dismissal is filed, the debtor then has an opportunity to file the same petition invoking the automatic stay again until the bankruptcy court presumes abuse and sets a 180 day bar from filing. If a lender is aggressive, they will typically file for relief on the second or

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

third Bankruptcy petition filed by the debtor. Once relief is granted, however, the other individual on title, usually a wife or relative will also file for bankruptcy-thus starting the process all over again. In addition, many debtors file their petition delaying the auction process for about a month or two and just before the lender files for relief they voluntarily dismiss their case and renew their right to refile again. Unfortunately for lenders there is no blanket remedy against all individuals who hold an interest in title, so they must go through the process each time a petition is filed causing money and distress in this cat and mouse game. “CHAPTER 20” – MULTIPLE FILING Chapter 20 is bankruptcy slang for when a debtor files a chapter 7 case followed by a chapter 13 case, thus equaling 20.22 This type of bankruptcy filing is technically not prohibited by the bankruptcy code nor is it expressly allowed. Chapter 20 is, however, the most common pattern of multiple filings. Here, an individual files a chapter 7 cases


BANKRUPTCY DURING THE MORTGAGE MELTDOWN | LOYOLA JOURNAL | 92 and discharges as much debt as a chapter 7 allows. Debts generally include all unsecured monies owed to companies, such as credit cards. Once a discharge is granted, which usually takes three to five months on average from the date of filing the petition, the chapter 7 cases is closed. The individual then files a chapter 13 case which is a reorganization of their remaining debt. This allows the individual to pay off arrearage on secured debts, such as a home or a car. A chapter 13 case generally has a repayment plan allocated over three to five years. An individual is thus able to place all the delinquent monies owed to a lender into a chapter 13 payment plan stretching the automatic stay provision for three to five years, with a very few exceptions to the stay specified in 11 U.S.C. Section 362(b). 23 Unfortunately, in some jurisdictions, these types of abuses occur with increasing frequency. The bankruptcy code provides judges with very few remedies to stop multiple filing abuses, especially where parties or transferees of fractional shares in the property simply commence new bankruptcy cases to obtain automatic stays and stop foreclosures. JUDICIAL REMEDY There are only two sections of the bankruptcy code that discuss this type of abuse and bar multiple filings by individuals. Specifically, Section 109(g) and 349 of Title 11 of the U.S.C bankruptcy code. A third remedy available to judges and the courts is to deem the bankruptcy filing as “bad faith” filings. While the bankruptcy code does not expressly require a good faith filing, the courts are left to impose this requirement by looking at several determining factors.24 However, courts have had difficulty determining what is justified as good faith versus bad faith. Evidence of a debtor’s history of bankruptcy filings and dismissals is relevant with regard to whether a present case been filed in good faith. However, filing successive petitions is not per se bad faith.25 In fact, bankruptcy courts are very lenient and do not impose bad faith often to remain equitable and fair to debtors. Judges mostly use the Code discussed below to support their position of bad faith but have been reluctant to impose a strict policy. Some courts

disfavor deciding the issue early in the case and others favor confronting the issue early. Given the factors associated with the good faith requirement, one can assume leniency is given to debtors. Section 109(g)26 is another remedy that judges have within their powers. Section 109(g) prohibits the debtor from filing successive cases in certain limited circumstances and only applies to individuals, not corporation or partnerships.27 The express language of this section only bars an individual for 180 days; the window is therefore very short and can result in future filings and abuse by an individual. Yet while the courts have this power vested in them, it is not very effective and consequently judges rarely impose the 180 day bar unless they have found that the debtor willfully disobeying a court order or filed the application in bad faith. Furthermore, this section does not apply to individuals who voluntarily dismiss their cases before the lender/ creditor files the motion for relief from stay.28

not foresee the degree of abuse that some courts have witnessed from debtors of this decade. The result of the economic meltdown and the sub-prime mortgage crisis created a need for a coherent and consistent application to address the needs of lenders, homeowners and the bankruptcy courts. There are a record number of homeowners facing foreclosure, and there appears to be a groundswell of support from politicians, bankruptcy attorneys and consumer groups for a change to the bankruptcy code to deal with this issue. This portion of the article will discuss several viable solutions to the prevention of abusing the bankruptcy laws.

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

Section 34929 also deals with barring a debtor from getting a discharge in a later case. However, this section is lenient toward multiple filings because under the plain language of section 349 the fact that an individual’s earlier case was dismissed doesn’t “prejudice” the debtor from filing a subsequent case.30 Moreover, case law has urged that barring individuals with prejudice dismissal should only be used in extreme situations since the results are detrimental to the debtor.31 The end result of these judicial remedies leaves our justice system in a substantial predicament as abuse continues to rise and the remedies available are not adequate to deal with the issues of serial bankruptcy filers and abusers. 6. SOLUTIONS When Congress created the automatic stay protection it clearly did

IN REM ORDERS Prior to the 2005 bankruptcy amendments, in rem orders were a frequent mechanism used by lenders to thwart serial bankruptcy filers from abusing the automatic stay provision. In rem relief renders the automatic stay in any future bankruptcy cases inapplicable to the lender’s foreclosure of particular res, regardless of who owns the property or files the case. However, after the amendments took effect, in rem orders were practically abolished as courts were only allowed to provide for in rem relief in very limited circumstance. Observing the current abuse and bankruptcy process, it is apparent that revival and modification of an order granting in rem relief from stay would be an appropriate remedy when a debtor or transferee of a debtor serially files bankruptcy petitions solely to invoke the automatic stay. In rem relief addresses circumstances when the debtor is likely to invoke the automatic stay to frustrate foreclosure efforts through repeated filings, whether by the same or different persons. Rather than barring the debtor from filing a bankruptcy case in the future, the in rem remedy directly addresses abuse of the automatic stay by prospectively eliminating it with regard to the lender’s collateral even if there are future bankruptcy cases.


93 | LOYOLA JOURNAL Moreover, in rem orders would promote uniformity and certainty among the bankruptcy courts in the remedies used to address the problem of bankruptcy filings that abuse the automatic stay affecting all people.32 Currently, the bankruptcy code only allows for in rem orders in certain narrow circumstances.33 As a result, an expansion of in rem orders would be a viable option for judges to address the problem of serial filing. Modifying the bankruptcy code to allow judges to provide in rem orders would essentially grant relief to creditors and prohibit any party prospectively from using the automatic stay to prevent that creditor from enforcing its rights to foreclose.34 As we have seen in past cases, before the 2005 bankruptcy reform took place, these in rem orders were very effective.35 Amending the code or even local rules and enabling judges to have the power and discretion to issue such orders would thus be a positive step towards preventing future abuses by serial filers. LIMITATIONS & AMENDMENTS TO THE BANKRUPTCY CODE Another solution to limit serial filers from filing multiple petitions in bankruptcy court would be to amend several provisions of the Bankruptcy Code. Specifically, an amendment to the code could be adopted by Congress to put in express limitations on the number and/or frequency of bankruptcies a single debtor can have.36 This limitation has several pros and con in that it would limit the flexibility of judges but decrease the uncertainty about what is and is not allowed. Moreover, this limitation would increase uniformity nationwide and allow creditors some protection from a debtor abusing the process of filing multiple bankruptcies. Moreover, homeowners would still be allowed to file for bankruptcy but would be limited to a certain number of filings; they thus wouldn’t lose their opportunity, it would just be restricted. However, this limitation might not benefit homeowners as much as lenders since the restriction could result in more aggressive tactics by lending companies to pursue foreclosures at a faster rate, as remedies would be scarce to homeowners. Moreover, lenders would be less likely to mediate and negotiate with desperate

homeowners, resulting in the continued loss of their homes in conjunction with the foreclosure crises. CASE MANAGEMENT CHANGES As we all know, amendments by Congress are time consuming and difficult to pass by the Legislative Branch. However, if a process was created wherein the bankruptcy courts, including judges and clerks, were given authority to expedite reviews and dispositions of cases known to be potentially fraudulent, this would be a substantially effective tool. Since delay is the primary goal of the abusive foreclosure filings, proving quick relief from stay would reduce the incentive to file these bankruptcies.37 For example, once a motion for relief is filed by a creditor/ lender, a hearing would be set within a week in order to insure a quick result as to the relief sought (currently a motion for relief takes approximately one month to be heard).

cases and would likely be inundated with motions for relief, thus ultimately expanding the judge’s role as a regulator. The effect could cause court calendars to become clogged from filings. In addition, the clerks and the judges would have a greater burden and a difficult task attempting to decipher between who is a serial filer and who is attempting to file in good faith. While changing the procedure on case management seems cumbersome and difficult, it would be better than the current abuse that the courts are experiencing today. “CRAM DOWN” BANKRUPTCY – HYBRID You may have heard the term “cram down bankruptcy.” That refers to a provision only in Chapter 11 and Chapter 13 (Individual Debt Reorganization) bankruptcies that may allow a debtor to retain property securing a debt while paying less than the full remaining balance on the loan.38 Currently, the bankruptcy code only allows cram down for vehicles and investment properties. It does not allow cram down of mortgages on primary principal residence--i.e., you can’t cram down your home. If you want to keep your home, you’ll need to keep paying the mortgage. A viable solution to both the foreclosure crises and abusers of the bankruptcy system would be to either create a new chapter bankruptcy strictly dealing with foreclosures or allowing chapter 13 bankruptcy judges the right and power to cram down mortgages on primary residence. By creating a special chapter of bankruptcy a viable fix could apply to the mortgage crises and hasten a housing recovery system while protecting borrows and lenders at the same time. Judges would be allowed to reduce or “cram down” the balance of a mortgage securing a principle residence to the current property value, along with other rate and amortization term changes. By having the ability to modify the principle amount of the loan itself various fees and inflation would essentially be removed. Thus, in some cases, the loan amount owed would be reduced to its original

“Test test test

test jrklellllllllllll lllllllllllllllllll.”

Moreover, power and discretion could be given to bankruptcy court clerks to red flag cases that might be in bad faith, fraudulent or filed by serial filers that clerks would recognize. For example, if a debtor files for a second petition the clerk would flag the case for immediate review by a bankruptcy judge. Thereafter, the burden would shift to the debtor to prove his filing is not fraudulent. A judge would set an expedited hearing to determine the intentions of the debtor and would rule accordingly. Granting this type of power to clerks and judges would have both positive and negative impacts. The positive impact would result in minimizing the benefits of abusive filings by expedited review and disposition and thus reduce the amount of serial filings. In addition, expediting review would potentially speed up the court calendar in disposing of cases rather than having the cases sit until reviewed upon. Conversely, judges would have to hear several of these


BANKRUPTCY DURING THE MORTGAGE MELTDOWN | LOYOLA JOURNAL | 94 total. As a result this would mean that the debtor would benefit from having to pay off less over the years in an approved bankruptcy plan. Clearly not all creditors are happy with the idea of cram down laws, but if they are faced with a scenario where a debtor is filing bankruptcy and wants to keep paying on the loan, having the total “crammed down” is typically better than losing the loan payments altogether. In other words, crams down situations are often the lesser of two evils for the loan companies. Should a debtor default on a mortgage, the only way for the creditor to collect on the bad debt is to sell the home in a foreclosure and almost all foreclosures obtain a return far less than the value of the loan. Having the debtor continue to make payments instead, even on a principal amount that has been crammed down, is preferable to losing the payments altogether. In addition, even if a portion of the loan (i.e. a second loan on the property) is crammed down, the creditors would be able to recover a portion of the crammed down amount if the debtor has disposable income and has to pay a portion through a bankruptcy plan for roughly 3 to 5 years39. A bankruptcy reform to allow for cram down of primary residence would most likely reduce the amount of foreclosures and improve both home equity, affordability and increase loan modification, as it will likely put pressure on both lenders and homeowners to mediate. This reform is however based on a very big assumption that the bankruptcy courts are properly staffed with judges and clerks who can handle and have the knowledge to deal with an upsurge of filings and modifications.40 Moreover, we assume that close supervision by the bankruptcy trustee can be given to evaluate the debtor’s income and expenses in order to determine the amount crammed down. In 2009, a poorly drafted “cram down” bill was introduced by Congress, and as a result of its broad scope of powers the bill was not approved. Many critics claim that a cram down law would further destabilize home prices41 and

cause higher interest rates and fewer opportunities for consumers to buy homes. Yet given the current situation, bankruptcy courts appear to be the best forum to regulate and attempt to resolve this crises and curbing the abuse of serial filers by giving lenders a chance to recover more and at the same time allow homeowners an opportunity to save their homes; this seems to be a win-win situation. CONCLUSION After observing and evaluating the current bankruptcy process, it is clear that the presumption of abuse arising today is far greater than it has ever been in the history of the United States. While there isn’t an easy fix, or a perfect fix, Congress and the courts are left with a few reasonable options. Although none of the options are close to perfect they would serve both creditors and debtors far better than the current rules in place. A change is needed and if the change is not made soon enough the abuse will result in greater issues for both creditors and debtors as both will pay the price in the future. ENDNOTES 1. (UCLA Law Review 30 UCLA L. Rev. 637 Home Foreclosures under chapter 13 of the bankruptcy reform act). 2. (41 McGeorge L. Rev. 511 McGeorge Law Review 2010, Does Opportunity Knock? The California Foreclosure prevention act of 2009). 3. Id. 4. Id. 5. Id. 6. Id. 7. Vermont Bar Journal, Spring 2006 32-SPG Vt. B.J. 28 – Heavy traffic at the intersection of mortgage foreclosure and bankruptcy law 8. Local Loan Co. v. Hunt, 292 U.S. 234 (1934) 9. In Chapter 7, the debtor a second chance free from nearly all unsecured debts, but to get such a benefit, he or she must not earn enough to pay anything toward such debts a debtor surrenders his or her non-exempt property to a bankruptcy trustee who then liquidates the property and distributes the proceeds to the debtor’s unsecured creditors. In exchange, the debtor is entitled to a discharge of debt;. 10. In Chapter 13, the debtor retains ownership and possession of all of his or her assets, but must devote some portion of his or her future income to repaying creditors, generally over a period of three to five years. The amount of payment and the period of the repayment plan very from 3 to 5 years. Relief under Chapter 13 is available only to individuals with regular income whose debts do not exceed prescribed limits. If your monthly income is less than the state’s median income, your plan will be for three years unless the court finds “just cause” to extend the plan for a longer period. If your monthly income is greater than your state’s median income, the plan must generally be for five years. A plan cannot exceed the five-year limitation. http://www.uscourts.gov/FederalCourts/ B a n k r u ptc y / B a n k r u ptc y B a s i c s / C h a pte r 7 . a s px 11. Reforming the Bankruptcy Reform Act of 1978: An Alternative Approach. April, 1983 71 Geo. L.J. 1129 12. In re Shea Realty, Inc., 21 B.R. 790, 793 (bankr. D.Vt. 1982); In re LH&A Realty Co., 57 B.R. 265, 268 (bankr. D. Vt.1986) 13. Vermont Bar Journal, Spring 2006 32-SPG Vt. B.J. 28 – Heavy traffic at the intersection of mortgage foreclosure and bankruptcy law

14. http://www.uscourts.gov/FederalCourts/ Bankruptcy/BankruptcyBasics/Chapter7.aspx 15. (4 cal. Real est. subsection 10:150 3d ed. Miller and Starr California Real Estate 3d) 16. In re Chinichian, 784 F.2d 1440, 1445, 14 Bankr. Ct. Dec (CRR) 541, Bankr. L., Rep. (CCH) (9th Cir. 1986) 17. Symposium on Bankruptcy Reform 32 Loy. L.A.L Rev, 1063 18. In Rem Bankruptcy refilling bars: will they stop abuse of the Automatic Stay against Mortgages? 24 Cal. Bankr.J.3 19. Example: John is a homeowner and is up for foreclosure. John meets Scammer and Scammer has John execute a Quit Claim Deed to Andy, and Bill, giving each of them 5% ownership in his property. Thereafter, John files for bankruptcy and delays the sale for several months until it’s discharged. Since John’s case is discharge he cannot file bankruptcy again and is no longer protected by the automatic stay, so the foreclosure is valid again. However, since Andy now owns 5% ownership, he now files for bankruptcy and is protecting the home from foreclosure due to the automatic stay. Therefore, the lender cannot take action. Then let’s say the lender files a motion for relief from the automatic stay on Andy’s bankruptcy and obtains relief to proceed with the foreclosure, however, now Bill files a bankruptcy and starts the process over again. 20. FICO score is a credit score developed by Fair Isaac & Co. Credit scoring is a method of determining the likelihood that credit users will pay their bills. Scoring has become widely accepted by lenders as a reliable means of credit evaluation. ...www.ambermortgage. com/glossary.htm 21. Symposium on Bankruptcy Reform 32 Loy. L.A.L Rev, 1063 22. Is Bankruptcy a solution or a way of life: when are Multiple bankruptcies Permitted, when are multiple bankruptcies prohibited? 25 Cal. Bankr.J.104 23. Id. 24. Test for Good Faith a. a totality of the circumstances – used to determine whether a petition was filed in good faith. Requires that both debtor’s inability to formulate an effective plan of reorganization and improper motives for filing be shown to dismiss for lack of good faith, both objective futility and subjective bad faith. b. is the successive bankruptcy case consistent with or contrary to the policies of the bankruptcy code – there must be some relation between the bankruptcy case and the purpose the chapter was designed to serve. c. objective infeasibility is bad faith – even without multiple filings, the original bankruptcy case will be in bad faith where there is little or no prospect for reorganization or discharge. d. An improper motive for filing is bad faith even where reorganization is objectively feasible – When a debtor files a case with an improper motive, such as to frustrate a secured creditor to foreclose, the fact that reorganization might be objectively feasible will not save the case from being a bad faith filing. e. Unanticipated change in circumstances – existence of new creditors. 25. Is Bankruptcy a solution or a way of life: when are Multiple bankruptcies Permitted, when are multiple bankruptcies prohibited? 25 Cal. Bankr.J.104 26. http://www.law.cornell.edu/uscode/usc_ sec_11_00000109----000-.html 27. (g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if—(1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title 28. Is Bankruptcy a solution or a way of life: when are Multiple bankruptcies Permitted, when are multiple bankruptcies prohibited? 25 Cal. Bankr.J.104 29. http://www.law.cornell.edu/uscode/usc_ sec_11_00000349----000-.html 30. Is Bankruptcy a solution or a way of life: when are Multiple bankruptcies Permitted, when are multiple bankruptcies prohibited? 25 Cal. Bankr.J.104 31. In re Leavitt, the Bankruptcy Appellate Panel affirmed the bankruptcy courts dismissal of the debtor’s case with prejudice. Court found that Leavitt debtor committed bad faith in filing case solely to attempt to defeat a state court judgment. Moreover, the United States Supreme Court has held that there is no per-se-prohibition against serial chapter 7 and chapter 13 filings. 32. In Rem Bankruptcy Refi8ling Bars: Will they stop abuse of the automatic stay against Mortgages 24 Cal. Bankr. J.3, California Bankruptcy Journal 1998


95 | LOYOLA JOURNAL 33. (c) Except as provided in subsections (d), (e), (f), and (h) of this section— (1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; (2) the stay of any other act under subsection (a) of this section continues until the earliest of— (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied; 34. In Rem Bankruptcy Refi8ling Bars: Will they stop abuse of the automatic stay against Mortgages 24 Cal. Bankr. J.3, California cy Journal 1998 35. In re Bradley: An early reported abuse case from the Central District of California – In Bradley, debtor filed a chapter 13 petition three months after giving a third deed of trust on her home where the lender had begun foreclosure efforts because she never made a payment. This case was dismissed and when foreclosure again threatened, the debtor filed a second bankruptcy. The court dismissed the second case two months later. The debtor then filed again causing another delay for 3 months. Thereafter debtor filed a chapter 7 case, her forth bankruptcy filing. The secured creditor sought relief for the forth time and obtained a court order that enjoined the debtor from filing any subsequent bankruptcy petition for six months without courts permission. 36. 25 Cal. Bankr. J. 104 California Bankruptcy Journal 1999 37. Symposium on Bankruptcy Reform Loyola of Los Angeles Law Review 199, 32 Loy. L.A.L Rev, 1063 38. http://definitions.uslegal.com/c/cram-down 39. ( bankruptcy law reform – new tool for foreclosure avoidance (http:www.credit-suisse.com/ researchandanalytics) 40. ( bankruptcy law reform – new tool for foreclosure avoidance (http:www.credit-suisse.com/ researchandanalytics) 41. http://www.bloomberg.com/apps/news?pid=news archive&sid=aoyMWtlsj27A


BANKRUPTCY DURING THE MORTGAGE MELTDOWN | LOYOLA JOURNAL | 96

TestTeTest1  

test jihjhjkhjkhjkhjkhk

Read more
Read more
Similar to
Popular now
Just for you