LJ

ISSUE NO. 1

APRIL 2010 Distinguished Alumni

Robert Shapiro Class of ‘68

INSIDE THIS ISSUE Felony Murder Legal Industry

Preservation of Evidence Guantanamo Bay 

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Domestic Violence And More…

EDITOR’s NOTE

I

am delighted to welcome you to the first issue of the Loyola Journal. This is a landmark moment for the students that have worked hard to create this first issue, and Loyola Law School. Once again, we have demonstrated that Loyola Law students are leaders in their own right. In the summer of 2009, while in the process of researching some of the publications on campus, I noticed that students who wanted to submit an article did not always have a lot of leeway with regards to which topics they could research and publish. Instead, there seemed to be a somewhat limited scope of publishing opportunities that took advantage of the newest available technology. I reached out to my classmates with the proposition that we create our own journal to provide another medium by which students could pursue areas of research that they were truly passionate about. I received numerous e-mails and we soon formed a team of extremely talented and dedicated students who worked together to launch this journal. Without their hard work none of this would be possible so please take a moment to look at the names on the opposite page. Today, the Loyola Journal is the first digital law magazine run solely by law students at an ABA accredited law school in the State of California. Because we have focused on a digital platform, we are not limited by printing costs and can provide content rich material including full size photographs to a broader audience. And because we do not print our Journal we can definitely say that we are doing our part to be environmentally friendly! How is that for going green? In this issue we are pleased to present articles featuring a variety of the perspectives and indepth insights. Please keep in mind that the views expressed in these articles are not those necessarily held by Loyola Law School or the Journal. I hope you enjoy this issue and we look forward to providing you with more issues in the near future!

Paymon Khatibi Editor-In-Chief Founder

Shiba Etemadian Executive Managing Editor

Jennifer Weldy Chief Articles Editor

Katherine Lee Chief Articles Editor

Evelina Shpolyansky Chief Articles Editor

Brian Costello Communications Director

Tiffany Sorensen Events Coordinator

Paul McCullum Copy Editor

CONTRIBUTORS

EXECUTIVE BOARD

Drew Ferrandini Photo Editor

STAFF WRITERS

FACULTY ADVISOR Jorge Lopez Staff Writer

Eli Fink Staff Writer

Karl Manheim Professor of Law Loyola Law School

SPECIAL THANKS Victor J. Gold, Esq. Dean, Loyola Law School

Vlasta Lebo LLS Dean’s Office

Tom Nelson Director of Student Media, LMU

Mathew Riojas, Esq. LLS Student Affairs

Robert Shapiro, Esq.

LLS Graphics Department Judy Felz

If you have any questions, concerns or comments please email the editor at editor@loyolajournal.com You can also call or fax the editor directly via the numbers provided to the right. Disclaimer: Loyola Law School provides a forum for the dissemination of diverse viewpoints to promote the examination of important academic and social issues. This does not mean that Loyola Law School endorses those viewpoints.

LOYOLA JOURNAL 919 Albany St. Los Angeles, CA 90012 Phone: (949)291-0194 Fax: (310)626-8547 E-mail: editor@loyolajournal.com Web: www.LoyolaJournal.com

Mission Statement The Loyola Journal is a Loyola Law School Student Organization that will produce electronic publications (digital law magazines) dedicated to the advancement of legal knowledge and opinions in every area of law. The Journal is aimed at exploring and critically analyzing developing issues in the American legal system. Each issue of the digital law magazine features articles by Loyola Law Students.

Photo/Image Credits: Pages: Cover, inside cover, 6,7,25,26,27,28,30,31,32,33,34,35,36,37,65,74,75 (Original work by Drew Ferrandini); Pages: 8, 9 (Public domain– released by Nasa.gov); Page: 12 (Public domain– released by the Department of Defense. Photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy.); Pages: 16, 17, 38, 54, 55, 66, 67 (iStockphoto®) 

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Founded upon personal tragedy, it is our vision to conquer alcohol and drug dependence by turning the fear, grief and helplessness caused from this disease into awareness, compassion, and support. It is the mission of the Brent Shapiro Foundation for Alcohol and Drug Awareness to become the national leader in the fight against drug and alcohol dependence. To learn more about how you can help, please visit : www.BrentShapiro.org

Ta b l e o f C o n t e n t s

Closing Guantánamo: A Solution Found Within the Law of War Jorge Lopez

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Obligation Without Bounds: The Murky Waters of Preservation of Evidence Jennifer Weldy

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Distinguished Alumni Award: Robert Shapiro, Esq. Paymon Khatibi, Jennifer Weldy, Drew Ferrandini

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A Call to Action Regarding Obstacles Facing Immigrant Victims of Domestic Violence: A Review of the Inadequacy of the VAWA Legislation and How Advocates Can Better Aid Immigrant Victims Abused on U.S. Soil Evelina Shpolyansky

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Felony Murder: A Dinosaur Living in the Criminal Justice System Eli Fink

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Wanted: Legal Eagle Innovators Paul McCullum

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“Individual commitment to a group effort - that is what makes a te Vince Lom

Interested in joining? Wa Visit www.Loyo

eam work, a company work, a society work, a civilization work.” mbardi

ant to make a donation? olaJournal.com

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Closing Gu 8 | LoyolaJournal.com

THE BEAT GOES ON

uantánamo: a Solution Found Within the Law of War By: Jorge Lopez LoyolaJournal.com | 9 

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Guantánamo Bay

Closing Guantánamo: a Solution Found Within the Law of War By: Jorge Lopez Guantánamo Bay Under The Obama Ad-

it is precisely these detentions that pre-

ministration

vent President Obama from closing the fa-

The Guantánamo Bay detention facility

cility, as a quick closure would work

must close. After countless allegations of

against the “policy interests” of both the

torture, violations of due process, promis-

United States and justice. 3

es of closure, and headlines announcing detainee trials, the detention facility re-

So What Keeps Guantánamo Bay Open?

mains open. On January 22, 2009, Presi-

It has now been over a year since President

dent Barack Obama issued an executive or-

Obama issued the executive order. At the

der outlining the closure of Guantánamo

time, the order seemed like a hopeful and

Bay. At first blush, the order seemed prom-

well-received handling of the now infa-

ising. It called for a systematic review of

mous Guantánamo Bay detention facility.

all detainees, culminating in either 1) a de-

Since the order, Guantánamo Bay has made

termination of transfer or 2) determination

headlines of both a promising and trou-

of prosecution. 1 The order treads carefully

bling nature.

when addressing individuals with a history

ministration announced that it would try

of detention:

five Guantánamo prisoners, including the

In November 2009, the ad-

In view of the significant concerns

“mastermind” of the 9/11 attacks, in feder-

raised

both

al court in New York. 4 Following this an-

within the United States and interna-

nouncement, President Obama admitted

tionally, prompt and appropriate dis-

that Guantánamo Bay would not close by

position of the individuals currently

January 2010 – failing to meet the one -

detained at Guantánamo and closure

year deadline, promised when he signed

of the facilities in which they are de-

the Executive Order in 2009. Recently, the

tained would further the national se-

Associated Press reported allegations of

curity and foreign policy interests of

wrongdoing

the United States and the interests

three

of justice. 2

which were originally ruled suicides. 5 The

by

these

detentions,

surrounding

Guantánamo

the

detainees

deaths in

of

2006,

allegations involve government cover -up The executive order goes on to explain that

10 | LoyolaJournal.com

and mistreatment of prisoners, which, sad-

ly, have become common themes when dis-

war, and specifically, classification of the

cussing Guantánamo Bay.

detainees. 6 Before addressing the law of

These headlines underscore the need

war and how it applies to detainees held at

for immediate closure of Guantánamo Bay.

Guantánamo, it is imperative to visit the

So what keeps the facility open? The ad-

standards provided by U.S. criminal law.

ministration has failed to announce a clear

Much of the recent discussion sur-

answer to this question. It might be a

rounding Guantánamo Bay deals with the

handful of detainees whose detention in

prosecution of Khalid Sheikh Mohammed in

the interest of national security violates

civilian court. 7 U.S. criminal law authorizes

due process. It might be the problem

charging and prosecuting individuals for

posed by detainees who remain a threat,

terrorist

but have yet to commit a substantive

crimes, such as conspiracy and attempt, al-

crime. It might be that no solution address-

low prosecutors to charge those detainees

es the problems created by allegations of

who have yet to criminally act. Allowing

torture and mishandled military commis-

civilian courts to try terrorists legitimizes

sions. Although there is no quick fix, the

both the prosecution and conviction of ter-

administration currently has an option that

rorist held at Guantánamo Bay. U.S. trials

would

serve

to

acts.

Additionally,

inchoate

address

enjoy internation-

some, if not all of the legal

al legitimacy, evi-

barriers that surround the closure of Guantánamo Bay. So what keeps the facility

“U.S. trials enjoy international legitimacy, evidenced by the fact

denced by the fact that over 100 nations have extradi-

open?

Unfortunately,

the

that over 100 nations have

tion treaties with

Obama

administration

has

extradition treaties with the U.S.”

the U.S. 8 Moreo-

yet to provide a definitive

ver, actual trials

answer.

would

prove

a

vast improvement over the heavily critiU.S.

Criminal

Law

And

Federal

Trials

cized military commissions conducted dur-

Professor David Glazier, who has written

ing the Bush administration. At the time of

extensively on military commissions and

the Executive Order, about 240 detainees

the law of war, maintains that the law of

remained, some already cleared for re-

war addresses several issues concerning

lease. 9 f

Guantánamo detainees. Specifically, he ar-

Although criminal law and criminal

gues in Playing by the Rules: Combating al

trials legitimize the efforts against terror-

Qaeda Within the Law of War that part of

ism, it does not always provide a viable

the issue lies in the classification of the

source of authority to detain individuals

LoyolaJournal.com | 11 

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who are associated with terrorist networks. For example, criminal law does not allow the U.S. to hold potentially dangerous individuals who have yet to commit a substantive crime. Similarly, issues relating to the procurement of confessions and the collection of evidence will pose herculean hurdles for prosecutors. In fact, Susan J. Crawford, the convening authority on military commissions during the Bush administration, determined that Muhammed Al Qahtini, better known as “the 20th 9/11 hijacker,” was tortured while in U.S. custody. 1 0 Moreover, Crawford correctly stated that his testimony would never be allowed in a civilian court. Considering the limitations provided by U.S. criminal law, the law

Applying The Law of War

of war provides a legitimate means for pre-

A discussion of the law of war must start

ventive detention and subsequent prosecu-

with an exploration of the conflict. How

tion.

does the law of war apply to the “War on Federal trials are a legitimate means

Terror”? Simply put, it does not. For this

of prosecution when detainees have both

reason, a different classification of the con-

committed substantive crimes and when

flict is necessary. A better name for the so -

testimony has not been induced by coer-

called “War on Terror” is “The War Against

cive means. Because these trials would

al Qaeda and Afghanistan.” 1 1 Simply by re-

provide the greatest source of legitimacy,

classifying the conflict, one is able to begin

civilian trials should be the preferred op-

applying the law of war to the Guantánamo

tion when prosecuting Guantánamo detain-

detainees. In fact, the first step in legiti-

ees. While the administration has begun

mizing any preventive detention is to clear-

the process for trying detainees in civilian

ly identify the detainees. Applying the law

court, there remains a group of detainees

of war to al Qaeda, a non -state actor, is

who pose serious threats to national secu-

firmly rooted in U.S. history. As Professor

rity, but nevertheless cannot be tried, as

Glazier notes, the colonies expected the

they

substantive

law of war to apply to their efforts against

crimes. Here, the law of war provides a

Great Britain, and “the Supreme Court held

possible solution.

the law of war applicable to hostilities be-

have

yet

12 | LoyolaJournal.com

to

commit

tween the self -proclaimed Venezuelan re-

eclipsed by the many benefits provided by

public and Spain in 1820 although the U.S.

the law of war, namely, the ability to try

government had not recognized Venezue-

civilians who aid al Qaeda as criminals.

lan independence.” 1 2

Here, the U.S. finds a useful tool in com-

Just as the law of war has been ap-

bating al Qaeda, as classifying members of

plied to non-state actors in the past, the

al Qaeda as civilians rebuts the notion of

law of war can and should be applied to al

their recruits as soldiers and underscores

Qaeda. The next step in applying the law

the treatment of terrorists as criminals. 1 8

of war involves the classification of the de-

Categorizing the threat level of de-

tainees. The law of war recognizes the fol-

tainees was part of the review the Obama

lowing two legal classifications for individ-

administration announced in the January

uals involved in armed conflict:

combatants

and civilians. Scholars suggest a number of advantages that relate to the classification of al Qaeda as combatants. The most compel-

2009

executive

Classifying

“ Classifying detainees under

order.

detainees

under the law of war

the law of war would allow the U.S. to hold individuals it deemed serious threats while remaining true to its mission to uphold the interests of justice.”

would allow the U.S. to hold

individuals

it

deemed serious threats while remaining true to its

mission

to

uphold

ling reason is that the

the interests of justice.

law of war allows for

Ostensibly,

this

would

the preventive detention of combatants for

solve the problem of holding detainees

the duration of conflict. 1 4 Furthermore, de-

without charging them with crimes. How-

tention would not require a link to any

ever, the goal should not only be to hold

hostile act or demonstration of intent to

detainees, but to close the biggest symbol

commit hostile acts.

of illegitimacy surrounding “the war on ter-

15

Many Guantánamo detainees would

ror.”

likely not fall under the combatant desig-

Under

the

Obama

administration,

nation, as they were not detained on the

plans have been put on hold to move

battlefield. The law of war allows for the

Guantánamo detainees to U.S. soil. Some

detention of civilians who provide physical

call for the detainees to be placed in do-

support for the war effort.

mestic

16

A shortcoming

military

bases,

arguing

that

of this designation surrounds the fact that

“military brigs” provide security for detain-

the law of war would not allow the U.S. to

ees,

detain individuals who contribute financial-

against abuse guaranteed to U.S. military

ly to al Qaeda. 1 7 But, this drawback is

personnel charged and sentenced by courts

and

provide

the

same

protection

LoyolaJournal.com | 13 

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-martial. 1 9 While domestic military bases

Where We Stand Today And Where We

provide an appealing solution, the current

Should Go

administration’s plan to move detainees

The one-year deadline President Obama

involves the purchase of an Illinois prison;

announced for closing Guantánamo Bay has

however, this plan lacks funding and sup-

lapsed. Currently, the administration is an-

port from Congress.

Moving the current

nouncing a 2011 closing for the infamous

detainees is just one challenge that faces

detention facility. 2 6 Although the admin-

the current administration. The administra-

istration is beginning the process of prose-

tion must also focus on a legitimate court

cuting detainees in criminal court and

to try the remaining detainees.

sending a small percentage back to their

20

Matthew Ivey’s note, A Framework

countries of origin, or to any country that

for Closing Guantánamo Bay , supports the

will agree to take them, the detention fa-

creation of an Article I Homeland Security

cility remains open. Perhaps most im-

court. 2 1 Ivey maintains that the creation of

portantly, it remains an enduring symbol in

such a court would allow for the detention

the continual mishandling of detainees.

of those who have yet to commit a terror-

The remaining detainees must be

ist act, but “have the propensity to do

classified as civilian or hostile combatants

so.”

Furthermore, Ivey argues, the pre-

under the law of war, which allows for the

ventive detention would be analogous to

preventive detention of those individuals

the detention by U.S. Courts of “the in-

who cannot be charged with substantive

sane, child molesters, and people with in-

crimes. Military bases on U.S. soil prove a

fectious diseases” because of their poten-

viable option for housing the remaining de-

tial danger. 2 3 As discussed, however, the

tainees, as the purchase of an Illinois pris-

law of war provides the means to hold in-

on is unlikely to pass Congress and proves

dividuals deemed credible threats to na-

a costly venture. 2 7

22

tional security. As such, military tribunals

While the future of Guantánamo Bay

using the law of war remain the proper

remains unknown, viable alternatives exist.

court to prosecute the remaining detainees

Until the administration closes the facility,

who are not tried in civilian courts. More-

it will remain a staunch reminder of failed

over, the creation of specialized courts

domestic

would

invite

plagued the

the

same

scrutiny

and

foreign

policy.

that

Bush -era military commis-

sions. 2 4 Military commissions under the Bush administration were criticized for curtailing defendants’ rights and grossly disregarding the rules of evidence. 2 5

14 | LoyolaJournal.com

♦♦♦ Written by Jorge Lopez Questions? Comments? E-mail Jorge at Jorge.Lopez@loyolajournal.com

E n d N ot e s

1. President Barack Obama, Executive Order – Review and Disposition of Individuals Detained at the Guantánamo Naval Base and Closure of Detention Facilities, Jan. 22, 2009 at www.whitehouse.gov/ the_press_office/ closureofguantanamodetentio nfacilities/ 2. Id. 3. Id. 4. Anne E. Kornblut, Obama Admits Guantánamo won’t close by Jan. deadline, November 18, 2009, available at http:// www.washingtonpost.com/wp -dyn/ content/article/2009/11/18/ AR2009111800571.html 5. Questions raised on Deaths at Guantánamo , Associated Press, January 20, 2010, available at http://www.theaustralian.com.au/ news/world/questions -raised -on-deaths -atguantanamo -bay/story-e6frg6so 1225821376069 6. David Glazier, P laying by the Rules: Combating al Qaeda Within the Law of War , 51 WM. & Mary L. Rev. 9 78 (2009). 7. Terry Frieden and Chris Kokenes, Accused 9/11 plotter Khalid Sheikh Mohammed faces New York trial, CNN Justice, November 13, 2009, available at http:// www.cnn.com/2009/CRIME/11/13/ khalid.sheikh.mohammed/index.html 8. Glazier, supra note 6, at 970. 9. Susan Candioti, Six Guantanamo Detainees Released, CNN.com, January 17, 2009, available at http:/ /www.cnn.com/2009/ US/01/17/gitmo.detainees/index.html 10. Bob Woodward, Detainee Tortured, Says U.S. Official, The Washington Post, January 14, 2009, available at http:// www.washingtonpost.com/wp -dyn/ content/article/2009/01/13/ AR2009011303372.html 11. Glazier, supra note 6, at 988. 12. Glazier, supra note 6, at 989. 13. Id. at 997. 14. Id. at 1001. 15. Id. 16. Id. at 1019. 17. Id.

18. Id. at 1006. 19. Glenn M. Sulmasy, The Legal Landscape After Hamdan: The Creation of Homeland Security Courts, 13 New Eng. J. Int’l & Comp. L. 1, 15 (2006). 20. Charlie Savage, Plan to Move Guantánamo Detainees Faces New Delays , The New York Times, December 22, 2009, available at http://www.nytimes.com/2009/12/23/us/ politics/23gitmo.html? _r=2&hp 21. Matthew Ivey, Note, A Framework for Closing Guantánamo Bay, 35 B.C. Int’l & Comp. L. Rev. 367 (2009). 22. Id. at 374. 23. Id. 24. Matthew Purdy, A Nation Challenged: The Law; Bush’s New Rules to Fight Terror Transform the Legal Landscape, The New York Times, November 25, 2001, available at http://www.nytimes.com/2001/11/25/ us/nation -challenged -law-bush-s-new-rules -fight -terror-transform -legal landscape.html?pagewanted=1 25. David Glazier, A Self -Inflicted Wound: A Half-Dozen Years of Turmoil Over the Guantánamo Militar y Commissions, 12 Lewis & Clark L . Rev. 1 35 (2008). 26. Larry Margasak, Guantánamo prison may not close until 2011 , Associated Press, December 23, 2009, available at http:// www.washingtontimes.com/news/2009/ dec/23/gitmo -prison-may-not-close-until2011 27. Id.

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∞

OBLIGATION

WITHOUT BOUNDS The Murky Waters of Preservation of Evidence By: Jennifer Weldy

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Obligation Without Bounds: The Murky Waters of Preservation of Evidence By: Jennifer Weldy Spoliation exists, but it is often debatable whether

"duty required by law" or which kind of documents

the destruction of evidence is actionable. While ac-

are “adverse to their interests.” It is all too often

tionable spoliation is evident in cases where a de-

left to the client to determine whether a piece of

fendant

infamous

potential evidence will or will not fall within the

“smoking gun”, it is more often unclear. Unfortu-

scope of their obligation to preserve1, a task which

nately, many courts have refused to recognize what

even their attorneys have great difficulty decipher-

they label a “highly speculative” independent tort

ing.

intentionally

destroys

the

that would clarify and prescribed a specific remedy

Consider a large corporation that wishes to

to the harm caused. More concerning is the court’s

amend their document retention policy to reflect

persistent reluctance to address the issue consist-

specific obligations to preserve. The corporation is

ently in their opinions. This avoidance of developing

aware of recurrent instances in the course of busi-

a cohesive body of law with discernable precedent

ness where they may acquire documents that might

has presented endless complications, particularly

relate to potential third-party litigation. The corpo-

the dilemma which non-litigating individuals face

ration will never become a party to this litigation,

when contemplating their obligation to preserve

though it may become involved if served with a

alleged “evidence” to another party’s litigation, on

proper subpoena. If served, a duty to preserve

which this article will focus.

clearly attaches, and will often specifically innumer-

Though a better candidate for news coverage, the destruction of evidence often is not the

ate what exactly must be preserved. This is the ideal situation.

result of individuals acting in blatant disregard of

But as to be expected, that is rarely the

the law by intentionally destroying key evidence in

case. What happens in the absence of a relevant

another individual’s litigation for their own personal

court order? Does an obligation to preserve exist,

gain. Business clients generally seek counsel from

or can the corporation destroy these documents in

their attorneys to ensure they avoid such result, yet

line with their usual document retention policy,

sadly, these advisory opinions merely facilitate un-

without fear of falling into the realm of spoliation?

intentional spoliation. Of course, attorneys can easi-

And if they do run afoul of the law, what will they

ly point out any contractual obligation to preserve

be guilty of violating - a separate tort? Will this de-

certain documents that their client may be facing,

struction be a discovery violation, subject to appro-

but beyond that, attorneys attempt to explain to

priate sanctions under the Federal Rules of Civil

their clients the philosophical concepts of their

Procedure § 372? Or is it a criminal act?

18 | LoyolaJournal.com

The pursuit of an answer to these questions

pensive, and has traditionally been viewed as an

leads to a frustrating legal quagmire. There are at

undue burden on businesses3. A blanket policy to

least four options that the corporation might con-

retain all such documents would be both the least

sider. The first is the least risky, where a corpora-

efficient and most expensive option, and therefore,

tion retains all of the potentially relevant docu-

the least attractive.

ments. The second option is to rely on an informed belief that the parties can get the relevant material

They Can Get it Elsewhere!

elsewhere. The third, which carries the highest level

In some instances, corporations have been able to

of risk, is to destroy the documents in accordance

defeat charges of spoliation by showing that the

with their usual document retention policy. The

party litigating could have gotten the same evi-

seemingly safest solution

dence (often documents) else-

would be a fourth option:

where. But this is a risky op-

to seek case precedent to

Ultimately, the safest option when

tion, because for every case

assist with making a rea-

seeking to avoid charges of

holding that reliance on an al-

sonable estimate of the

document destruction would be to

ternate source of the evidence

proper conduct in a spe-

keep all documents that could be

was an acceptable defense,

cific situation, and hope

potential evidence in future

there seems to be many cases

the chosen case law is

litigation.

like Hudson Transit. In Hudson,

superior to that of op-

the court found that it was im-

posing counsel’s when

material that the corporation

the issue is raised in court. This article will consider

may have believed that the original records would

these four options in turn.

be available from the new business owner. In fact, the assumption in Hudson proved unwarranted,

Keep Everything, and Risk Nothing

since the litigant’s efforts to obtain the records

Ultimately, the safest option when seeking to avoid

from the new owner failed4. The court held that

charges of document destruction would be to keep

Hudson Transit had an obligation to preserve the

all documents that could be potential evidence in

maintenance records, and that their failure to do so

future litigation. But because of the highly specula-

was not mitigated by their unreasonable belief that

tive nature, and the exorbitant cost to a corporation

the documents could be acquired elsewhere.

to maintain all such documents, this may be an un-

The case law is simply not consistent enough

realistic option, especially for a large corporation.

to base a document retention policy on the as-

Particularly when considering the impact of elec-

sumption that the same information can be ac-

tronic discovery, questions arise as to retention of

quired elsewhere. Though the cost of sanctions in a

old Blackberries, computers, and hard drives in ad-

few cases may be more cost effective than option

dition to all documents in hard copy. Storage of

one, (keeping everything), the case law is still inde-

physical boxes of documents is astronomically ex-

terminate enough that few companies would be

LoyolaJournal.com | 19 

19



comfortable basing the corporate document reten-

turn out some of those documents were known to

tion policy upon this theory.

be potential future evidence.10 Even still, like option two, in a cost benefit

It’s My Prerogative – And I’m Destroying It.

analysis the risk of occasional and minimal sanc-

Courts have held that third parties have no inherent

tions might be worth the avoidance of the constant,

duty to preserve evidence which may at some point

excessive cost of document retention. Though non-

5

be useful to others . Absent some special relation-

tort remedies for third party spoliation do exist,

ship or duty to preserve, a contract, or special cir-

they are generally limited to monetary and con-

cumstance, the general rule is that there is no duty

tempt discovery sanctions, which are even further

to preserve possible evidence for another party to

limited by Civil Code § 2023 that there must be

aid that party in some future possible litigation

“misuse of the discovery process.”11 It remains

against a third party6. Furthermore, in Struthers Pa-

doubtful that third party spoliation prior to any for-

tent Corporation, the court held that a litigant’s dis-

mal discovery request could possibly qualify as

covery obligations “are not satisfied by relying on

“misuse of the discovery process.”

7

non-parties to preserve documents.” Cases like

Also in favor of a policy allowing routine de-

these suggest that parties in litigation cannot simply

struction of documents, without requiring sifting

assume that non-litigating individuals will preserve

through them considering what potential litigation

evidence in the absence of a subpoena.

might arise from each, is that no independent claim

Some courts have even gone so far as to

for spoliation of evidence exists under federal law.

specifically hold that absent a subpoena or court

However, federal courts may impose sanctions for

order, the corporation is free to dispose of their

discovery abuse under either the Federal Rules of

8

own property . In a third party spoliation matter,

Civil Procedure § 37 or, as the statute vaguely an-

Koplin v Rosel Well Perforators, Inc., the employer

nounces, their “inherent power”.12

destroyed his own property knowing that his em-

Furthermore, depending upon the jurisdic-

ployee was planning to use it in third party litiga-

tion governing the claim, third party spoliation may

tion. The court held the employer was not a wrong-

not even be recognized as an independent action

doer because, absent a specific duty to preserve,

under state law.13 A New York court stated:

the employer had the “absolute right to destroy his own property as he saw fit”.9

“We decline to recognize an inherently

But cases like Koplin appear to be the excep-

speculative and hopelessly circular cause of

tion, not the rule. Courts have sanctioned corporate

action for spoliation where, as here, the act

defendants when their corporate headquarters ne-

of spoliation was allegedly inadvertent, oc-

glected to establish a coherent, detailed document

curred prior to commencement of the un-

retention policy. A policy which simply allows the

derlying claim, and was committed by one

destruction of documents in the absence of a sub-

not a party to the underlying claim and with

poena will not suffice to avoid punishment should it

no relationship, and hence no duty, to plain-

20 | LoyolaJournal.com

tiff.”14 The ultimate existence of whether an inde-

The Time-Honored Tradition of Being Advised

pendent cause of action will lie for spoliation is de-

Based On Precedent

termined by state law, and is ever changing among

The last option is really an assessment of the prior

the states.

three options, a painstaking and careful creation of

Even if the jurisdiction governing the case

the best hybrid for a corporation’s needs. For the

does not recognize spoliation as an independent

corporate client that seeks advice, the answer sadly

tort, many recognize essentially the same tort un-

becomes no clearer that the corporation that chose

der traditional causes of actions, e.g., civil conspira-

one of the previous three options based on their

cy, fraud, breach of contract, or breach of duty of

comfort with the level of risk accompanying that

good faith and fair dealing. There are also statutory

option. The court has a twenty-plus year history of

punishments for obstruction of justice, potential

refusing to, or blatantly avoiding, rendering an an-

referral to bar associations for professional sanc-

swer to spoliation questions as it relates to third-

tions, and even criminal codes, such as California

party obligation.

Penal Code § 135, which states:

For example, while declining to issue preservation order to defendant's non-party affiliate that

“Every person who, knowing that any book,

had not even been served with a subpoena, the

paper, record, instrument in writing, or oth-

judge noted that “knowing destruction or disposal

er matter or thing, is about to be produced

of evidence in the face *of+ prospective litigation”

in evidence upon any trial, inquiry, or inves-

carries serious consequences including criminal

tigation whatever, authorized by law, willful-

prosecution.”15 But the risk apparently wasn’t seri-

ly destroys or conceals the same, with intent

ous enough to warrant simple placement of a

thereby to prevent it from being produced,

preservation order on a third party who, minus sub-

is guilty of a misdemeanor.”

poena or order, has no obligation to preserve evidence.

Ultimately, after weighing the above consid-

Though it would be optimal to believe that if

erations, a policy favoring destruction, while cer-

a judge issued a stern warning it would cause ethi-

tainly most economical and seemingly within the

cal behavior to prevail, it isn’t a realistic assump-

rights of the owner, is also the most perilous op-

tion, and certainly not one most attorneys would be

tion. Based upon the court’s previous sanctions on

comfortable with. As described in Cardoza’s Law

companies with flimsy document retention policies,

Review,

and the potentially grave ramifications of a finding of intentional destruction, a blanket policy that dis-

“*t+hough the literature is replete with

regards third party preservation obligations should

warnings such as ‘it is impossible to destroy

be avoided, even if that means creating a more

all of the copies of a particular document’

complex or costly policy.

‘rarely will a document-destruction effort

LoyolaJournal.com | 21 

21

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find all copies, computer records, or memo-

“The court reminds all parties of their duty

ries of the documents’; and ‘*d+ocuments

to preserve evidence that may be relevant

seemingly have nine lives.’ Somewhere, a

to this action. The duty extends to docu-

copy will linger.”16

ments, data and tangible things in the pos-

Such declarations offer rhetorical support

session, custody and control of the parties

for ethical behavior, not realistic risk assessment.

to this action, and any employees, agents,

The risk of being caught suppressing evidence clear-

contractors, carriers, bailees or other non-

ly depends on the particular type of evidence and

parties who possess materials reasonably

the particular circumstances of the case.

anticipated to be subject to discovery in this

The sad fact is that judges seem reluctant to

action. Counsel are under an obligation to

punish discovery violations once exposed, applying

exercise efforts to identify and notify such

the rules in creative ways to get around the issue of

non-parties, including employees of corpo-

spoliation. The message to litigators is mixed: se-

rate or institutional parties.”19

vere punishments exist for this most grave offense, though they will rarely, if ever, be levied upon the spoliator.17

Once again, the court notes the importance of preservation of evidence, yet fails to proffer any

In a case where the accused spoliator was a non-party, the Court found it sufficient to impose a

guidance on just what the extent of those obligatory bounds might be.

spoliation inference sanction and costs against defendant NTL Europe, and that no separate sanction need be imposed on non-party New NTL.

18

Legislative Assistance

In this

The lack of a cognizable standard regarding the ex-

case, NTL Europe had created a new business enti-

tent of preservation obligation on third parties has

ty, (creatively named “New NTL”) and attempted to

not gone unnoticed. On multiple occasions, laws

avoid sanctions with the imaginative argument that

have been proposed that would automatically im-

the new corporation no longer had possession of

posed a duty to preserve, such as that envisioned

the documents belonging to “an old corporation”,

by House Bill 2432.20 While this particular bill failed

which was actually party to the lawsuit in question.

because it would have substantially infringed upon

Rather than create valuable precedent for future

the third party's own property rights by requiring

litigants to rely, the Court deliberately avoided the

preservation of evidence simply because it might be

issue, and let the alleged spoliator slip by on a tech-

of use to others in pending or future litigation,21 it

nicality.

did have its positive aspects. The bill was extremely

In a particularly disappointing decision, the

detailed, and set precise standards, definitions, and

court brazenly and succinctly stated that they

remedies to the obligation to preserve and the con-

“anticipate future clarity in a pending appellate re-

sequences of failure to do so.

view of a similar matter.” Unbelievably, the court went on to add the following admonishment:

Eventually, the legislature may provide a starting point for clarification. If a statute is enacted that defines the scope of obligations for preserva-

22 | LoyolaJournal.com

tion, then case precedent can be created regarding

whose attorney can better craft the malleable case

interpretation and meaning, and over time, a true

law into proving his client’s argument.

standard can be developed. ♦♦♦ Written by Jennifer Weldy Questions? Comments? E-mail Jennifer at Jennifer.Weldy@loyolajournal.com

Conclusion Even if the legislature recognizes the need for a clear standard and takes the first step towards remedying this problematic body of law, the courts will still need to break out of their pattern of avoidance

1.

and write opinions which clarify and articulate spe2.

cific rules that will guide this business decision. As it stands now, the choice of what to do with potential evidence is up to individual company. Since business decisions often hinge on how much risk and exposure are you willing to take in return

3.

for lowest cost, the result of the lack of boundaries on preservation obligations as they relate to non-

4.

litigating parties has left drafters of corporate document retention policies in the undesirable position

5.

of navigating murky and conflicting case law. The absence of a cohesive body of law leaves corporate attorneys no choice but to meticulously research the ever-changing case law of the corporation’s ju-

6.

risdiction, yet ultimately renders them unable to even remotely gauge the risks that each option exposes his client to.

7.

Until courts either clarify or allow a specific separate cause of action, the unfortunate result remains: boundaries of obligation to preserve do not exist, and the case law is in such disarray that there is no reasonable estimate of risk. In situations where material evidence has been destroyed, and a corporation’s document retention policy (or lack thereof) is challenged, the victor is not decided by the rule of law. The corporation’s guilt and degree of punishment will arbitrarily ride on which side has retained the superior legal representation, and

End Note K. Mann, Defending White Collar Crime: A Portrait of Attorneys at Work, Yale University Press, New Haven, 108-11, 120-22 (1985). F.R.C.P. § 37 governs parties’ failure to make disclosures or to cooperate in discovery, and articulates the appropriate sanctions for failure to do so, such as designating facts to be taken as established as prevailing party claims, to dismissing the action or proceeding in whole or part. See Cedars-Sinai Med. Ctr. V. Superior Court of Los Angeles County, 18 Cal.4th 1, 17 (Cal.Supp.App. 1998). Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991). Pirocchi v. Liberty Mut. Ins. Co., 365 F.Supp. 279, 283 (D.C.Pa. 1973). (Duty arose because defendant affirmatively took possession of the evidence for the purpose of investigating a civil action by plaintiff against manufacturer and others). See Parker v. Thyssen Min. Const., Inc., 428 So.2d 615, (Ala. 1983). (Court found no independent duty on the part of employer to preserve evidence for an employee’s potential civil action against third parties). Struthers Patent Corp. v. Nestle Co., 558 F.Supp. 747, 765 (D.N.J.1981).

8. See Koplin v. Rosel Well Perforators, Inc. 241 Kan 206 (Kan. 1987). 9. Id. 10. Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 123-26 (S.D.Fla.1987). 11. Code Civ. Proc., § 2023(a). 12. Cloud v. ABC, Inc., 2001 WL 1622250, 5 (S.D. N.Y. 2001); See generally Marzen & Solum, Discovery Sanctions, in Destruction of Evidence 65, J. Gorelick, S. Marzen, & L.Solum, (1989). 13. California does not recognize a claim for intentional spoliation by a third party who is not involved in the lawsuit in which the evidence would be relevant, (Temple Cmty. Hosp. v. Superior Cozurt of Los AngeLoyolaJournal.com | 23



23

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14.

15. 16.

17. 18. 19. 20. 21.

les County, 20 Cal.4th 464, 478 (Cal. 1999) or even by a party, for that matter. (Cedars-Sinai Med. Ctr. V. Superior Court of Los Angeles County, 18 Cal.4th 1, 17 (Cal.Supp.App. 1998). Metlife Auto & Home v. Joe Basil Chevrolet, Inc. 753 N.Y.S.2d 272, 282 (N.Y.A.D. 4 Dept.,2002), citing Temple Community Hospital v. Superior Court, 976 P.2d 223, 233 (Cal.1999). Asset Value Fund Ltd. Partnership v. Find/Svp, Inc., 1997 WL 588885, 1 (S.D.N.Y. 1997). See Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, Charles R. Nesson,13 Cardozo L. Rev. 793, (Nov. 1991). Id. In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 198 (S.D.N.Y. 2007). Id. See House Bill 2432. Id.

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24 | LoyolaJournal.com

The Fritz B. Burns Academic Center

LoyolaJournal.com | 25 

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DISTINGUISHED ALUMNI AWARD

Robert Shapiro, Esq. LoyolaJournal.com | 27

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27

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By: Paymon Khatibi, Jennifer Weldy and Drew Ferrandini

Loyola Journal Distinguished Alumni Award From left: Paymon Khatibi, Robert Shapiro, Jennifer Weldy The recipient of this year’s Loyola Journal Distin-

he knew he wanted to be a trial lawyer. He believed

guished Alumni Award is Robert Leslie Shapiro,

being in the courtroom would be exciting, and

class of 1968. The Distinguished Alumni Award was

something that he would enjoy. Though a career as

established by the Loyola Journal to recognize

prosecutor never held much appeal, Shapiro got his

alumni for distinguished personal and career ac-

start clerking in the District Attorney’s Office, know-

complishments, and for exemplary contributions to

ing it would be a good opportunity to see the inner-

society that bring credit to Loyola Law School.

workings of a courtroom.

Robert L. Shapiro received his law degree

The transition to criminal defense work was

from Loyola Law School in 1968, and was admitted

easy, as he was already in the criminal courts.

to the California State Bar in 1969. He is interna-

Shapiro’s first high-profile case was the defense of

tionally known for his work on notable cases such

Linda Lovelace, the first porn star to gain celebrato-

as the defense of O.J. Simpson, Zhang Hongbao,

ry status. When a reservation in Las Vegas was sus-

Linda Lovelace, Darryl Strawberry, Johnny Carson,

piciously changed, and the metro squad found large

and Christian Brando, just to name a few.

amounts of cocaine in the room with her, Shapiro

Shapiro is perhaps best known for his high-

got a call from one of Lovelace’s friends to repre-

profile criminal defense work. Even in law school,

sent her. The case turned on illegal search and sei-

28 | LoyolaJournal.com

zure, and Shapiro was successful in getting the case

activities that I participated in. I was involved in a

dismissed. The Lovelace case garnered a lot of pub-

lot of the social and political things at UCLA. In law

licity at the time, and became the catalyst for

school, the first year was a real grind. There was a

Shapiro’s work in subsequent high-profile cases.

huge change for me. I really was one who would cram in college, assimilate lots of material in a short

The Interview

period of time, which served me well as a trial law-

Nestled between Avenue of the Stars and Constella-

yer. But it didn’t serve me well in the first year of

tion Blvd, the trip to Shapiro’s office was fittingly

law school, I didn’t have a shot.”

climatic. The drive takes one past Fox Plaza, a local film and whose 34th floor penthouse was once oc-

Q: What would you say was your defining moment in law school?

cupied by former President Ronald Reagan.

“Probably when I was named Chief Justice of the

Shapiro’s office is located right down the street at

Moot Court. That was definitely a highlight because

Constellation Place, also known as the MGM Tower,

I was the last person admitted to my class in 1965,

headquarters of the historic Hollywood studio.

and to come out on top, that was really something

A tanned older gentleman with a warm, genuine

that was important. And then, along the way, I got

smile approaches and welcomed us into his office.

two of the American Jurisprudence Awards for

Shapiro is a graceful host, gesturing at the chairs

*earning the highest grade+ in the class.”

landmark that was the setting of the first Die Hard

and couches surrounding the coffee table. The walls of his corner office are not covered in awards or paintings, and pictures of his family. The office re-

Q: What were you doing when you weren’t studying?

flects his personality—welcoming and personable.

“ That’s pretty much what I did, really, for the first

We sat down with Mr. Shapiro and began our inter-

two years. I did not work and I just focused on the

view with questions about his time at Loyola Law

course curriculum and just studied. The third year

School.

was much more relaxed. “

aggrandizing magazine articles, only a few oil

Education Q: What was your law school experience like? “Mostly, my law school experience was basically studying. It was a full-time job for me.”

Q: Do you think that grades really matter more than involvement or work experience while in law school? “Well, you know at that time Loyola was not viewed as one of the top schools in the area, and so people where not getting jobs at major law firms and that’s

Q: Was your first year of law school terrifying? “Yes. In college there were a lot of extracurricular



29

almost a recent, in the last decade or so, phenomena. Loyola has come into as its own, as being a place where academic lawyers come out of. But it



LoyolaJournal.com | 29

was always known for trial lawyers, which is very unique. So in my last year I clerked with the Los Angeles District Attorney’s Office. “

Q: What would you say you took away from Loyola that helped you the most in your career? “I think being disciplined to be able to really focus, and Loyola was very competitive then, there was a high dropout rate. It really caused me to really buckle in, to really be able to focus and to really be able to learn how to assimilate very large amounts of information in a short amount of time, which is what you have to do for trial.”

30 | LoyolaJournal.com

Q: As someone who didn’t grow up wanting to be a lawyer, how did you remain so committed to something you were necessarily infatuated about becoming? Was it the same in undergrad? “No not really, in undergrad, the first two years, I kind of thought school was a place to have fun rather than be real serious about anything, and then after that third and fourth year, which was actually my fourth and fifth year, because I decided that one year I needed a break from school, I decided if I’m gonna really do something I better really buckle down and study and hit the books. The first two years at UCLA, actually entered UCLA as a predental major, if you’d believe that, and then they

gave me a piece of chalk and said carve out a tooth.

public attention at times so there are a lot of people

I am not very handy with my hands at all, and the

watching and it creates a bit of butterflies in your

chalk didn’t look like a chalk when I was done and it

stomach. “

certainly didn’t look like a tooth. And I had two courses which I really didn’t have anything in comel. So that was the end of being a pre-dental major,

Q: Is they any advice you would give to students who want to become trial lawyers?

very quickly. That lasted one semester, that’s why I

“First, and foremost to develop as many people

dropped out, because I would have never passed

skills as you can. I think that’s more important than

the courses.”

knowing legal aspects of the law, the technicalities

mon with, physics and chemistry on the college lev-

of the law. When you are in trial I think to be able

Q: How does the rush you get in court relate to your experience in mock trials?

to simplify things, to be able to tell a story so jurors

“There is a lot more pressure, especially if you are

the jurors trust you, so that you’re not there just as

doing a high profile case. Cases I do tend to attract

a hired guy, to present a side of the story because

could relate to them, and also to have credibility, so

LoyolaJournal.com | 31 

31

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you are getting paid for it, and that you don’t believe in it, then you lose your credibility. As far as learning the law, you know most people who go to law school, know the law, if you pass the bar you get the law, otherwise you don’t become a lawyer, especially in California where the qualifications are so hard, but in trial its really like being a salesman, you really have to sell yourself and then you have to sell your client.”

Q: If you were given a chance to go back to law school…. “No! No! I’m not going back to law school! *Laughter…+ I’m not taking any more tests, that was my vow once I took the bar!”

Q:Did Loyola or the DA’s Office prepare you to be a trial attorney, or is that something you learned after school? “I learned it unfortunately after school, with my feet held to the fire, there was one trial course we had but it was really more appellate advocacy than trial advocacy. The second thing is that the next year I was the Chief Justice of the Moot Court and that was really a really a kick because then I got to contact judges around, both federal and state judges , got to meet them, that was a really fun experience. “

Q: Is being a trial lawyer something you just get thrown into, or what are some things students can do to prepare for being a trial lawyer? 32 | LoyolaJournal.com

“I think it’s a skill you can learn. A skill that can be taught. I think it is something that would be very very important to teach people early on rather than. Every other profession has hands on experience, lawyers don’t. Lawyers learn how to think like lawyers and then they have to get practical experience in order to be able to practice like lawyers. And, I think specially on the trial side I judge some moot court competitions, even at the HS level, and some of these kids are beyond comprehension, I mean they spend the year learning a case and they become fantastic at the case. I think it’s something that’s really really important in law school.”

Q: A lot of students and new grads find themselves very nervous when they appear in court, is that something that you think every lawyer, including very suc-

what did you do about it? “I think in every case you have that, criminal cases especially are like roller coasters. First of all when you come into them, every case looks great from a prosecutors point of view on paper, otherwise they wouldn’t file them. The proof is that they have a 90+% conviction rate so they are right most the time, so coming in we are as defense lawyers the heavy under dogs in any single case. And you always have to expect the unexpected. And the cases have twists and turns like you can’t imagine and can’t contemplate no matter how well prepared you are there is always going to be things that come up unexpected. It’s not like a civil case were you have depositions, interrogatories, and by the time you walk into court you know every word that somebody is going to say on that witness stand or

cessful trial lawyers, have experienced? Do you take that as you weren’t made for this?

at least you should if you’re a prepared lawyer. In a

“If lawyers are really honest, no matter times you’re

ports, in fact in federal court you have very limited

in court, every time I go to court for a jury trial,

discovery so a lot of it spontaneous, you’re hearing

there is great anticipation, great anxiety, and not

it right as it comes out so sometimes it’s really good

nerves per se, because I am very well prepared, but

and sometimes it’s really devastating. “

criminal case you have no deposition no interrogatories, sometimes we have very limited case re-

more anxiety about doing it right, about relating to the jury immediately, first thing is the voir dire of

A Day in the Life of Robert Shapiro

the jury, getting up and talking to twelve strangers

We asked Mr. Shapiro about a day in his life now,

and representing yourself. There is, it is to some

after all the success he has enjoyed.

degree nerve racking initially, anyone who does

He laughed, “What day of the week?”

public speaking will tell you the same thing. When

His schedule varies depending on whether he is in

they walk up there is an anxious moment. And then

trial or not. As a named partner of the firm, he

you get into the flow of it and then hopefully it goes

doesn’t have to keep regular hours. Shapiro likes

away.”

staying late, usually leaving the office around 7:30

Q: Was there a time in any case that you said “Oh my god, this is horrible!”, and

or 8 o’clock--it’s quiet then, there are no phone calls, and it is easier to get work done. Shapiro is currently working on consolidating his

LoyolaJournal.com | 33 

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cases. This has allowed him to focus on the disputes

people have tried to come in, but nobody does as

he finds the most interesting. “I like civil cases--

many documents as we do, and I don’t think any-

important civil cases,” said Shapiro, “with an eye

one does it as well.”

towards coming to quicker resolutions so that peo-

Shapiro also dedicates a lot of time to his

ple do not need to exhaust tremendous amounts of

charity, The Brent Shapiro Foundation. Named for

money to get a result that they are comfortable

his late son, it is easy to see why Shapiro describes

with.”

the foundation as “my real passion.” On the evenProviding people with affordable legal pro-

ing of October 9, 2005, Brent Shapiro, an honors

tection has always been important to Shapiro.

student at USC, overdosed on mixture of ecstasy

Fueled by an entrepreneurial spirit, Shapiro capital-

and alcohol. Brent died the next morning.

ized on the opportunities presented by his fame

The Shapiro family created the foundation

presented in the wake of the Simpson case to be-

to honor Brent’s life, and create awareness about

come a founding member of Legal Zoom.

this disease of chemical dependence. The topic is

Shapiro now spends a few days out of every

obviously close to heart, Shapiro sits forward in his

week growing that business. Legal Zoom was the first company that allowed average consumers to easily create their own legal documents over the internet. It began with two lawyers, Brian Liu and Brian Lee, who were UCLA law school graduates, and an internet guru from Yale named Eddie Hartman. They contacted Shapiro, and discovered they all had a similar mission. “We started in an office, the four of us, and three used computers.” said Shapiro recalling the early days of his venture. “We thought we could break even if we did 40 wills a month. I was able to get a lot of publicity because it was a unique concept: people could prepare their own legal documents with the help of our software at an afforda-

Shapiro showing us the promotional poster for a boxing match with Dan

ble price. The idea being that the majority of peo-

chair as he talks about his cause: “All of us knows

ple, even today, don’t have wills or any type of legal

somebody who is alcohol or drug dependant… it’s

documentation, people don’t form corporations

universal, it’s not black, it’s not white, it does not

because it’s too expensive… It took off and grew.

affect the rich or the poor, it’s not smart or dumb,

And it is now the leader in the industry, a lot of

its everywhere; it’s the big shameful secret in

34 | LoyolaJournal.com

America.”

ties of his charity foundation, it’s not surprising that

But he does see a way forward, “The first

Shapiro enjoys his recreation time. Although the

goal is awareness,” said Shapiro. “That this in fact is

exact form of recreation did surprise us--Robert

a disease.” With this awareness, Shapiro hopes that

Shapiro is an avid boxer. Standing next to a large oil

people will be more willing to come forward and

canvas of a boxer towering over his fallen oppo-

seek treatment without fear of the stigmatizing la-

nent, Shapiro tells us that three times a week he

bel: “drug addict.” But the danger is not just from

skips eating lunch in favor of pugilism. We were intrigued…

Q: I didn’t picture you as a boxer, you seem so calm! That’s

exactly

why

I’m

calm

*laughter+… *He pulls something out from behind the sofa; it’s a promotional poster for a boxing match, the fight card: Robert Shaprio v. Danny Bonaduce.+ Shapiro is escorted into the ring by Mike Tyson

“This was for real. This was an out and out fight; I broke his nose in

illegal drugs, alcohol dependence can

the third round.

be just as destructive. A risk Shapiro believes is especially acute for young

Q: Is there any way we can see this

people in high-stress environments like

fight?

law schools, “The competition is overwhelming, to be at the top of the class,

I wish, you know I’ve been looking for it.

so you can even get an interview at a

nny Bonaduce

law firm is unimaginable today,” said

Q: Who won the fight?

Shapiro. “So it seems very clear to me--

Actually I won, but then the promoter came up and

it’s a legal substance, it’s easy to ob-

said you both did such a good job why don’t we call

tain, its socially acceptable, nobody is

it a draw. Although he had a broken nose and I did-

going to get on you because you’re drinking, and

n’t. I’ve been boxing for 20 years.

unfortunately there are some people who start this binge drinking, and it becomes a lifelong problem.” With all the challenges of his law practice, the demands of his businesses, and the responsibili-

Q: If you could box anyone, who would it be? Who’s your favorite boxer? I wouldn’t want to box anyone… my favorite boxer

LoyolaJournal.com | 35 

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is Muhammad Ali, he is rightfully the greatest, but

my best skill.” While it may be his best skill it is cer-

there is always a crop of boxers. Right now Floyd

tainty not his only, Robert Shapiro is an entrepre-

Mayweather looks like he is the best. There is also

neur, a trial attorney, a philanthropist, a boxer, a

Manny Pacquiao, who trains in the same gym I train

family man--and as we came to find out—a dancer.

in. He trains in with Freddie Roach. Every era has its boxers. The talent and skill that boxers have is absolutely incredible, I think they are the greatest athletes around.

Q: Thank you for your time Mr. Shapiro It was my pleasure, we finished right in time, I have a Brazilian Tango class that starts very shortly.

Q: Brazlian Tango?! Yes! We walked into the elevator and pressed the button for the lobby. As soon as the doors closed conversation immediately turned to our impressions of the interview. It felt inspirational to meet an alumnus of Loyola Law who achieved such an incredible level of success. But perhaps more striking than Shapiro’s success was that the man himself did not fit our expectations of a “famous trial attorney.” His manner was calm and thoughtful. His interests as diverse as his career. His office decorated mostly with pictures of his family. And even though we came with four pages of meticulously-worded, sequential questions, after a few minutes the interview felt more like a conversation with a friend. Shapiro has a unique ability to put people at ease within a few moments of meeting him. An ability that has defined him as an attorney, “I have a very good comfort level with people and I get along with people really well. I think that comes across in the courtroom,” said Shapiro, “I think is

36 | LoyolaJournal.com

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♦♦♦ Written by Paymon Khatibi, Jennifer Weldy and Drew Ferrandini. Questions? Comments? E-mail: editor@loyolajournal.com

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This image (or other media file) is in the public domain because its copyright has expired. Description Grandville Cent Proverbes page69.png Grandville : Cent Proverbes Date 1845(1845) Source H. Fournier Éditeur, Paris, 1845. Author Granville (Jean-Ignace-Isidore GÊrard) Permission (Reusing this file) Public Domain

A Call to Action Regarding Obstacles Facing Immigrant Victims of Domestic Violence: A Review of the Inadequacy of the VAWA Legislation and How Advocates Can Better Aid Immigrant Victims Abused on U.S. Soil Evelina Shpolyansky

An estimated 30.4% of all women in the United

of the formal legal system are prevented from ac-

States are physically abused by a husband or male

quiring, or even seeking, substantive justice. Due to

co-habitant at some point in their lives.1 The Depart-

various formal and informal barriers, hundreds of

ment of Justice has reported that more than one in

thousands of people are not able to obtain the

three women who seek care in emergency rooms for

same protection under the U.S. law. Some of the

violence-related injuries are victims of domestic vio-

most vulnerable individuals who are unable to uti-

lence.2 One third of women who are murdered die at

lize the legal system are immigrant women.7 Within

the hands of husbands or boyfriends.3 A survey con-

this legally defenseless population, those who are

ducted by AYUDA reveals that 31% of the battered

also the victims of domestic violence prove to be

immigrant women reported an increase in abusive

the most in need of protection.

incidents after their immigration to the United States.4

The study of abused immigrant women is an important case of analysis because these individuals lack legal standing as citizens – and are thereby ex-

Introduction

ternal to the U.S. legal system. By specifically stud-

For many, America is a land of established rights

ying the situation of immigrant victims, this re-

and infinite opportunities. Though this may be true

search turns to the analysis of a group who are

for American citizens5 and permanent residents

most in need of legal action due to their vulnerabil-

who fall under the protection of the U.S. Constitu-

ity and isolation from all things American. Because

tion, America is also home to hundreds of thou-

they experience severe emotional, mental, and

sands of legal and illegal aliens who are not granted

physical harm while on U.S. soil, many commenta-

these Constitutional rights and protections. Thus,

tors put forth that these women should be provided

even though the Constitution extends the funda-

with substantive justice from the U.S. legal system.

mental protections in the Bill of Rights to all people

Part I addresses the treatment and abuse of

residing in the U.S.6, many people who are outside

women in the American society and the evolution

LoyolaJournal.com | 39 ďƒ?

39

ďƒ‘

of anti domestic violence legislation. After looking

to aid this vulnerable population. The second ques-

at today’s legislation and by briefly analyzing the

tion addresses the types of social circumstances

development of the formal legal system as it per-

under which immigrant victims can overcome bar-

tains to victims of domestic violence, this research

riers and obtain the necessary aid. The third ques-

focuses on how the 1994 Violence Against Women

tion addresses the types of actions advocates of

Act (VAWA) aids immigrant victims of domestic vio-

immigrant victims of domestic violence can take in

lence. Not only does the VAWA provide immigrant

order to provide better aid. Collectively, Part III

women with a formative legal claim against their

aims to better understand the effects and the ac-

abuser, the Act grants victims the opportunity to

cessibility of the formal legal system, and to deter-

petition for U.S. citizenship without the support of

mine under what social conditions these immigrant

their husband and solely due to their status as vic-

victims are better able to access the legal system

tims. However, in an attempt to access the reme-

and social services, as well as what further actions

dies provided by the VAWA, these victims encoun-

advocates can take. Part IV, the conclusion, pro-

ter many barriers and hardships on their path to

vides pivotal pointers for the reader to keep in

social services and substantive justice. Economic,

mind.

legislative and linguistic as well as cultural barriers are only a few of the hurdles which prevent them

Part I: Definition of Domestic Violence and Rele-

from making timely and successful claims – all of

vant Legal History

which is discussed in Part II.

Prior to talking about the pitfalls of the legal system

Part II, while giving a general overview of

when it comes to immigrant victims of domestic

the types of obstacles immigrant victims of domes-

violence, and what social conditions are vital to an

tic violence experience,

will also address some

immigrant woman’s ability to quickly access aid or

more specific barriers that are faced by the East

an alternative censoring mechanism against the

Asian and Latin American women who comprise a

abuse, it is necessary to first define the phenome-

large proportion of immigrant victims.

non of domestic violence. “Domestic Violence is a

Part III addresses the theoretical questions

pattern of physical and psychological abuse,

this research aims to answer. The first question ad-

threats, intimidation, isolation or economic coer-

dressed is if the shining beacon known as the 1994

cion used by one person to exert power and control

VAWA, while providing immigrant victims of abuse

over another person in the context of a dating, fam-

a self-petitioning path to a legal immigration status,

ily or household relationship.”8 Domestic violence

actually grants immigrant victims a sufficient legal

occurs in adult or adolescent intimate relationships

remedy against their abusers? This inquiry will also

in which the perpetrator and the victim are current-

analyze legislations that stand in the abused wom-

ly or have been previously dating, cohabitating, or

an’s way to receive aid, and, whether such possible

married. Victims and perpetrators of domestic vio-

obstacles were in fact amended by subsequent VA-

lence can be found to be of all ages and races, and

WA legislations, or if further legislation is necessary

from all socioeconomic, educational, occupational,

40 | LoyolaJournal.com

cultural, and religious backgrounds.9

beating for correctional purposes.

As a result,

A general understanding of domestic vio-

through the 1800s, the United States state laws and

lence will allow a layman to better grasp the com-

cultural practices continued to support a man's

plexities of the situations within which immigrant

right to discipline his wife.

women find themselves. Domestic violence does

Historically, the United States immigration

not occur within a culturally stereotypical setting,

laws placed absolute control over the battered im-

nor is it an isolated event. Such violence is a pattern

migrant’s legal status in the hands of the U.S. citizen

of repeated behaviors against the same victim by

or lawful permanent resident14, spouse, or parent.15

the same perpetrator. The perpetrator might as-

Early U.S. immigration laws incorporated the con-

sault the victims in different forms: psychologically,

cept of coverture, which is “a legislative enactment

sexually, physically, or even economically. This vio-

of the common law theory that the husband is the

lence is purposeful and instrumental behavior,

head of the household.”16 Coverture is defined as

which is not impulsive or “out of control.”10 It is be-

the legal principle under which “the very being or

havior that is directed at circumscribing the life of

legal existence of the woman is suspended during

the victim so that her thoughts and actions are

the marriage, or at least incorporated and consoli-

curtailed and she submits to the threats of the

dated into that of the husband, under whose wing,

abuser. In the case of immigrant women, the abus-

protection, and cover, she performed everything.”17

er uses many tactics of control, the most commonly

From early 1900 through 1922, coverture was so

used of which is the woman’s legal status in Ameri-

much a part of U.S. law that when an American

ca and her constant fear of deportation.

12

woman married a man from another country she

To fully understand the current formal legal

acquired her husband’s nationality and lost her U.S.

atmosphere that now surrounds domestic violence

citizenship. The doctrine of coverture promoted

in our society, it is helpful to analyze some im-

and often encouraged violence in the home. It not

portant historical movements of this social con-

only gave the husband control of the wife’s legal

struction. Unfortunately, the abuse of women has

existence but, most importantly, it gave a husband

been an integral part of most cultures for many

the right to chastise or even kill his wife if he

generations. For example, the British common law

deemed it necessary.18

11

once allowed a man to chastise his wife with any

Fast forward 40 years. The 1960s and 1970s

reasonable instrument. Further, in the 1500s an

brought with it the U.S. women's movement. This

English Jurist, Lord Hale, set the tradition of non-

politicized domestic violence, calling public atten-

recognition of marital rape. He stated that when

tion to this heretofore private issue and viewing it

women married, they "gave themselves to their

as a crucial means by which men exercised illegiti-

husbands"13 in contract, and could not withdraw

mate dominance over women.

that consent until they divorced. Such understand-

chronic and widespread at all economic and social

ings followed the early settlers from England to

levels," declared the National Plan of Action at the

America. Upon arrival they based their laws on old

1976 National Women's Conference in Houston.

English common-law that explicitly permitted wife-

The conference attendees urged Congress to con-

"Wife abuse is

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sider "the elimination of violence in the home to be

jury consider her actions as different from that of a

a national goal," and called for expanded "legal pro-

man’s. Thus the reasonable woman standard be-

tection" at the state level to permit women "to sue

gan to emerge. However, the formal application of

their assailants for civil damages."19

the law to citizens still depended on judgments of

In 1976 there was a legal breakthrough in

“reasonableness,” which take into account the indi-

favor of abused women. Several lawsuits were filed

vidual’s culturally specific and historical context.22

against negligent police departments. In October of

Thus, there remained a tension in the formal law

1976, female victims filed a class action suit, Scott v.

and its application when it came to specific circum-

Hart, against the Oakland police department. The

stances.

police department settled the case in 1979, and

While Court decisions seemed to be enforc-

succeeded to many demands. They agreed to stop

ing an overall change in favor of victims of domestic

training officers to avoid arrest in domestic violence

violence, in the mid 1980s, legislative justice for do-

cases, to hand out resource cards to victims, and to

mestic violence of immigrant victims experienced

donate money to local battered women's shelters.

several severe setbacks. One such setback was the

During this period, there was also a surge in cases

Immigration Marriage Fraud Amendment of 1986

dealing with police negligence of issues of domestic

which reconfirmed the original power of the citi-

violence in the cities of New Haven, CT; Chicago, IL;

zen / lawful

and Atlanta, GA. Meanwhile, the feminist social

permanent resident spouse in that he still had the

movement mobilized to change popular attitudes

exclusive control of the immigration status of his

toward domestic violence by making it less accepta-

alien spouse. Upon marriage, a woman was grant-

ble and "normal."20 Feminist legal scholars and fe-

ed a “conditional residency” for two years after

male jurists led a campaign to educate judges about

which time she could become a permanent resident

gender bias in the courts. The era of family court

but only if the husband petitioned for her. 23 In reali-

diversion and policy inaction seemed to finally be

ty, this Amendment kept battered immigrant wom-

coming to an end.

en trapped for two years at the mercy of their hus-

After several important victories against do-

bands.24 Another setback occurred in 1989, when

mestic violence, 1977 brought with it another cru-

Brooklyn Supreme Court Justice Edward Pincus sen-

cial decision.

In the landmark case State v.

tenced a Chinese immigrant, Dong Lu Chen, to 5

Wanrow, the Washington State Supreme Court de-

years probation for using a claw hammer to smash

clared that a woman defendant’s right to equal pro-

his wife’s skull.25 In this decision, Pincus concluded

tection under the law in a murder trial was violated

that traditional Chinese values about adultery and a

because her conduct was measured against that of

loss of manhood drove Chen to kill his wife. Pincus

a reasonable man finding himself in the same cir-

justified Chen's probationary sentence by stating

cumstance.

This court deemed that the use of

that Chen was just as much a victim, referring to

commensurate force and the perception of an im-

the social pressures stemming from immigration.

minent danger was different for a woman, and

The Immigration Marriage Fraud Amendment of

therefore, a woman should be entitled to have the

1986 and the Chen decision thus sent a message to

21

42 | LoyolaJournal.com

battered immigrant women that they had no legal

increase police and court officials' sensitivity. Last-

recourse against domestic violence.

ly, for the first time in U.S. history there was an es-

Yet, all hope was not lost. The Immigration and Naturalization Service (INS) began to recognize

tablished federal right to sue an assailant for gender -based violence.30

domestic violence as grounds for asylum in the U.S.,

Since this article is primarily concerned with

and Congress first addressed the problem of such

immigrant women, the following discussion is of the

violence in 1990 with the passing of the Immigra-

formal legal opportunities that the 1994 VAWA

tion Act. This Act was meant to remedy the prob-

created for this population.

lems created by the Immigration Marriage Fraud

immigrant who demonstrated that she/he has been

Amendment of 1986. The Immigration Act of 1990

abused by a U.S. Citizen or a legal permanent

created what was known as the "battered spouse

resident was entitled to special relief. Prior to the

waiver" – a waiver designed to help a conditional

Act, the permanent resident or the citizen abuser

permanent resident married to a U.S. citizen or

was responsible for petitioning for their spouse’s

permanent resident, whose husband has already

legal status. Now, an immigrant woman can start

filed an application for her to become a permanent

or continue her process of obtaining legal residency

resident and has begun to assist her in obtaining

status (green card) by filing a VAWA “self-petition”

her conditional residency, but has failed to take any

with Immigration (INS) without the knowledge or

further steps. Though the Immigration Act of 1990

the involvement of the abuser.31 Women who are

was a step in the right direction for battered immi-

approved by the self-petition are also able to have

grant women, this Act did not provide for those

the

women whose spouses refused to submit the nec-

deportation and receive a legal work permit.

essary paperwork to file for the woman’s condition-

Furthermore, the petitioner can include her

al residency in the first place.

unmarried children under 21 years of age in her

26

27

assurance

of

being

Under this Act, an

protected

against

In response to this gap in the law, Congress

VAWA petition so that they can also be protected

passed the 1994 Violence Against Women Act

against deportation, get work permits, and

(VAWA) as part of the federal Crime Victims Act28,

eventually apply for green cards.

and immigrant women were finally given a separate

In 2000, the Violence Against Women Act32

path to legal citizenship on the basis of their status

was reauthorized and Congress approved a $3.3

as victims of domestic violence. The VAWA’s over-

billion budget maximum to be spent until 2005,

reaching goals “were to enhance justice system pro-

when the renewal of the VAWA would be passed.

tection for battered women and to expand collabo-

The 2000 VAWA further strengthened the 1994 Act.

ration and cooperation between battered women’s

It took note of the fact that the abusive citizen or

support services and the criminal and civil justice

permanent resident spouse would use immigration

system.”

This Act funded services ($156 million in

law as a tool to prevent an abused immigrant

State grants) for victims of rape and domestic vio-

spouse from reporting abuse or leaving the rela-

lence, allowed women to seek civil rights remedies

tionship. In 2005, the VAWA was again reauthor-

for gender-related crimes, and provided training to

ized.33 This reauthorization furthered the Act’s orig-

29

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inal intent extending immigration relief to all vic-

abuser.35 Without proper status, immigrant women

tims of family violence, such as victims of incest and

cannot legally work. If they are able to find illegal

child abuse, as well as elderly victims of abuse. The

work, they cannot leave their homes to pursue such

renewed Act also had more provisions for the eco-

opportunities because they have no one to watch

nomic security of immigrant victims and their chil-

their children.36 Furthermore, an abuser may inhibit

dren.

his victim from learning English so that she is unaOnce the Violence Against Women Act was

ble to communicate with a potential employer. Or

in place, one might argue that immigrant victims of

he might simply not allow his wife to work, making

domestic violence, who were dependent on the

her entirely dependent upon him for support. Due

abuser for citizenship status, could finally obtain

to these tactics, immigrant victims are often

citizenship on their own. However, simply because

trapped, unable to escape their abuser’s grasp.

such a legal path exists does not mean that this formative approach isn’t flawed.

Immigrant women also experience financial

In reality, many

problems in accessing social and legal services. In

victims are not able to benefit from the

the case of pursuing legal justice against the abuser

opportunities

in court, although some immigrant women are eligi-

officially

provided

to

them.

ble to receive free or reduced-cost legal assistance Part II: Barriers Faced By Immigrant Victims in

from service agencies, very few actually receive aid,

Attempting to Access Aid

and because of a lack of funds many are deterred

In composing this article, I came to realize that inti-

from pursuing cases in courts. Money is thus one of

mate partner violence against immigrant women

the most significant informal hurdles that deter im-

occurs in epidemic proportions, but research has

migrant victims from easily accessing the legal sys-

only recently begun to address this concern. To fur-

tem.

ther understand and improve our society’s legislative approach to domestic violence, it is imperative

B. Linguistic Barriers and Procedural Barri-

to discuss the multiple barriers that immigrant vic-

ers Faced by Immigrant Victims

tims of abuse face in accessing various services.

Social services are usually understaffed in

Specifically, since Asian and Latin American immi-

multi-lingual personnel and therefore cannot pro-

grants are some of the largest growing immigrant

vide support in the immigrant woman’s native

populations in the U.S., I focus on the abuse experi-

tongue. Such services are also unable to make the

enced by these immigrant victims and the barriers

necessary impact because the providers are unfa-

they face in attempting to access social services and

miliar with the woman’s cultural or linguistic back-

legal aid.

ground.37 Yet the hardships that immigrant women

A. Economic Barriers Experienced by Immi-

encounter in accessing social services do not stop

grant Victims of Violence

here. As a result of each counselor’s heavy case-

Research has shown that economic control

load, social services may also develop routines that

is one of the most common forms of abuse that an

mainstream clientele.38 For example, a woman who

immigrant victim experiences at the hands of her

may have an addiction problem might not fit the

44 | LoyolaJournal.com

criteria of a specific social agency. As a result, she

cally Chinese and Mexican immigrant victims, to

will be turned away from obtaining services at that

begin to tackle issues of such violence, the women

specific agency. Such processing, in addition to her

must first overcome their culture’s constant em-

inability to communicate in English, creates a cycle

phasis on family cohesion in addition to the specific

of discouragement, indicating to the woman that

female gender roles established by their society.

she will be unable to obtain the social aid she seeks.

In both the Mexican and the Chinese

When an immigrant woman seeks legal

culture, there are notions of “gendered ideals of

help a similar assessment of the clientele takes

heteronormativety”42

place. Within the legal system, clerks and lawyers

behaviors for males and females. The traditional

act

discretionary

gender roles ascribed to men and women create

judgments to determine which clients and disputes

problems which clash with modern-day gender

should be forwarded into the court system.39

roles.43 More specifically, as in the case of Latina

Therefore, both the social agencies and the legal

immigrant women, machismo and male domination

systems official channels develop informal tactics

are pervasive components of the social fabric that

which prevent immigrants from receiving the

must be accounted for when working with Latina

services they desperately need.

victims of domestic violence.44 Whether in Mexico

as

gatekeepers

who

use

that

prescribe

specific

or in the U.S., the system of male patriarchy tends C. Social Norm and Cultural Barriers Experi-

to portray Mexican men and women in different

enced by Immigrant Victims

social roles.

In most Latin American countries,

In most immigrant communities, religious

machismo defines manhood.

In doing so,

beliefs and cultural expectations about the role of

unfortunately, this attitude also defines the female

men and women in society pose large barriers to a

gender

battered immigrants’ ability to flee their abusers’

responsibilities, and behavior is supposed to be,

home. The option of leaving the home runs contra-

especially in relation to men.45 As a result, most

ry to the woman’s belief system about her role and

Latina women are brought up with the idea that a

obligation in life. Often the blame for family disin-

woman’s identity is linked to what she is to others:

tegration falls on the woman and she is shunned

a mother, a wife, a daughter, or a maid. Thus, the

and made to feel ashamed if she speaks about the

female equivalent of Machismo, Marianismo, is

abuse and tries to seek help. More often than not,

upheld and continuously reinstated. Marianismo,

challenging male domination is punished by isola-

still heavily prevalent in the Latino community

tion and social disapproval.40

today, is the belief that a woman must sacrifice

Therefore, when it comes to the experiences of immigrant women, what is most important to

by

what

the

woman’s

duties,

herself to be accepting of her fate for the sake of her children and husband.46

note is that issues of domestic violence must be an-

In addition to the gendered stereotypes that

alyzed within the context of the women’s specific

both Chinese and Mexican immigrant women face,

culture and minority status.41 Analysis shows that

their culture’s emphasis on family cohesion and so-

for immigrant victims of domestic violence, specifi-

cial harmony further prevent immigrant women LoyolaJournal.com | 45

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45

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from seeking aid.49 In the case of Chinese women,

Immigrant women are at times unaware of

the “family is the most important social unit.”50

what actions to take in the U.S. because back in

Since a person is regarded as an extension of the

their home country they had minimal contact with

family, the person must subjugate his or her indi-

the criminal or civil legal system.58 Mexican immi-

vidual needs to the family interests. Consequently,

grant women may not contact the police because

that person’s individual rights are nonexistent. For

they do not know that domestic violence is a crime

instance, for the sake of the family the woman is

or that anti-domestic violence services exist. As for

expected to somehow persevere through the do-

the Chinese legal system, the Chinese law holds the

mestic violence.51

government as an instrument of rule, rather than a

In comparison, in Mexican communities the

source of the citizen’s right.60 Since the law’s prima-

family’s respectability is among the highest social

ry purpose is to serve the government, domestic

priorities.52 Latina women are taught to tolerate

violence is not seen as an illegal act, and Chinese

whatever hardships they encounter and simultane-

women cannot use the law as a source of aid for

ously play a significant role in maintaining the ap-

abuse. Upon coming to the U.S., due to their expe-

parent stability of the familial relationship. Familial

riences with their home system, these women are

disputes and problems are therefore strictly seen as

often unaware that domestic violence is a crime

private affairs.53 Within both the Mexican and the

under U.S. law.61 Immigrant women possibly fear

Chinese culture, the individual woman’s rights are

the police due to previous experiences of mistreat-

de-emphasized and her identity is rooted in her

ment or corruption of law enforcement officials in

family. A battered immigrant woman is thus often

their country of origin. Immigrant women may ex-

discouraged by her culture from seeking aid.

pect the U.S. legal system to be as equally corrupt, leaving these women afraid to seek legal aid against

D. The Barrier of the Victim’s Fear of Deportation and Lack of Legal Knowledge

the abuser for fear of further mistreatment at the hands of U.S. authorities.

Immigrant victims are further barred from accessing social and legal services in the U.S. be-

Part III: Analysis of the Success of the VAWA

cause they are afraid of deportation and are intimi-

Legislation, the Effects of the Victim’s Social

dated by their lack of knowledge about the U.S. le-

Network on Her Ability to Access Aid, and a Call to

gal system.54 Upon coming to America, many Mexi-

Further Advocate Action

can and Chinese immigrant women know nothing

The violence that victims experience and the obsta-

of their legal rights.55 Often they believe that if their

cles that they face in accessing legal aid and peti-

abusive spouse helped get them into the country,

tioning for a legal immigration status may in part be

he can easily arrange to deport them and keep their

mitigated by the presence of a culturally and reli-

children in America.

These women are also afraid

giously sound social network. When an individual is

to call the police or go to the hospital because they

isolated, whether it be by linguistic or cultural barri-

believe that the personnel at these facilities will call

ers, she is not a member of a network that in times

the INS to deport them.

of need can provide her with support.79 Social net-

46 | LoyolaJournal.com

56

57

works allow people to pass along important infor-

lack adequate resources to help battered women.

mation and valuable resources.80

In the case of

These victims are desperately in need of linguistical-

abused immigrant women, these social networks

ly and culturally sensitive services.83 Currently, few

provide victims with emotional support as well as

shelters and social services exist that can accommo-

information about social and legal resources. More

date the multicultural and multilingual needs of

recently, social networks have been conceptualized

battered immigrant women. The services that are

as “a societal resource that links citizens to each

in existence are located only in the largest urban

other and enables them to pursue their common

areas of New York City, Chicago, Los Angeles, and

objectives more effectively.”81 Thus, in order for a

San Francisco. Outside of the major urban cities,

victim of domestic violence to overcome the barri-

there are almost no multicultural or multilingual

ers she experiences, gain access to social and legal

shelters or services available for battered women.84

aid, begin her self-petitioning process, and obtain a

Thus, it is essential for nationwide agencies to start

remedy against the abuse in a timely matter, her

to seek out and hire multi-cultural and multi-lingual

involvement in a social network is a key prerequi-

members from within their surrounding communi-

site.

ties, to train them in the issues of domestic vio-

82

For women who do not want to leave their

lence. By employing members of the community as

husbands or seek formal aid because of monetary

language and cultural advocates, these centers can

reasons or because of their children, these net-

provide the necessary support, community educa-

works can be used as alternative mechanisms to the

tion, and an environment in which battered immi-

aid. The immigrant victim, who aims to stop the

grant women can talk about their concerns and the

violence from within her relationship, can speak to

fears they must overcome.

her community leaders, friends or co-workers, as a

Moreover, agencies must teach their staff to

result of which pressure and possible threats of

analyze issues of domestic violence through the

ramification will be placed on the abuser. In such

eyes of the woman and within the context of her

cases an abused immigrant woman can use her so-

culture’s gender roles. These professionals must

cial network in lieu of legal aid because of the net-

not succumb to myths that portray docile and pas-

work’s ability to censor the abuser’s behavior and in

sive women as subject to domestic violence be-

lieu of social services because it can provide coun-

cause certain cultures accept abuse.

seling and foster a great source of personal

must implement a woman-centered advocacy ap-

strength.

proach which focuses on empowering the woman

Advocates

while still incorporating her cultural values and her C. A Call to Further Advocate Action

familial role into the equation. In the U.S. a wom-

1. The Need for More Adequate Social Ser-

an’s empowerment has been put into practice

vices which are Capable of Overcoming Lin-

through programs designed to foster independ-

guistic, Cultural and Gender Stereotype

ence, programs that focus on self-esteem and build-

Barriers

ing the woman’s individual strength. Because immi-

Immigrant communities all across America

grant cultures and communities view the individual LoyolaJournal.com | 47

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47



in the context of their extended family, for most

ous questions concerning a woman’s ability to ac-

immigrant women the notions of independence

cess aid, deportation related issues, and a woman’s

and individual strength away from their families is

right to self-petition for her legal status under the

foreign. Thus the advocates must stress that an im-

VAWA.

migrant woman’s empowerment lies in her ability

Town centers, community organizations and

to create a positive extended family of friends, ser-

all places of worship should work together to raise

vices, and supporting family members – a network

money in order to provide such victims with funds

of those who can help the woman seek aid and pro-

necessary to seek legal aid or to escape the abus-

vide her with support in times of domestic abuse.

er’s home. Some centers are set up to provide financial aid to battered women only on the condi-

2. The Need for Spreading the Word About

tion that the woman immediately leaves the abus-

the Abuse, Addressing the Women’s Lack of

er, otherwise she receives no financial assistance.

Legal Knowledge and their Fear of Deporta-

Advocates must stress that centers should provide

tion, and Providing Women with Access to

women with aid whenever necessary. The organi-

Aid.

zations must realize that a victim of violence, espe-

Service centers, religious institutions and

cially one with children, cannot leave her abuser

legal aid need to work within the community to

and cut ties with her current family to rely on ser-

raise awareness about domestic violence. Staple

vice providers who might not speak her language,

institutions such as local supermarkets, Home De-

understand her cultural or religious background, or

pots and Walmarts should become involved in

grant

her

enough

financial

support.

spreading the word about the prevalence of domestic abuse, and the services being offered to victims

Part IV: Conclusion

in need. This can easily be accomplished by distrib-

Since the issues that immigrant domestic violence

uting fliers that inform women about various local

victims face often differ from those of other wom-

services and community programs which help fos-

en, the development and implication of legislation

ter social networks, offer counseling and provide

created to support immigrant women must reflect

English as a second language classes. Community

those differences. In passing the 1994 Violence

centers and religious organizations must also dispel

Against Women Act (VAWA), Congress intended to

the women’s beliefs that those immigrant victims

remove immigration laws from continuing to be a

who seek aid will encounter the danger of being

barrier that kept battered immigrant women and

reported to INS for deportation. Service centers

children locked in abusive relationships. However,

should develop internal privacy policies, policies

in analyzing the extent to which immigrant victims

which inform the victim that any information she

of domestic violence are able to access social aid

provides will not be shared with the federal immi-

and legal services, and in particular make use of the

gration authorities. Organizations should also spon-

benefits offered by the VAWA legislation, this re-

sor multi-lingual legal advocates to prepare presen-

search has discovered that while in theory the VA-

tations and arrange Q & A sessions to answer vari-

WA allows the victims to self-petition for their legal

48 | LoyolaJournal.com

status and thereby escape the abuser’s control, in

♦♦♦ Written by Evelina Shpolyansky Questions? Comments? E-mail Evelina Evelina.Shp@loyolajournal.com

reality the self-petitioning process is quite inaccessible. There are too many hurdles that prevent these victims from actually getting the necessary aid

End Notes

which is promised under the VAWA legislation. These hurdles include, but are not limited to, the woman’s lack of monetary support, her inability to speak or understand the English language, her cultural and religious background, her fear of deportation and her lack of knowledge of the U.S. legal system. More legislation is needed before legal remedies to such abuse place the power in the hands of abused immigrant victims rather than the state. Since the United States is a nation of immigrants, our government must not turn away from those who are most in need of our protection. Given the pervasiveness of domestic violence in the immigrant community, judges, battered women’s advocates, community leaders, researchers, policy makers, and most importantly, battered immigrant women, must work together to better understand the issues these victims face. The government must thus pass further Acts, provide grants, and allocate resources to improve the existing services that aid immigrant victims of domestic violence - services that foster culturally and linguistically sound social networks which are key to a woman’s access to aid. Hopefully, this research can serve as a call for cultural understanding in the field of legal adjudication of the current VAWA laws and in the creation of better immigration laws. Through such actions, our government can make headway in further ensuring that vulnerable immigrant women become empowered to overcome the numerous barriers they face and to claim their statutory right of U.S. citizenship.

1. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 6, 2001 2. Ibid. 3. Ibid. 4. Hass Aguilar G.; Ammar N.; Orloff L., Battered Immigrants and U.S. Citizen Spouses, p.3, 2006 5. United States Citizenship Fact Sheet: http:// www.usimmigrationsupport.org/citizenship.html 6. Cole, D., The New Know-Nothingism: Five Myths About Immigration, 1994 7. Immigrant Women - There are various definitions for the term “immigrant women.” Within this paper, I am employing the common sense usage of the word to refer to people who are women that were not born within the U.S., and who only by association through their citizen or permanent resident husband have a legal status. 8. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p.6 9. Ibid., p.7 10. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p. 9 11. While the National Violence Against Women survey shows 37.5% of victims each year are men, since this study focuses on domestic violence against immigrant women, this research will specifically refer to women victims, www.batteredmen.com/ batrNVAWf.htm 12. Raj, A.; Silverman, J., Violence Against Women: The Roles of Culture, Context and Legal Immigrant Status on Intimate Partner Violence, 2002 13. Herstory of Domestic Violence: A Timeline of the Battered Women's Movement http:// www.mincava.umn.edu/documents/herstory/ herstory.html 14. Lawful Permanent Resident - An immigrant who has established a permanent right to live and work in the U.S. and to travel outside the country, also referred to “greencard” holder. This status lasts throughout life and the greencard holder is eligible to apply for U.S. Citizenship after they have held this LoyolaJournal.com | 49

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49

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status for 3 to 5 years. Battered Women’s Justice Project, Assisting Immigrant Victims of Domestic Violence: Prosecutor’s Guide, p. 2 15. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 3, 2001 16. Ibid. 17. Ibid. 18. Ibid. 19. How Have Recent Social Movements Shaped Civil Rights Legislation for Women? The 1994 Violence Against Women Act - http://www.binghamton.edu/ womhist/vawa/intro.htm 20. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p.11 21. Ibid, p.14. 22. The State of Washington, Appellant, v. Yvonne L. Wanrow, Respondent: 88 Wn.2d 221; 559 P.2d 548; 1977 Wash. LEXIS 750 23. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 3, 2001 24. Ibid. 25. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p.16 26. United States Citizen and Immigration Services Website: Conditional Resident - Any alien granted permanent resident status on a conditional basis (e.g., a spouse of a U.S. citizen; an immigrant investor), who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status. Also see: About.com: Conditional Permanent Resident: A conditional permanent resident is an alien who has been conditionally admitted to the United States for two years to live and work permanently. Conditional permanent residents have the same rights and responsibilities as permanent residents, but must apply to remove conditions on permanent residence. 27. Background on Laws Affecting Battered Immigrant Women: http://endabuse.org/userfiles/file/ ImmigrantWomen/Background%20on%20Laws% 20Affecting%20Battered%20Immigrant% 20Women.pdf 28. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p.18 29. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 5, 2001 30. Ibid.

50 | LoyolaJournal.com

31. A VAWA Manual for Pro Bono Advocates, Obtaining Lawful Permanent Residency, Through the Violence Against Women Act, p. 25 32. In 2000, the Supreme Court decision of United States v. Morrison, 529 U.S. 598 (2000) held that The Violence Against Women Act (VAWA 1994) was unconstitutional under Interstate Commerce Clause. However, a new act, The Victims of Trafficking and Violence Protection Act of 2000, passed by Congress on Oct. 11, 2000, included the Violence Against Women Act of 2000 (VAWA 2000). The 2000 VAWA expanded and improved the protections for battered spouses and children that were originally enacted in VAWA 1994. 33. Chicago Metropolitan Battered Women’s Network, Domestic Violence 40- Hour Training Manual, p. 20 34. Raj, A.; Silverman, J., Violence Against Women, The Roles of Culture, Context and Legal Immigrant Status on Intimate Partner Violence, 2002 35. Pendleton, G., Ensuring Fairness and Justice for Noncitizen Survivors of Domestic Violence, p. 42, 2003 36. Ibid. 37. Sorenson, S.B., Violence Against Women: Examining Ethnic Differences and Commonalities, 1996 38. Mainstreaming the clientele is a process occurs through informal evaluations conducted by workers who determine the client’s ability to succeed in obtaining aid, and also in fulfilling the agency’s goals. Christopher E. Smith, Courts and the Poor, p. 61, 1991 39. Ibid., p. 43 40. Pendleton, G., Ensuring Fairness and Justice for Noncitizen Survivors of Domestic Violence, 2003 41. Kasturirangan, A.; Krishnan, S.; Riger, S., The Impact of Culture and Minority Status on Women’s Experience of Domestic Violence, 2004 42. Wang, K., Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 1996; Rivera, J., Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 1994 43. Wang, K., Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 1996 44. Adames, S.; Campbell, R., Immigrant Latina’s Conceptualization of Intimate Partner Violence, 2005 45. Hernandez, P. M., Domestic Violence Issue: The Myth of Machismo: An Everyday Reality for Latin American LoyolaJournal.com | 50

Women, 2003 46. Ibid. 47. Wang, K., Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 1996 48. Ibid. 49. Edited by Joanne I. Moore, Immigrants in Court, p. 69-70, 1999 50. Wang, K., Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 1996 51. Ibid. 52. Rivera, J., Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 1994 53. Adames, S.; Campbell, R., Immigrant Latina’s Conceptualization of Intimate Partner Violence, 2005; Raj, A.; Silverman, J., Violence Against Women, The Roles of Culture, Context and Legal Immigrant Status on Intimate Partner Violence, 2002 54. Sharma, A., Healing the Wounds of Domestic Abuse: Improving the Effectiveness of Feminist Therapeutic Interventions with Immigrant and Racially Visible Women Who Have Been Abused (2001) 55. Edited by Joanne I. Moore, Immigrants in Court, p. 19, 1999 56. Legal Momentum, Advancing Women’s Rights, Overcoming Cultural Barriers in Working with Immigrant Battered Women, 1998 57. Ibid. 58. Wood, S. M., Queer Theory, Feminism, and the Law: Note: VAWA’s Unfinished Business: The Immigrant Women Who Fall Through the Cracks, 2004 59. Wang, K., Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 1996 60. Ho, C.K., An Analysis of Domestic Violence in Asian American Communities: A Multicultural Approach to Counseling, 1990 61. Ho, C.K., An Analysis of Domestic Violence in Asian American Communities: A Multicultural Approach to Counseling, 1990; Sharma, A., Healing the Wounds of Domestic Abuse: Improving the Effectiveness of Feminist Therapeutic Interventions with Immigrant and Racially Visible Women Who Have Been Abused 2001 62. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 5, 2001

63. Ibid., p. 7 64. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 7, 2001 65. Ibid., p. 8 66. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 8, 2001 67. Ibid., p. 13 68. Ibid. 69. Ibid., p. 8 70. Battered Women’s Justice Project, Assisting Immigrant Victims of Domestic Violence: Prosecutor’s Guide, p. 4 71. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 8, 2001 72. Ibid., p. 9 73. Ibid., p. 17; Public Charge – A person who has become or who is likely to become primarily dependant on the government for subsistence, through (a) the receipt of cash public assistance, or (b) institutionalization for long term care at government expense – definition found in: Voices for Change: Immigrant Women & State Policy Center for Women in Government & Civil Society; University of Albany: Building Bridges to Stop Violence against Immigrant Women: Effective Strategies & Promising Models for reaching and Serving Immigrant Women, p. 101, 2004 74. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 17, 2001 75. Ibid., p. 19 76. Ibid., p. 22 77. Ibid., p. 26 78. Orloff L.; Kaguyutan, J., Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, p. 29, 2001 79. Morgan, D. A., Access Denied: Barriers to Remedies Under the Violence Against Women Act for Limited English Proficient Battered Immigrant Women, 2004 80. Ibid. 81. Stolle, D.; Lewis, J. Social Capital – An Emerging Concept, 2002 82. Ibid. 83. Sorenson, S.B., Violence Against Women: Examining Ethnic Differences and Commonalities, 1996 84. Wang, K., Battered Asian American Women: Commu-

LoyolaJournal.com | 51 

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nity Responses from the Battered Women's Movement and the Asian American Community, 1996 Bibliography:

Rivera, J. Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials 14 B.C. Third World L.J. 231, 253, (1994)

Books: Christopher E. Smith Courts and the Poor Nelson-Hall Publishers 1991 Edition Chicago Metropolitan Battered Women’s Network Domestic Violence 40- Hour Training Manual Centralized Training Institute

Wang, K. Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 3 Asian L.J. 151, 153, (1996) Wood, S. M. Queer Theory, Feminism, and the Law: Note: VAWA’s Unfinished Business: The Immigrant Women Who Fall Through the Cracks 11 Duke J. Gender L. & Pol’y 141, (2004) Case Citations:

Obtaining Lawful Permanent Residency Through the Violence Against Women Act A VAWA Manual for Pro Bono Advocates March 2005 Edition

The State of Washington, Appellant, v. Yvonne L. Wanrow, Respondent: 88 Wn.2d 221; 559 P.2d 548; 1977 Wash. LEXIS 750

Articles:

Social Science Journal Articles:

Law Journal Articles:

Adames, S.; Campbell, R.

Davis, K. A. Unlocking the Door by Giving Her the Key: A Comment on the Adequacy of the U-Visa as a Remedy? 56 Ala. L. Rev. 557, (2004)

Immigrant Latina’s Conceptualization of Intimate Partner Violence Violence Against Women, 11(10), 1341-1364, (2005)

Hernandez, P. M. Domestic Violence Issue: The Myth of Machismo: An Everyday Reality for Latin American Women 15 St. Thomas L. Rev. 859, (2003) Morgan, D. A. Access Denied: Barriers to Remedies Under the Violence Against Women Act for Limited English Proficient Battered Immigrant Women 54 Am. U. L. Rev. 485, (2004) Orloff, L. E.; Kaguyutan, J. V. Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses 10 AM. U. J. Gender Soc. Pol’y & L. 95, 163, (2001)

52 | LoyolaJournal.com

Battered Women’s Justice Project; Minneapolis, MN Assisting Immigrant Victims of Domestic Violence: Prosecutor’s Guide Cole, D. The New Know-Nothingism: Immigration The Nation October 7, (1994)

Five

Myths

About

Hass Aguilar G.; Ammar N.; Orloff L. Battered Immigrants and U.S. Citizen Spouses Legal Momentum, (April 2006)

Ho, C.K. An Analysis of Domestic Violence in Asian American Communities: A Multicultural Approach to Counseling LoyolaJournal.com | 52

Building Bridges to Stop Violence against Immigrant Women: Effective Strategies & Promising Models for reaching and Serving Immigrant Women (March 2004)

Women & Therapy, 9(1-2), 129-150, (1990) Kasturirangan, A.; Krishnan, S.; Riger, S.; The Impact of Culture and Minority Status on Women’s Experiences of Domestic Violence Trauma, Violence & Abuse, 5(4), 318-332, (2004) Ayuda Inc.’s Legal Momentum, Advancing Women’s Rights; Washington DC Overcoming Cultural Barriers in Working with Immigrant Battered Women, 1998

Websites: Herstory of Domestic Violence: A Timeline of the Battered Women's Movement http://www.mincava.umn.edu/documents/herstory/ herstory.html

Pendleton, G.,

How Have Recent Social Movements Shaped Civil Rights Legislation for Women? The 1994 Violence Against Women Act http://www.binghamton.edu/womhist/vawa/intro.htm

Ensuring Fairness and Justice for Noncitizen Survivors of Domestic Violence, Juvenile and Family Court Journal, 69-86, (Fall 2003)

National Violence Against Women Survey www.batteredmen.com/batrNVAWf.htm

Raj, A.; Silverman, J. Violence Against Women The Roles of Culture, Context and Legal Immigrant Status on Intimate Partner Violence Violence Against Women, 8(3) 367-398, (2002) Sharma, A. Healing the Wounds of Domestic Abuse: Improving the Effectiveness of Feminist Therapeutic Interventions with Immigrant and Racially Visible Women Who Have Been Abused.

United States Citizenship Fact Sheet http:// www.usimmigrationsupport.org/citizenship.html Welcome to the United States, A Guide for New Immigrants, by U.S. Citizenship and Immigration Services http://www.uscis.gov/graphics/citizenship/ welcomeguide/index.htm

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Violence Against Women, 7(12), 1405-1428, (2001) Sorenson, S.B. Violence Against Women: Examining Ethnic Differences and Commonalities Evaluation Review, 20(2) 123-145, (1996) Stolle, D.; Lewis, J. Social Capital – An Emerging Concept Contested Concepts in Gender and Social Politics Northampton, MA: Edward Elgar, (2002) Voices for Change: Immigrant Women & State Policy Center for Women in Government & Civil Society; University of Albany

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$

FELONY M

A DINOSAUR LIVING IN THE

By: El

54 | LoyolaJournal.com

MURDER

E CRIMINAL JUSTICE SYSTEM

li Fink

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FELONY MURDER: A DINOSAUR LIVING IN THE CRIMINAL JUSTICE SYSTEM By: Eli Fink Introduction This note examines the developments in the law

Ryan Holle

surrounding the felony murder doctrine. In recent

On March 10, 2003, 20-year-old Ryan Holle lent his

years, laws with similar legal roots and circumstanc-

car to a friend, William Allen, Jr. It was not unusual

es have been changed or completely dissolved. Fel-

for Mr. Holle to lend his car to Mr. Allen. While Hol-

ony murder represents a harsh injustice. This note

le stayed home, Allen, with three passengers, drove

will demonstrate the irrationality of that injustice

Holle’s car to a drug dealer’s home, where they

from legal and social perspectives.

stole a safe containing a pound of marijuana and $425. During the burglary, one of the men bludg-

A. A Pair Of Current Cases

eoned to death the daughter of the drug dealer with a shotgun he found inside the home. Holle was charged of first-degree murder

Judith Clark On October 20, 1981, Judith Clark played a relative-

under the felony murder rule as an accomplice for

ly minor role in a Brink’s Truck robbery. Working

lending his car to Allen. With no prior criminal rec-

with the Black Liberation Army, Clark, who is not

ord, Holle turned down a plea opportunity and

black, but sympathized with their cause, sat in a car

went to court, testifying that he did not know why

as six armed gunmen attempted to rob a Brink’s

Allen was borrowing his car.

Truck loaded with cash. During the robbery, the

The prosecution argued “no car, no murder”

armed guard was killed. Clark’s role was to aid in

and under the felony murder rule, Holle was con-

the get-away. The car she was driving was filled

victed and sentenced to life in prison with no parole

with moneybags taken from the Brink’s Truck. The

for his role in the incident.2

get-away was foiled by law enforcement, but not before two more officers were shot and killed in a

B. Is This Justice?

gun battle. Clark was apprehended and taken into custody. At trial, Clark waived her right to seek coun-

“Bad laws are the worst sort of tyranny.” – Edmund Burke

sel and was charged with three counts of felony murder. She was convicted of felony murder and

Neither Ms. Clark nor Mr. Holle fired a

sentenced to three 25-year sentences, to be served

weapon, threatened a life, or caused direct physical

consecutively, with no opportunity for parole. To-

harm to anyone. Yet, they both sit in prison, serving

day, twenty-eight years later, Clark is still in prison,

harsh sentences normally reserved for the most

and each of the shooters has been released.

dangerous criminals. The felony murder rule’s ruth-

56 | LoyolaJournal.com

LoyolaJournal.com | 56

lessness forces one to contemplate its viability. Is

lation that removes the felony murder rule from

the felony murder rule a good law or a bad law?

their codes, and Ohio has replaced felony murder with an involuntary manslaughter doctrine that co-

The Felony Murder Rule

vers the legal area previously occupied by felony

The United State’s Code codifies the felony murder

murder.4

rule, but avoids the felony murder nomenclature.

Depending on the jurisdiction, a felon may

Its effect is the same: a homicide that occurs in fur-

be liable for a death caused by his co-felon; a death

therance of a dangerous felony is murder in the first

caused by a non-felon, occurring in furtherance of

-degree, and a homicide in furtherance of a non-

the crime; or, in its harshest application, the death

dangerous felony is murder in the second degree.

of a co-felon.5

Murder is the unlawful killing of a human being with malice afore-

History

thought. Every murder perpetrated by poison, lying in wait, or any other

A. Historical Overview of Felonies

kind of willful, deliberate, malicious,

In 17th Century England, stealing was just as unlaw-

and premeditated killing; or com-

ful as murder. There was no gradation of culpability

mitted in the perpetration of, or

between crimes: the intent required for theft was

attempt to perpetrate, any arson,

identical to that of murder. Both crimes were felo-

escape, murder, kidnapping, treason,

nies, and both were punishable by death. In 1644,

espionage, sabotage, aggravated sex-

Sir Edward Coke explained the rule of transferred

ual abuse or sexual abuse, child

intent as a byproduct of the lack of legal distinction

abuse, burglary, or robbery; or per-

between various felonies.

petrated as part of a pattern or prac-

If the act be unlawful it is murder. As

tice of assault or torture against a

if A meaning to steale a Deere in the

child or children; or perpetrated

Park of B, shooteth at the Deere, and

from a premeditated design unlaw-

by the glance of the arrow killeth a

fully and maliciously to effect the

boy, that is hidden in a bush: this is

death of any human being other

murder, for that the act was unlaw-

than him who is killed, is murder in

ful, although A had no intent to hurt

the first degree.

3

the boy, nor knew not of him. But if B the owner of the Park had shot at

States use a number of approaches and vari-

his own Deere, and without any ill

ants to include the felony murder rule in their juris-

intent had killed the boy by the

dictions. Only four states have eliminated felony

glance of his arrow, this had been

murder from their state codes: Hawaii, Kentucky,

homicide by misadventure, and no

and Michigan have passed statues or enacted legis-

felony.

ďƒ?

57

ďƒ‘

LoyolaJournal.com | 57

ty served, nor any injustice in transferring defendSo if one shoot at any wilde fowle

ant’s intent. The punishment fits the crime.

upon a tree, and the arrow killeth any reasonable creature afar off,

Another example is the fleeing felon rule:

without any evil intent in him, this is

…it may under appropriate circum-

per infortunium: for it was not un-

stances be justifiable homicide (i.e.,

lawful to shoot at the wilde fowle:

no crime at all) intentionally to kill as

but if he had shot at a Cock or Hen,

a last resort in order to prevent the

or any tame fowle of another mans

commission of a felony (but not to

and the arrow by mischance had

prevent the commission of a misde-

killed a man this had been murder,

meanor), or in order to effect the

for the act was unlawfull.

6

lawful arrest of, or prevent the threatened escape of, a felon (but not a misdemeanant).8

Sir Edward Cook’s transferred intent rationale explains the felony murder justification: once a person forms the necessary intent for a felo-

At common law, the fleeing felon rule was

ny, he has the requisite intent and is subject to the

fair because the fleeing felon would have faced cap-

same culpability of any felony that results from his

ital punishment for his crime. Thus, the result of the

act. There was nothing unfair about the felony mur-

intentional killing to prevent the felon’s flight is no

th

der rule in 17 Century England. It comports with

more severe than the punishment the felon would

their laws and their understanding of all felonies.

have been subject to at trial. A comment in the Model Penal Code illustrates this in very clear

B. Similar Doctrines

terms:

In addition to felony murder, a number of other doctrines share the aforementioned historical rea-

Though effected without the protec-

soning of felony murder. The transferred intent

tions and formalities of an orderly

doctrine uses this rationale. Suppose, a defendant

trial and conviction, the killing of a

shoots his firearm at John and misses horribly. If the

resisting or fleeing felon resulted in

bullet ricochets at a wild angle and strikes Joe in the

no greater consequences than those

heart, defendant will be liable for the murder of Joe

authorized for punishment of the

7

in every jurisdiction of the United States. Trans-

felony of which the individual was

ferred intent is the tool in which the defendant’s

charged or suspected.9

intent to murder John is used to satisfy the intent requirement for Joe’s murder. It is a legal fiction,

We have discussed three doctrines that are

but we tolerate it because it is fair. There is no gra-

direct results of the equal weight given to all felo-

dation in culpability between John’s murder and

nies at common law. Although understanding felo-

Joe’s murder. Therefore, there is no arbitrary penal-

ny murder in this historical perspective does not

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make the law any more fair, it does explain its existRegina v. Serné11

ence in our modern legal system.

In late 19th Century England, Serné’s financial situaC. Popular Culture

tion was dire, and in an effort to earn some quick

Although felony murder is well-seated in legal prin-

money, he committed insurance fraud. He insured

cipals, the general public is rarely satisfied with its

his home and the life of his disabled son. Subse-

ramifications, and sometimes there is a muted out-

quently, Serné set his house on fire, destroying the

rage over felony murder in non-legal circles. A re-

house and killing his disabled son. Authorities ap-

cent episode of the CBS legal drama, “The Good

prehended Serné and charged him with murder. At

Wife,” illustrated the inherent unfairness and disbe-

trial, the Judge gave the jury their instructions and

lief that a relatively minor crime can result in a mur-

noted that if Serné had the intent to commit the

der conviction. In “Home,” (Season 1, Episode 3), a

felony of arson, it would be sufficient to satisfy the

teenage boy from an upper class family is arrested

requisite intent for murder. This is a typical applica-

on felony murder charges. His crime? Burglary. He

tion of the felony murder rule.

and an accomplice opened the window of a friend’s

In a classic case of jury nullification, the jury

bedroom and climbed inside. A neighborhood secu-

acquitted Serné. There was no question that Serné

rity guard was killed at the scene, and the teen was

committed murder. The jury, however, could not, in

charged with felony murder. The teen did not know

good faith, find him guilty of murder under the felo-

the security guard had been killed, and he played

ny murder doctrine. It can be speculated that they

no role in the security guard’s death. His felony was

found the felony murder rule as applied in the pro-

relatively harmless; he was climbing into a friend’s

ceedings to be abhorrent. Seventy years later, Eng-

bedroom. Yet, under the felony murder rule, he was

land completely abolished the felony murder rule

being tried for a 20-year prison sentence.

10

from their legal system.

“Art imitates life.” It has been said that television

Tison v. Arizona12

shows reflect their viewer’s culture. This show de-

After two brothers helped their father and another

liberately portrayed the injustice of the felony mur-

escape from prison, their get-away car suffered a

der rule because it is a rule that does not fit within

flat tire. They flagged-down, and subsequently car-

our current sensibilities of right and wrong. The

jacked a passing car. The brothers, thinking they

show made its point. When viewed from an objec-

would abandon the family in a nearby field, went to

tive vantage point, it is difficult to reconcile the fel-

retrieve some water for them. While the brothers

ony murder rule with modern morals.

had their backs turned, one of the escapees fired a weapon at the family and ultimately killed them.

Analysis

The brothers expressed genuine shock that the family was killed. At trial, the brothers were sen-

A. Principal Cases

tenced to death under the felony murder rule. Dur-

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ing the perpetuation of the felony of escape from

the California Supreme Court in People v. Croy14:

prison, a homicide took place. They were held responsible for the homicide and were sentenced to

The requirement that the jury deter-

death.

mine the intent with which a person tried as an aider and abettor has actThe case was appealed to the United State

ed is not designed to ensure that his

Supreme Court, and in a feisty 5-4 split decision, the

conduct constitutes the offense with

ruling was upheld. The majority noted that the

which he is charged. His liability is

brothers were engaged in an activity known to carry

vicarious. …*H+e is guilty not only of

a high risk of harm, and therefore it was not unrea-

the offense he intended to facilitate

sonable to infer their intent for murder, justifying

or encourage, but also of any reason-

the death penalty under Arizona law.

ably foreseeable offense committed

The minority view, in their dissenting opin-

by the person he aids and abets… It

ion, disagreed and held that the death penalty

follows that a defendant whose lia-

should be reserved as the harshest punishment for

bility is predicated on his status as an

the harshest of crimes. It is unfair to give equal pun-

aider and abettor need not have in-

ishment to one who pulls the trigger and murders in

tended to encourage or facilitate the

cold blood and one who is a participant in a felony

particular offense ultimately com-

that results in a homicide.

mitted by the perpetrator. His knowledge that an act which is crimi-

People v. Luparello

13

nal was intended, and his action tak-

Defendant was trying to locate his ex-girlfriend,

en with the intent that the act be en-

who had left him for another man. The defendant

couraged or facilitated, are sufficient

knew that his ex-lover had a friend named Mark

to impose liability on him for any rea-

Martin who could advise him as to her location. De-

sonably foreseeable offense com-

fendant asked some of his friends to “shake out”

mitted as a consequence by the per-

Martin and try to get information leading to the lo-

petrator (emphasis added).15

cation of the ex-girlfriend. In the process of trying to elicit the whereabouts of the defendant’s ex-

Since it was foreseeable that Martin would

lover, Martin was killed. Although the defendant

be harmed, the defendant is vicariously liable for

was not present at the scene of the homicide, he

the harms his friends caused. This is based on a pol-

was charged with murder under the felony murder

icy that aiders and abettors should be responsible

doctrine. The jury convicted him of murder in the

for the harms they set into motion.

first-degree.

In his concurring opinion, Justice Wiener

Defendant appealed, and the California

agrees with the trial court’s finding, concurring

Court of Appeals upheld the conviction of the trial

purely on precedent. In his opinion, Justice Wiener

court. The court based its decision on the ruling of

points out that the logic and reasoning of the rule is

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LoyolaJournal.com | 60

not sound. It is irrational that a defendant’s liability will be determined and changed based on the mens

Tennessee v. Garner17

rea of the ones who actually caused the harm. In

An unarmed, young man was fleeing the scene of a

other words, if defendant’s friends did not have the

burglary. An alert police officer ordered the young

intent to kill, then the defendant would not be con-

man to halt and face arrest. When the young man

victed of first-degree murder. Only because the

continued his flight, the police officer shot the

friends had the requisite mens rea was the defend-

young man in the head. He died in the hospital later

ant convicted of first-degree murder. Justice Wie-

that evening. On his body, authorities found $10

ner feels that there is an injustice in this rule.

and a purse he had stolen.

What is most relevant to our discussion is

Under Tennessee law and Police Depart-

Justice Wiener’s comparison of the application of

ment policy, the police officer was correct in

aiding and abetting to felony murder.

shooting the fleeing felon. The decedent’s father sued in Federal District court on the grounds that

In contrast to the majority, which

the Tennessee law was unconstitutional. The Dis-

seeks to distinguish the “for*e+

trict Court entered judgment for the defendants.

seeable consequence” doctrine from

On a second appeal, the Court of Appeals reversed

the “disfavored” felony-murder rule,

and remanded. The Appellate Court’s reasoning

I view both as being founded on the

was that killing a fleeing felon is technically a

same outmoded and logically inde-

“seizure” under the Fourth Amendment and thus is

fensible proposition that if a person

unconstitutional if “unreasonable.” By allowing the

exhibits some intent to violate the

use of deadly force against a non-dangerous felon

law, we need not be terribly con-

who was stealing a trivial amount of goods, the

cerned that the contemplated crime

Tennessee statute provided latitude that was too

was far less serious than the crime

generous in the apprehension of a fleeing felon and

which actually took place.

16

was unconstitutional. The State of Tennessee appealed to the Su-

Justice Wiener is voicing the same complaint

preme Court of the United States. The Supreme

raised here. The felony murder rule holds persons

Court affirmed the decision of the Court of Appeals.

accountable for acts they never committed and for

Its reasoning will sound familiar at this point in our

which they did not have the requisite intent. The

discussion:

rule was rational when all felonies required the same level of intent and incurred the same punish-

It has been pointed out many times

ment. However, as part of our current criminal legal

that the common-law rule is best un-

system, felony murder is an anachronism that

derstood in light of the fact that it

hearkens back to a time when all felonies were

arose at a time when virtually all fel-

treated equally. This is no longer the case.

onies were punishable by death.

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“Though effected without the pro-

felon rule was fair. Our legal system recognizes gra-

tections and formalities of an orderly

dations of felonies and invoking the common law,

trial and conviction, the killing of a

fleeing felon doctrine is no longer fair. Therefore,

resisting or fleeing felon resulted in

the Supreme Court held that using deadly force

no greater consequences than those

against a fleeing felon is unconstitutional. By analo-

authorized for punishment of the

gy, the felony murder rule was borne under the as-

felony of which the individual was

sumption that all felons have the same punishment.

charged or suspected.” American

Using the model set by the Supreme Court in Gar-

Law Institute, Model Penal Code §

ner,

3.07, Comment 3, p. 56. … Neither of

felony murder is equally outmoded.

these justifications makes sense today. Almost all crimes formerly pun-

B. Rationale for Felony Murder

ishable by death no longer are or can

There are those who argue that felony murder has

be. … Many crimes classified as mis-

a place in the modern justice system. Let us explore

demeanors, or nonexistent, at com-

the very basic principles of some of these ration-

mon law are now felonies. Wilgus, 22

ales.

Mich.L.Rev.,

at

572-573.

These

The first rationale is a strict liability argu-

changes have undermined the con-

ment. When a criminal demonstrates that s/he has

cept, which was questionable to

no regard for breaking the law, a felony no less, s/

begin with, that use of deadly force

he is more culpable than a criminal who acts with

against a fleeing felon is merely a

no context and will be strictly liable for deaths that

speedier execution of someone who

occur as a result of that felony.19

has already forfeited his life. They

Another rationale is borrowed from tort law.

have also made the assumption that

Because it is foreseeable that a greater harm than

a “felon” is more dangerous than a

intended is possible, the criminal “assumes the risk”

misdemeanant untenable. Indeed,

of all harms that result from the felonious act, low-

numerous

involve

ering the threshold of his moral responsibility. In

conduct more dangerous than many

other words, the criminal has given the legal system

felonies.

misdemeanors

18

a right to punish the criminal for less severe acts by acting feloniously.20

In Garner, the Supreme Court explicitly

A third rationale is that felony murder

acknowledged the changes in felonious activity and

serves as a deterrent. This argument holds that fel-

punishments thereof. The United States Supreme

ons will be more careful in the commission of their

Court ruling in Garner changed a common law doc-

crimes if they are to be held accountable for all inci-

trine and the new rule has greater appeal to our

dental homicides at the scene of the crime. Further,

modern sensibilities of fairness and morality. When

it may serve as a deterrent from committing the

all felonies were punishable by death, the fleeing

underlying felony.21 22

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As reasonable as these rationales may

The affect of the metamorphosis of felonies over

sound, they are all playing “Monday Morning Quar-

time has been huge. Doctrines such as transferred

terback.” In truth, there can be no modern rationale

intent, aiding and abetting, fleeing felon, and felony

for a rule that rises from the ashes of the common

murder are all seeped in the waters of one-size-fits-

law and persists in our modern world. Despite the

all felonies. Today, felonies have gradations. Differ-

few meritorious arguments in favor of felony mur-

ent felonies incur different punishments.

der, it is a rule that cannot be truly justified in our

Some doctrines have been changed in light

terms. Felony Murder is a historical leftover, incom-

of relatively recent development in felony law. Oth-

patible with the modern criminal justice system.

ers have endured, stagnating the progress of our

Our current system features several gradations

legal system. Armed with an understanding of how

within felonies with many levels of mens rea, each

these doctrines entered our legal system, we can

with different punishments. Many felony doctrines

continue the process of purging them.

have recognized this evolution and have adjusted to the modern view of felonies. Felony murder has not

Stories like those of Judith Clark, Ryan Holle

evolved to that point in most jurisdictions. This lack

and the fictional teen on “The Good Wife” tend to

of evolution is the “rationale” for felony murder.

generate a visceral disgust with the current legal

This rule is a tyranny that cannot be ex-

system. Even those who advocate retribution un-

plained by strict liability, assumption of risk, or de-

derstand that the punishment must fit the crime.

terrence. We understand how the law got here, and

The way felonies are defined in our current system

it is not rational. Attempts to rationalize the irra-

does not allow for punishments fitting the crime

tional are an insult to our judicial system.

when there is a felony murder charge. A legal system is only as moral as its laws.

C. An Alternative

We should strive to create the very best legal sys-

The felony murder doctrine is a dinosaur, and it is

tem that we are capable of producing. We should

time to replace it. England has abolished the felony

♦♦♦ Written by Eli Fink Questions? Comments? E-mail Eli Eli.Fink@loyolajournal.com

murder rule, and the United States should follow suit. Four states have adjusted their statutes; the remaining 46 states should follow their lead. Homicides committed in the furtherance of a felony

not be satisfied with doctrines from the hundreds

should be adjudicated on the merits of each individ-

of years ago; doctrines that come from a time and a

ual case. Sometimes the most difficult problems

place with very little in common with our world,

have the simplest solutions. Abolishment of felony

especially, when those doctrines fly in the face of

murder is a perfect illustration of that phenome-

our modern approach to fairness and justice. The

non.

felony murder rule is ball and chain hindering our progress toward the best legal system we can pro-

Conclusion

duce. It is time to cut the chain.

LoyolaJournal.com | 63 

63

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20. See George P. Fletcher, Reflections on FelonyMurder, 12 Sw. U. L . Rev. 413, 427 (1981). 21. James J. Tomkovicz, The Endurance of the Felony Murder Rule, 51 Wash. & Lee L Rev. 1429, 1448End Notes

1449 (1994). Tomkovicz admits that it would be extremely difficult to show actual deterrence, and is

1. J.D. Candidate, Loyola Law School, May 2012. I would like to thank Professor Gilda Zwerman, Professor of Sociology / Criminology at SUNY Old Westbury, for inspiring me to research the felony murder rule and for providing much background information to the case of Judith Clark infra. 2. Adam Liptak, Serving Life for Providing Car to Killers, New York Times December 4, 2007, et Al. E.

McCarthy,

Felony

Murder,

22. For a very thorough rebuttal of this rationale see "Does the Felony-Murder Rule Deter Crime? Evidence from FBI Crime Data", January 2002 by Anup Malani, Professor of Law, University of Chicago Law School. Professor Malani uses comprehensive FBI crime data to show that felony-murder does not deter violent crimes. The paper can be read at http://

3. 18 USC §1111(a) (2003) 4. Kevin

not in favor of the felony-murder doctrine.

http://

www.cga.ct.gov/2008/rpt/2008-r-0087.htm

graphics8.nytimes.com/packages/pdf/national/ malani.pdf.

5. Ariz Rev Stat Ann § 13-1105(A)(2) (West 1998) 6. Sir Edward Coke, Institute 56, (1644) 7. See U.S. v. Sampol 636 F.2d 621, 637. The trans-

———

ferred intent doctrine has been challenged a number of times but has withstood judicial review on every occasion. 8. Wayne R. LaFave & Austin W., Jr Scott, Substantive Criminal Law, § 1.6, (1986) 9. Model Penal Code § 3.07, cmt. 3, p. 56 (American Law Institute) 10. Internet Movie Database, The Good Wife, http:// www.imdb.com/title/tt1477534/ 11. Regina v. Serné, 16 Cox Crim. Cas. 311 (1887) 12. Tison v. Arizona, 481 U.S. 137 (1987) 13. People v. Luparello, 187 Cal App 3d 410 (1987) 14. People v. Croy, 41 Cal. 3d 1 (1985) 15. People v. Luparello, 12, fn. 5 16. Id. 454 17. 471 US 1 (1985) 18. Id. 13-14 19. See, When is Strict Liability Just 87 J Crim. L & Criminology 1075, 1121-1125 (1997), by Kenneth W. Simons

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Loyola Parking Structure

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WANTED: By: Paul McCullum “The most powerful natural species are those that adapt to environmental change without losing their fundamental identity which gives them their competitive advantage.” – Charles Darwin The legal industry is experiencing serious stress in the face of the recession and other disrupting trends such as emerging technologies. In 2009, 138 big law firms shed 4,600 attorney positions.1 This is said to represent a 5% drop in just one year at big law firms with more than 100 attorneys, but headcounts are said to be down significantly more than that due to stealth layoffs and attrition.2 This record-breaking figure comes in a year when a record-breaking number of law students will graduate.3 The economic downturn, globalization’s effects on the profession, emerging technologies, the increasing availability of legal information and resources, clients’ changing needs, and new sources of competition demand that attorneys put on their entrepreneurial hats to make innovative changes to improve services in order to succeed in this sea of change. Law students must also consider these new dynamics while selecting specialized courses and conducting a job search. They must be as agile and adaptable as their ideal employers to succeed in the modern marketplace.

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Industry Woes

role of law firms. An era of open information low-

Big law firms experienced a long period of growth,

ers barriers of entry and creates a more competitive

capitalizing on specialization and firm prestige, as

and collaborative legal environment as clients

their multinational clients grew.

The recession,

better understand the value of legal services. In

however, has crippled many of their major clients in

particular, inexpensive web technologies allow law-

the financial services, real estate, and high tech in-

yers to efficiently research, draft documents, com-

dustries. Decreasing bottom lines have forced cli-

municate, and strategize.8 These same technologies

ents to lower legal budgets, demand greater effi-

allow better communication and collaboration with

ciency and seek outside legal counsel less often. In

the client, but attorneys must be careful to avoid

turn, law firm revenues have plummeted. Big law

client privilege and confidentiality issues that may

firms, unwilling to pay high salaries for new associ-

arise.

ates, are also increasingly deferring new hires and

Services like Google Scholar now publish

laying off staff. The online legal tabloid, Above the

Federal and State Court opinions for free, providing

Law, chronicles these trends throughout the coun-

competition to Westlaw and LexisNexis subscrip-

try.4

tions for legal research.9 Wikis and listservs make Meanwhile, law schools have continued to

research, collaboration, and question-and-answers

churn out lawyers at an increasing rate, with 6,621

quick, free, and easy. Specialized associations also

new California Bar admissions in 2009 , and more

provide a larger repository of information than any

than 44,000 admissions nationwide.6 These recent

single firm library can hold. With sixteen sections

graduates are competing for fewer than 30,000

and over 65,000 members, the California Bar Asso-

open positions. As a result, a large and competitive

ciation offers an immense resource of expertise and

cadre of job hunters must become increasingly cre-

experience.10

5

7

ative in finding alternative employment to the once

Websites like LegalZoom.com, co-founded

golden dream of a corner office and prestigious big

by LLS alumnus Robert Shapiro, make “do-it-

law firm salary.

yourself law� a reality with standardized legal document preparation. According to Mr. Shapiro:

Trends Disrupting the Industry The law has traditionally been a knowledge-based

It was the first company on the Internet to

profession, largely insulated from global competi-

do legal documents, so it was a pioneer in

tion and disruptive new technologies. However,

the industry. It was a unique concept where

globalization and the democratizing force of the

people could, through the aid of a computer

Internet have made legal information in many areas

and our programs, prepare their own legal

more accessible to solo practitioners, smaller prac-

documents, with the help of our software at

tices, clients, and the public at large. This trend has

an affordable price. We started hoping to

begun to level the playing field industry-wide, both

do 40 wills a month. LegalZoom is now the

for attorneys and for those seeking legal services.

leader in the industry where a lot of people

New technologies can disrupt the traditional 68 | LoyolaJournal.com

have tried to come in but nobody does as LoyolaJournal.com | 68

many documents as we do, and I don’t think

LegalZoom, as well as virtual law offices (VLOs). A

anyone does it as well and for the price that

VLO is a professional law practice that exists online

we do.11

through a secure portal. It allows partners to retain up to 85% of billing revenue, versus the usual 30-

To date, LegalZoom has served over one mil-

40% they would retain in standard law firms.17 VLOs

lion customers, focusing on document preparation

have the advantages of a small firm including au-

for wills, trademarks, LLCs, and corporations.12 A

tonomy, low overhead and flexibility. They also

standard will can be created for $69 on the site,

boast the advantages of a large firm including colle-

whereas it may cost upwards of $500 for a law

giality, cost-sharing, and marketing power.18

firm’s services. As clients’ bargaining power and knowledge

Firms Navigating a Sea of Change

has increased, so too does their demand for greater

Attorneys should embrace these new developments

results and efficiency from attorneys. Clients who

as competitors and collaborators in the global mar-

dislike non-revenue generating legal expenses can

ketplace, while always being mindful of state bar

better bargain, negotiate fees, and scrutinize hourly

regulations, ethical considerations, and attorney-

billing practices in a more competitive and transpar-

client privilege issues especially when collabo-

ent legal market. Clients may also consider turning

rating.19 This is important as a new wave of inves-

from big law firms to smaller practices, increasingly mobile independent lawyers, or to inhouse counsel.

13

Other new and efficient

tors “As clients’ bargaining power and knowledge has increased, so too does their demand for greater

and

managers

want to ignore traditional

legal

business

models in the marketplace. Innovators must

modes of competition include

results and efficiency from

discover ways to cut

legal process outsourcing (LPO)14

attorneys.”

costs and increase val-

by farming out contract work to

ue while preserving cli-

low-cost lawyers in the US and

ent relationships and

abroad. Pangea3 is an example of a legal process

personal service aspects of their practice.

outsourcer. With offices in India, Pangea3 provides

Law firms can no longer afford to remain

legal outsourcing solutions to Fortune 1000 corpo-

closed communities. They must prepare to com-

rations, and expects monthly earnings to double

pete in an expanding marketplace and consider

from a year ago.15 LawScribe is another LPO found-

Thomas Friedman’s findings on globalization: “We

ed by LLS alumnus Kunoor Chopra. Ms. Chopra has

are taking apart each task, standardizing it, and

turned LawScribe into one of the world’s leading

sending it around the world to whoever can do it

Legal Process Outsourcing companies, and has offic-

best. This is not a trivial revolution. This is a major

es in Los Angeles, New York, and Gurgaon, India.

one.”20

16

And then there are entrepreneurial publishers like

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69

This process involves a great deal of strate-

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LoyolaJournal.com | 69

gic planning, competitive intelligence, and risk man-

cient method to communicate within the firm, with

agement.

Firms should standardize, systematize

clients and also with adversaries. Google Wave, for

and outsource services when possible. They should

example, is a free web-based platform that permits

collaborate within the firm and with other legal pro-

users to utilize e-mail, instant messaging, wikis, doc-

viders in other areas.21 Experimenting with funda-

ument sharing, and social networking tools in a sin-

mental changes should result in improved services

gle platform. Invited parties are free to edit, and

and delivery. Measures must be taken, however, to

history is maintained in an organized manner.23

assure quality control in this brave new world.

Technologies like these narrow the communication

Firms should embrace the leveling power of the Internet. Instead of seeing the Internet as an

gap and allow legal professionals to efficiently meet clients’ demands.

obstacle, it can be used as a core tool to introduce

Firms may also benefit from a flexible work-

clients to the firm, its specialties and its service-

ing model that can lessen constraints on attorneys’

oriented and dependable approach to its clients.

hours and locations. The average per-lawyer occu-

Firms may want to even offer discounted or free

pancy expense at a large firm in California is nearly

legal services to prospective and existing clients for

$30,000.24 Some of these attorneys can work re-

more standardized services. This can lead to a long-

motely through mobile and collaborative web tech-

term productive attorney-client relationship and

nologies. Firms can bring these attorneys on an as

expanded specialized services. While information-

needed basis. They can outsource and automate

sharing may be contrary to the traditionally closed

the legal processes that do not require an associ-

nature of the legal profession, it may well create

ate’s know-how or violate professional standards of

new business for law firms.

conduct.25

Firms can also work together, with inter-firm

Firms should harness the power of a web

sharing on non-privileged information, and a shar-

presence as a platform to create lasting relation-

ing of clients for more spe-

ships through online social

cialized issues.

networking tools. Firms can

The firms

themselves can achieve efficiencies by sub-specializing. However, there is a considerable debate on how technological changes may affect or threaten the adequacy of traditional ethical rules re-

“Firms should harness the power of a web presence as a platform to create lasting relationships through online social networking tools. “

garding privilege and privacy. 22

now connect with potential clients on a more personal and responsive level. Blogging is a platform on which attorneys can market their specialized services to the world and connect in a more informal manner.

Micro-

blogs like Twitter are still fairly novel, but appear Firms should also take advantage of new

ideal for promotion and informal advertising. For

collaborative tools to create an organized and effi-

example, LLS alumnus Mark Geragos has 3,400 fol-

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LoyolaJournal.com | 70

lowers on Twitter.26 He often tweets interesting

advantage of the new variety of technologies to

quotes, and about upcoming appearances on Larry

find employment in a bad economy and changing

King Live or to visit LLS Professor Levenson’s Crimi-

legal industry. As firms strive to adapt to the glob-

nal Law class. This technology is, at least, a support

alized marketplace, new attorneys can help these

tool that keeps him in the public eye and maintains

firms prepare to serve clients globally by being the

his enviable reputation as a lawyer for the stars.

early adopters with the know-how to implement

The cost of maintaining a web presence is

and use new techniques and technology.

minimal compared to the benefit of acquiring new clients. The only true cost is time invested.

According to recent surveys, big law firms

Of

hire twenty percent of LLS’s graduating class. Even

course, attorneys having an Internet presence must

for that group, such a career path no longer repre-

be careful not to form unintended attorney-client

sents the choice of comfort and security.29 Due to

relationships, violate attorney-client privilege, or

deferrals and layoffs, ”Big Law” jobs are even less

engage in any improper advertising or solicitation.27

likely for new grads, and even if hired, an associ-

Firms should look ahead and work quickly to

ate’s career path is no longer secure. Though the

adapt and innovate to take advantage of potential

opportunities are shifting away from big firms, this

opportunities. For example, firms must prepare for

does not necessarily spell bad news for those on

an open marketplace of legal representation where

the hunt.

legal practice is less insular, where the billable hour

According to the most recent survey of the

is no longer in vogue, and where clients more often

LLS 2008 graduating class, networking is just as

take bids from attorneys.28

effective in gaining a job as it is through Career Ser-

At a minimum, firms must learn to compete

vices Job Postings/Events.29 Sending a mail-merged

in a transparent marketplace where the legal re-

cover letter and resume to 500 firms and hoping for

sources are open and clients are more knowledgea-

the best is not an effective option. This makes sense

ble. The power of open source should not be un-

given the relationship-driven quality of lawyering.

derestimated, both in the competition it creates

While developing a face-to-face relationship

and in the possibilities it allows. Those who are un-

is the best way to network, the importance of social

willing to change their working practices and extend

media cannot be disregarded for jobseekers as well.

their services may encounter many more obstacles

First impressions are now rarely made in person.

to success.

More likely, a quick Google search often leads recruiters to applicants’ personal information on sites

Job Hunting in a Changing Climate

like Twitter, LinkedIn, and Facebook. Jobseekers

Students must strive to have not only a solid com-

should use these platforms to present themselves

mand of legal doctrines, but also a deep under-

advantageously, especially on public profile sites

st

standing of the changing economics of a 21 Centu-

like LinkedIn. At the same time, they need to be

ry law practice. Graduating students may find it

aware of what they put on these sites that they

easier than firms to embrace change and to take

would not want prospective employers of clients to

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LoyolaJournal.com | 71

see. Online personal profiles can provide a more comprehensive snapshot of a candidate than a onepage template resume. Recent Loyola graduates can also use the services of the career center. Career advisors will work intensively with job seekers for seven months after the Bar exam.30 In general, a great deal of associate time has been replaced by new technology and alternative means of legal sourcing. Young attorneys must make themselves indispensible by finding areas of the law that cannot easily standardized or replaced.31 In a knowledge-based industry, at a time when much information is becoming freely available, specialization can prove invaluable. Moreover, being especially mobile and accepting contract work may not only provide a steady stream of income, but can also provide a level of specialization, experience, and opportunity to network – all beneficial for career advancement. Lawyers who embrace emerging developments and novel ways of sourcing legal work are more likely to find success, even if it is not in an anticipated traditional role. By successfully navigating a sea of change in the legal industry, both law firms and young attorneys will be at the forefront of innovation in the emergent high-tech legal marketplace.

Strategic

adaptation is key, while always being careful to preserve the legal culture of professionalism. ♦♦♦ Written by Paul McCullum Questions? Comments? E-mail Paul at Paul.Mccullum@loyolajournal.com

End Notes 1. LawShucks.com 2. Email from owner of Lawshucks.com, to Paul McCullum (February 10, 2010).

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3. Enrollment and Degrees Awarded 1963-2008, http:// www.abanet.org/legaled/statistics/charts/stats%20%201.pdf. 4. Above the Law Home Page, http:// www.abovethelaw.com/ (last visited Jan. 10, 2010). 5. State Bar of California, Member Demographics (2010), http://members.calbar.ca.gov/search/ demographics.aspx. 6. Enrollment and Degrees Awarded 1963-2008, http:// www.abanet.org/legaled/statistics/charts/stats%20%201.pdf. 7. Mark Greenbaum, No More Room at the Bench, Jan. 8, 2010, http://www.latimes.com/news/opinion/ commentary/laoe-greenbaum82010jan08,0,1467294.story. 8. Paul Lippe, Preview of the 2011 Legal Landscape, Oct. 14, 2009, http://www.legalrebels.com/posts/ paul_lippe_preview_of_the_2011_legal_landscape/. 9. Google Scholar Home Page, http://Scholar.google.com (last visited Dec. 23, 2009). 10. California Bar Website, http://calbar.ca.gov (last visited Feb. 1, 2010). 11. Interview by Paymon Khatibi with Robert Shapiro, in Los Angeles, Ca. (Sep. 24, 2009) 12. LegalZoom Home Page, http://LegalZoom.com (last visited February 13, 2010). 13. Law Shucks, http://lawshucks.com/lateral-tracker/. 14. Laid-off Lawyers, Cast-Off Consultants (2010), available at http://www.economist.com/ businessfinance/displaystory.cfm? story_id=15330702. 15. Laid-off Lawyers, Cast-Off Consultants (2010), available at http://www.economist.com/ businessfinance/displaystory.cfm? story_id=15330702. 16. Law-scribe.com 17. Marty Schwimmer, What Would a Real Virtual Law Firm Look Like, July 12, 2006, http:// betweenlawyers.corante.com/archives/2006/07/12/ what_would_a_real_virtual_law_firm_look_like.php . 18. Jeff Jarvis, Buzz Machine, Feb. 11, 2009, http:// www.buzzmachine.com/2009/02/11/a-googleylawyer/. 19. California Rules of Professional Conduct (2010), available at http://www.calbar.ca.gov/state/calbar/ calbar_generic.jsp?cid=14053. 20. Thomas Friedman, The World is Flat 3.0 (Picador, 2007). LoyolaJournal.com | 72

21. Richard Sussking, Disaster Ahead for Lawyers Unwilling to Change, Oct. 14, 2009, http:// www.legalrebels.com/posts/richard_susskind. 22. Quote from LLS Professor Vairo 23. Google Wave, wave.google.com (last visited, January 18, 2010). 24. Jeff Jarvis, Buzz Machine, Feb. 11, 2009, http:// www.buzzmachine.com/2009/02/11/a-googleylawyer/ 25. Richard Sussking, Disaster Ahead for Lawyers Unwilling to Change, Oct. 14, 2009, http:// www.legalrebels.com/posts/richard_susskind. 26. Twitter, http://twitter.com/markgeragos. 27. California Rules of Professional Conduct, Rule 1-400 Advertising and Solicitation, available at http:// www.calbar.ca.gov/state/calbar/calbar_generic.jsp? cid=14053&id=3422 (follow “Current Rules”; then click on “Rule 1-400”). 28. Jeff Jarvis, Buzz Machine, Feb. 11, 2009, http:// www.buzzmachine.com/2009/02/11/a-googleylawyer/. 29. Loyola Law School Office of Career Services, Final Employment Report for the Class of 2008 (2009), http://intranet.lls.edu/careerservices/stats/ employmentstats.pdf. 30. Loyola Law School Career Services Website, http:// intranet.lls.edu/careerservices/ 31. Paul Lippe, Preview of the 2011 Legal Landscape, Oct. 14, 2009, http://www.legalrebels.com/posts/ paul_lippe_preview_of_the_2011_legal_landscape/.

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