Pre law society law review journal spring 2017

Volume 123 Volume

1/15/2015

Number 1

The Wellesley College Law Journal Spring 2017 Fall 2016

Copyright@ The Wellesley College Pre-Law Society prelawsociety@wellesley.edu 1

Table of Contents

Letters from the Pre-Law Community Pre-Law Advisor .............................................................3 Pre-Law Journal Editors ................................................4 Presidents of the Pre-Law Society ................................5

Articles:

“Brexit: An Idea Whose Time Has Come”.........................................6 Angela Coco, Class of 2019

“How Public Opinion on Social Policy is Formed” .......................10 Kathryn Cross, Class of 2020

“Justice Ginsburg: The Tortoise Who Won the Race”..………...14 Shrunothra Ambati, Class of 2020

“Reforming Presidential Elections in the United States”................21 Arielle Schoen, Class of 2019

“Blackmun: The Great Dissenter and Outsider”.............................27 Laura Sheets, Class of 2019

“Neuroscience: An Unsuitable Punisher”.........................................34 Meha Ahluwalia, Class of 2020

“Current Failures in Addressing Prostitution”.................................42 Hajin Park, Class of 2017

“How does the 2002 Californian Paid Parental Leave Law (CA-PFL) affect female labor force participation rates within the state?” ………………………………………………………….50 Cassandra Allen, Class of 2018; Constance Gouélo, Class of 2017; Ellie Neustein, Class of 2018; Danni Ondraskova, Class of 2018

“Memo 3: Whole Woman’s Health v. Hellerstedt”.........................71 Arielle Schoen, Class of 2019

“James Madison and Antifederalists: A Dichotomy” .....................74 Kathryn Cross, Class of 2020

“A Third World War? U.S. Security Interests in the Senkaku Islands” ….76 Hajin Park, Class of 2017

“Corruption and Oppression within the Prison-Industrial Complex”................................................................................................90 Arielle Schoen, Class of 2019

“The Death Penalty: An Immoral Punishment”..............................95 Malley Chertkov​, Class of 2019

“Who Has the Right to Die?: An Analysis of Physician-Assisted Suicide” ................................................................................................101 Angela Coco, Class of 2019

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Letter from the Pre-Law Advisor

As the new pre-law advisor at Wellesley, I am thrilled to be able to contribute to this journal and partner with the Pre-Law Society. The role of the prelaw advisor is to provide students and alumnae, who are interested in law careers, with the resources to make informed decisions, the guidance to navigate uncertainty, and the support to ensure a successful application process.

In my advising sessions, I often discuss steps you can take to help determine if law school is aligned with your career goals. Informational conversations, shadowing opportunities, and internships are great tools to help you identify your interests. Understanding the practical application of the law and hearing about the experiences of others can give invaluable insight and guidance into the exploration process. Additionally, I encourage students to engage in campus activities that will help inform and confirm their interest in legal careers. This can include taking a class that teaches about our legal system, joining organizations such as the Pre-Law Society, or contributing to this journal. Regardless of where you are in your path to law school – if you’ve always thought of being a lawyer but aren’t sure where to begin or if you’ve just submitted law school applications – reading or contributing to this law journal can serve as an introduction to legal concepts, provide you with exposure to some of the topics within the law, and highlight how the legal system influences our lives.

As the semester comes to an end, I encourage you all to take some time to rest, recharge, and reflect on your passions and interests. You should all look to what new conversations or experiences lie ahead, as you start or continue to explore the legal profession. I have been fortunate to meet with many of you this semester, and I look forward to meeting more of you in the coming months and years. I wish you all a restful winter break! Happy Holidays!

Sarah Ahmed Career Community Advisor, Government, International Affairs, & Law 3

Letter from the Journal Editors

Welcome to the ​Wellesley College Pre-Law Society Law Review Journal: ​Volume 3!

Published twice a year, the ​Wellesley College Review Journal ​is the premiere location for students, professors, and alumnae to publish their thoughts on human rights, politics and policy, as well as general law. The ​Wellesley College Pre-Law Society Law Journal​ is an entirely student-run organization. All articles are selected, edited and published by the Review's Executive Board, elected by the Society on a yearly basis.

This year’s theme has been ​What is Important to You? ​Encouraging students to submit and write articles, opinions pieces, and papers that express what is important to the writer at the moment. We hope you enjoy these ten incredible papers, learning and becoming inspired as you go.

Angela Coco ’19, Journal Editor-in-Chief Kathryn Cross ’20, Journal Editor

Facebook link: ​https://www.facebook.com/prelawwellesley Website: ​http://prelawwellesley.wix.com/lawdomain

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Letter from the Presidents As Presidents of the Wellesley College Pre-Law Society, we are honored to uphold and further our mission in administering to Wellesley’s legal community. Therefore, we are thrilled to present one of our largest projects of the semester: the Wellesley College Law Journal. A special thanks to our Editors, Angela Coco and Kathryn Cross, for their effort in compiling these articles and creating the final product.

As an organization, we aim to sponsor law-related events and provide resources for students interested in the legal field. Over the past semester, the Pre-Law Society has worked closely with Wellesley’s Career Education Department and Sarah Ahmed, the advisor for Government, International Affairs, & Law. Together, we have organized information sessions with the purpose of guiding students through the law school application process. Some of our past sponsored events have included the Brandeis Law School Reception, where students had the opportunity to meet representatives from law schools and participate in discussion sessions, and a “Thinking About Law School?” presentation by UCLA Law Director of Admissions, Danae McElroy '03. Furthermore, the Wellesley College Pre-Law Society is excited to continue our partnership with Kaplan Test Prep to resources for standardized test preparation.

On behalf of the Pre-Law Society Executive Board, Katherine and I extend our thanks to the Center for Work and Service, Sarah Ahmed, the pre-law advisors Professor Tom Burke and Professor Nancy Sherer, and the pre-law community, which continues to grow stronger every year. Our goal for the spring of 2017 will be to host more events to foster community and establish mentorships between upperclassmen, alumnae, and underclassmen. We plan to work closely with the Wellesley College Alumnae Attorney Network and invite lawyers from diverse branches to spark discussions on post-graduation experiences in the judicial and legal field. In the coming months, we hope to continue our efforts in expanding our presence on-campus and beyond, and we invite you to join our community.

All the best, Stacey Kim ’19 and Katherine Wang ’19, Co-Presidents

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“Brexit: An Idea Whose Time Has Come” Angela Coco ’19

Whether you think Brexit is a good or a bad idea, at this point, one thing is beyond doubt; the UK separating from the EU is an idea whose time has come. This is not something that just happened out of the blue. What the world witnessed on June 23, 2016 was the culmination of a pressure movement that started over 20 years ago. This movement has evolved and devolved across the years and has bided its time, exploiting every national and political crisis to achieve its end.

Choosing a starting point for this explanation is a bit arbitrary. There have been so called “eurosceptics” since 1973 when the UK first joined, what was then called, the European Community. But, if I had to pick a date, I would pick September 20, 1988, when Prime Minister Margaret Thatcher gave a famous speech in Bruges, laying out a number of the ideas that would influence euroscepticism for years to come.1 The result of this speech was something called “The Bruges Group,” a conservative think-tank that promoted rolling back the EU’s trend toward centralization. This occurred simultaneously with the end of the Soviet Union, the world’s great experiment with socialism. The Soviet Union’s form of one-party centralization was a feared prospect by many.

One member of the Bruges Group, historian Dr. Alan Sked, took the Soviet one-party centralization ideology into his own hands, and launched his own political organization. The party was called the Anti-Federalist League and its one aim was to remove Britain from the EU.2 But Sked’s party had problems from the beginning. In 1992, the AFL went up for only one seat in

Thatcher, Margaret.​ "Speech to the College of Europe ("The Bruges Speech")". Margaret Thatcher Foundation. 20 September 1988.<​http://www.margaretthatcher.org/document/107332​.> 2 ​Malik, Shiv. ​"Ukip founder creates new leftwing anti-EU party"​. ​The Guardian​. (8 September 2013) 1

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parliament, receiving .2% of the vote, with the same result in 1995.3 The movement lost faith in Sked’s ability to lead, and there were internal arguments about whether the party, which was soon renamed UKIP (UK Independence Party), should remain a single issue pressure group or expand into other issues, becoming, in effect, a real party.

In 1994, a rival eurosceptic party called the Referendum Party exploded onto the scene, led by billionaire James Goldsmith, who had no such problems with party infighting. All he wanted to do was have a legally binding referendum on leaving the EU, and after that goal was achieved, the party would disband. The Referendum party trounced UKIP in 1997, but Tony Blaire and the rise of New Labor (the Labor Party), which would hold the country for the next 13 years, trounced both the Referendum Party and UKIP.4 But yet, for those looking closely, it was possible to see a lane opening up for doubt in the EU. In ’92, only 9% thought Britain should leave the EC (European Community). But, by ’97, that number had risen to 14%. If you add that to the number of people who thought that the EC should at least reduce its powers, there is 66% of the electorate who were expressing some form of euroscepticism at that time.5 There are a number of reasons why Europe was brought into voter’s minds at all, but the most significant is the signing of the Maastricht Treaty and the adoption of a single currency. The adoption of the Euro in the EU was something that, in 1997, only 16% of British people were in favor of. Despite these trends, UKIP looked dead in the water, but it was about to hit a few strokes of good luck, well, bad luck for James Goldsmith who passed away shortly after the 1997 election,6

​Ford, Robert; Goodwin, Matthew. ​Revolt on the Right: Explaining Support for the Radical Right in Britain​.

(London: Routledge, 2014), 21-24.

4 Ibid., 30.

5 Wilson, Sam. “Britain and the EU: A Long and Rocky Relationship.” ​BBC News​, April 1, 2014, sec. UK Politics. <​http://www.bbc.com/news/uk-politics-26515129​.> 6 ​Youssef M. Ibrahim, “Sir James Goldsmith, Financier, Dies at 64,” ​The New York Times​, July 20, 1997, http://www.nytimes.com/1997/07/20/world/sir-james-goldsmith-financier-dies-at-64.html​.

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effectively disbanding the Referendum Party, UKIP’s only competitor.

After Goldsmith’s death, Alan Sked was replaced by more populous figures like Nigel Farage, who won a seat in 1999 in, ironically, the European Parliament. In 2001, despite not winning any parliament seats in Westminster, UKIP had become the 4​th​ party in the UK after Labour, Conservatives, and Liberal Democrats.7 UKIP’s profile rose even more when Robert Kilroy-Silk, a former MP and Chat-show personality joined the cause. Kilroy-Silk was a controversial figure, 8

stemming mainly from an article he wrote called, “We Owe Arabs Nothing.” Kilroy-Silk delivered UKIP’s largest victory in 2004, as European parliamentary elections, coming in 3​rd​ above the Liberal Democrats; however, more party infighting ousted him from the party within that year.9 Yet his example shows the willingness of UKIP to engage in the worst forms of populism: race baiting, nationalism, and fear.

Throughout the 2000s and into the 2010s, UKIP capitalized on a growing sentiment among the British people of national decline in the post-war colonial era, most keenly felt by older citizens who made up the core of the vote to Brexit. They capitalized too on the financial meltdown in 2008, the riots that swept the country in 2011, the migrant crisis and international terrorism. UKIP and the far right also assigned faux devils to many of these cases like immigrants, Muslims, minorities, and welfare recipients. All of these scapegoats can bolster resentful nationalism, but they have to be triggered by something closer to home. In this case, research points to class trajectory. People felt their quality of life declining from their childhood: their neighborhoods declining, their incomes buying less, their homes smaller, their happiness disappearing.

We cannot say that UKIP is the sole force behind Brexit, but we can say that it has been ​Ford, Robert. ​Revolt on the Right.​, 35.

Kilroy-Silk, Robert. “We Owe Arabs Nothing.” ​Daily Telegraph, ​January 4​th​, 2004.

9 Etheridge, Bill​. ​The Rise of UKIP​. (Epsom: Bretwalda Books, 2014), 13-14.

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there throughout the years to link these very real feelings of the falling trajectory in life quality to emotions about national decline and moral panics that grip the public in fear, growing from minuscule roots to a significant player in the country’s politics. The UK is not a far-right state with a nationalistic, anti-immigrant, and racist people. But their decision to leave the EU, won by a 52% majority of 72% of the population, can be viewed as an expression of a reactionary far-right politics.

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That is the point about far-right organizations; they use the fulcrum of populism and fear to lift

many times their weight in people.

The ideas that animated this vote are there in Thatcher’s speech in 1988. Of course, the irony is that Thatcher herself campaigned for the UK to join the EC the first time in 1975. The even greater irony is the unchecked capitalism she championed as Prime Minister led to a form of globalization that has ravaged the middle class- the same frustration that UKIP exploited to advocate a leave vote. But that is the difference forty years can make. Brexit re-contextualizes all these small phenomena, threads a string through them, and shows that transformation does not always have to move forward.

FURTHER READING:

Richard Seymour, "UKIP and the Crisis of Britain" Monthly Review Press, NYU Press. (2015)

David Denver, Justin Fisher, Philip Cowley, "British Elections & Parties Review: the 1997 general election" (pg. 98)​ ​https://books.google.com/books?id=nJa...

The Bruges Group Website:​ ​http://www.brugesgroup.com/

“EU Referendum Results,” ​BBC News,​ accessed April 6, 2017, <​http://www.bbc.com/news/politics/eu_referendum/results​.> 10

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“​How Public Opinion on Social Policy is Formed” Kathryn Cross ’20

Various American citizens’ interactions with social programs, personal incomes, involvement/experiences with political and social institutions, and an inherent philosophically conservative, but pragmatically liberal attitude all shape one’s own public opinion on social policy.

Consequently, each individually affect support for social insurance, social assistance, and tax expenditures--essentially United States social policy.

First of all, Americans’ mobility and equality forces some to experience certain social programs that prompt subsequent political inactivity. Aid for Families with dependent Children is an example. Most clients of the AFDC have to face the bureaucratic process of having numerous caseworkers examine their lives, and they have to reveal quite private information about themselves to the federal government. Accessing and finding aid to receive can be quite arduous, so numerous people who are directly involved with social assistance (or even social insurance) programs may develop a dislike for the government or a distrust in the government’s efficacy. Consequently, this public opinion may make these people vote against these type of programs or not vote at all on any social policy--but especially inefficient social assistance programs. Mobility and inequality also play a role in this because usually those who are most involved with these social assistance programs are disadvantaged and living in the negative side of an unequal society. Furthermore, one’s dependency on the social programs may prevent mobility-- especially if these programs are slow, ineffective, annoyingly bureaucratic, etc. To make matters worse, many of these programs are. For instance, Massachusetts Institute of Technology Political Science Professor and Scholar Andrea Campbell illustrates in her publications how many citizens, such as her own brother and sister-in-law had to stay at the poverty line in order to reap certain necessary social benefits--specifically when her 10

sister-in-law became a quadriplegic. Undoubtedly, inequality and immobility in America’s society forces people to experience inefficient social programs, which shapes their public opinion of them and leads to political inactivity.

Additionally, Americans’ innate attitudes regarding hard work, the American dream, and the blame/deservingness affect public opinion, which ultimately shapes public support for certain social policies. Abstract conservatives, but operational liberals prove this. Surveys show that many citizens--in theory--want little government involvement in social policies. This is because--in theory--many people believe that those who work hard can be socially mobile, attain wealth, and then ​deserve​ the benefits of having mental health and thus social security and social insurance. In theory, many people believe in the American dream, blame people who do not work hard, and believe that only those who deserve social benefits should earn them--in essence, people have a conservative outlook. So, social assistance and tax expenditures are not necessary since people should ​earn​ what is given out in assistance, such as food stamps. Nonetheless, there are also survey responses and studies that show how people are operationally liberal. When people are asked to actually do something involving social policy, they have the liberal view that disadvantaged people should be helped atall costs because mobility is difficult and equality should be a societal goal.

Consequently, people are--for instance--willing to pay higher taxes in order to better the education of everyone in society--even if it means that wealthier people lose money and give it to those that are abstractly “less deserving.” Undoubtedly, there are people that are abstractly conservative, but operationally liberal. This affects public opinion because people--in theory--tend not to trust the government (especially after instances, such as the Vietnam War or the Watergate scandal), so people may tend to gather this public opinion of distrust. So, when it comes to voting or supporting

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social programs that do not apply to them, they may vote against government involvement and social assistance, especially. On the other hand, when it comes to programs where they have to take direct action and think pragmatically (or they are affected by the program), they may be more liberal.

So, there is public support for social policies, social insurance and assistance on education, health care, and more because they affect everyone, so citizens are forced to think and vote pragmatically--which often leads to a liberal stance. Clearly, citizens’ inherent abstract conservatism and operational liberalism shapes public opinion and public support.

Varying income, overall American inequality, and political institutions also shape public opinion and public support of certain social policies. If a citizen has a high comparative income, he or she would generally not need social assistance--just a social safety net of social insurance. So, those with higher incomes tend to support a more conservative outlook that gives social insurance to those who deserve it. However, they will vote for what will protect their worries and insecurities.

Inequality does exist in today’s society, so those with lower comparative incomes need--on the contrary--social assistance to combat their own pre-existing issues. Nonetheless, these people may be exposed to the wrath of inefficient social assistance programs, so they may not vote at all in order to completely disassociate with anything governmental. Consequently, the main demographic of people voting are people who mainly endorse social insurance--and not as much social assistance.

Those who are educated and wealthy are more likely to vote anyway. So, this further pushes the development of social insurance programs--which boost the wealthy more than the disadvantaged, as opposed to social assistance or tax expenditures. Income unequivocally shapes public opinion and action for social policies.

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Clearly, American inequality, an innate abstractly conservative, but operationally liberal outlook, and personal experiences with certain institutions form certain public opinions about blame/deservingness and governmental involvement in social policy. This ultimately shapes support or lack thereof of social insurance, social assistance, and tax expenditures--essentially, social policy.

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“Justice Ginsburg: The Tortoise Who Won the Race ” Shrunothra Ambati ’20

From the Supreme Court bench, nine imposing justices stared intently at lawyer Ruth Bader Ginsburg as she prepared to deliver her argument in ​Weinberger v. Wiesenfeld ​(1975). Stephen Wiesenfeld, whose wife had recently passed away, had been denied Social Security benefits. At the time, women could easily collect them because the government assumed that their husbands were the primary breadwinners, and widows would be unable to support themselves or their families without Social Security income. Ginsburg confidently asserted that this particular provision of the Social Security Act and similar policies “put women not on a pedestal, but in a cage” (Ginsburg qtd. in Steinmetz). The laws that seemingly made women’s lives easier actually reinforced the notions that they should not work, were not independent, and needed help more than men because of women’s “fragility.” The Court ruled unanimously that Stephen Wiesenfeld was entitled to Social Security benefits, a significant win for Ginsburg’s fight for women’s equality. This case, like the others she argued for male plaintiffs, was a deliberate step in a long-term strategy meant to not only illustrate how gender discrimination is detrimental to the lives of both men and women, but also to elevate women to the same standards held to men (“Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff”). Justice Ginsburg’s experiences with discrimination throughout her education and early career deepened her commitment to breaking down barriers to gender equality and influenced her egalitarian philosophy, which her vehement dissents in ​Gonzales v. Carhart ​(2007) and ​L​ ​edbetter v.

Goodyear Tire & Rubber Co.​ (2007) illustrate.

The ​Gonzales v. Carhart ​ruling in 2007 was a huge setback for reproductive rights’ advocates because the Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003, which prohibited all 14

late term dilation and extraction procedures without exceptions for the mother’s health. The Act defined partial-birth as “entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother” (18 U.S.C. § 1531). The language in the opinion written by Justice Kennedy is horrifically descriptive concerning the method of extraction, suggesting that the opinion was meant to evoke certain emotions of horror, guilt, and sympathy for the fetus and against the mother who wanted to abort it.

Justice Ginsburg, evidently furious, wrote in her dissent that: Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion...Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent (​Gonzales v. Carhart ​571).

The Court was not instituted to impose its own type of moral judgment upon the country; rather, its purpose is to uphold the rights of citizens protected by the Constitution. ​Roe ​had upheld a woman’s right to choose and ​Casey ​had struck down laws that posed an “undue burden” upon women, but the Court, by a 5-4 margin, had decided that the Partial Abortion Act was not unconstitutional, despite the lack of a health exception and the clear transgressing of women’s personal liberty. Justice Ginsburg sharply proclaimed that the Court had infringed upon women’s rights that cases like ​Roe (1973)​,​ ​Casey ​(1992), ​Stenberg ​(2000) had established and guarded.

It took many years for Ruth Bader Ginsburg to develop her fierce persona and gain the courage to speak out against injustice. During her two years at Harvard Law School, she faced

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multiple forms of discrimination but did not ever think to complain about it. In a moment of atrocious sexism, Harvard Law Dean Erwin Griswold, asked her and all the female students - there were only nine at the school during that time - how they could justify taking a man’s place at the school (Carmon 34). From professors asking uncomfortable questions to law firms with “Men Only” interview sign-up sheets to a lack of a women’s restroom in the exam hall, female students at Harvard were just barely tolerated and thought of as an inconvenience (Carmon 35). After years of quietly accepting the discrimination dealt out to her, Rutgers School of Law offered her a teaching position, and told her that she would not earn as much as the men. However, during her time at Rutgers, she saw female students stand up for themselves and call out injustices, which inspired her to fight back. She read hundreds of letters to the New Jersey ACLU about the double standards, unfair policies, and restrictions that women faced. Inspired to act and make a difference for themselves, she and the other female professors filed a federal pay discrimination suit against Rutgers (Carmon 49). They won their case; this signaled a shift in her attitude towards gender discrimination to an active and vocal feminist.

Justice Ginsburg uses her intelligence and influence and her platform on the Supreme Court, to advocate for women all over the country. This is evident in her dissent in ​Ledbetter v. Goodyear Tire and Rubber Company ​(2007)​. ​Lilly Ledbetter, an employee of Goodyear Tire and Rubber Co., filed a gender discrimination suit against the company under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, race, color, or origin. Ledbetter won money damages, but Goodyear appealed the decision, citing a provision that complaints had to be filed within 180 days of the discriminatory act. The Eleventh Circuit U.S. Court of Appeals vacated the damages awarded and dismissed Ledbetter’s claim, finding insufficient evidence of

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discrimination in the last annual reviews that could have affected her salary before the 180 days statute of limitations ran out (​"Ledbetter v. Goodyear Tire and Rubber Company")​. The majority held that Ledbetter should have filed claims of wage discrimination within the 180-day statutory limitation period (​Ledbetter v. Goodyear Tire & Rubber Co. ​620)​.

The Civil Rights Act of 1964 was passed to stop workplace discrimination based on unchangeable physiological characteristics, but provisions such as the one Goodyear based its appeal on made it hard to compensate those whom the law was meant to protect from such conduct.

Finding the Court veering from the path to women’s equality that she had worked so hard to advance, Justice Ginsburg read her biting dissent from the bench, the second time she had done so in that term. In her oral summary of her dissent, she criticized the irony of the Court’s decision in holding that Ledbetter should have sued earlier to fall within the 180-day period, yet wanting fewer civil rights suits in federal courts. Justice Ginsburg also highlighted the unrealistic expectations of the Title VII statute of limitation provision. Companies do not often publish salary comparisons, so women may not know whether they are being paid less than men. Also, it is difficult to ascertain early on whether pay discrepancies are a result of discrimination or other performance factors because one can only see the big picture after receiving multiple paychecks (Carmon 137). Just as in law school, where Justice Ginsburg was perceived as quiet, and not someone to cause trouble, she had never given observers reason to think she might cause too much discord on the Supreme Court.

With ​Gonzales ​and ​Ledbetter​, she drew much attention to the fact that there were many aspects of gender discrimination that her male colleagues would never truly understand.

Justice Ginsburg’s own experiences with employment discrimination in her early career influenced her passionate dissent. Although she graduated tied for first in her class at Columbia Law 17

School, she faced a difficult time finding a job at a firm or a judicial clerkship. Finally, after her constitutional law professor at Columbia threatened not to send any other clerks to a Federal judge who relied on her professor’s recommendations, if he did not give Ginsburg a chance, she got a position. Justice Ginsburg said of Ledbetter’s case, “It’s the story of almost every working woman of her generation, which is close to mine. She is in a job that has been done by men...[and] she doesn’t want to rock the boat” (Carmon 136). The legal profession was, and is, still dominated by men.

Justice Ginsburg and Ledbetter each had insight into one another’s lives in a different way than the men on the Court did; they both were in different occupations but had still experienced the same sexism that almost all women will experience.

Despite its intense criticism of the ​Ledbetter ​majority decision, it is not Justice Ginsburg’s dissent in the ​Ledbetter ​case that is so remarkable, but the way she worked outside the courtroom with the legislative and executive branches to revise the parts of the law she did not agree with by openly voicing the faults of the law and holding them accountable. This is another example of her long-term strategy to advance women’s rights. She knew that for women to be able to stand and build on one another’s work, there had to be a strong foundation of intergovernmental cooperation and effort. Justice Ginsburg pushed Congress to amend the Civil Rights Act of 1964 by reading her dissent from the bench and rewriting it in layman’s language. When President Obama first took office, Congress amended the law, and President Obama signed into law as the Lilly Ledbetter Fair Pay Act of 2009, a bill that resets the 180-day limitation statute to start running again with every new paycheck. (Carmon 140). She had found a way for equality to move forward and to further her cause without the Court's backing.

The Supreme Court is not always the best place to make progress on certain issues that 18

affect the whole country. From the early days of her work with the ACLU to her time on the Supreme Court, Justice Ginsburg always took a measured approach to her cases. She said, “Real change, enduring change, happens one step at a time” (Carmon 60). In a talk at NYU in 1992, as part of the Madison Lectures, Justice Ginsburg cautioned against a judiciary making sweeping decisions and drastic changes, which history has shown again and again to be destabilizing. She cites the ​Roe ​decision, musing: Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation [Texas statute criminalizing all abortions except those to save the life of the mother], and had not gone on, as the Court did in ​Roe​, to fashion a regime blanketing the subject, set of rules that displaced virtually every state law then in force.

Would there have been the twenty-year controversy we have witnessed...? (Ginsburg 1199).

She claims that it would have been less controversial to rule on the issue on a case by case basis rather than running with the hot social issue and leaving the country in the dust. Tackling smaller sex discrimination cases like the many that came after ​Roe​ would have provided a much needed base on which larger abortion cases could have rested.

Justice Ginsburg has been instrumental in the fight for gender equality. One can only fully appreciate her methodological approach to pursuing cases after seeing their cumulative effect. She did not let past discrimination she experienced hinder her from achieving more for other women; she persevered through tragedies, hardships, and injustices to pursue a goal for the greater good.

Without her efforts, women in America would not have many of the opportunities and freedom they have today.

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Works Cited Carmon, Irin, and Shana Knizhnik. Notorious RBG: The Life and times of Ruth Bader Ginsburg.

New York, NY: DEY ST., an Imprint of William Morrow, 2015. Print.

Ginsburg, Ruth Bader. “Speaking In A Judicial Voice.” New York University Law Review 67, no. 6 (December 1992): 1185–1209.

Gonzales v. Carhart, 500 U.S. 124 (2007) Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) "Ledbetter v. Goodyear Tire and Rubber Company." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Nov 30, 2016. <https://www.oyez.org/cases/2006/05-1074> Steinmetz, Katy. "How Ruth Bader Ginsburg Found Her Voice." Time. Time, n.d. Web. 13 Nov. 2016.

"Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff." American Civil Liberties Union.

N.p., n.d. Web. 13 Nov. 2016.

18 U.S.C. § 1531

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“Reforming Presidential Elections in the United States” Arielle Schoen ’20

Due to the flawed nature of the current presidential electoral system of the United States, I believe that four major changes should be made to the process. First, I advocate for the elimination of super PACs because they offer wealthy citizens a greater opportunity to participate in politics than their lower income counterparts. Second, voter identification laws should be removed because, in their current state, they deny the right to vote to many citizens. Third, all states ought to hold their primaries on one day; indeed, the fact the primaries are spread among different days makes some states more influential than others in selecting presidential nominees. Finally, I am in favor of the elimination of the Electoral College, since getting rid of the Electoral College would give equal significance to the votes of all people.

The first change I recommend to the presidential electoral system is the outlawing of super PACs. Super PACs are federally registered political action committees that raise unlimited contributions from extremely wealthy individuals, corporations, labor unions and other entities, and 11

spend these funds to make “independent” expenditures in federal elections. By way of the First Amendment, the rich have the right to spend in order to influence politics. In 2010, in ​Citizens United v. F.E.C.​, the Supreme Court gave unions and corporations the same freedom to spend independently in political elections. However, while the money that the rich and corporations give to campaigns and PACs is limited by strict laws, the money that the rich and corporations give to super PACs is unlimited. In a system where there is an unending flow of money to super PACs, the legislative process becomes corrupted to benefit the top one percent of earners and to harm the

Fred Wertheimer. “Super PACs a disaster for democracy.” ​CNN​, February 15, 2012. www.cnn.com/2012/02/15/opinion/wertheimer-super-pacs/ 11

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majority of taxpayers. The existence of super PACs gives a greater voice to those with a greater ability to pay and forces law-makers to attend to the wishes of the wealthy, who can afford to make major donations. However, low-and middle-income citizens cannot afford to contribute nearly as much to super PACs as their wealthy counterparts. Thus, the existence of super PACs means that the rich have more political power relative to the poor, since they can pour money into super PACs and, in so doing, influence politics. In this way, super PACs eliminate the possibility for equal participation among the rich and the poor. This is problematic because we can expect that the rich’s increased participation will pay off; furthermore, legislators will probably pay more attention to wealthy people and their policy needs due to the money they receive from wealthy people through their unlimited donations to super PACs. The second change for which I advocate is the elimination of voter identification laws. The history of voter identification laws extends back to 1950, when states first requested that voters show some form of identification in order to receive a ballot. Since 1950, voter identification requirements in many states have grown more stringent, from mandating documentation bearing the voter’s name to requiring documentation that also features a photograph of the voter. Today, a total 12

of 34 states have laws requiring voters to show some form of identification at the polls.

Proponents of voter ID laws cite the registration of dead and out-of-state voters as a major 13

vulnerability in the electoral system. However, although those supporters argue that required proof of identification prevents fraud in elections, there is no credible evidence that in-person

Wendy Underhill. “Voter Identification Requirements | Voter ID Laws.” ​National Conference of State Legislatures​, April 11, 2016. www.ncsl.org/research/elections-and-campaigns/voter-id.aspx 13 Pam Fessler. “Study: 1.8 Million Dead People Still Registered to Vote.” ​NPR​, February 14, 2012. www.npr.org/2012/02/14/146827471/study-1-8-million-dead-people-still-registered-to-vote 12

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impersonation voter fraud is even a problem. In addition, the implementation of voter ID laws has lowered turnout in a country where turnout is a significant problem; with only 57.5 percent of eligible voters having voted in the 2012 presidential election, the United States should not be doing 15

anything that will decrease the already dwindling percentage of people who participate politically.

Furthermore, voter ID laws disproportionately discriminate against disadvantaged voters, including low-income citizens, racial and ethnic minorities, students, senior citizens, and those with disabilities, who are disproportionately likely to lack an ID and be unable to vote as a result. Requiring voters to obtain an ID in order to vote is similar to a poll tax; although some states issue IDs for free, the birth certificates, passports, or other documents required to obtain a government-issued ID cost 16

money, and many Americans cannot afford to pay for them. The application of voter ID requirements sets back the progress made in eliminating poll taxes and the “Grandfather Clause.” In this way, voter ID laws minimize the possibility for equal participation by low-income people, racial and ethnic minorities, students, senior citizens, and disabled citizens, and as a result, the politicians elected and laws passed are less friendly to these groups and their needs.

The third change I believe is necessary is the placement of all primaries and caucuses on a single day. A primary is a direct, statewide election through which voters participates in selecting the candidate for the party’s nomination. Caucuses work similarly, but voters choose a candidate through discussion wherein they can openly show support for candidates. Although there is a distinction between primaries and caucuses, I believe that primaries and caucuses should all be held

“Oppose Voter ID Legislation – Fact Sheet.” ​American Civil Liberties Union​. www.aclu.org/oppose-voter-id-legislation-fact-sheet 15 “2012 Voter Turnout.” ​Bipartisan Research Center​, November 8, 2012. www.bipartisanpolicy.org/library/2012-voter-turnout/ 16 “Oppose Voter ID Legislation – Fact Sheet.” ​American Civil Liberties Union​. www.aclu.org/oppose-voter-id-legislation-fact-sheet 14

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on the same day. With the results of a primary, delegates are awarded to candidates. Then, once the primaries are completed in all the states, a national convention is held in which a party’s delegates formally cast their votes for a candidate, and the candidate with a majority of the vote becomes the party’s nominee. At first glance, this system seems democratic. However, the scheduling of primaries influences politics in a way that diminishes the importance of some individuals’ votes relative to other individuals. For example, Iowa has held the first presidential nominating contests in the 17

country since 1972. As the first state to nominate a candidate, Iowa holds a lot of influence over the future primaries; this is true because candidates who win or perform well in Iowa are often able to build momentum towards getting the nomination; many of the presidential candidates who win Iowa eventually win the nomination. However, Iowa is not representative of the United States; for instance, Iowa is whiter and more rural than the rest of country. Yet the results of the Iowa caucus impact the other primaries considerably. The media pays a lot of attention to the Iowa results, branding candidates as winners and losers based on their performance there. Voters in other upcoming primaries may change their minds on who they will cast their votes for based upon the support or lack thereof shown in Iowa. Many candidates will also take into account their results in Iowa and quit the race prematurely. However, if we were to require all the states to hold their primaries or caucuses on the same day, this would take away the disproportional influence that Iowa voters have on the presidential nomination, since they would not be able to vote before everyone else and shape everyone else’s preferences. Indeed, if everyone votes on the same day, they cannot simply look for the candidates who have momentum coming out of Iowa – they instead must vote for the candidate with the best merits who will do the most for their community.

Sam Sanders. “Why Does Iowa Vote First, Anyway?” ​NPR​, January 29, 2016. www.npr.org/2016/01/29/464804185/why-does-iowa-vote-first-anyway 17

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The fourth and final change I would make to the presidential electoral system would be the abolition of the Electoral College. The Electoral College was established in the Constitution as a compromise between election of the President by a vote in Congress and election of the President by a popular vote of citizens. The number of electors each state has is equal to its representatives plus its senators; this allocation gives more power to small states, for whom adding 2 senators would be more significant. Although electors are appointed by state, there is no constitutional provision or federal law that requires them to vote according to the results of the popular vote in their respective 18

state; therefore, electors can support a candidate unwanted by their constituency. Because electors have the ability to cast a different vote than the one supported by the popular vote, the Electoral College is not truly democratic. Furthermore, the Electoral College is not democratic because, even though electors often vote for the winner of the popular vote in their state, this means that they are allocated via a winner-take-all system, instead of a proportional system. This is problematic because it allows for the possibility of an election in which the President is not the winner of the national popular vote, but he or she won the Electoral College vote; this occurred in the 2000 presidential election. Elections such as 2000, when the Electoral College had an anti-democratic impact, would result in significant disillusionment in a political process already abandoned by many.

In its current state, the presidential election process diminishes the extent to which each citizen has an equal right to vote. The involvement of super PACs in politics gives a voice to the wealthy whose interests typically contrast with the interests of lower-income people, people who cannot afford to compete with the power and resources of super PACs. Voter identification laws disproportionately discriminate against racial, ethnic, and socioeconomic minority voters. The lack

“Who are the Electors?” ​National Archives and Records Administration U.S. Electoral College​, www.archives.gov/federal-register/electoral-college/electors.html#qualifications 18

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of a single day for the occurrence of all primaries results in nonconformity and a lessened importance of the vote of individuals who vote in later primaries, while the Electoral College has the potential to erase the individual by giving the election to the winner of the Electoral College, and not to the winner of the popular vote . With its current problems, the presidential election system emphasizes money and discrimination over democracy. The democratic process will continue to ignore the voices of many if unchanged; therefore, we should make these changes in order to create a more democratic and more representative government.

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“Blackmun: The Great Dissenter and Outsider” -​“I no longer shall tinker with the machinery of death” Laura Sheets ’19 ​Justice Harry Blackmun, I Callins v. Collins (1994)

US. Supreme Court Justice Harry Blackmun (1908-1999) was constantly caught between his belief in a text-based, narrow interpretation of the Constitution and his self-imposed responsibility to protect and fight for “society’s underdogs” (Yarbrough 292). Stunning President Nixon who nominated him, Blackmun’s socially progressive convictions propelled Blackmun from one of the strict minimalists of the Burger Court to the forefront of the perfectionist coalition in the Rehnquist Court. Blackmun began merging his constitutional interpretation with his personal convictions with his ​Roe v. Wade​ (1973) decision, which made him an icon for his championing of women’s reproductive rights. However, Blackmun’s judicial philosophy is most accurately captured not in his Roe v. Wade​ opinion, but in his dissent in ​Callins v. Collins​ (1994), in which he spoke out against the death penalty as unconstitutional in violation of the Eighth Amendment. While ​Roe v. Wade​ stands as a landmark case for abortion rights and earned Blackmun vast fame as well as infamy, ​Callins v.

Collins​ is Blackmun’s most emblematic landmark case, capturing the evolution of his progressive beliefs and judicial philosophy when juxtaposed with his ​Furman v. Georgia ​(1972) dissent.

Blackmun’s defining crusade is not for women’s reproductive rights but for renouncing of the death penalty against the popular opinion of his fellow justices and his own past convictions.

Foundational to his progressive beliefs is Blackmun’s boyhood in Minnesota and his status as an outsider during his Harvard years. As a “proud grandson” of two Union soldiers, within Blackmun’s DNA was a strongly held belief in racial equality, as well as a “deep suspicion of the Southern states'-rights political agenda” (Lazarus n.p.). He attended the Mechanic Arts High School in downtown St. Paul, which was an interracial high school and included a large number of

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African-American students (Yarbrough 8). In high school, Blackmun interacted with African-American youth, becoming very close friends with two African-American classmates (Yarbrough 8). Through those friendships, Blackmun gained an understanding of the disparity of perspective caused by racism during his time. His ideas of racial equality leaned heavily on his complex understanding of racism and led him to frequently invoking the Equal Protection Clause of the Fourteenth Amendment when his fellow justices discounted or neglected the component of race in death penalty and other types of cases (Lazarus, ​McCleskey v. Kemp​). When pressed to vote on civil rights, racial discrimination, and states’ rights cases, Blackmun felt compelled to act on these ideals of justice and fairness with action against the state, and he expressed his compassion for the oppressed (Lazarus). In his ​Furman v. Georgia​ dissent, he said that the death penalty provided him “an excruciating agony of the spirit,” and his recognizing and defending African-Americans against state sanctioned discrimination defined his ​McCleskey v. Kemp​ (1987) dissent (407).

Minnesota was and is a state that not only holds conservative Midwestern values, such as frugality, humility, and modesty, but also holds a unique progressive social agenda against the death penalty (​Furman v. Georgia,​ Yarbrough 8). Blackmun noted in his ​Furman​ dissent that he lived “in a State that does not have the death penalty, that effectively abolished it in 1911… capital punishment had never been a part of life…In my State it just did not exist.” (406). Blackmun’s Midwestern values and socially progressive ideals regarding racial equality coupled with the unethical nature of the death penalty set the stage for Blackmun’s internal conflict between a moderate jurisprudence and progressive ideals of equality and fairness.

Further solidifying his socially progressive beliefs was his intense identification with “society’s outsiders” and those who came from disadvantaged circumstances (Yarbrough ix).

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Blackmun came from humble beginnings; his family was constantly plagued with financial woes as his father continuously failed to find permanent or substantial employment after the failure of multiple small business ventures (Yarbrough 5-6). As a scholarship student at Harvard College, he could not overcome feelings of isolation and the burden of his socio-economic status (Yarbrough 13-14). He worked as a janitor to pay for his living expenses and complained incessantly to his parents that he felt lonely, as he failed to find his social footing with his classmates, the sons of the northeastern elite (Yarbrough 13). After a period of time, Blackmun found his way, joining the Lambda Chi Alpha social fraternity, attending college dances, and ushering at football games (Yarbrough 21). Yet his early experiences of isolation solidified his vision of himself as an outsider and his identity as a person of poverty. This would provide him with his trademark empathy for those living in poverty and those from disadvantaged backgrounds.

In light of these foundational beliefs formed in his youth, Blackmun’s initial refusal to strike down the death penalty, which he upheld in his dissent in the ​Furman v. Georgia​ case, is puzzling. In Furman, ​the majority of the Court decided to strike down the death penalty in 1972 on the grounds that it violated the Eighth and Fourteenth Amendments. The Court recognized that the death penalty disproportionately affected certain populations, or as Attorney General Ramsey Clark put it, “the poor, the sick, the ignorant, the powerless and the hated, namely those in poverty and those of African-American descent” (qtd. in ​Furman v. Georgia​ pg. 252). The Court majority held the same beliefs as Blackmun, opposing the death penalty and recognizing the unique disadvantage experienced by black men as racism played a role in prosecutors seeking the death penalty as a punishment. However, Blackmun could not agree with the Court, not because he endorsed the death penalty or failed to recognize the racism that operates within death penalty cases, but because

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he did not believe it was within the Court’s power to intrude into the business of states’ legislative and executive branches.

Blackmun says in his dissent that the Court in striking down the death penalty was making “the easy choice,” using justification better suited for legislative and executive bodies, not a justification suitable for the Court (Furman v. Georgia 410). He states that “although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement” (​Furman v. Georgia ​414). Here, Blackmun thought that the Court decided to strike down the death penalty because his fellow Justices held a moral conviction to do so, not because they found the death penalty a violation of the Eighth Amendment. Blackmun held that such actions and motivations extend beyond the duty of the Court as a body of unbiased interpreters of the law.

Practicing the standard to which he held his fellow justices, Blackmun believed that his moral convictions and personal abhorrence for the horrors of the death penalty must be set aside in the name of judicial duty. He defined his judicial responsibility as a duty to “pass upon the constitutionality of legislation that has been enacted and that is challenged” (​Furman v. Georgia ​411).

In accordance with his own judicial philosophy and sense of judicial duty, he acted against his convictions against the death penalty and supported instead “the wisdom of legislative and congressional action” (​Furman v. Georgia ​411). At the time of ​Furman​, Blackmun believed that the death penalty was constitutional so long as state legislatures and Congress enacted it. As such, Blackmun believed the regulation of the death penalty was the responsibility of legislature, not the Court, and purposefully restrained himself from acting on his own convictions as a justice. This shows that Blackmun never betrayed his ingrained values opposing the death penalty and racial

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discrimination, but rather withheld them from his jurisprudence in favor of a stricter interpretation of the Constitution.

In the years following ​Furman​, the Court heard cases like ​McCleskey v. Kemp ​(1987), which displayed the flagrant racial bias in administration of the death penalty, and cases like ​Herrera v.

Collins ​(1993), which showed the near impossible hurdles faced by innocents appealing death row convictions. In such cases, Blackmun began to realize that the death penalty might of great concern of the Court, since the “fairness, consistency, and reliability” of the death penalty seemed increasingly questionable (​Callins v. Collins​ 449). If the death penalty could not balance fairness, consistency, and reliability, it would in effect be in violation of the Eighth Amendment. Blackmun finally saw a way that he could reconcile his personal abhorrence for the death penalty with his jurisprudence, recognizing that the death penalty has been proven unconstitutional despite the Courts efforts to amend its injustices.

Blackmun came to the conclusion in ​Callins v. Collins​ that the death penalty was unconstitutional because he determined the courts could not simultaneously be consistent and unbiased in the administration of the death penalty and perform the individualized sentencing required of a fair trial. The ​Callin​s dissent shows Blackmun’s final, evolved view of the death penalty as innately either inconsistent or unfair, but his ​McCleskey v. Kemp​ dissent provides the context necessary to understand how Blackmun’s views began to change between the time of ​Furman ​(1972) and ​Callins ​(1994). He concluded in his ​McCleskey​ dissent that “narrowing the class of death-eligible defendants” and “the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case” could in fact provide consistency and “create a death penalty system that does not discriminate on

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the basis of race” (​McCleskey v. Kemp ​365). In ​McCleskey​, Blackmun recognized the challenge of individualized sentencing when administering the death penalty, while at the same time upholding a standard of consistency in sentencing. However, he believed that a balance could be struck in the form of rules and regulations on prosecutors pursuing the death penalty and by regulating which types of cases a jury could consider the death penalty as a punishment.

In ​Callins​, Blackmun rejects his past opinion in ​McCleskey​ that a constitutional balance between individualized sentencing and consistency could be struck by regulating or tweaking the legal process. Here Blackmun took the final step in his ideological journey, completely rejecting the idea that the death penalty could ever by constitutional, stating that he had lost “any confidence that this Court is able to reconcile the Eighth Amendment's competing constitutional commands [consistency and the individualized sentencing required in death penalty cases] or that the federal judiciary will provide meaningful oversight to the state courts” (​Callins v. Collins​ 449). As a product of his new found disbelief in the ability of rules and procedures to fix the innate constitutional problems within the death penalty, Blackmun was relieved of his moral burden, his “excruciating agony of the spirit” he had been enduring since ​Furman​ twenty-two years before (​Furman v. Georgia 407).

Blackmun, often described as undergoing an ideological conversion during his time as a justice, in fact held the same core principles throughout his time on the Court. He maintained his belief in the value of each person’s life and his adherence to his duty as an interpreter of the Constitution. Exemplified in his death penalty dissents, he consistently held compassion for the racially and economically disadvantaged who faced the “wheels of justice” that sought to end their lives in the name of prejudice, and always put the Constitution before his own personal beliefs

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(​Callins v. Collins​ 437). Justice Blackmun did not so much change his beliefs on the death penalty as he changed his opinion of the society and judicial system that embraced it. In doing so, he became the advocate against the death penalty he always wished he could be.

Work Cited

Furman v. Georgia, ​408 U.S. 238 (1972) ​findlaw.com. Web. 22 Apr. 2016 Lazarus, Edward. "The Natural Evolution of a High Court Liberal; Becoming Justice Blackmun Harry Blackmun's Supreme Court Journey Linda Greenhouse Times Books/Henry Holt: 270 Pp." ​Los Angeles Times ​Jul 17 2005. ​ProQuest. ​Web. 22 Apr. 2016.

"Harry A. Blackmun." ​Oyez​. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 7, 2016. <https://www.oyez.org/justices/harry_a_blackmun> Callins v. Collins​, 510 ​U.S.​ ​1141​ (1994) ​law.cornell.edu. Web. 22 Apr. 2016 McCleskey v. Kemp​, 481 U.S. 279 (1987) findlaw.com. Web. 22 Apr. 2016

Yarbrough, Tinsley E. ​Harry A. Blackmun: The Outsider Justice​. Oxford: Oxford UP, 2008. Print.

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“Neuroscience: An Unsuitable Punisher” Meha Ahluwalia ’20

Recently, cognitive neuroscience research has shown a relationship between the physiology of a person’s brain and a tendency to engage in violent or criminal activity (Morse 113). Using this knowledge, the government could find, treat, and isolate people with these neurological signs to make society safer. However, using neuroscience to detect predispositions to criminal activity would breach the doctrine of presumed innocence, a cornerstone of our country’s judicial system since its inception. Holding people accountable for actions they may commit --based on the composition of their brain, which they cannot control-- strips them of their basic legal and human rights. Even though using cognitive neuroscience to prevent crime may make people’s lives safer, it would do so at the expense of indispensable civil liberties, and would create a society not worth living in.

Neuroscience is not new to legal investigations and trials. Courts have long called on neuroscientists and psychologists to testify as expert witnesses, usually to comment on a defendant’s state of mind or to interpret her actions (Jones, et al 730). In ​People v. Weinstein ​(1992), the State of New York tried Herbert Weinstein for allegedly strangling his wife and throwing her body off a tall New York City apartment building to make her death appear to be a suicide. Weinstein willingly confessed to committing the crime and the attempted cover-up, but showed a lack of emotion or guilt when discussing the incident. Weinstein underwent a Positron Emission Tomography (PET) scan, which revealed decreased brain function due to an arachnoid cyst pushing on his frontal lobe.

His attorneys motioned to include the PET scan images to argue that the court should not hold Weinstein responsible for his actions due to mental disease or defect. The prosecution objected that the PET scan results might sway the jury to grant Weinstein a more favorable outcome if it believed his “my brain made me do it” type defense. Despite the prosecution’s protests, the court ruled that

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the PET scan evidence was admissible. The prosecution quickly offered Weinstein a plea bargain for a lesser charge of manslaughter, and he accepted it (Rosen). ​People v. Weinstein​ exemplifies how significantly neuroscience can influence the prosecution to propose plea agreements, and juries to recommend and judges to hand down lighter sentences for those convicted.

Similarly, in ​Florida v. Nelson ​(2010), defendant Grady Nelson received a lesser sentence than the prosecution requested, due to neuroscientific evidence of mental disease or defect. In 2005, police arrested Grady Nelson in Florida for allegedly killing his wife and raping his mentally-disabled stepdaughter. During his trial, the defense presented testimony by an expert witness, neuroscientist Robert Thatcher, who had examined Nelson following his arrest. Thatcher testified that he used quantitative electroencephalography (QEEG) technology to view the electric activity in Nelson’s brain, and discovered unusually sharp waves generated by the left frontal lobe region. Thatcher testified that he believed Nelson’s brain abnormality likely led him to commit his crimes. After brief deliberation, the jury rejected the death penalty and instead recommended a sentence of life in prison (Jones 730). Following the trial, two jurors told the ​Miami Herald​ that the QEEG exam evidence had significantly influenced their decisions. One juror, John Howard, told the Herald’s reporter that he initially favored the death penalty but completely changed his mind after hearing Thatcher’s testimony: "it turned my decision all the way around … the technology really swayed me.

After seeing the brain scans, I was convinced this guy had some sort of brain problem” (Ovalle).

People v. Weinstein ​and ​Florida v. Nelson​ are just two of many examples of neuroscience’s role in influencing sentences handed down in recent legal proceedings. As in both of these cases, courts have typically used neuroscience to assess a defendant’s state of mind and self-awareness after​ ​he has committed a crime. Using this information, neuroscientists offer expert opinions as to whether a

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defendant ought to be held responsible for her actions, and how this should influence a jury’s decision or a judge’s sentencing order. But as our knowledge of neuroscience increases, the possibilities for how we can use it to discipline and even prevent crime grow immensely. Owen Jones, a biology and law professor at Vanderbilt University, is a recognized authority on neurolaw, an emerging interdisciplinary field dedicated to the growing intersection of neuroscience and the law.

Jones and Rene Marois of the Vanderbilt Brain Institute explained in a 2007 interview with legal scholar Jeffrey Rosen that they were studying human brain activity when people are asked to assign punishments to understand “the interactions among the emotion-generating regions of the brain, like the amygdala, and the prefrontal regions responsible for reason” (Rosen). Jones and Marois had so far produced two important observations from their studies: (1) The prefrontal cortex is important when a judge assigns punishments, and may be an important factor in jury selection, since some jurors may be predisposed to selecting one punishment over another; and (2) By scanning and observing the fusiform area of the brain, responsible for facial recognition, scientists can observe people’s true thoughts and emotions even if they deny them.

Jones provides a hypothetical situation to emphasize the implications of this discovery: if a child says she has been victimized by a stranger, the police could observe the fusiform region of her brain while showing her photos of suspects. If one of the photos causes the fusiform region to light up, this would suggest that the victim has seen the face before. The police could then pursue that suspect’s connection to the crime further. This process would be more reliable than suspect lineups used today, as scientists now believe that our subliminal memories may be more reliable than our cognizant ones (Rosen). In 2015, Jones reflected that their research will likely help create a more accurate criminal investigation process and will combat “decision-making biases” that currently

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plague the judicial system (Buckholtz 1369-1380). Jones and Marois believe that although these techniques are still in their early stages, they could have serious implications for the future of criminal convictions, punishments and prevention; by noting more trends in brains of people who have committed crime, they are learning more about what a “criminal brain” looks like-- in other words, what police might look for when trying to identify who may be --or become-- a criminal.

Jones and Marois’ research suggests that we may soon be able to use neuroscience to screen for potential criminals in order to combat crimes before they are committed. As our knowledge of the signs of a “criminal brain” grows, the possibility of a neurological test for predisposition to crime increases as well. Over the last decade, many scientists, lawyers, and academics have been exploring the option of using this technology to make society safer. But many scholars point out that when considering using science to prevent crime, it is not just a question whether we can,​ ​but if we should.

Law professor O. Carter Snead focuses on the moral and ethical implications of using cognitive neuroscience to predict crime. Snead argues that depending on neuroscience in criminal law and punishment --beyond neuroscientists lending expert testimony in trial as they do today-- raises complicated problems about “human agency, moral responsibility, and the proper ends of criminal punishment” (132). If we separate a person’s brain from the person herself, and view the two as independent agents, assigning responsibility becomes practically impossible. If a person commits a crime but neuroimaging scans suggest that a neurological condition motivated the crime, we cannot hold that person’s brain accountable while we acquit the rest of her. Similarly, allowing that person to resume life without consequence poses a risk to society, because a person with a predilection to crime is now roaming freely. Snead points out that if we gain knowledge of a

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person’s predisposition, there is no clear, morally sound course of what to do with this information: punishing people for their predispositions is immoral since they have not done anything wrong, but doing nothing with that information is reckless.

Scientists also debate how accurate these brain scans will be in predicting whether someone will actually commit a crime. In “Neurocriminology: Implications for the Punishment, Prediction and Prevention of Criminal Behavior,” researchers Andrea Glenn and Adrian Raine explain that while neuroscience may point to a predisposition to criminal behavior, this does not always translate into criminal activity. A person’s environmental factors can play a large role in determining whether she will act on her predispositions, and are arguably more important than the anatomy of her brain.

For someone with a neurological abnormality that suggests criminal behavior but is not great enough to constitute mental disease or disability, her perceptions of societal norms may deter any violent tendencies she is predisposed to (Glenn and Raine 60).

For example, a woman who displays the signs of a disposition to violence may never be violent towards another person during her life. If she did not grow up seeing violence around her, and adults told her that violence is unacceptable and inexcusable, she likely developed coping mechanisms other than violence to use when she is upset. Despite her neurological propensity to crime, society would not regard this woman to be a danger to public safety. Isolating or punishing because of her brain scan results would be wholly unjust. While scientists previously believed that our brain chemistry is immutable once we are born, they now concur that this is empirically false.

Matthew Hougan and Bruce Altevogt explain, “the discovery of neurogenesis and an improved understanding of neuroplasticity—the ability of the brain to shape, form, eliminate, and strengthen new connections throughout life—has completely recast the question of nature versus nurture” (14).

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Neuroscience alone cannot predict behavior with absolute certainty, and we should not trust it to predict whether people will commit crimes during their life.

Even if neuro-technology were accurate at predicting criminal activity, this would still contravene the most fundamental values of our judicial system. One major conflict would be between prediction and the constitutional guarantee of presumed innocence. The United States has long considered “innocent until proven guilty” one of the cornerstones of the American legal system. Lawyer and legal scholar Francois Quintard-Morenas explains that the doctrine serves as a “shield against premature punishment” and protects the integrity of our judicial system (148).

Without this safeguard, the government could upend any person’s life without definitive proof of wrongdoing. No accused person can be sentenced or punished without substantive evidence of her crime and the chance to have a fair trial before a jury. If people were imprisoned or punished because their brain scans reveal a possible predisposition to criminal activity, this would presume their guilt before they have done anything wrong. The Founding Fathers were adamant that American citizens be able to live their lives without fear of the government infringing on their safety or freedoms as reflected in our Constitutionally-protected “unalienable rights to life, liberty and the pursuit of happiness.” A neuroscience crime prevention policy threatens to violate all three of those rights.

Using neuroscience to punish people for actions they might commit in the future would create a society where no one feels safe. Scientists agree that neuroscience cannot predict behavior with absolute certainty since it does not factor in environmental factors that cause the brain to change over time. Regardless, acting on knowledge of neurological propensity to crime would be unacceptable under a legal system built on the doctrine of presumed innocence. Neuroscience can

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provide valuable insight to the law when combined with facts and other frames of reference, but alone, is too fallible and rife with ethical complications to predetermine legal punishments. While it is the US government’s responsibility to protect American citizens, it should not do so at the expense of basic civil liberties and fundamental legal rights.

Acknowledgements I would like to thank Elliot Brandow for helping me assemble sources for this paper. He introduced me to many tools and databases I would not have discovered on my own, and saved me from using the overly-technical articles I had originally found. I would also like to thank Erica Kim and Meara Cline for their feedback on my first draft.

Works Cited Buckholtz, Joshua, et al. “From Blame to Punishment: Disrupting Prefrontal Cortex Activity Reveals Norm Enforcement Mechanisms.” ​Neuron​, vol. 87, no. 7 September 2015, pp. 1369–1380.

Glenn, Andrea, and Adrien Raine. “Neurocriminology: Implications for the Punishment, Prediction and Prevention of Criminal Behaviour.” ​Nature Reviews Neuroscience​, vol. 15, 11 Dec. 2013, pp. 54–63.

Houghton, Matthew and Bruce Altevogt. “From Molecules to Mind: Challenges for the 21st Century.”

Forum on Neuroscience and Nervous System Disorders, Board on Health Sciences Policy.

Accessed 28 November 2016.

Jones, Owen D. et al. “Neuroscientists in Court.” ​Nature Reviews Neuroscience​, vol. 14, no. 10, Dec. 2013, pp.

730–736.

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Morenas, Quintard-Morenas. “The Presumption of Innocence in the French and Anglo-American Legal Traditions.” ​The American Journal of Comparative Law​, vol. 58, no. 1, 2010

Morse, Stephen. "Neuroscience and the Future of Personhood." Jeffrey Rosen and Benjamin Wittes, editors.

Constitution 3.0: Freedom and Technological Change​. Washington, D.C.: Brookings, 2011. 113-129.

Print.

Ovalle, David. "Squiggly Lines on a `Brain Map' Helped Convince a Dade Jury to Spare a Man Who Butchered His Wife and Raped Her Child." ​The Miami Herald​. Dec. 2013. Web. 8 Dec. 2016.

People v. Weinstein. 591 New York Second District Court of Appeals. 1992.

Rosen, Jeffrey. “The Brain on the Stand.” ​The New York Times Magazine​, 11 Mar. 2011. Web. Accessed 20 November 2016.

Rushing, Susan E. “The Admissibility of Brain Scans in Criminal Trials.” The University of Pennsylvania. vol.

50, 1996.

Snead, O. Carter. "Cognitive Neuroscience and the Future of Punishment." Jeffrey Rosen and Benjamin Wittes, editors. ​Constitution 3.0: Freedom and Technological Change​. Washington, D.C.: Brookings, 2011. 130-151. Print.

State of Florida v. Grady Nelson. Florida Eleventh District Circuit Court. 2010.

41

“Current Failures in Addressing Prostitution” Hajin Park ’17

In March 2008, former New York Governor Eliot Spitzer became embroiled in a prostitution scandal. Spitzer was involved with Emperors Club VIP, an illegal prostitution ring in which he requested services on more than one occasion. The agency was shut down, Spitzer resigned and the newly appointed governor established a formal federal investigation. However, the focus of the investigation was on whether Spitzer had utilized public funds for the services and ultimately no criminal charges were brought against Spitzer. Examples such as this case highlight the flawed nature of the legal stance on prostitution in the United States. The law condemns sex workers more heavily than it does patrons and instead of protecting sex workers, isolates them. In this paper I will present the problems with the current legal framework, the issues faced by prostituted women and proposed alternatives to the current legal structure that focus on prevention and rehabilitation rather than incarceration.

The criminalization of prostitution is costly as resources are required to investigate, charge and incarcerate prostitutes and patrons. In the case of the former New York Governor, the government “wiretapped 5,000 phone conversations, intercepted 6,000 emails, used surveillance and undercover tactics” for the investigation (Dershowitz, 2008). Of 16 cities that were studied in the United States, cities spent $7.5 million per year on prostitution control which amounts to more than $120 million a year in enforcement costs nationwide (Pearl, 1987).

Furthermore, studies suggest that the imprisonment of prostitutes is counterproductive as it actually increases the possibility of future involvement in sex work. After incarceration many 42

prostitutes return to the industry, as it is difficult to gain any legitimate employment with a criminal record. Incarcerated prostitutes may also use their situation while in jail to recruit more employees for her pimp (Norton-Hawk, 2001). Even women who were not serving sentences for prostitution related offenses are approached and recruited, allowing pimps to become more powerful by expanding their employee network.

It is a fact that most sex workers are women, and most customers are men. Stemming from that, one issue with the law enforcement of prostitution is that it is gendered. A study comparing arrest and conviction rates in Seattle found that in one year, 1210 prostitutes were arrested, while only 228 patrons were arrested and of them 12% of the women were convicted, whereas only 8% of the men were convicted (Hayes-Smith & Shekarkhar, 2010). Nationwide, a 2001 FBI report found that 67.3% of prostitution related arrests were made on women, while only 32.7% of those arrested were men (Miller & Haltiwanger, 2004). There is also racial and ethnic bias in the legal enforcement of prostitution. One study sample found that 48% of street prostitutes are non-White, but non-White prostitutes constitute 55% of those arrested and 85% of those who are actually convicted and jailed (Beran, 2012).

Many prostitutes are from low income, low education backgrounds and do not have other viable job options. Furthermore, childhood abuse, including physical, emotional, psychological, and particularly sexual mistreatment, is a major risk factor for entry into the sex industry. Childhood sexual assault nearly doubles the odds of entry into prostitution (Wilson & Butler, 2013). One study found that 90% of prostitutes had experienced childhood sexual abuse and that 75% were survivors of incest (Beran, 2012). Upon entering the industry, prostitutes often experience more abuse.

Prostitutes are vulnerable to verbal, sexual and physical assault from their pimps and customers.

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One report found that 58% of prostitutes have been verbally assaulted, 36% have been hit, 30% have been robbed or had a weapon used against them, 32% reported attempted rape by a customer and 26% have been raped (Norton-Hawk, 2001). Indeed, prostitution is a dangerous livelihood and in fact prostitutes face a forty times greater risk of premature death than the national average (Beran, 2012). While many women go into the industry of their own free will, they often do not actually have other options due to their childhood predispositions as well as their socio-economic background.

As a result of difficult childhoods and backgrounds, exacerbated by the difficulties of the nature of their work, prostituted women also suffer from more mental illness. Many prostitutes have depression and anxiety, and may express dissociative, aggressive and suicidal symptoms (Wilson & Butler, 2013). In particular, PTSD is common among prostituted women, with a prevalence rate of 68% (Farley, 2004). ​In a study conducted by Farley, Baral, Kireman and Sezgin (1998) on several hundred prostitutes, 85% of respondents met criteria for partial PTSD. 74% of respondents did not think prostitution should be legalized while 92% of respondents reported wanting to leave the industry (Farley et al., 1998).

Another negative outcome on prostituted women is that they are at risk of committing other illegal activities. Because prostitutes attempt to avoid arrest and are involved in illegal work themselves, they have a higher risk of associating with people from a deviant network. Thus, they are exposed to illegal activities, behaviors and values and become more likely to engage in deviant activities like drug use. Street prostitutes inevitably encounter drug addicts and drug dealers and one study on street prostitutes reported that many sex workers start using drugs for its psychologically numbing effects and eighty-four percent regularly used hard drugs (Norton-Hawk, 2001). The most

44

common drug addictions were to crack cocaine (52%) and heroin (44%), and over two-thirds of street prostitutes stated that they stayed in the industry in order to finance their drug habit (Norton-Hawk, 2001). Many prostituted women relapse into the industry because they cannot stay sober. Drug use and prostitution inherently enforce each other and leads to a vicious cycle.

The many negative outcomes faced by prostituted women serve as challenges to advocacy for the legalization of prostitution. Furthermore, a meta-analysis by Cho, Dreher and Neumayer (2012) on the effects of the legalization of prostitution on human trafficking suggests that there is a positive correlation between the legal status of prostitution and inward trafficking; nations experience larger inflow of human trafficking when prostitution is legal. In particular, the results were statistically significant at a 5% level for countries with higher GDP per capita, a democratic political regime and larger populations (Cho et al., 2012). The researchers found that after Germany further legalized prostitution in 2002, the estimate of trafficked individuals increased from 22,000 in 2002 to 24,000 in 2003. If the U.S. were to legalize prostitution nationally, it could experience an increase in the inflow of human sex trafficking.

Currently, Nevada is the only state where prostitution is legalized in certain counties and regulated in licensed brothels. State regulations on both the sex worker and brothel owners provide better health and safety standards. These brothels typically employ mechanisms such as call buttons and audio room monitory, limitations on out-of-brothel services and establishment of specific guidelines for the negotiation process between the sex worker and the patron (Hayes-Smith & Shekarkhar, 2010). The law also requires that anyone seeking employment as a brothel worker must submit health exam results, including HIV and STD tests, and must agree to undergo these tests monthly (Miller & Haltiwanger, 2004). In addition, brothel owners must report any incidence or

45

suspicion of a communicable disease to the health authorities. Failure to do so means the owner could be liable for any damages to a patron exposed to the disease as a result. Since the enactment of these rules, as well as regulations on mandatory condom usage and mandatory posting of health notice inside brothels, the rate of AIDS and STD infection of legal prostitutes has been zero (Miller & Haltiwanger, 2004). A study comparing the health of legalized brothel workers compared to jailed illegal prostitutes in Nevada found that none of the brothel workers had AIDS while 6% of the illegal sex workers were infected (Hayes-Smith & Shekarkhar, 2010).

Advocates for the legalization of prostitution also promote its economic benefits, particularly the tax revenue the government could generate. Excluding the illegal prostitution activity in Las Vegas, Nevada’s legal sex industry alone is a $50 million dollar industry (Friess, 2009). While the state cannot collect tax from the brothels because prostitution is not legal in all counties, prostitution generates a large percentage of local tax revenues in its respective counties. One brothel owner reportedly paid $78,000 a year for the county business license tax and another $25,000 a year to the local health department (Friess, 2009).

Despite the health and economic benefits of legalizing prostitution demonstrated in the example of Nevada, the Nevada system has raised its own concerns about other problems. The institutionalization of prostitution in brothels eliminates the option for women to work on their own and to keep all of their earnings (Miller & Haltiwanger, 2004). Also, brothel workers are subject to state and county regulations that limit basic liberties such as rules that they must be off the streets by 5pm (Miller & Haltiwanger, 2004). Furthermore, these brothels are usually far from cities and set in rural areas, ringed with barbed wire or electric fencing (Farley, 2004). Furthermore, although prostitution is legalized in the licensed brothels, there is still a stigma against it and brothel work is

46

not perceived as a legitimate job.

An alternative to legalizing prostitution could be to crackdown on the demand for prostitution. The Trafficking Victims Prevention Reauthorization Act (TVPRA) authorized in 2005, allocates $25 million per year to police departments to expand arrest efforts of those who purchase sex acts and to fund the creation of john schools, which are rehabilitation programs that educate arrested patrons of sex about the harms of prostitution in order to deter future offending (Weitzer, 2010). As of 2008, forty American cities had created such programs. The TVPRA also funds police efforts to monitor Internet postings advertising sexual services, increasing arrests of persons communicating online to purchase sex. Another alternative is to provide more support for prostituted women and emphasize psychological, emotional and drug rehabilitation instead of incarceration. Of the $120 million cost of prostitution enforcement reported earlier, $53 million was spent on direct police costs, while only $31 million was spent on correctional costs (Pearl, 1987).

The government needs to allocate more funds towards correctional programs that provide sex workers therapy for mental illnesses and drug addictions.

In conclusion, prostitution systematically discriminates against women, ethnically subordinate groups, the poor and the mentally ill and it cannot be made better by legalizing it, at least without more safeguards and prevention efforts. Law enforcement of prostitution needs to stop discriminating by gender and race and cannot only target prostitutes while leaving patrons and pimps unpunished. In addition, the government needs to allocate more resources to crackdown on the demand for prostitution and to provide more rehabilitation support for prostituted women so that they do not return to the industry.

47

References

Beran, K. (2012). Revisiting the Prostitution Debate: Uniting Liberal and Radical Feminism in Pursuit of Policy Reform. ​Law and Inequality,​ ​30​(1), 19-56.

Cho, S., Dreher, A., & Neumayer, E. (2013). Does legalized prostitution increase human trafficking? ​World Development, 41, ​67-82.

Dershowitz, A. M. (2008, March 13). The Entrapment of Eliot. ​The Wall Street Journal​.

Retrieved from http://www.wsj.com/news/articles/SB120536943121332151 Farley, M. (2004). Bad for the body, bad for the heart: Prostitution harms women even if legalized or decriminalized. ​Violence Against Women,​ ​10​(10), 1087-1125. doi:10.1177/1077801204268607 Farley, M., Baral, I., Kiremire, M., & Sezgin, U. (1998). Prostitution in five countries: violence and posttraumatic stress disorder. ​Feminism Psychology, 8​(4), 405-426.

Friess, S. (2009, January 26). Nevada brothels want to pay tax, but state says no. ​The New York Times​. Retrieved from http://www.nytimes.com/2009/01/26/world/americas/26iht-brothel.1.19671349.html?pag ewanted=all Hayes-Smith, R., & Shekarkhar, Z. (2010). Why is prostitution criminalized? An alternative viewpoint on the construction of sex work. ​The Contemporary Justice Review,​ ​13​(1), 43-55.

Miller, C., & Haltiwanger, N. (2004). Prostitution and the legalization/decriminalization debate. ​The Georgetown Journal of Gender and the Law,​ ​5​(1), 207-242.

Norton-Hawk, M. (2001). The counterproductivity of incarcerating female street

48

prostitutes. ​Deviant Behavior,​ ​22​, 403-407.

Pearl, J. (1987). The highest paying customers: Americas cities and the cost of prostitution control. ​Hastings Law Journal,​ 769-800.

Weitzer, R. (2010). The movement to criminalize sex work in the United States. ​Journal of Law and Society,​ ​37​(1), 61-84.

Wilson, B., & Butler, L. (2014). Running a Gauntlet: A review of victimization and violence in the pre-entry, post-entry, and peri/post-exit periods of commercial sexual exploitation. ​Psychological Trauma: Theory, Research, Practice and Policy, 6​(5), 494-504.

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“How does the 2002 Californian Paid Parental Leave Law (CA-PFL) affect female labor force participation rates within the state?”

Cassandra Allen ’18 Constance Gouélo ’17 Ellie Neustein ’18 Danni Ondraskova ’18

1.

Introduction

Today, particularly after the 2016 election, topics on women’s rights have been subjects of frequent discussion. One of these matters of debate revolved around the federal provision of paid parental leave. As a forerunner, California was the first state to pass the Paid Family Leave Act in 2002 which provided mandated salaries for new mothers in order for them to be able to take time off to bond with their child. According to our preliminary readings in ​First Impressions: Comparing State Paid Family Leave Programs in their First Years​, which was compiled by the National Partnership for Women and Families, 1.5 million claims were filed in the first year of the implementation of this law.

However, according to the statute, only mothers in the private sector were eligible for paid leave, with public sector employees continuing to receive federal unpaid leave. Although not all could enjoy the benefits of this law, the comparisons between left out groups of mothers provide interesting insights into the efficacy of the statute. Additionally, paid leave continues to be a popular 19

topic with, as of November 2016 , 11 states considering implementing some form of the paid leave program. As such, we hope to explore the correlation between an increase in paid parental leave post-childbirth and female labor force participation rates in California, in order to determine who

On December 22nd, Washington D.C. passed the paid leave law joining the four other states. It guarantees eight weeks of paid leave to new parents and six weeks of leave for other family caregiving to more than half a million private sector and nonprofit workers, making it one of the nation’s most generous paid family leave laws. The benefits should start paying out in 2020 since the DC City Council passed it with a veto-proof 9-4 majority, but Congress can intervene to stop the law from going into effect.

19

50

benefits most from the statute, whether the increased paid leave improves female participation rates and increases the frequency of leave taken, as well as whether the law positively impacts women in the short and medium runs.

2.

Background

In 1987, as women increasingly entered the workforce, the U.S. Supreme Court upheld the California Fair Employment and Housing Act, which allowed but did not oblige a state to require 20

employers to provide workers maternity leave and retain their jobs . For some states providing paid leave was a heavy financial burden, and few such provisions were implemented. In 1993, policymakers revised the Fair Employment and Housing Act and introduced the Family and Medical Leave Act (FMLA), mandating employers to provide 12 weeks of guaranteed unpaid leave to qualifying workers, without the fear of losing one’s employment. However, many workers found themselves financially unable to take this leave and forgo salary while taking time off to care for a newborn child or sick family member. While the US struggled to devise solutions to the lack of paid leave, Germany and Canada, among a host of other developed nations, enacted federal paid parental leave provisions. Indeed, mothers in Germany could take a year off from work with 67% of her 21

usual pay, and Canadian mothers obtained 55% of pay for a year or more. In 2002, California became the first state within the union to provide a protected salary in addition to the unpaid leave of 12 weeks for private sector employees. This particular paid leave statute, California Paid Family Leave (CA-PFL), granted six weeks of paid family leave with 55% of usual pay replaced (up to

​California Federal savings & Loans Association v. Guerra, 479 US 272 (1987). ​California’s Paid Family Leave Law: Lessons from the First Decade.

20 21

51

$1,075 per week in 2014). In order to qualify, workers must have worked at least 1,250 hours (25 hours per week) the year before the leave and their employer must have hired at least 50 people 22

within a 75 mile radius of their worksite. In order to ensure job security and compensation on leave 23

simultaneously, the law must be taken concurrently with FMLA and CFRA.

3.

Related Literature and Broader Impact

In order to understand the impact of this law on women’s labor force participation rates, we sought to examine the initial effects of unpaid leave before speculating on how paid leave could affect new mothers. In 1997, researchers Jacob Klerman and Arleen Liebowitz in ​Unanticipated Effects of California’s Paid Family Leave Program,​ used U.S. Census data from 1980 and 1990 to show that: “Maternity leave statutes increased leave, but had insignificant positive effects on employment and work.” They observed that initial unpaid leave policy actually increased parental-leave for fathers more so than mothers. Additionally some companies modified their hiring demographics because they would have to hire temporary workers during the leave period. As such, they opted to reduce the number of young women who were capable of becoming pregnant during employment, thus impacting recruitment within this demographic. This was especially accentuated after the 2002 Paid 24

Family Leave law which further increased the costs of employing young women and mothers. In addition to shifts in the employment of women within the labor force, trends were also established in terms of who was aware of the PFL and who was able to actually take the leave. In 2013, only 12% of U.S. workers had access to employer-provided paid family leave, which was not surprising

​California Family Leave Laws.

22

California’s Paid Family Leave Law: Lessons from the First Decade. ​Unanticipated Effects of California’s Paid Family Leave Program.

23 24

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considering that only four states currently have paid leave. Furthermore, in a California 2007 survey, only 28.1% adults of the state were aware of the law itself of which there was a disparity of socioeconomic status apparent between claimants. The highest proportion of these adults had low-to-moderate incomes from $12,001 to $48,000, followed by the top bracket, and then the lowest 25

bracket of $12,000 or less. Yet since 2005, mostly individuals with higher incomes filed claims, highlighting underlying factors preventing mothers from applying for paid leave. Though these laws created shifts within the labor force, California is a model for understanding how paid leave impacts female participation rates whilst providing some women with more opportunities and benefits than they had available prior.

4.

Goal & Empirical Model

In this paper, we seek to determine who reaps the benefits of the policy through examining the demographic and socioeconomic backgrounds of the women within our study. We want to furthermore understand whether the paid policy improved female labor force participation as well as whether it positively impacted women in the labor force two years post implementation. From our results and observations, we hope to determine how to improve policy making to benefit all women.

To determine the effects of paid parental leave on the Californian female labor force, we conducted a difference-in-difference regression. We used data from the CPS 2000-2006 censuses to show the impacts on our 14 variables before paid parental leave was passed and the pre- and post- implementation periods. We used this classification for our California as well as our aggregate comparison state models.

Timing Groups I, II, and III (ktiming): ​California’s Paid Family Leave Law: Lessons from the First Decade.

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53

● ● ●

2000-2002: Pre-Passage of California Paid Family Leave Law (CA-PFL), base group 2002-2004: Pre-Implementation, captures short-term market reaction 2005-2006: Post Implementation, captures medium-term market reaction

In order to understand better the effects on the Californian female labor force, we needed comparison states. We chose the states Washington and Oregon given geographical proximity and the fact that they had not yet passed paid parental leave laws. As such we created the following binary variable: Treatment and Comparison Groups (comparisonstate): ● Comparisonstate = 0 if California ● Comparisonstate = 1 if an aggregate of Washington and Oregon

Furthermore, we needed to have a homogeneous range of ages for the women who could have given birth. Thus we selected only women from ages 15 to 50 to include within our model and then selected only those who had given birth within the last year (indicated by the binary variable fertyr​).

After cleaning our data, in order to analyze the trends related to women who have given birth in the past year and who were employed and on leave, we created a composite variable selecting for women within the private sector (since the public sector was not included in the PFL statute) who were between ages 15-50 and had just given birth within the last year.

We ran a series of initial regressions to determine how demographic and socioeconomic factors such as race, income, and professional industry, impacted this composite variable.

From there, we ran the following difference-in-difference regression: Y​it​= α + ∑ γ​k​D​it​k ​+ δ​i ​+ η​t ​+ ε​it k=5

Y was the difference in outcome variable between the treatment and comparison group from 2001 to the different timing groups (k) for total income, on leave employment status (binary), 54

number of familial generations within household (binary, greater or less than 3 generations), child born within the last year, highest level of education (binary, greater or less than high school diploma), minority race status (binary), as well as number of children under age 5 within household, and public sector (binary). α was the constant and γ​k ​represented the change generated in California after the implementation of the policy. Additionally, D​it​k ​was a binary indicator variable that took the value 1 if the state was equal to California and the year was after 2004 (policy implementation). Finally, δ​i ​ represented state fixed effects, η​t ​showed the year fixed effects from 2003-2006, and ε​it ​was the error term.

5.

Data

Upon choosing our data, we examined the number of families in a household, whether it was multigenerational one as well as whether a mother had children in the past year. We additionally looked at the mother’s education level, race, her employment status, her total income, the number of own children under five in the household, and whether the parent was in the public industry. We sought to observe these variables for both the aggregated comparison variable and the state of California, whilst still taking time tranches into account.We chose to omit some variables, such as mortgage status and health insurance, as those elements would create much more variability and disparities between our comparison and treatment states. Though we tried to select a comparison group as similar in economy to California as possible, we realized that the economies of California, Oregon and Washington were quite different in terms of industry, tax structure, and trade which we hope to address in future studies.

5.1 Identity of the Women

We separated our data into two different categories: identity of the women and women in

55

the workforce. For the first topic, we collected data relating to socioeconomic status and familial composition to answer our research questions (with n = 832,473 and the R-Squared = 0.0029 for the treatment group and n = 219,754 and R-Squared = 0.0022 for the comparison group).

Table 1 : Change over time of variables related to the Identity of the Women, in CA / Comparison States

California

Comparison Group

Variable (name)

Timing 1 Timing 2 to Overall Timing 1 to Timing 2 to Overall to Timing Timing 3 Change Timing 2 Timing 3 Change 2

Number of Families in Household (nfams)

-8.52 (0.0031)

-0.02 (0.0035)

-8.54 -4.31 (0.0023) (0.0049)

-1.56 (0.0055)

-5.87 (0.0038)

Multigeneratio 3.07 nal Household (0.0024) (multgen)

-1.89 (0.0027)

1.18 (0 .0018)

4.20 (0.0041)

-1.34 (0.0046)

2.86 (0.0032)

Child Born within Last Year (fertyr)

0.21 (0.0038)

-0.66 (0.0023)

-0.45 0.16 (0.0035) (0.0068)

-0.42 (0.0043)

-0.26 (0.0064)

High Overall Level of Education (higheduc)

6.06 (0.0018)

-2.91 (0.0020)

3.15 5.16 (0.0013) (0.0033)

-2.06 (0.0038)

3.10 (0.0026)

Low Overall Level of Education (loweduc)

-6.06 (0.0018)

2.91 (0.0020)

-3.15 -5.16 (0.0013) (0.0033)

2.06 (0.0038)

-3.10 (0.0026)

Minority 7.41 Composition (0.0018) (bin_race = 1 if white, = 0 if minority race) (bin_race)

-3.64 (0.0020)

3.77 3.06 (0.0013) (0.0027)

-1.83 (0.0030)

1.23 (0.0021)

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Number of -1.70 Children Age 5 (0.0021) or Under (nchlt5) R2 = 0.0029 , n = 832,473

-1.31 (0.0023)

-3.01 -1.51 (0.0015) (0.0039)

-0.20 (0.0044)

-1.71 (0.0030)

R2 = 0.0022 , n = 219,754

Key

Timing Interval

Variable

Change in Mean Between Timing Groups (Standard Error)

​ ​Notes:​ This table presents the changes across time periods for variables related to the identity of the women across both

California and our Comparison States. The first column for each state group corresponds to the period prior to the enactment of the legislation. The second column for each correspond to the aggregate mean period during and then post its implementation.

Finally, the third column for each group represents the overall change over the three time periods. (n = 832, 473 and the R-Squared = 0.0029 for the treatment group and n=219,754 and R-Squared = 0.0022 for the comparison group).

We first examined women who had given birth within the last year and whom were aged 15 to 50. Of the 15,405 women surveyed in 2000-2002, 91.7% of those who answered had not given birth within the last year, whereas 8.3% had. In 2002-2004, of the 44,773 women who answered, 92% had not whereas 8% had. Finally, of the 92,551 women surveyed and who answered in our last time tranche, 91.6% had not given birth within the last year, while 8.4% had. Overall, we observed a decrease of births per year of 0.45% (0.0035) between timing one and timing three. In our comparison group on the other hand, of the 4,843 women surveyed in 2000-2002 and answered, 91.6% had not, while 8.4% had. In 2002-2004, of the 13,937 women we had answers from, 92.1% of the women had not, whereas 7.9% had. Finally, of the 24,956 women surveyed in our last time tranche who answered, 91.6% had not given birth within the last year while 8.4% had. Overall, we observed a decrease of births per year of 0.26% (0.0064) between timing one and timing three within the comparison group. While the negative birth rates held in both groups, the decline in births per year was higher in California than in the comparison states. As such, we hypothesized that the decline could be due to increasing female participation within the workplace, where taking time off 57

to raise a family was generally discouraged, or as a result of societal norms that encourage a new mother to quit her job and raise a family, thereby influencing women to achieve professional success before leaving her job to raise a family. The declines follow trend with a decrease in national birth 26

rates throughout the country .

We then observed the effect of number of families in a household, which was a potential indicator of whether a mother took parental leave. We made the assumption that having additional families within the same household may make it easier for a mother to receive help from these other families’ members to raise the child and discourage her from taking parental leave. From timings one to three in California, we saw a decrease in the number of families per household of 8.54% (0.0023).

From this observation, we concluded that the number of families residing within a household have minimal effects on paid leave taken. In the comparison group, there was a 5.87% (0.0038) decrease in the number of families per household between timing groups one and three. These numbers reflect the same hypothesis given the fact that families with more than one families are uncommon.

We also examined race of the mother to determine whether or not it impacted a mother’s ability to take leave. We hypothesized that this could be important given that race was a factor in employment and could thus impact leave allowance through impacting employment options.​ ​Over all three time periods California was 56% “White”, 9.5% “Other Asian or Pacific,” 5.3% “Black,” and 3.3% “Chinese.” The same parameter for our comparison group kept an identical ranking of proportions. Since the percentage breakdown of racial composition was similar across time periods in each of the two data sets, we were able to make a causal conclusion and observe trends of our specific variables such as income. We do acknowledge possible bias, such as the lesser racial diversity outside of California. Indeed, we found a 3.77% increase (SE: 0.0013) in respondents who identified ​National Center for Health Statistics.

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as white between timings one and three for California, and a 1.23% increase (0.0021) in those in our comparison states.

Following this, we examined the highest grade of educational attainment of our female respondents to see if there was a relationship between education level and taking advantage of the paid leave. In the sample from California, we saw an increase of 3.15% (0.0013) in respondents with a high school diploma or above of education between timing one and timing three. In comparison, the Washington/Oregon group saw an overall increase in higher education (high school diploma and above) of 3.1% (0.0026) between timing one and timing three. We observed that both groups follow similar trends in the tranches, indicating that bias was not present in terms of educational attainment between the two groups even though the comparison group’s educational attainment levels were slightly higher than California’s with the exception of master's degrees.

Additionally to these variables, we wished to see how many generations lived within the household and how that would affect mothers taking leave. We hypothesized that with older generations in a household, a mother may be able to receive aid from her parents or sibling, or those of her partner and thus would be less likely to take parental leave or take fewer weeks of leave.

Overall in California, we saw an increase of 1.18% (0.0018) in the number of multigenerational households. This statistic was higher than we expected to see and could potentially have affected the amount of parental leave a mother decides to take. In our comparison states, we also observed an increase, this time of 2.86% (0.0032). These were larger percentages than those observed in California and could introduce bias into our regression.

Finally, we looked at the number of own children under age 5 in the household variable. We believed that the presence of young children could influence a mother to either take more leave to

59

spend time with her young children. For our rows (number of own children under age 5 in household), we had 0 to 8 children. Because there is a negligible number of families with more than 5 children under age 5, we summarized the results in three categories: no children under the age of five, 1-4, and 5-8.​ ​On average across all three time periods in California, 80.5% of households had no children under the age of five, 19.4% of households had 1-4 children under the age of five, and .01% of households had 5-8 children under the age of five. The percentages for households with 0, 1-4, and 5-8 children under the age of five varied little across different time periods. Overall, we observed a decrease of 3.01% (0.0015) in the mean number of children under age 5 within a particular household. We were not surprised by these findings because we expected that with paid parental leave, it would be unlikely that families would suddenly have twins or other large numbers of children overnight. For our comparison group, our data set only included up to 6 children under the age of five, but we still used the same categories as before for comparison purposes. On average across all three time periods, 79.3% of households had no children under the age of five, 20.6% of households had 1-4 children under the age of five, and .01% of households had 5-8 children under the age of five. The percentages for households with 0, 1-4, and 5-8 children under the age of five varied little across different time periods, just as in California. Overall, we observed a smaller decrease of around 1.71% (0.0030) in the comparison group for the mean number of number of children under the age of 5 within a particular household. As such there was little difference in the average percentages of households with zero, 1-4, and 5-8 children across the California and comparison state groups across time periods.

5.2 Women in the Workforce

After examining the identity of the women, we studied their position within the workforce.

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We created an analysis of the women who recently had a child and their employment status, using the variables “​Employment Status​” and “​Child born within the last year.​” For our statistics we had a sample size of 832,473 and an R-Squared of 0.0029 for the treatment group and n = 219,754 and R-Squared = 0.0022 for the comparison group.

Table 2 : Change over time of variables related to the Women in the Workforce, in CA / Comparison States

California

Comparison Group

Variable (name)

Timing 1 to Timing 2 to Overall Timing 1 to Timing 2 to Timing 2 Timing 3 Change Timing 2 Timing 3

Overall Change

Total Income 12.84 (incometotal) (0.0039)

-0.73 (0.0044)

12.12 7.54 (0.0029) (0 .0063)

2.69 (0.0072)

10.23 (0.0050

Employed 1.16 but On Leave (0.0009) (empstatbin= 1)

0.21 (0.0010)

1.37 0.62 (0.0007) (0.0017)

0.34 (0.0019)

0.96 (0.0013)

Industry -0.62 Public/Privat (0.0015) e (public = 1, private = 0) (indpublic)

0.98 (0.0017)

0.36 -0.51 (0.0011) (0.0025)

0.34 (0.0028)

-0.17 (0.0020)

R2 = 0.0029 , n = 832,473

R2 = 0.0022 , n = 219,754

Key

Timing Interval

Variable

Change in Mean Between Timing Groups (Standard Error)

Notes: ​This table presents the changes across time periods for variables related to the women in the workforce across both California and our Comparison States. The first column for each state group corresponds to the period prior to the enactment of the legislation. The second column for each corresponds to the aggregate mean period during and then post its implementation.

Finally, the third column for each group represents the overall change over the three time periods. (n = 832, 473 and the R-Squared = 0.0029 for the treatment group and n=219,754 and R-Squared = 0.0022 for the comparison group).

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To grasp changes in the female labor force participation rate, we first examined the employment status of the women within our sample. In timing group one, 305,584 women are working (56% of the women in that timing group). In timing group two, 50,388 are working (57%), and in group three, 103,606 women are working (56%). What particularly interested us was that the women who identified as having a job, but not working (essentially, on leave), received benefits under the PFL. Within the first timing group, 7,619 women (1.4%) identified as such, while it was 1,800 women (2.0%) in the second timing group, and 3,448 women (1.9%) in the third. As such the rates increased between the Pre-PFL period passage of the bill, but decreased slightly once the PFL took effect (after timing two). Within our comparison group, 60.9% of women within the first timing were employed and working, 59.45% in the second, and 59.25% in the third. Additionally, 1.3% of the first timing group were employed but not working (presumably on leave), 1.8% of the second group, and 1.8% of the third. Overall, we observed a more conservative increase of women taking leave (0.96%, SE: 0.0013) within the comparison group compared with a larger increase in the treatment group. This could indicate some of the initial effects of the PFL on women’s willingness to take paid leave.

After looking at how many women took the opportunity to take leave, we decided to look at the type of industry: public or private. We wanted to see if we could confirm this information we learned from our research in our own census by seeing the proportion of our women in the public versus private sectors. Within the California sample, we observed a 0.36% (0.0011) increase in public sector jobs between timings one and three. This increase in public sector employment, where paid leave is not available, could have impacted the amount of leave taken. On the other hand, in the comparison group sample, we observed a decrease of 0.17% (0.0020) in public sector jobs overall.

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The difference in public sector participation between our treatment and comparison groups could bias our difference-in-difference regression outcomes.

Finally, we looked at income. Given the wide range of this variable, we decided we wanted to divide the total income variable into 9 brackets: Income Distribution (incometotal): ● Incometotal = 1 if income falls between $0 - $20,000 ● Incometotal = 2 if income falls between $20,001 - $40,000 ● Incometotal = 3 if income falls between $40,001 - $60,000 ● Incometotal = 4 if income falls between $60,001 - $80,000 ● Incometotal = 5 if income falls between $80,001 - $100,000 ● Incometotal = 6 if income falls between $100,001 - $120,000 ● Incometotal = 7 if income falls between $120,001 - $200,000 ● Incometotal = 8 if income falls between $200,001 – $500,000 ● Incometotal = 9 if income falls between $500,001 – $999,999 We examined the income distribution of women within the three timing groups. For California, we saw an increase in mean income between timing one and timing two of 12.84% (0.0039). Then, between timing two and timing three, there was a decrease in mean income of 0.73% (0.0044). There was an overall increase within the treatment group of 12.12% (0.0029). Within our comparison group, we observed an income increase of 7.54% (0 .0063) between timings one and two. Between timings two and three, we observed a 2.69% (0.0072) increase in mean income. We saw an overall mean income increase in the comparison group of 10.23% (0.0050). We expected this as California’s household income levels were more volatile than those of Oregon and Washington, given the fact that it possessed such metropolitan hubs as Los Angeles and San Francisco. We acknowledge that the difference in income levels between the treatment and comparison groups could bias our difference-in-difference analyses, and this disparity was something we hope to address in future studies.

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6.

Key Analysis: Difference-in-Difference

In order to better understand how the CA-PFL law affected family composition and labor market outcomes in the state of California, we ran a difference-in-difference regression with Washington and Oregon as the comparison states and 2002 (the year of policy implementation) as the base year. Key outcomes are summarized below with particular attention paid to the number of women taking leave (empstatbin) and the number of children born (fertyr).

Table 3: Public Sector Employment Rates

On Leave Employment Status (empstatbin)

Industry Public/Private (public = 1, private = 0) (indpublic)

Pre-Period (2003)

0.16% (0.0034)

-0.35% (0.0056)

Year of Implementation (2004)

-0.45% (0.0019)

-0.68% (0.0031)

Post Period (2005)

0.12% (0.0025)

-0.19% (0.0040)

R2​

0.0006

0.0025

Notes:​ This diff-in-diff table describes labor force participation rates (in percent terms), across time periods, of women who have given birth in the previous year. The first row corresponds to the period prior to the passing of the law. The second and third correspond to the period during and then post implementation. This table seeks to analyze the change in leave taken, as well as the change in employment in the public sector (a group excluded from the paid leave program). Standard error values are displayed in parenthesis. n = ​1,041,227.

The most notable aspects of the first column are the stark differences between the time periods (n = 1,041,227). In the years leading up to to the policy change, the number of employees

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reportedly having taken leave increased by 0.16% (0.0034). However in the year of implementation, the number of workers reporting that they were on leave decreased by 0.45% (0.0019). This indicates that in the year of implementation, workers were less likely to take leave from employment.

Most interesting to note is the increase in workers reporting on leave in the year directly after policy implementation. In the post-implementation time period, employees reporting as on-leave rose by 0.12% (0.0025). This is indicative of positive effects of the paid family leave policy. The relatively small increases in leave-taking align with evidence from our readings that suggest that many Californians were unaware of the existence of the PFL program as late as 2008. It would be interesting to measure the change in leave taking in the long run as more Californians become familiar with and take advantage of the program.

Figure 1: Percent Change in Californian Labor Market Composition in Comparison with Washington and Oregon Before/After PFL Implementation

Notes:​ Using 2002 as a base year, and Washington/Oregon as our base group, this graph intends to demonstrate the percentage change in women on leave as well as women in the public industry in California’s Labor Market Demographics, across the three time tranches surrounding the 2002 PFL Law. n = 1,041,227.

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In addition to examining the amount of leave taken, we also wished to analyze how the change in PFL laws affected employment in the public sector. As public sector employees were not included as beneficiaries of the PFL law, we anticipated the participation within the public sector would decrease as more mothers moved to the private sector where their right to paid leave is protected. In the time period pre-policy implementation the number of employees participating in the public sector (indpublic = 1) decreased by 0.35% (0.0056). In the implementation period, a critical window in which deductions were made from wages to set aside money to finance paid leave (in a way similar to how social security is paid into), participation within the public sector decreased by 0.68% (0.0031). Finally, in the post-implementation period, interest in the public sector decreased by 0.19% (0.0040) indicating that our hypothesis held true and that PFL negatively impacted participation within the public sector. While we acknowledge that many variables could have impacted participation within the public sector, it is critical to recognize that introduction of PFL policies could have a lasting impact on interest. These observations indicate the positive effects paid family leave policy has on the labor market in general, and on the private sector in particular.

Table 4: Family Composition

Number of Families Multigenerational Child Born in last In Household Families (multgen) Year (nfams) (fertyr)

Number of Children Under Age 5 (nchlt5)

Pre-Period (2003)

- 0.80% (0.0114)

2.02% (0.0089)

-0.45% (0.0082)

0.49% (0.0080)

Year of Implementation (2004)

1.95% (0.0063)

2.44% (0.0050)

0.77% (0.0078)

1.31% (0.0044)

Post-Period (2005)

- 0.84% (0.0083)

1.46% (0.0066)

0.53% (0.0078)

-0.26% (0.0058)

R​2

0.0026

0.0061

0.0001

0.0006

​Notes:​ This diff-in-diff table presents variations in family composition over the course of the time periods of interest. The 66

first row corresponds to the period prior to the enactment of the legislation. The second and third rows correspond to the period during and then post its implementation. Standard error values are displayed in parenthesis. n = 1,041,227.

Table 2 presents variations in family composition over the course of the time periods of interest. While variations in family composition cannot be causally related to changes in policy, there remains evident correlation. Columns (1) and (2) describe changes in family composition that we predicted could influence whether or not a mother takes leave. Between the treatment and comparison groups, we see an overall decrease in the number of families per household of 0.84% (0.0083) and an overall increase in the multi-generational composition of the household of 1.46% (0.0066). We hypothesized that having more families within a household as well as having a multigenerational household would decrease interest in taking leave because there are more housemates present to care for the child. The fact that number of families decreased while multigenerational families increased indicates that this relationship is inconclusive. Column (3) of Table 2 describes the changes in the number of children born within the last year in California. In the years before the policy implementation the number of children born in the past year declined 0.45% (0.0082). However, during the time period of policy implementation the number of children born increased by 0.77% (0.0078), which was a significant increase by any measure. And most notably, in the time period post policy implementation the number of children born in the past year experienced another increase, this time by 0.53% (0.0078). The overall increase in birth rates during the implementation and post-implementation timing groups indicates that the introduction of PFL had a significant impact on increasing birth rates among working mothers.

Figure 2: Percent Change in Californian Family Compositions in Comparison with Washington and Oregon Before/After PFL Implementation

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Notes:​ Using 2002 as a base year, and Washington/Oregon as our base group, this graph intends to demonstrate the percentage change in variables related to family composition in California’s Labor Market Demographics, across the three time tranches surrounding the 2002 PFL Law. Those variables include Number of Families, Multigenerational Family, Child Born within the Year, and Number of Children under the Age of 5. n = 1,041,227.

One curious aspect the authors wish to discuss is the decline in children under five reported by households in the time period after policy implementation. This decline in children under five is unexpected considering the 0.53% increase in number of children born; however, it is something we would like to examine further in studies to come as it could indicate that children are being born with greater time lapses between each child. This could also impact the amount of leave taken by a new mother given the hypothesis that having more children under age five would influence a mother to take more leave to care for her young children.

7.

Conclusion

From our analyses, there is a significant increase in the amount of leave taken by new mothers after the passage of CA-PFL. In addition to taking more leave, mothers are also having more children and participation within the public sector is decreasing (indicating that mothers may be switching to the private sector for employment where they will receive PFL benefits). Our results

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indicate that, while the increases are small, paid family leave positively impacts mothers by encouraging them to spend more time bonding with their newborn and increasing the birth rate indicative of the fact that mothers are able to take adequate leave to give birth without having to sacrifice income. We saw a net decrease in the number of families per household as well as the number of generations present in a household, both factors that we believed would negatively impact the desire to take leave. Controlling for these factors in the future would provide interesting insight into how leave taking is directly influenced by CA-PFL. Additionally, in future studies we would like to examine the medium and long run effects of the PFL as it gains recognition throughout the state. Finally, we recognize that the industry differences between California and our comparison states as well as the presence of large urban centers such as Los Angeles and San Francisco may render our difference-in-difference regressions biased. In the future, we would like to compare cities rather than entire states to ensure more homogeneous economies.

As a whole, we believe that Paid Family Leave has the possibility to dramatically improve female leave taking and labor force participation in the long run, and we advocate to extend the statute throughout the country.

8.

Bibliography

Bartel, A., Baum, C., Rossin-Slater, M., & Waldfogel, J. (2014, June 23). California’s Paid Family Leave Law: Lessons from the First Decade. US Department of Labor. Retrieved December 4, 2016, from https://www.dol.gov/asp/evaluation/reports/PaidLeaveDeliverable.pdf

Centers for Disease Control and Prevention (2015, July 20). Births and Natality. Centers for Disease Control and Prevention. Retrieved on December 20, 2016, www.cdc.gov/nchs/fastats/births.htm.

Das, T., & Polachek, S. W. (2014, March). Unanticipated Effects of California’s Paid Family Leave Program. Institute for the Study of Labor. Retrieved December 4, 2016, from http://ftp.iza.org/dp8023.pdf 69

Rossin-Slater, M., Ruhm, C., & Waldfogel, J. (2013). The Effects of California’s Paid Family Leave Program on Mothers’ Leave-Taking and Subsequent Labor Market Outcomes. ​Journal of Policy Analysis and Management​, ​32​(2), 224–245.

The HR Specialist—McClatchy. (2016, November 7). Many States Consider Paid Parental Leave.

CPA Practice Advisor. Retrieved December 04, 2016, from http://www.cpapracticeadvisor.com/news/12276901/many-states-consider-paid-parental-leave

Paid Family Leave California. (n.d.). What is Paid Family Leave? Paid Family Leave California.

Retrieved December 04, 2016, from http://paidfamilyleave.org/ask-us/what-is-paid-family-leave

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“Memo 3: Whole Woman’s Health v. Hellerstedt” Arielle Schoen ’20

In 2013, the Texas legislature passed a bill which placed a series of restrictions upon abortion clinics and practices. House Bill 2, also known as H.B. 2, defines two significant regulations which ultimately restrict the accessibility and ease of obtaining abortions. The first regulation requires doctors who provide abortions to have admitting privileges at a hospital local to the procedure’s location, or as outlined in the bill, a hospital within 30 miles of the procedure’s location. The second regulation requires clinics that provide abortions to meet the same safety and staff standards Texas requires of its hospital operating rooms.

Soonafter the bill was signed into law, abortion providers sued the state of Texas. The plaintiff of the case was Whole Woman’s Health, et al., a “privately-owned feminist organization” providing gynecological services and holistic care for women. The other plaintiffs involved include Austin Women’s Health Center, Killeen Women’s Health Center, Nova Health System Reproductive Services, and a series of doctors suing on behalf of themselves and their patients. The defendant of the case was the state of Texas as represented by John Hellerstedt, Commissioner of the Texas Department of State Health Services. The case initiated in the District Court for the Western District of Texas where the plaintiffs won and an injunction was issued rendering the bill null and void. Three days later, the case was heard by the Court of Appeals for the Fifth Circuit where the judges granted an emergency stay of the bill allowing it to become a law and go into effect. Two weeks later, the Supreme Court heard the case and denied the motion to vacate the stay of the bill.

About six months later, Whole Woman’s Health filed a new lawsuit now seeking to eliminate a provision to the bill which required admitting privileges at a local hospital. The constitutional 71

question raised in this case asked whether or not a court’s “substantial burden” analysis should take into account the extent to which laws that limit access to abortion services actually serve the government’s supposed interest in promoting health. The plaintiffs fought against several segments of H.B. 2 arguing that the first regulation which required admitting privileges at a local hospital only reduced the number of abortion clinics therefore making abortions less accessible and even impossible for some. They reasoned that the second regulation requiring safety standards equivalent to that of a hospital operating room also served only to reduce the availability of abortions. They declared that the restriction was not proposed or implemented to benefit the women seeking abortions but to create another hoop to jump through. This regulation allegedly works to ensure safety in an already safe environment. The abortion providers argued that these strict requirements “imposed an ‘undue burden’ on women who seek abortions,” as was coined in Planned Parenthood v. Casey in 1992.

The state of Texas argued for the implementation of H.B. 2 by defending the law as a necessary protection of women’s health and safety. They argue that these regulations protect “innocent lives,” ensure the health and safety of women, and have the best interests of women and fetuses in mind. By 2015, two years after the initiation of the suit, the Supreme Court granted an indefinite stay thereby making the law inactive and inapplicable. The Court held that in analysing the substantial burden for this case, the extent to which the law serves the government interest must be weighed against the degree to which the law imposes a burden on those individuals it affects. As stated by Justice Breyer in his delivered opinion of the court, he held that “the regulations of H.B. 2 do not confer medical benefits sufficient enough to justify the burdens they impose on women seeking to exercise their constitutional right to an abortion.” Justice Ginsburg concurred explaining

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that because modern abortions are so safe compared to other medical procedures, any law making abortions less accessible and more difficult under the guise of safety could not pass judicial review.

Had Hellerstedt won, this case and these restrictions would have had a tremendous affect on the accessibility of abortions in Texas. As noted by Garrett Epps, the restrictions would have closed all but a handful of Texas’s 40 abortion clinics. “For more than 1 million women in the vast state, those remaining clinics would be more than 150 miles away.” These regulations would have taken away the right to terminate one’s own pregnancy safely for so many by forcing women to choose between: spending money to travel long distances to get to a facility with high demand for abortions; dangerously attempting to self-abort; or being trapped into having a child they did not want. This case divided political parties in that liberals wanted the Texan bill shut down in order to keep abortions attainable for women while conservatives argued for the implementation of the bill for the benefit of women’s health. As stated by Justice Ginsburg, while the bill would not have amounted to any benefitted safety or health of women, it would have taken away the ability to choose for thousands of women. The women who would have been disproportionately affected by this law would have been of lower socioeconomic classes. The entrapment of so many individuals into motherhood or unsafe conditions in an attempt to evade motherhood are two extremely irresponsible and losing options for women, especially the constitutional right to an abortion was secured as a guarantee just forty-four years ago.

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“James Madison and Anti-Federalists: A Dichotomy” Kathryn Cross ’20

James Madison and the Anti-Federalists differed immensely in their attitudes towards government, and this is showcased in Federalist #10 and Federalist #51. Two specific Anti-Federalists that disagreed with Madison were Brutus and Centinel. Centinel disagreed with Madison’s ideals on the separation of power. Centinel stated that a separation of power into three branches would leave too much room for conflict and disagreement between the branches.

Additionally, two branches could ally with one another and overpower the third branch.

Consequently, Centinel believed that a healthy government should consist of a singular legislature with power. This would also allow the American people to have something to blame in case there are governmental issues. With three branches, Centinel argued it would be difficult to find someone culpable for problems.

Meanwhile, according to Federalist #51, Madison believed that a separation of power was absolutely essential to have a healthy government. Madison explains how a separation of powers would help spread power over various sources and places, making it difficult for too much power to accumulate in one place. This would prevent factions (or a group of citizens that share common interests that could hurt other groups), which Madison believed were toxic for an effective government. Madison thought that a separation of powers helps set up an effective checks and balances system, which would further prevent factions. Inevitably, Madison and Centinel differed in their beliefs.

Madison also disagreed with the anti-federalist Brutus over the idea of an extended and expanded republic. In Federalist #10, Madison explains that factions come from differences in property ownership between citizens. Factions cause problems in governments because they can act 74

on their own self-interest and potentially hurt others, so it is important to eliminate factions as much as possible. To do this, a government must eliminate its causes (but that would destroy citizens’ liberties, since liberties cause factions) or control its effects, which Madison thinks is a more plausible option. Consequently, Madison advocates for a republic, or representative democracy, to control the effects of factions. In Federalist #10, Madison illustrates that having a representative government would solve the issue behind minority factions because they would be outvoted.

On the contrary, anti-federalist Brutus stated that having a republic--and especially a widespread republic--would be bad for a government. Brutus explained in his works how having a republic would prevent ​every ​constituent's voice from being heard since a representative cannot possibly represent every constituent's interest. Brutus thought that this was wrong since every citizen of a government should have input and consent over what is happening in their government.

Additionally, Brutus said that if a government is too widespread, there would be no room for unity in times of crisis since the republic would be so widespread and there would be too many differences between constituents to have unity. Finally, Brutus said that representatives are corruptible and may not represent all of their constituents, so a representative, widespread government is a horrible idea. Instead, Brutus proposed having small governments where each government official can be in contact with his or her constituents. Undoubtedly, anti-federalists and Madison differed immensely.

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A Third World War? U.S. Security Interests in the Senkaku Islands Hajin Park ’17

Called the Senkaku Islands by Japan, the Diaoyu Islands by the People’s Republic of China, and the Diaoyutai Islands in Taiwan, the islands consist of five uninhabited islets and three barren rocks and are located in the East China Sea (see fig. 1). It has had little use except as navigational markers, however, sovereignty of the islands is heavily disputed to this day between Japan, the PRC and Taiwan due to economic and nationalistic interests. The sovereignty dispute has led to escalation

of tensions and close military encounters and scholars have even reported concerns that continued tension over the islands could even lead to World War III (Dillow 2017). Former President Obama faced a predicament in addressing the issue, as the Obama administration tried to maintain its alliance with Japan and also improve ties with China. In order to maintain this balance, the U.S. 76

government has acknowledged that the Senkaku Islands are under Japan’s administration and stated that the U.S. opposes “any unilateral actions that would seek to undermine Japanese administration" while also saying that it “doesn't take a position on the ultimate sovereignty of the islands” (Mullen 2012). The United State’s cannot, however, be a mediator or a bystander in this issue and must own up to its own partial responsibility in the dispute. It would be in the United State’s best interest to support Japan’s sovereignty claims so as to reaffirm its international power, limit China’s regional hegemony and continue its mutually beneficial relationship with Japan. Furthermore, neither third party international organizations nor existing codes of conduct can solve the territory dispute, so it is all the more crucial that the U.S. takes a strong position and puts pressure on the issue.

The Japanese government annexed the Senkaku islands after defeating China in the First Sino-Japanese War in 1895. After Japan’s defeat in World War II in 1945, the U.S. limited Japan’s sovereignty “to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine” and the Senkaku islands came under U.S. government occupation (Japan 2003). In 1972, however, the U.S. Senate passed the Okinawa Reversion Treaty, returning the islands to Japan. On the other hand, the PRC argues that it should have been given control of the islands after WWII and upholds historical texts and maps as proof that the islands were a part of Chinese territory since 1534.

There are multiple reasons for the heated dispute over a group of seemingly unimportant, small islands. First, the history of war and conflict between China and Japan has led to remaining antagonistic feelings, which spurs strong nationalism. Xi Jinping, PRC President and General Secretary of the Communist Party cited “Japanese atrocities during World War II as something still fresh in our memory” (Donahue 2014). Whoever gains sovereignty of the islands will not only enjoy

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increased nationalism and favor from the people, but will gain an upper hand politically, because the dispute is a psychological competition for power in the greater Asia Pacific region. The Senkaku Islands are also valuable because the continental shelf surrounding the islands is rich in natural minerals, which are the future of energy resource. In 1969, the United Nations Economic Commission for Asia and the Far East (ECAFE) identified potential oil and gas reserves in the region and the PRC first began making claims for the islands three years after, in 1972. On top of the oil and gas reserves, the neighboring oceans are a rich fishing ground and contain important sea-lanes.

In 2014, the Chinese government announced a 12.2 percent increase in military spending. As John J. Mearsheimer points out about realist states, if China continues to maximize power and does not curb its appetite for power, other countries may try rebalancing the power by joining together.

This is apparent in how Japan and the Philippines are bringing the issue of territorial disputes to international attention so as to garner support. In fact, Vietnam who also had clashes in past decades with China over islands, has been trying “to ‘internationalize’ the disputes by bringing in other players for multilateral negotiations” (Landler 2010).

Neighboring countries that feel threatened are not only trying to rebalance power by joining together, but also are improving their own militaries. China’s increased military strength is creating a security dilemma in the region with both Japan and the Philippines set to spend more on military in the future. Japan will raise military spending this year “for the first time in over a decade… in response to an emboldened China” (Hasegawa 2014). The Philippines too is revamping its military with a $1.8-billion military upgrade to help “defend its maritime territory against bullies” (Morella 2013). According to Kazuhiko Togo, director at the Institute for World Affairs of Kyoto Sangyo

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University, “Japan has no choice but to possess deterrence by boosting its defense budget” (Hasegawa 2014). President Aquino of the Philippines also stated that “the Philippines is for Filipinos, and we have the capability to resist bullies entering our backyard” (Morella 2013). This phenomena in Asia towards strengthening the military is being called the “world’s fiercest arms race” (Kurlantzick 2014). In fact, the arms race in Asia is looking much like the arms race of the Cold War (see fig. 2).

Indeed, both Philippine President Aquino and Japanese Prime Minister Shinzo Abe have compared the current situation to the lead up to the world wars. President Aquino sounded alarms on China, calling nations to support the Philippines in resisting China’s assertive territorial claims in the sea. He called nations to remember that “Sudetenland was given in an attempt to appease Hitler to prevent WWII,” urging the world that power hungry states do not know when to stop and that the world has to say that enough is enough (Bradsher 2014). Prime Minister Abe also noted that “Britain and Germany went to war in 1914 even though they had close economic ties” drawing parallels to China and Japan (Bradsher 2014).

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If the U.S. does not take a clear stance supporting Japan on this issue, a repeat of WWII may take place. The West failed to come to Czechoslovakia’s aid when Hitler first invaded, which led to Germany’s advances in many more territories. The fact that “American military officials have said ties with their Chinese counterparts are much weaker than with Soviet military officials during the height of the Cold War” makes the situation even more serious (Wong 2014). If the U.S. does not do anything, China will continue to throw its weight around and neighboring countries will spend more on military. Before the Asia Pacific becomes highly militarized, the U.S. needs to stop additional “illegal and provocative presence of Chinese warships and other vessels” in other state’s waters (Morella 2013).

The U.S. is in a binding agreement to support and come to Japan’s defense in this territory dispute as the two have signed a Treaty of Mutual Cooperation and Security. Article 5 of the Treaty of Mutual Cooperation and Security states: “Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security” (Harner 2012).

Beyond the treaty, however, it is in the United State’s best interests to support Japan in the dispute. Pre-established economic and military ties between the U.S. and Japan through the Treaty of Mutual Cooperation and Security indicate low costs and high benefits in a continued relationship

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with Japan. In addition, because Japan is also a democratic state, the relationship has low costs and risks because as stated in Democratic Peace Theory, democratic states are less likely to go to war with each other.

From a liberalist framework, the U.S. would incur higher costs and lower benefits by supporting China in the dispute. Talks and deals with China in the past have been slow and ineffective. An added element of difficulty in Chinese-U.S. relations is that the Communist Party, not the Ministry of Defense, controls China’s military, known as the People’s Liberation Army (PLA). Although the party and government are closely tied, the party is even less transparent than the government, which complicates foreign relations because it is difficult to understand the PLA’s intention and loyalties. For example, in 2012 the U.S. mediated a deal between the Philippines and China over another disputed territory, a reef called Scarborough Shoal (see fig. 1). As part of an “American-mediated deal in which both sides were to pull back while the dispute was negotiated”, only Philippine forces withdrew from the standoff and Chinese forces remained and gained control (Bradsher 2014). This example shows that it is difficult to work with or predict the PLA. Taking China’s side on the issue over Senkaku Islands would not only be a breach of the Treaty of Mutual Cooperation and Security, but also pursuing a relationship with China has higher costs and lower benefits.

In addition, from a liberalist’s standpoint, it is important to consider the dominant societal interests of the people and both Japanese and American citizens have expressed positive views of the other. According to a 2007 Okinawa Times poll, 73.4 percent of Japanese citizens were in favor of the mutual security treaty with the U.S. Likewise, a BBC poll reported that 66 percent of U.S. citizens have a positive viewpoint of Japan, compared to only 23 percent of U.S. citizens who have a

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positive viewpoint of China (Views 2013). This shows that the dominant societal interest of U.S. citizens is one in support of Japan not China. By backing Japan in the dispute, the U.S. would also be pleasing constituents at home.

Supporting Japan in the dispute will also help protect the affairs of the region from becoming dominated by the PRC. China’s current push for territorial sovereignty of the Senkaku Islands is explained well by the theory of realism, which is that states are self-interested and will do anything to gain power and security. E.H. Carr argues along realist theories that states are not in a harmony of interest and that in serving themselves, nations are not always serving humanity. By laying claims on the Senkaku Islands and antagonizing other countries in the region, China is only serving itself.

According to Chinese scholar Ye Hailin, "If Japan ultimately forces China to abandon its claims to sovereignty over the Diaoyu Islands with U.S. support, then the American led Asia-Pacific order underpinned by the US-Japan alliance would undoubtedly be reaffirmed. At the same time, China’s realization of its dream of transforming from a continental nation to a maritime nation would not be realized. On the other hand, if China successfully fulfills its sovereign claims over the Diaoyu Islands, then it would mean that the era of the United States dominating the Asia-Pacific maritime order according to its interests and even its preference will end on the spot. China will then become an important participant in the development and maintenance of the Pacific maritime order" (Military 2014).

To counteract China, the U.S. too should take a realist approach. Machiavelli writes that a prince should gain enough power so that others are afraid of him. In this constantly competitive world where countries are jostling for power, if the U.S. wants to make a point that it is a greater

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power than China, the U.S. has to take a stance. China is not the only one that can insist that there can be no concession on the issue of territorial sovereignty of the Sensaku Islands. By standing with Japan, the U.S. will be sending a message to China and other states that the U.S. should be feared.

Some may discourage the United State’s involvement in the issue because of China’s military buildup and it’s perceived danger and readiness for military conflict. In reality, China’s military spending growth “reflects the growth of the economy, rather than an expanding share of national income” (Dragon’s 2012). Not to mention, Chinese economic growth may be slowing down in the future. According to Forbes, China’s “export-heavy, investment-led growth model is exhausted and will, over time, produce lower and lower growth before triggering a debt crisis” (Chang 2014).

In addition, China’s military buildup can be considered as nothing more than a form of swaggering. Robert J. Art defines swaggering as the “deployment of military power for purposes other than defense, deterrence, or compellence. Swaggering is expressed usually in one of two ways: displaying one's military might at military exercises and national demonstrations and buying or building the era's most prestigious weapons" (Art 2012). President Xi Jinping himself has reassured the international community that China would “seek friendly relations in the region” and that “the buildup of high-tech weapons and military hardware is ‘purely normal’ to ensure the world’s most populous nation can defend its interests” (Donahue 2014).

Others are more concerned about what the military spending budget will be used for than what the budget is. Indeed, there are reports that China is reaching for more high-tech weapons and that it is “intent on acquiring… anti-access/area denial capabilities” like cyber and anti-satellite weapons to “destroy or disable another nation's military assets from afar” (Dragon’s 2012). In reality, a significant portion of the growth in military spending will be going to “more pay raises”

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and “better, more realistic training” (Wong 2014). To conclude, China is building up its military in a peaceful manner and non-threatening expenses can account for the growth in military spending.

There is some concern that U.S. involvement and support for Japan in the dispute will only agitate the PRC and provoke China to demonstrate military defiance. If military conflict arises, the U.S. will be unfortunately sucked in although use of military force would be detrimental to its reputation since the Iraq War and the George Bush administration has already created anti-American sentiments. However, if the U.S. makes it clear that it will come to Japan’s military defense, China is less likely to attack in the first place than if the U.S. does not take a strong stance. This is because as Robert J. Art argues in ​The Four Functions of Force​, the U.S. possesses defense, which is the ability to ward off attack and to minimize damage caused by attack. For example, the U.S. has a natural defense in the form of the Pacific Ocean. In addition, the U.S. also possesses deterrence, the threat of retaliation, which Japan does not since it does not have its own nuclear weapons. The U.S. has the largest nuclear weapon arsenal, with estimated 7650 warheads and the ability to deliver weapons by land, air or sea (Nuclear 2014). China too has nuclear weapons, which can be carried by aircraft or land-based missiles. The point is that both countries have second-strike capability, or the threat of retaliation, so neither will want to attack the other (Art 2012).

Another critique against U.S. involvement in the Senkaku issue is the economic repercussions it would have on the U.S. An article published in the People’s Daily, the official newspaper of the Communist Party of China threatened that, "The US-Japan Security Treaty is a byproduct of the Cold War era, and should not damage the interests of third parties, including China… Any nation that seeks to interfere in the Diaoyu Islands issue will experience a loss of their interests" (Wood 2012). These loss of interests are economic punishments, “including suspending

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imports, halting tourism, encouraging boycotts, offering up oil blocks in disputed areas, or impeding fishing access” (Kleine-Ahlbrandt, 2012). Some may caution that the economic punishments that Beijing promises will hurt the U.S. economy and that this is not something the U.S. can afford.

However, the economies of the U.S. and the PRC are too interdependent that China cannot do much harm without doing harm on itself. Although China has been “increasingly using its economic might to advance political ends -- even when this hurts China itself”, even China can only go so long on this route. After all, China’s main objectives are to keep up its “momentum of economic development and [prevent] domestic troubles from erupting into potentially destabilizing unrest” (Kleine-Ahlbrandt, 2012).

Some may argue that the U.S. could do much better by being a mediator instead of taking a side on the issue. Previous disputes show that U.S. pressure is crucial to coming to an agreement.

For example, Japan and Taiwan have had fishing disputes in the waters around the Senkaku Islands.

In April 2013, they were able to come to a bilateral fishing commission agreement because of U.S. involvement and “U.S. pressure to cool the dispute” (Hoadley 2013).

It is also unlikely that a third party can resolve the Senkaku dispute so the U.S must step in.

In previous cases, disputes submitted to third party international organizations have not been solved. For example, the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS) both accept cases of island disputes, but do not always “successfully” resolve conflicts (Hoadley 2013). Furthermore, China has made it clear that it strongly opposes 'internationalizing' its East China Sea dispute and without China’s consent in bringing this to international judgment, Japan or Taiwan cannot “contest actual sovereignty in international courts” (Torode 2013). Even if the issue was brought to the ICJ or the ITLOS, China would probably argue

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that the “case has ‘no legal grounds’, and is widely expected to reject any outcome it does not agree with” (Torode 2013).

Others have suggested a joint resource agreement or the establishment of a code of conduct for territorial breaches. However, based on previous cases of attempted negotiations for establishing joint maritime development zones, this is unlikely to solve the dispute as well. For example, “Thailand-Malaysia, Vietnam-Cambodia, and Vietnam-China government-to-government negotiations over maritime boundary disputes were protracted (up to fifteen years) and did not result in significant joint exploitation” (Hoadley 2013). Codes of conduct have also been ineffective in the past. UN members, including China, ratified the United Nations Convention on the Law of the Sea (UNCLOS) in 1994. As shown in Figure 3, the UNCLOS gave states Exclusive Economic Zones (EEZs) that extended for 200 nautical miles from one’s shore. This code has not helped in the case of the Sensaku Islands dispute because of a technicality. UNCLOS, Part VI, Article 76 states a case where a state’s EEZ is determined by the natural extension of its continental shelf. China has argued that since the “natural extension of its continental shelf runs up to the Okinawa trough and perhaps even beyond” this should be used to determine its EEZ in the East China Sea and in the waters surrounding Senkaku islands (Smith 2012). Clearly it is difficult even with the existing laws of the sea to establish a solution that both Japan and China can agree to.

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In addition, the Association of Southeast Asian Nations (ASEAN), which was formed in 1967, has also established its own Code of Conduct. This Code of Conduct “has now been embraced in theory by Beijing, but the specific content of that Code and the ability to formalize it into a multilateral commitment may take some time to realize” (Smith 2012). This reiterates that establishing a code of conduct is timely and ineffective.

Furthermore, previous experiences in dealing with China’s territorial disputes show that it is not possible to rely on even a moral code of conduct. As mentioned earlier, in 2012 the U.S. mediated a deal between the Philippines and China over the Scarborough Shoal. Both sides were to pull back while the dispute was negotiated, however, only the Philippine forces withdrew and Chinese forces then remained and gained control (Bradsher 2014). These examples prove that “efforts at reconciliation… have been insufficient to prevent flare-ups in the relationship” (Smith 2012).

As Chinese Foreign Ministry spokesman Qin Gang pointed out, the U.S. has historical responsibility in the Senkaku Islands dispute, since it was the U.S. that put the islands under Japan’s control after WWII despite Chinese opposition (Yang 2013). Therefore, the U.S. cannot just stand on the sidelines and say that it “doesn't take a position on the ultimate sovereignty of the islands” (Mullen 2012). The U.S. needs to take Japan’s side, declaring that rightful sovereignty of the Senkaku Islands belongs to Japan, and make clear that it will come to Japan’s military defense over the small, but important issue of the Senkaku Islands. In doing so the U.S. will be able to reinforce and demonstrate its power and ensure that China does not gain hegemony of the affairs in the region. In addition, based on cost/benefit analysis, the U.S. has more to gain and less to lose from demonstrating its support for Japan than it would if it supported China or if it just acted as a

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mediator.

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11​th​ ed. Boston, MA: Pearson, 2012.

Bradsher, Keith. "Philippine Leader Sounds Alarm on China." ​The New York Times​. The New York Times, 04 Feb. 2014. Web. 13 Mar. 2014. <http://www.nytimes.com/2014/02/05/world/asia/philippine-leader-urges-international-help-in-r esisting-chinas-sea-claims.html>.

Carr, E.H. ​The Twenty Years’ Crisis, 1919-1939​. London: Macmillan and Co, 1940.

Chang, Gordon G. "China Can't Afford Its Military -- That's Why We Should Really Worry."

Forbes​. Forbes Magazine, 16 Mar. 2014. Web. 16 Apr. 2014. <http://www.forbes.com/sites/gordonchang/2014/03/16/china-cant-afford-its-military-thats-why -we-should-really-worry/>.

DePillis, Lydia. "Everything You Need to Know about the Trans Pacific Partnership."

Washington Post​. The Washington Post, 11 Dec. 2013. Web. 2 Apr. 2014. <http://www.washingtonpost.com/blogs/wonkblog/wp/2013/12/11/everything-you-need-to-kno w-about-the-trans-pacific-partnership/>.

Dillow, Clay. "Military Nightmare Scenario Brewing in the East China Sea." ​CNBC​.

NBCUniversal, 4 Apr. 2017. Web. <http://www.cnbc.com/2017/04/04/world-war-iii-nightmare-scenario-brewing-in-the-east-china-s ea.html>.

Donahue, Patrick, and Brian Parkin. "Xi Says China's Military Expansion Not Aimed at Asian Hegemony." Bloomberg.com. Bloomberg, 28 Mar. 2014. Web. 04 Apr. 2014. <http://www.bloomberg.com/news/2014-03-28/xi-says-china-s-military-expansion-not-aimed-at-a sian-hegemony.html>.

"The Dragon's New Teeth." ​The Economist​. The Economist Newspaper, 07 Apr. 2012. Web. 10 Apr. 2014. <http://www.economist.com/node/21552193>.

Harner, Stephen. "Is the U.S. Committed to Defend the Senkakus?" ​Forbes​. Forbes Magazine, 23 Sept. 2012. Web. 22 Mar. 2014. <http://www.forbes.com/sites/stephenharner/2012/09/23/is-the-u-s-committed-to-defend-the-se nkakus-text-of-article-5-of-the-u-s-japan-treaty/>.

Hasegawa, Kyoko. "Japan To Raise Military Budget For First Time In Decade Amid China Row." ​Business Insider​. Business Insider, Inc, 08 Jan. 2013. Web. 10 Apr. 2014. <http://www.businessinsider.com/japan-to-raise-military-budget-for-first-time-in-a-decade-amid-ch ina-row-2013-1#ixzz2zft86ole>.

Hoadley, Stephen. "Tensions in the East China Sea: Stephen Hoadley reviews the China-Taiwan-Japan disputes over islands in the East China Sea and explores avenues for their mitigation." ​New Zealand International Review​ Nov.-Dec. 2013: 25+. Academic OneFile. Web. 26 Feb. 2014.

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Library, 2003. Web. 13 Apr. 2014. <http://www.ndl.go.jp/constitution/e/etc/c06.html>.

Kleine-Ahlbrandt, Stephanie. "Why China Won't Turn the Other Cheek over Foreign Policy." ​CNN​. Cable News Network, 15 Nov. 2012. Web. 15 Apr. 2014. <http://www.cnn.com/2012/11/13/opinion/china-naval-disputes/index.html>.

Kurlantzick, Joshua. "An Arms Race Gets Into Gear and Other Predictions for Asia in 2014." ​Bloomberg Business Week​. Bloomberg, 06 Jan. 2014. Web. 14 Apr. 2014. <http://www.businessweek.com/articles/2014-01-06/predictions-for-asia-in-2014-an-arms-race-ge ars-up-thailand-melts-down>.

Landler, Mark. "Offering to Aid Talks, U.S. Challenges China on Disputed Islands." ​The New York Times​. The New York Times, 23 July 2010. Web. 13 Mar. 2014. <http://www.nytimes.com/2010/07/24/world/asia/24diplo.html?_r=0>.

"Military: Senkaku / Diaoyutai Islands." ​Global Security​. GlobalSecurity.org, 16 Jan. 2014.

Web. 28 Mar. 2014. <http://www.globalsecurity.org/military/world/war/senkaku.htm>.

Morella, Cecil. "Philippines To Spend $1.8B on Defense To Resist 'Bullies'" Defense News.

Gannett Government Media Corporation, 21 May 2013. Web. 10 Apr. 2014. <http://www.defensenews.com/article/20130521/DEFREG03/305210017/Philippines-Spend-1-8 B-Defense-Resist-Bullies->.

Mullen, Jethro. "Philippines Takes Territorial Fight with China to International Tribunal."

CNN​. Cable News Network, 22 Jan. 2013. Web. 22 Mar. 2014.

"Nuclear Weapons: Who Has What?" ​CNN​. Cable News Network, n.d. Web. 18 Apr. 2014. <http://www.cnn.com/interactive/2013/03/world/nuclear-weapon-states/>.

Oshima, Takashi, and Kenji Minemura. "Panetta Tells China That Senkakus under Japan-U.S. Security Treaty." The Asahi Shimbun. The Asahi Shimbun Company, 21 Sept. 2012.

Web. 3 Apr. 2014. <http://ajw.asahi.com/article/asia/china/AJ201209210061>.

Oye, Kenneth A. “The Conditions for Cooperation in World Politics.” ​International Politics: Enduring Concepts and Contemporary Issues​. 11​th​ ed. Boston, MA: Pearson, 2012.

Smith, Sheila A. "Japan and the East China Sea Dispute." ​Orbis​ 56.3 (2012): 379-90.

ScienceDirect. Elsevier B.V. Web. 26 Feb. 2014. <http://www.sciencedirect.com/science/journal/00304387/56/3>.

Torode, Greg. "Philippines South China Sea Legal Case against China Gathers pace." ​Reuters​.

Thomson Reuters, 27 Sept. 2013. Web. 5 Apr. 2014. <http://www.reuters.com/article/2013/09/27/us-china-philippines-idUSBRE98Q0BX20130927>.

"Views of China and India Slide While UK's Ratings Climb: Global Poll - World Public Opinion." Views of China and India Slide While UK's Ratings Climb: Global Poll - World Public Opinion. BBC, 22 May 2013. Web. 15 Apr. 2014. <http://www.worldpublicopinion.org/pipa/articles/brglobalmultiregionra/734.php>.

Wong, Edward. "China Announces 12.2% Increase in Military Budget." ​The New York Times​.

The New York Times, 05 Mar. 2014. Web. 04 Apr. 2014. <http://www.nytimes.com/2014/03/06/world/asia/china-military-budget.html?_r=0>.

Wood, Catherine. "Treading a Fine Line." ​China.org.cn​. China.org.cn, 26 Sept. 2012. Web. 3 Apr. 2014. <http://www.china.org.cn/opinion/2012-09/26/content_26634594.htm>.

Yang, Fang. "China Opposes U.S. Comments about Diaoyu Islands: Spokesman." ​Xinhua News​. Xinhua, 20 Jan. 2013. Web. 22 Mar. 2014.

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“Corruption and Oppression within the Prison-Industrial Complex” Arielle Schoen ’20

The consideration and comprehension of history is essential to understanding and fighting oppression. An awareness of the origin of an oppressed group and of the continued and contemporary forms of oppression toward that specific group is necessary to analyzing oppression.

History must be addressed in order to acknowledge the effects and mistakes of the past. In order to fight oppression and all of its manifestations, one must understand what has been previously effective and what has not been. Drawing on the work of Cherríe Moraga, Michelle Alexander, and Angela Davis, I argue that an understanding of the history of the prison-industrial complex is crucial to its analysis and transformation.

In her essay “From Inside the First World: Foreword, 2001,” Cherríe Moraga describes the decline of the United States as a safe place. Using the attacks of September 11​th​ on the World Trade Center as support for her claims, Moraga explains the transition within the United States pre and post attack. As stated by Moraga, “In a very brutal way, all that has changed with the attacks of September 11 is the illusion that the United States borders protect those who reside within them, an illusion seldom shared by this country’s residents of color” (Moraga, xv). She dispels the idea that the United States was ever a safe place for everyone by identifying the unsafe feelings resulting from the attack as feelings already experienced by communities of color prior to September 11​th​. The fear felt by people of color in the United States is not a recent development. After years of various forms of institutional oppression, including but not limited to slavery, years of “separate but equal” facilities to maintain segregation, activist movements that have continually ignored the needs of people of color, and discrimination in issues of immigration and acceptance, people of color have not had the privilege of feeling safe in America. The fear resulting from the attacks of September

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11​th​ was and still is widespread, but the idea that it is new and that the United States was safe before the attack is one that erases the experiences of so many communities. Moraga continues, “In the futuristic action film that is now our lives, the ‘bad (foreign-looking) guys’ blow down the World Trade Center and ‘good (whitish-looking) guys’ bring out the big guns to defend the US against the assault” (Moraga, xviii). In this statement, Moraga discusses the stereotype that it is the white men who protect the US and the foreign men who attack. Ideas like these only further isolate people of color and reduce them to terrorists and eliminate all chances of being treated equally and being respected, protected, and made to feel safe within the borders of the US. Moraga continues calling the attacks “the death of our illusion of invulnerability, of plain old safety as demarcated by US borders” (Moraga, xxiii). She contradicts the predominant idea that the lack of safety only began September 11​th​. Understanding the historical context of oppression in the United States is essential to substantiating Moraga’s argument. In order to analyze contemporary manifestations of oppression, one must be familiar with its history and its implications.

As can be inferred from Moraga, the United States had been unsafe for people of color for hundreds of years before the attacks of September 11​th​ made it unsafe for all. One way in which the inequality and lack of safety for specific groups in the United States has manifested itself is by way of the prison-industrial complex. In the introduction to her book ​The New Jim Crow​, Michelle Alexander parallels the criminal justice system with the Jim Crow laws, laws that forced segregation and eliminated civil rights of people of color. Alexander initiates this argument by citing the example of a family of which five generations of African American men were denied the right to vote. She describes Jarvious Cotton and his great-great-grandfather’s inability to vote because of his status as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote, his

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grandfather barred from voting by Klan intimidation, his father barred due to poll taxes and literacy tests, and Jarvious, barred because of his status as a felon. Five generations of men were denied their fundamental rights of participating in their democracies, five generations oppressed by way of evolving systems of power. She describes the history of the criminal justice system as one created through the facade of the “War on Drugs.” Alexander identifies the manipulation of the law by the government and the media to associate crack cocaine and negative stereotypes with black neighborhoods in order to further influence the legal system by way of racially motivated stereotypes. She states, “the American penal system has emerged as a system of social control unparalleled in world history” (Alexander, 8). As slavery, poll taxes, and literacy taxes were phased out, the prison-industrial complex evolved to continue the persecution of African Americans and other communities of color. She continues, “Although this new system of racialized social control purports to be colorblind, it creates and maintains racial hierarchy much as earlier systems of control did. Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race” (Alexander, 13). The prison-industrial complex is a huge institution with the hidden agenda of being an agent of social control. Additionally, Alexander argues that despite the enormity of the issue of mass incarceration of people of color in the United States, there are no arguments being made against this inequality by the civil rights organizations that seem to be fighting every other issue for communities of color. The fight against the prison-industrial complex is one with no easy answer; it is an issue without widespread advocacy that would surely be replaced by another form of racialized social control if it was to be fought.

In her essay “Masked Racism,” Angela Davis addresses imprisonment as “the response of

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first resort to far too many of the social problems that burden people who are ensconced in poverty.

These problems often are veiled by being conveniently grouped together under the category ‘crime’ and by the automatic attribution of criminal behavior to people of color” (Davis, 1). As someone with firsthand experience inside the prison-industrial complex, Davis argues that as social welfare programs and the state of public education are diminishing, mass incarceration has grown and continues to grow rapidly. She continues by identifying the manipulation of the prison system as a racially oppressive institution and as a huge source of profit for private companies that have created capital in the punishment industry. People stuck within the prison system are often exploited for their labor, compensated at a rate far below the minimum wage, erased from society and left out of the census calculations, therefore distorting our views of our society, and hidden away in the system with no support out in place for after they have served their time. Davis states, “Surveillance is thus focused on communities of color, immigrants, the unemployed, the undereducated, the homeless, and in general those who have a diminishing claim to social resources. Their claim to social resources continues to diminish in large part because law enforcement and penal measures increasingly devour these resources. The prison industrial complex has this created a vicious cycle of punishment which only further impoverishes those whose impoverishment is supposedly ‘solved’ by imprisonment” (Davis, 21).

The cycle of punishment continues to spiral and hurt those who it has already affected negatively.

Davis asserts that the prison-industrial complex must be fought. She calls for a movement in defense of the rights of prisoner that will not seek “new prisons, but new health care, housing education, drug programs, jobs, and education” (Davis, 22). As can be inferred from Davis, the

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current prison system makes democracy unattainable, leaves so many without protections and basic human rights, and acts cyclically as to only get more and more powerful, and the current prison system calls for an uprising.

Understanding the past is crucial to understanding the prison-industrial complex. Moraga put forth the idea that the United States has never been a safe space for people of color. The prison-industrial complex only further supports this assertion that people of color are being targeted and erased by way of the racialized social controlling system that is the prison system. The institutions of the United States manipulate and reduce an already manipulated group that has spent hundreds of years trying to gain the same civil rights are everyone else. History continues to affect the prison-industrial complex by minimizing fundamental rights of prisoners and by allowing a corrupt system to continue to get worse. Understanding the history of the prison system and of the racial imbalances throughout the history of the US is crucial to analyzing contemporary forms of oppression and to finding ways to reconstruct a system that is broken for so many.

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“The Death Penalty: An Immoral Punishment” Malley Chertkov ’19

The first recorded execution in the new colonies was that of Captain George Kendall in the 27

Jamestown colony of Virginia in 1608. Since the very beginning, the death penalty has been a point of contention among legal scholars. Some believe that it is a strong punishment with a retributive and deterrent effect, important for maintaining the laws of the land and discouraging the most heinous of crimes. Others, like Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society, believed that the death penalty would actually increase 28

criminal conduct. In 2014, 35 inmates were executed in the United States, and 3,002 were on death 29

row. The death penalty is not a punishment of the past, as it is currently utilized by 31 states. There is still a lot of disagreement on if and how it should be implemented, which begs a core consideration that must be addressed: is the death penalty a morally justified punishment, as it is currently implemented in the United States?

Historically, a legally justified criminal punishment in the United States has been based off of a few key conditions: it must be retributive, it must have a deterrent effect, and, when possible, it should allow for rehabilitation. I add to these values my own conditions for a ​morally ​justified punishment: a punishment should value all of these conditions, but it should especially value human life, justice, and equality. The cruel and unusual implementation of the death penalty, as well as the

27

Death Penalty Information Center, “Part I: History of the Death Penalty,” accessed December 9, 2016,

http://www.deathpenaltyinfo.org/part-i-history-death-penalty.

28

Ibid.

Grant Schulte, “Death Penalty Repeal Officially on Hold until 2016 Election,” ​Associated Press​, October 17, 2015,

29

http://bigstory.ap.org/article/1aea52fe83374e08ac08667cf680f83d/death-penalty-repeal-officially-hold-until-2016-electi on.

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risk it holds of taking an innocent life, violate these moral conditions. The death penalty is not morally justified because it is cruel and unusual and is based off of the assumption that we work within a perfect legal system.

In this paper I will begin by detailing why the death penalty as it is practiced is not morally justified by explaining why it is cruel and unusual and how this punishment specifically is reliant on a perfect justice system that does not exist currently in the United States. I will then explore the strongest objections to my assertions and provide my own counterpoints to these objections.

The Eighth Amendment of the United States Constitution specifically warns against the implementation of “cruel and unusual punishment”. The death penalty is both cruel and unusual, making it not only immoral, but unconstitutional. Human life is sacred. The taking of a human life, no matter by who, is the greatest crime one can commit. The taking of a human life is cruel on its own, but the way the death penalty is implemented is especially cruel. Various things may go wrong during the process of administering the drugs used to kill the inmate, including the inmate not falling unconscious and experiencing excruciating pain (while being paralyzed, so not able to show it). The actual execution may take from 20 minutes to an hour – all while in the inmate suffers. The person who has to administer the drugs also must suffer the cruelty from the guilt and burden they carry after implementing the execution.

The death penalty is also unusual and arbitrary in its implementation, and therefore, unequally distributed. The death penalty can be given or not given based off of race, geographical location of the crime and trial, a prosecutor’s discretion, the income of a defendant, and pressure on politicians to be “tough on crime”. Conscious and unconscious bias can follow a defendant from the

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moment the police identify them to the moment when the judge doles out the punishment. Amnesty International reports that “since 1977…77% of [defendants] have been executed for killing white 30

victims, although African-Americans make up about half of all homicide victims”. White defendants are also twice as likely to have the possibility of the death penalty removed during plea 31

bargaining that defendants of color. Certain areas of the United States dole out the death penalty more often than others, making it arbitrarily enforced based on the place the crime and trial happen.

Geographic arbitrariness also comes into play considering how 82% of all executions have occurred 32

in the South. Every prosecutor decides for themselves whether they will seek the death penalty or not in each case. Pressure to be “tough on crime”, local politics, plea bargaining, and just simple chance can all affect whether a prosecutor tries a case for the death penalty. Almost all death row inmates could not afford their own attorney at trial, which leaves them with a significant disadvantage, because court-appointed attorneys are often over-worked and lack experience in trials 33

involving the death penalty. Many factors that have nothing to do with the heinousness of the crime or the guilt of the defendant are involved in the choice to follow the death penalty and the success of implementing it. It is morally unjustified to allow such arbitrary factors to decide between the life and death of a person.

In addition to being unconstitutional because off of its violation of no “cruel and unusual punishment”, the death penalty is based on the incorrect assumption that we operate within a justice system with a perfect rightful conviction rate. Because the death penalty is a unique punishment in 30

Amnesty International, “Death Penalty Facts,” May 2012,

http://www.amnestyusa.org/pdfs/DeathPenaltyFactsMay2012.pdf.

31

Ibid.

32

Ibid.

33

Ibid.

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that it cannot be reversible, it must be treated with a special caution, so as to value the sacredness of 34

human life. Since 1973, the death penalty has taken the lives of 1,200 innocent people. It is morally despicable to allow the state to take innocent lives through a process which is already so arbitrarily enforced. Our justice system is not always accurate, and the finality of death as a punishment comes with the assumption that it is. In addition to taking innocent lives, the standing of the mentally ill is not taken into account when issuing the death penalty. During a life sentence, there is at least the possibility of the mentally unwell receiving treatment for their illness. The death penalty does not allow this treatment, and continues to treat the mentally ill as though they have full control of their faculties, holding them to a standard that allows for death as punishment. Dozens of prisoners have 35

been executed despite being mentally unwell. Another way the death penalty is unique is that a prisoner behind bars cannot consent to it. There have been 138 “volunteer” executions since 1976, 36

even though a prisoner cannot consent to death behind bars. This puts the state in the position of doling out assisted-suicide. Some may argue that although the death penalty is arbitrarily enforced, at least it is bringing many people to justice. This ignores that justice must be doled out in fairness, and if only some are receiving the effects of it, it is not truly justice, it is hypocritical conditional punishment, and the conditions it is based on are arbitrary.

I will now address the three strongest arguments in support of the death penalty: its retributive value, its deterrent effect, and the peace it may bring to victim’s families.

Supporters of the death penalty often invoke that it is the ultimate retribution for the most

34

Ibid.

35

Ibid.

36

Ibid.

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heinous of crimes, the taking of a sacred human life. However using death to punish death is not a justified equal punishment, because it is a hypocritical one. The state cannot with one hand condemn death on the grounds of immorality and with the other hand issue it out as punishment.

This action shows that the state does not, in fact, value human life. When the state takes a life, it plays God, a power that it was never given. The idea that the death penalty is an equal force to crimes of murder is also hypocritical in that we do not use equal punishment in that way for crimes of sexual assault, robbery, identity fraud, and others. Prisoners are not raped by the state as a way to be punished for rape. A life sentence is as strong of a punishment for heinous crimes, while not holding the same air of hypocrisy. A life sentence without parole effectively takes away the pleasurable parts of one’s life and protects the rest of society from the dangers of the criminal, while also allowing for rehabilitation.

The death penalty is also argued to be particularly deterrent; however statistics show that the 37

murder rates in non-death penalty states are consistently lower than those in death penalty states.

Separately from the fact that the death sentence is not more deterrent than a life sentence without parole, we must remember that a punishment must include retribution, deterrence, and rehabilitation. Deterrence cannot be the main or strongest factor of the three because the state must value individuals beyond just being tools that may teach lessons to the rest of society. The strongest deterrence method may not be the most effective or moral method overall.

Another point that supporters of the death penalty supply is that the death penalty brings peace to victim’s families. This puts the state in a place of doling out legalized vengeance on behalf

“The Death Penalty and Deterrence,” ​Amnesty International USA​, accessed December 9, 2016,

37

http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence.

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of victims of heinous crimes. The entire purpose of a punishment cannot just be vengeance, or even retribution. Deterrence and rehabilitation must also be a part of the punishment. While some may argue a life sentence may also be vengeful, it may be so while implementing the ideas of rehabilitation and deterrence, making it a well-rounded and justified punishment rather than a punishment that solely relies on retributivism that is easily-turned vengeance. Using the utilitarian approach, one could argue that the added pain of the victim, their family, and the family of the inmate on death row, are a net social loss. A life sentence minimizes the pain involved in the process while also doling out an effective and fair punishment to the criminal.

The cruel and unusual nature of the implementation of the death penalty, along with the rate at which it takes innocent lives makes the death penalty immoral. The death penalty does not value human life, justice, and equality through its disregard of the sacredness of human life through cruel punishment, it’s often disregard of justice, and it’s unequal, arbitrary enforcement. The death penalty is not only immoral, but ineffective in that it does not balance the ideals of retribution, deterrence, or rehabilitation either. It is a hypocritical punishment, arbitrarily and cruelly enforced, and ineffective in its main goals. For these reasons, the death penalty is not morally justified.

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“Who Has the Right to Die?: An Analysis of Physician-Assisted Suicide” Angela Coco ’19

The right to die is a concept based on the belief that a human being is entitled to end his/her own life or to undergo voluntary euthanasia. If one wants to understand the complex issue of who has the right to die, one must first start with the philosopher John Stuart Mill (1806-1873), because it is his principle of personal autonomy38 that forms the moral and legal basis of legal physician-assisted suicide. Mill was one​ of the most influential thinkers in the history of liberalism, contributing widely to social theory, political theory and political economy.​ Mill’s influence is so widespread that it is truly amazing just how much of our modern political morality is influenced by him. Mill was not the first person to champion individual freedom of choice, but the case he makes in “On Liberty,” (1869) his most famous work, is a true diamond of thought. Put most succinctly, he 39

says, “Over himself, over his own body and mind, the individual is sovereign.” Mill’s conception exists as the basis of today’s conception of personal autonomy and is the backbone for the assenting argument in this moral dilemma.

In American courts, possession of the autonomy that Mill mentions has become synonymous with the word dignity and, as we will come to learn in this debate, words, terms themselves, are extremely important. Words frame the way we think about the question of physician-assisted suicide. In the beginning, physician-assisted suicide was called euthanasia. In 1938, Dr. Charles Francis Potter, a Unitarian priest and humanist, founded ​The Euthanasia Society of America, the first group to seriously propose legislation that would legalize mercy death.40 At least, “mercy

Except in cases where opposes harm to others Mill, John Stuart. ​On Liberty​. 1869. Library of Economics and Liberty. Section I. 10.

40 “Assisted Dying and the USA | The World Federation of Right to Die Societies,” accessed April 6, 2017, 38 39

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41

death” is what the ​New York Times​ called it. ​The Euthanasia Society ​did not like the terms death and killing, preferring, instead, “merciful release.” Of course, for much of the public, the word euthanasia was already a bit too close to eugenics, a term that the Nazis were going to make disgustingly unique in the next few years. With this in mind, ​The Euthanasia Society​ was also not doing much to distinguish itself from the (Nazi-esq) political, genocidal hate it was beginning to become associated with. In the words of its president, Dr. Foster Kennedy, euthanasia was for “born defectives who are doomed to remain defective.”42 In May 1941, Kennedy addressed the American Psychiatric Association, saying, “We have too many feebleminded people among us.”43 Additionally, he advocated for the formation of a medical board that was legally authorized to “relieve the 44

defective . . . of the agony of living.” If that terrifies you, it should.

For those who saw a genuine moral imperative to help terminal sufferers end their lives on their terms, it was an uphill battle. That battle, too, was waged in words. In 1976, ​The Euthanasia Society of America ​changed their name to ​The Society for the Right to Die​. In 1992, they changed it again to Choice in Dying​. In 1993, another group called forum called ​Compassion in Dying​. In 2002, the former Hemlock Society ​changed its name to ​End of Life Choices​. Finally, these societies merged in 2003 to form Compassion and Choices​.45 One can see during the process of decades, a careful reframing of the debate as one about choice and personal autonomy.

http://worldrtd.net/assisted-dying-and-usa.

41 “‘Mercy’ Death Law Proposed in State: Euthanasia Society Drafts Bill to Legalize Painless Killing of Incurables.” ​New York Times​, January 27, 1939.

42 ​Christianson, Scott. ​The Last Gasp: The Rise and Fall of the American Gas Chamber. ​(University of California Press, 2010), 136.

43 ​Ibid.

44 Ibid.

45 “History of Suicide Laws and Developments,” ​American Life League​, accessed April 6, 2017, http://www.all.org/learn/euthanasia/historic-review​.

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The first victories came in the form of advanced care directives or living wills. The court decisions were loaded with the language of autonomy and dignity to justify pulling the plug in the case of brain death. When the first physician-assisted death laws were passed in 1994, dignity was front and center. In fact, such laws are often called “Death with Dignity laws.”46 Today, five states 47

effectively allow physician-assisted death, Oregon, Washington, Montana, California, and Vermont.

In each, the medication can only be prescribed when certain requirements are met. In Oregon, for 48

example, one has to(, among other requirements, ) be terminally ill (a fatal diagnosis) with a life 49

expectancy of less than six months. Steve Mason, a 65-year-old lung cancer patient in Ashland, OR, said while testifying before the California legislature in support of the Compassionate Choices Act, “The day that I learned that I was terminally ill, that there was nothing that medicine could do to ameliorate even my symptoms, I decided that I wanted to live as long as I could, as best I was 50

able, and I wanted to die with the dignity with which I had lived.”

The Oscar sweeping movie "Million Dollar Baby" (2004) also helped push these laws along in their sympathetic portrayal of someone seeking to end her own life. In "Million Dollar Baby," a boxing trainer (Clint Eastwood) agrees to help a quadriplegic female boxer (Hilary Swank) end her life by administering a lethal injection. Some religious groups have denounced the sympathetic portrayal of the boxer's death in the movie, which they say actually depicts euthanasia. Disability

“Death with Dignity Acts,” ​Death With Dignity​, accessed April 6, 2017, https://www.deathwithdignity.org/learn/death-with-dignity-acts/​.

47 ​Richardson, Valerie. "California Becomes Fifth State to Allow Physician-assisted Suicide." The Washington Times, 5 Oct. 2015. Web. 23 Jan. 2017.

48 One must also be 18 years of age or older, a permanent resident of Oregon, and be capable of making and communicating health care decisions for him/herself 49 http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pag es/ors.aspx 50 ​Steve Mason testifying before the California legislature in support of the Compassionate Choices Act. <​https://www.youtube.com/watch?v=bI7s_Xv79o8​.> 46

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advocates are also concerned that the Eastwood movie stigmatizes the disabled and sends a harmful message to those struggling with new disabilities or chronic conditions. Research shows that people with recent disabilities are initially despondent and may consider suicide, but often later go on to find happiness with their lives.51 Physician-assisted death is an extraordinary issue, as its legal victories have been carved carefully from a complex and dangerous moral backdrop. In a country where depression rates are as 52

high as ours, it is not without risk to sanction any form of suicide. Death with dignity laws limit themselves to terminally ill patients exclusively because it is the only instance in which we can recognize a rational desire to end one’s own life. In all other cases, suicide is a permanent solution to a temporary problem. Of course, opponents of physician-assisted death do not see a moral right in any instance of suicide. A lot of those opponents fall on the conservative or religious side of the spectrum, but there is also a split among progressives, particularly on the part of disability rights activists. When those seeking aid list the reasons for their choice, the inability to live without help, and being a burden on their loved ones are among the things most often mentioned.. Activists point out, however, that these reasons and conditions, often referred to as indignities, are among those that disabled people live with for their entire lives. Activists go on to say that physician-assisted death laws can paint these kinds of lives as undignified, creating a larger culture that devalues the disabled.

When an abstract concept like dignity, a concept that has no fixed meaning in bioethics, is invested with so much weight, we see minute, hair-splitting arguments from both sides that span

Costello, Daniel. "Assisted Suicide at Center Stage Once Again." ​Los Angeles Times​. Los Angeles Times, 07 Mar. 2005. Web. 02 Apr. 2017.

52 15.7 million Americans had a major depressive episode in 2013, Source: NIMH 51

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broader moral values. 81% of people who seek lethal medication do so because they worry about a 53

“loss of dignity.” Yet, whether dignity is a property that can be lost is still a matter of philosophical debate.

Physician-assisted death is something that I support, but not without the hesitation that is demanded by the blurred boundaries of a moral question like this one. The objections posed by conservatives, disability rights activists, and others must be taken into account. Objections do not negate its need, but they do warn us that discussion across the table is necessary if we are to draft laws as subtle as the issue is. Mine is the morality of John Stuart Mill in 2017 and only the latest moment in our effort to understand the intricacies of individual liberty. In the words of Supreme Court Justice Anthony Kennedy, “At the heart of liberty, is the right to define one’s own concept of 54

existence, of meaning, of the universe, and of the mystery of human life,” ​and, perhaps most importantly, death.

FURTHER READING

http://www.jstor.org/stable/41417941

http://jme.bmj.com/content/31/4/235.f...

http://www.patientsrightscouncil.org/...

http://www.nimh.nih.gov/health/statis...

http://time.com/3551560/brittany-mayn...

Oregon Death Certificates Supreme Court Justice Anthony Kennedy Opinion, Planned Parenthood v. Casey, 1992

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