Saturday, October 29, 2011
JURIST Guest Columnist Jordan Toone, University of Utah S.J. Quinney College of Law Class of 2012, has spent over two years working and studying in the Middle East, including six months as an embedded civilian social scientist with the First Armored Division in Baghdad, Iraq. He writes about some of the unintended consequences Muammar Gaddafi's death may have on the Arab Spring and US foreign policy in the Middle East...
Yet, as with most recent socio-political developments in the Middle East, the effects of Gaddafi's death are not as black and white as many observers are likely inclined to conclude, and, for several reasons, it may ultimately work to stifle the Arab Spring and further complicate US efforts to promote stability and peace in the region.
To begin with, Western intervention introduced a foreign dimension into what was otherwise an Arab-only, grassroots demonstration of popular will an unprecedented development in modern Libyan history. Much has been written surrounding the controversial decision by the US and NATO to intervene militarily in Libya. To be sure, Gaddafi may still be in power had Western powers refrained from intervening militarily; and, by the same token, the argument can be made that the threat of Western involvement military or otherwise has facilitated and will continue to facilitate other revolutions in the region. Yet, even if it is accepted that Western intervention was necessary to depose Gaddafi, such intervention can be seen as truncating, or at least corrupting, a manifestation of the very thing Western intervention was meant to protect namely, self-determination via popular will leading to a representative government. No doubt such trade-offs were contemplated in Brussels, Paris and Washington, DC leading up to the decision to intervene in Libya; yet, for better or worse, the upshot of Western intervention in Libya is that the Arab Spring is no longer totally Arab.
While time will tell whether the introduction of foreign elements into Libya's national liberation process will impact Libya's constitutional, political and socioeconomic development, one thing is certain; the effects of Western intervention in Libya and the resulting death of Gaddafi will be felt across the region. Most scholars writing on Western intervention and Gaddafi's death have warned of the dangerous precedent that Gaddafi's death facilitated, if not caused, by US and French military intervention will set in an ever volatile region. While no doubt a dangerous implication, this argument misjudges the reality on the ground, which is that not only is it highly unlikely that the US public would be able to stomach another intervention, but the likelihood that Russia and China, as permanent members of the UN Security Council, would consent to such intervention is next to impossible, as they have made clear in the UN Security Council negotiations surrounding possible intervention in Syria. The danger arising from Gaddafi's death is that given the global controversy surrounding Western intervention in Libya and Western powers' role in the death of Gaddafi, additional intervention is in fact less likely. This thereby emboldens remaining dictators in their quest to hang on to power. Iran and Syria, for example, know that Gaddafi's death and the circumstances surrounding it simply add to an already long list of barriers that work to significantly diminish the likelihood of further Western intervention in the Middle East, giving both countries additional leverage in their confrontations with the international community.
The more proximate danger associated with military intervention in Libya and the resulting death of Gaddafi is that it fosters the false impression among Arab protesters in Bahrain, Syria, Yemen and elsewhere that their efforts may always be supplemented by Western force. Such an expectation is understandable. After all, if the US is willing to intervene in Libya, a country that had actively sought to improve its relations with the West in the previous two decades, then why would the US not also intervene in Syria, home to an anti-Israel, pro-Iran, Arab strongman intent on developing nuclear weapons? For American observers, the answer is complicated, but nonetheless legitimate and understandable: intervention would be difficult to obtain due to lack of international support; intervention in Syria would implicate far more dangerous scenarios, possibly including Israel and Iran; the opposition in Syria is not as organized or well-equipped militarily; and intervention in Syria could have dangerous spill-over effects in Iraq. Nonetheless, such answers are unsatisfactory to the Arab street, and add to the long list of "double standard" allegations already hampering US efforts in the region. In this sense, US intervention and Gaddafi's death may actually work to diminish the influence of the US on the Arab Spring.
Whether or not further Western intervention in the region is likely, Gaddafi's death will also work to embolden remaining dictators in the Middle East and elsewhere in their quest to hold onto power. In the minds of regional dictators, if Gaddafi the "mad dog of the Middle East" who, since the Lockerbie bombing and the Reagan administration's hardline stance on Libya, had transformed himself into the poster child of carrot-and-stick diplomacy could be taken out, then what would prevent the US from targeting less cooperative regimes? No doubt the images and videos of a bloodied Gaddafi harassed and abused by Libyan rebels that were broadcast around the world struck a chord with the region's dictators. This fact is especially troubling in regards to dictators with nuclear aspirations or capabilities, including, presumably, the theocratic regime in Iran and the Alawi regime in Syria. Gaddafi's death has reinforced these dictators' beliefs that nuclear technology is a deterrent, especially in light of how poorly Gaddafi fared only a few years after succumbing to Western pressure to abandon his nuclear program. Alternatively, dictators or theocrats such as Assad or Khamenei who, intent on holding onto power, will increasingly look to China and Russia to fortify strategic relations. Suffice it to say, Gaddafi's death has added several daunting sand traps to the stifling par five being played by US policymakers trying to navigate the always-difficult Middle East course.
Following Western intervention in Libya, the regimes in Damascus and Tehran are also eager to criticize Western intervention in Libya as a violation of Libya's sovereignty, as Iranian President Mahmoud Ahmadinejad did recently in an interview with CNN. This is worth noting only because prior to Western intervention in Libya, many of the Arab World's dictators seemed much more inclined to respond to their citizens' demands and, in fact, encouraged other Middle Eastern leaders to do likewise. During the height of the Tahrir demonstrations in Cairo, for example, President Ahmadinejad, presumably speaking on behalf of the Iranian regime, urged Mubarak to respect the demands of his citizens. King Abdullah recently instituted notable steps to further women's rights in Saudi Arabia, in addition to announcing $37 billion in benefits to low and middle income Saudis. President Assad has also made conciliatory gestures to his people during the Syrian demonstrations of the past few months. Today, however, following Western involvement in Gaddafi's death, the rhetoric coming out of Tehran, Damascus and, to a lesser extent Riyadh, has returned to its familiar tune with its focus on the misdoings of the West rather than the plethora of problems facing them at home. The tragic upshot of all of this is that public discourse, at least in the Arab world, has turned from the remarkable and ongoing achievements of the Arab Spring to Western interventionism, thereby working to truncate, or at least distract from, the revolutions currently taking place in Yemen, Syria and elsewhere.
Another unsavory consequence of Gaddafi's death is that it comes at a time when the US is quietly navigating a labyrinth of weighty foreign policy decisions, all of which seem, in one way or another, to involve Iran. Placing Gaddafi's death in the context of these increasingly complex regional developments highlights several difficulties facing US policy in the region.
First, Gaddafi's death coincides with international attempts led by the US to pressure Iran into abandoning its quest for weapon-grade nuclear technology. The UN-approved, US-NATO intervention in Libya does nothing to strengthen Iran's relationship with NATO, which is already rocky due to NATO's missile shield plan in Turkey. Nor does Western intervention in Libya and the resulting death of Gaddafi work to foster trust between Iran and the International Atomic Energy Agency (IAEA). If anything, Gaddafi's death encourages Iran to further limit its cooperation with the international community. Western intervention in Libya and the resulting death of Gaddafi, also coincide with Ayatollah Khamenei's recent announcement that the position of the president in Iran is indispensable. While no doubt a result of ongoing hostility between President Ahmadinejad, the Parliament and the Supreme Leader, Khamenei's announcement in the days before Gaddafi's death raises the question of whether he is simply attempting to remove what would otherwise be one of the few legitimate targets for public dissatisfaction in Iran in the manner witnessed in Libya, Egypt and Tunisia. If this were true, Gaddafi's death would only fortify Khamenei's thinking.
With regard to regional politics, Gaddafi's death comes at a time when Iranian influence in the Middle East has reached unprecedented levels. Iranian influence has never been stronger, not only in the so-called Shi'a Crescent (Lebanon, Syria, Iraq, Iran and Bahrain), but, increasingly, in traditionally Sunni territory, including Gaza, Qatar and Oman. Former foes of Iran have either been toppled or are facing domestic unrest. Unlike years past, the governments of Egypt, Tunisia and Yemen are "in play" for Iran. Iran's principle antagonist in its quest for regional supremacy is, of course, Saudi Arabia. Although both countries have experienced recent episodes of domestic unrest, both find themselves relatively unscathed by the Arab Spring and eager to exert their influence on the region in what is essentially a "proxy war" between the two adversaries. As the US has failed again to initiate any meaningful developments in the Palestinian-Israeli conflict, and as new or recently established governments feel less inclined to affiliate with Washington, Iran eagerly attempts to fill the void. Nowhere is this more evident than in Iraq, where the Iranian-backed factions of the Iraqi government continue to exert remarkable influence, evidenced most recently by the Government of Iraq's refusal to extend the timeframe for the withdrawal of US troops from the country.
So how does the Arab Spring and, specifically, Gaddafi's death play into all of this? President Obama recently stated that the withdrawal of troops from Iraq and killing of Gaddafi signify a resurgence of American leadership. At least for many Arabs, President Obama is mistaken. If anything, Gaddafi's death reinforces long-held inclinations among Middle Eastern leaders that Washington cannot be trusted. The old regimes have become wary of Washington, while the new governments want to start on their own two feet, free from foreign intervention. For leaders in the Middle East, the death of Gaddafi stands as a cogent reminder that cooperation with the West does not guarantee anything. Such a reality opens the door to increased Iranian influence in the region, and does little to diffuse the increasing tension between Saudi Arabia and Iran. The result may well be that the Arab Spring will take back seat to the Saudi-Iranian dispute with Iraq much to the fear of the US being the principal pawn.
Overall, besides being a historic achievement in the history of Libya and, indeed, the Arab World, Gaddafi's death introduces several challenges that may ultimately work to undermine the development of the Arab Spring and US policy in the region. The Obama administration can mitigate some of these challenges by continuing to support economically, politically, and diplomatically, as opposed to using force the Arab Spring, while concomitantly seeking to reevaluate aspects of US policy in the Middle East that, unfortunately, overshadow the otherwise positive, commendable and meaningful contributions made by America in the Middle East and throughout the world.
Jordan Toone began his studies of the Middle East as an undergraduate at Brigham Young University. He completed the Arabic program at the American University of Cairo Center for Arabic Studies Abroad, and went on to receive a master's degree in Modern Middle Eastern Studies at the University of Oxford.
Suggested citation: Jordan Toone, Unintended Consequences: Gaddafi's Death and the Arab Spring, JURIST - Dateline, Oct. 29, 2011, http://jurist.org/dateline/2011/10/jordan-toone-gaddafi-death.php.
Monday, October 24, 2011
Maria Fechter, St. John's University School of Law Class of 2012, is the author of the final article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need to provide regulations that prevent bill shock...
Kerfye Pierre is not alone in her experience with "bill shock." A recent survey done by the Federal Communications Commission (FCC) indicated that 30 million Americans or one in six cellphone users have experienced bill shock, and 88 percent of those users were not contacted by their cell phone companies before incurring such charges. The charges range from a dollar to thousands of dollars above a customer's normal monthly bill. 23 percent of the customers surveyed reported charges that exceeded their normal monthly bill by more than $100.
To address this problem, the FCC proposed a regulation that will "empower consumers to avoid bill shock." Under the regulation, cell phone companies are required to alert customers when they are approaching or begin incurring overage or roaming charges. Additionally, under the FCC's proposed regulation companies must provide clear disclosure of any tools offered to track usage. The question remains: are these protections really enough?
One major flaw in the FCC's proposed regulation is that it does not require cell phone companies to allow customers to cap their usage. Such capping requirements would mean that customers could select a specific overage amount, for example $50, at which point their wireless service would be disabled. The purpose of this requirement would be to provide a secondary protection for consumers in case they exceeded their monthly plan's allowances. Thus, customers would be alerted if they are approaching, or begin incurring, overage or roaming charges, as the FCC's proposed regulation currently proscribes. Then they could also choose to set a specific capping amount at which their service would be disabled altogether. In fact, the FCC has a model to look to for these capping requirements, the EU's 2007 regulation [PDF] to address the bill shock problem in Europe. Given the capping requirement's success in EU regulation, this requirement would create a more complete regulation for US wireless customers, and would empower them to proactively avoid the bill shock problem.
The FCC's proposed regulation also fails to address the problem of a consumer's ability to block services that they wish to exclude. The danger of not including such a provision in the proposed regulation can be exemplified by the dynamics of a family wireless plan. Children on family plans have access to costly services through their personal wireless devices, like premium text messages, yet they may not understand the true cost of those services. Premium text messages are text messages provided by third party content providers that subject customers to additional charges beyond their standard messaging charges. For example, consumers may incur premium fees by participating in interactive voting during television shows, purchasing ring tones, or subscribing to daily jokes that are sent to your cell phone. Without enabling parents to limit their children's usage of specific services, wireless companies are exposing parents to the bill shock that may result after their children have already incurred these unexpected fees. Thus, the FCC's bill shock regulation should make the ability to block specific services mandatory, as such a requirement would further the FCC's mission of providing greater transparency and allowing consumers to set personal limits on their cellular usage.
Furthermore, these two additions to the proposed regulation are well within the FCC's authority to institute. In light of the broad discretionary standard set forth by the Supreme Court in Chevron USA Inc. v. Natural Resources Defense Council, Inc., and the great public interest at hand in regulating to protect consumers against bill shock, the FCC certainly has the authority to enact such a regulation under the Communications Act.
All in all, the call for bill shock protection is merely a call for transparency and consumer empowerment. Wireless companies should give their customers adequate information upfront to prevent bill shock from ever occurring. Specifically, consumers should be notified if they are exceeding their usual monthly bill amount, they should be aware of the tools that are available to monitor their usage, and they should have the ability to protect themselves from incurring such charges.
Maria Fechter is an Articles Editor for the Journal of Civil Rights and Economic Development at St. John's University School of Law. She graduated summa cum laude from Binghamton University in 2009.
Suggested citation: Maria Fechter, Regulating Wireless Company Billing Practices to Prevent Bill Shock, JURIST - Dateline, Oct. 24, 2011, http://jurist.org/dateline/2011/08/maria-fechter-preventing-bill-shock.php.
Monday, October 17, 2011
Melanie Lazarus, St. John's University School of Law Class of 2012, is the author of the ninth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need for New York to update the way it defines "parent" for custodial and childcare purposes...
The case involved a woman petitioning for visitation with the child she raised with her lesbian partner, the child's biological mother, from the time he was born until the couple's relationship ended two-and-a-half years later. The Court of Appeals ruled that second-parent adoption, an option that was blocked by the biological parent in this case, represented sufficient protection in situations like this and, as such, there was no reason to explore alternative ways to define "parent" for the purpose of custody and visitation laws in New York. Those that support laws such as the federal Defense of Marriage Act (DOMA), and that have continuously rallied against same-sex marriage and civil unions in New York, spun the court's refusal to expand the definition of parent for the purpose of custody and visitation as a confirmation of "traditional family values." Conversely, some argued that the court's holding that Debra H. had standing to seek visitation with M.R., Janice H.'s biological child conceived during the couple's relationship, because of comity for the couple's Vermont civil union, was a step in the right direction, as it tended towards a more formal recognition of same-sex relationships in New York. Given the recent legalization of same-sex marriage in New York state, the latter interpretation seems to be more in line with the cultural climate of the state.
However, regardless of the recent changes to New York law, this case still provides a valuable opportunity to discuss the person that had the most to lose, the child. However you define your own sexuality, or wherever you fall on the spectrum regarding other peoples' freedom to define their sexuality, the New York court's reaffirmation of the 19-year-old precedent set in Alison D. v. Virginia M., which defined parent very narrowly according to Domestic Relations Law § 70, could have an impact on you. This is not about homosexuality or heterosexuality; it is a chance to have a discussion about defining parenthood in a way that awards the appropriate people their requisite rights, and demands that the correct people fulfill their concurrent obligations. In fact, because the court stated outright that same-sex couples could, and should, take advantage of second parent adoption laws, the decision should not be seen as an intentional barrier to same-sex parenthood specifically. Issues of legal status for a non-biological, non-adoptive same-sex parents, where the biological parent would not consent to adoption, are absolutely no different than the issues that might be confronted by a stepparent that has been unable to adopt his or her stepchildren.
What we should be talking about, for M.R. and every other child like him, is how we want to define parenthood. Currently, only biological and adoptive parents have a right to the care and custody of a child in New York. However, children do not think of parents as "mom" or "dad" because of a birth certificate, adoption certificate or DNA test, and neither should the court.
To varying degrees, other states allow custody or visitation standing to be determined by the child and the possible parents' relationship (de facto/psychological parents) or by a voluntary assumption of parental duties (in loco parentis). These statutes are fraught with their own problems. De facto parent status is very discretionary and leads to inconsistent results. In loco parentis involves a personal choice to take on parental duties where legally none would otherwise exist and, therefore, ceases at the voluntary cessation of the performance of these duties. Additionally, both statuses exist in a limbo where the "second" parent may be considered equal to the biological or adoptive parent for some purposes and less than equal for others.
What New York needs is for lawmakers and judges to remember why the space inside a parent's arms is a place of safety for children. They need to think back to what it was that their parents taught them and did for them that bestowed upon their parents a higher status than everyone else in their lives. They need to think about what they have done for their own children that they would do for no other. They need to sit down and come up with a list of things that make a parent "mommy" or "daddy" in a child's eyes. Then they need to think about things beyond a child's comprehension, such as planning for the child before and during his or her life, and they need to codify all of these things as factors a judge should consider when determining whether someone should have parental status. Too much discretion is always risky, but this is too important and too emotional an issue to be handled in the sterile, cold way it is currently dealt with.
Melanie Lazarus is the Executive Notes and Comments Editor for the Journal of Civil Rights and Economic Development. She interned at New York City's Administration for Children's Services and was a SJU Law Summer Public Interest Fellow in 2010 and 2011. Lazarus is also currently President of the Public Interest Committee.
Suggested citation: Melanie Lazarus, Updating the Way Parent is Defined in New York Law, JURIST - Dateline, Oct. 17, 2011, http://jurist.org/dateline/2011/08/melanie-lazarus-defining-parent.php.
Monday, October 17, 2011
Sara Gronningsater, St. John's University School of Law Class of 2012, is the author of the eighth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the conflict between an employee's right to nondiscrimination and an patient's right to choose their care provider in healthcare facilities...
Although it has been 44 years since the enactment of Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin, some nursing home facilities still allow overt discrimination to occur, such as Plainfield's policy of honoring the racial preferences of its patients. The reality is that nursing homes throughout the country have allowed patients to assert discriminatory preferences at the expense of their employees. However, because care facilities generally settle with plaintiffs that bring Title VII claims, the frequency with which these claims are brought is not publicized.
While it is relatively clear that an employer cannot discriminate on the basis of race under Title VII, the right of a patient to express discriminatory requests under the Federal Nursing Home Reform Act, enacted as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87) is less straightforward. OBRA 87 states that patients have a right to "choose their care provider," and many long-term care facilities interpret this right as being free from limitations and as superior to an employee's right to a non-discriminatory workplace. Due to the conflict, Congress should amend OBRA 87 to include a nondiscrimination provision consistent with Title VII. Since the Seventh Circuit's decision sets precedent only in that circuit and applies only to cases within its jurisdiction, it is possible for other circuits to have contrary holdings on a similar set of facts. As such, amending OBRA 87 to include a nondiscrimination provision would standardize and harmonize the competing laws, creating bright-line principles regarding a patient's right to choose and an employee's right to a non-hostile work environment.
Care facilities rightfully fear what seems to be the gray area between adhering to a patient's preferences and protecting the rights of its employees. There is no contention that the Seventh Circuit wrongly decided Chaney's claim, nonetheless, in addition to amending OBRA 87, more needs to be done to eradicate patient-initiated discrimination in health care facilities. The Seventh Circuit's holding has brought the issue of patient discrimination to the forefront, and the problem should not be ignored. While alleviating the problem will likely entail more than the mere suggestions set forth by the court, its decision does offer a number of suggestions for long-term care facilities attempting to balance patient and employee rights.
With a culturally diverse group of patients under the care of a facility, and with an equally diverse staff, caretakers must understand and be able to effectively communicate with their patients. Numerous factors play a role in effective communication and conflict resolution, but one major factor is cultural competency. Providing cultural competency training and making it mandatory for individuals that work in the nursing field would certainly facilitate the resolution of some of the issues that nursing homes face. However, cultural competency will not solve every conflict, and it is likely that it would not have helped in Brenda Chaney's case. It is very unlikely that Latshaw's discriminatory attitude would change during the duration of her residency in Plainfield's facility, particularly in light of her age and medical condition, and there is very little that a care facility can do to improve cultural competency beyond its walls. Nonetheless, allowing patients in long-term care facilities to assert their racial preferences and allowing employers to honor those preferences is an impediment to establishing the equality that so many have worked to achieve. While improving cultural competency is a start, more needs to be done to reform the law and the way of thinking.
In addition to providing cultural competency training, care facilities should work with patients to reform the behaviors that create a hostile work environment. Behavior contracting is one way to work towards reforming a patient's behavior, as it gives the patient and the facility the opportunity to work together to facilitate a better relationship. The facility would have the opportunity to express the desired behavior it wishes of the patient, for example allowing any nurse, regardless of race or religion, to care for the patient in the most appropriate manner. Moreover, the patient could express what the facility could do to make the patient feel more comfortable, such as educating its care providers about a particular patient's beliefs, cultural preferences and wishes for personal care. Furthermore, at a time when the patient is feeling a loss of autonomy, the contract gives him or her some control.
The issue set forth in Chaney is a reminder that things are not necessarily as society wishes or believes them to be. Decisions like the Seventh Circuit's are an important reminder that more needs to be done both in society and in the law to support equality in the work place. It is important that there is a collaborative effort between the judiciary, the legislature and employers to identify discriminatory actions and deal with them in a consistent manner. Amending OBRA 87 is one way to deal with the confusion surrounding a "patient's rights to choose." This would standardize the law and create a bright-line rule. On the other hand, care facilities that provide cultural competency training to their employees and engage in behavior contracts with hostile patients can work to directly address issues of discrimination that occur within their walls. The sooner overt bigotry is dealt with, the less harm it will have on individual members of society and society as a whole.
Sara Gronningsater is the Editor-in-Chief of the Journal of Civil Rights and Economic Development as well as a member of the Moot Court Honor Society. She has worked at various law firms including Morris Duffy Alonso & Faley and Weitz & Luxenberg, and was the 2011 recipient of the Jerome M. Ginsberg & Brandeis Association Moses M. Weinstein Scholarship.
Suggested citation: Sara Gronningsater, Discriminatory Patient Choice and the Need for Legal Reforms, JURIST - Dateline, Oct. 17, 2011, http://jurist.org/dateline/2011/10/sara-gronningsater-discrimination.php.
Monday, October 10, 2011
Katharine Giudice, St. John's University School of Law Class of 2012, is the author of the seventh article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the failure of the law to provide mechanisms through which cyber-bullies can be prosecuted...
A string of posts hypothesized how the plaintiff had contracted AIDS. One student opined that the plaintiff contracted AIDS through sexual activity with a horse on a cruise to Africa. Another student disagreed with that contention and posted that she contracted AIDS from sharing needles with heroin addicts, and then engaged in sexual activity with a baboon to spread the virus. Another defendant expressed a third view, that the plaintiff contracted AIDS, in addition to other sexually transmitted diseases, from a prostitute dressed as a fireman.
The plaintiff, undoubtedly mortified upon discovering these statements, sought recourse through the court system. The plaintiff brought an action for defamation. While one would think the law would be on the plaintiff's side, and that there is no way the legal system would allow such atrocious comments to be broadcasted without consequences, the claim failed for the simple reason that the posts did not constitute statements of fact. The court held that a reasonable reader would not believe that plaintiff contracted AIDS by having sex with a horse, a baboon or a male prostitute. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. The court, however, made it a point to state that New York law does not provide a cognizable tort action for cyber-bullying.
Victims of cyber-bullying currently lack legal remedies. As noted above, a claim for defamation will not be sustained when statements made do not constitute facts. However, these cruel rumors and opinions, whether based in fact or not, are hurtful and damaging to victims. Likewise, criminal harassment and stalking statutes are often ineffective legal avenues. These laws were intended to fight offline problems and do not lend themselves to the distinct characteristics of online harassment and bullying. Prosecutors are heavily burdened with the task of trying to fit unique cyber-realm situations into the unyielding mold of existing laws. This is best illustrated by the acquittal of Lori Drew, the woman who drove 13 year-old Megan Meier to suicide. Drew pretended to be a teenage boy and tormented Megan via MySpace, saying that the world would be a better place without her.
Paradoxically, a bully is more likely to receive legal redress by claiming a First Amendment violation against a school for any disciplinary action in connection with cyber-bullying than a victim of bullying is to sustain a tort action. School officials are in the optimal position to police cyber-bullying. Bullies and victims are in close proximity within school house gates. Moreover, teachers and guidance counselors are adept at recognizing problematic behavior and bullying among students. However, as school officials respond to student bullying and employ disciplinary measures, they open themselves up to lawsuits alleging that they have violated the students' First Amendment rights.
The seminal standard for regulating student speech was announced 30 years ago by the Supreme Court in Tinker v. Des Moines Independent Community School District. The Court held that a school cannot discipline a student unless his or her speech materially and substantially interferes with the school's operations. The dilemma with cyber-speech and online-bullying is that much of the speech originates off campus, from a home computer, but is directed at a fellow classmate and the effects are undeniably felt within the school. School administrators are hesitant to employ disciplinary measures against a student when the offensive language occurs outside of school. Likewise, courts struggle to apply the traditional student speech framework to the unconventional situation of cyber-bullying. Lower court decisions are wildly inconsistent. All claim to apply the Tinker standard but with varying results. Not much can be gleaned from these lower court opinions, except that cyber-bullying has become a pandemic among teens and adolescents. The jurisprudence in this area of law is less than satisfying, to say the least. The anomalous result of cyber-bullies' First Amendment rights being vindicated and victims of bullying having their actions dismissed occurs all too often.
It is well settled that students do not shed their constitutional rights at the schoolhouse gates. However, the trade-off is that many kids surrender all protections of the law and are subjected to incessant harassment at the hands of untouchable cyber-bullies. This repugnant speech is not within the purview of uninhibited, robust, wide-open debate that the First Amendment is aimed at protecting. It is time that the law moves into the twenty-first century and empowers schools to curb the fatal consequences of cyber-bullying.
Katharine Guidice is a staffer on the Journal of Civil Rights and Economic Development at St. John's University School of Law. She received her undergraduate degree summa cum laude from St. John's University in May 2009.
Suggested citation: Katharine Guidice, Creating Pathways to Prosecute Cyber-Bullies, JURIST - Dateline, Oct. 10, 2011, http://jurist.org/dateline/2011/08/katharine-giudice-cyber-bullies.php.
Monday, October 03, 2011
Andrew Cali-Vasquez, St. John's University School of Law Class of 2012, is the author of the sixth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. Andrew writes on credit default swap position limits under the recent financial reform legislation...
Title VII of Dodd-Frank gives regulators the authority to impose "position limits" on a wide variety of over-the-counter derivatives, including credit default swaps (CDS). A position limit restricts the size or number of contracts that a single trader may own of a particular derivative. Position limits were first implemented in the agricultural commodities markets, successfully discouraging excess speculation and price manipulation.
A CDS is a contract that protects the CDS-buyer against the risk of default of a bond or loan. When an entity borrows money, the lender is exposed to the borrower's risk of default, or credit risk. A CDS allows the lender to pass the borrower's credit risk to the CDS-seller, in exchange for which the lender, or CDS-buyer, makes periodic payments to the CDS-seller. In the event of default, the CDS-seller makes a single payment to the CDS-buyer, usually for the face value of the loan or bonds. Through this process, the CDS-buyer protects itself against the risk of the borrower defaulting on its repayment obligations.
CDS liquidity is beneficial to debt market liquidity. Because CDS provide protection against the risk of default, lenders are more willing to lend knowing that they can readily and affordably obtain CDS protection. The secondary debt market, in which bonds and loans are resold to investors, also benefits from the protection afforded by CDS. This in turn increases secondary market liquidity, as participants can readily purchase protection against default and thus, are more willing to purchase debt. The combination of increased liquidity in the primary and secondary markets makes financing more readily available and more affordable. Businesses, particularly small and new businesses with less certain cash flows, are sensitive to lending liquidity constraints. In the event of poor lending liquidity, what might be a matter of borrowing on less favorable terms or financial belt-tightening for a larger, more well-established company could be financial ruin for a smaller or less established company that is more vulnerable to credit constraints.
Earlier this year, the Commodity Futures Trading Commission proposed position limits for commodity derivatives referencing 28 different commodities. One of the frequently raised concerns is that too severely limiting the size of positions that traders could take would decrease liquidity.
In the CDS markets, position limits must balance liquidity preservation with the ability of CDS buyers and sellers to meet their contractual obligations. Position limits should take into account the net CDS position for a particular "reference obligation," the bond or loan referenced by the CDS, or sector of similar reference obligations, which would share similar credit risk. Ideally they would do this by netting together the "notionals," or face values, of like CDS held by a single trader. Position limits should also take into account non-CDS hedges, such as the bond or loan actually referenced by the CDS, or a bond or loan that has similar credit risk to the reference obligation, such as a company in the same industry. Companies within a particular industry often share similar credit risks; for example, agricultural companies in one region that produce identical crops would be equally sensitive to poor weather conditions in that region. Thus, a CDS referencing a loan to one such company would have similar credit risk to a loan, or CDS referencing a loan, to another such company. A trader holding that CDS and an offsetting loan, or offsetting CDS referencing a loan, to a related agricultural company as a hedge would have less credit risk than a trader holding a single CDS with no related offsetting position. Including the CDS and its related offset/hedge is a more accurate calculation of the trader's position than his CDS position alone, which incentivizes well-hedged, risk-averse trading strategies and reduces the restrictive effect of CDS position limits on lending liquidity, which would be far more severe were the position calculated based on the CDS alone.
Andrew Cali-Vasquez is a senior staff member on the St. John's Journal of Civil Rights and Economic Development. He received his undergraduate degree in Asian and Middle Eastern Studies from the University of Pennsylvania in 2005. Before entering law school, Cali-Vasquez worked in several operational and financial control roles, including the interest rate derivative businesses at The Bank of New York Mellon and Barclays Capital. He has also worked with the Department of Enforcement at the Financial Industry Regulatory Authority. The views expressed do not necessarily reflect the views of any of these industries or organizations.
Suggested citation: Andrew Cali-Vasquez, Financial Reform Position Limits Do More Harm Than Good, JURIST - Dateline, Oct. 3, 2011, http://jurist.org/dateline/2011/10/andrew-cali-vasquez-dodd-frank.php.
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