Saturday, December 31, 2011
JURIST Guest Columnist Maira Sheikh, Notre Dame Law School Class of 2012, is a Research Associate at the Research Society of International Law in Lahore, Pakistan. She discusses Pakistan's new women's rights laws and argues that even if these laws are not properly enforced, they are still valuable for the social progress they indicate as well as the empowerment they instill...
The Prevention of Anti-Women Practices Bill adds a new chapter to the Pakistani Penal Code listing three particular offenses against women. Chapter XXA makes it unlawful to deprive a woman of her rightful inheritance through "deceitful or illegal means." This is punishable by imprisonment for five to 10 years with a possible additional fine of up to one million rupees. This chapter makes it unlawful to give or compel a woman into marriage for the purposes of settling a civil or criminal dispute. This is punishable by imprisonment for three to seven years along with a fine of five hundred thousand rupees. Finally, this chapter makes it unlawful to "compel or arrange or facilitate" a woman's marriage with the Qur'an. This act is punishable by imprisonment for three to seven years as well as a fine of five hundred thousand rupees. The bill also amends the Pakistani Code of Criminal Procedure by making it unlawful for a provincial government to "suspend, remit, or commute" the sentences of those convicted of rape.
The Criminal Law Bill makes bodily violence through the use of corrosive or acidic substances unlawful. It does this by amending Pakistan Penal Code Section 332's definition of "hurt" to include disfigurement and defacing, so that it now reads, "[w]hoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables, disfigures, defaces or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt." Disfigurement is defined under this bill as the "disfigurement of face or disfigurement or dismemberment of any organ or any part of the organ of the human body which impairs or injures or corrodes or deforms the symmetry or appearance of a person." This bill makes it unlawful to cause or attempt to cause hurt through any substance that is corrosive or harmful to the human body upon internal or external contact. The definition of "corrosive substances" is fairly broad and includes anything which may "destroy, cause hurt, deface or dismember any organ of the human body and includes every kind of acid, poison, explosive or explosive substance, heating substance, noxious thing, arsenic or any other chemical which has a corroding effect and which is deleterious to the human body." Any act that violates this amendment is punishable by imprisonment of 14 years to life and a minimum fine of one million rupees. This bill is not gender specific; both men and women may be victims of bodily violence through corrosive substances. However, women are the primary beneficiaries of this bill as they are more frequently victims of this type of violence.
The passage of these bills is hailed as a victory by female legislators and rights groups that have long pushed for increased legal rights and remedies for women. The victory, however, is only a small one. The proponents of these bills readily admit that laws decrease in value without proper enforcement and in Pakistan enforcement is a problem. Protecting women against the practices made unlawful by this legislation will be difficult and irregular, especially in regions where these practices are more commonplace. It may eventually be the case that relatively few convictions are sustained after appeal under these new laws. This wave of pro-women legislation is all fairly new and it is premature to evaluate its numerical impact on Pakistan's civil and criminal dockets. This does not mean that the value of these bills cannot be assessed independently of how many cases are adjudicated under them.
The Prevention of Anti-Women Practices Bill and the Criminal Law Bill do not just pay lip-service to the increasing demand for women's rights in Pakistan. Regardless of whether or not these laws can ultimately be enforced, their existence alone is indicative of positive social progress. Such steps should not be undervalued, especially since only little more than 30 years ago the draconian Hudood Ordinances, laws that left women making accusations of rape vulnerable to prosecution as adulterers, were passed. The Senate's unanimous passage of both the Anti-Women Practices Bill and the Criminal Law Bill and the quick approval thereafter by Pakistan's president indicate strong support for the women's rights movement by the current national government. This means that the national government is no longer satisfied with allowing the treatment of women to be guided mainly by local practices or outdated interpretations of religious custom. This kind of support for women's rights has yet to be demonstrated consistently at the local government level, and the specific provision prohibiting alteration of a rape conviction by provincial governments speaks to this shortfall. At the very least, the passage of these bills is an attempt to standardize the belief that women deserve to be treated in a manner that preserves their dignity and their rights as human beings. For enforcement to eventually occur in a consistent and meaningful manner, people's beliefs need to evolve to a point where these newly prohibited practices are genuinely considered intolerable by the vast majority of Pakistanis. It is only then that women will no longer be at the mercy of their fate, whether born into homes where they are valued as property, as princesses or as anything in between.
These women's rights bills are also valuable for the empowerment and self-worth they encourage within Pakistani females. The eventual impact of these laws on society will be insignificant without the development of female empowerment through basic education and education on rights granted to females as citizens of Pakistan, rights that ultimately supersede regional, cultural or religious practices. Women, especially those that live in communities that most offend women's rights, must teach one another to stand up for themselves and to seek legal remedies when their rights have been violated. The knowledge that there are laws that prohibit practices such as forced marriage for the settlement of disputes or marriage to the Qur'an give women the power and the platform to say "no." For now, that "no" may go unheard or it may be met with an unsavory response, but empowerment means that "no" will become louder and more frequent as women discover that these practices are not the norm and are, in fact, illegal and unacceptable.
Pakistan's social climate is slowly improving, as outdated and undignified practices that are harmful to women are being suppressed. Only time will tell if these new laws are truly successful in providing women with enforceable legal rights and in curbing bodily violence through corrosive substances. For the time being, the measurable value of the Prevention of Anti-Women Practices Bill and the Criminal Law Bill is in the social progress they indicate and the empowerment they bestow.
Maira Sheikh has conducted research on international law topics and on security and development issues in Lahore, Pakistan. She is also a Staff Editor of Notre Dame Law School's Journal of Legislation.
Suggested citation: Maira Sheikh, Progress in Pakistan: Criminalizing Practices Harmful to Women, JURIST - Dateline, Dec. 31, 2011, http://jurist.org/dateline/2011/12/maira-sheikh-pakistan-women.php.
Thursday, December 29, 2011
JURIST Guest Columnist Nathan Crombie, Columbia Law School Class of 2012, is currently researching the influence of international human rights law on same-sex marriage. Here he argues that international law should influence the Ninth Circuit's ruling on same-sex marriage...
The principal obligations relevant to the issue of same-sex marriage are contained in the International Covenant on Civil and Political Rights (ICCPR). The US signed the ICCPR in 1977 and ratified it in 1992, subject to a number of reservations, understandings and declarations. Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection under it. In this respect, state parties must guarantee equal and effective protection against discrimination on a number of grounds, including sex, race and "other status."
The Human Rights Committee is a body of independent experts charged with overseeing the implementation of the ICCPR by state parties, and it carries out this task in two ways. First, it periodically issues "general comments" that interpret the rights set out in the ICCPR. Second, it sits in a quasi-judicial capacity and makes non-binding recommendations in response to communications by nationals against those state parties that have acceded to the First Optional Protocol to the ICCPR.
The committee has provided significant guidance on how to interpret Article 26. In General Comment 18, the committee observed that Article 26 is a stand-alone right that prohibits discrimination in "any field" regulated and protected by public authorities. If a state party discriminated in a regulated field, it would need to advance "reasonable and objective" criteria for doing so. In the Toonen v. Australia communication of 1994, the committee held that prohibited discrimination on the grounds of "sex" in Article 26 included discrimination on the basis of sexual orientation. On its face, these two interpretations suggest that in regulating the institution of marriage the US would have to do so on a non-discriminatory basis that included same-sex couples.
However, Article 23(2) provides that "[t]he right of men and women of marriageable age to marry and to found a family shall be recognized." Taking into account the historical context of the ICCPR and its official negotiation records, this right is generally accepted as being limited in scope to opposite-sex marriage. This was confirmed in the Joslin v. New Zealand [PDF] communication of 2002. There, the committee dismissed arguments that Article 26 required New Zealand to provide same-sex marriage. It held that Article 26 must be read in light of the guarantee of heterosexual marriage in Article 23(2). The committee neglected to conduct a "reasonable and objective" inquiry into the denial of same-sex marriage because overwhelming state practice exhibited a "consistent and uniform" understanding that marriage was innately heterosexual. At this time, the Netherlands was the only country to have enacted same-sex marriage.
Since 2002, state practice in the area of same-sex marriage has changed significantly. There are currently 10 countries in the world that allow same-sex marriage, along with six states and the District of Columbia in the US itself. Proponents of same-sex marriage are making substantial gains in countries such as Australia and the UK, suggesting that the number of jurisdictions instituting marriage equality will continue to increase over time. With this increased recognition, the committee would have less room to circumvent a reasonable and objective inquiry on the basis of state practice if the issue of same-sex marriage came before it today. Recent communications holding that the denial of survivor pensions to those who had been in same-sex relationships violated Article 26 furthermore suggest that state parties would have difficulty persuading the committee that there were "reasonable and objective" bases for continuing to deny recognition of same-sex marriage.
Although the US is not a party to the First Optional Protocol to the ICCPR, it would be inadvisable for the Ninth Circuit to ignore the committee's "jurisprudential trend" towards finding that denial of same-sex marriage violates the equality guarantee in Article 26. This is because the "understandings" the US filed upon ratifying the ICCPR indicated that it would provide at least an equivalent, if not greater, guarantee of equality than provided for under the ICCPR. The first understanding asserted that the US Constitution provides "extensive protections against discrimination," and provided that distinctions drawn on a ground that invoked Article 26 would be permitted when they were, at minimum, related to a legitimate government objective. This is a clear reference to Equal Protection Clause jurisprudence under the Fourteenth Amendment. Given that the committee's "reasonable and objective criteria" inquiry raises substantially similar issues as an Equal Protection analysis, the Ninth Circuit should give weight to the committee's rejection of these justifications when it evaluates the state interests advanced in favor of upholding Proposition 8. Doing so will ensure harmonization between the levels of equal protection recognized by the US under the Equal Protection Clause, and by the committee under Article 26. The court will also ensure it fulfills its duty under the compliance with the fifth understanding, which provides that the ICCPR shall be implemented to the extent the federal government exercises judicial jurisdiction over issues raised under it.
Abandoning the traditionally myopic attitude towards international law in the context of same-sex marriage cases will also bring federal courts in line with trends in overseas jurisdictions. Courts in New Zealand and South Africa have specifically invoked Article 26 of the ICCPR when ruling on the constitutionality of same-sex marriage. In New Zealand, two Court of Appeal justices in the Quilter v. Attorney-General [PDF] decision, the precursor to the Joslin communication before the committee, discussed the state's obligation to comply with Article 26 of the ICCPR. Justice Keith concluded that Article 23(2), reflecting traditional heterosexual marriage, was the governing position when set against Article 26. In contrast, Justice Thomas cited the committee's test for compliance with Article 26 by concluding that the state had failed to advance sufficiently reasonable and objective criteria to justify limiting marriage to opposite-sex couples. Similarly, Justice Sachs on the Constitutional Court of South Africa referred to the state's obligations under Article 26 in ruling that denial of same-sex marriage was unconstitutional in Minister of Home Affairs v. Fourie. In the legislative context, advocates of same-sex marriage in recent Australian debates on marriage equality have relied extensively on the Article 26 equality guarantee when making submissions before the Senate Committee considering draft marriage equality legislation.
The invocation of Article 26 by national courts is just one example of a dyadic process between the international and domestic law strata in the development of new human rights norms. The committee is emboldened to give more robust interpretations to the Article 26 equality guarantee when it sees state practice moving more and more in the direction of marriage equality. Likewise, national courts can point to the increasingly progressive interpretations being given to Article 26 by the committee when seeking to insulate their decisions from charges of judicial activism, as occurred in response to the original 2008 Supreme Court of California decision holding that the state denial of same-sex marriage violated the equality guarantees of the California Constitution. More practically, committee communications on Article 26 in the context of sexual orientation discrimination canvass similar issues that arise when courts are faced with direct questions on the constitutionality of same-sex marriage. This is particularly the case in the US, where courts conduct Equal Protection analysis that parallels the "reasonable and objective" inquiry under Article 26. When additional consideration is given to US understandings to the ICCPR, there is a persuasive and sound basis for the Ninth Circuit to consider international human rights law when determining the constitutionality of Proposition 8.
Nathan Crombie is currently an LL.M. candidate at Columbia Law School. He earned his undergraduate law and arts degrees from Victoria University of Wellington in New Zealand before working as a solicitor in the private and governmental sectors. His primary areas of interest are public international law and human rights.
Suggested citation: Nathan Crombie, Same-Sex Marriage and International Law in the Ninth Circuit, JURIST - Dateline, Dec. 29, 2011, http://jurist.org/dateline/2011/12/nathan-crombie-marriage.php.
Monday, December 19, 2011
JURIST Guest Columnist Erica Menze, Marquette University Law School Class of 2012, is a member of the Marquette Sports Law Review. She writes on the implications of labor law and antitrust law on the National Football League's operations...
Currently, the NFL operates under labor law standards. The union and the employer in this case, the NFLPA and the NFL owners negotiate a collective bargaining agreement (CBA) in order to establish rules for how the relationship will work. The CBA covers a broad range of issues, including legal remedies and union earnings. When the negotiations reached an impasse this year, the NFL owners had the legal right under labor law to lockout the players. Usually, when a lockout occurs, the union can still collect employment benefits from the employer, such as insurance or pension benefits. If this occurred during the NFL lockout, the players still would have collected benefits under their union rights, but the owners would incur these costs without earning any profits for the lost football season. In addition, the NFLPA acquired lockout insurance, which guaranteed the players around $200,000 each, if the entire season had been canceled. While this amount is minuscule for many NFL stars, most players could comfortably survive on this amount for a lost season. This move could have been leveraged to push the owners for a new CBA. By staying in the realm of labor law, the players would have avoided the owners' perhaps valid allegations that decertification was a "sham" and that the players continued to act as a union. The NFLPA decertification was extremely risky. By decertifying, the NFLPA left its labor law protections and voluntarily joined the antitrust arena. As a result, the NFL or the NFLPA could have filed an antitrust suit against the other.
The players filed their antitrust suit, Brady v. NFL, first, claiming that the NFL owners engaged in anti-competitive acts in violation of the Sherman Antitrust Act based on how they allotted NFL players in the draft and the use of franchise tags. Furthermore, the suit claimed that the owners prevented the players from reaching their full earning potential by enforcing salary caps. When the lockout ended with agreement on a new CBA, players went back to their teams, training camps started and the players dropped the suit. While football fans are fortunate to have a season, the legal world was left with a lingering question regarding the effects of labor law and antitrust law in the NFL.
Currently, every major sports league in the country operates in the labor law arena: baseball, basketball, football, hockey and soccer. Some sports even enjoy more specific antitrust exemptions, for example the Curt Flood Act in baseball and 15 USC § 1291 in football, which gives an exemption for broadcasting rights. The fact that all of the leagues operate in labor law tends to support the claim that labor law is more beneficial to the sports industry. For example, labor law in sports has provided the industry higher player salaries, large television contracts and in some sports greater disparity among the teams.
However, this does lead to an interesting question: how would the NFL operate if it acted solely under antitrust standards instead of labor law? What if there were no NFLPA, no CBA and no player allotment that comes from this contract? What if American Needle v. NFL applied to everything the NFL does? What if the NFL acted as 32 separate and distinct teams, conducting business with the players? The answers to these questions would create a different version of the traditional NFL.
First, the NFL owners could not negotiate television contracts for the entire league. Each individual team would pursue its own television rights, whether in its market territory or beyond. Teams with large populations in the viewing area would demand higher prices for broadcasting the game. On the other hand, teams in smaller markets, such as Green Bay or Buffalo, would charge lower prices due to the smaller population.
In addition, if the NFL did not operate under labor law then owners could not agree to revenue sharing because it would be anti-competitive, causing injury to any other entity trying to gain entry into the market. Teams would have the ability to earn greater profits depending on their market shares, not only in broadcasting contracts, but also on increased ticket and merchandise sales. Therefore, teams with a smaller market share would not be able to compete with those teams enjoying a larger market share.
Increased profits lead to the acquisition of the best players through high salaries. Since there could be no NFL draft or waiver system if the NFL were operating under antitrust laws, as both would very likely be found anti-competitive, players would have no obligations or incentives to sign with any particular team. Rationally, players would play for whichever team could pay them the highest salary. Accordingly, the small number of teams that would be able to attract the best players through paying the highest salaries would easily dominate the field. While everybody wants his or her own team to win, part of the excitement comes from an indefinite outcome. An increase in disparity among teams would mean losing excitement, which ultimately would mean losing fans for the league. Eventually, teams would begin moving or folding and the NFL would become less national and more regional.
Individual players have different outlooks regarding whether or not the NFL should operate under labor law. The more highly compensated players likely would prefer the anti-competitive method because with no salary cap their incomes would skyrocket, while the lower paid players likely favor labor law, as they benefit from the salary base set by the CBA. Ultimately, with 53 players on an active team roster, there are far more of the latter than the former. These same issues apply to the 32 NFL owners; there are far more owners that would suffer without labor law than would thrive.
Without labor law, each individual team would have to set its own benefits and each individual player would have to set his own demands. This would create an extremely inefficient negotiating process and difficulty in an industry where players risk serious injury for the entertainment of others.
From a fan's perspective, it is easy to see why the NFL and the NFLPA have a relationship under labor law. It allows all the parties involved to thrive and produce maximum profits, while maintaining a presence across the nation. However, the situation in Brady v. NFL proves the owners' argument that the NFLPA decertification was a "sham." If the NFLPA wants the benefits of the labor law exemption from antitrust, the union should also take the legal route carved out for it under labor law. The consequences under antitrust in this case are significant and players, owners and fans cannot bear these extreme consequences.
Erica Menze graduated magna cum laude from St. Ambrose University with Bachelors of Arts in Sports Management and Marketing. Erica interned at NIKE, Inc. as a Sports Marketing Legal Intern and at Gamebreakers, LLC as a Sports Law Intern. At Marquette, Erica is a candidate for the National Sports Law Institute's Sports Law Certificate.
Suggested citation: Erica Menze, Labor Law Leads to Efficient Operations in the NFL, JURIST - Dateline, Dec. 19, 2011, http://jurist.org/dateline/2011/12/erica-menze-labor-law.php.
Thursday, December 15, 2011
JURIST Managing Editor Dwyer Arce, University of Pittsburgh School of Law Class of 2012, is the 2011 Janavitz Fellow in First Amendment Law and serves as a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He argues that an interstate compact altering presidential elections missed a unique opportunity to partially remedy the denial of federal voting rights to the four million US citizens living in the territories... (His opinions are not intended to represent those of JURIST)
Puerto Rico and Guam have been part of the US since they were ceded by Spain in 1898. The US Virgin Islands were acquired from Denmark in 1917, and the Northern Mariana Islands came under US control at the conclusion of World War II. Congress granted US citizenship to the residents of Puerto Rico in 1917, those of the US Virgin Islands in 1927, Guam in 1950, and the Northern Mariana Islands in 1986. Each territory elects a Delegate to the US House of Representatives who can vote in committee but cannot vote on the final disposition of legislation, and each hosts a federal district court. These US citizens, living on US soil under constitutional governments organized through the authority of Congress, are excluded from the federal franchise solely due to their geographic location outside of one of the 50 states or the District of Columbia. This geographic discrimination is embodied in the text of the Constitution itself, which provides that voting representatives be elected to the House "by the people of the several states," that the Senate shall be "composed of two Senators from each state, elected by the people thereof," and that the president shall be elected through the state dominated Electoral College process. This federal framework fails to take into account the existence of seemingly permanent US territories populated by US citizens and, as such, excludes them from effective participation in the national body politic.
US citizens living in Puerto Rico and Guam have sued on several occasions to gain inclusion in the presidential vote. In 1984, the US Court of Appeals for the Ninth Circuit rejected one such claim in Attorney General of the Territory of Guam v. United States, holding that plaintiffs had failed to state a claim upon which relief could be granted. This was because the
Constitution does not grant to American citizens the right to elect the President ... Electors appointed by the states elect the President and Vice President. ... Thus, citizens do not vote for the President. Electors, appointed by "each State," vote for the President.Similarly, following a long line of cases seeking federal voting rights for US citizens in Puerto Rico, the US Court of Appeals for the First Circuit ruled en banc in Igartúa-De La Rosa v. United States that
Voting for President and Vice President of the United States is governed neither by rhetoric nor intuitive values but by a provision of the Constitution. This provision does not confer the franchise on "U.S. citizens" but on "Electors" who are to be "appoint[ed]" by each "State," in "such Manner" as the state legislature may direct, equal to the number of Senators and Representatives to whom the state is entitled.The rulings by federal appellate courts have been uniform on this issue: US citizens living in one of these territories cannot exercise the federal franchise unless they relocate to a state or the District of Columbia, the territory in which they live becomes a state, or the Constitution is amended to allow federal voting rights in the territories. Despite the steadfast dissent of Judge Juan Torruella on the First Circuit, the findings of a few overturned district court opinions, and the writings of academic observers lamenting the colonial nature of the situation, this constitutional analysis would appear to be correct both textually and historically.
Dwyer Arce is the Managing Editor of JURIST. He graduated cum laude from the University of Nebraska at Omaha with a degree in Political Science and Islamic Studies. He has previously interned with the American Civil Liberties Union of Pennsylvania and with Judge Nora Barry Fischer of the US District Court for the Western District of Pennsylvania. Arce is also a member of the Puerto Rican Bar Association.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: Dwyer Arce, Popular Vote Compact: A Missed Opportunity for Equality, JURIST - Dateline, Dec. 15, 2011, http://jurist.org/dateline/2011/12/dwyer-arce-popular-vote.php.
Tuesday, December 13, 2011
JURIST Guest Columnist Dominic Hoerauf, Columbia Law School Class of 2012, is a Staff Editor on the Columbia Human Rights Law Review. He argues that the Obama administration's decision to withdraw troops from Iraq by December 31 is misguided as the goals embodied in the authorization for the war have not yet been achieved...
Admittedly, Saddam Hussein is no longer causing trouble, nor is Osama Bin Laden. Weapons of mass destruction are certainly more out of reach for the Iraqi government than they were in 2003, assuming that it even seeks to acquire weapons of mass destruction. And yet, the question arises whether the mission has been accomplished, whether this is what victory looks like? Although traditional combat action is no longer taking place, deadly bombings and shootings still occur daily, inducing a constant state of fear and terror. Just a few days ago, 43 civilians were killed in bomb attacks, increasing the number of casualties in December to 111. Is this truly what victory looks like? Is this a situation in which we would like to leave the Iraqi people on their own, abandoning a highly volatile state of affairs that could easily turn into another pre-September 11, 2001 Afghanistan? Well, I guess nobody seriously thinks so. The Obama administration, of course, is well aware of that. Yet, it withdraws the troops despite the AUMF promises to make sure that "the just demands of peace and security will be met." It is withdrawing its troops because this war was and still is costly. An incredibly sad amount of blood has been shed and an enormous sum of money has been spent. In the end, a decision to discontinue military engagement is always subject to a cost-benefit calculation. Since the benefit, not only to the US, but also to its Western allies, is not as tangible and predictable as their costs in terms of lives, money and votes, that ratio has now probably led the Obama administration to conclude that this is as good as it gets.
However, maybe this does not adequately take into account the very special nature of conflict this new generation of warfare presents. Other than the nation-states' wars of the twentieth century, these new wars in Afghanistan and Iraq implicate both state and non-state actors. Unlike previous wars, combat action is not confined to troops or a well-defined battlefield. As a result, the target has changed as well as the definition of victory. As can be seen in Iraq, to a remarkable extent, civilians have been the primary target of insurgent and al Qaeda attacks. In an effort to undermine the people's trust in the capacity of the new government to preserve national security, the enemy tries to induce a state of constant fear and terror. Sadly enough, as mentioned earlier, measured under this goal, they are doing quite a good job. Each day, 14 attacks kill 11 Iraqi civilians on average. Therefore, we are far from proclaiming that either the AUMF's goal of ensuring that "the just demands of peace and security" has been met or from restoring "international peace and security" to the region, as Resolution 1441 sought to do.
Against this background, abandoning Iraq to its fate is the wrong thing to do; it would have devastating consequences not only for the Iraqi people, but for international peace and security in the long run. It will ultimately threaten the most apparent and legitimate goal for going to Iraq, the preservation of US national security. Again, the AUMF recognizes this potential domino effect in Section 3(a)(1). Yet, the Obama administration draws the wrong conclusions. The young and vulnerable Iraqi democracy, unfortunately, does not yet have the means to counter infiltration by terrorists and insurgents. Without foreign assistance, Iraq is bound to become another failed state, just as Afghanistan became in the 1990s, in the aftermath of its century-long civil war. In Afghanistan, decades of war left behind a severely wounded state without any effective governmental institutions. This lack of governmental infrastructure resulted in a power vacuum of lawlessness and chaos. This chaos benefitted the strongest and most ruthless actors, not the democratically legitimized statesmen. It was this particular constellation that helped the Taliban to come to power, allowing it to later provide terrorist groups with safe havens to plan and train for attacks against the West.
If that is not supposed to happen with Iraq, than under no circumstances should US troops leave the Iraqi people on their own. Let us not stop halfway down the road. There are achievements we should build on. Even though the democracy is struggling, at this point, at least there is a democracy in place. All we have to do to turn a ticking bomb into a potential model for the Middle East is stick patiently to the goals of the AUMF in order to ensure (self-)sustainability. As difficult as this may be and as long as it will take, it is worthwhile, since starting over in 10 or 15 years will be even more costly.
That, however, requires us to alter our perspectives on warfare. In times of asymmetric conflicts, waging war, and especially waging war successfully, which in the instant case means establishing a self-sustaining democracy capable of defending itself, is no longer only about who has the most effective military and weapons. Rather it is about protecting vulnerabilities, which is to say protecting civilians and closely coordinating the (re)building of effective institutions of good governance. It is about generating and preserving trust between the Iraqi people and their government. Yet, trust requires security, "freedom from fear," as the Preamble to the Universal Declaration of Human Rights states. In this respect, the US and its allies have failed. They have failed due to a misconception of warfare. They failed to appreciate that warfare has changed; their weapons are no longer fully up to the task given by the AUMF. Peace and security in Iraq cannot be achieved solely by shooting or detaining the enemy with state-of-the-art weapons. Trust in the domestic government necessitates strong domestic institutions. This is best achieved by peacekeeping forces with an emphasis on institution building, implementing the rule of law and advocating good governance.
That is not to say that we do not need the military. Quite the contrary. The military remains a crucial factor in times of asymmetric warfare, yet with slightly modified perspectives and tasks. Therefore, it should under no circumstances leave Iraq now. The soldiers are needed to provide for a secure atmosphere in which state and institution-building efforts can take place, for domestic tranquility is the precondition for sustainable development. Thus, withdrawing from Iraq at this point is the wrong call. The international community has invested too much to stop now. In order to achieve true victory in Iraq once and for all, to turn mission impossible into mission accomplished, is to modify our strategy by intensifying peacekeeping and protection efforts.
Dominic Hoerauf is an LL.M. candidate focusing on Human Rights and the War on Terror at Columbia Law School. He holds a law degree and a Ph.D. from Humboldt University.
Suggested citation: Dominic Hoerauf, Iraq War: Mission Accomplished or Mission Impossible?, JURIST - Dateline, Dec. 13, 2011, http://jurist.org/dateline/2011/12/dominic-hoerauf-iraq-war.php.
Saturday, December 03, 2011
JURIST Guest Columnist Danielle Gorman, Benjamin N. Cardozo School of Law Class of 2013, is a Staff Editor for the Cardozo Arts & Entertainment Law Journal. She writes on the need for a revised opinion in the Yves Saint Laurent v. Louboutin case that would allow for the future protection of certain single color marks in the fashion industry...
The Louboutin v. Yves Saint Laurent decision has led other designers, such as amicus curiae Tiffany & Co., to conclude that single color marks in fashion will never be allowed federal trademark protection. This per se bar on single color marks in fashion is problematic because it is based on a generalized analysis of the fashion industry as a whole and could erode trademark protection within fashion beyond just single color marks. Using the district court's rationale, many currently enforceable multi-color marks in fashion, such as the Burberry check, could be canceled under similarly broad constructions of functionality, aesthetic functionality and color depletion theory. As a result, the fashion industry could experience an uncertain or dwindling amount of protection. Moreover, the effects of Louboutin could ripple into other industries. Amicus curiae International Trademark Association fears that "[r]ights granted as a result of the careful examination process of the Federal trademark registration system could be upended arbitrarily" if courts construe the mark holder's mark to be broader than it actually is rather than relying on the specific language and construction of each trademark's registration.
The Second Circuit should vacate and remand the district court's opinion. The district court's erroneous characterization of Louboutin's registration as a "claim 'to the color red'" rather than a claim for "a lacquered red sole on footwear" and its broad construal of the doctrine of aesthetic functionality establish a poor precedent for analyzing the protectability of single color trademarks. Rather than invoking generalizations and criticized theories in order to forego a more specific competitive necessity analysis, courts should make an individual, holistic examination of the trademark in question on a case-by-case basis.
By characterizing Louboutin's claim as a claim to the color red, the district court advanced the color depletion theory. Color depletion theory reflects the concern that the number of colors available for appropriation is limited and granting exclusive rights in any color would thus be anticompetitive. However, in ruling that single colors can serve as trademarks, the court in In re Owens-Corning acknowledged that "following passage of the Lanham Act courts have declined to perpetuate [the color depletion theory's] per se prohibition which is in conflict with the liberating purposes of the Act," and agreed with the Trademark Trial and Appeal Board that "the color depletion argument is an unreasonable restriction on the acquisition of trademark rights." The Supreme Court adopted this position in Qualitex, holding that the color depletion argument is unpersuasive "largely because it relies on an occasional problem to justify a blanket prohibition."
Nonetheless, the district court invoked this theory in order to deem the Red Sole Mark a "monopoly on the color red." Though the court posits "Louboutin would thus be able to market a total outfit in his red, while other designers would not," Louboutin's trademark registration specifically limits the red mark to footwear and includes a line drawing to show placement of the mark on the outsole of a shoe. Moreover, the court neglected the specific facts of the case in favor of applying the color depletion theory at the outset. Owens-Corning and Master Distributors, Inc. v. Pako Corporation provide that each case is to be decided on its facts and where a party has met all the normal trademark requirements, the color depletion theory should not bar the party's single color mark from protection.
In general, the color depletion theory fails to take into account the specific properties of color including hue, saturation and value and therefore underestimates the thousands, if not millions, of different colors distinguishable to the human eye. Descriptive word marks address these scarcity issues by requiring secondary meaning for protection. This compromise is also appropriate for assessing color trademarks. Where color, such as Louboutin's red, has acquired secondary meaning, the threat of depletion should be allayed. The invocation of color depletion theory in Louboutin diverges from the modern trajectory set in place by Owens-Corning and Qualitex and sets a defective precedent for the review of other single color marks in fashion.
The district court also erred in its broad construal of aesthetic functionality. Aesthetic functionality is based on the premise that the visual appeal of a trademark may be essential to effective competition or an important ingredient in the commercial success of the product, and must, therefore, be free for all to imitate. In Pagliero v. Wallace China Co., the US Court of Appeals for the Ninth Circuit applied the aesthetic functionality doctrine and found that the defendant was entitled to copy the plaintiff's china designs, since the attractiveness of the design was the primary selling feature of the china and thereby served a non-trademark function. However, the Second Circuit specifically rejected the Pagliero test for aesthetic functionality in deciding the nearly identical case of Villeroy & Boch Keramische Werke v. THC Systems. In Qualitex, the Supreme Court adopted the Restatement standard, which limits aesthetic functionality to situations where the design "confers a significant benefit that cannot practically be duplicated by the use of alternative designs." The use of the aesthetic functionality doctrine for source-identifying marks currently varies by circuit, though most courts have rejected or limited its application.
However, in Louboutin the court reverted to a broad construal of aesthetic functionality, finding that in fashion color is used primarily to advance expressive, ornamental and aesthetic purposes. Rather than examining the availability of alternative designs, the court automatically found a threat to competition based on the premise that color is part of the consumer appeal of fashion items. The question should not have been whether fashion designers in general need to use the color red, but rather whether footwear designers need to use red outsoles in order to compete effectively in their market. The generalized construal of aesthetic functionality in Louboutin could render nearly every mark in fashion unprotectable, with the presumption that a visually appealing mark is necessary for free competition since fashion is premised on aesthetic beauty. The Ninth Circuit recognized the implications of such a standard in Vuitton et Fils S.A. v. J. Young Enterprises, where it rejected the contention that Louis Vuitton's mark was aesthetically functional merely because it appealed to consumers.
Scholars have long argued against such a broad interpretation of aesthetic functionality. Thomas McCarthy, author of the leading treatise on trademark law, contends that "[t]he notion of 'aesthetic functionality' is an unwarranted and illogical expansion of the functionality policy, carrying it far outside the utilitarian rationale that created the policy." Others note that it is contradictory to deny trademark protection to marks on the basis of their consumer appeal and demand, since creation of this demand is a recognized trademark function. Many are wary of the doctrine simply because there is no clear standard or unity among the courts.
In considering Yves Saint Laurent's counterclaim on remand, the district court should consider Louboutin's trademark in the context of its 2008 registration, and specifically ask whether Louboutin's lacquered red outsoles are a competitive necessity. Single color marks in fashion, where those marks meet all other trademark requirements, merit protection because the ability to register such marks would fit well within the Lanham Act and fortify the fashion industry's current shortage of intellectual property protections. The court will probably find no likelihood of confusion between Louboutin's shoes and the Yves Saint Laurent heels that prompted this infringement suit, and thus no likelihood of success on the merits to warrant a preliminary injunction for Louboutin. However, the opinion of the district court must be revised in order to allow for the possibility of protecting distinctive and non-functional single color marks in fashion in the future.
Danielle Gorman is a Staff Writer on "The Cardozo Jurist," the newspaper of the Cardozo School of Law, and a member of the Intellectual Property Law Society. She has interned at the State of New York Office of the Attorney General in the Consumer Frauds Bureau. Danielle received her undergraduate degree at Lehigh University where she studied English and Journalism.
Suggested citation: Danielle Gorman, Trademark Protection for Distinctive Single Color Marks, JURIST - Dateline, Dec. 3, 2011, http://jurist.org/dateline/2011/12/danielle-gorman-trademark-law.php.
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