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Looking into Affirmative Action through Fisher v. University of Texas at Austin
May 17 2013, 1:05 AM ET
JURIST Associate Editor Fangxing Li, University of Pittsburgh School of Law Class of 2014, explores the upcoming US Supreme Court decision on affirmative action policies in institutions of higher education and argues that these policies harm rather than help diversity in schools that employ those policies...
In March, the US Supreme Court granted certiorari on Schuette v. Coalition to Defend Affirmative Action. This is the second affirmative action case currently before the Court; the oral argument of the another case, Fisher v. University of Texas at Austin, was conducted in October 2012.
The current debate on affirmative action is whether the Court should overrule Grutter v. Bollinger, the most recent landmark case that provided the jurisprudence supporting higher education institutions' affirmative actions when the schools have a compelling interest in attaining a racially-diverse student body that can pass the most rigorous strict scrutiny test on race-based admission process, and when their holistic reviews of applications are narrowly tailored to further the compelling governmental interest.
The Equal Protection Clause of the Fourteenth Amendment of the US Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."
Justice Powell, in his touchstone opinion in Regents of the University of California v. Bakke, characterized the interests of remedying past discrimination and racial balancing as not compelling and left only the interest of attaining a diversity student body as legitimate aim that survived strict scrutiny. He therefore struck down a medical school's admission policy that reserved 16 out of 100 seats for students of certain minority groups. The interest, in Justice Powell's view, is not a simple one with statistical ethnic diversity but embraces "a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."
Twenty-five years later, the Court reviewed University of Michigan Law School's admission procedure in Grutter and upheld its constitutionality on the ground that its consideration of race was lawful when the interest of diversity by aiming at enrolling a "critical mass" of minority students was a compelling state interest that could justify the use of race in university admissions. Justice O'Connor explained that critical mass must be "defined by reference to the educational benefits that diversity is designed to produce," and the Court was to give a degree of deference to a university's academic decisions within constitutionally prescribed limits." However, the idea of "critical mass" was largely overshadowed by Chief Justice Rehnquist's dissent that the term should be interpreted only as a proportion of the student body, or in other words, a disguised label of quota, that was strictly rejected by the Bakke Court, and the Court's "application of [the strict scrutiny] review is unprecedented in its deference."
In the current Fisher case, The University of Texas (UT) observed that there are "underrepresented" minorities based on a comparison between the undergraduate student body and the state's population, and there were some other racial groups that were overrepresented. For instance, Hispanic enrollment was less than two-thirds of the Hispanic percentage of Texas' population and African-American enrollment was only half of the African-American percentage of Texas' population, whereas Asian-American enrollment was more than five times the Asian-American percentage of Texas' population. In 2004, for example, Asian-Americans comprised about three percent of the population in Texas, yet accounted for 18 percent of UT's freshman class.
However, isn't true diversity found only at the individual level and created by individual differences in ability, experience, interest, opinion and other personal qualities, judged without resort to the invidious short cut of racial stereotyping? Student body diversity is an educational interest but never a representational one. A lack of proportional representation could never justify racial preferences. Diversity may help with classroom discussion, preparation for the real life diverse working environment and achieving the "one Nation" dream. It calls for students of different backgrounds, experiences, majors, socio-economic statuses and other indexes that can help the school achieve these educational benefits. However, UT is simply differentiating students by their race to bring UT's student-body demographics in line with the racial demographics of the state. Simply admitting more minority students will not benefit diversity, and the true diversity cannot be explained purely by the color of students' skin. UT's effort of characterizing minority groups as "underrepresented" and "overrepresented" is a disguised racial balancing approach in that its only purpose is to have "some specified percentage of a particular group merely because of its race or ethnic origin", an idea that was clearly rejected by Bakke. UT's use of race in admissions does not favor, and actually discriminates against other groups. It is not clear why fewer members of one group than another be needed to achieve the educational benefits of diversity.
Furthermore, even assuming that race was a decisive factor in the admission process, UT's use of race still could only have added, at most, 58 African-American and 158 Hispanic students to an in-state class of 6,322. In other words, the race-conscious policy would have only admitted 0.92 percent and 2.5 percent, respectively, of the whole student body enrolled in the in-state freshman class. The 2.7 percent difference, or 33 additional students, between 2004 and 2008 would be the only affected number by race [PDF], if race were determinative of their admission. Diversity would never be achieved by such a negligible effect produced by the race-conscious mean in the huge size of student body. This is not even close to a "narrowly tailored" mean to achieve the richly diverse student body.
Moreover, the "critical mass" test in Grutter is flawed. Justice O'Connor refused to tie the concept of "critical mass" to any fixed number. Rather, she suggested that critical mass meant a "meaningful numbers" or "meaningful representation" that will encourage underrepresented minority students to participate in the classroom and allow them to not feel isolated. But the definition itself does not provide any meaningful guide that helps school define what is the real critical line but rather create ambiguity that may lead to floods of litigation. Any percentage of minorities, either published or unpublished, is defined by the school. The criteria that are used to examine whether the goals such as "minorities not feeling isolated, adequate class interaction and students critical thinking" were achieved can by no means be proved or disproved. What's more, Grutter simply gave deference to the university and concluded that its use of race was constitutional as long as there was no specific percentage of minority enrollments under the critical mass, and the school might have an unspecified number although it is inherently similar to quota, an idea expressly rejected in Bakke.
Justice Scalia depicted the critical mass justification for its discrimination race challenges as a "sham to cover the scheme of racially proportionate admissions." How can a vague, self-contradicted and unsuccessful test provide any helpful guidance to schools? By the way, is it really a strict scrutiny? Under Grutter's jurisprudence, as long as a school imitates the University of Michigan's admission process by articulating its purpose to reach diversity to the level of "critical mass" and the school considers race in a holistic and individualized manner, it will survive the strict scrutiny test. Grutter's lenient use of strict scrutiny and unprecedented deference is never seen in the Court's history.
The US was founded on the principle that "all Men are created equal." "All Men" now mean all human beingsmen, women and all ethnicities. We have seen the worst times of discrimination with "separate but equal" policies that established that ethnic minorities were inherently unequal to white Americans. To redress past evil, the Court sustained the interest of "remedying the past wrong." However, race is corrosive to human dignity and the fundamental value of individual rights under our Constitution. Our dream is to create "a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement." Affirmative action, with no doubt, violates this fundamental principle. Any further use of race will detrimentally harm innocent citizens.
Race is an immutable character trait with which people are born naturally. With internationalization, more and more people choose to marry with members of other racial or ethnic groups, and there is no way to characterize others as purely Caucasians, Asians or African-Americans. As Justice Kennedy concurred in Parents
Involved v. Seattle School District No.1, "[w]hen the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite?" In Plessy, this Court held that a 7/8 white passenger should be denied use of public facility on account of the statute that was discriminating against blacks. Recently, a driver sued NASCAR because he believed that NASCAR denied him because he did not fit the purpose of the affirmative action program because he looked like a Caucasian male.
Now, what if a half-Asian half-African American applies to UT, should she be favored or disfavored? Does a 1/16 African-American who looks white fit for the protected targets under affirmative action? What about 1/64? 1/128? Are we really distinguishing people under their color of skin, and under what ground can that be justified?
"Programs should also not unduly burden individuals who are not members of the favored racial and ethnic groups." Now the net penalty [PDF] for Asian-Americans under those race-based diversity programs was 280 SAT points relative to African Americans and 235 to Hispanic applicants. Is this penalty minimal and can it be ignored?
Due to the discriminating admission policy, many Chinese-American children have become ashamed [PDF] of their ethnic heritage after concluding that their unfair denial is a form of punishment for doing something wrong and are thus unwilling to state their race at all on college applications or self-identify with their non-Asian parents. It is absurd to punish those people under the disguise of affirmative action. Classifications based on race carry a danger of stigmatic harm, may promote notions of racial inferiority and threaten to incite racial hostility. It is not our Nation's wish to send to any racial group message that they are not part of it.
The racial diversity is also not justified in that it is too over-inclusive as it does not distinguish different racial groups. For example, Asian-Americans incorporate Chinese, Japanese, Korean, Vietnamese, Indian and others. These racial groups have very different backgrounds, languages, cultures and perspectives, and their viewpoints are highly diverse. The compelling interest of government is "true diversity," which is based on students' distinct socio-economic status of their family, languages other than English spoken at home, a single-parent household, different sexual orientations and others rather than the color of their skin.
Race-conscious admission process also might detrimentally affect certain protected minority students [PDF]. People may tend to work or study with others who share equality of status, or, put in the context in the instant case, who are admitted by the regular means rather than benefiting from other aspects rather than grades. Whites and Asians may express considerable "social distance" from African Americans and Hispanics who benefited from affirmative action because of their lower standardized test scores, and thus to every African American or Hispanic who does not benefit from affirmative action. African Americans may tend to self-segregate and some African Americans or Hispanics, such as the ones who were not admitted because of affirmative action, may undergo unfair disrespect.
What still echoes is Justice Harlan's notable dissent in Plessy: "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Justice O'Connor's expectation that 25 years from then the end of use would come is only a pure speculation, and it is now time to act.
Fangxing Li majored in Economics at China University of Political Science and Law. He worked as a law clerk for Judge Patricia A. McCullough, and he is involved with the Pitt Law Asian Lawyer Association.
Suggested citation: Fangxing Li, Looking into Affirmative Action through Fisher v. University of Texas at Austin, JURIST - Dateline, May 17, 2013, http://jurist.org/dateline/2013/05/fangxing-li-affirmative-action.php.
This article was prepared for publication by Elizabeth Hand, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at email@example.com
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The Law of Non-Commercial Organizations: "Foreign Agents"
May 10 2013, 1:05 PM ET
JURIST Guest Columnist Shubin Nikita, Russian State University for the Humanities, Law Faculty, explores a new amendment to Russian law affecting non-commercial organizations...
On November 21, 2012, Federal Law 121-FL came into force in Russia. This law works to amend various legislative acts, such as those regarding public associations, non-profit organizations and the laundering of crime proceeds to finance terrorism. They also amend the Code of Administrative Offences and the Criminal Code.
This need for various amendments came about with the act's creation of the concept of a "non-commercial organization (NCO) carrying functions of a foreign agent." This is elusively defined by the act as an NCO that both carries out political activities and receives foreign funding. The funding can be in the form of money or other property, and may be received from foreign countries, state agencies, international and foreign organizations among others.
Many experts view the broad definition and interpretation of "political activities" by government authorities as a big disadvantage to NCOs. An NCO is deemed to be carrying out political activities if "it participates (including through financing) in organizing and implementing political actions aimed at influencing the decision-making by state bodies intended for the change of state policy pursued by them, as well as in the shaping of public opinion for the aforementioned purposes." The actual goals and intentions of the organization are not considered when determining if the NCO is carrying out political activities, nor is the determination of whether or not the NCO is conducting activities to the benefit of the foreign funding source.
These considerations make it possible for virtually any organization that is working to change public policy or focusing on implementing and executing state and constitutional guarantees to be deemed as taking part in "political activities".
Alexei Kudrin, a member of the Committee of Civil Initiatives, which was formed in 2012, stated that the Russian government must give its civilians a clear strategy of, among other things, the social development in the country. This is truly necessary, because under Federal Law 121-FL, almost any attempt to participate in the development of public-political practice or even an organization's formation of public opinion on a public issue may be considered "political activity."
NCOs labeled as "carrying functions of a foreign agent" must report to the Russian government any and all cash and/or property received by a foreign source. Furthermore, any foreign entity wishing to make a tax-exempt grant to a Russian NCO must be on the list of approved entities, before they can provide such a donation.
In addition to extensive regulations placed upon these particular NCOs, the organizations are also subject to annual government inspections. Additionally, the law provides for a list of circumstances by which the government can conduct more frequent inspections. The Commissioner is also obligated to submit a report on the activities of the NCO carrying functions of a foreign agent, including information about the organization's involvement in political activities, expenditure of funds and other observations noted during inspections.
Any NCO carrying functions of a foreign agent is subject to potentially harsh penalties for failing to provide information, or for providing information that is considered incomplete or distorted to the Russian government. Penalties may be in the form of a monetary fine or, in the case of a "willful evasion" of duties, criminal charges may be applied. Violations may also lead to suspension of the NCO's activities for up to 6 months.
Furthermore, Article 61 of the Civil Code of the Russian Federation, as well as Part 10 of Article 32 of the Federal Law. On NCOs give judicial authorities the right to apply to the court for the liquidation of a NCO found to have violated the law.
It should be noted that when the bill was sent for evaluation to the Supreme Court, concerns were voiced about aspects of the legislation. One concern was that the absence of a statutory definition of "malice" might cause difficulties in objectively enforcing the act. It was also noted that the act might cause a degree of social danger. However, despite these various concerns, the act was ultimately passed.
Recently, the Russian Ministry of Justice has accused the GOLOS Association of failing to register as a "foreign agent." Although the ministry has requested the closure and suspension of various NCOs since the act's passage, this case represents the first potential litigation for the ministry regarding the act.
The law has been enacted in different ways throughout the country, and has mostly received a negative assessment.
The head of the Moscow-Helsinki Group, Ludmilla Alexeeva, has referred to the act as "sneaky". She intends to pursue placing its authors on a "Magnitsky list". The Presidential Council on Human Rights also called upon the State Duma to withdraw the bill and officially put it up for public discussion, "to avoid rooting unconstitutional policies and practices."
In turn, political analyst Sergei Markov, a member of the Public Chamber said that if political leaders of foreign countries decided to instigate "orange" revolutions in Russia, these NCOs would play a key role. He said the bill's goal is to protect the sovereignty and integrity of Russia. However, the Public Chamber itself has also refused to support the bill in its current form. In conclusion, the experts said that the term "foreign agent" is perceived negatively and seems to refer to "a spy."
Some proponents of this legislation have tried to draw similarities between the act and the US Foreign Agents Registration Act. In essence, however, it is significantly easier to note the differences between the two pieces of legislation than it is to find their common ground.
Shubin Nikita is a student at the Russian State University for the Humanities, Law Faculty. Currently, Nikita works at Legal Consulting. Nikita's professional interests include corporate disputes, consumer rights, bankruptcy and other legal issues in civil and arbitration law.
Suggested citation: Shubin Nikita, The Law of Non-Commercial Organizations: "Foreign Agents", JURIST - Dateline, May 10, 2013, http://jurist.org/dateline/2013/05/shubin-nikita-russian-law.php.
This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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Freedom of Religion in Palestine: Converting Religions
May 01 2013, 11:05 AM ET
JURIST Guest Columnist Ibrahim Fares, an LL.M. Candidate from the University of Pittsburgh School of Law Class of 2013, explains the impact of religion on legal rights in Palestine...
Religion affects many aspects of life in Palestine, including legal rights. One sensitive issue in Palestine is converting from Islam to Christianity (or vice versa) and from within a religion to a different school. Religion may not have legal effects in the US or Europe; however in the Arabic world in general, and in Palestine in particular, it has significant legal implications. As a result, this article seeks to clarify the legal system of converting religions in Palestine under the Palestinian Basic Law 2003, which act as a temporary constitution, and its effects on freedom of religion.
Article 9 of the Palestinian Basic Law provides that: "Palestinians are equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability." Article 18 expressly provides: "Freedom of belief, worship and the performance of religious functions are guaranteed." Moreover, Article 10 stipulates that: "basic human rights and liberties shall be protected and respected."
Thus, it is clear that the Palestinian Basic Law guarantees the freedom of religion as a constitutional right. Because Palestine is not yet a state and cannot join international conventions related to human rights, the Palestinian National Authority under Article 10 binds itself by all the UN human rights conventions and declarations. One of the most important declarations of human rights is the Universal Declaration of Human Rights, which guarantees freedom of religion under Articles 16 and 18.
In terms of converting religion, the process of converting from Christianity to Islam and vice versa requires a legal procedure that has to be endorsed by "the competent authorities," such as the religious courts.
Article 36 of the Palestinian Status Law Number 2 of 1999 provides that any change or correction in the civil status "should be by a final court judgment," but in Article 37 the law exempts religion from this process and provides that to change religions requires only documents issued by "the competent authority." To clarify the process in practice, I will give a hypothetical example. When a Christian wants to be a Muslim, the process works as follows:
As mentioned above, in Palestine converting religion has a significant impact especially regarding family law. The enforceable family law for Muslims is Family Law Number 61 of 1961, which is based on Islamic rules. Christians are governed by laws established by their respective churches. The significant effects are:
- The Christian must fill out an application and then appear in front of a Shar'h court with two witnesses to assert that he has become a Muslim .
- After the application is completed and endorsed by the Shar'h court, it must be circulated to all governmental departments, because this change has significant legal effects regarding family law, as will be explained later.
- The Shar'h court has to circulate the previous procedures in a local newspaper to inform the public in new legal situation to the interested person.
A. Marriage and Divorce
The main rule of marriage for both Muslims and Christians is not to allow marriage between them. This rule motivates some Christians to become Muslims and vice versa just for marriage purposes. As the result of changing religions, some Palestinian women have been killed in order to protect family honor. If one person in the couple, either a Muslim or a Christian, changes his or her religion, then the marriage becomes invalid.
With respect to divorce in Christianity, some Catholics have converted to Orthodoxy, because the Orthodox school is more flexible in divorce proceedings [PDF].
In both Christian and Muslim families, if any member of the family converts his or her religion, he or she loses inheritance rights. This is a major rule in both religions: any "renegade" (a person who changed his religion) does not have the right to inherit.
C. Change in Personal Identification (ID)
On the Palestinian ID, there is a space for religion and anyone who changes his or her religion has to change his or her ID to be consistent with the effects under the new religion. Moreover, a change in ID in such a case is often accompanied by a change in name, which requires a judgment from a competent court .
Divorced women are entitled to custody of their children, either in Islamic or Christian rules; but, the divorced mother loses the custody of her children if she converts her religion. According to both Islam and Christianity there is no custody for a "renegade" .
Under legal precedent regarding religious conversion, it seems that family laws for Muslims and Christians violate the Palestinian Basic Law, which is the supreme law in the country, especially Articles 9, 18 and 10 that guarantee freedom of belief, worship and the performance of religious functions. On the other hand, the Palestinian Status Law Number 2 of 1999 also violates the Palestinian Basic Law by requiring such procedures to convert religion.
The first case before the Palestinian Constitutional Court regarding freedom of religion was in July 2010. In this case, Palestinian couples believed in an Islamic school called Al-ahmdeh. This school was not recognized by Sunni Muslims, the majority of Muslims in Palestine. The Personal Status Prosecution (Shar'h Prosecution) filed a complaint against the couples before the First Shar'h court, claiming that their marriage contract was invalid because these couples were "renegades," not Muslims, because they believed in that school. The First Shar'h court held that their marriage contract was invalid.
The defendant appealed and filed an action before the Palestinian Constitutional Court, asking the court to decide that the Shar'h Prosecution was unconstitutional because it violated Articles 9 and 18 of the Palestinian Basic Law. The Constitutional Court dismissed the case because the plaintiff did not sue the government in the action, which is a procedural requirement for the Constitutional Court.
On appeal, the Shar'h Court of Appeals in November 2011 ruled that the contract marriage of the couples was valid, because the couples "re-enter[ed] the Islam." This decision came as a result of public pressure, resulting from extensive media coverage and human right institutions interested in the case. Interestingly, Palestinian society was divided on the issue. Some believed that freedom of religion is a constitutional right and the Constitutional Court has to protect this right by holding that the marriage is valid and the Shar'h Prosecution's powers were unconstitutional because it does not have the right to decide who is or is not Muslim. Others supported the Shar'h Prosecution's perspective. Unfortunately, when the Constitutional Court noticed that this case had become a public case, it preferred to get out of that debate and dismissed the case, rather than upholding and protecting the Palestinian Basic Law's articles that guarantee the freedom of religion.
Undoubtedly, there is a huge gap between the Palestinian Basic Law, which guarantees freedom of religion, and the Palestinian legal and judicial system. Ultimately, the Palestinian Constitutional Court must address this gap but it has failed to take this responsibility as it should under its law.
Ibrahim Fares received his LL.B. from Al al-Bayt University and his Masters Degree in Law from BirZeit University. Fares legal experience includes positions with Husseini Law Firm and ITTQAN Law Firm.
Suggested citation: Ibrahim Fares, Freedom of Religion in Palestine: Converting Religions, JURIST - Dateline, May 1, 2013, http://jurist.org/dateline/2013/05/ibrahim-fare-religious-freedom.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at email@example.com
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Fair Decision-Making in Ukraine: Ensuring Personal Voting in Parliament
April 25 2013, 4:04 PM ET
JURIST Guest Columnist Olga Synoverska is an LL.M. candidate from the University of Pittsburgh School of Law Class of 2013, and has interned at OMP Law Offices in Kyiv Ukraine while studying for her law degree. Synoverska discusses a recent change to the laws of Ukraine regarding the commonplace practice of Members of Parliament entering votes for their colleagues...
On February 22, 2013, the Verkhovna Rada of Ukraine (the Parliament) amended Part 3, Article 47, of the Law of Ukraine on the Rules of Procedure of the Verkhovna Rada of Ukraine. The new changes were made to ensure each member of Parliament personally votes instead of having a deputy or another member of Parliament do it for him. The Parliament hopes to accomplish this by implementing a system of tracking violations of new personal voting rule. The changes constitute a compromise between the majority and opposition in Parliament, ending a standoff since February 5, 2013, the date the second session of Parliament opened. The opposition blocked any work in Parliament until a change was made to the old electronic vote-counting system of voting in Parliament. The rampant problem of violation of the personal voting rule has long been a heated source of contention in Ukraine. Under Article 47 of the above-mentioned law, members of Parliament are obligated to vote in person using the electronic vote-counting system at the session of the Parliament or at location specifically designated for secret voting near the plenary hall.
The electronic vote-counting system, named "Rada-3," was created in 2002 to ensure voting by each parliamentarian in person by using specific personal electronic cards. To vote, the member of Parliament must put his personal card into the vote-counting system and to press one of the three buttons "for," "against" or "abstention" within ten seconds. However, such procedure of personal voting turned out to be ineffective. There were numerous cases of members of Parliament giving their personal voting cards to their colleagues, who would use them to vote for the absent Member. Such members became well known throughout Ukrainian society as "button pushers".
Under the newly adopted system of vote-tracking, if a violation of the personal voting rule is believed to have occurred by a member of Parliament, the work of Parliament shall be stopped on his demand. The chairman shall determine whether the deputy whose card was used for voting is present. In case of his/her absence, the voting card of an absent deputy shall be forfeited and the voting for a proposal shall be conducted again. The new amendments to the personal voting rule are not the first attempt to change the unethical practice of voting by members of Parliament. In December 2012, the Parliament amended Article 26 of the Law of Ukraine on the Rules of Procedure of the Verkhovna Rada of Ukraine to require personal registration of each Member of Parliament before a plenary meeting using the identification card and signature through the electronic system. From the legal standpoint voting for other deputies constitutes a direct violation of the Constitution of Ukraine, Article 84 of which stipulates that voting at the meetings of the Parliament of Ukraine shall be performed by a people's deputy of Ukraine in person.
In 1998, the Constitutional Court of Ukraine, which is authorized to give official interpretation of the Constitution and laws of Ukraine, held that Article 84 of the Constitution of Ukraine precluded the use by one member of Parliament of another member of Parliament's card to vote for him. The Constitutional Court stated that such action contradicts the nature of the constitutional mandate of the elected member of Parliament who shall act as an authorized representative of the Ukrainian nation in Parliament. The Constitutional Court mentioned that the practice of voting for another deputy has no legal grounds. Moreover, the Constitutional Court emphasized that according to Article 152 of the Constitution of Ukraine, any law or other legal act by the government shall be deemed unconstitutional if there was a procedural violation in the process of reviewing and adopting said law or other legal act.
The European Court of Human Rights (the ECHR) also addressed the problem of personal voting rule violation by Members of the Ukrainian Parliament) in the case Volkov v. Ukraine, decided on January 9, 2013. Oleksandr Volkov, a judge on the Supreme Court of Ukraine, was dismissed from his for "breach of oath." Volkov claimed that the Parliament abused the electronic voting system when it dismissed him as a judge. He argued that members of Parliament used voting cards of their colleagues who were not present at the plenary meeting when voting for his dismissal. To support his complaint, Volkov provided written statements of four Members of Parliament and video record of the plenary meeting when his dismissal vote occurred. The ECHR found that Volkov's dismissal violated the Constitution and the current laws of Ukraine that require personal voting by members of Parliament. Furthermore, the ECHR found such actions by the members of Parliament violated the principle of legal certainty, which constitutes a breach of Article 6, Section 1 of the European Convention on Human Rights.
Since the passage of the amendments to the personal voting rule, politicians are discussing the necessity of creating a new electronic system to replace "Rada-3," which will make it impossible for any Member of Parliament to vote for another. The largest challenge for Ukrainian parliamentarians will be introduction of liability for those deputies who violate the personal voting rule. Even though liability for similar violations is common in other countries, the concept is uncommon in Ukrainian law and will be a difficult change to bring to fruition.
Olga Synoverska received her bachelor's and post-graduate degrees in law with honors from the National University of Kyiv-Mohyla Academy in Ukraine. She is the recipient of World Wide Studies Scholarship and CILE/ALCOA Scholarship.
Suggested citation: Olga Synoverska, Fair Decision-Making in Ukraine: Ensuring Personal Voting in Parliament, JURIST - Dateline, Apr. 25, 2013, http://jurist.org/dateline/2013/04/olga-synoverska-ukraine-voting.php.
This article was prepared for publication by Michael Micsky, an associate editor for JURIST's student commentary service. Please direct any questions or comments to him at firstname.lastname@example.org
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National People's Congress: China's New Leadership Change and Hukou Policy Reform
April 18 2013, 11:04 AM ET
JURIST Guest Columnist Qiwei Chen, an LL.M. candidate from the University of Pittsburgh School of Law Class of 2013, discusses China's new leaders election and the current disputes on hukou, the household registration system...
On March 17, 2013, the National People's Congress (NPC), the highest state body and the unicameral legislative house in China, and the People's Political Consultative Conference (CPPCC), whose members represent various defined groups of society, ended their annual meeting in Beijing, China. The NPC and the CPPCC are the two most important political and legal meetings in China. The NPC meets for about two weeks each year at the same time as the CPPCC, usually in the spring. The NPC meets annually in March and is attended by more than 3,000 local delegates elected by the people. The combined sessions have been known as the "two meetings" in China.
It is worth noting that the NPC is not only a legal meeting in China, but also the main legislative body of China (the unicameral parliament). The Constitution of People's Republic of China has vested the NPC with great lawmaking powers. It has the power to revise the constitution and create major legal codes. Delegates of the NPC are from different fields and have different backgrounds. These delegates can make suggestions or give opinions on legislation. After the NPC meeting, the NPC Legislative Affairs Committee is the key group that is responsible for law drafting. Apart from this, the NPC also enacts laws and makes "decisions". Decisions may contain legal norms in the form of amendments or supplements to laws.
Furthermore, Article 79 of the PRC Constitution grants the NPC the power to elect the president and the vice president and to approve the appointment of the prime minister of the state council. This year's NPC was assigned a significant mission: to elect three of the new top leaders in China. Coincidentally, all of these leaders hold law-related degrees. President Xi Jinping earned a Ph.D. in laws from Tsinghua University. Premier Li Keqiang obtained his LL.B. from Peking University. Vice President Li Yuanchao obtained his doctoral degree in law from the Central Party School of the Central Committee of the Communist Party of China. In the past, most of the top governmental officials were scientists. For example, former Chinese President Hu Jintao was a hydraulic engineer before he became a politician. Likewise, former prime minister, Wen Jiabao, was a geomechanical engineer. This trend shows China's past national policy to encourage young people to study science, mathematics or engineering in college. Great emphasis was placed on science and technology as fundamental parts of the socio-economic development of the country as well as for national prestige. Such a goal resulted in China's de-emphasizing other areas, including legal education and the legal profession. This resulted in many defects rooted in the Chinese legal system that were always neglected in the past. Now that top leaders have legal backgrounds, the Chinese legal system will undergo reform in the near future.
Another important feature of this year's NPC session was that the Chinese hukou system needs to be deeply reformed as soon as possible. The hukou system is basically a household registration system, employed by the Chinese government as the oldest tool of population control. The local government has the right to make local hukou policies. They can issue a hukou booklet per family, recording all the information of each family members, such as names, birth dates, permanent addresses, martial status, education, death dates and other essential details. Also, the hukou booklet identifies the village, town or city to which each family member belongs. A child's hukou is determined by his or her parents' hukou rather than the child's birthplace. For example, if both parents' hukou are in city X, then the child's hukou is in X even if he or she is born in Shanghai. If one of the parent's hukou is in Shanghai while the other is in X, then the child can choose between the two. The hukou system is critically important in China because of the large number of people engaged in rural-urban migration. The 1954 PRC Constitution guaranteed citizens' right of free residential choice and migration. However, in the 1975 PRC Constitution, this article was deleted and was never recovered in any other version of the PRC Constitutions or amendments.
Also, the Chinese government uses the hukou system to identify citizen's education, employment and social welfare rights by where people belong. People enjoy social benefit based on the address in your hukou booklet. For example, if your address in your hukou booklet is Shanghai, China, then you have a Shanghai citizenship. You may enjoy the social benefit given by Shanghai government. People from underdeveloped areas in China always want to move to the big cities like Shanghai. However, it is hard for them to transfer their hukou from their original place to Shanghai because the Shanghai government is concerned about the limited land, education and job resources. It made strict hukou policies to avoid overpopulation.
The hukou system not only restricts people's fundamental right of free migration, but also determines whether people have equally access to social services. It is notorious for creating a dual economic structure dividing people into urban and countryside status. Urban people and countryside people enjoy different social benefits even in the same province. For instance, children of countryside people cannot go to schools in urban areas. Even if countryside people domicile in city, they cannot enjoy the medical insurance, unemployment insurance or retirement pension as city people do because they lack a city hukou. The hukou system constructs a solid wall between the city and countryside in China. It prevents the free flow of population, impeding the economic and social development in the country.
As usual, the premier delivered Report on the Work of the Government in the NPC session. This year's report was the last one in premier Wen's 10-year term. He called for efforts to advance urbanization "actively yet prudently" by speeding up reform of the hukou system:
Urbanization is a historic task in China's modernization drive, and urbanization and agricultural modernization complement each other. To advance urbanization, the government should register eligible rural workers as permanent urban residents in an orderly manner, and expand the coverage of basic public services in urban areas to migrant workers and other permanent residents.The Chinese government is trying to use the NPC's annual session as an opportunity to demonstrate the government's view on crucial legislative reforms to improve human rights protections. I truly hope that the new government leaders will deepen legal form and make people live better in China.
Qiwei Chen's legal experience includes internships with All Bright Law Offices and the Shanghai Civil Affairs Bureau.
Suggested citation: Qiwei Chen, 2013 National People's Congress of China: China's New Leadership Change and Hukou Policy Reform , JURIST - Dateline, Apr. 17, 2013, http://jurist.org/dateline/2013/04/qiwei-chen-china-reform.php
This article was prepared for publication by Fangxing Li, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at email@example.com
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The Laws Driving Mexico's 'Educational Reform' are Troubled From the Outset
April 16 2013, 2:04 PM ET
JURIST Guest Columnist Felipe Alberto Herrera, Northwestern Law School Class of 2013, discusses the effects of the recent educational reforms in Mexico...
Over the past several weeks, national education reform has become a sizzling topic of debate in Mexico. The debate climaxed with the February arrest of Elba Esther Gordillo, former head of Mexico's national teachers' union, on allegations of embezzlement. Gordillo's arrest is like a telenovela and an irresistible spectacle: the sums of money she is accused of stealing are staggering, as is the gawdiness of the items she acquired with it. There are even websites that will show you the California mansions and retail credit card bills she allegedly acquired over the years at the expense of Mexican students.
It is no surprise that Gordillo's arrest has drawn cyber-gawkers from both sides of the border, many of whom wonder whether or not Mexico finally "means business" when it comes to fighting corruption. Whether or not Mexico means business is especially important in the education context, because education is Mexican President Enrique Peña Nieto's first policy issue in his term after being elected last November. His victory also marks the return of the previously entrenched Institutional Revolutionary Party after a 12-year hiatus at the hands of the National Action Party. How Mexico reforms education can signal either a reversion to pre-2000 politics or, perhaps, a heartening stride away from corruption.
By looking at the law behind the reforms, it seems that the same politics that defined Mexico during the last century have returned. Specifically, a key piece of quasi-legislation called the Pacto Por México may give us a sense of the overall contours of education reform, and the seriousness of the new president's resolve. The pacto is important politically because it was Nieto's presidential platform. Its legal significance is even more important, considering that the document will form the legal basis and roadmap for changes to make reform. The drafters of the pacto moreover, assert that this document is itself a constitutional reform designed to bring equity and quality to Mexico's private and public schools.
The pacto's section on education calls for the following initiatives, among others:
- A centralized database of school, student and administrator information to "facilitate monitoring and communication" between education authorities schools. (Compromiso 7)
- Plenary authority to the National Education Evaluation Institute, which will implement comprehensive criteria for evaluating school progress and teacher standards. (Compromiso 8)
- Independent, decentralized (charter-like) governance over local schools. (Compromiso 9)
- An increase in the hours of the school day to "full time" (rather than the reigning model of two half-day sessions). (Compromiso 10)
- Laptops with wireless internet capability for all of the nation's fifth and sixth graders. (Compromiso 11)
- A national scholarship program that will provide a work-study program for the nation's lowest 40 percent income range of students in middle and high school. (Compromiso 15)
Critique of Education Provision in Pact
Just from this handful of provisions, it's apparent that education reform is unlikely in Mexico. For starters, the document sends mixed signals about the ultimate authority on education. On one hand, the provisions on governance signal a shift from micromanagement to one of independence and local discretion. At the same time, however, the pacto also contains conditions. These sorts of inconsistencies create confusion for the educator and the lawmaker alike. Another problem is the absence of any explanation as to the source or logic of these ideas. Borrowing language from constitutional and administrative law, it seems there is no rational basis to any of these provisions. This is an invitation for slow, arbitrary and capricious policy, and in the Mexican context, an open door for more corruption.
Perhaps most emblematic of this problem is the pacto's set of technology-heavy solutions. Why is it that fifth and sixth graders get these technologies, and yet no provisions of this type are made for students in other levels? Technology may be a good thing. In fact, Rupert Murdoch endorsed this approach in a recent editorial on the Steve Jobs Approach to Education Reform. The point is, however, that it's hard to ignore the attendant problems that can come with such an outsourcing of education to technology. Most problematic of all is how little the education provisions do in the way of prescribing how to create the critical infrastructure they prescribe. Where will the funds come from, for example, to endow the scholarship and work-study programs? How will it work? These sorts of questions will take many years and political battles to resolve, which will only stand in the way of a meaningful reform.
General Critique of the Pact
As a general matter, the pacto itself suffers from many of the same problems of scope, framing and vagueness as its education provisions. Its scope is overly ambitious. In addition to education, the document calls for sweeping reform in four other areas: employment and economic development, security and justice, transparency and corruption control and democratic governance. If successful then, this pacto would do just about as much as the New Deal, the Warren Court and Obama's second administration combined, in terms of changing the socio-legal and administrative landscape in Mexico. And this is all in a country with no real serious rule of law or toothy judiciary. Do we really believe in a document like this? Mexico's observers certainly do not. The pacto's education website attacks many valid critiques as "myths."
The pacto's overall framing is also troublesome for its reliance on malleable terms and conditions. Take for example, the compromiso language, which translates to a "promise," not a resolution or actual law. Sneaky framing negatively affects education in particular. For example, in section V of the pacto, which contains a table summary of all the education provisions, all but two of the compromisos are conditioned on the full implementation of the educational reforms on approval of the Reforma Hacendaria a reform of Mexico's revenue law. Not only then are the pacto's ideas lofty, ill-defined and arguably unattainable, they are also presented as a rotten carrot to bait the passage of other reforms in unrelated fields such as revenue and telecom.
All in all, it seems the pacto is a reform not of law, but rather of the use of social media and political theater. The pacto has also been touted as a roadmap for economic progress, and that it very well may be. A harbinger and roadmap for education reform however, it definitely is not.
As a budding lawyer of Mexican heritage, I truly want to believe that things like Gordillo's arrest and the Pacto por México signal Mexico's decided and long-awaited clamp-down on corruption. But the reality might be just the opposite. I will stay tuned and so should you for more from the legal drama unfolding in Mexico.
Felipe Alberto Herrera was a Fulbright Scholar at the London School of Economics and Political Science where he studied law, anthropology and society. He has since worked in areas of public finance and immigration services.
Suggested citation: Felipe Alberto Herrera, The Laws Driving Mexico's "Educational Reform" are Troubled From the Outset, JURIST - Dateline, Apr. 16, 2012, http://jurist.org/dateline/2013/04/felipe-herrera-education-reform.php
This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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India's New Ordinance for Women's Rights Falls Short
April 12 2013, 9:04 AM ET
JURIST Guest Columnist Kim Brancato, DePaul University College of Law Class of 2014, discusses the successes and failures of recent women's rights legislation in India...
As an observer at the fifty-fourth session of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee hearing a few weeks ago in Geneva, I witnessed the importance of access to justice to the international community. As access to justice for women has been recognized as a major obstacle to the protection of women's human rights throughout the world, the committee began the preliminary stages for adopting a general recommendation on this topic by requesting information from the international community. On February 18, there was a discussion amongst the Committee, state parties, NGOs, experts and even a personal account from a young Filipino woman struggling her way through the justice system after being a victim of rape. The committee will use this discussion when formulating the general recommendation on access to justice. As a state party to CEDAW, India should be striving to achieve these international standards.
In the wake of the gang-rape and death of a young woman in New Delhi this past December, India reformed its colonial-era laws governing violence against women. On February 3, 2013, the President of India, Pranab Mukherjee, signed the Criminal Law (Amendment) Ordinance [PDF] (the Ordinance). The Ordinance acts as an amendment to the Indian Penal Code, the Code of Criminal Procedure of 1973 [PDF] and the Indian Evidence Act of 1872.
Prominent human rights groups such as Amnesty International (AI) and Human Rights Watch (HRW) have criticized various aspects of the new law. These groups argue that India has only reformed the most archaic of its laws and has failed to meet international standards for women's rights.
Prior to amending the Ordinance, the Indian government established an advisory committee headed by former Indian Supreme Court Chief Justice J.S. Verma (the Verma Committee). Human rights NGOs argue that the government ignored the Verma Committee's key recommendations for strengthening the violence against women laws. For instance, one recommendation by the Verma Committee was to lower the age of sexual consent from 18 years old to 16. Just last year, India enacted the Protection of Children from Sexual Offenses Act [PDF] which increased the age of consent to 18. The Verma Committee urged the government to revert the age of consent back to 16 after public outcry, as the committee felt adolescents at age 18 were mature enough to consent. India should implement laws that help adolescents in the 16 to 18 year old age group to act in an informed and responsible manner rather than criminalizing and punishing their behavior.
In addition to criticizing the Indian government for failing to include the Verma Committee's key recommendations, human rights groups have also criticized various sections of the Ordinance. The major areas of concern include the act's failure to criminalize marital rape, imposing the same punishment for varying levels of crimes, immunity for police and armed services, conflating adult sex work with trafficking and criminalizing same-sex relations.
To begin, the Ordinance fails to recognize marital rape except in very limited cases where the spouses have been living separately. Section 375 of the Ordinance defines acts constituting sexual assault along with the manner and circumstances in which it may occur. There is only one exception to the entirety of section 375: "sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault." Therefore, a man may commit a violent act of sexual assault without the consent or against the will of his wife and not face any repercussions. In fact, the wife does not have any legal remedies available to her. This is especially an issue in a culture where forced and arranged marriages are not uncommon. Human rights groups have also framed this issue as discriminatory in that "the Ordinance discriminates against women based on their marital status and denies them equal protection before the law."
Next, the language of the Ordinance makes it difficult to draw a distinction between consensual adult prostitution and human trafficking. Section 370 of the Penal Code defines the offense of trafficking as recruiting, transporting, harboring, transferring or receiving a person by use of threats, force, abduction, fraud, power or inducement "for the purpose of exploitation." Explanation 1 of section 370 provides that "the expression 'exploitation' shall include prostitution" and explanation 2 further continues that "the consent of the victim is immaterial in the determination of the offense of trafficking." By including these explanations, the Ordinance conflates consensual prostitution with human trafficking, two very different concepts. On a basic level, prostitution is generally understood as sex between a willing buyer and a willing seller, whereas human trafficking is not consensual for the seller, at least initially.
Another major concern is punishments. Human rights groups are generally opposed to the death penalty as they view capital punishment as inhuman, irreversible and a deprivation of the right to life. In order to comply with international standards for human rights, the groups urge India to eliminate capital punishment as a possible sentence for sexual assault, or any other crime for that matter. In addition the same standard is articulated for both penetrative and non-penetrative offenses. Section 376 states that "whoever ... commits sexual assault shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine." Without a distinction drawn, perpetrators will face the same sentence for the act of inappropriate touching and acts of penetration.
Human rights groups are critical not only on what the Ordinance includes, but also what it omits. The Ordinance fails to mention Section 377 of the Penal Code, which criminalizes same-sex consensual adult relationships. Additionally, the Delhi High Court ruled [PDF] in 2009 that criminalizing consensual sex-same relationships was a violation of numerous constitutional guarantees a ruling parliament ignored when drafting the Ordinance. The Indian government had the opportunity to amend section 377 of the penal code through the Ordinance and chose not to.
It appears that India drafted the Ordinance hastily, as a reaction to public outcry after the December incident, rather than seeking consultation from human rights and women's rights organizations, thoughtfully engaging in dialogue within Parliament and fully considering the Verma Committee's recommendations.
The Indian government needs to address human rights organizations' concerns. In order to ensure real change, India should also address how this law will be implemented. With over half of India's population living in poverty [PDF], access to justice for women also needs to be addressed. Simply updating India's violence against women laws on paper, especially in the manner that the government has, is likely not enough to see significant change.
Kim Brancato is a Fellow and Scholarship Recipient at the International Human Rights Law Institute and a Title Curative Specialist at Fisher and Shapiro in Chicago.
Suggested citation: Kim Brancato, India's New Ordinance for Women's Rights Falls Short, JURIST - Dateline, Apr. 11, 2012, http://jurist.org/dateline/2013/03/kim-brancato-human-rights.php.
This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at email@example.com
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Crafting an Exception to the Mensing Ruling
April 11 2013, 9:04 AM ET
JURIST Guest Columnist, Daniel Perrone, St. John's University School of Law Class of 2013, discusses the implications of the US Supreme Court decision insulating generic drug manufacturers from liability against failure to warn claims...
In 2011, generic drugs accounted [PDF] for nearly 80 percent of the 3.7 billion prescriptions filled in the US. This staggering figure should come as no surprise considering the cost of a generic drug is, on average, 80 to 85 percent lower than its brand-name equivalent. However, the decision to consume a drug's cheaper, generic equivalent does come at a price. Thanks to the US Supreme Court's ruling in PLIVA, Inc. v. Mensing, consumers injured by generic drugs are being, and will continue to be, denied recourse against generic drug manufacturers for their failure to adequately and safely label their products.
In Mensing, two plaintiffs were prescribed the brand name drug Reglan. In its place, they both received and consumed metoclopramide, the generic equivalent of Reglan. Through the years, the warnings for the brand-name version of the drug, which were approved by the Food and Drug Administration (FDA), were strengthened and clarified several times. Nevertheless, the warnings for the generic version of the drug were, at all times, the same as those of the brand name. After taking the drug as prescribed for several years, both plaintiffs developed a severe neurological disorder called tardive dyskinesia. The plaintiffs sued the generic drug manufacturers, alleging that prolonged metoclopramide use caused their tardive dyskinesia. The plaintiffs concluded that the manufacturers were liable under state law for failing to provide adequate warning labels.
In a 5-4 decision, the Court found that state law conflicted with and was pre-empted by federal labeling requirements. The Court noted that while state law places an affirmative duty on all drug manufacturers to adequately and safely label their products, federal law places such a duty only on brand name drug manufacturers. That is, under federal law, generic drug manufacturers are not responsible for adequately and safely labeling their products. Instead, generic drug manufacturers are only responsible for ensuring that their products' warning labels are the same as their brand-name equivalent at all times. In other words, generic drug manufacturers are subject to an ongoing federal duty of "sameness." As a consequence, generic drug manufacturers cannot independently change their products' warning labels without violating federal law. This is true even if the generic drug's warning label is clearly inadequate and, thus, violates state law. Accordingly, the Court dismissed the case, noting that it was not lawful, under federal law, for the generic drug manufacturers to do what state law required of them; namely, to attach a safer label to their generic metoclopramide.
The Mensing rule, which essentially insulates generic drug manufacturers from liability against failure to warn claims, has its roots in the Hatch-Waxman Amendments (HWA). The HWA enables generic drugs to gain FDA approval by showing equivalence in substance and labeling to a reference-listed drug that has already been approved by the FDA. This eliminates the need for costly and lengthy clinical testing, thereby allowing manufacturers to develop drugs inexpensively, resulting in a reduced price for consumers.
Undoubtedly, the reduced price of generic drugs benefits numerous Americans each year, but at what cost? The individuals who rely on, and benefit from, the relatively affordable price of generic drugs the most those who cannot afford expensive brand-name drugs are the least capable to withstand an uncompensated injury suffered as a result of a manufacturer's failure to adequately and safely label its product. This leaves millions, if not billions, of Americans contemplating whether their decision, assuming they even have a choice, to save money now by purchasing generic drugs could lead to financial ruin down the line. All the while, generic drug manufacturers continue to reap endless monetary rewards without any fear of repercussion, as long as they comply with their ever so arduous duty of "sameness." Not to mention the fact that the Mensing ruling eliminates any incentive whatsoever for generic drug manufacturers to ensure the adequacy of their products' warning labels.
Taking all of this into account, the Mensing ruling seems to make little sense. The Court notes:
We recognize that from the perspective of Mensing, finding pre-emption here but not in Wyeth v. Levine makes little sense. Had Mensing and Demahy taken Reglan, the brand-name drug prescribed by their doctors, Wyeth would control and their lawsuits would not be pre-empted. But because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits.However, it makes even less sense when the brand-name and generic drug manufacturers are one and the same. To illustrate, in 2011, the FDA announced that women who used the birth control pills Yaz and Yasmin, or their generic equivalents, were 74 percent more likely to experience a blood clot compared to women who were using other birth control pills. Since that time, more than 12,000 lawsuits have been filed against Bayer the manufacturer of both the brand-name and generic birth control pills alleging that company failed to warn women of the enhanced risks associated with consuming its birth control pills. The Mensing ruling, under these circumstances, would ostensibly leave those women who consumed the generic versions of Bayer's Yaz and Yasmin without any recourse. Again, this makes little sense, especially since Bayer is the manufacturer of both the brand-name and generic birth control pills at issue.
To address this injustice, courts should craft an exception to the Mensing ruling and hold generic drug manufacturers liable for their failure to adequately and safely label their products where the brand-name and generic drug manufacturers are one and the same. In Mensing, the Court reasoned that it was impossible for the generic drug manufacturers to comply with their state law duty, which required them to strengthen their warning labels, without violating their federal duty of "sameness." That simply is not the case when the brand-name and generic drug manufacturers are the same entity. Returning to the above example, Bayer could have simultaneously strengthened the warning labels of both its brand-name and generic birth controls pills to render their use reasonably safe. Had Bayer done so, it would have complied with both its state law duty to adequately and safely label its birth control pills and its federal law duty of "sameness."
There is no denying the vital role generic drugs play in American society. They enable countless Americans, who cannot afford expensive brand-name drugs, to obtain the medication they so desperately need. Unfortunately, the Mensing ruling has dramatically increased the "cost" associated with generic drugs. The decision to insulate generic drug manufacturers from liability, despite their failure to adequately and safely label their products, is an injustice that disproportionately affects those who cannot afford to purchase expensive brand-name drugs just to preserve their right to receive compensation in the event they suffer a debilitating injury. That is why courts should craft an exception to the Mensing ruling that would hold generic drug manufacturers liable for their failure to adequately and safely label their products where the brand-name and generic drug manufacturers are one and the same.
Daniel Perrone is the Editor-in-Chief of the Journal of Civil Rights and Economic Development. His experience includes internships with Kramer, Dillof, Livingston & Moore, St. John's University School of Law's Elder Law Clinic and the New York State Supreme Court. He earned a Bachelor of Arts in political science from St. John's University in 2010. Currently, Perrone interns for the Honorable A. Kathleen Tomlinson in the US District Court for the Eastern District of New York.
Suggested citation: Daniel Perrone, Crafting an Exception to the Mensing Ruling, JURIST - Dateline, Apr. 11, 2013, http://jurist.org/dateline/2013/04/daniel-perrone-generic-drugs.php
This article was prepared for publication by Endia Vereen, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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An Analysis on Independent Reports: Uses, Reliability and Legality
April 08 2013, 11:04 AM ET
JURIST Guest Columnist Kathryn Young, University of Virginia School of Law Class of 2013, analyzes the uses, reliability and legality of independent reports in light of their increased uses in collegiate sports...
When sports scandals break, a common tool used by universities is the "independent report." To understand how these reports function, two recent examples can be illustrative: the Freeh report and the Martin report.
The Freeh report [PDF] was commissioned by Pennsylvania State University ("Penn State") after the Jerry Sandusky child abuse allegations. Former FBI Director Louis Freeh and his law firm compiled the report with the help of a special investigative counsel. Freeh investigated four Penn State administrators: University President Graham Spanier, Athletic Director Timothy Curley, late Head Football Coach Joseph Paterno and Senior Vice-President Gary Shultz. The report's goal was to determine what knowledge these individuals had of the alleged child abuse and what steps they took to prevent future abuse.
The report concluded:
The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky's child victims ... These men concealed Sandusky's activities from the Board of Trustees, the University community and authorities.The report cited emails between the leaders regarding these allegations and their continued acceptance of Sandusky as a Penn State figure, including his use of university facilities. The latter charge is important because multiple victims alleged that their assaults occurred in the locker room showers on campus. Criminal charges resulted out of this conduct. The school also received strict sanctions from the National Collegiate Athletic Administration (NCAA). Public backlash occurred almost immediately against both the University and the individuals involved, particularly the previously-respected Paterno. The whole scandal cost Penn State $41 million, including the $8.1 million that generating the Freeh report cost.
The Martin report [PDF] was commissioned by the University of North Carolina after questions were raised about the integrity of certain classes. Some courses in the African American studies department (AFAM) were "no-show" classes, because they did not require attendance or had unauthorized grade changes. The school was concerned because of previous athletic scandals, and wanted to ensure that these AFAM classes did not contain disproportionate amounts of athletes. Former North Carolina Governor Jim Martin and consulting firm Baker Tilly compiled the report. The report concluded that the problems were isolated within the AFAM department, and specifically in the unethical behavior of two administrators. The report cost the University of North Carolina at Chapel Hill Foundation $490,000.
What Makes These Reports Independent?
The report investigators in both of these cases stress their independence. For the Freeh report, this meant that although the school sponsored the report none of the Special Investigative Council (SIC) members either attended or had a professional relationship with Penn State and that the SIC consisted of diverse members with extensive investigative backgrounds. It also stressed that "no one is above scrutiny...[the SIC had] complete rein to follow any lead, to look into every corner of the University to get to the bottom of what happened."
The Martin report contained similar language, stating that the review team worked "independently from University leadership and staff but with their full cooperation." It explained, "we did not accept any evidence or viewpoints at face value and performed procedures to corroborate the accounts given and assess the completeness of the information provided."
Who Uses These Reports?
Once these reports are public, there are a number of bodies that may use the information provided in the report. Since the Sandusky allegations had many affected parties, the Freeh report was widely used as proof of the Penn State administrators' liability. Most notably, the NCAA cited the report in support of the extensive sanctions the organization levied on the University.
In court, the obvious cases have cited the report: the civil cases on behalf of Sandusky's victims raised against Sandusky and Penn State; the case of Pennsylvania v. NCAA, in which both sides cite the report in their motions; and the Pennsylvania Manufacturer's Association Insurance Company's motion in support of their refusal to fund Penn State's Sandusky-related expenses.
There are more surprising cases that cite the report as well. In Mann v. National Review [PDF], a meteorologist cites the report in a defamation case. Michael Mann alleges that climate change detractors used the report as an excuse to impugn Mann's name further, "evidently on the theory that a different investigative panel of the university had cleared Dr. Mann of misconduct." In Ochoa v. Rubin, the writ for certiorari claims the pattern of cover up in that case mirrors the Penn State cover up, and uses the Freeh report to prove as much.
The Freeh report prompted discussion on related topics, including child abuse law changes, athletic departments sexual harassment policies and wrongful obedience in employment contexts.
The Martin report was less frequently utilized in other areas, particularly because it found no athletic-specific violations. The school announced that it sent the report to the NCAA, but no further sanctions were imposed by that organization.
How Reliable Are These Reports?
Both the Martin and the Freeh reports have been the subject of public allegations of untruthfulness. The Paterno family, in response to the Freeh report, most notably compiled their own report with the help of former Attorney General Dick Thornburgh. Thornburgh commented on the Freeh report: "The experts determined that the conclusions of the (university) report are based on raw speculation and unsupported opinion not facts and evidence." Freeh, in response, criticized the self-serving nature of the Paterno family's analysis.
The Martin report mainly received criticism from local news media, in addition to a few faculty members. The Raleigh News & Observer published numerous pieces questioning the report. These were published as recently as March 12, 2013, in an editorial titled "UNC-CH paid heavily to review and spin the scandal." Martin was vigilant in responding to critics on an individual basis, attempting to debunk incorrect interpretations. No official counter-report was conducted.
Whether or not these reports are more accurate than their detractors, there are a certain number of considerations in determining a report's reliability, including methodology, bias and uncooperative witnesses.
While these reports are aimed to be independent, it is possible that some bias still remains. Some investigators may try to increase their own fame by finding notable results, or may be biased toward another involved party, if not the school. It is important to consider all possibilities before choosing an independent reporter.
A school may also want to review the independent report's methodology to ensure a wide scope. To avoid criticism, schools should ensure they are revealing and encouraging the review of all pertinent documents. The Freeh report used "over 430 interviews of key University personnel and other knowledgeable individuals...[and] over 3.5 million pieces of pertinent electronic data and documents." They also set up a hotline and an email address for any individuals to share relevant information, and cooperated with law enforcement and government agencies. The Martin report had a similar methodology, but focused on meeting minutes to determine at what depth the issue of the AFAM classes was discussed.
Finally, there may be uncooperative witnesses. Although schools and investigators cannot do much on this front, it is an important aspect to consider. Many times, key witnesses may be unwilling to speak, probably due to a lawyer's advice. As long as the investigators are aware of this possibility and notify the report's readers, they should not receive excessive criticism on this front.
What Are Other Legal Issues Surrounding Independent Reports?
Schools and investigators should be aware of three further potential liabilities regarding independent reports. They should watch out that they do no not violate attorney-client privilege, employee privacy or confidentiality or leave the investigator open to legal malpractice.
These independent reports are sure to be a permanent fixture in the sports compliance world. With schools and the NCAA lacking the necessary resources and impartiality, independent investigations will be necessary in many potential rule violations. With these keys in mind, hopefully they will be successful at detecting, punishing, and deterring future rule breakers.
Kathryn Young is a Programs Editor for the Virginia Sports and Entertainment Law Journal and is President of the Sports Law Society. She completed her undergraduate studies in Political Science and History at the University of North Carolina Chapel Hill.
Suggested citation: Kathryn Young, An Analysis on Independent Reports: Uses, Reliability and Legality, JURIST - Dateline, Apr. 8, 2013, http://jurist.org/dateline/2013/04/kathryn-young-independent-reports.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at email@example.com
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The Role of Public Policy in the Suspicionless Drug Testing of Welfare Applicants
April 01 2013, 12:04 PM ET
JURIST Guest Columnist John McAvoy, Widener University School of Law Class of 2013, explains how public policy affected the outcome of Lebron v. Wilkins...
The Power of Public Policy
The notion of drug testing welfare recipients has recently become a highly publicized and debated issue. Newspapers and blogs across the country have helped fuel this debate by examining the policy considerations, which lend either strong support or extreme opposition to the legislation. The American people have expressed strong opinions on the topic via social media outlets. Recently, a Facebook "chain meme" has brought even more attention to the proposed legislation. The meme has helped turn legislation affecting a relatively small percentage of the American population into a hot-button issue. Legislators in three dozen states have responded in the past year by proposing drug testing for people receiving welfare benefits.
Supporters of such legislation believe it is nothing more than one additional eligibility requirement for the receipt of public funds. For many Americans, it is impossible to understand why people who work for their money are required to take drug tests, while those getting handouts from the government are not. On the other hand, critics believe such laws not only single out but discriminate against the poor.
Constitutional Framework: The Fourth Amendment and Drug Testing
Challengers to laws requiring all applicants for welfare benefits to submit to a suspicionless drug test believe that the legislation violates the Fourth Amendment's prohibition on unreasonable searches and seizures. The US Supreme Court has chiseled out specific exceptions to this once overbroad individual right against unreasonable searches and seizures. The specific exception relevant to suspicionless drug testing is based on the government's "special need" for the search or seizure.
Under the "special needs exception," if a government proposal is able to satisfy a five-part standard it falls within the Fourth Amendment's ambit and is therefore constitutional. Specifically, the exception requires that: (1) the government action in question must be considered a "search" within the context of the Fourth Amendment; (2) the search must be reasonable; (3) the extent of the invasion on the individual's privacy must be minimal; (4) the governmental interest served by the proposal must be legitimate; and (5) the privacy interest of the individual must be balanced against the government interest to ultimately decide whether the search is constitutional.
How Public Policy is Framing the Constitutional Analysis
In October 2011, the constitutionality of Florida's legislation mandating suspicionless drug testing was examined in federal district court. Florida is considered to be at the forefront of such legislation. Public policy was examined under the fourth prong of the special needs exception; namely, the government's asserted interest. In Lebron v. Wilkins, the American Civil Liberties Union (ACLU) brought suit hoping to block the implementation of Florida's new law. The plaintiff, who claimed to never have used illegal drugs, refused to submit to urinalysis because he believed that this requirement was unreasonable when there was no reason to believe that he used drugs. Judge Mary Scriven agreed and issued a temporary injunction blocking the implementation of the law.
Lebron turned on whether the governmental objectives advanced were "substantial." The state introduced five public interests closely tied to the federal welfare statute, known as Temporary Cash Assistance for Needy Families (TANF): (1) ensuring that TANF funds are used for their dedicated purpose; (2) protecting children by ensuring that its funds are used to feed children and not feed parental drug habits; (3) ensuring that funds are used in accord with TANF's goal of getting beneficiaries back to work; (4) ensuring that children are kept off drugs; and (5) ensuring public policy. Despite the fact that each of these objectives standing alone could potentially be enough to meet the special needs standard, Scriven rejected the state's arguments, which she characterized as "laudable" but lacking presence in Florida's law.
Florida's law has not only met but exceeded the requirements of the special needs exception. The first special need advocated by the state and harped on in Scriven's opinion involves the objective of combating drug use among people receiving governmental assistance. To support this objective, the state introduced a plethora of studies and statistics indicating that welfare recipients are more likely to abuse controlled substances. This "objective" amounts to little more than a policy argument to which Scriven happens to be opposed [PDF]: "[T]hose welfare recipients who screened and tested positive for the use of illicit substances were found to be just as likely to work and just as likely to use social service benefits as those who screened and tested negative." Scriven's opinion dwelled on the first special need objective advanced by the state and ignored the remaining arguments offered for why states may wish to ensure that welfare recipients are drug free.
The four remaining special needs arguments are significantly less controversial, etched not in discussions of class bias or discrimination but in congressional intent. TANF reform focuses on two key concepts: protecting children and empowering parents to get back on their feet. It is well documented that drug abuse by parents contributes to child abuse and neglect, as well as a propensity for their children to abuse drugs. If the government hands money over to a parent for a child's protection without first qualifying that the child is in the hands of a sober and suitable parent, then the government is ignoring the very purpose of TANF assistance. Moreover, the Florida law at issue is also consistent with the second major objective of TANF and the third special need offered by the state: getting parents back to work. The government does not hand out such money unconditionally; instead, in an effort to better their current situations, parents are required to seek employment. Given that roughly 84 percent of employers require some form of drug testing, the likelihood of a drug-using parent getting a job is poor. A mandatory suspicionless drug test is just another way the government assures that parents are holding up their end of the bargain.
Finally, the fourth and fifth interests asserted by the government are very closely related with TANF requirements which aim to keep children safe. Statistics [PDF] show that children who grow up in homes with parents who are addicted to drugs are in the highest risk group to become future drug addicts. Collectively, the interests asserted by Florida are more than reasonable and substantial under the Fourth Amendment. Unfortunately, the fact that Scriven's opinion was grounded in public policy has created an unnecessary hurdle.
The Disconnect: Why Suspicionless Drug Testing Efforts Miss the Point
Welfare benefits, especially given the current economic crisis, are a wonderful tool for helping applicants who are down on their luck get back on their feet. Nevertheless, more can and should be done to assure TANF is used for its intended purpose. The majority of government programs are focused on making poverty more comfortable, while helping the poor escape poverty is the only way to make them more self-sufficient. TANF objectives are much better served by educating the poor regarding birth control, the costs associated with child rearing and the importance of finishing school (or at the very least obtaining a GED).
When policy arguments on both sides of the spectrum are ignored the laws can be seen for what they truly are: an extension of the TANF reform initiated by US President Bill Clinton. That program was aimed at helping Americans get off drugs and empowering parents to improve their familial situation. When tax dollars are undoubtedly feeding children not habits the government can reinvest that money in helping those that are truly down on their luck in America.
John McAvoy is a member of the Widener Law Review. His work experience includes the Verterans Law Clinic, Tighe & Cottrell, P.A., the Delaware Civil Law Clinic and Lamb McErlane, PC.
Suggested citation: John McAvoy, The Role of Public Policy in the Suspicionless Drug Testing of Welfare Applicants, JURIST - Dateline, Apr. 1, 2013, http://jurist.org/dateline/2013/04/john-mcavoy-drug-testing.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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