25 5 / 2012
Groupon Voucher Settlement
Who else got this and has no idea what it means?
I got it but I know what it means!
Do you have specific questions or just want a general overview? Law for the People, at your service!
17 5 / 2012
A Choice You Shouldn’t Have to Make
Congressman Maintains It Should Be Legal To Fire Someone For Being Gay
The crux of his argument is that being gay is a choice - and something a person can change - and that therefore that person should not be protected from workplace discrimination.
Now, despite the fact that “being gay is a choice” is a ridiculously stupid and untrue statement, I’m going to go with that point for argument’s sake and ask the logical follow-ups to that question:
Congressman, why do you think it should be legal to discriminate or fire someone from their workplace for what they choose to do in their private sex life? Should employers be able to discriminate or fire someone for engaging in premarital sex? What about for non-engagement, aka chastity? How far should an employer go to gather evidence for these accusations of personal sexual activity?
The non-argument of the choice of personal sexuality aside, why do you think it’s a viable argument that your employer should be able to have any say or control of your personal life outside of the workplace? Does this extend to all aspects of someone’s relationship? Can you be fired because your boss thinks your dating the wrong person? Or dating a black guy? What about religion - that’s a choice too. Can you be fired for being - oh, I don’t know - Christian?
If anything, I think you’re making an even dumber and less sensical argument to try and cover up your own biases.
I’m serious though; I’d like answers to the above, because they’re the only logical extensions of his argument, and if he’s actually being honest here, it’s perhaps even more disturbing than him just being a homophobic jackass.
In my constitutional law class, so many (ha!) years ago, we talked about protected categories like this: legal distinctions based on certain categories are reviewed under heightened levels of scrutiny because they are based on things that cannot be changed … or based on things that are so fundamental to a person’s identity that even if the person has a choice, they should not be forced to make a change.
And so, when spytap asks if you could fire someone for having a romantic partner who is a person of another race or for having a particular religion, he’s right on target. These kinds of things merit legal protection because we as a society believe these things are fundamental to a sense of self and well being. And we protect these categories within certain kinds of activities, like employment and education, because they, too, are fundamental, and we believe a person should not be required to choose between one or the other of these two fundamentals.
In other words, we think you shouldn’t have to choose, for example, between whether you keep your religion and whether you can keep your job.
The ‘room for debate’ relates to what is fundamental: what activities — where do we protect — and what characteristics — what do we protect. The argument spytap makes, which I agree with, is you shouldn’t have to choose between keeping your same-sex sexual identity and keeping your job. But the opposing argument is less that you should have to choose, and more that a same-sex sexual identity is sinful.
It’s difficult to find common ground on the question of what is “fundamental” when large numbers of people take for granted that something is, while others call it sin. But those categories talk past each other. Something can be “sin” and still be legal. Something can be “sin,” and it can still be unacceptable to make legal distinctions about a person on its account. (If I were a law professor, here’s where I’d start posing hypotheticals : What about divorce? Could you make it illegal to be greedy?)
But since I can’t lead you down a rabbit trail of questions, I’ll make do with this illustration I recently found in an old Encyclopedia Britannica:
Another difficulty is the difference between a characteristic and its concrete manifestations. Religious beliefs may be fundamental, but what about all of a religion’s particular practices? Do we permit them just because they are “religious”? No. Sometimes we say, regardless of your beliefs, you cannot do a particular thing, not here, not now, not like this.
I’m a Christian, so I’ll pick on my own religion. You can’t fire someone for being Christian. But what if that person, in their Christian piety, frequently attends all night prayer meetings and conducts multi-day fasts, and as a result, frequently falls asleep at their job and represents the company poorly with clients? Can you fire them for doing the job poorly, even if the reason for doing the job poorly relates to a protected characteristic? How would this line of questioning work with other kinds of protected characteristics? What is the role of choice here?
I guess I’ve gone down the professorial rabbit trail after all. Class dismissed … for now.
23 4 / 2012
Child sex trafficking victims receive money from sale of former brothel
In one of the first cases nationwide to provide such restitution, a federal judge in Texas recently ruled that the victims would benefit from the sale of the traffickers’ “ramshackle real estate empire,” 10 buildings and lots valued at just over $600,000.
The funds will be divided equally among five underage victims … but older women commercially sexually exploited in the same brothels are not eligible for assistance:
[The judge] excluded nine other women in their 20s and 30s from benefiting in his decision, though federal officials had argued they too had been beaten, threatened and used by the same criminal group. [The judge] said he was unable to determine how much each woman had collected in cash as a prostitute - willing or not.
“Some of them may have had horrendous experiences, incredible pain and economic deprivation - others may have profited substantially - I have no way of determining that,” declared [the judge], who said he was troubled by evidence that some government “victims” married or had children by traffickers.
Part of this is cool: trafficking victims need money to start a new life; traffickers have been profiting off of their victims. It seems just to provide funds for victims out of the fruits of traffickers’ ill-gotten gains.
But the judge’s reticence to view the older women as genuine victims is troubling.
He cites the difficulty of determining if women involved made a profit as a prostitute but that seems like a smokescreen for several reasons. First, the funds for the underage children are being divided equally, not according to how much the children worked or made. Second, the judge could assess financial gains the way evidence is always assessed in court: through a combination of testimony and documentation.
Finally, what does income from prostitution have to do with the question of restitution? Imagine a woman on another job claiming she was sexually harassed by a supervisor. Would a damage award be docked because she also collected a salary? Even if we view prostitution as work and the pimps as supervisors, the women involved allege beatings and threats.
The real problem, however, is far more insidious. The implication is that older women involved in prostitution aren’t trafficking victims. Older women must be there by choice, so there is nothing for which they require restitution. I can’t speak for these particular women; I don’t know their story. But statistically, this is a lie.
It is well documented that the vast majority of women in prostitution are poor, homeless, and have already suffered violence and abuse throughout their life… . Up to 70% of women enter prostitution before age 18 and the global average age of entry into prostitution is only 13–14 years old.
— End Violence Against Women Prostitution Fact Sheet
The judge’s impulse to take special care of minors isn’t unwarranted. After all, if a girl enters prostitution at age 13 or 14, how much is this a free choice? In the US, we call sex with a minor statutory rape because we view children as having an inability to consent. Likewise, trafficking of a child is per se severe, and traffickers of children face harsher punishments.
But if a girl enters prostitution at age 13, she doesn’t magically become instantly capable of beginning a new life when she reaches 18.
And regardless of a woman’s age, if she’s being coerced into having sex for money, it’s trafficking. It’s not ok just because she is 18.
The Polaris Project describes “pimp culture” as (a far cry from chains & fancy cars):
… a complex relationship between a male pimp and one or more women and/or girls. In this relationship, the pimp wields complete control and domination and induces commercial sex acts in order to make money. The pimp attains authoritative levels of control and obedience through a combination of intense manipulation and feigned affection, brutal violence, and verbal, psychological, and/or emotional abuse. In the pimp relationship, the pimp is motivated primarily by the pursuit of money. He keeps all the money from the commercial sex acts of the women and girls he controls and prides himself on achieving higher and higher levels of blind obedience.
In other words, pimps create a controlling environment that strips a trafficked person of autonomy and makes it difficult to see clearly or to leave.
And as the Polaris Project explains, a trafficked person may view the person abusing her as her man or protector: “Pimps manipulate their victims beginning with an initial period of false love and feigned affection. This initial period is critical to attaining long-term mind-control.” See also the Polaris Project’s list of reasons trafficking victims don’t leave their situation (page 5) and this survivor’s account of why victims may stay with their abusers.
The judge also objected that some women married or had children by their pimps. But as noted above, pimping often begins with feigned affection, and it’s not uncommon for trafficking to devolve from a relationship the woman believes is genuine. Shouldn’t the abuse of an intimate relationship make pimping more problematic, and not less so? And children may be the product of such a relationship — or they may be the result of rape.
In sum, this decision is a mixed blessing. I’m thrilled for the five underage victims, and thrilled at the prospect of inroads for a new way to benefit trafficking victims. It’s only logical to support victims with funds from the people who made money off selling human being like commodities. But this benefit shouldn’t be limited by an arbitrary age cap. It sends the wrong message: that once a person turns 18, she stops being a victim and starts being a bad girl, undeserving of support — and that is indefensible.
19 4 / 2012
Corporations are people, my friend - take 3
In case you missed it, here’s the post reviewing oral arguments on the case discussed in earlier today.
Way back in October we wrote about Romney’s infamous remark, noting that in some circumstances, there is good reason to consider corporations “people.” For example, as Peter Weiss, a vice president of the Center for Constitutional Rights and writing in the NY Times, so aptly put it: Should Corporations Have More Leeway to Kill Than People Do?
Today the Supreme Court hears arguments on one of two cases examining when a corporation should be held liable for the same things as regular human beings. As we said in October:
Kiobel v. Royal Dutch Petroleum involves a claim under the Alien Tort Statute (ATS) of 1789. ATS gives courts power to hear tort claims of non-citizens for “violations of the law of nations” by non-citizen bad guys. It’s a weird law. In fact, the Second Circuit called it “unlike any other in American law and of a kind apparently unknown to any other legal system in the world.” (It’s evolution in US law is a fascinating story, involving Paraguay and piracy, but that’s for another post.)
Read the original post for more info on Kiobel and Mohamad v. Rajoub, the other case at issue.
And for a succinct and first hand account of Paraguay, piracy, and the witty legal maneuvering behind the ATS (and more on Kiobel), check out Weiss’s editorial.
What’s at stake? As Weiss describes:
If the Supreme Court rules in favor of Royal Dutch Shell and against the plaintiffs, multinational corporations — particularly in mining and other extractive industries — could draw the lesson that it is now safer to forge alliances with autocratic regimes that have poor human rights records because they will not be judged culpable in the way individuals can be.
19 4 / 2012
Corporations are people, my friend - take 3
Last fall, the Supreme Court granted cert in a pair of cases asking whether entities are “people” when it comes to accountability (we recapped the oral arguments a few weeks ago).
In a not-so-shocking move, the Supreme Court issued an opinion yesterday in one of those cases, Mohamad v. Palestinian Authority, with a resounding, unanimous, no.
Of course, Supreme Court isn’t issuing a tome on corporations’ moral obligations. They’re deciding a specific case, interpreting a specific statute. The statute here, the Torture Victims Protection Act (TVPA), authorizes a cause of action against an “individual” — not a “group,” “organization,” “entity,” or “corporation.” (Or “mafia family,” “hippie co-op,” “stuffed teddy bear,” or “raging wildebeest,” for that matter.)
Saying a law “authorizes a cause of action against an individual” describes who can bring a case (standing) and who can be sued for doing whatever the law prohibits. Determining whether a person has standing and whether the person being sued is subject to the relevant law are threshold questions a court must decide before it ever moves to the meat of what actually happened (the merits).
Here, plaintiff tried to bring a case under the TVPA against the Palestine Liberation Organization (PLO) for allegedly imprisoning, torturing and killing a US citizen. (The title of this post is a bit disingenuous, as in this case, defendant is not a corporation.) But as noted, the TVPA authorizes suit against “an individual.” The reasoning was a beacon of straightforwardness: Individual means natural person. The PLO is an organization, not an individual. Therefore, no dice.
09 4 / 2012
What's at stake with the Supreme Court's pending decision on the Affordable Care Act?
Apropos to last week’s piece on how we should think about the Constitutionality of the ACA, here’s a compact little burn by the NY Times editorial board.
Read the whole thing, but in sum, here’s a bummer of a sentence for you:
If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy — and the millions of Americans who don’t have insurance — will pay a very heavy price.
06 4 / 2012
The UN in a Time of Cholera
Last weekend the NY Times published a superb (and long) piece on an outbreak of cholera in Haiti. (This post is mostly a summary of highlights from the piece, so you could skip the few minutes you’d spend reading this and delve into the thing itself. We won’t be offended.)
If the developed world’s lukewarm response to the outbreak is any indication, there’s a part of us that hears about something we know we should view as a tragedy and nonetheless reacts with indifference. “So? What else is new? It’s always something going on down there.”
Haiti has suffered what seems like more than its fair share of trauma. But that doesn’t make added trauma any less painful. One vignette describes the sorrow of victims’ families:
Yverose Fleury[, a victim’s mother,] wears a cloth binding her midsection in an effort to contain her sorrow. She said neighbors had ripped up her son’s photograph because she keened over it incessantly.
“Nothing is the same with us after the cholera,” she said. “My husband is weak and cannot work, my remaining son has a mass on his neck, my little daughter can’t hold down food, and I am sick in the head.”
The tendency to see problems in a place like Haiti as less-tragic matters, among other reasons, because of how it tempers the sense of urgency in responding. There was a chance to contain the epidemic during the last dry season, and there was money remaining from funds donated for earthquake reconstruction. But the response was inadequate, and now, going into the rainy season, the epidemic will likely expand.
Dr. Paul Farmer, who has a long history of working in Haiti and advocating for health care for poor Haitians defined by quality and not cost effectiveness, calls for the developed world “to respond to cholera in Haiti as it would at home.”
His organization initially requested potable water be trucked into the Haitian heartland so that a traumatized population would not have to filter and treat its water. Purification tablets were delivered instead because it was considered cheaper and simpler, he said…
Dr. Farmer said he kept thinking about the many water stations at the New York City Marathon: “That’s for a sport, for heaven’s sake. You’re telling me the giant humanitarian aid machine can’t do that in an epidemic?”
But the article’s central point is less about the proper response than the cause, and this is where it gets truly devastating. Cholera in Haiti was not inevitable. As the article points out, Haiti does not have a history of cholera. After the earthquake, cholera was one thing people didn’t worry about.
But Nepal has a history of cholera. And Nepal sent soldiers for a UN mission. And there were questionable sewage disposal practices related to that mission. And suddenly, apparently out of nowhere, a strain of cholera developed in Haiti nearly identical to that in Nepal.
And this is where the story connects to this website’s theme, which is, after all, not healthcare or global injustice writ large, but the law.
Upon the finding that the Haitian strain mirrored Nepalese strains of cholera, “a legal claim was submitted to the United Nations in November on behalf of Haiti’s cholera victims.”
Anticipating compensation, thousands flooded treatment centers seeking medical certificates attesting to their cholera. Doctors Without Borders set up a special unit to process the requests, and has asked the United Nations to clarify whether a legal proceeding is even moving forward.
The victims’ lawyers have asked the United Nations to establish a commission to hear the claim. Mr. Banbury of the United Nations said the claim is “under serious review by the legal affairs department.”
“The U.N.’s choice is simple,” the lawyers wrote in a legal article. “It can rise to the occasion and demonstrate that the rule of law protects the rights of poor Haitians against one of the world’s most powerful institutions, or it can shrink from the challenge and demonstrate that once again in Haiti, ‘might makes right.’ ”
As Dr. Farmer suggests, perhaps the way to think about how the world should respond to Haiti’s claims is to consider an alternative: How would we press for responsibility if the U.N.’s emissaries (even unwittingly) unleashed a previously unknown deadly virus in Manhattan?
04 4 / 2012
Mitt Romney’s “corporations are people” line finally inspires sit-com writers.
IT COMES FULL CIRCLE. But is this a joke on Romney or Citizens United?
Permalink 5 notes
03 4 / 2012
How should we decide if the Affordable Care Act is Constitutional?
Re: the previous post, the quote by Dahlia Lithwick about the Affordable Care Act:
(1) Freedom is a tricky word.
Freedom is often defined by the right in terms of being left alone by the government (as Lithwick alludes to) but that is only part of freedom.
Freedom also means opportunity, freedom to not simply be not-coerced, but freedom to actually do things a person wants to do. Classically these are referred to as negative and positive freedom — freedom from (coercion), and freedom to (act). How valuable is non-coercion without the complementary freedom to take control of one’s life and realize one’s needs, desires, and dreams?
The problem is these two complementary ideals can conflict in implementation. Sometimes one kind of freedom involves a limited or temporary stripping of the other kind of freedom. Specifically, sometimes coercion actually increases “net freedom” because it enables greater possibility. It’s not unlike parents and teachers imposing “you’ll thank me for this later” rules: By taking away someone’s freedom to eat only junk food and imposing a balanced diet, you can increase their freedom to move in a healthy body. By taking away someone’s freedom to watch TV for 10 hours a day and imposing homework, you can increase their freedom to have a lively mind.
It would be great if we always did what was ultimately in our long-term interest without external pressure, but we’ve probably all failed at enough New Year’s resolutions to know it is rarely that easy. Nobody telling you what to do may not actually allow you to do what you want. Sometimes it just pushes you to the path of least resistance.
But ultimately the government isn’t our parent. And when the “nanny-state”-hating right opposes the ACA, they’re railing against its supposed attempts to act as one. But what if the ACA’s isn’t ultimately about “freedom”?
(2) What if it’s really about commerce?
This weekend, James Stewart (who has lately dished out a clever and timely series on taxes) wrote a smart piece on the debate over the ACA and where he sees it fitting in the bigger picture of American law.
And that place is not philosophical musings on the nature of liberty, but 200 years of well-settled jurisprudence around the commerce clause.
03 4 / 2012
In anticipation of this afternoon’s post (coming soon!), we present you with one of our favorite clauses.
