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Law Student Connection - August 14, 2013

By Megan O'Toole posted 11-06-2013 02:46 PM

  

Letter From The Editor

Dear Readers:

If you're a baseball fan, a fisherman, an astronomer, or a devoted reader of The Old Farmer's Almanac, you've probably heard of the "Dog Days Of Summer." Typically, this is the phrase used to describe the hottest and muggiest days of the season, the days when eggs can fry on the sidewalk, cookies can bake on your roof, and it's just too hot to do anything but sit and watch it all happen.

Yet the "Dog Days Of Summer" have not plagued The Law Student Connection. New York has been hit by heat waives and rainstorms this summer, but you can rest assured that our erstwhile contributors have not been deterred by the weather or anything else.

In fact, this is one of our most versatile lineups of topics to date, brought to you by writers from Albany Law School, University of Buffalo Law School, New York Law School, and St. John's University School of Law. We have a discussion of legal controversies surrounding breastfeeding, described in an article by Jessica Tomkiell, exploring issues from the workplace to society as a whole. We take to the seas withKathryn Carroll's exploration of laws and policies regarding piracy -- both the harmful act itself and its effect on seafarers around the globe.

Elisabeth Schiffbauer examines the tragic Tazreen Fashions factory fire in Bangladesh, studying the current international laws -- and lack thereof -- regarding the conditions of garment industry workers. Another tragedy, the senseless shooting at Sandy Hook Elementary School, occurred exactly eight months ago today. We bring you an examination of the combustible debate over the "right to keep and bear arms" in America, including a call to amend the very amendment at the center of this discussion.

Turning to legal ethics, Mindy F. VanLeuvan studies the phenomenon of cloud computing, and looks at potential ethical issues posed by this time-saving process. Finally, Peter T. Nguyen brings you a thorough look at the Military Extraterritorial Jurisdiction Act, including proposed legislation that may finally close the problematic "jurisdictional gap" created by this act.

So don't let the "Dog Days Of Summer" get you down. With these articles to stimulate you, it's as if the summer just began yesterday. Enjoy.

Sincerely,

Benjamin Pomerance
Editor-In-Chief

"Breastfeeding: Inadequate Laws Still Creating Common Struggles For Nursing Mothers" by Jessica Tomkiell


Breastfeeding: Inadequate Laws Still Creating Common Struggles For Nursing Mothers

by Jessica Tomkiell

Breastfeeding is the act of nourishing an infant with milk that is produced from a woman's body. Lara M. Gardner, A Step Toward True Equality in the Workplace Requiring Employer Accommodation for Breastfeeding Women, 17 WIS. WOMEN'S L.J. 259, 261 (2002). Pregnant women have become bombarded with information about how "Breast is Best". E.g., U.S. Dep't of Health & Human Services, Centers for Disease Control and Prevention (2006) at 2-3 (Feb. 2, 2013), and all of the "uncontested health benefits", Id. at 2-3, of breastfeeding before the baby is born. Even the American Academy of Pediatrics recommends an infant be exclusively breastfed for their first six months of life, and if possible up to their first birthday due to the benefits breast milk can give to the child. Centers for Disease Control and Prevention: Morbidity and Mortality Weekly Report, Mar. 26, 2010.

It may be a very challenging choice for a mother to make, whether to naturally breastfeed her child or formula feed instead. If it is not a hard enough choice to choose between breast milk and formula, those who choose to breastfeed will encounter additional difficulties. These struggles can range anywhere from a lack of family support, social pressures, problems returning to work, or a combination of these factors. Moreover, a mother may feel incriminated when she is trying to breastfeed, especially in public. This is in complete opposition to the encouragement of mothers to breastfeed by the government, media, and doctors. Danielle M. Shelton, When Private Goes Public: Legal Protection for Women Who Breastfeed in Public and at Work, 14 LAW & INEQ. 179 (1995). Subsequently, a mother who chooses formula may experience feelings of disdain from society, or may feel the pressures of not being an adequate mother.

Benefits Of Breastfeeding

From early on in history, infants were exclusively breastfed, as it was their only way to receive nutrients in the infantile state of life. Linda C. Fentiman, Marketing Mothers' Milk: The Commodification of Breastfeeding and the New Markets for Breast Milk and Infant Formula, 10 NEV. L.J. 29, 36 (2009). Breast milk contains key nutrients for infants and will change its composition over time in order to adapt to the growing infant's needs. Womenshealth.gov, Why Breastfeeding is Important, (Mar. 23, 2013),http://www.womenshealth.gov/breastfeeding/ whybreastfeeding-is-important

Numerous benefits have also been associated with breastfeeding for the infant. Infants who are not breastfed are: "twice as likely to develop ear infections as infants who are exclusively breastfed; 1.5 times more likely to die of Sudden Infant Death Syndrome compared to infants who were breastfed for four months; 3.5 times more likely to be hospitalized or die from lower respiratory tract infection compared to infants who are exclusively breastfed for four months; and thirty-two percent more likely to become obese.". United States Breastfeeding Committee, Briefing Document to Support Appropriations for Breastfeeding, (Mar. 23, 2013), http://www.usbreastfeeding.org/Portals/0/Publications/Briefing-Document-Approp-FY12.pdf; see also Elizabeth Hildebrand Matherne, Lactating Angel or Activist? Public Breastfeeding as Symbolic Speech, 15 MICH. J. GENDER & L. 121, 124-25. Additionally, studies have shown that formula fed babies have a higher risk of developing middle ear infections and pneumonia. Alicia Dermer & Anne Montgomery, Breastfeeding: Good For Babies, Mothers and the Planet, (Mar. 6, 2013),http://www.missfoundation.org/miracles/breastfeeding.html. Along with the health benefits, studies have linked a lower abandonment rate and less abuse towards children to those that had been exclusively breastfed. Matherne, supra, at 125. This is believed to be due to a bond created between the mother and the child while breastfeeding.

While breastfeeding has numerous personal benefits, it also aids the government in reducing public spending. Through the government program Women, Infants, and Children (WIC), if a mother meets certain income criteria, she may be eligible for a subsidy to help with the cost of infant formula. In 2009, the government spent $850 million dollars on infant formula alone. Center on Budget and Policy Priorities: WIC Food Package Should be Based on Science: Foods with New Functional Ingredients Should be Provided Only If They Deliver Health or Nutritional Benefits, (Apr. 24, 2013),http://www.cbpp.org/cms/?fa=view&id=3201. The American Academy of Pediatrics has asserted that breastfeeding decreases the cost of WIC, and lowers the environmental and energy burdens from the production of formula. Am. Acad. of Pediatrics,Breastfeeding and Use of Human Milk, 115 PEDIATRICS 496, 497 (2005).

Lastly, a mother's decision to breastfeed can also benefit her employer and her health insurance company. These benefits stem from the infant having a lower propensity of becoming ill. If a mother has a sick child, she will often miss work to either take care of her child or bring them to a doctor. Employers benefit from a less-absent employee, and the health insurance company will benefit from not incurring as many doctor claims from office visits. Dermer & Montgomery, supra, at 1. Altogether a mother who makes the personal decision to breastfeed her child will create multiple benefits that have a much larger impact overall, than it just being a healthier way to provide nourishment.

Difficulties For Breastfeeding Mothers

Family, Social, And Other Common Barriers

Common barriers preventing a new mother from nursing her child include the existence of negative attitudes and social stigma of public breastfeeding. Social attitudes may influence a mother to feel guilty about her personal choice to breastfeed, or may cause her to feel uncomfortable feeding her child in public. Regardless of the numerous scientific benefits, there is still a tremendous amount of public objection that creates the negative connotation that exists today. Matherne,supra, at 122. The social norms are having a negative attitude towards breastfeeding where many may feel that breastfeeding is just another alternative to formula. These social norms can make a mother feel embarrassed or angry making it difficult for a mother to nurse her child in public.

For example, in today's culture, men view breasts as objects of sexual gratification, creating a disconnect between the public perception and the biological function, thus devaluing the breasts and breastfeeding. Lisa Hansen, A Comprehensive Framework for Accommodating Nursing Mothers in the Workplace, 59 RUTGERS L. REV. 885, 889 (2007). This widely accepted sexual appeal may create angst for a mother and may deter her from initially or continuing to choose breastfeeding.

Lack of knowledge pertaining to nursing is another hardship many new mothers face. Motherhood may be considered a natural instinct, but mothers and infants cannot rely on instinct alone. Mothers may experience difficulty with latching or production. Executive Summary: The Surgeon General's Call to Action to Support Breastfeeding, 3 (Mar. 16, 2013) http://www. surgeongeneral.gov/library/calls/ breastfeeding/executivesummary.pdf. The solution is having proper education and support to correct lactation problem. Id. at 4. The key to ensuring that a new mother is provided with the education she needs is by establishing access to lactation specialists in the hospital, and after discharge home. It is imperative that hospitals have protocols and policies to assist a breastfeeding mother physically and intellectually. Id. Many hospitals are shortcoming in their protocols and policies; therefore the uneducated mother ultimately may not breastfeed.

Aside from education, it is paramount that a new mother has family and social support. Family and community support can be exceptionally influential in the mother's initial decision and can ultimately make or break her breastfeeding experience. Id. at 4. More often than not, the initial decision process will include the partner and family's opinion on what they believe is best. If they are not supportive of the mother's decision, there is a greater expectancy that she will not choose to go through with breastfeeding her infant.

Employment Barriers

Ultimately, one of the toughest complications a breastfeeding mother will face is her return to work while still breastfeeding. She may have already dealt with maternity leave issues and now she must work with her employer to ensure the time and place necessary to either nurse or express her milk. Id. Due to these difficulties, working mothers are less likely to choose to begin breastfeeding. Id.

For a nursing mother, dual issues arise when continuing to breastfeed while working, i.e. milk supply and discrimination. In order to keep up her milk supply, a mother will need to express her milk every few hours. Shelton, supra, at 180. Additionally, a mother may face possible discrimination and/or harassment with her choice to express milk at work and asking for accommodations. Hansen, supra, at 905. In discussing her choice to nurse, a mother may be faced with an employer who is hostile in complying with her need for frequent breaks and a private place to breastfeed or pump. Shelton, supra, at 186. Frequent breaks are necessary, because a mother must pump about every two to three hours. If she is not able to express her milk as often as her infant is eating, then she may experience engorgement, possible infection, and her milk may dry up. Elizabeth N. Baldwin & Kenneth A. Friedman,Working it Out: Breastfeeding at Work, 93 MOTHERING 64 (1999) (Mar. 21, 2013),http://www.llli.org/law/ lawemployment.html. The pumping itself may take 15 to 20 minutes, and does not include the time to walk to the lactation room, set up her pump, clean the pump, and store the expressed milk. Brit Mohler, Is the Breast Best for Business?: The Implications of the Breastfeeding Promotion Act, 2 WM. & MARY BUS. L. REV. 155, 159 (2011). Ultimately, the mother may be asking the employer for anywhere from 45 to 75 minutes per eight-hour shift for unpaid breaks to accommodate her lactation. Nina Cavalier, Working and Nursing, 17 NEW BEGINNINGS 46 (2000) (Mar. 21, 2013), http://www.llli.org/nb/nbmarapr00p46.html.

There is a large-scale problem in the United States because the majority of maternity-leave benefits, which can range from four to 12 weeks, are unpaid. Deborah A. Widiss, Changing the Marriage Equation, 89 WASH. U.L. REV. 721, 732-33 (2012). This creates a financial hurdle for many families. Families must make a decision if a mother will take her entire maternity leave and breastfeed, or go back to work for additional income. When the mother decides to be at home with her infant, she will have to find income by some other means, i.e., a working spouse/partner or possible disability benefits. Id. Once the maternity leave is over, the family will need to decide whether the mother should continue nursing when she returns to work. The time spent expressing milk during her shift will be unpaid, and, as a consequence, the mother will have to work a longer day to incorporate her additional breaks.

Current Laws

In response to these obstacles, the United States has been working to enact laws that will support breastfeeding mothers. In 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA). Id. This new legislation amended the Fair Labor Standards Act (FLSA) by adding provisions for employers. The PPACA now requires an employer to provide reasonable break times for an employee to either nurse or express milk. Id. Additionally, the employer must also furnish private accommodations must not be a restroom. Id. Other benefits to the new legislation include a definition for reasonable break time for a nursing mother, Reasonable Break Time for Nursing Mothers, 75 FR 80073-01 (2010), which includes time from walking to the room up until storing the milk, and extending women's health benefits through insurance with the inclusion of a breast pump subsidy.

In 1993, the Family Medical Leave Act (FMLA) was enacted to provide some rights to a nursing mother in an employment setting. Stacey A. Tovino, Scientific Understandings of Postpartum Illness: Improving Health Law and Policy? 33 HARV. J.L. & GENDER 99 (2010). FMLA required that employers allow a one-hour unpaid break for every eight-hour shift worked. New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. §6(a)(1)(1998). This break may be split up if necessary to express milk. Id.This act provided an opportunity for women to be able to express milk at work without the fear of being fired. Id.

A nursing mother facing discrimination may try to bring a claim against her employer. A widely utilized cause of action is the idea that breastfeeding is a medical condition following pregnancy. Yet courts generally reject these pleadings, holding that breastfeeding is a choice rather than a related medical condition to pregnancy. SeeHansen, supra, at 903; Feies v. Gilpin Ventures, Inc., 906 F. Supp. 1487, 1492 (D. Colo. 1997). This holding prevents these discrimination claims from being brought under the Pregnancy Discrimination Act (PDA). Pregnancy Discrimination Act, 42 U.S.C. §2000e (k) (2006). Courts will uphold discrimination claims under the PDA only if the woman was pregnant when the harassment occurred during her employment.

Before these federal law changes, breastfeeding women were granted only limited rights under state law. State law ranges from restrictions on public breastfeeding to breastfeeding employment rights. State laws can grant additional rights, but they cannot limit the rights currently allowed by the federal government. Employment and labor laws addressing a mother's rights federally, state-policing power regulates the public exposure aspect of breastfeeding in public. Public indecency statutes control the exposure of body parts in a public setting. Often, law enforcement will utilize these statues against a mother who has exposed her breast while nursing. States vary on how they address public exposure with their indecency statutes. Statutes range from allowing a mother to breastfeed in public without covering up, to ones that make it illegal to breastfeed unless mother and baby are fully covered. Lawrence M. Friedman & Joanna L. Grossman, A Private Underworld: The Naked Body in Law and Society, 61 BUFF. L. REV. 169, 197 (2013). In New York, the public indecency law specifically states that the "exposure of private parts does not apply to breastfeeding of infants". N.Y. CIV. RIGHTS LAW §79-e (McKinney 2013).

Proposals

Knowing the beneficial aspects of breastfeeding, countries try to create a yearly breastfeeding goal. As of 2010, the United States did not meet their breastfeeding goal. Bartick M, Reinhold A., The Burden of Suboptimal Breastfeeding in the United States: A Pediatric Cost Analysis, PEDIATRICS OFF. J. OF THE AM. ACA. OF PED. 1052. This failure cost the United States $13 billion in expenses. Id. In response the Surgeon General has proposed a "Call to Action" seeking to aid mothers in their breastfeeding efforts. Centers for Disease Control and Prevention: Surgeon General's Call to Action to Support Breastfeeding (Mar. 23, 2013), http://www.cdc.gov/ breastfeeding/promotion/calltoaction.htm. This proposal is a national project created in conjunction with the Center for Disease Control to help establish more federally funded coalitions for breastfeeding. By informing mothers, society, and birth facility support about educational measures concerning breastfeeding and creating more places for support, we may see a positive trend in the number of breastfeeding mothers in the future. Centers for Disease Control and Prevention Breastfeeding Report Card--United States, 2012, (Apr. 2, 2013),http://www.cdc.gov/breastfeeding/data/reportcard.htm.

The "Call to Action" proposes creating "family-friendly communities and providing more support from birth facilities, health professionals, and in child care settings". Id. Birth facilities play a crucial role in initiating. If an infant is not exposed to breastfeeding during their first hour of life, the success rate of breastfeeding will decrease. The instruction and support from maternity nurses will greatly impact a mother's decision to breastfeed or formula feed their infant. In order to effectuate the correct support system, facilities need to establish policies and practices regarding a mother's wishes on how to feed her child. Id.

The Surgeon General and legislators are beginning to realize the importance of breastfeeding. An increase in the number of breastfed infants will increase the number of healthier children and in return, reduce healthcare costs. Sarah Andrews,Lactation Breaks in Workplace: What Employers Need to Know About the Nursing Mothers Amendments to the FLSA, 30 HOFSTRA LAB. & EMP. L.J. 121, 124 (2012).

What Has Changed And Changes That Need To Be Made

Personal Choices

A large consensus still exists that expresses an idea that breastfeeding in public is "dirty, sexual, embarrassing . . . and something that should be kept behind closed doors." Shelton, supra, at 179. In order for a mother to feel comfortable in feeding her child, this social stigma needs to change. Commercials and billboard ads, while creating public awareness, have not been enough. These advertisements are a movement in the right direction, but the Surgeon General's proposals may be a big step in gaining additional public acceptance. As a community, the erotic meaning of the breast needs to change to create an understanding of the biological function breast in order for breastfeeding in public to no longer be considered offensive. Friedman, supra, at 204.

Additionally, statistics show an increase in the number of breastfeeding mothers if a she has outside support in her attempts to nurse. U.S. Dept. of Health & Human Services, Executive Summary: The Surgeon General's Call to Action to Support Breastfeeding, Washington, D.C., Office of the Surgeon General, Jan. 20, 2011. The proposal by the Surgeon General, to create more family and community involvement, may lead the United States in the right direction.

Hospital Support And Government Expense

Frequently a mother will experience unexpected hurdles she may face regarding her choice to breastfeed even in the hospital. One hurdle is a lack of education and/or support from lactation consultants. Availability of lactation consultants varies with each hospital. Lactation consultants help to promote breastfeeding to new mothers and they need to be available to mothers during their entire stay in the hospital. It is just as important for the consultants to be available after a mother leaves the hospital as well. The PPACA now provides coverage for in-home visits from lactation consultants and nurses once a mother leaves the hospital, however if the hospital is understaffed the mother will not be afforded this extra education.

Another hurdle is pressure from formula companies. Many companies begin sending advertising information, coupons, and samples to mothers as soon as they gain information that she is pregnant. Additionally, many hospitals are provided with free formula gifts to give to new mothers to promote their product. These advertising strategies bombard the new mother and she may lose focus on her primary objective to breastfeed.

The immense cost to governmental programs associated with formula is also an issue. It is estimated that formula feeding can cost four times more than breastfeeding. Matherne, supra, at 126-27. In 2002, the United States Breastfeeding Committee estimated that families spent more than $2 billion dollars per year on formula and WIC spends more than $578 million. U.S. Breastfeeding Comm., supra, at 1. In 2008, it was estimated that feeding a child formula costs a family $1,200 per year as compared to breastfeeding, which was only about $300 per year. Matherne, supra, at 126-27. The cost to breastfeed is pursuant to an increase in the amount of food a mother needs to consume in order to create her milk. Even though programs like WIC have been formed to supplement part of this cost for families, many of these programs are underfunded. See U.S. Dept. of Health And Human Services, supra, at 79. If more women breastfed, this cost would drastically decrease.

Employment

One of the important aspects to the PPACA legislation is the requirement that a restroom is not a suitable or sanitary place for nursing or milk expression. Mohler,supra, at 168. Even though law mandates certain accommodations for the mother, there are many employers who may experience financial difficulties in complying with the new laws. Id. at 167-68. The costs to an employer hinge on what resources they already have available, and what they still need to provide. Id. at 172. The employer costs emerge from providing the time and place for mothers to express milk and creating a support system for her as well. Id. at 167-68. Some employers have zealously provided their employees with lactation rooms and time, while others have gone as far as offering pumping equipment. Kantor, supra, at 1. Law mandates these requirements for employers, but the government should assist them by providing some type of tax credit or other incentive. This would give a mother what she needs as well as aiding and incentivizing employers who have to foot this extra cost.

Current breastfeeding laws have created an employee divide between those who benefit from the new legislation, and those whom legislation still does not reach. This legislation creates a divide between blue-collar and white-collar working mothers. This divide results from lower level employees who often cannot afford to take the unpaid breaks, or still might not be provided with the adequate space necessary. Hansen, supra, at 895. A mother may experience a decrease in her milk production if she is not able to express her milk on a schedule similar to her baby's schedule. SeeReasonable Break Time for Nursing Mothers 75 FR 80073-01 (2010). In many instances, employers will provide only the minimum break requirements, and it is often left to the mother to take the initiative in inquiring about this with her employer. Mary Ellen Slayter, Workplaces Accommodate Breast-Feeding Mother, Sometimes Grudgingly, WASH. POST., Oct. 28, 2002, at E04. More white-collar corporations, rather than their blue-collar constituents, will have the resources to provide the requisite space and time allowances. It is also the white-collar employees who are less financially impaired with taking an unpaid break than mothers in lower-level employment. Jodi Kantor, On the Job Nursing Mothers are Finding a 2-Class System, N.Y. TIMES, Sept. 1, 2006, at A1.

Furthermore, current laws still do not provide equal benefits to all mothers who choose to breastfeed. Working mothers still lack the support they need to breastfeed when they return to work. Executive Summary, supra, at 2. While the FMLA and the PPACA are helpful to many, they do not adequately provide support to all working nursing mothers. The laws and benefits apply only to employers who have more than 50 employees, plus the employee herself must be considered a full-time employee having accrued a certain number of hours to be eligible. Mohler, supra, at 159; 29 U.S.C. §2612 (2006). The FMLA may allow for a woman to take up to 12 weeks unpaid from work after birth but there is the caveat that time missed from work before the baby is born is included, i.e. if a mother is on bed rest. Id. Additionally, 12 weeks is still only half of the time that is recommended to breastfeed infants. Id. The laws also disadvantage low-income individuals in that time-off work and nursing breaks are all unpaid. This loss of income can be detrimental to many working mothers and their families. Hansen, supra, at 907; Kantor, supra, at 1.

Conclusion

Socially, breastfeeding should be viewed as the natural way of feeding an infant. Providing an infant with breast milk is one of the most beneficial ways a mother can assist her child in their growth. Not only does breastfeeding have benefits for the baby, there are additional benefits to the mother and even the government. Even though not all mothers are physically able to nurse their infant, the more mothers who try and are successful, the more beneficial it is to everyone. For a mother to be successful in her breastfeeding attempts, it is imperative that she has a support system. This system can range from support at home, assistance from lactation consultants, and an employer who will assist her with time and space to express her milk. 

Currently, the United States is not meeting its breastfeeding goals. In order for the United States to increase the rate of breastfeeding mothers, the widely held negative view of breastfeeding needs to change and there needs to be more assistance for a nursing mother in the different aspects of her life. Laws are beginning to provide the support a nursing mother needs. Nevertheless, the laws do not provide benefits to all nursing mothers. Laws are restrictive on which employers must comply with its provisions. Blue-collar mothers, who would benefit the most, are often the people who receive no assistance from these laws. New legislation will need to work on encompassing all mothers who wish to nurse, not just a select few whose employers are covered under the law.

The Surgeon General's "Call to Action" is a great place to start in order to put a positive light on breastfeeding. Members of the general public will not be able to change their beliefs unless they are educated. Advertisements are important for educating the general public. This new information may help foster a more positive view of breastfeeding. The advertisements need to focus on the idea that breastfeeding is natural, and exposure of the breasts to nourish an infant is in no way sexual. Between inadequate laws and views of the general population, the rates of breastfeeding mothers will not increase. In order for the United States to see a significant increase in its rates, everyone needs to be on the same page.

Jessica Tomkiell is a Juris Doctor Candidate, Class of 2014 at Albany Law School. She is presently interning with Schenectady County Family Court, Hon. Mark L. Powers, and provides pro bono assistance, in association with the law school, for Pro Se Divorce, Child Advocacy, and Kinship Care. Along with being a law school student, she is a proud mother of a two-and-a-half-year-old daughter and a four-month-old son.

"A Note On Ramping Up The Humanitarian Response To Piracy And Its Effect On Seafarers" by Kathryn Carroll


A Note On Ramping Up The Humanitarian Response To Piracy And Its Effect On Seafarers

by Kathryn Carroll

I. Introduction

"[Positive] mental health is the psychological state of someone who is functioning at a satisfactory level of emotional and behavioral adjustment." Mental Health Problems, Leaders Guide for Managing Mariners in Distress, UNITED STATES MARINE CORPS: MARINE CORPS COMMUNITY SERVICES, http://www.usmc-mccs.org/leadersguide/Emotional/MHProblems/generalinfo.cfm. Poor mental health can result from stress stemming from trauma, loss, or relationship, financial, career, or legal problems. It is a generally accepted fact that seamen encounter unique stressors related to working in the maritime industry. Trauma and mental health issues in the maritime industry are mainly situational - they relate to living, working, and socializing twenty-four hours a day, seven days a week, sometimes for months on end, in tight quarters with other sailors.

Unfortunately, maritime workers today face the possibility of even more traumatic experiences due to high levels of pirate activity in some parts of the world. In this article, I briefly outline the problem posed by piracy, the global response, and especially the response given to the mental health of seafarers affected by piracy. I propose that while the global response rightly calls for intergovernmental coordination to prevent piracy, more attention should be given to the aftermath of pirate attacks we cannot prevent, and especially to caring for traumatized seamen and their families. Because the framework for providing post-trauma care to military versus civilian seamen has been more institutionalized, I focus on the needs of civilian seamen, who need greater humanitarian protection.

II. The Threat

Piracy is:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property onboard such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge off acts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, Art. 101.

In 2011, there were more than 439 piracy attacks worldwide. See Christopher Alessi & Stephanie Hanson, Combating Maritime Piracy, Backgrounders, COUNCIL ON FOREIGN RELATIONS, Mar. 23, 2012. Some parts of the world are more prone to pirate attacks than others. Of the more than 439 documented attacks in 2011, more than half were attributed to Somali pirates in the Gulf of Aden, the Red Sea, the Arabian Sea, the Indian Ocean, and in the waters off the coast of Oman. Alessi & Hanson, supra. Although the incidence of piracy has appeared to decrease, piracy still remains a threat to the maritime industry. Compare Somali Pirates Release Sailors as Piracy Reports Reach Five-Year Low, Global Terror, FOX NEWS, Mar. 3, 2012, with Joe Brock & Jonathan Saul, Nigeria Hit By Three Pirate Attacks in Eight Days, REUTERS, Feb. 14, 2013. The Oceans Beyond Piracy project of the One Earth Foundation estimated that the impact of Somali piracy on the global economy to be $7 billion. See Alessi & Hanson, supra. While we cannot place a dollar value on it, the human cost of piracy is also significant. Such acts of violence include killing, injuring, assaulting, and threatening the crews of vessels. Hijacking and kidnappings are particularly problematic. These tactics are favored by pirates coming out of Somalia who are turning to piracy because of limited economic opportunities in their country. Alessi & Hanson, supra.

The Global Response To Piracy

Intergovernmental organizations ("IOs"), non-governmental organizations ("NGOs"), governments and the maritime industry have responded to the threat of piracy by calling for coordination and cooperation to prevent or repress piracy. For instance, the United Nations Security Council ("UNSC") passed a series of measures in 2008 addressing piracy off the coast of Somalia. See Alessi & Hanson, supra. The UNCLOS explicitly states that States have a "duty" to help repress piracy. International Maritime Organization (IMO), Resolution A.1025(26), Code of Practice for the investigation of Crimes of Piracy and Armed Robbery Against Ships, A 26/Res.1025 Art. 100, Dec. 2, 2009, available atwww.imo.org/OurWork/Security/PiracyArmedRobbery/Guidance/Documents/A.1025.pdf.

Furthermore, in 2009, the International Maritime Organization ("IMO"), the specialized United Nations ("UN") agency charged with the responsibility for the safety and security of shipping, adopted a Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships. The Code provides a set of best practices for handling initial reports of piracy and investigating related crimes. The Code covers training of investigators, the taking of witness accounts, and the distribution of information and intelligence, among other things. INTERNATIONAL MARITIME ORGANIZATION, CODE OF PRACTICE FOR THE INVESTIGATION OF CRIMES OF PIRACY AND ARMED ROBBERY AGAINST SHIPS, A 26/Res. 1025, 5, (18 January 2010), available athttp://www.safety4sea.com/images/media/pdf/A.1025(26)%20Piracy%20Investigation.pdf.

Furthermore, the IMO adopted the Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean, a regional agreement similarly designed to promote coordination among governments, but in East Africa in particular. Finally, the IMO has updated its guidelines for flag states and ship operators on preventing and suppressing acts of piracy. Revised Interim Recommendations for Flag States regarding the use of Privately Contracted Armed Security Personnel on board ships in the High Risk Area, INTERNATIONAL MARITIME ORGANIZATION,(16/09/2011).

Other IGOs have responded in kind. The International Code for the Security of Ships and Port Facilities ("ISPS") promulgated by the North American Treaty Organization ("NATO") and the 2004 amendments to the International Convention on the Safety of Life at Sea ("SOLAS") place requirements on ship-operating companies to create security plans implement security alert systems and identify security officers aboard ships. NATO offers assistance to countries without the resources to comply with the requirements. Ali M. Köknar, Maritime Terrorism: A New Challenge for NATO, INSTITUTE FOR THE ANALYSIS OF GLOBAL SECURITY, (Jan. 24, 2005). The ISPS and the amendments to SOLAS were in turn adopted by the IMO. Meanwhile, the European Union Naval Force ("EUNAVFOR") has been working alongside African Union ("AU") vessels to protect vessels sailing to Africa as part of the World Food Programme. SeeAfrican Union, OCEANS BEYOND PRIVACY; for more on NATO and its interest in piracy issues, see Maritime Terrorism: A New Challenge for NATO, Energy Security, INSTITUTE FOR THE ANALYSIS OF GLOBAL SECURITY. The Maritime Security Centre of EUNAVFOR generally provides security support to vessels in the waters near Somalia, as part of Operation Ocean Shield. Maritime Security Centre, Horn of Africa, EUNAVFOR SOMALIA; Operation Ocean Shield, NATO SHIPPING CENTRE.

Furthermore, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia ("RECAAP") is a regional intergovernmental agreement to promote and enhance cooperation against piracy and armed robbery in Asia. A Contact Group on Piracy off the Coast of Somalia, comprised of twenty-four nations, several international organizations and maritime industry representatives, has also been established to facilitate and coordinate efforts implementing UN Security Council Resolution 1851. UNITED NATIONS, Testimony of Douglas B. Stevenson at the Informal Meeting of the General Assembly on Piracy, 2, (14 May 2010). Also in Africa, the Economic Communities of West and Central African States ("ECWAS" and "ECCAS," respectively) have developed a Code concerning the prevention and repression of piracy. Just recently, the IMO lent its official support to the new Code. IMO Pledges to Assist in Implementation of West and Central Africa Piracy Code Adopted at Ministerial Meeting, International Maritime Organization, Mar. 21, 2013.

Additionally, many individual countries have responded by sending naval units into risk-prone areas to patrol shipping lanes and protect ships from pirates. The maritime industry has developed Best Management Practices to Deter Piracy in the Gulf of Aden and Off the Coast of Somalia. See Testimony of Douglas B. Stevensonsupra. The Save Our Seafarers Campaign, for one, fueled by the shipping industry, maritime associations, and trade unions to bring attention to the issue of piracy. SAVEOURSEAFARERS, http://www.saveourseafarers.com/. The campaign supports measures designed to prevent piracy and prosecute offenders. Last, but not least, the International Chamber of Commerce has a reporting center for ship owners and masters, and a piracy news service. IMB Piracy Reporting Center, Commercial Crime Services, INTERNATIONAL CHAMBER OF COMMERCE; Piracy and Armed Robbery News and Figures, Commercial Crime Services, INTERNATIONAL CHAMBER OF COMMERCE.

Humanitarian Response for Civilian Seaman

The measures taken by organizations and governments are "necessary because the best approach to piracy is preventing attacks in the first place, and they also help protect seafarers from pirate attacks." Testimony of Douglas B. Stevensonsupra. But what about the effects of pirate attacks we cannot prevent? The humanitarian response to piracy has not been nearly so quick to develop as the prevention measures described above. Major developments have been occurring since 2010, however. 
In 2010, the Center for Seafarer's Rights of the Seamen's Church Institute ("SCI") released a set of Preliminary Guidelines for the Post-Piracy Care for Seafarers.Testimony of Douglas B. Stevensonsupra. The Guidelines is the most comprehensive guide available addressing the particular needs of seamen related to the trauma associated with pirate attacks. The Preliminary Guidelines, though brief, are explicitly tailored to address the issues seamen face during and after a pirate attack. The Guidelines call for a complete medical assessment, including psychiatric assessment as soon as possible after the release of a ship's crew after a pirate attack. Testimony of Douglas B. Stevensonsupra. The Guidelines were developed out of an on-going study begun by the SCI in 2009 on the trauma suffered by seamen who experienced piracy.SCI Announces Trauma Study, SEAMEN'S CHURCH INSTITUTE, July 15 2009,http://www.seamenschurch.org/article/sci-announces-trauma-study. Additionally, the IMO and the SCI, along with the Contact Group on Piracy off the Coast of Somalia ("CGPCS"), have produced a best practices report, "Post-Piracy Trauma Assessment and Treatment." Piracy Study, SEAMEN'S CHURCH INSTITUTE,http://seamenschurch.org/piracy-study.

In addition to these new partnerships, new organizations have formed to address this particular issue. The Maritime Piracy Humanitarian Response Program ("MPHRP") appears to be the leader. It was formed in 2011 to help seamen and their families overcome the physical and mental trauma associated with piracy. MARITIME PIRACY HUMANITARIAN RESPONSE, http://www.mphrp.org/. Trade unions have also spoken out on the issue of piracy. The International Transport Workers Federation has advocated on behalf of seafarers, calling sailing into risk-prone waters a "breach of the duty of care" of ship owners, and is also supporting a new film on pirate attacks and hijacking. See Coping with Piracy - Guidance for Seafarers, Inside the Issues, ITF SEAFARERS; Piracy Survivors' Group Backs New Film, Maritime News, ITF SEAFARERS, (27 Mar. 2013).

Conclusion

Beyond these efforts, though impressive, the plight of seamen has not been given the attention it deserves. Again, as SCI Director Douglas Stevenson reported, "No one is keeping track of the seafarers held hostage, attacked or otherwise affected by pirates. There is no central resource where seafarers, shipowners, and flag states can go for information on responding to the effects of piracy on seafarers."Testimony of Douglas B. Stevensonsupra. In the past, awareness of the issue seems to have been fairly low. Only one of the five UNSC resolutions adopted in 2008 even mentioned protection of merchant mariners as a rationale for international efforts to suppress piracy. Id. ("RECOGNIZING WITH DEEP CONCERN the grave danger to safety of life at sea, maritime safety, security and the protection of the marine environment arising from acts of piracy and armed robbery against ships"). Rather, any frameworks proposed or implemented concerning piracy, as outline above, have focused on prevention of piracy, and any guidance for seamen following a pirate attack is for the purpose of information gathering for military intelligence or prosecution of pirates - "not for seafarers' well-being." Id.

 

"A Call To Arms: The Need To Amend The (Still) Embarrassing Second Amendment" by Benjamin Pomerance


A Call To Arms: The Need To Amend The (Still) Embarrassing Second Amendment

by Benjamin Pomerance

In 1989, the Yale Law Journal published an essay titled The Embarrassing Second Amendment, authored by University of Texas at Austin law professor Sanford V. Levinson. See 99 YALE L.J. 637-59 (1989). Within the pages of his piece, Levinson highlighted the dearth of discussion regarding the Second Amendment to our federal Constitution, pointing out its absence from recent caselaw, law reviews, casebooks, and other publications. See id. at 638. In the blunt words of one law professor, Levinson wrote, "the [S]econd [A]mendment is not taken seriously by most scholars."Id. (quoting L.H. LaRue, Constitutional Law and Constitutional History, 36 BUFF. L. REV. 373, 375-78 (1987)).

The fact that United States v. Miller, the most recent major Second Amendment case at that time, had been decided a staggering 50 years before this essay was written indicated that judges and practitioners did not take this amendment particularly seriously, either. See United States v. Miller, 307 U.S. 174 (1939). Indeed, the only people who seemed to care about the Second Amendment, according to Levinson's analysis, were politicians, interest group members, and grassroots advocates -- both vehemently for and against varying levels of "gun control" -- among the general population. See Levinson, supra, at 640. While the debate raged in the political arena, it was a controversy strangely beyond the apparent interest of the bench, the bar, and the legal academy.

Today, however, times have changed drastically regarding the Second Amendment. The issue of guns in America now reaches all three branches of government, and is at the forefront of topics debated fervently by Americans today. Yet the amendment itself remains embarrassing. It is a constitutional provision which says nothing, which has no clear contemporary relevance, which causes more confusion than legal solutions. At this point, there is but one cure for such a serious problem, one that is presented by the Constitution itself. The time has come to amend the Second Amendment.

I. How Times Have Changed: An Update To The Embarrassing Second Amendment As Levinson Knew It

A. Events

Twenty-four years have passed since Levinson penned his now-famous essay. During that period, the things that America has seen regarding gun issues are nothing short of astounding. We have experienced the killings at a compound in Waco, Texas, and at a federal building in Oklahoma City, both of them involving so-called "insurrectionist movements" against the American government. We have realized that our children are at risk of death when they go off to school in the morning, as shown by a bloody trail of school shootings from Littleton, Colorado, to Chardon, Ohio, to Sandy Hook, Connecticut. We have discovered at Virginia Tech that colleges are far from safe, either.

We have learned that we are unsafe when we go to a house of worship to pray, revealed to us by the armed attack at a Sikh temple in Wisconsin. We have learned that gunfire inside a cinema does not always come from the characters on screen, illuminated by the recent tragedies at movie theatres in Colorado and Texas. We have learned that 31 bullets can be fired from a 9 mm Glock in 30 seconds in Tuscon, Arizona, that one of those bullets can strike a former U.S. Congresswoman named Gabby Giffords, and that six more of those bullets can kill victims from a federal judge to a 9-year-old girl.

We have seen more than 50 mass shootings occur in America since Levinson published his article. We have seen 25 of those mass shootings transpire in the last seven years alone. See Gavin Aronsen, Mark Follman & Deanna Pan, A Guide to Mass Shootings in America, MOTHER JONES, June 9, 2013. That isn't even counting the killings that fail to make the news, the ones that are too mundane to report beyond a local newspaper -- the one- and two-victim homicides, the gun-related accidents that end in death, the 19,000 Americans annually who use guns to kill themselves. See David Frum, Let's Get the Truth About Guns, CNN.COM., reprinted in part in THE WEEK, Mar. 8, 2013, at 12.

B. Laws

We have seen the laws change, too. We have seen Kansas pass a statute which allows gun owners to carry their weapons into any public building -- including elementary schools. See Diana Reese, Kansas Law Aims to Arm Teachers, But Misfires with Insurance Companies, WASH. POST, July 9, 2013. We have seen Louisiana pass a law which expressly allows weapons to be carried inside houses of worship. See Adelle M. Banks, Churches Wrestle with Guns in the Pews, USA TODAY, Feb. 14, 2011.

We have seen Mississippi enact legislation allowing concealed weapon permit holders who obtain "specified firearms training" to carry their concealed guns inside courthouses, bars, houses of worship, schools, sports events, and government meetings. MISS. CODE ANN. §97-37-1 (2013). We have seen Missouri amend its laws so that even drunk people can legally carry guns -- and fire those guns, too, if acting in "self-defense." MO. REV. STAT. §571.030 (1) (5) (2013). (How an intoxicated person can possibly appreciate the threat against them to the point where they are truly acting "in self-defense" is not explained in the statute). We have seen Montana require hotels to let their guests bring firearms onto the hotel premises. MONT. CODE ANN. §45-3-103 (2013). We have seen Kentucky loosen its gun laws considerably, even permitting people to carry guns inside the State Capitol -- an activity which is legal in at least 10 other states. See Roger Alford, More People Carrying Handguns Into State Capitol, AP, Apr. 9, 2011.

We also have seen the opposite effect among certain state legislatures. We have seen Delaware enact its most restrictive piece of gun legislation in decades: a law requiring background checks for any sale or transfer of firearms between private parties (with the exception of family members, qualified law enforcement officers, and "short-term transfers to persons personally known to the owner"). See Press Release, Governor Signs Gun Background Check Bill, Aug. 5, 2013. We have seen Maryland ban the sale of 45 types of assault weapons and require residents purchasing a handgun to be fingerprinted. See Bethany Rodgers, Maryland Braces for the Effects of Sweeping Gun Control Laws, FREDERICK (MD.) NEWS-POST, July 12, 2013. We have seen New York ban the Internet sale of assault weapons, require all gun and ammunition buyers other than immediate family members to undergo background examinations, and outlaw high capacity magazines. See David Ariosto, N.Y. Governor Signs Nation's First Gun Control Bill since Newtown, CNN, Jan. 28, 2013. 

C. United States Supreme Court Decisions

The greatest changes of all, though, have come not from the legislative branch, but from the judiciary. For the first time since the end of the Great Depression, the United States Supreme Court has developed an active presence regarding the Second Amendment. In doing so, the Court has handed down the first set of judicial contours in recent memory regarding the "right to bear arms." The first thunderclap came in 2008, when the Court decided District of Columbia v. Heller, distinctly stating -- for the first time in the Court's history -- that the Second Amendment protects anindividual's right to possess firearms. See 554 U.S. 570 (2008) (emphasis added). Then, just two years later, in McDonald v. City of Chicago, the Court ruled that the individual rights protected by the Second Amendment apply not only to the federal government, but to the individual states as well. See 561 U.S. 3025 (2010).

Combine these two decisions, and the result is a stunning departure from the situation about which Levinson wrote in 1989. Today, no statute, state or federal, can be upheld if it abridges the individual right to bear arms below the threshold protected by the Second Amendment. The lines have been drawn at both the state and federal levels. No longer does the Second Amendment reside in footnotes and shadows. Instead, it is fully regarded as a key legal issue among all three branches of government, among legal scholars, and among the general public. Indeed, from the gun-related events in America to the new laws of individual states to the recent game-changing activity from the Supreme Court, there is no question that the landscape Levinson saw when he wrote his essay has shifted dramatically.

Yet one thing has not changed. Years have passed and decisions have been handed down, but the Second Amendment remains as embarrassing as ever.

II. Roots Of The Embarrassment: An Amendment That Now Means Nothing

A. The Language Itself

A simple look at the language of the amendment begins to reveal its flaws: "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This language gives rise to at least two contrasting interpretations. First, there is the analysis that focuses on the latter part of this sentence: the concept that the government shall not infringe -- presumably under any circumstance -- on the right of the people to keep and bear arms. This is popularly known as the "individual rights theory." Then there is the perspective that reads the second half of the sentence in the context of the first half. Under this viewpoint, the right of the people to keep and bear arms is limited solely for the purpose of serving in the state militia. In other words, the amendment prevents Congress from passing laws which forbid a state from defending itself against a military threat -- and nothing more. This is known as the "collective rights theory." (For one of several excellent discussions about these opposing positions, see HARRY HENDERSON, LIBRARY IN A BOOK: GUN CONTROL 16-18 (2000)).

B. The Court's Grammar Battles In Heller

We then turn to the way in which the United States Supreme Court grappled with these two interpretations in Heller. At first glance, the case appears to be a clear victory for the individual rights proponents. A closer look, however, reveals that the decision is not quite so straightforward. To begin with, the majority opinion by Justice Antonin Scalia turns the amendment into a grammatical Gordian knot. "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause," he began. He then went on to write the following: "[W]hile we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose." A skilled comedian trying to mock a judge's legalese could not have come up with a more entertaining example of obfuscation.

For the remainder of the opinion, Scalia attempted to demonstrate some reconciliation between the right of the people to keep and bear arms and that pesky first clause about the militia. The results were dissatisfying. In a word-by-word scrutiny of the amendment's text, one which cited linguistic treatises and examined historical data going back to the Glorious Revolution in Europe, Scalia came up with a series of results, each based on his conclusions on the verbal vagaries of 1789.

Scalia determined that the word "militia" did not mean a formal army but rather referred to an already existing body of "all able-bodied men" from the private citizenry. He decided that the phrase "necessary to the security of a free state" meant that this band of able-bodied men had the right to use their weapons to repel invasions, suppress insurrections, and "resist tyranny." "Keep," according to his research, meant that both militiamen and everyone else could own armaments, and "bear" referred to using arms in confrontation -- not in military struggles, but also in personal battles. Finally, the word "Arms" meant weapons, but should not be viewed as limiting the scope of the Second Amendment to weapons in existence at the time the amendment was passed.

The proper reading of the amendment, Scalia concluded, was to view it as saying "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed" (emphasis added). "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting," he wrote. "But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right -- unlike some other English rights -- was codified in a written Constitution." 

Yet if this analysis seems complicated, and at times conflicted, the dissenting opinion authored by Justice John Paul Stevens provides little solace. Like Scalia, Stevens focuses much of his dissent on verbal semantics, going toe-to-toe with his colleague in this historical battle. Again relying on historical documents and linguistic texts from the 1700s, Stevens's research produced very different results.

First, Stevens determined that the words "the people" means solely the people serving in "a well-regulated militia" and carves out no individual right of gun ownership. Secondly, he argued that "to keep and bear Arms" means only "to possess arms if needed for military purposes and to use them in conjunction with military activities." Lastly, he argued that the writing of "keep and bear Arms" in a single sentence rather than separate clauses meant that the amendment protected only a single function: "a duty and right to have arms available and ready for military service, and to use them for military purposes when necessary." "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia," Stevens wrote. "So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms."

As historical commentaries, the opinions of Scalia and Stevens in this case are informative and even entertaining. As a precedent-setting document on one of the most controversial issues in contemporary America, however, they are largely unsettling. In reading the same words, the two learned justices have developed well-documented arguments that produce diametrically opposed results. 

C. An Overall Lack Of Guidance

Most disquieting of all, however, is the fact that even the majority opinion provides little guidance on what the Second Amendment actually means in modern times. To begin with, Dick Heller, the plaintiff in this case, was a special policeman in Washington, D.C. As part of his job, Heller was authorized to carry a handgun while on duty at the Federal Judicial Center. The entire case arose when Heller applied for a registration certificate for a handgun that he wanted to keep at home and the District of Columbia refused to grant the certificate. Thus, all Heller really says is that in this very specialized circumstance -- a law enforcement officer trained in gun usage as part of his job -- the federal government cannot bar this individual from owning a handgun in his home. According to Scalia's opinion, the case also stands for the proposition that this law enforcement officer may also use his handgun for self-defense if attacked in his own home.

What Heller does not decide, therefore, is how this right to keep and bear arms applies to other classes of individuals, including people who lack Heller's specialized training in firearms use. Nor does Heller say whether firearms beyond a simple handgun are protected by the Second Amendment. For instance, automatic and semi-automatic weapons were not at issue in this case, and thus were not part of the Court's decision. Yet in the raging debate about gun control, these high-powered weapons are very much at the forefront of the discussion. Whether Second Amendment affords absolute protection for the owners of such weapons is still, even after Heller, very much in doubt.

Heller also provides little guidance on the Second Amendment's protection for "bearing," or "using," weapons. Scalia's majority opinion plainly states that a handgun can be kept and used for "immediate self-defense" in the home. Use of firearms in other purposes and locations, however, are absent from this decision.

This absence becomes important when considering the various state laws described earlier. Under Heller, and the application of Heller to the individual states inMcDonald, there is no language stating that the Second Amendment protects the right to keep and bear arms in a house of worship, or a hotel, or a courthouse, or the State Capitol. The clamor to arm principals and teachers in the wake of the Sandy Hook shootings finds no direct support from the Supreme Court. Indeed, even the use of a weapon for the purposes of hunting is not clearly protected as a constitutional right, even after Heller and McDonald. Under the current state of Supreme Court jurisprudence, the Second Amendment expressly protects possession of a handgun within the confines of the home, and the use of that handgun in the home for the purposes of self-defense -- and nothing more.

The confusion only gets worse from there. As described above, many states recently passed laws banning the use of certain varieties of arms, particularly automatic and semi-automatic assault weapons. Given that many of the mass killings in recent years have involved the use of such weapons, these bans seem to be sensible exercises of the state to promote general safety among its citizens. However, the argument can be made -- as Scalia acknowledges in Heller -- that these automatic and semi-automatic weapons are the very type of weapon necessary for a well-regulated state militia in 2013. Under this line of reasoning, forbidding these militarily valuable weapons disembowels the Second Amendment's central purpose: namely, maintaining a well-regulated state militia to resist acts of tyranny. All of which circles back to the infinite disputes over what a "militia" meant in 1789, what a "militia" should mean today, and what individual rights -- if any -- are carved from this constitutional language.

Of course, the plainest reading of the second portion of the Second Amendment -- the "operative clause", in Scalia's words -- makes this answer clear: the right to keep and bear arms "shall not be infringed." Yet even Scalia does not go this far. "Like most rights, the right secured by the Second Amendment is not unlimited," he wrote inHeller. "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." He went on to explicitly state that Heller should not be used to strike down laws forbidding the carrying of firearms by felons and the mentally ill. He also allowed that laws forbidding the carrying of firearms in "sensitive places such as schools and government buildings" were not overruled by Heller. Finally, he agreed that certain "dangerous and unusual weapons" could be outlawed without violating the Second Amendment.

Still, the variety of laws described above reveal just how many states disagree with even that interpretation. A quick search of recent Second Amendment commentaries reveals an equally wide division of views. On one pole, there is economist Sheldon Richman's belief that the Second Amendment should be read as if "an inkblot" covered the words "well-regulated militia," leaving the American people to fill in the gap with an uninhibited individual right to own and use firearms. See Sheldon Richman, Reading the Second Amendment, THE FREEMAN, Feb. 1, 1998. On the opposite pole, there is lawyer Evan P. Schultz's claim that when the Second Amendment was passed, "[t}he Framers envisioned Minutemen bearing guns, not Daniel Boone gunning bears." Evan P. Schultz, Bullets for Ballots in D.C., LEGAL TIMES, Aug. 5, 2002. In the midst of this stands the Second Amendment, its true meaning still as frustratingly elusive as the Mona Lisa's smile.

Thus, we can be certain of only one thing at this point: the Second Amendment tells us precious little, if anything, about the right to keep and bear arms. For those who subscribe to the linguistic gumbo cooked up by Scalia, it applies to qualified individuals keeping handguns in their home and using them in self-defense. For those who prefer the verbal stew prepared by Stevens, it applies only to members of a well-regulated militia using those arms for a military purpose. For those who believe that issues surrounding gun regulation should not hinge solely on a pedantic grammatical exercise, it could apply or not apply to any number of gun-related scenarios.

Overall, the Second Amendment has become a veritable accordion, expanded or contracted at the will of its user, thanks to its own language. Meanwhile, the fight over gun rights in America rages onward, filled with plenty of verbal arrows but little legal conclusiveness. Embarrassing indeed.

The time has come to put an end to this debate, one way or the other. And as the Court's cumbersome decision in Heller illustrated, this end will not come any time soon under the current framework. There is only one solution remaining: amending the amendment itself.

III. The Case For Amending: Why The Second Amendment, Unlike Other Constitutional Amendments, Needs A Change

Without a doubt, amending the Constitution is not something to be done lightly. By all accounts, it is a massive step. In this situation, however, it seems that there is no other way. Bickering over what the Second Amendment's language meant in 1789 has not brought us even close to a definitive answer on its true meaning. Trying to extrapolate the amendment's words and apply them in a modern context, a world where the understanding of those key words is far beyond anything the Framers would have envisioned, is impossible to do with any degree of confidence. The above examples show a national deadlock on this crucial issue. Only by recognizing that the current knot cannot be satisfactorily untangled, that the Second Amendment as written simply is inapplicable in 2013, can we move forward in an effort to resolve precisely what, if anything, the right to keep and bear arms means today.

It is true that other areas of the Constitution and the Bill of Rights contain obscure language, and that constitutional provisions should not be amended merely because they pose jurisprudential challenges. Take, for instance, the Fourth Amendment, which protects people against unreasonable searches and seizures of their "persons, houses, papers, and effects." These words have been the source of endless debate among the justices during the past several decades. Garbage placed at curbside, airspace over a person's home, the area beyond the immediate yard of the home, and a person's luggage being sniffed by a drug dog are among the items that the Court has considered unprotected by these four categories. On the other hand, data from a thermal imaging device aimed at a private home and information obtained by a GPS tracking device placed on somebody's car are among the things viewed by the Court as part of "persons, houses, papers, and effects" under this amendment.

There is no questioning the fact that in these difficult cases, the words "persons, houses, papers, and effects" have been stretched in ways that the Framers never would have predicted. Nevertheless, there is no serious clamor to amend the Fourth Amendment simply because these cases are hard to decide. Yet the differences between interpreting the Second Amendment in modern times and interpreting the Fourth Amendment in modern times, as shown in the following paragraphs, are too striking to ignore.

A. Understanding The Language

The Fourth Amendment contains language which is at least recognizable in a modern context. A basic definition of "persons, houses, papers, and effects" has stayed somewhat constant since 1789, providing at least a baseline to work with even in the knottiest of search-and-seizure cases. With the Second Amendment, however, the meanings of the words used in this single sentence have changed dramatically. Phrases such as "well-regulated militia" and even "keep and bear arms" are subject to far wider interpretations today than what may have been understood when the amendment was ratified. Heller proved to be the most dramatic illustration of this truth, with two justices devoting page after page to old linguistic intricacies and ultimately emerging from the thicket with only a best guess.

When judges struggle mightily just to understand the rudimentary meaning of a constitutional provision, when each word of that provision requires a discussion worthy of a scholarly journal on linguistics, and when those judges still wind up with such unclear and differing outcomes as to the most basic requirements of the provision, this is the sign of a law that has lost all modern comprehensibility.

B. Understanding The Purpose

Furthermore, while the Fourth Amendment's original purpose remains clear in 2013, the Second Amendment's thrust has become impossible to discern. There is no doubt that in 1789, the Framers passed the Fourth Amendment to guard against unwarranted government intrusion into the private lives of citizens, particularly by law enforcement. There is likewise little doubt that this amendment stands for this same central principle today. (For one of many discussions on this topic, see Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197 (1993)).

The central object of the Second Amendment, by contrast, is now a topic of ever-unending debate. Textually, this amendment simply is unclear. Perfectly legitimate arguments can be made for both a collective rights interpretation and for an individual rights interpretation. No mountain of historical evidence tilts the scales in one direction or the other, despite the best efforts of countless commentators to do so. Whether this amendment was intended by the Framers to protect the right to bear arms solely for the militia or whether this amendment was designed for a far more expansive protection simply is a question that cannot be answered with any reasonable degree of accuracy. It is time that Americans stop trying to do so.

C. Understanding What We Cannot Understand

Lastly, but perhaps most importantly, the Second Amendment is simply outdated. It has outlived whatever utility it may have possessed at the time when it was written. With the Fourth Amendment, an overwhelming majority of Americans would likely agree that some protection against unreasonable government intrusion into private affairs is necessary. With the Second Amendment, however, the various speculations about its enactment all focus on rationales of a bygone era.

For instance, let's say that the amendment applies only to organized state militias. In that case, it holds little modern relevance beyond each state's National Guard. The storied Minutemen of the American Revolution, the "militia" that would have been fresh in the minds of the Framers when they wrote this amendment, are not part of modern American society. We simply do not have "people's militias" anymore, despite the efforts of some contemporary Americans who would like to bring citizen fighting forces back into style. See, e.g. , EDWIN VIEIRA, JR., THE SWORD AND SOVEREIGNTY: THE CONSTITUTIONAL PRINCIPLES OF THE MILITIA OF THE SEVERAL STATES (2012).

On the other hand, let's say that the amendment does apply to each individual citizen for the purpose of fighting an oppressive government. This, too, would seem to hold little utility in contemporary America. Armed insurrections against the federal government are typically referred to as "treason" and punished heavily, as seen at Waco and at Oklahoma City. If this is the fundamental right that the Second Amendment protects, then it is a bizarre form of protection at best.

Finally, let's say that the Second Amendment does, as the Heller majority suggests, protect an individual right to own a gun and use it for self-defense in the home. To begin with, there is the inconvenient fact that the plain language of the amendment says nothing to this effect. Arguing, as Scalia did in Heller, that such rights were inherent in 1789 and thus did not need to be stated in the text is hardly a bastion of legal certainty. Additionally, even if this individual right is inherent, gaping questions still remain about what classes of individuals can own a gun, what types of guns they can own, and what additional uses -- such as hunting -- are or are not covered by the Second Amendment.

Again, the decision to amend the federal Constitution should not be made lightly. With a provision as fraught with contemporary problems as the Second Amendment, however, it is the only rational decision to be made.

IV. Conclusions On Amending The Embarrassing Second Amendment For Necessary Progress

Regardless of how the Second Amendment is interpreted, inconsistencies and flaws abound. Seen through a realistic lens, this is not at all surprising. American society with regard to gun ownership and use has changed tenfold since the days when the Framers penned the Second Amendment.

The drafters did not know of assault weapons that could fire 31 times in 30 seconds. They had not experienced the horrors of mass killings that are now part of our nation's collective consciousness. They had never sent their children off to school in the morning and watched them be carried out of the school in a body bag that afternoon. They had never spent hours considering whether guns should be brought into schools or courthouses or the State Capitol. They had never grappled with gun registration laws or government bans on specific types of weapons or debates over whether severely mentally ill individuals could own a firearm.

The drafters wrote only what they knew: that a group of organized musket-bearing civilians had fought back the British and won America's independence, and that the ability of a state to maintain such a fighting force needed to be protected. In one sentence, they did so as best they could with the times and conditions that they knew.

Yet they also included another provision in that same Constitution, a section written before the Second Amendment was even under consideration. Under Article V, they granted their successors the right to amend this remarkable document when necessary. They knew of their own fallibility, of their own inability to predict the future, and gave us the means to update the law of the land when the changing times demanded it.

With the Second Amendment, the times demand it now. Our nation is deeply and bitterly divided over the issue of gun ownership and use. Haggling over prefatory clauses or the eighteenth-century definition of "militia" is not the answer.

Instead, the only answer left is to make a change. Amending the Second Amendment -- a move that could producing sweeping changes on either side of the gun debate -- will not be a popular idea. Yet as this article has shown, it is a necessity. Indeed, the proposition even receives grudging acknowledgment from the unlikeliest of sources: the author of Heller himself. "Undoubtedly some think that the Second Amendment is outmodeled in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem," Scalia wrote near the end of his Heller opinion. "This is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

On that point, Scalia was exactly right. Pronouncing the Second Amendment extinct is not the role of the Court. It is the role of the people themselves, handed to today's Americans by the Framers. It is time that we use that power well, signing the death certificate of a law that died long ago. Amend the embarrassing Second Amendment. Then, let the debate -- the real debate over this crucial issue in 21st-century America -- finally begin.

"From Triangle Shirtwaist To Rana Plaza: More Than One Hundred Years Of Unchanged Labor Practices In The Garment Industry" by Elisabeth Schiffbauer


From Triangle Shirtwaist to Rana Plaza: Over One Hundred Years of Unchanged Labor Practices in the Garment Industry
by Elisabeth Schiffbauer

"We banded ourselves together, moved by a sense of stricken guilt, to prevent this kind of disaster from ever happening again."
-Frances Perkins, U.S. Secretary Of Labor

Fire and toxic smoke filtered up through the building's staircases. Defying orders from their floor bosses to stay at their sewing machines, workers ran to the two "women's" exits, only to find them locked. Another, "male" stairwell was "choked with smoke and bodies," forcing workers out through a ventilation shaft, a three-story drop to the ground that could be fatal. See Jason Motlagh and Susie Taylor, In the Wake of a Deadly Fire, Garment Workers Push for Stronger Protections, THE ATLANTIC, Apr. 24, 2013. The factory lacked a sprinkler system and an outdoor fire escape. Desperate workers were able to break open windows and leap to the rooftop of nearby buildings; other workers jumped from upper floors to the ground, many to their death.

The event described above is the Tazreen Fashions factory fire, which occurred on Nov. 24, 2012 in Dhaka. One hundred and twelve workers died and more than 150 were injured in the worst factory fire ever to occur in Bangladesh. Beginning their days early in the morning, these workers take eleven-hour shifts, six days week, earning an above average salary of about $65.00 a month in dismal conditions. Id.Workers are lucky if they have time, let alone enough to eat, access to clean water, and use of a restroom.

The working conditions described, seemingly draconian for present day, all too closely mirror the Triangle Shirtwaist Factory fire of 1911.

On March 25, 1911, a fire that started on the eighth floor of the Triangle Shirtwaist factory took the lives of 146 workers. The doors of the factory were locked to prevent theft and keep out union organizers, leaving workers trapped, and bulky machines blocked exits as the fire quickly spread via yards of flammable fabric. Bodies became crushed against doors; no one could get out unless they jumped.

As with Tazreen, the workers of the Triangle Shirtwaist Factory had protested for more sanitary work conditions the year before the incident, only to return to work unheard.

From the Triangle Shirtwaist Factory fire, however, came a far-reaching political transformation in New York social welfare. The fire resulted in a four-year factory investigation and statewide factory tour of New York. The year 1913 saw a flood of progressive legislation that created 32 protective measures affecting everyday aspects of factory life including enclosed staircases, adequate lighting, sprinklers, ventilation, and washrooms. Dangerous machines were to be regulated by law. No longer were women permitted to work more than 54 hours a week.

While the Triangle Shirtwaist Factory fire served as a catalyst for the labor movement in New York and the United States, the two recent tragedies in Bangladesh have served as a harsh and unsettling reminder that over one hundred years after Triangle, labor practices in the garment industry have remained virtually unchanged, reiterating the need for reform. The Triangle tragedy helped confront working conditions on a national scale. Now, they need to be solved on an international scale.

Bangladesh: Second Highest in Garment Exports

Despite unsafe work practices, U.S. and European corporate investment in Bangladesh has steadily grown over the past two decades. See Björn Claeson, Deadly Secrets: What Companies Know About Dangerous Workplaces and Why Exposing the Truth Can Save Workers' Lives in Bangladesh and Beyond, INT'L LABOR RIGHTS FORUM, December 2012. While Bangladesh remains at the bottom of the global economy in terms of workers' wages, it has emerged as the number two exporter of garments in the world after China. Id. In 2011-12 alone Bangladesh produced $19.1 billion in exports. Id. at 12. Predominantly responsible for this production are owners from the low-cost garment sector including western brands and retailers Walmart, H&M, JC Penney, Zara, Tesco, Gap, Kohl's, Marks and Spencer, G-Star, and Li & Fung. According to a survey by McKinsey & Company and export analysis by the World Bank, the ready-made garment industry now accounts for 13% of Bangladesh's gross domestic product and over 78% of total exports with 5,000 factories employing 3.6 million workers. Id. at 13. About 59% of Bangladesh's garment exports go to the European Union, 26% go to the U.S., and 5% go to Canada.

Bangladesh's exports are expected to triple within the next ten years, potentially surpassing China. Why the switch? The reason for the decrease in sourcing in China, says top supplier, Li & Fung, is that wages for Chinese garment workers rose by 40% in 2010, and 30% in 2011, making garments in China increasingly expensive to produce. Id.

Garment Workers' Conditions

Earning an average minimum wage of $37 a month, Bangladeshi garment workers are the lowest-paid garment workers in the world. Id. at 14. As of October 2012, approximately 156 million people, about half the population of the U.S., live in an area the size of the state of Iowa, where 84% of the population lives on less than $2.00 a day. UNICEF, Bangladesh Today,http://www.unicef.org/bangladesh/overview_4840.htm. Most garment workers do not know how their wages are calculated, or if they are paid appropriately. According to a survey conducted by the United Nations Industrial Development Organization (UNIDO), only about half of the garment factories provide workers with a wage sheet containing payment details. A 2010 study by the Bangladesh Institute of Labour Studies (BILS) found that "more than half of all garment workers do not receive pay slips and do not know if they are paid according to their pay grade."

According to the McKinsey study, every single chief purchasing officer participating named "low prices as the foremost reason for purchasing garments in Bangladesh." Claeson, supra. Bangladesh currently underprices its competitors, including China, Vietnam, Indonesia, India, and Cambodia in 15 out of the top 16 apparel items in the U.S. market. Id.

The tragedies in Bangladesh over the past year may have halted the "low-road path to industry growth" that has fueled the garment industry in Bangladesh.

Out Of Sight, Out Of Mind: The problem with outsourcing and subcontracting

Since the April collapse of the illegally constructed Rana Plaza factory building, the global supply chain that delivers goods to consumers from Bangladeshi factories has come under scrutiny. The November 2012 Tazreen Fashions fire occurred in a factory that was manufacturing garments for Wal-Mart. In 2011, Wal-Mart had ceased business with 49 Bangladeshi factories because they did not comply with their code of conduct. Tazreen Fashions was one of the 49 factories to remain off of the company's list of approved suppliers.

Why do retailers not know who is making their clothing? The answer lies in poor regulation and subcontracting. Global brands do not always know when orders have been subcontracted out by their original factories. This can occur when factories have taken on too many orders, or are afraid of missing a deadline. Sometimes orders also come from larger factories that have faced production delays due to political and worker unrest. See Tripti Lahiri and Christina Passariello, Why Retailers Don't Know Who Sews Their Clothing: Poorly Regulated Subcontractors Are a Factor in Garment Trade's Deadly Accidents, WALL ST. J., July 24, 2013.

Retailers like Wal-Mart, Gap Inc., H&M, and Inditex SA's Zara, say they have "strict rules about subcontracting." Id. Typically, manufacturers that deal directly with retailers sign a code of conduct, requiring them to disclose any subcontracting, so that those factories may be inspected. Id. Manufacturers that are running late, however, often skip the disclosure in order to save time. Approving a factory for subcontracting can take weeks to set up and complete.

Another concern with subcontracting is that subcontractor firms often do not meet the same safety standards of the factory that originally received the order, which are notoriously poor to begin with. 
A red flag in detecting subcontracting is fabric. Executive director of the Dhaka office of Synergies Worldwide, Zulificar Ali, states, "if the fabric is delayed, the likelihood of needing to subcontract as the shipping date approaches is much higher." Tripti Lahiri, How to Spot Factory Subcontracting, WALL ST. J., July 24, 2013.

While fabric imported to Bangladesh can be delayed for a number of reasons, the two most common are securing the bank credit required before the fabric can be shipped and given to a factory, and strikes that slow down transport from the port city of Chittagong, to plants in Dhaka. Id.

"If done right," says Synergies Worldwide, "subcontracting need not be synonymous with a lower grade of factory being used." Buying houses have emphasized the need for subcontractors, given the "unpredictable nature of life in Bangladesh, where factories have to work around everything from political strikes to heavy monsoon rains that can affect transportation." Id.

A Tale Of Two Accords

What can be done? Hope, and the next step in preventing factory tragedies my lie in the agreements developed by global retailers and brands, and labor and union organizations, that, in part, circumvent the Bangladesh government, allowing the business community to develop and focus on fire and safety standards, as well as workers' rights.

There has been much criticism and speculation from labor activists and organizations regarding the labor standard agreements post-Rana Plaza. Much of the criticism has been received by several American companies that have refused or pulled out of signing the initial agreement, the Accord on Fire and Building Safety in Bangladesh. As of August 9, 2013, the Accord has garnered support from over 82 retailers and brands, mainly European. Of the 82, only five companies are American, three of which actually source garments from Bangladesh.

Not immune to speculation, Philips - Van Heusen (PVH Corp.), owner of Calvin Klein and Tommy Hilfiger, among others, signed the Accord days before the airing of an ABC exposé focusing on dismal health and safety conditions in Bangladesh garment factories.

The Accord on Fire and Safety in Bangladesh

On March 21, 2012, PVH Corp. signed the Bangladesh Fire and Safety Building Agreement, a worker safety program in conjunction with Bangladeshi international unions and labor rights groups. This agreement subsequently grew to become the Accord on Fire and Safety in Bangladesh.

The agreement calls for independent factory inspections, transparent reporting, and worker participation in self-monitoring their safety. The agreement additionally involves financing provisions for factory improvements. Unlike previous and other existing corporate initiatives, the agreement is legally binding, not voluntary or charitable.

Under the program, brands and retailers are required to disclose supplier factories to an independent inspector. Factories are designated into three tiers based on volume of production, and factories in all tiers are subject to inspection. Factories must rectify safety violations, as per independent inspectors, and buyers are required to cease doing business with any factories that fail to address safety concerns.

If a factory closes for renovations, workers are fully paid during the closure. Additionally, workers are able to express and report concerns regarding health and safety hazards to a chief inspector. 

The signatories of the Accord will appoint a Steering Committee that will consist of seven seats. Three of those seats will represent trade unions, and three will represent the companies. The seventh seat will be a representative chosen by the International Labour Organization (ILO). In addition to overall management and financial duties, the Steering Committee will have the responsibility of selecting, contracting, compensating, and overseeing a Safety Inspector and a Training Coordinator for facilities. The Steering Committee must reach decisions by a consensus, and in the absence of a consensus, by a majority vote. Disputes that arise under the agreement are to be settled by the Steering Committee. Either party may appeal the decision to a final and binding arbitration process that will be "enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards," where applicable. The arbitration process is governed by the UNCITRAL Model Law on International Commercial Arbitration 1985, including amendments adopted in 2006. Accord on Fire and Building Safety in Bangladesh (May 13, 2013), available athttp://www.laborrights.org/sites/default/files/publications-and-resources/Accord_on_Fire_and_Building_Safety_in_Bangladesh_2013-05-13.pdf.

The Bangladesh Worker Safety Initiative

Several American companies, including Wal-Mart, have distanced themselves from the Accord for fear of "being held liable in U.S. courts if they were found to violate the agreement." Christina Passariello, Shelly Banjo, and Gordon Fairclough., Standards Clash in Bangladesh Reforms, WALL ST. J., May 17, 2013, at B1. This is in part because, under the Accord, the Steering Committee voting process will allow trade unions and the ILO to hold a majority vote almost always.

Announcing their alternative plan, "The Bangladesh Worker Safety Initiative," in July, the Alliance for Bangladesh Worker Safety, comprised of North American retailers and brands including Wal-Mart Stores Inc., The Gap Inc., VF Corp., and Target Corp., has formed a five-year worker, fire and factory safety pact that has allotted at least $42 million towards improving factory safety conditions in Bangladesh. The plan will cover 500 factories in Bangladesh. This is out of approximately 5,000 factories in Bangladesh, almost half of which are estimated to be subcontracted out. The plan will provide more than $100 million in loans and access to capital to help factory owners make safety improvements. The plan calls for the inspection of 100% of all of the members' factories in Bangladesh within the first year.

Conflict, Competition, and Legal Implications

The plan has been blasted by labor groups such as The Worker Rights Consortium, International Labor Rights Forum, and the Clean Clothes Campaign calling it a top-down "corporate-run factory auditing scheme, another in the long series of ineffective corporate auditing programs that these companies have touted for years."See Kristi Ellis, North American Retailers Unveil Bangladesh Plan, WOMEN'S WEAR DAILY, July 11, 2013, at 1. Reps. George Miller, (D., Calif.), and Sander Levin, (D., Mich.), who have been outspoken on the safety issues, supporting the Accord, have stated the Alliance's plan is "a strictly optional program to make 'affordable capital' available to factories." While the Accord obligates its members to provide funds to fix hazardous factory conditions, the Alliance's plan does not. "Indeed, the primary purpose of the Alliance appears to be to limit the retailer's liability- and therefore responsibility- in ways the Accord would not," states Levin and Miller. Id.

At their press conference in July, company executives that signed the Alliance's plan stressed that while there are key differences, their plan and the Accord are similar. Jay Jorgensen, the senior vice president and global chief compliance officer at Wal-Mart stated a main and primary reason North American retailers did not sign the Accord was concern over legal liability, despite the fact that other North American retailers signed. "The Accord has some provisions, in the way the U.S. and Canadian legal system works, that would subject us to potentially unlimited legal liability and litigation." Id.

Will workers have any recourse under the Alliance's plan? According to Jorgensen, if a worker reports conditions that are not measuring up, the company must investigate. If a factory does not meet standards, it will be terminated from the agreement. Id.

Labor groups are concerned that the Alliance's plan is "unenforceable by workers." Companies are left to take action, putting all of the power "in the hands of corporations." Id. This differs from the Accord, where worker representative organizations are permitted to take action. Additionally, companies may walk away from the Alliance's plan versus the Accord, which is legally binding.

Another difference between the Alliance's plan and the Accord is that the Accord circumvents the Bangladesh government, not requiring its participation, whereas the Alliance's plan, requires the participation of the Bangladesh government. Some U.S. retailers pointed to the lack of participation of the Bangladesh government as a reason for not signing the Accord, stating the government has "the power to ensure that building codes are enforced and worker rights upheld." Suzanne Kapner and Shelly Banjo, Plan B for Bangladesh, WALL ST. J., June 27, 2013, at B4.

How involved should the Bangladesh government be? There is no definitive answer. Given their notoriously corrupt reputation, involvement of and enforcement by the Bangladesh government has been met with skepticism, especially when members Bangladesh's government are factory owners themselves, and have resisted change before.

As recently as July, Mohammad Refatuallah, mayor of Savor, the town where the Rana Plaza complex collapsed in April, was arrested for allowing the structure to be built without the mandatory permits from the national building safety agency. He is the second local politician to be arrested in connection with the illegal construction of the Rana Plaza complex. See Syed Zain Al-Mahmood, Mayor Arrested, Linked to Bangladesh Collapse, WALL ST. J., July 24, 2013.

It is no secret that business interests dominate Bangladesh's Parliament. "Of its 300 members, an estimated 60 percent are involved in industry or business." According to analysts, "31 members, or 10% of the country's legislators, directly own garment factories, while others have indirect financial interests in the industry." More proof of this is the power of the Bangladesh Garment Manufacturers and Exporters Association (B.G.M.E.A.), which regulates and administers exports. Its leaders sit on "high-level government committees on labor and security issues." As Rizwana Hasan, an environmental lawyer has stated, "You can't put the fox in charge of the chickens." Jim Yardley, Garment Trade Wields Power in Bangladesh, N.Y. TIMES, July 24, 2013.

While it is of the utmost importance that fire and building safety standards in Bangladesh factories are enacted and even more importantly, enforced, it is integral that workers have a voice, are represented, and afford legal recourse and protection.

Conclusion

The current conditions of Bangladesh factories echo the conditions of the Triangle Shirtwaist Factory fire over 100 years ago, and while these incidences have not occurred on U.S. soil, they remain a part and a reflection of American manufacturing and America's value of the worker.

It is unfortunate that it has taken devastating and horrific events to finally bring exposure and prospectively, change to the garment industry, at home and abroad. Although the agreements have been a step in the right direction for companies to not pull out of Bangladesh, many companies are approaching the next hurdle of "where do we source next?"

Elisabeth Schiffbauer is a graduate of the Dominican University of California/Alonzo King LINES Ballet BFA Program and is a second year student at New York Law School. She is part of New York Law School's IP Fashion Law Job Track Program and is Vice President of the Media, Entertainment, and Fashion Law Association. Elisabeth is a contributor for New York Law School's Fashion Law blog, Case Clothesed, and will be a contributor to the Legal As She Is Spoke (LASIS) blog for Fall 2013. She wishes to thank Professor Heidi Brown for her guidance and support.

"The Military Extraterritorial Jurisdiction Act: Past Legacy And Future Challenges" by Peter T. Nguyen


The Military Extraterritorial Jurisdiction Act: Past Legacy And Future Challenges

by Peter T. Nguyen

I. Introduction

Assume the following: two Americans marry. United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000). The wife is an active-duty United States Army Sergeant, and has two daughters from her prior relationship. Id. The husband is an American civilian who does not have any affiliation, aside from his wife, with the United States military. Id.at 209. The husband, wife, and stepdaughters live on an American military housing complex in Germany; the United States government leases the complex from Germany. Id. Over the course of six months, at the military housing site, the husband has sexual intercourse with one of the stepdaughters, who is thirteen years old, and eventually impregnates her, which is discovered when the family returns to America.Id. at 210. The husband is charged with violating 18 U.S.C. § 2243(a), sexual abuse of a minor occurring in the "special maritime and territorial jurisdiction of the United States." Id.

Although the husband initially pleads guilty, he later sues to have his charges dismissed for lack of jurisdiction. Id. The trial court dismisses the husband's motion, and finds him guilty - that he did commit the crime at a location within the United States' special maritime and territorial jurisdiction. Id.

This was the background of United States v. GatlinSee id. at 209-210 (cited in Glenn R. Schmidt, The Military Extraterritorial Jurisdiction Act: the Continuing Problem of Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad-Problem Solved? , 2000 ARMY LAW. 1, 1 (2000) [hereinafter Continuing]). Surprisingly, the Court of Appeals for the Second Circuit reversed, finding that the special maritime and territorial jurisdiction of the United States, as defined in 18 U.S.C. § 7(3) did not apply extraterritorially, and consequently, the defendant could not be tried for sexual abuse. Id. at 210 (cited in Continuing at 1). According to the Second Circuit, a plain meaning analysis of the statute revealed the statute was ambiguous in terms of extraterritoriality. Id. at 211-216 (cited in Continuing at 1). The Second Circuit also analyzed the legislative history of 18 U.S.C. § 7(3), which indicated that Congress intended special maritime and territorial jurisdiction to apply only to United States territory - not foreign countries. Id. at 216-220 (cited in Continuing at 1). The court further noted that, as a civilian, the defendant could not be prosecuted by the United States military under a court martial, based on Supreme Court precedents. Id.at 220 (citing Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960)).

Unfortunately, Congress had never given Article III courts the jurisdiction to hear criminal cases of U.S. citizens who had committed crimes overseas while employed by or accompanying the American military, despite multiple bills in the past. Id. at 222 & n. 23 (citing numerous bills, including: S. 768 & S. 899, 106th Cong. (1999); S. 147, 101st Cong. (1989); H.R. 226, 90th Cong. (1967)) (cited in Continuing at 2). This resulted in a "jurisdictional gap," where those civilians evaded prosecution. Id. at 221 (cited inContinuing at 2).

Justice Cabranes, in his opinion, summarized the problem:

In short, for over, fifty years, there has been a consensus--among all three branches of the federal government as well as academic commentators--that notwithstanding the existence of § 7(3) and its precursors, United States Courts lack jurisdiction over crimes committed by civilians accompanying the military overseas.

Id. at 222.

This article will examine the effects of the Military Extraterritorial Jurisdiction Act (MEJA), Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261-3267 (2006), in addressing the "jurisdictional gap," which has been a long-standing source of injustice and embarrassment to the United States. Legal challenges to the application and constitutionality of MEJA, as well as issues that have continued to affect its enforceability, will also be discussed. Finally, the impact of proposed legislation, the Civilian Extraterritorial Jurisdiction Act (CEJA) in closing the jurisdictional gap will be reviewed. 

II. The Jurisdictional Gap

The jurisdictional gap that essentially freed civilians from prosecution was the result of a unique set of circumstances, as the House of Representatives noted in a Report on H.R. 3380, a precursor to MEJA. H.R. REP. No. 106-778(I), at 5 (2000). As the Report noted, members of the United States armed forces who commit crimes are subject to the Uniform Code of Military Justice, Uniform Code of Military Justice, 10 U.S.C. §§ 801-940 (2006), other federal and state laws, and even potentially the laws of the country where the crime was committed. H.R. REP. No. 106-778(I) at 5-6. 

However, the prosecution of civilians for offenses they committed overseas was much more problematic. Id. at 6-8. The Report first noted that United States Supreme Court decisions had severely curtailed the military courts' ability to court-martial civilians under the UCMJ under Art. 2(a)(10) and 2(a)(11) of the UCMJ. Id. at 7. "Article 2(a)(11) was struck down by a line of cases that included Reid v. Covert, 354 U.S. 1 (1957) and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960). Article 2(a)(10) was limited to apply only to during times of congressionally declared war in U.S. v. Averette, 41 C.M.R. 363 (C.M.A. 1970)". Id. at 7 and n. 8. Moreover, the Report described how existing federal and state law was of little use in prosecuting civilians in prosecuting crimes overseas:

While some Federal criminal statutes are expressly extraterritorial, most make the acts described therein criminal only if they are committed within the "special maritime and territorial jurisdiction of the United States" or if they affect interstate or foreign commerce. Therefore, in most instances Federal criminal jurisdiction ends at the nation's borders. State criminal jurisdiction, likewise, ends at the boundaries of each state.

Id. at 7.

The Report identified a third element of the gap: disinterest by host countries in prosecuting violations of their own laws that did not affect the host countries' citizens or interests. Id. at 7. This resulted in an alarming lack of prosecutions for major crimes such as "rape, sexual abuse, aggravated assault, arson, robbery, drug distribution, and a variety of fraud and property crimes." Id. Even worse, the Report pointed out, were countries where no government even existed which could carry out prosecutions. Id. at 7 & n. 7 (citing U.S. DEP'T OF DEFENSE, OFFICE OF THE INSPECTOR GENERAL, EVALUATION OF MILITARY CRIMINAL INVESTIGATIVE ORGANIZATIONS' INVESTIGATIVE EFFECTIVENESS REGARDING U.S. FORCES CIVILIANS STATIONED OVERSEAS, NO. 99500009I, 7-10 (September 7, 1999). 

The jurisdictional gap had severe negative consequences on the American military and American foreign relations. Military Extraterritorial Jurisdiction Act of 1999: Hearing Before the Subcommittee on Crime of the H. Comm. on the Judiciary, 106th Cong. 17 (2000) (statement of Robert Reed, Associate Deputy General Counsel, Department of Defense) (cited in Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad--A First Person Account of the Creation of the Military Extraterritorial Jurisdiction Act of 2000, 51 CATH U.L. REV 55, 77 (2001) [hereinafter Closing])). According to Robert E. Reed, the Associate Deputy General Counsel of the Department of Defense, the lack of criminal accountability "undermined deterrence, lowered morale, and threatened good order and discipline" in U.S. military overseas. Id. (cited in Closing at 77). The failure to prosecute civilians who had committed crimes overseas was a source of embarrassment to the United States, and it potentially harmed relationships with American allies. Id.

III. The Military Extraterritorial Jurisdiction Act (MEJA)

After several decades of inaction, and as a result of situations such as what occurred in Gatlin, Congress finally passed the Military Extraterritorial Jurisdiction Act in 2000. Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261-3267 (2006). MEJA contains seven sections. The first and most important section, § 3261, establishes the criminal offense that is punished. See § 3261(a). MEJA is violated when A) a person commits what would be a felony under the United States' special maritime and territorial jurisdiction, and B) the person is "employed by or accompanying the Armed Forces outside of the United States" or serving as a member of the Armed Forces subject to the Uniform Code of Military Justice (UCMJ). § 3261(a). 

A person is "employed by the Armed Forces outside the United States" if he or she is a civilian employee of the Department of Defense (DOD); "any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas;" a contractor or subcontractor for the DOD or Federal agency or provisional authority supporting the DOD's mission overseas; or an employee of such a contractor or subcontractor. § 3267(1)(A). In addition, the employment must be the cause of the civilian's station overseas and the civilian cannot be a national or ordinary resident of the country he or she works in. § 3267(1)(B)-(C). An individual is "accompanying the Armed Forces outside the United States" if he or she is a dependent of the following entities: a military service member, a civilian DOD employee, contractor, subcontractor, an employee of the contractor subcontractor; B) resides with one of those entities; and C) is not a national or "ordinarily a resident" of the host nation. § 3267(2)(A)-(C).

Only the U.S. Attorney General or Deputy Attorney General, or "a person enacting in either such capacity," can approve MEJA prosecutions, when a foreign nation is prosecuting or has prosecuted a civilian under that nation's laws and the United States recognizes that nation's criminal jurisdiction. § 3261(b). The U.S. military retains the right to pursue courts-martial, military commissions, and other forms of military justice that punish certain conduct. § 3261(c). Members of the armed forces who are subject to the UCMJ ordinarily are not subject to MEJA prosecutions, unless they cease to be subject to the UCMJ or they were indicted or charged with committing an offense with a person who was not subject to the UCMJ. § 3261(d)(1)-(2). Thus, in addition to certain civilians who commit crimes overseas, former members of the military who committed crimes while they were serving can also be prosecuted under MEJA. 

An individual arrested for violating MEJA must be released, as soon as possible, to civilian law enforcement for eventual removal to the United States for a trial, unless he or she has also been charged with violation of the UCMJ or an exception to MEJA applies. § 3262(b). There are also additional due process protections for individuals who have been arrested or charged with a MEJA violation. §§ 3264-3265. Generally, individuals who have been arrested or charged with violating MEJA and are not being removed to a foreign country under § 3263 of MEJA, cannot be removed to the United States. § 3264(a). There are several exceptions to this bar on removal: for example, federal magistrate judges may order arrestees removed to the United States for detention hearings. § 3264(b)(1). In addition, a federal magistrate judge must preside over the initial appearance of the individual under the Federal Rules of Criminal Procedure; the appearance can be by telephone or other voice communication. § 3265(a)(1). At the initial appearance, the magistrate must determine if there is probable cause to believe that the individual arrested or charged violated MEJA. § 3265(a)(2). Like the initial appearance, a federal magistrate judge must also preside over any detention hearings of an individual arrested or charged with violating MEJA. § 3265(b)(1)-(2).

Since the enactment of MEJA, the Department of Justice has brought several prosecutions against civilians accompanying or employed by the United States Armed Forces for crimes committed under MEJA's jurisdiction. See Holding Criminals Accountable: Extending Criminal Jurisdiction for Government Contractors and Employees Abroad Hearing Before the S. Comm. on the Judiciary, 112th Cong. 23 (2011) (Statement of Lanny Breuer, Assistant Attorney General, Criminal Division) [hereinafter Holding]. These cases have mostly remained at the district court level.See, e.g., United States v. Williams, 825 F. Supp. 2d 117 (D.D.C. 2011); United States v. Williams, 722 F. Supp. 2d 1313 (M.D. Ga. 2010); United States v. DeLeon, No. RDB 09-095, 2009 U.S. Dist. LEXIS 85950 (September 21, 2009). Only a few of these cases have reached the appellate level. See, e.g.United States v. Brehm, No. 11-4755, 2012 U.S. App. LEXIS 16711 (4th Cir. August 10, 2012); United States v. Green, 654 F.3d 637 (6th Cir. 2011), aff'g United States v. Green, 2009 U.S. Dist. LEXIS 50799 (W.D. Ky., May 14, 2009), cert. deniedGreen v. United States, 2012 U.S. LEXIS 366 (U.S., Jan. 9, 2012).

Several of the challenges to MEJA have attacked its applicability to individual defendants, such as foreign nationals. See Brehm, 2012 U.S. App. LEXIS 16711. One recent appellate decision, United States v. Brehm, involved a South African employee of a contractor working for the United States military at Kandahar Air Field in Afghanistan. Id. at *1-3.

As part of his employment, Brehm signed a form acknowledging he was subject to criminal liability under MEJA. Id. at *3. Brehm later argued with a British employee of another contractor at Kandahar Air Field, and stabbed him. Id. Brehm was charged with assault with a deadly weapon, 18 U.S.C. § 113(a)(3) and assault with intent to cause serious bodily harm, 18 U.S.C. § 113(a)(6). Id. at *4. The indictment for both charges was brought under the jurisdiction of MEJA, which applied to contractors' employees under 18 U.S.C. § 3267(1)(A)(iii). Id. at *4. As part of a plea arrangement, Brehm pleaded guilty to assault with intent to cause serious bodily harm but was allowed to appeal that conviction. Id. at *5-6.

On appeal, the Fourth Circuit first held that MEJA was applicable to Brehm, even though he was a foreign citizen. Id. at *11. Brehm's actions fell within the conduct prescribed by MEJA, which was passed under Congress' enumerated powers to make all laws necessary and proper to regulate the military. Id. at *7-8. The Fourth Circuit also reasoned that but for Brhem's employment in Afghanistan by his contractor, the assault and stabbing never would have occurred. Id. at *10-11. 

Second, the court held that that Brehm's due process rights were not violated. Id. at *18.
As the court pointed out, the government's decision to prosecute the defendant under MEJA was hardly arbitrary:

[H]is actions affected significant American interests . . . not the least of which were the preservation of law and order on the base, the maintenance of military -related discipline, and the reallocation of DOD resources to confine Brehm, provide care for J.O. [the victim], and investigate the incident."

Id. at * 13.

The court reasoned that the "pervasive" American interests at Kandahar provided a sufficient nexus between the United States and Green for the purposes of due process. Id. Moreover, an agreement between Afghanistan and the United States had also granted criminal jurisdiction to the United States to prosecute crimes by personnel working for the United States Armed Forces - such as contractors like Brehm. Id. at *14-16. Due process was not violated in the United States' prosecution of Brehm, since there was a rational interest: the U.S. was attempting to prevent the "random lawlessness" that would result from letting civilian lawbreakers escape justice, which would undermine U.S. goals in Afghanistan. Id. at *16. In addition, Brehm's prosecution under MEJA was not unfair, because he was placed on notice about potential criminal liability when he signed his employment contract. Id. at *17. 

MEJA challenges have also attacked the constitutionality of MEJA itself. See, e.g.,United States v. Green, 654 F.3d 637 (6th Cir. 2011), aff'g United States v. Green, 2009 U.S. Dist. LEXIS 50799 (W.D. Ky., May 14, 2009), cert. deniedGreen v. United States, 2012 U.S. LEXIS 366 (U.S., Jan. 9, 2012); United States v. Williams, 722 F. Supp. 2d 1313 (M.D. Ga. 2010). Another recent appellate decision, United States v. Green, involved a defendant who had participated in the infamous Mahmoudiyah killings in Iraq in 2006.Id. at 641-44. See A Soldier's Shame, July 9, 2006(describing Mahmoudiyah killings and Green's service in the United States Army). In 2006, Green, the defendant, participated in the murder of an Iraqi family and the rape and murder of the family's fourteen year old daughter in Mahmoudiyah, Iraq. Id. at 642. He also participated in the burning of the bodies and the subsequent attempt to attribute the slayings to Iraqi counterinsurgents. Id. An Army investigation resulted in the courts-martial of Green's companions, but he had already been discharged from the Army and was no longer subject to military justice. Id. at 643.

Green was charged with, and eventually convicted, under MEJA for several crimes, including felony murder and aggravated sexual abuse. Id. at 644. However, he argued that he had never been properly discharged from the military and was actually still subject to the Uniform Code of Military Justice, placing him outside the scope of MEJA. Id. at 644. He also attacked the constitutionality of MEJA. Id.

On appeal, the Sixth Circuit held that Green was properly discharged from the Army and subject to MEJA. Id. at 646. The court adopted the three-element test used by the former Court of Military Appeals (now Court of Appeals for the Armed Forces) inUnited States v. KingId. at 648 (citing United States v. King, 27 M.J. 327, 329 (C.M.A. 1989)). As the court pointed out, King required three elements: "(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a 'clearing' process as required under appropriate service regulations to separate the member from military service." Id. (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F 2006)). The first two elements were undeniably satisfied, and the Army's actions, such as granting Green separation orders with a final separation date, sufficiently demonstrated a "clearing process" for final discharge. Id. at 649. 

The Sixth Circuit next held that MEJA was constitutional, rejecting Green's separation of powers, nondelegation, equal protection, and due process arguments.Id. at 646. First, the court rejected Green's argument that Congress had improperly delegated its power to the "executive branch . . . to define crimes, punishments, and adjudicative procedures." Id. at 650. The court reasoned that there was no separation of powers violation when there was "no encroachment or aggrandizement of one branch at the expense of another." Id. at 650 (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976)). Here, neither Congress nor the judiciary actually lost power when the executive branch was now allowed to prosecute civilians under MEJA. Id. at 650.

Second, the court rejected Green's equal protection challenge. For an individual to bring an equal protection challenge, the Sixth Circuit cited the United States Supreme Court's test, which required the plaintiff's claim that: "(1) he or "she has been intentionally treated differently from others similarly situated"; and (2) "there is no rational basis for the difference in treatment."" Id. at 651 (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Green was validly discharged under an Army regulation for a "personality disorder" and was not similarly situated to his companions, who received court-martials and punishment under the UCMJ. Id. at 651. He was also unable to show that the government lacked a rational basis for prosecuting him under MEJA, because he neither demonstrated arbitrariness in the government's MEJA decision to prosecute under MEJA, or any kind of prejudice against him. Id. at 652. 

Finally, the court found that the application of MEJA to the defendant had not violated his due process rights under the Fifth Amendment. Id. The court reasoned that the prosecution of discharged soldiers under a federal statute for crimes they committed while in uniform was not a violation of due process. Id. Here, the Army had validly discharged Green for a behavioral condition, even before he was implicated in the events at Mahmoudiyah. Id.

IV. The Jurisdictional Gap After MEJA

Although the Justice Department has had success bringing MEJA prosecutions, problems in the statutory language of MEJA have complicated its enforcement. See Holding at 4. For example, Lanny Breuer, an Assistant Attorney General of the United States, noted that MEJA prosecutions were intensely fact-specific and could only be brought when the defendant's employment involved "supporting the mission of the Department of Defense overseas." Id. As a result, even routine criminal investigations involved evaluating the "defendant's employment, his or her specific work duties, and other jurisdiction-related facts." Id.

As Assistant Attorney-General Breuer observed, in addition to MEJA prosecutions, the U.S. Government could also bring prosecutions under its special maritime and territorial jurisdiction statute, as well as specific federal criminal statutes with express extraterritorial effects. Id. See CHARLES DOYLE, CONG. RESEARCH SERV., 94-166, EXTRATERRITORIAL APPLICATION OF AMERICAN LAW 40-63 (2012) (listing federal statutes which have extraterritorial effect under special maritime and territorial jurisdiction, special aircraft jurisdiction, treaties, and in their own statutory language). The Government also has other federal criminal statutes with express application extraterritorially. For example, under the special maritime and territorial jurisdiction of the United States, the U.S. Government can bring prosecutions for crimes such as murder, 18 U.S.C. § 1111 (2006), and sexual abuse, 18 U.S.C. § 2241-2244 (aggravated sexual abuse, sexual abuse, sexual abuse of a minor or ward, and abusive sexual contact). Federal criminal statutes that can apply extraterritorially include retaliation against a witness, victim, or informant, 18 U.S.C. § 1513(d) (2006), killing or attempted killing of members of Congress, the Executive Branch, or the Supreme Court, 18 U.S.C. 351(i) (2006), use of a weapon of mass destruction outside the United States, 18 U.S.C. § 2332a (2006), and torture under color of law outside the United States, 18 U.S.C. § 2340A (2006). In addition, civilian contractors may also be subject to prosecution under Article 2(a)(10) of the Uniform Code of Military Justice for any crimes they commit while accompanying the armed forces of the United States. See JENNIFER K. ELSEA, CONG. RESEARCH SERV., R40991, PRIVATE SECURITY CONTRACTORS IN IRAQ AND AFGHANISTAN: LEGAL ISSUES 24-27 (2009) (describing the requirements to prosecute civilians under the UCMJ and complications with such prosecutions) [hereinafter Private].

But as Assistant Attorney General Breuer observed, the prosecution of some civilian contractors under MEJA contains a significant loophole. See Holding at 4. Currently, civilian employees of non-Department of Defense federal agencies, contractors, and subcontractors can be prosecuted under MEJA only if their employment "relates to supporting the mission of the Department of Defense overseas." Id.; 18 U.S.C. § 3267(1)(A(i)(II) (non-Department of Defense federal agencies and provisional authorities); 18 U.S.C. § 3267(1)(A)(ii)(II) (contractors and subcontractors); 18 U.S.C. § 3267(1)(A)(iii)(II) (employees of contractors and subcontractors). The Assistant Attorney General observed that, as a result, an employee of a non-Department of Defense federal agency whose work was unrelated to the Department of Defense, could effectively escape prosecution. H.R. 4567 (Civilian Extraterritorial Jurisdiction Act of 2010); S. 2979 (Civilian Extraterritorial Jurisdiction Act of 2010). 

The continuing jurisdictional gap in MEJA has become even more of a potential issue since the wars in Iraq and Afghanistan, where large number of civilian contractors were employed by or accompanied the United States military. See MOSHE SCHWARTZ AND JOYPRADA SWAIN, CONG. RESEARCH SERV., R40764, DEPARTMENT OF DEFENSE CONTRACTORS IN AFGHANISTAN AND IRAQ: BACKGROUND AND ANALYSIS 28-29 (2011) (cited in Private at 1). For example, in Iraq, in September 2007, the United States had 169,000 troops and 154,825 contractors, comprising 35% and 32%, respectively of the total U.S. contractor and troop force in Iraq. Id. at 28, app. B. U.S. troops completely withdrew from Iraq in December of 2011. David Cutler, Timeline: Invasion, surge, withdrawal; U.S. troops in Iraq, REUTERS, Dec. 18, 2011,http://www.reuters.com/article/2011/12/18/us-iraq-usa-pullout-idUSTRE7BH08E20111218). However, there are still significant numbers of contractors in Iraq and Afghanistan. U.S. DEP'T OF DEFENSE, CENTCOM QUARTERLY CONTRACTOR CENSUS REPORT 1 (July 2013). According to the U.S. Central Command (CENTCOM), as of July 2013, there were still approximately 10,300 DOD and Department of State (DOS) contractors in Iraq and roughly 129,100 DOD contractors in Afghanistan. Id. at 2. Contractors perform a variety of different tasks for the U.S. military; for example, contractors in Afghanistan provide security, communications and logistic support, and translation services. Id. at 1. The large number of civilian contractors in Iraq and Afghanistan represents a significant population of individuals for whom prosecution under MEJA and other existing federal laws could be daunting, especially given the jurisdictional gap. 

In 2010, Senator Patrick Leahy of Vermont and Representative David Price of North Carolina introduced the Civilian Extraterritorial Jurisdiction Act (CEJA), through two identical bills in the Senate and the House, which would have addressed MEJA's continuing jurisdictional gap. Civilian Extraterritorial Jurisdiction Act of 2010, H.R. 4567, 111th Cong. (2010), S. 2979 , 111th Cong. (2010). Neither bill left its respective committee. See LIBRARY OF CONGRESS (THOMAS), http://thomas.loc.gov/cgi-bin/bdquery/z?d111:S2979 (Senate bill last referred to Senate Judiciary Committee); LIBRARY OF CONGRESS (THOMAS), http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.04567: (House bill last referred to Subcommittee on Crime, Terrorism, and Homeland Security). However, in 2011, Sen. Leahy and Rep. Price reintroduced CEJA. H.R. 2136, 112th Cong. (2012); S. 1145, 112th Cong. (2012). See also Press Release, Sen. Patrick, Leahy, Price Introduce Companion Bills To Hold American Contractors Overseas Accountable Under U.S. Law. Sen. Leahy indicated that the need for this legislation was made clear by the unsuccessful prosecutions of the Blackwater contractors in the Nisoor Square killings, the rape of Halliburton employee Jamie Leigh Jones, and other incidents. Executive Business Meeting on S. 1145, the Civilian Extraterritorial Jurisdiction Act Before the S. Judiciary Comm., 112th Cong. (2012) (Opening statement of Sen. Patrick Leahy), available athttp://www.judiciary.senate.gov/hearings/testimony.cfm?id=3d9031b47812de2592c3baeba601239f&wit_id=3d9031b47812de2592c3baeba601239f-0-1. The Nisoor Square killings were particularly egregious: Blackwater security contractors opened fire on unarmed Iraqi civilians and killed 17, including a 9-year old boy. Jeremy Scahill, Blackwater's Youngest Victim, THE NATION, Feb. 22, 2010. 

The Civilian Extraterritorial Jurisdiction Act creates a new federal crime, which applies to all federal contractors and employees, while "employed or accompanying any department or agency of the United States other than the Armed Forces." S. 1145 SEC. 2, proposed § 3272(a) (2012). It punishes those contractors and employees when they commit, attempt to commit, or conspire to commit, offenses that would be punishable if committed in the United States or under the special maritime and territorial jurisdiction of the United States. The crimes that can be punished under CEJA are also specified, SEC. 2, proposed § 2372(c), such as arson, SEC. 2, proposed § 3272(c)(1), and bribery of public officials and witnesses, SEC. 2, proposed § 3272(c)(3). CEJA authorizes the Attorney General to create "Investigative Task Forces for Contractor and Employee Oversight," which will monitor any potential violations of CEJA. SEC. 3(a)(1). Under CEJA, the Attorney General has the primary responsibility for investigating CEJA violations, SEC. 3(b)(1), and he or she may also request assistance from the Secretary of State, Secretary of Defense, and chiefs of other federal agencies for CEJA investigations, SEC. 3(b)(4). More importantly, CEJA also authorizes the Attorney General, after consulting with the Secretary of State and Secretary of Defense, to issue regulations implementing the "investigation, apprehension, detention, delivery, and removal" of individuals who may have violated CEJA, SEC. 2, proposed § 3273. 

However, as U.S. Senator Chuck Grassley pointed out, CEJA could potentially impair the intelligence-gathering activities of U.S. agencies overseas, because CEJA's intelligence activity exemption requires that an activity be authorized and "consistent with applicable U.S. law." News Release, Sen. Chuck Grassley, Grassley: Changes Need to Be Made to Judiciary Committee passed Bill (June 23, 2011), available athttp://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=35637. As Senator Grassley observed, field agents may not always be able to determine if their actions are consistent with American law, and he proposed a broader exemption for intelligence and law enforcement activities overseas. Id. Senator Grassley's national security concern, about the need to protect the work done by American intelligence agencies, is certainly legitimate. Ultimately, a version of CEJA that balances this concern could finally close the remaining jurisdictional gap, by eliminating MEJA's DOD-mission requirement for civilian employees.

V. Conclusion

For decades, a gap in jurisdiction between military courts and Article III courts prevented the prosecution of civilians who had committed crimes overseas when accompanying or employed by the armed forces. Congress finally moved to close the gap through the passage of MEJA in 2000, which has resulted in a number of effective prosecutions for crimes such as murder and assault. However, due to the language in MEJA, a jurisdictional gap remains where civilians who work for non-DOD contractors and subcontractors in a capacity unrelated to the DOD's mission could potentially escape prosecution. One proposed law, the Civilian Extraterritorial Jurisdiction Act, eliminates this final gap in jurisdiction, and its passage would finally allow for the prosecution of all civilians committing crimes extraterritorially. 

Peter T. Nguyen is a third-year law student at the State University of New York at Buffalo Law School. He graduated from the Johns Hopkins University in 2005 with a BA in English. He is interested in litigation, national security, financial regulation, and federal practice. Deep thanks go to Professor Christine Bartholomew for her editorial advice and other assistance with reference to this article. In addition, Peter thanks the attorneys from his internships at the U.S. Army JAG Corps and the U.S. Navy JAG Corps for inspiring him to write this article.

"The Ethics Of Cloud Computing" by Mindy F. VanLeuvan


The Ethics Of Cloud Computing

by Mindy F. VanLeuvan

Across the world, computers are being widely utilized for the practice of law. Practitioners are starting to embrace using digital media, all forms of electronic data, and social networking. Technology is constantly changing. New ways of using both computers and electronic data are emerging every day.

One of the newest forms of technology that is being introduced into the main stream user's world is that of cloud computing. The National Institute of Standards and Technology define cloud computing as being a "... model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction." See Timothy Grance & Peter Mell, The NIST Definition of Cloud Computing: Recommendations of the National Institute of Standards and Technology

Put more simply, one thing cloud computing allows you to do is to conveniently access your data, on-demand, virtually, just about anywhere you are, from different computers or platforms, such as tablets and smart phones. For example, you took your tablet with you to court instead of your laptop today. The Judge requests a document of you weren't expecting to need. As long as you had saved that document to a cloud computing service, you will be able to access it on your tablet as well. As convenient as this option might be, it also presents lawyers with an array of ethical issues to be aware of, due to confidentiality concerns. 

The New York State Bar Association's Committee on Professional Ethics published Opinion 842 on using cloud computing services in September 2010. The opinion outlines the ethical considerations in using such an outside, online storage provider, to store a client's confidential information. See New York State Bar Association, Committee on Professional Ethics, Opinion 842. The opinion outlines the committee's determination that a lawyer may use an online storage system and that conduct is "has deemed ethically permissible" if the attorney takes steps to ensure the data is sufficiently secure. Id. The ethics committee refers to Rule 1.6(c) regarding an attorney's duty to "exercise reasonable care to prevent . . . others whose services are utilized by the lawyer from disclosing or using confidential information of a client." Id. The committee does state that Rule 1.6 does not create a duty for the lawyer to "guarantee the information is secure from any unauthorized access." Id.Even so, a lawyer "should exercise reasonable care to prevent others whose services are utilized by the lawyer[,] from disclosing or using confidential information of a client." Id.

While the utilization of a cloud computing service is convenient for an attorney, it can also be beneficial to their client. An attorney can use cloud computing to ensure a client's data is secure, and isn't lost by keeping two copies of the electronic data, one on their local computer, and one on the cloud's servers. Utilizing a service to preserve clients information is consistent with "conduct" that the ethics committee "has deemed ethically permissible." See N.Y. State 473 (1977). 

Cloud computing has many advantages. Being able to access ones data freely, and securing information by placing a secondary copy of the same data on the cloud are both reasons to use online storage systems. As a lawyer, one must just be aware of the ethical implications involved in doing so.

Mindy F. VanLeuvan is a third year law student at the University at Buffalo. She is an executive editor of the Buffalo Public Interest Law Journal. Ms. VanLeuvan works for Assemblywoman Crystal D. Peoples-Stokes, of the 141st district, as a legislative aide.

"Letter From The Editor"

Dear Readers:

These are the times that try law students' souls. Final exams are in full swing, just in time for the nicest weather of the year. Chances are, you've taken at least a couple of exams by now on days where you'd rather be doing anything but sitting in a testing room for three or four hours. Yet good news is in sight: the end of another semester is almost here.

And when your semesters end, you can immediately go to the newest edition of The Law Student Connection to check out our latest offering of articles. Even after a steady diet of law during the semester, you'll want to read these pieces. Well-researched, interesting, and often controversial, this will provide you with the perfect reading material for a warm post-exams spring evening.

Everyone seems to have strong feelings about the United Nations, and Anne Jelliff is no exception. Check out her piece on how the UN has been spending its money lately, ending with a call for greater transparency. Amelia Wong has equally strong feelings about the scourge of counterfeiting. Be certain to read her article about how a unique type of counterfeiting is plaguing the fashion industry, complete with suggestions about legal responses.

We feature two in-depth articles about arbitration in this issue: Marcin Tustin's examination of expert determination in relation to the New York Convention and Emily Belfer's look at judicial review of religious arbitration. We bring you a look atguardianship law in New York State, focusing on the challenging balance between autonomy and protection. And any Canadian readers interested in attending an American law school must read Reema Mahbubani's extremely helpful guide to navigating this process.

So what are you waiting for? Finals are over. Now you can sit back, relax . . . and enjoy the thrill of reading something without worrying about being tested on it.

Sincerely,

Benjamin Pomerance
Editor-In-Chief

"Judicial Review Of Religious Arbitration--Is There Too Much Or Not Enough?" by Emily A. Belfer


Judicial Review Of Religious Arbitration--Is There Too Much Or Not Enough?"

by Emily A. Belfer

I. Introduction

Under American law, the parties in most disputes can elect to have their case decided by a religious tribunal in the place of a secular court. Religious tribunals are classified as arbitration bodies by the civil legal system, with the decisions rendered by religious arbitration as rewards that generally cannot be appealed, like any arbitration award. Amanda Mauriello Baker, A Higher Authority: Judicial Review of Religious Arbitration, 37 VT. L. REV. 157 (2012).

While religious arbitrations often operate smoothly without stirring controversy, some decisions made by religious arbitral tribunals can contradict American legal notions of fairness; this tension has historically come up in family law disputes. Caryn Litt Wolfe, Note, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and their Interaction with Secular Courts, 75 FORDHAM L. REV., 427, 447-448, (2006); see also Ayelet Shachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, 9 THEORETICAL INQUIRIES L. 573, 576 (2008). For example, the division of marital property between a divorcing couple according to a religion's standards of equity and ownership might diverge from a court's standards. See Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Div. 2d Dep't 2004). Clashes between religious and civil law also arise in employment law disputes, where former employees of religious institutions contest both the termination of their employment and enforceability of a pre-contacted arbitration clause. See, e.g., Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012); Graves v. George Fox Univ., 2007 WL 2363372, *1-6 (D. Idaho 2007). In the cases that will be discussed below, parties in family and employment law disputes submit to religious arbitration but are unhappy with the tribunal's decision. These parties sometimes appeal the award issued by religious arbitration by petitioning for judicial review by a civil court.

After evaluating the facts of any contested case using the cocktail of applicable statutory and common law standards, courts apply the relevant standard of review to grant or deny motions to review arbitration proceedings. For example, the public policy vacatur,a common law rule in some jurisdictions, permits courts to vacate religious arbitration awards if they are deemed to have violated a strong public policy or interest. N.Y. C.P.L.R. § 7511(b) (2012). While this discretionary policy-driven vacatur is available to judges in New York, judges in many other jurisdictions are subject to a highly restricted and limited set of exceptions that permit them to review arbitration awards. Recent scholarship has questioned the powers available to judges when agreements to arbitrate using a religious panel or awards from religious panels are contested.

Judicial review of religious arbitration is particularly relevant in light of a 2005 decision issued by the Fifth Circuit in Prescott v. Northlake Christian School. 141 F. App'x 263, 263 (5th Cir. 2005). The court held that civil courts cannot automatically vacate remedies awarded by religious arbitrations just because an award clashes or is inconsistent with state law. Id. at 272. In other words, there may be no basis to ever vacate a remedy that conflicts with secular law as long as the award originates from the authority given to the arbitrators. 

The current mechanisms for judicial review should be scrutinized to determine if reevaluation, reform, expansion, or limitation, are required. The following analysis will conclude that while there are some flaws in the current bases for judicial review, especially in the context of family law where groups such as women are often vulnerable within the legal contexts of traditionally minded religious communities, the system is generally sound, though it would benefit from peripheral reforms. While a judicial clearer standard for using the public policy vacatur in applicable jurisdictions would be a positive first step, the most important thing for courts to do is retain some oversight over arbitration operations and carefully evaluate arbitration decisions on appeal for signs of unconscionability. Enacting reforms focused on the pre-arbitration phase of a dispute could ideally solve all of the system's current flaws and ultimately eliminate the calls to expand or curtail a largely functional system.

II. Background

In a religious arbitration, disputants agree to use an arbitrator who consults a religious legal system as an alternative to American civil law in order to resolve a dispute. Shachar, at 381. A religious tribunal arbitrates the dispute, though a secular and recognized umbrella entity such as the American Arbitration Association (AAA) or Judicial Arbitration Mediation Services (JAMS) administers and oversees the arbitration. Wolfe, at 436.

Religious arbitration is an appealing method of dispute resolution to adherents of religious faiths. First, the parties have great flexibility and control over the proceeding through their statutory right to exercise discretion over the procedures applied to resolving their dispute. Second, parties may opt to use a faith-based arbitration over secular arbitration because of the comfort and familiarity that comes with presenting an argument to someone who shares their value system. A religious tribunal is better equipped to resolve disputes by incorporating the religious ideals that the parties value or religious laws that the parties adhere to than a secular court that need only consult civil law. Wolfe, at 441.

The Federal Arbitration Act ("FAA") is the controlling statute that regulates arbitration in the United States. See, e.g., Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265, 270-272 (1995). The Uniform Arbitration Act ("UAA"), a model statute, is a second statutory influence on arbitration administration in the United States. The FAA was enacted in the 1925 to provide the judicial facilitation of private dispute resolution through arbitration. Id. at 270-272. The FAA stipulates that arbitration is valid only if the parties validly agree to arbitrate. Baker, at 7. Valid agreements can be formed either by including a written provision into a contract that agrees to settle all disputes through arbitration or by executing a written agreement to arbitrate a dispute that already exists. Id. The FAA lists limited grounds of appeal to the civil judiciary. The statute allows judges to review and vacate arbitration awards only when the award was fraudulent, if the arbitrators were biased or corrupt, guilty of misconduct, or if exceeded their powers. 9 USCA § 10(a)(1)-(4) (2012). Unconscionable conduct that meets this standard can be substantive, such as a blatant disregard for one party's argument, or procedural, such as an employer giving an employee an insufficient amount of time to read the terms of an employment agreement including an agreement to arbitrate written in clear and easily locatable language. Graves, 2007 WL at *5-6.

Judicial review of religious arbitration is not only constrained by statute but is also limited by the U.S. Constitution and other legal doctrines. The freedom to practice religion freely under the Establishment and Free Exercise clauses in the First Amendment makes it difficult for the judiciary to review decisions that stem from religious entities without impinging on constitutionally guaranteed rights. Michael C. Grossman, Note, Is this Arbitration?: Religious Tribunals, Judicial Review, and Due Process, 107 COLUM. L. REV. 169, 169-170 (2007). However, the First Amendment does not place religious organizations above the law. Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 343 (D.C. Cir. 2005); Steven C. Bennett, Enforceability of Religious Arbitration Agreements and Awards, 64 DISP. RESOL. J. 24, 29 (2010). Therefore, a doctrine emerged at common law that judicial review of religiousarbitration can occur without interfering with the free practice of religion: courts must use only "neutral principles of law" in their analysis and may not scrutinize religious doctrinal matters. Encore Prod. v. Promise Keepers, 53 F. Supp.2d 1101, 1112 (D. Colo. 1999); Bennett, at 29.

Religious question, a related doctrine, is also derived from the First Amendment. Under the religious question doctrine, religious institutions are entitled to a degree of independence and insulation from secular courts. In order to comply with the Establishment clause, civil courts should be precluded from adjudicating any questions of law that relate to religious dogma or doctrine. The rationale behind this doctrine posits that religious arbitrators are experts in faith-based issues whereas civil court judges do not have this expertise and are therefore unqualified to hear certain issues. See Baker, at 26, (citing John Witte Jr., & Joel A. Nichols, RELIGIONS AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 241 (3d ed. 2010)). Courts are hesitant to review decisions made by religious tribunals in light of these statutory and doctrinal constraints.

Courts have minimal powers of review over arbitral decisions due to the clear-cut permissible grounds for appeal under the FAA and UAA. Bennett, at 26. Judicial authority to review religious arbitration awards, though limited, is possible in a few ways. First, a court can use the neutral principles of law approach to determine if the parties validly agreed to arbitrate. Baker, at 33. If there was no valid agreement then the court can deem that arbitration invalid and vacate its award. If the court finds a valid agreement to arbitrate, it next evaluates if the arbitration process was corrupt in any way. Id. Second, the reviewing court can also vacate the arbitration award if finds that procedural defects, such as bias or lack of notice, took place at any point during arbitration. Walter, at 522. Additional grounds for vacating an award include: overstep of the arbitrator's power, evident mistake, or if the arbitrator showed a blatant disregard for the rules. Walter, at 518, 544. Generally, these types of procedural or substantive unconscionable conduct warrant judicial review if they are evident in the agreement to arbitrate or the arbitration award. The above-listed grounds of judicial review originate from the FAA and UAA though some jurisdictions have additional, more substantively based, grounds for judicial review, such as New York's public policy vacatur.

Christian, Jewish, and Muslim religious communities use religious arbitration in the United States most frequently, though tribunals for other faiths are also active. Grossman, at 177. Christian dispute resolution is adjudicated according to the laws and teachings of Jesus and the New Testament. Id. The most common form of Christian dispute resolution is Christian Conciliation, defined as "the voluntary submission of a dispute for biblically based conflict counseling/coaching, mediation, arbitration, or mediation/arbitration." Baker at 22, FN 94 (citing Rules of Procedure, Institute for Christian Conciliation). The primary entities that handle Christian dispute resolution today are Peacemaking Ministries and its affiliate, the Institute for Christian Conciliation (ICC). Grossman, at 177. Jewish religious tribunals are known as the Beth Din (or "Beit Din.") The judges that sit on the Beit Din apply Jewish law,halacha, to the cases before them. Grossman, at 176. The Beth Din of America (BDA) is currently the most elaborate network of Jewish courts in the United States today, and it decides religious issues such as conversion as well as commercial cases that involve Jews. Grossman, at 180. Naomi Maryles, a former administrative attorney at the BDA, adds that the BDA is meticulously careful to make sure that its policies and procedures comply with state and federal rules because it wants its decisions to be enforceable and upheld in the event of judicial review. Telephone Interview with Naomi Maryles, Former Administrative Attorney, Beth Din of America (Feb. 5, 2013).

Islamic panels are typically less organized and less pervasive throughout the United States, possibly because there is no permanent Muslim court system in the United States.In light of this, American Muslims to prefer to mediate their disputes themselves rather than submitting to arbitration and appointing a religious arbitrator. Grossman, at 179. Muslims who elect to use religious arbitration submit to panels organized though local mosques through a process that has yet to be structured or supervised under a unified religious court system. Id. Though this system has been criticized, decisions made by Muslim panels are enforceable in civil courts.

The operation of religious arbitration in the United States and how it is subject to judicial review are relevant issues in today's legal and social landscape where faith has taken the front seat on a host of issues. Interestingly, the Supreme Court has not ruled directly on the issue of enforceability of contested religious arbitration awards, leaving a morass of unanswered questions about this active issue. A facet of the religious arbitration discussion that has spurned tremendous recent dialogue is the enforceability of awards that follow Muslim shari'a law in Canada, after Canadian legislation sought to end civil recognition of Muslim arbitration. See, e.g., Donald Brown, Comment, A Destruction Of Muslim Identity: Ontario's Decision To Stop Shari'a-Based Arbitration, 32 N.C.J. INT'L L. & COM. REG., 495, 510 (2007). While Canadian law cannot be explored here, these legislative changes are important to bear in mind. They demonstrate that democratic governments today may be willing to render a previously enforceable type of religious arbitration unenforceable.

III. Illustrative Case Law

Examples from a few employment and family law cases illustrate the interplay between religious awards on appeal and the American judicial system. It is important to note that some unique doctrines apply to religious institutions within the context of employment law. For example, the ministerial exception is a subset of religious question doctrine that protects faith-based institutions from litigating employment discrimination lawsuits by not penalizing churches and religious institutions that discriminate while hiring clergy members. The doctrine demonstrates judicial deference to religious bodies. See, e.g.,Corp. of Presiding Bishop of Church Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 330 (1987). The United States Supreme Court noted just last year that it was addressing the ministerial exception for the first time in Hosanna-Tabor and yet declined to offer a formula for how similar cases could be analyzed past this case of first impression. Hosanna-Tabor, 132 S. Ct. at 705, 707. The intersection of guaranteed religious rights, employees of religious institutions, and termination of those employees from their jobs is an issue that is on the rise and remains judicially unresolved.

A. Employment Cases

The most recent appellate commentary on reviewing religious arbitrations came from the employment dispute in Prescott. The plaintiff in Prescott alleged violations of federally guaranteed rights after she was fired from her position as principal of a Christian school. Prescott, 141 F. App'x at 265. Plaintiff also alleged that the Christian arbitrator had overstepped the bounds of his authority and issued a substantively biased decision. Id. at 270.

Had the Fifth Circuit accepted these arguments, plaintiff would have had the basis to have her Christian arbitration award reviewed and possibly vacated. However, the Court refused to review the award and enforced its highly restricted scope of review of the case in light of the procedural language in the arbitration agreement. This decision demonstrates the high evidentiary standard that most states require in order to show that an arbitrator acted in such a manifestly biased manner so as to warrant the judicial review of an arbitration award.

Other plaintiffs challenging their termination of employment at a religious institution have asserted procedural challenges to religious arbitration.In Graves v. George Fox Univ., plaintiff attempted to challenge the arbitration award that upheld his termination on the basis that the award was unconscionable. Graves, at *5-6. The United States District Court in Idaho held that the award was not unconscionable because the plaintiff was given sufficient time to review the terms of his employment contract, which included the arbitration agreement in clear and easily locatable language. The court additionally held that the agreement to arbitrate was mutual and not one-sided as plaintiff alleged, noting,"adhesion contracts were a fact of modern life and not against public policy." Id. at 7.

In contrast, a New York lower court vacated an award issued by a Jewish arbitration panel on procedural grounds. Brisman v. Hebrew Academy of Five Towns and Rockaway, 887 N.Y.S.2d 414 at 919, rev'd, 895 N.Y.S.2d 482 (2010). The trial court found that: (1) the reinstated salary that Beit Din awarded plaintiff, a teacher fired from a Jewish day school, was irrational because it was double the salary he had previously received, (2) the Beit Din exceeded its powers by giving itself indefinite jurisdiction over the case and thereby violating CPLR § 7511, and (3) that the Beit Din had violated public policy by infringing the rights of private schools to make routine employment decisions. This remarkable decision not only reviewed the contested appeal but surmounted the strong juridical preference for arbitration by vacating the Beth Din's award. However, two years later, the Second Department of New York's Appellate Division reversed the trial court's order against the Beit Din of America's decision and affirmed the religious tribunal's original award. The $100,000 annual salary deemed irrationally high by the trial court was, in fact, rationally based since plaintiff's average annual compensation before his attempted termination had exceeded that amount. The Beit Din's extension of its jurisdiction had not invalidated its award because its jurisdiction was not entangled with the facts of the case. Finally, the Second Department held that the policy protecting tenured school faculty from getting fired not for cause exceeded other policy concerns mentioned by the lower court. In other words, the policy issues in Brisman were insufficient to trigger the public policy vacatur. The judicial treatment of the Brisman case shows not only how two benches applied the bases for vacating a religious arbitration award differently to same facts. The case ultimately represents the great, and arguably intractable, strength of the judicial preference to uphold arbitration.

A second case, Easterly v. Heritage Christian Schools, Inc.,sums up many salient points related to employment law and enforcing religious arbitration awards. 2009 WL 2750099, (S.D. Ind. 2009). In Easterly, a United States District Court held that the FAA reaches employment contracts and reminded plaintiffs of the Supreme Court's position that "mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context." Id. at FN 1 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)). Plaintiff asserted that biblically based arbitration would be structurally and procedurally biased, but the court rejected her claim. First, because plaintiff did not explain precisely how the arbitration was unfair but primarily because of the judicial presumption that arbitration is fair. The court also rejected Easterly's contention that the agreement to arbitrate was unfair because of the arbitration high fees that could be imposed on her, again because the strong preference to favor arbitration agreements took precedence over prohibitive costs that might be imposed on a party under the agreement. The court explained and then denied each of plaintiff's arguments,recognizing the many challenges that employees may face when they have signed a religious arbitration agreement, while upholding the strong preference for arbitration. Easterly provides a recent example of the judiciary declining to vacate a religious arbitration's decision. However, the case importantly clarified the degree of unconscionability required at arbitration in order to qualify a dispute for judicial review.

B. Family Law

Plaintiffs also contest arbitration awards in family law disputes and claim similar procedural or substantive violations at arbitration. However, a key difference between employment law and family law is that the parties in a family law dispute are typically two individuals, often a divorcing couple, whereas one party in an employment dispute tends to be a corporation or organization. This element of interpersonal emotional strife combined with the gravity of legal decisions such as divisions of marital property and child custody arrangements make the personal stakes of a family law cases quite high.

Perhaps as a consequence of these high stakes, courts have clearly outlined certain legal issues that can never go before any arbitration panel - including a religious tribunal - and which must be decided by a civil court. In some states, such as New York, these include: child custody, child support, and guardianship proceedings. See, e.g., Glauber v. Glauber, 600 N.Y.S.2d 740 (N.Y. App. Div. 2d Dep't 1993); Hirsch v. Hirsch,774 N.Y.S.2d 48 (N.Y. App. Div. 2d Dep't 2004); In re Meisels,807 N.Y.S.2d 268, 271 (N.Y. Sup. Ct. 2005). Ample case law on family issues demonstrate the strong preference for upholding arbitration agreements with hints of judicial willingness to vacate those awards for policy reasons.

In Hirsch,an appellate court affirmed the vacation of an entire award awarded by a Beit Din. Hirsch, 4 A.D.3d at 451. The rabbinic council had allocated a sum of child support that the court deemed insufficient to support the couple's six children based on the husband's income and requirements of the Child Supports Standards Act. The lower court found and the appellate court affirmed that the Beit Din award had further violated public policy in both its inequitable distribution of assets to the husband and deprivation of the wife's constitutional right to seek protection by a secular court with its order to withdraw the pending criminal complaint against her husband. Id. at 452.In this case, judicial concerns over equity were significant enough to override a decision issued by a religious arbitral body.

In a similar case, a New York court vacated the child support award issued by a Beit Din because the award was not in the best interests of the children of a divorcing couple and thereby violated public policy. Rakoszynski v. Rakoszynski, 663 N.Y.S.2d 957, 960-61 (N.Y. Sup. Ct. 1997). Though the court was able to rectify an inequitable child support award through the public policy vacatur, the plaintiff in this case had waived her right to a civil proceeding by agreeing to arbitrate with a Beit Din, and arguably still received a less beneficial result under religious law than she might have had she initially brought the entire proceeding under civil law. Solutions to unsatisfactory outcomes like these could include anything from changing judicial guidelines and arbitration legislation in order to grant more permissive judicial review of contested arbitration awards to offering better education to the public on their legal rights. See Baker, at 1.

Civil courts have allowed plaintiff's to assert their concerns over inequitable decisions and policy violations in family law cases, even when to do means reviewing an arbitration proceeding. Where appropriate, courts have been able to vacate unfair arbitration awards.

IV. Problems And Solutions

Scholars argue that problems with the current standards of judicial review for arbitration awards run deep and require reform. Among the flaws that have been identified are: (1) judges' assumptions that their deference of religious arbitrations is wholly restricted by the First Amendment, (2) problematic judicial deference to religious law when aligned with the 'standard' notion of unfairness, and (3) that judges overlook the fact that parties are under duress when they agree to religious arbitration due to communal pressure exerted by their religious communities, mitigating the legitimacy of agreements to arbitrate in many circumstances. Baker, at 1.

Various solutions that would address these problems have been proposed. One means of reform advocates limiting the subject matter jurisdiction of religious panels. Religious tribunals would be barred from reviewing any case that could be handled by a secular court that applied neutral principles of law to decide the matter. In effect, all secularly based disputes, such as commercial cases, would be removed from religious arbitration panels. See Walter, at 552-53. Religious tribunals would no longer have the scope, latitude, and breadth it has now.

One more intellectual theory argues that it would be unconstitutional for religious tribunals to hear cases beyond those that deal with religious doctrine. Under this line of reasoning, religious arbitration is deemed violative of the disputant's constitutional right to freely practice his or her religion when it adjudicates an issue that is not religious in nature. Because decisions from religious arbitrations are binding, any given panel's award based on that particular religion's law would effectively trap the instant parties into that religion's legal reasoning. For example, if a Beth Din heard a contract dispute between two Jewish business orders and issued an arbitration award, that arbitration based on Jewish law would be binding and final on the parties. However, the Constitution also protects one's right to change religious beliefs under the Establishment Clause. In other words, if one of the parties from that Beth Din dispute later converted to Islam, he or she would be bound to an arbitration award predicated on a religion that the party no longer adhered to, which would violate that individual's constitutional rights. This theory portrays portrays those who change religious beliefs by converting or leaving religion as unfairly bound to a faith they no longer practice with no recourse to appeal. Id. at 549-50. A binding award from religious arbitration thereby traps the disputant and renders that religious arbitration unconstitutional. Secular law then must be applied to all non-religious disputes.

Ayelet Shachar, a professor of law at the University of Toronto and visiting professor at Harvard Law School, advocates a small-scale reform. She argues that re-framing the identities of parties to religious arbitration will usher much-needed changes and effectual her goal to promotemore equitable outcomes from religious arbitration in family law cases. Shachar notes that the current deference granted to religious awards by civil courts has yielded dangerous results in family law disputes where inequitable gender roles in traditional communities can result in uneven bargaining power between the parties. If women's multiple identifications with and commitments to their religious communities and governments were recognized, then reform would take place. Once it became "apparent that individuals and families should not be forced to choose between the rights of citizenship and group membership" and that instead the dispute resolution community recognized that women"should be afforded the opportunity to express their commitment to both" then Shachar argues that fairer arbitration proceedings would begin to take place. Shachar, at 573.

Other scholars are largely content with the status quo and do not advocate for major systemic reform. According to this view, the scope of religious arbitration and its review in civil court is well balanced. "[A]lthough courts note that religious panels present problems that conventional arbitrations do not, they have still enforced religious tribunal awards that do not confirm to FAA or UAA requirements as binding under the guise of "common law arbitration," or under case law that holds that arbitrations that do not meet statutory requirements can still be valid." Grossman, at 191. The proposal here advocates for the continued judicial review of religious questions and argues that, "judicial inquiry is not the equivalent of a civil determination of religious doctrine, which would be barred by the Establishment Clause's prohibition on advancing or endorsing religion." Grossman, at 207.

Michael Helfand, an associate Professor of Law at Pepperdine Law School, agrees that the overall system for judicial review of religious arbitration can be maintained, though he suggests that two changes in policy would be beneficial. Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. REV. 1231, 1249 (2011). Helfand focuses on policy concerns from the perspective of new multiculturalism in his article on the judicial review of religious arbitration awards. See Helfand, at 1231. He suggests that the scope of enforceability of religious arbitration awards requires redefinition by civil courts. Id.He offers two policy recommendations: first, courts should limit application of public policy to vacate religious arbitration awards. Id. at 1231, 1232, 1238. Second, courts should expand application of the unconscionabilty doctrine to void religious arbitration agreements.

Others have sided with Helfand and contributed additional recommendations for how the current system could be improved. These critics highlight the dangers that religious arbitrations pose to vulnerable minorities such as women and children and suggest that these pitfalls could be mitigated if there was greater oversight of the system. The implementation of procedural safeguards would ensure that all parties agreed to religious arbitration under absolutely fair circumstances. Safeguards that have been suggested include (1) requiring religious tribunals to inform parties of their rights, such as alternative legal remedies from the court system, before entering arbitration, (2) encouraging governments to accept greater responsibility for legal education and (3) implementing stricter screening mechanisms for recognized religious arbitrators. Wolfe, at 468.

V. Analysis And Conclusions

Recent decisions from federal courts suggest that the current system for judicial review of religious arbitrations is sound and does not require large-scale reforms. An Indiana District Court in 2012 suggested that cases where the issues are not religious in nature or connected to the church entity any longer can come into the purview of the courts without violating the Constitution. McCarthy v. Fuller, 2012 WL 1898858, *1-3 (S. D. Ind. 2012). In this case, the Archbishop Secretary of a local Roman Catholic Church asked the court to take judicial notice of some facts in a dispute the Church was having with a woman who had previously been identified as a nun in the Church. The court held that a jury could determine whether defendant was, in fact, a Catholic nun without affecting the Catholic Church at all and thereby not entangle a civil judicial proceeding with a church's internal affairs. Id. This broad application of the neutral principles doctrine sanctioned a jury to hear issues that were not quite dogmatic or ritualistic in nature but undoubtedly connected to a church's internal operations. This suggests that judges can continue to review issues in a religiously arbitrated dispute if its religious content had somehow become less relevant. In light of the strict application of the neutral law doctrine in the past, this would be a significant departure from established precedent. Furthermore, the McCarthy holding analyzed in combination with the Fifth Circuit's holding in Prescott suggests that courts feel comfortable reviewing pertinent issues that arise out of religious arbitrations. While the constitutional arguments against judicial review of religious arbitrations are intellectually compelling, it applies to a narrow class of individuals who might theoretically convert or leave a religious community after using it to arbitrate a dispute. Therefore, until a court is presented with a case such as this, it seems impractical to alter presumptions based on hypotheticals.

Outcomes in cases like Rakoszynski illustrate the real effects of entering into arbitration agreements: once a party knowingly agrees to arbitrate, that party's rights to appeal the outcome from arbitration are significantly curtailed if not waived entirely. This plain and simple reality may result in outcomes that appear inequitable, but a large-scale overhaul of a system that does allow for judicial intervention in circumstances of gross inequity would be an overreaction to this problem, not a helpful solution. Instead, the optimal solutions to inequities presented by lower-income spouses in divorce proceedings or employees in employment disputes are increased rights education before arbitration ever starts. If legislation required religious tribunals to counsel prospective parties to arbitration of the ramifications to entering an arbitration agreement, perhaps fewer parties would be faced with a result that was neither satisfactory or eligible for appeal and judicial review.

Emily Belfer is a second-year student at the Benjamin N. Cardozo School of Law in New York City. She plans to practice Trusts and Estates upon graduating law school. Belfer earned a BA in European History at the University of Pennsylvania and a MA in Medieval Jewish History from Yeshiva University's Bernard Revel School of Jewish Studies. Deep thanks go to Professor Lela Love, David White, and Suzanne Stone as well as Yonatan Tammam and Brian Farkas for giving their editorial and other advice in regards to this article.

"Financial Transparency In The United Nations" by Anne Jelliff


Financial Transparency In The United Nations

by Anne Jelliff

Introduction

The United Nations (UN) was established in 1945, and was seen by many in the international arena as the fulfillment of a long-standing ambition foran organization whose goal was "to promote international cooperation and to achieve peace and security." History of the United Nations, UNITED NATIONS,http://www.un.org/en/aboutun/history/, last visited Mar. 3, 2013. These goals are undeniably noble, and many individuals who work within the organization are honorable people who do their best to help achieve this international peace. However, over the course of its nearly seventy-year history, the UN has grown ever larger, more bureaucratic, and less transparent.

The unnecessary complexity, and often redundancy, of the UN internal system has frequently caused frustration for those trying to make a difference in world conditions. See Matthew Saltmarsch, A Bloated U.N. Bureaucracy Causes Bewilderment, N.Y. TIMES, Jan. 5, 2011,http://www.nytimes.com/2011/01/06/world/europe/06iht-nations06.html?pagewanted=allsee also George Russell, U.S. Diplomats Growing Frustrated at United Nations' Budget Games, FOXNEWS.COM, Oct. 7, 2011,http://www.foxnews.com/world/2011/10/07/us-diplomats-blow-whistle-on-united-nations-budget-games/. Furthermore, it has all-too-often resulted in needlessly duplicative work product, and has often led to unintended consequences with frequently ludicrous or even tragic results. See, e.g., Stefan Halper, A Miasma of Corruption: The United Nations at 50, CATO POLICY ANALYSIS, Apr. 30, 1996,http://www.cato.org/pubs/pas/pa-253.html; Elizabeth Rosenthal, Profits of Carbon Credits Drive Output of a Harmful Gas, NY TIMES, Aug. 8, 2012,http://www.nytimes.com/2012/08/09/world/asia/incentive-to-slow-climate-change-drives-output-of-harmful-gases.html?pagewanted=all (noting that protective environmental measures enacted by the UN actually encouraged manufacturers in several locations to increase production of harmful gases), see also Charles Anthony Smith, Human Trafficking: The Unintended Effects of United Nations Intervention, 32 INT'L POL. SCI. REV. 125 (2011); The United Nation's Role in Haiti Cholera Outbreak, HAITIAN-TRUTH.ORG, Nov. 20, 2012, http://www.haitian-truth.org/the-united-nations-role-in-haiti-cholera-outbreak/.

This article provides a brief overview of the financial transparency problems in the UN and the pressing need for reform. Part I looks at some concerns raised by the UN's recurring budget troubles. Part II synopsizes the disquieting financial blunders associated with the UN's recent peacekeeping missions. Part III addresses a likely reason these problems have,so far, been tolerated by members of the international community, and explains why this reason can no longer be accepted. Part IV notes the pressing nature of the call for a solution to this issue. This paper then concludes with a brief reminder of the valuable role the UN is capable of playing in international affairs, and urges that much-needed changes be implemented so that the organization's tremendous potential for advancing humanitarian causes will not be lost to the combined effects of mismanagement and dishonesty.

I. United Nations Financial Concerns

Increasingly over the last few years, the UN has shown itself hopelessly inept at managing its own finances. In 2012, for example, the UN announced that it would go over its $1.9 billion budget by about 4% (or roughly $80 million) in the renovation of its headquarters in New York City. Brett D. Schaefer, The Costly United Nations, NATIONAL REVIEW ONLINE, Mar. 13, 2012,http://www.nationalreview.com/articles/293261/costly-united-nations-brett-d-schaefersee also Anita Snow, UN Complex in New York Gets $2 Billion Facelift, THE SEATTLE TIMES, Mar. 4, 2012,http://seattletimes.com/html/nationworld/2017668136_apunun2billionfacelift.html. As Senator Dirksen allegedly once quipped, "a billion here, a billion there, pretty soon you're talking real money." See Senator Everett McKinley Dirkson Dies, UNITED STATES SENATE, Sept. 7, 1969,http://www.senate.gov/artandhistory/history/minute/Senator_Everett_Mckinley_Dirksen_Dies.htm. But the truth is even more frustrating than it seems at first glance.

The $1.9 billion budget was a very large increase from the original estimate put out by the Government Accountability Office (or the U.S. General Accounting Office, as it was known then), which anticipated that the project would cost between $875 million and $1.2 billion. US GOV'T ACCOUNTABILITY OFFICE, GAO-01-788, PLANNING FOR HEADQUARTERS RENOVATION IS REASONABLE; UNITED STATES NEEDS TO DECIDE WHETHER TO SUPPORT WORK 7 (2001). Needless to say, the project grew a bit as new aspects were added. Yet, in spite of the fact that the new numbers are approximately double the amount originally discussed, it appears that even this new estimate may be an understatement of the fact.

According to Michael Adlerstein, the architect in charge of the renovation project, cost overrun may likely be closer to $265 million, which is nearly a 14% increase (rather than the officially published 4%) from the approved (increased) budget. Thalif Deen, Renovation Money Shortage, WEBPUBLICA PRESS, Mar. 29, 2012,http://webpublicapress.net/?p=10172. And the numbers for the second part of this project look equally ominous. The UN proposes to renovate the Geneva headquarters once the work on those in New York City is complete. UNITED NATIONS GENERAL ASSEMBLY, A/66/279, STRATEGIC HERITAGE PLAN OF THE UNITED NATIONS OFFICE AT GENEVA, 2 (2011). The current estimate for that job is about $600 million. ID. But there are, again, no safeguards to ensure that the organization will adhere to that number either.

If this were the full extent of the financial problem, no reasonable person would likely raise too strong an objection, since the renovation of the New York facility, which was built in 1952, is unquestionably long overdue. Associated Press, UN Renovation Cost Jumps $400M, CBSNEWS (Feb. 11, 2009, 6:59 PM),http://www.cbsnews.com/2100-202_162-1055381.html. However, the UN's cavalier treatment of finances extends to all areas of the organization's management, including (and most notoriously) its peacekeeping missions.

II. Peacekeeping Expenditures

Over the last several years, progressively more reports have been released noting the financial waste, and sometimes outright financial abuse, that exists within the UN peacekeeping missions. The mission to East Timor, for instance, saw an almost $9 million overcharge on a single transaction for air transportation. Colum Lynch, UN: Waste and Fraud Found in Peacekeeping Work, CORPWATCH, Jan. 24, 2006,http://www.corpwatch.org/article.php?id=13162. The expense records for the mission to the Congo show a quantity of wastewhich includes $2.4 million spent on just one unnecessary purchase. And between the Sudan and Haiti missions, the UN spent a total of $65 million on unneeded fuel alone. Id.

But this is only a brief glimpse of the money spent extraneously. It does not even touch on the number of contracts the UN struck with outside companies under questionable circumstances. See, e.g. , Colum Lynch, Two Accused of Taking Bribes in UN Contract Deal with U.S. Company, WASH. POST, Mar. 18, 2010, available athttp://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031703747.html (reporting on investigations of UN workers who allegedly arranged for a contract to go to a company which promised cash payments to specific participants in return); see also Associated Press,U.N. Cuts Back on Investigating Its Own Fraud, FOXNEWS.COM, Jan. 12, 2010,http://www.foxnews.com/story/0,2933,582876,00.html (noting that during an investigation conducted between 2006 and 2009, approximately twenty schemes were uncovered which touched on over $1 billion in UN aid and contracts); Colum Lynch,Audit of U.N.'s Sudan Mission Finds Tens of Millions in Waste, WASH. POST, Feb. 10, 2008, http://articles.washingtonpost.com/2008-02-10/world/36903637_1_government-and-southern-rebels-sudan-s-islamic-internal-audits (telling of the more-than half-million dollar contract a UN official steered toward a company that in return helped the UN official's wife to obtain a visa).

Nor are these isolated incidents. An audit of just the peacekeeping mission to Sudan, for example, showed several millions of dollars in waste, and raised further questions of possible mismanagement or even fraud regarding a number of contracts that amounted to almost $300 million. Colum Lynch, Audit of U.N.'s Sudan Mission Finds Tens of Millions in Waste, WASH. POST, Feb. 10, 2008,http://articles.washingtonpost.com/2008-02-10/world/36903637_1_government-and-southern-rebels-sudan-s-islamic-internal-audits. Even allowing for the UN's explanation that the staff members responsible for these problems were not guilty of deliberate wrongs, but were in fact simply "in over their heads," the sheer number of unwise decisions made in the course of this mission should put UN management on notice that its staff is in need of greater oversight, and that its processes need to be reexamined for efficiency.

III. A Reason For The Continued Lack Of Restraint

An argument is made by some that these excesses and inefficiencies, bad though they may be, are an acceptable price to pay for the overall achievements in UN peacekeeping missions--even if the ratio of successes to failures is not very reassuring. This argument can sometimes go unchallenged for the simple reason that it is rooted in a measure of truth. A number of UN missions have been successful, and in the end, the current UN peacekeeping structure may not be very popular, but can be seen as a relatively inexpensive way to at least keep some of the worst effects of struggling nations' internal conflicts from affecting innocent neighboring peoples. See, e.g.Not Much Danger, Success Or Cash, STRATEGY PAGE, Feb. 8, 2013,http://www.strategypage.com/htmw/htun/articles/20130208.aspx.

However, the fact remains that many UN missions are unsuccessful. When it comes to settling actual conflicts (the image most often conjured by the term "peacekeeping"), the UN doesn't seem to be a good choice for the job. Those who doubt this conclusion are respectfully referred to the horrific results of the 1993 Somalia mission, the 1994 Rwanda mission, the 1995 Bosnia mission, and, of course, the still-ongoing mission to the Democratic Republic of Congo,among others. See, e.g., Alexandra R. Harrington, Victims of Peace: Current Abuse Allegations Against U.N. Peacekeepers and the Role of Law in Preventing Them in the Future, 12 ILSA J. INT'L & COMP. L. 125 (2005) (discussing the heinous acts that have been perpetrated against war refugees by UN Peacekeepers in the Congo, among other places). (It has been fairly noted that many of the UN's worst failures can be attributed to the combination of a lack of adequate resources, and the severely restrictive rules under which the peacekeeping forces are expected to operate. See, e.g.Who's Peacekeeping in Africa?, WORLD DISASTER REPORT Oct. 19, 2012,http://www.wdrep.com/_wp/war/whos-peacekeeping-in-africa

As has been noted by several scholars, the UN's greatest successes are primarily confined to the fostering of governance functions after conflict has already been resolved--such as ensuring a free election, or assisting a smooth diplomatic process.See, e.g., Thomas W. Jacobson, U.N. Peacekeeping: Few Successes, Many Failures, Inherent Flaws, INT'L DIPL. & PUB. POL'Y CENTER 1 (Apr. 2012),http://www.idppcenter.com/UN_Peacekeeping_Failures.pdf. So, while the UN does do some things very well, the areas of its greatest achievements do not coincide with the areas of its greatest financial abuses.

When viewed in light of these facts, the various financial embarrassments that have plagued the UN recently no longer seem like a minor wrinkle in an otherwise smooth process. The money wasted or lost in various ways may be dismissed as "water under the bridge," since no amount of money can come close the worth of a human life. And it is true that any lives saved by UN efforts would be worth the price if the monies involved were a one-time loss, or if they had gone toward the accomplishment of a humanitarian goal.

But the instances of wide-scale fiscal abuse seem to crop up most in some of the very missions that have become notorious as the UN's greatest failures. See, e.g., Colum Lynch, UN: Waste and Fraud Found in Peacekeeping Work, CORPWATCH, Jan. 24, 2006,http://www.corpwatch.org/article.php?id=13162see also Colum Lynch, Audit of U.N.'s Sudan Mission Finds Tens of Millions in Waste, WASH. POST, Feb. 10, 2008,http://articles.washingtonpost.com/2008-02-10/world/36903637_1_government-and-southern-rebels-sudan-s-islamic-internal-audits. This disturbing truth robs the proffered excuse of its believability, and has the unfortunate effect of making the UN appear rather like a charlatan who demands large payments up-front while, in reproachful tones, warning all who look for accountability in the UN that they must "pay no attention to that man behind the curtain."

IV. Urgent Need For Change

The UN's careless treatment of the financial irresponsibility of its own officials is merely one symptom of an organization that has few incentives to live within its means, and there seems to be little hope that this will change. Even where the UN takes official measures to audit its own systems and procedures, these investigations are often "seriously compromised" from the beginning by ties between the investigators and the management staff subject to the audits. See George Russell, UN Investigators 'Seriously Compromised' by Relationship to Management Bosses, Report Charges, FOX NEWS.COM, May 23, 2012,http://www.foxnews.com/world/2012/05/23/un-investigators-seriously-compromised-by-relationship-to-management-bosses/. Because of this, they predictably produce few results, and are, ironically, nothing more than an additional expense on the budget. Id.

The UN is very comfortable going over budget, primarily because it is never made to feel the pinch of its own excesses. Any overage is simply forwarded to its membership (of which the United States is the highest paying member), and the membership is expected to pick up the balance. See George Russell, U.S. Diplomats Growing Frustrated at United Nations' Budget Games, FoxNews.com, Oct. 7, 2011,http://www.foxnews.com/world/2011/10/07/us-diplomats-blow-whistle-on-united-nations-budget-games/.

This arrangement is unrealistic, to say the least. Shakespeare once observed that "madness in great ones must not unwatched go." UN member states should insist that the UN increase its transparency by establishing a legitimate investigation process to audit each function of the UN. They should also demand that the organization abide by parameters that will force it to live within its allotted means.

Conclusion

The UN is an entity uniquely positioned to address many of the most pressing issues in the international community, such as equal rights for marginalized peoples, or protection and relief for victims of human rights violations. The UN is also extraordinarily blessed with nearly limitless resources. Member states have shown a remarkably long-suffering willingness to support the organization, and some of the world's brightest minds are eager to join its ranks, all because the UN still represents a cause in which the civilized world believes: the promotion of peace and prosperity for all peoples around the world.

However, a global body comprised of states with differing world views, and often opposing value systems must, of necessity, trade on both the continued good will of its membership and on its own prestige--the appearance of integrity and the "moral authority" that comes with it. The UN has imperiled its position by its own lack of transparency, and risks losing it altogether if the member states do not act now to make some much-needed changes to the organization's internal system.

The appalling debacles that have resulted from the UN peacekeeping missions of the 1990s, and the years following, have caused significant damage the organization's reputation, and when details of the infamous oil-for-food outrage began to surface, the UN lost still more esteem in the eyes of the world. Sadly, the organization has done little to redeem itself from these scandals, and as more fiscal indiscretions are discovered, its global standing becomes correspondingly less authoritative.

The financial problems within the UN are no small matter, and fixing them will take both time and determined effort. But the member states that once banded together to "maintain international peace and security," and to "promot[e] . . . economic and social advancement of all peoples," must now join ranks again to save the UN from itself.

Anne Jelliff is a 3L at Albany Law School, and holds a degree in Voice Performance from Bob Jones University. Among other things, she serves as the Executive Editor for the Albany Government Law Review and Vice-President of Albany Law School's chapter of the National Academy of Elder Law Attorneys. Her article about the jurisprudence of Justice Anthony Kennedy and its ties to his Catholic faith was just published in Vol. 76 of the Albany Law Review. She wishes to thank Professor Alexandra Harrington for her advice and guidance during the drafting of this article.

 

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