27832_lpr_15-1 Sheet No. 1 Side A 01/25/2010 08:59:15 27832_lpr_15-1 Sheet No. 1 Side A 01/25/2010 08:59:15 A 01/25/2010 1 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 1 Side B 01/25/2010 08:59:15 ’s PILR PILR offers fea- PILR is an innovative legal publi- is an innovative Loyola Public Interest Law Reporter Interest Public Loyola The cation that focuses on reporting the most current legal topics in a legal topics the most current focuses on reporting cation that practitioners. educators and to students, news directed format is edited and produced by Loyola students and is housed within the and is housed within students Loyola by produced is edited and ServiceLaw. Public Center for 1995, in Founded and business management. graphics, production writing, research, Editor-in-ChiefCerise Fritsch EditorsSymposium AlleyneValentia Lindsay Dates EditorEditor Managing Features Senior TaschBill Assistant Editors Symposium McKinney David Editor News Senior Amber Battin WestleyEllen Editor Assistant Features Christy O’Berry Writers Staff BarneyIan Amber Battin Editor Assistant News BucaroSusanna Mohammed Sameena HurwitzNoah Chantal Kazay Nelson Elizabeth KubesBrittany Amy McCarthy McDonald Jeff McGettrick Tom Christina McMahon Patient Brian Advisor Faculty Chicago University Loyola J.D., Associate Professor, Henry Rose, Reeb Timothy School of Law Schramm William Uribe Valerie Ann Weilbaecher ture articles and news of legal developments in the areas of human articles in the areas ture and news of legal developments and justice, criminal justice, the environment, rights, economic governance. a staff selected through addition to an editorial In of all aspects direct law students Loyola write-on process, \\server05\productn\L\LPR\15-1\boe151.txt unknown 1 Seq: 19-JAN-10 10:10 27832_lpr_15-1 Sheet No. 1 Side B 01/25/2010 08:59:15 B 01/25/2010 1 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 2 Side A 01/25/2010 08:59:15 Midwest CONTENTS of TABLE TABLE : Disparate Impact and Impact : Disparate Litigation Medical Malpractice Reform: A Silver Bullet A Silver Reform: Malpractice Medical Crisis? Care for the Health Civil Trample Protections Patent Can the Challenges Liberties? The ACLU Genes Cancer of Breast Patentability Federal by of E-Verify Mandatory Use and Burdens, Contractors: Benefits, Implications The Role of Foreign Students in the Future Students of Foreign The Role Industries of U.S. Science and Technology to Together and SEC Work the CFTC Can Another Madoff? Prevent Internet against Iran’s U.S. to Aid in Fight Censorship The Oldest Profession Finds a New Medium: a New Finds Profession The Oldest Industry and the Sex Craigslist and Services Programs Jobs, the Cut: Making Eliminated with Disabilities for Individuals in Illinois 2010 Budget by A Time Out or a Knock Out: Has the Use of the Use Has or a Knock Out: Out A Time with Disabilities AgainstRestraint Students of Corporal Punishment? Become a Form Ricci v. Destefano on Employment VII Implications Title Review Source of New The Revival Act: under the Clean Air Provisions Generation 1 FEATURE 10 FEATURE 21 26 31 37 42 FEATURE 52 FEATURE 62 68 74 Tim Reeb Tim Ian Barney Ian Susie Bucaro Susie Ellen Westley Ellen Brian Patient Brian Amber Battin Amber Bill Schramm Bill Jeff McDonald Jeff Chantal Kazay Ann Weilbaecher Ann M K \\server05\productn\L\LPR\15-1\toc151.txt unknown 2 Seq: 19-JAN-10 10:10 Christina McMahon C Y 27832_lpr_15-1 Sheet No. 2 Side A 01/25/2010 08:59:15 A 01/25/2010 2 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 2 Side B 01/25/2010 08:59:15 M K C Y The Transformation of The Transformation Congressional Restrictions on Legal Aid Legal on Restrictions Congressional or Necessary? Burdensome Attorneys: Arnold: v. Kirk Certificate Birth Requirements Transgender in Illinois 79 83 Valerie Uribe Valerie Brittany Kubes Brittany \\server05\productn\L\LPR\15-1\toc151.txt unknown 3 Seq: 19-JAN-10 10:10 27832_lpr_15-1 Sheet No. 2 Side B 01/25/2010 08:59:15 B 01/25/2010 2 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 3 Side A 01/25/2010 08:59:15 Public Interest Law Re- Interest Public Letter from the Editor Letter from writer reports on potential solutions to the problem and to the problem writer reports on potential solutions PILR , we explore the dichotomy from a civil perspective. the dichotomy from explore , we M K As future lawyers, we are called to protect the interests of our clients to the the interests called to protect are we lawyers, As future furthest under the law. This task has become all the more extent possible and expanding govern- limited resources daunting as clients face increasingly that our clients’ civil rights and liberties to ensure strive We mental restrictions. we of our clients, however, in the fight for the interests Even protected. are our society. Does often at odds with greater are that their interests recognize of society? The challenge benefit one client at the expense of the rest advocacy their interests reconcile we clients and how define our we is how confront we issue of the this Fall with those of the community. In porter issues facing Americans and pressing relevant begin with one of the most We today—adequate article at The lead feature looks health care. and affordable malpractice damages a plaintiff’s right to collect medical the tradeoff between for all health care adequate and affordable in providing and society’s interest Americans. Our weighs the costs of limiting access to justice against the benefits of reducing the costs of limiting access to justice against weighs costs. health care individual further between we examine the interchange our next feature, In The article litigation, in health care. focuses on recent and societal interests patents on two human genes linked to breast Genetics challenging Myriad of information flow patents on genetic material infringe the free cancer. Do and scientists? The ACLU of researchers the interests or protect and research \\server05\productn\L\LPR\15-1\edn151.txt unknown 4 Seq: 19-JAN-10 10:10 C Y 27832_lpr_15-1 Sheet No. 3 Side A 01/25/2010 08:59:15 A 01/25/2010 3 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 3 Side B 01/25/2010 08:59:15 M K C Y will PILR writers bring to light the civil aspects writers bring to light PILR writer reports on a recent Illinois lawsuit brought on behalf of lawsuit brought Illinois writer reports on a recent team reports on another hotly debated issue in need of reform: the in need of reform: debated issue on another hotly team reports PILR PILR and Public Patent Foundation’s ground-breaking claims bring the ethical issues the ethical claims bring ground-breaking Foundation’s Patent and Public to the forefront. genetic material of patenting Our \\server05\productn\L\LPR\15-1\edn151.txt unknown 5 Seq: country security. As a rights and national immigrant tension between com- rights of immi- the gap between bridge the do we immigrants, how prised of 19-JAN-10 the effects of legislation writer examines One to be secure? grants and the right 10:10 that system, E-Verify, of an internet-based identification mandating the use another In employees. status of federal contractor reviews the immigration science and technology U.S. immigration policy impacts the see how piece, we in American graduate student enrollment industry of foreign and the flow institutions. topics, our core these two Beyond of less publicized public interest issues, which nevertheless demand our atten- issues, which nevertheless public interest of less publicized attempts to articles law enforcement of our feature highlights how tion. One the sex industry’s Another article,regulate expansion into the internet realm. draw the we where the particular questions of children, stressing vulnerabilities with disabilities. youth to control line on the authority of school personnel a Finally, all transgender individuals. The suit challenges state restrictions to amend a challenges state restrictions all transgender individuals. The suit person’s birth his or her gender identity. certificate to reflect on the dichotomy to reflect invite you the articles we read that follow, As you hope society. We of greater the client and the interests representing between a new outlook. This issue of to explore you will allow reflection your we now, For counterpartbe complemented with its criminal in the Spring. the “civil” issue and look forward continued support.your enjoy to hope you Sincerely, Cerise Fritsch in Chief Editor 27832_lpr_15-1 Sheet No. 3 Side B 01/25/2010 08:59:15 B 01/25/2010 3 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 4 Side A 01/25/2010 08:59:15 1 ARNEY Others 1 B By limiting By AN 3 I by CRISIS? No. 1 • Fall 1 • No. 2009 FOR THE HEALTH CARE FOR THE HEALTH MEDICAL MALPRACTICE MEDICAL 2 REFORM: A SILVER BULLET A SILVER REFORM: olitical strategy has catapulted medical malpractice reform to the forefront malpractice reform olitical strategy has catapulted medical as a panacea, arguing that re- see reform debate. Some of the health care M K P package would likely be a cap on the The centerpiece of any traditional reform in malpractice suits. amount of damages plaintiffs could recover \\server05\productn\L\LPR\15-1\LPR101.txt unknown 1 Seq: 29-DEC-09 13:27 forming the medical liability system would so significantly reduce health care would so significantly reduce forming the medical liability system legislation. reform costs that it should be central to any health care question the notion that malpractice reform would result in any meaningful would result question the notion that malpractice reform cost-savings. C Y 27832_lpr_15-1 Sheet No. 4 Side A 01/25/2010 08:59:15 A 01/25/2010 4 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 4 Side B 01/25/2010 08:59:15 M K 8 C Y 9 Eliminating this waste could Eliminating 12 6 11 Essentially, if cost-savings were not were Essentially, if cost-savings 7 4 EFORM R In theory, In the fear of crippling premiums without 10 ALPRACTICE M Also, by increasing the predictability of malpractice costs, caps costs, of malpractice the predictability increasing Also, by 5 ASE FOR C HE Recently, House Republican Leader John Boehner of Ohio and Sen. Jon Kyl, Jon and Sen. of Ohio Boehner Leader John Republican House Recently, re- by $100 billion a year over R-Ariz., postulated that Americans could save 2 By reducing litigation costs and increasing the predictability of malpractice the predictability costs and increasing litigation reducing By cheaper malpractice insur- should be able to provide claim outcomes, insurers in the prac- corollary insurance is a reduction ance to doctors. One of cheaper medicine. tice of defensive The purpose of damage caps, and most other traditional medical malpractice The purpose of damage caps, and most liti- reducing by doctors’ malpractice insurance premiums is to reduce reforms, of malpractice claim outcomes. the predictability gation costs and increasing cases. in malpractice limiting plaintiffs’ awards costs by caps reduce Primarily, discouraging attor- cost savings by additional caps may also provide Damage argue that caps limit the filing non-meritorious cases. Proponents neys from regard- medical malpractice cases, for attorneys to take on numerous incentive one case will generate a windfall. less of merit, in hopes that success in award size, damage caps provide built-in cost-savings that allow malpractice that allow cost-savings built-in provide damage caps size, award premiums. lower to provide insurers non-meritorious the number of reducing further savings by provide Caps may claims filed. the in the end, damage caps would reduce that, believe of reform Opponents patients’ access to just compensation injured and restrict quality of healthcare costs. health care overall without reducing \\server05\productn\L\LPR\15-1\LPR101.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 13:27 could limit the practice of defensive medicine. defensive the practice of could limit caused by expensive malpractice claims, doctors would no longer order tests malpractice claims, doctors would no longer order expensive caused by medically unnecessary. that are and procedures significant, the reforms would not be worth would not imposed on the limitations significant, the reforms plaintiffs. T result in significant health care savings. in significant health care result supports Society this idea. The study Medical the Massachusetts A study by engage in defensive of doctors in Massachusetts concluded that 83 percent medical malpractice liability. medicine to avoid 27832_lpr_15-1 Sheet No. 4 Side B 01/25/2010 08:59:15 B 01/25/2010 4 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 5 Side A 01/25/2010 08:59:15 3 13 14 No. 1 • Fall 1 • No. 2009 While her estimate 15 17 21 16 The number of claims filed against physicians dropped The number of claims filed against 20 The American Medical Association contends that because of The American Medical 22 23 In 2007, the state reported a 21.3 percent drop in malpractice drop 2007, the state reported a 21.3 percent In 19 18 M K After instituting a $500,000 cap on non-economic damages in 2005, Illinois 2006, decline in the number of claims filed. In precipitous more saw an even the from 25 percent medical malpractice lawsuits in Cook County dropped year. previous Nonetheless, eliminating health care costs by reducing both insurance premi- both insurance reducing costs by health care eliminating Nonetheless, at least some medicine costs is expected to produce defensive ums and excess savings. 2003, the as a case study. In malpractice reforms to Texas’ points Kyl Sen. non-economic damages in medi- instituted a $250,000 cap on legislature Texas million cap on economic physicians and a $1.6 cal malpractice cases involving damages. Also, every extra test and procedure that doctors order is not necessarily linked is not necessarily that doctors order Also, every and procedure extra test Budget Congressional a 2004 report, the to fear of malpractice liability. In moti- medicine may be (CBO) found that “some so-called defensive Office or the income it generates for physicians than by liability concerns less by vated (albeit small) benefits to patients.” the positive by ducing defensive medicine costs through effective medical liability reform. liability medical effective through costs medicine defensive ducing billion and $200 $100 between can save that we everybody “Almost agrees stated. Kyl Sen. reform,” medical malpractice had effective we billion if Public in Law & of the Program Director Mello, Michelle Dr. However, that defensive estimates Health, School of Public for the Harvard Health $20 billion a year. approximately medicine costs total \\server05\productn\L\LPR\15-1\LPR101.txt unknown 3 Seq: 29-DEC-09 13:27 insurance premiums. reduction experienced a 5 to 30 percent have the cap some doctors in Illinois in premiums. from 6,038 in 2005 to 5,211 in 2006. from may be lower than Boehner’s and Kyl’s, Mello agrees that there are savings to are that there agrees Mello Boehner’s and Kyl’s, than may be lower be had. for cost-savings, many expertsThough a hot target say that not all defensive Law Pennsylvania of University at the a professor Baker, medicine is bad. Tom in doctors to engage the fear of malpractice liability forces School, says that and spend- records examining patient behaviors, such as carefully responsible time with patients. ing more C Y 27832_lpr_15-1 Sheet No. 5 Side A 01/25/2010 08:59:15 A 01/25/2010 5 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 5 Side B 01/25/2010 08:59:15 M K 25 C Y According Thus, even 31 These direct 30 27 ? 24 AVE S EFORM R 26 28 OMPENSATION C ALPRACTICE The CBO also predicts that any savings The CBO also predicts M 29 CCESS TO EDICAL A M 32 a study by the Department of Justice showed that in 2005 that showed the Department of Justice a study by 33 OULD W ATIENTS AND UCH P M OW NJURED I may view medical malpractice compensation as current Kyl Though Sen. “jackpot justice,” 4 This means that even if malpractice insurance premiums were reduced by 25 to by reduced were if malpractice insurance premiums This means that even spending would be miniscule health care – in overall the reduction 30 percent, 0.5 percent. somewhere around According to her, although damage caps do provide a statistically significant although damage caps do provide to her, According limited in their ability to relatively are in malpractice costs, caps reduction costs in the aggregate. health care bring down that in 2009 the caps so limited in their effect? The CBO estimates Why are total approximately costs of the medical malpractice system will only direct expenditures. of total health care $35 billion, or about 2 percent A damage cap in Georgia produced similar results. According to the Medical to According results. similar produced in Georgia cap A damage a damage cap instituted legislature state Georgia’s since of Georgia, Association and 36 percent has fallen by claims filed the number of malpractice in 2005, 18 percent. by dropped have insurance premiums malpractice H \\server05\productn\L\LPR\15-1\LPR101.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 13:27 Although there are savings to be found in imposing damage caps, the efficacy savings to be found in imposing are Although there bullet” is hotly disputed. “silver care as a health reform of medical malpractice is a cure-all. medical malpractice reform disputes the idea that Mello Dr. reaped from reducing defensive medicine would be “very medicine defensive small.” reducing from reaped costs include malpractice insurance premiums, settlements, awards and admin- and awards settlements, costs include malpractice insurance premiums, insurance. by costs not covered istrative medicine, medical malpractice defensive when combined with savings from spending. health care makes a dent in overall barely reform already savings have of these prospective The CBO also points out that much reforms. implemented their own because states have been realized to the National Conference of State Legislatures, over thirty states currently over Legislatures, of State Conference to the National some form of a statutory non- have damage cap or an impediment to receiving economic damages. 27832_lpr_15-1 Sheet No. 5 Side B 01/25/2010 08:59:15 B 01/25/2010 5 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 6 Side A 01/25/2010 08:59:15 5 There 43 For that rea- that For 36 No. 1 • Fall 1 • No. 2009 37 42 and the Supreme Court and the Supreme 44 Indeed, only about 2 percent Indeed, 35 For the ABA, the reduction in access to courts in access reduction the ABA, the For 38 40 34 39 41 M K In addition to calling into doubt the wisdom and efficacy of medical malprac- addition to calling into doubt the wisdom and efficacy In dam- challenged the constitutionality of plaintiffs’ attorneys have tice reform, age caps. caps. damage proscribing constitutional provisions 4 states have Currently, damage caps unconstitutional. courts declared state supreme have Five Attorney Chip Berry, another partner at Corboy & Demetrio, says, “[t]he costs Chip Berry, & Demetrio, Attorney another partner at Corboy them is veryof bringing [malpractice] suits and pursuing high. Consequently, filed at not injuries are catastrophic many meritorious cases with less-than all.” in the decline argues that the precipitous The ABA supportsthis contention. It dam- the 2005 following filed in Illinois, number of medical malpractice cases meritorious cases going unfiled. from age cap, resulted H. Thomas Wells, Jr., former President of the ABA, argues: “The work of the ABA, argues: “The work of Jr., former President H. Thomas Wells, evidence that caps discourage and objective strong neutral scholars provides depriving . . . meritorious malpractice cases, functionally filing from lawyers in court.”persons of their day Chi- a prominent Barry & Demetrio, Attorney Chevitz, a partner at Corboy to Chevitz, cago personal injury law firm, echoes these sentiments. According “I onerous. malpractice claims are expenses associated with litigating medical costs,” tried a med[ical] mal[practice] case for less than $100,000 in never have Chevitz states. medical malpractice plaintiffs prevailed in state court in state percent only 22.7 trials prevailed plaintiffs malpractice medical of the time. too few and that patients claims,” really are “there that believes Mello Dr. to compensation. access increased should have \\server05\productn\L\LPR\15-1\LPR101.txt unknown 5 Seq: 29-DEC-09 13:27 is not worth the small impact that reform would have on overall health care on overall would have is not worth the small impact that reform costs. are also cases challenging the constitutionality of damage cap statutes currently are Court of Georgia of the Supreme pending in front son, Dr. Mello argues for a system of health courts, where panels of expert of health courts, panels of argues for a system where Mello son, Dr. patients. compensation for injured judges would decide of medical malpractice occurrences lead to a malpractice claim. lead to a malpractice occurrences of medical C Y 27832_lpr_15-1 Sheet No. 6 Side A 01/25/2010 08:59:15 A 01/25/2010 6 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 6 Side B 01/25/2010 08:59:15 M K C Y 50 52 49 Such a slim Such 48 Early disclosure 53 46 ALPRACTICE M EDICAL M Not surprisingly, the bill squeaked out of surprisingly, Not UTURE OF 47 Instead, the president has suggested federally the president Instead, F 51 54 OLITICS AND THE This is the second time in a little over a decade that the issue has that the a decade over in a little time is the second This P 45 EFORM RACTICAL Certificate of Merit programs would require an individual to obtain an affida- would require programs Certificate of Merit expertsvit issued by or a panel of doctors stating that the individual’s malprac- to court. the case can proceed tice claim has merit before 6 Though this proposal may be the key to generating historic compromise, any compromise, may be the key to generating historic Though this proposal unlikely. including damage caps seems medical malpractice reform has been adamant in in reform, interest despite expressing Obama, President his opposition of damage caps. It is questionable whether traditional medical malpractice reform is the “silver is the reform whether traditional medical malpractice is questionable It may be the reform crisis. Yet economics of the health care bullet” to solving the and Democrats between compromise bullet” needed to strike grand “silver reform. on health care Republicans re- containing no significant malpractice bill health care a major October, In forms hit the floor of the Senate. gar- that the Democrats will require any sort legislation of health care Passing may malpractice reform filibuster. Medical to defeat a Republican ner 60 votes recently Bradley Bill Sen. this. Former branch needed to achieve be the olive sys- the health care get to overhaul such a trade off: the Democrats proposed major medical malpractice reforms. receive tem and the Republicans of Illinois. P R \\server05\productn\L\LPR\15-1\LPR101.txt Reporter Law Interest Public Loyola unknown 6 Seq: 29-DEC-09 13:27 funded state programs that experiment with alternative malpractice reforms malpractice that experiment with alternative funded state programs models. and early disclosure programs such as Certificateof Merit the Senate Finance Committee with only one Republican vote. only one Republican Committee with Finance the Senate been before the Supreme Court of Illinois; in 1997 the Supreme Court of in 1997 the Supreme Court of Illinois; the Supreme been before a statutory declared damage cap unconstitutional. Illinois models would encourage doctors to disclose medical errors and apologize models would encourage doctors to disclose medical errors entering the and the case would be sent to mediation before appropriate, where civil court system. consensus poses serious problems for a bipartisan reform package. for a bipartisan reform consensus poses serious problems 27832_lpr_15-1 Sheet No. 6 Side B 01/25/2010 08:59:15 B 01/25/2010 6 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 7 Side A 01/25/2010 08:59:15 7 3 Tor t ORT supra ORLD T EDICAL , Sept. 2, , Sept. available at available M & W ORG ; Garber, ; Garber, . IMITING EWS ASSACHUSETTS : L 2-3 NPR , M RIEF U.S. N No. 1 • Fall 1 • No. 2009 B , IABILITY FOR http://www.kyl.senate.gov/ , Aug. 19, 2009, , Aug. note 8 at SSUE I L EDICINE IN supra NDEP , ORT I M UDGET note 2. T available at available B supra EFENSIVE ALPRACTICE ASHINGTON IMITING D L M W (2004), http://www.cbo.gov/ftpdocs/49xx/doc4968/ HE note 1. T CONOMIC AND , EDICAL 2-3 , E supra M http://www.usnews.com/articles/news/politics/2009/08/27/ Republicans are looking for more comprehensive for more looking are Republicans FFICE 55 note 3. O NVESTIGATION OF ALPRACTICE supra , I Y M ’ IABILITY FOR available at available UDGET L B OC http://kyl.senate.gov/record.cfm?id=319155; Press Release, Sen. Jon Kyl, Jon Sen. Release, Press http://kyl.senate.gov/record.cfm?id=319155; Could Lawsuit Curbs Pave Way For Health Care Deal? Care Health For Way Pave Could Lawsuit Curbs note 3; Eviatar, note 3; Eviatar, Democrats Avoid Tort Reform in Healthcare Debate Reform in Healthcare Tort Avoid Democrats note 3; Letter from Douglas W. Elmendorf, Director, Cong. Budget Office, to Office, Cong. Budget W. Elmendorf, Director, Douglas note 3; Letter from . S ORT EDICAL Health Care Law: Medical Liability Law, American Bar Association, http:// Liability Law, American Bar Medical Law: Care Health ED T ]. M supra supra supra http://www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf. . M available at available See also See ASS ; IMITING ONGRESSIONAL L M , Aug 27, 2009, , Aug . Id. Id. C OTES M K ALPRACTICE EP IABILITY FOR note 3. 2009, http://www.npr.org/templates/story/story.php?storyId=112454986; Daphne Eviatar, 2009, http://www.npr.org/templates/story/story.php?storyId=112454986; Eviatar, Daphne Costs Care Health to Cut Unlikely Reform 11 Garber, 12 http://Washingtonindependent.com/55535/tort-reform-unlikely-to-cut-health-care-costs. 2 Health, in Law & Public of Program Dir. Mello, Interview Michelle with Dr. Telephone 16, 2009). (Sept. Health School of Public Harvard 3 Garber, Kent 01-08-MedicalMalpractice.pdf [hereinafter [hereinafter 01-08-MedicalMalpractice.pdf record.cfm?id=317409). 10 9 20, 2009) (on file with (Oct Liability Reform on Medical Kyl Kyl, Jon Sen. Release, Press author), 31, 2009) (on file with author) ( (Aug. Justice Jackpot Senator Orrin G. Hatch, G. Hatch, Orrin Senator 5 6 Garber, 7 democrats-avoid-tort-reform-in-healthcare-debate.html; Letter from Douglas W. Elmendorf, Douglas Letter from democrats-avoid-tort-reform-in-healthcare-debate.html; author), 9, 2009) (on file with (Oct. G. Hatch Orrin to Senator Office, Cong. Budget Director, at available 4 Mello, Interview Michelle with Dr. Telephone (2006), http://www.massmed.org/Content/NavigationMenu10/NewsandPublications/Clinical L M N 1 Scott Horsley, R Though significant, these proposals are likely inadequate when it comes to it comes when likely inadequate are proposals these significant, Though mantra has been whose support Republicans from reform health care gathering oppose, oppose.” “oppose, \\server05\productn\L\LPR\15-1\LPR101.txt unknown 7 Seq: 29-DEC-09 13:27 and systematic reform involving damage caps. Until they achieve it, their man- they achieve Until damage caps. involving reform and systematic to change. tra is unlikely is certainly it is clear that any of malpractice reform messy, While the politics delicate balance between to strike a have would reform successful malpractice in unnecessary medical malpractice costs and ensuring that reigning health care adequate access to justice. victims have www.abanet.org/poladv/priorities/mpl/ (Nov 13, 2009) [hereinafter Health Care Law: Medical Care Health 13, 2009) [hereinafter www.abanet.org/poladv/priorities/mpl/ (Nov Liability Law]. 8 C Y 27832_lpr_15-1 Sheet No. 7 Side A 01/25/2010 08:59:15 A 01/25/2010 7 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 7 Side B 01/25/2010 08:59:15 M K C Y URY Oct. N.Y. 261 J , , , http:// IMES TUDY S note 22 at 6. note 22 at 7. ENCH AND L.A. T B , supra supra supra supra IVIL , C ERFORMANCE note 8 at 6. note 8 at 6. P : supra supra USTICE , , J OARD note 2. note 2. note 2. B TOF ’ note 9. EP supra supra supra note 7. ALPRACTICE ALPRACTICE supra supra EDICAL supra M M M , U.S. D Texas EDICAL EDICAL OHEN , M M Brief and Argument of the American Bar Association]. and Argument of the American Bar Brief Rep. Boehner Accuses Obama of Subverting Constitution of Subverting Obama Boehner Accuses Rep. H. C OMMISSION HOMAS , 2005 4 (2008). After Texas Caps Medical Awards, Doctors Rush to Practice There to Practice Rush Doctors Awards, Medical Caps After Texas Challenge to Medical Liability Caps Go Before Georgia, Maryland High Georgia, Before Go Caps Liability Challenge to Medical C IABILITY FOR IABILITY FOR , Sept. 28, 2009, http://www.amaassn.org/amednews/2009/09/28/prl20 , Sept. http://www.latimes.com/news/nationworld/nation/la-na-malpractice10- & T L L Brief and Argument of the American Bar Association, and Argument of the American Bar Brief Brief and Argument of the American Bar Association, and Argument of the American Bar Brief OURTS EWS note 1. Amicus Curiae Curiae Amicus note 1. note 1. ORT ORT C N note 13. DVISORY T T ED supra supra supra supra Medical Malpractice Reform Savings Would Be Small, Report Says Small, Be Would Savings Reform Malpractice Medical ANGTON A TATE supra available at available M L S M A http://www.sunset.state.tx.us/81streports/final81st/255.pdf. . . IMITING YNN IMITING UNSET , , Oct. 5, 2007, at A21. , Oct. note 3. note 3. Id Id Amicus Curiae Curiae Amicus Id. Id. Amicus Curiae Curiae Amicus L L S L Id. RIALS IN IMES 10, 2009, 2009oct10,0,4877440.story. 14 Hart, 15 Eviatar, 16 17 30 31 G. Hatch, Orrin to Sen. Office, W. Elmendorf, Cong. Budget Douglas Dir. Letter from supra 32 http:// Legislatures, of State Conference Laws, National Liability/Malpractice Medical National 13, 2009) [hereinafter visited November www.ncsl.org/default.aspx?tabid=18516 (last Legislatures]. of State Conference 33 Justice, Jackpot Kyl, Jon Sen. Release, Press 34 18 Eviatar, 19 Ralph Blumenthal, T (2009), 38 36 Eviatar, 37 Interview Mello, Michelle with Dr. Telephone 35 Interview Mello, Michelle with Dr. Telephone 26 27 G. Hatch, Orrin to Sen. Office, W. Elmendorf, Cong. Budget Douglas Dir. Letter from supra 28 29 928.htm. 25 Mello, Interview Michelle with Dr. Telephone 40 30, 2009). (Sept & Demetrio Interview Corboy Email with Barry R. Chevitz, Partner, 41 30, 2009). (Sept & Demetrio Interview Corboy Email with Chip Barry, Partner, 42 39 Liability Law, Law: Medical Care Health www.newsmax.com/insidecover/boehner_healthcare_reform/2009/10/02/267705.html; Alexan- www.newsmax.com/insidecover/boehner_healthcare_reform/2009/10/02/267705.html; der C. Hart, 22 Supporting Association as Amicus Curiae Bar and Argument of the American Brief 21, Aug. (Ill. 105741 & 105745 Nos. Hosp., Mem’l Plain- Gottlieb v. at 9-11, Lebron tiffs-Appellees 2008) [hereinafter 23 as Amici Curiae, Society Medical State Association and Illinois for American Medical Brief 105741 & Nos. Hosp., Mem’l v. Gottlieb at 10, Lebron Defendants-Appellants Supporting 8, 2008). May 105745 (Ill. 24 Sorrell, Amy Lynn Courts 20 21 T \\server05\productn\L\LPR\15-1\LPR101.txt Reporter Law Interest Public Loyola unknown then hyperlink; and Studies” Reports “Research (follow Publications/Clincal_Publications.htm hyperlink). 2008” Report Medicine “Defensive follow 13 Patten, & David Meyers Jim 8 Seq: 29-DEC-09 13:27 8 27832_lpr_15-1 Sheet No. 7 Side B 01/25/2010 08:59:15 B 01/25/2010 7 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 8 Side A 01/25/2010 08:59:15 - 9 , Sept. , Nov 4, , Nov OURNAL LOG J UN S B TLANTIC , Aug. 30, 2009, at , Aug. A CONOMIX No. 1 • Fall 1 • No. 2009 IMES HE E OLINGBROOK T , B COM . HE N.Y. T T , , IMES NYT note 32. , supra supra Republican’s Vote Lifts a Health Bill, But Hurdles Re- Hurdles But Bill, a Health Lifts Vote Republican’s http://www.ajc.com/news/georgia-high-court-considers-139 available at available Republicans and Tort Reform and Tort Republicans Can Tort Reform Help Save Health Care Health Save Reform Help Tort Can note 1. Georgia High Court Considers Tort Reform Law Reform Court Tort Considers High Georgia Tax Reform’s Lesson for Health Care Reform Care Reform’s Lesson for Health Tax , Oct. 14, 2009, at A1. , Oct. http://www.suburbanchicagonews.com/bolingbrooksun/news/1862826,4_1_ supra IMES , Sept 15, 2009, , Sept available at available N.Y. T Id. Id. Id. Id. , M K ONST 29, 2009, http://economix.blogs.nytimes.com/2009/09/24/republicans-and-tort-reform/. 2009, JO04_TORT_S1-091104.article. 46 1997). (Ill. 689 N.E.2d 1057, 1064 Works, Mach. v. Taylor Best 47 Herszenhorn, & David Robert Pear main 44 Rankin, Bill WK9. 51 Horsley, 52 of the University at Serv’s, Address & Human of Health U.S. Sec’y Kathleen Sebelius, at http:// 10, 2009) (transcript available (Sept. & Education on Health Chicago’s Dialogue www.hhs.gov/news/press/2009pres/09/20090910c.html). 53 54 55 Leonhardt, David 43 Legislatures, of State Conference National C 48 49 50 Bradley, Bill 073.html. 45 Stewart Warren, \\server05\productn\L\LPR\15-1\LPR101.txt unknown 9 Seq: 29-DEC-09 13:27 C Y 27832_lpr_15-1 Sheet No. 8 Side A 01/25/2010 08:59:15 A 01/25/2010 8 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 8 Side B 01/25/2010 08:59:15 M K 1 C Y The 2 EILBAECHER W NN A by CANCER GENES PATENTABILITY OF BREAST PATENTABILITY TRAMPLE CIVIL LIBERTIES? TRAMPLE CAN PATENT PROTECTIONS CAN PATENT challenges the constitutionality and validity of patents on two human challenges the constitutionality and validity landmark lawsuit headed by the American Civil Liberties Union (ACLU) the American Civil Liberties Union lawsuit headed by landmark THE ACLU CHALLENGES THE CHALLENGES THE ACLU A of infor- exchange gene patents “undermine the free to the ACLU, According bodily integrity, and women’s health.” mation and scientific freedom, 10 \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 13:32 genes linked to inherited breast and ovarian cancer, BRCA1 and BRCA2. and cancer, BRCA1 and ovarian genes linked to inherited breast ACLU argues that the contested gene patents create a monopoly that illegally argues that the contested gene patents create ACLU 27832_lpr_15-1 Sheet No. 8 Side B 01/25/2010 08:59:15 B 01/25/2010 8 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 9 Side A 01/25/2010 08:59:15 11 5 11 Women 9 The result is that The result 13 No. 1 • Fall 1 • No. 2009 14 Under current U.S. patent current Under 12 If successful, this lawsuit could If 7 8 The defendants contend that “the contend that The defendants Diagnostic tests can determine if a Diagnostic 4 10 ONTROVERSY C ENETICS 3 G The defendants include the University of Utah Research Founda- Research of Utah the University The defendants include 6 YRIAD M M K HE Approximately 12 percent of women develop breast cancer during their lives, cancer during breast develop of women percent 12 Approximately cancer. ovarian of women develop 1.4 percent and approximately rights to the BRCA1 has held exclusive Genetics the late 1990s, Myriad Since tests. gene patents and diagnostic and BRCA2 The ACLU’s suit organized over 150,000 scientists, physicians, activists and 150,000 scientists, physicians, activists over suit organized The ACLU’s of Court District Southern plaintiffs in the District for the cancer patients as York. New T limits women’s health care options, interferes with diagnostic testing, and testing, with diagnostic interferes options, care health women’s limits stifles research. companies property protection, intellectual argue that without The defendants tests for genetic the necessarywill not make to validate financial investments of dollars. can cost millions diseases, which \\server05\productn\L\LPR\15-1\LPR111.txt unknown 2 Seq: 29-DEC-09 13:32 tion, which owns the patents, Myriad Genetics, the exclusive licensee, and the licensee, the exclusive Genetics, the patents, Myriad tion, which owns (USPTO). Office Trademark and U.S. Patent patent system has worked exactly as it was designed to do” by rewarding the rewarding it was designed to do” by exactly as worked patent system has life-saving research. and encouraging discoveries defendants’ landmark woman has a mutation on these genes, enabling her to take potentially life- woman has a mutation on these genes, or ovaries. her breasts as removing such measures saving preventative have widespread effects not only on the validity of the BRCA1 and BRCA2 and of the BRCA1 effects not only on the validity widespread have general. patents, but also on gene patents in law, a gene patent owner has the exclusive right, for up to 20 years, to control right, for up to 20 years, has the exclusive law, a gene patent owner diagnosis or treatment. the patented gene’s use for research, that may legally conduct or authorize is the only company Genetics Myriad genes. and BRCA2 testing for the BRCA1 patents was the by offered to the defendants, the limited exclusivity According to develop Genetics and Myriad of Utah the University that allowed incentive helped thousands of women . . . take steps these diagnostic tools that “[have] cancer.” and ovarian their risk of breast to reduce who carry inherited mutations on their BRCA1 and BRCA2 genes face a genes and BRCA2 who carry inherited mutations on their BRCA1 as a heightened risk as well 40 to 85 percent) cancer (from higher risk of breast 15 to 40 percent). (from cancer of ovarian C Y 27832_lpr_15-1 Sheet No. 9 Side A 01/25/2010 08:59:15 A 01/25/2010 9 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 9 Side B 01/25/2010 08:59:15 M K 24 In C Y 19 20 Her film documents Her In this documentary, In 16 22 21 Because Myriad Genetics has chosen to enforce has chosen to Genetics Myriad Because 15 18 Further, women who do not have insurance, or whose women who do not have Further, 17 23 Image of Filmmaker, Joanna Rudnick (standing), while filming “In the Family.” (standing), while filming “In Rudnick Joanna of Filmmaker, Image 12 In Europe, numerous research institutes and genetics societies have filed no- institutes and genetics societies have research numerous Europe, In genes. and BRCA2 on the BRCA1 patents to Myriad’s tices of opposition in an public attention last year received the controversy States, the United In documentary the Family.” Emmy-nominated called “In The ACLU, however, argues that this exclusivity has thwarted research and thwarted has research exclusivity that this argues however, ACLU, The diagnostic testing. access to this monopoly women do contends that because of the ACLU Additionally, or of having another lab a second opinion the option of receiving not have perform the tests. \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 13:32 insurance does not cover the test, do not have access to this potentially life- access do not have the test, cover insurance does not saving diagnostic tool. their licenses strictly, women who want to receive testing for these susceptibil- testing for these who want to receive strictly, women their licenses than $3,000 more which charges Genetics, Myriad must go through ity genes as the “BRACAnalysis”. test, known for the diagnostic the struggles others facing a similar decision encounter and explores she and and having a monopoly on the BRCA1 the detrimental effects of one company genes. BRCA2 filmmaker Joanna Rudnick chronicles her own experience of making a difficult experience of making her own chronicles Rudnick filmmaker Joanna on her for inherited mutations test result decision when faced with a positive or have cancer, developing odds of genes: risk dramatically increased BRCA measures. as preventive removed and ovaries her breasts Canada, the government’s policy is to let labs infringe on Myriad’s patents, is to let labs infringe on Myriad’s policy Canada, the government’s prices. multiple labs to conduct the tests at lower thus allowing 27832_lpr_15-1 Sheet No. 9 Side B 01/25/2010 08:59:15 B 01/25/2010 9 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 10 Side A 01/25/2010 08:59:15 13 She ex- She 31 25 No. 1 • Fall 1 • No. 2009 BIO maintains that 33 ATERIAL 26 M ENETIC She elaborates, “on the one extreme, there are there elaborates, “on the one extreme, She 30 G “Gene patents are now used to halt research, pre- used to halt research, now patents are “Gene 28 ATENTING 32 P 27 29 THICS OF E M K HE Proponents of gene patents, such as the Biotechnology Industry of gene patents, such as the Biotechnology Organization Proponents harm than gene patents “would do far more (BIO), contend that restricting critical licensing practices are good to patients” because patenting and exclusive of importantto fostering the development genetic tests. According to Jordan Paradise, Associate Professor at Seton Hall University Hall at Seton Associate Professor Paradise, to Jordan According lawsuit is fundamentally asking, is this something School of Law, “the ACLU that is patenting human life?” T about the ethics of patent- the public debate lawsuit reinvigorates The ACLU a famous interview connected to life. In ing material so intimately 12, on April vaccine, of the polio inventor asked the R. Murrow, 1955, journalist Edward Salk to which Dr. the patent on this vaccine?” “Who owns Salk, Jonas Dr. patent you is no patent. Can the people, I would say. There “Well, responded, the sun?” piece written in 2007, Michael opinion Times York New a controversial In decried of television drama “ER,” popular sci-fi writer and creator Crichton, may die love, or someone you “YOU, the perils of patenting genes, claiming, because of a gene patent.” According to Rudnick, “every film screening I have, someone inevitably will inevitably someone have, I “every film screening Rudnick, to According of that a product a gene? Isn’t patent can you question, ‘How ask me the is in the general there awareness little to see how been interesting It’s nature?’ taking place.” patenting is the fact that gene public about was taking that the ACLU “I was very comments, hopeful when I heard She challenging really Office, but also the U.S. Patent Genetics on not only Myriad of nature.” products are that gene patents \\server05\productn\L\LPR\15-1\LPR111.txt unknown 4 Seq: 29-DEC-09 13:32 vent medical testing and keep vital information from you and your doctor,” he and your you medical testing and keep vital information from vent asserted. patenting people and that’s akin to slavery.” are people saying, you plains, however, that the moral and ethical arguments are not just about pat- that the moral and ethical arguments are plains, however, driving up the cost of these patents are enting the human body but whether access to certain information and whether people might not have health care about themselves. C Y 27832_lpr_15-1 Sheet No. 10 Side A 01/25/2010 08:59:15 A 01/25/2010 10 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 10 Side B 01/25/2010 08:59:15 M K 37 C Y Nat- Dan 41 35 A 2005 study 36 34 44 43 and (2) the purified state of syn- 46 40 “The foundational issue of being able to pat- “The foundational issue of being able 39 found that around 20 percent of human genes are cur- of human genes are 20 percent found that around 38 AWSUIT Science 47 The USPTO’s rationale is twofold: (1) “the DNA molecule does The USPTO’s 45 42 ACLU L HE While the USPTO has concluded that naturally occurring genes found in the While the USPTO been “isolated and puri- not patentable, genetic sequences that have body are fied” are. 14 Indeed, since 1852, the U.S. Supreme Court has found that laws of nature, since 1852, the U.S. Supreme Indeed, not patentable subject matter. and abstract ideas are of nature, products gene patents since 1982. has granted the USPTO However, Dr. Alice Martin, a geneticist and patent lawyer in Chicago, expresses concern expresses in Chicago, lawyer Alice Martin, a geneticist and patent Dr. is trying sim- gene patents in general, rather then to eliminate that the ACLU Genetics. Myriad licensing practices of one company, ply targeting the poor didn’t handle this system because Myriad knock out the whole patent “Don’t she says. properly,” genes and diagnos- and BRCA2 BRCA1 The lawsuit claims that patents on the violating legal principles that prohibit unconstitutional and invalid, tic tests are of nature. patents on products gene patents also “create incentives to promote physician and patient educa- and patient physician promote to incentives also “create patents gene compliance.” and improved insurance coverage, tion, broader T all gene patents. to invalidate seeks nothing less then The ACLU \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown 5 Seq: 29-DEC-09 13:32 ent genetic sequences is really in direct conflict with over 150 years of Supreme of 150 years conflict with over in direct ent genetic sequences is really Court asserts Paradise. precedent,” not occur in that isolated form in nature;” ural discoveries must remain “free to all men and reserved exclusively to reserved exclusively to all men and “free must remain ural discoveries none.” published in the naturally occurring from “is different thetic DNA preparations compound.” Ravicher, the Executive Director of the Public Patent Foundation, states that it Foundation, Patent of the Public Director Ravicher, the Executive patents on intent that upon victory“is absolutely our invalid this will render as our case.” just had to pick one case We many other genes. rently patented, corresponding to 4,382 of the 23,688 genes listed in the Na- to 4,382 of the 23,688 genes listed in patented, corresponding rently gene database. Information’s tional Center for Biotechnology 27832_lpr_15-1 Sheet No. 10 Side B 01/25/2010 08:59:15 B 01/25/2010 10 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 11 Side A 01/25/2010 08:59:15 52 15 In In 54 50 60 This was 51 Martin elabo- , further paved 59 as a rationale for No. 1 • Fall 1 • No. 2009 The plaintiffs argue 49 61 Parke-Davis “A gene acting outside the living 55 58 and In that case, Justice Learned Hand Learned case, Justice that In 48 . Diamond v. Chakrabarty 57 Chakrabarty Parke-Davis 53 According to the ACLU complaint, an “‘isolated to the ACLU According and purified’ 56 62 M K According to an amicus brief filed by the American Medical Association and the American Medical to an amicus brief filed by According claim that ap- [or correlation] four other medical organizations, “for a process “This is simply not true,” asserts Martin. is also challenging correla- addition to genetic sequence claims, the ACLU In of a the presence of correlating process tion claims, that is, patents on the risk of a certain disease. mutated gene with an increased The Court by “anything under the sun that is made famously concluded that man” is patentable. cites Although the USPTO and whether the step of isolating and scholars disagree Scientists, advocates be enough to constitute patentable subject purifying a genetic sequence should matter. According to patent law scholar and research fellow at New York University York New at fellow and research law scholar patent to According and purification of isolation the doctrine Law, Matthew Herder, School of to a 1911 case, goes back Court case, Supreme The landmark \\server05\productn\L\LPR\15-1\LPR111.txt unknown 6 Seq: 29-DEC-09 13:32 human gene performs the exact same function as a non-isolated and purified human gene in a person’s body.” the way for living entities to be considered patentable subject mater. entities to be considered the way for living genetic sequences. gene patents, neither of these cases deals with allowing 1980, the Supreme Court, by a vote of 5-4, approved a patent on a genetically of 5-4, approved Court, a vote by 1980, the Supreme oil spills. modified to dissolve bacterium that had been engineered States. in the United on a living organism was granted the first time a patent Court case has specifically addressed no Supreme to Paradise, fact, according gene patents as patentable subject matter. body.” function than in the state has a completely different in a the gene in a human, because the BCRA gene, I don’t own rates, “if I own it is part DNA.” human, it is not isolated and purified, of the circular found that although adrenaline exits in the body, it does not exist in an iso- body, it does not exits in the although adrenaline found that can use. a way that scientists purified form in lated and that the process of comparing the association between a particular of comparing the association between genetic se- that the process laws of quence and a disease should not be patentable because it involves nature. C Y 27832_lpr_15-1 Sheet No. 11 Side A 01/25/2010 08:59:15 A 01/25/2010 11 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 11 Side B 01/25/2010 08:59:15 M K 70 C Y “I be- 74 The amicus brief as- The amicus involves a process for a process involves 63 73 According to Herder, the to Herder, According Bilski 66 64 Journal of the American Medical American of the Journal MENDMENT Although A 65 75 . IRST F Bilski v. Kappos Bilski 67 . “People are raising concerns about whether the percentage of raising concerns about whether the percentage are “People 71 Bilski found that the Myriad diagnostic test missed mutations of 12% of found that the Myriad ATENTS VIOLATE THE A 2006 study published in the The plaintiffs argue that “providing a private company a monopoly a private The plaintiffs argue that “providing The lawsuit claims that patents on the BRCA1 and BRCA2 genes and BRCA2 the BRCA1 The lawsuit claims that patents on 72 P 69 68 ENE Rudnick points out that Myriad Genetics has a valuable repository of data on has a valuable Genetics points out that Myriad Rudnick and BRCA2. for BRCA1 or negative tested positive people who have 16 “We should care a lot about scientists’ ability to disseminate their knowledge,” a lot about scientists’ ability to should care “We asserts Herder. G subject matter, addition to challenging whether genes constitute patentable In Amendment to a gene patent chal- the first to apply the First the plaintiffs are lenge. plies a law of nature to be patent eligible, it also must transform an article an transform it also must eligible, be patent to a to nature a law of plies use a particular state or thing, or machine.” different the before test is currently of this “machine-or-transformation” The validity Courtin Supreme \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown 7 Seq: 29-DEC-09 13:32 Association high-risk families. the 300 people examined from limit research and the free flow of information, violating the First Amend- of information, violating the First flow and the free limit research ment. scientific inquiry, completely preventing that has the effect of inhibiting, even Amendment.” First is not permissible under the into a field of knowledge false positives or false negatives is higher than it would otherwise or false negatives be if competi- false positives offering the services. quality con- that’s a very health care tors were And real cern.” lieve they are no longer participating that data in DNA they are in registering lieve important concerned that really and po- more databases. That makes me even with other but not shared tentially illuminating information may be out there on this.” working scientists who are ACLU’s correlation claims thus could be impacted by the Supreme Court’s the Supreme by claims thus could be impacted correlation ACLU’s decision in serts, “Myriad’s correlation claims do not require a specific machine nor trans- a specific machine claims do not require correlation serts, “Myriad’s state or thing.” articleform an to a different hedging risk in commodities trading, the test might be applied to all process trading, the test might be hedging risk in commodities genetic diagnostic processes. patents including 27832_lpr_15-1 Sheet No. 11 Side B 01/25/2010 08:59:15 B 01/25/2010 11 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 12 Side A 01/25/2010 08:59:15 17 http:// , May 13, , May IMES available at available N.Y. T No. 1 • Fall 1 • No. 2009 , May 27, 2009, http:// , May , note 1. EV R supra supra ECH July 29, 2009, July T ., M . A CI S 77 “If I’m going to take preventative measures to take preventative I’m going “If 76 http://www.nytimes.com/2009/05/13/health/13patent.html; Lynne http://www.nytimes.com/2009/05/13/health/13patent.html; What’s the Point in Patenting Genes? in Patenting What’s the Point note 2, at 8. Cancer Patients Challenge the Patenting of a Gene Challenge the Patenting Patients Cancer http://www.aclu.org/pdfs/freespeech/brca_qanda.pdf [hereinafter ACLU]. [hereinafter http://www.aclu.org/pdfs/freespeech/brca_qanda.pdf note 1. On Nov. 1, 2009, Judge Robert W. Sweet denied the motion Robert W. Sweet 2009, Judge 1, Nov. On supra supra available at available 78 supra supra 79 The Gene Hunt, Should Finders Be Keepers? Keepers? Be Finders Should Hunt, The Gene available at available ACLU, ACLU, See OTES M K 2009, at A16, Peeples, Peeples, www.scientificamerican.com/article.cfm?id=gene-patents-breast-cancer-lawsuit-myriad. 2 25, 1, 5 (May Patents Gene Legal Challenge to Human American Civil Liberties Union, 2009), 3 09 Civ. Office, and Trademark v. U.S. Patent Pathology Complaint, Ass’n. for Molecular 12, 2009). 4515 ¶ 2 (S.D.N.Y. May 4 E. Duncan, David www.technologyreview.com/biomedicine/22704/; see Schwartz,www.technologyreview.com/biomedicine/22704/; 5 Ass’n. for Molecular to Dismiss, 13, 2009) Motion of Defendant’s of Law in Support 09 Civ. 4515 at 1-2 (S.D.N.Y. July Memorandum Office, and Trademark v. U.S. Patent Pathology to Dismiss]. Motion [hereinafter 6 Peeples, 7 Ass’n. for for Summary Judgment, of Motion of Law in Support Aug. 09 Civ. 4515 at 1 (S.D.N.Y. Office, Memorandum Plaintiff’s and Trademark v. U.S. Patent Pathology Molecular for Summary Judgment]. Motion 26, 2009) [hereinafter 8 N 1 Schwartz, John Whether the ACLU lawsuit will ultimately prevail remains to be seen. What is remains prevail lawsuit will ultimately Whether the ACLU of the the debate on a national scale is reinvigorating clear is that this lawsuit accessi- life” and the need to ensure ethics and constitutionality of “patenting tests to patients and researchers. bility of genetic information and diagnostic obscure a once has brought of the outcome of the case, the ACLU Regardless public of subject matter to the forefront concept of what constitutes patentable debates. Rudnick also expressed concerns about Myriad’s patents preventing women preventing patents Myriad’s about concerns expressed also Rudnick a second opinion. obtaining from survivedfirst hurdle— recently its the to dismiss by a motion The ACLU defendants. \\server05\productn\L\LPR\15-1\LPR111.txt unknown 8 Seq: 29-DEC-09 13:32 noting, “resolution of these issues will have far-reaching implications, not only implications, not far-reaching have of these issues will noting, “resolution the health of millions of women facing and the care for gene-based health course of biomedical for the future cancer, but also specter of breast research.” and remove my body parts, I want a second opinion. It seemed to me there seemed my body parts, opinion. It I want a second and remove opinion, and couldn’t get a second you where else in medicine was nowhere limiting that.” monopoly was Myriad’s C Y 27832_lpr_15-1 Sheet No. 12 Side A 01/25/2010 08:59:15 A 01/25/2010 12 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 12 Side B 01/25/2010 08:59:15 M K OL- 35 C Y . U. P M see A LATCHY C C , 15 YE OF A M http://www. http://articles. , E http://bio.org/ip/ http://www.news- N THE 133-138 (2004). : I available at available available at available J. available at available AW available at available L ENETICS G RUG YRIAD & D , Feb 13, 2007, , Feb , Dec. 7, 2003, , Dec. , M OOD IMES IMES F ARBONE , 59 N.Y. T L.A. T C , , note 2, at 6. ULIA note 5, at 4. & J supra supra . 305, 329-30 (2007). . 305, 329-30 note 5, ¶ 39. OLD supra supra European Opposition to Exclusive Control Over Predictive Breast Cancer Breast Predictive Over Control to Exclusive Opposition European note 1. Patenting Life Patenting G Patent Controversy Patent & L note 5, ¶ 2. Patenting Human Genes Thwarts Research, Scientists Say Thwarts Research, Genes Human Patenting Y Molecules and Conflict:Molecules Health and Women’s Patients, Cancer, ’ supra supra supra supra OL supra supra ICHARD . P Subverting U.S. Health U.S. Subverting R OC , June 3, 2009, http://www.mcclatchydc.com/homepage/story/69373.html; , June ICY 29 (Int’l Expert Group on Biotechnology, Innovation and Intellectual Prop. ed., Prop. and Intellectual Innovation on Biotechnology, Expert Group 29 (Int’l S Kartemquin Films (last visited Kit, http://inthefamily.kartemquin.com/press Kartemquin– Films Press Schwartz, Jordan Paradise, Paradise, Jordan at ¶¶ 2, 92. ; Complaint, ; Complaint, at ¶¶ 2, 90. at ¶¶ 2, 93; ACLU, at ¶¶ 2, 93; ACLU, DWARD TORM Id. Id. Id. Id. See See Id. Id. E Id. Id. See Id. See See ENDER S EWSPAPERS 20 J. G nytimes.com/2007/02/13opinion/13crichton.html. 29 30 Univer- Hall of Law, Seton Professor Associate Paradise, Interview with Jordan Telephone 22, 2009). sity School of Law (Oct. 31 32 33 of the with Recommendations BIO Disagrees Org., Indus. Biotechnology Release, Press 12, 2009), and Licensing (Oct. Patenting Report on Gene Draft medical.net/news/20091012/BIO-disagrees-with-recommendations-of-the-draft-report-on- Gene-Patenting-and-Licensing.aspx. 34 for the Prop. for Legal & Intellectual President Counsel and Vice Gen. Dilenge, Tom Report of the Secretary’s Advisory BIO Comments on the Draft Org., Indus. Biotechnology and and Licensing Practices Patenting on Gene and Society Health Committee on Genetics, 8, 2009), (Oct. Tests to Genetic Access on Patient Their Impact domestic/SACGHS_Oral_Statement%2010-8-09.pdf. 18 latimes.com/2003/dec/07/opinion/ed-nunih7. 28 Crichton, Michael 13 Robert S. Boyd, 15 Complaint, 16 2008). 21 20, 2009). Nov. 22 http://inthefamily.kartemquin.com/film Kartemquin (last visited Nov. – Films The Film, 20, 2009). 23 24 from the picture for permission to reprint to Kartemquin acknowledgement Films Grateful at http://inthefamily.kartemquin.com/film. their website 25 of Emmy-nominated and Creator Filmmaker Rudnick, interview with Joanna Telephone 12, 2009). (Nov. documentary, the Family,” “In 26 27 Editorial, U.S.C §§ 154, 271(a)(2009). 14 to Dismiss, Motion N 17 \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown9 http:// Testing, and Genetic Risk Cancer BRCA2: and BRCA1 Institute, Cancer National 2009). 20, visited Nov. (last www.cancer.gov/cancertopics 10 9 Seq: 11 29-DEC-09 13:32 12 M. Kane, Eileen 18 19 Testing and the Inherent Implications for U.S. Patent Law and Public Policy: Public Law and for U.S. Patent Implications and the Inherent of the Study A Case Testing BRCA Genetics’ Myriad 27832_lpr_15-1 Sheet No. 12 Side B 01/25/2010 08:59:15 B 01/25/2010 12 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 13 Side A 01/25/2010 08:59:15 , C- 19 A RAFT note , 310 D supra ATIENT note 1. , 110 P IOTECHNOLOGY . 363, 366 (2007). supra supra http://www.uspto. OCIETY EV & B ]; USPTO Utility Ex- Utility ]; USPTO S No. 1 • Fall 1 • No. 2009 MPACT ON I note 1. Peeples, Peeples, EPORT available at available R HEIR supra T UMKC L. R NGINEERING note 45, at 25. EALTH AND see also RAFT E D , H , 76 supra supra uit Growers, Inc. v. Brodex Co., 283 U.S. uit Growers, , note 45, at 1093. ENETIC G ENETICS RACTICES AND supra EPORT G ACLU Sues Over Patents on Breast Cancer Genes Cancer Breast on Patents Over Sues ACLU P R RAFT D Intellectual Property Landscape of the Human Genome Landscape of the Human Property Intellectual ICENSING L note 45, at 25-26; Schwartz, OMMITTEE ON see also C note 45, at 25; USPTO Utility Examination Guidelines, Guidelines, Examination Utility note 45, at 25; USPTO Metaphysics and Patenting Life and Patenting Metaphysics supra supra 24 (Mar. 9, 2009) [hereinafter 9, 2009) [hereinafter 24 (Mar. , note 5, ¶¶ 4, 71. note 5, ¶ 4. note 5, at ¶ 51. supra supra , ATENTS AND ESTS note 30; note 30. DVISORY note 37. P EPORT T A supra supra supra supra supra , 447 U.S. at 305, 310, 318. , 447 U.S. at 309 (quoting the Committee Reports accompanying the 1952 , 447 U.S. at 309 (quoting the Committee , 447 U.S. at 309 (quoting Funk Bros. Seed Co., 333 U.S. at 130). Co., Seed Bros. Funk , 447 U.S. at 309 (quoting S ’ R ENE supra supra supra supra EPORT supra supra G R CESS TO Parke-Davis & Co. v. H.K. Mulford & Co., 189 F. 95, 107-09 (C.C.S.D.N.Y. & Co., 189 F. 95, & Co. v. H.K. Mulford Parke-Davis , Diamond v. Diehr, 450 U.S. 175, 191-192 (1981); Diamond v. Chakrabarty, 447 191-192 (1981); Diamond 450 U.S. 175, v. Diehr, , Diamond , May 12, 2009, http://www.cnn.com/2009/HEALTH/05/12/us.genes.lawsuit. 12, , May RAFT ENETIC ). Stephanie Smith & Caitlin Hagan, Hagan, & Caitlin Smith Stephanie D G RAFT COM ECRETARY , Jan. 1, 2006, http://www.genengnews.com/articles/chitem.aspx?aid=1163&chid=0. , Jan. Chakrabarty Id. see Id.; Chakrabarty See See See Id. Id. See e.g. See Chakrabarty Competition Issues, Global and Patents Gene Id. Id. D S 239, 239 (2005). . M K EWS EPORT ON CI 1911). 50 v. Chakrabarty, Diamond 447 U.S. 303, 310 (1980); 51 52 Andrew W. Torrance, 47 48 specializing in patent law Kauffman Fellow Interview with Matthew Herder, Telephone 22, 2009). School of Law (Oct. University York and bioethics, New 49 gov/web/offices/com/sol/notices/utilexmguide.pdf (“Thus, an inventor’s discovery of a gene can discovery (“Thus, an inventor’s gov/web/offices/com/sol/notices/utilexmguide.pdf its natural state and processed isolated from be the basis for a patent on the genetic composition molecules naturally associated with other purifying steps that separate the gene from through it.”) 46 Guidelines, Examination Utility USPTO 53 Act Patent amination Guidelines, 66 Fed. Reg. 1092, 1093 (Jan. 5, 2001), 1092, 1093 (Jan. Reg. 66 Fed. amination Guidelines, 35 56 57 Complaint, 58 Martin, 59 60 61 Complaint, 41 v. Kalo Co. Seed Bros. Funk 437 U.S. 584, 590 (1978); v. Flook, Parker U.S. 303, 309 (1980); 127, 130 (1948); American Fr Incolant Co., 333 U.S. Co., 90 U.S. 566, 594 Disintegrating Co. v. Fibre Wood-Paper 1, 11-12 (1931); American (1852). 55 U.S. 156, 175 v. Tatham, (1874); Le Roy 42 43 ???, at 1093. 55 Paradise, 36 37 Group, Sciences Practice and Co-chair of the Life Interview Martin, Partner with Alice O. views in this 2009). The opinions or 14, expressed (Oct LLP, in Chi., Ill. & Thornburg, Barnes Thornburg, & upon Barnes interviewin any way reflect only and do not Martin those of Dr. are of its clients. LLP or any 38 39 Complaint, 40 Paradise, 44 Murray, & Fiona Jenson Kyle 45 54 N S R CNN. \\server05\productn\L\LPR\15-1\LPR111.txt unknown 10 Seq: 29-DEC-09 13:32 C Y 27832_lpr_15-1 Sheet No. 13 Side A 01/25/2010 08:59:15 A 01/25/2010 13 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 13 Side B 01/25/2010 08:59:15 M K - C Y HAN- C EDICINE , Nov. 10, , Nov. . J M T Jill Browning, Jill S UBHASHINI ALL S W , ERSONALIZED P http://genomemedicine.com/ note 45, at 27; available at available ATENTS AND supra supra P , Blog post, Nov. 9, 2009, http://www.patent post, Nov. , Blog B125777966165638699.html; , O ENE note 7, at 33. , G EPORT 2 (2009), R ATENTLY supra supra P EEGAN , Court is Cool to Patents on Methods Courtis Cool to Patents RAFT EDICINE -D D M OOK , 295 JAMA 1379, 1379, 1386 (2006). C note 5, ¶¶ 4, 78-79; Brief for American Medical Association et al. as et Association Medical for American Brief ¶¶ 4, 78-79; note 5, ENOME Spectrum of Mutations in BRCA1, BRCA2, CHEK2, and TP53 in Families Spectrum of Mutations note 65; G note 25. OBERT , note 48. note 48. http://online.wsj.com/article/S supra supra note 62, at 4-5. note 62, at supra supra supra & R HEAD supra supra supra A DRASEKHARAN IES at 33-34. at 35. at 2-3. at 5. available at available L Id. Id. Id. Id. Id. Id. Id. Id. HAT Supreme Court Hears Bilski v. Kappos Bilski Court Hears Supreme 2009, W content/pdf/gm92.pdf. 67 Herder, 69 68 for Summary Judgment, Motion lyo.com/patent/2009/11/supreme-court-hears-bilski-v-kappos.html. 66 Browning, 70 71 Herder, 72 73 et al., Walsh Tom Cancer Risk of Breast at High 74 Rudnick, 75 76 77 78 09 Civ. Office, Trademark and v. U.S. Patent Pathology Ass’n. for Molecular Opinion, 1, 2009). 4515 1, 3 (S.D.N.Y, Nov. 79 20 Amici Curiae in Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss and in to Dismiss Motion Defendant’s to Opposition of Plaintiff’s Support in Curiae Amici v. U.S. Pathology Ass’n. for Molecular Summary Judgment, for Motion of Plaintiff’s Support AMA]. 27, 2009) [hereinafter 4 (S.D.N.Y, Aug. 09 Civ. 4515 1, Office, Trademark and Patent 63 AMA, 64 \\server05\productn\L\LPR\15-1\LPR111.txt Reporter Law Interest Public Loyola unknown62 Complaint, 11 Seq: 29-DEC-09 13:32 65 Kendall, & Brent Bravin Jess 27832_lpr_15-1 Sheet No. 13 Side B 01/25/2010 08:59:15 B 01/25/2010 13 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 14 Side A 01/25/2010 08:59:15 21 AHON M C M No. 1 • Fall 1 • No. 2009 HRISTINA C by IMPLICATIONS BURDENS, AND Only two hours later, security guards Only 1 2 MANDATORY USE OF USE MANDATORY E-VERIFY BY FEDERAL E-VERIFY CONTRACTORS: BENEFITS, CONTRACTORS: n March 2008, Fernando Tinoco U.S. – immigrant and legal a Mexican Tinoco 2008, Fernando n March as of 1989 citizen – at a Chicago began his first day of employment M K meatpacking plant for Tyson foods. meatpacking plant for Tyson I \\server05\productn\L\LPR\15-1\LPR107.txt unknown 1 Seq: 29-DEC-09 14:09 escorted him to the door. C Y 27832_lpr_15-1 Sheet No. 14 Side A 01/25/2010 08:59:15 A 01/25/2010 14 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 14 Side B 01/25/2010 08:59:15 M K C Y Cham- 9 However, by the time by However, 4 The Order, originally to take The Order, 8 However, on Aug. 25, 2009, the Aug. on However, “I went back and the security guard “I went 10 APOLITANO 5 . N . Adminis- 12, 2008, the Bush June On V 3 U.S. 6 OMMERCE OF C 7 HAMBER OF The Business Coalition argued that the Illegal Immigration Reform and Immi- Reform Immigration Coalition argued that the Illegal The Business Branch the Executive of 1996 (IIRIRA) prohibits Act grant Responsibility to use E-Verify. employers ordering from 22 C in decision to a recent due remains mandate the government now, For of U.S. v. Napolitano ber of Commerce federal contractors to requiring 13,465 (Order), Order tration issued Executive as a term of each federal contract. use E-Verify Stories of misidentification like Tinoco’s run at the forefront of debates sur- of debates run at the forefront like Tinoco’s of misidentification Stories federal mandating that regulation enacted government a recently rounding to legal as a safeguard tout the regulation Supporters contractors use E-Verify. could use of the system while opponents fear that widespread employment, of legal immigrant and potential mistreatment bring about racial profiling workers. The company terminated Tinoco because E-Verify— an internet-based system an internet-based E-Verify— because Tinoco terminated company The Se- Homeland Department of against identification information that checks (SSA) databases— Administration Security and Social curity (DHS) identified that he might meaning non-confirmation,” status as “tentative his immigration in the U.S. illegally. be working gov- at federal themselves days to present eight have workers Non-confirmed issued “final non- they are review of their status before ernment offices for their jobs. barring them from confirmation” status, \\server05\productn\L\LPR\15-1\LPR107.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 14:09 effect on Jan. 15, 2009, was delayed four times after the U.S. Chamber of 2009, was delayed 15, effect on Jan. re- Coalition) filed suit for injunctive Coalition (Business Business Commerce Security. of Homeland Director Napolitano, lief against Janet chased me away, told me not to come back to the company because I was told me not to come back to the chased me away, stated. Tinoco fired,” U.S. District Court for the Southern District of Maryland Court District denied the injunc- U.S. District for the Southern contractors tion. The court on the defense’s argument that “government relied because entities can simply choose not to be a to use E-Verify not required are Tinoco obtained confirmation that he was indeed a U.S. citizen, security a U.S. citizen, confirmation that he was indeed obtained Tinoco plant. him back into the would not allow 27832_lpr_15-1 Sheet No. 14 Side B 01/25/2010 08:59:15 B 01/25/2010 14 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 15 Side A 01/25/2010 08:59:15 15 23 This 13 According to According 21 According to the According 17 No. 1 • Fall 1 • No. 2009 According to recently According 20 19 23 18 The Court The a to be has a right “nobody that noted 12 11 Therefore, almost all federal contractors are now re- now all federal contractors are almost Therefore, 14 EBATE Bob Dane, a spokesman for the Federation for American a spokesman for the Federation Bob Dane, 22 D 16 ERIFY E-V M K HE Supporters are also impressed with the program’s ease of use. with the program’s also impressed are Supporters However, supporters of the legislation feel that the cost of the program is war- supporters feel that the cost of the program of the legislation However, ranted. will make it easier for businesses to argue that E-Verify Supporters jobs for Ameri- American protecting comply with U.S. immigration law while economy. especially in light of the recent can citizens, T the cost of cite fears over use of E-Verify to government-mandated Opponents immi- into an arm of the rule’simplementation, and to turn employers ability gration agents. for im- Director Executive of Commerce’s Angelo Amador, the U.S. Chamber migration policy, states that the rule “will cost millions of dollars for some the Ameri- to implement. . . costs that will ultimately be borne by employers used for federal contracts.” can people, which pay the taxes government contractor.” government the Court’s is appealing Coalition ruling,the Business Though the decision 8, 2009. on Sept. Order of the way for implementation the cleared \\server05\productn\L\LPR\15-1\LPR107.txt unknown 3 Seq: 29-DEC-09 14:09 Immigration Reform in Washington, opines “if you’re an employer, you’re no you’re an employer, opines “if you’re in Washington, Reform Immigration can tap into an you to be a document expert. E-Verify, With longer required It’s database that runsautomated Internet against almost 500 million records. to use. What’s not to like?” fast, easy, and free government contractor.” government quired, not merely encouraged, to use E-Verify when hiring new employees. encouraged, to use E-Verify not merely quired, appointed USCIS Director Alejandro Mayorkas, E-Verify “assists employers in “assists employers E-Verify Mayorkas, Alejandro appointed USCIS Director the workforce.” the law and it also protects abiding by the GAO, 92 percent of inquiries confirm whether an employee is eligible of inquiries confirm whether an employee 92 percent the GAO, within seconds. rule, mandating the usage of E-Verify, applies to all contractors working on working applies to all contractors rule, E-Verify, the usage of mandating federal contracts worthshare and any subcontractors whose at least $100,000 than $3,000. is more U.S. Government Accountability Office (GAO), implementation will cost the (GAO), Office Accountability U.S. Government $838 mil- Servicesapproximately and Immigration (USCIS) U.S. Citizenship $281 million. lion and the SSA over C Y 27832_lpr_15-1 Sheet No. 15 Side A 01/25/2010 08:59:15 A 01/25/2010 15 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 15 Side B 01/25/2010 08:59:15 M K 24 CI- C Y S In re- 28 Unfortu- HRISTIAN 31 , 2009 WLNR C AILY HE T D , appeal, the govern- 25 , Cato Institute, March 30, March , Cato Institute, ONGRESS C , Napolitano Napolitano http://www.csmonitor.com/2008/0707/p02s01- available at available Official: Changes in the Works E-Verify With E-Verify, Too Many Errors to Expand its Use? to Expand Errors Many Too E-Verify, With http://www.cato.org/pub_display.php?pub_id=93099309. 29 , July 7, 2008, , July Can E-Verify Help Stem Tide of Illegal Immigration? of Illegal Tide Stem Help E-Verify Can Perhaps an appeal process might alleviate some opponents’ fears. an appeal process Perhaps 30 According to the Cato Institute, a think tank headquartered in Cato Institute, to the According ENCE 27 A DHS study asserts that 0.5 percent of workers whose names were of workers A DHS study asserts that 0.5 percent ONITOR 26 available at available . .; Chris Strohm, M Id Id OTES 18046923, Sept. 14, 2009. 18046923, Sept. 4 Harper, Jim 24 2008, usgn.html. 2 3 1 Marks, Alexandra N However, the ACLU has also expressed that they would not be opposed to E- that they expressed has also the ACLU However, enacted. “Cur- rights are that certain of immigrant safeguards provided Verify who is improperly or legal resident for a citizen is no recourse there rently states has been developed,” appeal process No identified as ineligible to work. the ACLU. Chicago-based federal electrical contractor, Jim Boyd, agrees, indicating that indicating agrees, Boyd, Jim contractor, electrical federal Chicago-based under the new not changed” regulations. operations “ha[ve] his day-to-day than use. . . it’s better easy and quick to system is “the [E-Verify] states, He eligibility.” to help confirm available resources having no in misidentifica- result may often opponents worry that E-Verify However, tions. \\server05\productn\L\LPR\15-1\LPR107.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 14:09 submitted to E-Verify were initially deemed ineligible but later found to be initially deemed were submitted to E-Verify eligible. Washington, D.C., “With 55 million new hires each year, that is approxi- that each year, 55 million new hires D.C., “With Washington, in the U.S.” per workday non-confirmations mately 11,000 tentative ment is still pressing ahead with mandated use of E-Verify.ment is still pressing The ACLU-recom- been enacted, but the SSA is currently not yet have mended safeguards to help eliminate misidentifications. on system revisions working Despite the objections raised and the pending Despite sponse to these rates of misidentification, the American Civil Liberties of misidentification, the American sponse to these rates Union defects in the without correcting of E-Verify stated that the expansion (ACLU) to be perceived who are to discrimination against workers system “could lead born.” foreign nately, these revisions come too late for Tinoco and other individuals misla- and come too late for Tinoco nately, these revisions E-Verify. beled by 27832_lpr_15-1 Sheet No. 15 Side B 01/25/2010 08:59:15 B 01/25/2010 15 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 16 Side A 01/25/2010 08:59:15 , , 25 ASH- W HE T , , 2009 WLNR , 2009 WLNR , 2009 WLNR OST AILY OST P D P No. 1 • Fall 1 • No. 2009 ORK NumbersUSA for Lower Immi- for Lower NumbersUSA Y ONGRESS EW C ASHINGTON , N W , HE T , , 2009 WL 2632761, 4 (D.Md.), Aug. 25, Aug. 4 (D.Md.), , 2009 WL 2632761, note 9. supra supra Federal Contractors Now Required to Use Flawed E-Verify Database E-Verify Flawed to Use Required Now Contractors Federal http://www.martindale.com/construction/article_Blank-Rome-LLP_ note 4. , U.S. Government Accountability Office, http://www.gao.gov/products/ Office, Accountability , U.S. Government Immigration Awaits Its Turn Its Awaits Immigration Executive Order Requires Government Contractors to Use E-Verify Program E-Verify to Use Contractors Government Requires Order Executive Obama Aide Calls E-Verify Reliable: Immigration Groups Wary Groups Immigration Reliable: E-Verify Aide Calls Obama Disputed E-Verify Rules Go Into Effect Into Go Rules Disputed E-Verify Business Reaction to E-Verify: OMG to E-Verify: Reaction Business note 3. note 3; note 4. supra supra note 7. note 18. note 18. note 1. , 2009 WLNR 18115088, Sept. 15, 2009. , 2009 WLNR 18115088, Sept. available at available supra supra , http://www.numbersusa.com/content/news/september-8-2009/e-verify-executive- supra supra supra supra supra supra supra , supra INGTON IMES T . . . . . at 7. . at 8. . . . . Id Employment Verification:Employment Employ- a Mandatory Electronic in Implementing Challenges Exist Id Id Id Chamber of Commerce of U.S. v. Napolitano of U.S. Chamber of Commerce Id Id Id Id Id Id M K 18043218, Sept. 14, 2009. 18043218, Sept. 17 Chris Strohm, 18121336, Sept. 15, 2009. 18121336, Sept. 20 Strohm, 21 GAO, 22 23 Marks, 24 1, 2009). (Oct. Electric Contractor, Boyd Electrical interview Boyd, with Jim Telephone 25 26 Dinan, Stephan 17610375, Sept. 8, 2009. 17610375, Sept. 18 System ment Verification GAO-08-895T. 19 Lee Hockstader, 5 6 7 Strohm, American Civil Liberties Union, http://www.aclu.org/immigrants/workplace/34821prs200804 LibertiesAmerican Civil Union, 08.html.; Harper, 8 Cherylle Corpuz, 14 15 16 Earle, Geoff July 1, 2009, 1, 2009, July 494922.htm. 9 Weblog. Today.” Effect Into Goes Order Executive “E-Verify gration Levels gration order-goes-effect-today.html. 10 2009. 11 12 13 Order, Executive E-Verify 27 28 Harper, 29 ACLU 30 31 GAO, \\server05\productn\L\LPR\15-1\LPR107.txt unknown 5 Seq: 29-DEC-09 14:09 C Y 27832_lpr_15-1 Sheet No. 16 Side A 01/25/2010 08:59:15 A 01/25/2010 16 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 16 Side B 01/25/2010 08:59:15 M K C Y EEB R IM Addition- T 1 by 3 OF U.S. SCIENCE AND OF U.S. SCIENCE The Duke study suggests that these trends may be caused by study suggests that these trends The Duke THE ROLE OF FOREIGN THE ROLE 2 TECHNOLOGY INDUSTRIES TECHNOLOGY STUDENTS IN THE FUTURE IN THE STUDENTS ccording to a March 2009 Duke University study, fewer international study, University 2009 Duke to a March ccording year. applying to U.S. engineering schools each students are A the importance graduates to their industries, U.S. science and of foreign Given to to change the H-1B program lobbied Congress technology companies have 26 \\server05\productn\L\LPR\15-1\LPR109.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 14:12 the U.S. H-1B visa program. ally, more foreign engineering graduates are choosing to leave the United States the United choosing to leave engineering graduates are foreign ally, more after graduation. 27832_lpr_15-1 Sheet No. 16 Side B 01/25/2010 08:59:15 B 01/25/2010 16 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 17 Side A 01/25/2010 08:59:15 6 27 However, 4 With limited H- With 7 16 No. 1 • Fall 1 • No. 2009 TATES S 14 NITED U At least one congressman cited con- one congressman least At 5 Additionally, immigrant entrepreneurs founded immigrant entrepreneurs Additionally, 8 NGINEERS IN THE E To compound this decline, a growing number of foreign a growing compound this decline, To ? 11 OREIGN 9 The annual supply of H-1B visas, limited by a statutory The annual supply of H-1B visas, limited by cap, is F The study found that a substantial majority of foreign students, of foreign The study found that a substantial majority 15 ECLINE 13 12 D That number then dropped to 13 percent in 2007 and to 4 percent to 13 percent That number then dropped 10 OLE OF R HY THE M K HE The Duke study suggests that the U.S. H-1B visa program may be the cause of may be the cause study suggests that the U.S. H-1B visa program The Duke these trends. The H-1B is a non-immigrant visa that allows U.S. employers to temporarily U.S. employers The H-1B is a non-immigrant visa that allows in “specialty occupations,” such as engineering and workers foreign employ mathematics. W Traditionally, foreign students received a large percentage of the engineering large percentage a students received foreign Traditionally, constituted a large and, upon graduation, States in the United awarded degrees as 2007, As recently portion workforce. of the U.S. science and technology doctorate degrees of all engineering percent nearly 60 students received foreign States. in the United awarded suggests that U.S. science and technology industries trend a current However, 2006, the number of In innovation. may need to look elsewhere for future grew at a rate of 19 students applying to American engineering schools foreign percent. make it easier for foreign graduates to work in the United States. the United in work to graduates for foreign it easier make sides appear to both visa program, on the H-1B stalemate the current Despite going to stay com- is States be made if the United changes need to that agree industries in the future. in science and technology petitive T \\server05\productn\L\LPR\15-1\LPR109.txt unknown 2 Seq: 29-DEC-09 14:12 in 2008 and 2009. concerns about and Chinese students, express of Indian including 85 percent graduation. visas following obtaining H-1B work opening. often filled within days of the application process 25 percent of U.S. engineering and technology companies established in the of U.S. engineering and technology companies 25 percent of international pat- 24 percent past decade and contributed to approximately ent applications. students who do study in the United States are returning home after returning are States students who do study in the United graduation. cerns that an influx in foreign workers would take jobs away from Americans. take jobs away from would workers an influx in foreign cerns that Congress has not altered the program. has not altered Congress C Y 27832_lpr_15-1 Sheet No. 17 Side A 01/25/2010 08:59:15 A 01/25/2010 17 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 17 Side B 01/25/2010 08:59:15 M K C Y “Re- 26 28 19 ? “There are plenty of are “There 23 BSTACLE “I can’t overstate the im- “I can’t overstate O 20 Rohrabacher added, “There is no ex- added, “There Rohrabacher 24 NGINEERS OLUTION OR E : S 17 MERICAN In order to hire enough Americans, “you’d have to have enough Americans, “you’d to hire order In “Right now, not enough Americans want to be en- “Right now, ROGRAM 22 25 27 A “Many U.S. science and technology companies blame U.S. science and technology “Many 18 21 UTURE H-1B P F NCOURAGING XPANDING THE Jim Reeb, Director of Manufacturing at Caterpillar, one of the United States’ one of the United at Caterpillar, of Manufacturing Director Reeb, Jim science and technology of engineers, understands the plight largest employers facing. companies are Jim Reeb believes the U.S. educational system can solve this problem. system can solve the U.S. educational believes Reeb Jim passed a bill of Representatives 2007, the House In appears to agree. Congress the number of math and science teachers in the United aimed at increasing the number of math and science and increasing 10,000 per year by States 28 E Microsoft Chairman Bill Gates has consistently urged Congress to let more to Congress has consistently urged Gates Bill Chairman Microsoft States. in the United engineers work foreign-born views the persuaded by of do not appear however, members of Congress, Some R-Calif., for example, be- Rohrabacher, Dana Rep. individuals such as Gates. H-1B visas because foreign-born that companies may be seeking more lieves can be paid less. workers 1B visas available, some foreign students believe attending an American gradu- an American attending believe students foreign some available, 1B visas in the United be able to work they may not is too risky because ate school graduation. following States E \\server05\productn\L\LPR\15-1\LPR109.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 14:12 gineers, but if we change that, the H-1B issue becomes irrelevant.” gineers, but if we raise wages,” he said in response to Gates’ remarks. to Gates’ raise wages,” he said in response their difficulty in finding qualified workers, in part,on the H-1B program, finding qualified workers, their difficulty in says. Reeb altogether,” expanded or removed and want the cap cuse for keeping out ‘B’ and ‘C’ American students just because there was an students just because there cuse for keeping out ‘B’ and ‘C’ American India.” ‘A’ student from [Americans] out there to hire, but people want to have the top-quality people but people want to have to hire, [Americans] out there and China and elsewhere.” India from gardless of your view relative to the H-1B program, the key issue is educating to the H-1B program, view of your relative gardless states. Americans,” Reeb pact [the cap] has, not only on the decision of the people who are educated decision of the people who are pact [the cap] has, not only on the States come to the United but also on their decision to even to stay here, here in the first place.” 27832_lpr_15-1 Sheet No. 17 Side B 01/25/2010 08:59:15 B 01/25/2010 17 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 18 Side A 01/25/2010 08:59:15 , 29 , United , Workforce 31 Losing the World’s No. 1 • Fall 1 • No. 2009 March 2009, at 1, www. March , MSNBC, Jan. 3, 2007, http:/ , MSNBC, Jan. note 1. , National Association of International Educators, Sep. 25, Sep. Educators, Association of International , National supra Included in the bill is a program that creates grants creates that a program the bill is in Included 29 Bill Gates Seeks Rise in Immigration of Highly Skilled Workers Skilled of Highly Rise in Immigration Seeks Gates Bill note 3. Immigrants Behind 25 Percent of Tech Startups of Tech 25 Percent Behind Immigrants note 3. supra supra supra These grants are aimed at increasing the number and performance the number increasing aimed at are These grants 30 Though the increase in American engineering students is a great start, students is a great in American engineering Though the increase . . . 32 . Id Id Workers and Protect Employers to Help Needed Controls Better Workers H-1B Foreign Page Resource FY 2010 H-1b Cap Id Id Id. Id. Findings from the 2009 CGS International Graduate Admissions Survey Phase I: Applications Phase Survey Admissions Graduate International the 2009 CGS from Findings OTES M K 13 14 15 2000, at 3, www.gao.gov/cgi-bin/getrpt?GAO/HEHS- Sept. Office, Accounting General States 00-157. 16 2009, http://www.nafsa.org/regulatory_information.sec/fy_2010_h_1b_cap_resource/. 11 12 Wadhwa, /www.msnbc.msn.com/id/16459952/. 10 Schools, Council of Graduate Council of Graduate Schools, 2009, at 4. Council of Graduate 2 3 & Alex Salkever, Freeman Richard AnnaLee Saxenian, Wadhwa, Vivek V, Part Entrepreneurs, Immigrant New America’s Brightest: and Best kauffman.org/. . ./Losing_theWorld’s_Best_and_Brightest.pdf. 4 Schoeff Jr., Mark 12, 2008, http://www.workforce.com/section/00/article/25/41/45.html. Mar. Management, 5 6 7 3, (Nov. Caterpillar, Inc. of Manufacturing. Director Reeb, Interview with Jim Telephone 2009). 8 Wadhwa, 9 Rachel Konrad, N 1 students to 10 million. to 10 students in the United engineers the number of American is to increase the goal If in engineering pro- Americans start it is important enrolling that more States, survey A recent found an is good news on this front. there grams. Fortunately, in entering engineering programs surge in American students 11 percent 2009. \\server05\productn\L\LPR\15-1\LPR109.txt unknown 4 Seq: 29-DEC-09 14:12 it may come too late. If recent foreign-student trends continue, U.S. science trends foreign-student recent If it may come too late. for demands future may not be able to meet their and technology companies engineers. of undergraduate students in engineering and technology courses. in engineering and students of undergraduate for centers that develop engineering and technology curriculum and teaching curriculum and technology engineering that develop for centers methods. C Y 27832_lpr_15-1 Sheet No. 18 Side A 01/25/2010 08:59:15 A 01/25/2010 18 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 18 Side B 01/25/2010 08:59:15 M K HE OV- C Y T G , , , Mar. 19, , Mar. EEK W USINESS B , , Sept. 16, 2009, http://chronicle.com/article/Growth-in- , Sept. note 7. note 7. supra supra DUCATION E Growth in International Enrollments Slows at U.S. Graduate Schools at U.S. Graduate Slows Enrollments in International Growth World to U.S. B-Schools: Thanks, but No Thanks but No Thanks, B-Schools: to U.S. World note 17. IGHER http://www.businessweek.com/print/bschools/content/mar2009/bs20090319 H supra TRACK , http://www.govtrack.us/congress/bill.xpd?bill=h110-362...... available at available .US Id. Id Id Id Id Id Id. Id Scholarship Act and Math Science Minds 10 Million H.R. 362: 10,000 Teachers, Id. Id HRONICLE OF 2009, _113428.htm. 18 Interview with Reeb, 19 20 Damast, 21 22 23 24 Interview with Reeb, 25 26 27 28 29 30 International/48421/. 30 31 32 Schmidt, Peter C \\server05\productn\L\LPR\15-1\LPR109.txt Reporter Law Interest Public Loyola unknown17 Alison Damast, 5 Seq: 29-DEC-09 14:12 27832_lpr_15-1 Sheet No. 18 Side B 01/25/2010 08:59:15 B 01/25/2010 18 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 19 Side A 01/25/2010 08:59:15 31 AZAY K 3 HANTAL C No. 1 • Fall 1 • No. 2009 by Madoff, a previously Madoff, 1 As a result of the scheme, investors worry of the scheme, investors As a result 5 Astonishingly, the Securities Exchange Com- Exchange Astonishingly, the Securities 2 Investors and the American people alike have criti- and the American people alike have Investors 4 WORK TOGETHER TO TOGETHER WORK CAN THE CFTC AND SEC CFTC CAN THE n June 30, 2009, federal Judge Denny Chin of the Southern District of District the Southern Chin of Denny 30, 2009, federal Judge n June in prison to 150 years (Madoff) Madoff sentenced Bernard York New M K PREVENT ANOTHER MADOFF? ANOTHER PREVENT As of Sept. 22, 2009, the scandal caused losses to 200,336 investors that ex- 22, 2009, the scandal caused losses to 200,336 investors As of Sept. ceeded $13 billion dollars. O \\server05\productn\L\LPR\15-1\LPR104.txt unknown 1 Seq: 29-DEC-09 14:16 cized financial regulators for not catching Madoff sooner, especially due to the for not catching Madoff financial regulators cized scheme’s length and magnitude. for operating the largest Ponzi scheme in history. for operating the largest Ponzi mission (SEC) failed to detect Madoff’s scheme for over a decade. scheme for over mission (SEC) failed to detect Madoff’s respected figure in American finance, managed his scheme under the guise of in American finance, managed his scheme under the guise figure respected an asset management business. C Y 27832_lpr_15-1 Sheet No. 19 Side A 01/25/2010 08:59:15 A 01/25/2010 19 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 19 Side B 01/25/2010 08:59:15 M K C Y The 8 “By meeting “By 12 Smith Personal Usage Condo DepositCondo Rent $Dining Out 25,000 Travel $Clothing 35,000 $Jewelry 3,000 Household Exp $ $ $ 6,000 1,000 7,000 $ 3,000 14 Allan Horwich, a senior lecturer of securities Allan Horwich, a senior lecturer 11 7 To remain afloat, Ponzi schemes require an infi- schemes require afloat, Ponzi remain To ? 9 10 James Smith “Hedge Fund” Cash In (A)Personal Use $Cash Balance 100,000 $ 80,000 $ 20,000 says Horwich. “This meant that only outsiders says Horwich. “This meant that only – for 15 13 CHEME 6 S ONZI P 1.0 Investor A HAT IS A Balance $100,000 IGURE F 32 Figure 1.0 is a hypothetical illustration of how a professional money manager, money a professional of how 1.0 is a hypothetical illustration Figure scheme. Figure funds while operating a Ponzi may use investor Smith, James and use of funds in a common, non- movement 1.0 illustrates the source, scheme. complex Ponzi W existing insufficient to meet schemes end when new are investments Ponzi demands. redemption investor that other scammers, similar to Madoff, remain undetected or unaddressed by or unaddressed undetected remain Madoff, to similar other scammers, that regulatory agencies. to the Com- could happen scheme a Madoff-like concern is whether A similar the SEC 16, 2009, Oct. On (CFTC). Commission Trading modity Futures changes to Con- proposing by this problem address began to and the CFTC securi- similar regulating two agencies can collaborate when the on how gress investments. ties and futures \\server05\productn\L\LPR\15-1\LPR104.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 14:16 litigation at Northwestern University Law School, says Madoff was able to Law School, says Madoff University litigation at Northwestern returns. paying promised keep his scheme going for so long by example, competing firms and journalists com- – were and not his investors Commission.” Exchange plaining to the Securities The mechanics of a Ponzi scheme are simple: a fraudster lures assets to an assets fraudster lures simple: a are scheme a Ponzi The mechanics of with seemingly too-good-to-be-true uses terms, and then proposal investment to earlier investors. of new to pay returns the contributions investors nite supply of new funds. the demands of insistent investors, Madoff was able to deflect any suspicion on was able to deflect any suspicion Madoff the demands of insistent investors, the part of investors,” investment proposal appears to be profitable, but the fraudster is actually steal- appears to be profitable, proposal investment investors. ing money from 27832_lpr_15-1 Sheet No. 19 Side B 01/25/2010 08:59:15 B 01/25/2010 19 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 20 Side A 01/25/2010 08:59:15 21 33 ? ? It also regulates It O GAIN 18 With the Senate’s With No. 1 • Fall 1 • No. 2009 D 19 SEC A “There is a virtual “There ‘Ponzi- CTUALLY 28 A CFTC Chairman Gary Gensler CFTC OR THE HEY 24 17 T O D CFTC HAT “There are times when these differences are appro- are times when these differences are “There 20 25 SEC: W SEC: Like the CFTC, with the Senate’s approval, the President approval, with the Senate’s Like the CFTC, 26 APPEN TO THE 22 H AND THE ADOFF It is also responsible for protecting investors and the public from and the public investors protecting for responsible is also It 16 M 27 23 CFTC CFTC M K OULD HE C The futures and securities regulations share common ground with respect to with respect common ground share and securities regulations The futures in- ensuring market investors, of protecting public policy objectives the broad price transparency. tegrity and promoting and parallel jurisdiction on overlapping have the SEC and the CFTC Because of those instruments is difficult at certain and options, regulation futures times. Similarly, the SEC protects investors, maintains fair, orderly and efficient mar- maintains fair, orderly investors, the SEC protects Similarly, markets. within the securities exchange kets and facilitates capital formation the trading of for overseeing agency responsible The SEC is the government stocks and options. T for supervising responsible agency the trade of government is the The CFTC metals, oil and currencies. such as grains, precious futures \\server05\productn\L\LPR\15-1\LPR104.txt unknown 3 Seq: 29-DEC-09 14:16 CFTC Commissioner Bart Chilton believes Madoff-like Ponzi schemes are al- schemes are Ponzi Madoff-like Commissioner Bart Chilton believes CFTC of hundreds are “There market. exchange happening within the futures ready [schemes] going on all the time,” says Chilton. The CFTC ensures the open and efficient operation of the futures exchange futures operation of the and efficient the open ensures The CFTC markets. priate, but at other times, they could stifle competition, increase costs or limit stifle competition, increase priate, but at other times, they could protection.” investor appoints one chairperson and five securities market commissioners to the commissioners securities market appoints one chairperson and five SEC. fraud, manipulation and abusive trading practices related to the sale of com- to related trading practices and abusive fraud, manipulation and options. futures modity and financial believes the CFTC is, in some ways, similar to the SEC. “There are areas where areas are is, in some ways, similar to the SEC. “There the CFTC believes but do so practices or markets, similar products, and SEC regulate the CFTC says Gensler. differently,” trading in derivatives linked to stock indexes and bonds. linked to stock indexes trading in derivatives com- market futures and five appoints one chairperson the President approval, CFTC. missioners to the C Y 27832_lpr_15-1 Sheet No. 20 Side A 01/25/2010 08:59:15 A 01/25/2010 20 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 20 Side B 01/25/2010 08:59:15 M K 33 43 30 C Y It also It 42 The SEC One solu- One 37 31 As it currently stands, the As it currently 32 According to Coffee, “the bot- According This would prevent future Ponzi future This would prevent 38 39 The CFTC “needs legislation prohibiting “needs The CFTC 34 The growth of the unfettered market for deriva- market of the unfettered The growth 40 “Consumers are being victimized all the time.” being victimized are “Consumers 29 41 Hopefully, new legislation will enable these agencies to harmo- Hopefully, 44 36 The CFTC should be able to impose financial penalties in cases of be able to impose financial penalties should The CFTC 35 “These recommendations will help to fill regulatory“These recommendations gaps, eliminate inconsis- collaboration,” says SEC chairwoman greater and promote Mary tent oversight L. Schapiro. 34 For example, the SEC and CFTC joint-report to Congress recommends legis- recommends joint-report to Congress example, the SEC and CFTC For its in certain and to increase lation to expand the agencies’ authority areas whistle-blowers. for protections establishing by powers enforcement John Coffee, Columbia University securities law professor, also believes that believes also professor, securities law Coffee, Columbia University John insider the SEC has to act on cases of of the powers more needs the CFTC manipulation. trading and market club,” says Coffee. enforcement The SEC “is armed with a greater Palooza’ out there, [and] new investor money [is] being used to pay previous used to [is] being money [and] new investor there, out Palooza’ says Chilton. investors,” the regulatory schemes, Ponzi to combat the that in order Chilton believes them. tools to address and resources the appropriate agencies need \\server05\productn\L\LPR\15-1\LPR104.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 14:16 nize their efforts and work together to detect Madoff-like schemes within the their efforts together to detect Madoff-like nize and work sooner in the future. commodities and securities’ markets tives, the complex financial instruments blamed for advancing the financial the complex financial instruments blamed for advancing tives, in the two agencies’ regula- and overlaps crisis, has made the need to fix gaps tions especially critical. violations. schemes from occurring in either the SEC or CFTC. schemes from regulatory turf in the past, but recently battled over and SEC have The CFTC of the $600 trillion over-the- on sharing regulation the organizations agreed market. counter derivatives can impose penalties without going to court.can impose penalties without going recommends new rules to improve their efficiency in working together. their efficiency in working newrecommends rules to improve tom line here is that it would make sense to harmonize these penalty levels so these penalty levels is that it would make sense to harmonize tom line here powers.” equivalent that both agencies have tion Chilton suggests is to give both the SEC and the CFTC criminal author- and the CFTC both the SEC suggests is to give tion Chilton or fraudsters. “bottom feeders,” ity to prosecute manipulators. market can only bring civil action against and the SEC CFTC insider trading on commodities and transactions within its jurisdiction,” says commodities and transactions within insider trading on Coffee. 27832_lpr_15-1 Sheet No. 20 Side B 01/25/2010 08:59:15 B 01/25/2010 20 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 21 Side A 01/25/2010 08:59:15 35 , June available IMES available at available N.Y. T 785, 810-11 (June , . EV , July 7, 2009, , July , Oct. 17, 2009, at B3, , Oct. No. 1 • Fall 1 • No. 2009 , Dec. 21, 2008, at WK5. , Dec. IMES IMES . L. R , CNNMoney.com, Sept. 28, Sept. , CNNMoney.com, A IMES V , HowStuffWorks.com, Feb. 9, Feb. , HowStuffWorks.com, N.Y. T N.Y. T , 95 , , N.Y. T , 111th Cong. at 2 (2009), , 111th Cong. at 2 (2009), , How Ponzi Schemes Work Ponzi How http://www.nytimes.com/2009/06/30/business/30madoff.html. Assessing the Madoff Ponzi and the Need for Regulatory Hear- Reform: and the Need Assessing Ponzi the Madoff Madoff Is Sentenced to 150 Years for Ponzi Scheme for Ponzi to 150 Years Sentenced Is Madoff A Scheme with No Off Button Off A Scheme with No Commodity Futures Trading Commission Trading Commodity Futures note 8. After being promised a 25 percent return on an investment of $100,000, of on an investment return a 25 percent After being promised Madoff Ponzi Prosecutors: Still Trying to Tally Loss to Tally Trying Still Prosecutors: Ponzi Madoff available at available Top Cop or Regulatory Flop? The SEC at 75 Cop or Regulatory Flop? Top note 3 at 811. supra 1.0: http://www.nytimes.com/2009/10/17/business/17regulate.html. supra at 813. IGURE Id. Id. Id. Id. Id. Id. F Id. Id. 2 Market Regulators Propose Ways to Resolve Differences to Resolve Ways Propose Regulators 2 Market Id. OTES M K http://topics.nytimes.com/topics/reference/timestopics/organizations/c/commodity_futures_ 30, 2009, at A1, 30, 2009, at 2 McGrath, Jane and Clark Josh 2009, http://money.howstuffworks.com/ponzi-scheme.htm. 3 E Fisch, Jill 2009). 4 Smith, Aaron 2009, http://money.cnn.com/2009/09/24/news/economy/madoff_ponzi/index.htm. 5 Fisch, 6 at trading_commission/index.html. 17 18 19 20 available at available 8 Frankel, Tamar Professor Services Commission on Financial the Hearing ing Before http://www.house.gov/apps/list/hearing/financialsvcs_dem/hr010509.shtml 9 10 Catherine Rampell, 11 Frankel, 12 Law School (Oct. interview Northwestern Lecturer, with Allan Horwich, Senior Telephone 9, 2009). 13 14 15 7 Investor A invests $100,000 in James Smith’s hedge fund. Smith immediately rents a fully fur- immediately rents hedge fund. Smith Smith’s $100,000 in James A invests Investor using $25,000 of building in town, most exclusive nished million-dollar condominium in the A’s funds to also uses Investor He month in rent. the funds as a deposit and paying $35,000 per $80,000. Smith for the period are total personal expenses pay other personal expenses. Smith’s earned on interest the him a check for $20,000 to cover A to his home and gives invites Investor percent A that he can pay a 30 Investor assures Smith A’s initial $100,000 investment. Investor A to keep his initial convinces Investor eventually of $200,000. Smith on an investment return on the A relies $100,000. Investor an additional of $100,000 and invest principal investment per- earned, the perceived the check for the interest seeming success of his initial investment, when investing on an investment return of a 30 percent and the promise sonal success of Smith, A. Investor from any of the funds received does not invest that Smith additional funds. Note funds for personal expenses, because of the had not used any of the investors’ if Smith Even of in debt with liabilities in excess A, the scheme is already initial $20,000 payment to Investor funds. the invested 16 Topics, Times N 1 B. Henriques, Diana \\server05\productn\L\LPR\15-1\LPR104.txt unknown 5 Seq: 29-DEC-09 14:16 C Y 27832_lpr_15-1 Sheet No. 21 Side A 01/25/2010 08:59:15 A 01/25/2010 21 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 21 Side B 01/25/2010 08:59:15 , M K C Y EFORM available at available http://www. . J.L. R ICH U. M available at available , 28 Securities Practice: Federal and State Enforcement and State Federal Practice: Securities CFTC’s Approach Is Best for Derivatives, Brodsky Says Brodsky for Derivatives, Best Is Approach CFTC’s , U.S. Securities Exchange Commission, Sept. 2, 2009, Commission, Sept. Exchange , U.S. Securities , CFTC Office of External Affairs, March 20, 2009, Affairs, March of External Office , CFTC Decreasing the Costs of Jurisdictional Gridlock: Merger of the Secur- Merger Gridlock: the Costs of Jurisdictional Decreasing note 7. note 25. , U.S. Securities Exchange Commission, Commission, Exchange Securities , U.S. supra supra , Speech by SEC Chairman: Opening Remarks before the SEC-CFTC Joint the SEC-CFTC before Remarks SEC Chairman: Opening by Speech Ponzimonium , Sept. 2, 2009, http://www.bloomberg.com/apps/news?pid=20601087&sid= , Sept. COM . http://www.sec.gov/news/speech/2009/spch090209mls.htm. , 25A Securities Prac. Fed. & State Enforcement §§ Enforcement & State Fed. Prac. , 25A Securities 2009). 7:2, 7:14 and 12:14 (Sept. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Regulators 2 Market Id. The Investor’s Advocate: How the SEC Protects Investors, Maintains Market Integrity, and Integrity, Market Maintains Investors, Protects the SEC How Advocate: The Investor’s Id. Id. LOOMBERG 36 41 42 43 44 Database 34 and Gallu, Kopecki http://www.cftc.gov/ucm/groups/public/@newsroom/documents/speechandtestimony/opachilt on-21.pdf. 29 30 31 32 33 and Ralph C. Ferrara, I. Steinberg Marc 35 36 37 38 39 40 AGI1VuvLabPI. 26 27 Hoffman, Frederick Mark Trading the Commodity Futures Commission and ities and Exchange 681, 694-701 (Spring 1995). 681, 694-701 (Spring 28 Bart Chilton, B \\server05\productn\L\LPR\15-1\LPR104.txt Reporter Law Interest Public Loyola unknown21 Formation Capital Facilitates 6 Seq: 29-DEC-09 14:16 25 Gallu, and Joshua Kopecki Dawn available at available sec.gov/about/whatwedo.shtml. 22 23 24 Mary Shapiro, L. Harmonization on Regulation Meetings 27832_lpr_15-1 Sheet No. 21 Side B 01/25/2010 08:59:15 B 01/25/2010 21 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 22 Side A 01/25/2010 08:59:15 37 ATIENT P RIAN B 2 No. 1 • Fall 1 • No. 2009 by The Iranian Parliament in- Parliament The Iranian 1 U.S. TO AID IN U.S. TO FIGHT AGAINST IRAN’S AGAINST FIGHT INTERNET CENSORSHIP In response to this post-election censorship, the U.S. Congress response In 3 n July 20, 2009, the Iranian government passed a new its passed law to increase government 20, 2009, the Iranian n July users. access to information about Internet M K Both the U.S. government and some Iranian citizens view citizens the law as the Ira- and some Iranian Both the U.S. government tight censorship of the its already attempt to strengthen nian government’s people. Iranian O \\server05\productn\L\LPR\15-1\LPR108.txt unknown 1 Seq: 29-DEC-09 14:47 enacted the Victim of Iranian Censorship (VOICE) Act to provide Iranian to provide Act Censorship (VOICE) of Iranian enacted the Victim troduced the law, requiring Internet service providers to save all data sent and to save service Internet the law, requiring providers troduced after Mahmoud weeks months, five for a minimum of three received election. presidential controversial Ahmadinejad won Iran’s C Y 27832_lpr_15-1 Sheet No. 22 Side A 01/25/2010 08:59:15 A 01/25/2010 22 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 22 Side B 01/25/2010 08:59:15 M K C Y Even if Even 8 12 In response In 10 11 ESPONSE The Iranian government, The Iranian 9 The Act provides $50 million $50 provides Act The 4 According to Jason Peterson, a Peterson, to Jason According 7 & U.S. R From an American perspective, Iran’s an American perspective, From 6 “The government is acutely aware of the is acutely aware “The government ENSORSHIP 16 C The government’s stated purpose for the legisla- The government’s 15 13 17 LECTION E According to Qorban-Ali Dorri-Najafabadi, Iran’s prosecutor Iran’s to Qorban-Ali Dorri-Najafabadi, According 14 5 RESIDENTIAL -P OST According to media watchdog group, Reporters without Borders, this law fails Reporters without Borders, to media watchdog group, According ongo- the government’s security and, rather, reflects Internet more to provide ing efforts to censor its people. 38 As an additional measure, the Iranian government passed a new law that re- government the Iranian As an additional measure, for a all data sent and received to save service all Internet quires providers months. minimum of three P announced, supporters of Mir were election results After the 2009 presidential to voice on the Internet candidate, relied the opposition Mousavi, Hossein peaceful demonstrations in Tehran. and to organize their protests citizens with greater freedoms in the digital age. in the digital freedoms greater with citizens able be will even government Iranian whether the unclear it remains However, law. the newto implement Internet \\server05\productn\L\LPR\15-1\LPR108.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 14:47 rising influence of weblogs and is attempting to filter Internet sites that provide and is attempting to filter Internet rising influence of weblogs blog hosting and setup.” general, “the law protects the rights of the people and prevents violation of prevents the rights of the people and general, “the law protects in cyberspace.” their privacy through its state-run media sources, has criticized the VOICE Act and accused and Act VOICE the has criticized its state-run media sources, through regime. of trying the Iranian to undermine the U.S. government Foreign Services Officer with the U.S. government stationed in Beirut, Leba- U.S. government Services with the Officer Foreign was handled, the the aftermath and how election results non, “based on the the country into question.” has been called over power government’s tion’s enactment was that it was an effort to provide more security against more efforttion’s enactment was that it was an to provide cyber crimes. control over its citizens has been challenged. has been citizens its over control to assist the Iranian people in avoiding their government’s Internet their government’s in avoiding people the Iranian to assist restrictions. to this use of the Internet, the Iranian government tightened the censorship of tightened the censorship government the Iranian to this use of the Internet, filtering system to block websites. using an advanced its people by the Iranian government’s power has weakened since the election, the Iranian since has weakened power government’s the Iranian intervention. is not open to U.S. government 27832_lpr_15-1 Sheet No. 22 Side B 01/25/2010 08:59:15 B 01/25/2010 22 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 23 Side A 01/25/2010 08:59:15 32 39 30 21 Addition- It views the It 20 33 No. 1 • Fall 1 • No. 2009 Former Iranian Presi- Iranian Former Fatemeh Alia, a senior Alia, Fatemeh 18 The BBG will use these He stated, “any wakened stated, He 34 The Act seeks to provide The Act 27 19 23 On Oct. 28, 2009, President 28, 2009, Oct. On 24 25 The Act also allocates $30 million to The Act Furthermore, Iranian cleric Ayatollah Iranian Furthermore, 26 35 The U.S. Congress took a step towards do- took a step towards The U.S. Congress 22 28 31 This fund will create an educational program to help Iranians learn to help Iranians an educational program This fund will create 29 M K The Iranian government, however, is not pleased with this U.S. intervention. however, government, The Iranian people. contends it is not censoring the Iranian The government Furthermore, Congress set aside an additional $20 million for an education Congress Furthermore, and Media Exchange, Education, Electronic titled the “Iranian program Fund.” the Act Lieberman, I-Conn., Joe to legislation co-sponsor, Sen. According in getting people stay one step ahead of their regime, “will help the Iranian of speech, assembly and freedom access to information and safely exercising online.” expression The U.S. government intends to assist Iranian citizens as they find a way citizens assist Iranian intends to The U.S. government censorship. government around into the business the U.S. government calls for an examination by The Act censoring Internet provided corporations that have practices of non-Iranian government. technology to the Iranian However, some Iranian citizens remain skeptical about the regime’s ability to the regime’s about skeptical remain citizens some Iranian However, with this new legislation. people even own censor its \\server05\productn\L\LPR\15-1\LPR108.txt unknown 3 Seq: 29-DEC-09 14:47 how to circumvent blocked websites and share information more freely. more information and share blocked websites to circumvent how ing so by drafting the VOICE Act in July 2009. in July Act drafting the VOICE ing so by money to educate Iranians on anti-censorship methods and to create Internet and to create on anti-censorship methods Iranians money to educate filters. government for overcoming protocols the Broadcasting Board of Governors (BBG), the government agency responsi- agency (BBG), the government of Governors Board the Broadcasting broadcasting. ble for all U.S. civilian international from government the Iranian technologies to prevent funds to help develop access. blocking Internet new U.S. legislation as unnecessary and unwanted. consciousness would not be satisfied with the resulting situation.” resulting satisfied with the would not be consciousness savvy Internet how Azarmehr, “given blogger Potkin to Iranian ally, according ex- Iranian getting from and the help they are are Iranians the young passes. any law the government will be a way around” pats. . .there into law. Act signed the VOICE Obama “a U.S. attempt to Act called the VOICE Parliament, member of the Iranian government.” the Iranian destabilize dent Ali Akbar Hashemi Rafsanjani expressed doubts that any government ac- government doubts that any expressed Rafsanjani Hashemi dent Ali Akbar Iran. freer a toward the movement slow tion would C Y 27832_lpr_15-1 Sheet No. 23 Side A 01/25/2010 08:59:15 A 01/25/2010 23 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 23 Side B 01/25/2010 08:59:15 M K C Y June , June 22, June , July 26, , July , IMES IMES IMES . T N.Y. T , note 6. ASH N.Y. T , W , CNN.com, July 4, 2009, , CNN.com, July HE supra supra T , 39 , July 21, 2009, http://english.aljazeera.net/ , July , Nov. 15, 2009, http://www.presstv.ir/detail.aspx , Nov. TV LJAZEERA A , RESS Social Networks Spread Defiance Online Defiance Spread Social Networks Web Pries Lid of Iranian Censorship of Iranian Lid Pries Web P , It seems that with this U.S. support, seems that with the Iranian It 38 note 1. In reference to the Act, he stated, “It shows [U.S. gov- shows he stated, “It to the Act, reference In 37 36 supra http://www.nytimes.com/2009/06/16/world/middleeast/16media.html. http://www.washingtontimes.com/news/2009/jul/26/senate-help-iran-dodge- http://www.nytimes.com/2009/06/23/world/middleeast/23censor.html. Senate OKs Funds to Thwart Iran Web Censors Web to Thwart Iran OKs Funds Senate available at available Telephone Interview with Jason Peterson, Foreign Services Officer, United States State States Services United Officer, Foreign Peterson, Interview with Jason Telephone Eli Lake, Lake, Eli available at available available at available Id. Id. Id. Id. Id. Id. Id. Id. Id. Aftermath with Election Satisfied Iranians RafsanjaniSee Doubts See Id. VOICE against Raises Voice Iran Id. See Iran Internet Law Sparks Suspicion Law Sparks Internet Iran OTES 16, 2009, 12 Stone, and Brad Shelter Brian 2009, 13 Law, Internet Iran 14 15 16 17 18 Aftermath, with Election Satisfied Iranians Rafsanjani Doubts 2009, 19 20 40 internet-censorship/. 4 5 6 http://www.cnn.com/2009/WORLD/meast/07/04/iran.rafsanjani/index.html. 7 Dep’t. (Nov. 12, 2009). (Nov. Dep’t. 8 9 news/middleeast/2009/07/2009720132832678525.html. 2 3 ?id=111296§ionid=351020101. 10 11 Cohen, Noam and Stone Brad N 1 Jannati asserts that the U.S. government is using the VOICE Act to engage in to engage Act the VOICE is using asserts U.S. government that the Jannati with Iran. hostilities be U.S. aid, it will feels about the government the Iranian of how Regardless affects and the U.S. legislation in both Iran the recent to see how interesting is committed is clear the U.S. government It censorship within Iran. Internet their continuing to voice change by who can create Iran to helping those in opinions on the Internet. \\server05\productn\L\LPR\15-1\LPR108.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 14:47 ernment officials] have no good intentions towards Iran, and constantly want and Iran, good intentions towards no officials] have ernment in enmity.” to engage people will have more resources to overcome the Internet censorship that has censorship Internet the to overcome resources more people will have plagued their country for the last decade. 27832_lpr_15-1 Sheet No. 23 Side B 01/25/2010 08:59:15 B 01/25/2010 23 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 24 Side A 01/25/2010 08:59:15 41 No. 1 • Fall 1 • No. 2009 http://online.wsj.com/article/SB1 available at available note 25. , http://www.presstv.ir/, Nov. 13, 2009, http:// Nov. , http://www.presstv.ir/, supra note 32. , Aljazeera.net, June 15, 2009, http://english.aljazeera.net/ June , Aljazeera.net, supra , June 17, 2009, , June note 1. note note 9. OURNAL Iran’s Web Spying Aided by Western Technology Cracks Down on Internet Down Cracks Technology Western Aided by Spying Web Iran’s supra J supra TREET note 3. note note 3. S ALL supra supra W HE Iran Shrugs Off Another Year of US Sanctions Year Another Shrugs Off Iran Id. Id. Id. Id. Id. Id. Id. Id. Result Poll after Media Curbs Iran Id. T , M K 21 Law, Internet Iran 22 Lake, 32 37 38 Lake, 23 24 25 Cong. (2009). 2010, H.R. 2647, 111th Year for Fiscal Act Authorization Defense National 26 27 28 29 30 31 Act, Authorization Defense National www.presstv.ir/detail.aspx?id=111193§ionid=351020101. 33 news/middleeast/2009/06/200961581957321161. 34 Raises Voice, Iran 35 36 Another Year, Shrugs Off Iran 39 Christoper Rhoads, Use 24562668777335653.html. \\server05\productn\L\LPR\15-1\LPR108.txt unknown 5 Seq: 29-DEC-09 14:47 C Y 27832_lpr_15-1 Sheet No. 24 Side A 01/25/2010 08:59:15 A 01/25/2010 24 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 24 Side B 01/25/2010 08:59:15 M K 3 C Y ONALD D C M EFF J by SEX INDUSTRY Many government agencies and public government Many 2 Though prostitutes have traditionally used infor- have Though prostitutes 1 CRAIGSLIST AND THE CRAIGSLIST AND FINDS A NEW MEDIUM: NEW FINDS A THE OLDEST PROFESSION THE OLDEST ommonly known as the world’s oldest profession, prostitution is a very prostitution as the world’s oldest profession, ommonly known for contemporary in many cities, with 58,784 reported arrests problem commercialized sex last year. commercialized C 42 \\server05\productn\L\LPR\15-1\LPR106.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 14:49 policy groups identify the bulletin board website Craigslist.org as the most Craigslist.org website identify the bulletin board policy groups popular forum and worry for prostitution about the criminal implications. mal bulletins or the classified section in the back of newspapers to advertise cost, option that is low their services, offers them a marketing now the Internet wide-ranging and highly anonymous. 27832_lpr_15-1 Sheet No. 24 Side B 01/25/2010 08:59:15 B 01/25/2010 24 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 25 Side A 01/25/2010 08:59:15 11 13 43 Al- 7 it enjoys 9 The com- 6 18 Interestingly, 19 No. 1 • Fall 1 • No. 2009 Although Craigslist Craigslist, however, Craigslist, Instead, the site de- Instead, 8 4 17 14 To flag an ad in this section, a To 5 20 21 10 All Craigslist users must agree to the users must agree All Craigslist 12 ” Law enforcement officials conducting searches of the site have officials conducting searches Law enforcement 15 ERVICES 16 S DULT M K Most ad pages have a button to flag the ad as inappropriate. ad pages have Most To reach the “Adult Services” section, users must click through an additional Services” must click through the “Adult section, users reach To 18 or older. that they are to verify disclaimer screen to automatically searches word computerized employs currently Craigslist Services” likely to violate the website’s ads in the “Adult section that are screen of Use. Terms posted; the they are ads before does not attempt to manually screen Craigslist nearly impossible task, causing such long company contends this would be a delays that their service would largely become unusable. Users can find the controversial ads in Craigslist’s “Adult Services” “Adult section. ads in Craigslist’s controversial can find the Users The link is placed next to other service-for-money categories, such as legal, estate. computer and real automotive, Because of the website’s illicit following, law enforcement agents across the across agents enforcement law following, illicit website’s of the Because lawsuits in an and even threats with pleas, country targeted Craigslist have services. on ads for illegal it to crack down effort to force “A in the world. ad resource is arguably the largest classified Craigslist \\server05\productn\L\LPR\15-1\LPR106.txt unknown 2 Seq: 29-DEC-09 14:49 found that this safeguard is not particularly effective; offending ads still is not particularly effective; found that this safeguard abound. has been resistant to curtail user accessibility. resistant has been offices, Francisco in its San 30 people approximately only employs pends heavily on user moderation to spot ads for illegal services. user must email it separately to Craigslist. site’s Terms of Use, which state in part: “You agree not to post, email, or agree which state in part: “You of Use, site’s Terms otherwise Content . . . that advertises any illegal service. make available . .” Services” this option because they have ads in the “Adult section do not have computers. Craigslist’s by been pre-screened pany maintains individualized bulletin boards for 450 cities worldwide. for 450 boards bulletin pany maintains individualized posted each month. most 50 million new classified ads are and is the States in the United traffic ranking of any website the eighth-highest in the world. website 29th most popular C Y 27832_lpr_15-1 Sheet No. 25 Side A 01/25/2010 08:59:15 A 01/25/2010 25 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 25 Side B 01/25/2010 08:59:15 M K C Y Rather than 22 27 All of the net revenue from All of the net revenue 24 On Nov. 6, 2008, Craigslist signed a 6, 2008, Craigslist Nov. On 26 25 23 HANGE C LEDGE TO As Craigslist grew both in popularity and notoriety as a digital facilitator of As Craigslist on the pressure officials nationwide increased law enforcement prostitution, its posting policies. company to reform 44 Despite the $10 fee imposed a year ago, erotic ads still abound in the “Adult Ser- ads still abound in the “Adult ago, erotic the $10 fee imposed a year Despite vices” section. A P According to Craigslist, the “Adult Services” category“Adult the Craigslist, to created originally was According massage and ads for sensual about suggestive had complained because users escort servicesbenign content. with more being interspersed post in charges a $10 fee to to post, Craigslist free of ads are While many types ad volume. Services” to reduce order “Adult in \\server05\productn\L\LPR\15-1\LPR106.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 14:49 these fees is donated to charity. these fees is donated Children and Exploited Center for Missing joint statement with the National to take of 43 states and territories, promising General and the Attorneys misuse of the site for illegal activity. steps to prevent stronger attempt to screen them, the company decided to sequester the racy classifieds to sequester the company decided them, the screen attempt to section. in their own 27832_lpr_15-1 Sheet No. 25 Side B 01/25/2010 08:59:15 B 01/25/2010 25 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 26 Side A 01/25/2010 08:59:15 45 38 Other par- Other Weber met Weber 39 34 Illinois Attorney Illinois No. 1 • Fall 1 • No. 2009 40 Craigslist stalled the in- Craigslist 43 “There are very are few prosti- “There 32 . On May 15, 2009, McMaster May On 42 41 Markoff had previously used the website had previously Markoff 37 36 New York Times York New Weber’s body was later found in his Brooklyn apart- in his Brooklyn body was later found Weber’s 44 35 “The mere act of authentication will be a very act of authentication will significant “The mere Craigslist deletes an ad when user-submitted flags reach a flags reach user-submitted deletes an ad when Craigslist 31 It has also implemented telephone number and credit card and credit number implemented telephone has also It 28 33 29 30 M K Craigslist did concede to pressure by changing the name “Erotic Services” to changing the name “Erotic by did concede to pressure Craigslist Services” for all U.S. cities, ambiguous “Adult on its bulletin boards the more By the time that story was demanding that Craigslist Blumenthal By was breaking, Services.” the ad category, then called “Erotic completely remove General Attorney Carolina been South critic may have most vocal Craigslist’s against company exec- who warned of criminal prosecution Henry McMaster, if the ad categoryutives was not taken down. In spite of the pledge, illicit use of Craigslist continued, occasionally with continued, of Craigslist spite of the pledge, illicit use In Katehis was John 2009, 16-year-old March shockingly brutal consequences. In Weber. of radio news George charged with the killing broadcaster “Craigslist as the known who later became Markoff, 2009, Philip April In of a masseuse he had contacted through for the murder Killer,” was arrested her sex advertisement on Craigslist. In accordance with this agreement, the company began its computerized scan- computerized began its company the agreement, with this accordance In parental by enable recognition adult ads to as tagging as well ning policy, software. screening spearheaded the push for Blumenthal Richard General Connecticut Attorney the joint statement. \\server05\productn\L\LPR\15-1\LPR106.txt unknown 4 Seq: 29-DEC-09 14:49 deterrent,” Blumenthal told the Blumenthal deterrent,” certain threshold. verification. 50 stab wounds. ment with over ties to the original statement voiced similar complaints. ties to the original statement voiced to commence his criminal investigation. threatened Attorney Carolina against the South order suing for a restraining by vestigation days later. five General to lure a prostitute to his hotel room in order to ambush and rob her. to ambush and rob in order to his hotel room a prostitute to lure Katehis when the teen answered Weber’s Craigslist ad offering $60 for a sado- Craigslist Weber’s Katehis when the teen answered masochist rendezvous. tutes who want to be called by Craigslist and asked to give additional identify- give and asked to Craigslist be called by tutes who want to ing information.” General Lisa Madigan accused the company of ignoring the joint statement Lisa Madigan General brothel.” and called the section an “Internet C Y 27832_lpr_15-1 Sheet No. 26 Side A 01/25/2010 08:59:15 A 01/25/2010 26 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 26 Side B 01/25/2010 08:59:15 M K C Y In As 45 48 49 47 Though these are viewed as positive steps, law enforce- steps, law positive viewed as these are Though 46 UBLISHERS P NOT , ROVIDERS Craigslist has faced legal challenges over the content of its ads in the past. has faced legal challenges over Craigslist 46 Craigslist confines erotic ads to the computer-screened “Adult Services” “Adult section, list- ads to the computer-screened confines erotic Craigslist ing them among other paid services. P though international Craigslist sites retain the original “Erotic” category. “Erotic” the original sites retain Craigslist international though \\server05\productn\L\LPR\15-1\LPR106.txt Reporter Law Interest Public Loyola unknown 5 Seq: 29-DEC-09 14:49 ment officials believe the site should be doing more. should be doing the site believe ment officials a defense, the company has cited Section 230 of the Communications Decency a defense, the company has cited Section or user of an interac- provider of 1996 (CDA). The CDA states that “No Act computer serviceinfor- tive as the publisher or speaker of any shall be treated another information content provider.” by mation provided addition, Craigslist has filed 14 separate lawsuits against businesses it claims against businesses 14 separate lawsuits has filed Craigslist addition, automated the company’s and servicesoffer software to circumvent designed measures. compliance 27832_lpr_15-1 Sheet No. 26 Side B 01/25/2010 08:59:15 B 01/25/2010 26 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 27 Side A 01/25/2010 08:59:15 57 47 Supporting the Supporting 62 No. 1 • Fall 1 • No. 2009 56 In its brief, the Coalition In 61 59 “An interactive computer service “An interactive 53 51 The group accused Craigslist of profiting accused Craigslist The group 60 “One might as well say that people who save might as well “One The Court of Appeals for the Seventh Circuit the Seventh for The Court of Appeals 52 50 63 “We believe they are knowingly allowing their business to be used for allowing knowingly they are believe “We 65 The company claimed that a publisher cannot be held responsible for The company claimed that a publisher cannot be held responsible 58 64 54 The complaint alleged that Craigslist was a public nuisance, accused the was a public nuisance, The complaint alleged that Craigslist 55 M K In its defense, Craigslist returned to the Seventh Circuit’s interpretation of the interpretation Circuit’s to the Seventh returned its defense, Craigslist In CDA. “We want for them to be good corporate citizens and not to allow their busi- and not to allow corporate citizens want for them to be good “We Pat- spokesman Steve Office said Sheriff’s ness to be used to facilitate crime,” terson. filed an amicus brief backing in Women The Coalition Against Trafficking Dart on public policy grounds. Despite this ruling, Cook County, Ill. Sheriff Tom Dart became the next to Tom Sheriff this ruling, Cook County, Ill. Despite advertis- 5, 2009, in an effort to block prostitution March sue the company on ing. estimated that his office ar- 2009, the Sheriff 2007 to March January From crimes. for prostitution-related Craigslist 200 people through over rested In 2006, this defense was tested when the Chicago Lawyers’ Committee for Committee Lawyers’ the Chicago when was tested defense this 2006, In discriminatory housing ads over sued the company the Law Under Civil Rights the Chicago area. posted in other online bulletin boards and Craigslist Circuit, Seventh to the According publishers. not providers, are \\server05\productn\L\LPR\15-1\LPR106.txt unknown 6 Seq: 29-DEC-09 14:49 criminal activity and we’d like them to stop.” criminal activity and we’d and ultimately the sex trade. prostitution, from the postings or encouraged the illegal illegal postings unless it produced content. company of solicitation and racketeering and included the naughty-sounding company of solicitation and racketeering persons to houses of ill-fame.” charge of “directing ruled that under Section 230 of the CDA websites were not legally responsible not legally were of the CDA websites 230 ruled under Section that users. content of their for the posted money ‘cause’ bank robbery, because if there were no banks there could be no could banks there no robbery, were money ‘cause’ bank if there because the court reasoned. bank robberies,” alleged that many prostitutes begin working as minors. begin working alleged that many prostitutes ‘causes’ postings only in the sense of providing a place where people can a place where in the sense of providing ‘causes’ postings only post.” group’s argument, the FBI found more than 2,800 ads for child prostitution in than 2,800 ads for child prostitution argument, the FBI found more group’s sting. a recent C Y 27832_lpr_15-1 Sheet No. 27 Side A 01/25/2010 08:59:15 A 01/25/2010 27 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 27 Side B 01/25/2010 08:59:15 M K C Y “They 72 Thomas 74 He specu- He 78 76 73 “A majority of traffic 71 68 It criticized Dart for failing to make Dart for failing criticized It 66 “You can justify Mr. Dart’s behavior as a “You He states, “Sheriff [Dart] gets great public- [Dart] gets great states, “Sheriff He 70 79 75 “It makes Craigslist look bad,” Bucaro said. look bad,” Bucaro makes Craigslist “It 80 77 According to Patterson, the adult services ads are too profitable to the adult services too profitable ads are to Patterson, According Dart is considering appealing the ruling. appealing Dart is considering 69 67 48 Bucaro sees the suit as a move to check a practice that has thus far escaped to check a practice sees the suit as a move Bucaro serious regulation. with- law enforcement from pressure has been able to resist Thus far, Craigslist and local governments with state But out major changes to the way it operates. to police certainly an incentive have enforcement, left to pay for prostitution bulletin board. in the Internet ways of reigning find new and creative While Craigslist does not keep the money from these postings, it does collect these money from does not keep the While Craigslist apartment for job and in certain ads markets. revenue political purpose. has a more the focus on Craigslist believe Some The District Court sided with Craigslist, labeling the site a neutral party a neutral the site labeling Court not Craigslist, with sided District The of its users. for the crimes responsible still contends Office Sheriff’s the Cook County outcome, the adverse Despite the part to address is needed on Craigslist’s approach proactive that a more problem. \\server05\productn\L\LPR\15-1\LPR106.txt Reporter Law Interest Public Loyola unknown 7 Seq: 29-DEC-09 14:49 ity for prostitution cases. . . Anything for sex gets in the news.” cases. . . Anything for sex gets in ity for prostitution control technique.” control Craigslist for the company to remove them of its own volition, even though even volition, them of its own for the company to remove Craigslist to charity. the $10 fee is donated Bucaro, a Chicago attorney who has represented more prostitutes than he ad- than prostitutes more a Chicago attorney who has represented Bucaro, a grab for headlines than a the suit is more believes mits he can remember, tactic. legitimate crime-reduction allegations meaningfully different from those already rejected by the Seventh by rejected already those from meaningfullyallegations different Circuit. to charge for apartmentuse the traffic numbers up postings. . . They come traffic.” on total web with the amount they charge based to Craigslist’s website is for these [adult services] ads,” Patterson said. is for these [adult services] website Patterson ads,” to Craigslist’s lates that putting the spotlight on Craigslist may force the company to take the company may force lates that putting the spotlight on Craigslist some sort face. to save of action 27832_lpr_15-1 Sheet No. 27 Side B 01/25/2010 08:59:15 B 01/25/2010 27 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 28 Side A 01/25/2010 08:59:15 49 availa- Lawsuit , May 20, 2009, , May No. 1 • Fall 1 • No. 2009 . K . W US B , , Mar. 5, 2009, http://www.cnn.com/2009/ , Mar. CNN , note 16. note 15. note 11. note 15. note 15. supra note 6. craigslist Sues South Carolina Attorney General South Carolina Sues craigslist supra supra supra supra supra http://www.businessweek.com/the_thread/techbeat/archives/2009/05/craigslist_sues.html? . Id. Id. Id. Id. Id. Id. Id OTES M K ble at chan=technology_technology+index+page_top+stories. 6 Alexa 21, – (last visited Oct. http://www.alexa.com/siteinfo/craigslist.org# Craigslist.org, 2009). 7 http://www.craigslist.org/about/pr/factsheet (last vis- Factsheet, Relations Public Craigslist 21, 2009). ited Oct. 8 21, 2009). http://www.craigslist.org/about/factsheet (last visited Oct. Factsheet, Craigslist 9 10 Alexa, 11 2009). 21, http://www.craigslist.org (last visited Oct. Craigslist, 12 13 21, (last visited Oct. http://www.craigslist.org/about/terms.of.use of Use, Terms Craigslist 2009). 14 http://chicago.craigslist.org/cgi-bin/ser- & Disclaimer, Services Adult Warning Craigslist vices.cgi?category=ads 21, 2009). Oct. (last visited 15 (last http://www.craigslist.org/about/erotic_services_FAQ Services FAQ, Erotic Craigslist 21, 2009). visited Oct. 16 for craig- Conn., to Barry Attorney Gen., Reingold, Att’y Blumenthal, Richard Letter from 27, 2008), http://www.ct.gov/ag/lib/ag/consumers/craigslistletter.pdf. (March slist, Inc. 17 Craigslist, 18 19 Craigslist, 20 http://www.craigslist.org/about/help/flags_ and Community Moderation, Flags Craigslist 21, 2009). and_community_moderation (last visited Oct. 21 22 Craigslist, 23 24 (last visited Oct. http://www.craigslist.org/about/help/posting_fees Fees, Posting Craigslist 21, 2009). 25 Craigslist, CRIME/03/05/craigs.list.prostitution/index.html. 4 09 CV 2009) (No. 2009 WL 564291 (N.D. Ill. Inc., v. Craigslist, Complaint at 11-13, Dart 01385). 5 Kharif, Olga 26 Blumenthal, 27 6, 2008), http://www.tn.gov/attorneygeneral/ (Nov. Statement et al., Joint Inc., Craigslist, cases/craigslist/craigsliststatement.pdf. 28 29 N 1 Uniform Services Division, Information Justice Criminal of Investigation, Bureau Federal 2008, http://www.fbi.gov/ucr/cius2008/data/table_ States, in the United Report: Crime Crime 42.html. 2 (Oct. and Associates, in Chi., Ill. at Law, Bucaro Attorney Interview Thomas Bucaro, with 9, 2009). 3 “‘Craigslist in the nation,’ Dart said.” of prostitution largest source is the single Prostitution of Promoting craigslist Accuses \\server05\productn\L\LPR\15-1\LPR106.txt unknown 8 Seq: 29-DEC-09 14:49 C Y 27832_lpr_15-1 Sheet No. 28 Side A 01/25/2010 08:59:15 A 01/25/2010 28 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 28 Side B 01/25/2010 08:59:15 M K ’, C Y N.Y. , http:// , 519 F.3d 666 available at available http://www.brooklyn , Apr. 22, 2009, http://wbztv. , Apr. available at available , Nov. 6, 2008, , Nov. OSTON Teen Confesses in Newsman Slay Confesses in Newsman Teen IMES note 48. WBZ B N.Y. T , supra , Oct. 1, 2009, , Oct. ‘Prince of Darkness’ Due in Court Today for S&M Due in Court Today of Darkness’ ‘Prince , ’Craigslist Killer’ Appears in Court, Shouts ‘Not Guilty in Court, ‘Not Shouts Killer’ Appears ’Craigslist AGLE E , 2009 WL 564291 (N.D. Ill. 2009) (No. 09 CV 01385). 2009) (No. , 2009 WL 564291 (N.D. Ill. note 34. note 47. AILY http://www.nypost.com/p/news/regional/brooklyn/teen_con- D supra supra available at available ROOKLYN B note 11. note 31. , note 5. note 3. Craigslist Agrees to Curb Sex Ads Sex to Curb Agrees Craigslist Dart v. Craigslist, Inc. v. Craigslist, Dart supra supra supra supra , Jun. 22, 2009, http://www.abcnews.go.com/US/story?id=7897975&page=1. , Jun. at 14-15. at 3. at 671. at 18-26. at 7. EWS . . . . . , Mar. 25, 2009, , Mar. Id Id Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc. v. Craigslist, Law, Inc. Rights Under Comm. for Civil Chicago Lawyers’ Chicago Lawyers’ Comm. for Civil Rights Comm. for Civil Chicago Lawyers’ Id. Id. Id Id Id. Id Id. Id. Id. Id. , Site Clean Up To Craigslist Wants Conn. AG Id. Id. Id. OST com/curious/craigslist.erotic.ads.2.991555.html. 40 Services Sec- Erotic Down to Shut Craigslist Gen., Att’y Ill. Lisa Madigan, Release, Press 13, 2009), http://www.illinoisattorneygeneral.gov/pressroom/2009_05/20090513. tion (May html. 41 42 Inc. CEO, Craigslist, Buckmaster, to Jim Gen, S.C. Att’y Henry McMaster, Letter from 2009), http://www.scag.gov/newsroom/pdf/2009/craigslist_letter.pdf. 5, (May 43 (May on Craigslist Statement McMaster Gen., S.C. Att’y Henry McMaster, Release, Press 15, 2009), http://www.scattorneygeneral.org/newsroom/advisories/2009/5-15.pdf. 44 Kharif, 45 Craigslist, P 46 Craigslist, www.nytimes.com/2008/11/07/technology/internet/07craigslist.html?pagewanted=all. 33 34 Rotondaro, & Vinnie Thompson Ryan Killing on Henry St. 47 in Office, Cook County Sheriff’s Spokesperson, Patterson, Interview with Steve Telephone 21, 2009). (Oct. Chi., Ill. 48 (7th Cir. 2008). 49 of 1996, 47 U.S.C.A. § Act Communications Decency 1998). 50 230(c)(1) (West 51 eagle.com/categories/category.php?category_id=4&id=31097. 35 Chiaramonte, & Perry Doyle Larry John Celona, 56 52 53 54 55 Complaint, 59 60 Plain- Supporting as Amicus Curiae in Women for the Coalition Against Trafficking Brief 09 CV 01385). 2009) (No. 2009 WL 2446750 (N.D. Ill. Inc., tiff, Dart v. Craigslist, 61 57 58 Interview with Patterson, 38 39 62 63 CNN, 50 37 McPhee, & Michele Friedman Emily fesses_in_newsman_slay_0bm9j2NpfbUnSDtcRdUNWL. 36 Thompson & Rotondaro, ABC N \\server05\productn\L\LPR\15-1\LPR106.txt Reporter Law Interest Public Loyola unknown30 31 6, NCMEC (Nov. General, with Attorneys Statement Joint Inc., Craigslist, Release, Press 2008), http://blog.craigslist.org/2008/11/joint-statement-with-attorneys-general-ncmec. 9 Seq: 32 Stone, Brad 29-DEC-09 14:49 27832_lpr_15-1 Sheet No. 28 Side B 01/25/2010 08:59:15 B 01/25/2010 28 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 29 Side A 01/25/2010 08:59:15 51 , Oct. 23, , Oct. . J. T S ALL W No. 1 • Fall 1 • No. 2009 , , 2009 WL 1370729 (N.D. Ill. 2009) (No. 09 (No. 2009) Ill. (N.D. WL 1370729 , 2009 note 47. note 47. note 2. supra supra supra , No. 09 CV 01385, 2009 WL 3416106, at 6-7 (N.D. Ill. 2009). (N.D. Ill. WL 3416106, at 6-7 09 CV 01385, 2009 , No. Dart v. Craigslist, Inc. Craigslist, Dart v. Sheriff Still Thinks Craigslist Needs Some Policing Needs Thinks Craigslist Still Sheriff note 8. supra . at 14-16. . at 7. Id. Id. Id. Id. Id. Id. Id. Id. Id Inc. Dart v. Craigslist, Id M K 2009, http://blogs.wsj.com/digits/2009/10/23/sheriff-still-thinks-craigslist-needs-some-policing. 69 Interview Patterson, with 70 71 Craigslist, 72 Interviewwith Patterson, 73 74 Interviewwith Bucaro, 75 76 77 78 79 80 CV 01385). 65 66 64 for Defendant, Brief 67 68 Fowler, Geoffrey \\server05\productn\L\LPR\15-1\LPR106.txt unknown 10 Seq: 29-DEC-09 14:49 C Y 27832_lpr_15-1 Sheet No. 29 Side A 01/25/2010 08:59:15 A 01/25/2010 29 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 29 Side B 01/25/2010 08:59:15 M K C Y ESTLEY W LLEN E by 2 Weinfuss is just one of many individuals with disabili- Weinfuss 1 FOR INDIVIDUALS WITH FOR INDIVIDUALS MAKING THE CUT: JOBS, MAKING 2010 BUDGET IN ILLINOIS 2010 BUDGET PROGRAMS AND SERVICES PROGRAMS don’t want to just sit here and twiddle my thumbs,” said Deborah and twiddle my thumbs,” don’t want to just sit here state disability, after Illinois an individual with a cognitive Weinfuss, DISABILITIES ELIMINATED BY DISABILITIES ELIMINATED budget cuts eliminated a program that has allowed her to live and work inde- and work her to live that has allowed budget cuts eliminated a program pendently since 1990. “I 52 \\server05\productn\L\LPR\15-1\LPR112.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 14:52 ties who have been affected by the extensive 2010 budget cuts to human the extensive been affected by ties who have in Illinois. service providers 27832_lpr_15-1 Sheet No. 29 Side B 01/25/2010 08:59:15 B 01/25/2010 29 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 30 Side A 01/25/2010 08:59:15 7 16 53 On 14 If the If 8 18 6 The budget cut But the massive the But 4 15 No. 1 • Fall 1 • No. 2009 In fact, it is growing. fact, In 5 Gov. Pat Quinn was able to prevent additional able to prevent was Quinn Pat Gov. 3 Under this funding scheme, Gov. Quinn and di- Quinn this funding scheme, Gov. Under However, on June 30, 2009, organizations such as 30, 2009, organizations such on June However, 19 11 13 Because the proposed 50 percent cuts would have re- cuts would have 50 percent the proposed Because 12 Though not as drastic as the Doomsday Budget, disability Budget, Though not as drastic as the Doomsday 17 9 In late June, Illinois lawmakers passed a budget, described by many lawmakers passed a budget, described by Illinois late June, In 10 UTS C M K HE Unlike past years, where the Illinois legislature allocated a specific amount of allocated a specific legislature the Illinois where past years, Unlike state the 2010 budget instead provides in Illinois, funding to each program agencies with lump sums. The governor sought an increase in income taxes to help solve state budget state to help solve in income taxes an increase sought The governor taxes. increased but legislators continued to support cuts over problems, of of 86 percent average at an The 2010 budget funds human service providers budget. last year’s T without a began the new for 2010 year 1, 2009, Illinois fiscal July On budget. The Illinois state legislature reduced the budgets of these providers by 14 per- 14 by providers of these budgets the reduced legislature state Illinois The 2010 fiscal year. cent for the agencies that serve support in individuals with disabilities Many an increase year. cuts next future the large state deficit and prevent to reduce income taxes in taxes. oppose an increase citizens the majority of Illinois However, \\server05\productn\L\LPR\15-1\LPR112.txt unknown 2 Seq: 29-DEC-09 14:52 assistance agencies were still forced to cut employees and programs due to this due and programs to cut employees still forced assistance agencies were the budget. and a 15-day delay in approving reduction 14 percent as the “Doomsday Budget,” that proposed to cut 50 percent of funding for to cut 50 percent that proposed Budget,” as the “Doomsday human service providers. Equip for Equality filed lawsuits against the state to stop the drastic cuts in the filed lawsuits against the state to stop the drastic cuts for Equality Equip Budget. Doomsday proposed cuts to these agencies by borrowing money from pension notes and money from borrowing by cuts to these agencies proposed until next year. service to state providers debt owed deferring rectors from agencies such as the Department of Human Services (DHS) make agencies such as the Department of Human from rectors sulted in substantial hardship for individuals in Illinois, Gov. Quinn vetoed Quinn Gov. for individuals in Illinois, sulted in substantial hardship Budget. the Doomsday Illinois state deficit has not disappeared. deficit has not state Illinois $1 billion overall and classified another $1 billion as partfund. of a reserve $1 billion overall state does not receive a revenue increase before the 2011 budget is created next 2011 budget is created the before increase a revenue state does not receive and services programs with disabilities may see additional individuals cut June, their lives. from July 15, 2009, Gov. Quinn finally approved a 2010 budget. approved finally Quinn 15, 2009, Gov. July C Y 27832_lpr_15-1 Sheet No. 30 Side A 01/25/2010 08:59:15 A 01/25/2010 30 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 30 Side B 01/25/2010 08:59:15 M K 30 C Y In 23 22 The defi- 25 $3.5 million in Nine agencies serving Nine 28 One think tank recently One 26 33 Additionally, Illinois ranks 47th Illinois Additionally, 32 governor borrowed governor “Essentially by doing this, we have we doing this, by “Essentially 21 24 The eliminated services include job training 29 27 Critics charge that this system lacks necessary oversight and delegates and lacks necessarycharge that this system Critics oversight FFECTS But Illinois is already behind when it comes to providing residential and residential behind when it comes to providing is already Illinois But 20 E 31 HE 54 As an immediate result of the 2010 cuts, 19 agencies servingAs an immediate result people with phys- 1,000 100 jobs lost, services for over eliminated ical disabilities reported over affected for thousands more. people and programs affect individuals may continue to negatively budget deficit problems State ser- increase, a significant revenue Without with disabilities in the near future. at community access to the disabled community remain vices that provide risk. Meanwhile, the state’s financial situation continues to deteriorate. financial situation continues to the state’s Meanwhile, T autonomous decisions about how the 86 percent funding levels will be distrib- will levels funding percent the 86 about how decisions autonomous uted. feel the 2010 many state officials likely as cuts are additional the future, In until next year. dealing with the state’s large deficit budget only delays \\server05\productn\L\LPR\15-1\LPR112.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 14:52 and other programs for disabled and mentally ill adults living independently. for disabled and mentally ill adults and other programs community supports to individuals with disabilities. in 2008 for funding residen- States ranks 51st, dead last, in the United Illinois project tial services to a research according for individuals with disabilities, of Colorado. the University by administered too much responsibility to the governor. to responsibility too much for the inclusion of individuals with disabilities in communities according to a for the inclusion of individuals with disabilities in communities according Palsy. Cerebral United 2009 study conducted by made him the king of Illinois,” Sen. Donne Trotter, D-Chicago, said. Trotter, Donne Sen. the king of Illinois,” made him to owed $3 billion pensions and deferred state employee pension notes to pay into next year. service providers people with mental illnesses reported laying off over 200 employees and elimi- 200 employees laying off over people with mental illnesses reported nating services for thousands. cit was $9.2 billion when the budget passed, and the governor projects it to be projects when the budget passed, and the governor cit was $9.2 billion the start of the 2011 fiscal year. $11.6 billion by Nov. state deficit as $13 billion as of reporting the Illinois published a study 11, 2009. order to fund the $26 billion budget, the order to fund the 27832_lpr_15-1 Sheet No. 30 Side B 01/25/2010 08:59:15 B 01/25/2010 30 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 31 Side A 01/25/2010 08:59:15 42 55 By 35 These groups are These groups No. 1 • Fall 1 • No. 2009 37 Mike Ervin, and Mike writer by re-segregating our re-segregating by Ervin receives 279 hours per Ervin receives 41 . In that case, the court that that held . In Olmstead. 40 34 They attended rallies, wrote cards to the governor cards They attended rallies, wrote 39 Brown v. Board of Education v. Board Brown 38 IGHT F 43 Olmstead v. L.C. ex. rel. Zimring v. L.C. ex. rel. Olmstead community compliance even before the budget cuts occurred. the budget cuts before even community compliance 36 NGOING O M K HE Ervin and 30,000 other individuals with disabilities in Illinois rely on the pro- rely Ervin individuals with disabilities in Illinois and 30,000 other independently in their homes. gram to live to be able to get out of bed, . . just in order a disability is expensive. “Having need,” Ervin it in the and get the equipment we noted. “Making get dressed world is not possible without some public assistance for most people with real disabilities.” Individuals and organizations have been meeting with Gov. Quinn and agency and Quinn been meeting with Gov. and organizations have Individuals budget is implemented. as the 2010 fiscal year directors Ervin and other individu- Living, Mike example, Chicago ADAPT, Access For intact after the ServicesProgram Home als all joined the fight to keep the 2010 budget was released. T These rankings indicate that Illinois may be violating the Supreme Court’s Supreme the be violating may that Illinois indicate rankings These decision in lack of against a perceived fighting back were disability-rights advocates Many Olmstead \\server05\productn\L\LPR\15-1\LPR112.txt unknown 4 Seq: 29-DEC-09 14:52 and even met with his policy personnel and DHS representatives to stop the met with his policy personnel and DHS representatives and even cuts to the program. proposed states are required to place persons with disabilities in community settings disabilities in community persons with to place required states are the placement is appropriate, the community in institutions when rather than placement can transfer and the does not oppose the with a disability individual accommodated. be reasonably trying to convince the governor to allocate money to their specific programs to allocate money to trying to convince the governor the lump sums. from this program. through Assistants (PAs) Personal month of assistance from reducing the budget and cutting programs that help disabled individuals such that help the budget and cutting programs reducing necessarily moves in their communities, Illinois time spend more as Weinfuss Court’s vision in further the Supreme from member of Chicago ADAPT’s disability-rights activist community, says this “is ADAPT’s disability-rights activist member of Chicago to like responding schools.” C Y 27832_lpr_15-1 Sheet No. 31 Side A 01/25/2010 08:59:15 A 01/25/2010 31 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 31 Side B 01/25/2010 08:59:15 M K C Y The 46 48 50 Yet, because Illinois still because Illinois Yet, 51 “That was a big win because that meant that people “That was a big win because that meant 49 In terms of home services, to eliminate PA In he threatened 45 44 This new asset limit could have forced individuals to liquidate their assets individuals forced This new asset limit could have 47 Additionally, Illinois restored 80 percent of the funding for PA coordinators of the funding for PA 80 percent restored Illinois Additionally, and decided not to impose hourly caps on services. 56 In order to stick to the 2010 budget, Gov. Quinn must continue to cut various must continue to cut Quinn to stick to the 2010 budget, Gov. order In funding. programs’ Ervin not to change the limit after listening to and the state agreed However, others in the program. Sign at a rally to defend community-based services to defend community-based in for persons with disabilities at a rally Sign Illinois. \\server05\productn\L\LPR\15-1\LPR112.txt Reporter Law Interest Public Loyola unknown 5 Seq: 29-DEC-09 14:52 who worked did not have to make a difficult choice between their services to make a difficult choice between and did not have who worked identities and all the other things that come along with not stay- their careers, ing at home and watching television all day,” Ervin said. or even quit their jobs in order to maintain their benefits. quit their jobs in order or even coordinators (the program participants’ advocates), to lower the asset limit and participants’ to lower (the program advocates), coordinators in the program. to cap the hourly amount of services individuals receive current asset limit is $17,500, but the state was threatening to reduce it to to reduce asset limit is $17,500, but the state was threatening current individu- and assist only the poorest size to cut the program’s $2,000 in order als. 27832_lpr_15-1 Sheet No. 31 Side B 01/25/2010 08:59:15 B 01/25/2010 31 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 32 Side A 01/25/2010 08:59:15 64 57 “I HB 56 This 55 54 53 52 63 No. 1 • Fall 1 • No. 2009 Whether legislators raise taxes or not, Whether legislators raise taxes Dan Lesser, a member of the Coalition Dan 61 “No matter what [legislators] do to re- matter what “No 58 62 59 Recent polls indicate that Illinois citizens are op- are citizens polls indicate that Illinois Recent 60 HEAD ? 57 A AXES OAD T R M K HE AISE Back in June, while Illinois legislators supported 50 percent cuts in the 2010 legislators supported 50 percent while Illinois in June, Back in income taxes. supported increase 50 percent Quinn a budget, Gov. T budget is cov- $5.6 billion of the $26 billion 2010 fiscal year Approximately pension funds, federal stimulus funds and special funds. borrowed by ered Lesser did note, however, that the hardest vote for a legislator to cast is an for vote that the hardest Lesser did note, however, in income taxes. increase Last May, Sen. Larry Bomke, R-Springfield, said he was not sure he could Larry said he was not sure Sen. Bomke, R-Springfield, Last May, to state services. if it would stop cuts support an income tax hike even is necessary. that a tax increase who believe The Re- individuals are there But in the human Coalition, comprised of large organizations sponsible Budget services and education communities, is trying HB 174 to convince off to work in 2010. taxes legislators to increase faces a state deficit of at least $11.6 million, it is unclear whether services whether it is unclear million, least $11.6 of at a state deficit faces saved such as home services,this year, will survive much longer. for R \\server05\productn\L\LPR\15-1\LPR112.txt unknown 6 Seq: 29-DEC-09 14:52 solve the budget questions, they are going to make people mad,” said David going to make people mad,” said the budget questions, they are solve Institute. Policy Public Simon of the Paul director Yepsen, posed to an increase in income taxes. posed to an increase and a senior staff attorney for the Sargent Shriver Center on National Poverty Center on National Shriver and a senior staff attorney for the Sargent [in the budget seen up to now is very have possible that what we Law, said, “It do not get a if we year for what is going to happen next cuts] is an appetizer increase.” substantial revenue past year, the Illinois Senate passed HB 174, which would have generated over HB 174, which would have passed Senate the Illinois past year, percent 3 tax from the personal income increasing by $5 billion permanently to 5 percent. 4.8 percent tax from and the corporate income to 5 percent will feel the effects. citizens Illinois recognize how that will affect the local economy, but it’s very that to vote how difficult recognize faced with,” are the economic times we given for an income tax increase Bomke said. 174 passed in the Senate but was never called for a vote in the House. vote called for a but was never Senate 174 passed in the C Y 27832_lpr_15-1 Sheet No. 32 Side A 01/25/2010 08:59:15 A 01/25/2010 32 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 32 Side B 01/25/2010 08:59:15 M K 66 C Y 70 68 69 72 “For us,” Ervin says, “this “For 71 . “What we have been told is that have “What we 67 Olmstead 65 The Home Services Program currently remains, but without a substantial reve- remains, currently Services Program The Home services of the program’s cuts may let more go. Additional Illinois nue increase, to social service state next summer due to the massive agencies seem likely with and with- individuals who made the cut this year, deficit. Unfortunately, its 2011 budget. out disabilities, may not be as fortunate creates when Illinois 58 For the disabled community, budget cuts can extinguish livelihoods and limit cuts can extinguish livelihoods the disabled community, budget For of community accessibility in violation While Illinois legislators remain wary cli- in this economic legislators remain about raising taxes While Illinois year. did pass HB 174 last mate, the Senate assis- agencies that provide additional cuts in the future, to prevent order In their concerns to will continue to voice tance to individuals with disabilities represen- to get your it is always effective these legislators. Lesser said, “I think certainly en- We to come out and see the services providing. are tative you to do that and I think a lot of them have.” courage providers Ervin and Mike con- Weinfuss Deborah While individuals with disabilities like servicestinue to speak out about losing their they could still see and programs, through revenue, more if the state does not generate intensified cuts next year economic climate in Illi- in the current or other means. Even taxes increased go.” nois, Ervin worst thing to do is to let these [programs] says, “the When legislators create the 2011 fiscal year budget, they will face debt left over face debt they will budget, fiscal year the 2011 create legislators When interest on borrowedstimulus funds and 2010 fiscal year, zero from the pen- sion notes. & Accountability, Center for Tax of the Director Executor Ralph Matire, being made are serious cuts Real, problem. isn’t some theoretical “This wrote, to vital services. its act together and pass meaningful the state doesn’t get tax If bleak.” looks the future increase, that includes a significant revenue reform \\server05\productn\L\LPR\15-1\LPR112.txt Reporter Law Interest Public Loyola unknown 7 Seq: 29-DEC-09 14:52 [disabled rights’] movement has been going on for 30 plus years and these has been going on for 30 plus years [disabled rights’] movement that supportliving, like home servicesprograms community and accessible of the movement.” transportation, the major victories are [Senators] did not take heat in their districts for that vote so maybe that will districts for that vote did not take heat in their [Senators] Lesser said. taxes,” increasing courageous about make others more 27832_lpr_15-1 Sheet No. 32 Side B 01/25/2010 08:59:15 B 01/25/2010 32 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 33 Side A 01/25/2010 08:59:15 , , - 3 59 L., AILY Nov. IMES , July , July , D OURNAL EWS AX ., July 26, ., July ERVICES J OVERTY ERALD T N.Y. T EVIEW S RIB P , HE H TATE T CBS N . T ON , & R S , . AILY UMAN HI D C HE TR H , T No. 1 • Fall 1 • No. 2009 C ERALD , L ’ H , , Sept. 29, 2009, http://abc , Sept. AT N EWS MPACT ON I HRIVER ABC N S note 4. HICAGO ARGENT Gov. Quinn Vetoes State Budget State Vetoes Quinn Gov. S C supra , UDGET AND ITS http://www.sj-r.com/news/x124599875/Legislature- B http://www.reuters.com/article/pressRelease/idUS1928 , July 16, 2009, http://www.huffingtonpost.com/david- , July RYCYNA TATE Ormsby, Ormsby, OST H P available at available , http://www.tax.com/taxcom/features.nsf/Articles/3EFB85656C5 tylaw.org/about-us/newsroom/IL%20Budget%20Summary%207- available at available 2010 S Budget Cuts Will Push Lives into the Shadows into Lives Push Will Cuts Budget See also also See http://www.nytimes.com/2009/07/17/us/17illinois.html?scp=3&sq= Illinois Agrees on a Budget but Fails to Solve Deficit Issue Deficit to Solve but Fails on a Budget Agrees Illinois ENNIFER EAR http://herald-review.com/news/state-and-regional/article_b69ffea3-abe6- Illinois Poll Finds Most Voters Oppose Income Tax Increase Tax Income Oppose Voters Most Finds Poll Illinois http://www.dailyherald.com/story/?id=307745. note 2, at 1. AXPAYER Y Good News: Pat Quinn Signs Illinois Budget; Bad News: Pat Quinn Signs Quinn Pat News: Bad Budget; Illinois Signs Quinn Pat News: Good note 15. note 10. note 4. note 4. & J http://archives.chicagotribune.com/2009/jul/26/local/chi-social-cuts-26-bd- Legislature Ponders Possibility of Massive Budget Cuts Budget of Massive Possibility Ponders Legislature note 5. UFFINGTON T Illinois State Budget Ranked Among Nation’s Worst Nation’s Ranked Budget Among State Illinois note 3. note 3. Social Service Groups Waiting for Details on Future Cuts, on Future for Details Waiting Social Service Groups H supra ISCAL supra available at available , supra supra supra supra , ESSER supra F supra supra ITIZEN FOR THE L available at available available at available , May 26, 2009, , May C , June 30, 2009, , June RYCYNA available at available ; Governor Pat Quinn, Fiscal Year 2010 Budget Overview,Budget 2010 http://www2.illinois.gov/ Year Fiscal Quinn, Pat ; Governor ANIEL Id. Id. Id. Id. Equip for Equality Files Suit Against State to Halt Service Cuts to People with Disabilities to People Service Cuts to Halt State Against Suit Files for Equality Equip H Id Crisis, Budget State to Solve Tries Groups D OTES M K EUTERS EGISTER NALYSIS OF (2009), https://www.pover 24-09.pdf. 3 Arado, Matt 18 Arado, 19 Ormsby, 20 21 22 23 Cullotta, 24 Ormsby, 25 Riopell, July 16, 2009, July illinois%20budget%20cuts&st=cse. 16 17 Arado, 12, 2009, 5163-a927-0b052457ce3c.html. 6 13, 2009). Nov. (last visited budget/Pages/budgetoverview.aspx 7 1, 2009, http://cbs2chicago.com/politics/illinois.state.budget.2.1066826.html. 11 18, 2009, 4 Ormsby, David Budget Illinois 2009, jul26. 2 local.go.com/wls/story?section=news/local&id=7039404. 8 Carvlin, Elizabeth R A ormsby/good-news-pat-quinn-signs_b_235564.html. 5 Riopell, Mike C0E6985257658004052DC?OpenDocument (last visited Nov. 13, 2009). Nov. (last visited C0E6985257658004052DC?OpenDocument 9 L., Ctr. on Poverty Nat’l Shriver Sargent Attorney, Interview Staff Lesser, Senior with Dan 2, 2009). (Oct. in Chi., Ill. 10 and the Associated Press, Flannery Mike 12 ponders-possibility-of-massive-budget-cuts. 15 Ann Cullotta, Karen 31+30-Jun-2009+PRN20090630. 13 Flannery, 14 Finke, Doug R N 1 Rubin, Bonnie Miller \\server05\productn\L\LPR\15-1\LPR112.txt unknown 8 Seq: 29-DEC-09 14:52 C Y 27832_lpr_15-1 Sheet No. 33 Side A 01/25/2010 08:59:15 A 01/25/2010 33 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 33 Side B 01/25/2010 08:59:15 M K C Y ANT TATES http:// W S (2009), http:/ OTERS 7 V available at available TATE OF THE http://paulsimoninsti S LLINOIS , Aug. 28, 2009, http:// , Aug. HE , Aug. 28, 2009, http:// , Aug. NCLUSION ., I I , T NST , Sept. 2009, , Sept. available at available I Y ’ ASE FOR IZZOLO SSUES OL C R I note 9. . P HE AY T UB K , supra P LLINOIS ARY I ALSY , P IMON note 6. note & M S 2 (Oct. 21, 2009), 2 (Oct. supra EMP AUL note 41. EREBRAL HERE H 154 (7th ed. 2008). C ., P note 9. note 9. note 36. note 36. L W supra Zimring, 527 U.S. 581, 607 (1999). 527 U.S. 581, 607 Zimring, AY Ends and Means Ends A T supra supra S supra supra NITED ICHARD T ’ U , E , , R ISABILITIES ex. rel. AN note 2, at 4. note 2, at 3. note 2, at Hundreds Rally to Mark Olmstead Anniversary Olmstead Rally to Mark Hundreds D Disability Community Fights Cuts to Vital Services to Vital Cuts Disability Community Fights C note 15. note 15; Quinn, 15; Quinn, note note 8. note 5. note 6; Interview with Lesser, UT supra note 14. EONARD supra , RAGDON B , supra supra L RADDOCK supra supra B supra supra B IN UTS C RYCYNA at 5. RYCYNA AVID HARLES ARREN EVELOPMENTAL Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. C H H D T Id. Id. D UDGET /www.ucp.org/uploads/InclusionReportRevised.pdf. 34 v. L.C. Olmstead 35 Living, Access 13, visited Nov. (last www.accessliving.org/index.php?tray=release&tid=top683&cid=2al43 2009). 36 Interview Ervin, activist with Mike Chicago-based writer and disability-rights with 7, 2009). (Oct. ADAPT, in Chi., Ill. 37 38 39 40 41 Living, Access www.accessliving.org/index.php?tray=release&tid=top683&cid=2al43 (last visited Oct. 19, (last visited Oct. www.accessliving.org/index.php?tray=release&tid=top683&cid=2al43 Cuts”]. “Community Fights 2009) [hereinafter 42 Interview with Ervin, 43 44 to use this for permission Goodman Living and Max to Access acknowledgement Grateful photo. 45 Charles N. Wheeler III, 53 Cullotta, 54 illinoisissues.uis.edu/archives/2009/09/ends.html. 46 Cuts, Community Fights 47 Interview with Ervin, 48 49 50 51 52 Quinn, tute.org/images/PDF/budget_poll_data.pdf. 63 60 33 55 29 30 31 Interview with Lesser, 56 Finke, 57 58 Interview with Lesser, 32 27 Riopell, 28 59 60 61 Carvlin, 62 B \\server05\productn\L\LPR\15-1\LPR112.txt Reporter Law Interest Public Loyola unknown26 Cullotta, 9 Seq: 29-DEC-09 14:52 27832_lpr_15-1 Sheet No. 33 Side B 01/25/2010 08:59:15 B 01/25/2010 33 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 34 Side A 01/25/2010 08:59:15 , 61 EGISTER -R OURNAL J No. 1 • Fall 1 • No. 2009 TATE S HE T , note 36. note 36. note 9. supra supra supra supra supra http://www.sj-r.com/opinions/x639776424/Ralph-Martire-Busting- note 1. note 2, at 5. note 2, at Busting Myth of ‘Balanced’ State Budget State of ‘Balanced’ Myth Busting supra supra available at available , Rubin, Rubin, RYCYNA Id. Id. See Id. H M K July 25, 2009, July myth-of-balanced-state-budget. 65 66 67 64 Matire, Ralph 71 72 Interview Ervin, with 68 Interview with Lesser, 69 70 Interviewwith Ervin, \\server05\productn\L\LPR\15-1\LPR112.txt unknown 10 Seq: 29-DEC-09 14:52 C Y 27832_lpr_15-1 Sheet No. 34 Side A 01/25/2010 08:59:15 A 01/25/2010 34 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 34 Side B 01/25/2010 08:59:15 M K C Y UCARO B USIE S by PUNISHMENT? STUDENTS WITH STUDENTS Angie Arndt would not stop blowing bubbles in her Angie Arndt would not stop blowing RESTRAINT AGAINST 1 FORM OF CORPORAL OUT: HAS THE USE OF OUT: HAS DISABILITIES BECOME A DISABILITIES BECOME A TIME OUT OR A KNOCK A TIME n May 25, 2006, a 7-year-old girl with Attention Deficit Disorder suffo- Disorder Deficit girl with Attention 25, 2006, a 7-year-old n May clinic staff member who of a daycare cated under the body weight O 62 \\server05\productn\L\LPR\15-1\LPR103.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 14:56 pinned her to the floor. 27832_lpr_15-1 Sheet No. 34 Side B 01/25/2010 08:59:15 B 01/25/2010 34 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 35 Side A 01/25/2010 08:59:15 6 10 63 Furthermore, After 50 min- After 50 3 13 A medical exam- A medical 4 No. 1 • Fall 1 • No. 2009 5 ISABILITIES D IDEA, however, does not explicitly IDEA, however, 9 12 TUDENTS WITH The investigation culminated in a seventy- The investigation S 11 ESTRAINING R 14 An appropriate education allows a child to make educational pro- a child to make education allows An appropriate 7 Face-down restraint, however, is one of the most lethal school prac- however, restraint, Face-down EGALITY OF and to prepare and equip her to further her education, live indepen- and equip her to further her education, live and to prepare As punishment, Bradley Ridout laid his 250-pound body on her torso on her body 250-pound laid his Ridout Bradley As punishment, 8 15 2 L M K HE dently and participate in the workforce. while two other staff members held down her arms and ankles. her held down other staff members while two Corporal punishment often takes the form of paddling. From 2006 to 2007, Corporal punishment often takes the form of paddling. From paddled at least nearly 42,000 students with disabilities nationwide were once. In response to Angie Arndt’s death and reports of similar incidents involving response In and the (ACLU) injuries, the American Civil Liberties Union restraint-induced a study on the use of corporal punishment launched Watch Rights Human against students with disabilities. and telephonic interviewsThe report, based on 202 in-person conducted be- 2009, suggested that a quarter of a million 2007 and June December tween subject to violent forms of punishment. are school children Angie’s death raises the question: should it? Angie’s death raises the question: should T milk. in 20 states, although legal in public schools, corporal punishment The use of the death disciplinary in results when a routine measure generates controversy of a child. (IDEA), students with Act Education with Disabilities the Individuals Under Education Public and Appropriate a Free statutorily entitled to disabilities are (FAPE). \\server05\productn\L\LPR\15-1\LPR103.txt unknown 2 Seq: 29-DEC-09 14:56 page report entitled “Impairing Education: Corporal Punishment of Students Corporal Punishment Education: page report entitled “Impairing Schools.” in US Public with Disabilities gress, prohibit the use of physical restraint or other forms of corporal punishment. or other forms of the use of physical restraint prohibit students with disabilities are affected at a disproportionately high rate: 19 per- affected at a disproportionately students with disabilities are students with disabili- punishment are cent of students subjected to corporal of the nationwide student though they comprise only 14 percent ties, even population. utes in this position, Angie’s crying position, Angie’s utes in this subsided. and resistance iner ruledher death. as the cause of positional asphyxia C Y 27832_lpr_15-1 Sheet No. 35 Side A 01/25/2010 08:59:15 A 01/25/2010 35 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 35 Side B 01/25/2010 08:59:15 M K If C Y 23 28 25 According 21 More recently, More 18 24 19 Under “IDEA and what is stated in a “IDEA and what is stated Under 22 An IEP includes the individualized educational and the individualized An IEP includes 20 , the U.S. Supreme Court validated the constitutionality Court validated , the U.S. Supreme 17 A teacher facing imminent violence may be justified in exer- A teacher facing imminent violence From 2003 to 2004, the percentage of public school teachers 2003 to 2004, the percentage From 27 26 Restraint can also lead to cerebral oxygen deprivation, lacerations, deprivation, oxygen to cerebral can also lead Restraint 16 Ingraham v. Wright Ingraham of corporal punishment in public schools, finding that the protection against the protection in public schools, finding that of corporal punishment cruelnot apply to students. and unusual punishment did 64 The IDEA standard, therefore, delegates a significant amount of deference to delegates a significant amount of deference therefore, The IDEA standard, and training resources where an educational environment the disciplinarian. In disciplinarians may resort unavailable, methods of discipline are for alternative quick and easy to administer. to corporal punishment because it is suggests that educators re- teacher victimization toward a trend Furthermore, of injury face threats sort because they often or physical attacks to restraints students. from Students who qualify for assistance under IDEA receive an Individualized Edu- an Individualized for assistance under IDEA receive who qualify Students (IEP). cation Program tices, since it may result in sudden fatal cardiac arrhythmia or respiratory arrhythmia ar- cardiac fatal in sudden may result since it tices, rest. legal. are and restraint both corporal punishment these consequences, Despite In \\server05\productn\L\LPR\15-1\LPR103.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 14:56 cising physical restraint in order to protect herself or others. The danger, per- to protect in order cising physical restraint to non- haps, lies in misuse: when corporal punishment becomes the answer bubbles in her milk. violent misbehavior, like Angie Arndt blowing abrasions, muscle injuries, hyperextension of the arms, as well as forms of psy- the arms, as well of muscle injuries, hyperextension abrasions, trauma. chological a FAPE. servicesrelated with a disability needs to receive a student [child’s] IEP,” she states, “we must treat [every] as an individual.” must treat child [child’s] IEP,” she states, “we who reported being threatened during the school year ranged from 4 to 18 ranged from during the school year who reported being threatened state. by percent under the George W. Bush Administration, the Office of Special Education of Special the Office Administration, W. Bush under the George the use of prohibit the position that IDEA does not expressly took Programs disabilities. on students with physical restraints to Jennifer O’Connell, a Speech Language Pathologist at Reinberg Elementary at Reinberg Language Pathologist a Speech O’Connell, to Jennifer the personalization of the disciplinary School in Chicago, IDEA also requires action to be used on a specific child. its use state law, the IEP team must consider whether is permitted by restraint child’s IEP. is consistent with the terms of a given 27832_lpr_15-1 Sheet No. 35 Side B 01/25/2010 08:59:15 B 01/25/2010 35 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 36 Side A 01/25/2010 08:59:15 44 33 31 65 “Although ? 30 42 No. 1 • Fall 1 • No. 2009 The facility, follow- 40 UNISHMENT P Pelishek, a Wisconsin advocate a Wisconsin Pelishek, 32 ORPORAL C The CMS definition reflects the most The CMS definition reflects 35 ORM OF When the police officer asked Marshawn to tuck When the police officer asked Marshawn Only five states five Only – Colorado, Connecticut, Iowa, Even though federal law permits corporal punish- though federal Even 43 36 29 : A F In 2006, the Centers for Medicare and Medicaid Ser- and Medicaid 2006, the Centers for Medicare In 34 RACTICE P Wisconsin and the remaining 90 percent of state jurisdictions allow 90 percent and the remaining Wisconsin 37 In a statement to Pioneer Press, Ridout’s attorney stated, “he was Press, a statement to Pioneer In Again, perhaps the danger of restraint lies in its misuse: when blowing lies in its misuse: Again, perhaps the danger of restraint 39 41 38 M K ESTRAINT IN Bridget Connolly, Special Education Coordinator at Niles West High School High West at Niles Coordinator Education Special Connolly, Bridget contribute corporal punishment lawful bans against believes Illinois, in Skokie, the problem. to resolving A recent incident on Chicago’s south side further supports Pelishek’s position. incident on Chicago’s south side furtherA recent supports Pelishek’s a student receiving Pitts, 2009, a police officer tackled Marshawn October In High special education services, for Learning at the Academy to the ground Illinois. School in Dolton, Following Angie’s death, the Northwest Counseling and Guidance Day Clinic Day Counseling and Guidance Angie’s death, the Northwest Following count of negligent pled no contest to a felony in Rice Lake, Wisconsin, abuse. Jo Pelishek, however, has another opinion. has another however, Pelishek, Jo law, under Wisconsin corporal punishment is unlawful though even Indeed, legal. remains restraint R \\server05\productn\L\LPR\15-1\LPR103.txt unknown 4 Seq: 29-DEC-09 14:56 simply doing what he was trained to do by the facility.” do by simply doing what he was trained to Michigan and Pennsylvania and banned – the CMS definition rejected have and Pennsylvania Michigan restraint. it. as an emergency situation. bubbles in one’s milk is mislabeled can’t make me.” in his shirt, “You he allegedly cursed at him and responded, vices (CMS) issued a policy defining restraint for facilities receiving Medicaid receiving for facilities restraint vices (CMS) issued a policy defining and other types of federal funding. ment, a majority of states have enacted legislation outlawing it. enacted of states have ment, a majority current federal thinking on restraint, defining it as any manual method that defining it as any manual method federal thinking on restraint, current his or her arms, the ability of an individual to move or reduces immobilizes legs, body or head freely. for children with disabilities, believes that the use of corporal punishment that the use with disabilities, believes for children most people think. than widespread disabilities is more against students with ing Wisconsin state law, permitted its staff to use restraint in emergency situa- in emergency state law, permitted its staff to use restraint ing Wisconsin tions. there are some isolated incidents that you hear happen in the Chicago area hear happen in the Chicago incidents that you some isolated are there banned in Illinois.” “corporal punishment has been schools,” says Connolly, C Y 27832_lpr_15-1 Sheet No. 36 Side A 01/25/2010 08:59:15 A 01/25/2010 36 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 36 Side B 01/25/2010 08:59:15 M K C Y http:// “Using Coalition 47 available at available http://www.napas. Impairing Education Impairing Pelishek notes that Pelishek , Human Rights Watch, , Human 46 49 available at available 45 However, for Angie Arndt, any However, 50 , Jan. 2009, , Jan. , TIME, Aug. 12, 2009, , TIME, Aug. School Is Not Supposed to Hurt: Investigative to Hurt: Supposed Not School Is , 927 F.2d 146, 153 (4th Cir. 1991). note 10. supra supra Pelishek advocates the approach taken by the ACLU taken by the approach advocates Pelishek 48 http://www.hrw.org/node/84950. The Short Life of Angelika “Angie” Arndt: “Bubbles in My Milk,” in My Arndt: “Bubbles “Angie” of Angelika The Short Life Corporal Punishment in US Schools in US Punishment Corporal available at available Id. Id. Id. Id. Id. Id. Id. Id. Barnett v. Fairfax County Sch. Bd. Barnett v. Fairfax OTES Against Institutionalized Child Abuse. Nov. 13, 2009, http://www.caica.org/ANGELLIKAAR Nov. Child Abuse. Against Institutionalized 12-9-06.htm. NDTBUBBLESINMYMILK 2 3 4 5 6 MJ Stephey, 1 Zehnder, Isabelle Marshwan has transferred to another school and is seeking a legal remedy to another school and is has transferred Marshwan officer who assaulted him. against the police N The officer placed Marshawn, a 15-year-old boy, in a face down restraint posi- restraint down in a face boy, 15-year-old a Marshawn, officer placed The his nose. breaking his mouth and tion, injuring education services special learning disabil- because he has a receives Marshawn injury a brain as a child. from he suffered ity resulting \\server05\productn\L\LPR\15-1\LPR103.txt Reporter Law Interest Public Loyola unknown 5 Seq: 29-DEC-09 14:56 www.time.com/time/nation/article/0,8599,19115820,00.hmtl. 7 20 U.S.C.A.§8 1400 (2005) and Human Rights Watch report, which calls for more positive behavioral sup- positive for more report, which calls Rights Watch and Human than violent forms of discipline. port rather programs, 9 Report, Rights Network Disability National in Schools and Seclusion Restraint Report on Abusive remedial measures come too late. For other children with behavioral problems, with behavioral other children come too late. For measures remedial chil- not only the is hope that staff members will learn when to restrain there but also themselves. under their care dren students like Marshwan tend to have disabilities that impair impulse control or control that impair impulse disabilities to have tend Marshwan students like behavior. to difficult prone them to be more understanding, leading physical intervention. . .[and] corporal punishment,” adds Pelishek “only per- physical intervention. punishment,” adds Pelishek . .[and] corporal petuates the problem.” org/sr/SR-Report.pdf. 10 20 U.S.C.A.§ Schools Report, with Disabilities in US Public of Students Punishment Corporal Rights Watch & Human (2005); ACLU 1400 21, 2009, Oct. 11 Report, & HRW ACLU 12 13 14 15 66 27832_lpr_15-1 Sheet No. 36 Side B 01/25/2010 08:59:15 B 01/25/2010 36 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 37 Side A 01/25/2010 08:59:15 67 http://archives.chicago. No. 1 • Fall 1 • No. 2009 , CBS2Chicago, Oct. 9, , CBS2Chicago, Oct. , Wisconsin Family Ties, Family , Wisconsin available at available , CBS2Chicago, Oct. 9, 2009, http:// , CBS2Chicago, Oct. , National Center for Educational Statistics, Center for Educational , National Dolton Cop Caught on Camera in Student’s Beating is in Beating in Student’s on Camera Cop Caught Dolton note 10. note 10. note 10. note 10. supra supra supra supra supra supra supra supra note 9. note 9. , 430 U.S. 651, 664 1977. , 430 U.S. supra supra supra supra note 1. note 1. note 32. note 6. , CHICAGO TRIBUNE, Oct. 9, 2009, Oct. TRIBUNE, , CHICAGO Dolton Cop Beats Special Needs Student on Camera Student Needs Special Cop Beats Dolton note 45. supra supra supra supra supra supra supra supra supra Id. Id. Id. Id. Ties Family Wisconsin About Asked and Answers Often Questions Id. Id. Id. Id. Id. Id. Id. Trouble in More Student Beating Caught Officer Id. Indicators of School Crime and Safety: 2008 and Safety: of School Crime Indicators Id. Id. Ingraham v. Wright Ingraham Id. M K 2009, http://cbs2chicago.com/local/caught.on.tape.2.1232197.html. 46 47 Pelishek, 48 49 50 Savini, tribune.com/2009/oct/09/sports/chi-dolton-cop-09-oct09. 45 Savini, Dave 31 32 13, (Oct. Ties Family Wisconsin Advocate, Family Pelishek, Interview Email with Jo 2009). 33 on Rape Charge Jail Oct. 21, 2009, http://www.wifamilyties.org/wifamilyties.org-FAQ.html#1. Oct. 34 NDRN Report, 35 36 37 38 39 Zehnder, 40 41 42 43 cbs2chicago.com/investigations/officer.beating.assault.2.1238052.html. 44 and Kim Janssen, Gorner Jeremy http://nces.ed.gov/programs/crimeindicators/crimeindicators2008/ind_05.asp. 27 28 Zehnder, 25 Stephey, 26 29 High West Niles Coordinator, Education Interview Connolly, Special Email with Bridget 23, 2009). School (Sept. 30 Report, & HRW ACLU 20 21 NDRN Report, 22 Elemen- Reinberg Language Pathologist, O’Connell, Speech interview Email with Jennifer 2009). 21, Schools, (Oct. tary Chi. Public 23 24 Report, & HRW ACLU 18 19 Report, & HRW ACLU 16 17 Report, HRW & ACLU \\server05\productn\L\LPR\15-1\LPR103.txt unknown 6 Seq: 29-DEC-09 14:56 C Y 27832_lpr_15-1 Sheet No. 37 Side A 01/25/2010 08:59:15 A 01/25/2010 37 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 37 Side B 01/25/2010 08:59:15 M K : C Y CHRAMM may have a may have S ILL Ricci B by 2 Therefore, Therefore, 3 , holding that the city violated Title If dissenting Justice Ginsburg’s pre- Ginsburg’s dissenting Justice If EMPLOYMENT 4 RICCI V. DESTEFANO RICCI Ricci v. DeStefano (Ricci) Ricci v. DeStefano DISPARATE IMPACT AND IMPACT DISPARATE n June 29, 2009, the Supreme Court overturned then Judge Sotomayor’s then Judge Court overturned 29, 2009, the Supreme n June decision in In so holding, the Court gave employers and employees a new standard and employees so holding, the Court employers In gave 1 TITLE VII IMPLICATIONS ON TITLE VII IMPLICATIONS for evaluating employment promotion examinations. promotion employment for evaluating O will attempt to the Court’s employers Additionally, decision changed how potential discrimination claims. employees’ avoid 68 \\server05\productn\L\LPR\15-1\LPR113.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 14:58 VII of the Civil Rights Act of 1964, which was intended to prevent discrimina- to prevent of 1964, which was intended VII of the Civil Rights Act tion. widespread impact on civil rights issues. widespread 27832_lpr_15-1 Sheet No. 37 Side B 01/25/2010 08:59:15 B 01/25/2010 37 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 38 Side A 01/25/2010 08:59:15 5 69 If New 11 7 AVEN These candi- H 10 EW No. 1 • Fall 1 • No. 2009 In holding for the In N 16 one of the two kinds of 12 AVOR OF THE This meant that the city could not F 17 Thereafter, 18 firefighters 18 firefighters – Thereafter, white and 17 9 ULES IN R OURT C Disparate treatment claims are those that are intentionally those that are claims are treatment Disparate Disparate impact claims, conversely, have a disproportion- have impact claims, conversely, Disparate 13 15 14 Though the tests were “carefully constructed,” and His- “carefully white were Though the tests UPREME 6 S 8 IVIDED M K IREFIGHTERS The Court summary granted by and held that judgment for the firefighters VII. the city violated Title the test results, discarding Instead, the city rejected the results. the city rejected Instead, claim, The plaintiffs alleged a disparate treatment diction holds true, however, the opinion “will not have staying power” because power” staying have “will not opinion the true, holds diction however, near future. implications in the to change these may pass legislation Congress A D F and oral promotional took a written firefighters Haven 2003, 118 New In examination. \\server05\productn\L\LPR\15-1\LPR113.txt unknown 2 Seq: 29-DEC-09 14:58 discriminatory. not intentionally are effect on minorities despite the fact that they ately adverse discriminatory. panic candidates scored significantly higher than black candidates. significantly panic candidates scored one Hispanic one Hispanic Haven. – of New filed a lawsuit against the city Haven accepted the results, the city would promote almost exclusively white almost exclusively would promote the city the results, accepted Haven candidates. discard the test results simply to avoid a potential disparate impact claim. simply to avoid the test results discard firefighters, the Courtof litigation alone cannot justify an em- firefighters, noted, “fear on race to the detriment of individuals who passed the exami- reliance ployer’s nations and qualified for promotions.” Title VII claims. Title dates alleged that, by not certifying the promotion test results, the city violated results, not certifying test promotion dates alleged that, by the VII. and Title Clause of the 14th Amendment Protection the Equal C Y 27832_lpr_15-1 Sheet No. 38 Side A 01/25/2010 08:59:15 A 01/25/2010 38 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 38 Side B 01/25/2010 08:59:15 M K 18 C Y . Conversely, 21 “is a step back- Ricci However, in order to in order However, 19 The NAACP expresses disap- expresses The NAACP 24 20 23 EACTIONS ’ R decision makes inclusion more difficult for these verydecision makes inclusion more CTIVISTS Ricci A While sympathetic to the firefighters, she noted, “concern about ex- she noted, “concern While sympathetic to the firefighters, IGHTS 22 R IVIL ward for equal opportunityward in employment.” C Association for the National the beliefs of many civil rights groups, Echoing states that (NAACP) People of Colored the Advancement 70 In her dissent, Justice Ginsburg noted that Congress enacted Title VII in order enacted Title noted that Congress Ginsburg her dissent, Justice In kept out of the workforce. previously to include those who were New Haven firefighters celebrate after the Supreme Court ruled in their favor after the Supreme celebrate firefighters Haven New from an employer VII does not prohibit The Court further held that Title of individuals, regardless to fairly design a test for all taking into account how administers the test. the employer their race, before \\server05\productn\L\LPR\15-1\LPR113.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 14:58 posure to disparate-impact liability, however well grounded, is insufficient to is insufficient grounded, well to disparate-impact liability, however posure attack.” from insulate an employer justify abandonment of the test results, the employer must show a “strong basis a “strong must show the employer justify abandonment of the test results, by would lose a disparate impact suit brought in evidence” that the employer who did not pass the test. employees she thinks the groups. 27832_lpr_15-1 Sheet No. 38 Side B 01/25/2010 08:59:15 B 01/25/2010 38 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 39 Side A 01/25/2010 08:59:15 25 71 , she Ricci 31 Thus, an em- 30 No. 1 • Fall 1 • No. 2009 If employers take into take employers If As a result of As a result 33 28 The new will make it standard 34 32 29 26 , it is clear that an employer may not discard a test may not discard , it is clear that an employer ] is a trap for the unwary.” Ricci Ricci MPACT I According to Rep. Norton, the Court’s the goes against the decision Norton, to Rep. According 27 35 thus presents a difficult Title VII situation for employers. If employers If VII situation for employers. a difficult Title thus presents M K MPLOYER Therefore, according to Loyola University Chicago School of Law Professor Chicago School of Law University to Loyola according Therefore, “[ Zimmer, Michael solely because it may have an adverse impact on minorities. an adverse solely because it may have Ricci dispa- they may face a of a test that has disproportionate results, use the results they may the same results, discard if the employers rate impact suit. However, suit. be subject to a disparate treatment E the aftermath of In pointment in the Court’s decision “to create a new flawed legal standard.” a newthe Court’s in pointment flawed “to create decision this decision, Rights states, “With for Civil Committee the Lawyer’s Similarly, opportunity safeguards critical equal employment the Court has endangered tests that utilize to employers decades to encourage been in place for that have fair and effective.” both are Employ- chair of the Equal D-D.C., former Norton, Holmes Eleanor Rep. to the Civil Rights Commission, pledged her dedication ment Opportunity Court’s the Supreme a bill to overturn intent, stating she will introduce Act’s decision. \\server05\productn\L\LPR\15-1\LPR113.txt unknown 4 Seq: 29-DEC-09 14:58 believes “the Court invites employers to stare discrimination in the face and discrimination in the face to stare “the Court invites employers believes peril.” keep walking, to their policy of Title VII, which was to encourage employers to correct their own to correct VII, which was to encourage employers policy of Title invite, litigation. rather than practices and to avoid, more difficult for employers to discard the results of tests once they are admin- of tests once they are the results to discard difficult for employers more impact an a racial is a disproportionate and negative if there even istered, group. account the risk of disparate impact, they have to do it before they administer to do it before account the risk of disparate impact, they have the results. the test, not after they receive ployer must use the test results regardless of the impact on a minority group of the impact regardless must use the test results ployer and consis- is not job-related evidence that the result is strong unless: (1) there test evidence that another is powerful tent with business activity or (2) there that group. had less of a disproportionate impact on would have C Y 27832_lpr_15-1 Sheet No. 39 Side A 01/25/2010 08:59:15 A 01/25/2010 39 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 39 Side B 01/25/2010 08:59:15 M K 37 38 C Y Ricci’s , Jun. 29, , Jun. Ricci v. De- EUTERS R , It can be difficult can be It 36 , Reed Smith, Sep.1, 2009, Sep.1, Smith, , Reed Ricci v. Destefano: U.S. Supreme Court for White Rules U.S. Supreme Ricci v. Destefano: , Faegre & Benson, Jul. 2, 2009, http://www.faegre.com/ Jul. & Benson, , Faegre VII ITLE Employee Testing After Ricci: What to Do Now After Ricci: What to Do Testing Employee T Supreme Court Overrules Obama Nominee in Race Case Bias Court Nominee Obama Overrules Supreme note 1. note 1, at 2681. note 1, at 2664. note 2. note 1 at 2691; Interview with Michael Zimmer, Professor of Law, Loyola Univ. Loyola of Law, Professor note 1 at 2691; Interview Zimmer, with Michael supra supra supra supra supra indicated, there is a recurring conflict in Title VII. conflict in Title is a recurring there indicated, supra , , UTURE OF at 2664, 2677; . at 2673. . at 2672. . . . at 2681. , 129 U.S. 2658, 2664 (2009). F Id. Ricci, supra Id Id Id Id Id Ricci Id. Id. Ricci Id. Id. Id. Ricci OTES HE 2009, http://www.reuters.com/article/domesticNews/idUSTRE55S36U20090629; 2009, http://www.reuters.com/article/domesticNews/idUSTRE55S36U20090629; Stefano 2 W. Polley, & John Benjes Sarah in Race Discrimination Case Employees showarticle.aspx?Show=9926. 3 4 Vicini, 5 Chi. School of Law (Oct. 14, 2009). Chi. School of Law (Oct. 6 Benjes, 7 8 9 10 11 12 13 14 15 16 17 18 the picture. for permission to reprint News Daily to The Yale acknowledgement Grateful 19 http://www.reedsmith.com/publications/search_publications.cfm?widCall1=customWidgets.con tent_view_1&cit_id=2577. 72 Though Title VII lives on for the present, employers and employees are faced are and employees employers present, on for the lives VII Though Title and new because of impact standards challenges with difficult disparate N 1 Vicini, James T has not gone unnoticed.This potential conflict in his Scalia wrote Justice day on postpones the evil of this dispute merely “The resolution concurrence, ex- the question: Whether, or to what to confront which the Court will have of VII of the Civil Rights Act of Title the disparate impact provisions tent, are of equal protection.” the Constitution’s guarantee 1964 consistent with the law. of reinterpretation \\server05\productn\L\LPR\15-1\LPR113.txt Reporter Law Interest Public Loyola unknown 5 Seq: 29-DEC-09 14:58 As to avoid disparate impact without intentionally discriminating against others. discriminating against intentionally disparate impact without to avoid 27832_lpr_15-1 Sheet No. 39 Side B 01/25/2010 08:59:15 B 01/25/2010 39 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 40 Side A 01/25/2010 08:59:15 , 73 Jun. 30, Jun. , IMES N.Y.T Lawyer’s Committee Lawyer’s , No. 1 • Fall 1 • No. 2009 http://correspondents.theatlantic.com/philip_howard/ , Univ. of Pittsburgh School of Law Jurist, http://jurist. of Law Jurist, School of Pittsburgh , Univ. available at available The Limits of Law: Ricci and the Elusive Quest for Workplace Fairness for Workplace Quest of Law: Ricci and the Elusive The Limits Ricci v. DeStefano note 19. note 5. Supreme Court Finds Bias Against White Firefighters Against Court Bias Finds Supreme http://www.nytimes.com/2009/06/30/us/30scotus.html?_r=1&scp=8&sq= note 2. note 1, at 2701. note 1, at 2682. supra supra , Jul. 1, 2009, , Jul. supra supra supra supra supra supra supra , , ; Labor & Employment Law Blog, http://www.laboremploymentlawblog.com/212181- Law Blog, ; Labor & Employment ; Reed, TLANTIC available at available Id. Id. on Ricci, Expert Analysis Provides Crawford Committee’s Sarah Lawyers’ Id. Id. Id. Id. Ricci Id. Id. Ricci A M K HE 2009, ricci&st=cse. 36 K. Howard, Philip 23 24 Court in New Ruling on Supreme Statement NAACP Official NAACP, Release, Press http://www.naacp.org/news/press/2009-06-29/index. 29, 2009), (Jun. Case Firefighters Haven htm. 25 26 2 2009, http://www.lawyerscommittee.org/projects/employ the Law, Jul. for Civil Rights Under ment_discrimination/clips?id=0053. 27 Bill Chair, to Introduce EEOC a Former Norton, Norton, Holmes Eleanor Release, Press Firefight- Haven New Following Meaning Intended to Its Statute Discrimination Job to Return 29, 2009). (June ers Decision 28 29 30 Faegre, 31 20 21 http://www.racewire.org/archives/2009/06/ricci_ Race Wire, to Goode of Victor Posting EST). 30, 2009, 16:19 (Jun. vs_destefano_one_step_fo.html 22 34 35 Liptak, Adam print.html (Jul. 10, 2009). print.html (Jul. 32 Foster, R. Shiela law.pitt.edu/annotationsy/2009/08/hold-civil-rights-after-ricci.php. 33 Zimmer, 2009/07/the_limits_of_law_ricci_and_the_elusive_quest_for_workplace_fairness.html. 37 38 T \\server05\productn\L\LPR\15-1\LPR113.txt unknown 6 Seq: 29-DEC-09 14:58 C Y 27832_lpr_15-1 Sheet No. 40 Side A 01/25/2010 08:59:15 A 01/25/2010 40 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 40 Side B 01/25/2010 08:59:15 M K C Y The 1 ATTIN B MBER A by LITIGATION THE REVIVAL OF NEW OF THE REVIVAL MIDWEST GENERATION 2 he Obama administration recently re-invigorated the focus on pollution re-invigorated administration recently he Obama to clean up the environment. promising by energy production from UNDER THE CLEAN AIR ACT: UNDER THE CLEAN SOURCE REVIEW PROVISIONS REVIEW SOURCE T against filed a complaint recently of Illinois and the state States The United claiming that it is operating the six plants in violation of Generation, Midwest 74 \\server05\productn\L\LPR\15-1\LPR102.txt Reporter Law Interest Public Loyola unknown 1 Seq: 29-DEC-09 15:04 center of this revival of regulatory provisions for air quality is Illinois, due to for air quality is Illinois, of regulatory provisions center of this revival coal energy the pollution output of six Chicago-area the litigation surrounding plants. 27832_lpr_15-1 Sheet No. 40 Side B 01/25/2010 08:59:15 B 01/25/2010 40 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 41 Side A 01/25/2010 08:59:15 15 75 Midwest Gen- Midwest 6 5 No. 1 • Fall 1 • No. 2009 Midwest Generation Midwest 3 however, Illinois Attor- Illinois however, 4 In fact, “Mercury output fact, “Mercury In 20 13 Midwest Generation is pres- Generation Midwest 19 When an energy plant is looking When an energy plant 11 17 in 1963 and added the New Source Re- Source the New in 1963 and added 7 ? At that time, there were nine maintenance nine were that time, there At to its facilities, beyond routine maintenance, routine to its facilities, beyond 14 12 With the enactment of the New Source Review Source the enactment of the New With EVIEW ITIGATION 9 L R At the core of the current litigation against Midwest of the current the core At 16 OURCE in 1970. 8 S ENERATION EW G In December 2006, Midwest Generation entered into an agreement entered Generation 2006, Midwest December In N 18 to manage their output of pollutants. to manage their output 10 HAT IS IDWEST M K Since 1999, Midwest Generation has reduced the output of nitrous oxide from oxide of nitrous the output has reduced Generation 1999, Midwest Since 30 by the output of sulfur dioxide and reduced 50 percent their plants by percent. In 1999, Midwest Generation purchased six Chicago-area coal power plants coal power six Chicago-area purchased Generation 1999, Midwest In Energy. Commonwealth from accepted liability for these Generation the plants, Midwest When it purchased maintenance projects. M the New Source Review provisions of the Clean Air Act. the Clean of provisions Review Source the New W \\server05\productn\L\LPR\15-1\LPR102.txt unknown 2 Seq: 29-DEC-09 15:04 Congress enacted the Clean Air Act Congress with the Illinois Environmental Protection Agency (IL EPA) to reduce the out- to reduce (IL EPA) Agency Protection Environmental with the Illinois and sulfur put of mercury oxide and to further the output of nitrous reduce the end of 2018. the six plants by from dioxide projects in progress to make various repairs to the facilities at the six plants. to the repairs to make various in progress projects provisions, Congress intended that as established energy plants altered their energy plants altered intended that as established Congress provisions, technol- control simultaneously install the best available facilities, they would ogy for construction law to apply by permits certifying the that required they are not increase. pollution output of the facility will to make major modifications ently complying with the agreements regarding nitrous oxide and sulfur diox- oxide nitrous regarding ently complying with the agreements ide and has fully implemented mercury controls. Generation is whether the execution of these maintenance projects sufficiently of these maintenance projects is whether the execution Generation to trigger the appli- those six plants from alters the output of criteria pollutants Review provisions. Source cation of New view provisions has improved its pollution output in the past 10 years; output in the past its pollution has improved said that she is “very the negative concerned about Lisa Madigan ney General in the com- the people who live on plants have that these aging health effects located.” are facilities Generation the Midwest where munities eration has not yet filed an answer to the pending complaint. to the pending answer filed an not yet eration has C Y 27832_lpr_15-1 Sheet No. 41 Side A 01/25/2010 08:59:15 A 01/25/2010 41 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 41 Side B 01/25/2010 08:59:15 M K 22 C Y Mid- 25 and its New 27 23 3501 S. Pulaski Rd., 3501 S. Pulaski Chicago, IL 60623 Rd., 1111 W. Cermak Chicago, IL 60608 1800 Channahaon Rd., IL 60436 Joliet, Rd., 13082 E. Manito IL 61554 Pekin, Ave., 401 E. Greenwood IL 60087 Waukegan, 529 E. 135th St., Romeoville, IL 60446 Romeoville, Map of the six Chicago- Map coal plants operated area Generation. Midwest by are: Their locations Station: Crawford Station: Fisk Station: Joliet Station: Powerton Station: Waukegan County Station: Will to Midwest Gener- to Midwest in operation of their 30 The complaint identi- 32 28 The claims asserted in the lawsuit are 29 regarding opacity and particulate matter. regarding 24 31 21 and 33 However, the parties never reached an agreement. the parties reached never However, 26 coal plants; ation coal plants; (2) technology control to use the best available Failure 76 On Aug. 29, 2009, the U.S. government and the state of Illinois filed a lawsuit and the state of Illinois the U.S. government 29, 2009, Aug. On alleging the of Illinois, District in the Northern Generation against Midwest coal plants. operation of its six Chicago-area improper Despite this reduction in emissions, on July 31, 2007, the U.S. Environmental in emissions, on July this reduction Despite Gener- to Midwest of Violation issued a Notice Agency (U.S. EPA) Protection of the Clean Air Act ation for operating its plants in violation from the six plants is down 80 percent,” says Charlie Parnell, spokesperson for spokesperson Parnell, says Charlie percent,” 80 is down the six plants from Generation. Midwest \\server05\productn\L\LPR\15-1\LPR102.txt Reporter Law Interest Public Loyola unknown 3 Seq: 29-DEC-09 15:04 fies four environmental concerns: nitrous oxide emissions, sulfur dioxide emis- emissions, sulfur dioxide oxide concerns: nitrous fies four environmental sions, opacity and particulate matter. three-fold: (1) making modifications to file petitions before Failure Source Review provisions Source west Generation and the U.S. EPA met on several occasions in attempts to met on several and the U.S. EPA Generation west of to the issues raised in the Notice that would respond negotiate an agreement Violation. 27832_lpr_15-1 Sheet No. 41 Side B 01/25/2010 08:59:15 B 01/25/2010 41 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 42 Side A 01/25/2010 08:59:15 77 34 http://www. 37 No. 1 • Fall 1 • No. 2009 available at available , Chicago Breaking News, Aug. News, , Chicago Breaking , No. 09-CV-5291 (N.D.Ill. Aug (N.D.Ill. 09-CV-5291 , No. , Aug. 28, 2009, 28, , Aug. in violation of Illinois law. in violation of Illinois RIBUNE 36 However, the U.S. EPA Notice of Violation Notice the U.S. EPA However, . T 35 HI The Sierra Club states, “Midwest Generation’s Club states, “Midwest The Sierra C 38 , Illinois Coal Plants Sued Over Dirty Air Over Sued Coal Plants Illinois 39 Air Pollution Lawsuit: Federal and State Lawyers Sue Midwest Generation Midwest Sue Lawyers and State Lawsuit: Federal Air Pollution http://www.chicagobreakingnews.com/2009/08/illinois-coal-plants-sued- note 4. supra available at available What direction this New Source Review litigation involving the US involving Review litigation Source this New What direction 40 safe levels of air pollutants to be released into the air in Illinois. into to be released of air pollutants safe levels Complaint, United States and Illinois v. Midwest Generation Midwest v. Illinois and States Complaint, United Id. OTES M K ONCLUSION chicagotribune.com/health/chi-chicago-pollution-suit-28-aug28,0,2243476.story. 6 Parnell, 7 42 U.S.C. §§8 (2009). 7401-7671 42 U.S.C. §§7501-7515 (2009). 7475, N 1 Hawthorne, Michael 27, 2009, over-dirty-air.html?obref=obnetwork. 2 Additionally, five citizens groups have moved to intervene claims in the opacity moved have groups citizens five Additionally, Generation. against Midwest C the pending complaint, but to its answer filed has not yet Generation Midwest 2006] their [December believes Generation states that “Midwest Mr. Parnell Review provi- Source New [is] compliant with the with the IL EPA agreement sions.” 26, 2009). 3 4 12, (Oct. Generation Midwest Spokesperson, Interview with Charlie Parnell, Telephone 2009). 5 Hawthorne, Michael Emissions Plant Power Illinois over (3) causing un- such a manner coal energy plants in operation of Continued that, “[Midwest states Generation, for Midwest spokesperson Mr. Parnell, to take in regards to is] required to what action [it as is] unsure Generation particulateopacity and matter.” \\server05\productn\L\LPR\15-1\LPR102.txt unknown 4 Seq: 29-DEC-09 15:04 EPA will take is yet to be seen, but the IL EPA has not joined as a party has to this to be seen, but the IL EPA will take is yet EPA lawsuit. issued to Midwest Generation states that from 2002 to 2006 Midwest Genera- to 2006 Midwest 2002 that from states Generation issued to Midwest than 30 per- particulatetion’s six plants emitted having opacity greater matter 38,378 minutes cent for a total of violate company’s coal plants regularly reports document that all of the own opacity regulations.” C Y 27832_lpr_15-1 Sheet No. 42 Side A 01/25/2010 08:59:15 A 01/25/2010 42 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 42 Side B 01/25/2010 08:59:15 , M K C Y available , Great Lakes Directory, , Great note 10. , Sierra Club, Oct. 12, 2009, Club, Oct. , Sierra supra supra 1990 U.S.C.C.A.N. 3385, 3387, 3395. 3385, U.S.C.C.A.N. 1990 Sierra Club Joins Lawsuit Against Midwest Generation Midwest Lawsuit Against Club Joins Sierra note 12. http://www.sierraclub.org/coal/il/pr/pr2009-10-21.aspx. supra supra reprinted in reprinted The Reform of New Source Review: Toward a More Balanced Ap- Balanced a More Toward Review: Source of New The Reform 351, 356 (2004). 351, 356 available at available http://www.greatlakesdirectory.org/il/121106_great_lakes.htm. . L.J. note 2. note 2, Counts 3, 6, 9, 12, 13, 15, 20, 23, 26, 27, 29, 38. note 2, Counts 3, 6, 9, 12, 13, 15, 20, 23, note 2, Counts 2, 5, 8, 11, 14, 16, 19, 22, 25, 28, 30, 32, 34, 35, 37. note 2, Counts 2, 5, 8, 11, 14, 16, 19, 22, note 2, Counts 1, 3, 4, 6, 7, 9, 10, 12, 13, 15, 17, 18, 20, 21, 23, 24, 26, note 2, Counts 1, 3, 4, 6, 7, 9, 10, 12, 13, 15, note 2. note 25. NVTL note 11. note 4. note 4. note 4. note 4. note 4. note 4. supra supra supra supra supra supra supra supra supra . E , U.S. EPA, (redacted in conjunction with a claim of Confidential Business in (redacted , U.S. EPA, supra available at available supra supra supra supra supra supra supra supra TAN S , 23 Id. Id. Generation with Midwest Agreement Historic Announces Blagojevich Gov. also Illinois See Id.; Id. and to Commonwealth LLC, Generation, issued to Midwest of Violation and Finding Notice Id. Id. Sierra Club Joins Lawsuit Against Midwest Generation Midwest Lawsuit Against Club Joins Sierra http://www.sierraclub.org/coal/il/pr/pr2009-10-21.aspx. Dec 13, 2006, 13, Dec 14 Parnell, 15 16 17 Complaint, 18 Parnell, 19 Clean Air Benefits Dramatic and Deliver Pollutants Plant Power to Reduce 20 Parnell, 21 22 15, 2009. (maps.google.com) on September Maps using Google created Map 23 42 U.S.C. §§ 7401-7671 (2009). 24 42 U.S.C. §§ 7475, 7501-7515 (2009). 25 Company Edison 31, 2007. B), July 2, Subpart under 40 C.F.R. Part Information 26 Parnell, 27 28 Complaint, 12 change in the statute as, “any physical change in, or is defined by The term ‘modification’ amount of any air pollutant of, a stationary the method of operation which increases source previously in the emission of any air pollutant not results or which such source emitted by emitted.” 42 U.S.C. § 7411(a)(4) (2009). 13 Martin, 29 30 of ‘modification’, Definition 27, 29, 36, 38. 32 technology’, control of ‘best available Definition 33 Complaint, 34 Complaint, 35 Parnell, 36 U.S. EPA, 37 ADC § 35 Ill. 212.123 (2009). 38 The Environmental the Environment, Against Ruining Citizens are: groups The citizens Association of Council, Respiratory Health Defense Resources Center, Natural Law and Policy Club, Chicago and Sierra Metropolitan 31 Complaint, Sierra Club, Oct. 12, 2009, Club, Oct. Sierra 39 at 40 Parnell, 78 \\server05\productn\L\LPR\15-1\LPR102.txt Reporter Law Interest Public Loyola unknown9 (1989), 101-549 No. S. Rep. 5 Seq: 29-DEC-09 15:04 10 technology which statute as that defined by technology’ is control ‘best available The term the individual circumstances taking into account output as much as possible pollution reduces 42 U.S.C. §involved. 7479(3) (2009). 11 Martin, Lord Nathaniel proach 27832_lpr_15-1 Sheet No. 42 Side B 01/25/2010 08:59:15 B 01/25/2010 42 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 43 Side A 01/25/2010 08:59:15 79 RIBE U ALERIE V No. 1 • Fall 1 • No. 2009 by NECESSARY? The CAJ Act proposes to lift restric- proposes The CAJ Act 1 AID ATTORNEYS: CONGRESSIONAL BURDENSOME OR BURDENSOME The LSC is a non-profit organization that promotes equal organization that promotes The LSC is a non-profit 2 3 RESTRICTIONS ON LEGAL RESTRICTIONS n Oct. 8, 2009, Rep. Robert Scott, D-Va., introduced the Civil Access introduced Robert Scott, D-Va., 8, 2009, Rep. n Oct. 2009 (CAJ Act). of Act to Justice M K O \\server05\productn\L\LPR\15-1\LPR110.txt unknown 1 Seq: 29-DEC-09 15:11 access to justice and ensures that low-income Americans receive high quality Americans receive that low-income access to justice and ensures legal assistance. tions on the categories of clients and cases that the Legal Services Corporation (LSC) can take on. C Y 27832_lpr_15-1 Sheet No. 43 Side A 01/25/2010 08:59:15 A 01/25/2010 43 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 43 Side B 01/25/2010 08:59:15 M K 6 C Y Addi- 5 Critics of the Critics 10 15 8 Since then, the restric- Since American Bar Associa- American Bar 9 12 Other restrictions limit soliciting clients restrictions Other 7 CT ? A USTICE It also limits who LSC-funded attorneys can represent, also It J 14 ESTRICTIONS 13 R CCESS TO A 11 RE THE IVIL A The LSC has been operating without reauthorization since 1977. without reauthorization has been operating The LSC 4 C HAT HE The main restrictions on LSC funds include prohibitions on: lobbying govern- on: lobbying include prohibitions on LSC funds The main restrictions situations; representing for in limited bodies except ment offices or legislative litigating class action with few exceptions; not U.S. citizens people who are attorneys’ fees. suits; and collecting In order to ensure its passage, the CAJ Act maintains the prohibition on abor- maintains the prohibition its passage, the CAJ Act to ensure order In litigation. tion-related 80 T that regulates the Act is to reauthorize Act While the main purpose of the CAJ pro- The bill greater. is much the LSC, the actual impact of reauthorization class- the collection of attorneys’ fees, prohibiting poses to lift the restrictions with non-federal funds. action lawsuits and lobbying When some members of Congress sought to eliminate the LSC in 1995, legis- sought to eliminate When some members of Congress limits on the categories creating to maintain it by in order lators compromised could handle. of clients and cases that legal aid offices The main purpose of the CAJ Act is to reauthorize the Act that regulates the regulates that Act the reauthorize is to CAJ Act of the main purpose The LSC. W \\server05\productn\L\LPR\15-1\LPR110.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 15:11 in person, litigating abortion-related claims, redistricting activities, influencing abortion-related claims, redistricting in person, litigating people being representing prisoners and representing the taking of the census, or drug public housing for criminal charges. evicted from including prisoners challenging prison conditions and people convicted of ille- including prisoners challenging prison conditions and people convicted of gal drug possession in public housing eviction proceedings. tions have been annually attached to LSC appropriations bills. been annually attached to LSC appropriations tions have LSC stated that the purpose of enacting these restrictions was to keep the LSC these restrictions LSC stated that the purpose of enacting apolitical. of reauthorization Jr. states, “Proper Wells H. Thomas tion (ABA) President limit LSCs effort rules to help and antiquated severely LSC is decades overdue, people in need.” tionally, the bill proposes to lift most of the restrictions limiting LSC services. limiting lift most of the restrictions to bill proposes tionally, the 27832_lpr_15-1 Sheet No. 43 Side B 01/25/2010 08:59:15 B 01/25/2010 43 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 44 Side A 01/25/2010 08:59:15 21 81 Support- 17 Critics argue Critics 22 25 No. 1 • Fall 1 • No. 2009 According to Rep. Trent to Rep. According 20 Supporters of this restriction believe it is necessary believe of this restriction in Supporters For example, in New Jersey, where only 13 percent of only 13 percent where Jersey, example, in New For 24 23 ECESSARY EBATE N S D Diana White, Executive Director of Legal Assistance Founda- of Legal Assistance Director White, Executive Diana I 18 HANGE Helaine M. Barnett, President of the LSC, says “[m]any of the 137 LSC, says “[m]any of the President M. Barnett, Helaine URRENT 16 19 C C HY M K HE W low-income focused on how on both sides of the debate remain Individuals lifted. While some are individuals will be affected if some of the restrictions and to enacted to keep the LSC out of the political arena were restrictions legal aid to the poor, other the LSC to focus on its mission of providing allow Additionally, Congress prohibited the use of non-LSC funds received from the use of non-LSC funds received prohibited Congress Additionally, funding. such as federal, state, local and private other sources But some members of Congress are not convinced by these arguments. Critics not convinced by are some members of Congress But activist often use federal funds to advance argue that recipients of the CAJ Act necessary that LSC funds are limitations are to ensure agendas, and that broad of the poor. spent to meet the basic legal needs T on rep- the restriction particularly criticize of lifting the restrictions Supporters foreclosure home to the recent lawsuits due clients in class action resenting crisis. \\server05\productn\L\LPR\15-1\LPR110.txt unknown 3 Seq: 29-DEC-09 15:11 order to avoid the possibility of legal aid offices skirting LSC funding condi- to avoid order simply transferring the funds to non-LSC accounts. tions by nonprofit programs funded by LSC are increasingly involved in foreclosure in involved increasingly are LSC funded by programs nonprofit allegations of predatory lending.” involve cases, and they frequently when our hands weren’t better able to help people were tion, notes, “We tied.” Franks, R-Ariz., “[f]unding of a Legal Services shouldn’t be allowed R-Ariz., “[f]unding of a outreach Franks, to try to make partisan focus on helping legal battles. . .they should primarily for themselves.” legal representation the underserved, who can’t afford those the LSC, federal restric- the financing for legal services comes from programs other from of funding received 87 percent the remaining tions dictate how may be spent. sources that the prohibition against the use of non-LSC funds is necessary against the use of non-LSC funds that the prohibition to avoid misuse of LSC funds. ers of lifting this restriction believe that class actions can be a powerful tool for be a powerful that class actions can believe ers of lifting this restriction such as predatorychallenging practices, of lending, that affect large numbers homeowners. C Y 27832_lpr_15-1 Sheet No. 44 Side A 01/25/2010 08:59:15 A 01/25/2010 44 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 44 Side B 01/25/2010 08:59:15 M K C Y 111th Cong., 1st Sess. 111th Cong., 1st Sess. , Oct. 8, 2009. , Oct. , 1999 U.S. 603, 5 (No. 99- , 1999 U.S. 603, 5 (No. NS ’ , October 9, 2009. , October UBL P IMES , June 23, 2009. , June N.Y. T , IMES note 9, at 52a. note 9, at 48a. note 9, at 52a. OCUMENTS AND N. Y. T D , supra supra supra Legal Servs. Corp. v. Velazquez note 3. note 3. note 1. note 1. supra Congress Looks to Bolster the LSC as the Recession Raises Legal Worries for Raisesas the Recession Legal Worries Looks to Bolster the LSC Congress supra ONGRESSIONAL note 2. supra note 2. supra C , note 16. , supra supra A Test for Equal Justice for Equal A Test supra Another Kind of Foreclosure Crisis Kind of Foreclosure Another ELEASE ELEASE ELEASE R R R , 95 A.B.A.J. 66, 66 (2009). EWS EWS EWS Rep. Steve Cohen Holds a Hearing on the Legal Services Corporation: Hearing Before the H. Before Hearing on the Legal Services Corporation: a Hearing Cohen Holds Steve Rep. Rep. Steve Cohen Holds a Hearing on the Legal Services Corporation: Hearing Before the H. Before Hearing on the Legal Services Corporation: a Hearing Cohen Holds Steve Rep. Id. Id. Id. N N Id. Id. Id. N Rep. Scott Introduces the Civil Access to Justice Act of 2009; Rep. Robert C. “Bobby” Scott (D- Robert C. “Bobby” of 2009; Rep. Act to Justice Access the Civil Scott Introduces Rep. OTES 2 Rhonda McMillion, the Poor 3 to in Funding $400 Million Provide Would Legal Servs. Bill Release, Corp., Senate Press 26, 2009) http://www.lsc.gov/press/pressrelease_detail_2009_T248_R17.php. LSC (June 4 24 Editorial, (2009) (statement of H. Rep. Trent Franks). Trent (2009) (statement of H. Rep. 22 Legal Servs. Corp, 21 Law, and Admin. S. Comm. on Commercial Comm. on the Judiciary, 23 of Certiorari, for Writ Petition 17 Law, and Admin. S. Comm. on Commercial Comm. on the Judiciary, Barnett). Helaine (2009) (statement of LSC President 18 Editorial, 19 of Legal Assistance Found. Director, Interview White, Executive with Diana Telephone 20, 2009). Chi. (Oct. Metro. 20 of Certiorari, for Writ Petition 82 25 of Certiorari, for Writ Petition 5 6 7 McMillion, 8 9 of Certiorari, for Writ Petition 15 16 Editorial, 603). 10 Legal Servs. Corp., 11 12 13 McMillion, 14 restrictions tie the hands of legal aid offices as they attempt to help those most to help attempt as they aid offices of legal the hands tie restrictions the debate when on each side of these concerns must weigh in need. Congress per- low-income benefit for an overall will have whether the CAJ Act deciding legal assistance. sons seeking N 1 VA), \\server05\productn\L\LPR\15-1\LPR110.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 15:11 27832_lpr_15-1 Sheet No. 44 Side B 01/25/2010 08:59:15 B 01/25/2010 44 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 45 Side A 01/25/2010 08:59:15 : 83 UBES K RITTANY B No. 1 • Fall 1 • No. 2009 by IN ILLINOIS REQUIREMENTS KIRK V. ARNOLD KIRK V. OF TRANSGENDER BIRTH CERTIFICATE BIRTH THE TRANSFORMATION 1 ’ve faced a lifetime of incongruence this piece of paper that ’ve and there’s after says I’m someone I’m not,” stated Karissa Rothkopf, It is. . .wrong. M K Illinois refused to amend her birth sex reassign- refused certificateIllinois when she received ment surgery. “I \\server05\productn\L\LPR\15-1\LPR105.txt unknown 1 Seq: 29-DEC-09 15:15 C Y 27832_lpr_15-1 Sheet No. 45 Side A 01/25/2010 08:59:15 A 01/25/2010 45 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 45 Side B 01/25/2010 08:59:15 M K 11 C Y The 5 4 and (2) a fe- 3 12 In 2004, however, the however, 2004, In 2 However, after an Illinois However, In 2004, the Registrar only 2004, the Registrar In 6 7 8 10 ), the Registrar began to interpret the began to interpret ), the Registrar plaintiffs asked the state of Illinois to plaintiffs asked the state of Illinois Simmons Kirk Kirk ( RNOLD . A , the three , the three IRK V K Simmons These requests, however, were initially denied because Kirk and initially denied because Kirk were however, These requests, 9 In re Marriage of Simmons of Simmons Marriage re In VERVIEW OF On Nov. 18, 2009, the Registrar partially amended the policy it created in partially amended the policy it created 18, 2009, the Registrar Nov. On physicians as long as an appli- foreign from 2004 to permit surgeries received the surgery’scant could verify physician’s affidavit. completion via a U.S. plaintiffs did not comply with this policy restriction, Though two of the Kirk to amend their birth agreed certificates to their the state of Illinois according gender identities because of the pending lawsuit. appropriate 84 Following Following Victoria Kirk, Karissa Rothkopf and Riley Johnson filed a lawsuit in January Riley Johnson and Rothkopf Karissa Kirk, Victoria of the law. new interpretation the Registrar’s 2009 seeking to suppress birth on an individual’s the gender marker altered Registrar to 2004, the Prior the any physician confirming an affidavit from certificate received when it surgery.completion of any gender reassignment For Karissa Rothkopf and other transgender individuals, a birthindividuals, transgender and other certificate Rothkopf Karissa is For has Illinois the past 40 years, paper. Throughout just a piece of than more surgery sex reassignment the gender to change individuals who have permitted original birthor status, on their certificates.marker, \\server05\productn\L\LPR\15-1\LPR105.txt Reporter Law Interest Public Loyola unknown 2 Seq: 29-DEC-09 15:15 Rothkopf received their surgeries from non-U.S. licensed physicians and John- their surgeries from received Rothkopf son did not obtain genital surgery at all. accepted a surgery attach or form a viable penis” for that attempted to “create, and only accepted such as Johnson, female-to-male transgender individuals, doctors licensed in the U.S. affidavits from case, stringent manner. in a more surgical requirements male-to-male transsexual has a specific surgerymale-to-male transsexual a viable penis. attaching Illinois State Registrar of Vital Records (Registrar) changed its interpretation of its interpretation changed (Registrar) Records Vital of Registrar State Illinois her birth to change his or an individual certificate allow the law to only if: (1) a surgery, performsU.S. licensed physician sex reassignment the future of gender identity for transgender individuals may rely on the outcome individuals may rely of gender identity for transgender future of this case. O amend their birth certificates to their new in according gender identities 2008. 27832_lpr_15-1 Sheet No. 45 Side B 01/25/2010 08:59:15 B 01/25/2010 45 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 46 Side A 01/25/2010 08:59:15 16 85 The 22 OTENTIAL 23 P No. 1 • Fall 1 • No. 2009 S ’ 21 18 IRK K : Kirk, Rothkopf and Johnson con- and Johnson Rothkopf Kirk, LLINOIS Still, Kirk and Rothkopf are pro- are and Rothkopf Kirk Still, 24 I 13 ERTIFICATES IN 15 C because Johnson wants his birthhis certificate to reflect because Johnson 17 IRTH Johnson does not think gender reassignment surgery think gender reassignment does not is only Johnson B Although Johnson received an altered birth an altered certificate without received Although Johnson 20 19 According to the plaintiffs, According on a name and gender “[c]hanging the ALUE OF 14 V M K HE MPACT T I when entering the world. is the first designation an individual receives Gender people will be satisfied with this initial assessment, but others may be Most uncomfortable with their assigned gender. Pursuant to the plaintiffs’ requests, the Registrar recently announced that it announced recently the Registrar plaintiffs’ requests, to the Pursuant much surgery” new for determining “how will be re- standards will prepare birth a gender-altered certificate. if an individual wants to receive quired Presently, the Registrar continues to call for the completion of a gender reas- to call for the completion of a gender continues the Registrar Presently, on a birth signment surgery gender marker certificate. to alter the order in the re- individual, initially contested a female-to-male transgender Johnson, surgery or attach that the requisite to “create, be one that attempts quirement form a viable penis,” for again. The definition changed its policy yet the Registrar 2009, however, In a question as to whether have surgery you “If gender reassignment states: now surgery, for completed gender reassignment physician your have contact you clarification.” The plaintiffs considered this change in policy, permitting foreign doctors to doctors foreign policy, permitting in this change considered plaintiffs The surgery,perform requisite the a success. \\server05\productn\L\LPR\15-1\LPR105.txt unknown 3 Seq: 29-DEC-09 15:15 completed by the creation of a viable penis, but rather should include the of a viable penis, but rather should include the creation completed by for each individual. most appropriate medical treatment male identification but does not desire genital surgery. but does not desire male identification genital surgery, he is pursuing the lawsuit to clarify what gender reassignment surgery means. person’s identity documents is another important documents person’s identity reassignment, aspect of sex crucial to function success- are to that person’s ability since those documents fully in the new gender.” ceeding with their suit in order to change the Registrar’s surgical requirement surgical Registrar’s to change the their suit in order ceeding with birth certifi- altered can receive individuals that other transgender and ensure cates. tend that individuals may need birth certificates for a variety of reasons: to tend that individuals may need birth of reasons: certificates for a variety plaintiffs want to ensure these new standards give transgender individuals the transgender individuals these new give standards plaintiffs want to ensure to choose the surgery for them. freedom most appropriate C Y 27832_lpr_15-1 Sheet No. 46 Side A 01/25/2010 08:59:15 A 01/25/2010 46 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 46 Side B 01/25/2010 08:59:15 M K C Y Sim- that they conduct a that they conduct American Civil Liberties 26 32 Simmons Simmons plaintiffs maintain that this is “not No. 09-CH-3226 (Circuit Court (Circuit of Cook 09-CH-3226 No. plaintiffs will prevail on their claim that plaintiffs will prevail Kirk Kirk note 2. note 2. Kirk Kirk Instead, the plaintiffs want Illinois to allow the plaintiffs want Illinois Instead, supra supra 27 supra supra Kirk v. Arnold, Kirk note 4, at 2. 25 They pledge to guarantee that the Registrar’s new Registrar’s They pledge to guarantee that the 31 supra supra In contrast, the Registrar is attempting to abide by the is attempting to abide by contrast, the Registrar In 29 Transgender Rights: Illinois Birth Certificates, Birth Certificates, Rights: Illinois Transgender 28 One thing is for certain: One the 30 at 3. . Id. Id. OTES 6 535/17(d) (2002). Comp. Stat. 410 Ill. 7 19, 2009). (Nov. ACLU Attorney, interview Knight, Plaintiffs’ with John Telephone 8 Amended Complaint, 9 the end of the story.” Union, http://www.aclu.org/lgbt-rights_hiv-aids/kirk-v-arnold-case-profile (last visited Nov. 4, visited Nov. (last http://www.aclu.org/lgbt-rights_hiv-aids/kirk-v-arnold-case-profile Union, 2009). 2 Certificates Birth Illinois Following New Ask Court to Order Women ACLU, Release, Press 27, 2009), http://www.aclu.org/lgbt/transgender/38500 (Jan. Surgery Abroad Reassignment Sex prs20090127.html. 3 4 Amended Complaint at 4, 7, 2009). County, April 5 American Civil Liberties Union, seeks to abolish or broaden the scope of the surgical requirement or whether requirement the scope of the surgical seeks to abolish or broaden in the court’s requirements will answer call for strict surgical the Registrar mons N 1 in Karissa Rothkopf The plaintiffs continue to argue against requiring a single surgical procedure to argue against requiring The plaintiffs continue individuals. for all transgender seen whether the to be remains It marry, to prove employment eligibility, to obtain other identity documents identity other to obtain eligibility, employment marry, to prove access to govern- or to gain to enter a building travel, to them to vote, allowing ment services or benefits. the court by de- determination that an authoritative they believe Accordingly, to alter a an individual seeking for requirements specific surgical fining the birth the as certificate as well benefit the larger transsexual community, would standard. in establishing a uniform state of Illinois \\server05\productn\L\LPR\15-1\LPR105.txt Reporter Law Interest Public Loyola unknown 4 Seq: 29-DEC-09 15:15 regulation is in compliance with the Constitution. regulation Illinois Appellate Court’s in reasoning Appellate instructive Illinois fact as- whether an individual has in to discern investigation thorough more sumed a new gender. the medical treatment most appropriate for each individual, whether that en- for each individual, most appropriate the medical treatment tails surgery or not. 10 American Civil Liberties Union, 86 27832_lpr_15-1 Sheet No. 46 Side B 01/25/2010 08:59:15 B 01/25/2010 46 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 47 Side A 01/25/2010 08:59:15 87 . 15, L.J S ’ OMEN 131, 134 (2008). W No. 1 • Fall 1 • No. 2009 EXUALITY ERKELEY , http://www.idph.state.il.us/ B & S 18 AW L 17 note 11. note 11. note 22. Gender Reassignment Gender supra supra supra supra supra supra note 4. note 4, at 2. note 4, at 2. note 4, at 4. , 825 N.E.2d 303, 310 (Ill. App. Ct. 1st Dist. 2005). Ct. 1st Dist. App. , 825 N.E.2d 303, 310 (Ill. supra supra supra supra supra supra supra supra , No. 09 CH 3226 (Circuit Court of Cook County, Aug. 3, 2009). Court Aug. of Cook County, 09 CH 3226 (Circuit , No. “What the Birth Certificate Shows”: An Argument to Remove Surgical to Remove Argument An Shows”: “What the Birth Certificate Resisting Medicine, Re/modeling Gender, Gender, Re/modeling Medicine, Resisting note 14. note 14, at 12. note 7. note 7. note 7. note 23, at 19. supra supra supra supra supra supra supra supra supra supra supra supra Kirk v. Arnold Kirk Dean Spade, Spade, Dean at 11. . See See Id Id. Id. Id. of Simmons Marriage re In M K 22 Birth Cer- Accurate Issues Illinois Policies, Restrictive Two Reversing ACLU, Release, 16, 2009), http://www.aclu.org/lgbt-rights/revers- Press (Nov. Persons Transgender tificates to Three ing-two-restrictive-policies-illinois-issues-accurate-birth-certificates-three-tra. 23 19 Health, Department of Public Illinois 20 Response, 21 Amended Complaint, 18 Knight, 18 (2003). 24 Kristin Wenstrom, Policies, Birth Certificate Amendment from Requirements 16 Health, Department of Public Illinois 17 Amended Complaint, 32 15 Amended Complaint, 29 30 Policies, Restrictive Two Reversing 31 Knight, vitalrecords/gender.htm (last visited Nov. 19, 2009). visited Nov. (last vitalrecords/gender.htm 12 Knight, 13 14 Amended Com- First Plaintiffs’ to Dismiss 2-619 Motion Section to Defendant’s Response plaint at 2, 25 Response, 26 27 Spade, 28 Amended Complaint, 11 Health, of Public Department Illinois \\server05\productn\L\LPR\15-1\LPR105.txt unknown 5 Seq: 29-DEC-09 15:15 C Y 27832_lpr_15-1 Sheet No. 47 Side A 01/25/2010 08:59:15 A 01/25/2010 47 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 47 Side B 01/25/2010 08:59:15 M K C Y 27832_lpr_15-1 Sheet No. 47 Side B 01/25/2010 08:59:15 B 01/25/2010 47 Side Sheet No. 27832_lpr_15-1 27832_lpr_15-1 Sheet No. 48 Side A 01/25/2010 08:59:15 invites the submission of articles, submission of invites the . unable to accept are currently We PILR is published three times annually.is published three Our publishes feature and news articles feature publishes written Loyola University Chicago University Loyola Public Interest Law Reporter Interest Public M K publication schedule is Winter, Spring and Summer. 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