Boston University Pre-Law Review

Volume XXIII Issue 1, Spring 2014 The Boston University Pre-Law Review Volume XXIII Issue 1, Spring 2014

Executive Board

President: Merissa Pico COM ’15 Vice President: Ian Rollins CGS ’14, CAS ’16 Treasurers: Sydney Fondots SMG ’14 Carolyn Michener SAR ’16 Secretary: Daniella Young CAS ’14

PLR Staff

Editor-in-Chief: Merissa Pico COM ’15 Copy Editors: Emily Brewster CAS ’14 Hannah Fikar CAS ’15 Ryan Knox SAR ’16 Carolyn Michener SAR ’16 Ian Rollins CGS ’14, CAS ’16 Senior Layout Editor: Stella Sy SMG ’16 Junior Layout Editors: Evan Bailey CAS ’15 Andrea Young COM ’15 Cover By: Merissa Pico COM ’15

Faculty Advisors

Dean Edward Stern Assistant Dean, Pre-Professional Advising (Law) Rita Callahan Ralston Pre-Law Academic Advisor Table of Contents

Civil & Constitutional Finance & Technology Rights 2 The End of the Civil Rights Era? - 15 The Merits of Net Neutrality The Dissolution of Preclearance Andrew Keuler Carolyn Downs 16 Bitcoin and the Law: A New Frontier 3 Legal Segregation: Socioeconomic for the Digital Currency Divisions Prevent Diversity in Post Dustin Vandenberg -Segregation Schools 17 The Free Market at Work: Libor Isabel Strobing Rigging amongst the Top World 4 Minorities in the Legal Profession in Banks America Daniel Rollins Emily Brewster 5 The Battle of Gender Discrimination: A Continuation into the Workplace Health & Environment Sophia Alvi 6 DOMA Strike Down: The Results and 18 Living and Dying Under Death with Repercussions Dignity Jennifer Bourne Ryan Knox 7 Religion v. Due Process: The 19 E-Cigarettes: Public Health and Changing Attitude of Guaranteed Regulation Freedoms Martin Yim Hannah Fikar 20 Cetacean Safety: The Movement for 8 their Freedom Asylum for the LGBT in the United Daniella Young States: A Safer Haven Marabi Madrigal 21 Cape Wind Blows Away Opponents 9 Stop and Frisk Policy: Constitutional Stella Sy or Not? Sydney Fondots Criminal Justice 10 Balance the Imbalance: US v. UK Libel Law Katherine Peluso 22 An Examination of Mandatory Minimum Sentences Evan Bailey Human Rights 23 Murder in the First Degree: The Question of Juveniles Rachel DuShey 11 Defining a Parent in the Eyes of the Law 24 Solitary Confinement: Calls to Merissa Pico Reform will Keep Prisoners from Standing Alone 12 Uganda’s Anti-Homosexuality Law Alexandra Mercer Ivana Bikombe 25 Discrimination of Another Type 13 Sexual Assault: Injustice in the Janki Viroja Dean Edward Stern Middle East Ian Rollins 26 If Prostitution were Legalized Assistant Dean, Pre-Professional Advising (Law) Jaimie Potters Rita Callahan Ralston 14 Bellum Pro Humanitate? Killing or Pre-Law Academic Advisor Letting Die Ramzi Nia The End of the Civil Rights Era? The Dissolution of Preclearance By Carolyn Downs CGS ’14, CAS ’16

n June 25, 2013, in the case Shelby County v. Holder, the U.S. Supreme Court struck down the heart of the Voting Rights Act of 1965, Section 4b.1 The Voting Rights Act (VRA), passed by Congress in 1965, was a response to voting discrimination based on race and color. Section 4b of the VRA applies only to states such as Alabama, Georgia, Mississippi, OSouth Carolina, and Virginia, which are states that had previously been known to discriminate based on race. The section is called the coverage formula, and it sets forth a formula to determine which jurisdictions are covered under Section 5 of the VRA.2

Section 5 “provides that no change in voting due to pre-clearance. Justice Ginsburg argued that although

Federal authorities in Washington D.C.”3 This is known such as ballot access have decreased in prevalence, “second procedures can take effect until approved by specified generation“first generation barriers” barriers” such in as racial racial discrimination gerrymandering in voting are states wanted to redraw district lines or move a polling still prevalent.8 Ginsburg, along with dissenting Justice station,as pre-clearance, the state must meaning have thatthose if changes one of theapproved specified by Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena the Department of Justice.4 The DOJ will then determine Kagan argue that these second-generation barriers are whether these changes discriminate on the basis of race. reason enough to make the coverage formula and pre- In Shelby County v. Holder, the Supreme Court struck down clearance still relevant. Section 4b – making Section 5, the heart of the VRA, null. Some say that this key Supreme Court decision in Shelby County v. Holder has marked the end of the Civil but Congress has continuously renewed it for varying The VRA was originally put in place for five years in 1965, VRA, still holds that states cannot “adopt any law, practice, for civil rights in the 1960s, the VRA has been incredibly orRights voting Era. procedure Section 2, thatthe otherdenies significant or abridges provision the right in the to successfullengths of time.in achieving Seen as racial the paritygreatest in triumphthose states in the that fight are vote on account of race.”9 But without pre-clearance, will covered by the Act. However, the United States Supreme the United States see a decline in the achieved racial parity Court decided that Section 5 was inapplicable in the in those previously covered? Some believe “yes.” Others, country today because of how successful the VRA has been including Chief Justice Roberts, believe that a backslide in preventing racial discrimination in voting practices.5 will not occur due to the large strides made in the covered The majority opinion of the Supreme Court argued that jurisdictions. things have changed since 1965, and that minority voter registration rates in those covered are similar to rates This decision shows that issues of civil rights and throughout the country, and that minority candidates are racial discrimination have not disappeared from the legal 6 landscape. The Civil Rights Movement made incredible strides to improve racial equality. Is the task of racial evenThe elected Supreme to public Court office used in these this covered evidence, jurisdictions. originally voting equality achieved? The Supreme Court says “yes,” compiled by Congress in 2006, to deem Section 4b of the and voting registration rates have reached parity; the war VRA, and consequently Section 5, unconstitutional. Chief on voting discrimination has been won. Or has it? Justice John Roberts delivered the opinion of the Court saying that Section 5 was previously defended using 40- Sources Part of Voting Rights Act,” The New York 7 Times, June 25, 2013. year old data that is not applicable to current conditions. 1Shelby County v. Holder. 570 U.S. (2013). 6 2 Adam Winkler, “The Supreme Court’s Congress discovered that voter registration rates were Jeremy Amar-Dolan and Zachary Zemlin, Ruling and the End of the Civil Rights Era.” Cornell University Law School, “Legal The Daily Beast, 6 25, 2013, http://www. reaching racial parity in the jurisdictions covered by pre- Information Institute,” Accessed March 17, thedailybeast.com/articles/2013/06/25/ 2014, http://www.law.cornell.edu/supct/ the-supreme-court-s-ruling-and-the-end-of- clearance. cert/12-96. the-civil-rights-era.html. 3 Shelby County v. Holder, 570 U.S. (2013). 7Shelby County v. Holder, 570 U.S. (2013). 4 However, Justice Ruth Bader Ginsburg in the dissenting Michael J Pitts, “Section 5 of the Voting Rights 8Liptak, “Supreme Court Invalidates Key Act: A Once and Future Remedy,” Denv. UL Rev. Part of Voting Rights Act.” opinion states that deeming Section 5 unconstitutional 81 (2003): 233. 9Winkler, “The Supreme Court’s Ruling and could erode the progress made in the covered jurisdictions 5Adam Liptak, “Supreme Court Invalidates Key

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW the End of the Civil Rights Era.”

2 Legal Segregation Socioeconomic Divisions Prevent Diversity in Post-Segregation Schools

By Isabel Strobing these attendance zones, there is neighborhood demographics.”7 As CAS ’17 extensive socioeconomic variability long as the attendance zones make between the different neighborhoods chool districts across the in Charleston County. Especially for students to learn alongside nation consider diversity an in the smaller elementary schools, studentsgeographic with sense, different it would lifestyles be beneficial and integral part of education. socioeconomic class divides students, economic backgrounds. Charleston County, South making homogeneity a norm early on Carolina is no different in their education. Since there is no At the same time, the issues S— since desegregating in 1963, forced segregation, and since students that arise when considering even great strides have been made in the are sent to their neighborhood school a geographically sound change in equality of education between blacks regardless of race, there is no glaring attendance zones could deter a school and whites. However, while some legal issue in the Charleston County district from taking the risk. Pragmatic School District. Even so, more must be issues, such as a change in normal facto segregation is still undeniably done to effectively diversify. present.schools haveThe issue clearly is not diversified, the drawing de from sending their children to a new of geographic boundary lines for The main factor inhibiting school.traffic patterns, The neighborhood could prevent divides parents that districts, but it is the failure of the the diversity of schools is the have become well-established could county to adequately assess what the socioeconomic divisions between be broken up. More than anything, composite of the population is made zones, and solutions should focus on of, within that geographic boundary. mitigating this problem. Over time, to attend a traditionally low-income These geographic boundary lines African-American families have seen an schoolaffluent may families choose who to leave may the be school forced are called attendance zones. increase in overall wealth.4 As African- system altogether. These attendance zones reinforce American families continue to become socioeconomic divisions, thereby wealthier, the existence of traditionally Despite these inhibitions, boundary heightening inequality between “white” or “black” neighborhoods changes must be made in de facto- schools. Closing the socioeconomic may decline, dramatically increasing segregated school districts, in order gap, diversifying elementary schools diversity within the attendance zones. to diversify each separate district. or redrawing attendance zones However, without some type of forced altogether would even out the racial reassignment, which would probably school district outweigh short-term balance between schools and lead to nuisances.The benefits Drawing of creating attendance a more zonesequal a more well-rounded student body in leaving the school district5, simply around socioeconomic divisions Charleston. waitingresult infor moreintegration affluent to studentshappen only exacerbates these divisions. A could take decades. Charleston County was giving each child an equal opportunity desegregated in 1963 under Brown A faster approach would be todiversified a good education, school system thus ispreparing key to v. School District No. 20.1 Previously, to change the boundaries of the students for the real world. This can Charleston County schools operated attendance zones altogether. In only be achieved when school districts under a dual system, with a black and Parents v. Seattle School District in like Charleston step up to tackle the a white school in each neighborhood.2 2007, the Supreme Court held that a underlying problems preventing it. This case integrated the schools school not under court order could not and prohibited denying students use race when deciding admission.6 admission based on race. Today, there Associate Justice Anthony Kennedy Sources 1Brown v. School District N. 5Christine H. Rossell, “Using are 90 schools in Charleston County. supported the Court’s ruling, stating 20, 328 F.2d 618. (4th Cir. Multiple Criteria to Evaluate 1964). Public Policies: the Case Aside from the nine magnet schools, that “it is permissible to consider the 2Ibid. of School Desegregation,” American Politics Quarterly, which are countywide and require a schools’ racial makeup and adopt 3“Schools Division,” 1993. Charleston County School test or audition for admission, each general policies to encourage a diverse District, Accessed March 6Parents Involved in 3 28, 2014, http://www. Community Schools v. Seattle school has an attendance zone. student body,” and one of these ccsdschools.com/Schools/. School District No. 1. 551 U.S. 701 (2007). However, although there is little policies could be “drawing attendance 4“Median Household Income 1987-2010 by Race/Ethnicity 7Parents Involved v. Seattle socioeconomic variability within zones with general recognition of in U.S.” School District. 551 U.S. at 8. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

3 Minorities in the Legal Profession in America

By Emily Brewster Minority associates have a higher CAS ’14 associates, almost 25% reported attrition rate than their Caucasian no13% minorityof those officeswomen had noassociates, minority counterparts, often abandoning hroughout history, the 25% had no minority partners, and the private sector or jumping to legal profession has over 50% had no minority women corporations to work as low-level lacked members of diverse partners.7 However, because law staff counsel.14 Additionally, minority backgrounds, as it is a representation in the legal profession profession that has been has declined since the 1980s.15 After Ttraditionally dominated by Caucasian diverse,firms/businesses as there are is private,no quota they they are law school, minorities, and especially men, and more recently Caucasian not “required” to make their offices minority women, are less likely than women. Caucasians to begin their careers in mustHistorically, fill. minorities have been private practice, apparently due to According to the US Census Bureau, excluded from the legal profession the combined effects of gender and of the 316 million people in the United due to segregation and racism. race.16 Despite these challenges, States, 22% are minorities.1 In 2013, However, the number of minorities of the 1.8 million people working in the legal profession has increased Rome LLP and Hogan Lovells, are in the legal profession, 6.2% were over the years. Introduced in the takingmany large the lawinitiative firms, suchto aspromote Blank African-American, 4.9% were Asian, diversity, with programs such and 8.2% were Hispanic or Latino.2 minorities the opportunity to attend as diversity training and career Essentially, 2013 saw over 80% of law1960s, school, affirmative which as action a result gave gave more way development for minorities. These lawyers in the United States to be to a more diverse legal profession. Caucasian. Despite the increase in diversity, the minorities to help develop diversity legal profession still trails behind infirms the legal are alsoprofession. actively If recruitingother law While these numbers may appear 8 proportionate compared to the in the minority demographic in the number of minorities living in the otherMany influential minorities professions. can barely afford legalfirms profession. follow, there may soon be a rise US, comparatively speaking, the to attend college, and with the rising Sources legal profession is still less diverse costs of post-graduate education, law 3 9 1“State and County QuickFacts,” United States Census Bureau, than many other professions. school is out of reach for most. Also, 2014. minorities tend to have less access 2“Household Data Annual Averages: 11. Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino to educational resources, such as Ethnicity,” Bureau of Labor Statistics, 2013, moreAdditionally, likely to in belaw found firms, in minorities, associate test prep (for SATs, LSAT, etc.) and www.bls.gov/cps/cpsaat11.pdf. and minority women specifically, are 10 3Paul Chan, “Diversity, Inclusiveness, and the Legal Profession and staff attorney positions rather education funds. As a result, they – 2011,” University of Denver, 2011, www.du.edu/counsel/ than partner positions.4 usually have lower grades and test documents/Diversity_2011_Outlinev3.pdf. 4Elizabeth Chambliss, Miles To Go: Progress of Minorities in scores than most Caucasian people of the Legal Profession, 2004. 11 Depending on the city, however, high socioeconomic standing. Thus, 5“Lawyer Demographics,” American Bar Association, 2013, the number of minority associates this negatively affects their chances www.americanbar.org. 6“Women and Minorities at Law Firms by Race and Ethnicity - and partners varies. For example, of getting into the best schools and An Update,” NALP, 2013, www.nalp.org/0413research. African-American associates and 7Ibid. 8“Lawyer Demographics,” American Bar Association, 2013, partners are more common in surmised that cultural bias and the www.americanbar.org. law firms. In the legal industry, it is Atlanta, Georgia; whereas, in certain lack of networking have affected the 9Wayne J. Camara and Amy Elizabeth Schmidt, “Group 12 areas of California, Asian associates College Board Report 99:5. 1999. 10 5 DifferencesIbid. in Standardized Testing and Social Stratification,” and partners are more common. It is also argued that attorneys of all 11Ibid. success and diversity of law firms. Overall, minorities make up 6.71% backgrounds and political leanings 12Elizabeth Chambliss, Miles To Go: Progress of Minorities in 6 the Legal Profession, 2004. of partners in the United States. subconsciously stereotype each 13Ibid. The National Association for Law other, and Caucasian partners do not 14Ibid. 15Eli Wald, “The Changing Professional Landscape of Large often share their business or social Law Firms, Glass Ceilings and Dead Ends,” Fordham Law networks with minorities.13 Review 78:5. 2010. Placement’s (NALP) study of law firm 16Elizabeth Chambliss, Miles To Go: Progress of Minorities in the Legal Profession, 2004. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW diversity looked at over 1,200 offices and firms, where they found that 4 The Battle of Gender Discrimination A Continuation into the Workplace By Sophia Alvi on gender is a complex issue. bias studies, showing that employers CAS ’15 Re:Gender, a national organization develop prejudices on their potential established in 1981 to combat gender employees before they are even discrimination in the workplace, hired. ast year, the popular fast- stated that per dollar, the average food chain Checkers found woman makes 23 cents less than Fortunately for women like itself caught up in a legal the average man today in America.4 LaToya Snyder, there are certain battle that it may have Despite the efforts of organizations legal precedents protecting against wished it could have settled like Re:Gender, occupational gender- and prohibiting pay discrimination Lquietly. Market Burgers, L.L.C., based discrimination is still a huge based on gender. The EEOC cited two Checkers’ parent corporation, was problem in the American workplace. charged with violating federal law VII of the Civil Rights Act and the when it was charged with paying Economists offer two theories Equalspecific Pay violations Act. The by Equal Checkers, Pay Act Title is female employees less than their as to why the pay gap exists. The male counterparts, while at the same the EEOC, and Re:Gender. The Act time scheduling the women for fewer Theory,” shifts much of the blame isof importantspecific importance in that it isto designedgroups like to first, known as the “Human Capital

“Per dollar, the average woman makes 23 cents less than the average man today in America”

hours than the men.1 onto the women employed in various prohibit employment discrimination occupations.5 According to the theory, based on gender and requires equal The main plaintiff in the suit, women often place a larger emphasis pay for men and women, provided LaToya Snyder, was a female shift on family and childcare, choosing jobs that the work is equal and performed manager who had worked at a in the same establishment. Agencies Checkers in West Philadelphia since less rigid career paths, which allow like the EEOC continue to advance 2010. A statement issued by the themthat have to spend greater more time time flexibility, at home. and In gender equality, so that in the face United States Equal Employment other words, women accumulate less of past gender discrimination, the Opportunity Commission (EEOC) human capital because they choose future of women will indeed differ claimed that Snyder and other female from history. employees “were subjected to a required to receive a salary equal to double whammy of discrimination. thatto notof their pursue male counterparts. the qualifications They were paid a lower hourly wage and regularly scheduled for The second theory, known as the Sources

fewer work hours than their male “Discrimination Theory,” puts the 1“EEOC Sues Checkers for Pay Discrimination,” U.S. Equal 2 6 Employment Opportunity Commission (2014), http://www. counterparts.” Such allegations, blame on employers. It suggests eeoc.gov/eeoc/newsroom/release/8-12-13.cfm. (Accessed if proven to be true, will mean that that employers’ prejudices lead to April 2, 2014). 2“Everything You Need to Know about the Equal Pay Act,” Checkers violated a number of federal differential treatment of female Re:Gender (2014), http://www.regender.org/EqualPayAct1. laws that prohibit these actions.3 employees, often before a woman’s 3Ibid. 4“Equal Pay Act - Part 2,” re:gender (2014), http://www. actual employment begins. A similar regender.org/EqualPayAct. 5Ibid. Pay discrimination based relationship is often seen in racial 6

Ibid. REVIEW SPRING 2014 BU PRE-LAW

5 DOMA Strike Down The Results and Repercussions By Jennifer Bourne CGS ’14, CAS ’16

n 2007, two female residents of New York were legally married in Ontario, Canada. Edith

marriage was legally recognized by the state of New York. I Windsor and Thea Spyer finally wed after many years of romantic partnership, and their When Spyer died, she left her estate striking down DOMA where he said, must that individual compensate or to Windsor. This is an act that many “The laws of our land are catching up reimburse those individuals for their heterosexual couples do without to the fundamental truth that millions actions? One of the main hardships scrutiny. However, Windsor was of Americans hold in our hearts: when with the overturning of DOMA is the required to pay $363,053 in federal all Americans are treated as equal, no essential creation of a new set of laws estate taxes in order to acquire the matter who they are or whom they for many situations that the federal estate. For any heterosexual couple in love, we are all more free.”2 Obama’s and district courts have yet to face. the same situation, the spouse would statement showed his administration For every action there is a reaction. qualify for an unlimited spousal was supporting actions toward Although the LGBT community has deduction, and would not have to pay equalizing the rights of the gay made many strides in earning equal federal estate taxes. community. Many Americans believe rights, many questions still remain that this decision is a step in the unanswered. Conversely, Windsor could not right direction, however, we can qualify due to section three of the extend even more rights to support Defense of Marriage Act (DOMA), homosexual individuals. which claims that the terms “spouse” and “marriage” can only be applied While helping the situation of to partnerships between a man and a gay couples in the United States, woman. Windsor argued that section the overturn of DOMA surprisingly 3 of DOMA denied the liberty of the increased limitations on the gay community. There are new issues, amendment of the U.S. Constitution. which have never been considered person protected under the fifth regarding nursing home care, After cycling through the District immigration, and estate planning. For Court and the Court of Appeals, the example, “LGBT elders are more likely to be single, childless and live alone. Court of the United States, where They may rely on a ‘chosen family’ theycase finallyfound madesection it to 3 the of Supreme DOMA and be estranged from their original unconstitutional by a 5-4 decision family. Accusations of elder or on June 26, 2013.1 This decision now grants the states the right to may be used against a same-sex decide whether or not to legally allow partnerfinancial or abuse chosen and family.” undue3 Prejudices influence gay marriage, which could also be can be used against gay individuals or recognized for federal tax purposes. they can be taken advantage of easily in the case of estate planning. Now, Sources This decision provided the gay courts must learn how to cope with community with the acceptance these “chosen families” and decide 1United States v. Windsor, 570 U. S. ___ (2013). 2 of basic human rights that were the rights for those individuals. the President on the Supreme Court Ruling on the Defense ofBarack Marriage Obama. Act.” Office (2013). of http://www.whitehouse.gov/the Press Secretary, “Statement by previously withheld from them. In doma-statement.

addition, President Barack Obama For example, if a chosen family 3Pamela Maclean. “DOMA’s demise brings new challenges.” released a statement in support of housed a gay individual for safety, ABA journal. (2013). http://www.abajournal.com/magazine/

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW article/domas_demise_brings_new_challenges/

6 Religion v. Due Process The Changing Attitude of Guaranteed Freedoms By Hannah Fikar “could result in unintended and gay rights, due process appears CAS ’15 negative consequences.”5 She noted more important now than religious the parallel values of religious liberty freedom. While some may feel a and non-discrimination,6 stating threat to their religious liberty by n February 2014, the Arizona that the two values remain equally serving gays and lesbians in their legislature passed SB 1062 fundamental. establishments, the importance of to amend the 1999 Religious due process seems to outweigh these Freedom and Restoration With similar bills in the works, beliefs in the public’s eye. If a person including a Kansas bill with analogous provides a service to the public, they I 1 goals,7 religious freedom appears cannot use their religious beliefs to Act. The bill clarified several only serve certain people. meaningdefinitions of fromthe theword previous “person” Act. to discrimination and due process of law. includeThese clarifications“any individual, expanded association, the Theless Kansasimportant bill or also less allows justifiable any entity than partnership, corporation, church, to refuse to “provide any services, religious assembly or institution, accommodations, advantages, estate, trust, foundation, or other legal facilities, goods, or privileges”8 based entity.”2 on religious beliefs. Since the bill failed to reach the state senate, it The bill’s language expands the base provides another example of the for who can assert a claim of religious potentially waning importance of freedom. The key issue surrounds a religious freedom when compared to person’s ability “to act or refusal to act due process. in a manner substantially motivated by a religious belief,”3 and thus could Since these types of religious permit subjective discrimination or freedom bills have been failing to other unfavorable behavior. Many pass despite laws forbidding same- citizens feared this bill, if not vetoed sex marriage, due process appears by Governor Jan Brewer, would justify more important or easier to justify. discrimination of gays and lesbians. No remedy for discrimination without due process exists as it does with Gov. Brewer indeed vetoed the same-sex marriage, since the latter bill in light of last year’s Supreme can rely on domestic partnerships Court decisions regarding same-sex and civil unions to provide many of marriage. In Hollingsworth v. Perry, the United States Supreme Court this reason, religious liberty bills Justices found the petitioners lacking maythe samestruggle benefits to balance as marriage. freedom For of the necessary standing to refute religion and due process, partly due to challenges to California’s Proposition its increasing importance on both the 8.4 While that case concerned matters state and national levels. of due process, it brings to light new Sources

questions about discrimination also In sum, Arizona’s SB 1062 failed 1Center for Arizona Policy. “Center for Arizona Policy: Protecting the Family | Preserving Our Future,” Religious touched on by the Arizona bill. to pass amendments to an already Freedom Restoration Act: SB 1062, Accessed March 10, 2014. http://www.azpolicy.org/bill-tracker/religious-freedom- existing act protecting religious restoration-act-sb-1062http://www.azpolicy.org/bill-tracker/ Gov. Brewer’s comments about freedom. Similar failures in other religious-freedom-restoration-act-sb-1062 2Arizona House of Representatives. 51st Legislature, 2nd SB 1062 focused more on the due states, in line with the Supreme Regular Session. SB 1062, Exercise of religion; state action, 2014. process aspects of the bill and less on Court’s thinking in 2013 gay rights 3Ibid. the elements of religion. In a press cases, highlight the importance 4Hollingsworth v. Perry. 570 U.S. ___ (2013). conference just after the veto, she of due process to protect against 5“SB 1062 – Press Conference: Remarks by Gov. Jan Brewer,” Governor Jan Brewer, Press release, February 26, 2014. claimed that the bill failed to “address discrimination over the need for 6Ibid. religious liberty. In line with the 7Kansas House of Representatives, HB 2453, Religious Freedom Act, 2014. to religious liberty in Arizona” and nation’s changing attitude about 8

Ibid. REVIEW SPRING 2014 BU PRE-LAW a specific and present concern related 7 Asylum for the LGBT in the United States: A Safer Haven

By Marabi Madrigal prosecution or disproportionate LGBT individuals, the applicant punishment for a criminal offense; must provide proof that pervasive CAS ’16 serious discrimination and economic persecution exists, and that future persecutions, serious criminal persecution will continue, which is onditions in countries extortion or robbery.”3 For members often demonstrated by the inability around the world are often of the LGBT community, who cannot to safely relocate to another area of inhospitable, and when the country of origin.5 citizens of a country are in nationality, or political opinion, danger and fear for their thebe definedmain claim by a singleto asylum race, religion,is the As the number of LGBT asylum Csafety, asylum in the United States discrimination faced because of applications has more than tripled is an option sometimes extended to association with a particular social since 2003, courts have adjusted to these immigrants. This is especially group. meet the needs of these individuals, true for individuals of the LGBT community, who whether gay, According to United States lesbian, bisexual, or transgender face Citizenship and Immigration Services oftenbut have exclude also individuals narrowly defined and force the discrimination from their peers, their (USCIS), in order for people to be themdefinition to return of persecution, to the inhospitable which can society, and many times, even their eligible for asylum, they must be home country conditions they were own families. physically present in the U.S. and seeking to escape. apply within one year after their When a citizen of a country or one date of entry, unless there is proof who does not consider themselves of extraordinary circumstances. a citizen of any country feels he Any person applying for asylum is or she cannot protect themselves responsible for providing clear and under the laws of that country, these credible testimony, which can often people have the option of coming to be enough to prove a case, but must the United States and applying for provide any documentary evidence if asylum. Under the Immigration and available.4 Nationality Act, this person would be considered a refugee if he or she is In the case of an LGBT individual, “unable or unwilling to avail himself the applicant must establish that or herself of the protection of that independent of all other factors, country because of persecution or a the reason he/she was targeted well-founded fear of persecution on was primarily because of their account of race, religion, nationality, “membership” to the LGBT membership in a particular social community. Latin America, for group, or political opinion.”1 2 example, is riddled with drug and Sources gang-related activity, and all incidents 1 Different court decisions have of violence and discrimination an “Asylum Basics: Elements of Asylum Law”, ImmigrationEqual- http://immigrationequality.org/issues/law-library/lgbth-asy- individual suffers must be because ity.org,lum-manual/asylum-basics-elements-asylum-law/ last modified in 2006, persecution, but the broadest of status as an LGBT individual, as 2“8 U.S. Code § 1158—Asylum”, Law.Cornell.edu, http://www. law.cornell.edu/uscode/text/8/1158 ofdefined categories the exactthat normally meaning rise of opposed to being mere victims of the 3Ibid. to the standard of persecution systemic unsafe country conditions 4“Obtaining Asylum in the United States”, USCIS.gov, last re- viewed March 10, 2011, http://www.uscis.gov/humanitarian/ are those equivalent to: “Serious that plague all individuals. To refugees-asylum/asylum/obtaining-asylum-united-states physical harm, forceful medical or demonstrate systemic discrimination 5 in 2013, http://immigrationequality.org/issues/law-library/ psychological treatment, invidious or a pattern of discrimination against asylum-decisions/Asylum Decisions”, ImmigrationEquality.org, last modified BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

8 Stop and Frisk Policy Constitutional or Not? By Sydney Fondots in the Terry v. Ohio case.3 According to Judge Scheindlin, SMG ’14 he stop-and-frisk technique, made famous, when conducting searches because to police, minorities or perhaps infamous, by the New York City the police were using a “policy of indirect racial profiling” Police Department, has come under intense Scheindlin cited the Fourth Amendment, which protects scrutiny over the past year. Stop-and-frisk is Americansseemed like from “the “unreasonableright people” to searches stop. Specifically, and seizures Judge by the government.” Furthermore, she concluded it violated Tcontraband items on suspicious individuals who they the 14th Amendment, which provides equal protection for believe to posewhen a officerspotential search threat. for1 guns, drugs, and other everyone, despite race, gender, religion, etc. Therefore, she ordered police to start wearing body cameras to record Members of the Black and Latino communities, encounters with people being searched in order to ensure however, feel they have been unfairly targeted, and the 4

racial profiling was not occurring. “Judge Scheindlin ordered police to start wearing body cameras to record encounters with people being searched in order to ensure racial profiling was not occurring.”

data supports their claim. According to the American Due to the strong belief by Mayor Bloomberg, Police Civil Liberties Union of New York, 56% of New Yorkers Commissioner Kelly, and the NYPD that stop-and-frisk stopped were Black, and 29% were Latino. Besides the should not be changed, the City of New York decided to fact that minorities might be intentionally targeted, the appeal Scheindlin’s decision. Thus, in October 2013, effectiveness of the program is also unclear, considering a the Court of Appeals for the Second Circuit rejected reported 88% of people stopped were innocent.2 However, Scheindlin’s decision on the grounds that she was not New York City has also seen dramatic drops in murder and impartial. Now, the changes set forth by the judge are other crime rates over the last decade. Therefore, there being delayed, thus the city is continuing the program as it was before, especially since the case has not yet been outweigh the harmful results, which is making minority closed. In the meantime, the City’s government, now Neware doubts Yorkers about feel as whether though they the are benefits being treated of the programunjustly. under the new Mayor Bill de Blasio, has agreed to follow This controversy over whether stop-and-frisk is fair, and the reforms set forth by Scheindlin’s decision.5 more importantly, constitutional, is what caused the stop- The constitutionality of the New York City Police Department’s controversial stop-and-frisk policy has not and-frisk policy to first be tried in court. yet been formally decided. One might believe that if it has contested in U.S. District Court in August 2013. The been correlated with a drop in the city’s crime rates and the attorneyThe constitutionalityrepresenting the ofNew stop-and-frisk York Police Department was first idea of stop-and-frisk was already ruled as constitutional argued that the technique has caused the city to see in 1968, then it should be continued. On the other hand, some of its lowest crime rates in years. Additionally, another possible point of view is the fact that innocent they attempted to justify the disproportionate amount people are being stopped and hassled just because of their of minorities stopped by citing the fact that the majority of crimes committed in New York are done so by young Black and Hispanic men. In the end, the judge, Shira criticrace is of discriminatory. the program and Therefore, will likely the push final to decision change infuture this rulings.case is difficult to predict, especially since de Blasio is a to be unconstitutional, but rather she believed the way inScheindlin, which police did notwere find targeting the idea minorities of stop-and-frisk for searches itself Sources frisk-data. was inconsistent with the freedoms provided by the U.S. 3Terry v. Ohio, 392 US 1 (1968). 1 Pervaiz Shallwani, “New Commissioner 4 Constitution. Aims to Police New York ‘Responsibly.’” The Joseph Goldstein, “Judge Rejects New York’s Wall Street Journal, January 2, 2014. Stop-and-Frisk Policy.” The New York Times, August 12, 2013. 2 “Stop-and-Frisk Data| New York Civil 5 Apparently, the constitutionality of stop-and-frisk itself Liberties Union (NYCLU),” American Civil Benjamin Weiser and Joseph Goldstein, Liberties Union, accessed March 9, 2014, “Mayor Says New York City Will Settle Suits had already been decided by the U.S. Supreme Court in 1968 http://www.nyclu.org/content/stop-and- on Stop-and-Frisk Tactics.” The New York

Times, January 30, 2014. REVIEW SPRING 2014 BU PRE-LAW

9 Balance the Imbalance: US v. UK By Katherine Peluso CAS ’15 Libel Law he American legal system is comprised of many On the other hand, British Common Law is governed by very different standards regarding libel. Traditionally, of law.1 Though many facets of the U.S. legal Common Law has supported the right to reputation more systemlevels ofheavily codified rely and upon un-codified ancestral practicescommon intensely than the freedom of speech and press. In recent law,2 there is one area of the American legal years, articles have come out criticizing British libel Tsystem today that has forged a new path — libel. Libel and slander are grouped under one larger umbrella of debate. A 2009 article in The Guardian argues that “In defamation law — libel being the publication of false alaws democracy…laws in regard to the shouldfreedoms encourage, of speech notand scientificpenalize, statements, while slander is a spoken false statement vigorous debate and investigative reporting…lawsuits damaging an individual’s reputation. almost universal jurisdiction.”8 Though the First Amendment to the Constitution are stifling the spirit of inquiry…British libel laws claim traces its roots back to English Common Law, years Parliament responded to these attacks by drafting the “Defamation Act” in 2013. It aims to readjust imbalances origins.3 These changes have made libel law one of the in defamation laws and “to ensure that a fair balance is of modification have distinguished it from its English struck between the right to freedom of expression and the protection of reputation.”9 The new requirements moreIn difficult1960, fieldsthe New to practice York inTimes U.S. courts. ran a full-page ensure that claimants must show the level of seriousness advertisement criticizing the police department before suing for defamation. The Act also introduced a of Montgomery, Alabama.4 Montgomery Police new defense for “responsible publication on matters of Commissioner L. B. Sullivan was outraged by the attack public interest,” meaning that published information and decided to sue the paper over reputation damages affects public opinion, and those defamation claims may outlined under U.S. libel laws. When it turned out that be dismissed.10 some of the ad’s claims were false, the Alabama Supreme Court ruled in favor of Sullivan. This led the NYT to appeal The balance board tips from end to end between libel the case to the U.S. Supreme Court (New York Times Co. v. laws in the U.S. and U.K. The U.S. tips toward a defendant’s Sullivan).5 There they argued that the ad had not intended to hurt Sullivan or the police department’s reputations, the U.K. tips towards a plaintiff’s case. These imbalances and that the newspaper was protected under its First incase the making scales proofof justice of intent suggest difficult that perhapsto corroborate, it is time while for Amendment rights. The Times subsequently won its both legal systems to re-converge on this point and create equilibrium between the freedom of speech and the protection of reputation. Both the defendant and claimant showcase, addingthat what a new was clarification said against to themthe First was Amendment made with in a defamation case should be fairly represented by each actualstating malice.” that “in6 order to prove libel, a public official must nation’s legal standards governing libel and slander suits — the scales of justice must not be imbalanced. This “proven malice” gives an advantage to the defense in a U.S. libel case. In order to prove actual

malice, prosecutors must corroborate that libel’s source Sources 5Ibid. 6Ibid. 7 knowingly asserted false statements about the claimant 1Stephen Elias and Susan Levinkind. Legal Ibid. Research: How to Find & Understand The 8 with a reckless disregard for the truth and with the Law, 14th ed. (Berkeley: Nolo, 2005), 22. 2Ibid. intention of substantially damaging the claimant’s Guardian,Roy Greenslade. sec. Greenslade “Britain’s Blog, libel June laws 4, stifle 2009, 3 7 Norman F. Cantor. Imagining the Law: freeaccessed speech March and scientific13, 2014. debate.”http://www. The reputation. U.S. libel laws have set a very high bar for a Common Law and the Foundations of the theguardian.com/media/greenslade/2009/ American Legal System, (HarperCollins jun/04/press-freedom-medialaw. claimant’s case because in order to prove actual malice, Perennial: 1999), 352-81. 9Parliament of the United Kingdom: they require plaintiffs to testify against the defendant’s 4Federal Judiciary, “United States Courts,” Parliamentary Business, Defamation Act of 2013, April 2013, Accessed March 12, state of mind regarding their “intentions,” which can be March 14, 2014, http://www.uscourts. 2014, http://services.parliament.uk/ Lastgov/multimedia/podcasts/Landmarks modified March 4, 2014, Accessed / bills/2012-13/defamation.html. highly speculative. 10Ibid.

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW NewYorkTimesvSullivan.aspx.

10 D e fi n i n g a P a r e n t i n the Eyes of the Law By Merissa Pico him a “parent” under the Indian Child COM ’15 Welfare Act of 1978 (ICWA).8 Thus, isolated phrase; “continued custody.” “Baby Girl” and her father are made was too narrow in its definition of the n 2011, the South Carolina subject to the laws under the ICWA, who have never had physical or legal Supreme Court removed a two- which bars termination of parental custodySuch a definition of their children,excludes allregardless parents year-old, “Baby Girl,” from the rights unless there is evidence that of their commitment as a parent.15 care of her adoptive parents’ serious harm to the Native American In her broader interpretation, Justice home.1 They were the only child is likely to result from the parent’s Sotomayor stated that the biological Iparents the girl had ever known. Yet “continued custody” of the child (25 the Court decided to award custody U.S.C. 1912 (f)).9 Additionally, the Act to her biological father, even though requires remedial efforts be made to afather parent had as “any clearly biological qualified parent… as a he had previously relinquished his prevent the “breakup of the Indian ofparent an Indian under child.”the ICWA, §1903(9). which defines16 She family,” (1912(d)), while providing went on to say that the majority contributions during the pregnancy preferences for adoption of Indian incorrectly extends the prior custody toparental support rights the andbiological made no mother, financial to children to extended family, members logic to the other sections of the bill, whom he was not married.2 of the tribe, and other Indian families, where Justice Sotomayor argued (1915(a)).10 it did not apply. This then isolates The girl’s adoptive parents the ICWA to only apply to a certain Supreme Court Justice Samuel subset of parents: those who have emotional support to the biological Alito delivered the majority opinion had previous custody of the child. motherprovided during both her pregnancy. financial 3 They and of the Court’s ruling, arguing that This exclusivity defeats the purpose also cared for, supported and raised the biological father did not qualify of the bill, which is to keep Native the child for two years. After Baby for protection under the ICWA, American families intact. Girl’s birth, the biological mother stating that it calls upon the “parent’s relinquished her parental rights and ‘continued custody’ of the child.”11 Adoptive Couple v. Baby Girl is a consented to the adoption.4 The In this case, the Court found that the landmark decision, as it sharpened adoptive couple then served the biological father never had custody biological father with a notice of called attention to the obstacles pending adoption, and the biological relinquished his rights before the ofthe dealing definition with of afederal “parent” law andin birth,of the childand in“made the firstno place,meaningful as he conjunction with state law. Finally proceedings, sued for custody, and attempts to assume his responsibility and most importantly, the decision won.father5 filedSeeking for toa stayoverturn of the the adoption State’s of parenthood.”12 Therefore, sets the precedent for future Native decision and regain custody of the “continued custody” fails to exist, as American children custody cases; child, the adoptive couple appealed there is the absence of pre-existing and on a more personal level, it to the United States Supreme Court in legal or physical custody. According awarded the adoptive couple custody 2013. In Adoptive Couple v. Baby Girl, to Alito, the ICWA was being misused, of Baby Girl, whom they raised since the Supreme Court ultimately decided because this was a voluntary and she was born. in favor of the adoptive couple in a lawful adoption initiated by non- narrow 5-4 decision.6 Native American parents.13 Adversely, Sources 9Adoptive Couple. 570 U.S. the ICWA’s purpose is to stop the 1Adoptive Couple v. Baby at 6. Under South Carolina State Law, dissolution of Native American Girl. 570 U.S. (2013). 10Ibid. 2Adoptive Couple. 570 U.S. 11Adoptive Couple. 570 a biological father does not have the families, which was not the case here. at 4. U.S. at 8. 3Ibid. right to object to an adoption, as his 12Adoptive Couple. 570 4Adoptive Couple. 570 U.S. U.S. at 4. consent is not needed if he provided In her dissenting opinion, at 5. 5Ibid. 13Adoptive Couple. 570 U.S. Justice Sonia Sotomayor called the at 10. 7 6Adoptive Couple v. Baby pregnancy. In this case, however, majority ruling’s opinion an “illogical Girl. 570 U.S.(2013). 14Adoptive Couple. 570 no financial support during the 14 U.S. at 3. the biological father is a member of piecemeal scheme.” Justice 7Adoptive Couple. 570 U.S. the Cherokee Nation, and Baby Girl Sotomayor further argued that the at 20. 15Ibid. 8Adoptive Couple. 570 U.S. 16Adoptive Couple. 570 is 1.2% (3/256) Cherokee, making majority’s interpretation of the statute U.S. at 4. at 1. REVIEW SPRING 2014 BU PRE-LAW

11 Uganda’s Anti-Homosexuality Law

By Ivana Bikombe CAS ’16 n February 24, 2014, Ugandan President Yoweri Musevini signed the now notorious Anti-Homosexuality Bill into law. The law makes same-sex relations in Uganda a Ocriminal offense. The “Kill the Gays Bill,” as it was in the engagement of gay sex.2 serious problems for Ugandan once referred to, has been a source of citizens, passage of the new Act controversy since its introduction in While the new law provides a has also created some potential 2009. Prior to signing, it was dubbed legal penalty for homosexual acts, issues for the whole of Uganda. the “Kill the Gays Bill,” as it sought the LGBT community in Uganda With the passing of the bill, many the death penalty for certain acts of also faces severe discrimination international organizations that homosexuality, such as “aggravated in the country. Occasionally, the had been assisting Uganda have homosexuality.” Protests from both community is threatened with been inclined to withdraw financial LGBT groups in Uganda and in the violence. Even before the bill’s support as a means of protesting international community eventually passing, LGBT Ugandans have the law. This loss of support, led to the clause being removed, but feared for their lives. With the which Uganda has relied on for the name stuck with the bill.1 passage of this bill, many “closeted” years, will have a negative impact

“Many will be unable to find homes, as the law has made it illegal to even rent apartments to those who are suspected to be gay.”

The new Act goes into specific homosexual Ugandans have been on the economy while leaving the details regarding the many legal outed in the media, putting them in government in turmoil over how to repercussions convicted persons can harm’s way. Making LGBT support fix these problems.4 face if they commit a homosexual and education providers subject to act. One of the more serious punishment by law has created a Sources 1Gregory Warner, “Uganda Passes Passes Anti-Gay Bill punishments is life in prison, which situation in which members of the that Included Life in Prison,” National Public Radio, December 20, 2013, http://www.npr.org/blogs/paral- can be doled out for a variety of LGBT community are now less able lels/2013/12/20/255825383/uganda-passes-anti-gay-bill- offenses, including having gay sex to safely access healthcare as well that-includes-life-in-prison. 2“Ugandan President Yoweri Musevini Signs Anti-Gay Bill,” with a minor or having sex if one is as other health-related resources. British Broadcasting Company, February 24, 2014, http:// HIV positive. Many punishments Many will not be able to even find www.bbc.com/news/world-africa-26320102. from the pre-existing laws, however, homes to rent, as the law has made 3Vanessa Kerry, “Uganda’s Anti-Gay Law and Media Outings http:// have also remained intact. These it illegal to even rent apartments to law-and-m_b_4913487.html. 3 Threaten Everyone,” Huffington Post, March 6, 2014, include life imprisonment for those suspected to be gay. www.huffingtonpost.com/vanessa-kerry/uganda-antigay- 4“Uganda: Anti-Homosexuality Law Will Come at a anyone involved in a same-sex Serious Cost,” Human Rights Watch, http://www.hrw. org/news/2014/02/19/uganda-anti-homosexuali- marriage, as well as anyone caught While the bill has created ty-law-will-come-serious-cost. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

12 Sexual Assault: Injustice in the Middle East

By Ian Rollins CGS ’14, CAS ’16 mina al Filali was forced by her family to marry the man who raped her, after being advised by the prosecutor that it was a preferable option over pursuing her rape case. Seven months later, in March 2012, after being disowned by her family for complaining of physical abuse at the hands of her husband, Amina drank rat poison and died. She was Ajust 16 years old.1

Following her death, protests Rape victims did not receive much erupted and public outcry demanded to an extramarital affair.8 King sympathy from the courts, as the that the Moroccan government Abdullahto influence of theSaudi case Arabia and she only admitted agreed blame was put on them and not on repeal Penal Code Article 475, which to save the “Qatif Girl” by granting a the perpetrator of the crime. Those allowed rapists to escape punishment pardon in December 2007 following days, however, are long gone, and if both sides agreed to a marriage nationwide protests and international victims of rape are recognized as just between victim and attacker.2 The condemnation.9 legal age for marriage in Morocco that the same cannot always be said is 18,3 notwithstanding that, judges Unlike Amina al Filali and the Qatif inthat the — Arab victims. world; It is it a will terrific take shame some can grant exceptions for minors in Girl, victims of rape in the United time for these countries’ laws to special cases.4 Amina was pressured States generally receive much better evolve to protect the victims of rape into marrying her rapist husband as treatment from the courts. They are and sexual assault. a “special case.” The protests and seen only as the victim in the eyes of international coverage resulting the law. Under federal law, women’s from Amina’s death ultimately led rights pertaining to sexual assault take the government to repeal Article 475 form in the Violence Against Women Sources almost two years later, in January 1“Moroccans call for end to rape-marriage laws,” Al Jazeera, 5 10 March 17, 2012, accessed March 5, 2014, http://www.alja- 2014. 1994. The Act was an attempt by the zeera.com/news/africa/2012/03/2012315134325471675. html. FederalAct (VAWA), government first signed to “improveinto effect the in 2Aida Alami, “Morocco Slow to Enforce Laws on Women’s This story, while tragic, is one that criminal justice response to violence Rights,” The New York Times, April 10, 2013, accessed March 5, 2014, http://www.nytimes.com/2013/04/11/world/mid- is fairly common for victims of sexual against women” through a variety dleeast/morocco-slow-to-enforce-laws-on-womens-rights. html?_r=0. assault in the Arab world. Another of ways, including providing better 3Anis Maghri, “In Morocco, the rape and death of an example of this happened six years protection for victims and holding adolescent girl prompts calls for changes to the penal code,” UNICEF, At a Glance: Morocco, March 28, 2012, accessed prior to Amina’s death, when a 19 assailants accountable for the crimes March 6, 2014, http://www.unicef.org/infobycountry/moroc- 11 co_62113.html. year-old woman was gang-raped they committed. Also, each state 4Ibid. outside her village in Eastern Saudi is permitted to enact its own laws 5“Morocco repeals ‘rape marriage law,’” Al Jazeera, accessed March 5, 2014, http://www.aljazeera.com/ Arabia. She and a male friend, whom regarding the protection of victims news/africa/2014/01/morocco-repeals-rape-mar- riage-law-2014123254643455.html. she had gone to meet, were held at of sexual assault and how they, and 6“Rape case brings Saudi laws into focus,” NBC News, Novem- gunpoint and driven to an isolated their attackers, are to be dealt within ber 21, 2006, accessed March 6, 2014, http://www.nbcnews. com/id/15836746/ns/world_news-mideast_n_africa/t/rape- location, where seven men sexually the courts. All of these state laws, case-calls-saudi-legal-system-question/#.UyW97tyu8ZY. 7Ibid. assaulted the woman.6 however, recognize the victim as the 8“Saudi rape victim ‘having affair,’” BBC News, Novermber 26, wronged party. 2007, accessed March 6, 2014, http://news.bbc.co.uk/2/hi/ middle_east/7112999.stm. In court, the rapists were punished. 9Katherine Zoepf, “Saudi King Pardons Rape Victim Senc- The woman, however, was surprised There was a time in the United tenced to Be Lashed, Saudi Paper Reports,” The New York Times, December 18, 2007, Acessed March 6, 2014, http:// when she herself was sentenced to States when the climate surrounding www.nytimes.com/2007/12/18/world/middleeast/18saudi. html. 90 lashes.7 Her sentencing was later a woman claiming rape was to 10“Factsheet: The Violence Against Women Act,” The White increased to 200 after she and her blame the woman, assuming that the House, accessed March 6, 2014, http://www.whitehouse.gov/ . husband attempted to use the media woman somehow had “asked for it.” 11Ibid. sites/default/files/docs/vawa_factsheet.pdf REVIEW SPRING 2014 BU PRE-LAW

13 Bellum pro Humanitate? Killing or Letting Die By Ramzi Nia two that any relief actions with an individuals of a society are deprived CAS ’15 impartial humanitarian dimension of basic protections, which are in would not be considered a hostile principle insured by sovereign states. he concept of humanitarian Therefore, failure to provide such intervention gradually and would, therefore, be allowed by protection strips nation-states of their emerged into international theact orarmed interference forces inof armedboth conflictsparties.3 legitimacy and sovereignty, which legal discourse as a further consolidates the theory of a consequence of the eventually lead to further policy “just war.” This concept was initially Tatrocities of the Biafran War in changes.The insufficiency In December of this 1988, protocol the theorized by Hugo Grotius – a Dutch Nigeria. From 1967 to 1970, Nigeria General Assembly adopted the jurist – in his book On the Law of was plunged into a civil war due to a Resolution A/RES/43/131, which War and Peace, published in 1625. secession movement led by the Igbo appealed “to all States to give their He demonstrated that war violates People. support to these organizations the natural law that applies to all working to provide humanitarian individuals and nations. To Grotius, In the beginning of the war, assistance...to the victims of natural war could only become legitimate and humanitarian assistance was disasters and similar emergency legal if it is waged for a “just” cause organized under the banner of the Red situations.”4 Eventually, other such as the protection of populations, Cross and UNICEF along with other resolutions authorized emergency or the sanctioning of states that Non-Governmental Organizations corridors, thus granting more power encroach on fundamental laws. (NGOs) through airlift operations to the advocates of humanitarian Grotius wanted to develop an ethic of and with the promise of neutrality intervention, but without conceding war that would integrate the human and equity regarding the provisions an explicit right to intervene. variable into any bellicose equation. of food supply.1 The Nigerian Regrettably, the crusaders of the “just” government, however, soon forbade This legal loophole has permitted causes have rarely served his ideal. the airlift to Biafra. Media hype was counter-restrictionists to dexterously Instead, they engaged in the pursuit then organized along with dissident argue in favor of a right to intervene of national interests through the organizations such as Oxfam to by referring to the vagueness of design of imperialist policies based denounce the ‘’genocidal’’ situation, customary international law and the on cultural and economic preferences. which ultimately allowed the Red Cross UN Charter.5 Counter-restrictionists Thus, one could easily question the to reinstate the airlift. This reckless usually resort to the Chapter VII of the veracity of the concept of “just” war. decision was widely recognized as an UN Charter to launch a humanitarian, War is one of the two instruments of or even a military intervention, once power along with language or speech. about 180,000 deaths.2 The omerta serious violations of human rights When the political discourse no longer thatignominious was then fiasco, observed which by occasioned the NGOs had been proved to endanger the resonates, cannons make it so. As it was shattered by a group of French international peace and security. was said by Niccolò Machiavelli, “there Doctors, who in 1971 founded Other counter-restrictionists argue Médecins Sans Frontières. These that customary international law is ambitious doctors were convinced the only legal basis that one can use isare that two of methods men, the of fighting,second ofthe beasts.” one by that the fate of the Biafrans would to make a case for such interventions. Warfarelaw, the other is an by instinctualforce: the first aspect method of have been worse without such Unlike the universal principle of human nature, but more importantly, “valiant” dissidence. They laid peremptory norm (jus cogens), it is the it ‘’is merely the continuation of policy the groundwork of what would be state practice of a rule that determines by other means.”7 referred to as le sans-frontiérisme–the its customary norm. International 6 Sources International Committee Of doctrine that advocates the virtue of jurists refer it to as opinio juris. Such The Red Cross, http://www. 1Allen, T. and Styan, David, “A icrc.org/applic/ihl/ihl.nsf/ interventionism and that would pave counter-restrictionists have, indeed, right to interfere? Bernard Article. xsp. Kouchner and the new the way for a new alliance between the many precedents that can appealed humanitarianism,” Journal of 5Bellamy, Alex J. and International Development Wheeler, Nicolas. “ Wheeler UN and NGOs. to if they ever need to legitimize their (2000) Humanitarian Intervention 2Ibid in World Politics.” The warlike actions. Globalization Of World 3“Humanitarian assistance to Politics, edited by John Baylis, In June 1977, the Protocol victims of natural disasters Steve Smith & Patricia Owens, and similar emergency 512-525. New York: Oxford Additional to the Geneva Conventions The apostles of interventionism situations,” United Nations, University Press, 2011. http://www.un.org/ 6Ibid of 1949 (Protocol I) brought certain have also made a moral case for the documents/ga/res/43/ a43r131.htm. 7Carl von Clausewitz, “What Is innovations to international law. It right to intervene. They justify the War?’’ In On War, trans. Col. J.J. 4“Protocol Additional to Graham. London: Kegan Paul, stipulated in paragraphs one and necessity of interference when the the Geneva Conventions,” Trench, Trubner & C., 1918. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

14 The Merits of Net Neutrality By Andrew Keuler CAS ’17 the Internet market and in society as a either make society economically whole with or without Net neutrality. better or worse off, again depending on the particular circumstances.”5 he Internet is a vital In the absence of enforced Net Given this uncertainty, some would component of modern life, neutrality, ISPs that serve residential argue that preference should be given affecting everything from consumers can charge content to the avoidance of Net neutrality how we communicate to providers such as Google or Yahoo regulation until it can be proven to how we conduct business. more for the ability to provide their be necessary and effective. TIn the Internet market, individual content to consumers at a reasonable consumers, businesses and content This argument does not hold that want to develop content on the water, however, because no pay Internet Service Providers (ISPs) Internet,speed. This making would itraise harder costs for for smallfirms government regulation can be likeproviders Comcast such or as Verizon Google to or use Netflix the Internet. solution. The prospect that Net startup firms to enter the market and neutralitydefinitively might proven mitigate to be behavior the best Until recently, the Federal Yahootherefore would stifle be innovation.less-threatened Large by Communications Commission (FCC) Internet startups firms such and ascould Google become or compelling. While optimal outcomes enforced a regulatory concept called even more powerful. ISPs could also mightby ISPs be that more could likely stifle ininnovation the short- is Net neutrality on the Internet. Net raise prices on consumers, decreasing term without Net neutrality, past neutrality is “the restriction that the number of consumers who will experience has shown the innovation Internet service providers cannot pay for Internet access. that Net neutrality allows for often directly charge content providers for leads to better outcomes in the access to consumers.”1 Under Net On the other hand, the extra long-term. Ultimately, however, neutrality, your ISP cannot charge revenue ISPs receive from content more research must be done to Google for the ability to provide its providers could lead to lower prices determine whether Net neutrality is content to you. Likewise, you cannot and expand their customer base. the appropriate regulatory schema be charged extra money by your ISP The infrastructure necessary to for the Internet. In the meantime, to access the content of a particular offer Internet access to customers is however, the FCC ought to consider website. According to the FCC, “the expensive; an expectation of greater whether it should rework its goal of net neutrality is to … ensure regulatory framework so as to be that no one can restrict innovation on of expanding this infrastructure able to legally enforce Net neutrality the Internet.”2 In short, the rationale andprofits bring might more justify consumers to ISPs theonline. cost and possibly avoid the unnecessary for Net neutrality is to create the Furthermore, eliminating Net proper environment to allow for neutrality has the possibility of innovation through development of stifling of Internet innovation. new Internet content. by prioritizing the speed of data transfer.increasing Those efficiency who need of the to Internettransfer In the recent case of Verizon v. FCC, information quickly will pay more to which was decided in January 2014, do so and those who do not, will not.4 the Washington, D.C., U.S. Court of Whether Net neutrality improves Appeals agreed with Verizon and or worsens outcomes for society ruled that the enforcement of Net depends on various factors. Sources

neutrality by the FCC constituted 1Nicholas Economides and Joacim Tag, “The Economics of Network Neutrality,” Information Economics and Policy 24 overreaching by the FCC given its Nicholas Economides and Joacim (2012): 91-104. 3 established regulatory framework. Tag, two economists who specialize 2“Open Internet,” Federal Communications Commission, Net neutrality would no longer be accessed 13 Mar 2014, http://www.fcc.gov/openinternet. 3Verizon Communications Inc. et. al. v. FCC. 535 U.S. 467, required in the Internet market. this uncertainty. They found that “in (2002). Given this judicially mandated change generalin information network economics,neutrality can confirm both 4Nicholas Economides, “The Economics of the Internet” in in policy, we should consider whether increase or decrease total surplus, The New Palgrave Dictionary, 2007. 5 better outcomes can be achieved in which means that Net neutrality can Economides and Tag. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

15 Bitcoin and the Law: A New Frontier for the Digitalexchanges, Currency as it relates to the liability By Dustin Vandenberg person to verify that “block” is awarded of the exchanges for the protection and CAS ’15 25successfully Bitcoins, verifywhich, the depending block. The on firstthe tracking of transactions. One of the value of Bitcoins, could be worth many largest Bitcoin exchanges, MtGox, was itcoin has captured the thousands of dollars.1 These coins can attacked and robbed of about 850,000 world’s attention. It is a then be exchanged on various Bitcoin Bitcoins (valued around $468 million). new currency, unattached to exchanges online for hard currency This attack stems from a vulnerability any government, and based at rates, which depend on the market in the design of MtGox’s Bitcoin sale purely on cryptographic value of Bitcoins at that time. and transfer software, rather than any Bprotocols and online exchanges. aspect of the Bitcoins themselves5; While the concept of Bitcoin is however, the attack still jarred the However, with its unregulated rather straightforward, there are many nature, Bitcoin has brought up a range legal questions that come with an a viable currency. A new class-action of legal questions, which will take time unregulated, digital currency. Current confidence of investors in Bitcoin as to sort out both within the United laws on counterfeiting currencies under decision of which has the potential to States and abroad. The ways in which Title 18 U.S.C. §§470-483 and 485- clarifysuit has the been questions filed against of who MtGox, is liable the Bitcoins can be seized, tracked, and 489 do not currently apply to digital for the protection of Bitcoins, and to sold legally are in the process of being currencies.2 This is because these what extent Bitcoin be trusted as a laws relate to counterfeiting of money, valid currency. The claimants argue provide guidance on the legal future of which is backed by the U.S. government that MtGox was not only negligent in digitalclarified, currency. as new court cases promise to or a foreign entity. Because Bitcoins protecting the Bitcoins, but actually are not connected to any government, was involved in a conspiracy to illegally Before examining the legal there is no central authority to prevent transfer coins and use the vulnerability precedent and current cases dealing their counterfeiting. In addition, as a means to cover their tracks while with Bitcoin, it is important to because Bitcoins are exchanged by declaring bankruptcy.6 This suit can understand the general principles websites that do not directly involve impact the ways in which exchanges under which Bitcoin operates. of Bitcoins is also an unclear legal to the federal government, which is a Bitcoin is a digital currency, which area.any financial One of institutions, the primary the incentives taxability cornerstonemust report their to the activities viability and of findings Bitcoin was introduced in 2009. Besides of Bitcoin use is its anonymity, which as a long-term investment. Without the paying various online vendors with disables the ability of the IRS to track security of knowing that exchanges can Bitcoins, people can also use them as and tax digital income.3 However, this be trusted, it is hard to tell what future an investment device. Investors may is not to say that the U.S. government scandals may drastically alter the purchase Bitcoins with the hope that has no authority to regulate Bitcoins Bitcoin market, creating an extremely their monetary value will increase, when they are related to illegal activity volatile currency. much like any other currency. The (like the purchasing of drugs online). currency is based on complicated The FBI has been active in exercising Sources 1Bitcoincharts, “Bitcoin Charts/Markets.” http://bitcoincharts. calculations related to cryptography, its authority to seize Bitcoins as part com/markets/. which controls the rate at which new of investigations, as they currently own 2Craig K. Elwell, M. Maureen Murphy, and Michael V. Seitzinger. 4 “Bitcoin: Questions, Answers, and Analysis of Legal Issues.” Con- Bitcoins are created and distributed; 5% to 10% of all Bitcoins. gressional Research Service. no. R43339 (2013). https://www. for this reason, it is commonly called a fas.org/sgp/crs/misc/R43339.pdf. 3Robert A. Green. Forbes.com, “The Tricky Business of crypto-currency. This highlights the lack of clarity Taxing Bitcoin.” 12 03, 2013. http://www.forbes.com/sites/ greatspeculations/2013/12/03/the-tricky-business-of-taxing- with how Bitcoins are treated by the bitcoin/. Essentially, Bitcoin “miners” U.S. government; on one hand, they are 4Peter Coy. Bloomberg Businessweek, “How the Feds Can Take Even Legally Earned Bitcoins.” 02 18, 2014. http://www. can verify and record all payments outside the scope of counterfeiting and businessweek.com/articles/2014-02-18/how-the-feds-can- made using Bitcoins in a large public tax laws, while on the other hand, they take-even-legally-earned-bitcoin. 5Lucian Constantin. PC World, “Bitcoin-stealing malware hidden ledger referred to as a “block.” The remain subject to seizure in the case of in Mt. Gox data dump, researcher says.” 03 17, 2014. http:// www.pcworld.com/article/2109000/bitcoinstealing-malware- process of verifying this ledger takes criminal investigations. hidden-in-mt-gox-data-dump-researcher-says.html. a large amount of computing power. 6Geuss Megan. Arstechnica, “MtGox class-action suits in US and Canada allege fraud, drag in Japan’s Mizuho Bank.” 03 15, 2014. Various miners compete for each One particular case has the http://arstechnica.com/tech-policy/2014/03/mtgox-class- action-suits-in-us-and-canada-allege-fraud-drag-in-japans- mizuho-bank/. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

“block,” attempting to be the first to potential to define the future of Bitcoin 16 TheLibor FreeRigging amongst Market the Top at World Work: Banks By Daniel Rollins investor’ claims, as they were based CGS ’14, CAS ’16 the Thomson Reuters data collection in antitrust law. In support of that service,specific, thesewhere rates each are morning determined global by lower court decision, Stephen Breyer, any people claim banks submit their borrowing costs the Associate Justice of the Supreme that society today to this collective agent, who then Court, validated that decision by is run by one thing: calculates Libor by discarding the stating, “Allowing an antitrust lawsuit greed. Individuals and highest and lowest 25 percent of would threaten serious harm to the corporations alike are submissions and then averages the Mwilling to do whatever is necessary to remaining rates.3 Additionally, there market.”6 make a “quick buck.” In the West, the are numerous Libor rates for the efficient functioning of the securities most clear-cut example of this greed So far, a few banking institutions, is seen in the current Libor rigging international market, in particular including Barclays PLC and UBS, have lawsuit Federal Deposit Insurance U.Svarious dollars. currencies For that reason that flood it is used the paid around $6 billion to resolve Corporation, et al. v. Bank of America as a point of reference by U.S. capital criminal charges in the U.S. and Corp, et al. markets to determine the maturity Europe. On a more positive note, there have been reforms to curb this type of behavior by banks, such as it is on the March 14, 2014, claims that benchmarkdates – the interest final payment rate. The extent date for of now a criminal offense in the United 38 Thefailed aforementioned banks were defrauded suit, filed by thesea financial maturities apparatus can range – anywhere for each Kingdom for one to deliberately make some of their larger international from as suddenly as overnight to as false or misleading statements in counterparts. The Federal Deposit long as one full year. Undoubtedly, relation to benchmark-setting under Insurance Corporation (FDIC) has by trading Libor rates at a lower the Financial Services Act 2012.7 taken up the case for these banks by cost, many of these banks’ balance As of 2014, Euronext will be taking sheets gave the illusory impression over the reins of the administration of New York against 16 multinational of Libor from the British Bankers bankingfiling suit inconglomerates, the Federal District including Court healthier than they appeared to Association, which should help stop Bank of America, Citigroup Inc. be.that This, estimated in turn, figures has resulted were in much the the situation from occurring again. and Barclays PLC.1 If found guilty, bolstered prices of bonds and other these banks will be convicted of securities.4 Clearly there was harm done. From manipulating the Libor benchmark, investors to small banks, many were which affected countless securities In a statement released by the affected on some level or another. worldwide. The London Interbank FDIC, a spokesperson claimed “the Nevertheless, the world will be watching closely to see if any criminal as Libor, has allegedly been used certain swaps contracts they had activity can actually be linked to these inOffered manipulating Rate, identified the market by many in enteredglobal financialinto with institutions the now-closed broke large banking institutions. favor of these big banks, using this banks, by separately colluding to rig the Libor rate to which the contracts 4 5 Sources Paul Craig Roberts and it off at an advantageous price. The were tied.” Elaborating on the Nomi Prins, “The Real 1Nate Raymond and Aruna Libor Scandal ~Paul Craig FDICbenchmark claims to thatturn afrom profit 2007-2011 and trade allegations, the plaintiffs claim that Viswanatha, “U.S. regulator Roberts and Nomi Prins,” sues 16 banks for rigging PaulCraigRoberts.org, the organizations sitting on the U.S. they were charged extensive fees for Libor rate,” Reuters, March July 14, 2012, accessed 14, 2014, accessed March 15, March 22, 2014, http:// dollar Libor panel were collusively Libor-based products in return for 2014, http://www.reuters. www.paulcraigroberts. 2 com/article/2014/03/14/ org/2012/07/14/the-real- suppressing U.S. Libor rates. In lower interest payments from the us-fdic-libor- libor-scandal/. idUSBREA2D1KR20140314. order to fully understand the gravity defendants. In doing so, they faced 5Nate Raymond and Aruna 2Bob Van Voris and Jesse Viswanatha. substantial losses, which ultimately Hamilton, “BofA, Citigroup, Credit Suisse Sued by 6Robert Schroeder, “Supreme resulted in their dissolution. The FDIC over Libor Rigging,” Court limits investors’ ability Bloomberg BusinessWeek, to sue banks,” The Wall Liborof the rate.situation one must start by first defendants’ actions supposedly 2014, accessed March Street Journal, June 18, 2007, 15, 2014, http://www. accessed March 16, 2014, understanding the significance of the affected investors as well, and as a businessweek.com/ http://www.marketwatch. news/2014-03-14/bofa- com/story/supreme-court- Libor rates, essential to short-term result, the investors are suing with citigroup-credit-suisse-sued- limits-investors-ability-to- by-fdic-over-libor-rigging. lending, are a benchmark estimated the claim that they lost money as a sue-banks. 3Christopher Alessi, and 7Anthony Browne, “Libor result of the defendants’ actions. That Mohammed Aly Sergie, now has a new administrator “Understanding the Libor – but our reforms have gone in London. They allow other banks being said, the federal judge hearing Scandal,” Council on Foreign much further | City A.M.,” July Relations, December 5, 2013, 11, 2013, March 22, 2014, toby borrow the leading funds financial from the institutions London the case prior to it coming to the accessed March 22, 2014, http://www.cityam.com/ http://www.cfr.org/united- article/libor-now-has-new- interbank money market. To be more Supreme Court dismissed many of the kingdom/understanding- administrator-our-reforms-

libor-scandal/p28729. have-gone-much-further. REVIEW SPRING 2014 BU PRE-LAW

17 Living and Dying Under Death with Dignity Intepreting the laws in Oregon, Washington, and Vermont By Ryan Knox and capable of making medical These statutes limit physician- SAR ’16 decisions. The doctor must diagnose assisted suicide to terminally ill the patient, check for mental illnesses patients and protect them from As the title for an end-of- that could inhibit the patient’s being forced into physician-assisted life care program, “Death ability to make informed decisions, suicide. Two studies in The New with Dignity,” conveys and verify diagnoses with another England Journal of Medicine found both fear and honor. physician. If either physician deems that participation in the program Physician-assisted the patient incompetent, a licensed was not widespread, but was viewed Asuicide, also called physician- psychologist or psychiatrist must positively.7,8,9 Between 1998 and aid in dying, has been a point of evaluate the patient. 2007, only 541 people in Oregon controversy in the United States received a lethal prescription through since the case of Dr. Jack Kevorkian in To ensure informed consent, the the Death with Dignity Program, and 1990, and it continues to play a role physician must explain the risks of only 255 individuals in Washington in medical ethics today.1 Despite the the medication, the probable result, did so between March 5, 2009, and moral debate, three states (Oregon, and alternative treatments, including December 31, 2011. These accounted Washington, and Vermont) have hospice care and pain control. The for only a small percentage of the passed laws legalizing physician- laws require that the physician deaths in the state, and families assisted suicide and protecting recommend the patient notify their surveyed responded positively to physicians who comply with set family and stress the patient’s right to the program. Although the results standards.2,3,4 By analyzing both change their mind at any time during of the Vermont legislation have not the laws and the outcomes of the the process. The process requires an been reviewed, the laws in Oregon programs in Oregon and Washington, initial verbal request, a second verbal and Washington provide examples of we can predict the possible results in request after a 15-day waiting period, a positive implementation of Death Vermont, where the law was passed and a written request signed by two with Dignity. in 2013. witnesses. At this time, the doctor must wait a minimum of 48 hours The current Death with Dignity before writing the prescription. The Sources 1Kurt Darr, “Physician-Assisted Suicide: Legal and Ethical programs permit only passive patient can then choose when to take Considerations,” Journal of Health Law 40. no. 1 (2007), 29-41, http://www.healthlawyers.org/Publications/ physician involvement, whereas the medication. The laws also allow Journal/Documents/Vol%2040%20Issue%201/Physician- Assisted%20Suicide-%20Legal%20and%20Ethical%20 Dr. Kevorkian actively assisted families to receive life insurance, Considerations.pdf. patients. The physicians in Oregon, which is not always possible in some 2The Oregon Death with Dignity Act. Or. Rev. Stat. §§ 127.800- Washington, and Vermont are only cases of suicide. 995 (1994 & Supp. 1997). 3The Washington Death with Dignity Act. Wash. Rev. Code § allowed to prescribe a lethal dose of 70.245 (2008). medication to a terminally ill patient The intent of these laws is a topic 4The Patient Choice and Control at End of Life Act.Vt. Stat. for self-administration.5 By removing Ann. tit. 18, § 39 (2013). 5“Physician’s Frequently Asked Questions,” Death with Dignity active physician involvement, the physician-assisted suicide and make it National Center. accessed March 7, 2014, http://www. laws differentiate Death with Dignity possibleof much forconfusion; a terminally while ill they individual define deathwithdignity.org/resources/physiciansquestions. 6“Physician Aid in Dying (PAD),” Vermont Ethics Network. programs from illegal acts, including to obtain a lethal prescription, the accessed March 8, 2014. http://www.vtethicsnetwork.org/ mercy killing, euthanasia, or lethal main purpose is to protect physicians pad.html. 6 7Robert Steinbrook, “Physician-Assisted Death- From Oregon injection. who prescribe the medication. While to Washington State,” The New England Journal of Medicine physicians are not required to provide 359, no. 24 (2008): 2513-2515, doi: 10.1056/NEJMp0809394. 8Elizabeth Trice Loggers, Helene Starks, Moreen Shannon- The laws in all three states set prescriptions for physician-assisted Dudley, Anthony L. Black, Frederick R. Appelbaum, and F. Marc Steward, “Implementing a Death with Dignity Program suicide, those physicians who act in at a Comprehensive Cancer Center,” The New England Journal of Medicine 368, no. 15 (2013): 1417-1424, doi: 10.1056/ assisted suicide. Patients must be compliance with these laws, either NEJMsa1213398. eligibility qualifications for physician- 18 years old or older, a resident of providing care or information, cannot 9Serena Gordon, “Physician-Assisted Suicide Program Rarely Used, Study Finds,” US News& World Report the state, diagnosed with a terminal be charged criminally or be punished April 10, 2013, http://health.usnews.com/health-news/ news/articles/2013/04/10/physician-assisted-suicide-, Last modified illness, and competent, or informed by employers or the licensing boards. . BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

program-rarely-used-study-finds?page=2 18 E-cigarettes: Public Health and Regulation

By Martin Yim CAS ’17 Recent News: The Philadelphia Mayor has signed a bill banning e-cigarettes in indoor public places.

n December 19, 2013, the New York City to be proposed by the FDA could include basic Council passed a new measure to add regulations on the construction of the E-cigarettes and E-cigarettes to the city’s Smoke-Free Air the nicotine liquids, as well as sales restrictions such as Act.1 The E-cigarette, otherwise known as Internet sales bans or age restrictions on purchases that the electronic cigarette, is an alternative to resemble normal cigarette regulation. Osmoking traditional cigarettes. It is a smokeless device Critics of stricter regulations believe E-cigarettes other chemicals such as propylene glycol (used in fog are a safer alternative to smoking, while advocates for machines)that heats that a vapor create containing the appearance nicotine, of flavoring,smoke.2 The and stronger regulation are concerned that E-cigarettes E-cigarette is relatively new to the market and has begun could become a public health hazard resembling to attract attention from both smokers and regulators. cigarette usage.7 E-cigarettes are an emerging product and the debate over their public health impact and Many municipalities and states in the United States whether there is a necessity for regulations to treat have added E-cigarettes to existing smoking regulations.3 it like traditional smoking will be an ongoing issue as Outside of the United States, Britain has taken steps E-cigarettes become more widespread.8 to regulate the sale of E-cigarettes to young people for public health reasons, while other countries have followed suit with various other types of regulations.4

The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the authority to regulate tobacco products and dictate what products are under its jurisdiction, which now includes E-cigarettes. The FDA website explains there have not been enough studies Sources to understand the full public health implications that 1Curtis Skinner, “New York City Council Votes to Add e-Cigarettes to Smoking Ban | Reuters.” Reuters, 2013, http://www.reuters.com/article/2013/12/20/us-usa-ecigarettes-newyo- E-cigarettes will have, and that only E-cigarettes labeled rk-idUSBRE9BI0JM20131220. as being for “therapeutic purposes” are currently under 2Megan McArdle, “E-Cigarettes: FDA Regulation Looms for $1.5 Billion Industry - Business- week.” Businessweek, 2014, http://www.businessweek.com/articles/2014-02-06/e-ciga- regulation. The FDA plans to extend regulation to all rettes-fda-regulation-looms-for-1-dot-5-billion-industry, (hereafter cited as Megan McArdle, 5 Businessweek). E-cigarettes in the near future. 3Ibid.

4Tim Ross, “E-Cigarettes to Be Banned for Under-18s.” The Telegraph, 2014, http://www. telegraph.co.uk/health/healthnews/10597446/E-cigarettes-to-be-banned-for-under-18s. Preventing issues such as lack of oversight in html. the production of E-cigarettes and other consumer 5“Public Health Focus - Electronic Cigarettes (e-Cigarettes).”, Center for Tobacco Products, safety concerns are factors in the FDA’s push towards 2014, http://www.fda.gov/newsevents/publichealthfocus/ucm172906.htm. 6Monique Williams, Amanda Villarreal, Krassimir Bozhilov, Sabrina Lin, and Prue Talbot, regulation. Researchers discovered that during use “Metal and Silicate Particles Including Nanoparticles Are Present in Electronic Cigarette Cartomizer Fluid and Aerosol.” PLoS ONE 8 (3): e57987. doi:10.1371/journal.pone.0057987. of one brand of E-cigarettes manufactured in China, http://dx.doi.org/10.1371%2Fjournal.pone.0057987.

nano-particles of tin found their way into the vapor, 7Megan McArdle, Businessweek. 6 suggesting poor quality control. Regulations expected 8Dr. Thomas Underwood gave assistance to the author in the writing of this piece. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

19 Cetacean Safety: The Movement for their Freedom By Daniella Young Bloom posited, in a written are less than one ten-thousandth of CAS ’14 statement to David Kirby, journalist one percent the size of the species’ and author of ‘Death at SeaWorld,’ natural home range,” shared Dr. Rose.8

popular and critically continued captive display of orcas for Besides prohibiting the public acclaimedargely influenced documentary by the entertainment“there is no purposes.” justification Ahead for theof display of orcas, the bill would exposé Blackfish1, released a press conference, Bloom declared require orcas currently in captivity at the Sundance Film “these beautiful creatures are much in California to be retired to sea LFestival in January 2013 and to the too large and far too intelligent to be pens. The only orcas in captivity in American public the following July, California are owned and kept by the growing movement surrounding their entire lives. It is time to end the SeaWorld San Diego. Of these 10 marine mammal rights is gaining practiceconfined of in keeping small, concreteorcas captive pens for orcas, seven were born in captivity traction with U.S. lawmakers. human amusement.”6 and cannot be expected to survive in the open sea. The legislation dictates California Assembly member Similar, though less effective that they would be permanently Richard Bloom (D-Santa Monica) efforts have been made to outlaw the retired in a netted-off sea-pen recently introduced the California captivity of marine mammals in the sanctuary the public could visit.9 Orca Welfare and Safety Act. If passed, U.S. In 1992, South Carolina made it

“Typical orca enclosures are less than one ten-thousandth of one percent the size of the species’ natural home range.” Dr. Naomi Rose Marine Mammal Scientist

the act would make it illegal to “hold illegal to hold dolphins and porpoises The act would not apply, however, in captivity, or use, a wild-caught or in captivity, and in February 2014, to orcas held for rehabilitation or captive-bred orca for performance New York Sen. Greg Ball (R-Carmel) research. or entertainment purposes.”2 It introduced a bill to ban Orca captivity would also ban the capture of orcas in that state. Since California has many in California’s waters, the import and more orcas than South Carolina and export of orcas in and out of the state, New York, the California bill would have a far greater impact on the future Sources orcas.”3 Violators would be punished of captive marine mammals.7 1 - and the artificial insemination of lia Pictures. Film. Gabriela Cowperthwaite. Blackfish. 2013. CNN Films/Magno months in prison.4 Bloom was assisted by Gabriela 2“Orca Welfare and Safety Act”. (AB 2140, 7 March 2014) 3Ibid. with a $100,000 fine and/or up to six Cowperthwaite, the director of 4Ibid. The Act (Assembly Bill 2140), Blackfish, and Dr. Naomi Rose, marine 5David Kirby. “SeaWorld’s Worst Nightmare: Calif. Lawmaker to Propose Ban on Orcas in Captivity.” Take Part, March 6, introduced on March 7, 2014, would mammal scientist at the Animal 2014. Accessed March 10, 2014. Web. 6Ibid. Welfare Institute, in writing the 7Ibid. bill. They also joined him at a press 8Naomi Rose. “Landmark Legislation Introduced in California to Ban Orca Captivity.” Animal Welfare Institute, March 7, includingbe the first Chile, of its Costa kind Rica, in the Croatia, United conference on the Santa Monica 2014. Accessed March 10, 2014. Web. Hungary,States. At and least India, five have other outlawed countries, all Pier to announce it and explain its 9David Kirby. “Saving the #SeaWorld10: If Calif. Bans Orca Captivity, What Happens to the SeaWorld Whales?” Take Part, cetacean captivity.5 importance. “Typical orca enclosures March 12, 2014. Accessed March 12, 2014. Web. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

20 Cape Wind Blows Away

Recent News: Opponents Cape Wind has successfully fought off lawsuits and plans to start construction

wholesale rates, which violates the Federal Power Act as By Stella Sy well as the Supremacy Clause of the U.S. Constitution.6 SMG ’16 On March 14, 2014, United States District Judge Reggie B. Watson ruled against Cape Wind opponents.7

farm, on Horseshoe Shoal in Nantucket Sound, The Alliance to Protect Nantucket Sound believes there pendingape Wind construction.will be America’s Some first offshorefunding windhas are other alternatives to Cape Wind. The alternatives been secured for this project and government they suggest are to relocate the wind farm to the outer regulations have been followed; however, the continental shelf, use hydropower from Quebec, use CAlliance to Protect Nantucket Sound, an umbrella group for 8 Although they have suggested alternatives, there have Cape Wind. The several lawsuits were a challenge for the notnatural been gases, plans orto move use floating this project turbines to another farther location offshore. or projectdozens however,of Cape Wind Cape opponents, Wind has already has filed seen lawsuits support against from change the design of the project. the Obama administration, various environmental groups, and the Massachusetts state government.1 Recently, Cape This project will require $2.5 billion to build the proposed wind farm. An agreement with the Bank of Tokyo-Mitsubishi UFJ has been signed for a portion of the Wind has won all of the lawsuits filed against them. concept includes a wind farm that will include 130 wind PensionDanmark, has also agreed to invest $200 million. turbinesCape Windthat waswill firstproduce proposed 420 inmegawatts 2001. The of projectclean, Inproject’s addition, debt the financing. Danish state-owned The Danish export pension credit company, agency renewable energy.2 Each turbine will tower 440 feet EKF has approved of a loan pending due diligence of $600 above water across a 25-square-mile area between Cape million, according to Cape Wind President Jim Gordon.9 Cod, Martha’s Vineyard and Nantucket.3 This project Since Cape Wind has successfully fought off the recent could provide three-quarters of the Cape and Islands’ pending lawsuits, the project can continue to seek the electricity needs.4 remaining, necessary funding to start construction. environment because wind energy releases no pollution into the air or water, Furthermore, and does not it will contribute be beneficial to climate to the change. Sources

Opponents of this project do not want Cape Wind to be 1Gale Courey Toensing, “Cape Wind Battle Continues as Foes File New Lawsuit - ICTMN. com,” Indian Country Today Media Network.com, N.p., 18 Feb. 2014, Web. 12 Mar. 2014, http:// built because the turbines will be an eyesore, hurt summer new-lawsuit-153564. tourism, decrease property values, increase costs on indiancountrytodaymedianetwork.com/2014/02/18/cape-wind-battle-continues-foes-file- 2Cape Wind: America’s First Offshore Wind Farm on Nantucket Sound,” Cape Wind: America’s energy bills, and pose environmental threats by injuring First Offshore Wind Farm on Nantucket Sound, N.p., n.d. Web. 11 Mar. 2014, http://www. capewind.org/index.php. migratory birds or causing pollution from leaks in the 3Gale Courey Toensing, “Cape Wind Battle Continues as Foes File New Lawsuit - ICTMN. com,” Indian Country Today Media Network.com. N.p., 18 Feb. 2014, 12 Mar. 2014, http:// lawsuit against Massachusetts’ regulators on January 21, new-lawsuit-153564. 4Ibid. 2014,installation. by the OneAlliance of the to many Protect lawsuits Nantucket filed wasSound. a federal They indiancountrytodaymedianetwork.com/2014/02/18/cape-wind-battle-continues-foes-file- 5Cape Wind Opponents File Federal Lawsuit Against Mass. Regulators,” CBS Boston, Asso- claimed that the state had overstepped its authority when ciated Press, 22 Jan. 2014, Web, 12 Mar. 2014, http://boston.cbslocal.com/2014/01/22/ . it made an agreement for a major utility company, NSTAR, 6Ibid. cape-wind-opponents-file-federal-lawsuit-against-mass-regulators/ to buy power from the project, Cape Wind.5 Because of 7Mark Rodgers, “Cape Wind Wins Major Legal Victories: Cape Wind: America’s First Offshore Wind Farm on Nantucket Sound,” Cape Wind Wins Major Legal Victories: Cape Wind: America’s this deal, electricity costs, after Cape Wind is built, will First Offshore Wind Farm on Nantucket Sound, N.p., 14 Mar. 2014, Web. 14 Mar. 2014, http:// www.capewind.org/news1349.htm. triple for those living in the vicinity of Cape Wind. As a 8The Alliance to Protect Nantucket Sound | Save Our Sound | Environmental Organization foundation for the lawsuit, the opponents claimed that Dedicated to the Long-term Preservation of Nantucket Sound | Nantucket, Marthas Vineyard, Cape Cod, MASS, MA,” The Alliance to Protect Nantucket Sound | Save Our Sound | Environ- the state regulars have exceeded their authority by setting mental Organization Dedicated to the Long-term Preservation of Nantucket Sound | Nantucket, Marthas Vineyard, Cape Cod, MASS, MA. REVIEW SPRING 2014 BU PRE-LAW

21 An Examination of Mandatory Minimum Sentences

By Evan Bailey CAS ’15

or a number of years, several important individuals and organizations involved in the American judicial system, such as the American Civil Liberties Union have come forward to F denounce the use of mandatory minimum sentences in American law. One of the more appealing aspects of this claim is its economic facet. This argument starts with the premise set mandatory minimum sentences, as they can take the that the United States has one of the highest conviction timethese to requirements. gather and review Instead, the the relevant legislature data is in best order fit to rates in the world.1 Next, it takes into consideration assign the most appropriate sentence to each crime. that more than half of the federal prison population in 2010 was made up of people convicted of drug-related Moreover, many of the alternatives that the opponents offenses.2 Opponents also cite studies suggesting that of mandatory minimum sentences recommend, such as counseling or rehabilitation, can be incredibly expensive length of the sentence that the individual must serve. depending on the particular circumstances. Thus, these Sentencesa significant increased factor of at the the U.S. same incarceration time that mandatoryrate is the options would not necessarily save the government minimum sentences began to be widely implemented.3 money as claimed by opponents. Finally, the opponents of mandatory minimum sentences point out the high cost of incarceration in the U.S., which The debate is really just beginning, as more and more is about $29,000 per inmate per year at the Federal level. people begin to take notice and pick sides. So it is far Abolishing mandatory minimum sentences would save from over. This debate is still developing and is currently the government money, as judges would not be forced to evolving from a practical standpoint regarding the way sentence every offender to prison.4 the American legal system functions and into a more theoretical perspective about the relationship between Supporters of mandatory minimum sentences make the legislative and executive branches of government a number of theoretical arguments regarding the role of and the theory of law in American society. the legislature, as they argue they are most apt to decide minimal possible sentences. However, one of the most effective arguments in favor of the use of mandatory minimum sentences is not a theoretical argument, but a practical one.

Backers of mandatory minimum sentences point out

claim to provide, judges sentencing offenders would havethat into order be able to getto thegive benefits the best that sentence their opponents to each offender. However, this would require the judges to have an intimate understanding of each case, as well as the knowledge to determine what sentences, other than incarceration, would be appropriate, such as court- mandated rehabilitation, counseling, etc. Sources

The reality is that judges see many cases at the same 1Roy Walmsley. “World Prison List, 8th Edition.” International Centre for Prison Studies. 2Kamala Mallik-Kane, Barbara Parthasarathy, and William Adams. Examining Growth in the time, and that the cases they see, especially jury trials, Federal Prison Population, 1998 to 2010. Washington, D.C.: Urban Institute, Justice Policy Center, 2012. can take an inordinate amount of time. Therefore, it is 3Ibid. not reasonable to expect every judge to be able to meet 4

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW Jesselyn McCurdy. “Two Steps Forward, One Step Back.” ACLU. 2014.

22 MurderThe Question in the Firstof Juveniles Degree By Rachel DuShey COM ’14 oeun Sok was 15 years old when he chased and fatally stabbed a rival gang member in Low- ell, Mass.1 He sobbed at his trial, which his parents did not attend.2 January 2014 marks his 15th year in jail, 3 making the number of years he has lived in jail equal to the number he’s Nlived out of jail. Both he and the victim’s family believed he would stay in jail until the day he died. Now, he has a chance of getting out.

The Supreme Judicial Court of Massachusetts (SJC) recently ruled that it is unconstitutional to sentence time, is irretrievably depraved.”11 with confidence that a particular offender, at that point in without the possibility of parole, citing “cruel and unusual The U.S. Supreme Court ruled that life without parole punishment”juveniles who from commit the first-degreeEight Amendment. murder4 to The life law in jail is was unconstitutional in the case of Miller v. Alabama, retroactive, affecting Sok and more than 60 others who involving a 14-year-old who murdered his neighbor were convicted as juveniles in Massachusetts.5 First- 12 The degree murder used to carry a mandatory life-sentence Massachusetts SJC ruled in two unrelated cases involving without parole for juveniles, as it does for adults.6 However, after17-year-olds: beating Gregory him and Diatchenko, setting fire who to killed his trailer. a man while since the U.S. Supreme Court struck down mandatory life trying to rob him in Kenmore Square in 1981, and Marquise sentences for juvenile murderers in 2012,7 states across Brown, who shot and killed a friend in Framingham in the nation are reforming their laws. 2009.13 Other state courts that are debating the issue are Illinois, Pennsylvania, and Florida, in which the law has not The consequences on both sides are drastic: those who been applied retroactively.14 commit a horrible crime at a young age can get a second chance at life beyond bars, while family members of those Currently, juvenile murderers in Massachusetts must slain could eventually see their loved one’s murderer walk serve 15 years in jail before being considered for parole.15 free. The retroactive nature of the decision is especially Some are pushing for legislature to require a 35-year term controversial, as Erin Downing, the daughter of murder before parole eligibility.16 In this case, only three of those victim Janet Downing, explained: “It’s rehashing all of convicted as juveniles would be immediately eligible to these emotions, all these things from 17 years ago that we apply.17 Of them, Joseph Drayton has served the most time thought we wouldn’t have to deal with.”8 in jail, 40 years, since being sentenced in 1974.18

The law is of special interest since the well-reported case

of Phillip Chism, a 14-year-old who allegedly murdered his Danvers teacher’s murder.” The Boston 24-year-old teacher, Colleen Ritzer, at Danvers High School Sources Globe. December 4, 2013. last October.9 Chism is said to have followed the teacher 10 1Commonwealth v. Noeun Sok. decision on juvenile parole.” Wicked Local, into the women’s bathroom, slit her throat, and carted her Ipswich.Burgess. February “Families 28, fighting 2014. Updated to amend March SJC 2Sarah Favot, Kirsten Berg, and Jenna Ebersole. 4, 2014. body in a recycling bin to the woods nearby. Rape charges “Our Youngest Killers.” New England Center for 11 Investigative Reporting. December 27, 2011. Schweitzer and Levenson. “Mass. SJC bars were also brought against him. The Ritzer family statement no-parole life terms for youths.” The Boston 3Patrick Garvin. “Massachusetts juveniles Globe. December 24, 2013. says of Chism and the potential for his eventual parole, “he convicted of murder.” The Boston Globe. 12 January 4, 2014. Miller v. Alabama, 10-9646. U.S. 1 (2012). must never, ever have an opportunity for parole. Paroling 13 4Sarah Schweitzer and Michael Levenson. Schweitzer and Levenson. “Mass. SJC bars such violent offenders would be more cruel and unusual “Mass. SJC bars no-parole life terms for youths.” no-parole life terms for youths.” The Boston The Boston Globe. December 24, 2013. Globe. December 24, 2013. 10 punishment to victims’ families and loved ones.” 14 5Garvin. “Massachusetts juveniles convicted of Erik Eckholm. “Juveniles Facing Lifelong murder.” The Boston Globe. January 4, 2014. Terms Despite Rulings.” The New York Times. January 19, 2014. 6 The law cites “cruel and unusual punishment” based on Schweitzer and Levenson. “Mass. SJC bars no- 15 parole life terms for youths.” The Boston Globe. Schweitzer and Levenson. “Mass. SJC bars research that the brains of juveniles are not as developed December 24, 2013. no-parole life terms for youths.” The Boston 7Ibid. Globe. December 24, 2013. 16 as those of adults, and therefore they should not receive 8 H1426. House Docket, No. 2123. Filed on the same punishments. The SJC wrote, “because the brain SJC decision on juvenile parole.” Wicked Local, January 17, 2013. Ipswich.Anna Burgess. February “Families 28, 2014. fighting Updated to amend March 17 4, 2014. Garvin. “Massachusetts juveniles convicted of a juvenile is not fully developed, either structurally or of murder.” The Boston Globe. January 4, 9 2014. Travis Andersen. “Teen pleads not guilty in 18

Ibid. REVIEW SPRING 2014 BU PRE-LAW

functionally, by the age of eighteen, a judge cannot find 23 applications.8 This lawsuit concerned LeRoy Peoples’ unwarranted and disproportionate sentence of 780 days in segregation with another prisoner as punishment for non-violent and non-threatening misbehavior.9 Solitary However, the lawsuit’s scope also encompassed the thousands of inmates in New York’s prisons who Confinement had suffered similar mistreatment. Calls to Reform Will Keep Prisoners Since March 6, 2013, the case has been amended to include all individuals from Standing Alone incarcerated in other state prisons By Alexandra Mercer who are similarly affected by policies CAS ’16 described why prisoner segregation permitting arbitrary use of solitary isConfinement. harmful, not only His to inmates, statements but 10 As a settlement to this also to the health and prosperity of lawsuit, in February 2014, New York incarceration has become a surrounding communities. Stating signedconfinement. and passed legislation banning nationalolitary confinementissue. during “the U.S. has more prisoners in punishment of disciplining inmates Recognized as Security democratic nation,” the Senator undersolitary age confinement 18” and “asfor a meanspregnant of SHousing Unit or Special notedsolitary that confinement this includes than vulnerable any other women, and restricted isolation Housing Unit (SHU), “lockdown,” groups such as children, immigrants, to a maximum of 30 days for the “isolation,” or “segregation,” solitary the sexually abused, and the severely developmentally disabled.11 mentally ill.3 Then, testifying to the isolating inmates in closed cells for psychological effects as heard at the While New York’s reform is 22-24confinement hours a isday, “the virtually practice free of First Congressional meeting, Durbin a precedent for other states in human contact, for periods of time reminded the committee that “at limiting solitary, it is only a small ranging from days to decades.”1 least half of all prison suicides occur step. If other states start to limit Solitary can occur in super-maximum 4 In addition security prisons, jails, or prisons. to self-harm, solitary “increases resistance from those who view violencein solitary inside confinement.” and outside prisons.”5 solitary as confinement, a viable option they to will improve meet In recent years, contention over Prisoners are often released directly safety for the guards and the general this issue has grown as reports and from solitary into the prison’s prison population.12 Nevertheless, lawsuits have surfaced detailing general population or even into their it will be interesting to witness how the horrors that often occur in the own residential communities. The effective New York’s legislation will murder of prior head of corrections be in persuading other states to limit usually measure no bigger than the in Colorado, Tom Clemens, is a prime sizesolitary of an confinement elevator.2 cells,These whichclose example of how hazardous it is to release solitary inmates directly into solitary confinement. foster the physical, emotional, and the public.6 accessed March 17, 2014, mentalquarters deterioration of solitary of the confinement restricted Sources http://solitarywatch.com/ facts/faq. inmates. Thus, while many may 1 Sal Rodriguez, “FAQ,” 8 Solitary Watch: News from a “Peoples v. Fischer (Chal- advocate the existence of solitary as abolition of this harmful practice, Nation in Lockdown, 2012, lenging policies governing In a final argument for the accessed March 17, 2014, an option for punishment, the national http://solitarywatch.com/ in New York’s prisons),” New facts/faq. useYork of Civil solitary Liberties confinement Union, debate has become more and more 2Ibid. accessed March 17, 2014, Durbin addressed the fiscal demands http://www.nyclu.org/ focused on the frequent application An individual in isolation costs three 3“Reassessing Solitary - of solitary confinement on the nation: lenging-policies-govern- of such a severe punishment. times more (an average of $75,000) Rights, Fiscal, and Public case/peoples-v-fischer-chal- Safety Consequences,” United ment-new-yorks-prisons. than an individual in the general Confinement II: The Human 9Ibid. States Senate: Committee 10ing-use-of-solitary-confine At the Senate Congressional population (about $25,000).7 on the Judiciary (2014), Ibid. accessed March 17, 2014, 11 http://www.senate.gov/ Martha Neil, “New York Hearing on Reassessing Solitary isvp/?comm=judiciary&- promises sweeping reform of - Spurred by congressional hearings y022514p. settle prison suit,” ABAJour- 4 nal (2014), accessed March type=live&filename=judiciarIbid. solitary confinement rules to Rights, Fiscal, and Public Safety such as this one, reforms regarding 5Ibid. 17, 2014, http://www.aba- Confinement II: The Human journal.com/news/article/ Consequences, Chairman Sen. 6 - new_york_promises_sweep- ment in U.S. Prisons Under - and maintained support across the form_in_settlement_of_acl/. Scrutiny”.“Use of Solitary Free Speech Confine Radio solitary confinement have gathered News (2014), http://fsrn. 12ing_solitary_confinement_re readdressed several issues relating nation. For instance, prompted by the org/2014/03/use-of-soli- DeLands, “The Debate Dick Durbin (D-IL) specifically - case of Peoples v. Fischer, New York ons-under-scrutiny/. National Sheriffs’ Association: Institute for Jail Operations, tary-confinement-in-u-s-pris Over Solitary Confinement,” has recently made unprecedented 7Sal Rodriguez, “FAQ,” accessed March 17, 2014, Solitary Watch: News from a http://www.jailtraining.org/ congressionalto solitary confinement,hearing on Solitary which gains on curbing isolation and its node/671.

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW Nation in Lockdown, 2012, had been discussed in the first 24 Type

the Czech Republic at the time, he stereotypes and having a fair trial By Janki Viroja was neither charged nor arrested for Blythe in which basis for his CAS ’16 following the investigation of Nosek’s conviction or acquittal would be death. Upon Lamb of God’s arrival simply on the facts, and not on iscrimination based on in the Czech Republic again, in 2012, assumptions. This proved to be more race, gender, and sexuality Blythe was arrested based on his is not a rare occurrence. possible connection to the death of the recent documentary on the case In many parts of the Daniel Nosek.4 calleddifficult “As than the imaginedPalaces Burn.” as revealed8 in world, discrimination Dbased on these characteristics does In society, perceptions of heavy In the end, Blythe was acquitted not surprise people. Countries metal artists are generally negative. of the charges. Even after the such as the United States have a Studies have found connections prosecution appealed, his acquittal basis in law for the prevention of between interest in heavy metal was upheld.9 The fact that this discrimination of this sort, but music and “reckless, life-threatening case became so controversial and instances of discrimination based on behaviors.”5 Because of these debated shows that stereotypes and race, gender, or sexuality still happen preconceived notions, many blamed discrimination still play a large role here as well. Blythe for murder even before in how the media and public opinion the trial. The action was seen as interpret legal cases today. However, many other countries, purposeful, and therefore, considered including the Czech Republic, which by many in the public as murder will be focused on later, have different instead of manslaughter. Blythe faced laws regarding discrimination. The more subtle forms of judgment and the stereotypes associated with heavy discrimination come from sources metalsignificant music. hurdles in this case due to that are less obvious. There is no law, per se, on not discriminating Further contributing to the negative against others based on their musical image of Blythe and the assumption preference, but that is exactly the of his guilt before trial were lyrics like issue at hand in the manslaughter those of the Lamb of God song “Break Sources 1Brian Kenety, “Lamb of God’s Randy Blythe acquitted of case of Randy Blythe. You:” “You taught hate, I’ll teach you manslaughter,” CNN Entertainment, March 5, 2013, accessed March 16, 2014, http://www.cnn.com/2013/03/05/show- fear/Open the eyes, kill despair/You biz/music/lamb-of-god-randy-blythe-acquitted-rstone/. 2Ibid. David Randall Blythe, better cannot squeeze the life from me/Son 3Ibid. known as Randy Blythe, is the of a bitch, I’m going to rape you/Son 4Greg Prato, “QA: Lamb of God’s Randy Blythe on Imprison- ment and Freedom,” Rolling Stone Music, August 10, 2012, singer for Lamb of God, an American of a bitch, I’m going to break you.”6 accessed March 16, 2014, http://www.rollingstone.com/ music/news/q-a-lamb-of-gods-randy-blythe-on-imprison- heavy metal band. In 2010, while These lyrics send a violent message ment-and-freedom-20120810. 5Carrie B. Fried, “Stereotypes of Music Fans: Are Rap and performing a concert in Prague, Czech and therefore, associate Blythe with Heavy Metal Fans a Danger to Themselves and Others?” Republic, Blythe pushed a young fan violent activities like the supposed Journal of Media Psychology 8, no. 3 (2003): 4. 6Lamb of God, “Break You,” AZ Lyrics, accessed March 16, – 19-year-old Daniel Nosek – off the murder of Daniel Nosek. As a result, 2014, http://www.azlyrics.com/lyrics/lambofgod/breakyou. html. stage.1 As a result of the push, Nosek many understood Blythe’s action of 7CZ: Anti-Discrimination Act,” European Network Against 2 fell backwards and hit his head. The pushing Nosek to be an attempted lastradainternational.org/news-publications/cz-anti-discrim- head injury caused severe trauma to murder. Traffickingination-act. in Human Beings, accessed April 3, 2014, http:// 8Jim Farber, “Lamb of God’s new documentary recounts hell- the brain, which led to Nosek’s coma ish tale of singer charged with killing a fan,” NY Daily News, February 28, 2014, accessed March 16, 2014, http://www. and eventual death in the following The Czech Republic has an Anti- nydailynews.com/entertainment/music-arts/lamb-god-docu- weeks.3 Discrimination Act to ensure equality mentary-tells-hellish-tale-article-1.1703945. 9Sean Michaels, “Lamb of God frontman breaks for all.7 The law is entrusted with silence after being acquitted of manslaughter,” The Guardian, March 8, 2013, accessed March 16, 2014, http://www. theguardian.com/music/2013/mar/08/lamb-of-god-randy- Because Blythe was no longer in the responsibility of removing blythe-relieved. BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW

25 If Prostitution were Legalized By Jaimie Potters CGS ’15 as sexual objects for their own material gain. Legalization would entail close government regulation and social, enerated by the impulsive aspect of human nature better known as temptation, prostitution effect. Of-age prostitutes with background checks and regulareconomic clinical and physicalvisits would health be benefits able to would independently ensue in for sex. Also known as the ‘world’s oldest take control of their bodies and sexuality and not have to profession,’is essentially this defined practice as the of exchangea woman of earning money depend on pimps. University of Chicago professor Martha Gmoney by bringing her customer a distinct, sexual pleasure on the matter in a New York Times editorial: “Keeping prostitutionC. Nussbaum, illegal author only of “Sexincreases and Social the threats Justice,” of reflectedviolence is farAs morereported complex in scholar than its Janell simple Caroll’s definition. Sexuality Now: and abuse that women face because illegality prevents Embracing Diversity, there are also gay, lesbian and adequate supervision, encourages the control of pimps and straight male prostitutes in the United States, but there are discourages health checks.”9 Indeed, legalization would more female prostitutes with male clients than all other allow law enforcement to arrest the true criminals, the sex forms combined.1 Even though prostitution is only legal in certain counties in Nevada, Business Insider estimates risk women. Prostitutes would be encouraged to report that there are one million prostitutes in the United States abusivetraffickers pimps, and pimpssomething who currentprey on prostitutionvulnerable, abused,laws deter at- today.2,3 Additionally, 14 percent of American men have them from doing. admitted to paying for sex at some point in their lives.4 An empirical analysis of street-level prostitution by Those who do not favor the legalization of prostitution the University of Chicago conducted in 2007 found that can look at Germany as a case in point to support their the current system (or lack thereof) gives prostitutes argument. In 2002, Germany legalized prostitution.5 an incentive to work with pimps: “Prostitutes who work Germany’s new laws on prostitution were designed so that with pimps appear to earn more, and are less likely to be arrested.”10 The study also found that “25 percent of payment and register for health insurance. Many consider the fees are taken up by the pimp.”11 Studies elsewhere itsex a workersfailure, as could only fill44 outwomen employment have registered contracts, for sue health for tell horror stories of pimps taking all of the earnings 6 This side also commonly argues in addition to being extremely abusive. Legalization that the legalization of prostitution does not protect womenbenefits and since that 2002. women in the sex industry do not want upon regular STD testing. The use of condoms would it legalized.7 The reality of the second point is that it is bewould mandated as well tobenefit prevent society the spreadas a whole of harmful as it would sexually call transmitted diseases and infections. so many prostitutes, their identities hidden and opinions unshared.difficult for such a consensus to be reached as there are Prostitution will continue to exist regardless of its illegal or legal status. The demand for sex and the economic Also, opponents of legalization fear that marriage incentive of selling one’s self for sex will remain, as it has would be threatened if prostitutes became more accessible existed for thousands of years. Legalization offers society as a consequence of legalization. According to Dorn a new way of addressing something that will not go away Checkley, the director of the Pittsburgh Coalition Against no matter how tight the legal bounds surrounding it, in Pornography: “Legalized prostitution will proliferate addition to potentially combating the huge issue of sex and gain legitimacy, just like pornography has, but legal and social acceptance will never ameliorate the negative Sources Life Site News, March 7, 2014, http://www. consequences to marriage… No one really likes to be trafficking. lifesitenews.com/blog/legalizing-prostitu- 1Janell L. Carroll, Sexuality Embracing tion-doesnt-protect-women-it-turns-sex-in- cheated on and no one really likes sexual competition… Diversity, Cengage Advantage Books, to-big-business, Accessed March 31, 2014. 2010, http://books.google.com/ 6Ibid. books?id=5f8mQx7ULs4C&pg=PA528&lp- [T]he consequences of broken marriages have profound 7 g=PA528&dq=more female prostitutes than 8 The effects the legalization male prostitutes&source=bl&ots=9FX- February 2, 2008, Accessed March 31, 2014, Kzj_VED&sig=yewa-5LGAEYB_gk_d8o- http://prostitution.procon.org/view.answers.ProCon.org, “Prostitution,” Last modified of prostitution would have on certain marriages and Anp_hznc&hl=en&sa=X&ei=aaQ5U66jK- php?questionID=000105. bHLsQSH9oLABg&ved=0CE4Q6AEwBQ. 8Ibid. relationshipsramifications tocould society.” be strong enough to cause their 9 2Gus Lubin, “There Are 42 Million Prostitutes Martha Nussbaum, “Ignore the Stigma of demise, as the temptation could be so much more easily In The World, And Here’s Where They Live,” Prostitution and Focus on the Need,” The New Business Insider, (2012): n. page, Accessed York Times, sec, The Opinion Pages, April and readily pursued. March 20, 2014, http://www.businessinsider. 19, 2012, http://www.nytimes.com/room- com/there-are-42-million-prostitutes-in-the- fordebate/2012/04/19/is-legalized-prosti- world-and-heres-where-they-live-2012-1. tution-safer/ignore-the-stigma-of-prostitu- 3Ibid. tion-and-focus-on-the-need, Accessed March 20, 2014. However, prostitution and its lack of regulation pose 4 Megan Gannon, “What Kind of Men Go to 10 a danger to society, as it enables abusive, manipulative Prostitutes?,” Live Science, Accessed March 20, Steven D. Levitt, and Sudhir Alladi Ven- 2014, http://www.livescience.com/28169- katesh, “An Empirical Analysis of Street-Level men-who-use-prostitutes.html. Prostitution,” accessed 20 Mar 2014, http:// economics.uchicago.edu/pdf/Prostitution 5Elise Hilton, “Legalizing Prostitution doesn’t 5.pdf. prostitutes from the law; abusing and exploiting women 11

BU PRE-LAW REVIEW SPRING 2014 BU PRE-LAW protect women, it turns sex into big business,” Ibid. pimps and traffickers to control prostitutes. Pimps shield 26 About the Boston University Pre-Law Review

The Boston University Pre-Law Review is a student-run law journal, open to all Boston University undergraduates. Founded in 1991, the Pre-Law Review has continued to foster awareness and provide commentary on major issues facing the law and the legal profession through its publication. The Pre-Law Review is published once per semester and features a wide range of topics, as our authors are given the freedom to write about anything as long as it pertains to the law.

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