26794 lpr_14-2 Sheet No. 1 Side A 06/29/2009 13:47:06 M K C Y lpr11-1_cv:tit_pg 12/18/2006 4:40 PM Page 1 (Black plate) 1 (Black 4:40 PM Page 12/18/2006 lpr11-1_cv:tit_pg 26794 lpr_14-2 Sheet No. 1 Side A 06/29/2009 13:47:06 06/29/2009 1 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 1 Side B 06/29/2009 13:47:06 M K C Y ’s PILR PILR is an innovative legal publi- is an innovative Elizabeth Nelson Elizabeth Luisi Danielle is edited and produced by Loyola students and is housed students Loyola by and produced is edited Loyola Public Interest Law Reporter Interest Public Loyola Staff Writers Staff EchiburuAna Maria Matthew T. Glavin HurwitzNoah Chantal KazayChristina Laga Mohammed Sameena LewisJason LienauJessica Christy O’Berry MetzingerBill MoorehouseJeremy Rafferty Lauren Advisor Faculty Clay Rehrig Chicago University Loyola J.D., Associate Professor, Henry Rose, Angie Robertson School of Law Tasch William Liz Winiarski Weed Jennifer Ann Weilbaecher The Service Law. Center for Public within the in 1995, Founded of articles the areas and news in offers feature developments of legal justice, criminal justice, the environment, human rights, economic and governance. a staff selected through addition to an editorial In of all aspects direct law students Loyola write-on process, and business management. graphics, production writing, research, Editor-in-Chief CarnellHolly Editors Features Senior Lesley ShermetaCerise Fritsch Editors News Senior Editor Managing EditorSymposium EganMargaret Purser Aaron Corinne Blank Assistant Editors Symposium Lindsey Keller Lindsay Dates cation that focuses on reporting the most current legal topics in a legal topics the most current focuses on reporting cation that and practitioners. students, educators to news directed format PILR \\server05\productn\L\LPR\14-2\boe142.txt unknown 1 Seq: 16-JUN-09 13:23 26794 lpr_14-2 Sheet No. 1 Side B 06/29/2009 13:47:06 06/29/2009 1 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 2 Side A 06/29/2009 13:47:06 CONTENTS of TABLE TABLE Morality Versus Vital Healthcare: Vital Versus Morality and Health Bush’s over The Debate Regula- Services’ Midnight Human tion Second Class Citizens: Illinois’ Class Citizens: Second and the Hospital Uninsured Rural Act Discount Patient Uninsured in Immigra- Standards Healthcare Centers tion Detention A History Legis- of Coal Ash Waste: Inaction lative President Obama Keeps Campaign Keeps Obama President Act, Pay Fair in Signing Promise and Criticism Praise Drawing California Bans Gay Marriage by Marriage Gay Bans California Vote Majority Simple Lost in Translation? The Promises Lost in Translation? U.S. Bayh- of Enacting and Pitfalls in India Legislation Style Dole 12-track Album That Downloading $360,000: Explor- Could Cost You Will Act the PRO-IP ing How Affect the Consumer to Asks Court Mom” Not “MySpace Con- Beyond Crime Federal Stretch Intent gress’ Illinois Schools Face Up to Up Schools Face Illinois Internet Mandating Facebook: Public Instruction in Illinois Safety Schools 121 FEATURE 129 136 141 147 152 157 FEATURE 166 172 179 Clay Rehrig Jessica Lienau Jessica Bill Metzinger Bill William Tasch William Lesley Shermeta Lauren RaffertyLauren Christy O’Berry Ann Weilbaecher Ann Ana Maria Echiburu Maria Ana Sameena Mohammed Sameena \\server05\productn\L\LPR\14-2\toc142.txt unknown 2 Seq: 16-JUN-09 13:23 26794 lpr_14-2 Sheet No. 2 Side A 06/29/2009 13:47:06 06/29/2009 2 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 2 Side B 06/29/2009 13:47:06 New Illinois Internet Grooming Internet Illinois New Col- Rights Individual Law: When Policy Public lide with for Deadline the Compliance Facing Child Protection Walsh the Adam Weighing Are States Act, and Safety All the Costs Obama: to Bush From The Direc- tion of Education A Change for the Better?: The ADA A Change for the of 2008 Amendments Act Federal Extension of Unemployment Extension Federal into Law: Signed Compensation Is of Number on Growing Impact Americans Unemployed Chicago 2016 Olympics: Legislative Chicago 2016 Olympics: on Construction,Impact the Public Market Housing and the Affordable 184 FEATURE 192 199 203 210 215 Jason Lewis Jason Liz Winiarski Liz Noah Hurwitz Noah Chantal Kazay Angie Robertson Angie Jeremy Moorehouse Jeremy \\server05\productn\L\LPR\14-2\toc142.txt unknown 3 Seq: 16-JUN-09 13:23 26794 lpr_14-2 Sheet No. 2 Side B 06/29/2009 13:47:06 06/29/2009 2 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 3 Side A 06/29/2009 13:47:06 Public Interest Law Interest Public on legislation is that it always attempts to – dis- PILR PILR Letter from the Editor Letter from focuses exclusively on the importance and dynamic nature of leg- on the importance and dynamic nature focuses exclusively s promised in our Fall 2008 issue, this semester the 2008 issue, this semester in our Fall s promised Reporter A \\server05\productn\L\LPR\14-2\edn142.txt unknown 4 Seq: 16-JUN-09 13:23 islation. issues, all state, national and foreign tackled local, have writers Our theme of legislation. within the common I chose to focus an edition of of the reasons One is often perceived to be the “not-so-sexy” source of law next to common law to be the “not-so-sexy” source is often perceived with this! but I disagree precedent, The debates and history many surrounding than a few court- exciting days in a often much more pieces of legislation are room. of stories and are into exactly these kinds delved have writers Our in the same way bringing them to our readers secting complex legal issues and letting the facts speak for themselves. secting complex legal issues and letting in challenge as they tackled their research had an interesting writers have Our the infancy of a new Government. start has had an active 111th Congress The to their term with major new legislation in many spheres. Obama Barack into law. Act Pay signing the Lilly Ledbetter Fair by started his presidency The of bill which amends the Civil Rights Act had long championed this President of limitations for filing an equal-pay 1964 stating that the 180-day statute with each new pay discrimination resets discriminatory lawsuit regarding Court had ruled, was at the date the pay rather than, as the Supreme paycheck, on. agreed the failing economy, forged ahead in in an attempt to relieve The Congress, a newthe first month and a half of 2009 and authored stimulus bill. On and Reinvestment signed the American Recovery 17th, the President February an almost $800 billion stimulus bill, into law.Act, The bill was definitely not with all votes Senate Republican supported; only three universally it garnered 26794 lpr_14-2 Sheet No. 3 Side A 06/29/2009 13:47:06 06/29/2009 3 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 3 Side B 06/29/2009 13:47:06 Public . other Republican senators voting against it against voting senators Republican other – of bipartisan the ideal still politics eluding our new being. leader for the time apparently that the new fear of many other at the expense bill will be stimulus Many campaign. presidential during the Obama made promises campaign is There will be the jobs,” the environment of “green despite the promise concern that race for money and attention.biggest loser in the this spring, However, into law. of 2009 Act Lands Management Public signed the Omnibus Obama most our nation’s down preserve, and pass is intended to “protect, This Act generations.” to future landscapes treasured to enactment, a Wilderness Prior of the most important spokesman called the bill “one wilderness bills Society considered.” has ever Congress universal a step towards be considered in what could year, of this February In Children’s new the State legislation was signed to expand health coverage, (SCHIP). Program Insurance Health SCHIP is publicly funded health insur- in 1997 during the Clinton administra- and was first created ance for children tion. will boost the tobacco taxes, increasing The expansion, paid for by 11 million. to around children number of covered bills that many, many more are signed into law, there as bills already As well stage. in the proposal are a new With administration comes a change in tide legislation of proposed the wave by on many issues and this has been evidenced Congress. through moving the eco- by been triggered have proposals Some (a home- Act Their Homes Save Families nomic crisis, such as the Helping right from the swing in power spawned by bill), while others are rescue owner to left. to be a very one thing can be guaranteed, it is that 2009 will continue active If perspective. a legislative from year fol- someone who enjoys are Whether you just someone are or if you process, the twists and turns of the legislative lowing issue of the this “legislation” enjoy hope you we a good read, that enjoys Law Reporter Interest Sincerely, Carnell Holly in Chief Editor \\server05\productn\L\LPR\14-2\edn142.txt unknown 5 Seq: 16-JUN-09 13:23 26794 lpr_14-2 Sheet No. 3 Side B 06/29/2009 13:47:06 06/29/2009 3 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 4 Side A 06/29/2009 13:47:06 121 HERMETA S ESLEY L No. 2 • Spring 2 • No. 2009 by FEATURE ARTICLE FEATURE HUMAN SERVICES’ MIDNIGHT REGULATION MORALITY VITAL VERSUS OVER BUSH’S HEALTH AND BUSH’S HEALTH OVER HEALTHCARE: THE DEBATE HEALTHCARE: hould your doctor’s moral conscience come before your medical emer- your doctor’s moral conscience come before hould your sex in pre-marital who does not believe a medical provider gency? Should be able to deny testing and treatment of sexually transmitted infections to be able to deny testing and treatment unmarried couples seeking assistance? Could someone who equates emergency S \\server05\productn\L\LPR\14-2\LPR201.txt unknown 1 Seq: 27-MAY-09 10:39 26794 lpr_14-2 Sheet No. 4 Side A 06/29/2009 13:47:06 06/29/2009 4 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 4 Side B 06/29/2009 13:47:06 6 1 The Regulation is intended to ensure that, is intended to ensure The Regulation 7 9 5 It was no surprise, then, when President George W. Bush’s George then, when President was no surprise, It 2 EGULATION Among these so-called “midnight regulations” was the U.S. Depart- “midnight regulations” Among these so-called 3 The Regulation was released in draft form in August 2008, formally in draft form in August was released The Regulation 4 8 HHS R HE ment of Health and Human Services’ (HHS) regulation called “Ensuring That called “Ensuring Services’ (HHS) regulation Human and ment of Health Coercive Support Not Do Services Funds and Human Department of Health Law” (Regula- of Federal in Violation or Practices or Discriminatory Policies tion). to 19, 2008 and was scheduled on December Register published in the Federal 20, 2009. take effect on January The stated purpose of the Regulation is to “provide for the implementation is to “provide The stated purpose of the Regulation the rights of health [that] protect of. . .statutoryand enforcement provisions to perform entities. . ., both individuals and institutions, to refuse health care services activities to which they may object for religious, care and research moral, ethical, or other reasons.” 122 T recipi- law prohibiting of federal provisions deals with several The Regulation field in the health care individuals ents of certain coercing funds from federal or morally objectionable. into participatingin actions they find religiously basis of one’s objection discrimination on the These federal laws also prohibit to, participation to participate or refusal in, specific medical procedures, in, including abortionor sterilization. Loyola Public Interest Law Reporter Law Interest Public Loyola with abortioncontraception to the method and to this access rape victims deny Ce- by These fears, as expressed pregnancy? an unintended avoiding means of of Federation Parenthood Planned and CEO of President cile Richards, 20, 2009, stem- on January a reality became Parenthood), (Planned America care. medical over of morality about the prioritizing ming a debate to office and a new administration prepares to leave prepares As one President step in, it is customary its executive increase to see the outgoing administration in his final Orders Clinton, for example, issued 12 Executive activity. President 20 days in office. \\server05\productn\L\LPR\14-2\LPR201.txt unknown 2 Seq: 27-MAY-09 10:39 administration rushed out a host of problematic regulations in its final in its regulations administration rushedof problematic out a host months. in the delivery of health care and other health services,in the delivery and health care of HHS of recipients or discriminatoryfunds do not support coercive practices in violation of these laws. 26794 lpr_14-2 Sheet No. 4 Side B 06/29/2009 13:47:06 06/29/2009 4 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 5 Side A 06/29/2009 13:47:06 123 14 No. 2 • Spring 2 • No. 2009 16 Patients are best served, are accord- Patients 15 One commenter wrote that by insist- that by commenter wrote One Many interest groups and individuals and groups interest Many 11 10 During his practice as an OB-GYN, he witnessed this During EGULATION 13 R 12 UPPORT FOR THE Former HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D., de- Garcia, Joxel Admiral of Health, HHS Assistant Secretary Former face routinely providers saying that many health care fended the Regulation, to change their medical practice –pressure opposition to their often in direct personal convictions. com- being rights are has raised an issue of whether patients’ The Regulation concerns about patients’ to commenters’ regard With in the process? promised patients and communication between rights, HHS encourages full and open services, of health care the provision issues surrounding on sensitive providers including issues of morality and conscience. Supporters of the Regulation cite the dangers of forcing health care providers health care cite the dangers of forcing of the Regulation Supporters their moral, religious, that go against to perform or participate in procedures or re- entering from as a way of discouraging individuals or personal beliefs profession. care maining in the health The Regulation applies to any state or local government or any other public or any local government state or to any applies Regulation The assistance. federal financial entity receiving vol- and even employees, allows It to deny access funding government receiving clinics and hospitals unteers, of services. of medical variety to a wide \\server05\productn\L\LPR\14-2\LPR201.txt unknown 3 Seq: 27-MAY-09 10:39 pressure first-hand, directly influencing his opinion that “[h]ealth care provid- influencing his opinion that “[h]ealth care first-hand, directly pressure door.” to check their consciences at the hospital ers shouldn’t have ing that health care professionals be willing to put their personal beliefs aside; be willing to put their personal beliefs professionals ing that health care delivery system of profession- of a health care “one contributes to the creation rather than [their] conscience, putting society directives als who blindly follow at risk.” ing to the HHS, when their providers communicate clearly and early about ing to the HHS, when their providers any servicesparticipate. in which they decline to took the chance to respond to this Regulation, but HHS went forward despite but HHS went to this Regulation, chance to respond took the Barack President into effect on went Regulation and the opposition, strong Day. Inauguration Obama’s S 26794 lpr_14-2 Sheet No. 5 Side A 06/29/2009 13:47:06 06/29/2009 5 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 5 Side B 06/29/2009 13:47:06 Low- If these If 21 24 20 Although the rule 18 Title X, for example, is the Title 22 25 The deliberate choice to not define The deliberate choice 17 Its 4,400 health centers assist five million 4,400 health centers assist five Its The HHS regarded these claims as un- The HHS regarded 23 19 EGULATION R 26 RITICISM OF THE States’ Rights Conflict States’ is whether it conflicts with states’ Another potential issue with this Regulation for the state of Connecticut, General the Attorney Blumenthal, rights. Dick “interferes with states’ rights because it cannot be stated that the Regulation and existing state regulations over implemented without riding roughshod health without causing states to lose billions of dollars in federal aid to deliver care.” 124 Another major concern is that the Regulation would limit access to patient would Regulation Another major concern is that the services, and that individuals could be denied access to care with effects felt those in rural or otherwise areas disproportionately by underserved. Loyola Public Interest Law Reporter Law Interest Public Loyola C Impact Anticipated of the Center Arons to Jessica according Regulation, the danger of the of Part is its vagueness. for American Progress, \\server05\productn\L\LPR\14-2\LPR201.txt unknown 4 Seq: 27-MAY-09 10:39 certain terms in the Regulation may be problematic because it allows individu- because it allows may be problematic certain terms in the Regulation abortion going far be- to include any form of contraception, als to interpret of the term. the legal and medical definitions yond young, low-income and uninsured women annually, including many from op- women annually, including many from and uninsured low-income young, or subsidized. communities, and the services usually free pressed are founded, insisting that there is a lack of evidence showing that this Regulation is a lack of evidence showing founded, insisting that there services. new contraceptive would create barriers in accessing income and uninsured women are particularly on programs as they rely women are at risk, income and uninsured for health care. X and Medicaid such as Title related to funding family planning and solely devoted only federal program services. care health reproductive ostensibly protects only employees who object to abortion and sterilization, only employees ostensibly protects apply to contraception, that it could also says it is “written so vaguely Arons HIV/AIDS services,fertility care, end-of-life treatments, gender reassignment, moral a personal have practice to which someone might or any other medical objection.” religious) (not even types of programs do not strictly adhere to the HHS rules, they will lose fed- do not strictly adhere types of programs ever women than more economic crisis, when eral funds at a time of increasing health care. will need government-funded 26794 lpr_14-2 Sheet No. 5 Side B 06/29/2009 13:47:06 06/29/2009 5 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 6 Side A 06/29/2009 13:47:06 27 125 Blumenthal joined Blumenthal No. 2 • Spring 2 • No. 2009 33 34 Blumenthal stated that the rule stated that the Blumenthal 28 29 In her letter to Leavitt, Madigan pointed out her letter to Leavitt, Madigan In 30 Calling the Regulation an “ideologically motivated Calling the Regulation 31 32 CTION A AKING T making pleas to each branch of the govern- are of the Regulation Opponents ment to aid in their struggle. Judicial Administra- to Connecticut to file a lawsuit against the Bush traveled Richards has been put in tion “on behalf of the millions of women whose healthcare this parting by shot at women’s health.” jeopardy Illinois Attorney General Lisa Madigan expressed similar concerns in her letter similar concerns in expressed Lisa Madigan General Attorney Illinois her “strenuous Leavitt, showing of the HHS, Michael to the former Secretary Regulation. opposition” to the Connecticut is one among 27 states with laws requiring health insurance plans insurance health laws requiring with 27 states one among is Connecticut for contraception. coverage equitable drugs to provide prescription that cover this Regula- at risk under are access contraceptive laws facilitating state Such seeking to re- entities health care to protections extends sweeping tion, which health care. for reproductive strict coverage \\server05\productn\L\LPR\14-2\LPR201.txt unknown 5 Seq: 27-MAY-09 10:39 effort to effectively overturn state protections intended to help women access state protections effort overturn to effectively and medically-based and make fully-informed, responsible basic health care reject unsuccessfully urged Secretary Leavitt to decisions,” Madigan health-care the Regulation. that the Regulation conflicts with Illinois laws that: 1) require insurers covering insurers require laws that: 1) conflicts with Illinois that the Regulation con- range of FDA-approved for the full coverage drugsto provide prescription to provide hospital emergency rooms drugstraceptive and devices; 2) require servicesemergency contraception-related to sexual assault victims; and 3) man- contraception and other for emergency date that pharmacies fill prescriptions forms of contraception. Planned Parenthood in the lawsuit “since [the Regulation] would undermine “since [the Regulation] in the lawsuit Parenthood Planned the country, women’s access to family laws across protect which currently healthcare.” planning, birth and reproductive control “would supercede carefully crafted Connecticut statutes arrived at through a at through statutes arrived crafted Connecticut carefully “would supercede of wo- that ultimately balances the rights process painstaking and controversial to follow with the rights of providers and contraception men to health care beliefs.” and religious individual, moral 26794 lpr_14-2 Sheet No. 6 Side A 06/29/2009 13:47:06 06/29/2009 6 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 6 Side B 06/29/2009 13:47:06 36 41 Another option 38 42 40 Some members of Congress are members of Congress Some 39 So far six additional states have joined the have additional states far six So 35 37 The HHS, under the new administration, initiated a review 43 This move established women’s health as a priority of the administration and established This move encouraging President as other organizations are as well Parenthood Planned this Regulation. with them to overturn to work Obama 10, but on March would be no quick process, Overturning the Regulation of a rescission proposing administration took the first step by 2009, Obama’s the Regulation. 126 Executive though, be- the Regulation, attempt to overturn the most promising Perhaps ad- Obama’s found hope in President branch. Richards longs to the executive ministration when the global gag rule, which was an obstacle to women’s immediately overturned. the world, was around care health reproductive Legislative also looking to Con- as the NFPRHA are organizations such interest Public of ways. for action, which could be done in a variety gress option is the One Congres- under the of HHS’s regulation of disapproval passage of a resolution the rule that would repeal outright. sional Review Act Loyola Public Interest Law Reporter Law Interest Public Loyola of develop- process that the including claims, on several based lawsuits are The published rule and that the the rule and publishing was flawed, ing, vetting HHS. authority of the the exceeds of the rule, call- against enforcement seeking an injunction These litigants are a tick- and regulation and unconstitutional midnight ing it “an unconscionable apart on to blow vital women’s rights that threatens ing legal time bomb inauguration day.” \\server05\productn\L\LPR\14-2\LPR201.txt unknown 6 Seq: 27-MAY-09 10:39 and public comment period in response to comments on the originally pro- and public comment period in response lawsuit (California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Oregon Jersey, New Massachusetts, Illinois, lawsuit (California, and Reproduc- Planning Family such as the National as groups as well Island), American Civil Liberties and the Association (NFPRHA) Union. Health tive considering a third option, taking action against the broader scope of midnight option, taking action against the broader considering a third dates of all rules for some period of time suspending the effective regulations, process. or to put in place an expedited review would be for Congress to attach a rider to an appropriations bill that would bill that to attach a rider to an appropriations would be for Congress of the rule.block funds for enforcement 26794 lpr_14-2 Sheet No. 6 Side B 06/29/2009 13:47:06 06/29/2009 6 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 7 Side A 06/29/2009 13:47:06 , 127 http:// available at available No. 2 • Spring 2 • No. 2009 45 , Jan. 20, 2009, http://www.msnbc.msn.com/id/ 20, 2009, , Jan. note 1. note 1. Midnight Cowboy Part 2: Taking Bush’s Midnight HHS Regulation to Court HHS Regulation Midnight Bush’s 2: Taking Part Cowboy Midnight 44 supra supra at 78,097. at 78,081. . at 78,096-97. Id. Id. Id. Id. Id. Id. Obama Halts All Regulations Pending Review Pending Regulations All Halts Obama Id. Id. Id. Id OTES ONCLUSION 1 Jacobson, Jodi 15, 2009, http://www.rhrealitycheck.org/blog/2009/01/15/midnight-cowboy-part-2. Jan. 2 The Regulation has already had a profound impact on people on both sides of impact on people on both had a profound has already The Regulation with their to practice in accordance providers medical care the issue, allowing to unavailable also making certainpersonal beliefs while types of medical care patients in need. on a fundamental question of whose This debate centers rights should be compromised—the or the patient’s—a doctor’s decision ap- administration. left to the current parently N posed Regulation, finding that a number of questions warranted further warranted of questions a number that finding careful Regulation, posed consideration. on the regula- comment written or electronic has 30 days to submit The public to en- torywill review the rescission point HHS at which proposed, changes policy. administration with current its consistency sure C \\server05\productn\L\LPR\14-2\LPR201.txt unknown 7 Seq: 27-MAY-09 10:39 28758810/. 3 4 Coercive Support Not Do Services Funds and Human That Department of Health Ensuring (Dec. 78,071 Reg. Law, 73 Fed. of Federal in Violation or Practices or Discriminatory Policies 88). 19, 2008) (to be codified at 45 C.F.R. pt. 5 Jacobson, 6 78,072 (2008). Reg. 73 Fed. 7 8 9 10 11 www.hhs.gov/news/press/2008pres/12/20081218a.html). 14 15 78,081 (2008). Reg. 73 Fed. 16 17 Jacobson, 18 12 13 Regula- Final Services, HHS Issues and Human U.S. Department of Health Release, Press 18, 2008) ( (Dec. Discrimination from Providers Care Health tion to Protect 26794 lpr_14-2 Sheet No. 7 Side A 06/29/2009 13:47:06 06/29/2009 7 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 7 Side B 06/29/2009 13:47:06 http://www. , July 26, 2008, http:// 26, , July available at available Help Reverse Former President Former Reverse Help Planned Parenthood Sues Bush Administration Bush Sues Parenthood Planned , Jan. 15, 2009, http://www.plannedparenthood.org/news- 15, 2009, , Jan. http://www.acluct.org/aboutus/pressroom/nationalfamilyplan- , Dec. 18, 2008, http://www.plannedparenthood.org/issues-action/ , Dec. available at available Bush Aims Attacks on Women, Cutting Birth Control Cutting Women, on Aims Attacks Bush note 1. note 1. note 1. supra supra supra Press Release, American Civil Liberties Union of Connecticut, National Family Plan- Family of Connecticut, National Liberties American Civil Release, Union Press at 10,208. at 10,209. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id; Id. Id. Id. Id. Id. Id. Id. www.workers.org/2008/us/bush_0731/. 22 23 24 25 26 Jacobson, 27 28 29 30 Leavitt, Secretary of the to Michael General, Attorney Illinois Lisa Madigan, Letter from 16, 2008) ( Services, (Sept. Human and U.S. Department of Health plannedparenthood.org/files/IL_AG_Letter.pdf). 31 32 33 of America, Federation Parenthood Planned Regulation Midnight Disastrous over room/press-releases/planned-parenthood-sues-bush-administration-over-disastrous-midnight- regulation-23566.htm. 34 35 Jacobson, 36 Denial Care Ask Court Health to Block Association and ACLU Health ning & Reproductive 15, 2009) ( (Jan. Rule ningrepr.htm). 37 Jacobson, 38 39 40 41 of America, Federation Parenthood Planned Cecile Richards, Regulation Midnight Bush’s birth-control/title-x-family-planning-funding/bushs-attack-womens-health-still-bad-medicine- 23106.htm. 42 43 Human and of Health That Department “Ensuring Entitled of the Regulation Rescission of in Violation or Practices or Discriminatory Policies Coercive Support Not Do Services Funds (to be codified at 45 C.F.R. pt. 10, 2009) Mar. 10,207 (proposed Reg. Law,” 74 Fed. Federal 88). 44 Loyola Public Interest Law Reporter Law Interest Public Loyola 19 20 (2008). 78,081 Reg. 73 Fed. 21 Kathy Durkin, \\server05\productn\L\LPR\14-2\LPR201.txt unknown 8 Seq: 27-MAY-09 10:39 45 128 26794 lpr_14-2 Sheet No. 7 Side B 06/29/2009 13:47:06 06/29/2009 7 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 8 Side A 06/29/2009 13:47:06 129 ETZINGER M ILL B No. 2 • Spring 2 • No. 2009 by DISCOUNT ACT DISCOUNT With the recent passage of the Hospital the recent With 1 2 AND THE HOSPITAL UNINSURED PATIENT SECOND CLASS CITIZENS: SECOND n January 26, 2009, during then-Governor Rod Blagojevich’s anti-im- Blagojevich’s Rod 26, 2009, during then-Governor n January snubbed residents media tour, the Governor peachment, turned farewell ILLINOIS’ RURAL UNINSURED RURAL ILLINOIS’ O \\server05\productn\L\LPR\14-2\LPR202.txt unknown 1 Seq: 16-JUN-09 13:26 of Springfield and smaller Illinois communities telling Larry and smaller Illinois he re- of Springfield King that mansion because he wanted his kids Governor’s in the Springfield fused to live as normal a life as possible.” to “live Uninsured Patient Discount Act (HUPDA), rural Illinois residents have yet have (HUPDA), rural residents Act Illinois Discount Patient Uninsured to feel slighted. another reason 26794 lpr_14-2 Sheet No. 8 Side A 06/29/2009 13:47:06 06/29/2009 8 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 8 Side B 06/29/2009 13:47:06 Under 9 6 , a leading Health Affairs Health 13 A 2007 study in 4 Hospital obligations under HUPDA began De- Hospital 8 HUPDA also capitates the amount a qualifying HUPDA also capitates the amount 7 Part of this disparate pricing is a product of private is a product this disparate pricing of Part 3 This means that in 2009, an urban family of four must earn Individuals receiving medically necessary in a “rural receiving treatment Individuals 11 5 HUPDA 12 Because of the differences in costs of living between rural in costs of living between and of the differences Because 10 VERVIEW OF 130 In order to qualify for the benefits of the new residents Illinois order legislation, In of income, and be annual levels sufficiently low receive must be uninsured, SCHIP, or other public AllKids, Medicaid, unable to qualify for Medicare, programs. The recently enacted bill that received unanimous support from both the Illi- unanimous support both from enacted bill that received The recently patients charging qualifying hospitals from prevents and Senate nois House of $300. in excess of the cost of treatment than 135 percent any more Loyola Public Interest Law Reporter Law Interest Public Loyola O \\server05\productn\L\LPR\14-2\LPR202.txt unknown 2 Seq: 16-JUN-09 13:26 less than $132,300 in order to qualify for the hospital charge and annual less than $132,300 in order spending caps. urban areas, the statute sets different income thresholds for urban and rural income thresholds the statute sets different urban areas, hospitals. in an urban hospital, HUPDA re- treatment for families receiving Therefore, of the federal pov- beneficiaries of the act to earn less than 600 percent quires erty (FPL). level HUPDA addresses the problem of Illinois citizens without private or govern- private without citizens of Illinois the problem addresses HUPDA times the actual two or three charged sometimes insurance being ment health care. cost of medical insurers and government programs like Medicare and Medicaid using their and Medicaid like Medicare programs and government insurers Unin- medical centers. pricing from favorable to gain more bargaining power often stuck with the are bargaining power individuals with little or no sured of medical care. full “sticker price” hospital,” however, must make less than 300 percent of the FPL, or $66,150 in must make less than 300 percent hospital,” however, the same benefits. 2009 for a family of four to reap cember 22, 2008, and as Illinois Attorney General Lisa Madigan described, Lisa Madigan General Attorney cember 22, 2008, and as Illinois to going are who need medical treatment “This is going to mean that people not going to go bankrupt doing it.” be able to get it and that they’re uninsured patient must pay a hospital in any single year at 25 percent of a at 25 percent year patient must pay a hospital in any single uninsured annual income. family’s gross the legislation, hospital costs will be determined from a hospital’s most recently from the legislation, hospital costs will be determined report. cost filed Medicare policy journal, reported that hospitals charge the uninsured 2.5 times more 2.5 times that hospitals charge the uninsured policy journal, reported than Medicare’s times more than three pay and more than what health insurers costs. allowable 26794 lpr_14-2 Sheet No. 8 Side B 06/29/2009 13:47:06 06/29/2009 8 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 9 Side A 06/29/2009 13:47:06 131 dis- some Therefore, in the Therefore, 19 No. 2 • Spring 2 • No. 2009 15 ” RBAN . “U On the other hand, residents of Mt. Zion and of Mt. Zion the other hand, residents On V 17 ” Because Rock Island and Moline are “metropolitan” are and Moline Island Rock Because 16 URAL 2009 Federal As of 2007, Illinois had eleven primary statisti- had eleven metropolitan Illinois As of 2007, : “R 14 Assuming limited mobility when seeking medically necessary treat- UBSIDY 18 S 123456 $10,8307 $14,5708 $18,310 $22,050 $32,490 $25,790 $43,710 $29,530 $54,930 $33,270 $64,980 $66,150 $37,010 $87,420 $77,370 $109,860 $88,590 $132,300 $86,640 $116,560 $99,810 $154,740 $146,480 $111,030 $177,180 $176,400 $199,620 $206,320 $222,060 $236,240 $266,160 $296,080 Family (FPL) FPL FPL FPL RBAN Members ofMembers Level Poverty 300% of 600% of of 800% Although generally higher urban incomes and costs of living justify Although generally higher urban incomes parity in HUPDA’s means testing, analysis of the percent of individuals quali- of the percent parity in HUPDA’s means testing, analysis rural suggests that in Illinois’ and urban communities fying for the program missed the mark. may have legislature Illinois’ examples, consider Illinois’ the most extreme illustrate using one of To in compari- and Moline Island communities of Rock metropolitan “poorest” non-metro- most “wealthy” two of Illinois’ and Edwardsville, son to Mt. Zion politan communities. U HUPDA defines rural defines HUPDA a “metropolitan outside located as hospitals hospitals area.” statistical \\server05\productn\L\LPR\14-2\LPR202.txt unknown 3 Seq: 16-JUN-09 13:26 communities, citizens receiving treatment in these communities benefit from treatment receiving communities, citizens expanded 600 percent The threshold. poverty liberal 600 percent the more three and Moline’s Island of Rock percent nearly 86 allows threshold poverty other public assistance, and unable to qualify for member families, if uninsured HUPDA. to benefit from in a “rural treatment hospi- to avoid assuming they do not travel Edwardsville, tal,” face the narrower threshold to receive HUPDA’s 300 percent poverty benefits. families of and Edwardsville of Mt. Zion 31 percent ment, approximately HUPDA. eligible to benefit from are if uninsured, three, cal areas including: Bloomington, Champaign-Urbana, Chicago-Naperville-Jo- Champaign-Urbana, including: Bloomington, cal areas Rockford- Peoria, Kankakee-Bradley, Decatur, Island, Rock liet, Danville, and Springfield. Louis, East St. Moline, 26794 lpr_14-2 Sheet No. 9 Side A 06/29/2009 13:47:06 06/29/2009 9 Side A Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 9 Side B 06/29/2009 13:47:06 Under Median 25 22 Chun also expressed concern that such Chun also expressed 26 23 ETO Although the ex-governor’s veto was overrid- veto Although the ex-governor’s 28 Although the governor’s veto was short-lived, was veto Although the governor’s 24 V 27 20 In contast, slightly more than 48 percent of rural than 48 percent contast, slightly more In 21 MENDATORY A S ’ LAGOJEVICH 132 B signed an amendatory Blagojevich veto 2008, then Governor 26, August On altering the terms of HUPDA. Loyola Public Interest Law Reporter Law Interest Public Loyola to eligible are three of families “urban” more percent case, 45 extreme most of all of these the same percentage though roughly HUPDA even benefit from uninsured. are communities highlights one of admittedly and Edwardsville Island Rock While comparing the average means testing, the HUPDA’s existing effects of extreme the most 81 average, also telling. On qualifying are of citizens and median percentages eligible to status, are assuming uninsured of urban families of three, percent HUPDA. benefit from \\server05\productn\L\LPR\14-2\LPR202.txt unknown 4 Seq: 16-JUN-09 13:26 den less than a month later, Blagojevich’s changes made qualifying for hospital changes made den less than a month later, Blagojevich’s of to 800 percent the income eligibility threshold increasing discounts easier by of FPL for rural residents. and 600 percent FPL for urban residents qualify- of rural percentages parity in the percentages and urban it did increase ing for the legislation’s benefits. families of the same size stand to benefit under the new stand to benefit legislation. size families of the same liberal coverage might force some of the state’s financially strained hospitals to some might force liberal coverage absorbing nearly $2 billion a already hospitals are close, especially when Illinois than $1 billion and more and Medicaid Medicare in underpayments from year in uncompensated care. a year levels of qualification are similarly skewed with nearly 82 percent of urban of 82 percent similarly skewed with nearly of qualification are levels to 50 as compared eligible for HUPDA’s benefits families of three uninsured of rural of three. percent families the Blagojevich standards, an urban family of four with an annual income of an urban family of four with an annual income standards, the Blagojevich $176,400 or under, and a rural family of four with an annual income of for the same discounts as families of four $132,300 or less would be eligible Association crit- Hospital Chun of the Illinois earning significantly less. Danny un- most all Illinois’ because they would allow thresholds the liberalized icized to qualify under HUPDA. insured 26794 lpr_14-2 Sheet No. 9 Side B 06/29/2009 13:47:06 06/29/2009 9 Side B Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 10 Side A 06/29/2009 13:47:06 , 133 ., May 2, ., May RIB . T HI C , No. 2 • Spring 2 • No. 2009 Governor’s mansion no place mansion Governor’s Annual Update of the HHS Poverty Guidelines of the HHS Poverty Update Annual Sept. 21, 2008, at 6. Sept. ., RIB ? . T HI C , ESPONSIVE R Lawmaker’s bill would limit medical costs for Uninsured Lawmaker’s bill would limit medical costs for ., July 24, 2003, at 1. ., July RIB . T HI C , Id. Id. Dr. Blago’s Botched Surgery Dr. Blago’s OTES EACTIONARY OR 2008, at 1. 5 6 also, http://www.ilga.gov/legislation/votehistory.asp?GA=95&DocNum 89/5. See 210 ILCS =2380&DocTypeID=SB&GAId=9&LegID=36352&SessionID=51. 7 89/5. 210 ILCS 8 89/10. 210 ILCS 9 10 89/15. 210 ILCS 11 89/10(a)(1). 210 ILCS 12 Services, and Human Department of Health available at http://aspe.hhs.gov/poverty/09fedreg.shtml. available 13 and “rural the only terms statistical areas” hospitals” are 89/5. “Metropolitan 210 ILCS with within this article, is used interchangeably “metropolitan” used within HUPDA. However, “urban.” 4 Graham, Judith 2 89/1 et seq. 210 ILCS 3 N 1 26, 2009) (tran- Jan. (CNN television broadcast Blagojevich Rod Larry Governor King Live: Janega, also, James at 2009 WLNR 1519972); See script available Spring- chandeliers and a full-time chef, but the official Baccarat 35 rooms, may have like home. It family—much the Blagojevich has been passed up by to the disappointment of Down- field residence staters R \\server05\productn\L\LPR\14-2\LPR202.txt unknown 5 Seq: 16-JUN-09 13:26 HUPDA is a progressive move towards aiding Illinois’ uninsured. The Illinois uninsured. aiding Illinois’ towards move is a progressive HUPDA support for its unanimous should be commended of the bill and legislature too under inclu- left unadjusted, is level, poverty that the federal appreciation of HUPDA’s benefits. a majority of those in need to accurately capture sive in a difference be lauded for recognizing Assembly should also The General despite the valiant the urban and rural poor. However, between income levels of rural poor able to gain protection percentage effort, the significantly lower tailoring of HUPDA’s precision Although problematic. under HUPDA is of income and uninsured upon each community’s level means testing based to liberalizing rural income thresholds be cost prohibitive, population would rural parity between would restore rural easily qualify, to more allow families Governor though benefits. Even qualifying for HUPDA and urban citizens may override the legislature’s missed the mark, may have veto Blogojevich’s bathwater. out with the baby the thrown have 26794 lpr_14-2 Sheet No. 10 Side A 06/29/2009 13:47:06 A 06/29/2009 10 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 10 Side B 06/29/2009 13:47:06 Annual , April 24, , April Statistical Areas- Metropoli- Areas- Statistical Id. Statistical Areas- Metropolitan Areas- Statistical , available at http://aspe.hhs.gov/poverty/09fedreg.shtml. , available Statistical Areas- Metropolitan Statistical Areas (MSAs), Micro- Areas Statistical Metropolitan Areas- Statistical , Sept. 9, 2008, available at http://www.insidearm.com/go/arm-news/ 9, 2008, available , Sept. Illinois Effort to Limit Uninsured Health Care Expenses Halted by Governor’s by Halted Expenses Care Health Uninsured to Limit Effort Illinois , April 24, 2008, http://www.bea.gov/regional/docs/msalist.cfm?mlist=45# , April ARM INSIDE , . . Id Id illinois-effort-to-limit-uninsured-health-care-expenses-halted-by-governor-s-amendments. 134 Loyola Public Interest Law Reporter Law Interest Public Loyola 14 89/10. 210 ILCS 15 Analysis, of Economic Bureau (CSAs) Areas Statistical Divisions, Combined Metropolitan Areas, politan Statistical http://www.bea.gov/regional/docs/msalist.cfm?mlist=45#defs at 2008, available 16 metropolitan an Illinois of of residents percentage of greatest result determined as “Poorest” of income amount than the threshold of income, $9,860 less with under $100,000 community determined as “Wealthiest” for benefits of HUPDA. to qualify family of three for an urban than communities reporting more in non-metropolitan of citizens percentage of greatest result for a rural amount of income family $4,930 less than the threshold $50,000 in annual income, of parity in percentages Comparison also selected due to the to qualify for HUPDA. of three Services, and Human Department of Health See, the communities. between uninsured Guidelines of the HHS Poverty Update also, http://www.commerce.state.il.us/dceo/Bureaus/Facts_Figures/Illinois_Census_Data/ See “Selected Locations” hyperlink listed under “All Geographical (follow 2000_Census_Data.htm Characteristics.” Economic 17 in of residents and data for the percentage Level Poverty Federal Estimate based on 2009 De- Illinois in 2000. See than $100,000 making more Areas” Statistical “Metropolitan Illinois’ Opportunity. http://www.commerce.state.il.us/dceo/ and Economic partment of Commerce “All Geographical (follow Bureaus/Facts_Figures/Illinois_Census_Data/2000_Census_Data.htm Characteristics.” Economic Locations” hyperlink listed under “Selected 18 Analysis, of Economic also, Bureau 89/10(a)(2). See 210 ILCS Divisions, Combined Sta- Metropolitan Areas, Statistical (MSAs), Micropolitan Areas tan Statistical (CSAs) tistical Areas defs. 19 of Mt. Zion and data for the percentage Level Poverty Estimation based upon 2009 Federal Depart- the Illinois by making less than $50,000 in 2000 provided residents and Edwardsville at http://www.commerce.state.il.us/ Opportunity, available and Economic ment of Commerce “All Geo- (follow dceo/Bureaus/Facts_Figures/Illinois_Census_Data/2000_Census_Data.htm 89/ Characteristics.” 210 ILCS Economic graphical Locations” hyperlink listed under “Selected Analysis, of Economic also, Bureau 10(a)(2). See 20 10.60% of Macon (Edwardsville), County 2000 census data, 10.90% of Madison on Based Census U.S See, uninsured. County were Island and 12.90% of Rock County (Mt. Zion), Estimates”, avail- Counties, 2000: Experimental for Illinois Coverage Insurance “Health Bureau, able at http://www.census.gov/cgi-bin/hhes/sahie/sahie.cgi. 21 in Illinois of residents and percentage Levels Poverty Estimate based upon 2009 Federal http://www. than $100,000 of income in 2000. See with more Areas” Statisical “Metropolitan commerce.state.il.us/dceo/Bureaus/Facts_Figures/Illinois_Census_Data/2000_Census_Data.htm Economic listed under “Selected Locations” hyperlink “All Geographical (follow Characteristics.” 22 non- from of residents and percentage Levels Poverty Estimate based upon 2009 Federal See making less than $50,000 in 2000. areas metropolitan 23 24 at http://www.ilga.gov/legislation/fulltext. S.B. 2380, 8/26/08 (P.A. 095-0965), available asp?DocName=09500SB2380gms&GA=95&LegID=36352&SessionId=51&SpecSess=0&Doc TypeId=SB&DocNum=2380&GAID=9&Session. 25 26 Wilson, Cynthia Amendment \\server05\productn\L\LPR\14-2\LPR202.txt unknown 6 Seq: 16-JUN-09 13:26 26794 lpr_14-2 Sheet No. 10 Side B 06/29/2009 13:47:06 B 06/29/2009 10 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 11 Side A 06/29/2009 13:47:06 135 No. 2 • Spring 2 • No. 2009 Id. 27 28 a rural twice as much as urban families to make law allows of the version the current While 89/10(a). Blagojevich’s 210 ILCS See (600% v. 300%). still qualify for the HUPDA family and rural than their neigh- only 25% more to make urban citizens allowed would have amendment also, S.B. 2380 v. 600%). See bors (800% at http://www. available 8/26/08 (P.A. 095-0965), ilga.gov/legislation/fulltext.asp?DocName=09500SB2380gms&GA=95&LegID=36352&Session Id=51&SpecSess=0&DocTypeId=SB&DocNum=2380&GAID=9&Session. \\server05\productn\L\LPR\14-2\LPR202.txt unknown 7 Seq: 16-JUN-09 13:26 26794 lpr_14-2 Sheet No. 11 Side A 06/29/2009 13:47:06 A 06/29/2009 11 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 11 Side B 06/29/2009 13:47:06 6 CHIBURU E ARIA M CENTERS NA A by Mr. De Los Santos stated that Mr. Ng’s Los Santos Mr. De 5 Lawyers and relatives of Mr. Ng claim that and relatives Lawyers 3 In April 2008, while still detained, Mr. Ng began April In 2 Fifteen years later, he had married a U.S. citizen and fathered and a U.S. citizen later, he had married years Fifteen 1 IMMIGRATION DETENTION IMMIGRATION iu Lui Ng, a computer engineer from Hong Kong, moved to New York to New moved Kong, Hong Ng, a computer engineer from iu Lui in 1992. Another detainee, Marino De Los Santos, briefly shared a cell with Mr. briefly shared Los Santos, De Another detainee, Marino 4 HEALTHCARE STANDARDS IN STANDARDS HEALTHCARE Ng, who was assigned the top bunk. 136 H Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR203.txt unknown 1 Seq: 16-JUN-09 13:29 two U.S.-born children. However, on July 19, 2007, Mr. Ng found himself 19, 2007, Mr. Ng found on July However, two U.S.-born children. the in the U.S. beyond immigration officials because he remained detained by his visa. by time authorized pain was so intense that he could hear Mr. Ng crying the night. throughout to complain of intense back pain. detention officials not only refused to take Mr. Ng to scheduled doctor’s ap- detention officials not only refused to supply him a wheelchair when he could not refused pointments, but even walk. 26794 lpr_14-2 Sheet No. 11 Side B 06/29/2009 13:47:06 B 06/29/2009 11 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 12 Side A 06/29/2009 13:47:06 9 8 19 137 The 14 Mr. De Los Mr. De 7 published findings On August 6, 2008, August On No. 2 • Spring 2 • No. 2009 10 15 13 The Washington Post The Washington ACILITIES Later reports suggested that Mr. Ng had previ- Later reports suggested F 12 that is ultimately responsible for the detention of that is ultimately responsible 17 18 The emergence of these accounts has led to increased scru- led to increased The emergence of these accounts has ETENTION 16 D at the Donald W. Wyatt Detention Center, a locally owned jail in Center, a locally owned Detention W. Wyatt at the Donald 11 VERSIGHT OF Various organizations and individuals across the nation are now pressing for pressing now the nation are organizations and individuals across Various of detainees. of ICE’s medical treatment accountability and oversight more Between May 11 and May 14, 2008, 14, 2008, and May 11 May Between O Ng’s story Mr. of medical treat- is not an uncommon account Unfortunately, such as Mr. Ng’s center. Situations ment within a U.S. immigration detention should be implemented of oversight raise the question as to whether a system the only legislation concerning detention facil- for detention centers. Currently (Act). Act and Nationality is found in the Immigration ity standards He also claimed that Mr. Ng could not even stand in the medication line in line medication in the stand even could not Mr. Ng that also claimed He chair for support. to hold on to a center and had the detention Mr. Ng was when a bedridden an incident also recounted Los Santos Mr. De his illness. Mr. Ng was faking and said that a nurse who laughed visited by walk. Mr. Ng could no longer stand or 2008, July By \\server05\productn\L\LPR\14-2\LPR203.txt unknown 2 Seq: 16-JUN-09 13:29 tiny of the Bureau of Immigration and Customs Enforcement (ICE), an Enforcement and Customs of Immigration tiny of the Bureau agency within the DHS Central Fall, Rhode Island. Central Fall, the cause of his to determine in order to visit the hospital ously requested refused. were however, illness. These requests, undocumented aliens. of detainee medical mistreatment which they uncovered through review of through which they uncovered of detainee medical mistreatment and interviews documents with detainees, their families, and gov- government ernment officials. Mr. Ng died with a fractured spine and untreated cancer in his lungs, liver, cancer and untreated spine a fractured Mr. Ng died with and bones 241(g), which states is Section these standards addressing section of the Act (DHS) “shall arrange for appropri- Security that the Department of Homeland or a decision on pending removal ate places of detention for aliens detained “the pos- rejecting by indirectly 241(h) also affects standards Section removal.” such as to challenge a right of action under the statute, sibility of a private place of detention. ” facility as an inappropriate Santos further stated that officials at the detention center prohibited Mr. Ng further center prohibited at the detention stated that officials Santos assistance. that he stand without and required on to the chair holding from 26794 lpr_14-2 Sheet No. 12 Side A 06/29/2009 13:47:06 A 06/29/2009 12 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 12 Side B 06/29/2009 13:47:06 25 The 29 Further, 27 30 ICE has also entered into an ICE has also entered 23 26 21 24 The decision and explanation must be communi- The decision and explanation must 28 and that since 2004, the number of detainees in ICE de- of detainees since 2004, the number and that 20 EGISLATION L This independent body is responsible for reviewing and validating de- for reviewing and validating body is responsible This independent 22 ROPOSED Proponents of the bill, such as Ahilan Arulanantham, Director of Immigrants’ of the bill, such as Ahilan Arulanantham, Director Proponents of South- for the American Civil Liberties Security Union Rights and National 138 This proposed bill includes various safeguards for detainees that, at a mini- safeguards bill includes various This proposed high a continuum of prompt, that detention facilities “afford mum, require medical needs that existed prior to address including care quality medical care, to detention, at no cost to detainees.” in detention facilities by of medical care oversight The bill aims to increase report in-custody deaths, Security that the Secretary of Homeland requiring semi-annu- to Congress the death, including specific information surrounding within 24 hours. General of Inspector ally and to the DHS Office P (D-CA) introduced Roybal-Allard Lucille further Representative In response, 26, 2009. (bill) on February Act and Fairness Oversight the Immigration Loyola Public Interest Law Reporter Law Interest Public Loyola addi- for pressure increasing and these investigations to has responded ICE been misleading on this issue has that “the reporting stating by tional oversight and exaggerated” accountability and over- ICE asserts that it has attempted to improve Further, in February Group Inspection Facilities the Detention creating sight by 2007. \\server05\productn\L\LPR\14-2\LPR203.txt unknown 3 Seq: 16-JUN-09 13:29 tention inspections as well as ensuring that agency standards are consistently are that agency standards as ensuring as well tention inspections actions may be taken. applied so that corrective tention facilities has increased over 30 percent, yet the mortality rate has de- yet 30 percent, over has increased tention facilities each year. significantly creased cated to the detainee as well as the Secretary of DHS simultaneously. as the Secretary of DHS cated to the detainee as well agreement with an independent company to place full-time quality assurance with an independent company agreement facilities and to arrange for rotational at their 40 largest detention professionals facilities. visits to the smaller the bill requires that denial of medical care be made within 72 hours of the that denial of medical care the bill requires of why a written explanation and that the denial be accompanied by request the denial was appropriate. detainee, however, retains the right to appeal a denial of medical treatment. retains detainee, however, an independent ap- days by The appeal, then, must be decided within seven professionals. composed of health care peals board 26794 lpr_14-2 Sheet No. 12 Side B 06/29/2009 13:47:06 B 06/29/2009 12 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 13 Side A 06/29/2009 13:47:06 139 N.Y. , , August 19, 2008 , August , August 12, 2008 , August IMES IMES No. 2 • Spring 2 • No. 2009 N.Y. T N.Y. T , , With the ongoing efforts of both With . 261, 268 (2008). Mary Meg McCarthy, the Execu- the McCarthy, Mary Meg 33 EV 31 L. R note 4. EORGE G C supra supra M , 40 note 1. note 1. Protecting the Voiceless: Ensuring ICE’s Compliance With Standards That Standards ICE’s Compliance With Ensuring the Voiceless: Protecting supra U.S. Issues Scathing Report on Immigrant Who Died in Detention Scathing Report on Immigrant U.S. Issues Ill and in Pain, Detainee Dies in U.S. Hands Detainee and in Pain, Ill supra Cellmate Describes Pain of Detainee Who Died of Detainee Pain Describes Cellmate 32 ; Cellmate Describes Pain, Pain, ; Cellmate Describes at 274. ; Press Release,; Press Lawsuit on Be- Files ACLU Rhode Island Affiliate ACLU, Rhode Island , Jan. 16, 2009 at A14. , Jan. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. OTES IMES at B4 [hereinafter “Cellmate Describes Pain”]. “Cellmate Describes at B4 [hereinafter 5 6 7 8 9 10 in Pain, and Ill 11 at A1 [hereinafter “Ill and in Pain”]. “Ill at A1 [hereinafter 2 12 Bernstein, Nina half of Family of Wyatt Center Detainee Who Died in Custody; Suit Alleges Hiu Lui Ng Was Lui Alleges Hiu Suit in Custody; Who Died Center Detainee of Wyatt half of Family 9, 2009) (on file with (Feb. Behavior” and Sadistic Malicious to “Cruel, Inhumane, Subjected author). 3 Pain, and in Ill 4 Bernstein, Nina T 15 16 13 14 E. Papst, Kelsey Protect Immigration Detainees Immigration Protect 1 Bernstein, Nina With over 33,000 individuals detained on any given day, this bill has the po- day, this bill has individuals detained on any given 33,000 over With to a significant amount of of health care a higher quality tential of providing the immigration system. individuals within N ern California, feel the bill is a positive measure to protect the health of ICE the health to protect measure positive bill is a feel the ern California, institutional help ICE change its passed it “should and if the bill is detainees humane treat- the way for the accountable, paving become more and culture detention.” in immigration ment of those \\server05\productn\L\LPR\14-2\LPR203.txt unknown 4 Seq: 16-JUN-09 13:29 tive Director of the National Immigrant Justice Center, believes the bill is a the bill believes Center, Justice Immigrant of the National Director tive that un- immigration enforcement to approach sense, cost-effective “common human and protecting justice American traditions of promoting derscores rights.“ our legislators and ICE, the standards of healthcare in detention centers could, in of healthcare ICE, the standards our legislators and detained individuals will ensuring that drastically improve, and hopefully will, our of and care as Mr. Ng while under the custody no longer suffer government. 26794 lpr_14-2 Sheet No. 13 Side A 06/29/2009 13:47:06 A 06/29/2009 13 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 13 Side B 06/29/2009 13:47:06 ASHING- W HE T , System of Neglect System note 17. supra note 16. . supra ; Dana Priest and Amy Goldstein, Amy Goldstein, and Priest ; Dana See Id. See note 13, at 271. note 13, at note 13, at 274. supra supra supra TON , May 11, 2008. , May at § 2(D). at § 2(E). . at § 2(J). OST Id. Id. Id. Id Id. Id. Id. Id. P 18 Pabst, 19 2008, 27, Feb. Act, and Fairness Oversight Immigration Support Humane, American Press http://www.americanhumane.org/assets/docs/advocacy/ADV-LI-support-immigration.pdf; Standards and Enforceable Humane Adopts Bill House California, of Southern ACLU Release, 26, 2009) (on file with author). (Feb. Facilities Detention for Immigration 20 of The Rest Care: Health Detainee Enforcement, and Customs Immigration Release, Press (on file with author), http://www.ice.gov/pi/detention_health 19, 2008) the Story (May _care.htm. 21 Papst, 22 Enforcement, and Customs U.S. Immigration 23 24 252009). Sess. (1st H.R. 1215, 111th Congress Act, and Fairness Oversight Immigration 26 27 28 29 140 33 Loyola Public Interest Law Reporter Law Interest Public Loyola 17 vis- (last http://www.ice.gov/about/ About, Enforcement, Customs and U.S. Immigration 2009). 3, ited Apr. \\server05\productn\L\LPR\14-2\LPR203.txt unknown 5 Seq: 16-JUN-09 13:29 30 31 California, of Southern ACLU 32 Act and Fairness Oversight Center, Immigration Justice Immigrant National Release, Press http://www. 26, 2009) (Feb. System to U.S. Immigration Justice Restore Help of 2009 Will immigrantjustice.org/news/legislation/immigration-oversight-and-fairness-act-of-2009-will-help- restore-justice-to-detention-system.html 26794 lpr_14-2 Sheet No. 13 Side B 06/29/2009 13:47:06 B 06/29/2009 13 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 14 Side A 06/29/2009 13:47:06 In 141 1 IENAU L ESSICA J by No. 2 • Spring 2 • No. 2009 2 OF LEGISLATIVE INACTION OF LEGISLATIVE oal ash. Unlike the quintessentially trendy environmental issue of global environmental trendy the quintessentially oal ash. Unlike coal that millions of tons of toxic aware warming, few even are Americans COAL ASH WASTE: A HISTORY ASH WASTE: COAL ash are piling up in over 1,300 waste disposal sites in 32 of the 50 states. 1,300 waste piling up in over ash are However, unlike the constituents being represented by these state and local these state by the constituents being represented unlike However, for to lobby a designated representative does not have leaders, the environment it seems as if legislation in Washington, environmental of proactive it. Instead to the some sort disaster must thrust issues on of environmental non-trendy to be made. That is exactly what has for any progress political scene in order C \\server05\productn\L\LPR\14-2\LPR204.txt unknown 1 Seq: 27-MAY-09 10:51 the midst of an international financial crisis, the media portraysthe midst of an international financial Washington, focus: the economy. Countless state and D.C. legislators as having but one successfully have economic recession the current local leaders suffering from D.C. for federal aid. lobbied in Washington, 26794 lpr_14-2 Sheet No. 14 Side A 06/29/2009 13:47:06 A 06/29/2009 14 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 14 Side B 06/29/2009 13:47:06 14 6 Instead, much of the criti- Instead, Due to both the EPA’s and to both the EPA’s Due 10 13 Furthermore, the EPA found that the EPA Furthermore, 8 Dr. Thomas A. Burke, an epidemiol- Thomas A. Burke, Dr. 3 16 11 EGULATION However, the EPA has never promulgated has never the EPA However, 9 R This growth is due in part to the federal regula- This growth 12 ASTE W SH What this type of state-by-state regulation has led to, regulation What this type of state-by-state The lagoons are man-made and “hold a mixture of the of a mixture man-made and “hold The lagoons are 15 A 5 In 2007, the EPA determined that mere exposure to coal ash exposure determined that mere 2007, the EPA In 7 OAL C Coal ash is generally either stored in a landfill or a waste pond, either stored Coal ash is generally 4 ISTORY OF According to Jeffrey Stant of the Environmental Integrity Project, a group cre- a group Project, Integrity of the Environmental Stant to Jeffrey According lax regulations attorneys, most states have enforcement former EPA ated by and monitoring of the waste sites is done on a voluntary the utilities basis by the sites. that own 142 The amount of coal ash produced has grown to a staggering 130 million tons has grown The amount of coal ash produced States. in the United per year The Environmental Protection Agency (EPA) concluded in 2006 that coal ash concluded in 2006 Agency (EPA) Protection The Environmental health and the environ- danger to human waste has “the potential to present of risk than landfills in terms a greater ment,” and that storage ponds create spills and leaks. Loyola Public Interest Law Reporter Law Interest Public Loyola ash of coal yards million cubic 5.4 2008, December In coal ash. with happened its Kingston, spilled from materials other toxic with arsenic and sludge laced it one land, making of surrounding acres 300 onto over waste pond Tennessee spills. worst environmental of America’s H that is left after burning coal to produce solid waste toxic Coal ash is the often electricity. \\server05\productn\L\LPR\14-2\LPR204.txt unknown 2 Seq: 27-MAY-09 10:51 tion of air pollutants, so contaminants and waste products that were once re- that were and waste products tion of air pollutants, so contaminants in coal ash. captured now leased into the air are noncombustible ingredients of coal and the ash trapped by equipment de- and the ash trapped by of coal noncombustible ingredients plants.” the power air pollution from signed to reduce for coal ash waste disposal. any national standards called a lagoon, like the one in Kingston, Tennessee, where the coal ash is where the one in Kingston, Tennessee, called a lagoon, like with water. mixed one’s risk of cancer. substantially increases some argue, is in essence no regulation. disposal of coal ash in ponds elevates cancer risk if metals from the pond es- the pond from cancer risk if metals disposal of coal ash in ponds elevates cape into drinking water sources. ogist who testified on the health effects of coal ash before Congress in 2008, Congress ogist who testified on the health effects of coal ash before cism, and therefore federal regulation, of coal has focused on the emissions federal regulation, cism, and therefore the coal-burning smokestacks. from the federal government’s failure to regulate this solid waste product, the states waste product, this solid regulate to failure the federal government’s fit. coal ash as they see been left with almost total authority to regulate have 26794 lpr_14-2 Sheet No. 14 Side B 06/29/2009 13:47:06 B 06/29/2009 14 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 15 Side A 06/29/2009 13:47:06 143 22 No. 2 • Spring 2 • No. 2009 Eric Schaeffer, also of Eric 23 However, there are oppo- are there However, ? 18 ERM T Furthermore, Roewer noted that Roewer Furthermore, 21 OLITICAL Carol Browner, the then-head Administra- the then-head Carol Browner, P EGULATION Schaeffer refers to the fact that despite numerous Schaeffer refers 24 R Jim Roewer, executive director of the Utility Solid of the Utility director executive Roewer, Jim 20 CIENTIFIC OR However, “officially” is the operative word in the preceding in the word is the operative “officially” However, EDERAL 25 F ”: A S 19 17 AZARDOUS PPOSITION TO Most environmental groups perceive state regulation alone as problematic be- alone as problematic state regulation perceive groups environmental Most coal ash as though it’s not toxic. cause most states treat “H The utility industry, as well as individual states, have lobbied against federal The utility industry, as individual states, have as well despite the is working, that state regulation because they believe regulation 2008 spill. December said, “Your household garbage is managed much more consistently” than coal than consistently” much more is managed garbage household “Your said, ash. O that the coal ash claimed 2008 spill, environmentalists After the December of the coal industry,” the force and Valdez “the Exxon spill would become coal ash waste sites. to regulate federal government \\server05\productn\L\LPR\14-2\LPR204.txt unknown 3 Seq: 27-MAY-09 10:51 internal investigations of coal ash, the EPA has never officially designated coal has never of coal ash, the EPA internal investigations ash as hazardous. statement. in its 1988 and did find that coal ash was not hazardous Although the EPA 1999 reports to Congress, in 2000 Waste Activities Group, said, “A lot of people are claiming that if coal ash is claiming that are said, “A lot of people Group, Activities Waste then it’s not regulated,” waste at the federal level, as a hazardous not regulated with. disagrees a contention he strongly nents to federal legislation. Even after the December 2008 Tennessee spill, 2008 Tennessee after the December Even nents to federal legislation. Department of Envi- manages solid waste for the Tennessee who Pugh, Glen plant and Conservation Tennessee and was in charge of the Kingston, ronment for the proper provide spill, said, “I do think our regulations at the time of the was that here happened Something and evaluations. checks and reviews unexpected.” there have only been four major spills of this kind in the last 50 years, which, only been four major spills of this kind in the last 50 years, have there the need for federal intervention.in his opinion, obviates myth is that it’s safe. said, “The prevailing Project, Integrity the Environmental this to regulate refusing and really buying into that for years the EPA have We material for what it is. . .” 26794 lpr_14-2 Sheet No. 15 Side A 06/29/2009 13:47:06 A 06/29/2009 15 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 15 Side B 06/29/2009 13:47:06 35 Hopefully the Hopefully Legislation has 37 36 29 Rahall stated, “The 34 32 However, critics argue However, 26 “[Jackson] assured lawmakers that assured “[Jackson] 30 Although environmentalists are commending are Although environmentalists 33 However, since 2000, the EPA has not issued new stan- since 2000, the EPA However, 28 Ultimately, the EPA did not designate coal ash as hazardous, but ash as hazardous, not designate coal did the EPA Ultimately, 27 31 CTION Despite arguments for and against federal regulation, the facts cannot be ig- the facts cannot arguments for and against federal regulation, Despite was a major spill in 2008 and it was not the first of its kind. There nored. Coal ash poses serious risks to the communities exposed to it. 144 The same day that Administrator Jackson testified before the Senate about the Senate testified before Jackson The same day that Administrator Committee Resources Natural of coal ash, House regulation possible EPA to federal standards legislation requiring J. Rahall introduced Chairman Nick the engineering of coal ash impoundments. regulate A also came the White House, election, and a change in Obama’s President With confirmation hearings on January her Senate In change in the EPA. a regime pledged to Lisa Jackson of the EPA 14, 2009, newly Administrator appointed coal ash is stored. how consider regulating Loyola Public Interest Law Reporter Law Interest Public Loyola and for Climate Obama to President Assistant current and the EPA tor of to as hazardous coal ash determination designating sent a draft Change, Energy review. for and Budget of Management the Office \\server05\productn\L\LPR\14-2\LPR204.txt unknown 4 Seq: 27-MAY-09 10:51 Rep. Rahall for finally taking federal legislative action on coal ash, whether his action on coal ash, whether Rahall for finally taking federal legislative Rep. to be seen. remains legislation will actually become law dards, even though more and more research, including its own, suggest that suggest its own, including research, and more more though even dards, to be. than it was once thought dangerous coal ash is more instead “pledged to issue less stringent national standards under a ‘non-hazard- issue less stringent national standards instead “pledged to ous’ designation.” that the Bush administration simply decided that the cost to the industry, that the cost to simply decided administration Bush that the designation was of a hazardous tax payers, and ultimately industry employees, too great. EPA decisions will be based on science and the law, not politics,” intimating decisions will be based on science EPA on decisions based administration made environmental that the Bush politics. longer to wait any afford simply cannot American public and our environment coal ash disposal the shoddy and irresponsible posed by in the hazards to rein exist.” practices that currently state been left to the states, but in the face of what seems like widespread needs to regulate. or the EPA either Congress indifference, but rather, question will no longer be whether one of the two will regulate, which one will act first? 26794 lpr_14-2 Sheet No. 15 Side B 06/29/2009 13:47:06 B 06/29/2009 15 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 16 Side A 06/29/2009 13:47:06 145 , Jan. UARD- G , COM . Toxic Coal Toxic OST , Jan. 9, 2009, , Jan. , Jan. 12, 2009, , Jan. P COM ORG . . , Jan. 8, 2009, http:// , Jan. NPR , AHOO COM No. 2 • Spring 2 • No. 2009 . Y UFFINGTON , , MichaelMoore.com, Jan. 7, Jan. , MichaelMoore.com, RG H , O , CSMonitor.com, Jan. 9, 2009. Jan. , CSMonitor.com, HYS , PhysOrg.com, Jan. 8, 2009, http:// 8, 2009, Jan. , PhysOrg.com, P http://resourcescommittee.house.gov/ , , PublicIntegrity.org, Jan. 7, 2009, http:// Jan. , PublicIntegrity.org, available at available note 1. note 1. Tennessee Spill: The Exxon Valdez of Coal Ash? Valdez The Exxon Spill: Tennessee Coal Ash: The Hidden HistoryCoal Ash: The Hidden Lisa Jackson: Science Will Rule at New EPA at New Rule Science Will Jackson: Lisa note 4. Toxic Coal Ash Piling up in Ponds in 32 States up in Ponds Coal Ash Piling Toxic Hundreds of Coal Ash Dumps Lack Regulation Hundreds note 4. Obama Pledges ‘A Hand From Washington’ to America’s Mayors to America’s Washington’ From ‘A Hand Pledges Obama supra supra note 18. note 12. note 5. Coal-ash Waste Poses Risk Across the Nation Risk Across Poses Coal-ash Waste , , supra supra supra supra supra supra IAN , Feb. 20, 2009, http://www.guardian.co.uk/world/2009/feb/20/obama-mayors- , Feb. UK . . Id. Id. Id. Id. Id Id. Id. Id. Id. Id. Id. Id. Id. Regulation Risks, Lapses in Waste Coal Ash Reveals Spill Id. Id. CO Toxic Coal Ash Toxic Id. Coal Ash Toxic Coal Ash Spill Reveals Risks, Lapses in Waste Regulation in Waste Risks, Lapses Coal Ash Reveals Spill . ]. OTES index.php?option=com_content&task=view&id=439&Itemid=27). 33 28, 2009, http://www.huffintonpost.com/2009/01/14/lisa-jackson-science-will_n_157861. html. 31 32 to Legislation Rahall Introduces Resources, Committee on Natural House Release, Press 14, 2009)( (Jan. Coal Ash Disposal Regulate http://news.yahoo.com/s/ap/20090109/ap_on_go_ot/coal_ash/print [hereinafter http://news.yahoo.com/s/ap/20090109/ap_on_go_ot/coal_ash/print [hereinafter Ash 2 Nasaw, Daniel 18 Shogren, Elizabeth 6 http://www.npr.org/templates/story/story.php?Id=98857483. 19 20 Clayton, 21 22 Shogren, 23 24 25 26 Lombardi, 27 28 29 30 Cappiello, Dina www.physorg.com/print150654399.html. 4 Kristen Lombardi, www.publicintegrity.org/blog/entry/1107/. 5 Clayton, Mark 7 8 Lombardi, 9 www.physorg.com/print150654399.html. 16 17 Dewan, 2009, http://www.michaelmoore.com/words/latestnews/print.php?id=13002. 13 14 15 10 11 12 Dewan, Shaila stimulus-package/print. 3 N 1 Cappiello, Dina \\server05\productn\L\LPR\14-2\LPR204.txt unknown 5 Seq: 27-MAY-09 10:51 26794 lpr_14-2 Sheet No. 16 Side A 06/29/2009 13:47:06 A 06/29/2009 16 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 16 Side B 06/29/2009 13:47:06 Jan. 14, Jan. , COM . RESS P REE F note 14. IMES T supra , , note 1. eepress.com/news/2009/jan/14/coal-ash-legislation-introduced-congress/? supra , Coal Ash Legislation Introduced in Congress AshCoal Introduced Legislation Id. Regulation Risks, Lapses in Waste Reveals Coal Ash Spill Toxic Coal Ash Toxic 146 36 37 2009, http://timesfr 2009, print. 35 Loyola Public Interest Law Reporter Law Interest Public Loyola 34 Sohn, Pam \\server05\productn\L\LPR\14-2\LPR204.txt unknown 6 Seq: 27-MAY-09 10:51 26794 lpr_14-2 Sheet No. 16 Side B 06/29/2009 13:47:06 B 06/29/2009 16 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 17 Side A 06/29/2009 13:47:06 147 OHAMMED M No. 2 • Spring 2 • No. 2009 AMEENA S by , in which the Court held that a One year later, in his new as year role One 1 AND CRITICISM DRAWING PRAISE DRAWING SIGNING FAIR PAY ACT, PAY SIGNING FAIR CAMPAIGN PROMISE IN PROMISE CAMPAIGN The Act was proposed to overturn the Supreme Court’s ruling in the Supreme to overturn was proposed The Act 2 PRESIDENT OBAMA KEEPS PRESIDENT n January 2008, then-Senator Barack Obama was one of several co-sponsors was one of several Obama Barack 2008, then-Senator n January (Act). Act Pay of the Lilly Ledbetter Fair I \\server05\productn\L\LPR\14-2\LPR205.txt unknown 1 Seq: 8-MAY-09 10:16 Ledbetter v. The Goodyear Tire & Rubber Co. & Rubber Tire Ledbetter v. The Goodyear VII must be filed within timely wage discrimination complaint under Title President of the United States, he has signed the legislation that he helped States, of the United President introduce. 26794 lpr_14-2 Sheet No. 17 Side A 06/29/2009 13:47:06 A 06/29/2009 17 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 17 Side B 06/29/2009 13:47:06 10 , a 11 In 3 Plain- 12 President The prob- Ledbetter Ms. Deem 5 undermined 9 4 13 . Under Under 8 Ledbetter Ledbetter in some capacity. 7 Ledbetter On January 28, 2009, Congress passed the Act passed 2009, Congress 28, January On 6 148 The Act takes this problem into account by providing that the 180 or 300 day that the 180 providing into account by takes this problem The Act claim-filing period would start anew a paycheck – every receive time plaintiffs decision to pay them less. their employer’s every affected by time they are Democrat Pelosi, Nancy of the House included Speaker of the Act Supporters of Maryland, Democrat the A. Mikulski, Barbara of California, and Senator chief sponsor of the bill. Opportunity Commission’s Employment The Equal also supported Ishimaru, this legislation, Chairman, Stuart (EEOC) Acting the countrynoting, “The act is a victory across are for . . . all workers who unequal pay for performing equal work.” shortchanged receiving by The Act begins by finding that the Supreme Court in finding that the Supreme begins by The Act Loyola Public Interest Law Reporter Law Interest Public Loyola discrimina- an employer’s state) of on the depending 300 days, days (or 180 tory is discovered. the time discrimination from to pay less, not decision Bush President terms, previous in introduced legislation was When this in in the Senate it, and when it came up for consideration to veto threatened a filibuster. short of overcoming 2008, it fell four votes April construing the statute of limitations period narrowly by VII protections Title claims. in which plaintiffs can bring pay discrimination \\server05\productn\L\LPR\14-2\LPR205.txt unknown 2 Seq: 8-MAY-09 10:16 with a largely party-line vote, and the next day, as promised, President Obama President and the next day, as promised, with a largely party-line vote, work that “making our economy into law, proclaiming signed the legislation for everyone.” it works means making sure the year and a half since the decision, over 1,300 courts, 12 of the 13 including decision, over and a half since the the year cited have federal Courts of Appeals, tiff-side labor and employment attorneys in Chicago, including Marvin attorneys in Chicago, Gittler tiff-side labor and employment note that the EEOC and the courtsand Lori Deem, had been interpreting to prior for years VII as this legislation requires Title lem with this, proponents of the legislation contend, is that potential plaintiffs of the legislation contend, is lem with this, proponents them less is paying later that their employer until years often do not discover on discussing salaries with co-workers. than their colleagues, due to the taboo Obama often referenced Lilly Ledbetter, the plaintiff in the case, during his the plaintiff in the case, during Lilly Ledbetter, often referenced Obama stops. debates and campaign plaintiff would have 180 or 300 days from the time her employer made a the time her employer 180 or 300 days from plaintiff would have discriminatory decision about her compensation to bring a claim. 26794 lpr_14-2 Sheet No. 17 Side B 06/29/2009 13:47:06 B 06/29/2009 17 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 18 Side A 06/29/2009 13:47:06 149 The 17 Representa- 16 No. 2 • Spring 2 • No. 2009 ] and settled law,” what was unsettled really 15 14 Ms. Deem, however, dismisses these concerns however, Ms. Deem, ?” 18 Ledbetter IVEAWAY 19 G 2009 AP Photo/Ron Edmonds 2009 AP Photo/Ron left from Standing Act. Pay center, signing Fair Obama President Barbara of Maryland, Sen. Hoyer Leader Steny Majority House are: Lilly Ledbetter, R-Me., Snowe, Olympia Sen. D-Md., Mikulski, Majority and Senate Norton, Holmes Eleanor D.C. Delegate of California. Pelosi Leader Nancy http://www.jcfloridan.com/jcf/news/politics/national_ at: available govtpolitics/article/obama_signs_equal-pay_bill/57013/ AWYER L RIAL A “T in the status quo, not everyone shares as restoring While some praise the Act campaign promise. Obama’s of President celebrating the realization Senator bill essentially eliminates argues that the of Oklahoma, Republican Inhofe, Jim claims. discrimination the statute of limitations on employment this Act has a restorative effect. has a restorative this Act explains, “The Court “The explains, [in \\server05\productn\L\LPR\14-2\LPR205.txt unknown 3 Seq: 8-MAY-09 10:16 as “overblown” because of the difficulties that persist in obtaining proof of because of the difficulties that persist in obtaining proof as “overblown” wage discrimination. U.S. Chamber of Commerce shares his concern about the increase in litigation his concern about the increase shares U.S. Chamber of Commerce this legislation could spawn. tive Howard P. McKeon, Republican of California, and a ranking member of of California, Republican P. McKeon, Howard tive opponent of and Labor Committee, has also been a vocal Education the House the bill, characterizing it as an “economic stimulus” for trial lawyers. 26794 lpr_14-2 Sheet No. 18 Side A 06/29/2009 13:47:06 A 06/29/2009 18 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 18 Side B 06/29/2009 13:47:06 , 22 18 , 16 N.Y. , 23 , Apr. 24, , Apr. IMES , Jan. 30, 2009. , Jan. Love, Sex and Politics? Sex Love, N.Y. T , IMES Mr. Brittain further ex- Mr. Brittain N.Y. T 21 , , 25 Berkeley J. Emp. & Lab. L. 167, J. Emp. , 25 Berkeley According to Mr. Brittain, the Equal to Mr. Brittain, According , 127 S. Ct. 2162, 2169 (2007). 20 Opponents, meanwhile, wary Opponents, of increased 25 Leonard Bierman & Rafael Gely, & Rafael Gely, Bierman Leonard note 3. note 3. see also which passed the House on January 9, 2009, is fur- on January House which passed the supra supra 24 supra supra Obama Signs Equal-Pay Legislation Equal-Pay Signs Obama In the Wake of Ledbetter v. Goodyear Tire & Rubber Company: Applying the Company: Applying & Rubber Tire v. Goodyear of Ledbetter the Wake In Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama by Action Quick Draw May Case in Discrimination Ruling Justices’ Republican Senators Block Pay Discrimination Measure Pay Block Senators Republican , 127 S. Ct. at 2179. , Jan. 5, 2009, at A13. 5, 2009, at , Jan. The Lilly Ledbetter Fair Pay Act of 2007: Hearing before the H. Education and Labor Comm. the H. Education before of 2007: Hearing Act Pay Ledbetter Fair The Lilly Ledbetter Supporters Cheer, Critics Brace for Litigation as Obama Signs Ledbetter Measure into Law, Ledbetter Measure Signs as Obama for Litigation Brace Cheer, Critics Supporters OTES IMES 9 2008, at A22. 6 15, 2008), http://www.debates.org/ (Oct. Debate Presidential McCain-Obama The Third pages/trans2008d.html. 7 Sheryl Stolberg, Gay 8 of 2009, Act Pay Fair 10 T 110th Cong., 1st Sess. (2007) (testimony of Wade Henderson, President and CEO, Leadership President Henderson, (2007) (testimony of Wade 110th Cong., 1st Sess. on Civil Rights); Conference 150 Sure. Salary? No Way”: Workplace Social Norms and the Law Social Norms Workplace Way”: Salary? No Sure. 171 (2004). 11 of 2009, Act Pay Fair 2 30, 2009). (BNA), at A-1 (Jan. Lab. Rep. Daily 3 5); 111-5, 2009 U.S.C.C.A.N. (123 Stat. L. No. of 2009, Pub. Act Pay Lilly Ledbetter Fair Co. & Rubber Tire Ledbetter v. The Goodyear 4 Zisk, Nancy Discrimination Claims for Pay Period of the Limitations to Determine the Start Discovery Rules (2009); 137, 138-39 L. & Pol’y J. Gender Duke 5 Carl Hulse, N 1 Robert Pear, This controversial Act is significant not only as a realization of President not only as a realization is significant Act This controversial administration’s com- but because it signals the campaign promise, Obama’s equal pay for equal work.mitment to ensuring such as the legislation, Pending Act, Fairness Paycheck Loyola Public Interest Law Reporter Law Interest Public Loyola also thirty years, over for practicing lawyer employment Jr., an G. Brittain Max this legislation is redundant. believes stepped notes that “courts always have fears, Mr. Gittler to such response In dilatory their rights. intentionally are in” when plaintiffs in exercising \\server05\productn\L\LPR\14-2\LPR205.txt unknown 4 Seq: 8-MAY-09 10:16 ther evidence of the commitment by President Obama and his supporters to Obama President commitment by ther evidence of the eliminate wage discrimination. litigation, will have newlitigation, will have opportunities to issue challenges and amendments to of fair pay legislation. the next wave Pay Act is already in place as “a means by which a female [can] challenge pay which a female as “a means by in place is already Act Pay statute of limitations. with a longer decisions,” decades-old may face in defending employers at the difficulty concern pressed supervisorsclaims against away. the company or passed left may have who 26794 lpr_14-2 Sheet No. 18 Side B 06/29/2009 13:47:06 B 06/29/2009 18 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 19 Side A 06/29/2009 13:47:06 151 , 60 Human Re- , 60 Human note 15. supra supra No. 2 • Spring 2 • No. 2009 , Jan. 10, 2009 at A13. 10, 2009 , Jan. ouse Approval IMES N.Y. T , easures Win H easures note 13. note 13. note 2. note 2. supra supra supra supra supra supra Ledbetter, Paycheck Fairness M Fairness Ledbetter, Paycheck House Passes 2 Measures on Job Bias on Job 2 Measures Passes House (BNA), at 2 (Jan. 13, 2009); Congressional Documents, Documents, 13, 2009); Congressional (BNA), at 2 (Jan. . Id. Id. Id. sources Rep sources 12 Labor Rep., Daily 13 in Chi., & Levinson, Vorachek Abrahamson Interview Partner, with Lori Deem, Telephone Green- Asher, Gittler, Interview Partner, with Marvin Gittler, 5, 2009); Telephone (March Ill. 5, 2009). (Feb. Ltd. in Chi., Ill. field & D’Alba, 14 15 Give- Lawyer Trial Send Floor, House Lock Down Democrats Documents, Congressional WLNR 1630289). 27, 2009) (2009 (Jan. Debate Serious Without away to President 16 to Workplace Approach for Balanced Support Voices Inhofe Release, Press Government 1363688). 23, 2009) (2009 WLNR (Jan. Discrimination 17 Cain, Derrick 18 Labor Rep., Daily 19 Interview with Deem, 20 27, (Feb. in Chi., Ill. Hardin, Schiff Jr., Partner, Interview J. Brittain, with Max Telephone 2009). 21 22 23 Interview Gittler, with 24 2009). H.R. 12, 111th Cong. (1st Sess. Act, Fairness Paycheck 25 Robert Pear, \\server05\productn\L\LPR\14-2\LPR205.txt unknown 5 Seq: 8-MAY-09 10:16 26794 lpr_14-2 Sheet No. 19 Side A 06/29/2009 13:47:06 A 06/29/2009 19 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 19 Side B 06/29/2009 13:47:06 , Milk EHRIG 1 R LAY 4 C by Proposition 8, California’s Proposition 3 MAJORITY VOTE MARRIAGE BY SIMPLE MARRIAGE CALIFORNIA BANS GAY CALIFORNIA Most notably though, the Supreme Court of California extended notably though, the Supreme Most 2 008 was a bittersweet year for the gay rights movement. The Supreme for the gay rights movement. year 008 was a bittersweet Court granted same-sex couples the right to marry. of Connecticut 152 2 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR206.txt unknown 1 Seq: 27-MAY-09 13:14 the fundamental right to marry this right couples, only to have to same-sex a fewtrumped a ballot initiative months later. by constitutional amendment to ban same-sex marriage, was approved by the vot- by constitutional amendment to ban same-sex marriage, was approved of the vote. 4 with 52 percent ers of California on November the blockbuster movie about a slain gay politician from San Francisco, gener- Francisco, San about a slain gay politician from the blockbuster movie for Award nominated for an Academy ated immense media attention and was Picture. Best 26794 lpr_14-2 Sheet No. 19 Side B 06/29/2009 13:47:06 B 06/29/2009 19 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 20 Side A 06/29/2009 13:47:06 9 13 153 7 Furthermore, it was Furthermore, No. 2 • Spring 2 • No. 2009 11 In the end, the amend- In 12 However, the validity of this the validity However, 6 Subsequently, the Supreme Court Supreme the Subsequently, 5 The result was Proposition 8, which unequiv- was Proposition The result 10 ECOGNIZED R IGHT WAY R A Further, it found that, in terms of judicial review, sexual orienta- it found that, in terms of judicial review, sexual Further, AKEN 8 T ND UNDAMENTAL Conservative and religious-affiliated groups denounced the decision, and in denounced the decision, groups Conservative and religious-affiliated on to place a constitutional amendment collected enough signatures response, the ballot in the next election. with emotional entangle- 8 was long and wrought Proposition The battle over the ments. Both supporters and opponents fought tough battles and endured about the constant bar- complained Proponents other side’s blatant offensives. about rage of names like “bigot” and “homophobe,” while opponents worried the other side. condemnation paraded by the religious On May 15, 2008, these six couples finally received the recognition they were the recognition these six couples finally received 15, 2008, May On Court struck the state’s down a 4-3 ruling, the California Supreme seeking. In ruled civil unions and marriages and that homosexual distinction between the same right to marry granted to heterosex- couples must be afforded already ual couples. A F the same-sex spurred Francisco, San of the mayor Newsome, Gavin 2004, In couples licenses to same-sex offering marriage battle when he began marriage Hall. City Francisco’s on the steps of San \\server05\productn\L\LPR\14-2\LPR206.txt unknown 2 Seq: 27-MAY-09 13:14 tion is a suspect classification similar to race or sex and now strict judicial to race or sex and now tion is a suspect classification similar denied based on sexual orientation. scrutiny when rights are must be used ocally prohibited a same-sex couple from marrying a same-sex couple from under the Constitution of ocally prohibited California. . . . A law and the court’s order to halt the gay marriages prompted six same-sex prompted to halt the gay marriages law and the court’s order Court of California to file a law suit in the Supreme couples in California on the basis of sexual orientation. alleging discrimination of California intervened and ordered the city to stop issuing marriage licenses of California intervened and ordered marriage restricted based on a 2000 California law, which to same-sex couples woman. one man and one to a union between ment passed, banning same-sex marriages in the country’s largest state and 18,000 same-sex couples’ marriages in jeopardy. of over putting the validity expensive. More than $70 million was raised for and against the measure, to- than $70 million was raised for and against the measure, More expensive. than all similar campaigns combined. taling more 26794 lpr_14-2 Sheet No. 20 Side A 06/29/2009 13:47:06 A 06/29/2009 20 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 20 Side B 06/29/2009 13:47:06 19 Young explains that Young 18 Because the Court Because defined 21 For this reason, Vitagliano sees it as important Vitagliano reason, this For 22 15 Homosexuals remain a protected class, which was a protected remain Homosexuals 16 20 Now, with the legal status of his marriage undecided, with the Now, He explains that no matter what courts that no matter explains rule, two men He 17 14 154 The Supreme Court of California has agreed to hear a case challenging the Court of California has agreed The Supreme 18,000 same-sex couples 8 and the legal status of the of Proposition validity months gay marriage was legal. married in California during the five who were the idea that the people of Califor- 8 is upheld, it will reinforce Proposition If mar- ensuring the vote, a simple majority nia can change their constitution by it decide to overturn in place only until the voters riage ban will remain in the future. a similar ballot initiative through Among those whose marriage is now uncertain is Todd Young, a Chicago na- Young, uncertain marriage is now is Todd Among those whose to California to marry 1, who traveled partner his long time tive, on August the morn- when he woke up to the results feeling “disbelief” recalled 2008. He ing after the election. married and the 18,000 other recently for Young Although devastating Illinois, attorney and gay rights activist with Equality Madigan, couples, Jim recog- of the rights a complete overruling 8 is not explains that Proposition for gay couples.nized because it only takes fact, its effect is rather narrow In away the right to marry. Loyola Public Interest Law Reporter Law Interest Public Loyola of the basic one view of the ban of protecting means as a legal it Proponents Association the American Family of Vitagliano Ed of our society. components to maintain 8 “an importantdrive in the short-term measure” calls Proposition marriage. traditional \\server05\productn\L\LPR\14-2\LPR206.txt unknown 3 Seq: 27-MAY-09 13:14 the real bite of the Supreme Court’s judgment. bite of the Supreme the real for the people to stand up, reassert their own values, and not let society be values, stand up, reassert their own for the people to judicial whim. dictated by homosexuals as an oppressed group, additional legislation based on sexual ori- additional legislation based on sexual group, homosexuals as an oppressed pass heightened judicial scrutiny, and this partentation must now of the Court’swill stand. judgment Young says this issue has become “a very says this issue has become one.” emotional Young cannot marry, the views effect on but these court of rulings a profound have the country. over people all over the years, as a member of the gay community, he had come to accept his as a member of the gay community, the years, over the opportunity to for Young, But place in society as a second-class citizen. to have of society, only a sense of equality with the rest marry finally provided 8. the emotional outcome of Proposition it undermined by 26794 lpr_14-2 Sheet No. 20 Side B 06/29/2009 13:47:06 B 06/29/2009 20 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 21 Side A 06/29/2009 13:47:06 155 No. 2 • Spring 2 • No. 2009 AJORITY The silver lining, though, is The silver M He will continue to fight for He 24 He explains that “marriage can He 27 29 Similar to how the Civil Rights Act to how Similar Ironically, in the same election where Ironically, 25 23 . ILL OF THE , Nov. 1, 2008, http://www.economist.com/world/ , Nov. W when but if CONOMIST E , UBJECTED TO THE In response to Young and to those 18,000 same-sex couples, to Young response In S 28 30 Sooner or later rights for gays and lesbians will be recognized, just or later rights for gays and lesbians will be recognized, Sooner 26 INORITY Showdown; Proposition 8 Proposition Showdown; OTES unitedstates/displayStory.cfm?story_id=12522924. Galvanized by the passage of Proposition 8, the gay movement vows to con- vows 8, the gay movement the passage of Proposition by Galvanized tinue this fight. N 1 A M the debate has gay marriage. Now and rejected of California voted The people minority group elects to strip a when the majority into what happens evolved dubbed this fight “the activists have right. Gay fundamental of a recognized civil rights struggle of our generation.” \\server05\productn\L\LPR\14-2\LPR206.txt unknown 4 Seq: 27-MAY-09 13:14 like they were for the black community. And similar to what happened in for the black community. And similar to what happened like they were a minority’s rights; legislation should come first to protect 1964, progressive heartsvoters’ and minds will follow. “married” back from that although his legal status might revert believes Young married. to “single,” he is emotionally no less elevated the status of all African-Americans and ended discrimination based on and ended discrimination based the status of all African-Americans elevated something similar will be implemented hopes that race, the gay movement As one Illinois to marry of sexual orientation. one’s right regardless regarding and to what is wrong, what is right over legislator explains, “the tendency to do taking them away, always wins out in expand individual’s rights rather than the end.” gay marriage, stating that “we have to claim this right so others can claim it to claim this right so others can claim have gay marriage, stating that “we easily.” more Vitagliano says, “they simply aren’t married.” says, “they simply aren’t Vitagliano this traditional view one man and one woman,” and for him, only be between if it means another constitutional of marriage is important to defend, even amendment. the Civil Rights Act of 1964, and the present activists’ persistence that equal activists’ the present of 1964, and the Civil Rights Act not a matter of rights are the first African-American was elected President, black voters overwhelming voters black was elected President, the first African-American rights. supported the ban on a minority group’s 26794 lpr_14-2 Sheet No. 21 Side A 06/29/2009 13:47:06 A 06/29/2009 21 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 21 Side B 06/29/2009 13:47:06 , , IMES COM . , Nov. , May 16, , May EWS LA T IMES N , D IMES E P L.A. T , LA T , O , , Feb. 23, 2009, http:// 23, 2009, , Feb. COM , Mar. 11, 2004, http://www. , Mar. . NN C ODAY , USA T , , Feb. 22, 2004, http://www.cnn.com/2004/ 22, , Feb. . COM note 14 note 9. note 9. note 17. CNN. , oposition 8 Banning Same-sex Marriages oposition 8 note 1. supra supra supra supra supra rove Pr , note 3. The Greatest Civil Rights Battle of Our Generation of Our Rights Battle Civil The Greatest supra supra Voters App Voters California Supreme Court Overturns Gay Marriage Ban Court Marriage Overturns Gay California Supreme Proposition 8 Supporters Vent Frustration over Continued Protests over Frustration Vent 8 Supporters Proposition California Court Stops Gay Marriages Gay California CourtStops Marriage Cases, 183 P.3d 384 (Sup. Ct. 2008). (Sup. Cases, 183 P.3d 384 Marriage Id. Id. Id. Id. Id. Id. Showdown; Proposition 8 Proposition Showdown; Id. Id. Id. Marriages Same-sex Defends Mayor Id. In re Complete List of Academy Award Winners and Nominees Winners Award of Academy List Complete 21 22 23 Piana, Della Deb 13 Garrison, Jessica 14 Assoc. American Family of Research, Director Interview Vitagliano, with Ed Telephone 6, 2009). (Feb. 15 16 17 11, 2009). (Feb. in Chicago, Ill. Young Interview with Todd 18 19 20 Interview Madigan, with Jim Nov. 11, 2008, http://www.latimes.com/news/local/la-me-prop811-2008nov11,0,5752091. Nov. story. 12 26 27, 2009). (Mar. in Chicago, Ill. Representative, State Illinois Harris, Interview with Greg 27 Young, Interview with Todd 5, 2008, http://www.latimes.com/news/local/la-me-gaymarriage5-2008nov05,0,1545381.story. 4 5 156 30 28 29 Interview Vitagliano, with Ed Nov. 26, 2008, http://www.opednews.com/articles/The-greatest-civil-rights-by-Deb-Della-Pi- Nov. ana-081124-884.html. 24 http://www.cnn.com/ELECTION/2008/results/ Measures, Ballot Polls, CNN.com, Exit 3, 2009). (last visited Apr. polls/#val=CAI01p1 25 Interview Madigan, with Jim 2008, http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story. 11 Mozingo, Joe www.cnn.com/2009/SHOWBIZ/Movies/02/22/oscar.nominees.full.list/index.html. 3 Garrison, Jessica 9 in Chicago, Ill. Illinois, Equality Director, Executive Interim Interview Madigan, Jim with 9, 2009). (Mar. 10 Dolan, Maura usatoday.com/news/nation/2004-03-11-gay-marriage-calif_x.htm. 7 8 LAW/02/22/same.sex/index.html. 6 Ritter, John Loyola Public Interest Law Reporter Law Interest Public Loyola 2 \\server05\productn\L\LPR\14-2\LPR206.txt unknown 5 Seq: 27-MAY-09 13:14 26794 lpr_14-2 Sheet No. 21 Side B 06/29/2009 13:47:06 B 06/29/2009 21 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 22 Side A 06/29/2009 13:47:06 157 The 2 EILBAECHER W NN No. 2 • Spring 2 • No. 2009 A By FEATURE ARTICLE FEATURE The Protection and Utilisation of Public Funded Intellectual Funded of Public and Utilisation The Protection 1 ENACTING U.S. BAYH-DOLE ENACTING he Rajya Sabha, India’s Upper House of Parliament, recently began con- recently of Parliament, House Upper India’s he Rajya Sabha, sidering a contentious piece of intellectual property legislation modeled PROMISES AND PITFALLS OF PITFALLS AND PROMISES LOST IN TRANSLATION? LOST THE STYLE LEGISLATION IN INDIA IN STYLE LEGISLATION T of 1980 (Bayh- Law Amendments Act and Trademark after the U.S. Patent Act). Dole \\server05\productn\L\LPR\14-2\LPR207.txt unknown 1 Seq: 27-MAY-09 10:57 Property Bill, 2008 (Indian Bayh-Dole Bill) allows universities, rather than the universities, allows Bill) Bayh-Dole 2008 (Indian Bill, Property publicly funded research. from derived to patent discoveries government, 26794 lpr_14-2 Sheet No. 22 Side A 06/29/2009 13:47:06 A 06/29/2009 22 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 22 Side B 06/29/2009 13:47:06 3 They contend that the Bayh-Dole Scholars, however, express concern express Scholars, however, 13 12 11 5 These critics assert These critics purported that the of benefits BROAD 4 Advocates allege that since its inception, “the over- Advocates A 10 and “the Magna Carta technology and “the Magna for university 7 CT A MULATION OLE E Further, scholars suggest that Bayh-Dole style legislation may even scholars suggest that Bayh-Dole Further, -D 14 8 OLE AYH Journalists and commentators have referred to the Bayh-Dole Act as Act to the Bayh-Dole referred commentators have and Journalists -D According to the U.S. Government Accountability Office, the federal Office, Accountability to the U.S. Government According 6 9 AYH government owned 28,000 patents and less than five percent of those patents of those percent and less than five 28,000 patents owned government licensed to industry. were “[p]ossibly the most inspired piece of legislation to be enacted in America over piece of legislation to be “[p]ossibly the most inspired the past half-century,” In the hopes of achieving similar benefits, developing and emerging countries the hopes of achieving similar benefits, developing In implemented Bayh-Dole and China have Africa, Malaysia South such as Brazil, years. style legislation in the past several 158 Proponents report that before the Bayh-Dole Act, thousands of government- Act, the Bayh-Dole report that before Proponents the laboratories across collecting dust in university were funded inventions U.S. B U.S. B Act, the U.S. Bayh-Dole is closely modeled after Bill Bayh-Dole The Indian resulting on innovations the right to obtain patents universities which gives licenses on those pat- and to issue exclusive research government-funded from ents. Loyola Public Interest Law Reporter Law Interest Public Loyola royal- in the a share institutions and inventors also gives Bill Bayh-Dole Indian products. commercial resulting the from licensing fees generated ties and in greater result will Bill Bayh-Dole the Indian argue that While proponents industry, institutions and academic critics among the government, interaction will on commercialization legislation’s emphasis the proposed caution that the public interest. threaten \\server05\productn\L\LPR\14-2\LPR207.txt unknown 2 Seq: 27-MAY-09 10:57 the Bayh-Dole Act have been overstated in the U.S., and that the Indian Bayh- in the U.S., and that the Indian been overstated have Act the Bayh-Dole essential and access to potential to hinder innovation has the Bill Dole in India. medicines and treatments all effect of the Bayh-Dole Act has been to contribute more than $40 billion has been to contribute more Act all effect of the Bayh-Dole annually to the American economy.” transfer.” that many countries are adopting such legislation based upon faulty assump- that many countries are efficacy in the U.S. tions about the Act’s Act is only one of a number of factors that has lead to increased patenting and is only one of a number of factors that has lead to increased Act licensing. 26794 lpr_14-2 Sheet No. 22 Side B 06/29/2009 13:47:06 B 06/29/2009 22 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 23 Side A 06/29/2009 13:47:06 15 159 Biospec- No. 2 • Spring 2 • No. 2009 23 Shamnad Basheer, an Basheer, Shamnad 16 “It’s the same trend where the same trend “It’s 22 Basheer was instrumental Basheer in bring- 20 Basheer recommends that the legislators recommends Basheer 17 EGISLATION 18 L 21 Although drafting began in 2005, the Minister of Science and Tech- of Science Minister Although drafting began in 2005, the , and calling for public interest groups and stakeholders to demand groups , and calling for public interest 19 ECRECY OF THE Some, however, are not as concerned with the lack of transparency. are however, Some, Naryanan first biotechnology business magazine, of India’s Editor Group Suresh, The secrecy of the legislation has spurred public outcry. of the legislation has spurred “I think it’s partThe secrecy of a feel that they can act in debating impunity in which governments troubling very implications,” states Ethan these issues that have important public interest Allied for Essential Medicines of Universities Director Executive Guillen, a student-run group. (UAEM), public interest S the Indian authority, approved highest executive Cabinet, India’s The Union to the a draft released legislators before 31, 2008, October, on Bill Bayh-Dole public. inhibit scientific research and innovation in developing countries because too because countries in developing innovation and research scientific inhibit disputes. and time-consuming claims can lead to overlapping many patents of a country example the most recent is legislation considering enacting India of transplanting the wisdom Scholars question Act. the Bayh-Dole similar to cultural, eco- the different legislation to a countryU.S. style given like India, with the U.S. compared legal context of modern day India nomic, social, and was enacted. Act the Bayh-Dole in the 1980s when \\server05\productn\L\LPR\14-2\LPR207.txt unknown 3 Seq: 27-MAY-09 10:57 nology first disclosed the Indian Bayh-Dole Bill in December 2008, just before in December Bill Bayh-Dole nology first disclosed the Indian to Parliament. it was formally introduced “study what the specific Indian conditions are and then customize the bill to the customize and then are conditions Indian “study what the specific those conditions.” ing the bill to the public’s attention, posting unofficial drafts on his website, ing the bill to the public’s attention, IP Spicy transparency. governments go behind closed doors and work with industry-minded go behind closed doors and work groups governments then foisted upon the public without any real these policies that are to create comment,” says Guillen. civil society or public interest associate at New Delhi’s Oxford Intellectual Property Research Center, asks Research Property Intellectual Oxford Delhi’s associate at New import to blindly given India such a bill, it make sense for rhetorically, “Does of univer- of the nature (in terms set of circumstances a different have that we with industry, relationship pre- cultural specificities) than what sity research, in the US in the ’80s?” vailed 26794 lpr_14-2 Sheet No. 23 Side A 06/29/2009 13:47:06 A 06/29/2009 23 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 23 Side B 06/29/2009 13:47:06 He adds, He 28 26 In fact, legislators are only legislators are fact, In 24 35 Unlike the U.S. Bayh-Dole Act, the Indian Act, the U.S. Bayh-Dole Unlike Universities would retain 40 percent of the net 40 percent would retain Universities 31 30 25 According to Suresh, there is widespread support is widespread for there to Suresh, According 27 EALTH W “That statement is pretty deeply misinformed if you think about deeply misinformed if you “That statement is pretty , points out that there is no set procedure for releasing draft docu- for releasing procedure is no set there out that , points 33 29 32 “There have only been a few universities that have made a lot of only been a few that have have universities “There 34 ENERATING 160 Under the Indian Bayh-Dole Bill, scientists would be allowed to retain at least retain to scientists would be allowed Bill, Bayh-Dole the Indian Under from patents and licenses resulting earned from of the royalties 30 percent research. funded government confidence that the bill will be expressed Kapil Sibal, Science Minister, India’s to “make millions through universities passed, and that it will assist Indian patents.” G to reap universities will allow Bill Bayh-Dole that the Indian argue Proponents jump startresult, scientific and, as a their discoveries, financial benefits from in India. innovation Loyola Public Interest Law Reporter Law Interest Public Loyola trumIndia to Parliament. introduced they are ments before he asserts acted legally, that the government acknowledges While Basheer import with legislation that has such is a “good norm,” especially transparency Bill. Bayh-Dole as the Indian to the public interest \\server05\productn\L\LPR\14-2\LPR207.txt unknown 4 Seq: 27-MAY-09 10:57 universities as a whole in the U.S.,” says Professor Matthew Herder, visiting Matthew Herder, as a whole in the U.S.,” says Professor universities School of Chicago University at Loyola intellectual property law professor Law. income, and the remaining income would finance the management of intellec- income would finance the income, and the remaining tual property at the university. are to which inventors specifies a minimum percentage actually Bill Bayh-Dole entitled. those that been successful. . .were and those that have money after Bayh-Dole, for the most part.” successful before were the Indian Bayh-Dole Bill among biotech experts the legislation among Bill who believe Bayh-Dole the Indian in the biotech sector like it did in the U.S. could spur innovation “In India, scientists are no different from scientists anywhere else in the world” else in the anywhere scientists from no different scientists are India, “In their them to commercialize a bill that allows by and would be motivated research. required to publicly disclose documents after they are introduced to Parlia- introduced they are documents after to publicly disclose required to Suresh. ment, according 26794 lpr_14-2 Sheet No. 23 Side B 06/29/2009 13:47:06 B 06/29/2009 23 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 24 Side A 06/29/2009 13:47:06 161 46 The 42 He elabo- He 36 43 He elaborates, He When the Bayh 45 40 According to Guil- According No. 2 • Spring 2 • No. 2009 37 38 As a consequence, a “march- Compulsory licensing would 41 47 Herder notes, “What we don’t know is if there are is if there don’t know we notes, “What Herder 44 CCESS A 39 AFEGUARDS TO Basheer contends that in an earlier draft of the legislation there was a clause contends that in an earlier draft of the legislation there Basheer Patent under the Indian specifying that the compulsory provisions licensing Bill. Bayh-Dole would apply to the Indian Act Guillen asserts, however, that the “march-in right” process has been “imperfect right” process that the “march-in asserts,Guillen however, invoked has never in the U.S., because the government flawed” and extremely rights.” these “march-in The most pressing concern outlined by public interest groups is that the Indian groups public interest by concern outlined The most pressing funded re- access to the fruits of government will threaten Bill Bayh-Dole search. the institu- will “allow Bill Bayh-Dole cautions that the Indian UAEM may place life-saving to charge monopoly prices that tions and their licensees the consumers, denying them poorest of India’s reach medicine out of the research.” opportunity publicly-funded from to benefit fewer contains even Bill Bayh-Dole concern that the Indian expresses Guillen Act. public access than the Bayh-Dole to preserve safeguards According to Basheer, “The costs of operating the technology transfer offices transfer the technology of operating “The costs Basheer, to According out of licensing.” make universities the money most far exceed S \\server05\productn\L\LPR\14-2\LPR207.txt unknown 5 Seq: 27-MAY-09 10:57 cases where a license was disseminated broadly because the government said because the government a license was disseminated broadly cases where rights behind the scenes.” march-in going to invoke they were in right” provision was added whereby if anything was brought to market was brought if anything was added whereby in right” provision could take action. the government circumstances, under unreasonable len, “The Bayh-Dole Act is at the basis of everything is trying Act that UAEM to len, “The Bayh-Dole change.” Dole Act was debated in the U.S., there was an emphasis on preserving pubic was debated in the U.S., there Act Dole of publicly funded research. access to the results tool.” been used behind the scenes, it can still be a valuable they have “If could use rights” in that the government a similar effect as “march-in have for a limited period without the consent of the patent patented discoveries rates, “That is why we were very bill at an earlier they disclose the anxious that were is why we rates, “That . . a large num- that . to show empirical evidence enough there’s stage. I think money.” necessarily make would not ber of universities Indian Bayh-Dole Bill has no such “march-in right” provision. right” “march-in has no such Bill Bayh-Dole Indian 26794 lpr_14-2 Sheet No. 24 Side A 06/29/2009 13:47:06 A 06/29/2009 24 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 24 Side B 06/29/2009 13:47:06 58 51 More- 59 He further explains, He 50 Provisions of the Indian Patent Act would Act Patent the Indian of Provisions 52 49 Guillen agrees, stating that UAEM recommends, stating that UAEM agrees, Guillen 56 ATENTING P Thus, Basheer recommends stronger public access safe- stronger recommends Thus, Basheer Basheer emphasizes that the compulsory emphasizes licensing provisions Basheer 54 53 57 55 This clause, however, did not appear in the publicly released version released the publicly appear in did not clause, however, This 48 EMPHASIS ON - VER Yet another problem is the strong emphasis on patenting to the exclusion of emphasis on patenting to the exclusion is the strong another problem Yet dissemination.other forms of knowledge As a rationale for adopting the In- of percent note that only three frequently proponents Bill, dian Bayh-Dole universities. Indian filed by patent office were patents filed in the Indian because metric to go by “This is not a good to Guillen, according However, should nothing about whether the discovery just patenting something tells you licensed and used, or if it was actually it is eventually been patented, how have benefit the public.” licensed to the right company and will eventually 162 Further, Basheer recommends non-exclusive licensing provisions, particularly provisions, licensing non-exclusive recommends Basheer Further, of access to the results greater to platform technologies, to ensure with regards publicly funded research. O According to Basheer, the removal of the compulsory effec- licensing clause the removal to Basheer, According has no impact on the bill. tively Loyola Public Interest Law Reporter Law Interest Public Loyola holder. of the compulsory the clause from licensing about the removal When asked this goal in adopting the real “If speculates, Herder Bill, Bayh-Dole Indian of a familiarity firms because foreign from is to attract investment legislation having a compulsory then like regime, licensing provision with a Bayh-Dole in the U.S.” it is totally foreign would be a cost because \\server05\productn\L\LPR\14-2\LPR207.txt unknown 6 Seq: 27-MAY-09 10:57 in the Indian Patent Act are less than ideal and have many bottlenecks towards less than ideal and have are Act Patent in the Indian implementation. with wider compulsory Bill, licensing norms, Bayh-Dole in the Indian guards compulsory wait time to invoke licenses in of the three-year including removal some cases. “global access licensing internationally, to ensure that publicly funded discov- that to ensure “global access licensing internationally, cost in develop- at a low available are eries, medicines and health technologies ing countries.” of the Indian Bayh-Dole Bill. Bayh-Dole of the Indian apply to the Indian Bayh-Dole Bill even if it is not explicitly written into the if it is not explicitly written even Bill Bayh-Dole apply to the Indian new legislation. “Most of the free trade agreements the U.S. has entered into since the 1980s into since the U.S. has entered trade agreements of the free “Most of compulsory been conditioned on getting rid have licensing regimes.” 26794 lpr_14-2 Sheet No. 24 Side B 06/29/2009 13:47:06 B 06/29/2009 24 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 25 Side A 06/29/2009 13:47:06 , 62 163 PDATE Is Bayh Is U NTELLEC- I , EWS N INDU H http://www.iam-maga- HE No. 2 • Spring 2 • No. 2009 T Of particular concern is Of 60 available at available 64 The Indian Version of the Bayh-Dole Act of the Bayh-Dole Version The Indian note 1, at 62. , 62, 62 (March/ April 2009), April , 62, 62 (March/ They argue that this open approach will make it easier They argue that this open approach 66 , (November 12, 2008); Anthony D. So, Bhaven N. Sampat, Arti N. Sampat, K. Bhaven D. So, 12, 2008); Anthony , (November Guillen concurs, noting that there is widespread support is widespread concurs, noting that there Guillen 65 supra supra EEK ILL 61 63 B W http://rajyasabha.nic.in/legislative/amendbills/Science/protection_utlisation. http://rajyasabha.nic.in/legislative/amendbills/Science/protection_utlisation. As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation Stifle May Claim It Critics on Bayh-Dole, Modeled Bill Mulls As India ANAGEMENT M RANSFER TUAL T , (December 15, 2008), http://www.hindu.com/thehindu/holnus/002200812151770. , (December available at available available at available The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 §5 Bill, Property Intellectual Funded of Public and Utilisation The Protection SSET The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 §10 Bill, Property Intellectual Funded of Public and Utilisation The Protection A See See See Bill for Protecting IPR in Public Funded Research in Rajya Sabha, Research Funded IPR in Public Protecting for Bill OTES UTURE OF THE IOTECH ERVICE zine.com/issues/Article.ashx?g=AF438a8b-2c4e-4771-b573-32171a1c4c65. 2 Rai, Robert Cook-Deegan, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Amy Robert Weissman, H. Reichman, Jerome Rai, Robert Cook-Deegan, (2008), pdf. 3 (2008), pdf. 4 & Saurastri, Vartak 5 Butkus, Ben htm; Rahul Vartak and Manish Saurastri, Saurastri, and Manish htm; Rahul Vartak B N 1 S With upcoming Indian elections in May 2009, the future of the Indian Bayh- of the Indian 2009, the future elections in May upcoming Indian With is unclear. Bill Dole submitted has House the Upper Basheer, to According usually takes four to six Committee, which Standing the bill to a Parliamentary their report to the Parliament. submissions and give months to receive if a new admin- to be enacted, even Bill Bayh-Dole expects the Indian Basheer istration is elected. that in the world’s largest believe advocates Legal scholars and public interest should widen the debate to hear public government democracy, the Indian perspectives. interest over, legal scholars argue that an over-emphasis on patenting fails to recognize fails on patenting an over-emphasis that argue legal scholars over, such as publica- dissemination, of knowledge the importance of other avenues training of students. and the tions, conferences, F \\server05\productn\L\LPR\14-2\LPR207.txt unknown 7 Seq: 27-MAY-09 10:57 among the government and industry groups. among the government to learn from the experience of the Bayh-Dole Act in the U.S. and to draw the Act the experience of the Bayh-Dole to learn from right lessons for India. whether a strong emphasis on patenting will lead to a weakened commitment lead to a weakened on patenting will emphasis strong whether a withholding of and secrecy in publication delays, manifested to open science, materials. data and 26794 lpr_14-2 Sheet No. 25 Side A 06/29/2009 13:47:06 A 06/29/2009 25 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 25 Side B 06/29/2009 13:47:06 ECH- 2078, , T NIVERSITIES FFICE IOLOGY U NTERNATIONAL O I S B O , 11 PL ESEARCH 6 R CCOUNTING A CT BY 685, 685 (December 10, 2008). 685, 685 (December A OLE ATURE From Ivory Tower to Wall Street—Univer- to Wall Tower Ivory From -D N 59, 85 (2003) (quoting Jamison, Technol- Jamison, 59, 85 (2003) (quoting OVERNMENT AYH (March 18, 2009). (March (2002). B , 456 Patent Reform and Its Effects on University Technol- on University Effects Reform and Its Patent U.S. G ECHNOLOGY T CONOMIST note 7. E note 16. HE BioSpectrum India BioSpectrum supra supra T http://biology.plosjournals.org/archive/1545-7885/6/10/pdf/10. , , note 17. note 17. note 17. supra note 24. 12, 12 (2008). . at www.gao.gov/archive/1998/rc98126.pdf). note 7, at 61 (citing AW supra supra supra NFORMATION Mysterious Indian “BayhDole” Bill: “BayhDole” Indian Mysterious Post, Blog A Copy, Procures SpicyIP DMINISTRATION OF THE supra I . L note 5, at 2078, 2082. note 5. note 6, at 685. note 6, at 685. note 6, at 685. : A supra supra note 5. ED available at available available F supra supra supra supra supra supra AW AND supra Patent Pledge to Indian Universities to Indian Pledge Patent at 2080. L , 55, NOLOGY at 2082. RANSFER at 2082. at 2078-79. T Basheer Blog Post, Post, Blog Basheer Id. Id. Id. id. See See id. See See Id. Id. Id. Id. Id. Id. Innovation’s Golden Goose Golden Innovation’s Innovation’s Golden Goose Golden Innovation’s The United States Patent and Trademark Law Amendments Act of Dec. 12, 1980, Pub. L. Pub. 12, 1980, of Dec. Act Law Amendments and Trademark Patent States The United OURNAL OF July 7, 2008, http://spicyipindia.blogspot.com/2008/07/mysterious-indian-bayh-dole-bill.html July 2078-81 (2008), (2008), 2078-81 1371_journal.pbio.0060262-L.pdf. 6 Padman, See § 96-517, No. U.S.C. §§ as amended at 35 3019-28 (1980) (codified 3015, Stat. 6(a), 94 200- 212 (1994). 7 ogy Transfer and Economic Growth: A University of Utah Case Study, 1999). Case Study, of Utah A University Growth: and Economic ogy Transfer 9 10 et. al., Rubin 8 and Israel Germany, Helms, and Shawn Bukofzer China, Japan, Harry Aaron in US, Britain, Rubin, Transfer sity Technology 12 et. al., So 13 14 15 16 17 Basheer, Shamnad 20 interview, Basheer 21 25 26 interview, Basheer 27 Padman, 28 interview, Suresh 29 30 Padman, 31 32 Butkus, 33 Padman, 34 Chicago University of law at Loyola visiting professor Interview with Matthew Herder, 20th, 2009). School of Law, specializing in intellectual property (March 35 36 interview, Basheer 164 (last visited April 3, 2009) [hereinafter Basheer Blog Post]. Blog Basheer 3, 2009) [hereinafter (last visited April 18 Intellec- Oxford Delhi’s interviewNew an associate at Basheer, with Shamnad Telephone 22, 2009). (March University of Oxford Center Research tual Property 19 Padman, 22 Allied for Es- of Universities Director Executive interview Guillen, with Ethan Telephone 27, 2009). (March sential Medicines 23 24 first monthly bio- of India’s Editor Group Suresh, interview with Narayanan Telephone technology business magazine, 11 Lamb, C. & Emily Matthew A. Williams ogy Transfer 1, 3 (May 1998), 1, 3 (May Loyola Public Interest Law Reporter Law Interest Public Loyola Countries? for Developing Good Dole US Experience, the Lessons from J \\server05\productn\L\LPR\14-2\LPR207.txt unknown 8 Seq: 27-MAY-09 10:57 26794 lpr_14-2 Sheet No. 25 Side B 06/29/2009 13:47:06 B 06/29/2009 25 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 26 Side A 06/29/2009 13:47:06 165 note supra Blog Post, Blog available at available OURNAL OF J HE ]. T (2008), So et. al., So 30 See No. 2 • Spring 2 • No. 2009 note 5, at 2078-79, 2082. note 18; 763, (2008). supra supra A Health Solution for Patients and Pat- Solution for Patients A Health The Bayh-Dole Act of 1980 and Univer- Act The Bayh-Dole L. ECH So et. al., So . & T See NT hereinafter Basheer Access Blog Post Blog Access Basheer hereinafter note 48. . J. E note 18; AND supra supra V 5, 2009) [ note 18. note 18. note 18. note 22. note 22. note 22. note 22. note 18; Sara Beth Myers, Myers, Beth note 18; Sara note 34. note 22; Basheer interview, note 22; Basheer supra PRIL , 10 115, 122-23 (2005). A Indian Bayh Dole Finally Goes Public: Goes Finally Dole Bayh Indian to Innovation?, Access supra supra supra supra supra supra supra supra supra supra note 5, at 2078. RANSFER The Bayh-Dole Act and Promoting the Transfer of Technology of Publicly Funded- of Publicly of Technology the Transfer and Promoting Act The Bayh-Dole supra T The Protection and Utilisation of Public Funded Intellectual Property Bill (2008), Bill Property Intellectual Funded of Public and Utilisation The Protection http://rajyasabha.nic.in/legislative/amendbills/Science/protection_utlisation.pdf. Basheer interview,Basheer at 2082; David C. Mowery and Bhavan Sampat, Sampat, and Bhavan C. Mowery at 2082; David Id. Id. Id. see Id.; Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id.; Id.; ECHNOLOGY http://www.essentialmedicine.org/wordpress/wp-content/uploads/2008/11/uaem-white-paper- on-indian-bd-act.pdf. 39 interview, Guillen 40 41 42 43 at available 44 interview, Guillen 45 46 47 Basheer, Shamnad 16, 2008, http://spicyipindia.blogspot.com/2008/12/indian-bayh-dole-finally-goes- December public.html (last visited 37 38 Allied for Essen- Universities Guillen, & Ethan Gupta, Neha Surscher, Sarah Annette Lin, tial Medicines, Research: Analogue Bayh-Dole Indian on the Proposed Paper White UAEM 53 54 interview, Basheer 55 56 57 interview, Guillen 58 59 60 al., et. So 49 interview, Basheer 50 interview, Herder 51 52 Post, Blog Access Basheer sity-Industry Technology Transfer: OECD Governments? sity-Industry Technology for Other A Model 61 62 interview, Basheer 63 64 interview, Guillen 65 66 interview, Guillen 5, at 2078-79, 2082. T ents: How India’s Legal Victory Against a Pharmaceutical Giant Reconciles Human Rights with Human Reconciles a Pharmaceutical Giant Legal Victory Against India’s ents: How Rights Property Intellectual 48 interview, Basheer \\server05\productn\L\LPR\14-2\LPR207.txt unknown 9 Seq: 27-MAY-09 10:57 26794 lpr_14-2 Sheet No. 26 Side A 06/29/2009 13:47:06 A 06/29/2009 26 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 26 Side B 06/29/2009 13:47:06 1 ERRY O’B HRISTY C by THE CONSUMER COST YOU $360,000: YOU COST DOWNLOADING THAT DOWNLOADING EXPLORING HOW THE HOW EXPLORING PRO-IP ACT WILL AFFECT ACT PRO-IP 12-TRACK ALBUM COULD ALBUM 12-TRACK Based on a jury Based distribution on a instruction, which made electronic 2 innesota mother, Jammie Thomas, was sued by a record company for a record Thomas, was sued by innesota mother, Jammie site, 24 songs, which cost less than $54 on a commercial downloading M 166 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR208.txt unknown 1 Seq: 27-MAY-09 11:06 and making them available to others through a peer-to-peer online file-sharing to others through and making them available program. 26794 lpr_14-2 Sheet No. 26 Side B 06/29/2009 13:47:06 B 06/29/2009 26 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 27 Side A 06/29/2009 13:47:06 In 167 4 Several of the Several 5 3 No. 2 • Spring 2 • No. 2009 Should a personal use in- Should 6 9 The Act increases the power of the federal government of the the power increases The Act 7 Additionally, the Act increases penalties available in civil cases penalties available increases the Act Additionally, 8 peer-to-peer network a violation of the copyright owners’ exclusive right of right exclusive owners’ copyright of the a violation network peer-to-peer been shown,” distribution has of whether actual “regardless distribution, of $222,000. damages upwards with was penalized Thomas or enjoyment their own songs for who illegally downloads a person Typically, for illegally of the penalties infringer, is unaware use, a personal use personal the penalties do not serve as a deterrent. songs and, therefore, downloading \\server05\productn\L\LPR\14-2\LPR208.txt unknown 2 Seq: 27-MAY-09 11:06 against trademark counterfeiters.against trademark to protect intellectual property owners by creating a new creating position, the Intellec- by intellectual property owners to protect to as the “IP commonly referred Coordinator, Enforcement tual Property enforce- domestic and international and coordinate who will oversee Czar,” ment activities. fringer be penalized for downloading a song when they later purchased the they later purchased a song when for downloading fringer be penalized album or supported the artist in another way? signed into law the W. Bush George 2008 former President 13, October On of 2008 Act Property for Intellectual and Organization Resources Prioritizing or Act). Act (PRO-IP fact, among those questioned, the biggest deterrent to illegal downloading was to illegal downloading questioned, the biggest deterrent fact, among those computer viruses. downloading the potential for inadvertently said that they later songs participants downloading that admitted to illegally shows. live the album or later attended purchased 26794 lpr_14-2 Sheet No. 27 Side A 06/29/2009 13:47:06 A 06/29/2009 27 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 27 Side B 06/29/2009 13:47:06 21 15 17 A work is created when is created A work Copyright infringement, In fact, in just over five fact, in just over In The RIAA, however, did The RIAA, however, 18 19 14 16 However, when it comes to when it comes However, 11 Neither the copyright law nor the PRO-IP Neither 23 12 Certainly, counterfeit the big issue with and trade- patents 10 In an attempt to stem illegal downloading, the RIAA began suing the RIAA an attempt to stem illegal downloading, In Fair use is a defense to infringement that allows limited use of copy- use is a defense to infringement that allows Fair Statutory damages for the infringer, whether a personal use infringer 13 20 22 Part of the PRO-IP Act focuses on increasing penalties for copyright infringe- focuses on increasing Act of the PRO-IP Part ment. 168 A copyright protects authors of “original works” for a fixed period of time, for a fixed authors of “original works” A copyright protects include works rights on the copyright holder. Original conferring exclusive literary, dramatic, musical, artistic, and other works. Prior to the enactment of the PRO-IP Act, the Recording Industry Association the Recording Act, to the enactment of the PRO-IP Prior and legal climate that whose goal is to “foster a business of America (RIAA), to be concerned with in music,” seemed the authors of original works protects the large-scale in- use infringer over the personal by digital music piracy fringer. the old girl, a 13-year single mothers, a dead person, and After suing several not an effec- that lawsuits against the individual infringer were RIAA realized of internet music piracy. or efficient deterrent tive Loyola Public Interest Law Reporter Law Interest Public Loyola trademarks, patents, including products, range of a covers property Intellectual and copyrights. \\server05\productn\L\LPR\14-2\LPR208.txt unknown 3 Seq: 27-MAY-09 11:06 righted material without requiring permission from the copyright holder. permission from righted material without requiring or large-scale infringer, can be in the range of $750 to $30,000 for download- ing a song that costs one dollar. individuals that were illegally downloading music. illegally downloading individuals that were marks is the health and safety of the consumer when purchasing counterfeit when purchasing of the consumer the health and safety is marks and auto parts. electronics, pharmaceuticals, view the PRO-IP Act as an effective deterrent because, through the PRO-IP because, through deterrent as an effective Act view the PRO-IP IP rights. and enforces acts as the watchdog the government Act, or creating counterfeit works, is the unauthorized use of a copyrighted work, in use of a copyrighted work, counterfeit is the unauthorized or creating works, rights, such as the exclusive owner’s a manner that violates one of the copyright or perform or to make derivative the copyrighted work, right to reproduce works. years the RIAA sued over 35,000 individuals for illegal downloads. 35,000 the RIAA sued over years it is fixed in a tangible medium such as a recording. it is fixed copyright protection in the digital age, where music downloading is the norm, music downloading digital age, where in the protection copyright rather than the big business a way that protects been crafted in the law has personal use infringer the between it does not differentiate consumer because and songs, copies them, infringer, who illegally downloads and the large-scale sells them in the marketplace. 26794 lpr_14-2 Sheet No. 27 Side B 06/29/2009 13:47:06 B 06/29/2009 27 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 28 Side A 06/29/2009 13:47:06 26 169 Read Other 30 25 However, the However, Section 102 of Section 27 29 31 No. 2 • Spring 2 • No. 2009 34 and the “lifeblood of our economy,” therefore making its pro- therefore and the “lifeblood of our economy,” Intellectual property has been called the “petroleum of the property has been called the “petroleum Intellectual 33 32 copyrighted work, be it a song or a movie. copyrighted work, 28 one 24 With the first 100 days of his Presidency behind him, President Barack Obama Barack President behind him, the first 100 days of his Presidency With senators that several from despite pressure to appoint the “IP Czar,” has yet will of the “IP Czar” which means it is unclear what the role backed the Act, of intellec- on the protection will have what impact this Act more be and even tual property. It is clear that the author of the PRO-IP Act, Senator Patrick Leahy, and the Patrick Senator Act, author of the PRO-IP is clear that the It counterfeit the public from concerned with protecting supporters Act’s were advan- for commercial the theft of intellectual property goods and preventing than going after personal use infringers. tage or activity rather is the of the Act untested, provisions and as yet of the most controversial, One in making, or equipment involved to seize power expansion of government counterfeitequipment with the potential for making, goods. Act differentiates between the personal use infringer and the large-scale and the infringer use personal the between differentiates Act infringer. two non-profit Knowledge, and Public Foundation Frontier The Electronic digital age, argue in the interest the public’s protect to that work organizations of the casual at the expense big business protect goes too far to that the Act the offense. civil penalties that far outweigh and creates downloader \\server05\productn\L\LPR\14-2\LPR208.txt unknown 4 Seq: 27-MAY-09 11:06 21st century,” tection an increasing government concern. government tection an increasing broadly, this provision could include a personal computer that was used to could include this provision broadly, download the Act authorizes the government, in a civil action, to order the impounding to order in a civil action, the government, authorizes the Act material can be reproduced. which copyright protected of all means by critics argue that copyright law should be crafted to encourage professional and professional law should be crafted to encourage critics argue that copyright striking of the copyright holder, the profits while protecting amateur creativity artist of the consumer. the needs of the and the interests a balance between broad language of the Act leaves open the potential for abuse because the Act leaves language of the Act broad or activity of the term “commercial does not make clear the reach advantage.” 26794 lpr_14-2 Sheet No. 28 Side A 06/29/2009 13:47:06 A 06/29/2009 28 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 28 Side B 06/29/2009 13:47:06 ! AKES , Dec. ., Dec. NOWL- F , Oct. 8, , Oct. . J K T AME S IZMODO G UBLIC ALL G RADE IN P , W , T , TOP , Oct. 31, 2008, http:// , Oct. AW OF THE : S L HE ONDAQ T M , , ROPERTY P , Oct. 11, 2008, http://online.wsj.com/ , Oct. . J. T S ALL W NTELLECTUAL ]. I The PRO-IP Act: Another Weapon Against Our Failing Our Against Weapon Another The PRO-IP Act: Music Industry to Abandon Mass Suits Mass Abandon Industry to Music PRO-IP Act Brings Major Changes to Intellectual Property Changes to Intellectual Major Brings PRO-IP Act OUR , Dec. 7, 2007, http://www.eff.org/deeplinks/2007/12/pro- , Dec. Y The “PRO-IP” Act of 2008 The “PRO-IP” Act LOG B PRO-IP Act ROTECT P The PRO-IP Act and Movies and Music and Movies The PRO-IP Act , Dec. 11, 2008, http://www.arentfox.com/publications/index.cfm?fa=le- , Dec. “PRO IP Act” Aims to Increase Infringement Penalties and Expand Govern- and Expand Penalties Infringement to Increase Aims “PRO IP Act” , RIAA Jerks To Stop Suing Individuals For Online Piracy Online For Individuals Suing Stop To RIAA Jerks . , Jan./Feb. 2009, at 35. , Jan./Feb. EEPLINKS note 1. OX Stacking Penalties Upon Penalties (PRO-IP Passes Senate) (PRO-IP Passes Penalties Upon Penalties Stacking D OM F , C supra RENT ANDSLIDE EDGE . A L TOF , ’ , ...... EP at 1213. Sept. 26, 2008, http://www.publicknowledge.org/node/1767. Sept. . . . , Id See Id See Id Id Id Id D Id Id Id Id Id. Id Id OTES 19, 2008, http://gizmodo.com/5114101/riaa-jerks-to-stop-suing-individuals-for-online-piracy. 15 16 Smith, & Ethan McBride Sarah 19, 2008, http://online.wsj.com/article/SB122966038836021137.html?mod=rss_whats_news_ technology. 17 Methenitis, Mark 2008, http://lawofthegame.blogspot.com/2008/10/pro-ip-act-and-movies-and-music.html. 18 13 http://www.riaa. Asked Questions, Industry Association of America Frequently Recording 9, 2009). com/faq.php (last visited Mar. 14 Mahoney, John www.mondaq.com/article.asp?articleid=69010. 9 10 11 12 Esguerra, (2005). article/SB122367645363324303.html. 27 Zralek & Dylan Ruga, J. Stephen Economy ip-act-increase-infringement-penalties-and-drastically-expand-government-enfor. 2 2008). 1210, 1213, 1227 (D.Minn. 2d Supp. v. Thomas, 579 F. Inc. Capitol Records, 3 Protection 4 28, 2009) (on Christy O’Berry by (Feb. of fourteen use downloaders personal Questionnaire activities over to the personal use downloader’s of questions related file with author) (consisting music purchases). and other related to illegal downloading with regard the past year 5 6 7 Keeley, & Joe Alison Besunder galUpdateDisp&content_id=1884. 8 & Rick Sanders, Bob Felber 28 170 24 25 26 of Piracy, Defense Lessig, In Lawrence 19 20 21 22 L. No. of 2008, Pub. Act Property for Intellectual Organization and Resources Prioritizing 110-403 (2008) [hereinafter 23 Sherwin Siy, Loyola Public Interest Law Reporter Law Interest Public Loyola N 1 Esguerra, Richard ment Enforcement \\server05\productn\L\LPR\14-2\LPR208.txt unknown 5 Seq: 27-MAY-09 11:06 26794 lpr_14-2 Sheet No. 28 Side B 06/29/2009 13:47:06 B 06/29/2009 28 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 29 Side A 06/29/2009 13:47:06 171 , Mar. 23, , Mar. , Nov. 10, , Nov. . J. LOG AT . B , N EV ZAR No. 2 • Spring 2 • No. 2009 . L. R IP C ECH AME N O . & T T BAMA ELECOMM O . T RESS ICH P M ENATORS , S note 22. OSE supra D note 27, at 37. note 8. AILY D supra supra ECH T PRO-IP Act, Act, PRO-IP See See 2009, http://techdailydose.nationaljournal.com/2009/03/senators-press-obama-to-name-i.php. 33 5, Chile (Mar. in Santiago, & Cia., Silva Attorney, Interview Urrutia, Leon Rodrigo with 2009). 34 Zralek, 2008, http://blog.mttlr.org/2008/11/pro-ip-act.html. 2008, 30 31 Felber, 32 29 Act, PRO-IP Lance, The Holly \\server05\productn\L\LPR\14-2\LPR208.txt unknown 6 Seq: 27-MAY-09 11:06 26794 lpr_14-2 Sheet No. 29 Side A 06/29/2009 13:47:06 A 06/29/2009 29 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 29 Side B 06/29/2009 13:47:06 1 ASCH T ILLIAM W by CONGRESS’ INTENT CONGRESS’ “MYSPACE MOM” ASKS “MYSPACE FEDERAL CRIME BEYOND FEDERAL CRIME COURT NOT TO STRETCH TO NOT COURT hen a person engages in indisputably despicable behavior, and a child hen a person engages in indisputably a statute that does it matter if she is convicted under dies as a result, W 172 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR209.txt unknown 1 Seq: 16-JUN-09 13:43 was never intended to cover the particular situation? This is the question that intended to cover was never of California, must in the Central District Judge District Federal Wu, George a cyber-bullying drove woman whose severe in the case of a Missouri confront girl to suicide. 13-year-old family friend, an 18-year-old and Ashley Grills, The woman, Lori Drew, Evans.” named “Josh boy account posing as a 16-year-old opened a MySpace 26794 lpr_14-2 Sheet No. 29 Side B 06/29/2009 13:47:06 B 06/29/2009 29 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 30 Side A 06/29/2009 13:47:06 4 3 16 173 “We 6 The jury Drew and Drew 12 2 “I don’t know 7 No. 2 • Spring 2 • No. 2009 5 The CFAA was intended The CFAA His office indicted Drew His 9 10 14 Now the judge must decide whether, as a the judge must decide whether, Now 13 Many are satisfied that Drew’s conviction now satisfied that Drew’s are Many 15 17 Drew’s conduct was illegal access of a computer system under the conduct was illegal access of a computer Drew’s 8 11 The case has incited widespread debate, and raised questions about how far a about how debate, and raised questions The case has incited widespread begging for circumstances unpredicted court a statute to cover should stretch under the law. recognition convic- worry that Drew’s about the precedent legal scholars, however, Many theory who to the prosecution’s of the case, anyone tion might set. According registration in a website any information about themselves has misrepresented would be illegal to violate the terms form would be guilty of a federal crime. It to de- of service the ability essentially giving individual websites of a website, been Con- This, the scholars argue, could not have fine crimes under the Act. intent. gress’ Later, Thomas P. O’Brien, United States Attorney in the district of California Attorney States United O’Brien, Later, Thomas P. servers located, found a charge. are MySpace where The account was opened solely for the purpose of harassing the victim, Megan the victim, harassing of for the purpose solely opened account was The daughter at school. a tiff with Drew’s had gotten in who Meier, turned vindictive. and relationship off the broke month later, “Josh” a About “the world would telling her that Josh from a message receiving Shortly after herself. hanged Meier place without you,” be a better but concluded that Drew the incident, investigated Missouri in Prosecutors under the state’s criminal code. was not prohibited conduct and Grills’ \\server05\productn\L\LPR\14-2\LPR209.txt unknown 2 Seq: 16-JUN-09 13:43 CFAA, O’Brien argued, because Drew had accessed MySpace servers using a had accessed MySpace argued, because Drew O’Brien CFAA, of service. terms of MySpace false identity, which is in violation makes her eligible for a 20 year maximum sentence, and are willing to overlook are maximum sentence, and makes her eligible for a 20 year intended to apply to her situation. the fact that the statute was not originally Grills, as “Josh,” flirted with Meier and lured her into an online relationship. her into an and lured flirted Meier with “Josh,” as Grills, (CFAA). Act and Abuse under the Computer Fraud matter of law, the verdict can stand. matter of law, the verdict found Drew guilty on this theory.found Drew to extend and more clearly define crimes prohibiting malicious computer hack- malicious computer clearly define crimes prohibiting to extend and more ing. did not have a charge to fit it,” Lt. Craig McGuire, the spokesman for the local McGuire, a charge to fit it,” Lt. Craig did not have newspaper. Journals sheriff’s department told the Suburban girl took her ‘This is why this young and say, sit down that anybody can life.’” 26794 lpr_14-2 Sheet No. 30 Side A 06/29/2009 13:47:06 A 06/29/2009 30 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 30 Side B 06/29/2009 13:47:06 19 COPE OF 22 S 24 He considers this motion He 27 ELINEATE THE D , MySpace users to give truthful users to give regis- , MySpace inter alia ERVICE TO S ? CCESS ERMS OF Drew accessed MySpace servers without authorization, the accessed MySpace Drew The jury convicted Drew of unauthorized access, though it The jury of unauthorized convicted Drew A T 21 Orin Kerr, a George Washington University Law Professor University Washington a George Kerr, Orin 25 26 28 AW L EBSITE The jury access[ing] a computer of “intentionally Drew convicted The Senate Judiciary Committee report recommending passage clari- passage report recommending Committee Judiciary The Senate This would upgrade the crime to a felony. This would upgrade the crime to a W 20 18 23 SING NAUTHORIZED RIMINAL tration information and to refrain from harassing behavior. from tration information and to refrain Congress passed the CFAA in 1986 to equip prosecutors with the power to with the power prosecutors in 1986 to equip passed the CFAA Congress computer sys- data from hackers seeking sensitive computer punish malicious tems. C legal team focuses its argument on the limits that courts tradition- Drew’s have or ally placed when a crime is defined as committing an act without consent authorization. 174 The judge instructed the jury “means to that “access without authorization” permission or sanction of the com- access a computer without the approval, puter’s owner.” to hear a post-verdict agreed Wu After the trial and the jury’s decision, Judge 29 motion for judgment of acquittal. Rule The provisions relevant to the Drew case remain the same as they were in were the same as they case remain to the Drew relevant The provisions 1986. was done in violation of the CFAA The indictment further alleged that Drew’s furtherance of a tortious dis- act, namely, intentional infliction of emotional tress. Loyola Public Interest Law Reporter Law Interest Public Loyola U \\server05\productn\L\LPR\14-2\LPR209.txt unknown 3 Seq: 16-JUN-09 13:43 and former Justice Department technology crime prosecutor, volunteered to volunteered Department technology crime prosecutor, and former Justice fied that the law was aimed at “a newfied that the law type of criminal—one who uses of others.” to defraud, and to abuse the property computers to steal, ob- access, and thereby authorized or exceed[ing] without authorization or computer used in interstate commerce any” from tain[ing]. . . information communication. of Ser- Terms of MySpace in violation using MySpace by indictment alleged, require, TOS The vice (TOS). did not find her violation to be in furtherance of intentional infliction of emo- tional distress. currently. U 26794 lpr_14-2 Sheet No. 30 Side B 06/29/2009 13:47:06 B 06/29/2009 30 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 31 Side A 06/29/2009 13:47:06 175 The con- 35 30 No. 2 • Spring 2 • No. 2009 The government further The government 32 In his supplemental brief, his supplemental In 29 . pro bono pro 33 36 31 The fear is that the Government’s theory operators, website allows The fear is that the Government’s 37 34 Matthew L. Levine, a former federal prosecutor and current defense attorney, current and prosecutor Matthew L. Levine, a former federal every not a law that covers “[u]nfortunately, there’s told the Associated Press: very a bad idea to use laws that have different bad thing in the world. It’s purpose.” Meier’s mother herself has spoken out in support of the prosecution. The day mother herself has spoken out in support The prosecution. of the Meier’s disappointment when the local recounted of the indictment, the elder Meier gratitude that “some no charges, and expressed brought in Missouri prosecutor some criminal justice here.” court is sees that there system finally that upholding Drew’s warn, however, policy and legal analysts Numerous conduct was irresponsible, “Drew’s precedent. conviction could set dangerous Legal Analyst at Senior M. Grossman, but it was not criminal,” writes Andrew Foundation. the Heritage Outside the courtroom, the legal opposition to Drew’s verdict bred contro- bred verdict to Drew’s the courtroom, the legal opposition Outside verdict observers the believe and occasionally emotional outrage. Some versy Aftab, an attorney who Parry result. should be upheld because it had a positive it was “about time that for online child safety, told MSNBC that advocates Meier’s surrounding was some justice” coming out of the circumstances there death. represent Drew as post-verdict counsel counsel as post-verdict Drew represent support asserts that the plain terms of the CFAA Government the response, In held courts have lower pointed to a number of cases where and the verdict, constituted “unauthorized TOS owner’s the computer system that exceeding to civil liability under the CFAA. access,” giving rise \\server05\productn\L\LPR\14-2\LPR209.txt unknown 4 Seq: 16-JUN-09 13:43 rather than legislatures, to define criminal conduct under the CFAA. rather than legislatures, trary criminals, users into federal millions of internet risks rendering holding cautioned. Kerr argued that Drew’s reference to the millions of TOS violations which occur on millions of TOS to the reference argued that Drew’s to an “everybody it” argument which boils down does a daily basis essentially the court should not endorse. Kerr argues that “[a] website Terms of Service the contract between can define Terms that “[a] website argues Kerr of criminal law.” not define the scope user, but it does and owner 26794 lpr_14-2 Sheet No. 31 Side A 06/29/2009 13:47:06 A 06/29/2009 31 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 31 Side B 06/29/2009 13:47:06 Dec. inter ., Exclusive: RIB . T Apr. 1, 2008, 1, Apr. HI ., , May 16, 2008, , May C M MySpace and MySpace , A 40 IMES ORNING N.Y. T , M ACUUM OOD V G , EGISLATION L note 1. supra Under the agreements, the companies must more the companies the agreements, Under 39 41 Woman Indicted in MySpace Suicide Case Suicide in MySpace Indicted Woman OLUTIONS IN A S note 1; Brody, note 1; Brody, 38 supra EGAL L http://www.nytimes.com/2008/05/16/us/16myspace.html. Joann Brady, Brady, Joann http://www.nytimes.com/2008/05/16/us/16myspace.html. , prevent children’s profiles from being searched and ensure that children and ensure being searched from profiles children’s , prevent Id. Id. Id. no laws apply to bring charges suicide: Says closes case on Internet Prosecutor OTES REATIVE 4, 2007, at 4. 176 http://abcnews.go.com/GMA/story?id=4560582&page=1.to be hospi- who herself had Grills, to testify for the government death, later agreed for attempting suicide after Meier’s talized against Drew. 2 Steinhauer, available at available 3 4 5 6 Teen Talks About Her Role in Web Hoax that Led to Suicide that Led to Hoax in Web Role Her About Talks Teen N 1 Steinhauer, Jennifer Though most agree these steps are beneficial, they do not offer perfect protec- these steps are Though most agree the sites can do little the counter-measures, those that circumvent tion. For furthersites can cooperate with than ban the individual from use. The more case illustrates, as Drew’s authorities to punish the individual, but, prosecuting to be successful. in place in order these authorities need the right legislation judges, and regulators not taken action, prosecutors, legislators have Where and may be asked again they have, must do what they can with the authority point. that authority to the breaking to risk stretching Loyola Public Interest Law Reporter Law Interest Public Loyola C should be construed to prohibit whether CFAA about disagreements Despite ad- squarely to be a law” more “ought that there most agree conduct, Drew’s has since home state of Missouri Meier’s Indeed, cyber-bullying. at dressed was quietly de- in Congress but a similar bill introduced adopted such a law, feated last year. from the attorneys general protection, the absence of nationwide legislative In from with officials agreements entered of Columbia 49 states and the District robust of more the adoption which require last year and Facebook MySpace measures. child-protection \\server05\productn\L\LPR\14-2\LPR209.txt unknown 5 Seq: 16-JUN-09 13:43 actively police malicious user activity occurring on their sites. police malicious user activity actively Facebook are also required to erect technical barriers on their sites which, technical barriers on their sites to erect also required are Facebook alia as adults. cannot register 26794 lpr_14-2 Sheet No. 31 Side B 06/29/2009 13:47:06 B 06/29/2009 31 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 32 Side A 06/29/2009 13:47:06 . , T S You 177 UDI- OUR- , J J S. Rep. S. Rep. OUNDA- note 13 at F note 11, at ENATE http://www. S 1986, 1986, UBURBAN supra supra supra supra S , ERITAGE Leslie Harris, Leslie Harris, , 2-3 (2008). , CT OF CT OF H A A available at available http://abcnews.go.com/ EPORT HE No. 2 • Spring 2 • No. 2009 BUSE BUSE see also , T A A CFAA R available at available ROSSMAN RAUD AND RAUD AND VERCRIMINALIZATION , Feb. 21, 2009, , Feb. F F O OMMITTEE M. G http://technology.timesonline.co.uk/tol/news/ LOBE C http://www.stltoday.com/stltoday/news/stories. Jul. 15, 1986, at A19. Jul. G , May 22, 2008, May NDREW OMPUTER OMPUTER TUDY IN , A OST S , C , C OSTON UDICIARY . P EWS available at available B J ASE http://suburbanjournals.stltoday.com/articles/2007/11/11/ available at available , N ] (explaining that the CFAA was being passed in response to in response was being passed ] (explaining that the CFAA ASH note 15. 1986 U.S.C.C.A.N. 2479, 2479-80 [hereinafter 2479-80 [hereinafter 1986 U.S.C.C.A.N. 2479, 1986 U.S.C.C.A.N. 2479, 2479-80 (explaining that CFAA was that CFAA 1986 U.S.C.C.A.N. 2479, 2479-80 (explaining W : A C http://volokh.com/files/Supplement29.pdf. ENATE , UDICIARY UDICIARY S EPORT (MSNBC television broadcast May 15, 2008) (interview May (MSNBC television broadcast with Parry J J , ABC supra supra , available at available UICIDE note 9, at 8-10. note 9, at 10. note 9, at 4-5. The prosecutor also included a conspiracy charge, charg- note 9, at 4-5. The prosecutor S reprinted in reprinted reprinted in reprinted ON THE ON THE note 11; Control p’s + q’s Control available at available CFAA R . . , Nov. 27, 2008, , Nov. ‘MySpace Bully’ Lori Drew Escapes Felony Charges over Suicide of Megan Meier of Megan Suicide Charges over Felony Escapes Lori Drew Bully’ ‘MySpace supra supra supra supra supra supra ) Prosecutor Dismisses Felony Charge Against Lori Drew in MySpace Case in MySpace Lori Drew Charge Against Felony Dismisses Prosecutor ‘My Space’ Hoax ends with suicide of Dardenne Prarie teen Prarie of Dardenne suicide ends with Hoax Space’ ‘My , Dec. 31, 2008, , Dec. PACE ROSSMAN at 1-8. This charge was later dismissed after the jury failed to reach a verdict on the jury at 1-8. This charge was later dismissed after a verdict failed to reach S G Y supra supra OMM OMM Id. , CIARY NALS http://news.findlaw.com/nytimes/docs/cyberlaw/usdrew51508ind.pdf. TION M e.g. ONDON e.g. Breaking News News e.g. Breaking S. C S. C ISPATCH HE OMMITTEE , , at 2480. Indictment at 1-10,Indictment (C.D. Cal. 2008), CR-08-582-GW No. Drew, v. Lori States United (L -D C , T Id. See See See See Id. See , Nov. 11, 2007, 11, , Nov. Id. See IMES OUIS being passed in response to a number of high profile and highly damaging computer hacking to a number of high profile being passed in response financial computer and danger to government a growing attempts that seemed to present systems). 20 No. 99-432 (1986), 99-432 (1986), No. No. 99-432 (1986), No. 21 18 U.S.C. §22 1030(a)(2)(c), (e)(2)(b) (2006). Indictment, her daughter, and her daughter’s friend had committed the alleged crimes as co- ing that Drew, conspirators. it. Joel Currier, Currier, it. Joel 2479-80. 19 16 of the ruling). in favor Aftab, who advocated 17 7 Pokin, Steve L boston.com/lifestyle/articles/2009/02/21/control_ps__qs/?page=1; boston.com/lifestyle/articles/2009/02/21/control_ps__qs/?page=1; 12 Indictment, 13 States at 1, United 29 Motion to Rule Supplement to Defendant’s Response Government’s at http://volokh.com/files/Drew 2008), available CR-08-582-GW (C.D. Cal. No. v. Lori Drew, Response.pdf. 14 CR-08-582-GW at 2, No. v. Lori Drew States United 29 Motion, to Rule Supplement (C.D. Cal. 2008), 15 Aucoin, Don May Already Be a Criminal Be Already May Technology/story?id=4903596&page=1; Technology/story?id=4903596&page=1; a number of high profile and highly damaging computer hacking attempts which seemed to highly damaging computer hacking attempts and a number of high profile J. Hughes, computer systems); William and financial danger to government a growing present a Game Isn’t Computer Crime 18 Hughes, tech_and_web/the_web/article5246833.ece. nsf/stcharles/story/B0C034B2BD4F2FBC862575300071D769?OpenDocument. 23 Indictment, 24 18 U.S.C. §25 1030(c)(2)(b)(ii). 29 Motion, to Rule Supplement to Defendant’s Response Government’s 4. 26 Chris Ayres, T available at available 10 11 news/sj2tn20071110-1111stc_pokin_1.ii1.txt. 8 9 \\server05\productn\L\LPR\14-2\LPR209.txt unknown 6 Seq: 16-JUN-09 13:43 26794 lpr_14-2 Sheet No. 32 Side A 06/29/2009 13:47:06 A 06/29/2009 32 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 32 Side B 06/29/2009 13:47:06 . , , ECH . & T note 13, at REGONIAN CI O supra supra HE T James J. Tracy,James Stu- , see 11 B.U. J. S July 1, 2008, Pt. A, Pg. 13; Govtrack.us, 1, 2008, Pt. July , http://www.govtrack.us/congress/bill.xpd? , IMES note 14, at 7-8. For the enforceability of website the enforceability note 14, at 7-8. For note 14. note 14, at 7-8. The brief pointed out that even the even note 14, at 7-8. The brief pointed out that L.A. T supra supra , supra supra supra After long negotiations, Facebook agrees to safety plan with state AGs agrees After long negotiations, Facebook note 15, at 2. (MSNBC television broadcast May 15, 2008). May (MSNBC television broadcast Mom guilty of lesser charges in MySpace teenage boy hoax teenage boy guilty of lesser charges in MySpace Mom supra supra reporting that clickwrap agreements, where users must click to acknowledge users must where reporting that clickwrap agreements, Browsewrap Agreements: Register.com, Inc. v. Verio, Inc., Inc., v. Verio, Inc. Register.com, Agreements: Browsewrap , , http://news.cnet.com/8301-13577_3-9939058-36.html. Id. at 18-21. ROSSMAN COM . Law Signed to Ban Cyber-Bullying to Ban Law Signed Id. G Id. Id. Breaking News News Breaking 1. Civil and relevant or irrelevant. profane, abusive, that are will not post comments You our comment policy. by comments only, as indicated 2. postal service that includes em- Yes, of the U.S. government. not an employee are You for the a libertarian-leaning blog, and we’re We’re judges, and interns. law clerks, ployees, types, keep out. sector only. Government private 3. and always thought Ralph was a funny name, “Ralph.” I’ve middle name is not Your here. the middle name “Ralph” is welcome one with No odder as a middle name. even 4. who rules and this blog is only for people strict civility here, have super nice. We You’re visit to this blog is me, your as judged by not super nice, are you super nice. If are unauthorized. 5. this one is totally arbitrary, visited Alaska. Okay, never but it’s our blog and have You out, too. want. Alaska visitors are keep out who we can we Id. ET Nov. 27, 2008. Nov. 38 L. 164 (2005) ( H.R. 6123: Megan Meier Cyberbullying Prevention Act Prevention Cyberbullying Meier H.R. 6123: Megan bill=h110-6123. 39 McCarthy, Caroline 37 Risling, Greg founder of MySpace, Tom Anderson, had lied in his registration by entering a younger age than entering a younger by Anderson, had lied in his registration Tom founder of MySpace, he was. 32 29 Motion, to Rule Supplement to Defendant’s Response Government’s 4-12. 33 agreement before the website allows entry, have generally been enforced, but “most courts entry, allows generally been enforced, have the website have before agreement which purport agreements,” to be binding without seeking any browsewrap to enforce refused the user.). of consent from acknowledgement affirmative 31 29 Motion, to Rule Supplement 40 41 178 34 CN 29 a humorous blog. In Conspiracy Volokh to the well-known contributor is a recurring Kerr new posted of his viewillustration use for visitors of the terms of jury Kerr of the verdict, violates these terms Conspiracy in a way that Conspiracy— Volokh “[a]ny accessing the Volokh to your crime that can lead Department is a federal to the Justice and according is unauthorized, for every up to one year visit to the blog”: and imprisonment for arrest Conspiracy, http://volokh.com/archives/archive_2008_11_ to The Volokh Kerr of Orin Posting 28, 2008, 13:19 EST). 23-2008_11_29.shtml#1227896387 (Nov. 30 29 Motion, to Rule Supplement Loyola Public Interest Law Reporter Law Interest Public Loyola 27 http://blog.wired.com/27bstroke6/2008/11/lori- Level, to Threat Zetter of Kim Posting blog). Magazine EST) (Wired 18:19:18 21, 2008, (Nov. drew-pla-4.html 28 29 Motion, to Rule Supplement agreements, as “clickwrap” and “browsewrap” known user agreements, \\server05\productn\L\LPR\14-2\LPR209.txt unknown 7 Seq: 16-JUN-09 13:43 dent Comment, 35 36 26794 lpr_14-2 Sheet No. 32 Side B 06/29/2009 13:47:06 B 06/29/2009 32 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 33 Side A 06/29/2009 13:47:06 1 179 AFFERTY R AUREN L No. 2 • Spring 2 • No. 2009 by This teenager’s storydy- highlights the 2 PUBLIC SCHOOLS INTERNET SAFETY INSTRUCTION IN ILLINOIS INSTRUCTION pornography charges for posting nude photos of herself on MySpace. 14-year-old New Jersey girl was arrested on March 29, 2009, on child on March arrested girl was Jersey New 14-year-old ILLINOIS SCHOOLS FACE UP SCHOOLS FACE ILLINOIS TO FACEBOOK:TO MANDATING A boyfriend, of herself for her than 30 pictures that she took more believe Police the victim of pornography is where an unusual case for prosecutors presenting the same person as the perpetrator. \\server05\productn\L\LPR\14-2\LPR210.txt unknown 1 Seq: 27-MAY-09 13:16 namic nature of internet risks for students. namic nature 26794 lpr_14-2 Sheet No. 33 Side A 06/29/2009 13:47:06 A 06/29/2009 33 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 33 Side B 06/29/2009 13:47:06 8 The 5 Another video showed a Another video showed 3 ANGERS More states are sure to follow Illinois and Illinois to follow sure states are More D 11 Virginia’s mandatory Virginia’s internet safety instruction 10 However, the statute does recommend topics for the statute does recommend However, NTERNET 6 The Virginia legislation was enacted in response to legislation was enacted in response The Virginia The legislation also requires that the Illinois State that the Illinois The legislation also requires I 9 7 ESPONSE TO 4 ’ R LLINOIS 180 Illinois is not the first state to take the step of requiring internet safety to be internet safety is not the first state to take the step of requiring Illinois was the first state public schools. Virginia incorporated into the curriculum of to pass such legislation. I passed a legislature an effort the Illinois children, In to curb these dangers to of internet safety in- public schools to incorporate some form bill requiring in the 2009-2010 school year. struction beginning year into the school Loyola Public Interest Law Reporter Law Interest Public Loyola of new a host of with faced a result risks as and dangers are today Children and such as social networking applications and internet internet connectivity use the in- who predators dangers include sexual sites. These media sharing the post- from exposure their victims, undesirable communicate with ternet to becoming even and up public, “cyber-bullying,” photos that end ing of private stars in online videos.unwilling classmates recorded of fights between Videos common on media shar- increasingly or digital camera are on a camera phone by teenage girls coaxed one video depicted two Recently ing sites like YouTube. and choking each other. their friends into punching \\server05\productn\L\LPR\14-2\LPR210.txt unknown 2 Seq: 27-MAY-09 13:16 instruction, including “responsible use of social networking websites,” “recog- websites,” of social networking instruction, use “responsible including transmitting personal information,” “re- nizing online solicitations,” “risks of porting and cyber-bullying,” and “reporting illegal activities online harassment and communications.” in their instruction. materials that will aid schools provide of Education Board began the 2007-2008 school year. the threat of sexual predators and the problems posed by social-networking posed by and the problems of sexual predators the threat sites that students frequent. fight set to music and included pre-fight interviews and included pre-fight fight set to music with the teenagers involved. Virginia as internet safety is a national issue. Virginia legislation does not specifically outline a curriculum for schools, but rather legislation does not specifically outline of to determine the “scope and duration the discretion grants school boards this unit of instruction.” 26794 lpr_14-2 Sheet No. 33 Side B 06/29/2009 13:47:06 B 06/29/2009 33 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 34 Side A 06/29/2009 13:47:06 19 181 She 17 16 No. 2 • Spring 2 • No. 2009 MPLEMENTATION OF : I Furthermore, 32 percent 32 Furthermore, 14 TUDENTS S LASSROOM C Extreme examples such as this one re- Extreme 18 LLINOIS I NTO THE I EALITY FOR : A R APITOL AND Stewart, who has been teaching for over 20 years, has certainly 20 years, been teaching for over Stewart, who has C EARS 12 More and more students go online daily, both at home and school, students go online daily, both at home and more More EGISLATION F The same percentage of teens have experienced at least some form of experienced at least of teens have The same percentage L School District 92 has the most comprehensive curricular informa- 92 has the most comprehensive School District 13 15 20 UT OF THE LLINOIS NTERNET Schools that have implemented the requirement include Collinsville Commu- implemented the requirement Schools that have 128, among School District 92 and Community High nity School District others. I of teenagers and teachers and parents faced by large the problems However will implement this schools in Illinois unclear how it remains children, young when it takes effect next year.new requirement of Board State The Illinois on its to school boards resources statute to provide by required Education, example practices of internet safety instruction delivered has provided website, incorporated it into their curriculum. already school districts that have by With cyber-bullying on the rise, insults and fights that a teacher may have cyber-bullying on the rise, insults and fights With to being carried over now are up in his or her classroom been able to break websites.social networking a teenager filed suit against one such Recently she claims demanding $3 million in damages for bullying Facebook, website, on the website. at the hand of former high school classmates she suffered I School in Crystal Middle Lundahl grade teacher at Stewart, a seventh Beverly does think the cyber-bullying but any incidents of has not seen Lake, Illinois, students, particularly to her because her problems increasing internet poses clue of a . .don’t have both in and out of school and. students “use the internet its dangers.” \\server05\productn\L\LPR\14-2\LPR210.txt unknown 3 Seq: 27-MAY-09 13:16 harassment online, such as receiving threatening messages, having private ma- having private messages, threatening such as receiving harassment online, terial forwarded or having a rumor about them, without permission, spread posted without permission. having a photo of themselves and 58 percent of teenagers have an online profile. of teenagers have and 58 percent seen the changing nature of bullying that comes with an increased use of the that comes with an increased of bullying nature seen the changing internet. alleges that classmates used Facebook to spread rumors that she had contracted to spread alleges that classmates used Facebook AIDS and participated in bestiality. quire that Illinois schools effectively implement this new schools effectively legislation. that Illinois quire O of teenagers who use the internet have been contacted by a complete stranger been contacted by the internet have of teenagers who use online. 26794 lpr_14-2 Sheet No. 34 Side A 06/29/2009 13:47:06 A 06/29/2009 34 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 34 Side B 06/29/2009 13:47:06 26 Walper, 22 28 Stewart feels “the most important thing the 24 25 Stewart, however, feels strongly that schools can and should that feels strongly Stewart, however, 27 21 She also states, “I think a lot of kids think they have friends and a think they have also states, “I think a lot of kids She 23 Since many students use the internet away from school in ways that may affect school in ways that may many students use the internet away from Since edu- part for responsibility has given of the their classmates in school, Illinois to be seen, remains about internet safety to school districts. It cating children public schools in the state will actually implement these changes how however, use and if the changes will effectuate major changes in the way that children the internet and technology. 182 While Walper and Stewart believe that internet safety instruction is a valuable and Stewart believe While Walper that par- and high school, they also agree use of school time in middle school to play in making the internet safer for their children. a role ents must have much how “should monitor what students do and says that parents Walper they do online.” Loyola Public Interest Law Reporter Law Interest Public Loyola using a variety levels all grade ideas for curricular providing on its website, tion internet various include links to internet safety that tips for and gives of media and security and Facebook on changing MySpace such as tutorials safety tools, settings. privacy face online, and teenagers children in dangers that with the diversity is clear It mandatory safety instruction internet servesimportant a vitally purpose. School High North math teacher at Glenbrook a high school Walper, Brooke thinks that this instruction is imperative. Illinois, in Northbrook, \\server05\productn\L\LPR\14-2\LPR210.txt unknown 4 Seq: 27-MAY-09 13:16 play a major role in internet safety instruction. Stewart explained, “. . .it play a major role we but if it is taught in the schools of parents should be the responsibility that no way of guaranteeing have our ‘mission’ will be accomplished. We know to teach internet safety.” will take it upon themselves parents teenagers should learn is there is no privacy on the internet. Once your name your on the internet. Once is no privacy teenagers should learn is there have the millions of people who who knows and information is ‘out there,’ access to this information?” social life online so they are willing to do things that they wouldn’t necessarily willing they are social life online so Jersey New 14-year-old that students such as the do in person,” suggesting they would not feel comfortableteenager may post things online that sharing in their normal everyday lives. who is in her second year of teaching, highlights many of the dangers she sees highlights many of the dangers she of teaching, year who is in her second know is that they don’t noting that “part of the problem for her students by and used against say/post online can be kept forever anything that they them.” 26794 lpr_14-2 Sheet No. 34 Side B 06/29/2009 13:47:06 B 06/29/2009 34 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 35 Side A 06/29/2009 13:47:06 , 183 RESS P note 12. supra supra Sept. 17, 2007, Sept. , March 5, 2009, , March SSOCIATED http://www.pewin- A NPR, , , NION -U No. 2 • Spring 2 • No. 2009 IMES available at available T , Interview with Stewart, Presentation, Presentation, , See also See ROJECT P note 22; IFE note 12. note 22. Charges Against Clifton Girl Spark Debate About Teens’ Lurid Teens’ About Debate Spark Girl Clifton Charges Against note 12. . L supra supra ar. 29, 2009, http://www.nj.com/news/index.ssf/2009/03/nj_ar. 29, 2009, supra supra supra supra supra MER , M Students Post Videos of Schoolyard Brawls Online Brawls of Schoolyard Videos Post Students & A Teens, Online Stranger Contact & Cyberbullying What the Research is Tell- What the Research Contact & Cyberbullying Stranger Online Teens, EDGER Back to School: Reading, Writing, and Internet Safety and Internet Writing, to School: Reading, Back -L Student Finds Facebook Less Than Friendly Facebook Finds Student TAR NTERNET S I HE EW T Interview with Walper, Interview with Walper, P , , Id. Id. Id. Id. Id. Id. Id. See Id. Id. Id. Id. Id. Id. Id. OTES Mar. 6, 2009, http://www.usatoday.com/news/education/2009-03-06-schoolfights_N.htm. Mar. 4 5 5/27-13.3 (2009) 105 ILCS 6 7 8 9 Hochberg, Adam http://www.npr.org/templates/story/story.php?storyId=14427020. 10 11 12 School, Crystal Lake, Middle Lundahl E-mail Interview Stewart, Teacher, with Beverly 9, 2009). (March Illinois 13 14 Amanda Lenhart, ing Us http://www.timesunion.com/AspStories/story.asp?category=MULTIMEDIA&storyID=776334 &BCCode=&newsdate=3/5/2009 18 19 http://www. Safe, Internet & Instruction: Be Curriculum of Education, Board State Illinois 2, 2009). (last visited Apr. isbe.state.il.us/curriculum/html/internet_safety.htm 20 21 (last http://www.kahoks.org/safeweb/ Page, Resource Safety 10 Internet Collinsville Unit 30, 2009). visited Mar. 22 School, North- High North Glenbrook Teacher, E-mail Interview Walper, with Brooke 9, 2009). (March Illinois brook, 23 24 25 Interview with Stewart, 26 27 Interview with Walper, 28 Interview with Stewart, ternet.org/Presentations/2008/Teens-Online-Stranger-Contact—Cyberbullying.aspx 15 16 17 Parry, Marc joins_others_states_in_crac.html 2 3 Thanawala, Sudhin N 1 Ryan, and Joe Golson Jennifer Pictures \\server05\productn\L\LPR\14-2\LPR210.txt unknown 5 Seq: 27-MAY-09 13:16 26794 lpr_14-2 Sheet No. 35 Side A 06/29/2009 13:47:06 A 06/29/2009 35 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 35 Side B 06/29/2009 13:47:06 OOREHOUSE M EREMY J by COLLIDE WITH COLLIDE Albeit the new legislation is well-inten- PUBLIC POLICY 1 FEATURE ARTICLE FEATURE INDIVIDUAL RIGHTS INDIVIDUAL GROOMING LAW: WHEN LAW: GROOMING NEW ILLINOIS INTERNET NEW llinois Senate Bill 2382 came into effect on January 1, 2009, granting law 2382 came into effect on January Bill llinois Senate the to punish alleged sex offenders who utilize power broad enforcement internet to solicit sex from children. internet to solicit sex from I 184 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR211.txt unknown 1 Seq: 27-MAY-09 11:18 tioned and focuses on the protection of children, such laws have traditionally such laws have of children, tioned and focuses on the protection 26794 lpr_14-2 Sheet No. 35 Side B 06/29/2009 13:47:06 B 06/29/2009 35 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 36 Side A 06/29/2009 13:47:06 185 and fed- 8 11 If later charged If 13 15 No. 2 • Spring 2 • No. 2009 6 Thus, the burden then Thus, the burden 14 ROTECTION P Traditionally, public policy has over- Traditionally, 7 HILD C In some instances, individuals accused of sexu- In The new as class law punishes those convicted 4 10 public registration as a sex offender. public registration However, problems associated with creating laws to protect associated with creating problems However, 12 9 ROUNDWORK FOR In this context, individuals face heavy penalties, including this context, individuals face In prohibits any person from knowingly using a computer or in- knowingly any person from prohibits 2 3 G 5 AYING THE Regardless of public policy concerns and the myriad of issues that arise when Regardless newcreating legislation, lawmakers walk a thin line as two main viewpoints Additionally, defining a crime of this nature can be problematic, particularly can be problematic, defining a crime of this nature Additionally, required. contact or harm is not directly where an individual know- Suppose considers and law enforcement website ingly uses an online social networking though the individual has no solicitation of minors, even their use to involve intent to target a minor. of whether or not they the IGL, regardless Under faces potential imprisonment of up intended to solicit a minor, the individual and years to three Given the prevalence of online social networking and wide access to online networking of online social the prevalence Given who utilize sex predators from children media, the IGL is designed to protect technology as a means of seduction. faced various challenges alleging unequal treatment and overly harsh and overly treatment unequal alleging challenges various faced punishments. L Grooming as the “Internet to referred 2382, frequently Bill Senate Illinois Law” (IGL), \\server05\productn\L\LPR\14-2\LPR211.txt unknown 2 Seq: 27-MAY-09 11:18 ternet media, including bulletin boards or other transmissions, “to seduce, so- or other transmissions, “to seduce, bulletin boards ternet media, including a sexual offense or to commit guardian or entice” a child or their licit, lure, a child. engage in sex with children from sex offenders are compounded due to definitional concerns and sex offenders are from children of vigilantism. the problem mandatory prison sentences of no less than one year and no more than three mandatory and no more of no less than one year prison sentences as a sex offender. public registration as as well years, both local as have of children, whelmingly supported the protection four felons. ally abusing a minor are subjected to physical confrontations, including vicious including subjected to physical confrontations, ally abusing a minor are local media. from and confrontation citizens private attacks by falls upon lawmakers to carefully craft legislation that protects not only poten- craft legislation that protects falls upon lawmakers to carefully tial victims, but also those accused in sexual offense cases. eral governments. enhanced punishment could face greatly under similar laws, that individual offender statute. (repeat) recidivist under Illinois’ 26794 lpr_14-2 Sheet No. 36 Side A 06/29/2009 13:47:06 A 06/29/2009 36 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 36 Side B 06/29/2009 13:47:06 23 16 Indeed, protecting Indeed, Senator Munoz be- Munoz Senator 17 19 18 The purpose of such en- 26 This means that individuals must 25 27 ERSPECTIVE P 24 DVOCATE A Given the fact that 5,596 sex crimes were committed in Illinois the fact that 5,596 sex crimes were Given 21 22 He explained, “I believe we need to take every need we possible step to ensure explained, “I believe He HILD 20 C HE 186 Illinois faces legitimate, serious concerns when combating child predators in child predators faces legitimate, serious concerns when combating Illinois the State. committed against victims were the 5,596 sex crimes, 2,733 (49 percent) Of age 16 and younger. to yet and individual defendants have General Attorney Although the Illinois that legislators crafted makes it apparent challenge the IGL, a review of its text arbitrarythe law to avoid punishment while still permitting wide latitude by setting the mental state at “knowingly.” The “child advocate perspective” supports that protecting children is para- children supports that protecting perspective” The “child advocate necessary are mount and high penalties in or for those convicted of engaging in the sexual abuse of a minor. attempting to engage backed the IGL. Antonio Munoz Senator State Illinois Loyola Public Interest Law Reporter Law Interest Public Loyola libertiesand the “civil prospec- perspective” advocate the “child emerged, have tive.” support harsher laws perspective child advocate embracing the Those these believe of the latter favor while those in child predators, that penalize individuals. rights of convicted inhibit the civil and stigmatize laws unjustly T \\server05\productn\L\LPR\14-2\LPR211.txt unknown 3 Seq: 27-MAY-09 11:18 during 2007 alone, local politicians have a vested interest in punishing those interest a vested have during 2007 alone, local politicians convicted of sexual offenses, particularly those committed against children. that children throughout the State of Illinois are protected from sexual from protected are of Illinois the State throughout that children predators.” make some conscious, knowing action to commit a crime before being pun- being crime before action to commit a make some conscious, knowing ished. of deterrence a high level lawmakers attempted to create Additionally, enhancement stat- recidivist in conjunction with the Illinois as the IGL works in enhanced sentences if a victim is a minor, or prison ute, which results offenses. for repeat sentences of up to ten years hancements is to authorize enhanced sentences to deter the defendant or others hancements is to authorize committing the same crime. from lieves that Illinois is taking positive strides in combating child predators in the strides in combating child predators is taking positive that Illinois lieves State. children is the focus of the new those engaged in, or IGL as it targets only children in, sexual conduct with a child. attempting to engage 26794 lpr_14-2 Sheet No. 36 Side B 06/29/2009 13:47:06 B 06/29/2009 36 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 37 Side A 06/29/2009 13:47:06 187 For in- For Civil lib- 31 Even if a Even 28 34 36 No. 2 • Spring 2 • No. 2009 Though civil liberties advocates 35 37 ERSPECTIVE P Where no significant problems exist, then the rate of re- no significant problems Where 32 IBERTIES 30 L Indeed, if crime rates are low, then why are additional penalties then why are low, if crime rates are Indeed, Legislation such as the IGL may have an adverse impact on those an adverse as the IGL may have Legislation such IVIL 33 29 C HE Although the protection of children is paramount in our society and laws, civil of children Although the protection call for legislation that would punish sex offenders but avoid rights advocates While child advocates point to the necessity of legislation that more harshly necessity of legislation that more point to the While child advocates has arisen. a disconnect punishes sex offenders who target children, On this basis, supporters of the child advocate perspective find that expanding find that perspective supportersthis basis, child advocate of the On children more will protect severely more to punish child predators state laws that modern the emerging threat crimes, particularly given future and deter to potential victims. the internet pose in technology and advances T considers the heavy toll inflicted contrast, the “civil liberties perspective” In including the newconvicted under the sex offender laws, upon individuals IGL. \\server05\productn\L\LPR\14-2\LPR211.txt unknown 4 Seq: 27-MAY-09 11:18 convicted, including: harsh treatment, stigmatization, and public harsh treatment, convicted, including: humiliation. required? The IGL includes the mental state an elevated which indicates of “knowingly,” an individual.mental state to charge and convict also in- the law However, of conduct. language that encompasses a wide range cludes broad peat offenders that target children is also very low—twopeat offenders that target children factors that together at times be poorly planned or overly suggest that sex offender laws may harsh. believe that child sex abuse should be punished, they believe that legislators too that legislators that child sex abuse should be punished, they believe believe offenders.” legislation aimed at sex often focus on “Draconian of child sex connotation the negative charged defendant is found innocent, could lead to of proceedings abuse charges coupled with the public nature in the community, stigmatization and the damaging of one’s reputation severe and other realms. job market, stance, a recent investigation conducted by forty-nine Generals conducted by state Attorney investigation stance, a recent internet does not pose a via the children found that the sexual solicitation of significant threat. not an individual convicted under such a erties argue that whether or advocates convicted, the punishments imposed lead law is actually guilty or wrongfully to stigmatization, labeling, and castigation. 26794 lpr_14-2 Sheet No. 37 Side A 06/29/2009 13:47:06 A 06/29/2009 37 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 37 Side B 06/29/2009 13:47:06 42 38 IGHTS R NDIVIDUAL I As one author found, stigmatization of sex 47 “I don’t feel the regulations which protect our which protect “I don’t feel the regulations 45 46 OLLIDING WITH Accordingly, punishing an individual for making an online Accordingly, Crafting the IGL to require a particular and to mental state the IGL to require Crafting 44 39 C For example, there is no available precedent because the IGL precedent is no available example, there For 40 43 41 OLICY P UBLIC Conversely, civil liberties would find the effect of charging an indi- Conversely, advocates vidual under the IGL has unduly harsh and stigmatizing effects, particularly is no clear victim. there where 188 If an individual was indicted under the IGL for an online posting, regardless of posting, regardless an individual was indicted under the IGL for an online If he faces public stigmatization, hu- whether or not he is ultimately convicted, to personal safety in his and threats to employment, miliation, threats community. any subsequent effects of punishment are believe child advocates However, a new from children to protect the public’s interest by outweighed greatly mode of attack. Problems abound as victims, arguably, suffer no harm because the IGL covers abound as victims, arguably, Problems attempted solicitation. is no victim if an indi- it is possible that there Indeed, but the to the general public, available vidual posts to an online message board its contents. reads and no child ever posting is not targeted at a specific child Loyola Public Interest Law Reporter Law Interest Public Loyola of way by such legislation under convicted to those attention undue drawing means. offender or other as a sex public registration P policy concerns, rape and sex offender paramount public Although addressing liability offenses, requir- often strict are because they laws become problematic at all to requirement mental state and sometimes no intent ing a very reduced face conviction. \\server05\productn\L\LPR\14-2\LPR211.txt unknown 5 Seq: 27-MAY-09 11:18 posting is entirely justified. posting is entirely stated. Munoz too harsh,” Senator are sexual predators from children ex- He get to can now in, sexual predators live plained further, the digital age we “In means. the internet and other electronic through our children [The IGL] chil- statutes up to date so the internet cannot be used to lure brings current to the predator.” dren has just come into effect.has just come into charged for a defendant involving Thus, a case be charged under the internet material to a minor may also offensive showing to mental state or did not intend had not met the requisite new if he law even solicit sex. avoid strict liability punishment is likely to give rise to judicial and jury rise likely to give strict liability punishment is mis- avoid conceptions. 26794 lpr_14-2 Sheet No. 37 Side B 06/29/2009 13:47:06 B 06/29/2009 37 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 38 Side A 06/29/2009 13:47:06 see 189 , Jan. . RIB . T ACLU Letter ACLU HI C , In our legal sys- our In See also See 49 No. 2 • Spring 2 • No. 2009 Landmark Legislation Passes in Legislation Passes Landmark http://www.aclu-il.org/aboutus/ Although the protection of the protection Although 48 U.S. Department of Justice, Child Ex- U.S. Department of Justice, 50 http://www.aclu-il.org/legislative/alerts/sb available at available See See http://mywebtimes.com/archives/ottawa/display. Andrea Zelinski, Zelinski, Andrea available at available See also See available at available http://www.chicagotribune.com/news/local/chi-new-laws-bar-01jan01,0, New Illinois Laws for 2009 Touch on Broad Range Issues of on Broad Touch Laws for 2009 Illinois New 730 ILCS 150 to 152 (West 2009). 150 to 152 (West 730 ILCS , Dec. 29, 2008, , Dec. See See IMES 720 ILCS 5/11-25 (West 2009) focusing on the use of “computer online services 2009) focusing on the 5/11-25 (West 720 ILCS T available at available HE T , Id. Id. e.g., See Monique Garcia, Garcia, Monique OTES 1, 2009, 3507978.story (stating that the purpose of the internet grooming law is to protect children). 3507978.story law is to protect of the internet grooming (stating that the purpose 8 normal sentencing subjected to additional penalties beyond offenders are sex Illinois, In requirements. 9 has taken significant strides in targeting the U.S. Department of Justice the federal level, On and sex offenders. and penalizing child predators (this http://www.usdoj.gov/criminal/ceos/ Page, Home Section ploitation and Obscenity office is charged with tryingprosecutorial the violation of federal child protection cases involving obscenity, trafficking and child sex legislation, including child pornography, child prostitution, kidnapping, and child supporttourism, international parental enforcement). to Rod Blagojevich, Governor of Illinois, of Illinois, Governor Blagojevich, to Rod faq.shtml (regarding the reasons for attacking Illinois sex offender laws). sex offender for attacking Illinois the reasons faq.shtml (regarding sex offender law; different to a point of view in regards 121letter.pdf (explaining the ACLU’s holds true of the IGL). though the reasoning in the case 3 2009). 5/11-25 (West 720 ILCS 4 5 6 2009). 5/5-8-1(a)(7) (West 730 ILCS 7 or entice, a child”); or entice, or attempt to seduce, solicit, lure, . . . to seduce, solicit, lure, php?id=372610. 2 Asked Questions, Frequently of Illinois: ACLU also N 1 2009). 5/11-25 (West 720 ILCS offenders occurs “by creating registries to deter recidivists while simultaneously to deter recidivists registries creating “by occurs offenders trying each offender.” and ‘shame’ to ‘brand’ upon sex offender laws often fail, it falls constitutional challenges to Because and civil liberties the opposing child views,lawmakers to rectify the to balance dis- rights, and to avoid with the sanctity of individual of children protection unlikely because it is stigmatizing punishments. However, proportionate or despite the best efforts of or repealed, be scaled back ever that such laws will order that has to change in it may be public awareness civil liberties advocates, the true on both offender and victim. impact of such laws to reveal \\server05\productn\L\LPR\14-2\LPR211.txt unknown 6 Seq: 27-MAY-09 11:18 tem where punishments must fit crimes, it may be haphazard to impose a may be haphazard fit crimes, it punishments must tem where there where in situations an individual, especially punishment on devastating or intended victim. may not be any victim 2008 children is important, it cannot be used as a catchall excuse to impose harsh or to is important, excuse be used as a catchall it cannot children offenders. on convicted sex punishments disproportionate 26794 lpr_14-2 Sheet No. 38 Side A 06/29/2009 13:47:06 A 06/29/2009 38 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 38 Side B 06/29/2009 13:47:06 . TUD availa- . S available AM available at available 1307, 1309 , Jan. 13, 2009, , Jan. . L.J. J. L. & F http://www.illinois http://www.aclu-il. IMES ND I , 8 Evidence-Based Practices Evidence-Based , Nov. 7, 2006, 7, 2006, , Nov. , 82 http://www.isp.state.il.us/ N.Y. T OST ACLU of Illinois: Frequently of Illinois: ACLU , http://www.aclu-il.org/about available at available available at available N.Y. P see also , available at available , available at available Statute Note: Allowing Probation for Incest Probation Allowing Note: Statute Roger K. Warren, K. Warren, Roger note 29 at 6; ACLU of Illinois: Frequently Asked Questions, Asked Questions, Frequently of Illinois: ACLU , at 6, Summer 2006, , at 6, Summer See generally See supra , see also ‘Dateline’ Perv DA a Suicide Perv ‘Dateline’ Executive Summary 2007 Summary Executive Reflections on the State of Consensus-Based Decision Making in Child Making Decision of Consensus-Based on the State Reflections note 17; Krista Taylor, note 17; Krista Taylor, note 17. note 17. (West 2009). (West 10, 11 (2009) (addressing the tradeoff between state interference and tradeoff between the 10, 11 (2009) (addressing . The Illinois Brief The Illinois note 2 (regarding the reasons for attacking Illinois sex offender laws). for attacking Illinois the reasons note 2 (regarding EV The Illinois Brief The Illinois supra supra supra 730 ILCS 150 (West 2009). 150 (West 730 ILCS et seq. . R T supra Report Calls Online Threats to Children Overblown to Children Threats Online Report Calls . C Michael Starr, Starr, Michael , 549 F.3d at 551 (addressing problems of vigilantism and impact on individual problems , 549 F.3d at 551 (addressing see also Bernie Mayer, Mayer, Bernie AM Illinois Attorney General: Safeguarding Children, Children, Safeguarding General: Attorney Illinois F http://www.nytimes.com/2009/01/14/technology/internet/14cyberweb.html. U.S. v. Morris, 549 F.3d 548, 551 (7th Cir. 2008) (addressing private vigilantism and vigilantism private (addressing Cir. 2008) 551 (7th F.3d 548, 549 Morris, U.S. v. Illinois State Police, Police, State Illinois , 47 http://www.aclu-il.org/aboutus/faq.shtml (regarding the reasons for attacking Illinois sex for attacking Illinois reasons the http://www.aclu-il.org/aboutus/faq.shtml (regarding Id. Id. See Morris See also See Id. e.g., See See Id. See See see also Id; http://www.nypost.com/seven/11072006/tv/dateline_perv_da_a_suicide_tv_michael_starr. (2007) (generally addressing recidivism and the purpose to prevent further offenders). repeat to prevent and the purpose recidivism (2007) (generally addressing Asked Questions, Asked Questions, 190 27 28 Antonio Munoz, Welfare available at available 33 34 2009). 5/11-25(a) (West 720 ILCS 35 of Illinois, ACLU Offenses Against a Child: An Injustice to Child-Victims and a Call for Repeal and a Call to Child-Victims Injustice a Child: An Against Offenses at a reality by confronted suicide after being who committed prosecutor a Texas htm (regarding being served). while television show 12 2009). 5/5-8-1(a)(7) (West 730 ILCS 13 150 730 ILCS 14 2009). 5/5-5-3.2 (West 730 ILCS 15 defendants). 16 child protection, and noting that protecting children has been a longstanding principle in our has been a longstanding principle children that protecting and noting child protection, ancient times). from legal system, descended 17 author). (on file with Munoz Antonio Senator State with Illinois correspondence Email 18 2009). 5/11-25 (West 720 ILCS 19 1, 2008, Apr. On-Line, Children for Luring Penalties to Increase Bill Munoz http://www.senatedem.ilga.gov/GH_ShowArticle.asp?HID=594. 20 Antonio Munoz, 21 22 and State Sentencing Policy: Ten Policy Initiatives to Reduce Recidivism to Reduce Initiatives Policy Ten Policy: Sentencing and State attorneygeneral.gov/children/index.html (Illinois Attorney General Lisa Madigan lists as a pri- Lisa Madigan General Attorney (Illinois attorneygeneral.gov/children/index.html sex offenders). from including protection means, various mary by of children goal the protection 23 docs/cii/cii07/ExecSummary07.pdf. 24 25 2009). 5/11-25(a) (West 720 ILCS 26 2009). 5/5-5-3.2 (West 730 ILCS 31 Antonio Munoz, 32 Stone, Brad 483, 490 (2006). 29 of Illinois, ACLU Loyola Public Interest Law Reporter Law Interest Public Loyola 10 confrontations). physical and actual attacks internet-based including operations, sting private 11 \\server05\productn\L\LPR\14-2\LPR211.txt unknown 7 Seq: 27-MAY-09 11:18 org/news/brief/summer2006.pdf; ble at offender laws). 30 Asked Questions, Frequently of Illinois: ACLU us/faq.shtml; 26794 lpr_14-2 Sheet No. 38 Side B 06/29/2009 13:47:06 B 06/29/2009 38 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 39 Side A 06/29/2009 13:47:06 , . L. . & 191 M essing Setting CH W , Feb. 17, , Feb. . , 13 N.Y.L. S HRON issues that arise in C , 53 53 (2009) (discussing temid=88 (addr Shawndra Jones, Jones, Shawndra No. 2 • Spring 2 • No. 2009 mens rea OUSTON . L.J. also H RB , U note 2 (regarding the reasons for reasons the note 2 (regarding note 2. supra supra Id. ORDHAM F 1, 32 (2000) (discussing harsher punishments, . note 29 at 6; see note 29 at , 36 EV 143, 152-53 (2007). 143, . supra , Eighth Amendment Gaps: Can Conditions of Confinement Can Gaps: Amendment Eighth . L. R TUD S UQ L ’ 127, 200-202 (1993) (discussing 127, 200-202 (1993) D 479, 480-81 (2008) (addressing the stigma associated with sex the stigma (2008) (addressing 479, 480-81 NT . “On Horror’s Head Horror Accumulates”: A Reflective Comment on A Reflective Accumulates”: Horror Head Horror’s “On . L. , 39 . I note 17. RIM ROBS UST Sex Offender Registry Called Too Harsh Registry Too Called Offender Sex The Intersection Between Domestic Violence and the Child Welfare System: Welfare and the Child Violence Domestic Between The Intersection The Illinois Brief The Illinois . P 867, 874 (regarding unintended victims of domestic and sexual abuse unintended victims of domestic 867, 874 (regarding . J supra Growing Media and Legal Attention to Sex Offenders: More Safety or More or Safety More Offenders: to Sex Attention and Legal Media Growing Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Evidence Misconduct of Uncharged Admission Revisited: Gaol Reading . J. C OC M Sex Offender as Scapegoat: The Monstrous Other Within Other as Scapegoat: The Monstrous Offender Sex NST A & L. http://www.cfcamerica.org/index.php?option=com_content&view=article&id Alexander A. Reinert, note 38 at 498. J. I 720 ILCS 5/12-13 (West 2009) (there is no requirement that a child is actually is no requirement 2009) (there 5/12-13 (West 720 ILCS , 21 720 ILCS 5/12-13 (West 2009) (Illinois codification for criminal sexual assault; codification for criminal sexual 2009) (Illinois 5/12-13 (West 720 ILCS supra OMEN . J.L. & S Lisa Sandberg, Lisa Sandberg, Linda Quigley, Linda Quigley, J. Richard Broughton, Broughton, J. Richard , 2007 , 2007 see also available at available J. W See generally generally See See See See See See e.g., See See See OLUM 31, 44 (2008/2009) (“Undeniably, child sexual abuse is a stigmatizing crime . . . the value child sexual abuse is a stigmatizing 31, 44 (2008/2009) (“Undeniably, . C ARY EV Litigation Benefit from Proportionality Theory? Proportionality from Benefit Litigation 2008, =108:sex-offender-registry-called-too-harsh&catid=11:teens-children&I concerns that sex offender registry and is unduly harsh and poses high costs for compliance maintenance). 48 Jones, 49 Asked Questions, Frequently of Illinois: ACLU 50 proportionality concerns when punishing defendants, including in the context of sex offenders). 36 Horowitz, Emily Injustice? R M including death, that some jurisdictions permit in their legislation for sexual crimes committed including death, that some jurisdictions permit against children). 45 view war- that harsher punishments are this would be supported the prevailing Indeed, by ranted for those sex offenders who target children. 46 Antonio Munoz, 47 attacking Illinois sex offender laws). attacking Illinois 38 of Illinois, ACLU 37 Asked Questions, Frequently of Illinois: ACLU Their Record Straight: Granting Wrongly Branded Individuals Relief from Sex Offender Registration Offender Sex from Relief Individuals Branded Wrongly Granting Straight: Their Record 41 sex offender cases and the misuse of “motive” in such cases). the misuse of “motive” sex offender cases and 41 2009) that would bar the coupling of an 5/11-25 (West in 720 ILCS is no provision There with other sex offenses, giving rise to a potential Law Grooming Internet indictment under the abuse. for prosecutorial 42 and Their Children Mothers of Battered Protection in the Courts Play The Role Can offenders). 39 the Illinois legislature did not require a mental state for culpability of certain a mental such as offenses did not require legislature the Illinois sexual assault of a minor). 40 Thomas J. Reed, Cases Offender harmed or that an actual victim exists). 43 Douard, John crimes); of stigmatizing the crime does not warrant stigmatizing the offenders through disgust, humilia- the offenders through of stigmatizing the crime does not warrant stigmatizing efforts undermine because in doing so, we to understand and treat tion, isolation, and exclusion, sex offenders.”). 44 \\server05\productn\L\LPR\14-2\LPR211.txt unknown 8 Seq: 27-MAY-09 11:18 Capital Child Rape Capital Legislation 26794 lpr_14-2 Sheet No. 39 Side A 06/29/2009 13:47:06 A 06/29/2009 39 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 39 Side B 06/29/2009 13:47:06 INIARSKI Toole even- Toole W 5 IZ L by The police determined Walsh had been The police determined Walsh 2 Walsh’s severed head was found two weeks later in a head was found two weeks severed Walsh’s 1 Two years later, serial killer Ottis Toole confessed to the Toole Ottis later, serial killer years Two 3 FACING THE COMPLIANCE FACING DEADLINE FOR THE ADAM FOR THE DEADLINE As Toole later recanted and was never tried in court and was never because of a lack later recanted As Toole WEIGHING ALL THE COSTS WEIGHING ALL 4 WALSH CHILD PROTECTION CHILD WALSH n 1981, 6-year-old Adam Walsh was abducted from a Florida mall, never to never mall, a Florida was abducted from Walsh Adam n 1981, 6-year-old again. from be heard AND SAFETY ACT, STATES ARE STATES AND SAFETY ACT, of physical evidence, Walsh’s parents struggled to receive closure. struggled parents to receive of physical evidence, Walsh’s I 192 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR212.txt unknown 1 Seq: 27-MAY-09 11:20 canal over one hundred miles away. one hundred canal over crime. abused and tortured. tually died in 1996 of liver failure while serving failure tually died in 1996 of liver time in a maximum security 26794 lpr_14-2 Sheet No. 39 Side B 06/29/2009 13:47:06 B 06/29/2009 39 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 40 Side A 06/29/2009 13:47:06 8 193 16 Con- 17 CT A HALLENGES C No. 2 • Spring 2 • No. 2009 The stated purpose of The stated purpose 9 OSTS OF THE C However, in December 2008, in December However, Hollywood police chief Chad- Hollywood 7 6 ONSTITUTIONAL State failure to “substantially com- failure State INANCIAL : C 11 : F TATES S The estimated cost of implementing the Act The estimated cost of implementing OCKETS 13 Thus, Illinois stands to save a significant chunk of stands to save Thus, Illinois P To meet good standing eligibility, the sex offender To 18 15 AXPAYER In contrast, by losing 10 percent of the Byrne grants, the of the Byrne losing 10 percent contrast, by In T URDENS ON THE 14 B The Act mandates state conformity with various aspects of its na- aspects with various mandates state conformity The Act CT 10 However, some states have refused to activate portions of the Act and portions to activate of the Act refused some states have However, TO THE A 12 EACHING INTO DDITIONAL Come July, Illinois will most likely be out of compliance with the Act because will most likely be out of compliance with the Act Illinois Come July, to some of its provisions.it only adheres stipulates that once a sex The Act with the state, his or her status is permanent. offender is registered An important consideration states are making is the financial cost of imple- An important states are consideration menting the Act. calcu- Institute Policy D.C.-based Justice The Washington the requirements Act’s $20,846,306 to fulfill the lated that it will cost Illinois of implementation. first year A prison in Florida for a separate arson-murder. a separate for in Florida prison Adam passed the controversial Representatives of 25, 2006, the House July On of 2006 (Act). Act Safety and Child Protection Walsh \\server05\productn\L\LPR\14-2\LPR212.txt unknown 2 Seq: 27-MAY-09 11:20 state loses only $850,100. other states that are in compliance have already encountered a wave of litiga- a wave encountered already in compliance have other states that are tion. weighing carefully 2009, states are a compliance deadline of July With and cons of complying with the Act. the pros R costs and costs, law enforcement takes into account court and administrative new personnel. tional sex offender registration system. registration tional sex offender money by cherrymoney by the parts it chooses to comply with. picking of the Act wick Wagner announced at a press conference that “if Ottis Toole was alive Toole Ottis that “if conference at a press announced wick Wagner Walsh.” Adam of and murder for the abduction would be arrested today, he the Act is to protect the public, in particular children, from violent sex offend- violent sex from the public, in particular children, is to protect the Act of sex for the registration system comprehensive implementing a more ers by offenders. the Hollywood, Florida Police Department officially announced that Toole was that Toole officially announced Department Police Florida the Hollywood, closed. and the case was killer, in fact Walsh’s ply” with the provisions of the Act results in a 10 percent reduction of funding reduction in a 10 percent results of the Act ply” with the provisions of 1968 (Byrne Act Street and Safe Control Crime under the Omnibus grant). in good standing to petition for for juveniles allows currently Illinois versely, registry. the from removal 26794 lpr_14-2 Sheet No. 40 Side A 06/29/2009 13:47:06 A 06/29/2009 40 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 40 Side B 06/29/2009 13:47:06 As a 23 30 Further, he is not allowed Further, 24 Shauna Boliker, of the Cook Shauna 19 According to the Act, individuals to the Act, According 26 After engaging in a consensual sexual After engaging in the court upheld the lower court’sthe court deci- lower upheld the 22 The implications of this are illustrated in The implications of this are 27 Ricky thought they were both 16. However, were Ricky thought they Fuller, Fuller, 21 25 an Illinois Appellate Court rigid classi- Appellate case in which the Act’s an Illinois He was merely convicted of stealing a van occupied by two chil- occupied by convicted of stealing a van was merely He 28 20 After weighing the evidence, Presiding Judge Cohen determined that Judge the evidence, Presiding After weighing 29 Illinois is not alone in its recent flood of litigation over the Act. Other states Other the Act. flood of litigation over is not alone in its recent Illinois also experiencing a rise in their court costs as offenders are and administrative started classification system have challenging the constitutionality of the Act’s in courts the country. across the American Civil Liberties Union Nevada, In on behalf of 12 anony- challenged the constitutionality of the Act (ACLU) mous sex offenders, arguing that the law imposes cruel and unusual punish- ment in violation of the 8th Amendment of the Constitution and is too 194 Cory Rayburn Yung, Professor at John Marshall Law School and author of the Marshall at John Professor Cory Rayburn Yung, fail to differ- of the Act argues that the uniform standards Crimes,” blog “Sex of sex offenses. entiate among the diversity Loyola Public Interest Law Reporter Law Interest Public Loyola pro- a treatment complete current, information registration keep their must officer. probation check in with a gram and classification system rigid of the Act’s downfalls Boliker’s doubts concerning the by illustrated are circumstances to account for individual and its failure story of Ricky. their consensual high school ro- Ricky and Amanda began at a club. mance when they met \\server05\productn\L\LPR\14-2\LPR212.txt unknown 3 Seq: 27-MAY-09 11:20 dren. promoting public safety was served by the registration system. public safety was served the registration by promoting People v. Fuller, v. Fuller, People fication system was upheld. In sion requiring a defendant to register as a sex offender although no claims of as a sex offender although no claims a defendant to register sion requiring made against the were contact with the children sexual misconduct or even defendant. Amanda had lied and was actually 13. Amanda had lied and County Office of the State’s Attorney and Head of the Sex Crimes Unit, ac- Unit, Crimes of the Sex Head and Attorney of the State’s County Office should be “some and that there of law tough area that this is a knowledges the adult from class as a different look at juveniles need to but we uniformity offender.” to cross state lines without telling a parole officer, even for trivial matters such officer, even state lines without telling a parole to cross as going to the mall. convicted of kidnapping or false imprisonment of a minor without a sexual convicted of kidnapping or false imprisonment must also register. element present relationship, Ricky was convicted of statutory Ricky was convicted of relationship, rape because the law classified to the act. who was legally unable to consent Amanda as a minor high school, harassed by Ricky has been kicked out of sex offender, registered to get a job. strangers and neighbors, and is unable 26794 lpr_14-2 Sheet No. 40 Side B 06/29/2009 13:47:06 B 06/29/2009 40 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 41 Side A 06/29/2009 13:47:06 39 42 195 and 43 defend- IOLATES V CT A 44 No. 2 • Spring 2 • No. 2009 U.S. v. Dixon, OW THE In 36 : H ANDS ’ H UDGES OCTRINE J D As opposed to uniformly applying the Act’s As opposed to 37 UT OF OWERS O P The Court’s to be flexible in applying the Act decision 40 38 The consequences of the new system are extraordinary; of the new The consequences registra- system are The ACLU argued that by classifying sex offenders into three into sex offenders classifying that by argued ACLU The This sentiment is echoed in a class action lawsuit filed in Ohio, This sentiment is echoed in a class As a result, a federal judge issued an order preventing Nevada’s sex Nevada’s preventing issued an order a federal judge As a result, UNISHMENT 33 31 41 34 THE 35 Nevada’s old system categorized sex offenders by their risk of re- their by sex offenders old system categorized Nevada’s P EPARATION OF 32 S AKING The firm representing the appellant sex offenders announced that it intends to The firm representing in other counties, fronts on several file similar motions attacking the Act T and are not being individually tailored because punishments are Furthermore, critics argue that the separation of the Act, through Congress mandated by doctrine is not being met.powers asserts legislatively-mandated that Yung making it a one-sided “taking it out of the judges’ hands and punishments are spit ball.” Another constitutional challenge prompted by the Act relates to its retroactive relates the Act by challenge prompted Another constitutional implementation. General Attorney the Illinois by 2007 regulation A February those with the state, even convicted sex offenders register mandated that all of the Act. the passage before convicted who were months was case, five that in Dixon’s The Court’s the analysis reflects holding case, and in Carr’s time to expect compliance with a regulation, a reasonable was not. six weeks restrictive. \\server05\productn\L\LPR\14-2\LPR212.txt unknown 4 Seq: 27-MAY-09 11:20 which alleges that by allowing the Ohio Attorney General to engage in sen- General Attorney the Ohio allowing which alleges that by of the judiciarytencing instead of a judge, the role upon. encroached is being provisions, the U.S. 7th Circuit Court elected to acquit Dixon but uphold Court U.S. 7th Circuit elected to acquit Dixon the provisions, Carr’s conviction. that and Carr’s individual charges, stating was based on the dates of Dixon’s regulation. General’s to the Attorney parties time” to adapt need “reasonable offending. attached to is a heavy stigma is for life and there sex offender list tion on the this label. tiers based on the crimes committed, punishments are not individually tai- not individually are committed, punishments on the crimes tiers based lored. were until these Constitutional issues being implemented offender law from resolved. ants Dixon and Carr challenged their individual convictions for failing to reg- challenged their individual convictions and Carr ants Dixon travel. ister for interstate Communications Director for Ohio Attorney General Marc Dann said that Dann Marc General Attorney for Ohio Communications Director been filed. already have similar challenges to the Act several 26794 lpr_14-2 Sheet No. 41 Side A 06/29/2009 13:47:06 A 06/29/2009 41 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 41 Side B 06/29/2009 13:47:06 , Dec. ONTENT C SSOCIATED A http://www.amw.com/fugitives/ While these lawsuits may result in result lawsuits may While these 45 The Story of Adam Walsh, The Story of Adam Ottis Toole Charged with Murder of Adam Walsh 27 Years After Commission of 27 Years Walsh of Adam Murder Charged with Toole Ottis Id. Id. Id. Id. Id. Id. OTES 17, 2008, http://www.associatedcontent.com/article/1311700/ottis_toole_charged_with_mur- der_of.html. 8 196 case.cfm?id=39789 (last visited Mar. 31, 2009). case.cfm?id=39789 (last visited Mar. 2 3 4 5 6 7 Hopwood, Jon Incompetence, Due to Police Justice Escaped Murderer Child Horrific Former Rep. Mark Foley, far right, at the White House Rose Garden signing ceremony for the Adam signing ceremony Garden Rose far right, at the White House Foley, Mark Rep. Former 27, 2006. of 2006 on July Act and Safety Child Protection Morse, Walsh Paul photo by White House at http://newsblogs.chicagotribune.com/.shared/image.html?/photos/uncategorized/white_ available house_adam_walsh_l.jpg. N 1 Wanted, America’s Most Loyola Public Interest Law Reporter Law Interest Public Loyola that courts and beginning the only the this is that be will soon believes Yung the Act. cases challenging flooded with \\server05\productn\L\LPR\14-2\LPR212.txt unknown 5 Seq: 27-MAY-09 11:20 the overbroad punishment of sex offenders, leading to appeals and the expendi- leading to appeals of sex offenders, punishment the overbroad costly method of inefficient and arguably this money, taxpayer of more ture the from Tooles the Ottis only way to distinguish is the the Act challenging its rigid provisions. Rickys under 26794 lpr_14-2 Sheet No. 41 Side B 06/29/2009 13:47:06 B 06/29/2009 41 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 42 Side A 06/29/2009 13:47:06 , F- AR- 197 O EWS -M EX N S , Feb. 20, , Feb. AILY EAT D B LEVELAND C ITY AYTON C D , Dec. 18, 2008, http:// , Dec. , No. 2 • Spring 2 • No. 2009 LOG NGELES B A OS note 26. L , ACULTY F supra supra , http://www.justicepolicy.org/images/upload/ ? CHOOL CT S A AW , Nov. 16, 2008, http://cmlawlibraryblog.classcaster. , Nov. L LOG HAT WILL IT COST STATES TO COMPLY WITH THE B , W OTIFICATION NIVERSITY N IBRARY U Seventh Circuit Week in Review: Limiting the Reach of the Adam Walsh of the Adam the Reach Limiting in Review: Week Circuit Seventh Is Ricky Really a Sex Offender?, a Sex Ricky Really Is L note 9. note 9. NSTITUTE AW 756 N.E.2d 255, 279 (Ill. App. Ct. 2001). App. 756 N.E.2d 255, 279 (Ill. I Attorney Challenges constitutionally of Walsh statute Attorney Challenges constitutionally of Walsh L Federal Judge halts sex offender law: Nevada act awaits constitutional challenges, halts sex offender law: Nevada Judge Federal , July 1, 2008, http://www.lvrj.com/news/22752939.html. , July supra supra supra supra ARQUETTE OLICY M P 756 N.E.2d at 279. 756 N.E.2d at 732. FENDER SHALL EGISTRATION AND OURNAL OLLEGE OF J (based off Illinois’ 2006 Byrne grant, which the U.S. House of Representatives estimates of Representatives the U.S. House grant, which 2006 Byrne (based off Illinois’ R C USTICE Id. Id. Id. Id. Id. v. Fuller, People Fuller, Fuller, Challenges to the Adam Walsh Sex Offender Law: Ohio and Elsewhere, Law: Ohio Offender Sex Walsh Challenges to the Adam Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. J EVIEW 2008, http://www.lacitybeat.com/cms/story/detail/is_ricky_really_a_sex_offender/6726/. 22 23 24 25 26 Law School, Marshall John J.D., Professor, Interview with Cory Rayburn Yung, Telephone 28, 2008). (Oct. Crimes” and author of the blog “Sex 27 Act, Walsh 28 29 30 31 Kihara, David 42 law.marquette.edu/facultyblog/2008/12/28/seventh-circuit-week-in-review-limiting-the-reach- of-the-adam-walsh-act-a-little/. 37 38 39 40 41 interview with Cory Rayburn Yung, Telephone 9 587 120 Stat 109-248, L. No. Pub. of 2006, Act and Safety Protection Child Walsh Adam (2006). 10 11 12 13 08-08_FAC_SORNACosts_JJ.pdf (last visited Mar. 31, 2009). (last visited Mar. 08-08_FAC_SORNACosts_JJ.pdf 14 15 will be equivalent to the funding appropriated in 2006). appropriated to the funding will be equivalent 16 17 18 Cook Unit, Crimes of Sex Head Attorney, Interview States Boliker, with Shauna Telephone 5, 2008). County (Nov. 19 20 21 Win, Ingber Hanna org/blog/national/2008/06/10/challenges_to_adam_walsh_sex_offender_law_ohio_and_else- Lou Grieco, where; 32 33 34 Act, Walsh 35 36 M. O’Hear, Michael (a Little), Act R \\server05\productn\L\LPR\14-2\LPR212.txt unknown 6 Seq: 27-MAY-09 11:20 26794 lpr_14-2 Sheet No. 42 Side A 06/29/2009 13:47:06 A 06/29/2009 42 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 42 Side B 06/29/2009 13:47:06 note 26. supra supra Id. Id. 198 Loyola Public Interest Law Reporter Law Interest Public Loyola 4, 2008, Jan. http://www.daytondailynews.com/n/content/oh/story/news/local/2008/01/03/ ddn010408offenders.html. 43 44 45 interview with Cory Rayburn Yung, Telephone \\server05\productn\L\LPR\14-2\LPR212.txt unknown 7 Seq: 27-MAY-09 11:20 26794 lpr_14-2 Sheet No. 42 Side B 06/29/2009 13:47:06 B 06/29/2009 42 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 43 Side A 06/29/2009 13:47:06 199 URWITZ H OAH N 4 No. 2 • Spring 2 • No. 2009 by Furthermore, parents are parents Furthermore, 3 However, there is a general there However, 5 NCLB requires school districts to make “adequate yearly NCLB requires 1 Failure to achieve “adequate yearly progress” puts the district at risk progress” “adequate yearly to achieve Failure 2 DIRECTION OF EDUCATION DIRECTION n 2001, Congress passed the No Child Left Behind Act (NCLB), which (NCLB), Act Child Left Behind passed the No n 2001, Congress tests to that school districts administer standardized included a requirement FROM BUSH TO OBAMA: THE BUSH TO FROM students to determine whether test scores are improving year to year, with the to year, year improving are students to determine whether test scores for everymath and reading in proficiency grade level goal of achieving overall 2014. student by After almost eight years, NCLB’s legacy on America’s public education system After almost eight years, the gap between is still being debated. While NCLB is praised for narrowing for interfering it is also criticized white and minority students in some areas, of public education. with state and local control I \\server05\productn\L\LPR\14-2\LPR213.txt unknown 1 Seq: 16-JUN-09 13:46 progress.” as “failing.” to lose federal funding and to be labeled the option to transfer their child to another school. given 26794 lpr_14-2 Sheet No. 43 Side A 06/29/2009 13:47:06 A 06/29/2009 43 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 43 Side B 06/29/2009 13:47:06 14 11 7 9 The districts complained that the 8 DUCATION E The Department of Education vowed to disperse 12 NCLB ONEY FOR U.S. Secretary of Education, Arne Duncan, criticized Duncan, Arne Education, U.S. Secretary of 6 M SIDE A EACTIONS TO ETS R S Characterized more as “spending,” than “stimulus” money, the in- more Characterized 13 Hoekstra criticizes NCLB for creating “a one-size-fits-all approach to approach “a one-size-fits-all NCLB for creating criticizes Hoekstra 10 EGATIVE TIMULUS Originally, NCLB was designed to increase accountability and transparency in and transparency accountability increase NCLB was designed to Originally, goals. educational performance nationally standardizing student academic by the pro- complained that teachers, and administrators have parents, However, rather than increasing exposes public education failures, gram fundamentally academic performance. As pledged by President Obama shortly after his inauguration, Congress re- shortlyinauguration, Congress Obama after his President As pledged by plan, allocating almost $100 cently passed a $787 billion economic recovery billion to public education. 200 Moreover, in Michigan, Republican U.S. Representative Pete Hoekstra intro- Hoekstra Pete U.S. Representative Republican in Michigan, Moreover, them to provide allowing NCLB mandates by states from duced a bill to free of intent” to take full with a “declaration the U.S. Secretary of Education sup- federal receiving for their students’ education, while still responsibility port. S Dissatisfaction is evident in Minnesota, where two school districts recently sent two school districts recently where is evident in Minnesota, Dissatisfaction NCLB if urging them to withdraw from to their state legislature a resolution 2010. October by is not reformed the Act Loyola Public Interest Law Reporter Law Interest Public Loyola both coming are changes that administration the new Obama from consensus education. on expenditures government federal and to future to NCLB N \\server05\productn\L\LPR\14-2\LPR213.txt unknown 2 Seq: 16-JUN-09 13:46 education” that has only “. . .created more testing, more paperwork, has testing, more and more education” that has only “. . .created mandates.” money to comply with costly federal cost schools more early childhood education, prevent designed to increase flux of funds are children. aging schools, and educate low-income overhaul teacher layoffs, standardized testing required by NCLB does not account for vast student account for vast NCLB does not by testing required standardized the state. throughout learning disparities among school districts the academic benchmarks set forth by NCLB, saying that students may meet NCLB, saying that students may set forth by the academic benchmarks in high to be successful unprepared and still be “. . .woefully NCLB standards of going to a good university.” almost no chance school and have half the stimulus money to states almost immediately and the rest within six half the stimulus money to states almost immediately and the rest months. 26794 lpr_14-2 Sheet No. 43 Side B 06/29/2009 13:47:06 B 06/29/2009 43 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 44 Side A 06/29/2009 13:47:06 201 Vir- U.S. 16 21 15 No. 2 • Spring 2 • No. 2009 Also referred to as the “Flex- Also referred 20 22 From there, the new there, administration has From ORWARD 18 F OVING M 17 Given politicians’ general disfavor with the current politicians’ general disfavor Given 23 19 DUCATION E AND The Danbury project underscores Duncan’s pledge to support more creative pledge to support more Duncan’s The Danbury underscores project the spending expected from the increased to education and reflects approaches new administration. NCLB While the jury that education out on NCLB’s impact, it is apparent is still As a first step, direction. in a different is moving and Duncan under Obama to erase the stigma NCLB in order the oft-criticized will likely rename Duncan name. associated with the program’s encouraged underfunded to apply for the Duncan school districts Recently, budget $5 billion set aside in Obama’s or the roughly Fund,” “Race to the Top quo.” for schools “willing to challenge the status The stimulus money will also serve low-income college students by increasing by students college also servemoney will stimulus The low-income to $5,550 a year. $4,731 from Grant Pell the maximum education from $2.5 billion for about will receive the legislature Michigan, In shortfalls bridging school district in it towards and will direct the stimulus students. and other at-risk poor, disabled, to help programs budgets and \\server05\productn\L\LPR\14-2\LPR213.txt unknown 3 Seq: 16-JUN-09 13:46 NCLB, expectations for Obama’s education platform will likely be higher than education platform NCLB, expectations for Obama’s years. been in previous they have ible Fund,” the Department of Education will award money to states on a will award the Department of Education ible Fund,” rigid formulas of NCLB. discretionary as opposed to the more basis, promised more flexible goals, innovative approaches, and wider funding for approaches, flexible goals, innovative more promised public education. a announced that he secured has already Murphy Christopher Representative new build a family literacy Duncan’s fund to $262,000 federal grant from and community center in Danbury, Connecticut, intended to foster parental support education. of early childhood ginia will receive $1.5 billion for similar purposes, but local officials worry $1.5 billion for similar purposes, but the ginia will receive cuts if the economy does budget off future enough to stave money will not be year. next not improve 26794 lpr_14-2 Sheet No. 44 Side A 06/29/2009 13:47:06 A 06/29/2009 44 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 44 Side B 06/29/2009 13:47:06 . , HE AILY T ASH , EPORT D W , R , Feb. 27, , Feb. HE , Feb. 27, , Feb. T , EWS ORLD , Mar. 5, 2009, , Mar. ODAY , Feb. 26, 2009, , Feb. N , Jun. 8, 2008,:// , Jun. , Oct. 13, 2008, at 13, 2008, , Oct. OST EWS & W . P , Feb. 21, 2009, http:// , Feb. IMES N USA T , Feb. 24, 2005, http:// , Feb. , Feb. 23, 2009, at A12. , Feb. ETROIT , EWS AGAZINE ASH D IMES IMES IMES W M T , HE N.Y. T ETROIT US N , T IME , D , T N.Y. T N.Y. T , HE , , T OANOKE , R HE T , , Mar. 2, 2009, http://www.theage.com.au/na- , Mar. GE , Mar. 27, 2009, http://hoekstra.house.gov/News/ , Mar. A EWS HE T N , EDERAL Funds will Aid School Reform will Aid School Funds Danbury Schools get $260,000 for New Family Literacy Center Literacy Family Danbury Schools get $260,000 for New US F Duncan Challenges Mayor to Fix DPS to Fix Duncan Challenges Mayor note 13. Rep. Hoekstra Introduces Legislation that Frees States From Mandates Tied to Tied Mandates From States Legislation that Frees Introduces Hoekstra Rep. , Schools Pumped by Stimulus by Schools Pumped How to Spend $100 Billion on Education $100 Billion to Spend How Unprecedented Size, Scope in President’s Proposal in President’s Size, Scope Unprecedented No Child Left Behind: Doomed to Fail? Doomed Child Left Behind: No JCC and Worthington call for No Child Left Behind Change Left Behind Child call for No and Worthington JCC Stimulus Includes $5 Billion Flexible Fund for Education Innovation for Education Fund Flexible $5 Billion Includes Stimulus Stimulus to Help Retool Education, Duncan Says Education, Retool to Help Stimulus Rename Law? No Wisecrack is Left Behind Wisecrack Law? No Rename Report Faults Bush Initiative on Education Initiative Bush Report Faults Obama’s Revolution Obama’s Under ‘No Child’ Law, Even Solid Schools Falter Even Child’ Law, ‘No Under supra supra , Mar. 28, 2009, http://www.readingrockets.org/news/30660. , Mar. IMES , Mar. 3, 2009, http://www.dglobe.com/?event=exception.404&CFID=57229503& , Mar. -T , Feb. 14, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/02/13/ , Feb. Id. Id. Id. Id. Id. Id. Id. OTES EWS LOBE OST Feb. 18, 2009, http://www.usnews.com/blogs/on-education/2009/02/18/how-to-spend-100-bil- Feb. lion-on-education.html. 13 Harrison, David 2009, http://detnews.com/article/20090227/SCHOOLS/902270377. 21 Glod, Maria 2009, http://www.usatoday.com/news/washington/2009-02-26-deficit_N.htm. 16 Trowbridge, Gordon 18 Dillon, Sam http://www.washingtonpost.com/wpdyn/content/article/2009/03/04/AR2009030403523.html. 15 Wolf, Richard http://www.detnews.com/apps/pbcs.dll/article?AID=/20090226/SCHOOLS/902260424/1026. 17 Harrison, www.time.com/time/nation/article/0,8599,1812758,00.html. 7 Munro, Ian 19 20 Hornbeck, Mark A1. 2 3 4 5 Dillon, Sam www.roanoke.com/news/roanoke/wb/195421. 14 Turque, Bill www.nytimes.com/2005/02/24/education/24child.html. 6 Claudia Wallis, P tional/education/the-other-revolution-20090226-8im3.html?page=-1. 8 Laura Grevas, DocumentSingle.aspx?DocumentID=116073. 11 12 Ramirez, Eddy 23 202 CFTOKEN=20541441. 9 10 Jagirdar, Sarabjit No Child Left Behind No AR2009021303346.html. 22 FitzGerald, Eileen N G Loyola Public Interest Law Reporter Law Interest Public Loyola N 1 Dillon, Sam \\server05\productn\L\LPR\14-2\LPR213.txt unknown 4 Seq: 16-JUN-09 13:46 26794 lpr_14-2 Sheet No. 44 Side B 06/29/2009 13:47:06 B 06/29/2009 44 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 45 Side A 06/29/2009 13:47:06 3 203 EWIS L ASON J His medication His 2 By No. 2 • Spring 2 • No. 2009 BETTER?: ADA THE Although he took medication to control his con- Although he took medication to control 1 A CHANGE FOR THE A CHANGE 4 AMENDMENTS ACT OF 2008 ACT AMENDMENTS onsider the following scenario: James Todd, a stocker at a local factory, Todd, scenario: James onsider the following epilepsy. from suffered Despite his condition, a U.S. District Court ruled that Todd was not substan- Court his condition, a U.S. District ruled that Todd Despite tially limited in a major life activity. he did not qualify as disabled Therefore, (ADA), and was not entitled to the Act under the Americans with Disabilities legal protections. Act’s fear- in many disability advocates case resulted Court decisions such as Todd’s their treating to choose between ing that disabled individuals “could be forced C \\server05\productn\L\LPR\14-2\LPR214.txt unknown 1 Seq: 27-MAY-09 11:27 dition, he continued to experience seizures on a weekly basis. on a weekly dition, he continued to experience seizures caused him to have decreased cognitive functioning and memory cognitive problems. decreased caused him to have 26794 lpr_14-2 Sheet No. 45 Side A 06/29/2009 13:47:06 A 06/29/2009 45 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 45 Side B 06/29/2009 13:47:06 Congress, 6 7 10 11 5 CT As such, Title I of the Act prohibits private prohibits I of the Act As such, Title 9 A MENDMENTS Through the legislation, Congress aimed to “provide a clear and com- aimed to “provide the legislation, Congress Through 8 ADA A HE prehensive national mandate for the elimination of discrimination against indi- national mandate for the elimination of discrimination against prehensive viduals with disabilities.” In the text of the Act, Congress specifically defines a disabled individual as: (1) Congress the text of the Act, In limits a person that has a “physical or mental impairment that substantially of such an impairment”; or major life activities”; (2) has “a record one or more as having such an impairment.” (3) is “regarded 204 T 26, July signed the original ADA into law on H.W. Bush George President 1990. Loyola Public Interest Law Reporter Law Interest Public Loyola treating or not the ADA, under forfeiting and conditions protections their protected.” and being their conditions of Act the ADA Amendments passed Congress to this concern, response In 1, 2009. January on effective which became 2008 (ADAAA), advocacy disabled individuals and intent, however, Congress’ Notwithstanding to expand a lingering question: while the new bill professes still have groups ADAAA accordingly? the interpret will courts suit and follow coverage, \\server05\productn\L\LPR\14-2\LPR214.txt unknown 2 Seq: 27-MAY-09 11:27 employers from discriminating against qualified individuals with disabilities in from employers all terms, conditions, and privileges of employment. among other goals, aimed to restore the original intent and protections of the intent and protections the original restore goals, aimed to among other to disabled persons. coverage broad providing ADA by 26794 lpr_14-2 Sheet No. 45 Side B 06/29/2009 13:47:06 B 06/29/2009 45 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 46 Side A 06/29/2009 13:47:06 205 16 Toyota Motor Toyota now would not now Thus, because the 13 No. 2 • Spring 2 • No. 2009 Sutton 12 in 1999 and in 1999 in 2002. 18 regard to the ameliorative effects of mitigating to the ameliorative regard without , Congress stated that judicial decisions “ha[ve] created stated that judicial decisions “ha[ve] , Congress , Congress directly addressed mitigating measures. addressed directly , Congress could fully correct their visual impairments with glasses or their visual impairments could fully correct Moreover, the Court to be substantially stated that in order Moreover, Sutton v. United Air Lines, Inc. Air Lines, United v. Sutton 15 Toyota Under the Amendments, the Court in Under Sutton Sutton 17 , the Court ruled “major” that the terms “substantially” and , the Court ruled impairment when determining whether one’s that 14 Toyota Sutton Manufacturing, Kentucky, Inc. v. Williams Inc. Kentucky, Manufacturing, “need[ed] to be interpreted strictly to create a demanding standard for qualify- for standard a demanding create strictly to “need[ed] to be interpreted ing as disabled.” the rulingscases in the ADAAA. specifically rejected of these two Congress In to reference In However, Congress did not define “substantially limits” or “major life activi- life or “major limits” define “substantially did not Congress However, Act.ties” in the in their Courtsvaried and Courts U.S. District of Appeals them in Court addressed terms until the Supreme of these two interpretation cases: two ADA In mea- to the corrective a “major life activity,” it must look “substantially limits” the impairment. that the individual uses in treating sures \\server05\productn\L\LPR\14-2\LPR214.txt unknown 3 Seq: 27-MAY-09 11:27 consider the plaintiffs’ use of glasses or contact lenses when determining consider the plaintiffs’ use of glasses substantially limited under the Act. whether they were to reference In under of limitation necessary high level to obtain coverage an inappropriately be construed shall in this Act in favor the ADA. . .The definition of disability of individuals.” coverage of broad limited in performing a major life activity under the ADA, “an individual must do- from the individual restricts or severely an impairment that prevents have of central importance to most people’s daily lives.” ing activities that are “The determination of whether an impairment substantially limits a major life “The determination of whether an impairment activity shall be made measures.” plaintiffs in contact lenses, they were not substantially limited within the meaning of the not substantially limited within were contact lenses, they Act. 26794 lpr_14-2 Sheet No. 46 Side A 06/29/2009 13:47:06 A 06/29/2009 46 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 46 Side B 06/29/2009 13:47:06 ? 23 MENDMENTS A EW N 20 21 ESPONDED TO THE R ROUPS G 19 DVOCACY A 22 AVE H OW Barry Taylor, Director of Equip for Equality, a disability-rights advocacy or- advocacy a disability-rights Equality, for of Equip Director Barry Taylor, of eliminat- initial intent Congress’ restores states that the ADAAA ganization, discrimination. ing disability made find- ADA was first passed; Congress was optimistic when the “Everyone disability discrimination. thought would redress ings that we over However, that it negated the in- time, courts began to construe the statute so narrowly tent of Congress.” Despite the overwhelming support the overwhelming for the ADAAA, some employer-advocate Despite may afford that the Act coverage the broad skepticism over express groups disabled employees. Foundation, Analyst for The Heritage Legal Policy Senior Andrew Grossman, an could claim they have [the ADAAA], most employees stated that “Under 206 Most employer-advocate groups generally support the new groups amendments. employer-advocate Most businesses, represents an organization that The U.S. Chamber of Commerce, protections stated that the new legislation “strikes the right balance between of the obligations and requirements for individuals with disabilities and employers.” Benefits and Employee Labor, Immigration of vice president Randel Johnson, many months of nego- stated that “[a]fter at the U.S. Chamber of Commerce, the the Senate, between a sound compromise tiation, the legislation represents the business community, and the disability community.” House, “People with disabilities will [now] have their claims decided on the merits of their claims decided on the have with disabilities will [now] “People said. on technicalities,” Taylor the case rather than with Disa- of People of the American Association President Andrew Imparato, his satisfaction with the ADAAA. bilities, also expressed “This is the most important piece of disability legislation since the enactment said. of the ADA in 1990,” Imparato Loyola Public Interest Law Reporter Law Interest Public Loyola H \\server05\productn\L\LPR\14-2\LPR214.txt unknown 4 Seq: 27-MAY-09 11:27 26794 lpr_14-2 Sheet No. 46 Side B 06/29/2009 13:47:06 B 06/29/2009 46 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 47 Side A 06/29/2009 13:47:06 207 27 25 28 24 No. 2 • Spring 2 • No. 2009 ? OLD 26 H UTURE F OES THE D 29 HAT Republican Representative Roy Blunt of Missouri expresses that the ADAAA expresses of Missouri Blunt Roy Representative Republican “[The bill] puts people to work, factor for the workforce. will be a positive country,” opportunity productive Blunt creates and makes America a more said. the courts the new questions how will interpret ADAAA. Zimmer Still, because the statute broadly] frightened about [interpreting courts were “Before, W “To accommodate a single disabled employee, a small employer may need to a small employer a single disabled employee, accommodate “To an ADA con- of outside experts,bring in a number including a labor lawyer, added. an ergonomics expert Grossman or engineer,” sultant, and even “By such laws put small businesses the expertise of outside professionals, requiring costs increased spread to larger firms, which can disadvantage at a competitive workforce.” their entire across states that the over- Zimmer Michael law professor employment Nevertheless, all bipartisanship the bill made its signing into law less contentious. of [in support of the were rights’ groups and employer both employee “Since not to go along with it.” administration had no reason bill,] the [Bush] impairment, such as asthma or chronic stress, and sue if they were either laid either they were sue if and stress, chronic or as asthma such impairment, discrimination.” place, contending in the first hired off or not impact may disproportionately that the ADAAA is also concerned Grossman in place the structure have businesses – “Big small business. counsel general experts,offices, compliance consultants disability – to make these accommoda- efficient manner.tions in a relatively the costs a small business, however, For said. far higher,” Grossman basis are a per-employee of compliance on \\server05\productn\L\LPR\14-2\LPR214.txt unknown 5 Seq: 27-MAY-09 11:27 While courts have yet to apply the ADAAA to disability discrimination cases, to apply the ADAAA to disability While courts yet have claimants to come will encourage more practitioners feel that the ADAAA forward. dramatically,” Taylor seen has increased have “The number of cases that we not taking many disability attorneys were many private before] said. “[Whereas likely go up.” will number now cases because of their difficulty, the 26794 lpr_14-2 Sheet No. 47 Side A 06/29/2009 13:47:06 A 06/29/2009 47 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 47 Side B 06/29/2009 13:47:06 et availa- available Sutton v. Sutton . (1990). et seq http://www.uschamber. , 534 U.S. 184 (2002); available at available , REUTERS, Sept. 11, 2008, 11, 2008, , REUTERS, Sept. 30 http://www.heritage.org/Research/Labor/lm27.cfm. . (1990). , 57 F. Supp. 2d 448, 449-50 (S.D. Tex. 1999). Tex. 2d 448, 449-50 (S.D. , 57 F. Supp. et seq available at available et seq. , 527 U.S. 471 (1999). note 6. note 5. supra supra supra US Senate passes bill protecting disabled people disabled passes bill protecting US Senate , 527 U.S. at 488-89. , 534 U.S. at 197. at 198. at 449. . http://eeoc.gov/types/ada.html. under the Rehabilitation covered are employers Public at 453-54. at 454; Americans with Disabilities Act of 1990, 42 U.S.C. § Act Disabilities at 454; Americans with 12101 Sutton Id. Toyota Id. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams Inc. Kentucky, Manufacturing, Motor Toyota Id. Id Id. Id. Id. Todd v. Academy Corp. v. Academy Todd Id. Id. Id. Id. Id. ). http://www.reuters.com/article/idINN1131121320080911 OTES N 1 Loyola Public Interest Law Reporter Law Interest Public Loyola litigation.door to unending the to open did not want they Congress’ Given to see how it will be interesting statute broadly, the instructions to interpret claims.” discrimination treat courts now to provide mandate Congress’ courtswill be up to the Thus, it to execute workers. for disabled coverage broad \\server05\productn\L\LPR\14-2\LPR214.txt unknown 6 Seq: 27-MAY-09 11:27 2 3 4 5 Reuters, United Air Lines, Inc. Air Lines, United 13 14 15 16 Act, 29 U.S.C. § 29 Act, 794 11 of 1990, 42 U.S.C. § Act Americans with Disabilities 12 12101 (1990). at 6 L. ADAAA], Pub. of 2008 [hereinafter Amendments Act Act Americans with Disabilities U.S.C. § sections of 42 (codified as amended in scattered 3553 Stat. 110-325, 122 No. 12101 seq. 7 8 42 U.S.C. §9 12101 42 U.S.C. §10 12101(b)(1) (1990). Opportunity Commission, Employment The U.S. Equal Discrimination, Disability ble at 17 ADAAA, 18 19 in Chicago, Ill. for Equality, Equip Director, Legal Advocacy Interview with Barry Taylor, 15, 2009). (Feb. 20 21 Reuters, 22 on the Action U.S. Chamber Lauds Senate U.S. Chamber of Commerce, Release, Press 11, 2007), (ADA) (Sept. Act Americans with Disabilities com/press/releases/2008/september/080911_ada.htm. 23 24 Disability Defining Act: The ADA Restoration Sherk, & James Andrew M. Grossman See 2, 2008), (July Down 25 26 208 26794 lpr_14-2 Sheet No. 47 Side B 06/29/2009 13:47:06 B 06/29/2009 47 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 48 Side A 06/29/2009 13:47:06 209 No. 2 • Spring 2 • No. 2009 , N.Y. TIMES (June 26, 2008) (June , N.Y. TIMES note 27. note 19. supra supra supra supra House Votes to Expand Civil Rights for Disabled Rights for Civil to Expand Votes House http://www.nytimes.com/2008/06/26/washington/26rights.html?fta=Y. 27 Chicago University Loyola Professor, Law Employment InterviewZimmer, with Michael 15, 2009). (Feb. Ill. Chicago, of Law, in School 28 Interview with Barry Taylor, 29 Robert Pear, available at available 30 Interview Zimmer, with Michael \\server05\productn\L\LPR\14-2\LPR214.txt unknown 7 Seq: 27-MAY-09 11:27 26794 lpr_14-2 Sheet No. 48 Side A 06/29/2009 13:47:06 A 06/29/2009 48 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 48 Side B 06/29/2009 13:47:06 These 1 OBERTSON Jim Moor- Jim 2 R NGIE A by UNEMPLOYMENT GROWING NUMBER OF GROWING INTO LAW:INTO ON IMPACT FEDERAL EXTENSION OF EXTENSION FEDERAL UNEMPLOYED AMERICANS UNEMPLOYED COMPENSATION IS SIGNED IS COMPENSATION very Monday since April 2008, a small group of seasoned Chicago-area 2008, a small group since April very Monday issues. development met to discuss career business people have E 210 Loyola Public Interest Law Reporter Law Interest Public Loyola \\server05\productn\L\LPR\14-2\LPR215.txt unknown 1 Seq: 27-MAY-09 11:30 events, which may appear to outsiders as typical corporate board meetings, are which may appear to outsiders as typical corporate board events, of Group Network strategizing sessions of the Executive actually job-search white-collar workers. Chicago section for unemployed Greater 26794 lpr_14-2 Sheet No. 48 Side B 06/29/2009 13:47:06 B 06/29/2009 48 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 49 Side A 06/29/2009 13:47:06 211 The State 7 11 Since unem- Since 9 To address this gap, address To No. 2 • Spring 2 • No. 2009 14 With revenues vanishing, the vanishing, revenues With EACTIONS 13 In Illinois, the total number of the Illinois, In R 4 15 TATE 3 Funding for unemployment is raised for unemployment Funding 10 & S Twenty states with industries that have been hit states with industries that have Twenty 5 12 The Act was introduced in the House on September in the House was introduced The Act ESPONSES 6 R EGISLATIVE L 8 EDERAL The new legislation allows an extension from 27 weeks to 33 weeks of unem- to 33 weeks 27 weeks from The new an extension allows legislation laws. benefits to those who qualify under their state ployment F signed the Unem- W. Bush George 20, 2008, former President November On the which increases of 2008 (Act), Act Compensation Extension ployment who run to workers out of their state unemploy- of benefits available weeks ment insurance benefits. man, who arranged for the group to meet at his church, lost his job 16 months his job lost at his church, to meet the group for who arranged man, and was 33 years for he worked where Motorola, a senior engineer at earlier as annually. than $100,000 making more a no longer are the ones in this group like workers unemployed Unfortunately, rarity. indi- of Labor Statistics the U.S. Bureau from figures recent The most or jobless for 27 weeks those of long-term unemployed, cate that the number 2009, increasing 2008 and February February nearly doubled between more, million. 1.3 million to a total of 2.9 from \\server05\productn\L\LPR\14-2\LPR215.txt unknown 2 Seq: 27-MAY-09 11:30 particularly hard by the recession are having trouble funding unemployment having trouble are the recession particularly by hard to the federal government from borrowing already insurance, and six states are Coordinator Midwest reports Rick McHugh, pay benefits to laid-off workers, for moderniz- advocating a group Law Project, Employment for the National compensation system. ing the unemployment through state and federal unemployment insurance taxes on employers. insurance taxes state and federal unemployment through unemployed in December 2008 was 505,300, exceeding 500,000 for the first 505,300, exceeding 2008 was in December unemployed 1992. time since February 3, 2008. October a 368 to 28 majority on 8, 2008 and swiftly passed by tax rates vary from state to state, as does the amount of each worker’s income does the amount of each worker’s tax rates vary state to state, as from that is subject to the tax. half of all states have already started cutting already cancelling infrastructure projects, half of all states have benefits or laying off workers. health-care states collectively face a $70 billion budget gap this year. states collectively urgency behind the Act continued as it survived an 89 to 6 vote in the Senate continued as it survived an 89 to 6 vote urgency behind the Act on the same Bush former President 20, 2008 and was signed by on November day. state agencies, qualification through primarily addressed benefits are ployment vary state to state. standards from 26794 lpr_14-2 Sheet No. 49 Side A 06/29/2009 13:47:06 A 06/29/2009 49 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 49 Side B 06/29/2009 13:47:06 White- 21 With few With jobs 27 An increase in the An increase 29 Meanwhile, the financial sector Meanwhile, 26 Lawrence Mishel, president of the president Mishel, Lawrence EASONS 24 20 R Emergency funding to state unemploy- funding to state Emergency 16 CONOMIC E Figures like this indicate that this is the worst market like this indicate that this Figures 23 These governors contend that increased government increased contend that These governors IME FOR NEMPLOYMENT 18 -T U Thomas Lam, Economist at the Singapore-based United Over- United at the Singapore-based Thomas Lam, Economist ART 22 P 19 28 OLLAR For example, the U.S. has been producing too many MBAs for de- too many producing example, the U.S. has been For -C 25 However, some Republican governors, such as Governor Bobby Jindal Bobby such as Governor governors, some Republican However, 17 HITE MPLOYED E Chicago section for unemployed of Greater Group Network The Executive and was laid off has two children co-leader Bob Roeder white-collar workers a sales management position worth earlier from almost six figures, two years snow. taken up part-time plowing but has now work 212 Unfortunately for many white-collar workers, many jobs will not be re- many white-collar workers, for Unfortunately placed. W of in December percent to 4.6 rose unemployment white-collar Meanwhile, before. the year 3 percent 2008, up from Loyola Public Interest Law Reporter Law Interest Public Loyola be contrib- money federal additional require will Act of the Implementation funds. unemployment uted to state \\server05\productn\L\LPR\14-2\LPR215.txt unknown 3 Seq: 27-MAY-09 11:30 of Louisiana and Governor Charlie Crist of Florida, have stated that they may have of Florida, Charlie Crist and Governor of Louisiana Demo- current with the ideological disagreement the funds due to not accept cratic leadership. seas Bank, explains that current white-collar workers who lose their job have white-collar workers explains that current seas Bank, chance of landing a new job within the same month that they just a 22 percent job. lost their previous employees. cades and not enough health-care ment funds was approved as a part of the recently-passed economic stimulus economic as a partrecently-passed of the was approved ment funds plan. for job seekers than any since the 1990s. Economic Policy Institute, says white-collar unemployment has risen faster in says white-collar unemployment Institute, Policy Economic dating to at least the 1970s. than in any other recession the past year spending will spur the increase of business taxes and, thus, increase lay-offs of lay-offs thus, increase and, taxes of business the increase spending will spur employees. is shrinking and there is a large need for health-care workers. is a large need for health-care is shrinking and there Co-Direc- Baker, says Dean the pay scale,” down moving “people are available, a think tank in Washing- Research, and Policy tor of the Center for Economic ton, D.C. collar workers also tend to form a disproportionate share of the long-term share also tend to form a disproportionate collar workers unemployed. 26794 lpr_14-2 Sheet No. 49 Side B 06/29/2009 13:47:06 B 06/29/2009 49 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 50 Side A 06/29/2009 13:47:06 , 213 , Ill. Dep’t of Employ- Dep’t , Ill. In February 2009, February In 31 No. 2 • Spring 2 • No. 2009 ” , U.S. Bureau of Labor Statistics, , U.S. Bureau 35 This category people includes note 6, § II(1),(2). 32 supra Question & Answer The Unemployment Insurance The Unemployment & Answer Question “Extending of unemployment benefits during a reces- of unemployment “Extending 34 Nearly two-thirds of part-time workers are ineligible for are of part-time workers two-thirds Nearly 30 The Employment Situation February 2009 February Situation The Employment Economic Recession Triggers Further Job Losses in Illinois Job Further Triggers Recession Economic For Growing Number of White-Collar Jobless, Support With a Touch of the Spur a Touch With Support of White-Collar Jobless, Number Growing For note 1. 33 , Jan. 24, 2009, at A16. 24, 2009, , Jan. supra IMES ; (Bill status summary including voting records is available online the Library online is available status summary of Congress ; (Bill records including voting Id. Id. Id. Id. OTES ment Sec. (Jan. 23, 2009) http://www.ides.state.il.us/economy/cps.pdf. (Jan. ment Sec. 6 88 122 Stat. 110-449, L. No. of 2008, Pub. Act Extension Compensation Unemployment (2008). 7 (Mar. 6, 2009) http://stats.bls.gov/news.release/pdf/empsit.pdf. 6, (Mar. 5 Release, Press 2 3 4 Release, Press Modernization Act:Modernization The While Stimulating Net Safety The Unemployment In The Gaps Filling 10 Lou, 11 Law Project, Unemployment National website, www.thomas.gov). website, 8 9 Act, Compensation Extension Unemployment N 1Lou, Michael N.Y. T The 33-week extension for the workers who qualified for the Unemployment who qualified extension for the workers The 33-week benefits of 2009, when or April ends in March Act Compensation Extension passes additional legislation to continue unless Congress will discontinue lengthen the extension. may be neces- changes and job retraining While career benefits extensions of unemployment sary after a recession, for some workers solution during difficult times, ex- continue to be the most logical economic Economics School of Business of Chicago Graduate University plains Loyola Hayford. Chair Marc number of Americans working part-time makes unemployment benefits less benefits part-timeunemployment makes working of Americans number in job recession the last major than during workforce to the current available 1990’s. the early \\server05\productn\L\LPR\14-2\LPR215.txt unknown 4 Seq: 27-MAY-09 11:30 unemployment benefits under state unemployment laws. state unemployment benefits under unemployment sion is not only the humane thing to do,” he states, “but it helps dampen the sion is not only the humane thing to in spending and is good for the economy. drop like Mr. Roeder, who would like to work full-time, but are working part-time working are full-time, but work who would like to like Mr. Roeder, unable to find full- were had been cut back or because they because their hours time jobs. the number of people who worked part-time for economic reasons raised na- part-time for economic reasons worked of people who the number since February and 3.7 million month the previous 787,000 since tionally by million. a national total of 8.6 2008, reaching 26794 lpr_14-2 Sheet No. 50 Side A 06/29/2009 13:47:06 A 06/29/2009 50 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 50 Side B 06/29/2009 13:47:06 CI- S HRISTIAN C , Dec. 22, 2009, http:// Dec. COM note 4. . NN C note 11. note 11. supra supra Extra Aid Buys Laid-off Workers a Little Time a Little Laid-off Workers Aid Buys Extra How Bad (Really) is 8% Unemployment? (Really) Bad How The Employment Situation February 2009, supra February Situation The Employment Yvonne Zipp, Zipp, Yvonne , Mar. 5, 2009, http://features.csmonitor.com/economyrebuild/2009/03/05/ , Mar. note 1. note 1. ENCE supra supra See also See http://www.nelp.org/page/-/UI/uima.fact.sheet.jan.09.pdf?nocdn=1 (last visited Apr. (last http://www.nelp.org/page/-/UI/uima.fact.sheet.jan.09.pdf?nocdn=1 ONITOR .; M Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id 214 32 33 34 Chicago Graduate University Chair, Loyola Economics Interview Hayford, with Marc 30, 2009). (Mar. in Chi., Ill. School of Business, 35 m.cnn.com/cnn/archive/archive/detail/217020;jsessionid=3BAACD61B0497BFEBB249F2960 0E9903.live7i#___1__. 23 24 25 26 27 Law Project, Unemployment National 28 29 Lou, 30 31 Release, Press extra-aid-buys-laid-off-workers-a-little-time/. 19 20 Lou, 21 22 Gandel, Stephen Loyola Public Interest Law Reporter Law Interest Public Loyola Economy, 2, 2009). 12 13 14 15 16 Law Project, Unemployment National 17 111-5 (2009). L. No. Pub. of 2009, Act and Reinvestment The American Recovery 18 \\server05\productn\L\LPR\14-2\LPR215.txt unknown 5 Seq: 27-MAY-09 11:30 26794 lpr_14-2 Sheet No. 50 Side B 06/29/2009 13:47:06 B 06/29/2009 50 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 51 Side A 06/29/2009 13:47:06 215 AZAY With 1 K HANTAL C No. 2 • Spring 2 • No. 2009 by which authorizes various parties various to which authorizes 2 HOUSING MARKET AND THE AFFORDABLE LEGISLATIVE IMPACT ON IMPACT LEGISLATIVE CHICAGO 2016 OLYMPICS: 2016 CHICAGO he city of Chicago passed legislation necessaryhe city of Chicago passed legislation to establish the legal Games. framework for the successful staging of the 2016 Olympic CONSTRUCTION, THE PUBLIC CONSTRUCTION, T \\server05\productn\L\LPR\14-2\LPR216.txt unknown 1 Seq: 16-JUN-09 13:48 cooperate in marketing their products and/or services their products cooperate in marketing for a mutual benefit. the passage of the comprehensive Olympic Approvals Ordinances, the Chicago Ordinances, Approvals Olympic the passage of the comprehensive City Con- to sign the Host M. Daley Richard Mayor City Council authorized necessary the tract and all other agreements including Games, for hosting the Agreement, Programme Marketing Joint 26794 lpr_14-2 Sheet No. 51 Side A 06/29/2009 13:47:06 A 06/29/2009 51 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 51 Side B 06/29/2009 13:47:06 8 5 4 A 6 Part 3 The Proposal was The Proposal 10 The Proposal also in- The Proposal 9 This new funding currently 11 7 ROPOSAL 2016 P HICAGO 216 C of $5 bil- budget an Olympic projects (Proposal) The Chicago 2016 Proposal $366 Village, lion, including $1.1 billion for the construction of the Olympic and $80 million for an aquatics center. Stadium, million for the Olympic would come exclusively stated the funding M. Daley Richard Mayor Initially, a $525 million operating with Chicago 2016 projecting investors, private from Presi- Committee Vice Olympic States surplus, but that changed when United could like the Olympics dent Bob Ctvrtlikindicated that a large scale project without the guarantee of public money. not proceed As such, Mayor Richard M. Daley and Chicago 2016 Chairman Patrick Ryan Chairman Patrick and Chicago 2016 M. Daley Richard As such, Mayor the financial and logistical components bid detailing a comprehensive created City 12, 2009, the Chicago January On Olympics. of a potential Chicago Financing Increment establishing a new Tax an ordinance Council approved in Bronzeville, Village Olympic proposed to help pay for the (TIF) District any shortfall. million pledge to cover the city’s $500 while also reaffirming Loyola Public Interest Law Reporter Law Interest Public Loyola Agree- Commitments Olympic of Chicago the City include ordinances The International the by sets forthment, which required city’s guarantees as the Games and Paralympic Olympic and the 2016 Committee (IOC), Olympic hosting commit- which establishes Agreement, Cooperation Governmental partners. governmental Chicago and its many the city of ments between big business. are Games the modern day Olympic Like most sporting events, \\server05\productn\L\LPR\14-2\LPR216.txt unknown 2 Seq: 16-JUN-09 13:48 cludes a financial safety net of $450 million, $375 million in IOC cancellation cludes a financial safety net of $450 in insurance coverage. insurance and another $500 million awaits Governor Patrick Quinn’s signature. Quinn’s Patrick awaits Governor guarantee is virtuallyThe likelihood of tapping into the $500 million taxpayer experienced an operating over- have Games that no Olympic impossible, given of the legislation passed by the City Council includes a $500 million guarantee includes a $500 million the City Council passed by of the legislation operations. Games money against any shortfall in the Olympic of taxpayer submitted before the Illinois legislators approved an increased state financial an increased legislators approved the Illinois submitted before $150 million to $250 million. guarantee from TIF allows the City of Chicago and other Illinois cities and towns to generate cities and towns the City of Chicago and other Illinois TIF allows geographic areas in designated property tax dollars for economic development the new the designated from property tax dollars generated and then re-invest period. TIF district for a 20-30 year 26794 lpr_14-2 Sheet No. 51 Side B 06/29/2009 13:47:06 B 06/29/2009 51 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 52 Side A 06/29/2009 13:47:06 19 217 Chi- 15 If this If that will 17 16 20 Here are a feware Here 13 No. 2 • Spring 2 • No. 2009 (project now stalled) now (project LYMPICS O As the Community Media Workshop’s Media As the Community 12 article, 64 percent of respondents support article, of respondents 64 percent HICAGO C financing) half public financing) Chicago Tribune 21 ONCERNS FOR C 18 14 Project Cost Original Cost Final UPPORT AND O’Hare ExpansionO’Hare 37 superstationBlock billion (first phase) $6.6 $213 million $8 billion million $320 reached Has Soldier FieldSoldier ParkMillennium $150 million (no public $587 million than $475 million (more million $655 Although legislative and public support high, some Although legislative for Chicago’s bid remains their opposition to public tax elements of the voicing community members are a recent plan. In dollars to pay opposed the use of taxpayer Chicago’s 2016 bid, but 75 percent for any shortfalls. S former Chicagoan and a native Emmanuel, Rahm Chief of Staff White House to our nation’s third said “bringing the 2016 Olympics Congressman, Illinois States. a gold medal for the United coast will be a boom for Chicago and district would house the Side (D-Chicago), whose South Burns Will Rep. guar- $500 million taxpayer said the venues, event and several Village Olympic the time the in place by antee is viewed as an important component to have in early April. committee reviews the Chicago proposal Olympics If the Chicago 2016 bid is successful, the city plans to build one of the major the city plans to build one of the the Chicago 2016 bid is successful, If – spaces. of Chicago’s largest green one Park stadiums in Washington run since 1972. However, it is the construction is the it costs –runoperating not the However, 1972. since budget concern. – of greater that are \\server05\productn\L\LPR\14-2\LPR216.txt unknown 3 Seq: 16-JUN-09 13:48 cago’s bid calls for the erection of a temporarycago’s bid calls for the erection 80,000-seat stadium cricket, that hosts softball, baseball, soccer, park stadium is built, the 350-acre to local athletes, picnickers, and residents and tennis leagues will be off-limits for four years. Curtis Black reminds us, Mayor Richard M. Daley’s track record of predicting, track record M. Daley’s Richard Mayor us, reminds Black Curtis than perfect.budgets is less to, project and sticking examples: over. are to a 5,000-seat amphitheater after the games be reduced 26794 lpr_14-2 Sheet No. 52 Side A 06/29/2009 13:47:06 A 06/29/2009 52 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 52 Side B 06/29/2009 13:47:06 26 If Chicago’s If 23 27 , Progress Illinois, Jan. 15, 2009, Jan. Illinois, , Progress 29 However, some groups op- some groups However, 25 , Illinois Business Law Journal, Oct. 12, 2007, Oct. Law Journal, Business , Illinois while environmentalists fear that the bulldoz- fear while environmentalists 22 “We’ve been really committed at Rehab Network to Network committed at Rehab been really “We’ve 28 Another Front In The Battle To Rein In TIF In Rein To The Battle In Front Another 24 Id. Id. Id. Begin Battles Chicago 2016: Let The Civic OTES As of now, the Chicago 2016 Olympic bid has not affected affordable housing bid has not affected affordable the Chicago 2016 Olympic As of now, money. or used the $500 million guarantee of taxpayer markets N 1 (last vis- Chicago2016, http://documents.chicago2016.org/pdf/bidbook/ExecSum-ENG.pdf 17, 2009). ited Apr. 2 3 4 5 “There’s ways that you can structure these types of developments that could that developments can structure these types of ways that you “There’s new]. Jackson, says Kevin . .and [create . . housing,” help . . . [to preserve]. Network. Chicago Rehab of the nonprofit Director Executive the how has no position on currently Network Although the Chicago Rehab of the housing, it is making people aware could affect affordable Olympics potential consequences. Loyola Public Interest Law Reporter Law Interest Public Loyola neigh- that fears expressing are community Side South of the residents Some Stadium, Olympic to build the funding by buoyed redevelopment, borhood them out of the area, will push the forms a lasting legacy in “the 2016 games will leave believes Daley Mayor facilities.” housing (and) athletic of affordable \\server05\productn\L\LPR\14-2\LPR216.txt unknown 4 Seq: 16-JUN-09 13:48 ing and paving will cause permanent damage to the ecosystem. damage will cause permanent ing and paving create as much transparency and understanding about what some past exper- and understanding about what some past as much transparency create says. been,” Jackson the globe have iences around http://iblsjournal.typepad.com/illinois_business_law_soc/2007/10/when-the-united.html (last http://iblsjournal.typepad.com/illinois_business_law_soc/2007/10/when-the-united.html 17, 2009). visited Apr. 6 Angela Caputo, 17, 2009). Apr. (last visited http://www.progressillinois.com/taxonomy/term/111 7 Apr. http://www.ncbg.org/tifs/tifs.htm (last visited Group, Capital Budget Neighborhood 17, 2009). 218 bid is successful, the political, legislative, and legal battles over the use of public legal battles over and legislative, the political, bid is successful, construction as Chicago begins funds will escalate lands and the Olympic for Games. that a concentration claimed just the opposite, bid have posed to the Olympic and sports facilities on the Near designated TIF District of new development, residents. prices and displace low-income up home drive would Side South 26794 lpr_14-2 Sheet No. 52 Side B 06/29/2009 13:47:06 B 06/29/2009 52 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 53 Side A 06/29/2009 13:47:06 , . 219 RIB . T HI C UFFINGTON , H , Progress Illinois, Feb. Illinois, , Progress , May 11, 2007, http:// , May , Jan. 24, 2007, http:// , Jan. ., Apr. 15, 2007, 15, ., Apr. http:// No. 2 • Spring 2 • No. 2009 RIB IMES EADER -T . T . R HI UN HI C C , . S , HI C , , July 6, 2007, http://www.chicagoreader.com/ , July ., Feb. 8, 2009, http://www.chicagotribune.com/ ., Feb. , Feb. 6, 2009 http://www.chitowndailynews.org/ , Feb. Million Guarantee for Chicago Olympics, Million Guarantee RIB EADER note 5. EWS Tribune poll: Support for Chicago Olympics tempered by tempered for Chicago Olympics poll: Support Tribune . T . R N HI HI supra supra C Feb. 16, 2009, http://communitymediaworkshop.org/news Feb. C wsblogs.chicagotribune.com/clout_st/2009/03/illinois-house- AILY , D OWN T With Or Without The Games Without Or With Oprah Headlines Chicago Olympics Gala, Schmoozes IOC Gala, Olympics Chicago Headlines Oprah HI note 15. How Can We Trust Daley To Stick To Olympic Budget? Olympic To Stick To Daley Trust We Can How Cost Overruns, They Say Nay They Say Will The Games Displace Their Games? The Games Will Chicago Scores U.S. 2016 Olympic Bid 2016 Olympic U.S. Scores Chicago C Illinois House Approves House Illinois $250 supra , Apr. 7, 2009, http://www.huffingtonpost.com/2009/04/07/oprah-headlines-chicago-o_ 7, 2009, , Apr. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. OST http://durbin.senate.gov/showRelease.cfm?releaseId=272632 (last visited Apr. 17, 2009). (last visited Apr. http://durbin.senate.gov/showRelease.cfm?releaseId=272632 March 19, 2009, http://ne March approves-250-million-guarantee-for-chicago-olympics.html. 21 Laurie Cohen and Kathy Bergen, for Games, opposition to using taxes www.chicagoreader.com/features/stories/theworks/070511/. 16 17 Spielman, Fran www.suntimes.com/news/metro/226452,CST-NWS-oly24.article. 18 Joravsky, 19 Bid, Olympic Congratulate Chicago On To Resolution Introduce Emmanuel Durbin, 20 Ray Long, www.chicagotribune.com/sports/cs-070414olychicago-win,1,7736769.story?page=1 9 10 Babwin, Don 8 Hersh, Philip features/stories/theworks. 24 Law Journal, Business Illinois 25 Sachs, Peter news/local/chi-olympics-poll08feb08,0,2254867.story. 22 23 Joravsky, Ben Chicago_news/Olympic_bid_ready_to_go_but_hidden_from_public_view_for_now,22237. 26 27 28 29 n_183969.html. 11 12 Doster, Adam 18, 2009, http://www.progressillinois.com/taxonomy/term/111. 13 Black, Curtis tips/?p=453. 14 15 Joravsky, Ben P \\server05\productn\L\LPR\14-2\LPR216.txt unknown 5 Seq: 16-JUN-09 13:48 26794 lpr_14-2 Sheet No. 53 Side A 06/29/2009 13:47:06 A 06/29/2009 53 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 53 Side B 06/29/2009 13:47:06 26794 lpr_14-2 Sheet No. 53 Side B 06/29/2009 13:47:06 B 06/29/2009 53 Side Sheet No. lpr_14-2 26794 26794 lpr_14-2 Sheet No. 54 Side A 06/29/2009 13:47:06 invites the submission of articles, submission of invites the . unable to accept are currently We PILR is published three times annually.is published three Our publishes feature and news articles feature publishes written Loyola University Chicago University Loyola Public Interest Law Reporter Interest Public publication schedule is Winter, Spring and Summer. 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