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You are young, my son, and as the years Staff go by, time will change and even reverse Editor-in-Chief many of your present opinions. Nick Rodriguez-Cayro Refrain therefore awhile from setting yourself Executive Editor up as a judge of the highest matters. Maureen Jordan

Plato Managing Editor Matthew Clark • Senior Editor In thisISsue Gianni Floro Production Editor Maureen McQuillan Editorial: A Word from the Weary Assistant Executive Editors by Nick Rodriguez-Cayro ...... pg. 2 Annary Aytch Julie Gentry Repressed Memory and False Memory Syndrome: Nancy Koerbel Current Scien tific and Legal Perspectives Christi Neroni by Douglas Harhai ...... pg. 3 Assistant Senior Editors Leslie Britton The Internet and the First Amendment: Douglas Harhai Bridgett Langer Regulations and Standards by Eliana Carrelli ...... pg. 10 Assistant Managing Editors Leah Lewandowski Patrick Dougherty The ABCs of Avoiding Malpractice by Jeffrey L. Pollock, Esq ...... pg. 17 Assistant Production Editor Michelle Smith

Ethics Corner Contributing Writers by Prof. Robert D. Taylor ...... pg. 18 Maria D. Comas Amy Gregg Y2K: On the Eve of D-Day Douglas Harhai PeterC. lbe by Julian Neiser ...... pg. 20 Julian Neiser Jeffrey L. Pollock, Esq. The Price of Liberty Nick Rodriguez-Cayro Prof. Robert D. Taylor by Maria D. Co1nas ...... pg. 25 Eliana Carrelli

Hostile Work Environment: Undefinable Sexual Harassment? Faculty Advisors Dean John Rago by Amy Gregg ...... pg. 30 Prof. Kenneth Gormley

A Constitutional Right to Physician-Assisted Suicide Cover design by Mami Cayro by Peter C. !be ...... pg. 35 JURIS is a semi-annual student publication of the Duquesne FYI: Events ...... pg. 40 University School of Law. The views and opinions expressed herein are not necessarily those of JURIS or of the Duquesne University School of Law. Copyright 2000 Duquesne University. To my surprise, I found that many of the complaints I A Word heard came from students attending so-called "elite schools." This astonished me considering that U.S. News from the Weary and World Report's annual law school ratings often make it seem as though some schools have no problems, creating After three and half years, graduation is finally in sight! a false sense of security or fear depending on your school's During the past few years, I have had the opportunity to rating. Although graduation from one of these schools serve and interact with the law school faculty and my may give a student an employment edge, it does not make fellow students in numerous capacities. I have also had them a better attorney. the opportunity to listen to the concerns of the student Duquesne University School of Law has a long history body and have often used my position as Editor-in-Chief of quality education and a reputation for producing of Juris to discuss these concerns with the administration. outstanding attorneys. Attending a particular school will However, while many of these concerns have been valid, not make you a great attorney; it is the effort you put forth others have been greatly exaggerated and propagated by that will bring you success in the future. Law school, like a minority of students who would rather incite than solve. a marathon, will test your endurance, patience, and skill, For four years, I have heard students complain about the and from these tests, character, knowledge, integrity and same things: grading policies, attendance policies, etc ... tenacity will surface. "Despite the success cult, men are and threaten to transfer, or to never contribute as alumni. most deeply moved not by the reaching of the goal but To these students I say, "GET OVER IT!" by the grandness of effort involved in getting there - or Recently, I participated in a seminar in which failing to get there." 1 approximately 90% of U.S. and Canadian law schools were To my fellow classmates and those just beginning the represented. During this seminar, I listened to many marathon, good luck. students talk about their law school. After listening to the students, I realized how lucky I am to attend Duquesne Nick Rodriguez-Cayro University School of Law. Some of the complaints I heard Editor-in-Chief, Juris Magazine concerned: large classes consisting of more than 100 students, inadequate libraries, too few computers, 1 Lerner, Max, "MAN'S BELIEF IN HIMSELF," THE UNFJNJSHED required internships, and of course grading policies. COUNTRY (1959), 5.

Rtpressed memory and f a/,se memory syndrome Current Scientific and Legal Perspectives

by Douglas Harhai

I. INTRODUCTION comfort them when ill and to help by one of his children for damages them build a strong self-image. ln resulting from John's molestation of P icture the following scenario: short, John tried to be the best parent the child some twenty years earlier. John had been an excellent parent to that he could be, and he would have John is even more shocked that the his chlldren as well as a faithful spouse done anything for his children. basis to these allegations was for nearly twenty-five years. He made Now, imagine the horror, betrayal "repressed memories" that were an effort to attend their after-school and pain that John would experience uncovered by the child's psychologist baseball games, dance recitals, to if he was told that he was being sued nearly fifteen years after the alleged

Page2 RBDIBSSBd Memow

sexual assault occurred. Would John's life ever be the same? It takes very little imagination to recognize the danming horror that must ensue to a parent falsely accused of child molestation.1 The above scenario is fictional only as to the victim's name. This similar scenario has happened to hundreds of families in this country. This is not to say that some of the allegations were not true, for some of the defendants admit to the alleged episodes. But there are other cases where the victim recants the allegations and drops the lawsuit, claiming that they "really aren't sure anymore" if the molestation ever occurred.

It takes very little imagi:nation to recognize the damning horror that must ensue to a parent falsely accused of child molestation.

Although any type of memory can classify as a repressed memory, it is those that involve sexual abuse that comprise the majority of litigation in this country. Only in the last decade has it been realized to what degree childhood sexual abuse has permeated our society. Although it is argued that instances of abuse may be underreported, reliable statistics reveal that approximately ten percent of women and five percent of men report having been sexually abused as children.2 Lawsuits based on repressed memories present several problems.

Continued, next page

JURIS• Volume 33 • No. 1 • Page 3 Reoressed Memarv

dysfunction.6 One theory for the documented. Initially, the symptoms Repressed recovery of the memory years later is of post-traumatic stress disorder that this "survival mechanism" is no ("PTSD") suffered by soldiers in World memory longer needed since the adult is no War I were believed to have been a longer subjected to the trauma and the physical problem caused by the effects syndrome memories may resurface either of exploding shells, known as "shell gradually or in sudden flashes .7 shock." It then became apparent that the difficulties were psychological. From previous page III. DEFINITIONS However, as in many previous and subsequent wars, soldiers suffering This article will explore the Repressed Memory (called from trauma were considered to be of phenomenon of repressed memory dissociative amnesia in the psychiatry poor quality-malingerers who were syndrome and false memory profession) refers to the act of making too cowardly and lazy to fight. As a syndrome and will discuss whether memories inaccessible to the conscious result, they sometimes received electric there is any scientific basis to these mind. False Memory Syndrome is" ... shock treatments or were forced to phenomena. a phenomenon whereby some people return to the front lines despite their have 'come to believe' that they are symptoms.11 After the Vietnam War, II. HISTORY suffering from emerging repressed PTSD became an accepted diagnosis of memories of childhood incest and the soldiers' symptoms, as more than The development of the Repressed sexual abuse." Furthermore, three out of four soldiers returning Memory Theory is generally credited " ...(T)hese traumatic events are denied from heavy combat zones experienced to Sigmund Freud, who viewed by the alleged perpetrators, and the some type of PTSD, including memory repression as an unconscious memories cannot be supported by loss and flashbacks. Documented mechanism by which the mind independent verifications. Most cases of recovered memories of war 3 disposed of unpleasant events • importantly, is the word 'false' which veterans and concentration camp According to his theory, the mind declares that these repressed, victims are often cited by proponents "hides" the event from the process of remembered abuses in fact never of the repressed memory theory as normal memory retrieval, so that occurred."8 So while these terms proof of its existence since the victims neither the traumatic event nor the maybe used independently of each apparently had no reason to lie about process of forgetting is remembered. other and have distinct meanings, they their memory loss. Freud also believed that these are often used in the same sentence There are two sides to every repressed memories continued to exert since victims of false memory argument, with repressed and false powerful influences over the behavior syndrome often believe that they are memories being no exception. of the individual.4 A key element of suffering from repressed memories. Following is a summary of the best the repressed memory theory is that arguments for each side. the surrounding circumstances and the IV. SCIENTIFIC SUPPORT trauma itself are not simply forgotten V. ARGUMENT IN FAVOR OF but instead are completely inaccessible The fact that humans experience REPRESSED MEMORIES to the conscious mind.5 This is believed memory loss is not uncommon. Not by proponents of the theory to be a only does it tend to happen as we age, As mentioned previously, coping mechanism of the human mind but it also happens when we are very proponents of repressed memories like whereby we are sheltered from young.9 The term for this early age to cite the studies done on war veterans trauma. Once the traumatic memories memory loss is infantile anmesia and as being impartial and unbiased. are stored in the subconscious mind, is well established and acknowledged Sigmund Freud himself is given credit the victim may lead a normal life in the medical profession. The first two for the development of the theory. without memories of the traumatic or three years of life are erased from Now we will examine other scientific event. Years later, however, the our minds by what is believed to be evidence in support of the theory. repression coping mechanism may maturational and neurological changes One must keep in mind that most backfire on the victim. Psychiatrists that occur during these age periods.10 mental health theories, specifically and clinical psychologists believe Therefore, memories of any age under those that purport to explain how repression of traumatic memories may three years old are prone to be either memory is stored and recalled, are lead to severe depression, substance false memories or confabulations. difficult to test empirically.12 To create abuse, low self-esteem, suicidal There are other instances where an identical testing situation, a subject tendencies and sexual and social memory loss or suppression has been would have to be exposed to severe

Page4 RBlllBSSBd Memon sexual trawna, the same kind of severe recall. Furthermore, there could be no trauma that the proponents of organic explanation and no repressed memory claim causes Psychiatrists and explanation in choosing not to talk memory repressions. Obviously, this clinical psychologists about the memories based on privacy practice would be unethical. As a or shame. Third, there had to be result, researchers in this area have believe repression of evidence that the recovered memories studied the victims of childhood traumatic memories were reasonably accurate. The authors sexual trawna in an attempt to observe found that there were twenty-five the victims' memory over a period of may lead to severe studies that fit within the criteria, and years. In one frequently cited study, all reached the same result confirming researcher Linda Meyer Williams depression, substance the reality of dissociative amnesia in a examined the medical records of 129 abuse, low self-esteem, subpopulation of sexually trawnatized young women who were admitted for children. Furthermore, these studies medical treatment as a result of being suicidal tendencies and have employed a variety of sexually abused. 13 When interviewed increasingly more sophisticated years later, over one-third of the sexual and social designs to overcome the inevitable women failed to disclose their dysfunction. claims that they are methodologically documented molestation. Advocates flawed. Even more significantly, no of repressed memory claim that study has surfaced that disconfirms the repression occurred in the young Judith Lewis Herman, fifty-three dissociative amnesia hypothesis by sexual abuse victims, while critics are failing to get reports of inability to women with self-reported histories of quick to point out that perhaps the voluntarily recall repeated childhood childhood sexual abuse were victims consciously chose not to 17 interviewed. Sixty-four percent of the abuse. disclose the abuse. Another weak There are also cases where the subjects reported experiencing point in the study is the fact that all repressed memories are corroborated complete or partial memory loss of the victims were under five years of age In abuse for limited times in the past. by witnesses. Doe v. Roe, 955 P.2d when abused, and the possibility exists 951, 954 (1998), the plaintiff lived a However, of those experiencing the that infantile amnesia buried or erased most extreme and violent forms of normal life except for eating disorders, the memories. This may be and she considered her parents to be abuse, seventy-five percent reported corroborated by the fact that the her closest friends. She had few having no recall of the event over younger the victims were at the time extended periods of time. The memories of her childhood except for of the abuse, the less likely they were researcher also concluded thatseventy­ the times she spent with her to remember (or claim to remember) five percent of those claiming grandparents. Shortly after her the abuse. It may never be known if repression were able to demonstrate grandparents died, the plaintiff began the victims truly repressed their corroborative evidence in support of having flashbacks of being sexually memories or merely failed to admit to abused by her father. As the flashbacks their allegations of sexual abuse. suffering the trauma since the worsened, the plaintiff fell into a state However, researchers made no attempt researchers failed to conduct follow up of depression and underwent to ascertain the validity of such interviews with the victims, another corroborative evidence.16 counseling. She soon after confronted criticism of the study. 14 However, her parents with the allegations. Her Other studies have concluded that sixteen percent of the subjects that mother replied that she was sorry for children's memories are susceptible to remembered the abuse also claimed to failing to stop the behavior, and her have automatically repressed the repression when traumatized at a very father acknowledged that his behavior memories in the past and only young age. Researchers Scheflin and was inappropriate and that he remembered the trauma upon the Brown reviewed twenty-five studies expected the allegations to surface. triggering by an external event. It may on amnesia in childhood sexual abuse. The parents raised the statute of be important to note that the sixteen Relevant studies had to meet three limitations defense and were percent who eventually remembered criteria. First, actual sexual abuse had successful in the trial and appellate the trauma did not do so by to have occurred repeatedly over time courts on motion for summary undergoing hypnosis or above the age of childhood amnesia. judgement. The Arizona Supreme psychotherapy, which have been Second, there had to be an extensive Court reversed and remanded on the criticized for producing false period of time (sometimes decades) issues of whether the Plaintiff's mental memories in some subjects.15 during which the memories of the distress should have tolled the statute In another case study done by Dr. abuse were unavailable to voluntary Continued, next page

JURIS• Volume 33 • No. 1 • Page 5 Re111essed Memaw

memories were repressed, there are Repressed other explanations. First, he had a Based on accounts of motive for murder. Second, it is not memory uncommon for smart defendants to concentration camp keep quiet about the crime knowing syndrome that the less said, the less that can be survivors, veterans of used against him. Third, one look at his wife after the first gunshot would war, and victims of From previous page have made it apparent that no further shots were necessary to end her life. other disasters and of limitations and whether the And last, Bains ended up only with a discovery rule applied. gunshot wound to the jaw. One shot cri111eS, there appears to Some advocates of repressed struck his wife, and the other four were be enough evidence to memory point to cases where it is to attempts at suicide. Half-hearted the benefit of the subject to remember attempts, perhaps. The only person convince even the most ce1tain events, and the fact that they who knows the truth is Marvin Bains. have no recollection of these events is This is the problem with the skeptical critics that considered evidence that they must be arguments for and against memory telling the truth. One example of this repression-neither side can be repressed memory is a criminal case in which the objectively validated by science. To do defendant has no memory of a crime so would require knowledge of the exists ... in which he is implicated and could inner workings of the subject's mind. possibly exonerate himself by being Based on accounts of subject. Even Dr. Loftus admits that able to recall the circumstances. One concentration camp survivors, 18 memory repression is capable of such case is that of Marvin Bains. veterans of war, and victims of other occurring. However, she doubts that Bains was charged with first-degree disasters and crimes, there appears to it occurs as often as is claimed, the murder of his wife of twenty-eight be enough evidence to convince even validity of the retrieval method, or years. Neighbors heard five gunshots the most skeptical critics that repressed trigger, and she claims that many of coming from Bains' house, and when memory exists, though they doubt that these memories are actually false they arrived they found Marvin Bains there will ever be a way to separate memories. Loftus has stated: with a gunshot wound to the jaw, while false memories from true repressed ... [I]t cannot be doubted that the his wife was dead, missing the top of memories.20 her head from a gunshot wound. Bains experience of child sexual abuse is particularly traumatic for the child denied having any memory of the VI. THE ARGUMENTS AGAINST victim. Furthermore it is widely event until his arrival at the hospital. REPRESSED MEMORY He had a motive for murder-he accepted by clinicians that the particulars of the trauma are especially suspected his wife was having an Perhaps the arguments against conducive to repression of memory of affair. Prosecutors argued that since repressed memory sound more the incident. Thus, in addition to the the gun had fired five shots, and only plausible than the arguments in intense pain or fright that a child-victim four were found, he must have support of it because the proponents of rape or molestation may suffer, other intentionally shot his wife twice in the of the theory have a difficult task in factors are present which exacerbate the head. However, under hypnosis, Bains proving the objective processes of the claimed remembering that he was human mind, that repressed memories trauma, leading to an increased trying to commit suicide and are as common as the proponents likelihood of memory repression.2l accidentally shot his wife once, killing claim. Analogizing this to a lawsuit, Although Loftus and other critics her. He was able to lead investigators the defense has a much easier day in may acknowledge that repressed to the fifth bullet. Murder charges were court if the prosecution fails to meet memory does occur in very young dropped, and Bains was convicted of their burden of proof. children, they are quick to point out the manslaughter. Since these uncovered One of the most vocal skeptics in flaws in most of the memories that are memories only helped Bains' case and the debate against repressed memory recalled. To understand their point of he had no motive to hide them, Tayloe is Dr. Elizabeth Loftus. She has view, one must briefly review the claims that these had to be repressed authored and co-authored several process of creating a memory. memories.19 books and articles on the subject and The first general stage of creating Although it may be true that Bains' has served as an expert witness on the a memory is Perception. How the mind

Page6 RBlllBSSBd Memo11 I perceives an event is impacted by detail with accuracy. Details of the reported by trauma victims. 25 It is many factors, such as stress and length accident, such as where the student considered the most impartial and of exposure, and closeness in proximity first witnessed the accident, what they unbiased recall method because it can or familiarity with the subject. Given did immediately after seeing the happen by the triggering of any that no two individuals are identical, explosion, etc., conflicted in the first stimulus. In one case, during a near­ any given event will be perceived andsubsequentquestionnaires. Even drowning incident in her adult life, the differently by every spectator. As stress more surprising is the fact that most victim had a sense that she had levels or exposure time change, so will students changed their reports, suffered this same way in earlier years, the perception of the event. claiming that the subsequent in a sense, had "been there before." Retention is the next stage of questionnaire taken several years later Subsequent research uncovered that as memory creation, where the event is was more accurate than the a child she had nearly been drowned absorbed into the mind. Exposure to questionnaire taken only twenty-four in a toilet by her foster parents.26 external stimuli at this stage, before hours after the accident.23 Advocates Another type of spontaneous recall retrieval, can impact the way the of repressed memory claim that this may occur when an adult smells memory is recalled. Critics of the study cannot be compared to child certain cologne that her abuser used to repressed memory theory point out sexual molestation, since the ages of wear, and she has flashbacks of the that in these cases where memories the subjects were college age, not traumatic event. allegedly lie buried for years in the preschool, and the subject matter was Spontaneous recall cases have subconscious, external stimuli not as traumatic to the students as implicated defendants of differing surrounding the victim can affect the molestation would be to the children. vocations-clergy, camp counselors, retention stage, creating a distorted In a study by Elizabeth Loftus, a parents, relatives and babysitters to memory. trusted sibling told one college student name a few.27 Many of these cases Retrieval of the memory is the final a false story about being lost at a involved many abuse victims, i.e., after stage of memory creation. This is the shopping mall when the student was having spontaneous recall, the abuse "remembering" part of memory, and very young. While the student did not victim investigates and finds that is also affected by external stimuli­ at first believe or remember the story, several others have charged the same sights, sounds, moods of the victim, as he subsequently came to adopt it as person with abuse. In many cases the well as expectations in the mind of the true and described it as if it were an molester admits to the conduct.28 From victim. The critics of repressed actual memory.24 Loftus points out this evidence it would appear that at memory are quick to point out that that this person may not have been least some individuals are capable of when memories are retrieved in the deliberately lying, but gives this as an repressing memories only to have presence of a therapist or a hypnotist, example of false memory, one that the them resurface at a later time. these memories may be shaped by the individual has come to believe as true. But these spontaneous recall cases patient into what he or she feels the That the individual firmly believes in may be viewed with more credibilityif therapist expects.22 them is the exact reason why they are the abuse happens when the child is Professor U1ric Neisser conducted so dangerous. very young, and when the trauma is one such study that demonstrates the one of a repeated nature, e.g., rape or ability of the memory to distort. The VII. THE VALIDITY OF THE incest, as opposed to those that occur day following the Space Shuttle RECALL METHOD once, e.g., witnessing a car accident. 29 Challenger disaster, Neisser Some experts believe that the severity distributed a short questionnaire to Perhaps just as important as the of the repressed memory may be forty-four college students. In their memory is the method of recall for determined in part by the severity of responses, students described the these memories. Types of recall the stressor. The trauma experienced circumstances surrounding their include a spontaneous event (where by young children is thought to be memories of the event. Three years the individual is suddenly reminded more often repressed since the child later the students were asked to fill out of the abuse by a sight, smell, touch, lacks the capacity to grasp what is a second questionnaire that was sound), therapy, hypnosis, and happening, which affects how the identical to the first, except that it asked sodium amytal (truth serum). The trauma is perceived (perception stage) them to rate their confidence in the type of retrieval method that is used and retained (retention stage). In accuracy of their memories. The can influence the actual memory itself. theory, this would make for a greater results demonstrated that only three Perhaps the most reliable of all of likelihood that the mind would tend students were able to accurately recall the modes of recall is the spontaneous to repress the memory. Adults, on the all aspects of their memory, while recall, in part because it is consistent other hand, have more life experience eleven were unable to recall a single with the flashback experiences Continued, next page

JURIS• Volume 33 • No. 1 • Page 7 Reoressed Memorv

The problem is that all false Repressed memories may not be readily The problem is that identifiable as such. There is usually a memory shred of truth to the memories. For some people, while example, an adult may have belonged syndrome to a certain day care center as a child under hypnosis, in which they never felt comfortable. The therapist, by asking leading describe themselves as From previous page questions, may (unintentionally) lead the patient to the conclusion that they describing a memory to which the traumatic event may be were molested while alone with one compared, and are more likely than a of the supervisors. What makes this when they are actually child to understand the nature of a hard to refute is that the child actually traumatic event. Also, an event that attended the facility at the times when creating a memory. would be traumatic to a child would the abuse may have occurred, and may not be expected to be as traumatic to have been alone with the alleged were abused if they have suspicions.35 an adult. For instance, many adult molester on the day in question. This This is taking a large leap to say the women that are raped remember and pits the child's word against the least, claim critics of repressed may report the experience to supervisor's word, with no other memory. authorities, while a child would parties to serve as a witness. Sodium amytal and sodium perceive the trauma differently, and The problem is that some people, pentothal are so-called "truth serums" may repress it. while under hypnosis, describe and have been used more often to Two other methods of retrieving themselves as describing a memory validate the individual's belief in the repressed memories are hypnosis and when they are actually creating a memory than to actually recall the psychotherapy. Memories recovered memory.32 This may be in part due to memory. The problem with these by these methods are admissible in the presence and tac tics of the drugs is that the subject will claim that some jurisdictions, but they remain therapist. Remember that during the a false memory is true if he actually open to scrutiny and skepticism by the retention and retrieval stages of believes it. These drugs have failed to medical and legal communities. The memory creation, external factors and earn the general acceptance of the problem with these retrieval methods expectations may influence the way general medical community and are is that the hypnotist or therapist may the memory is perceived. For instance, not widely used, especially for fill in gaps in memories. In other under her therapist's supervision, one courtroom evidence.36 words, the therapist guides the patient patient made up stories of being toward an end that the therapist may sexually abused by her parents. She 30 VIII. PROPOSED SOLUTIONS be seeking. The result may be false told the therapist that she made them FOR USE IN TRIAL memories. In one lawsuit, a patient up and didn't believe that her father brought suit against her therapist for ever harmed her in a sexual way. The Until the debate has been settled, there planting false memories of bizarre therapist told her that her feelings were have been several suggestions offered events in her mind, such as seeing her normal, she was merely in denial and for using repressed memories in trial. grandmother stir a cauldron of dead that most sexual abuse victims feel this Dr. Loftus makes four suggestions: (1) infants in a witchcraft ceremony, way! She then told him that she had not tolling the statute of limitations for memories of giving birth at the age of made the allegations up since after eight years and surrendering the child telling him all she knew (none of which cases concerning a previously for cult sacrifice, and being forced to implicated her parents in any abuse), repressed memory; (2) requiring take part in sexual ceremonies in this the therapist pressed her for more, so corroborating evidence in support of cult. Although there could always be she gave more, all the while thinking a returned memory; (3) adopting a shred of possibility that these events that she was a very bad person because specific procedural requirements in occurred in some way, the more she knew she was lying.33 The same cases involving the return of a plausible explanation is that the type of phenomena occurs in so­ previously repressed memory; and (4) therapist implanted the memories into called,"past-life regression therapy" admitting expert testimony on the suggestible mind of a troubled and "UFO abduction therapy."34 In reliability of memories at the request patient. In addition, other patients another book, The Courage To Heal, of the defendant.37 Other proposed brought similar charges against the by Bass and Davis, 1988, the authors solutions include the filing of the suit therapist.31 encourage readers to believe that they in fictitious names to protect a possibly

Pages Re111essed Mema11

innocent defendant, and the filing of a preventing the therapist or hypnotist of procedural safeguards, the courts certificate of merit with the initial from using leading questions, and may be able to review a plaintiff's complaint stating that the attorney has perhaps videotaping the therapy so claim while protecting the rights of consulted a mental health professional that it may be reviewed by the all parties involved. and has elicited positive feedback on defendant to ensure compliance with the merits of the dairn.38 the procedural requirements. Of the two suggestions that Loftus Douglas Harhai is a fourth-year makes, requiring corroborating IX. CONCLUSION evening law student evidence and adopting specific Although the medical community procedural requirements may be has not reached consensus on the topic among the most important. Without of repressed memory, there appears to corroborating evidence, it could be too be sufficient evidence to support its easy for one to make allegations of past existence. The issue becomes how to sexual abuse. The following of specific determine true repressed memories procedural requirements may include from false memories. Through the use

Repressed Memory Syndrome Words of Caution about Tolling the Statute of Limitations in Cases of ENDNOTES Memory Repression, 84 J. OF Crim. L. & Criminology 129, 134 (1993). 13 Linda Meyer Williams, Recall of Childhood Trauma: A Prospective 1 Trear v. Sills, 69 Cal. App. 4th 1341, 1345. Study of Women's Memories of Child Sexual Abuse, 62 J. Consulting 2 Schaibley, David, 17 Hamline J. Pub. L. & Pol'y 151, 155. & Clinkal Psychology 1167 (1994). 3 Macmillan, M. Freud Evaluated: The Complete Arc 79 (1991). 14 Id. 4 Boodman, Sandra. The Professional Debate Over an Emotional Issue. 15 Kowalski, Michael, Applying the "Two Schools of Thought" Wash. Post, April 12, 1994 (Health Section) at 13. Doctrine to the Repressed Memory Controversy, 19 J. Legal Med. 503, 5 Schaibley, supra note 2, at 155. 524. 6 Foster, E.A., Comment, True of False: Expert Testimony on Repressed 16 Schaibley, supra note 3, at 160. Memory, 28 Loy.LAL.Rev. 1345 (1995). 17 Kowalski, supra note 12, 527. 7 Ya mini, Rola, Note, Repressed and Recovered Memories of Child Sexual 18 Tayloe, The Validity of Repressed Memories and the Accuracy of Abuse: The Accused as "Direct Victim", 47 Hastings L.J. 551 (1996). Their Recall Through Hypnosis: A Case Study from the Courtroom, 8 Choiniere, Monique. The False Memory Syndrome Debate-Will the 37 AM. J. Clin. Hypn. 27-31 (1995). Victim Please Stand Up? 12 J. Comtemp. Health L. & Pol'y 675, 684 19 Kowalski, supra note 11, at 526. (quoting Isabelle Cote, M.D., False Memory Syndrome: Assessment of 20 Loftus, Elizabeth and Katherine Ketcham, The Myth of Repressed Adults Reporting Sexual Abuse, 20 W. St. U. L. Rev. 427, 428 (1993)). Memories: False Memories and Allegations of Sexual Abuse, 175 9 Spanos, Nicholas. Multiple Identities and False Memories, 79-80, (1996). (1996). 10 Id. 21 Ernsdorff and Loftus, supra note 8, at 135. 11 Paragraph taken from Dougherty, Maura, Evaluating Recovered 22 Holdsworth, Lynn, ls It Repressed Memory With Delayed Recall Memories of Trauma as Evidence, 25 Jan. Colo. Law. 1. Or Is It False Memory Syndrome? The Controversy And Its Potential 12 Ernsdorff, Gary, and Elizabeth Loftus, Let Sleeping Memories Lie? 1 Legal Implications, 22 Law & Psycho!. Rev. 103at115 (1998). 1Trear v. Sills, 69 Cal. App. 4th 1341, 1345. 23 Schaibley, supra note 3, at 161-163. 2 Schaibley, David, 17 Hamline J. Pub. L. & Pol'y 151, 155. 24 Loftus, Elizabeth and Katherine Ketcham, The Myth Of Memory 3 Macmillan, M. Freud Evaluated: The Complete Arc 79 (1991). Repression, 95-96 (1994). 4 Boodman, Sandra . The Professional Debate Over an Emotional Issue. 25 Bowman, Grant & Elizabeth Mertz, A Dangerous Direction: Legal Wash. Post, April 12, 1994 (Health Section) at 13. Intervention In Sexual Abuse Survivor Therapy, 109 Harv.L.Rev. at 5 Schaibley, supra note 2, at 155. 600-601 (1996). 6 Foster, E.A., Comment, True of False: Expert Testimony on Repressed 26 Doe v. Roe, 191Ariz. 313, 955 P.2d 951at956 (1998). Memory, 28 Loy.LAL.Rev. 1345 (1995). 27 Dougherty, supra note 11, at 2. 7 Ya mini, Rola, Note, Repressed and Recovered Memories of Child Sexual 28 Id. Abuse: The Accused as "Direct Victim", 47 Hastings L.J. 551 (1996). 29 Id. 8 Choiniere, Monique. The False Memory Syndrome Debate-Will the 30 Schaibley, supra note 3 at 151. Victim Please Stand Up? 12 J. Comtemp. Health L. & Pol'y 675, 684 31 Id. (quoting Isabelle Cote, M.D., False Memory Syndrome: Assessment of 32 Choiniere, supra note 8 at 681. Adults Reporting Sexual Abuse, 20 W. St. U. L. Rev. 427, 428 (1993)). 33 Spanos, supra note 9 at 99. 9 Spanos, Nicholas. Multiple Identities and False Memories, 79-80, (1996). 34 See generally Spanos, Id. 10 Id. 35 Spanos, supra note 9 at 87. 11 Paragraph taken from Do ugherty, Maura, Evaluating Recovered 36 Trear v. Sills, supra note 1 at 1346. Memories of Trauma as Evidence, 25 Jan. Colo. Law. 1. 37 Choiniere, supra note 8 at 696. 12 Emsdorff, Gary, and Elizabeth Loftus, Let Sleeping Memories Lie? 38 Holdsworth, supra note 22 at 127

JURJS •Volume 33 • No. 1 • Page 9 The Internet and the First Amendment: How much re;?ulation is too much and what standaras should be applied? by Eliana Carrelli

• What is being done and are there must extrapolate what the founding T he Internet began as a military alternative solutions? fathers' intentions were in light of experiment.1 Today, it is a new method today's society. of communication; a way to connect The First Amendment and the To begin the analysis of the role of people across the world, a way to Internet the First Amendment regarding the gather information, a place for more Internet, it is important to define the possibilities yet unexplored. It truly Congress shall make no law Internet. There have been many heralds a new technological era. respecting an establishment of definitions offered-all of which have However, it also raises a plethora of religion, or prohibiting the free exercise valid points, but none that could be legal questions and issues. It questions thereof, or abridging the freedom of called conclusive or complete. It has the fundamental basis of our law, the speech, or of the press; or the right of been called a form of press, a public Constitution and its directives. the people peaceably to assemble, and meeting place, a broadcasting station, It questions the power and the role to petition the Government for a and an extended conversation.3 While, of the government. It requires us to redress of grievances. in an abstract sense, the Internet can reexamine the unity of our society and First Amendment perform each of these functions, any our communities and forces us to single one of them cannot properly discuss morality as a national and The Constitution is the framework, define it. In the end, the Internet is a global issue. which makes the United States a legal unique medium of communication, This article will focus on several nation. This fact, practically a cliche which has the power to incorporate issues imperative to the legal now, is taught to us from our infancy other forms of communication as well. discussion of the Internet. It will onwards. We are taught that the rights Narrowly defining one facet of the examine the following questions, and set forth in the Bill of Rights must be Internet can make a substantial while the answers are not exhaustive protected at all costs; they not only difference in our interpretation of the or exclusive of other alternatives or govern and define the power of the First Amendment. issues not discussed, they should government but guide its citizens It goes without saying that if the highlight many of the underlying toward the idyllic goal of creating a Internet functions as a forum, a press, points of each of the following 2 haven for individual beliefs and or a gathering place, then the First questions. values. There is no controversy that Amendment expressly forbids the • Do Internet communications the directives of the First Amendment creation of laws by Congress restricting constitute speech as protected by the must be followed. But how are they these functions. However, does the First Amendment of the United to be interpreted? How should they First Amendment include obscenity? States Constitution? be applied to the practical situations Illegal material? Does censorship play • How does one determine what we face today? Nearly all who have a role as well? There have been heated material on the Internet is obscene dealt with the subject agree that the arguments over these questions and a or otherwise illegal? writers of the Constitution could not commonly approved solution does not • Is there a common community possibly have envisioned the creation seem to be coming for us in the near standard and if so, what is that of something like the Internet or the future. In fact, in 1996, Congress standard? legal issues it would raise. However, created the Common Decency Act • Under what authority can the as followers of the Constitution, we (CDA, section 502 of the government regulate the Internet? must find a solution to this query. We Telecommunications Act) which

Page 10 stated, in part, that anyone who, "by means of a teleconummications device knowingly... makes, creates, or solicits .. .initiates the transmission of... [material] ... which is obscene or indecent, knowing that the recipient of the communication is Wlder 18 years of age ... shall be fined." 4 However, this Act was later challenged as being constitutionally overly broad.5 In Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court of the United States held "that the statute abridges the freedom of speech protected by the first amendment."6 This decision partially rested on a particular definition of the Internet. Judge Stewart Dalzell stated, "the Internet , may fairly be regarded as a never- I1 ending worldwide conversation. The government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."7 I The Court's current interpretation is that the CDA would have I "[presented] a greater threat of censoring speech that, in fact, falls controversial issues involving Internet Obscenity on the Internet outside the statute's scope, [and that] I access, freedom of speech, and the First In the previous section, we saw that the CDA effectively suppresses a large I Amendment. For example, in Loving the First Amendment applies to amoWlt of speech that adults have a ' v. Boren, 133 F.3d 771 (1998), the court practically alJ Internet material (with constitutional right to receive and to affirmed a lower court ruling certain restrictions concerning as access 8 address to one another.'_' _However, t~e upholding the creation of boWldaries to minors) which is not considered Supreme Court exphotly states m to complete Internet access at higher obscene or pornographic. The Reno v. ACLU that "the appellees do I education institutions.11 The court in immediate question that arises is "what not challenge the applicatio1:' of the Loving interpreted and applied the is considered obscene?" There is not statute to obscene speech, which ... can First Amendment in a seemingly much argument that descriptions or 1 ~e banned totally becaus: it :~joys no 1 narrower manner than that which had images of" ultimate sexual acts" would first amend~en~ p~otection. Thus, prevailed for the CDA. constitute obscenity and I or onefactremamsmdisputable--obscene The First Amendment should pornography. But how should or otherwise illegal material is not apply to all material considered legal borderline material be considered? protected by the First Amendment. on the Internet. The Internet should Does the Internet medium affect our Indeed, this conclusion is confirmed in receive the greatest protection possible, current definition of obscenity? Pacifica Fndn. v. FCC, 516 U.S. 1043 but not because it is simply a In 1973, the case of Miller v. (1996) and Sable Communs. v. FCC 492 "conversation." The Internet provides California, 413 U.S. 15 (1973) U.S. 115 (1989) where in ea~h c~se the so many possibilities and has the established the "Miller test" for court held that obscenity is not potential to affect so many people obscenity which, is still being used to protected as freedom of speech. 10 because of its inherent global nature, determine, identify, and define what However, the issue of the role of that the government must continue, as constitutes obscenity. In evaluating the theFirstAmendment,asapplied to the it has done, to proceed with material at issue, the fact-finder must Internet, has been by no means settled. extraordinary caution in applying the consider: In 1998, the courts confronted several Constitution. Continued, next page

JURIS• Volume 33 • No. 1 • Page 11 definition of child pornography which, that the rights prescribed by the First The internet because of the technical nature of the Amendment must apply to everyone Internet, was "expanded ... to include in the community, both adults and and the First computer or computer-generated minors. images [as well as] images of real Overall, one can very easily Amendment children."15 This case shows how generalize that there are numerous current definitions are being modified correct definitions of what constitutes to adapt to the new technology From previous page obscenity depending on specific presented by the Internet and how new community standards, age, and other definitions are being challenged. US v. factors. The applicable definition must (a) whether the average person, Hilton also raises the important issue depend on the specific circumstances applying contemporary community of the relationship between the of the situation, and we cannot hesitate standards would find that the work, In tern et, obscenity, and minors. to apply or modify, as needed, our taken as a whole, appeals to the Obviously, what adults might not current methods for judging obscenity prurient interest; (b) whether the work consider obscene, could quite possibly on the Internet. depicts or describes, in a patently constitute obscenity in regards to offensive way, sexual conduct minors. Indeed, our primary goal Community Standards specifically defined by the applicable should be the protection of children. Many pitfalls are encountered state law; and (c) whether the work; However, the opportunity to ensure when one tries to define what the taken as a whole, lacks serious literary, that the goal is carried out is oftentimes community standards regarding the artistic, political, or scientific value. potentially hazardous because we Internet could be. Simply defining the Miller, id. 12 must also consider valid arguments community itself is problematic. It is readily apparent that serious such as the one presented by Fred Several alternatives have been questions are raised when we apply Wilks: expressed as to what the "community this test to the In tern et. How is "Governments at the state and standard" should be, from choosing a something determined to be offensive national level may constitutionally representative local community to or lacking in value? Who decides? prohibit the distribution to minors of creating a new "cyberspace This definition of obscenity, like others, sexually explicit material that is community." is at best ambiguous. obscene as to minors. They may not, The definition of obscenity In fact part of the reason, in part, however, reduce the adult depends in great part on the audience of why the constitutionality of the CDA population ... to reading only what is fit that effectively receives the material was questioned was because the for children by enacting wholesale regardless of who the intended wording of the statute was too vague. bans on material that is obscene as to audience may be. 17 What might not be The CDA tried to equate the term minors, but not as to adults."16 considered obscene in Los Angeles or "obscenity" with "indecency." But, as As Wilks implies, we cannot forget New York might be in Salt Lake City, the Supreme Court found, when the Utah. An example of this complex Act's constitutionality was questioned, issue is United States v. Thomas, 74 F.3d "in evaluating the free speech rights of "As the most 701, (1996) 18 where a California couple, adults, [it has been] made perfectly creators of a cyber porn bulletin board clear that sexual expression which is participatory form of not considered illegal in California, indecent but not obscene is protected were convicted in Memphis, by the first amendment." Reno v. mass speech yet Tennessee, where the material was ACLU.13 Consequently, the word considered to be illegal. Two main "indecent" cannot be used developed, the Internet questions were raised in Thomas. First: synonymously with obscene.14 As a "What standards should be used in result, the word was stricken from the deserves the highest testing whether certain materials are context of what could be considered obscene?" Second, and even more illegal. protection from fundamental, is "What standards The definition of what constitutes could be constitutionally applicable?" obscenity, however, has not stopped gavernmental intrusion." Where does the First Amendment with the revision of the CDA. In March fit in? The rights expressed in the First 1998, the case of U.S. v. Hilton, 1998 Amendment must be extended to U.S. Dist. LEXIS 5007, went to trial -Judge Stewart Dalzell everyone, while achieving a balance "successfully challenging" the between those who wish to speak may

Page 12 ------~ do so without fear of being silenced cyberspace and thus create a de facto and those who do not wish to hear Because of the community. However, the purpose of inadvertently forced to do so. Because trying to find a viable community of the unique method of unique method of standard is to find the rules, standards, communication created by the and customs which are applicable to Internet, all material, messages, etc. are communication all who use the Internet. If we could sent to everyone or no one. 19 If not satisfactorily conclude what messages protected by the First created by the standards could be used when Amendment in California are sent to discussing specific locales, how are we Memphis where they are no longer Internet, all material, ever to hope of reaching a conclusion protected, then balance has not been as to what standards would apply to a achieved. Therefore, diverse messages, etc. are "cyberspace community?" community standards have caused the The Internet itself is a unique directives of the First Amendment to sent to everyone medium of communication, and fail. cyberspace "community" is a global Still, according to the traditional or no one. agglomerate of all the values held by definition of "community," the very all geographically locatable creation of a community standard the courts often apply yet another de communities, at various levels of arises from the similar, shared beliefs facto national standard in which they tolerance, who have access to the of residents within a geographical consider what the average person Internet. The Internet transcends all 20 area. We cannot restrict the might find obscene or pornographic. geographical borders. In the words of expression of sensitive adults or Application of the First Amendment Yousuf Dhamee: minors' rights (which includes the cannot be conducted as a compromise "The Net negates geometry. ..it is right not to hear what others would in which each of the two sides loses a fundamentally and profoundly anti­ consider free speech) any more than bit and potentially has very little to spatial. You cannot say where it is or we can the rights of those who feel the gain. Some people would still find describe its memorable shape and need to express their views, however their actions hampered by others' proportions or tell a stranger how to controversial. Thus, we must find the opinions of morality,22 while others get there. But you can find things in it common community standard which would still find their privacy invaded without knowing where they are. The will allow us to achieve the desired by offensive material. Net is ambient-nowhere in particular 26 balance. Another approach to this problem and everywhere at once." The "Miller test" allows jurors or of defining a common community Even if we accept this definition of others to decide what constitutes standard would be to broaden the the Internet, we cannot forget our obscenity by applying "contemporary definition of "community" and to individual, cultural, and geographical community standards." They cannot create a new community. In United diversity. If we try to create a know with any certainty what the 23 cyberspace standard, the results may States v. Thomas , the Thomas's called specific standards are - they must for a new definition of community be disastrous. Certain people, as yet arrive at hypothetical conclusions. standards "based on the broad-ranging unspecified, would be given the Under Miller, a jury employs the connections among people in immense power to dictate what they standards embraced by the least cyberspace."24 Although there are believe to be the common beliefs of the tolerant community. The application of some valid points to this argwnent, the people who access the Internet. Who this test raises many problems. As C. final objective of achieving a should these people be? Would they Trim states, "It would be constitutionally valid common be capable of responsibly representing unconstitutional and outside the standard would not be realized. One the beliefs of all who access the requirements of Miller-as well as of the arguments for a "cyberspace Internet? unrealistic-to require that the people community" is that "the rules and Some people who advocate this of New York City behave like the customs (and standards) of the cyber­ approach also say, "no geographical people of rural Florida."21 The courts community should apply since that is community standards can apply since could go the other way and adopt the the community affected."25 It is true no geographical community is affected 27 standards of the most tolerant that, by applying the definition of by Internet communications." - community. Either way, the result community, one can say that Although advocates are correct in would still be the creation of a de facto cyberspace is the location of the stating that the Internet cannot be national standard. No one would community and the people who use "found" in one geographical location, benefit from such a result. In the end, the Internet temporarily "reside" in Continued, next page

JURJS •Volume 33 •No. 1 •Page 13 ------~ nation while the other is limited in its have repeatedly recognized the The internet application. If anything, we should be governmental interest in protecting more ready to protect the eyes and ears children from harmful materials," but and the First of our children than those of our rather than search for a goverrunental sensitive adults."31 alternative that can ensure the Amendment This statement touches on both the protection of children, it recommended issue of jurisdiction and the issue of several software blocking devices such protection of minors. The From previous page as Cybersitter, Cyberpatrol, and X-stop. government's primary jurisdiction The Communications Act of 1934 should be the purpose of its existence. was amplified to "restore freedom of It is a public institution created to speech to the Internet and to protect the fact that"cyberspace" is an abstract protect and provide for the interests of children from unsuitable online location is in fact, irrelevant. The its citizens. Of course, the particular material,"33 but this only occurs if the specific sites located on the Internet are jurisdiction of specific laws applied parents supervise their children's use created in concrete geographical areas (various state laws for example) are of the Internet and order the blocking and are received by people living in affected by the specific community software (which cannot be foolproof concrete geographical locales. standards involved.32 and may block educational and In effect, creating a new cyberspace What is the goverrunent's position cultural sites along with undesired community standard would pose at in regards to the second issue, that is, ones). In effect, the goverrunent has least as many significant problems as the protection of minors? It seems that, truly maintained the position of "least would utilizing a national standard, or in its justified worry that it could restrictive alternatives ... at least as the contemporary community infringe on the First Amendment, the effective."34 standards. Until we can find a better goverrunent has assumed a position of Are there any other methods the way of dealing with community minimal regulation of the Internet goverrunent could utilize in order to standards, however, we must use the while discussing at considerable length regulate the Internet in a consistent current methods available and apply the possible implied and factual manner? Is there a definition of the them with deliberate consideration. dangers that the Internet poses. When Internet, which could spawn a uniform the Supreme Court considered on the method of regulation? Could there be Governmental Regulations28 constitutionality of the CDA, it an alternative to the blocking software Under what authority can the remarked that "It is true that [they] that currently exists? government regulate the Internet? What is its jurisdiction? The purpose of the government, in part, is to protect its citizens and their rights, to maintain order, and to protect the public interest. Above all, the government should protect the well being of the children. This last issue raises another interesting question-should the power of protecting minors reside in the hands of the government or of the parents?29 In a sense, this question is as much moral as it is social and hinges on the specific values each particular group or community holds.30 Let us consider the following comment made by Fred Wilks: "If the same concern for the special sensibilities of particular groups drives both the varying standards for children and for intolerant communities, then there really is no justification for allowing one heightened standard to control the eyes and ears of the entire

Page 14 ------~ Opinions, Alternatives, and are merely considered as providing a issue of who would decide what sites Conclusions service. The Internet is also a service; went on the list or did not. This would With a projected 200 million users, indeed, there are countless possibilities certainly place an undue amount of the Internet is truly becoming "a and different services possible power in the subjective hands of the world" and not simply because of the (including business transactions, Internet companies. However, if it undefined geographical boundaries. 35 communications, etc). Although it is became mandatory for all sexually If certain boundaries of any genre (e.g., difficult to define the Internet itself, the explicit sites which require age and commercial, communication, etc.) are basic theories and foundations of the credit card verification to include a not taken into consideration and dealt services it provides are well known specified series of numbers or code with immediately, the Internet may and well established. Would it not be letters like 900 numbers, then these soon be too large an entity to be easier for us then, to simply consider sites would be separated from others governable. Indeed, the Internet could the Internet as a "company" providing in an equal and objective manner. Any soon be considered a modern day services? As a company, the Internet parent or adult who did not wish to analogy to the Roman Empire at its could certainly be regulated more receive these sites would have the zenith. Fortunately, the govenunent easily. In the business and commerce power to simply call their Internet has taken the first steps towards arenas, the same interstate laws that provider and request that all sites concretely defining and regulating the apply to other methods of bearing a certain code be blocked from Internet while showing great concern transportation, business deals, etc. their computer. in securing the opportunity for all would also apply to the Internet. If the govenunentenacted this type views, within legal bounds, to be Also, if the Internet is considered of legislature, it is possible that the expressed. However, is it possible for another method of communication like difficulties arising from different the government to do more without the telephone or the television, then community standards would be restricting the personal freedom of its many of the same protective measures reduced. By more government citizens? In fact, can the government, that apply to them could apply to the regulation, the communities and the through increased legislature and Internet. For example, telephone individuals would be placed in the regulation, place the ultimate power of services provide a separate service for position of choosing how they wanted the Internet in the hands of the 900 numbers and cable companies to use their rights provided by the First individual, the parent, and the require a prior subscription to specific Amendment-whether it would be to community? channels in order to view adult speak freely or to retain the confidence The answer to each of these entertainment programs. It seems that such speech would not be heard questions is yes. Naturally, we are logical then, that America On Line and by them or by their children. In this hesitant to overthrow our traditions other Internet service providers can way, the children would gain an and our precedents, but at the same make available a separate service for additional method of protection. If the time, we have recognized the need to their customers who wish to retain parents did not want to block these adjust laws and respected customs in access to sexually explicit sites. After separate sites, or wished additional a way that better serves the interests all, when I called to get my phone line protection, then the additional of today's society. These seemingly hooked up, I was asked if I wanted to software that exists today would still conflicting and irreconcilable views have 900 numbers automatically be available and would not be entirely (keep the old in with the new) need not blocked or not. If it were not unduly redundant since they can focus on be contradictory. In this past century, burdensome for the phone companies, specific words or images found in we have seen amazing technological why would it be for the Internet other sites as well. advances and these advances will companies? An objection to my Also, the Internet companies could continue to occur as we reach the argument could perhaps be that economically benefit from this type of millennium. When the television was whereas 900 numbers are already legislation. They would have the first produced, it had to find its own separated by the phone numbering power to offer their customers more place and function in the society that system, it would be impossibly options and services. Not only could had no previous legal method of burdensome and costly for Internet they offer their own basic Internet dealing with this newfangled companies to sift through the programs or the WWW but they could technology. Today, however, television multitude of sites on the Internet and also offer different "packages" or and cable laws are common. In fact, create a separate list of sexually explicit "custom-made programs" which the Telecommunications Act of 1996 sites which must be blocked. I agree would potentially attract specific shows us the legal perspective with that if this were the case, this proposed groups of customers. which technology should be treated. solution would not be effective One thing which, of course, cannot For example, today, cable companies , especially because it would raise the Continued, next page

JURIS• Volume 33 • No. l • Page 15 ~------limitless. We have the power to govern that beckons us and calls us forward The internet the Internet exclusively within our to continue exploring the possibilities own country. However, our and advances which we, ourselves, and the First government cannot restrict our access create. to any foreign sites. Perhaps in the Amendment future, there may be an international consensus on the material, which may Ms. Carrelli is a second-year law From previous page be transmitted via Internet. Until then, student. however, we must realize that what we be forgotten, is that the Internet is do is on a national level and beyond global. The possible uses and this nation. There still exists the world implications of the Internet are nearly of the Internet-a teclmological world

Internet & the First Amendment ENDNOTES a packet switching network, a method by which data is broken up 1 The beginning of the Internet was a 1969 military program called into standardLzed packets, which are then routed, to their respective ARPANET. For more details of the history of the Internet, see Reno v. destinations via several intermediaries. As each intermediary receives ACLU Supreme Court Opinion data intended for another party, the data is forwarded along whatever or Description for the Internet - Reno v. ACLU route is most convenient. Thus, multiple bits of information from 2 Questions reprinted from the paper topic assignment. the same source may use more than one route to reach a destination 3 For a definition of the Internet as a "press", "meeting place", or "broadcast where they will be reassembled." Monaghan, Tracy. Cyberspace station", see Dhamee, Yousuf. Obscenity and the Jnternet: The Jurisdiction Under the minimum Contacts Analysis I. Communications Decency Act. http:/ /www.stg.brown.edu/projects/ 20 Trim, at 2. .. .landow I cpace/ politics/ decency.hhnl. 21 According to the American Heritage Dictionary, 2nd. Ed., the For the definition of "conversation", see Hammitt, Harry. Internet definition of "community": 1. A group of people living in the same Censorship on Hold. http:/ /www.govtech.net/publication ... ide/ locality and under the same government, 2. A group or class having januaryl 997 I gigcensorship.shtm common interests, 3. Similarity or identity, 4. Society as a whole. For more definitions and information, please see Biegel, Stuart. Reno v. 22 When trying to define what specific community standards may ACLU in the Supreme Court: justices Hear Oral Argument in be, the issue of morality is raised. There have been many discussions Communications Decency Act Case. over time as to the government's role in applying mornlity in the 4 Reno v. ACLU, at 5. legal system. There seems to be agreement that the "majority" of 5 A statute is considered to be constitutionally overboard "with respect to people in a given location often share the same morals. However, if the first amendment if it presents a genuine likelihood that it will sweep a the morals of one particular group were selected as the standard over substantial amount of protected speech within its prohibitions." Making the other groups, even iJ the other groups constituted a minority, Speech Safe for Children http:www.dcez.com/-alewine/cda96/ would there still be freedom of expression as provided for by the CDAd raft.html first amendment? For selections on Jaw and moral issues see 6 Reno v. ACLU, at 1. Saltzburg, Diamond, Kinports, Morawetz. Criminal Law Cases and 7 Reno v. ACLU, at 1. Materials, Charlottesville, Virginia. Michie Co., 1994. 8 Reno v. ACLU, at 11. 23 United States v. Thomas, 74 F.3d 701, (1996). 9 Reno v. ACLU, at 14. 24 Wilks, at 7. 10 An analysis of these cases can be found in Reno v. ACLU as well as in 25 Wilks, at7. Lewine. 26 Dhamee, Yousuf. Location Independence, Obscenity, and the 11 For a summary of this case, see Top Cyberspace Law Cases of 1998. Jnternet http:/ /www.stg.brown.edu/projects/ ... andow /dpace/ 12 Miller v. California, 413 US 15 (1973). See also, Wilks, Fred L. The politics/location.htm. Community Standards Conundrum in a Borderless World: Making Sense 27 Wilks, at 7. of Obscenity Law in Cyberspace, 3 Spring 1998 for an in-depth discussion 28 lt should be noted here that there are other aspects of government of the "Miller test," see Trim, C. Protecting Children From CyberPorn. Internet regulation, although they are not central to the scope of my 13 Reno v. ACLU, 521 U.S. 844 (1997). paper. Quite interesting, is the government's position of regulation 14 This issue is raised in several articles including Trim, and Wilks. of Internet Commerce. For a summary of recent proposals such as 15 Wilks, see supra note 12. the Ta x Freedom Act and the Internet Protection Act, see Recent 16 Wilks, at 4. CyberLegislation: U.S.Congress Explores Proposals to Regulate the 17 For a general discussion of this and other community standard issues, Online World. see Wllks. 29 For more information on th.is topic see Trim, id. and Wilks, id. 18 United States v. Thomas, 74 F.3d 701 (1996). http:/ /www.law.emory.edu/ 30 See endnotes 21 and 23 for more information. 6circuit/jan96/96a0032p.06.html. 31 Wilks, at 5. 19 "The Internet is the interconnection between any one of millions of 32 See section 3 of this paper and the accompanying endnotes. computers around the world. Persons who adhere to common 33 Reno v. ACLU. communications standards, particularly TCP /IP, independently manage 34 Recent Cyberlegislation ... , at 3. each computer. The TCP /IP standard makes the Internet work. It defines 35 WiJks.

Page 16 TheQBCsof avoiding malpractice A Young Lawyer's Guide by Jeffrey L. Pollock, Esq.

Always know the law and be prepared; your reputation Promise-keeping and pursuit of excellence are hallmarks and livelihood are at stake. of quality in any career.

Be accessible to your clients; they need to be able to count Quiet confidence in and genuine empathy for your client's on you and your expertise. case enhances professionalism.

Copy your clients on every important document, pleading, Return all phone calls by sundown of the day received or correspondence or order. at least within twenty-four hours.

Draft specific, and keep current, client fee agreements Stake out the high road; do not be dragged down to the defining both your duties. level of the "Rambo Litigator."

Economic disputes with clients should never affect your Tell the truth and always to keep your reputation intact; service; your reputation is at stake. honesty defines one's eminence.

First impression is key to earning a good reputation; be Use every opportunity to resolve problems without trial punctual and dress for success. and get the client's permission to settle.

Golden Rule: Treat others fairly, as you would want the Vigorous advocacy with civility ensures zealous same respect and courtesy extended to you. representation without offending others.

Hold confidential all those communications that the clients When you lie down with dogs, you get up with fleas; do expect and deserve to be privileged. not stoop to a lower level of conduct.

I enjoy my practice; therefore I do not resent going the extra Xactly the right answer later is better than bluffing the miJe to help clients in need. wrong answer now.

Jot short status notes, birthday cards, etc.; keep your clients Your personal integrity and ethical standards should be informed and in touch. evident and consistent in office and home.

Keep open, cordial lines of communications with your Zero typographical errors is an indicator of diligent time, client and opposing counsel. effort and dedication.

Let your client assist in their case; they want to feel involved Alpha and Omega of Law: and not powerless. Give back to your community; do regular pro bono work for indigent and good causes because our profession Mind your manners regarding clients, counsel, judges, has earned a higher standard. court staff, and especially your secretary. Mr. Pollock has served on the YLS Council and the YLS Board Never curse or yell; you never know whom you may offend of Governors. as to your reputation or referrals.

Often attending CLE increases expertise, boosts networking and keeps your library current.

JURIS• Volume 33 • No. 1 • Page 17 by professor robert d. taylor

of public spaces mean by ethics that professional ethics provide the T he editor-in-chief of Juris has which would not clash with cost/ integrating bond of our curriculum­ kindly permitted this writer to have an benefit analysis or the bottom line. So Ethics Corner (my name for the a platform driven hard and bottom line, I choose a real space, column and not his). A corner, an persuasively by the ABA. Many steps although in the comer, rather than a have been and are currently underway inglenook, a warm and restful rhetorical space of the shakers and toward realization of this hideaway next to a fireplace invites objective. For movers who verbally wrap themselves example, this faculty, long committed something we have lost, namely, the in ethical garb. Beware the art of conversation. Incidentally, the to the teaching of ethics and values, has manipulative power wielder in ethical expanded the requirements of very word scholarship has its roots in garb! Now if this metaphor of Professional Responsibility from two the Latin word schola which means "cornered ethics" doesn't seem to fit to three-credit hours. But the leisure and the fruits of leisure such as your experience, then simply regard modifications are not limited to those an unhurried conversation that would me as backed into a corner or as a students about to graduate. transpire in front of a fireplace in a cozy Greek chorus of one, so to speak, The entering class, at the nook with good friends and a glass of commenting on and questioning the orientation program for this academic fine wine-an Isaiah Berlin sort of very lines and actions of life's real year 1999-2000, was given a problem evening. This is the locus in which players. And the savants among our in legal ethics in order to introduce the ethics of any sort (general, legal, readership might detect that I occupy students to the Socratic method and medical, etc.) can become a subject of the res media between Alisdair the experience of thinking like a lawyer leisurely conversation. Mcintyre (see his book After Virtue) about ethical matters. And in the legal Now you may interject with a and John Caputo, author of the book writing and research componentofour challenging question. For instance, Against Ethics. curriculum, problems in legal ethics you might ask "Is this where ethics But the sexiest (now do I have your are frequently being utilized by the belongs, tucked away in some comer?" attention?) subject matter in legal teachers. Even in the first year Civil But I would answer in feigned education today is indeed ethics-legal Procedure courses, an area most modesty that I gladly place it there in ethics (no, its not an oxymoron). And remote from the experiences of legal the comer because many in our midst it is invoked often and everywhere­ novices, matters in professional who call themselves "realists" often at law schools, at continuing legal responsibility are now being assert that ethics is most likely invoked education courses, at the convivial emphasized. The pedagogical point of in the public forum by scoundrels at gatherings of the Bench and Bar. this expansion of legal ethics and this present moment in history. I do Perhaps this invocation comes out of a professional responsibility is to get the not know why so-called realists are real performance and not just a students to see that in whatever area always a bit wary and a mite cynical, rhetorical one, but on that matter you of law, in actual practice the lawyer but be this as it may, I am willing to will have to decide. Nonetheless, legal encounters matters treated in the Rules talk about ethics from a comer, from ethics is so often talked about that one of Professional Conduct. And finally the margins so to speak. Of course, would rightly infer that it occupies the in the area of curriculum, several there is some empirical evidence that center field rather than being out in left courses-Law and Religion, in contemporary society, ethics is lived field and on the margins. However ail Philosophy of Law, and Constitutional by people in or on the margins of late of this stacks up, I can personally Jurisprudence-have been integrated capitalism-the marginalized. And assure you that at this law school ethics and yield a provocative and sustained Nietzsche would remmd us that the really does occupy a premier place, reflection upon the religious, ethical, last ethicist died on a cross, so to speak, both de facto and de jure. Let me and philosophical foundations of law not an inglenook exactly but rather the explain. and lawyering. ultimate in marginalization. A very generous gift from one of Now rules alone can be deadly It is further to be noticed that in our distinguished alumni, Attorney dull. So we are beginning to develop mainstream public life in America, a video library of ethical materials as ethics occupies what could be called a Thomas W. Henderson, is now rhetorical space rather than a space of making it possible for us to deepen as well as expanding our library holdings any real performance-particularly if well as broaden the professional, in areas germane to ethics in general that performance would occur at a ethical component of our curriculum. and legal ethics/ professional costly price to the performer. Holders The ultimate goal for us is to have responsibility in particular. Also,

Page 18 speakers from the Disciplinary Board, (More will be said on this in the the Client Security Fund, and Lawyers forthcoming columns.) Each of these Concerned for Lawyers provide I haven't seen a matters must be thought through to striking and memorable tales for our ground or the practice of law itself will students that mirror actual realities of Kung-Fu-like remain a sort of free floating, along the practicing lawyer. This year, the lawyer yet able to walk with the giddiness attendant thereon. teaching of legal ethics/professional All too often, lawyers (although not the responsibility climaxed with a lechtre on rice paper without best of them) start with a posit as some by Professor William H. Simon, the arbitrary ground for thinking, the point Kenneth and Harle Montgomery leaving footprints. where the spade of their thinking Professor of Public Interest Law at turns, so to speak (thank Ludwig Stanford University. On October 27, Wittgenstein for this pragmatic 1999, he delivered the first Thomas W. highest aspiration is to precisely metaphor). Henderson Lecture on Legal Ethics, achieve that perpetual and necessary Recall now, that corporate America titled "Thinking Like A Lawyer-About re-founding that is implicit in his hungers for those who are capable of Ethics." He is the author of the widely challenge to us and to use all of our thinking outside the box. If this be so, read book The Practice of Justice: A professional expertise in doing so. This then law, understood as a professional, Theory of Lawyers' Ethics (Harvard surely fits in with this University's yet academic, discipline is famished for University Press, 1998). This book is motto of education for the mind, heart, those able to do so. As a law school in currently being read by all of our and soul. We even dream of a "Journal a great university, we know that with.in students now enrolled in Professional of Comparative Professionalism" that the realm of thinking itself there ought Responsibility. In addition, it is being would begin such a movement. not be any custom agents at critically discussed and addressed by Yet, we realize that secure disciplinary boundaries asking after a study group of this faculty. For an foundations can only be reached by the papers of those willing to cross the extensive treatment of this work, I digging. And we have begun our boundaries so often held in place by would refer those who are interested digging by posing questions, political power plays. The to volume 51 of the Stanford Law fundamental questions about that Enlightenment tradition, to which Review (April, 1999). which lawyers do, namely, contemporary legal education, legal And in the midst of all of this, we representing clients and intervening in theory, and legal practice is indebted, even have a "wish list." It is our hope various modes on their behalf. Each believed that in the realm of thinking, to eventually achieve integration in of these concepts are occasions for there can be no transgression because legal ethics/professional responsibility "cornered" meditation and reflection. there are no boundaries. Here is the under the rubric of "Professional For example, what does representing only ethical way to perform within Leadership in the New Millenniwn." a client mean? Is a lawyer a clone of such a tradition, namely, to engage in Under this wnbrella concept, we the client? Well, certainly not where ceaseless questioning, questing, and hope to develop a totally new "independent professional judgment" self-questioning. Only those discipline caJled Comparative is called for. Does representation of the abounding in self-evident certitudes Professionalism. With.in this discipline, client mean that the lawyer is need fear such. Ethics begins by we will precipitate a conversation translating the client? If so, from what casting away such fears. among lawyers, physicians, and clergy, to what? And what manner of as well as others who perceive translation is this? Doesn't the client's themselves in terms of professional life. story get lost, that is, its vibrant and This dialogue will center on the robust reality is attenuated by the legal concept of leaders trained to bring language into which it is translated? about an American Renaissance And what does intervention entail? through the education of citizens in the Does it not itself lead to unanticipated ways of civic life. turbulence requiring more Benjamin Franklin was intervention? I haven't seen a Kung­ purportedly asked just what it was that Fu-like lawyer yet able to walk on rice he and the founding fathers did. He paper without leaving footprints. And responded that they had fashioned a over all of these questions is the Republic-if we could keep it. Our question of who the client is really?

JURJS • Volume 33 • No. 1 • Page 19 Yea12000 I Year 2000: We're here. Now what? by Julian N eiser The Problem computers-which will be affected. It It is alleged that some computer is estimated that forty billion microchips and software that depend microchips using time stamps have The Ukrainian government has on a time stamp will fail after the new been sold.5 Approximately ten percent issued a very simple Year 2000 (Y2K) millennium. Computers recognize of those chips are not compliant, which contingency plan: prepare for mass years by their last two digits-1999 means that up to four billion could fail . evacuations. This is not a comforting would read "99," and many simply These chips are used in everything thought, considering that numerous were not designed to read "00." It is from computer network hardware, Russian nuclear reactors and weapons estimated that by using a two-digit such as hubs or routers, to household are stored in the deteriorating Baltic field to represent the year, computer products including video cassette country. manufacturers in the 1960s and 1970s recorders and digital telephones. The United States arguably is in were able to save considerable For businesses, the significance of better shape than most of the former amounts of money because memory the Y2K problem is a potential loss of Warsaw Pact nations. Significant was at a premium. data or even shutdown of critical testing has occurred among utility In hindsight, the expense may have systems. Such a disruption raises the companies, financial institutions, and been worth bearing. It is estimated that question of who will pay for a remedy. other critical services. General the Y2K problem could result in more To help sort out the blame in case awareness to the problem is high. than $1.4 trillion doUars4 in legal fees, Y2K problems actually occur, and also However, many individual and not to mention the negative impact on to assist in remediation efforts by corporate contingency plans feature businesses that suffer work attempting to prevent "infection," lawsuits- not dehydrated food ctisruptions. For the general public, the many companies have required stacked in a remote bWLker. potential for computer glitches causing vendors to sign agreements stating that As a result, lawmakers and lost bank accounts, power outages, or they either are Y2K compliant, or have business leaders have become fearful worse is unknown. a plan in place. of a Y2K lawsuit storm. Whether it was To summarize the extent of the Y2K Keep in mind that these vendors to prevent lawyers from hitting the problem, consider the many items­ are not necessarily software-related jackpot in fees,1 such as what happened besides desktop and network companies. They could be law firms, during the tobacco litigation,2 or an accountants, or anyone else that has the potential to share software or attempt to protect businesses from computer files with the customer. As falling under the weight of legal fees, these vendors attempt Y2K compliance Y2K law has seen tremendous-and The significance of the to keep their current business arguably positive-change during a relationships, a consultant usually will short period. Y2K problem is a be hired and non-compliant software In the last year, many misguided and hardware probably will be authors attempted to predict the future potential loss of data or replaced. On the surface, it would of Y2K claims,3 only to find their appear that any fees incurred to make writings impotent and obsolete shortly even shutdown of the software or hardware Y2K thereafter. From federal and state compliant would result in recovery legislation to the blossoming number critical systems. Such a under a contract or warranty theory, of cases, Y2K law is evolving rapidly. just like any other situation where a This article, written only months disruption raises the "bug" surfaces. before the new millennium, will However, the requirement of injury provide a summary of Y2K laws, question of wlw will pay prior to litigation, the content and judicial trends, and the use of intent of contracts, and the application alternative dispute resolution (ADR) for a remedy. of recent legislation make the question techniques. · of remedy far from certain.

Page 20 must acknowledge receipt of the plaintiff's notice, and describe steps to address the claim, but note that this response is not admissible as evidence in subsequent litigation. If the defendant proposes remediation or a willingness to use ADR, the plaintiff must allow an additional 60 days from the end of the initial 30-day notice period to implement the plan or ADR proceeding.8 Only after this period expires, or if the defendant fails to act, can the plaintiff file a lawsuit. • Tort Claim Control: Plaintiffs cannot seek damages for lost profits, business interruption, third-party claims, consequential damages,9 or losses that must be plead as special damages due to a Y2K failure tmder the economic loss rule. 10 The rule does allow a previous contractual agreement between the parties to permit such damages, and does not prevent claims for injuries to personal or real property. • Contract Claim Limitation: Breach of contract claims are limited and deference is given to the intent of Legislation • Heightened Pleadings: In order the parties at the time of contract. No Y2K legislation has been passed to to prevent frivolous lawsuits, each claim for breach or repudiation of limit lawsuits, cap liability, encourage complaint must provide specific contract will be allowed unless settlement, and prevent the court information to prove the damages provided for in the terms. 11 If the system from becoming even more sought, including allegations of a contract is silent as to a particular clogged. A secondary focus has been material defect. Additionally, if a cause claim, state or federal law at the time to limit liability of software companies of action requires showing a of acceptance will apply. that disclose information for the defendant's "state of mind," the • Duty to Mitigate: There always purpose of assisting others in complaint must include facts is a duty to mitigate damages. remediation. inillcating a "strong inference" of the However, the Y2K Act imposes a It should be noted that defendant's actions. higher burden to mitigate damages to Pennsylvania is one of the few states • "Cooling" Period: This avoid litigation.12 Recovery is barred that lack specific Y2K legislation, provision is extremely important for damages that could have been although a "computer date failure" bill because it utilizes notice, alternative avoided, unless intentional fraud has been introduced twice in the House dispute methods, and remediation by exists.13 and Senate.6 the defendant as a means to prevent •Punitive Damage Cap: One fear The most important legislation for Y2K litigation. Before a Y2K lawsuit of Congress was the significant impact both attorneys and businesses is the can be filed, with the exception of those of Y2K litigation on small businesses. "Y2K Act," that President Clinton seeking injunctive relief, a plaintiff As a result, punitive damages14 will signed into law on July 20, 1999 .7 The must submit by certified mail a only be awarded under a "clear and Y2K Act preempts state law that places detailed notice of the harm suffered a convincing evidence" standard, and more strict limits on liabilities and desired remedy, the legal basis for the liability is limited to $250,000 for damages, but it does not provide for a remedy, the impact of any material individuals and small businesses15 separate Y2K cause of action. Its most defect, and the name of an authorized holding a net worth of less than relevant provisions are: negotiator for settlement or ADR. Within 30 days, the defendant Continued, next page

JURIS• Volwne 33 • No. 1 • Page 21 IRDA provides protection to sued a company that produced companies for Y2K disclosures, computerized cash registers and defined as "statements clearly software.27 The grocery store's system identified as being such a document, was only a few years old when it shut written in a tangible or electronic form, down every time it processed a credit and about the author's products or card holding an expiration date for From previous page services."19 years 2000 and 2001. As a result, the The IRDA also prevents admission store reported 105 such crashes in one $500,000. Government entities enjoy of Y2K disclosures to prove the week. The case was settled for immunity from punitive damages, accuracy or truth of such a statement, approximately $260,000. regardless of intent. with the exceptions of anticipatory Since that time, approximately 79 • Proportionate Liability: breach or repudiation of contract, and more cases have been filed 28 and it is Generally, courts are prohibited from bad-faith or fraudulent claims.20 It is estimated that many other cases have applying joint and several liability in interesting to note that admission of been settled.29 Considering the Y2K cases, and instead utilize such an out of court statement to prove number of potentially flawed proportionate lia bili ty.16 This truth certainly could be considered microprocessors sold in the U.S., the requirement prevents plaintiffs from hearsay.21 However, if the declaration number of lawsuits filed to date is seeking "deep pocket" defendants, is sought to prove only that a statement remarkably low. and limits liability to the percentage of was made, such as an awareness of The almost miniscule number of the defendant's fault in causing the Y2K compliance or proof of a specific lawsuits should raise suspicion among injury. Because this is a factual Y2K response process, several hearsay practitioners and prompt the following determination, a judge or jury must exceptions could be invoked. questions: Has the public figured out make specific findings to determine Considering the broad scope of that it can sue? Are plaintiff attorneys and apportion fault. If the defendant both the Y2K Act and the IRDA, it up to speed on the issue? Are local is found by the trier of fact to have would appear that most state Y2K judges being forceful in refusing Y2K manifested specific intent to cause legislation would be almost impotent. lawsuits, which would not be covered harm, or knowingly committed fraud, For the most part, the nineteen state in any written opinions? only then can he be found jointly and Y2K laws currently in force limit Though the level of litigation is severally liable. In cases with multiple liability and provide immunity to speculative, the types of claims are not. defendants where one is judgment­ government entities, which also are As a general guideline, the following proof, individual plaintiffs with a net echoed in the Y2K Act.22 types of lawsuits are expected to be the worth of less than $200,000 or PeIU1Sylvania has made an attempt most common: consumer product users can jointly to enact such legislation in its • Breach of Contract: Typically, and severally recover judgment from "Computer Date Failure" bill23 software is licensed by the company other defendants. Finally, defendants introduced in February, 1999 and again that created it, and the license serves that settle these claims are discharged in April. This bill potentially could be as a contract to bind both parties. As from contribution during the latter adopted as an amendment to Title 42 mentioned in the previous section on situation, which further demonstrates prior to the new millennium.24 Y2K legislation, courts will look to the the intent of Congress to settle claims. The Pennsylvania Y2K bill allows intent of the parties when the contract for damages against defendants who was formed, and will require specific Complementing the Y2KAct is the fail to properly detect, disclose, language before determining liability. Year 2000 Information Readiness and prevent, or remediate a computer date • Negligent or intentional Disclosure Act17 ("IRDA"). The basic failure25 that result in bodily injury to misrepresentation or fraud: These focus of the IRDA is to help businesses the plaintiff, physical damage to the claims will arise when computer prepare for Y2K and eliminate plaintiff's property, and costs to software or hardware companies readiness disclosures from the scope of reprogram or replace and test relevant intentionally conceal Y2K problems, or evidence.18 The IRDA applies to "Year computer equipment.26 All make affirmative statements that 2000 Statements," which are almost government entities are immune from software is compliant. Additionally, any corporate communication about liability. there have been claims where software Y2K planning or preparation; and companies should have known about "Year 2000 Readiness Disclosures," Litigation the Y2K problem and failed to act.30 which address each company's specific What is touted as the first Y2K case • Violation of consumer compliance. The main thrust of the ever filed involved a grocery store that protection laws: In addition to the

Page22 various state consumer protection faith. This case should serve as a statutes, the Magnuson-Moss preview to how judges will focus the Consumer Product Warranty Act 31 Because the Y2K resolution ofY2K claims on solutions, still is a powerful weapon for problem has not not blame. Additionally, it should individual plaintiffs. prove that just because a company • U.C.C. violations: Provisions of "hit," and may very claims Y2K problems, the courts will the Uniform Commercial Code not break down the defendant's doors discussing express warranties, as well well never, plaintiffs and break open its proprietary as implied warranties of information. merchantability and fitness for a are having a difficult The ability of defendants to offer a particular purpose will be especially patch, similar to the defendant's relevant in cases where contract time finding relief response in Peerless, further language is silent. As discussed complicates the issue of having a previously, the Y2K Act defers to the from judges wlw are present injury. In Issokson v. Intuit, intent of the parties and relies on Inc.,36 a case against the creator of federal and state law to fill in the unwilling to base a Quicken-a popular financial blanks. management software program-was An important note about Y2K final decision on an dismissed37 because Intuit created a litigation is that the injury hasn't free update to eliminate potential Y2K occurred in many cases, and instead anticipated injury. problems,38 not to mention the fact that licensees are attempting to recover for there was no present injury. remediation costs. Some courts have For the most part, Y2K litigation so held that these cases are speculative. how far a court will go to avoid a final far has focused on companies suing However, software companies that decision before an injury occurs. other companies. Issokson and his have thrown down the gauntlet and Peerless sued a software company for unsuccessful lawsuit and class action told customers that free "fixes" will not licensing non-Y2K compliant sofuvare. represent situations where an be provided-or have provided fixes The court noted that at the time the case individual seeks a claim against a to some customers and not others­ was filed, as well as during the present software company and the defendant has given rise to claims of anticipatory motion, all damages claimed were had the means to correct the situation­ repudiation and violating warranty of speculative because Y2K had not and eliminate the lawsuit. fitness for a particular purpose. arrived and the software was still But what happens when the Absent a contractual provision working. Regardless, the trial judge individual sues a distributor for requiring the computer company's allowed a stay in the case to allow products it does not produce? The voluntary remediation, which also is Synchronics to fix the problem, which answer shows how the Y2K Act may discussed in the Y2K Act,32 the was done through a software update be applied in state court claims by requirement of a present injury can be called a "patch," but part of that order individual plaintiffs, and should draw insurmountable. Because the Y2K allowed the plaintiff to access materials cheers from plaintiffs attorneys. problem has not "hit," and may very needed to test the Y2K update. In Johnson v. Circuit City,39 a class well never, plaintiffs are having a Synchronics claimed that it did not action lawsuit against several major difficult time finding relief from judges anticipate providing Peerless with retailers, including Circuit City, who are unwilling to base a final detailed technical information about its CompUSA, Staples, The Good Guys, decision on an anticipated injury. This software, and denied use of that OfficeMax, and OfficeDepot, was filed is compounded by the litigation material to the plaintiff-not just claiming non-Y2K compliant obstacles thrown down by the Y2K Act, because of the burden of time and electronics were advertised and sold as the need to seek settlement, use ADR, resources on the defendant, but also being millennium "safe."40 The or remediation by the defendant in the because counsel would have to be defendants sought to remove the case form of upgrading software or create present. Such supervision would then to federal court under the Y2K Act, but a Y2K upgrade "patch."33 "amount to a de facto deposition."35 the trial judge denied the motion, A noted Pennsylvania class action To remedy the situation, the court claiming that the Y2K Act does not case, Peerless Wall and Window allowed the plaintiff to submit one set preempt state court litigation. 34 Coverings v. Synchronics , provides of interrogatories focused on the However, defendants finally a preview of how anticipatory Y2K technical questions, which the succeeded in removal,4 1 and it is claims may be handled, and shows defendant had to complete in good Continued, next page

JURIS• Volume 33 • No. 1 • Page 23 and the defendant sits idly, the and federal courts, as well as the manufacturer is left with a dead limited technical knowledge of assembly line and could go out of attorneys and judges. Reliance on business. expert testimony could be If the manufacturer and the extraordinarily high. software company would have However, the main premises of From previous page discussed mediation or arbitration most Y2K claims-breach of contract, prior to the shutdow n, a simple fraud, and warranty-are grounded in expected to be the first attempt to limit remedy could have been proposed, a well-settled principles of law. The lawsuits under the Y2K Act.42 contract signed, and the problem question remains whether the technical As a closing note to this section, it would be solved-all without violating issues, which will provide should be noted that expert testimony the Y2K Act. considerable power to expert will be crucial in Y2K cases to clarify The movement to use ADR is witnesses, will emerge as the deciding technical issues. A recent U.S. Supreme growing« among trade associations, factor in many cases, or whether well­ Court decision provides trial courts government officials, and even settled legal principles will cut through with great discretion in determining attorneys. In fact the first Y2K case that the zeros and ones. the reliability, and ultimately the resulted in a "decision" on the merits, admissibility, of expert testimony ASE Limited v. INCO Alloys, was Julian Neiser is a third year evening based on "technical" and "other conducted before an arbitrator in student and Senior Editor elect for the specialized" knowledge.43 Allegheny County.45 2000-2001 academic year. ASE is significant because it shows ADR how ADR can effectively decide the When considering the potential merits of Y2K claims, and how this impact of the Y2K problem on decision mirrors the same results businesses, and the limitations placed found in federal and state claims filed on them by federal legislation, using so far. The case involved a $3.9 million Alternative Dispute Resolution is a Y2K remediation claim, where INCO logical remedy. attempted to break a contract requiring Using ADR, such as arbitration or ASE to develop and install computer mediation, not only saves money for hardware and software. INCO both sides because it is fast and usually claimed that if ASE's products were more economical, it also will prevent used, it would cost approximately $3.9 a previously good business million to conduct Y2K remediation. relationship between a business and its Because the contract did not software company from destruction. specifically address Y2K remediation, ADR also could prevent disaster from the arbitrator decided ASE would not Endnotes 1 "Lawyers wi ll get in there and start feathering occurring. be responsible for the costs. The their pockets," said Tom Oleson, an analyst at During the previous discussion process was much faster through ADR, International Data Corp. litigation cannot begin until 30 days­ 2 Senators Back Y2K Li ti gation Reform (last Y2K Act, probably arrived at the same modified Feb. 14,1999). , quoting Sen. Bob Bennett (R­ can suggest ADR, or attempt Conclusion UT) "There could be as much as a trillion doUars in liability (from the Y2 K problem). If trial remediation to buy an additional 60 The flurry of Y2K cases and lawyers loved the tobacco settlement, they are days before a lawsuit. legislation over the past few years going to go bananas over this one, unless we But what happens during the 90 provide a glimpse of things to come. can find ways to deal w ith it in telligently in days that the defendant has to act? But until we see what damages Congress... " 3 Julian Neiser, Comment, "Predicting Year 2000 Consider the following scenario: A actually occur, and the extent of Y2K Claims Today" 1Duq.B.L.J121 (1999). small manufacturer's assembly line is failure, the current policies and 4 A Global Guide To Y2K, Business 2.0,)an. 1999, not Y2K compliant. It stops working decisions will not truly be tested. This p.52. 5 21-JUN Pa. Law. 44, •44, 61999 Pa. H.B. 1258 on January 1, 2000. If the Y2K Act problem is compounded by a lack of (SN)(lntroduced, April 13, 1999) cooling period is stretched to its limit, specific Y2K precedent in both state (Endnotes contnued next page)

Page 24 lillBllY The price of liberty by Maria D. Comas

Q uery: what is ten years of your should pay this debt owed to a Cunningham were suspected of life worth? Should society bear the wrongfully imprisoned man. In a civil shoplifting a shirt from an Eddie Bauer burden of repaying a convicted but justice system that routinely clothing store in Maryland. They were innocent man for the time he lost with compensates for contract damages, detained for ten minutes as they his wife and children, for the property damages, and other tortious denied the security guards' psychological turmoil he endured, for conduct, it seems rather peculiar that accusations. They filed false the education that he was unable to the majority of jurisdictions are so imprisonment and defamation claims obtain, for the job that he had to give hesitant to compensate for the loss of against the store. One of them received up, and for all of his other liberty. $850,000, and the other two received opportunities lost? At least fifteen Consider the following. Alonzo $75,000 each. A total of one million 1 jurisdictions believe that society Jackson, Rasheed Plummer, and Marco Continued, next page

Endnotes, from previous page hardware timer, or electronic data in any form, with respect to handling of dates of calendar year 1999 or subsequent years. 7 Y2K Act, Pub. L. No. 106-37, 113 Stat. 185 (1999). 261999 PA H.B. 1258 (SN), 1(a)(1),(2). 8 Author note: This time period can be extended by consent of both 27 Produce Palace Int'] v. TEC-America Corp., et al., No. 97-330-CK parties. (Mich. Cir. Ct., Macomb Cty.) (fiJed June 12, 1997). 9 Under the Uniform Commercial Code or state equivalent. 28 . 1012 29 PricewaterhouseCoopers Y2K Litigation 1999 Mid-year Report. 11 See Paragon Networks Int'l v. Macola, Inc., No. 98CV0119 (Ohio C.P. 30 Women's Institute for Fertility et al v. Medical Manager Corp., No. Marion County Dec. 16, 1998). Class action lawsuit dismissed because 98602587 (N.Y. Sup. Ct. filed May 27, 1998). The complaint alleges that the contract specified that software was licensed "as is" and the licensor Medical Manager Corp. knew or should have known that, the software had no obligation to offer a Y2K-compliant version at no charge to at issue contained a Year 2000 problem and that the computer industry plaintiffs. As a result, there was a failure to state a claim in which relief has been aware of the computer problems associated with the change could be granted. The Y2K Act's passage would not affect such a ruling. of the century since at least the mid-1970s. 12 9 31 15 u.s.c. 2301. 13 Heather S. Heidelbaugh, "The Year 2000 Readiness & Responsibility 32 Discussed supra Act: A Review," . 33 A patch is commonly known as an upgraded version of current 14 5 software that addresses a specific problem. 15 Id., 5. A small business is defined under the Y2K Act as one having 341999 WL307963 (W.D.Pa.). fewer than 50 full-time employees. 35 ld. at 1. 16 Id., 6. See also, David M. Nadler and Geoffrey Bestor, "Ins and Outs 36 No. CV 73646 (Cal. Super. Ct.) (filed April 28, 1998). of the Y2K at Act," 27, 1999, for the same reason. 17 Pub.L.No. 105-271, 12 Stat. 2386 (codified as 15 U.S.C. 1 et seq. (1998)). 38 The Y2K upgrade patch by intuit eliminated claims of anticipatory 18 See also; "I...Rrr... DAh?!: Putting together the Year 2000 Information breach of contract, and was an adequate assurance of future Readiness and Disclosure Act," . 39 99-00054. 19 144 Cong. Rec. E. 2017, October 10, 1998, Vol. 144, No. 142. 40 The case was filed under the California Unfair Business Practices 20 4(a) Act and for False and Misleading Advertising. (Bus. and Prof. Code 21 FED. R. EVID. 801 (1998) 17500). 22 Author's note: It is unclear if the Y2K Act requires filing all claims in 41 It is unclear why the removal was granted. federal court. Some scholars have suggested this is the case, and at this 42 Office Depot agreed to post signs in its stores to warn consumers. point two cases have been removed from state court after initial resistance Another retailer settled the claim against it. Five more large retail chains by the trial judge. are stil I defending their claims. 23 1999 H.B. 1258 (SN) 43 Kumho Tire Co., v. Carmichael, No. 97-1709 (U.S. Mar. 23, 1999), 24 The general assembly will sit again this November. reversing an Eleventh Circuit Court of Appeals ruling that a trial court's 25 A present or future inability of a computer system, computer program "gatekeeping" obligation with respect to determining the reliability of or software, or internal hardware timer, to properly handle dates of expert testimony was limited to cases where the testimony was based calendar year 1999 or subsequent years, or An incompatibility between on "scientific" knowledge. the computer system, computer program or software, or internal 44 See . hardware timer and any other system, program, software, internal 45 No. AAA 55-199-0127-98-DEU (Nov. 18, 1998) (Wycoff, Arb.).

JUR1S •Volume 33 • No. 1 • Page 25 libBflV

convictions as well establish fair and provide for the adequate recovery of The price reasonable compensation for the damages by the exonerated, neither deprivation of liberty. Although fifteen does a sec. 1983 civil rights violation of lilierty states have adopted compensation claim against the prosecutor or the statutes, damage calculations vary.j state agency employing the Two states, New York and West prosecutor.9 A sec. 1983 action against Virginia, offer unlimited damages. the prosecutor does not provide relief From previous page Others assess damages according to a for the innocent in most instances formula that addresses time served, because the prosecutor acts in a quasi­ dollars for ten minutes of unjust lost employment, and attorneys fees; judicial function and is free to act upon confinement.2 while others set a maximum damages his own convictions, without A pregnant woman was beaten, cap regardless of the amount of time apprehension of personal 10 raped, and left for dead. The woman served. Each statute also contains consequences to himse!f. The state survived, the baby did not. Kevin elements that the exonerated agency employing the prosecutor also Green, the woman's husband, was individual must establish before he is protected against a sec. 1983 action convicted of the crimes and was will be compensated. absent the discovery of an official sentenced to 15 years to life in prison. An estimated 10,000 innocent government sponsored policy that 5 11 Green continually professed his people are convicted each year. promoted the civil rights violation. innocence to no avail. Convicted of Variables that have contributed to This absolute immunity is essential to one of the most inexcusable crimes, erroneous convictions include the criminal justice system and without Green was beaten and ambushed incorrect witness identification, it, a chilling effect towards prosecutors while in prison in an attempt to kill prosecutorial misconduct, and false would be created. 6 him. Sixteen years after his conviction accusations against the innocent. In lieu of ineffectual remedies, and sentencing, Green was exonerated Because so many variables exist in the states such as New York have when DNA evidence implicated a criminal justice system, there will attempted to provide relief for the serial killer for the crimes. He received always be errors in its operation. This exonerated through the creation of $10,000 from the State of California for discussion is not intended to be an moral obligation bills. Driving such his incarceration.3 A total of $10,000 attack on the system; however, in light legislation are horror stories like that for 8,409,600 minutes of unjust of the inherent defects caused by of Isidore Zimmerman who, at the age confinement. variability, legislation should provide of 19, was convicted of first-degree These two scenarios display the the convicted-innocent with an avenue murder for the death of a New York stark realities that an individual faces of recourse to recover for their lost City police officer. He was charged upon exoneration. Because California freedom? with supplying the guns used for the places a cap on recovery, Green could Without a compensation statute, an murder.12 In 1967, his conviction was only recover $10,000 for his wrongful individual who was wrongfully overturned after it was established that imprisonment of 16 years. Compared convicted of a felony or misdemeanor a key prosecution witness supplied to the three young men who were offense has four possible causes of false testimony. Before his release from unjustly confined for 10 minutes, this action to recover damages: false prison, Zimmerman had his head amount is inadequate; nevertheless, imprisorunent, malicious prosecution, shaved and ate his "last meal" as he Jackson, Plummer and Cunningham a civil rights viola ti on claim against the awaited his execution. Zimmerman were awarded 100 times as much in prosecutor, and a civil rights violation attempted to recover for this improper money damages and were confined claim against the government. Neither conviction, but he was unable to 8,409,590 less minutes. What is most a false imprisorunent nor a malicious recover; however, in 1984, 47 years disturbing to some is that only fifteen prosecution claim provide the after his conviction and 17 years after states offer compensation to victims of convicted-innocent with a form of his release, Zimmerman received an unjust imprisonment. If Green would redress. In order to recover, the award of one million dollars from the 13 have been imprisoned in a state claimant must establish the absence of state of New York. The catalyst for without this type of statute, he a privilege or actual malice.7 Because his recovery was a moral obligation probably would not have recovered conduct of the state officer effectuating bill. This bill waived New York's any damages. the arrest and convictions are judicially immunity and supplied the proper Because state legislatures are authorized, these elements are forum for Zimmerman's claim.H fiscally responsible to their practically impossible to prove.8 Special legislation, as well as constituents, they have attempted to Just as a false imprisorunent and wrongful conviction statutes, are create legislation to prevent erroneous malicious prosecution claim does not frequently vetoed.15 Because

Page26 lillB1'1¥

physical injuries, emotional or mental anguish, actual attorney fees and court costs, injury to reputation, the greater of actual lost wages or median family income for each year incarcerated, and any other damages directly related to the imprisonment. It also is suggested that these statutes provide for employment services or other social welfare services.22 States that have adopted unjust imprisonment statutes recognize the importance of providing a mechanism for automatic relief. While no one statute provides every situation, most do provide some type of relief for these individuals. It is completely possible that those are ideal situations that can only be addressed in an ideal society. However, formulas have been developed to compensate the wrongly imprisoned for their unjust incarceration. Some of these formulas are better for the claimant than others. The factors used in determining damages and the amount of damages vary widely. Factors include time legislatures are ultimately responsible Wrongful imprisonment statutes served, lost wages, pain and suffering, to their constituents, they may not essentially have two aspects to their and attorneys fees. Some states sponsor special legislation for fear of foundations: to identify the most provide for unlimited damages while appearing "soft on crime."16 However, appropriate defendant and to ensure others place a limit on recovery some legislators may pass moral that only the innocent recover. 20 These regardless of individual obligation bills in an effort to gain the statutes contain safeguards to ensure circumstances. 23 votes of the opposite political party or that only the factually innocent recover The following exemplifies these of a different segment of the damages. The state has a responsibility different recovery schemes using population.17 As a result, special to society to spend its money wisely, people who were incarcerated for legislation is very arbitrary and and that responsibility is met when between 2 and 2-1 /2 years as a model. factually specific to the lobbyist's case.18 only the factually innocent recover. If the claimant was imprisoned in one Developing a compensation Because convictions are overturned for of the seven states which places a cap statute may have a two-fold effect, procedural and/or constitutional on damages, he could recover as little providing a remedy for people who violations, an individual who is not as $5,000. 24 For example, Victor were unjustly imprisoned, and factually innocent may be released Ciancanelli, who was convicted of prosecutorial misconduct and civil from prison. Allowing a factually robbery, served approximately 2-1 /2 rights violations. A "uniform guilty defendant to recover would be years of his sentence before he was mechanism of redress for victims of irresponsible.21 granted a pardon of innocence. 25 wrongful imprisonment is a legitimate Upon exoneration, the innocent are Ciancanelli received $5,000 for his area of state-wide concern intimately deposited into a society where they unjust conviction and imprisonment connected with maintaining [and may not have any family, a job, or a pursuant to the California statute.26 enhancing] the quality and integrity of residence. It is suggested that unjust The court admitted that this sum may a prosecutorial system responsible for conviction statutes provide for not be adequate to compensate enforcing the state's penal code."19 financial compensation and Ciancanelli for his pecuniary loss. Additional policies may be created socioeconomic reintegration by Nonetheless, it noted that the in an effort to reduce misconduct or including the following in the increase efficiency. calculation of damages: loss of liberty, Continued, next page

JURIS• Volume 33 • No. 1 • Page 27 statement that the statutes are drafted When he did not contest the allegations The price and enforced in a manner that after given the opportunity to do so, furnishes recovery to the factually he contributed to his own conviction. of liberty innocent rather than the technically­ Similarly, a claimant charged with the not-guilty. Generally, the claimant wrong crime, but who did commit the must prove, by clear and convincing offenses leading to the improper evidence, that (1) he was convicted of charge, could not recover. 40 In these From previous page one or more felonies or misdemeanors, instances, the courts determined that sentenced to a term of imprisonment, the claimant brought about his and served all or part of his sentence; conviction when he engaged in (2) he was pardoned based on his unlawful conduct. He is "technically­ responsibility for increasing the innocence, his conviction was reversed not-guilty" of the prescribed charge, amount of damages lies with the and vacated based on his innocence, 27 but he is not innocent of committing legislature. or he was found not guilty at his re­ any crime. If Ciancanelli would have been trial; (3) he did not commit any of the The courts award damages when unjustly imprisoned in a different state, acts charged; and (4) he did not bring the claimant did not cause his such as Ohio, he would have recovered about his conviction by his own conviction. Where witnesses have considerably more damages. Damages conduct.34 provided incorrect identifications41 or in Ohio are awarded pursuant to a Courts have noted that the false testimony42 or the claimant statutory formula . That formula is as "linchpin" to recovery is innocence.35 received inadequate counsel at the follows: $25,000 per year incarcerated When statutes and courts use the original trial,43 courts have awarded and a pro rata share for portions of general criteria in their decisions to damages. These circumstances "do not years; plus costs, including attorney award damages, the totality of the rise to the level of the potentially more fees; plus lost income resulting from circumstances can be evaluated. For difficult situation[s] where the acts of arrest, prosecution, conviction, and example, when a claimant proved that a claimant may be intertwined with the 28 wrongful imprisorunent. In Fay v. he acted in self-defense, he was conduct of others as the proximate 29 Ohio , the claimant received permitted to recover. In Ohio, cause of conviction."44 $129,867.70 for his two-year, eighty­ although this claimant" committed the The legal profession and state day wrongful incarceration. The act charged,'' a self-defense claim legislatures should ask if they are following allocations were deemed exempted him from liability.36 A crime prepared to address the issue of appropriate and reasonable by the was not committed, and recovery was compensating the convicted-innocent. court: $55,547.90 for the incarceration; available. Conversely, a determination A new era of forensic and DNA $10,127.50 for attorney fees and costs; that the claimant is not guilty by evidence is emerging that will and $61,701 for lost income.30 reason of insanity is not afforded the inevitably lead to more overturned New York provides yet another same treatment. The court in this convictions for the innocent. recovery scheme. In Johnson v. State example reasoned that the word Programs, such as the Innocence of New York,31 Johnson's decedents "innocent" was not intended to Project,45 are establishing forensic and recovered $40,000 for his two-year encompass this finding.37 DNA evidence as the backbone for incarceration. New York sets forth no Whether or not the claimant exonerating the innocent. limit on recovery, but "a wards caused his conviction also is an issue The suspicion of compensation damages in such sum of money as the the courts have addressed. "[G]iving statutes for the innocent is justified, but court determines will fairly and an uncoerced confession of guilt, the enigma of these statutes can be reasonably compensate the removing evidence, attempting to resolved. A well-constructed claimant."32 The court determined that induce a witness to give false compensation statute could provide Johnson did not show any loss of testimony, and attempting to suppress for reasonable damages while income. It also stated that, although testimony or conceal the guilt of maintaining flexibility in its system of his daily freedom was taken away another" are noted examples of when redress. No state could ft.md a limitless from him, he had a criminal record and the claimant's conduct caused his compensation scheme, and it is not did not suffer the loss of reputation, conviction.38 When the claimant does suggested that they should. Thus far, humiliation, and pain that someone not deny all of the claims against him, states with statutes have not been without a record would endure.33 he cannot recover. Where it was defending against an onslaught of Each statute encompasses a alleged that the claimant illegally claims.46 The calculation for the mental variation of the elements necessary for possessed a gun, and he did not deny trauma and loss of liberty to a recovery. These elements reinforce the the allegation, he could not recover.39 convicted-innocent is unfathomable.

Page 28 lilJBllV

1 These jurisdictions are the states of California, !Hinois, low a, Maine, Maryland, New Hampshire, New Jersey, New York, North Carolina, Ohio, Tennessee, Texas, West Virginia, and Wisconsin, A new era farensic and the District of Columbia. For purposes of this paper, the District of Columbia is referred to as of a state. The federal government also has a wrongful compensation statute, 28 U.S. 2513. This discussion does not include the federal statute. and DNA evidence is 2 3 blacks awaraded $1 million in Eddie Bauer case, BALTIMORE SUN, Oct. 10, 1997, at 3C. See also Michael Higgins, Tough Luck for the lnnocent Man, A.B.A. J., Mar. 1999, at 47. emerging that will 3 Michael Higgins, Tough Luck for the lnnocent Man, A.BAJ., Mar. 1999, at 46. 4 See, CAL. PENAL CODE 4904 (West 1998); D.C. CODE ANN. 1-1221 (1981-1998); 705 !LL. COMP. STAT. ANN. 505/8(West1998); JOWA CODE ANN. 663A.1(West1998); ME. REV. STAT inevitably lead to more ANN. tit. 14, 8241(West1998); N.J. STAT. ANN. 52:4C-1 (West 1999); N.Y. CT CLMS LAW 8-b (McKinney 1999); N.C. GEN. STAT. 148-82 (1944-1999); OHJO REV. CODE ANN. 2743.48 (Banks­ overturned convictions Baldwin 1999); TEX. CONST CODE ANN. 51-c (West 1998); W. VA. CODE 14-2-13 (1966-1998); WIS. STAT. ANN. 775.05 (West 1999) for state damages amounts a.nd elements necessary for recovery. for the innocent. 5 C. RONALD HUFF ET AL., COl\TVlCTED BUT INNOCENT, at 61-62 (1996). 6 See, HUFF ET AL., supra note 5, at 68, 77-79. See also MARTIN YANT, PRESUMED GUILTY, at 139 (1991). 7 David Kasdan, A Uniform Approach to New York State Liability for Wrongful Imprisonment: A "No amount of money, no Statutory Model, 49 ALB. L. REV. 201, 209, 212 (1984). compensation of any kind can buy 8ld. at 209- 212. back a person's freedom."47 But that 9 28 U.S.C. 1983. 10 Kasan, supra, note 7, at 219 (citing, Bradley v. Fisher, 8 U.S. 335, 347 (1871) should not dissuade states from at least 11 Kasdan, supra, note 7, at 224. providing for economic losses, the loss 12 HUFF ET AL., supra, note 5, at 32. of consortium, attorney fees, mental 13 DE CHIARO, supra, note 17, at 295-296. anguish, and the other previously 14 Kasdan, supra, note 7, at 207. 15 See, Higgins, supra, note 3, at 52. See also, Kasdan, supra, note 7, at 201. suggested provisions. As stated above, 16 Higgins, supra, note 3, at 52. nothing is perfect. Simply put, the 17 See, Higgins, supra, note 3, at 50. ultimate question is this, are you 18 Kasdan, supra, note 14, at 216. 19 Kasdan, supra, note 7, at 237. willing to place a value on your 20 Kasdan, supra, note 7, at 233. freedom? 21 See, Fudger v. State of N.Y. , 131A.O.2d 136 (1987). In Fudger, the claimant was precluded from recovery because his conviction was overturned on double jeopardy grounds. The court reasoned Maria D. Comas is a third-year law that allowing recovery in this situation would be inconsistent with the scope of the compensation statute. student. 22 HUFF ET AL., supra, note 5, at 158. 23 Higgins, supra, note 3, at 48-49. 24 Id. 25 Ciancanelli v. Bd. Of Control, State of Cal., 56 Cal. Rptr. 738 (1967). 26 The statutory limit in 1967 was $5,000.00. The current statutory is $10,000.00. See CAL PENAL CODE 4904 (West 1998). 27 Ciancanelli, 248 Cal. App. 2d at 708, 56 Cal. Rptr. At 740. 28 Fay v. The State of Ohio, 610 N.E. 2d 622, 623(Ohio1988). See OHJO REV. CODE ANN. 2743.48 (Banks-Baldwin. 1999). 29 Fay v. The State of Ohio, 610 N.E. 2d 622 (1988). 30 Fay, 610 N.E. 2d at 623. 31 John.son v. The State of N.Y., 588 N.Y.S. 2d 722 (1992). 32 N.Y. CT CLMS LAW 8-b (McKinney 1999). 33 John.son, 588 N.Y.S. 2d at 725. 34 Supra, note 54. 35 See, Abney v. The State of N.Y., 515 N.Y.S. 2d 392 (1987). 36 See, Walden v. The State of Ohjo, 547 N .E. 2d 962 (1989). 37 See, Ebberts V. State of Control of the State of Cal., 148 Cal. Rptr. 543 (1971). 38 Moses v. The State of N.Y., 523 N.Y.S. ed 761 , 764 (1987). 39 See, fuvers v. The State of N.Y., 576 N.Y.S. 2d 175 (1991). 40 See, Gover v. The State of Ohio, 616 N.E. 2d 207 (1993). 41 Grimaldi v. The State of N.Y., 133 A.O. 2d 97, 100 (1987). 42 Solomon. v. The State of N.Y., 146 A.O. 2d 439, 442 (1989). 43 Ivey v. State of N.Y., 606 N.E. 2d 1360, 1364 (1992). 44 ld. 45 The Innocence Project is a program in whkh law students and journalism students investigate the cases of convicted individuals claiming innocence. Injtjative to Free the Innocent Expanding, (Nov. 20, 1997) http:/ /www.crirninaljustice.org/MEDIA/pr000095.htrn. 46 Higgins, supra, note 3, at 51. 47 fuchard Pretorius, The wrongfully imprisoned deserve more than apology, (visited Apr. 23, 1999) http:/ /www.jml.com/news/97 I Apr /jrn80070497.htrn.1 . 1

JURIS+ Volume 33 • No. 1 • Page 29 Hostile work environment: Undefinable Sexual Harassment? by AmyGregg

W hat is a hostile work environment? This is not an easy question to answer. There are many issues to consider before examining what comprises a hostile work environment sexual harassment. Constant changes in the business world have led to an increase in sexual harassment claims, raising many new questions about what constitutes a hostile work environment. One issue is the changing role of male and female employees in the work environment; this includes employee perceptions of their changing roles. An employer's inability to define what comprises a hostile work environment causes many problems for the business world. Conduct that creates a hostile work environment includes intimidating behavior. According to recent opinions by the United States Supreme Court, a hostile work environment is created by conduct that is sufficiently severe or pervasive to alter the conditions of the victim's employment. Thus, sexual harassment includes intimidating behavior that alters an employee's behavior in the work environment. employee. For this reason, male This perpetuates the idea that women Hostile work environment sexual dominance of the business world has are merely sexual objects rather than harassment is about power, control and resulted in a "glass ceiling" effect. competent workers and professionals suppression. This should not be a part According to recent articles on sexual equal to their male colleagues. Until a of an employment relationship. Sexual harassment, a sexually hostile clear definition for hostile work harassment can be directed toward workplace is one of the reasons women environment is developed, claims for both male and female employees and have had trouble breaking through the sexual harassment will continue to the harasser can be the opposite or glass ceiling into the ranks of corporate escalate. Because employers have no same sex. Nevertheless, most sexual management. Sexual harassment in idea what constitutes hostile work harassment cases involve a male being the form of a hostile work environment environment sexual harassment, they in a supervisory position over a female acts as a barrier holding women back. cannot develop policies defining what

Page 30 is inappropriate conduct for their when ... such conduct . . . has the employees. In addition, technological Because employers have purpose or effect of ... creating an advances have spurred more questions intimidating, hostile or offensive regarding what type of conduct no idea what constitutes working environment."2 constitutes harassment. E-mail and the Internet are being hostile work environment When the definition of "hostile used more often in the workplace. work environment" was introduced, When integrating these technological sexual harassment, they many factors were required for a systems into their businesses, showing of sexual harassment as a employers did not envision legal issues cannot develop policies result of a "hostile work environment." developing as a result of employee Origin.ally, the courts required proof by misuse of those systems. Because defining what is the totality of the circwnstances. Using obscene and perverse materials are this approach, the work environment easily transmitted across electronic inappropriate conduct for had to be so severe as to cause systems, and due to an expanding psychological instability to the "electronic work environment," sexual their employees. employee being harassed. A year after harassment claims are on the rise. The codification of the EEOC regulations, deluge of Internet pornographic and the case of Andrews v. City of obscene sites and employees who visit to decreased productivity. Employers Philadelphia was filed . The Third these sites while at work may create a and employees need to be able to work Circuit Court of Appeals held that in hostile work environment for other together to accomplish their order to claim hostile work employees who do not approve of or company's ultimate goals. Cohesion environment sexual harassment, "five are offended by such material. and trust are required in the workplace constituents must converge: (1) the Additionally, sending inappropriate if the business world is to flourish. An employees suffered intentional messages via e-mail may also create a operable definition of hostile work discrirnin.ation because of their sex; (2) hostile work environment. There will environment sexual harassment must the discrimination was pervasive and always be a new way to create hostile be developed so companies can return regular; (3) it detrimentally affected the work environments. New avenues of to the business at hand and get away plaintiff; (4) it would detrimentally commerce and communication from the constant battle over what affect a reasonable person of the same in.variably raise questions regarding constitutes this form of sexual sex in that position; and (5) the what connotes sexual harassment, harassment. existence of respondeat superior especially in the creation of a hostile According to Title VII of the Civil liability."3 work environment. Rights Act of 1964, "it shall be an Many of the ideas once thought unlawful employment practice for an necessary to establish the existence of Determining what conduct goes employer to fail or refuse to hire or to a hostile work environment have been too far and crosses the line of decency discharge any individual, or otherwise eradicated. In order to curb these is a difficult task for employers and to discriminate again.st any individual problems in today's businesses, there employees. Due to ambiguous policies with respect to his compensation, must be a set definition for hostile work and an absence of barriers that screen terms, conditions, or privileges of environment that everyone perverse and obscene materials, the employment, because of such understands and adheres to. workplace has become a feeding individual's race, color, religion, sex, or Moreover, the definition must clarify ground for sexual harassment suits national origin.."1 Sexual harassment every ambiguous term currently because of an ever expanding in the forms of both quid pro quo and causing confusion. In order to alleviate definition of hostile work hostile work environment began to be the constant fear of being charged with environment. Opposite sexes no defined as discrimination because the sexual harassment, employers and longer want to work together on conduct in question was of a sexual employees need to know where the projects or attend conferences together nature. The Equal Employment lines will be drawn with regard to their because of very real fears that Opportunity Commission ("EEOC") conduct. Due to constant changes in misstatements or innocent jokes will regulations state that sexual what defines a hostile work turn into a sexual harassment suits. harassment is "[u]nwelcome sexual environment, there is currently no clear These fears cause a lack of cohesion in advances ... and other verbal or definition of a hostile work upon the workplace and in many cases lead physical conduct of a sexual nature ... Continued, next page

JURIS• Volume 33 • No. 1 • Page 31 determination as to whether the that her work environment was abusive U ndefmable conduct is based on sex is of a sexual and hostile. In accordance, the court nature, both of which may lead to Title upheld the sexual harassment hostile sexual VII sexual harassment claims. work environment claim. Conduct of a sexual nature is most The foregoing incident harassment commonly the basis for claims. demonstrates how the courts have Included in this category are verbal extended the scope of hostile work sexual innuendoes, touching, asking environment sexual harassment. From previous page someone out on a date repeatedly after Whether the victim is male or female receiving a negative response, and the harasser is the same or opposite comments about physical attributes, sex, the victim can maintain an action authority under the agency sexual jokes, pornography and pin-up as long as it can be shown that the relationship in committing the tortious calendars. Conduct of a sexual nature conduct was brought about because of conduct.5 is commonplace and more easily gender and was sufficiently severe to EEOC guidelines set forth the identifiable. In contrast, conduct interfere with the employee's work concept of third-party sexual based on sex is a debatable topic. performance. Clarifying that sexual harassment that can also contribute to According to King v. Hillen, sex-based harassment claims can be based on the a hostile environment in violation of harassment does not involve sexual sex of the victim, in addition to conduct Title VII of the Civil Rights Act of 1964. activity or language but may give rise of a sexual nature, aids in beginning to Employers can be liable for harassment to Title VII liability if it is "sufficiently define hostile work environment­ by clients and customers. Clients are patterned or pervasive" and directed what it is or can be. not employees and employers have no at employees because of their sex.6 control over the operations of the Sexual harassment can come in Severe or Pervasive Conduct clients they are conducting business many forms. Intimidation and The next question that must be with. Neither does a client have an hostility toward women because they answered before an operable definition agency relationship with the employer. are women can obviously result from of hostile work environment sexual Therefore, none of the necessary conduct other than explicit sexual harassment can be developed is what criteria for respondeat superior are advances. lnFullerv.CityofOakland, is "sufficiently severe or pervasive" present. This leads to the conclusion the Ninth Circuit Court of Appeals with regard to conduct and how is it that since a client's conduct can create held that Fuller was subjected to determined to be such? hostile work environment sexual hostile work environment sexual harassment, respondeat superior is no harassment.7 Fuller was a female In order to determine whether or longer a requirement to set forth a police officer being harassed by a male not conduct is "sufficiently severe or claim. Recently, the United States colleague after informing him that she pervasive" to substantiate a claim of Supreme Court determined that an no longer wanted to date him. The hostile work environment sexual employer could be held vicariously male officer obtained Fuller's unlisted harassment, the conduct must be tested liable for the actions of supervisory phone numbers from police files after both subjectively and objectively. employees who have authoritative she had changed the number on two Moreover, to objectively determine a power over subordinates. occasions. After extracting the hostile or abusive environment, the numbers, he called continuously and totality of the circumstances must be The definition of hostile work left unsolicited messages. On one considered. This includes the environment sexual harassment set out occasion, he called and told her that frequency of the discriminatory in King v. Hillen has left many he was going to kill himself. In conduct and the severity. For example, questions unanswered. These addition to the phone calls and threats whether the conduct was physically questions must be answered before of suicide, the male officer ran Fuller threatening or humiliating or merely an hostile work environment will be and her new boyfriend off of the road. offensive utterance, and whether it understood and companies have an All of these incidents were sex based unreasonably interfered with the operable sexual harassment policy in but not of a sexual nature. They were employee's work performance. It is place. directed at Fuller after she refused objectively based on a "reasonableness" advances of her male co-worker. The standard for a person with very similar Sexual Conduct or Conduct Based on court concluded that all of the conduct characteristics or in the same situation. Sex in combination was sufficiently severe Subjectively, the perception of each Initially, there must be a to lead Fuller to reasonably believe individual victim must be considered

Page32 to determine whether the conduct · Single Occurrence substantiate a claim for sexual actually affected the victim's Can a single occurrence justify a harassment. Courts have held that conditions of employment. This is claim for hostile work environment rumors intended as offensive where the psychological injury can sexual harassment? Normally, utterances could be severe enough to come into play. If the victim is mentally harassment is more than a single cause inability to deal with present disturbed because of the conduct, it occurrence or isolated act of intentional working conditions. Therefore, there will be easier for the cmut to find that discrimination. A person must has been a shift in jurisprudence to the conduct actually was offensive to demonstrate a continuous pattern of conclude that a mere offensive the plaintiff. discrimination. However, an incident utterance can affect a person's Most sexual harassment claims that is severe may on its own give rise employment to such an extent that it involve some form of sexually to a claim of hostile work environment. can substantiate a claim for hostile offensive language, pornographic Courts are changing their view work environment sexual harassment. material, off-color or sexual jokes, regarding hostile work environment Defining hostile work environment is profanity, degrading speech, touching, sexual harassment. The gravity along very difficult. When an element, such offensive pin-ups, requests for dates or with the frequency of the incidents are as conduct that is "severe or even suggestive looks. This type of now being considered when pervasive," cannot be defined because conduct can be highly offensive to determining if the conduct was severe the factors used to determine the extent anyone who seeks to deal with fellow enough to affect an employee's work or scope of that element are being employees and clients with performance. Requiring that a set determined by the element itself, there professionalism and without barriers number of incidents be committed is no possibility of extracting a straight of sexual differentiation and abuse. before a hostile work environment can forward definition. It is impossible to be found would be error on part of define something by using the word Frequency courts. A plaintiff bringing a claim or term to define itself, which is what In DeAngelis v. El Paso Municipal under Title VII will not prove the courts are trying to do. Because of Police Officers Ass'n, a female officer harassment or the existence of a hostile this, the courts are left with the was satirized in the association's working environment merely by responsibility of deciding what newsletter. Within a two and one-half alleging a set threshold number of conduct is "severe or pervasive," and year period, four derogatory references incidents. Therefore, it is possible to they are indecisive and inconsistent to DeAngelis appeared in the bring a claim with the occurrence of a with each other. Conduct that is newsletter, none of which were sexual single act. However, this causes a considered severe or pervasive in one in nature. The references were based problem in trying to determine what circuit may not be in another circuit. lf solely on the fact that DeAngelis was "severe or pervasive" conduct is. To the courts cannot decide this issue, a woman. DeAngelis claimed that the do so, one must consider the frequency then how are employers and articles were humiliating and that they of the conduct, but should that include employees to know when conduct is affected her self-esteem, deterring her a single incident? It may include a severe enough to withstand a hostile from applying for a promotion. single act if the incident is severe work environment sexual harassment However, her work performance enough, but severity is not what is claim? remained good. The Fifth Circuit being defined. Is it possible to define Court of Appeals opined that, because a term when using that same term in Unwelcome Conduct her work performance did not suffer defining one of the factors used in Another issue raised by the hostile and the working conditions were not defining the original term? The answer work environment definition set forth disadvantageous, the articles, because to this question would seem to be a in King v. Hillen is, how to define of their infrequency, were not resounding no. unwelcome conduct. The threshold for sufficiently severe to create a hostile determining what conduct is work environment.8 Mere Offensive Utterance unwelcome is whether it was The Fifth Circuit Court of Appeals The same problem arises when trying uninvited. Determining whether the based its determination on the to determine whether a mere offensive conduct was uninvited is a subjective frequency of the conduct and the utterance is enough to constitute a standard, because it depends on how articles being mere offensive hostile work environment claim. the actual victim perceived the utterances. The use of these factors in Verbal conduct alone can be the basis conduct. Since people perceive determining "severe or pervasive" of a successful hostile work conduct differently; there is no way to raises additional questions. environment claim. The utterance, actually decide what and when however, must be severe in order to Continued, next page

JURIS• Volume 33 • No. 1 • Page 33 is whether the conduct interferes with of the work relationship. The harassed Undefmable work performance. This element goes employee may not feel comfortable hand in hand with whether the working with a fellow employee who sexual conduct is severe or pervasive because acted inappropriately, and then job those are the factors used to help performance may suffer because of the harassme11t determine if performance was awkwardness between them. hindered. Although no longer a Employers need to take extra required element of hostile work precautions when having work related From previous page environment, evidence of social functions. Many employees do psychological injury is admissible in not realize that work rules are in effect conduct is universally unwelcome. determining whether the victim was at company social functions or parties, Should dress or actions outside the actually affected by the harassing or and employees who would not think workplace be considered when hostile conduct. In addition, the of acting in an offensive manner at deciding whether the conduct was Reasonable Person Standard comes work may lose their good judgement unwelcome? According to the Federal into affect under this element. when they are in social settings Rules of Evidence, in cases dealing Deciding whether the conduct is severe involving alcoholic beverages. with sexual misconduct, evidence of or pervasive is very difficult to Employers are still responsible for the past sexual conduct is inadmissible. determine. The determination should conduct of their employees because Federal Rule of Evidence 412 states that be conducted on a case-by-case basis they are still within the scope of their evidence offered to prove that any on how the actual victim perceives the employment or have an agency alleged victim engaged in other sexual conduct with respect to the relationship. Harassment that occurs behavior [or] ... any alleged victim's surrounding circumstances and by at company parties can lead to sexual predisposition [is inadmissible] applying how a reasonable person in interference with job performance as ... [unless the] probative value a similar situation would react. The well, because of feelings of substantially outweighs the danger of reasonable person standard is a intimidation on the part of the harassed harm to any victim and of unfair gender-neutral standard applied to a employee when having to deal or work prejudice to any party. Evidence of an person with the same fundamental with the harasser. Therefore, no matter alleged victim's reputation is characteristics. where the harassment takes place, it admissible only if it has been placed can and probably will have an effect in controversy by the alleged victim.9 The harassment does not have to on the harassed employee's work occur in the workplace for it to affect performance, as it would affect a The Eighth Circuit Court of or interfere with work performance. reasonable person in the same Appeals held that an individual's Functions or social events that are situation. private life is just that, and what a work-related but take plac~ outside of Hostile work environment has person does outside of work has no the workplace are filled with instances been expanded to such a great extent relation to sexual advances made on of inappropriate conduct. Employees that it will never be contained in a an employee while within the work harassed at work-related functions can simple definition. Complex questions environment. If an employee has bring sexual harassment suits against are continuously being raised, and the verbally rejected advances or employers because the function is part answers are not simple. The workplace consistently shows resistance to all will never be the same since employers advances, then that employee has and employees are growing demonstrated unwelcomeness. Once Since people perceive increasingly worried about whether aversions to sexual advances or other what they do and say will be construed offensive conduct have been made conduct differently; there as sexual harassment or creating a known, no employee should be hostile, abusive or offensive work subjected to continuing harassment, is no way to actually environment. Productivity and regardless of their dress or actions camaraderie in the workplace will outside of the workplace. decide what and when continue to suffer until the courts and is legislature determine that enough is Interference with Work Performance conduct universally enough. Aline must be drawn in order According to King, the final unwelcome. to define hostile work environment element of a hostile work environment sexual harassment.

Page 34 ------~ A constitutional rjght to physician-ms~ted suicide

by Peter C. Ibe

H umans and their ancestors relationships, drawing the curtain on arise in some cases of terminally ill have recognized the sanctity of life the most illustrious careers, and patients who are reduced to a state of from the beginning of time. Presently, merciless! y extinguishing the vegetative existence, possessing little virtually all human cultures and enjoyment of life. In short, death is or no cognitive powers, with little societies share the belief that life is holy, generally dreaded and feared by chance of survival. The lives of some precious and invaluable. This explains virtually every hwnan being. of these terminally ill patients are often why hwnan life is so highly regarded, Despite the precious nature of life full of chronic and unbearably well protected, and greatly cherished. and the tragic nature of death, there are excruciating pains. Some of these ln short, hwnan beings believe that life times when life is arguably worse than patients maintain their existence solely is good. death. Such is true when life has so through artificial life-support At the opposite end of the deteriorated that one cannot be truly mechanisms. While some dying spectrum is death, which often strikes said to be living a life, but could more patients Live in this painful state due without warning, ending human appropriately be said to be enduring endeavors, the most precious of life or living death. Situations like this Continued, next page

Sexual Harassment Since the mid-1990s, courts have whatsoever. The "because of sex" arm there is a new twist or wrinkle been attempting to change the mindset of hostile work environment looks like hindering the defining process. This of what sexual harassment is in the gender discrimination and not sexual is a never-ending cycle. A hostile work workplace. Whether discussing quid harassment, so why not just bring a environment is like a disease in that it pro quo or hostile work environment, claim for sex discrimination instead of can have many symptoms which may both types should be interpreted by the a claim for sexual harassment? If we change over time, but all of which stem courts to either adhere to the terms that I are going to include "because of sex" from the same root-bias because of a these categories fall W1der or change conduct as creating a hostile work protected status, in this case, gender. the term to encompass what hostile environment, we should change the work environment has become-an categoryfromsexualharassmenttosex Amy Gregg is a 1999 graduate of undefinable form of harassment. harassment. It would be easier to place Duquesne University School of Law. Sexual harassment connotes both arms of hostile work environment harassment that occurs from conduct W1der a category so termed. Endnotes that is sexual in nature. The courts, in All the elements required to prove trying to define hostile work hostile work environment are L Civil Rights Act of 1964 ' 703 (a)(l), 42 U.S.C. '2000e-2(a)(l). environment, have expanded sexual themselves vague and difficult to 2. 29 C.FR ' 1604.11 (1985). harassment far beyond what it was define. Since the elements themselves 3. Andrews v. City of Phila., 895 F2d 1469, meant to encompass. Hostile work cannot be determined, there is no 1482 (3rd Cir. 1990). environment includes conduct possible way to define a hostile work 4. King v. Hillen, 21 F3d 1572, 1580 (Fed . Cir. 1994). directed at people because of their sex environment. The constant changes in 5. Bonenberger v. Plymouth Twp., 132 F.3d orgender,oranyotherprotectedclass. the business world make the 20, 26 (3rd Cir. 1997). Falling wider these categories are any determination even harder and more 6. Id. at 1583. 7. Fuller v. City of Oakland, 47 F3d 1522 (9th incidentsthatoccurbecausethevictim impossible. This form of sexual Cir. 1995). is male or female, regardless of harassment will never be defined 8. DeAngelis v. El Paso Mun. Police Officers whether the conduct is sexual in nature J because too many questions regarding Ass=n, 51 F.3d 591 (5th Cir. 1995). or has any sexual connotations itareW1answerable,andateverytum 9. Fed. R Evid. 412

JURJS • Volume 33 • No. 1 • Page 35 Several Supreme Court decisions regarding the right to privacy, such as Roe v. Wade,4 and Griswold v. ... American legal Connecticut,5 have indicated that an individual has the right to make tradition has always intimate and fundamentally personal decisions free from State intrusion. recognized an Proponents therefore argue that the right of a dying patient to physician­ individual's right to From previous page assisted suicide flows from this right to make intimate and personal control one's own body decisions without state intrusion and to illness, others endure such an that an individual has a free from governmental existence as a result of being maimed cons ti tu tionally protected liberty or irreparably injured. interest under the Due Process Clause interference or Due to quality of life of issues, the of the Fourteenth Amendment. Since unlikelihood of their recovery, and the this liberty interest includes "the right intrusion. excruciating nature of their pain, many to define one's own existence, of have argued that these patients are meaning, of the universe, and of the entitled to a constitutionally protected mystery of human life,"6 this liberty Recently the Supreme Court has right to physician-assisted suicide. interest includes a patient's right to addressed these arguments in favor of Should they wish to terminate their physician-assisted suicide. If a the constitutional right to assisted miserable existence and die with patient's liberty interest includes the suicide. In Cruzan v. Director, Missouri dignity? This essay considers the right to define the patient's own Department of Health/ the Supreme arguments in favor of a conception of existence and of the Court considered the issue of whether constitutionally protected right to meaning of, and mystery of human life, the Constitution "grants what is in physician-assisted suicide, in light of this liberty interest must necessarily 1 common parlance referred to as a 'right recent United States Supreme Court's I include a patient's right to decide his to die."'8 The Supreme Court did not decisions in Cruzan v. Director, or her time and manner of death. go as far as recognizing a constitutional 1 Missouri Department of Health ; Another safeguard of individual right to die, but rather assumed that 2 Washington v. Glucksberg ; and Vacca liberty is the Equal Protection Clause "the United States Constitution would v. Quill.3 of the Fourteenth Amendment that grant a competent person a Those who argue that a dying prohibits a state from denying to any cons ti tu tionall y protected right to patient has a constitutional right to person within its jurisdiction the equal refuse lifesaving hydration and physician-assisted suicide often base protection of the laws. In other words, nutrition."9 In this case, Nancy Cruzan their arguments on the right to one's states should treat people who are was in persistent vegetative state with bodily autonomy, the right to privacy, similarly situated in relevant respects, little or chance of survival. Her parents due process liberty interests, and equal similarly. Many state statutes prohibit wanted to discontinue the life support protection. patients from obtaining physician­ mechanism to which she was attached The argument for a right to one's assisted suicide, but permit dying but could not because under Missouri bodily autonomy contends that patients on life support mechanisms to law, a person wishing to discontinue American legal tradition has direct the withdrawal or treatment to an incompetent patient always recognized an individual's discontinuation of the life support must present clear and convincing right to control one's own body free mechanism. Some argue that those evidence that such a discontinuation from governmental interference or states statutes treat similarly situated was in accordance with the patient's intrusion. One is free to treat one's own people (terminally ill patients on life­ wishes. Cruzan's parents challenged body as one pleases; one is free to support, and those who are not on life the constitutionality of this statute but accept or refuse medical treatment, and support) differently, in violation of the the Supreme Court upheld its validity. so on. Moreover, it is argued that dying Equal Protection Clause. Thus while The Supreme Court began its patients have the right to control the dying patients on life-support can end analysis by referring to the tort concept manner, and time of their death with­ their lives, dying patients who are not of battery that protects a person's out governmental interference and that on life support are forbidden from interest in his bodily integrity and this right encompasses the ending their lives through assisted freedom from unwanted touching. An right to physician-assisted suicide. suicide. individual has the right "to the

Page36 treatment. Since the common law concept of informed consent does not differentiate between curative and either life-sustaining or lifesaving medical treatment: It requires a patient's consent before any medical treatment is administered, whether it is lifesaving or not. Therefore, the Supreme Court concluded that the doctrine of informed consent, which is grounded in the right to bodily autonomy, provides an individual with the right to refuse either life­ sustaining or lifesaving medical treatment. The difficulty of Cruzan's case is that she is not only on a life support mechanism, but also incompetent and in a vegetative state. She has lost virtually all her cognitive powers and

... While dying patients on life support can end their lives, dying patients who are not on life support are forbidden from ending their lives through physician­ assisted suicide.

could not consent to either the continuation or discontinuation of the possession and control of his own a surgeon who performs an operation life support mechanism. Cruzan's person, free from all restraint or without his patient's consent comm.its parents sought to discontinue the life interference of others, unless by clear an assault, for which he is liable for support mechanism, but since she did and unquestionable authority of law." 10 damages."11 not have a living will authorizing such Accordingly the Supreme Court From the right to bodily integrity discontinuation, Missouri courts opined that this right to one's bodily and the concept of informed consent, integrity is the source of the the Supreme Court inferred that an refused to permit the discontinuation requirement for a patient's informed individual has a right not to consent of her life support. The Supreme Court consent before medical treatment is to, or to refuse medical treatment. agreed with the Missouri courts that administered to the patient. Under this Further, they reasoned that if an Missouri's clear and convincing concept of informed consent, "every individual has the right to refuse evidence requirement comports with human being of adult years and sound curative treatment, it follows that an the United States Constitution. mind has a right to determine what individual has the right to refuse either Moreover, the Supreme Court opined shall be done with his own body; and life sustaining or lifesaving medical that Missouri has a legitimate interest Continued, next page

JURJS •Volume 33 • No. 1 • Page 37 ~~------~

right to refuse lifesaving hydration and The Supreme Court began its Due Constitutional nutrition."14 The Supreme Court's Process analysis by tracing the asswnption, that a competent person treatment of suicide in Anglo­ ri!ilit to has the right to refuse life-sustaining American legal history and tradition, medical treatment, was interpreted by finally concluding that, despite the fact pllysician­ proponents of physician-assisted that contemporary attitudes toward suicide as offering a glimmer of hope. suicide have changed, [O]ur [Anglo­ ass1sted suicide Since the Court would, in the American] laws have consistently appropriate case, uphold the right to condemned, and continue to prohibit, physician-assisted suicide, ending or assisting suicide. Despite changes in From previous page refusing life-sustaining medical medical technology, and treatment is nothing more or less than notwithstanding an increased in the protection and preservation of assisted suicide. However, this emphasis on the importance of end-of­ hwnan life and that it may legitimately glimmer of hope, was short-lived as it life decision making, we [Anglo­ seek to safeguard the "personal was promptly extinguished by two Americans] have not retreated from 18 element" of the choice between life and recent Supreme Court decisions in this prohibition. 15 death. This deeply rooted personal Washington v. Glucksberg, and Vacco The Court concluded that the right 16 decision is protected by requiring a v. Quill. to assisted suicide is not a fundamental 17 higher evidentiary standard of a third In Washington v. Glucksberg, the liberty interest. The Court also stated party asserting that a terminally ill plaintiffs argued that the Fourteenth that: patient has consented, or would Amendment Due Process Clause, and [M]any of the rights and privileges 'consent to the withdrawal of lifesaving the liberty interests which it protects, protected by the Due Process Clause medical treatment. The Supreme provide has a constitutional right to sound in personal autonomy, [this] Court then held that "Missouri has physician-assisted suicide to a does not warrant the sweeping permissibly sought to advance these mentally competent terminally ill conclusion that any and all important, interests through the adoption of a adult. Rejecting this argument, the intimate and personal, decisions are so 'clear and convincing' standard of Supreme Court held that the protected.19 proof to govern such proceedings."12 purported right to physician-assisted suicide is not a fundamental liberty The Supreme Court also indicated It was further stated that: interest entitled to constitutional that Cruzan should not warrant the In swn, we conclude that a State may sweeping conclusion that there is a apply a clear and convincing evidence constitutional right to die or to assisted standard in proceedings where a The Supreme Court suicide. According to the Supreme guardian seeks to discontinue Court, "we [the Court] were in fact nutrition and hydration of a person also indicated that Cruzan more precise: we assumed that the diagnosed to be in a persistent Constitution granted competent vegetative state ... [M]any courts should not warrant the persons a 'constitutionally protected which have adopted some sort of right to refuse lifesaving hydration and substituted judgment procedure in sweeping conclusion that nutrition.'"20 situations like this, whether they limit Next, the Supreme Court analyzed consideration of evidence to the prior there is a constitutional the Washington statute, banning expressed wishes of the incompetent assisted suicide, under the rational individual, or whether they allow right to die or to basis test and found that the state has more general proof of what the a legitimate interest in protecting individual's decision would have assisted suicide. human life. Washington was found to been, require a clear and convincing have an interest in protecting the 13 integrity of the medical profession [by standard of proof for such evidence. protection under the Due Process Clause. At issue in this case was the preventing doctors from becoming Based on its analysis of the tort application of the Washington state killers rather than healers]. "The state concept of battery and the concept of statute prohibiting assisted suicide, has an interest in protecting vulnerable informed consent, the Supreme Court under the rational basis test, the groups-including the poor, the conclusively assumed that "the Supreme Court held that this statute elderly, and disabled persons-from 21 Constitution would grant a competent was rationally related to a legitimate abuse, neglect, and mistakes." Since person a constitutionally protected governmental interest. members of these groups could be

Page38 forced into accepting assisted suicide commit suicide, has the specific intent due to their vulnerability, the state has to commit suicide. A doctor who Endnotes a legitimate concern that permitting provides such a service specifically assisted suicide may degenerate into a intends the patient to die from the 1 497 U.S. 261 (1990). slippery slope in which involuntary lethal medication prescribed by the 2 117 S. Ct. 2258 (1997). euthanasia could become rampant. doctor. In emphasizing this difference 3 117 S. Ct. 2293 (1997). Given the legitimate state interests, the in causation and intent, the Court 4 410 U.S. 113 (1973). Court held that Washington's ban on recognized that there is a big 5 381U.S.479 (1965). 6 Planned Parenthood v. Casey, assisted suicide was reasonably related difference between killing and letting 505 U.S. 833, 851 (1992). to their promotion and protection of die. 7 497 u .S. 261 (1990). these interests. Although virtually all human 8 Id. at 279. In Vacca v. Quill,22 the New York beings believe in the sanctity of life, 9 Id. ban on assisted suicide was challenged and are united in their abhorrence and 10 Id. at 269, citing, Union Pacific R. under the Equal Protection Clause of dread of death, proponents of Co. v. Botsford, 141 U.S. 250, 251 the Fourteenth Amendment. The New physician-assisted suicide argue that (1891). York Statute allows terminally ill the deterioration of the life quality 11 Id. at 269, citing, ShJoendorff v. patients on life support systems to entitles patients to physician-assisted Society of New York Hospital, 211 direct the removal of such systems, suicide. Because death is often more N.Y. 125, 129- 130, 105 N.E. 92, 93 (1914). resulting in the patients' death, but humane and more dignified than 12 Id. at 282. does not permit terminally ill persons continued vegetative existence, in 13 Id. at 284-285, see generally, In re that are not on life support to hasten these situation, proponents argue that Gardner, 534 A.2d 947, 952-953 (Me. their death by directing the physician-assisted suicide is more 1987); Leach v. Akron General administration of lethal drugs. It was humane. Medical Center, 426 N.E. 2d 809, 815 therefore argued that this statute treats In Cruzan,24 the Supreme Court (1980) similarly situated persons-terminally assumed that the constitution would 14 Id. at 279. ill patients on life support and those grant a competent person the right to 15 117U.S.2258(1997). that are not on life support­ refuse lifesaving medical treatment. In 16 117 U.S. 2302 (1997). differently, in violation of the Equal its later decision, when faced with the 17 117U.S. 2258 (1997). 18 Washington v. Glucksberg, 117 Protection Clause. The Supreme Court issue of whether a dying patient has a S.O. 2258, 2267. disagreed with this argument; constitutional right to physician­ 19 Id. at 2271, citing, San Antonio v. however, it noted that under this assisted suicide, the Supreme Court Rodriguez, 411U.S.1,33-35 (1973). statute, "[e]veryone, regardless of unequivocally held that a dying 20 Id. at 117 S.O. 2258, 2269, citing physical condition, is entitled, if patient has no such constitutional Cruzan, 497 U.S. at 279. competent, to refuse unwanted right under the Due Process Clause. 21 Id. at 2273. lifesaving medical treatment; no one is The Supreme Court also pointed out 22 117 S. Ct. 2293 (1997). permitted to assist a suicide."23 Since that refusing livesaving medical 23 Id. at 2298. this statute generally applies treatment and assisted suicide are 24 497 U.S. 261 (1990). evenhandedly to everyone, it does not fundamentally different, and as such, 25 Id. 26 117 S. Ct. 2258 (1997). violate the Equal Protection Clause. the Equal Protection Clause is not 27 117 S. Ct. 2293 (1997). More importantly, the Supreme Court, violated when a state permits the relying on the principles of intent and former and prohibits the latter. causation, distinguished between Based on the Supreme Court's assisting suicide and withdrawing jurisprudence, especially in Cruzan,25 lifesaving treatment. Glucksberg,26 and Vacca v. Quill,27 it When a life-sustaining medical can be unequivocally stated that even treatment is withdrawn, a patient dies though the debate on the issue of from an underlying pathology, physician-assisted suicide has not whereas in cases of physician-assisted been completely foreclosed, a dying suicide, the patient's death is caused patient does not have a constitutional by the lethal medication prescribed by right to physician-assisted suicide the physician. A patient who refuses under the United States Constitution. life-sustaining medication may not necessarily have the specific intent to Peter C. lbe is a 1999 graduate of commit suicide, whereas a patient who Duquesne University School of Uiw. procures the aid of a doctor in order to

JUR.!S •Volume 33 •No. 1 • Page 39 The 1999-2000 Academic Year is a Lawyer About Ethics" which including their annual Soul Food a very busy and exciting one for featured Stanford Law Professor, Sampler. March will feature the various constituencies here at the Law William H. Simon, was held. Annual Law Alumni Reunion dinner School. In September, the Alumni and the CSO's Interview Skills Relations & Development Office November featured two very Workshop and Mock Interview coordinated Duquesne Law Parents & exciting programs: "President Ford's Program. Plans are also underway for Spouses Council Programs and the Fall Pardon of President Nixon" with key a law firm management program for Alumni Reception. The Career members from both administrations current students and recent graduates. Services Office (CSO) launched a busy participating (November 12th); and In April we will have the Duquesne fall recruiting season and conducted an "Generations Together: Celebrating 75 University Downtown Alumni interviewing skills workshop. Various Years of Women Graduates of Luncheon, the Law Alumni Mentoring student organizations kicked off the Duquesne University School of Law" Program reception, and the Women's new school year by sponsoring (November 16th). November also saw Law Association's annual Woman of programs for first year students and by the launching of the Law Alumni the Year Award Reception. The CSO beginning to invite speakers from Mentor Program with "Meet Your is planning to hold a seminar on various practice groups to speak to Mentor" week. On November 20th, Alternative Careers. Also in April, the students. the Career Services Office, in Student Organizations Office will be conjunction with the Law Alumni coordinating Diversity Day events. The CSO started the month of Relations and Development Office, While students are taking exams, the October with a First Monday in hosted a program titled "Legal Law Alumni will be enjoying their October program which called Marketing Overview for the Law annual golf outing at the Fox Chapel attention to the problems of housing Student and New Lawyer." In Golf Club on May 15th. In addition to and homelessness nationwide and in addition, the Law Alumni Relations all of these activities at Duquesne Law Allegheny County. In addition, the and Development Office introduced a School, the law school also regularly CSO hosted nationally known speaker line of specially-designed Duquesne conducts CLE programs. For more Kimm Walton, author of the books Law School clothing just in time for the information about upcoming CLEs, "Guerilla Tactics for Getting the Legal holidays. contact Kathy Koehler, faculty Job of Your Dreams" and "America's secretary, at (412) 396-6282. Greatest Places to Work with a Law Spring classes resumed on January Degree." October was a very active 10, 2000, and a number of events are If you would like additional month for the student organizations. already planned for the second half of information on any of the Career ADR held its Negotiation Competition, the school year. In January, the CSO Services Office or Student Trial Moot Court conducted its in­ conducted a seminar on Judicial Organizations Office events, or if you school competition, the Women's Law Clerkships, and ground breaking is are interested in participating in a Association hosted various activities in scheduled to begin on the new program, please contact Ella Kwisnek, recognition of Domestic Violence addition to the law school. An Assistant Dean for Students, at (412) Awareness Month, the Public Interest International Canon Law conference 396-6279 or at [email protected]. For Law association held its Silent Auction was conducted at the Law School on more information on Alumni events, to raise funds for public interest February 4th and 5th. Spring on­ please contact Amy Eozzo Black, scholarships, Phi Alpha Delta held campus interviewing began on Director of Alumni Relations and fund drives to raise funds to benefit the February 14th, and the CSO plans to Development, at (412) 396-5216. Hill House, and SBA sponsored a hold a program on Managing Student Halloween party and the annual SK Loans/Law School Debt. February walk/ run, Race Ipsa Loquitur. Also in was also Black History Month, and October, the program "Thinking Like BLSA conducted various programs

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