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University of the District of Columbia Law Review David A. Clarke School of Law Spring 201 1

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AN D T I-I E PROTECT I ON OF C III L D REN

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T i l E R UC K US I N TI I E CAUCASUS : A CASE AG A I NST M I K II E I L SAA K AS II V ILl FO R CR [ ~'I ES A GA I NST H UMAN ITY

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University of the District of Columbia Law Review Volume 14

Spring 2011

Number 1

CONTENTS 18TH ANNUAL JOSEPH

L.

RAUH, JR. LECrURE

UNIVERSITY OF THE DISTRICT OF COLUMBIA DAVID A. CLARKE SCHOOL OF LAW, THURSDAY, JUNE 17,2010 ••••••....••...••.

Attorney General Eric H. Holder, Jr.

3

YES WE CAN, PASS THE BAR. UNIVERSITY OF THE DISTRICT OF COLUMBIA, DA VID A. CLARKE SCHOOL OF LAW BAR PASSAGE INITIATIVES AND BAR PASS RATES-

Derek Alphran, Tanya Washington and Vincent Eagan

9

Timothy Cooper

43

Megan S. Vahey

115

Sonja Seehusen

133

FROM THE TITANIC TO TI-IE QUEEN MARY! ..•...••..••...•••....

THE DISTRICT OF COLUMBIA V. THE 50 STATES: A 21sT CENTURY LAWSUIT TO REMEDY AN 18TH CENTURY INJUSTICE ••••••••••.•••••••••••••••••••••••••• A

DISCUSSION ON THE DISTRICT OF COLUMBIA'S

PROCUREMENT LAW AND THE SPARK THAT LED TO RENEWED REFORM EFFORTS ••••••••.•••••••••••••..•• SAME SEX MARRIAGE: DOES THE CONSTITUTION OR STATE CONSTITUTION SUPPORT SAME-SEX MARRIAGES? ..•••.••• REVISING THE ANALYSIS OF PERSONAL JURISDICTION TO ACCOMMODATE INTERNET-BASED PERSONAL CONTAcrS ..•••

Matthew L. Perdoni 159

JURISPRUDENCE FOR A DIGITAL AGE: FREE SOFTWARE AND

Nicholas Clark

THE NEED FOR A NEW MEDIA LEGAL AUTHORITY

193

THE CHILD ONLINE PRIVACY PROTECTION Acr: THE RELATIONSHIP BETWEEN CONSTITUTIONAL RIGHTS AND THE PROTECTION OF CHILDREN ••••••••.••••••••• THE RUCKUS IN THE CAUCASUS: A

Sasha Grandison 209

CASE AGAINST

MIKHEIL SAAKASHVILI FOR CRIMES AGAINST HUMANITY IN THE AUGUST WAR. • • • • • • • • • • • • • • . . • • • • . . . • • • • • • ••

Yancy Cottrill 225

THE LEGAL PROCESS OF CULTURAL GENOCIDE: CHINESE DESTRUCTION OF TIBETAN CULTURE V. U.S. DESTRUCTION OF NATIVE AMERICAN CULTURE •••.•..••••••••••

Evan Mascagni 241

University of the District of Columbia Law Review Spring 2011

Volume 14

2010-2011

Number 1

EDITORIAL BOARD

Editor-in-Chie! Evan Mascagni

Co-Editor-in-Chie! & Publications Editor

Managing Editor

Matthew Perdoni

Melissa Chong

Bibliography & Website Editor

Notes Editor

Andrew Palmer

Irvin Cannaday

Symposium Editor

Articles Editor

Leila Mansouri

Heather Strickland

2010-2011 Senior Editors Andrew Bona Paula Brooks Leandra Carrasco Marshall Chriswell

Brec Cooke Jillian Fredrick Adrian Gottshall Kelly Hoecherl

Erin Hurd Kseniya Kuksova Ben Petok Chris Thomas

2010-2011 Associate Editors Matt Bass Therese Beaudreault Carl Berry Suzanna Boyle Sophia Chaudhry Alex Clark Leticia Corona Parisa Dada Geno Donney Virginia Hebert

Rebecca Helmes Tracy Jackson Byung-Chan Kim James King Ellen Knebel George Kourtsounis Rachel Lawrence Kelly Lewis Tracey Lewis Matt Lun

Faculty Advisors Helen Frazer William McLain

Coury Mascagni Courtney Mickman Amanda Penrod Joyce Roldan Jamie Stevens Demetrius Thomas Lauren Wallace Kristen Weidus LaRita Willis Melanie Wilson

University of the District of Columbia David A. Clarke School of Law

ADMINISTRATION

KATHERINE S. BRODERICK, Dean* ANN BlslICW RICHARDSON, Associate Dean for Academic Affairs* ANNAMAIUA STEWARD, Associate Dean of Students JANICE BAlmLEY WASIIINGTON, Associate Dean for Administration & Finance VICEN(: Fm.IO, Director of the Law Library* DENA BAUMAN, Director of Career Services VIVIAN W. CANTY, Assistant Dean for Admission KAREN FORMAN, Director of Public Interest & Clinical Programs HELEN FRAZER, Associate Director, Mason Law Library BAIUlARA GREEN, Registrar JOSEI'II LIBERTELLI, Director of Alumni Affairs JA YE LOl'Ez, Development Director DONALD PRITCIIETr, JR., Assistant Director of Admission ARIEL SIIEA, Director of Communications NAILAII WILLIAMS, Director of Financial Aid

LAW FACUU'Y AND INSTRUCI'ORS

RODIN C. ALEXANDER EDWARD ALLEN DEREK M. ALPIIRAN KAITLIN BANNER MARTA W. BERKLEY TIlE HONORABLE ANNA BLACKUURNE-RIGSBY KEITII BLAII~ AISIIA C. W. BOND SPENCER H. BOYER JOliN C. BIUTrAIN CHARLO'I"rE BROOKINS-HuDSON NANCY BROWN STEPHANIE Y. BROWN ROBERT L. BURGI)ORF, JR. EDGAR S. CAIIN ISAAC CAMI'BELL KRISTINA CAMPBELL RICIIARD CONI>IT TANYA ASIM COOI'ER NICOLE DII.LARD COLIN M. DUNHAM KAREN EVANS ANDREW FERGUSON CEARA FLAKE MATn lEW I. FI~AJI)IN KAREN GRAY * Also a member of the David A. Clarke School of Law's faculty.

WADE HENDEI{SON LolllSE A. HOWEI.u; FRANCESCO ISOIU) CHRISTINE L. JONES KEVIN KELLY TilE HONORAULE MILTON

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LEE, JR.

KERRY J. UmlNG TIIOMAS MACK KEMIT MAWAKANA

G.

WILLIAM

McLAIN

STEPIIEN B. MEI{CER

D.

ANGELA

MINOR

LAURIE A. MORIN JILL C. MORRISON ROYCE BERNSTEIN MURRAY KOSlso ONYIA MELVIN

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AUDREY ORTEZA TilE HONORABLE PETER J. PANUTIIOS SIIAKIRA

D.

PLEASANT

ROBERT POMEI{ANCE THE HONORAULE WILLIAM

C.

PRYOR

OMYRA M. RAMSINOII ROUERT RAYMOND WU.HELMINA M. REUBEN-COOKE TilE HONORABLE ROUERT LAURA RINALIlI ALYSIA ROBBEN WILLIAM

L.

ROBINSON

W. SHERMAN ROGERS WALLACE

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SII ....., JI{.

BARBARA

V.

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MAUNICA STIIANKI JACQUELINE SWANSON LASHANDA TAYLOR TAMI TAYLOR JOHN F. TERZANO JOSE .. H SUSAN

B. TULMAN L. W A YSDOIU'

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RIGSBY

University of the District of Columbia David A. Clarke School of Law

THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW (ISSN 1063-8601) is published at least once annually by students of the University of the District of Columbia David A. Clarke School of Law. The opinions expressed in articles are those of the author(s) and do not necessarily reflect the views of the University of the District of Columbia School of Law or the LAW REVIEW. Subscriptions are accepted for the entire volume.! Subscriptions are payable in advance or billable. Domestic & Foreign: $25.00. Mailing Address: TI-IE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW, The University of the District of Columbia David A. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C. 20008. Manuscripts should be sent to the Articles Editor at this address. Subscriptions are renewed automatically upon expiration unless the subscriber sends timely notice of termination. All notifications of change of address should include old address, including zip code, and new address, including zip code. POSTMASTER: Send address changes to: THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW, The University of the District of Columbia David A. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C. 20008. Unless a claim is made for nonreceipt of LAW REVIEW issues within six months of the mailing date, the LAW REVIEW shall not be held responsible for supplying those issues without additional charge. All articles are copyrighted © 2010 by THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW, except when otherwise expressly indicated. For all articles in which it holds copyright, THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW permits copies to be made for classroom use, provided that: the user notifies THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW; the user has made such copies; the author and THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW are identified; and proper notice of copyright is affixed to each copy. Except when otherwise expressly provided, the copyright holder for every article in this issue of THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW grants permission for copies of that article to be made for classroom use, provided that: the user notifies the author and THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW; the user has made such copies; the author and THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW are identified; and proper notice of copyright is affixed to each copy. Information for Contributors: THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW invites submission of unsolicited manuscripts. All manuscripts should be double-spaced and all footnotes should conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass'n et al. eds., 19th ed.). As a matter of policy, the LAW REVIEW encourages the use of gender-neutral language. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Send all correspondence to the Articles Editor at: THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW, The University of the District of Columbia David A. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C. 20008. Manuscripts also may be sent to [email protected].

1 To be cited as 14 UDC/DCSL L.

REV. -

(2011).

University of the District of Columbia Law Review Volume 14

Spring 2011

Number 1

Dear Reader, We proudly introduce Volume 14, Issue 1 of the University of the District of Columbia Law Review. This issue reflects the hard work of the outstanding Senior and Associate Editors of the Law Review. Our goal this year is to produce multiple issues of the Law Review, as well as introduce our new website. These resources will provide cutting-edge scholarly work from some of the most prominent and progressive legal minds in the country, and to reflect the new direction of our publication. First, we would like to thank the 2009-2010 Editorial Board. The majority of this issue is a continuation of the materials accepted and reviewed by the previous Board. At 450+ pages, Volume 13, Issue 2 (Summer 2010) was one of the largest editions ever released by our Law Review. We will strive to maintain their level of enthusiasm and productivity in Volume 14. Volume 14, Issue 1 begins with a transcript of Attorney General Eric H. Holder, Jr.'s June 17, 2010 delivery of the 18th Annual Joseph L. Rauh, Jr. Lecture. With over 500 Washingtonians in attendance, the Attorney General lauded the University of the District of Columbia David A. Clarke School of Law (UDC-DCSL) as a model for legal education and a point of inspiration for law schools across the country. Accordingly, it seemed fitting to follow the Attorney General's speech with an article providing empirical analysis on UDC-DCSL's successful efforts to increase law students' bar passage rates over the past five years. As the only public law school in the District of Columbia, our Law Review has a duty to provide relevant information pertaining to the livelihood of District residents. The next two articles do exactly that: one explores a new approach for achieving equal representation for the District of Columbia, and the other examines D.C. 's procurement law and the efforts aimed at reform. In 2010, D.C. became the most recent jurisdiction to allow same-sex marriages. The fifth article in this issue explores the constitutionality of same-sex marriages.

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UNIVERSITY OF TilE DISTRWr OF COLUMBIA LAW REVIEW

The three articles that follow examine the ever-increasing interaction between technology and the law. The first article discusses the evolution of personal jurisdiction and the need for the law to recognize that the Internet accommodates a new variety of personal contacts. The second article contemplates the viability of a centralized source containing illustrations of laws and legal concepts that can be distributed through new technological outlets. The third article reviews the Child Online Privacy Protection Act and the balance between protecting children's privacy and their freedom of expression in the Internet context. The last two articles in this issue focus on international human rights. One article presents a case against Georgian President Mikheil Saakashvili for crimes against humanity stemming from the country's August 2008 conflict with Russia. The final article compares China's use of the law as a means for oppressing TIbetans with similar practices carried out by the U.S. over Native Americans. Finally, we extend our sincere gratitude to the 2010-2011 Senior and Associate Editors, who contributed a great deal of time and effort in bringing this issue to publication. We also would like to thank our faculty advisors, Helen Frazer and William McLain, as well as Joe Libertelli and Dean Katherine S. Broderick, for their continued guidance and support. Sincerely, Evan Mascagni & Matthew Perdoni On behalf of the 2010-2011 Un.iversity of the District of Columbia Law Review Editorial Board

18TH ANNUAL JOSEPH L. RAUH, JR. LECTURE UNIVERSITY OF THE DISTRICT OF COLUMBIA DAVID A. CLARKE SCHOOL OF LAW, THURSDA Y, JUNE 17,2010 Attorney General Eric H. Holder, Jr.* Thank you, Wade [Henderson]. It's an honor to join you and to thank you for your leadership and service here at UDC and across this city. Not only is Wade a great professor, he is also an outstanding ambassador for the David A. Clarke School of Law. And he never misses an opportunity to champion this school's unique and provocative approach to legal education. Of course, much of the credit goes to Dean Broderick and her team of administrators, faculty, and staff. I want to thank you all for inviting me to join you today. I'm especially grateful for the chance to commend the Clarke Law School's extraordinary example of excellence, service, and innovation - an example that inspires the legal community in this city and far beyond. Tonight also provides a rare and welcome opportunity to do something every attorney, and certainly any Attorney General, regularly should - to reflect on the systemic challenges facing our justice system and to consider the future of legal education in this country. In the spirit of Joseph Rauh, the visionary namesake of this lecture series, that's exactly what tonight is all about: taking a step back from what we do and what we study to consider what we owe - to our country and to our community. ... Eric H. Holder, Jr. was sworn in as the 82nd Attorney General of the United States on February 3, 2009 by Vice President Joe Biden. President Barack Obama announced his intention to nominate Mr. Holder on December 1,2008. In 1997, Mr. Holder was named by President Clinton to be the Deputy Attorney General, the first African-American named to that post. Prior to that he served as U.S. Attorney for the District of Columbia. In 1988, Mr. Holder was nominated by President Reagan to become an Associate Judge of the Superior Court of the District of Columbia. Mr. Holder, a native of New York City, attended public schools there, graduating from Stuyvesant High School where he earned a Regents Scholarship. He attended Columbia College, majored in American History, and graduated in 1973. He graduated from Columbia Law School in 1976. While in law school, he clerked at the N.A.A.C.P. Legal Defense Fund and the Department of Justice's Criminal Division. Upon graduating, he moved to Washington and joined the Department of Justice as part of the Attorney General's Honors Program. He was assigned to the newly formed Public Integrity Section in 1976 and was tasked to investigate and prosecute official corruption on the local, state and federal levels. Prior to becoming Attorney General, Mr. Holder was a litigation partner at Covington & Burling LLP in Washington. Mr. Holder lives in Washington with his wife, Dr. Sharon Malone, a physician, and their three children. Meet the Attorney General, U.S. DEP'')' OF JUSTICE, hUp:llwww.justice.gov/aglmeet-ag.html (last visited Jan. 29, 2011).

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UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEW

Now, where do we begin? To me, it seems appropriate to start by thinking about the one event that's on a lot of our minds right now - the World Cup. I know that many of you have already cleared your schedules for lOam tomorrow, when the U.S. takes on Slovenia. But more importantly we should also take time to think about where this historic game will be played. As all of you know, and some remember well, South Africa was - at one time - the last place on Earth where you could imagine people of all cultures coming together. In the era of Apartheid, South Africa's laws supported a system, not of justice but of injustice. Its legal framework enshrined bigotry, enforced discrimination, and spread hate from Cape Town to Johannesburg to Robben Island. This system of oppression enraged citizens within and beyond South Africa. It also motivated American law students like me, who spent a lot of time away from our studies to call for reform from half way across the world. For my most famous predecessor, Attorney General Robert F. Kennedy, the laws of Apartheid, and of any system of segregation, were particularly offensive. In fact, forty-four years ago this month, he'traveled to South Africa to deliver a speech at the University of Cape Town - just minutes from the stadium where many World Cup games are being played. In his now-famous "Day of Affirmation" address, Attorney General Kennedy spoke about the right to justice, the power of action, and the possibilities born from hope. As he said to all those listening in South Africa, and all those watching around the world, "Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope. "Those ripples," Robert Kennedy assured us, can "build a current which can sweep down the mightiest walls of oppression and resistance." Those were beautiful words, but they were more than rhetoric. They were a call to every member of the global community to embrace the idea - indeed the truth - that, more than any policy or program, any controversy or case, justice begins with individual acts. And it is from many acts of courage, service, and great sacrifice that a nation once known for division is now celebrated and admired around the globe for its method to deal with its past and its power to unite. So, what exactly are these tiny ripples? Where do we find them? And how do we initiate them? I have grappled with such questions throughout my entire career. And I expect many of you struggle with them, as well. But I have also learned a few things. And I have seen these so-called "ripples," time and time again, during a life spent studying and practicing law - first, as a law student, when I spent a summer interning at the N.A.A.C.P.'s Legal Defense Fund, working on some of the civil rights cases of the day. I saw them again after graduation, when I came to work in the Justice Department's new Public Integrity Section. That, however, was only the start. As a judge in D.C. Superior Court, I saw ripples of hope in the heroic stories of law enforcement officials who stood up for

18TH ANNUAL JOSEPH L. RAUH, JR. LECfURE

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public safety. I saw them in the uplifting examples of criminals reformed, after rehabilitation, and turned into productive citizens. As U.S. Attorney for the District of Columbia, I saw hope in the activism of community members who came together in times of crisis to safeguard their neighborhoods and help to prevent, not only punish, violence. And when I served as Deputy Attorney General and was asked by President Clinton to lead Lawyers for One America, I saw those ripples of hope in the attorneys, all across this nation, who banded together for the shared purpose of addressing and eliminating racial inequality in our legal system. Over many years, in many different ways, I have learned that ripples of hope and rooting out injustice one individual action at a time - can take many forms. There is no one way to fight for what's right. I have also learned that achieving justice, like accomplishing anything worthwhile, does not come easily. But the path to justice always starts with a single action - and in 2010 it must start with you. Of course, many of you already know this. The students here, in the tradition of the Clarke School of Law, have already been working to fulfill the promise of justice -long before studying for the Bar Exam. Although this is a small school with only 300 students - you annually provide more than 85,000 hours of public service to low-income community members. And each UDC law student is required to provide at least 700 hours of clinical service - to helpless tenants, vulnerable seniors, suffering HIV/AIDS patients, needy children, community groups, and businesses. Seven hundred hours. That's incredible. Imagine, for a moment, if every law student in the country were to give back, as UDC students do, while earning their degrees. Since there are approximately 150,000 law students at anyone time in this country, that would mean about 100 million hours of clinical services combined - enough to turn tens of thousands of ripples of hope into that "current which can sweep down the mightiest walls of oppression and resistance." I hope that, now, you can start to see my vision, my hope. Your responsibility to serve others has proven to be not only an effective means of providing your community with much-needed legal assistance, but also an effective means of learning the law. Joseph Rauh predicted it would be - and your example shows that he was right. Today, we can all be encouraged that law schools across the country are taking steps to promote public service and to create opportunities for students to help meet community needs. But I agree with the assertion by UDC's leadership that all publicly funded law schools should look to the Clarke School of Law for inspiration and consider a similar service requirement. That would be a profound and powerful change. And it would lead, no doubt, to a more just nation and world. Such a paradigm shift in legal education would also align with what I see as an inflection point in our justice system. I believe we have arrived at a watershed

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moment. The choices we now make will reverberate for decades to come. But some important decisions must be made. After all, we face a crisis in our justice system - an environment where, despite our founding promise of justice for all, we still must strive to reach that vaunted goal. Our indigent defense system, for example, is broken; public defenders in some areas are so overwhelmed that they can spend, at most, an hour per case, many of which present life-altering legal questions and decisions. The situation is no better in the civil arena. More than 50 million Americans qualify for federally funded legal assistance, but over half of those who qualify and seek assistance from a federally funded legal assistance program are turned away. There simply aren't enough resources. But, fortunately, there are an increasing number of attorneys around the country who are beginning to realize how critical it is that those who have it all - a law degree, a steady job, a good income - help those who have next to nothing, free of charge. And I'm pleased to report that, at the Department of Justice, there is now - at long last - an "Access to Justice" office, which is led by the eminent Harvard law professor Laurence Tribe and dedicated to ensuring the fairness, integrity, and improvement of our legal system. But let me be clear about something: the Justice Department's Access to Justice Initiative is not rooted in the notion that the government can do it all. Government can't. And that's where each of you comes in. To me, UDC's students, alumni, and supporters represent an attitude change that is reaching its "tipping point" and, I expect, will soon become widely accepted practice - that pro bono work is not merely good, as its Latin name implies, but is necessary - that it defines the notion of what is expected of an attorney. That every lawyer should engage in pro bono practice frequently, whether you are a professor, a partner, a student, an associate, or a Department of Justice attorney. Granted, we're not quite there yet. An American Bar Association study last year reported a definite rise in pro bono activities among lawyers, but it also noted, and I quote, that "more than three-fourths of those who had performed pro bono service in the past year indicated that they do not seek out pro bono opportunities: the opportunities find them." And many surveyed still did not participate in pro bono, citing a lack of interest among their employers for such work or the sense that there was no free time to spare. But all of you, current and future leaders who have regularly engaged in public service and seen the power of these individual and collective acts, can help to fulfill the potential attitude shift that I've just described. And as you do so, you can - indeed, I expect you will - remain engaged in critical pro bono work here in Washington, D.C., not because the opportunities find you, but because you find them. As you know well, there is so much need in this city, and so many different ways to use your skills, training, and talents to help others.

18TH ANNUAL JOSEPH L. RAUH, JR. LECfURE

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It may not always be easy. Ripples of hope can be easily smothered by waves of resistance. The cases you take up may not be glamorous, and your services may not always be appreciated. And, if you are a student, after you graduate there may no longer be any formal requirement to give back; you'll have to seek out service opportunities. But I urge you to do just that. Find ways to contribute and to encourage others to serve. Individual acts, performed in the pursuit of justice, must continue and must spread as far and as wide as possible - even, and especially, into conference rooms and classrooms where they previously had no place. That is what this school - and what both David Clarke and Joseph Rauh - stood for: training lawyers, not only to be successful, but to be examples for others and to be reminders about the importance and power of pro bono service. So tonight, let us renew our commitment to what Robert Kennedy once called in South Africa, "our shared determination to wipe away the unnecessary sufferings of our fellow human beings." That may not be our only purpose as lawyers, but it is our most sacred and important. It should, and must, define who we are as attorneys and the legal system within which we operate. As leaders in our profession you must spread the philosophy of this great institution and make what is unique commonplace. Thank you.

YES WE CAN, PASS THE BAR. UNIVERSITY OF THE DISTRICT OF COLUMBIA, DAVID A. CLARKE SCHOOL OF LAW BAR PASSAGE INITIATIVES AND BAR PASS RATES-FROM THE TITANIC TO THE QUEEN MARY!*l Derek A1phran, Tanya Washington and Vincent Eagan, PhD.2 INTRODUCTION

Bar passage rates began to fall at the University of the District of Columbia, David A. Clarke School of Law (UDC-DCSL) in the late 1990s as the District and the School of Law dealt with many changes related to uncertain funding and staffing. As a result, in 1998, the Law School created the Bar Passage Task Force (BPTF) to study the issue, prepare a plan of action to put bar passage on an upward path, and to implement that plan. In 2003, at the time of UDC-DCSL's application for full accreditation with the American Bar Association (ABA), the Law School's first time bar passage rate was 36%. In 2004, the first time passage rate increased to 460/0. 3 By 2008, UDC-DCSL reached an 820/0 overall passage

* The study that is the focus of this article covered the years of 2004 through 2008. Our article was submitted for publication in April 2010. At that time, complete data for July 2009 bar exam was unavailable, and therefore, was not a part of our study. Furthermore, the July 2010 bar exam had not been administered at the time this article was submitted for publication. Although final results for the July 2010 bar exam were not tabulated at the time this article went to press, early indications show a dramatic drop in the overall bar passage rate for first time exam takers. We plan to conduct a followup to the study presented in this article that includes data from the 2009 and 2010 bar exams. The intended study also would examine passage rates for those students who took part in the coursework and exam preparation classes outlined in this article, and whether any internal or external factors affected bar passage. The results of the forthcoming follow-up study will be published on University of the District of Columbia Law Review website. 1 This quote belongs to Professor Robert Burgdorf (UDC-DCSL) who offered this comment at one of our faculty meetings. In response to an upward increase in bar passage he said, "Since when have we gone from sinking on the Titanic to the Queen Mary?" 2 Derek Alphran, J.D., V.C.L.A. School of Law, is an Associate Professor and Director of the Academic Support Program at the David A. Clarke School of Law. Professor Alphran also chairs the Bar Passage Task Force. Tanya Washington, J.D., University of Maryland School of Law, is an Associate Professor at Georgia State Law School and the Director of PTEX, a bar essay writing program. Professor Washington authored the section describing the content and emphasis of the Bar Skills Essay Writing practicum, which constitutes a significant aspect of VDC-DCSL's bar passage initiative. Vincent Eagan is an Associate Professor of economics at Morehouse College. He holds a Ph.D. in Economics from Georgia State University (1988) and a J.D. from Harvard Law School (1991). Professor Eagan conducted the statistical analysis of bar data for this study as described in Part VI. Valuable research assistance was provided by Bakary Seckan. The authors also would like to pay tribute to the late Professor Jim Gray who chaired the Bar Passage Task Force for many years and who worked tirelessly on the bar passage program. 3 Application for full accreditation with the ABA on file with Academic Dean Ann Richardson (UDC-DCSL). The results were based on information available to the School of Law at that time. A subsequent 2008 report by the ABA following full accreditation of the law school in 2005 showed the

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rate in Maryland, the District of Columbia (D.C.), and Virginia.4 This article addresses the efforts of UDC-DCSL to improve its bar passage rate, particularly relating to the measures taken over the past five years. The bar passage rate improved overall as the result of a wide range of academic support and bar passage assistance. Many factors contributed to the recent increase, notably an improved academic profile of incoming students' LSAT scores and undergraduate GPAs (UGPA), and the strengthening of the in-house bar skills program. In an effort to show which factors may be contributing to the improving bar passage rate, we undertook a study of the academic profile of graduating students over a five year period, 2004 to 2008, examining their LSAT scores, undergraduate grade point average (UGPA, Cumulative GPA), and enrollment in the Bar Skills Preparation Program (BSPP), instituted in 2003. Beginning in 2007, the BSPP included enrollment in a 14 week YfEX Essay Writing Practicum and a three-day PMBR prep course. The focus of this study is on the impact of these programmatic variables on the bar passage rate and specifically whether the bar skills preparation program and YfEX impact the bar passage rate. 5 Bar Passage has been a central concern for many years; not just to UDCDCSL but other law schools and the ABA accreditation bodies. 6 Between 1996 and 2005, the bar examination passage rates for all states fell from 79% to 76%.7 following bar passage rates: the 2004 class showed a passage rate of 56.5%; 63.6% for 2005; 58.1 % for 2006; and 68.4% for 2007. 4 See American Bar Association, Site Team Report to UDC-DCSL (2008) (on file with Professor Alphran). These numbers are relatively small for a comparison yet the graduating class of the School of Law had been relatively small for a number of years. The 2008 bar passage rate was exceptional. Importantly Maryland's overall bar passage rate also had increased 10% from the previous year. See comments by Bedford Bentley, Secretary to the Maryland Board of Bar Examiners, Maryland Daily Record (Nov. 19, 2008) ("We saw a significant increase in the passage rate when compared to last July."). After the results of this study were compiled, the 2009 bar passage rates were released, showing a 63.64% first time bar passage rate for those UDC-DCSL students who took the Maryland bar exam and an overall School of Law bar passage rate of 68%. This data was compiled after the results of our internal five-year study. A number of factors likely contributed to the decline in the 2009 bar passage rate and is under review as part of the School of Law's ongoing assessment of its bar passage program. 5 The authors would like to thank Ariel Shea, Electronic Services Librarian, and Lewis Perry, Network Administrator, for their work on the data collection for this study. This project could not have been done without them. Ms. Shea is a 2008 graduate of the School of Law, a member of the Maryland bar, and a former student member of the BPTF, with which she continues to work. Lewis Perry is the Director of the IT Department, who assisted in the data collection over the years in question. We also want to give special thanks to Helen Frazer, Associate Director, UDC-DCSL Law Library, for her editorial assistance and thoughtful insights. 6 See, e.g., Douglass Rush and Hisako Matsuo, Does Law School Curriculum Affect Bar Examination Passage? 57 J. Legal Ed. 224, 225 (2007) ("Law schools are becoming increasingly concerned about their bar examination failure rates."). 7 [d. at 224. See also National Conference of Bar Examiners, available at http://www.ncbex.orgl bar-admissions/statsl (last visited Nov. 22, 2010).

YES WE CAN, PASS THE BAR.

11

In response, the ABA's Section on Legal Education relaxed its rules to allow for bar preparation programs as part of law school curricula. 8 In 2003, the School of Law faculty and administration undertook a major initiative with the BSPP to increase bar passage rates. Over the past seven years, the School of Law has offered some form of bar scholarship for students enrolled in the bar skills program. 9 In 2007, the School of Law offered its first "for credit" bar skills class, Essay Writing for the Bar, which focused on intensified essay writing and analytical skills.1O This study concludes that these efforts have been transformative as indicated by the gradual and steady increase in recent bar passage rates. UDC-DCSL has improved its bar pass rate over the past five years in D.C. and also in the bordering states of Maryland and Virginia. In July 2008, for the graduating class of 2008, of fifty-eight first time takers, forty-eight passed a bar examination for a first time rate of 82.75%, a substantial increase. I1 For takers of the Maryland bar, the bar pass rate rose to 92% in 2008. 12 In the District, seven out of seven students passed the bar exam, for a 1000/0 passage rate. Virginia's first time rate was 670/0. Cumulatively, the class of 2008 had an 82% first time rate in MD, D.C. and VA.I3 In comparison, in 2003, the overall UDC-DCSL passage rate was 36%. The bar passage rate since the 2004 class has shown a consistent increase. In 2008, the BPTF recommended a pilot program aimed at providing bar support for repeat bar takers. 14 This study provides an empirical analysis of the School of Law's bar passage data. Many law schools have created bar support programs - in addition to academic support programs - to improve their bar passage rates. Few studies, however, have assessed their program's using a statistical analysis. 1s One recent study 8 American Bar Association, www.abanet.orgllegaled/standards/standards.html(last visited Nov. 22, 2010). 9 See infra Part I, D. The bar scholarship was conditioned on participation in the workshops and enrollment in the Remedies course. The Bar Passage Task Force adopted this bar scholarship during a period in which the school had a low bar pass rate. It was also designed to help defray students' expenses for the bar. 10 See infra Part II. 11 Internal records of UDC-DCSL (on file with the author). See also Action letter of the ABA to the School of Law (Oct. 14,2009). This was the bar passage data reported to the ABA at that time. The actual first time pass rate has since declined to 78% for the 2008 class but the overall pass rate for the class of 2008 has increased to 87%. Tracking of data is not an easy endeavor since there is no uniform clearinghouse for collection of bar data and states are not required to send data to law schools. The numbers may change as the law school learns of more takers and passers. This number also includes repeat takers of the exam. The new rules allow for counting of subsequent takers for the bar passage rate but not the first time rate. See ABA Standards for Approval of Law Schools, 20092010. 12 For Maryland, 25 out of 28 UDC-DCSL students passed the bar exam on the first attempt. 13 See supra note 4. Bar results on file with the UDC-DCSL Academic Dean. 14 Minutes of UDC-DCSL Faculty Meeting, May 2008 (on file with the author). 15 See Linda Jellum & Emmeline Paulette Reeves, Cool Dala on a Hot Issue: Empirical Evidence Thai Law School Bar Support Program Enhances Bar Performance, 5 NEV. L.1. 646 (2008).

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of the University of Richmond's bar support program found that its bar program had improved the University of Richmond's bar passage rate and the increase in passage was statistically significant. 16 The study also found that the program had a dramatic improvement for those students who were in the bottom half of the graduating class. 17 The study found an 8.5% improvement in the bar passage rate for students as a whole after the bar program was implemented. Is The Richmond study provides the empirical model for our review, although some of the programmatic aspects are different. 19 The UDC-DCSL study of the improvement in bar passage rates is the first to use a logistical regression analysis for all variables. Like the Richmond study, our results reveal that our bar support programs have had a statistically significant impact on bar passage programs. For the entire study period, there was a 14.7% difference between bar passage rates on the first attempt (first time takers) for those who participated in the bar review class versus those who did not participate.2o The results of the logistical regression analysis indicate that law schools' bar preparation programs can contribute significantly to improvement in the overall bar passage rate. This paper describes the steps taken at UDC-DCSL to improve its bar passage rate and provides an analysis of the factors which have proven to be effective in reaching that goal.

I. A.

THE CHALLENGE AND TRANSFORMATIVE CHANGE

The ABA's Mandate for Law Students Bar Passage

Today, UDC-DCSL is in full compliance with ABA Standard 301-6, as adopted by the ABA House of Delegates?1 In 2009, 78.3% of students who grad16 Id. at 646. 17 Id. at n.17. 18 Id. at 658 19 The Richmond Supplemental Bar Program is available to third year students and provides an intensive substantive review of six subjects, focusing on test taking skills, multiple choice questions, and essay writing. The program is a three credit class. It also offers a tutoring program. The UDCDCSL bar skills class is a two-credit course focusing on intensive essay writing skills. There are numerous homework exercises with written graded feedback. There is also a three day multi-state workshop. 20 See infra Part VI. 21 American Bar Association, 20/0-201 J Standards and Rules of Procedure for Approval of Law Schools, app. 3: Guidance on Interpretation 301-06, available at www.abanet.orgllegaled/ standards/standards.html. The ABA adopted new rules on actual bar passage requirements after a lengthy and contentious process. The Council of the Section on Legal Education (Council) issued a report on a new interpretation of 301-6 for notice and comment. After a substantial amount of deliberation and public comment from various groups inside and outside the field of legal education, the Council adopted new rules to guide accreditation committees for determining compliance with 3016(A). The standards established several alternatives for showing compliance as it relates to bar passage. For students who graduated within the past five calendar years either: (a) 75% or more of these graduates who sat for the bar passed a bar examination; or (b) in at least three of these calendar

YES WE CAN, PASS THE BAR.

13

uated from UDC-DCSL within five years and who sat for a bar exam had passed the bar. However, this was not always the case. The ABA accreditation standard mandates that "a law school shall maintain an educational program that prepares its students for admission to the bar and effective and reasonable participation in the legal profession.,,22 This is the governing rule for the ABA's evaluation of a law school's academic program and controls applications for accreditation. An ABA interpretation expands the standard by stating that among factors to be considered "are the rigors of its academic program, including assessment of student performance, and the bar passage rate of its graduates.,,23 In 2003, the ABA, following a Site Inspection Report and review by the Accreditation Committee and the Section of the Council on Legal Education, granted UDC-DCSL a two-year extension to achieve full accreditation, based on its low bar pass rate. 24 The Council of the Section on Legal Education did not accept the Accreditation Committee's recommendation for full accreditation for the Law Schoo1.25 The Council concluded that "in light of the School's very low first time bar passage rate, the School has not yet demonstrated that it is in full compliance with Standard 301, in that the School has not yet established that it maintains an educational program that prepares its graduates for admission to the bar.,,26 The Council was mindful of many factors affecting bar passage, such as declining enrollment, transfer of students, and the financial instability of the University and the District of Columbia during the 1990s, all of which affected the Law School's ability to admit and retain qualified students. 27 Subsequent to the action by the ABA in 2003, the School of Law intensified its bar skills program in response to the ABA concerns. 28 "For the graduating class of 2004, the BPTF revamped the School of Law's bar skills enhancement proyears, 75% of the students graduating in those years and sitting for the bar have passed a bar examination. In demonstrating compliance the school must report bar passage results from as many jurisdictions as are necessary for at least 70% of its graduates. 22 Id. Standard, 301(a). Among the factors to consider in assessing compliance with standard 501(b) ("[a] law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar [J") are the academic attrition rate of the law school's students, the bar passage rate of its graduates, and the effectiveness of the law school's academic support program. 23

[d.

24 In 1998, the School of Law received provisional accreditation by the ABA. It sought full accreditation in 2003 under the five year limit. In 2002, the School adopted a "Reliable Plan" to bring it within compliance of the ABA standards. This program included, among many other things, a change in admission standards and efforts at retention and recruitment policies, increasing financial resources, and adequate facilities (including the library). 25 See ABA Action Letter June 16,2003. 26 Id. at 2-3. 27 Id. 28 UDC-DCSL. Self Study, Report for Limited ABA Site Visit (2004).

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gram, making it more rigorous and incorporating doctrinal review with the skills program.,,29 For the first time, the Admissions Committee selected students for the class of 2004 who had a mean LSAT of 148 and a mean GPA of 2.8.30 The faculty and administration believed the steady increase in statistical profiles of the entering class would lead to higher bar passage rates for the 2004 class and beyond. 31 In 2005, the ABA granted the School of Law full accreditation. 32 This achievement culminated a decade long effort to achieve full accreditation and compliance with the ABA standards, in particular efforts to improve the School of Law's bar passage rate. In October 2008, the ABA held its first conference on Outcome Measures to Improve Bar Passage in Chicago, Illinois. Well over 100 law schools were present at the conference. UDC-DCSL's Dean, Katherine S. ("Shelley") Broderick, addressed a panel session where she discussed the historical efforts of the School of Law to improve its bar passage rates. Many of the schools had adopted similar bar preparation programs in response to a relaxing of ABA rules. The ABA's new interpretation of Standard 302 permitted law schools to grant credit for bar preparation programs. 33 Concerned with the declining bar passage of its students, law schools across the country expanded efforts to increase bar passage rates. 34 At UDC-DCSL, the Bar Passage Task Force instituted a series of discussions following the ABA change in rules and immediately instituted a for-credit 14week essay writing class in place of its then existing bar skills workshops.35 B.

History of UDC-DCSL's Efforts to Improve its Bar Passage Rate

Mission of the Law School: [d. at 29. 30 [d. The class admitted in 2003 was the first with an LSAT floor of 144. 31 [d. at 41. 32 ABA House of Delegates. Resolution No. 300B (2005). 33 Although abandoned in August 2008, in 2004-05, Standard 302 was completely revised and Interpretation 302-7 was added to the Standards. The subject matter of Interpretation 302-7 was previously covered in Standard 302(f), which was deleted in the 2004-05 revisions. Standard 302(f) stated that "[a] law school may offer a bar examination preparation course, but may not grant credit for the course or require it as a condition for graduation." Interpretation 302-7 revised the rule to permit a school to grant academic credit for a bar preparation course, but did not permit such credit to be counted toward the minimum classroom instruction required for graduation under Standard 304. The Interpretation continued the current prohibition against requiring successful completion of a bar preparation course as a condition of graduation. See American Bar Association, Section of Legal Education and Admissions to the Bar, Rept. to the House of Delegates. Interpretation 302-7 (Aug. 2008) available at http://search.abanet.orglsearch/302-7 (last visited Nov. 22, 2010). 34 Denise Riebe, A Bar Review for Law School: Getting Students on Board to Pass Their Bar Exams,45 BRANDEIS L.J. 269, 270 (2006). 35 See infra Part VI. 29

YES WE CAN. PASS THE BAR.

15

The University of the District of Columbia as a land grant institution is the only public institution of higher education in the District of Columbia. Its predecessor law schools, the Antioch School of Law and the District of Columbia School of Law, have a unique history of opening up the legal profession to poor people, people of color and women, who have been under-represented at the bar. District law further mandates that the School of Law, to the extent feasible, enroll students from groups who are historically under-represented at the bar and serve the low-income residents of the District of Columbia. 36 UDC-DCSL has had some unique challenges over the years. The District of Columbia experienced a financial crisis in the early 1990's that directly impacted DCSL, the predecessor law school. The Law School experienced considerable instability with ever-declining financial resources between 1994 and 1996 due to on-going changes in the governing structure of the District government. 3 ? According to the 2002 Self Study, the School of Law's low bar results also reflected the reality that as part of its mission to provide access to students from under-represented groups, the School of Law accepts more "at risk" students than a more traditional school might. 38 Because the School of Law's mission is to educate a diverse student body and to serve under-represented residents of the District of Columbia, the bar passage numbers may reflect a disproportionately lower rate. As part of its mission, the School of Law over the course of its history has recruited, admitted, and enrolled a diverse student body which has included a high number of minority students and students of color. At times, the school has maintained a predominantly minority student body.39 Several studies have "demonstrated that bar passage rate, especially on the first attempt, is signifi36 D.C. CODE ANN. § 38-1202.06(2)(C)(ii)-(iii) (2010). 37 See ABA, June 2003 Action Letter. In its letter extending the School of Law's provisional approval for an additional two years, the ABA found that the "significant financial difficulties experienced by the District of Columbia during the 1990's and the effect of those financial difficulties on the University of the District of Columbia and on the School [of Law] constitute an extraordinary cause and good cause sufficient to justify extending the School's provisional approval beyond the normal five year period." During this time, enrollment dropped and some thirty students transferred. A merger subsequently occurred between DCSL and the University of the District of Columbia which combined resources and enabled the School of Law to lease space from the University. On April 28. 1998, legislation renaming the new University of the District of Columbia David A. Clarke School of Law was signed into law by President Clinton. See Self Study. supra note 28, at 3-5. 38 In recognition of this effort, the School of Law launched its Mason Enhancement Program, a summer program to introduce at risk students to the study of law and to prepare them for the demands of law school. The goals of the program are to familiarize students with the stringent demands and expectations of law school so that they may realistically prepare for entrance to the first year program. See Self Study. supra note 28, at 23. 39 See Shelley Broderick, The Nation's Urban Land Grant School, 40 U. ToL. L. REV. 305, 309 (2009) (the student body tends to be about half students of color-about 30% African American).

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cantly lower for students of color than for white students. ,,40 A 1998 study by the Law School Admission Council (LSAC) titled National Longitudinal Bar Study found a lower pass rate for minority students. 41 Following an ABA Action Letter in 1999, the School of Law commissioned a study undertaken by Dr ~ Russell Cort, Ph.D., a special consultant to the School of Law, to correlate LSAT, UGPA, and bar passage rates for the 1997, 1998, and 1999 classes. 42 The study also correlated LSAT, UGPA, and first year performance for the classes that would be graduating in 2000, 2001, and 2002, including an analysis of student transfers out of the schoo1. 43 Based on the findings of this study, the School of Law made significant changes in its admissions policies. In 2000, the Admission Committee began using a projected class profile as a tool in the admissions process. Adoption of a desired class profile has resulted in steadily improving academic credentials for each entering class since 2000.44 "The mean LSAT rose to 150 for the entering 2003 class, with the 25th percentile at 146. Significantly, the 25th percentile of 146 for this class was higher than the 75th percentile of the 2002 class at 143.45 Undoubtedly, the academic profile of the entering students has improved since 2000 and gradually the bar passage rate improved. Based upon the adoption of the 2002 "Reliable Plan," the faculty had anticipated substantial change in bar passage beginning with the class of 2004, based on increased LSAT scores. 46 Their expectations were borne out. The 2004 bar passage rate was 480/0 for the 2004 class. The LSAT average was 148.0, compared to a 144.7 for the 2003 class, and 141.4 for the 2002 class. 47 On the other hand, the LSAT scores of UDCDCSL students for the past three years have remained virtually unchanged at 151 or 152, with a similarly steady undergraduate GPA of 3.0 to 3.04.

40 See, e.g., Richard A. White, AALS Survey of Law Schools on Programs and Courses Designed to Enhance Bar Examination Performance, 52 J. LEGAL EI)UC. 453 (2002). 41 [d. at 454 (citing the LSAC Bar Passage Study). 42 Dr. Russell Cort, ABA Site Evaluation Data, Correlation Studies: Performance Measures (1999) (on file with the author). The ABA Action letter requested the School of Law to examine the relationships of LSAT scores and UGPA's to performance in the law school's academic program and to the first time bar performance. The study could only report on the bar passage of classes for 1997, 1998, and 1999 who had taken the bar exam. 43 [d. at 1. 44 See Self Study, supra note 28. This requirement was based on BPTF studies that indicate the UGPA is a significant indicator of future bar passage in that LSAT range. There is other empirical evidence to suggest that law school GPA is a better predictor. See Deborah Riebe, supra note 34 (citing White, supra note 40). 45 Self Study, supra note 28. 46 See supra text accompanying note 24. 47 Self Study, supra note 28.

YES WE CAN, PASS THE BAR.

C.

17

Identifying Factors Responsible for Low Bar Passage.

In 1999, Dean Broderick asked the BPTF to investigate the causes of the School of Law's low bar passage rate and make recommendations to improve it. 48 In June 1999, the BPTF issued an interim report, recommending to the faculty and the administration measures to strengthen bar preparation efforts. These items included gathering literature on bar exams, including surveys of other law schools' course coverage and subjects tested on bar exams, surveys of alumni perceptions and common problems of bar passage, raising student awareness about the bar, and publishing regular articles in the School of Law's newsletter, The Advocate.49 The School of Law also began funding financial scholarships for completion of the bar preparation program.50 Studies also indicated that law students with lower numerical predictors and those in the bottom quartile of their class had difficulties in passing the bar. 51 Based on the results of the 1999 Cort study, UDC-DCSL law students with a 2.8 GPA had a 25% chance of bar passage. 52 During this period, an effort also was made to strengthen the curriculum of bar tested subjects in core courses. The School of Law made a conscious commitment throughout the ensuing years to "provid[e] ample resources to support and encourage high risk and low performing students. ,,53 Starting with the class of 2002, the School of Law made additional scholarships available to help defray summer commercial bar courses offered to students who successfully completed the course in Remedies. It was thought that the Remedies class provided a substantial doctrinal review of many of the multi-state subjects tested on the bar exam. 54 Professors who taught bar tested courses also were instructed to parallel course content to the multi-state subjects where appropriate. Additionally, the Academic Support Program, headed by Professor Laurie Morin, conducted bar workshops on substantive review and bar testing of multiple choice questions. The School of Law also hired a specialized instructor, known as the Mason Enhancement Fellow, to assist in conducting bar workshops, focusing on essay and mUltiple choice questions. 55 Today, the key components to 48 49 chaired 50 51 52 53 54

The BPTF was formally adopted in 1998. See Self Study, supra note 28. See Jim Gray, The Bar Corner, THE ADVOCATE, Spring 2002, at 14. Professor Gray and later co-chaired the BPTF. Self Study, supra note 28. White, supra note 40, at 453. Cort, supra note 42. See Self Study, supra note 28, at 21. See Self Study, supra note 28, at 19; see also DENISE RIEBE & MICIIAEL SCIIWAR"I7., PASS TilE BAR! (2006). 55 See Self Study, supra note 28, at 23. Adjunct Professor John Terzano became the first Mason Enhancement Fellow. He is now an adjunct professor at UDC-DCSL, part of the academic support program, and a member of the BPTF.

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promote academic success are the academic support program and the bar skills preparation program. D.

Dean's Fellowship Program Reduces Transfers and Attrition

The School of Law also took steps to reduce the number of students transferring to other law schools in the second and even third years. The School of Law adopted the Dean's Fellowship Program, which provided a $2,000 scholarship award to all students who excelled in their first year. 56 The Dean's Fellowship program has been largely successful in retaining high performing students. In addition, the BPTF also recognized the importance of bar passage and retention and admissions. The Academic Support Director and chair of the BPTF also sat on the admissions committee to assist in identifying students in need of further support based on their numerical predictors of bar passage. A full bar prep tuition scholarship was made available to every third year student taking the PMBR summer preparation course. This funding was available to every student who completed the Friday afternoon workshops and who also completed the course in Remedies. 57 The efforts made by the BPTF were consistent with the strategies that other schools had employed to increase bar passage rates. Students were in fact motivated to obtain monetary assistance for completion of the bar workshops. Twenty-five out of twenty-eight students participated in the program in 2004. II.

ENHANCED BAR SUPPORT PROGRAMS

Following the ABA's Action Letter and two year accreditation extension in 2004, the School of Law further intensified its bar preparation program. UDCDCSL hired a new Academic Support Director, Derek Alphran, who co-chaired the BPTF with Professor Jim Gray. The BPTF conducted a review of its then existing bar program and efforts, and revamped the School of Law's pre-bar preparation program, making it more rigorous and incorporating doctrinal review of key subjects. Long-term preparation would assist in early substantive review of the bar tested subjects and provide opportunities for taking practice exams containing mUltiple choice questions and bar essay questions. One aspect of the program was to introduce self-regulated learning and self-efficacy as part of the overall goal of helping students foster a culture of success. 56 Dean's Fellowship Program, http://www.law.udc.edul?page=deansFellows (last visited Nov. 22, 2010) ("Dean's Fellows are chosen at the end of Fall semester of the first year of law school based on academic excellence. These outstanding students have a variety of opportunities to meet and work with top public interest and private sector litigators, public officials, legislators, and legal educators. They are invited to attend special events with the Dean, the Rauh Professor, and other top University officials. "). 57 Bar Scholarships tied to the completion of the course in Remedies were started in 2001.

YES WE CAN, PASS THE BAR.

19

The Program's renewed efforts focused on enhancing student awareness of the bar examination components and increasing student motivation in taking and passing the exam. Self-efficacy was a part of the self-regulated learning approach in the academic support program, focusing on students' beliefs they could learn and succeed in law school. 58 A shift or transformation in building a culture of success was important. Negative attitudes and pessimism affect motivation for learning. Low self-efficacy can also reduce a student's belief in reaching his or her potential success. 59 The program aimed at helping students believe in their potential success and in their ability to overcome obstacles to their learning by increasing opportunities for preparation to take the bar. The School of Law also had to overcome a history of negative perceptions of lower bar pass rates associated with poor results during the early turbulent years within the university. We adopted an attitude of "yes we can pass the bar" with early preparation and a renewed sense of self efficacy and building a culture of success. We developed a mantra of "rock and sock the bar, every day, every way" as a motivating tool. Building and reinforcing self esteem and self confidence was important to the bar skills learning process.60 Getting students motivated to learn and to take charge of their learning process was critical in changing student attitudes. Efforts were made to intensify student awareness about the bar exam by inviting bar examiners from D.C., Maryland, and Virginia to the School of Law to discuss the components of the exam, license requirements, and fitness issues. During the Spring of 2004, the BPTF conducted a series of voluntary Bar Support Enhancement workshops led by in-house faculty. The focus was on a substantive review of Multi-State subjects and issue spotting in essays. These workshops were conducted on Friday afternoons by the Director of Academic Support and the Faculty. Students were given opportunities to practice essay writing and multiple choice testing strategies.61 Students were also provided a two-day workshop conducted by PMBR as a part of the in-house program on how to answer mUltiple choice questions.

58 See MICHAEL SCHWARTZ, EXPERT LEAI{NINO FOR LAW STUDENTS (2005); see also RIEBE & SCIIWART/., supra note 54. 59 Ruth Ann McKinney, Depression and Anxiety in Law Students: Are We Part of the Problem and Can We Be Part of the Solution? 8 LEGAL WIUTINO J. 229 (2002). 60 The phrase "rock it, sock it" caught on and students were encouraged to use it while testing and studying. Rock and sock every multiple choice question, 1.8 minutes per question. 61 Self Study, supra note 28, at 29. The School of Law also provided every third year student with a copy of Aspen's STRATEGIES & T Acnes FOR TIlE MBE. Professors would assign twenty-five to thirty questions per week from the book. The following week, the professors would go over the answers in class.

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III.

BAR SURVEYS

In an effort to increase student awareness and to focus attention on bar preparedness, beginning in 2004, the BPTF distributed surveys to third year students about their course selection and first and second choices for taking the bar examination. A comparison of subjects tested on the D.C. and Maryland bars is included, aligned with the related course offerings by the School of Law. Students are also encouraged to identify or select a commercial bar provider for their summer bar study. These surveys help students to identify their course selections of heavily tested areas on the bar and are then distributed to the faculty bar mentors. The BPTF also began distributing the surveys to second year students to get them looking ahead at course selection and their bar choice. The BPTF is mindful of the divergent views on bar course selections and the effect on bar passage rates. Few studies, if any, however, have found any significant statistical relationship between bar examination subject course selection and bar passage. One study undertaken at the S1. Louis University School of Law comparing bar passage rates over a five year period to the number of upper level bar subject courses taken by their graduates found no statistically significant relationship for graduates in the first, second, and fourth quartiles. There was a statistically significant relationship between bar examination courses taken and bar passage for students in the third quartile, however. Evidently, class rank and grade point averages were the most important indicators of bar passage. 62 Although the School of Law has not directly studied the impact of bar related subjects, we believe it is important for students who are particularly at risk to take bar related courses and the bar skills essay writing class. 63 IV.

MENTORING PROGRAM

The task force also assigned faculty mentors to each first year (or transfer) law student to assist in individual counseling about course and bar selections. Students were paired with professors who were familiar with the respective states' bar requirements. Students were encouraged to do a self-assessment of their learning, discovering their strengths and weaknesses. Students were encouraged to take bar tested courses from electives such as the UCC, Remedies, Wills and Estates, and Tax if they had not done so in their prior semesters.64 62 Rush and Matsuo, supra note 6. 63 See Christian Day, Law Schools Can Solve the "BAR Pass Problem" - "Do the Work!," 40 Cal. W. L. Rev 321, 343 (2004) ("Law Schools should encourage students to take bar courses for a grade and be prepared to counsel them if their work is poor in these courses."). 64 UDC-DCSL students are required to enroll in two seven-hour courses of clinical instruction (14 credit hours) beginning the second semester of the second year. In addition to other required courses in the second year, the number of electives are thus limited if no advanced bar subjects have been chosen.

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According to the AALS Survey of Law Schools on Programs and Courses Designed to Enhance Bar Examination Performance, law schools identified various structural components of successful programs which included the following: making students more aware of bar requirements; steering students toward subjects that are going to be tested; raising awareness of bar exam preparation; increasing rigor in the classroom; revising the curriculum; establishing a bar exam coordinator; and heightening academic standards. 65 Typical components of these programs included lectures on substantive law tested on bar exams, review of multiple choice questions, essay writing instruction and practice, advice on stress management, outlining, and test taking strategies. 66 Many of these measures were undertaken by the BPTF at UDC-DCSL in 2004. The following year, the bar passage rates increased from 360/0 to 48%.67 It appears that the intervention of a bar skills program and an increase in LSAT scores can have a substantial impact. 68

v.

2005

BAR PREPARATION PROGRAM

The BPTF at UDC-DCSL continued to assess the effectiveness of its in-house bar skills program and efforts and to experiment with commercial bar preparation products and courses. The BARBRI program offered UDC-DCSL students a videotaped lecture series focusing on several multi-state doctrinal courses, including Torts, Evidence, Contracts, and Corporations, all taught by seasoned bar lecturers. BARBRI also offered to UDC-DCSL students a Bar Essay Writing workshop taught by Professor Warnekin from the University of Baltimore. Many of these resources were offered at no cost to the school. Recognizing that there were inevitable inconsistencies among faculty members in the coverage of subject matter and in essay testing of bar subjects, the BPTF decided to use the BARBRI Beat Program as the program for delivery of substantive overview of Multi-State subjects.69 The bar skills program also maintained a separate essay writing class taught by BPTF members. 70 The program continued to offer the PMBR workshops for multi-state testing. The PMBR workshops extended over three weekends, covering two multi-state sessions each week. Students who successfully 65 White, supra note 40, at 457. 66 White, supra note 40, at 456. 67 See American Bar Association, Action Letter, Oct. 14, 2009 (on file with the author). 68 See Riebe, supra note 34, at 299. 69 Letter from BARBRI to Professor Derek Alphran (on file with the author). See also Memorandum to the Students Outlining the Bar Program for the 2004-2005 year, Derek Alphran, Director of Academic Support 2005 (on file with the author). 70 Adjunct Professors John Terzano and Tammy Taylor conducted the essay writing classes. Professor Terzano, a UDC-DCSL alum, had been a member of the BPTF and taught in the Mason Enhancement Program. He had conducted numerous bar workshops with Professor Laurie Morin. Professor Taylor, a member of the law school's writing faculty, has tutored students for a number of years in essay writing for various bar jurisdictions.

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completed the bar skills workshops and the class in Remedies were eligible for a bar scholarship in the form of a six day PMBR workshop during the summer months?1 The school also supported bar workshops sponsored by the Black Law Students Association (BLSA) with the Richard Litvin Bar Prep Program. 72 The latter program consisted of a videotaped presentation of multi-state subjects and Multi-State Bar Exam (MBE) testing, live lectures, and one-on-one essay tutoring. Students who completed these workshops also received a six-day PMBR bar scholarship. A.

Integrating Academic Support Initiatives

A study conducted at the UCLA School of Law found academic support programs that reinforce student learning and reasoning skills and that provide opportunities for written feedback and one-on-one counseling can improve a student's performance on the bar exam.73 The study concluded that the expansion of the academic support program correlated with a rise in the bar passage rates. 74 Also, the earlier the intervention, the more likely the improvement in academic and bar passage performance. Teaching legal reasoning skills through first year substantive law improves student learning?5 Academic Support is an important component of the School of Law's bar support program. The emergence of UDC-DCSL's bar preparation programs has been largely grounded in the academic support structure. The School of Law's Director of the Academic Support Program also chairs the BPTF and thereby coordinates the School of Law's academic support initiatives with the bar preparation program?6 The School of Law's academic support program follows the UCLA model of a Spring term legal reasoning skills course for first year students on academic probation. Originally, Legal Reasoning I was required for students whose GPA was 2.0 or below. In 2006, the faculty adopted a change based on the recommendation of the Academic Support Director to require mandatory enrollment for students whose GPA was 2.3 or below. This change was based on a 71 The bar scholarships, which had been in place since 2001, have changed from direct cash grants towards commercial bar courses to smaller cash grants. During the 2004 year, for example, the bar scholarships were actual dollars awarded to students. 72 See Litvin Bar Review of Texas, available at http://www.litvinbarreviewoftexas.com. 73 Kristine Knaplund & Richard Sander, The Art and Science of Academic Support, 45 J. LEGAL EDUC. 157 (1995). 74 /d. at 201. 75 [d. The UCLA study found that teaching legal reasoning skills combined with substantive material was more effective than teaching skills alone. The study found that higher grades were likely to increase bar passage because bar exams test similar skills and knowledge. 76 Self Study, supra note 28, at 26. The current Director is a co-author of this article.

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calculation of students who were in the bottom quartile of the class.77 The same 2.3 requirement was extended to students for the Legal Reasoning II class. The Academic Support Director emphasizes the Self Regulated Learning approach for students in the academic support program. Self-Regulated Learning is a structured approach which emphasizes cognitive awareness of the process of learning?8 The Self-Regulated Learning approach was developed by Professor Michael Schwartz. 79 Self Regulation is a process whereby students actually control their own motivation for learning and in completing academic tasks. 8o Second year UDC-DCSL students whose GPA is 2.3 or below also are required to take Legal Reasoning II, which is an advanced legal skills class. The course emphasizes legal analysis in essay writing and legal memoranda. Testing strategies are employed using the Multi-State Performance Exam, by deconstructing the exam in incremental learning steps. Case reading and synthesis, issue spotting, and drafting legal memoranda are also techniques. Second year students are therefore introduced to bar exam and performance style questions as skill building exercises. While the goal is to improve student learning and success in law school, this is also an opportunity to increase student preparation for the bar exam. Early intervention helps with decreasing attrition and increasing the analytical skills needed for passage of the bar exam.81 Although no empirical analysis was done of the review period in our study, anecdotal evidence shows that students who matriculated through the Legal Reasoning classes were successful bar takers on the first attempt despite having GPAs in the bottom quartile of the class.82 Our statistical analysis shows an increase in bar passage for those students in the bottom quartile of the class over the past five years. Many of the students in this quartile are in the mandatory Legal Reasoning class. These results are supported by the experiences of other law school academic support programs.83 For example, a recent study by New York Law School showed that its Combined Curriculum approach resulted in a substantial increase in the school's bar pas77 See Memorandum from Derek Alphran, Academic Support Director, to Curriculum Committee, Apr. 2006 (on file with the author). 78 See Self Study, supra note 28 (describing the Self Regulated Learning Approach). 79 See Schwartz, supra note 58. Professor Schwartz addressed the UDC-DCSL faculty in 2004 to introduce his expert learning approach and integrated expert learning strategies in the classroom. 80 Schwartz, supra note 58. 81 See Riebe, supra note 34, at 326. ("[E]arly intervention would also be beneficial because it would help students build the skills necessary to perform well in law school as well as to increase their likelihood of success on their bar exams and in law practice."). 82 Because of time constraints for this project, the study did not disaggregate students who took the Legal Reasoning classes. The focus of the study was on the bar passage program which is open to all the students, although academic support is an important part of early intervention. The records showing successful Legal Reasoning students who took the bar exams are on file with the Director of Academic Support. A future study is contemplated. 83 See Riebe. supra note 34.

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sage.84 The New York Law School's combined curriculum emphasizes an academic support approach, using a Principles of Legal Analysis class and an advanced reasoning class, both focusing on fundamental concepts and skills essential to legal reasoning. Students also take a Consolidated Legal Analysis class focusing on bar type essay exams. According to the study, "the goal of the program was to ensure that students took a rigorous academic program best designed to enhance their analytical and writing skills and increase their chances of passing the bar. ,,85 These results provide further evidence that academic support, designed around both a bar skills program and a rigorous focused program of study, can improve student learning and success on the bar exam. B.

Bar Passage Task Force Initiatives - Curriculum Change Bar Preparation Class for Credit, 2006

The UDC-DCSL BPTF continued to assess the efficacy of the bar skills program every year to explore the best strategies for early bar preparation. Several initiatives were undertaken. The committee invited Professor Byron Warnekin from the University of Baltimore to conduct a workshop for the faculty on grading and testing bar exam essay questions for the Maryland Bar. His presentation focused on heavily tested areas of the Maryland Bar and how bar examiners grade bar essays. Professor Warnekin spent many years preparing students for the Maryland Bar and was the BARBRI Executive Director for Maryland. 86 In addition, the BPTF recommended strategies for enhancing essay writing instruction and involving the faculty in bar essay grading as part of the in-house program. Most of the resources of the bar prep program had emphasized MBE testing and review with some essay testing. The BPTF wanted more emphasis on improving essay writing and analytical skills needed for the bar exam. Students who were particularly "at risk" of not passing needed reinforcing essay skills in addition to practicing MBE questions. 87 The committee also proposed a shift to more intense essay writing skills and received a proposal from the PTEX Essay Writing Program. 84 Donald H. Zeigler, et aI., Curriculum Design and Bar Passage: New York Law School's Experience, 59 1. LEGAL EDuc. 393 (2008). 85 [d. The authors argue that their data shows a casual relationship between the preparation program and the bar passage rate, although the study did not use regression analysis to prove this hypothesis. 86 Memorandum from Byron Warnekin, Professor, University of Baltimore Law School, to Derek Alphran, Background and Overview of the Maryland Bar Exam (Mar. 31, 2006) (on file with the author). 87 Students who are considered at risk have lower numerical indicators such as law school GPA and LSAT scores. Many academic support programs direct attention to providing skills programs for at risks students. Because of limited resources, some academic support programs may be limited solely to at risk students. See Riebe. supra note 34.

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The American Bar Association also relaxed its rules on in-house bar preparation programs, authorizing schools to grant academic credit with some restrictions. ss Previously, under Standard 302-7, law schools were prohibited from requiring mandatory participation in bar support programs nor could bar class academic credit hours be extended to courses which counted towards the school's graduation requirements. s9 A school also could not require passage of a bar preparation class as a requirement for graduation. Following the ABA's new rules on law school bar preparation programs, the Director of the BPTF submitted a proposal for academic credit for a two-credit bar skills essay writing class on a pass/fail basis to the UDC-DCSL Curriculum Committee. 9o This proposal represented a pedagogical shift in the BPTF's approach. The class would focus on increasing essay writing skills with some substantive review. Moreover, the class would be taught by a group of adjunct law professors, directed by Professor Tanya Washington who was affiliated with the PTEX Company and who specialized in bar essay instruction. Many of the PTEX professors were from other area law schools and/or served as members of the state and federal judiciaries. The lectures focused on heavily tested areas of the Maryland Bar. There would be individual feedback on written essays assigned each week and in class administration and review of two essay questions per week. The Curriculum Committee approved the bar skills essay writing program on a pass/fail basis. 91 We continued to offer instruction on the MBE testing over a three day period using PMBR as a part of the bar skills class. In the summer of 2008, the BPTF also developed a pilot program aimed at repeat bar takers. The ABA relaxed its rule to allow for law school bar passage data for subsequent takers to be counted in tabulating the overall bar passage rate for accreditation purposes. The new program aimed at enhancing the essay writing skills and multiple choice testing, including the Multistate Performance Test. To direct the program, the law school hired Adjunct Professor Barbara Smith, who was an instructor in the legal writing program and an experienced

88 American Bar Association, Standard 301 (a) (2006-07), available at www.abanet.orgllegaled/ standards. The changes were recommended by the Section on Legal Education. 89 Id. The ABA has since rescinded the prohibition on counting credits towards graduation. However, schools cannot mandate participation as a condition of graduation. 90 Memorandum from Derek Alphran, Professor, UDC-DCSL, to Louise Howells, Professor, Chair of the Curriculum Committee (Nov. 2006) (on file with the author). The committee had a thorough discussion of the need to offer a for credit bar course. Several schools like the University of Baltimore and Howard Law School had begun to offer for credit bar courses. See also Minutes of Faculty meeting, Nov. 18,2006 (on file with the author). 91 UDC-DCSL Course Catalogue, available at http://www.law.udc.edu!?page=ASP.

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instructor in bar tutoring and bar preparation courses.92 The program was well received by alumni. 93 C.

PTEX Essay Writing Practicum

There are some cultural and structural reasons, specific to the legal academy, that may make law schools hesitant to implement in-house bar preparation programs, despite challenged bar passage rates. 94 However, "[p]roviding bar preparation as part of law school curricula does not need to change the orientation of doctrinal professors," and preparing students to pass bar exams "does not need to convert law schools into bar exam schools and may help students become effective attorneys. ,,95 An effective bar preparation course must be tailored to address and strengthen these known skills and knowledge-based deficiencies. Accordingly, the PTEX Bar Skills Essay Writing Course was developed to introduce and reinforce effective bar exam writing skills, within the context of the specific testing format of most bar essay exams and the Multistate Perfonnance Test. Moreover, the PTEX course adopts an integrated approach to bar preparation that is focused on teaching exam taking skills, writing skills, legal and factual analysis, time management, and effective study strategies. Bar preparation experts have observed: [T]hat students usually do not just randomly fail bar exams. Rather, when we work with repeaters we usually discover many deficiencies such as: 1) Failing to understand the "big picture" of the licensing process; 2) Underestimating the amount of hard work necessary to pass; 3) Failing to invest enough time in study hours; 4) Failing to plan in advance for the bar preparation period ... 5) Possessing deficient legal analysis skills such as identifying issues, stating rules, and applying rules to factual situations to reach logical conclusions; and 6) Failing to communicate effectively in writing. 96 The PTEX approach to teaching and reinforcing essay exam writing skills implements several factors that have been identified as "critical to academic support success." These include: 1) Grounding the learning process in specific substantive contexts facing students, but keep92 The program offers a ten week course focusing on heavily tested areas of the bar. The summer program also offered a three Saturday PMBR tutorial as part of the alumni program. Students enrolled in the essay class also took three Saturday workshops on MBE testing by PMBR at no cost to the students. 93 The overall 2008 bar pass rate also included results from the pilot bar class of repeat takers. 94 See Riebe, supra note 34, at 283 ("[L]AW SCHOOLS have not traditionally been the forum in which STUDENTS learn about and prepare for BAR EXAMS ••••"). 95 Riebe, supra note 34, at 289. 96 Riebe, supra note 34, at 279-80 (citations omitted).

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ing the substantive focus relatively narrow; 2) Explicitly explaining the learning process and skills such as reading, case briefing, outlining, studying, preparing for tests, and exam writing; 3) Providing explicit modeling of skills ... 6) Encouraging independent learning, focusing on reflective learning methods which encourage students to think about their own learning processes ... 8) Providing academic credit; 9) Providing repeated practice opportunities for applying new learning skills followed by immediate verbal or written feedback ... and 11) using professional teachers. 97 The following sub-section provides a description of the PTEX course and details how it is designed to facilitate and enhance effective bar skills competencies and performance on the writing-focused portions of the Bar Exam. 1.

Course Description

The PTEX Bar Skills Essay Writing class is a fourteen-week practicum that provides an intensive writing experience for students in preparation for the written portions of the bar exam, the essay examination,98 and the MPT.99 Though the specific focus of the course is on the writing portions of the bar exam, the class begins with an introductory PowerPoint presentation describing the purpose, format, and content of the bar exam, as well as highlighting the specific competencies essential to success on the different portions of the exam. loo Though there are some general competencies that are important to success on the bar (e.g., discipline, knowledge of substantive law, good exam taking skills), because the MBE differs dramatically in format and focus from the MPT and Essay 97 Riebe, supra note 34, at 293. 98 The length of the essay examination and the subject matter tested varies from jurisdiction to jurisdiction. However, most essay exams test the examinee's ability to spot issues, identify and analyze relevant facts in the context of controlling doctrine, and reason their way towards a well supported conclusion. 99 The MPT is a national examination designed to test an examinee's ability to apply fundamental lawyering to a factual scenario presenting a problem requiring legal resolution. It tests the examinees' ability to extract legal principles and facts from the library case file and to apply controlling doctrine to the facts at issue in a well organized an analytically sound motion or memorandum. The MPT instruction offered in the PTEX course addresses the most challenging aspects of drafting MPT answers: discriminating between relevant and irrelevant facts; identifying the controlling legal doctrine; engaging in well-reasoned analysis; and writing a well-organized response. Professors review administered MPT questions, using PTEX model responses, which provide a step-by-step road map for identifying issues, analyzing issues within the applicable legal framework, and drafting concise and well-structured answers. They also emphasize and reinforce use of the PTEX Exam Writing Technique™ in the context of MPT questions. 100 For a full discussion of the PTEX Writing Program, see The Writing Experts, available at http://www.ptexbar.com (last visited Nov. 23, 2010).

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Exam, different skill sets are essential for these written portions of the exam. 101 This information helps students appreciate the nature and character of the different parts of the examination they are preparing for, the ways in which the various parts are similar to and different from law school exams, and the kinds of preparation activities that will improve their performance on each portion of the exam. 102 It has been noted that "[t]he [Bar] exam is considerably different from the type of exams that law students have been exposed to either in law school or in their undergraduate training."to3 It is particularly important that students appreciate the difference between law school essay exams and bar essay exams because the similar format of the exam motivates students to believe that they are more similar than they actually are. Most bar essay examinations are written and graded by practitioners, not law professors. During law school, the focus is on teaching the evolutionary development of legal doctrines, and law school exams test the student's ability to engage in legal discourse with an emphasis on the subtle distinctions and nuances of the law. The bar essay exam, on the other hand, is used to test the quality and reasonableness of one's judgment in identifying issues, recognizing and analyzing key facts, and applying the relevant legal standards to those facts. 104 So, while a law-laden answer may earn big points on a law school exam, on most essay examinations, substantial points are allocated for issue-identification and factual analysis. Other important distinctions between law school and bar essay exams include: bar essays provide a shorter time frame for answering questions; bar essays present multiple-subject questions; and bar essays test an examinees ability to identify the subject matter area being tested in each question (e.g., whether the question is testing Torts or Contract law). In law school, a student, by virtue of being enrolled in a particular class, knows that the exam will test a particular subject area. Next, students are introduced to the PTEX Exam Writing Technique™ (Technique), a step-by-step jurisdiction and subject-matter neutral methodology for 101 See, e.g., Riebe, supra note 34, at 302-03 ("It is recommended that [s]chools ... ensure that students understand what the bar exam is ... [and] that students understand the structure of their states' bar exams."). 102 It is important for students to appreciate that certain kinds of preparation methods (e.g., using flash cards which strengthens one's ability to recognize the correct rule of law) may be more useful for the MBE but not as useful for the MPT and essay exam. The course instruction emphasizes that their preparation must include activities that prepare them for all portions of the bar. This is important because generally students spend a disproportionate percentage of their preparation time preparing for the MBE, which presents a more inviting format (multiple choice questions), and less time preparing for the MPT and essay exam questions which are formatted such that examinees are required to write their answers. 103 Day, supra note 63, at 335. 104 Day, supra note 63, at 337 (discussing the Multistate Essay Examination which, "[i]n addition to testing knowledge of subjects not tested on the MBE ... tests factual analysis, legal analysis and reasoning and communication skills").

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writing well-reasoned, well-organized, grader-friendly, responsive answers to essay exams and MPT questions administered under timed conditions. Students practice the Technique over the course of the semester, across a variety of testable subject areas, in the context of in-class writing exercises, homework exercises, and a final examination. During the introductory lecture, students are shown the primary goals of the course, which are: (1) to encourage them to use essay and MPT Bar Exam questions as diagnostic rather than prognostic tools; 2) to practice and master utilization of the Technique under simulated exam conditions; and 3) to habituate effective practice and review activities that will foster a sense of confidence in their approach to preparing for and taking the bar exam. Course instruction provides the following: 1) numerous in-class and take-home bar essay and MPT writing exercises; 2) a technique for expressing coherent, well-reasoned, and well-organized legal and factual analysis in response to bar essay and MPT questions; 3) diversified methods of feedback,105 including PowerPoint instructional review of all in-class writing assignments 106 and weekly graded feedback on essay and MPT writing assignments; 107 and 4) strategies for organizing and maximizing their bar preparation efforts. The PTEX faculty is comprised of a talented and experienced cohort of law professors and a member

105 See, e.g., Day, supra note 63, at 341 ("Law schools must give students better feedback regarding their performance."). Various modalities of feedback are provided to students enrolled in the JYfEX course to ensure that all types of learners benefit from the class. As the Day study stresses, it is important to "[r]ecognize and support students who learn differently." [d. Students may be visual, aural or kinesthetic learners or a combination of these learning types. To reach all learning types, feedback in the PTEX course is delivered in the form of: PowerPoint presentation based lectures, which responds to the visual and aural learning styles; video-taped classes where aural and visual learners can review the classes at their convenience; and the administration of practice exams in-class under timed conditions and model answers, which corresponds to the strengths and needs of kinesthetic learners. 106 Each answer is formatted to highlight identification of issues, organization of issues, and presentation of legal and factual analysis using a grader-friendly format that responds to the grading method used by most Boards of law examiners (i.e., short grading periods, practitioners, etc.). Each answer is also formatted to emphasize and reinforce using the JYfEX Technique™ so that students are receiving consistent instruction over the course of the semester and learning to apply the Technique in the context of a variety of testable subjects. 107 See Lorenzo A. Trujillo, The Relationship Between Law School and the Bar Exam: A Look At Assessment and Student Success, 78 U. COl.o. L. REV. 69, 76 (2007) ("State bar examiners use one of two methodologies for grading the essay portion of the exams: holistic or analytical .... Holistic grading consists of comparing the whole of each essay against a defined performance standard .... On the other hand, analytical grading deconstructs the analysis and assigns a point value to each issue and sub-issue."). The PTEX grading methodology employs both assessment measures and provides students with a numerical assessment (i.e., a holistic indicator) and narrative comments evaluating the quality of specific aspects of the answer (i.e., an analytical indicator). The PTEX Diagnostic grading form is designed to standardize feedback and direct students to recognize the strengths and weaknesses of their written responses to essay exam questions.

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of the federal judiciary.l0B Each faculty member teaches questions in the subject area in which he or she practices, researches, and/or teaches, so each faculty member is able to direct students in the use of the PTEX Technique to write responsive essay and MPT answers in their doctrinal area of expertise. 2.

Course Format and Materials

The PTEX course begins with an emphasis on essay exam writing, transitions to a focus on the MPT, and culminates with a final exam testing both question types. The class is organized based on an active learning model that is characterized by question-taking, followed by direct and constructive feedback. 109 As an application-based course, students spend most of their class time taking questions under simulated exam conditions. I to During the review, which immediately follows the administration of each question, students receive feedback in the form of a PowerPoint presentation of a model answer,111 learn about the aspects of their answer that are essential to achieving a passing score, and learn to evaluate accurately the quality of their own answers.112 To further reinforce this instruc108 See PTEX: Faculty who Practice and Teach, available at http://www.ptexbar.com/faculty. htm. The PTEX faculty is led by Professor and PTEX Course Director Tanya Washington. Professor Washington is a recently tenured Associate Professor of Law at Georgia State University College of Law. Her team of distinguished PTEX faculty include Professor Barbara Babb, Professor Charles Tiefer, Fourth Circuit Judge Andre M. Davis, and Professor Roger Fairfax. All PTEX faculty have significant experience practicing in their areas of instruction and substantial law teaching experience. 109 See, e.g., Day, supra note 63, at 345 ("Exams can be deconstructed for students by working through the question, exposing the relevant issues, and then demonstrating how the student should apply legal analysis to the problem .... If professors can teach students to deconstruct essay questions and hone their writing skills, they immeasurably enhance students' chances of passing the exam."). 110 Following the introductory lecture, seven classes are devoted to essay exam writing instruction and the administration of essay exam questions testing subjects that are tested on bar exams in most jurisdictions: Torts; Property; Constitutional Law; Contracts; Criminal Law/Criminal Procedure; Family Law; and Civil Procedure. Three classes are devoted to Multistate Performance Test writing exercises, and one class is devoted to the administration of a final examination comprised of three essay exam questions and one Multistate Performance Test question. The final is formatted like an actual bar examination and is administered under simulated exam conditions to afford students the actual bar exam experience. 111 The administration of each in-class question is followed by a thorough review of the answer by a PTEX Instructor who presents a model answer. These answers, which are prepared and provided by the Instructors, emphasize the applicable substantive law and the most effective and time efficient way to approach, organize and write reasoned, responsive answers. Students are encouraged to ask questions as part of the review of all essay and MPT questions administered in class. Over the course of the semester, students take thirteen in-class essay questions and two in-class MPT questions. All of the model answers are designed to emphasize application of the PTEX Technique and to provide students with an example of a well-organized, grader friendly format for their essay exam and MPT answers. 112 See, e.g., Day, supra note 63, at 344 ("Law schools must produce better legal writers by improving essay exam writing. Many professors make available to students sample exams and questions. But professors often do not explain to students how to achieve the results. Putting samples on class websites or on reserve or handing them to students is insufficient. The learning is passive at best.

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tion, students are assigned weekly homework assignments, which require answering one essay exam question or one MPT question. A self-assessment form must be completed and turned in with each homework assignment. 113 The self-reflection exercise directs students to evaluate their answers in the areas of organization, issue spotting, legal knowledge, factual analysis, and effective written expression. Each homework assignment is graded by a PTEX Instructor and returned to the students with both a numerical assessment and narrative commentary reflecting the quality of the answer.114 The in-class drills and homework assignments are designed to allow students to master the competencies essential to effective exam writing and cement good study habits that target those competencies. The self-reflection exercises assist students in assessing accurately the quality of their written responses and developing their ability to recognize and cure specific deficiencies that impair the quality of their answers. Strengthening these skill sets benefits students during the course and improves the effectiveness of their bar preparation during the summer. Because of the application-based character of the course, attendance, active class participation, and completion of all homework assignments are essential to ensuring that students derive the maximum benefit from the class. llS The twocredit course is offered pass/fail, and regular attendance, completion of weekly in-class and take-home written assignments, and successful completion of the final examination are requirements for course credit. 116 The course materials consist of a workbook containing PTEX Attack Strategy Outlines, which are outlines that highlight distinctive features of the substantive law frequently tested on bar examinations. These outlines are uniquely designed to facilitate conceptual understanding of the law and issue spotting. The workProfessors must teach the student how to deconstruct the questions to determine what is asked and needed and highlight what is good and bad about the sample writing."). 113 The self-assessment form requires students to identify the strengths and weaknesses of their answers, explain what caused the deficient aspects of their answers (e.g., missing issues due to failure to read the facts), and state how they will address/correct these deficiencies. 114 Grading of homework assignments is done according to a detailed grading rubric so that students receive consistent, standardized evaluations of their essay responses. Homework assignments are returned to students within one week of their submission so that they can use the feedback provided to improve the quality of their exam writing on other in-class and homework writing assignments. 115 See, e.g., Day, supra note 63, at 330 ("Students must regularly attend class and actively participate, [and] answer the exam questions asked with cogent analysis .... "). 116 See Day, supra note 63, at 350 ("Classroom learning is critical to the mastery of law and cannot be replicated by distance learning or solitary study. If schools hold to attendance requirements and strive to make classes professionally sound, schools will likely help students to pass the bar."). Students enrolled in the PTEX course are permitted no more than two absences or two missed homework assignments or any combination thereof if they wish to earn course credit. There is no passing score requirement for the final examination.

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book also contains essay questions from past Maryland bar exams and Board and Student Representative Answers. 117 Students are provided past MPT Exams and PTEX model answers for each MPT question, which are designed to teach students how to effectively and efficiently approach, organize, and analyze responsive issues, doctrines, and facts under timed conditions. All practice questions, including the final examination, are formatted like actual exam questions so that students become familiar and comfortable with the look and feel of the written portions of the bar exam} 18 Although the course is focused on exam writing techniques 119 (not memorization of substantive law) to effectively teach and strengthen issue spotting, analysis and essay exam writing skills requires the use of a body of substantive law to serve as a context for imparting this skills set. 120 Maryland law is used in the PTEX course for that purpose. The practice questions assigned for homework and in-class administration are designed to test general propositions of law, however, that are frequently tested in all jurisdictions rather than the substantive law of any particular jurisdiction. The course ends with students receiving their graded final examinations and presentation of the PTEX Schedule for Success™, a study schedule that provides strategies for effective bar preparation during the summer. This daily calendar helps students to organize their time and adopt a disciplined approach to preparing for the bar exam. 121 It directs examinees to engage in specific preparation 117 The Board Answers are prepared by the authors of the Maryland Bar, and the Student Representative answers are answers selected by the Board written by examinees sitting for that administration of the bar. The PTEX model answers that are presented to students in class are distinct from the Board and Student Representative answers. PTEX model answers are designed to teach students how to present the issues they have identified as responsive to the call of the question and the relevant legal and factual analysis of those issues in an organized and grader friendly format. The Board and Student Representative Answers present the responsive issues and relevant law and analysis, but do not provide students with guidance as to how to organize and express their issues and analysis, which are key exam writing skills. 118 The final examination is formatted like an actual bar examination and administered under simulated exam conditions. It is a one hour and sixty-five minute exam comprised of three essay questions and one MPT question. 119 Richard Cabrera, Working to Improve: A Plan of Action for Improving the Bar Exam Pass Rate, 27 WM. MITCHELL L. REV. 1169, 1186 (2000) ("Experience tells us that the reason most people fail is not lack of substantive knowledge, but the failure to correctly apply substance to the exam's hypotheticals. "). 120 See, e.g., Riebe, supra note 34, at 294 ("One of the most significant findings in the UCLA study was that teaching skills combined with substantive material was more effective than teaching either skills or substantive material alone .... [T]his makes sense; skills are more effectively learned when students can immediately practice and apply those skills in connection with learning substantive material, and substantive material is more effectively learned when students actively process it in skills-based tasks.") (citation omitted). 121 See, e.g., Riebe, supra note 34, at 308 ("Educational research demonstrates that students who take control of their learning and plan effectively are more successful learners than those who do

YES WE CAN, PASS THE BAR.

33

activities (i.e., memorization, practice, and review), on a daily basis, that target the relevant skill set for improved performance on the MBE, the Essay Exam, and the MPT. 122 It eliminates the guess work that many examinees encounter as a challenge to adequate preparation, and it allows examinees to track their performance in each testable subject over an eight week period, so that they can make informed choices about how to spend their valuable study time most effectively. VI.

UDC-DCSL BAR DATA

REVIEW

2003-2008.

According to the 2008 site report by the ABA, the LSAT scores of UDCDCSL students for the past three years are "virtually unchanged at 151 or 152 with a similarly steady undergraduate GPA of 3.0 to 3.04 . . . . These show a consistent pool of available applicants within the academic achievement level sought by the school."l23 During this time, however, UDC-DCSL's Maryland first time bar pass rate increased from 64% to 820/0. To shed light on this increase, Dr. 1. Vincent Eagan, an economics professor, lawyer, and national expert on disparity studies, conducted an analysis on the bar passage data, academic profiles of the students, and participation in the bar skills class during the review years in question. A.

Background to the Data Analysis

The study period for this analysis covered UDC-DCSL students who graduated from 2003 through 2008. There were 324 records in the data file. Thirtythree students either did not take the bar exam or there is no record of them taking the bar exam. There were 291 records with complete data for analysis. As noted above, the bar skills preparation workshops covered 2003 through 2006, and the PTEX practicum covered 2007 and 2008. 124 Although virtually every student who was listed with a grade in the PTEX course received a grade of Pass, no judgments were made as to the quality of participation or performance in the class. There was no other data on attendance in the class or level of commitment by the students. 125 Finally, there were no pure control groups in this study.126 not. Accordingly, students should be encouraged to take control of and plan for their bar preparation period and bar exam."). 122 See, e.g., Riebe, supra note 34, at 311-12 ("All students should create an individualized plan that establishes a specific, day-by-day schedule before their bar review courses begin .... Students' study schedules should include time to attend bar review classes, study the substantive law, complete practice questions, and refresh .... [S]tudents should map out their study schedules in writing to provide themselves concrete plans and to ensure those plans are realistic."). 123 American Bar Association, UDC-DCSL Site Report (2008) (on file with the author). 124 Over the whole study period, both classes will be referred to as "the bar review class." 125 See supra text accompanying note 116 (class attendance, homework assignments, and exam completion were requirements for passing the course).

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UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW

Students were not randomly assigned to the bar review class in order to allow a comparison of participants and non-participants. 127 B.

Bar Passage Rates and Law School G PA

The overall passage rate for UDC-DCSL graduates over the study period was 80.1 %. Over 59.1 % of students passed on their first attempt and 18.5 percent on their second attempt. First, as would be expected, there were significant differences in pass rates based on UDC-DCSL GPA. As shown in Table 1 there was a difference in bar passage rates on first attempt of 36.8% between students in the upper half of the law school GPA distribution and the bottom half of the GPA distribution. The bottom half of the class was students with a GPA of 2.91 and below. There was a bar passage rate of 92.7% for first and multiple attempts for the top half of the class and 66.4% for the bottom half of the class. This difference in bar passage rates is more pronounced when GPAs are broken out by quartile (Table 2). The bar passage rate on first attempt of the top quartile was 86.80/0 and of the bottom quartile was 25.0%. Over 94.2% of students in the top quartile had passed the bar after their second attempt as compared to 46.0% of students in the bottom quartile. Table 1 Bar Passage Rates and Law School GP A UDC-DCSL 2003-2008

Bar Pass Rate First Attempt

Bar Pass Rate Multiple Attempts

Bottom Half

40.0%

26.4%

Top Half

76.8%

15.9%

Rank

Source: UDC-DCSL

126 Cf. Zeigler et aI., supra note 84. This present study is in contrast to the results of experimental and control groups used in the New York Law School study. 127 See Knaplund & Sandler, supra note 73 (discussing ethical issues with having control groups in settings involving academic evaluation).

YES WE CAN, PASS THE BAR.

35

Table 2 Bar Passage Rates, First Attempt and Law School GPA By Quartile UDC·DCSL 2003·2008 Bar Pass Rate First Attempt

Bar Pass Rate Second Attempt

1st 2.59 or less

25.0%

21.0%

2nd 2.60-2.90

52.0%

24.7%

3rd 2.91-3.15

67.1 %

21.0%

4th 3.16 or higher

86.8%

7.4%

Quartile

Source: UDC-DCSL

C.

Bar Pass Rates and Law School GPA, 2007-08

The UDC-DCSL bar passage rate after the first attempt increased significantly from 2003-2006 to 2007-2008. As shown in Table 3 the bar pass rate on first attempt in the data increased from 52.7% in 2003-2006 to 69.7% in 2007-2008, an 18.00/0 increase. The bar passage rate for the bottom half of the class increased 19.60/0, from 31.3% to 50.9%. Table 3 Bar Passage Rates and Law School GP A By 50 Percentile UDC·DCSL 2003·06; 2007·08

2003·06 2007·08

Improvement in First Attempt

Improvement in Overall Pass Rate

18.0%

7.5%

19.6%

5.3%

All Students Bar Pass Rate First Attempt

51.7%

69.7%

Bar Pass Rate Multiple Attempts

26.7%

12.6%

Bar Pass Rate First Attempt

31.3%

50.9%

Bar Pass Rate Multiple Attempts

32.5%

18.2%

Bottom Half of Class

Source: UDC-DCSL

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UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEW

D.

Bar Review Skills Program! PTEX

The next issue, and the critical one for this article, is the impact of the bar review program on bar passage rates. Over the entire study period there was a 14.7% difference between bar passage rates on the first attempts of those who participated in the Bar Skills Class/PTEX practicum and those who did not participate in the bar review class (Table 4). For students in the bottom half of the class, there was a 25.0% improvement in the bar passage rates of students who took the Bar Skills Class/PTEX practicum versus those who did not participate in the class. Table 4 First Time Bar Passage Rate Bar Review Class Participation UDC·DCSL 2003·2008 Class Participant Bar Pass Rate First Attempt

Non Participant Bar Pass Rate First Attempt

Percentage Improvement

Overall

62.50/0

47.8%

14.70/0

Bottom Half of Class

46.60/0

21.6%

25.0%

Source: UDC-DCSL The differences were less pronounced for 2007-2008. Overall the bar passage rates for students who participated in the PTEX classes were somewhat lower than for those students who did not participate in the class. The bar passage on first attempt for the bottom half of the class was larger for students taking the PTEX class, but the percentage improvement was not as significant (about 9.2%).

37

YES WE CAN, PASS THE BAR.

Table 5 Bar Pass Rate Bar Review Class Participation UDC-DCSL 2007-2008

Class Participant Bar Pass Rate First Attempt

Non Participant Bar Pass Rate First Attempt

Percentage Improvement

Overall

68.8%

73.9%

-5.10/0

Bottom Half of Class

52.1%

42.9%

9.2%

Source: UDC-DCSL E. Statistical Tests The next step was to test whether the differences observed in the bar skills class was a statistically significant factor in the increased rate of bar passage. First, we tested how the course affected the class as a whole, and top half and bottom half of the class separately, again as measured by UDC-DCSL GPA using a chi-square (X2) test. 128 We can reject the null hypothesis for the whole class. The increase in bar passage overall from taking the bar skills review class was statistically significant (X2=l1.02, p=0.0004).129 We can also reject the null hypotheses for the bottom half of the class (X 2=7.23, p=0.0269). For the top 50 percentile we cannot reject the null hypothesis (X2 =1.25, p=0.5353). The results differed for the PTEX 2007-2008 period. For the class overall we cannot reject the null hypothesis (X 2=1.86, p=0.3906). We also cannot reject the null hypothesis for the bottom half of the class. Because of the few number of 128 See, e.g., Jellum & Reeves, supra note 15, at 674 n.168 ("[The chi-square test determines] if a difference between the percentages of individuals in two groups responding to the same treatment is significant at a specified probability level. That is, how likely it is that the observed response-rate difference could be due imply to chance or due to another plausible hypothesis."). The chi-square tests used in this paper use a 2 x 3 matrix, with first time passage, eventual passage, and no passage, as compared to whether the bar review class was taken or not. The null hypotheses are that the PTEX course did not improve the bar passage rate for either the top or bottom half of the class, or the class as a whole. 129 Statistical significance shows how likely a result is due to chance. It does not necessarily mean there is a strong relationship. This paper follows the convention of researchers in this area, and elsewhere, of using a 5% significance level, meaning that the results have a 5% chance of not being true.

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UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEW

observations the Fisher's Exact Test was used for the bottom half of the class for 2007-2008,130 resulting in p=0.8627, which was not statistically significant. F.

LSA T Scores and Bar Passage Rates

As noted above, UDC-DCSL set a LSAT floor on admissions of 144 in the 2003 academic year. 131 There was a substantial change between the admissions of low LSAT score students over the study period. Prior to 2007, 70.3 % of UDCDCSL students had LSAT scores below 150. For students graduating in 2007 and 2008 only 46.6% of the students had LSAT scores below 150. More significantly, 5.,1 % of the students in the 2007 and 2008 graduating classes had an LSAT score below 145. In contrast, 29.1 % of students who had a LSAT below 145 graduated in the 2003-2006 period. Thus, the data does support the contention that UDCDCSL became more selective over the study period, particularly vis-a-vis at-risk students. For students with LSAT scores below 150 there was a 19.0% improvement in first time bar passage for students taking the PTEX practicum (Table 6). Table 6 Bar Pass Rate Bar Review Class Participation UDC·DCSL 2007·2008

Below 150 First Time Bar Passage

Class Participant

Non Participant

Percentage Improvement

50.0%

31.0%

19.0%

Source: UDC-DCSL In this case the null hypotheses was that the PTEX class did not improve bar passage rate for the bottom LSAT group. We can reject the null hypothesis for the bar skills essay writing class for low LSAT students in the 2003-2008 period 130 See, e.g., Eric Weisstein, Fischer's Exact Test, WOLFRAM MATHWORLD, http://math world.wolfram.com/FishersExactTest.html (last updated Nov. 19,2010). The Freeman-Halton extension of the Fisher Exact Probability Test was used. The Fisher Exact Test is another test used to compare nonrandom associations of categorical variables. The test is used for small samples. 131 See Gail L. Heriot & Christopher T. Wonnell, Standardized Tests Under the Magnifying Glass: A Defense of the LSA T Against Recent Charges of Bias, 7 TEX. REV. L. & POL. 467, 475 (2003). (LSATscores are preferred over undergraduate GPAs because undergraduate GPAs are a function of the difficulty of undergraduate majors, institutions, and grade inflation),

YES WE CAN, PASS THE BAR.

39

(X2=4.85, p=O.0885); thus the relationship between the PTEX class and bar passage for low LSAT students was statistically significant. 132

G.

Logistic Regression133

More detailed results from a logistic regression analysis are contained in the appendix to this article. This analysis covers the impact of UGPA, UDC-DCSL Cumulative GPA, LSAT scores, and the PTEX essay exam writing practicum on first time bar passage rates for students in the bottom half of the class, again as measured by the UDC-DCSL Cumulative GPA. These results are largely consistent with the previous findings. Over the whole period, UDC-DCSL GPA, LSAT scores, and the bar review class/PTEX were statistically significant variables in explaining the odds of bar passage for students with a low GPA. The relationship between these variables and first time bar passage was also positive. UGPA did not have a statistically significant impact on bar passage rates in this model. Most significantly, the results show that holding UGPA, UDC-DCSL Cumulative GPA, and LSAT scores constant, the odds of a low GPA student passing the bar exam on the first time was 157 % higher if they took the bar skills programIPTEX practicum than if they did not take the class. 134 CONCLUSION

We want to continue to sail! Our article has demonstrated that, over the past five years, UDC-DCSL's bar passage program and increased academic profile had a significant impact on the improved bar passage rate. No single factor is responsible, but rather, it is a combination of increased admissions scores, strengthening of the academic curriculum, and a full scale effort at early bar preparation. 132 Cf, lellum & Reeves, supra note 15, at 675. ("[I]mposition of the floor LSAT was not responsible for the improvement we observed; hence, we again are left with the bar support program as the explanation."). 133 See, e.g., Logil Regression, UCLA Academic Technology Services, www.ats.ucla.edulstatl spss/dae/logit.htm. Logistic regression is commonly used in statistical analysis where there is a binary dependent variable. The dependent variable in this instance is first time bar passage. The dependent variable (first time bar passage) is binary in this case because the result is either yes or no. In logistic regression the dependent variable is the natural log of the odds. Linear regression generally does not work in this instance because of the violation of homoscedasticity when there is a binary dependent variable. Homoscedasticity is the assumption that each probability distribution for the dependent variable has the same standard deviation as each probability distribution for the independent variable. 134 See infra App. A. In the logistic regression with multiple independent variables each estimated coefficient in the model is the expected change in the log odds of first time bar passage for a unit increase in the independent variable holding the other independent variables constant. These estimated coefficients are the numbers in the coefficient column in the appendix. These coefficients are then transformed into odds ratios by taking exp(coefficient). in this case, exp (0.947), resulting in the odds ratio of 2.5779. The odds ratio of 2.5579 has the interpretation given in the paragraph above.

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UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEW

Our data shows that the PTEX class has had a significant impact on the bar passage rate of students with lower LSAT scores. The data also shows there was a slight impact on bar passage for students taking the PTEX class in the bottom half of the class. These results highlight the importance and efficacy of an intensified focus on skills-building. Moreover, there was an 18% increase in bar passage after the PTEX class was implemented. Multiple-choice testing through the PMBR spring workshop has been a central component of the program in helping students with MBE early preparation for the past five years. Increasing student awareness about the bar and early preparation has also been instrumental in the program's success. To a large degree, the bar skills program helps fulfill the mission of UDCDCSL. Admitting students with lower numerical academic indicators gives a chance to those who would otherwise be left without the opportunity for a legal education. The school's mission from its Antioch Law School predecessor to the present has been to provide a legal education to those who are under-represented at the bar. In many, if not most, instances, these students are minority students who have been socially and educationally disadvantaged. Once students are admitted, there is an obligation to help them prepare for and pass the bar. As the ABA has since recognized, law school bar preparation programs and academic support programs do help students fulfill that mandate. Increasing the bar passage probabilities of students through our bar support program is an important aspect of legal education beyond the traditional classroom. It helps students to enhance their skills and go on to become lawyers fulfilling UDC-DCLS 's mission of serving the public.

YES WE CAN, PASS THE BAR.

41 ApPENDIX 135

Table A Logistic Regression Results First Time Bar Passage Rate UDC-DCSL 2003-2008 pValue

0.4705

-0.9499

0.3422

0.1301

0.0455

2.8554

0.0043

0.947

0.4808

1.9696

0.0489

2.5012

0.9728

2.5711

0.0101

-25.6476

6.8815

Odds Ratio

95%

C.I.

Coefficient

S. E.

Undergrad GPA

0.6396

0.2543

1.6084

-0.447

LSAT Score

1.1389 1.0416

1.2452

Took Essay Writing Class

2.5779

6.6147

UDC-DCSL Cumulative GPA

1.0046

12.1973 1.8122 82.0984

CONSTANT

*

*

*

zStatistic

Variables

-3.727

0.0002

Bold indicates statistically significant variables Convergence: Iterations: Final -2*Log-Likelihood: Cases included:

Converged 5 165.3746

144

Test

Statistic

D.F.

P-Value

Score

25.9764

4

0

Likelihood Ratio

28.7725

4

0

135 A logistical regression analysis underscored earlier findings of the importance of the bar skills program. As of this writing it is the first study of bar passage programs to illustrate the results through a logistical regression analysis. Our study has indicated that bar preparation programs can contribute to overall passage and contribute to the empirical research of the efficacy of such programs.

THE DISTRICT OF COLUMBIA v. THE 50 STATES: A 21st CENTURY LAWSUIT TO REMEDY AN 18th CENTURY INJUSTICE Timothy Cooper* INTRODUcnON

For 190 years, resourceful residents of the District of Columbia ("D.C."), both indignant because Congress and state legislatures have failed to pass the necessary legislation to grant them equal representation in the U.S. Congress, and humiliated by Congress' plenary authority over them, have attempted without success to adjudicate an effective legal remedy to win equal rights under the law. Their inventive yet doomed challenges have claimed that the U.S. Constitution, which circumscribes their fundamental rights by granting representation only to the "people of the several states," is unconstitutional, arguing, among other things, that the denial of equal congressional representation violates the political principle of no taxation without representation; infringes on their right to Equal Protection under the 5th and 14th Amendments; and contravenes their right to a republican form of government under Article 4. Thus, U.S. courts have left the District of Columbia without legal recourse to overturn a 210-year-old injustice, permitting a subversion of its residents' natural rights, and in the prescient words of Rep. John Smilie prior to the passage of the Organic Act of 1801, which served to officially disenfranchise them, made any who lived in the District "not a citizen, but a subject."· As unsympathetic as U.S. courts have been to the District's legal challenges, the District's fortunes have faired considerably better before the world's leading human rights monitoring institutions charged with monitoring u.S. compliance with its own human rights obligations under international law. In fact, so sympathetic have these rights-monitoring institutions been that they have unanimously declared the denial of voting rights to the District as an international human rights violation, and called on the United States to remedy this abuse by adopting such legislation as may be necessary to grant them equal rights under the U.S. Constitution. The fact that official U.S. policy toward the residents of its own capital city has been found to violate internationally recognized human rights standards should be sufficient inducement for the national government to forcefully act, but it hasn't, which reaffirms the widespread notion that the United

* To Frank Karel and Jim Gray, who reached for the impossible, and to all the true believersyou know exactly who you are. And for Jo, Ian, Arran, and Dylan, who contributed in ways too innumerable to count and too significant to summarize. 1 6 ANNAl_'i OF CONGo 997 (1801). available at http://memory.loc.gov/cgi-bin/ampage?collId=lIac &fileName=01 OlllacO 1O.db&recN um=496.

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UNIVERSITY OF TilE DISTRICT OF COl.UMBIA LAW REVIEW

States practices a policy of "American exceptionalism" -one that allows it to exist within and without its legal obligations under international law- free, on the one hand, to call on every other nation to comply with their own human rights obligations; while on the other hand ignoring U.S. obligations when convenient. This double standard has contributed to the U.S. Governments' international reputation for arrogance, and has damaged its credibility as a defender of human rights worldwide, making it that much easier for rogue nations to justify non-compliance with international human rights standards, at the expense and suffering of their people. For example, the United States' effort to influence reform in the Hong Kong legislature has been retarded by its failure to remedy the non-voting status of the District of Columbia, as is noted by former House of Representatives member Rep. Tom Davis (R-VA): I got it in Hong Kong with the vice-mayor [Donald Tsang] when I brought up democracy in Hong Kong because we had been briefed on that by Martin Lee [Hong Kong's leading pro-democracy leader] and the vice mayor said to us: "Give your nation's capital the right to vote and then come talk to us about democracy in Hong Kong.,,2 The District of Columbia's lack of equal congressional voting rights has also enabled foreign governments to deflect criticism away from their own human rights abuses. For example, on November 2, 2004 the Republic of Belarus introduced in the Third Committee of the 59th Session of the United Nations General Assembly, a draft resolution "On the Situation of Democracy and Human Rights in the United States of America." The Belarus Embassy press release read: The draft resolution shows that any country in the world can become an object of legitimate concern in the sphere of human rights. The document brings up as matters of primary concern the numerous cases of violations of human rights committed in the United States of America, namely in the sphere of electoral procedures, civil liberties, political and other rights. 3 The resolution read in pertinent part: Guided by the purposes and principles of the Charter of the United Nations, the provisions of the Universal Declaration of Human Rights, the 2 World Rights, http://world-rights.orglus/HK_Vice_Mayor_on_DC_Votin~RighC012505.htm (as said on WTOP Radio on January 25, 2005). 3 Press Release, Embassy of the Republic of Belarus in the United States of America, Introduction by the Republic of Belarus of a Draft Resolution "Situation of Democracy and Human Rights in the United States of America" in the Third Committee of the 59th Session of the United Nations General Assembly (Nov. 4, 2004). available at http://www.belarusembassy.orglnews/digests/prl10404. htm. (Contact author for website information).

THE DISTRICf OF COLUMBIA v. THE 50 STATES

45

International Covenants on Human Rights and other applicable human rights instruments .... Noting that the United States is a member of the Organization of America States (O.A.S.) and is obliged to observe the human rights standards under the O.A.S. Charter, and aware that O.A.S. Inter-American Commission on Human Rights on December 23, 2003, decided that the denial of equal participation by the residents of Washington D.C. in their own national legislature by duly elected representatives constituted violations of provisions of the American Declaration of the Rights and Duties of Man, Noting the Needs Assessment Mission Report on the United States of America Presidential Elections of the Organization on Security and Cooperation in Europe (ODIHR.GALI74/04) .. , . Urges the Government of the United States ... [t]o bring the electoral process and legislative framework into line with international standards ... [and t]o take the necessary steps in accordance with its constitutional process and with the provision of the International Covenant on Civil and Political Rights as well as with respect to the recommendations made by the Inter-American Commission on Human Rights, and grant the residents of Washington D.C. an effective remedy, which includes adopting the legislative or other measures necessary to guarantee to them the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their national legislature .. , ,4 After succeeding in its purpose of embarrassing the United States and prompting the U.N. to stop action on a U.S. resolution ostracizing Belarus, the draft resolution was withdrawn on November 19, 2004. Part I of this Article will define international law and its primary sources, including customary international law and its development in these areas: state practice as customary law on the right of representation for all people in the national legislature; whether states generally and consistently follow such a practice out of a sense of legal obligation; dissenting state views exempting them from binding customary law; "instant" customary law and "regional" customary law; declarations and resolutions made by international organizations contributive to making customary law on the matter of representational rights; and decisions and findings of international tribunals and other global bodies, including legal experts and scholars on the question of the right to vote under international law. Part II will examine the contours of a new legal strategy that the author proposes the D.C, Government consider implementing on behalf of the disen4

/d.

46

UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEW

franchised residents of the District. This innovative legal challenge draws on customary international law, as more fully informed by the recent findings and recommendations made by international panels of human rights experts on the question of D.C. voting rights, and the First and Ninth Amendments. In order to vindicate these rights, in the proper jurisdiction and by identifying the appropriate defendants in a cause of action, such a complaint would be filed in an original action before the u.s. Supreme Court.S It would name as defendant, not the u.s. Congress or the Commerce Secretary, but the State Legislatures, Governors, and Attorneys General of the Several States, because the District's continuing lack of voting rights are fairly traceable to these would-be defendants. Moreover, they enjoy the constitutional authority under Article 5 to convene state conventions for the purpose of proposing a constitutional amendment to fully remedy the anomalous disenfranchisement of approximately 600,000 American citizens, who bear all of the responsibilities of citizenship, but do not enjoy one of the world's most fundamental rights: the right to equal representation in the national legislature of their country through duly elected representatives. Part III will look at the use of foreign jurisprudence and international law in u.S. Supreme Court cases and the standards for invoking it, as well as provide a brief overview of where Associate Justices stand on the application of intern ationallaw and foreign law in U.S. cases. The application of foreign jurisprudence in U.S. cases may signify their positions in any new legal challenge to win equal rights for the citizens of the District of Columbia in the Court. I.

CUSTOMARY LAW IN THE CONTEXT OF VOTING RIGHTS IN THE DISTRICT OF COLUMBIA

A.

The Application of International Law in Support of Equal D. C. Voting Rights

The American Law Institute ("ALI") defines "international law" as consisting "of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.,,6 It also notes more generally that international law is law "that applies to states and interna5 U.S. CONST.art. III, § 2 (provides for Supreme Court original jurisdiction in controversies between the Several States). See also United States v. Texas, 143 U.S. 621 (1892); California v. S. Pac. Co., 157 U.S. 229 (1895); 22 MOORE'S FEDERAL PRAcnCE §§ 400-499 (3d. ed. 2010) (suits between a state and citizens of another state are also specifically consigned to the Court's original jurisdiction). 6 See RESTATEMENT (TIIIRD) OF TilE FOREIGN REI.ATIONS LAW OF TilE UNITED STATES § 101 (1987).

THE DISTRICf OF COLUMBIA v. THE 50 STATES

47

tional (intergovernmental) organizations," and that is "contained in widely accepted multilateral agreements."? Article 38(1) of the Statute of International Court of Justice has established four main "sources" of international law as auxiliary ways to discern rules of law, including "international conventions, international customs, as evidenced by a general practice accepted as law, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations. ,,8 These so-called "sources" of international law are considered authoritative by the ALI, and are recognized as such in its Restatement. The Restatement also recognizes its binding nature, defining international law as rules of law "applicable to a state or international organization that cannot be modified unilaterally by it.,,9 Moreover, the U.S. Supreme Court, in The Paquete Habana, recognized binding international law. to Thus, if evidence can be produced in U.S. Courts proving that the continuing denial of equal congressional voting rights to the District of Columbia on general terms of equality violates international law, as federal common law, together with rights made available to them under the Bill of Rights, U.S. Courts may consider themselves bound to render a declaratory judgment in favor of the District's right to elect voting representatives to Congress. Accordingly, this contribution asks whether the right to vote in the national legislature of one's own country through duly elected representatives is a right secured to the citizens of the District of Columbia under international law, and if so, does international law compel U.S. courts to recognize that right? B.

Customary International Law as General and Consistent State Practice

The Restatement defines one source of international law as a rule of law accepted by the community of nations in the "form of customary law." It interprets customary international law ("CIL") as following from "a general and consistent practice of states drawn from a sense of legal obligation" -opinio juris sive necessitatis. Consequently, any new legal challenge on behalf of equal D.C. voting rights based on customary international law will, of necessity, require that the District prove that there is in existence today a global state practice, both general and consistent, and followed from a sense of legal obligation, which provides the citizens living in the world's capital cities the right to representation in the national 7 /d. emt. d. 8 Acts and Documents No.6: Charter of the United Nations, the Statute and Rules of Court and Practice Directions, available at http://www.icj-cij.orgldocuments/index.php?pl=4&p2=2&p3=0. 9 RESTATEMENT (Tllllm) OF TilE FOREIGN RELATIONS LAW § 101 reporters note 1. 10 The Paquete Habana, 175 U.S. 677 (1900).

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legislature of their countries on general terms of equality, whether they live in city-states, unitary systems, or federal districts. If this practice can be demonstrated, then U.S. Courts would be faced with a dynamic new question regarding the District of Columbia's alleged right to equal political participation, one that would create considerable tension between international law and the U.S. Constitution. In any event, such a vital question put before the u.s. Supreme Court during this era of increasing globalization, could provide the Court with the opportunity to, once and for all, resolve a 200-yearold injustice, could end a serious human rights blotch on America's record, and could harmonize state practice not only in the Western Hemisphere, but across the globe. C.

Evidence of State Practice and opinio juris

The Restatement notes that the "the process of determining whether a rule has been accepted as international law depends on the particular source of internationallaw indicated."ll Accordingly, the best evidence of general state practice regarding the right of all citizens to enjoy equal representation is found in official documents such as state constitutions and applicable statutes. While a state-bystate survey of the representational rights granted to capital city residents in the 194 national legislatures of U.N. member states may be required to posit definitive proof of universal state practice regarding this right, for the purposes of this contribution it will be assumed that the United States is unique in circumscribing this right to the citizens of the District of Columbia. Regardless, state practice need not be universally followed to become customary law. According to the Restatement "[a] practice can be general even if it is not universally followed . . . [and] there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity."t2 Furthermore, while the Restatement recognizes that customary law may fail to concretize over time if a "significant number of important states" resist adoption of a custom or practice, customary law may also be specific to and binding on those states, inter se, in a particular region of the world, thus creating "regional" customary law. 13 This principle has been recognized by the International Court of Justice ("ICJ") in Columbia v. Peru (The Asylum Case), even though the Court did not find evidence of customary law in that case. 14 However, the Court did define the contours of regional customary law, concluding a state alleged to be bound by 11 RESTATEMENT (TIIIRD) cmt. a (1987). 12 [d. § 102 cmt. b. 13 [d. 14 1950 l.e.J. 266.

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custom must have accepted it out of a sense of legal obligation opinion juris, or barring that, acquiesced in it, "not merely for reasons of political expediency.,,15 The Restatement also notes "a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law.,,16 Because the right to representation in a national legislature appears to be a fundamental right, as the following examples of regional and global state practices and opino juris suggest, this may put U.S. policy on the District of Columbia at odds with customary international law. D. State Practice and opinio juris in the Americas No other constitution in the Americas that creates a federal district does so without representation in the national legislature. The District of Columbia is the only capital city in the Western Hemisphere where equal voting rights for its residents are curtailed. For example, in Brazil, the citizens of the Federal District elect three Senators, equal to the number of state-elected Senate representatives. 17 They also elect representatives to the House of Deputies, proportional to the Federal District's population. 18 Article 45 of the Constitution of the Federative Republic of Brazil states that "[t]he Chamber of Deputies is composed of representatives of the people, elected, by the proportional system, in each state, territory and in the Federal District."19 Article 46(1) further states that "[e]ach state and the Federal District shall elect three Senators for a term of office of eight years. ,,20 In Argentina, residents of the capital city of Buenos Aires, constituting an electoral district, elect three senators and eight deputies to the Argentine National Congress, equal to the citizens of the other electoral districts comprising the Province of Buenos Aires. 21 Section 45 of the Constitution of the Argentine Nation asserts "[t]he House of Deputies shall be composed of representatives directly elected by the people of the provinces, of the City of Buenos Aires, and of the Capital City.,,22 Section 54 of the constitution states "[t]he Senate shall be 15 Id. at 277. 16 RESTATEMENT (Tllum) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 102 cmt. c (1987). 17 c) The Federal Senate, http://www2.camara.gov.br/english/the-federal-senate (last visited Dec. 1, 2010). 18 Establishing the Number of Deputies, http://www2.camara.gov.br/english/the-chamber-ofdeputies/establishing-the-number-of-deputies (last visited Dec. 1,2010). 19 CONSTITl1lC,'AO FEDERAL [C.F.] [CONSTITUTION] art. 45 (Braz). 20 Id. at art. 46(1). 21 Electoral Constituency, http://eng.senado-ba.gov.ar/Map_Section.aspx (last visited Dec. 1, 2010). 22 Art. 45, CONSTITUCION NACIONAL [CONST. NAC.] (Arg.), available at, www.argentina.gov.ar/ argentine/portalldocumentos/constitucion_ingles.pdf.

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composed of three senators from each province, and three from the City of Buenos Aires, who shall be jointly and directly elected. ,,23 The citizens of Mexico City elect representatives to the Chamber of Deputies of the Congreso de la Uni6n, proportionate to the citizens of each state and territory, and in the Chamber of Senators, Federal District residents vote for two senators, equal to the same number of senators representing each state. 24 Article 51 of the 1917 Constitution of Mexico stipulates "[t]he Chamber of Deputies is composed of representatives of the Nation, all elected every three years by the Mexican citizens.,,25 Article 52 declares "[o]ne proprietary deputy shall be elected . . . according to the general census of the Federal District and of each State and Territory.,,26 Article 56 states that "[t]he Chamber of Senators shall be composed of two members for each State and two for the Federal District, all directly elected every six years. ,,27 In Venezuela, the population of the Capital District of Caracas elects its own deputies to the 167-member, Unicameral Asamblea Nacional, on the basis of proportional representation equal to each of the other federal entities. 28 Article 186 of the Constitution of the Bolivarian Republic of Venezuela says "[t]he National Assembly shall consist of Deputies elected in each of the federal entities by universal, direct, personalized and secret ballot with proportional representation.,,29 In Haiti, the residents of Port-au-Prince are guaranteed the right to vote for and be represented by members of the House of Deputies and Senate in the country's parliament.3o Article 89 of the Constitution of 1987 of Haiti states that "[t]he House of Deputies is a body composed of members elected by direct suffrage by the citizens .... " Article 94 states "[t]he Senate is a body composed of members elected by direct suffrage of the citizens. ,,31 In Guyana, the residents of Georgetown enjoy the right to participate in the fifty-three-member National Assembly.32 Article 59 of the Constitution of the Co-operative Republic of Guyana states that, "every person may vote at an elec23 Id. at art. 54. 24 Constitucion Politica de los Estados Unidos Mexicanos [C.P.], as amended, Diario Oficial de la Federacion [DO], 5 de Febrero de 1917 (Mex.), available at http://www.ilstu.edu/class/hist263/docs/ 1917const.html#Sectionl. (Contact author for website information). 25 Id at art. 51. 26 Id at art. 52. 27 Id. at art. 56. 28 Constitution of the Bolivarian Republic of Venezuela, available at http://www.analitica.com/ bitbliotecalvenezuelalconstitucion_ingles.pdf (last visited July 26, 2010). 29 Id at art. 186. 30 Constitution of 1987: The Republic of Haiti, http://www.constitution.orglcons/haiti.htm (last visited July 26,2010). 31 Id. at art. 94. 32 Constitution of the Co-Operative Republic of Guyana, http://www.constitution.orglcons/ guyana.htm (last visited July 26, 2010).

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tion if he is of the age of eighteen years or upwards and is either a citizen of Guyana or a Commonwealth citizen domiciled and resident in Guyana.,,33 In Cuba, the residents of Havana have the right to voting representation in the National Assembly of People's Power.34 Article 71 of the Constitution of the Republic of Cuba provides that "[t]he National Assembly of People's Power is comprised of deputies elected by free, direct and secret vote, in the proportion and according to the procedure established by law.,,35 In Canada, residents living in the capital city of Ottawa in the province of Ontario possess the right to vote for members of Parliament of Canada in the House of Commons on a basis equal to those citizens living in the other provinces. Article 3 of the Consolidation of Constitution Acts of Canada and the Canadian Charter of Rights and Freedoms states "[e ]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.,,36 Such examples of state practice and opinio juris in the Western Hemisphere regarding the right to representation in the national legislature are highly suggestive of the existence of, at the very least, a "regional" customary law, binding among the states, inter se, supported if not in fact, then by America's acquiescence. E.

State Practice and opinio juris in Europe

In Belgium, the citizens of the federal district of Brussels are provided representational rights in the Belgian Federal Parliament. Article 61 of the Constitution of Belgium provides that "[ t ]he members of the Chamber of Representatives are elected directly by citizens who have completed the age of eighteen and who do not fall within the categories of exclusion stipUlated by law. Each elector has the right to only one vote.,,37 Article 64 stipulates that "[t]o be eligible, one must: 1, be Belgian; 2, enjoy civil and political rights; 3, have completed the age of twenty-one; 4, be legally resident in Belgium. No other condition of eligibility can be required.,,38 Regarding Senate representation, Article 67(1)(2) states "the Senate is made up of seventy-one senators, of whom: at least one of the senators ... [from the Dutch electoral college, the Council of the Flemish Community, or appointed by the senators] is to be legally resident, on the day of his election, in 33 Id. at art. 59. 34 The Constitution of the Republic of Cuba, http://www.cubanet.org/ref/dis/consC92_e.htm (last visited July 26, 2010). 35 Id. at art. 71. 36 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.). 37 1994 CONST. art. 61 (Belg.)., http://www.fed-parl.be/gwukOO04.htm#E11E4 (last visited July 26,2010). 38 Id. at art. 65.

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the bilingual region of Brussels-Capital" and at least six senators from the French electoral college, Council of the French Community, or appointed by the senators "are to be legally resident, on the day of their election, in the bilingual region of Brussels-Capital. ,,39 In Germany, citizens residing in the city-state of Berlin are also afforded full voting rights in the Bundestag. Article 38(1)(2)(3) of the Basic Law for the Federal Republic of Germany stipulates "[m]embers of the German Bundestag shall be elected in general, direct, free, equal, and secret elections .... Any person who has attained the age of eighteen shall be entitled to vote; any person who has attained the age of majority may be elected. Details shall be regulated by a federallaw.,,40 In Austria, the capital city residents of Vienna are also guaranteed such rights in the Osterreichisches Parliament. Article 26(1) of the Austria Constitution sets out "[ t]he House of Representatives is elected by the nation in accordance with the principles of proportional representation on the basis of equal, direct, secret, and personal suffrage for men and women who have completed their nineteenth year of life on a day appointed prior to the election.,,41 Article 34(1)(2) specifies "the States are represented in the Senate in proportion to the number of nationals in each of them .... However, every State is entitled to a representation of at least three members.,,42 In England, the population of London, which is part of a unitary system, is entitled to enjoy parliamentary voting rights and representation in the House of Commons of the Parliament of the United Kingdom of Great Britain and Northern Ireland. Statutory Instruments 2007, No. 1681, Representation of the People, England Redistribution of Seats, the Parliamentary Constituencies (England) Order 2007 prescribes in Section 2(1)(a) that "England shall be divided into the parliamentary constituencies ... which are named in ... the Table in the Schedule to this Order .... [the] Name, Designation and Composition of Constituencies in England . . . [of] Greater London," including 73 Greater London constituencies (voting districts). ,,43 In Sweden, the citizens of the capital of Stockholm, also a unitary system, have the right to representation in the Riksdag, the National Diet of Sweden. Under 39 [d. at art. 67. 40 GRUNDGESETZ FOR DIE BUNI)ESIU'UBLIK DEUTSCHLAND [GRUNDGESETL:] [GG] [Basic Law], May 23, 1949, BGBI. I (Ger.). 41 BlJNDES-VEI~FASSlJNGSGESETZ [B-VG] [Constitution] BGBI No. 111930, as last amended by Bundesverfassungsgesetz [BVG] BGBII No. 100/2003, art. 26, 'II 1 (Austria), available at http://www. servat.unibe.chlicUauOOOOO.html. (Contact author for website information). 42 [d. at art. 34, en 1(2). 43 The Parliamentary Constituencies Order No. 1681,2007, § 2(1), available at http://www.opsi. gov.uk/si/si2oo7/uksi_2007168Cen_l, (Eng.) (Contact author for details on access procedure). See also Greater London Authority, 5, www.parliament.uk/commons/lib/research/notes/snpc-02208.pdf (last visited July 26, 2010). (Contact author for website information).

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Chapter 3, the Riksdag, of the Constitution of Sweden, Instrument of Government, Chapter 3, Article 2 affirms "[e]very Swedish citizen who is currently domiciled within the Realm or who has ever been domiciled within the Realm is entitled to vote in a Riksdag election.,,44 No state in the 27 member European Union restricts the right of any citizen domiciled in the capital city to vote in the national legislature by virtue of their residency. Thus, all European states, in addition to all states in the Americas (except for the United States), incorporate, either in constitutional or statutory law, the right of capital citizens to vote in national decision-making bodies as a matter of law, and not "as a matter of courtesy or habit.,,45 This survey clearly buttresses the case for the right of representation having emerged as a rule of customary law. This same state practice and opinio juris is revealed also in a brief overview of Central Asia states. F.

State Practice and opinio juris in Central Asia

In Latvia, citizens of Riga are endowed with full representative voting rights in the 100 member Saeima,46 its Unicameral Parliament. Article 8 of the Constitution of the Republic of Latvia affirms that all citizens are entitled to vote in the national assembly, noting "[a]ll citizens of Latvia who enjoy full rights of citizenship and, who on election day have attained eighteen years of age, shall be entitled to vote;" under Article 9, and "[a]ny citizen of Latvia, who enjoys full rights of citizenship and, who is more than twenty-one years of age on the first day of elections may be elected to [the parliament]. ,,47 In Russia, the citizens of Moscow are provided with equal voting rights in the Federal Assembly, electing two delegates to the Federation Council of Russia -comparable to other "federal subjects" of Russia- and deputies to the State Duma. 48 Article 95(2) of the Constitution of the Russian Federation provides the residents of Moscow the right to representation in the Council of the Federation, which "includes two representatives from each subject of the Russian Federation: one from the legislative and one from the executive body of state authority.,,49 Article 97(1) grants "[a] citizen of the Russian Federation over 21 years of age 44 Regeringsformen [RF] [Constitution] 3:2 (Swed.), available at http://www.riksdagen.se/templates/R_PageExtended_6320.aspx (last visited Dec. 1,2010). 45 RESTATEMENT (Tllm.D) OF TilE FOREIGN REI.ATIONS LAW OF TilE UNITED STATES § 102 emt. e (1987). 46 Constitution of the Republic of Latvia, http://www.saeima.lv/LapasEnglish/Constitution_ Visa.htm (last visited July 29, 2010). (Contact author for website information). 47 [d. at art. 8, 9. 48 KONSTITUTSIIA ROSSIISKOI FEllERATSII [Konst. RF] [Constitution], available at http://www. eonstitution.ru/en/10003000-06.htm. 49 [d. at art. 95(2).

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and with the right to participate in elections may be elected deputy of the State Duma.,,5o In the Ukrainian National Republic, the citizens of Kiev may elect representatives to the unicameral parliament of Ukraine-the Verkhovna Rada. 51 Article 76 of the Constitution of Ukraine provides "[a] citizen of Ukraine who has attained the age of twenty-one on the day of elections, has the right to vote, and has resided on the territory of Ukraine for the past five years, may be a National Deputy of Ukraine. ,,52 In India, the National Capital Territory of Delhi, one of seven Union territories and twenty-eight states entitled to parliamentary representation, elects representatives to both the Council of States and the House of the People.53 Article 80 of the Constitution of India states the Parliament of the Union, consisting of the Council of States and the House of the People, is composed of "not more than two hundred and thirty-eight representatives of the States [and of the Union territories,]" inclusive of citizens of the National Capital Territory of Delhi.54 Article 81(b) stipulates "the House of the People shall consist of ... not more than [twenty members] to represent the Union territories, chosen in such manner as Parliament may by law provide. ,,55 In Pakistan, the people of the Federal City of Islamabad may elect representatives to the Majlis-e-Shoora, the national unicameral parliament, on an equal basis to the people of the provinces and the Federally Administered Tribal Areas. 56 Article 51(1)(a) of the Constitution of Pakistan states that "[t]here shall be three hundred and forty-two seats of the members in the National Assembly .... The seats in the National Assembly ... are allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital," thus providing citizens of the Federal City of Islamabad representatives in the Majlis-e-Shoora. 57 G.

State Practice and opinio juris in Africa

In Morocco, the voters of Rabat may elect members to the Assembly of Representatives of Morocco directly, and to the House of Councillors indirectly through an electoral college system composed of local authorities, professional 50 Id. at art. 97(1). 51 Constitution of Ukraine, http://www.rada.gov.ualconstlconengl.htm#r7 (last visited July 29, 2010). 52 Id. at art. 76. 53 INDIA CONST., amended by the Constitution (Eighteenth Amendment) Act, 2000, available at http://indiacode.nic.in/coiweb/we1come.html 54 Id. at art. 80. 55 Id. at art. 81 (b). 56 PAKISTAN CONST., available at http://www.pakistani.orglpakistan/constitution/. 57 [d. at art. 51(1)(a).

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chambers and, at the national level, employee representatives. 58 Article 37 of the Constitution of Morocco affords the capital residents of Rabat the right to vote directly for members of the House of the Assembly of Representatives, the law providing they "shall be elected for a six-year term by direct universal suffrage."s9 Under Article 38, they may also be elected to the House of Councillors through an electoral college system, composed of local authorities, professional chambers and, at the national level, employee representatives. 6o In Nigeria, Abuja residents in the Federal Capital Territory elect representatives to the Nigerian National Assembly, one to the Senate and two to the House of Representatives. 61 Article 48 of the Constitution of the Republic of Nigeria states that residents of the Federal Capital Territory of Abuja may elect one senator to the Nigerian National Assembly and two to the House of Representatives, as "[t]he Senate shall consist of three Senators from each State and one from the Federal Capital Territory, Abuja.,,62 Article 49 stipulates "the House of Representatives shall consist of three hundred and sixty members representing constituencies of nearly equal popUlation as far as possible, provided that no constituency shall fall within more than one State. ,,63 In Senegal, voters in Dakar may elect deputies to the ISO-member National Assembly by direct and universal ballot, and indirectly to the IOO-member Senate. 64 Article 3 of the Constitution of the Republic of Senegal states "[n]ational Sovereignty shall belong to the Senegalese people who shall exercise it through their representatives or by way of referendum ... , [s]uffrage may be direct or indirect ... , [i]t shall always be universal, equal and secret ... [and all] Senegalese nationals ... shall be eligible to vote.,,65 In South Africa, citizens of the three capital cities, Cape Town (legislative), Bloemfontein Gudicial}, and Pretoria (administrative), vote for representatives on a national basis in the National Assembly, the lower house of the Parliament of South Africa, and vote for representatives on a provincial basis in the National Council of Provinces, with each capital city voting for their individual provincial delegations.66 Article 47 of the Constitution of South Africa provides citizens residing in the three capital cities, Cape Town, Bloemfontein, and Pretoria, with voting representatives in the National Assembly on a national basis, stipulating 58 Constitution of Morocco, http://www.al-bab.comlmaroclgov/con96.htm (1996) (last visited July 29, 2010). 59 [d. at art. 37. 60 [d. at art. 38. 61 CONSTITUTION OF NIGERIA, (1999), http://www.nigeria-law.orglConstitutionOfTheFederalRepublicOfNigeria.htm (last visited July 29, 2010). 62 [d. at art. 48. 63 [d. at art. 49. 64 Constitution of the Republic of Senegal. 65 [d. at art. 3. 66 S. AFR. CONST. 1996, available at www.info.gov.za/documentslconstitution/index.htm.

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"[e ]very citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly.,,67 Article 60 states "[t]he National Council of Provinces is composed of a single delegation from each province consisting of ten delegates" thus ensuring provincial representation. 68 Exemplifications in Africa also appear to confirm that each state's practice enshrines the right of national representation for the citizenry of capital cities, consistent with state practice in the Americas, Europe, and Central Asia. H.

State Practice and opinio juris in Asia

In the Republic of Korea, no limitations are placed on the right of citizens in the capital of Seoul to elect single-member constituencies to the 299-member National Assembly of South Korea. 69 Article 24 of the Constitution of the Republic of Korea guarantees "[a]ll citizens have the right to vote under the conditions prescribed by law.,,7o Article 41(1)(3) declares "[t]he National Assembly is composed of members elected by universal, equal, direct, and secret ballot by the citizens .... [t]he constituencies of members of the National Assembly, proportional representation, and other matters pertaining to National Assembly elections are determined by law.1 1 In Malaysia, citizens of the Federal Territory of Kuala Lumpur are represented in the National Parliament. In particular they are appointed two representatives in the Senate, equal in number to the thirteen states, and may elect to the 180member House of Representatives seven members.72 Article 45 of the Constitution of Malaysia provides "the Senate shall consist of elected and appointed members as follows ... two members for each State shall be elected in accordance with the Seventh Schedule; and two members for the Federal Territory of Kuala Lumpur.,,73 Article 46 states "[t]he House of Representatives shall consist of one hundred and eighty elected members .... [t]here shall be ... one hundred and seventy-two members from the States in Malaysia as follows ... seven members from the Federal Territory of Kuala Lumpur.,,74 In Japan, the residents of Tokyo may vote for representatives in a parallel voting system in the bicameral legislature of the National Diet of Japan, both in the House of Representatives, with single-member constituency and proportional 67 [d. at art. 47. 68 [d. at art. 60. 69 Constitution of the Republic of Korea, http://korea.assembly.go.kr/res/low_OCread.jsp (last visited August 23, 2010). (Contact author for details on access procedure). 70 [d. at art. 24. 71 [d. at art. 41 (1 )(3). 72 Federal Constitution of Malaysia, confinder.richmond.eduladmin/docs/malaysia.pdf (last visited August 23, 2010). 73 [d. at art. 45. 74 [d. at art. 46.

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representation systems, and in the House of Councillors, with local constituency system and proportional representation systems. 75 Article 42 of the Constitution of Japan specifies "[t]he Diet shall consist of two Houses, namely the House of Representatives and the House of Councillors.,,76 Article 43(1)(2) says "[b]oth Houses shall consist of elected members, representative of all the people .... [t]he number of the members of each House shall be fixed by law."77 In Indonesia, the voters of the Jakarta Special Capital Region, one of 33 provinces, elect representatives to the 550-member People's Representatives Councils (Dewan Perwakilan Rakyat: "DPR"), and to the Regional Representatives Council (Dewan Perwakilan Daerah: "DPD")?S Article 2 of the 1945 Constitution of the Republic of Indonesia provides the Jakarta Special Capital Region representation in the House of Representatives, stipulating "[t]he People's Consultative Assembly shall consist of members of the [DPR] augmented by delegates from regional territories and functional groups, in accordance with statutory regulations. ,,79 Article 27(1) states "[a]ll citizens, without exception, shall be equal before the law and in government."so In Singapore, all citizens have the right to elect representatives to the 94-MP, unicameral Singapore Parliament, as single member or Group Representation Constituencies ("GRC'S,,).Sl Article 39(1) of the Constitution of the Republic of Singapore declares "[p]arliament shall consist of (a) such number of elected Members as is required to be returned at a general election by the constituencies prescribed by or under any law made by the Legislature."s2 Article 44(1)(2) mandates that "[m]embers of Parliament shall be persons qualified for election .... [and a] person shall be qualified to be elected or appointed as a Member of Parliament if ... he is a citizen of Singapore. "S3 I.

State Practice and opinio juris in Oceania

In Australia, residents of Canberra, also known as the Australian Capital Territory ("ACf"), enjoy the right to elect representatives to the Senate and to the 75 NIIIONKOKU KENI>O [KENPO ] [CONSTITUTION], available at http://history.hanover.edu/textsl 1947con.html. 76 ld. at art. 42. 77 ld. at art. 43(1 )(2). 78 The Constitution of the Republic of Indonesia, http://www.indonesia-ottawa.orglindonesia/ constitution/fourth_amendmencconst.pdf (last visited August 23, 2010). 79 ld. at art. 2. 80 ld. at art. 27(1). 81 Parliament of Singapore, http://www.parliament.gov.sglAboutUs/Org-MP.htm (last visited Dec. 1, 2010). 82 Constitution of the Republic of Singapore, http://www.servat.unibe.ch/ici/snOOOOO_html (last visited Aug. 23, 2010). (Contact author for website information). 83 ld. at art. 44(1 )(2).

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House of Representatives. 84 Section 3(2) of the Senate (Representation of Territories) Act 1973 states and "[t]he Territories to which this Act applies are the Australian Capital Territory and the Northern Territory of Australia.,,85 Section 4 provides "[e ]ach Territory shall be represented in the Senate by two Senators for the Territory directly chosen by the people of the Territory.,,86 Section 4 of the Australian Capital Territory Representation (House of Representatives) Act 1974 prescribes "[fJor the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1974, the areas having the boundaries described ... shall be the two Electoral Divisions of the Territory.,,87 In New Zealand, Wellington citizens elect a representative in the 122-member House of Representatives, participating in a Mixed Member Proportional (MMP) electoral system, which provides for proportional representation. 88 Section 27 of the Electoral Act 1993 No 87 [of New Zealand] states that "[t]he House of Representatives shall have as its members those persons who are elected from time to time in accordance with the provisions of the Electoral Act 1956 or this Act, and who shall be known as members of Parliament.,,89 Section 47(1) states "every person who is registered as an elector of an electoral district ... is qualified to be a candidate and to be elected a member of Parliament, whether for that electoral district, any other electoral district. ,,90 In the Republic of Kiribati, the citizens of South Tarawa, the island nation's capital and one of 23 electoral districts, have the right to elect representatives to the unicameral House of Assembly, the Maneaba ni Maungatabu, as prescribed 84 http://www.aph.gov.au/house/memberslmi-state-asp. (Contact author for website information); see also Australian Bureau of Statistics, http://www.abs.gov.aulausstats/[email protected]/productsby topic/8CA5022B2135FI62CA256CDOOO7BEE22?OpenDocument, (last visited Dec. 1,2010) (The disproportionate number of representatives allotted among the states, Tasmania, ACf and Northern Territory calls into question the fairness of the distribution of voting rights. While the residents of the states of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia elect 12 Senators, as well as representatives to the House of Representatives, based on popUlation, the residents of the ACf and the Northern Territory elect only two Senators and two representatives to the House. At first blush this may appear reasonable in light of the fact that the population of New South Wales is 6.9 million, Victoria, 5.2 million, and Queensland, 4.2 million, and the population of the ACf is only 340,000, and the Northern Territory a scant 217,000. Yet Tasmania, with a population of 495,000, also elects 12 senators and five representatives to the House). 85 Senate (Representation of Territories) 1973 Act, http://www.foundingdocs.gov.au/scan.asp?s ID=1070 (last visited Aug. 23, 2010). 86 Id. at sec. 4. 87 Australian Capital TerritoryRepresentation (House of Representatives), http://www.foundingdocs.gov.au/scan.asp?sID=1075 (last visited Aug. 23, 2010). 88 New Zealand Parliament, http://www.parliament.nzlen-NZlMPP/MPs/MPs/Default.htm (last visited Dec. 1, 2010). (Contact author for details on access procedure). 89 Electoral Act 1993, http://www.legislation.govt.nzlactlpublicI1993/008714.0/whole.html#DLM 308518 (last visited Aug. 23, 2010). 90 Id. at sec. 47(1).

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in the Elections Ordinance 1977.91 Article 52 of the Constitution of Kiribati states "[t]here shall be a legislature for Kiribati which shall be known as the Maneaba ni Maungatabu and shall consist of a single chamber."92 Article 55 sets out that "a person shall be qualified to be elected as an elected member of the Maneaba ni Maungatabu if ... he is a citizen of Kiribati ... [and] attained the age of 21 years. ,,93 In Tuvala, the citizens of the capital city, Funafuti, elect two representatives in the 12-member Parliament. 94 Article 81(1) of the Constitution of Tuvalu provides that "[p]arliament shall consist of such number of members as is fixed by or under an Act of Parliament .... ,,95 According to Electoral Provisions (Parliament) (Amendment No.2) Act 1997, Section 15 "[r]egistered electors may vote in contested elections in any electoral district for the electoral districts they are registered. ,,96 Thus, the right to representation appears to be a fundamental human right and is consistently practiced in states by legal obligation; from the island nation of Tuvalu, with a population of 12,000,97 to the Russian Federation, with a population of 140,000,000;98 from predominantly Muslim states to predominantly Catholic states; from Southeast Asia to North Africa; everywhere but in the District of Columbia of the United States of America. While a state-by-state survey is required to analyze in greater depth the voting rights practices of all 193 U.N. members, it appears unlikely that a dissimilar pattern of practice and opinio juris will emerge. There exists a de facto case based on preliminary evidence that the curtailment of voting rights in the District of Columbia may be a violation of customary international law. J.

Duration of Practice Prior to Becoming Customary Law

It is generally accepted that state practice exercised over even a comparatively brief period of time may create customary law, so long as the practice is "general and consistent," and reflects a broad international consensus. While no precise 91 Constitution of Kiribati, http://www.paclii.orglki/legis/consol_actlcok257/ (last visited Aug. 23, 2010). 92 /d. at art. 52. 93 Id. at art. 55. 94 Constitution of Tuvalu, http://www.tuvaluislands.com/consLtuvalu.htm (last visited Aug. 23, 2010); see also Comparative Data, http://aceproject.orglepic-en/CDCountry?country=TV (last visited Dec. 1,2010). 95 Id. at art. 81 (1). 96 Electoral Provisions (Parliament) (Amendment No, 2) Act 1997 (Act 10 of 1997), available at www.paclii.orgltv/legis/num_actlepn2a1997455.rtf 97 CIA - The World Factbook, httPS:llwww.cia.gOV/librarY/PUblicationSlthe-world-factboOk/ geOs/tv.html(last visited Dec. 1,2010). (Contact author for details on access procedure). 98 CIA - The World Factbook, https:llwww.cia.gov/library/publications/the-world-factboo kl geos/rs.html (last visited Dec. 1,2010). (Contact author for details on access procedure).

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science exists permitting an empirical analysis of what does and does not constitute customary law, and a final determination is more legal art than incisive ratiocination, a consensus has emerged that the time necessary for state practice to become customary law has notably and unalterably changed in the post World War II era. The necessity that state practice take place over an extended period of time before being recognized as opinion juris has given way to a more expeditious approach, resulting from the swiftness and ease of modern communications, and the almost instant globalization of contemporary practices. The I.C.1. established the principle of expeditious customary law in the North Sea Continental Shelf Cases, finding that "the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law.,,99 United States v. Maine 100 has also acknowledged this principle in a case that addressed the doctrine of continental shelf, and is often cited as a model of the acceptance of "instant customary law"lOl in U.S. jurisprudence. The Restatement notes that "[t]he doctrine of the continental shelf became accepted as customary law on the basis of assertions of exclusive jurisdiction by coastal states and general acquiescence by other states.,,102 In light of these two cases, it appears that the pre-World War II era timetable for the development of a rule of international customary law, has been replaced. The evolution of customary law is on a fast track. It would appear now that a mere decade suffices to give rise to customary law. Such a principle supports the assertion that the right to representation has become a rule of customary law in the form of "expeditious law," at the very least regarding state practice in the Western Hemisphere, if not global practice. This notwithstanding the fact that the citizens of the Federal District of Brasilia were granted the right to elect three Senators to the Federal Senate, and equal to the Brazilian states -together with a proportionate number of rep'resentatives to the Chamber of Deputies- only since 1986. A quarter century of general and cons is99 See Continental Shelf, 1969 I.C.J. 44, 72 ("The dispute, which was submitted to the Court on 20 February1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other."). 100 United States v. Maine, 420 U.S. 515 (1975). 101 See Continental Shelf, 1969 I.C.J. 44, 72 ("The Truman Proclamation of 1945 was not challenged by governments and was followed by similar claims by other states. The International Law Commission, engaged in codifying and developing the law or the sea during the years 1950-56, avoided a clear position as to whether the continental shelf provisions in its draft convention were codifying customary law or proposing a new development. The provisions were included in the 1958 Convention on the Continental Shelf. It was soon assumed that the doctrine they reflected was part of international law even for states that did not adhere to the Convention."). 102 RESTATEMENT (THIRD) OF TilE FOREIGN REI.ATIONS LAW 01' TilE UNITED STATES § 102 reporters notes 2 (1987).

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tent state practice in the region suffices even under the narrowest definition of "instant" customary law to create such a right for the people of the whole region. K.

State Dissent and Customary Law

While it is generally recognized that when a state dissents from engaging in a particular state practice during a period when it is developing into a rule of international law it is not bound by it, even after that practice is recognized as customary law by the community of nations, such dissent on principle by demurring states has been infrequent. In any event, the United States has never lodged any such dissent regarding the state practice of full and equal congressional voting rights for the District of Columbia. In fact, the United States has done the opposite. Acknowledging the gross unfairness of the long-standing constitutional prohibition on full and equal congressional voting rights for the District of Columbia, the U.S. Congress, supported by then-President Jimmy Carter, passed a constitutional amendment designed to secure those rights in 1978, and which would have guaranteed, if passed, that right to the nation's capital. 103 Only the reluctance of 22 state legislatures to ratify the amendment doomed it to failure. However, the United States, far from dissenting to a regional, if not worldwide state practice, demonstrated its explicit support for it. Furthermore, historically the United States has been a prime mover on the world stage in efforts to secure fundamental human rights for all people. Eleanor Roosevelt was a leading architect of the U.N. Universal Declaration of Human Rights ("UDHR"), and a representative of the United States in that forum. Article 21 of the UDHR provides for the right of everyone "to take part in the government of his country, directly or through freely chosen representatives."t04 The United States has never dissented on the substance and content of that declaration of principle. At the very least, the United States has demonstrated its acquiescence in the state practice of granting all citizens the right to representation in the national legislative body, at the regional, if not global, level. 105 L.

Ancillary Evidences of State Practices

The Restatement recognizes multiple sources for proving that a rule of law has developed, including, among others, "judgments and opinions of international judicial and arbitral tribunals ... judgments and opinions of national judicial tribu103 US Senator Paul Strauss, http://paulstrauss.orglvoting-rights (last visited Dec. 1,2010). 104 Universal Declaration of Human Rights, G.A. Res. 217 A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. Al810 (Dec. 12, 1948) [hereinafter UDHR]. 105 RESTATEMENT (TIIIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNHED STATES § 102 cmt. d (1987) ("[C]ustomary law may be built by the acquiescence as well as by the actions of states [cmt. b] and become generally binding on all states .... ").

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nals ... [and] the writings of scholar." 106 It further identifies as secondary sources international agreements as contributive to customary law, inclusive of binding resolutions and declaratory resolutions of international organizations, also commenting that The contributions of such resolutions and of the statements and votes supporting them to the lawmaking process will differ widely, depending on factors such as the subject of the resolution, whether it purports to reflect legal principles, how large a majority it commands and how numerous and important are the dissenting states, whether it is widely supported (including in particular the states principally affected), and whether it is later confirmed by other practice. 107 The Restatement also observes that legally binding multilateral international agreements, "open to all states," may contribute to the maturation of customary law and that "[i]nternational agreements constitute practice of states and as such can contribute to the growth of customary law.,,108 Moreover, "[a] wide network of similar bilateral arrangements on a subject may constitute practice and also result in customary law.,,109 Multilateral agreements are commonly utilized in the area of human rights, serving also as a basis for legislation and contributing to customary law. Most importantly, the Restatement emphasizes, "[a] determination as to whether a customary rule has developed is likely to be influenced by assessment as to whether the rule will contribute to international order.,,110 As set forth in The Restatement: [A]rticle 38(1)(d) of the Statute of the International Court of Justice ... does not include resolutions of international organizations among the 'subsidiary means for the determination of rules of law.' However, the Statute was drafted before the growth and proliferation of international organizations following the Second World War. Given the universal character of many of those organizations and the forum they provide for the expression by states of their views regarding legal principles, such resolutions sometimes provide important evidence of law. I II Finally, in his book Principles of Public International Law, Ian Brownlie identifies "[ t]he opinions of official legal advisers ... state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, 106 Id. § 103(2). 107 Id. § 102 reporters notes 2. 108 Id. § 102 emt. i. See also, Continental Shelf, 1969 I.C.J. 44 109 RESTATEMENT (TulIm) OF TilE FOREIGN RELATIONS LAW emt. i (1987). 110 Id. § 103 emt. a. 111 Id. § 103 reporters notes 2.

OF THE UNITED STATES

§ 102

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and resolutions relating to legal questions in the United Nations General Assembly," as evidentiary sources.1I2 Several such sources follow. M. 1.

Declaratory Resolutions of International Organizations

The Universal Declaration of Human Rights

Article 21 of the Universal Declaration of Human Rights ("UDHR") incorporates the positive right of all citizens of all countries "to take part in the government of his country, directly or through freely chosen representatives."t13 Reinforcing this right to representative equality, Article 1 asserts "[a]ll human beings are born free and equal in dignity and rights.,,114 Moreover, Article 2 stipulates that "[ e ]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as ... political or other opinion ... or other status," such as the fact that the District of Columbia is a federal enclave, and its residents vote consistently in the majority for presidential and local candidates of the Democratic Party.tt5 Article 2 further qualifies the right to equality asserting that "no distinction shall be made on the basis of the political ... [or] jurisdictional ... territory to which a person belongs, whether it be ... non-self-governing or under any other limitation of sovereignty.,,116 The significance of the UDHR, as evidence of the emergence of customary law on the right to vote, is recognized in the Restatement. "The United Nations General Assembly in particular has adopted resolutions, declarations, and other statements of principles that in some circumstances contribute to the process of making customary law, insofar as statements and votes of governments are kinds of state practice and may be expressions of opinio juris.,,117 Furthermore: "Declarations of principles" may have greater significance than ordinary resolutions. A memorandum of the Office of Legal Affairs of the United Nations Secretariat suggests that: [I]n view of the greater solemnity and significance of a "declaration," it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States. ttS 112 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University Press, 7th ed.2008). 113 UDHR, supra note 104, at art. 21. 114 UDHR, supra note 104, at art. 1. 115 UDHR, supra note 104, at art. 2. 116 UDHR, supra note 104, at art. 2 (emphasis added). 117 RESTATEMENT (Til 11m) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 102 reporters notes 2 (1987) (citations omitted). 118 Id.(citation omitted).

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After vigorous review, debate and negotiation, the U.N. General Assembly, of which the United States was a voting member, adopted the UDHR on December 10, 1948. 119 The vote in support of the adoption of the UDHR was unanimous. After the adoption of the UDHR by the General Assembly, it called on U.N. member states "to cause [the UDHR] to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.,,12o The U.S. Department of State often refers to the UDHR in its annual Country Reports on Human Rights Practices it publishes on its website. 121 2.

The Inter-American Democratic Charter

On September 11, 2001, the General Assembly of the Organization of American States ("O.A.S.") adopted the Inter-American Democratic Charter by acclamation. 122 The United States, acting as a Charter Member of the O.A.S., voted to support it. l23 The principles evinced in the Charter recognize representative democracy for what it is: a vital component of peace and international order. Among other things, the Charter "recognizes that representative democracy is indispensable for the stability, peace, and development of the region, and that one of the purposes of the O.A.S. is to promote and consolidate representative democracy." 124 The Inter-American Democratic Charter affirmed that "the participatory nature of democracy in [O.A.S.] countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere" and observed that "the American Declaration on the Rights 119 General Assembly resolution 217 A (III), available at http://ods.un.org 120 A United Nations Priority, http://www.un.orglrightslHRToday/declar.htm (last visited Dec. 1,2010). ("An eight-member drafting committee prepared the preliminary text of the Universal Declaration. The committee, chaired by Mrs. Eleanor Roosevelt, widow of the former United States President, agreed on the central importance of affirming universal respect for human rights and fundamental freedoms, including the principles of non-discrimination and civil and political rights .... The Commission then revised the draft declaration, in the light of replies from Member States, before submitting it to the General Assembly .... The General Assembly, in turn, scrutinized the document, with the 58 Member States voting a total of 1,400 times on practically every word and every clause of the text."). 121 U.S. Dept. of State Human Rights Reports, available at, http://www.state.gov/gldrl/rlslhrrptl 122 The OAS is comprised of 35 States (Antigua and Barbuda, Argentina, Commonwealth of The Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Commonwealth of Dominica, Dominican Republic, Ecuador, EI Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Saint Vincent and the Grenadines, St. Kitts & Nevis, Suriname, Trinidad and Tobago, United States of America, Uruguay, and the Bolivarian Republic of Venezuela). 123 Organization of American States, Inter-American Democratic Charter, Sept. 11, 2001, available at http://www.oas.orglOASpage/englDocuments/Democractic_Charter.htm. 124

[d.

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and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy[.],,125 Moreover, it noted that "the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society, and recognizing the importance of the continuous development and strengthening of the inter-American human rights system for the consolidation of democracy," it reiterated that "in the Declaration of Managua for the Promotion of Democracy and Development ... the member states expressed their firm belief that democracy, peace, and development are inseparable and indivisible parts of a renewed and integral vision of solidarity in the Americas ... ," and the "ability of the Organization to help preserve and strengthen democratic structures in the region will depend on the implementation of a strategy based on the interdependence and complementarity of those values[.],,126 It further emphasized that "in the Declaration of Managua for the Promotion of Democracy and Development, the member states expressed their conviction that the [O.A.S.'s] mission is not limited to the defense of democracy wherever its fundamental values and principles have collapsed," but that is also extended to calling for "ongoing and creative work to consolidate democracy as well as a continuing effort to prevent and anticipate the very causes of the problems that affect the democratic system of government[.],,127 The General Assembly resolved to adopt the Inter-American Democratic Charter. 128 The O.A.S. General Assembly agreed that: The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it. Democracy is essential for the social, political, and economic development of the peoples of the Americas. The effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the [O.A.S.]. Representative democracy is strengthened and deepened by permanent, ethical, and responsible participation of the citizenry ....129 It acknowledged that the "[ e ]ssential elements of representative democracy in-

clude ... respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections ... and universal suffrage as an expression of the sovereignty of the people.,,130 It further stated that "[i]t is the right and responsibility of all 125 126 127 128

[d. Id. [d. Id.

129 Organization of American States, Inter-American Democratic Charter, Sept. 11, 2001, available at http://www.oas.orglOASpage/eng/Documents/Democractic_Charter.htm. 130 Id. at art. 3.

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citizens to participate in decisions relating to their own development[,]" that "[t]his is also a necessary condition for the full and effective exercise of democracy[,]" and that "[p]romoting and fostering diverse forms of participation strengthens democracy."t31 Moreover, the Assembly declared that "[d]emocracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments.,,132 It also maintains that "[m]ember states reaffirm their intention to strengthen the inter-American system for the protection of human rights for the consolidation of democracy in the Hemisphere.,,133 The Restatement points out that "[d]eclarations interpreting a charter are entitled to considerable weight if they are unanimous or nearly unanimous and have the support of all the principal members."134 Such explicit language about the import of representative democracy in the Western Hemisphere argues persuasively that, at a minimum, a "regional" customary law has developed in the Americas on the matter of representational rights, consistent with state practice of every state but the United States, and opinio juris. 3. European Parliament In 1989, the European Parliament, the main legislative body of the European Union, adopted a declaratory resolution on fundamental rights and freedoms, called the Declaration of Fundamental Rights. Noting its regard for the shared general principles of law of Member States, case law of the Court of Justice of the European Communities, the UDHR, the U.N. Covenant on Civil and Political Rights, together with the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, the parliament resolved under Article 17(1)(2)(3)(4) of the Principles of Democracy that "[a]ll public authority emanates from the people and must be exercised in accordance with the principles of the rule of law;" that "[e]very public authority must be directly elected or answerable to a directly elected parliament[,]" that "European citizens shall have the right to take part in the election of Members of the European Parliament by free, direct and secret universal suffrage[,]" and that "European citizens shall have an equal right to vote and stand for election."t35 Moreover, in 2000, the Presidents of the European Parliament, the Council of the European Union, and European Commission, signed the European Union 131 132

[d. at art. 6. [d. at art. 7.

133 [d. at art. 8. 134 RESTATEMENT (TIIIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 103 reporters notes 2 (1987). 135 Convention for the Protection of Human Rights, http://conventions.coe.intffreaty/enrrreaties/HtmllOOS.htm (last visited Dec. 1, 2010).

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Charter of Fundamental Rights, ]36 which set forth in consolidated text for the first time in the history of the European Union a comprehensive declaration of the civil and political rights of "European citizens and all persons resident in the EU.,,]37 The Charter defines the rights of European Union citizens to vote and stand for elections to the European Parliament. Article 39(1)(2) secures that right, stating that "[e]very citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State," and "[m]embers of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot." 138 The unanimous adoption of Declaration of Fundamental Rights and Freedoms by the European Parliament,139 and the acceptance of the European Union Charter of Fundamental Rights by the Presidents of the European Parliament, the Council of the European Union, and the European Commission, coupled with evidence of the general and consistent state practice of European Union member states and opinio juris regarding the right to representation, must be accorded substantial weight and consideration of whether this right to political participation has grown into customary law. N.

International Organization Agreements Codifying and Developing Human Rights Law as Customary Law

1. The Charter of the a.A.S.

The Restatement refers to legally binding multilateral international agreements, "open to all states," as evidence of primary sources of customary law. 140 The United States is a founding member of the a.A.S. and is therefore bound by the terms of its Charter. 141 Among other things, the principles referred to in the a.A.S. Charter are consistent with those enunciated in the Inter-American Dem136 Council of the European Union, available at http://www.consilium.europa.eu/showPage. aspx?id=242&lang=EN. (The Council of the European Union, together with the European Parliament, forms the bi-camerallegislative branch of the European Union, and is the main decision-making body of the European Union). 137 Charter of Fundamental Rights of the European Union, 2000/C364/01, Dec. 18, 2000, available at http://www.europarl.europa.eu/charter/defauicen.htm [hereinafter Charter of Fundamental Rights]. 138 Charter of Fundamental Rights, supra note 137. 139 The European Parliament is composed of parliamentarians elected by 27 countries (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom). 140 RESTATEMENT (Tllllm) OF TilE FOREION RELATIONS LAW OF TI-IE UNITED STATES § 102 cmt. f (1987). 141 Charter of the Organization of American States, available at http://www.oas.orgldilltreaties_ A-41_Charter_oCthe_Organization_oCAmerican_States.htm.

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ocratic Charter and endowed with the terminology of opinio juris. They affirm that the purpose of the organization is to "consolidate representative democracy" in the Western Hemisphere. Article 2 states that "in order to put into practice the principles on which it is founded and to fulfill its regional obligations under the Charter of the United Nations," the O.A.S. stated that its essential purposes include "promot[ing] and consolidate[ing] representative democracy." and "promoting and encouraging respect for human rights and ... fundamental freedoms for all" as set forth under Article 1(3) of the U.N. Charter. 142 The O.A.S. Charter, under Article 3(d), declares that the "solidarity of the American States and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy.,,143 The O.A.S. Charter also attests that one of the central organs of the O.A.S., the Inter-American Commission on Human Rights ("IACHR"), shall "promote the observance and protection of human rights." 144 The IACHR is composed of a panel of eminent international legal scholars and experts elected by the O.A.S. General Assembly. The central human rights instruments of the O.A.S. are the American Declaration of the Rights and Duties of Man and the Inter-American Convention on Human Rights, which, according to the IACHR, define the human rights referred to in the Charter binding on O.A.S. states. The American Declaration of the Rights and Duties of Man provides under Article 2 the right to equality: "[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.,,145 Under Article 20 the right to vote and to participate in government is addressed: "[e]very person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.,,146 In 2003, after 11 years of litigation between the Statehood Solidarity Committee and the United States Government, the IACHR issued REPORT N° 98/03 CASE 11.204 STATEHOOD SOLIDARITY COMMITTEE UNITED STATES. 147 The report concluded that as a result of the denial of the right of the 142 Charter of the Organization of American States, supra note 141, at chap. I, art. 2(b). 143 Charter of the Organization of American States, supra note 141, at chap. I, art. 3(d). 144 Charter of the Organization of American States, supra note 141, at chap. XV, art. 106. 145 OAS Declaration of the Rights and Duties of Man, http://www.hrcr.orgldocs/OAS_Deciaration/oasrights3.html. (last visited Dec. 1,2010). 146 /d. at art. 20. 147 Id. (In its summary, the report states "[o]n April I, 1993, the Inter-American Commission on Human Rights (the "Commission") received a petition from Timothy Cooper on behalf of the Statehood Solidarity Committee (the "Petitioners") against the Government of the United States (the "State" or "United States"). The petition indicated that it was presented on behalf of the members of the Statehood Solidarity Committee and all other US citizens resident in the District of Columbia.").

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citizens of the District of Columbia to enjoy equal political participation in the U.S. House of Representatives and the U.S. Senate, "the State is responsible for violations of the Petitioners' rights under Articles II and XX of the American Declaration by denying them an effective opportunity to participate in their federal legislature.,,148 The IACHR then recommended that "Petitioners [be provided] an effective remedy, which includes adopting the legislative or other measures necessary to guarantee [them] the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their nationallegislature.,,149 To date the United States has failed to comply with the Commission's recommendations. It should be recalled that the Restatement supports the view that "to the extent that decisions of international tribunals adjudicate questions of international law, they are persuasive evidence of what the law is" and that "D]udgments and opinions of international tribunals generally are accorded more weight than those of domestic courts, since the former are less likely to reflect a particular national interest or bias.,,15o The United States has also signed, but not ratified, the IACHR, which stipulates under Article 23 that "every citizen shall enjoy the ... [right] to take part in the conduct of public affairs, directly or through freely chosen representatives[,] to vote and to be elected in genuine periodic elections ... , and to have access, under general conditions of equality, to the public service of his country.,,151 Under Article 24, "[a]ll persons are equal before the law ... [and c]onsequently, they are entitled, without discrimination, to equal protection of the law.,,152 However, Article 18 of the Vienna Convention on the Law of Treaties, 1969, which is legally binding on the United States, obligates every state not to defeat the "object and purpose" of the treaty "prior to its entry into force," when "it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification." 153

148 Inter-American Commission on Human Rights Statehood Solidarity Comm. U.S. Report N°. 98/03, Case 11.204, available at http://www.cidh.oas.org/annualrep/2003eng/USA.11204.htm (Report, at 1). 149

Id.

150 RESTATEMENT (THIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 103 cmt. b (1987). 151 American Convention on Human Rights, Nov. 22, 1969, available at http://www.cidh.org/ basicos/english/Basic3.American%20Convention.htm. 152 ld. at art. 24. 153 Vienna Convention on the Law of Treaties, 1969, May 23, 1969, U.N.T.S., vol. 1155, p.33 1, available at untreaty.un.orglilc/texts/instrumentsl.. .Iconventionsll_l_1969.pdf. (Contact author for details on access procedure).

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2. The Council of Europe Forty-seven European and Central Asian states are members of the Council of Europe ("C.O.E."), as distinct from the European Union. As of 2009, each participating member has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol 1).154 Article 3 of the Convention Protocol 1 (Enforcement of certain Rights and Freedoms not included in Section I of the Convention adopted in 1952) provides, inter alia, that "[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.,,155 The Convention is legally binding on all signatory states, and enforceable under Article 38 of the Convention by the European Court of Human Rights. The right to representation granted under the European Convention's Protocol is consistent with general state practice and opinio juris in the region, providing evidence a rule of customary law exists, at least at the regional level, regarding that right. 3.

Matthews v. The United Kingdom

As noted above, international judicial decisions also provide evidence of customary law. In 2000, the European Court of Human Rights held in Matthews v. The United Kingdom that a British citizen living in Gibraltar was denied the right to stand for election in the European Parliament under Article 3 of Protocol 1 of the European Convention on Human Rights. 156 Though Gibraltar was a part of the European Union, it had never had the right to vote in Parliamentary elections. Article 3 provides for the right to regular, free and fair elections "under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.,,157 The petitioner had complained that the prohibition prevented her from participating in elections to choose the legislature of the European Parliament and was 154 Council of Europe, http://conventions.coe.intffreaty/Commun/ListeTableauCourt.asp?MA =3&CM=16&CL=ENG (last visited Dec. 1,2010). (The Council of Europe is made up of 47 states (Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom).). 155 The European Convention on Human Rights, Nov. 4, 1950, available al http://www.hri.orgl docs/ECHR50.html [hereinafter European Convention]. 156 Matthews v. The United Kingdom, Application No. 24833/94, (1999), available al hUp:llweb citation.orgl5IWx37qMR. 157 European Convention, supra note 155, protocol 1, art. 3.

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therefore a violation under Article 3 of Protocol No. 1. 158 The European Court found that the petitioner had been denied any opportunity to express her opinion in the choice of members of the European Parliament, despite the fact that, as the Court had found, legislation that emanated from the European Community forms part of the legislation in Gibraltar and the applicant is directly affected by it. The very essence of the applicant's right to vote to choose the legislature, as guaranteed under Article 3 of Protocol No.1, had been denied. 159 Thus, the provision had been violated. The European Court of Human Rights' decision in Matthews v. The United Kingdom is consistent with the IACHR's decision in Statehood Solidarity v. the United States. 4.

The Organization for Security and Cooperation in Europe

The United States is also a founding member of the Organization for Security and Cooperation in Europe ("OSCE"), formerly known as the Conference for Security and Cooperation in Europe ("CSCE,,).16o The CSCE rose out of a twoyear, bi-Iateral conference among Warsaw Pact and Western nations, culminating in the unanimous adoption by those states of the Helsinki Act in 1975, which enunciated the vital principles of the CSCE, and which, after the conclusion of the Cold War, became known as the OSCE at the Budapest Summit in 1994. 161 The OSCE, a "de facto" 55-member international organization 162 that meets regularly on security and human rights issues affecting those states,163 considers the 158 Matthews v. The United Kingdom, Application No. 24833/94, (1999), available at http:// webcitation.orgl5IWx37qMR. 159 Id. 160 Conference on Security and Co-Operation in Europe Final Act (1975), http://www.osce.orgl documents/mcsl1975/08/4044_en.pdf 161 Fourth Heads of State Summit, http://www.osce.orgliteml15849.html(last visited Dec. 1 2010). 162 Eric Manton, The OSCE Human Dimension and Customary International Law Formation, available at http://www.osce.orgldocumentslodihr/2006/01l36428_en.pdf. (Eric Manton notes "[t]he new OSCE possesses many of the traits one expects of an international organization including recognition as a 'regional arrangement' under Chapter VIII of the UN Charter and Observer Status in the General Assembly of the UN, in spite of the fact that it still does not have a founding charter, and thus is arguably not an international legal entity."). 163 Conference on Security and Co-Operation in Europe Final Act, supra note 160. (The CSCE was attended by "High Representatives" of 35 states, including Austria, Belgium, Bulgaria, Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, the German, Democratic Republic, the Federal Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, the Union of Soviet Socialist Republics, the United Kingdom, the United States of America and Yugoslavia. The second stage of the Conference was attended by six non-participating Mediterranean States as well, including the Democratic and Popular Republic of Algeria, the Arab Republic of Egypt, Israel, the Kingdom of Morocco, the Syrian Arab Republic, Tunisia. These states offered contributions and made statements.).

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human rights commitments of its participating states to be "matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned."I64 However: The OSCE has a unique status. On the one hand, it has no legal status under most of its instruments, decisions and commitments are framed in legal language and their interpretation requires an understanding of the principles of international law and of the standard techniques of the law of treaties. Furthermore, the fact that OSCE commitments are not legally binding does not detract from their efficacy. Having been signed at the highest political level, they have an authority that is arguably as strong as any legal statute under international law. 165 The Helsinki Final Act asserts that "the participating States will respect human rights and fundamental freedoms ... promote and encourage the effective exercise of civil, political ... and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development.,,166 It continues by stating that: [I]n the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights .... [A]nd fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound. 167 In addition, signatory countries agreed to "fulfill in good faith their obligations under international law, both those obligations arising from the generally recognized principles and rules of international law and those obligations arising from treaties or other agreements, in conformity with international law, to which they are parties." 168 The I.C.J. referenced the Helsinki Final Act in the Nicaragua Case as evidence of opinio juris, thus, "opening up the possibility that the Final Act and perhaps also other OSCE documents may qualify as customary international law," posits Eric Manton. 169 Citing Arie Bloed, he argues that: The binding force of these documents is not seriously doubted. Van Dijk correctly states: "[a] commitment does not have to be legally binding in order to have binding force; the distinction between legal and non-legal 164 165 166 167 168 169

Manton, supra note 162, at 1 n.4. Manton, supra note 162, at 4 (footnote omitted). Helsinki Final Act, August 1, 1975, available at hup:/Iwww.hri.orgidocs/Helsinki7S.html. [d. [d. Manton, supra note 162, at S (footnotes omitted).

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binding force resides in the legal consequences attached to the binding force," not in the binding force as such. Violation of politically, but not legally binding agreements is as inadmissible as any violation of norms of international law. In this respect there is no difference between politically and legally binding rules. 170 Manton maintains that: OSCE documents are ... eligible as evidence of state practice. The qualifiers of type of language and proportion of support for the resolutions are met as OSCE documents usually use mandatory terminology, express obligations, and are accepted unanimously. In addition, due to the shortened required time to demonstrate consistent state practice ... , and while the OSCE commitments have been around for over 25 years in the Helsinki Final Act, many of the most progressive commitments have been developed since the end of the Cold War. Thus Stuart Ford would be correct in saying: "[s]tretching as they do over a period of nearly ten [now twenty] years, these declarations are evidence of a general state practice consistent with OSCE principles.,,171 In 1989, the Concluding Document of the Vienna Meeting of the CSCE issued a similar resolution to the Helsinki Final Act regarding the assembly's principles, in which all of the participating states, including the United States, "express their determination to guarantee the effective exercise of human rights and fundamental freedoms, all of which derive from the inherent dignity of the human person and are essential for his free and full development ... [and] recognize that civil, political ... and other rights and freedoms are all of paramount importance and must be fully realized by all appropriate means."l72It went on to declare that the participating states agreed to "ensure human rights and fundamental freedoms to everyone within their territory and subject to their jurisdiction, without distinction of any kind" and to "ensure that no individual exercising, expressing the intention to exercise or seeking to exercise these rights and freedoms or any member of his family, will as a consequence be discriminated against in any manner.,,173 In 1990, the CSCE met again to expand on the human rights principles and obligations of member states. The concluding document, known as the Copenhagen Document 1990, incorporated both the principles and the human rights commitments the 35 convening CSCE States, including the United States, promised 170 Manton, supra note 162, at 5-6 (footnote omitted). 171 Manton, supra note 162, at 8 (footnotes omitted). 172 Concluding Document of the Vienna Meeting of the CSCE, Jan. 19, 1989, available at http:// web.archive.org/web/19990220113731/http://www.osceprag.czldocs/chronos.htm. 173 /d. at 8.

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to observe. 174 The CSCE reaffirmed the principles first articulated in the Helsinki Final Act and subsequent Vienna 1989 document, expressing "their conviction that full respect for human rights and fundamental freedoms and the development of societies based on pluralistic democracy and the rule of law are prerequisites for progress in setting up the lasting order of peace, security, justice ... " and "reaffirm [ed] their commitment to implement fully all provisions of the Final Act and of the other CSCE documents relating to the human dimension [human rights].,,175 Article 1(4) of the Copenhagen Document states that participating States will "ensure that their laws ... conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.,,176 Article 1(5) asserts that "among those elements of justice which are essential to the full expression of the inherent dignity and of the equal and inalienable rights of all human beings are the following: free elections that will ... ensure in practice the free expression of the opinion of the electors in the choice of their representatives[.]"I77 Article 1(6) states that "the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government ... [and that t]he participating States will accordingly respect the right of their citizens to take part in the governing of their country, either directly or through representatives freely chosen by them through fair electoral processes.,,178 Further: To ensure that the will of the people serves as the basis of the authority of government, the participating States will ... permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote .... guarantee universal and equal suffrage to adult citizens ... [and] respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination 179 Again, quoting Manton arguing OSCE human dimension standards constitute hard "soft law" that qualifies as opinio juris: The OSCE human dimension (documents, commitments, instruments) is a de facto treaty regime, as it is founded on pacta sunt servanda -on the good faith of the participating States. It is a treaty in the sense that there are 174 Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, (June 29, 1990), http://www.osce.orgldocuments/odihr/1990/06113992_en.pdf. [hereinafter Copenhagen]. 175 Copenhagen, supra note 174. 176 Copenhagen, supra note 174 at art. 1(4). 177 Copenhagen, supra note 174 at art. 1(5). 178 Copenhagen, supra note 174 at art. 1(6). 179 Copenhagen, supra note 174 at art. 1(7).

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legitimate expectations among the States that each will be in good faith, but this de facto contractual agreement does not address merely a single document, but rather the OSCE process as a whole. This intention to act in good faith in a de facto contractual agreement (combined with its "hard" obligations and binding force), may thus amount to evidence of opinio juris. 180 Thus, the Copenhagen Document 1990, together with other relevant OSCE documents and commitments, has been unanimously adopted by consensus by 56 OSCE participating States. 181 These documents enshrine the fundamental right to political participation for all people, and may now, twenty years after their adoption, provide an important supplementary source of customary law (in the form of a regional European/Central Asian customary law) stemming from the state practice and opinio juris of the states, and acquiesced to by the United States, a participating member of the OSCE. 5.

Expressions of Concern Under the Copenhagen Document 1990 by the OSCE/ODIHR on D.C. Voting Rights

The OSCE has expressed serious concerns about the denial of voting rights to the residents of the District of Columbia. The Office of Democratic Institutions and Human Rights ("ODIHR,,)182 issued its final report on the 2004 U.S. presidential elections, expressing serious concern about the failure of the United States to meet its obligations under the OSCE Copenhagen Document in this regard. 183 The OSCE report observed that: [T]he U.S. constitutional framework grants full representation and voting rights in elections for federal office to U.S. citizens, who are also citizens of individual states. However, to varying degrees, these rights are limited for 180 Manton, supra note 162 at 17 (footnotes omitted). 181 The 56 OSCE participating States are Albania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark; Estonia, Finland, France, Georgia, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, The former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, United Kingdom, United States of America, and Uzbekistan. 182 See Office for Democratic Institutions and Human Rights, http://www.osce.orglodihr/13421. html (last visited Dec. 1, 201O) (The ODIHR is a "specialized institution of the OSCE dealing with elections, human rights, and democratization."). 183 UNITED STATES OF AMERICA GENERAL EwcnoNS, OSCE/ODIHR, Warsaw, Pol. (Nov. 2, 2004). Democracy First, a Washington, DC-based NGO, intervened on behalf of the District of Columbia in 1992, 1993, 1994, and 1995, before OSCE Human Dimension Implementation Meetings in Warsaw, Poland, calling on the OSCE to intervene.

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citizens of other U.S. jurisdictions, such as Washington, D.C. Ensuring equal voter rights is a fundamental OSCE commitment. l84 On March 9, 2007, the OSCE/ODIHR issued its U.S. 2006 mid-term congressional elections report, concluding similarly to its 2004 report that United States Government policy concerning District residents was inconsistent with OSCE human rights standards. The OSCE report stated that: U.S. citizens who are not citizens of one of the fifty states are not able to vote for members of Congress and do not have the right to vote on the floor .... These restrictions exist even though such U.S. citizens are subject to U.S. federal law and pay federal taxes .... [It is] estimated that in Washington D.C. alone, without including U.S. citizens of U.S. territories, up to half a million U.S. citizens are not permitted to vote in federal elections for full congressional representation. As these citizens are subject to U.S. laws, including taxation, the denial of full representation, as underscored by the Constitution and Supreme Court decisions, would appear to be a limitation of voting rights. ls5 The OSCE/ODIHR further recommended that U.S. authorities should consider all possibilities to provide full representation rights for all U.S. citizens. ls6 On March 13, 2009 the OSCE/ODIHR issued its U.S. 2008 presidential election report, concluding similarly to its 2006 report that "[s]ome 600,000 residents of Washington D.C. are entitled to vote only for Electors, i.e. for the President and the Vice-President as if the District of Columbia was a state, but are not represented in Congress by representatives with full voting rights."ls7 It added: The D.C. Court of Appeals rejected the "taxation without representation" argument in Green v. D. C. [1966]. In Adams v. Clinton [2002] the D.C. Court of Appeals said that voting rights were a matter for legislative, not judicial relief. The U.S. Supreme Court refused to reconsider this ruling. This effectively closes the judicial approach to voting rights for D.C. residents for the near future. A draft bill to address the issue was passed by the House in 2007 but is yet to be passed by the Senate. The OSCE Parliamentary Assembly, in its 2005 Washington Declaration, called on the U.S. 184 Id. at 2. 185 UNITED STATES OF AMERICA MIJ)-TERM CONGRESSIONAL ELECI'IONS, 7 November 2006, OSCEIODIHR, Warsaw, Poland. 186 Id. at 19-20. 187 UNITED STATES OF AMERICA GENERAl. ELECI'IONS, 4 November 2008, OSCE/ODIHR Limited Election Observation Mission Final Report, Issued on March 13,2009, Warsaw, Poland, available at http://www.osce.orgiodihr-elections/documents.html?lsi=true&limit= 10&grp=221 (last visited Dec. 1,2010).

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Congress to adopt "such legislation as may be necessary to grant the residents of Washington D.C., equal voting rights.,,188 The OSCE reiterated its previous recommendation to the United States that "[c]onsideration should be given for providing full representation rights in Congress for all U.S. citizens, including those of Washington, D.C. and U.S. territories." 189 6.

Expressions of Concern Under the 1990 Copenhagen Documents by the OSCE Parliamentary Assembly on D.C. Voting Rights

In 2005, the OSCE Parliamentary Assembly ("PA"), composed of 320 members from 55 parliaments, assembled in Washington, D.C. and passed a unanimous resolution calling on the U.S. Congress to grant equal congressional voting rights to Washingtonians; Le., one member of the U.S. House of Representatives and two representatives in the U.S. Senate. The PA resolution called "on the Congress of the United States to adopt such legislation as may be necessary to grant the residents of Washington, D.C. equal voting rights in their national legislature in accordance with its human dimension commitments.,,190 Such declarations by legal scholars, human rights experts, and democratic practitioners, authoritative interpreters of international human rights law, further serve to codify and develop customary international law. 7. The African Union The Constitutive Act of the African Union, which established the African Union ("AU") in 2000 (and replaced the Organization of African Unity), creates legally binding commitments on the part of member states.t 91 Like the O.A.S., the EU, the COE, and the OSCE, the objectives of the AU run parallel regarding support for principles of representative democracy and the right for all citizens to vote through duly elected representatives in the national legislature of one's country. 188 189

[d. at 8 n.16. [d. at 32.

190 The OSCE Parliamentary Assembly's resolution language was authored by the NGO, Worldrights. 191 http://www.africa-union.orglrootlAU/memberstates.map.htm (Contact author for website information). 53 African nations have also endorsed the Constitutive Act (Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central African Rep., Cape Verde, Chad, Cote d'Ivoire, Comoros, Congo, Djibouti, Democratic Rep. of Congo, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Guinea, Kenya, Libya, Lesotho, Liberia, Madagascar, Mali, Malawi, Mozambique, Mauritania, Mauritius, Namibia, Nigeria, Niger, Rwanda, South Africa, Sahrawi Arab Democratic Republic, Senegal, Seychelles, Sierra Leone, Somalia, Sao Tome & Principe, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, and Zimbabwe).

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The objectives of the AU include 1) the "[e ]ncourage [ment of] international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights;" and 2) the "[p]romot[ion] and protect[ion of] human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments.,,192 Under Article 4 of the Constitutive Act, AU State members also agree to function according to certain principles, including "[r]espect for democratic principles, human rights, the rule of law and good governance.,,193 The Constitutive Act also refers to the African Charter on Human and People's Rights ("African Charter,,).194 Article 13 of the African Charter establishes that "[e ]very citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law" and also that "[e ]very citizen shall have the right of equal access to the public service of his country.,,195 All AU States have ratified the African Charter. 196 The commitments undertaken by AU States to respect human rights in accordance with the African Charter, consistent with the UDHR, both of which provide for equal representation in the national legislatures of African states, reinforces the argument that state practice in Africa contributes to customary international law. When taking into account European and Central Asia state practice, as well as state practice in Oceania, it appears as though a general and consistent state practice followed from a sense of legal obligation on the fundamental right to vote in the national legislature of one's own country has emerged in the Eastern Hemisphere as well as in the Western hemisphere, thus contributing to the codifying and development of customary law worldwide.

O.

Other International Covenants Codifying and Developing Customary Law

The Restatement acknowledges that a broad network of complimentary multilateral agreements, commonly used in the field of international human rights law, constitute state practice and support the growth and development of customary law. 197 And while, the American Declaration of the Rights and Duties of Man, the Inter-American Convention on Human Rights, the European Convention for the 192 Constitutive Act of the African Union, available at http://www.au2002.gov.za/docs/key_oau/ au_act.htm (last visited Dec. 2, 2010). 193 Id. at art. 4. 194 Id. at art. 3. 195 African Charter on Human and People's Rights, http://www.africa-union.orglroot/au/DocumentsffreatiesffextIBanjul%20Charter.pdf. (Contact author for website information). 196 See African Union" http://www.africa-union.orglroot/au/Documentsrrreaties/treaties.htm (last visited Dec. 2, 2010). 197 See, RESTATEMENT (TIIIRD) OF TilE FOREIGN REI.ATIONS LAW OF THE UNITED STATES (1987).

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Protection of Human Rights and Fundamental Freedoms and its Protocols, the European Union Charter of Fundamental Rights, the Copenhagen Document 1990, and the African Charter provide other important examples of multilateral accords that have been ratified by states at the regional, hemispheric level, and demonstrate evidence of state action and practice,198 two other major international human rights treaties, the International Covenant on Civil and Political Rights ("ICCPR") and the International Convention on the Elimination of All Forms of Racial Discrimination ("ICERD"), provide additional evidences of state practice at the global level. 199 Both treaties are legally binding on signatory states and provide for the right to representation for all citizens in the national legislature of their country. The United States is a signatory to the ICCPR and took no reservations to Article 25 and 26. Under Article 25: Every citizen shall have the right and the opportunity ... and without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his country.2oo Under Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.zOl In 1996, the U.N. Human Rights Committee202 issued General Comment 25, which defines in detail the contours of Article 25, after the matter of the disen198 Excepted from this list is the UDHR, which serves as a model for the world's other human rights instruments, and is in fact universal in its acceptance and application. 199 See also, Statement of Ttmothy Cooper on Behalf of the International Human Rights Law Groups before the 58th Sessions of the UN Commission on Human Rights Under Item 11: Civil and Political Rights, April 16,2002 available at http://dcwatch.com/issues/voting04.htm and http://worldrights.orglhome.htm. 200 Office of the United Nations High Commissioner for Human Rights, International Covenant on Civil and Political Rights, opened for signature December 16, 1966, available at http:// www2.ohchr.orglenglishllaw/ccpr.htm [hereinafter ICCPR] 201 ICCPR, supra note 2oo,at art. 26. 202 The Human Rights Committee considers periodic compliance reports submitted by member States of the U.N. that have signed and ratified the ICCPR. Committee members are elected by the member states, but serve in their own personal capacity. Committee members recuse themselves

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franchisement of the District of Columbia was first presented to the Committee during its 53rd Sessions in New York in 1995.203 According to General Comment 25: Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures, as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.204 It further noted that:

The conduct of public affairs ... is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocations of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by [A]rticle 25 should be established by the constitution and other laws. 205 Moreover, it stated that: Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in [A]rticle 25 that those representatives do in fact exercise governmental power, [and that n]o distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political, national or social origin, property, birth or other status.206 Further, it maintained that: when the Committee considers their own country reports. Article 40 of the ICCPR stipulates that "[t]he States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a)Within one year of the entry into force of the present Covenant for the States Parties concerned; (b) Thereafter whenever the Committee so requests." 203 See Timothy Cooper, WASIIINGTON POST, April 1, 1995. The intervention on behalf of the District of Columbia was made by Timothy Cooper, executive director, the Statehood Solidarity Committee. 204 Human Rights Committee, General Comment 25, available at hUp:/Iwww2.ohchr.orglenglishlbodies/hrc/comments.htm. 205 [d. If 5. 206 [d. CJI 3, 4.

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Any conditions which apply to the exercise of the rights protected by Article 25 should be based on objective and reasonable criteria .... The exercise of these rights by citizens may not be suspended or excluded on grounds which are established by law and which are objective and reasonable. For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office?07 During the appearance of the United States' delegation to the Human Rights Committee in 1995, U.S. State Department Legal Advisor, Conrad Harper, informed the Committee that the "courts of the [United States] could refer to the Covenant and take guidance from it.,,208 To date, 165 countries are party to the ICCPR, with 72 additional signatories. 209 U.N. General Assembly Resolution 2200A(XXI) adopted and opened it for signature, ratification and accession in 1966. It entered into force in 1976.110 Similarly, under ICERD Article 1: [T]he term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 211 Article 2, paragraph l(c) states that "[e]ach State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists[.],,212 ICERD Article 5 stipulates that: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its form and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (c) Political rights, in particular the rights to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part 207

[d. , supra note 10, at § 777-858. See, e.g., Palmore v. Sidoti, 466 U.S. 429,432 (1984); see also 16B AM. JlJI{. 2», supra note 10, at § 777858.

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objective in a less discriminatory way.26 Further, the government must prove that there is a compelling purpose for discriminating. 27 "Under intermediate scrutiny, a law is upheld if it is substantially related to an important government purpose.,,28 "Under rational basis review, a law is upheld if it is rationally related to a legitimate government purpose. ,,29 According to the Supreme Court, selecting the appropriate level of scrutiny depends on the type of discrimination that takes place.3o The Supreme Court automatically applies strict scrutiny to discrimination based on race, national origin, and alienage. 31 Further, the Supreme Court identifies gender and non-marital children as quasi-suspect classes and applies intermediate scrutiny.32 For other types of discrimination, the Supreme Court looks at several factors to determine if a particular group should be considered a suspect class. 33 First, the Court examines immutable characteristics such as race, national origin, gender, and marital status of a person's parents, because there is a fundamental lack of choice in each area. 34 Second, the Court determines if the group is unable to protect themselves through the political process,35 Finally, the Court examines the history of a particular group and determines if the discrimination is "invidious. ,,36 Generally, the Supreme Court does not wish to expand the list of suspect classifications and the use of strict scrutiny or quasi-suspect classifications and the use of intermediate scrutiny, thus, other types of discrimination will usually only receive rational basis review. 37 If the government at the very least states a legitimate purpose for the restrictive law such as protecting the health, safety, and morals of the public then the law will generally survive rational basis review. 38 Moreover, the Court has declared that under rational basis, the purpose of the law is not overly important and they will uphold the law if there are any reasona26 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858. 27 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858. 28 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976); Lehr v. Robertson, 463 U.S. 248,266 (1983). 29 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858. See, e.g., Craig, 429 U.S. at 197; Lehr, 463 U.S. at 266. 30 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858. 31 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21>, supra note 10, at § 777-858. 32 CIIEMERINSKY, supra note 9, at 749, 777; see also 16B AM. JUR. 21>, supra note 10, at § 777858. 33 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858. 34 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777858. See e.g. United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938). 35 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777858. 36 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777858. 37 CIIEMERINSKY, supra note 9, at 672-73. 38 CIIEMERINSKY, supra note 9, at 680; see also 16B AM. JUI~. 2D, supra note 10, at § 777-858.

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ble facts to support the discrimination. 39 Further, the Court upholds the law unless the government action is "clearly wrong. ,,40 B.

Substantive Due Process

Substantive Due Process is a question of whether the government has a sufficient reason for denying a person of life, liberty, or property.4l To find a violation under substantive due process requires the infringement of a liberty interest and the government action must not meet the appropriate level of review. 42 Further, if the liberty interest is a fundamental right then strict scrutiny is automatically used. 43 Enumerated rights in the Constitution are fundamental rights. 44 The Supreme Court has determined through case law that various unremunerated rights are also fundamental rights either because of the importance of the interest or because of the expectations created by state law. 45 The Court reviews laws that infringe on fundamental rights under strict scrutiny.46 The government must have a "compelling interest" to justify an infringement of a fundamental right, show that the law is necessary to achieve the stated purpose, and demonstrate that there is no less restrictive way to achieve the stated end. 47 If the liberty or right is not fundamental, generally, rational basis review is applied and the government only has to show a "legitimate interest" that is rationally related. 48 Thus, to trigger equal protection, a law by a state or the federal government must be based on a classification and violate the level of scrutiny applied to that classification. In addition, to trigger substantive due process, a law by a state or the federal government must involve a liberty interest and violate the applicable 39 CIIEMERINSKY, supra note 9, at 683; see also 16B AM. JUR. 2n, supra note 10, at § 777-858. See McGowan v. Maryland, 366 U.S. 420, 426 (1961). 40 CIIEMElUNSKY, supra note 10, at 685; see also 16B AM. Jlm. 2n, supra note 10, at § 777-858. See Mathews v. DeCastro,429 U.S. 181, 185 (1976) (quoting Helvering v. Davis, 301 U.S. 619, 640 (1937». 41 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUR. 2n, supra note 10, at § 890-922. 42 CIIEMElUNSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUI~. 2n, supra note 10, at § 890-922. 43 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUR. 2n, supra note 10, at § 890-922. 44 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUI~. 2n, supra note to, at § 890-922. 45 CHEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JIm. 2n, supra note 10, at § 890-922. 46 CIIEMERINSKY, supra note 9, at 565, 792-97; see also 168 AM. JUR 2D, supra note 10, at § 890922. 47 CJIEMEIUNSKY, supra note 9, at 797; see also 168 AM. JUR. 21>, supra note 10, at § 890-922. 48 CIIEMElUNSKY, supra note 9, at 795 (citing Carolene Prod. Co., 304 U.S. at 152 n.4) (the judiciary will defer to the legislature unless there is discrimination against a discrete and insular minority or infringement of a fundamental right). See also 168 AM. JlJl~. 20, supra note to, at § 890-922.

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level of scrutiny. Loving v. Virginia exemplifies the application of the traditional equal protection principles and due process principles to the fundamental right to marry. C. Loving v. Virginia Loving v. Virginia symbolizes the Supreme Court's first recognition of the right to marry as a fundamental right protected as a liberty interest under the Due Process Clause. 49 In addition, Loving represents the Court's rejection of discrimination under the Equal Protection Clause.5o Both opponents and proponents of same-sex marriages use Loving to support their viewpoints. In Loving, the Court declared Virginia's anti-miscegenation statute that prohibited a "white person from marrying anyone other than another white person, unconstitutional.,,51 In 1958, Mildred Jeter, an African American woman, married Richard Loving, a Caucasian man, in Washington, D.C.52 Shortly after the marriage they moved to Virginia, where they were charged with violating Virginia Code Section 20-58 and 20-59.53 Both sections of the Virginia Code derive their source from the adoption of the Racial Integrity Act of 1924,54 which states in part:

No marriage license shall be granted until the clerk or deputy clerk has reasonable assurance that the statements as to color of both man and woman are correct. .. If there is reasonable cause to disbelieve that applicants are of pure white race, when that fact is stated, the clerk or deputy clerk shall withhold the granting of the license until satisfactory proof is produced that both applicants are "white persons" as provided for in this act. .. It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this act, the term "white person" shall apply only to the person who has no trace whatsoever of any blood other than Caucasian; but persons who has one-sixteenth or less of the blood of the American Indian and has no other non-Caucasian blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act. .. All acts or parts of acts inconsistent with this act are, to the extent of such inconsistency, hereby repealed 55 CHEMERINSKY, supra note 9, at 798; see als016B AM. JUR 21) supra note to, at § 890-922. CHEMERINSKY, supra note 9, at 798; see also16B AM. JUR 21) supra note 10, at § 890-922. Loving v. Virginia, 388 U.S. 1 (1967). Id. at 2. 53 Id. at 3. 54 Id. at 6. 55 Virginia Racial Integrity Act of 1924, http://www2.vcdh.virginia.edu/encounter/projects/ monacans/Contemporary_Monacans/racial.html (last visited May 3, 2010) (emphasis added). 49 50 51 52

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The Lovings pled guilty to the charge. 56 In the subsequent trial, the presiding judge suspended the Lovings' one-year jail sentence on the condition that they leave the Virginia. 57 The Lovings moved back to D.C., but instituted a suit in Virginia's Supreme Court of Appeals. 58 The Court of Appeals affirmed their convictions. 59 The Lovings appealed to the United States Supreme Court. 60 Under equal protection, the state contended that its miscegenation statutes punished both white and the black people in an interracial marriage equally, thus, their "reliance on racial classifications did not constitute invidious discrimination based upon race.,,61 The state assumed that this argument was valid,62 and asserted that the constitutional issue was "whether there is any rational basis for a State to treat interracial marriages differently from other marriages. ,,63 On this question, the state argued that since the scientific evidence regarding interracial marriages was disputable, the appellate court should defer to the wisdom of the state legislature and adopt its policy of discouraging interracial marriages. 64 The Appeals Court did exactly this, and affirmed the Lovings' conviction.65 Fortunately, the Supreme Court did not agree with the state's argument and found that the equal application of the anti-miscegenation law to whites and blacks did not mean that it deserved rational basis review. 66 The Court held that the law impermissibly classified couples based on race and should be reviewed using strict scrutiny.67 Under strict scrutiny, the state lacked a compelling reason to restrict the right to marry.68 Thus, the anti-miscegenation law constituted invidious racial discrimination. 69 The Court found that Virginia's anti- miscegenation law was a violation of the fundamental right to marry and the state does not have a compelling reason to deny interracial couples the right to marry.70 The law "deprives all of the State's citizens of liberty without due process of law."71 Thus, Loving represents the basic principles of constitutional analysis under the Fourteenth Amendment. 56 57 58 59 60 61 62 63

64 65 66 67 68 69 70 nard v. 71

Id. Loving, 338 U.S. at 3. Id. at 4. /d.

Id. Loving, 388 U.S. at 8. Id. Id. Id. Id. Loving, 388 U.S. at 9. Id. Id. Id. at 11. Loving, 388 U.S. at 11 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942»; see also MayHill, 125 U.S. 190 (1888). Loving, 388 U.S. at 12.

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II.

SAME-SEX COUPLES RIGHT TO MARRY UNDER THE CONSTITUTION

A.

Equal Protection

The proponents of same-sex marriage, who state that Loving v. Virginia stands for the proposition that same-sex marriages are a violation of equal protection and due process, have analyzed the case incorrectly.72 The Court stated that Virginia's anti-miscegenation statute was invalidated solely on the grounds of racial discrimination?3 The Court acknowledged that not "all state restrictions upon the right to marry are beyond the reach of the Fourteenth Amendment.,,74 Nevertheless, "there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.,,75 Finally, the Court held that the state marriage statute recognizes only opposite-sex marriages, and this limitation does not violate the Fourteenth Amendment right to equal protection and due process. 76 Another reason why Loving is not the answer to questions on the legality of same-sex marriage is that the Supreme Court has not determined if discrimination based on sexual orientation requires the application of intermediate or strict scrutiny?7 However, most of the United States Courts of Appeals cases have held that rational basis is the correct standard of review for discrimination based on sexual orientation.7s In the various appellate cases that use rational basis review, the majority of them uphold restrictive laws based on sexual orientation.79 One exception is Watkins v. United States Army, where the court held that strict scrutiny is the proper standard of review for discrimination based on sexual orientation.so The majority of the appellate courts use rational basis review found that sexual orientation is not a suspect classification warranting strict scrutiny because homosexuality is arguably not an immutable characteristic such as race, national origin, or gender. Furthermore, the Courts found that homosexuals are able to protect themselves through the political process unlike aliens, and homo72 Richard F. Duncan, From Loving to Romer: Homosexual Marriage and Moral Discernment, 12 BYU J. PUB. L. 239,243 (1998). 73 Robin Cheryl Miller & Jason Binimow, Annotation, Marriage between Persons of Same SexUnites States and Canadian Cases, I A.L.R. FEll. 2d 1, §7 (2005). 74 75 76

[d. [d. [d.

77 CIIEMERINSKY, supra note 9, at 787. 78 [d. at 788 (citing Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Equal. Found. of Greater Cincinnati, 54 F.3d at 26; Nat'l Gay Task Force v. Bd. of Educ. of Okla. City, 729 F.2d 1270 (10th Cir. 1984); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994); see also High Tech Gays v. Def. Insus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (rejecting view that sexual orientation is a suspect classification». 79 CIIEMERINSKY, supra note 9, at 788 (citing Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989». 80 CIIEMERINSKY, supra note 9, at 788 (citing Watkins, 875 F.2d at 699).

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sexuals as a class do not have a history of "invidious" discrimination. Thus, in view of the prevailing use of rational basis, restrictions on same-sex marriages will have a very high probability of surviving under equal protection. Ben-Shalom v. Marsh is one of the first cases where an appellate court did not find that homosexuals are a suspect class. In Ben-Shalom, the plaintiff was a sergeant in the United States Army Reserve on active duty with the 509th 1st United States Army Reception Battalion in Milwaukee, Wisconsin. 81 While serving her original enlistment, the Plaintiff tried to reenlist for another six-year term. 82 In response, the Plaintiffs commanding officer notified her that the Army was considering barring her from reenlistment because she admitted to being a homosexual. 83 Subsequently, the Army discharged her from the Reserves pursuant to an Army regulation that allows the discharge of any soldier who "evidences homosexual tendencies, desire, or interest, but is without overt homosexual acts.,,84 On appeal, the appellate court held that homosexuals are not a suspect or quasi-suspect classification, because the law was not based on the Plaintiffs status as a homosexual. 85 The state established the law to prevent homosexual conduct that disrupts discipline. 86 In addition, the appellate court found that while homosexuals have suffered a history of discrimination in the military, the Army's regulation was considered "invidious" under equal protection.s7 Further, the court found that homosexuals have political power,88 "where a political approach is open to them to seek a congressional determination about the rejection of homosexuals by the Army.,,89 The appellate court found that the Army's regulation promoted a legitimate government interest that was passable under rational basis review. 90 The appellate court agreed with Judge Hall, who wrote in the dissent in Watkins, "there is no doubt that the majority's intrusion into military affairs, unjustified by important federal interests, will have a disruptive effect upon military discipline.,,91 Thus, the appellate court in Ben-Shalom held that strict scrutiny does not apply to laws regarding sexual orientation.92 81 82 83 84 85 86 87 88

Ben-Shalom, 881 F.2d at 456. Id. Id. Id. at 457. Id. Ben-Shalom, 881 F.2d at 457. Id. at 466. Id. (citing Cleburne, 473 U.S. at 445 (1985». 89 Id. 90 Id. (citing Watkins, 875 F.2d at 699) (the court agreed with Judge Hall, who wrote in dissent in Watkins, that "[t]here is no doubt that the majority's intrusion into military affairs, unjustified by important federal interests, will have a disruptive effect upon military discipline"). 91 Ben-Shalom, 881 F.2d at 466. 92 Id.

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Another appellate court decision, Equality Foundation of Greater Cincinnati v. City of Cincinnati, did not find that homosexuality is a suspect classification.93 In Equality Foundation of Greater Cincinnati, the city appealed a bench trial judgment, which found "Issue 3," a voter amendment to the city charter, unconstitutional because the amendment violated equal protection. 94 The trial court found that homosexuals are a suspect classification with limited political access and the amendment does not survive strict scrutiny.95 The voters approved the amendment in an effort to appeal the Cincinnati City Council ("Council") enactment of the "Equal Employment Opportunity Ordinance," which stated that the City may not discriminate in its own hiring practices because of classifications like sexual orientation. 96 In addition, the amendment contradicted another Council ordinance, the "Human Rights Ordinance," which prohibits private discrimination in areas such as employment, housing, or public accommodation because of sexual orientation.97 The appellate court disagreed with the trial court and found homosexuals are not subject to a quasi-suspect classification based on their sexual orientation.98 Further, the appellate court, found that homosexuality is based on conduct, which is not easily identifiable or immutable and therefore is not a classification that deserves strict scrutiny.99 Specifically, the appellate court determined that: No law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable "on sight" unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or seIf93 94 95 96 97

Equal. Found. of Greater Cincinnati, 54 F.3d at 261. [d. at 263. [d. at 266. [d. [d.

Equal. Found. of Greater Cincinnati, 54 F.2d at 266-67. [d. (citing Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en bane) (following Padula, 822 F.2d at 103 ("It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause"»; Ben-Shalom, 881 F.2d at 464, cerro denied, 494 U.S. 1004 (1990) ("If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes"); High Tech Gays, 895 F.2d at 571; Baker v. Wade, 769 F.2d 289,292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986) (homosexuals compose neither a suspect nor a quasi-suspect class); Nat'l Gay Task Force, 729 F.2d at 1273, affd mem., by an equally divided Court, 470 U.S. 105 (1985) (legal classification of gays is not suspect) (both decided prior to Bowers». 98

99

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proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because "they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group [.]"100 Further, the appellate court found that homosexuals are not prevented from participating in the political process, where they have other avenues to support homosexual legislation through their Congressmen, and where the amendment does not stop homosexuals from voting for City Council members. 101 The amendment only "renders futile the lobbying of Council for preferential enactments for homosexuals because the electorate places the enactment of such legislation beyond the scope of Council's authority." 102 Finally, the appellate court found that under rational basis the amendment had the legitimate purpose of allowing the Council to return to a "neutral opinion" about homosexuality.103 Similar to Ben-Shalom, the appellate court found that strict scrutiny did not apply to matters of sexual orientation, because homosexuals are not considered a suspect class. National Gay Task Force v. Board of Education of Oklahoma City is another example where an appellate court did not find homosexuality to be a suspect class. In National Gay Task Force, the Plaintiffs challenged a statute that prohibits teachers from displaying "public homosexual conduct, which means advocating, soliciting, imposing, encouraging, or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees."I04 The appellate court rejected the equal protection claim and found that teachers displaying homosexual conduct do not meet the standards of a suspect classification. IOS However, the appellate court did have the "advocating" section of the statute removed because that particular section was unconstitutionally overbroad under the First Amendment. 106 The Supreme Court affirmed the decision in this case l07 Steffan v. Perry also follows the other appellate court decisions. In Steffan, a Naval Academy midshipman was forced to resign because he admitted to two fellow midshipmen and the chaplain that he was a homosexual.108 In the subse100 Equal. Found. of Greater Cincinnati, 54 F.3d at 266-67 (citing Bowen v. Gilliard, 483 587,602 (1987». 101 [d. at 266-69. 102 [d. 103 [d. at 270. 104 Nat'l Gay Task Force, 729 F.2d at 1272. 105 [d. at 1273. 106 [d. at 1274. 107 Bd. of Educ. of Okla. City v. Nat'l Gay Task Force. 470 U.S. 903 (1985). 108 Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994).

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quent investigation, he only admitted to being a homosexual when asked. lo9 He was eventually discharged from the Naval Academy.llo The Court of Appeals en bane held that the Naval Academy regulations and the directives of the Department of Defense ("DOD") did not violate the midshipmens' equal protection rights under the Constitution. I II The appellate court held that homosexuals are not a suspect class, because "a group that is defined by reference to that conduct cannot constitute a 'suspect class.'"\ 12 Thus, under rational basis review, the Naval Academy regulations that discharge admitted homosexuals because they may engage in homosexual conduct, rationally relates to the legitimate interest in preserving order and unity within the military. I 13 Although homosexuals cannot be discharged based solely on their "status" as a homosexual, they can be discharged based on the presumption that they will or have engaged in homosexual condUCt. II4 Thus, the military may rely on the presumption of homosexual conduct to avoid the administrative cost that will be needed to produce evidence of the conduct, "so long as there is a rational basis for the belief that the presumption furthers that end.,,115 In addition, "the military furthers its policy of discharging those members who either engage in, or are likely to engage in, homosexual conduct when it discharges those who state that they are homosexual." I 16 The court can use a rational basis review to the DOD directives. However, it was unnecessary for the appellate court to apply such a review because the service member admitted he was a homosexual and the resulting implication was that he engaged in homosexual conduct. I I? Thus, his admission made his facial challenge that the Academy based his discharge on his "inner thoughts" or "desires" instead of actual conduct moot. IIS Watkins v. United States Army is one notable case in which the appellate court reversed the revocation of a service member's security clearance and discharge from the Army because of his homosexuality. In 1981, the Army discharged Watkins, a soldier in the Army, pursuant to a newly adopted Army Regulation that ordered the discharge of all homosexuals "regardless of merit.,,119 The Army discharged Watkins despite the fact that they knew of his homosexuality from his original enlistment. 12o In addition, they were aware of his homosexuality where 109

[d. at 677-86.

110 [d. 111

[d. 112 [d. at n.3. 113 Perry,41 F.3d at 677-86. 114 [d. at 686. 115 116

[d. [d.

117 [d. 118 Perry, 41 F.3d at 677-93. 119 Watkins,875 F.2d at 701-05. 120 [d.

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he admitted in an affidavit that he engaged in homosexual conduct with two other soldiers.121 The District Court enjoined the Army from discharging Watkins 122 and from barring Watkins' reenlistment. 123 However, the appellate court vacated the District Court's injunction allowing reenlistment. 124 On remand, the District Court found for the Army, thus Watkins filed a second appeal. 125 The Court of Appeals in Watkins found that although the Army had a policy that "homosexuality is a non-waivable disqualification for reenlistment," they continued to reenlist the service member throughout his fourteen-year career. 126 The Court of Appeals held that the Army could not discharge Watkins under the new 1981 ordinance, based on their actions reenlisting the member. 127 Watkins does not lend support to the proposition that homosexuality is a suspect classification, thus triggering strict scrutiny review, because the only mention of equal protection violations is in the concurring opinion. 128 Although the Supreme Court has been silent on the issue, the appellate court in Watkins like the majority of federal appellate cases previously discussed did not find that homosexuality is a suspect classification. Similar to Watkins, Romer v. Evans, and Lawrence v. Texas do not propose that homosexuality is a suspect classification and that strict scrutiny is the standard of review for laws on sexual orientation. In Romer, the Supreme Court invalidated an amendment to Colorado's Constitution that prohibited any legislative, executive, or judicial action designed to protect homosexuals from discrimination. 129 The Court held that the law impermissibly made it more difficult for homosexuals to receive help from the government than for other citizens and was a violation of equal protection. 130 Although the Court was silent on whether sexuality is a suspect classification, it appears that the Court applied the rational basis test. 131 Under the rational basis test, the Court held that the amendment did not advance a legitimate legislative goal and only denied homosexuals equal protection under Colorado's Constitution. 132 The amendment was impermissible because it promoted discrimination against homosexuals. 133 Romer does not state 121 Id. 122 Id. 123 Id. 124 Watkins, 875 F.2d at 701-05. 125 Id. 126 Id. at 707. 127 Id. 128 Id. at 738. 129 Ann M. Reding. Lofton v. Kearney: Equal Protection Mandates Equal Adoption Rights. 36 U.c. DAVIS L. REV. 1285. 1295 (2003) (citing Romer v. Evans. 517 U.S. 620 (1996». 130 Id. 131 Id. 132 Id. 133 Id.

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that homosexuality is a suspect classification, and does not call for the use of strict scrutiny review.134 In Lawrence, the trial court convicted two men under a Texas criminal statute that prohibits sodomy between people of the same sex. 135 The Supreme Court reversed the Texas conviction, and found that the prohibition violated privacy rightS. 136 The Court found that people should have privacy in their own private affairs. 137 "While Lawrence is a victory for homosexuals, it does not provide an equal protection victory.,,138 The Court did not determine whether homosexuals are a suspect class or the level of review homosexuals should be provided in an equal protection lawsuit. 139 Moreover, the majority opinion explicitly states that its decision did not involve "whether the government must give formal recognition to any relationship that homosexual persons seek to enter."140 Thus, like Romer, Lawrence does not classify homosexuals as a suspect or quasi-suspect class. Nor does Lawrence promote the use of strict scrutiny review. Most appellate courts such as those in Ben Shalom, Equality Foundation of Greater Cincinnati, National Gay Task Force, and Steffan, use traditional constitutional analysis of the Equal Protection Clause and find that homosexuals do not meet the three factors, established by the Supreme Court, that are necessary to find a suspect classification. Thus, the majority of courts including the Supreme Court in Lawrence and Romer do not consider homosexuals a suspect or quasisuspect class. Further, since homosexuals are generally not considered a suspect class, it follows that same-sex restrictions should be reviewed in equal protection challenges under rational basis. Moreover, since most state actions survive rational basis review, same-sex marriage restrictions based on a legitimate reason will also survive. The majority of the appellate courts do not find that homosexuals are a suspect class because (1) there is a lack of overwhelming scientific data showing homosexuality as an immutable characteristic, (2) there is a lack of data showing homosexual discrimination reaches the level of "invidious" discrimination, and (3) that political outlets, although weak, are available to homosexuals.

134 Reding, supra note 129, at 1295. 135 Charles E. Mauney, Jr., Landmark Decision or Limited Precedent: Does Lawrence v. Texas Require Recognition of a Fundamental Right to Same-Sex Marriage?, 35 CUMBo L. REV. 147, 154 (2005). 136 Id. 137 Id. 138 Kari Balog, Equal Protection for Homosexuals: Why the Immutability Argument Is Necessary and How It Is Met, 53 CLI~V. ST. L. REV. 545,552 (2006). 139 Id. 140 Lawrence V. Texas, 539 U.S. 558, 578 (2003).

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There is no overwhelming scientific data that shows that homosexuality is an immutable characteristic. 141 In fact, most of the scientific data on homosexuality is mixed. 142 "An immutable characteristic is a trait that is 'determined solely by the accident of birth' and is 'not capable of or susceptible to change.",143 "This definition of immutability does not include 'ethnic or socio-cultural' characteristics 'such as citizenship or alienage' or 'poverty.",144 "While this definition seems to exclude psychological conditions and only include biological traits, a predisposition to a certain psychological trait is determined solely by the accident of birth, thus being beyond the control of the inheriting child."14s However, the Court does not currently recognize psychological traits. 146 "According to current scientific and professional understanding, the core attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence."147 However, some studies find homosexuality is determined at birth. 148 Thus, with the lack of definitive scientific proof that homosexuality is a characteristic from birth such as race or gender, it follows that homosexuality does not meet the definition of an immutable characteristic. Further, homosexuality lacks the level of discrimination necessary to find "invidious" discrimination. The Lawrence Court's opinion stated, "there is not a longstanding history in this country of laws directed at homosexual conduct as a distinct matter.,,149 Thus, there is no foundation for an equal protection claim without proof of inviduious discrimination or "discriminatory purpose."IS0 A "discriminatory purpose implies more than intent as volition or intent as awareness of consequences."IS1 "Rather, it implies that the 'state legislature, selected 141 Lyn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U. L. REV. 1,62-74 (1996). 142 Balog, supra note 138, at 554; see also Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503 (1994). 143 Balog, supra note 138, at 554; see also Halley, supra note 142, at 503; see also Fronterio v. Richardson, 411 U.S. 677, 686-87 (1973); Garcia v. Gloor, 618 F.2d 264,269 (5th Cir. 1980); Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973). 144 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411 U.S. at 686-87; Gloor, 618 F.2d at 269; Warner,481 F.2d at 643. 145 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411 U.S. at 686-87; Gloor, 618 F.2d at 269; Warner, 481 F.2d at 643. 146 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411 U.S. at 686-87; Gloor, 618 F.2d at 269; Warner, 481 F.2d at 643. 147 AMERICAN PSYCIIOLOGICAL ASSOCIATION. ANSWERS TO YOUR QUESTIONS: FOR BmTER UNDERSTANDING OF SEXUAL ORIENTATION AND HOMOSEXUALITY (2008), http://www.apa.orgltopics/ sexuality/sorientation.pdf. 148 Balog, supra note 138, at 556. 149 Lawrence, 539 U.S. at 565. 150 K.G. Jan Pillai, Shrinking Domain of Invidious Intent, 9 WM. & MARY BILL OF Rrs. J. 525, 528 (2001) (citing Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 278-79 (1979»; see also Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL OF Rrs. J. 89 (1997). 151 Pillai, supra note 150, at 525, 528; see also Koppelman, supra note 150, at 89.

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or reaffirmed a particular course of action at least in part 'because of,' not merely . 'in spite of,' its adverse effects upon an identifiable group.,,152 The Court's rationale implies that many individuals or groups can claim that they have experienced a history of discrimination, but the key is that the level of discrimination should be "invidious" and based on an immutable characteristic. 153 The discrimination experienced by homosexuals does not rise to the same level discrimination experienced by other suspect classifications such as race. Thus, homosexual discrimination does not meet the level of "invidious" discrimination necessary to classify homosexuality as a suspect classification. Today, the level of discrimination experienced by people of different races is still three times more evident than discrimination based on sexual orientation. The Federal Bureau of Investigation 2008 Hate Crime Report showed that there are three times as many acts of racial discrimination than discrimination based on sexual orientation. 154 Finally, homosexuals have political outlets. 155 Although, the available outlets are not strong enough to defeat their opposition,156 it cannot be said that they are a "discrete and insular" minority lacking in political power. Homosexuals are not considered "discrete and insular," because over the years they have been able to lobby for gay rightS. 15? Although homosexuals have ·not always been successful in their political endeavors, they are able to influence legislation. 15s Several bills were introduced in Congress, where at least eight states have legislation that protects homosexuality, several cities and counties incorporate "sexual orientation" into their civil rights statutes and ordinances, and several jurisdictions adopt some kind of protection for homosexuality.159 For example, the Federal Marriage Amendment was successfully defeated, in part because of strong opposition from homosexual activists. 160 Under equal protection, the majority of appellate courts find that homosexuality does not meet the three factors that the Supreme Court typically uses to determine if a group is considered a suspect class. Thus, strict scrutiny review for equal protection challenges should not be applied to laws that restrict marriage to opposite sex couples. While the Supreme Court is silent on the type of review, ho152 Pill ai, supra note 150, at 525, 528; see also Koppelman, supra note 150, at 89. 153 Pillai, supra note 150, at 571. 154 Federal Bureau of Investigation. http://www.fbi.gov (last visited Jan. 17, 2(09). 155 Patrick Healy, Democrats Voice Support of Gay Rights in TV Forum, N.Y. TIMES, Aug. 10, 2007, available at http://www.nytimes.coml2oo7/08/10/us/politics/10dems.html. 156 Emily K. Baxter, Rationaliz.ing Away Political Powerlessness: Equal Protection Analysis of Laws Classifying Gays and Lesbians, 72 Mo. L. REV. 891, 891 (2007). 157 Monte E. Kuligowski, Romer v. Evans: Judicial Judgment or Emotive Utterance?, 12 ST. JOliN'S J. LEGAL COMMENT. 323,324 (1996). 158 [d. 159 [d. 160 Christopher Wolfe, The Meaning of Marriage: Why the Federal Marriage Amendment is Necessary, 42 SAN DIEGO L. REV. 895, 895 (2005).

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mosexuality should receive, it is clear that rational basis is currently the prevailing standard in Equal Protection challenges. Generally, if same sex marriage restrictions are reviewed under rational basis, typically any legitimate reason provided by the state or federal government should survive. 161 B.

Substantive Due Process

The Supreme Court in Zablocki held that the right to marry is a fundamental liberty interest and subject to strict scrutiny.162 Since there is no fundamental right for same-sex couples to marry, laws restricting marriage to heterosexuals is not reviewed under strict scrutiny. Rational basis review should be used in reviewing whether there is a violation of due process. Much like equal protection, it is easy for a state or government to provide a legitimate reason for restricting marriage to heterosexual couples. Several cases support this proposition and find no violation of due process when same-sex couples are restricted from marriage. The appellate court in Dean v. District of Columbia rejected the proposition that same-sex marriage is guaranteed under the Due Process Clause of the Constitution as a fundamental right.163 Quoting the Supreme Court in Palko, the appellate court stated that a fundamental right is one that is "deeply rooted in the Nation's history and tradition.,,164 Although homosexuals can have children through adoption, surrogacy, and artificial insemination; and not all heterosexuals may want or have children, the appellate court stated that it cannot overlook the fact that the Supreme Court deems marriage a fundamental right because of its relationship to procreation. 165 Thus, the appellate court reasoned that the fundamental right to marry as recognized by the Supreme Court only contemplates marriages between heterosexuals or people who can procreate with each other. 166 Thus, the issue is whether there is a constitutional basis under the due process clause for finding that the fundamental right to marry granted to heterosexual couples extends to homosexual couples. 167 The appellate court said that the answer is "NO.,,168 Another case, High Tech Gays v. Defense Industries Security Clearance Office, involves a class action suit on behalf of homosexuals against the Department of Defense alleging violation of the Constitution's Due Process Clause. 169 The 161

CIIEMERINSKY, supra note 9, at 683, 685; see also, 16B AM. JUR 2D, supra note 10, at § 777-

858. 162 Zablocki v. Redhail, 434 U.S. 190 (1978). 163 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995); Miller & Binimow, supra note 73, at 1. 164 165 166 167 168 169

Dean, 653 A.2d at 332. [d. at 333. [d. [d. [d. High Tech Gays, 895 F.2d at 574.

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DOD performs extensive background checks on applicants who define themselves as homosexuals under the premise that a more extensive check is required to protect the government's legitimate interest in protecting national secrets. 170 The appellate court determined that homosexuals have suffered a history of discrimination, however, the other criteria requiring an immutable characteristic for a "suspect" or "quasi-suspect" is not satisfied. 171 Homosexuality is considered a behavior and fundamentally different from immutable traits such as race or gender, where the "behavior or conduct of the already recognized classes is irrelevant to their identification."I72 Further, homosexuals have political power as evidenced in their ability to persuade legislatures to address homosexual discrimination through the passage of anti-discrimination legislation. 173 Thus, the Court found that homosexuality is not an immutable characteristic, and the right to marry someone of the same sex is not a fundamental right,I74 The court reasoned that since a fundamental right is not involved, the government only has to have a legitimate interest rationally related to the law.175 Thus, the appellate court held that the government interest in protecting governmental secrets is legitimate where it is known that homosexuals are targets for blackmail. I76 Finally in Wilson v. Ake, the District Court held that same-sex marriage is not a fundamental right guaranteed by the Due Process Clause of the Constitution. I77 A county clerk in Florida did not recognize Nancy Wilson's and Paula Schoenwether's Massachusetts marriage license. 178 The Plaintiffs filed a declaratory judgment request that asked the District Court to find the Federal Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7; 28 U.S.C. § 1738C, and Florida Statutes Section 741.212 unconstitutional and to enjoin their enforcement. 179 The Wilson court followed Supreme Court precedent and defined fundamental rights as those liberties that are "implicit in the concept of ordered liberty, such that neither liberty nor justice will exist if they are sacrificed. ,,180 The Wilson court observed that the Due Process Clause "specially protects those fundamental rights and liberties that are, objectively, deeply rooted in this Nation's history and 170 [d. 171 [d. at 573-74. 172 [d. 173 [d.

174 High Tech Gays, 895 F.2d at 573-74. 175 [d. 176 [d. at 576 177 Wilson v. Ake, 354 F. Supp. 2d 1298, 1301 (M.D. Fla. 2(05). 178 [d. 179 [d. at 1302. 180 [d. at 1306 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (]997» (quoting Palko v. Connecticut, 302 U.S. 3]9, 325-26 (1937».

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tradition.,,181 The Wilson court stated that the petitioner's interpretation that Lawrence v. Texas grants a fundamental right to homosexuals to marry each other is incorrect. 182 Moreover, the Court stated that the Lawrence v. Texas holding explicitly "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.,,183 Although it is important to recognize the importance of a homosexual person's ability to choose their partners, this is not a fundamental right, thus no violation of Due Process Clause under the Constitution. l84 The Courts in Dean, High Tech Gays, and Wilson all follow the same constitutional analysis, stating that the right to marry is a fundamentally protected liberty interest and restrictions on this right should be reviewed under strict scrutiny. However, there is no fundamental right or liberty interest that states homosexuals have the right to marry that is rooted in our nation's history or tradition. Thus, rational basis review should be used. In general, most states that use rational basis review will uphold marriage restrictions if there is a legitimate interest. III.

SAME-SEX COUPLES RIGHT TO MARRY UNDER STATE CONSTITUTIONS

A. Same-Sex Marriage Restrictions Do Not Violate State Constitutions The courts in the following cases hold that the limitation of state recognized marriage to opposite sex couples does not violate a state constitutional provision mandating equal protection or due process of law. 185 The courts utilized the same factors and principles that the federal Circuit Courts of Appeals used in its analysis of same-sex marriage under the U.S. Constitution}86 In Standhardt v. Superior Court, the clerk denied two men a marriage license based on Arizona Revised Statute Section 25-101(C) where "marriage between persons of the same sex is void and prohibited," and Arizona Revised Statute Section 25-125A where "valid marriages are contracted by a male person and a female person." I 87 The men claim violations of their fundamental right to marry and equal protection under both the Constitution and Arizona constitution. 188 The Superior Court, much like the federal Circuit Courts discussed earlier, deter181 Id. (quoting Washington v. Glucksberg, 521 U.S. at 720-21) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977». 182 Wilson, 354 F. Supp. 2d at 1298 (quoting Washington v. Glucksberg, 521 U.S. at 720-21) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977». 183 Id. (quoting Lawrence 539 U.S. at 578».

184 Id. 185 186

Miller & Binimow, supra note 73, at 1. Miller & Binimow, supra note 73, at 1.

187 A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 38 FAM. L.Q. 339, 376 (2004); Standhart v. Sup. Court, 77 P.3d 451 (Ariz. Ct. App.2003). 188 Standhart, 77 P.3d at 451 n.1.

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mined that in order to have a violation of due process under the Constitution there must be a violation of a fundamental right.189 The Superior Court determined that neither the Supreme Court nor the Arizona state courts found that marrying someone of the same-sex is a fundamental right. 19o Further, the holding in Lawrence does not state that same-sex marriage is a fundamental right. 191 The Superior Court also discredited petitioner's argument that Loving stands for the proposition that the right to marry can be extended to same-sex couples as it is extended for interracial couples. 192 The Superior Court found that same-sex recognition would not be an extension of the right to marry but "will redefine the legal meaning of marriage" because the right to marry and marriage is grounded in procreation and marriage is defined as being between a man and women. 193 Thus, the Superior Court struck down Petitioner's arguments that there is a fundamental right for same-sex marriages under the state constitution. 194 The Superior Court also rejected Petitioner's claim that Arizona's constitution goes beyond the United States Constitution by conferring greater individual rights such as the right to marry for same-sex couples. 195 The superior court explicitly stated that the expansion of privacy rights to health care and home searches do not equate to the extension of the right to marry.196 In addition, the court found that the intent of the framers of the Arizona Constitution does not show that they contemplated same-sex marriage. 197 Thus, the Arizona Constitution like the United States Constitution does not support redefining of "marriage" or the expansion of the right to marry to same-sex couples. Finally, the Superior Court determined that since there was no fundamental right to marry under the Constitution or expansion of privacy rights under Arizona's Constitution, the state's goal in protecting procreation was legitimately related to the prohibition against same-sex marriage. 198 Following along the same lines as Arizona, Indiana did not find a violation of equal protection or due process under its state constitution. Indiana's Defense of Marriage ("DOMA") statute was challenged in Morrison v. Sadler, as violating the Indiana Constitution Article 1, Section 23; Article 1, Section 1; or Article 1, Section 12, by three same-sex couples who sought to be recognized as married, after traveli.ng to Vermont and obtaining civil unions. 199 The Petitioners con189 190 191 192 193 194 195 196 197 198 199

[d. at 460-61. [d. [d. at 458. [d. Standhart, 77 P.3d at 458. [d. [d. at 460-61. [d. [d. Standhart, 77 P.3d at 460-61. Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. Ct. App. 2005).

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ceded that under the United States Constitution there is no fundamental right to same-sex marriage. 2OO The Indiana appellate court determined that Article 1, Section 1, does not confer a "core value" or fundamental right, and, if it does, the history does not show that same-sex marriage is a "core value.,,201 Further, the appellate court held that Article 1, Section 12 would be the equivalent of a substantive due process right under the United States Constitution, and Petitioners again do not meet the qualifications to support a due process violation under Indiana's Constitution. 202 Unlike the previous states, New York has many cases regarding the right to marry for same-sex couples under their State Constitution. However, most New York cases, such as Hernandez v. Robles do not support same-sex marriages under New York's State Constitution.203 The couple in this case claimed New York Domestic Relations Law articles 2 and 3 violated the New York Constitution's Due Process and Equal Protection Clauses by limiting marriage to opposite sex couples. 204 The Hernandez court found that articles 2 and 3 do not specifically limit marriage to opposite sex couples, but that is clearly the intent from studying other statutes. 205 The Hernandez court correctly points out that the Plaintiff's reliance on Loving is misplaced. 206 The court stated that the history behind the statute in Loving is based on racism dating back to the birth of this country, whereas the limitation on marriage for opposite sex couples is based on the traditional definition of marriage and is not based on historical injustice. 207 In addition, since there is no fundamental right to same sex marriage rooted in "history and tradition," the analysis under due process uses rational basis review. 208 Further, since same-sex marriage does not fall within a suspect classification, the New York statute is also reviewed using rational basis under equal protection. 209 Additionally, while "sex discrimination" may trigger intermediate or even strict scrutiny, the limitation on marriage to opposite sex couples is not "sex discrimination," because men and women are placed on unequal footing based on their gender?10 Homosexuality is a sexual preference not an immutable trait based on gender211 The Hernandez court explicitly held that the legislature is free to expand the definition to include 200 201 202 203 204 205 206 207 208 209 210 211

[d. [d. at 31-33. [d. at 33-35. Hernandez v. Robles. 855 N.E.2d 1 (N.Y. 2006). Hernandez. 855 N.E.2d at 5. [d. [d. [d. at 7-tO. [d. Hernandez. 855 N.E.2d at to. [d. [d.

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same sex couples but the state has a rational basis in limiting marriage to opposite sex couples in the best interest of children and preservation of procreation through marriage.212 There is no violation of either equal protection or due process under New York's Constitution?13 The majority of states such as those in Standhardt, Morrison, and Hernandez mimic the equal protection and due process analysis of the federal cases when analyzing same-sex marriages under their respective State Constitutions.214 B.

Same-Sex Marriage Restrictions Violate State Constitutions

There is a minority of states which hold the limitation of state recognized marriage to opposite sex couples violates state constitutional provisions mandating equal protection or due process of law. 215 However, the arguments and evidence used to support same-sex marriage is weak and disembarks from the traditional principles of equal protection and due process. In Baehr v. Lewin, the plaintiffs Nina Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and Joseph Melilio were denied a marriage license by the State of Hawaii's Department of Health ("DOH"), and alleged in their original complaint a violation of a fundamental right to marry and equal protection rights under Hawaii's Constitution. 216 The circuit court granted defendant's motion to dismiss for failure to state a claim.217 On appeal, the Hawaii Supreme Court found that the right to privacy does not include the fundamental right to marry for same-sex couples by following the analysis set down in federal cases. 218 The Hawaii Supreme Court found that the" right to marry had the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships," and refused to extend the right to marry to same-sex couples. 219 The Hawaii Supreme Court used federal cases and traditional federal constitutional analysis to find that same-sex couples do not have a fundamental right to 212 213

[d. at 12. [d. at 12.

214 Lewis v. Harris, 378 N.J. Super. 168 (N.J. Super. Ct. App. Div. 2005); Dean, 653 A.2d at 307; Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972); In re Cooper, 592 N.Y.S.2d 797, 799-801 (N.Y. 1993), appeal dismissed, 624 N.E.2d 696 (N.Y. 1993); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), appeal denied, 84 Wash. 2d 1008 (1974). 215 Miller & Binimow, supra note 73, at 1. 216 Baehr v. Lewin, 852 P.2d 44, 49-51 (Haw. 1993). 217

[d.

218 Baehr, 852 P.2d at 56-57; see generally Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstaedt v. Baird, 405 U.S. 43 (1972); Zablocki, 434 U.S. at 374; Skinner, 316 U.S. at 535; Maynard, 125 U.S. at 190; Meyer v. Nebraska, 262 U.S. 390 (1923); Palko, 302 U.S. at 319. 219 Baehr,852 P.2d at 56-57.

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marry under the right of privacy.22o However, they failed to use the same analysis and determined that "sex" is a suspect classification that requires either immediate or strict scrutiny.22l The Hawaii Supreme Court liked "sex" to "race" by citing Loving v. Virginia and stated that "sex" is a suspect class. 222 The Hawaii Supreme Court then relied on the United States Supreme Court's rationale in Holdman v. Olim, the "Brennan plurality, the Powell group in Frontiero v. Richardson, and the presence of article I, section 3-the Equal Rights Amendment-in the Hawaii Constitution" and found that "sex" should receive either intermediate or strict scrutiny instead of rational basis review. 223 The Hawaiian Supreme Court utterly failed to see the distinction between "gender" and "sexual orientation," as previously discussed in the Hernandaz case. Further, the Hawaiian Supreme Court failed to correctly analyze Frontiero, because that particular case was about "gender" discrimination. 224 Thus, the Hawaii Supreme Court employed strict scrutiny instead of rational basis review on the misguided idea that "sex" is the same as homosexuality, and determined that the state did not have a compelling interest in restricting marriage to opposite sex couples. 225 After Baehr, the Hawaiian legislature proposed an amendment to the Hawaiian Constitution that effectively defeated the judicial recognition of same-sex marriages. The voters affirmatively voted to allow the legislature to reserve marriage to opposite-sex couples. Another example of where the right to marry is recognized for same-sex couples is in Brause v. Bureau of Vital Statistics. 226 In Brause, plaintiffs Jay Brause and Gene Dugan filed suit against the Bureau of Vital Statistics, the Alaska Department of Health and Social Services, and the Alaska court system after they were denied a marriage license. 227 The Plaintiffs requested an injunction to prevent Alaska from enforcing the statutes preventing same-sex marriages, because the statutes violated the Alaskan Constitution's equal protection

220 Id. at 65-68. 221 [d. 222 [d.; see generally Loving, 385 U.S. at 986. 223 Baehr, 852 P.2d at 65-68; see generally Holdman v. Olim, 581 P.2d 1164 (Haw. 1978) (citing Frontiero,411 U.S. at 677). 224 Baehr, 852 P.2d at 67. 225 [d.; see Baehr v. Mikke, 910 P.2d 112 (Haw. 1996). 226 Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Feb. 27, 1998); a/rd, Brause v. State, 21 P.3d 357 (Alaska 2001): see also Kevin G. Clarkson et aI., The Alaska Marriage Amendment: The People's Choice on the Last Frontier, 16 ALASKA L. REV. 213, 218-24 (1999). 227 Bureau of Vital Statistics, 1998 WL 88743 at * I.

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and privacy rights.228 In addition, the Plaintiffs claimed that the violation of equal protection and privacy rights requires strict scrutiny review. 229 While discussing same-sex marriages under the right to privacy, the Brause court ignored the traditional formulation for finding a right to privacy. The Brause court asked, "whether the freedom to choose one's own life partner is rooted in our traditions?,,23o By framing the issue in this manner, the Brause court found that there is a fundamental right for same-sex couples to choose their partners under the right of privacy.231 However, this is a very weak argument because the fundamental principle underlying the right to privacy is that rights are based on deep-rooted traditions. While it is important for same sex couples to choose their partners as determined in Wilson v. Ake, the limitation of marriage to men and women does not stop anyone from choosing a person of the same sex as their partner.232 The Brause court moved even further away from the traditional analysis under equal protection, and employed a sliding scale standard of review in which the standard of review is determined by the importance of the individual right.233 The Brause court like the Baehr court mistook "sex" as the equivalent of "sexual preference" and found a suspect class using the sliding scale.234 Under strict scrutiny analysis, the Brause court concluded that the state lacks a compelling interest to support the prohibition against same-sex marriage. 235 The Brause analysis is flawed because "sex" is a gender based classification, whereas homosexuality is a "sexual preference," and they are simply not the same. Similar to the Hawaiian legislature, the Alaskan legislature instituted an amendment that changed the definition of marriage in their Constitution and effectively defeated the recognition of same sex marriages in those states. Unlike Hawaii and Alaska, Massachusetts is the first state to recognize samesex marriage, which has not been defeated by an amendment to its Constitution. 236 In Goodridge v. Department of Public Health, a town clerk denied seven same-sex couples marriage licenses because, at that time, Massachusetts state law did not recognize same-sex marriage.237 The Superior Court judge ruled for the Defendants, holding that the prohibition did not violate State liberty or equal protection guarantees. 238 However, on appeal, the Massachusetts Supreme Court 228 229 230 231 232 233 234

235 236 237 238

Id. /d. Id. at 5. Id. Bureau of Vital Statistics, 1998 WL 88743 at *5. Id. at 5-6. Id. at 5. Id. Goodridge, 798 N.E.2d 941. Id. at 950. Id.

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found that under its individual state constitution they have the ability to protect individual liberty more extensively than the federal government. 239 Unlike the Hawaii Supreme Court in Baehr, the Massachusetts Supreme Court did not find that same-sex couples are a "suspect class," worthy of strict scrutiny.240 The Massachusetts Supreme Court reasoned that a rational basis review is necessary and that the state does not meet their burden of finding a rational relationship between their legislative purpose and the prohibition against samesex marriages. 241 The Massachusetts Supreme Court found that the restriction of same-sex marriage had no rational relationship to the state legislative purposes of (1) protecting procreation; (2) protecting opposite-sex marriages by denying same-sex marriages; and (3) protecting the economy.242 Surprisingly, the Goodridge court did not try to apply strict scrutiny, but applied rational basis review. However, the Goodridge court does not follow the traditional use of rational basis review. Under rational basis review, the state's interest in protecting procreation alone should have been enough to uphold the limitation of marriage to opposite sex couples. Procreation in federal cases such as Dean and Supreme Court cases such as Palko, recognize the right to marry as fundamental because of the "link to procreation.,,243 Thus, the Goodridge court should have found that protecting procreation is a legitimate interest and upheld same-sex marriage restrictions. CONCLUSION

Federal Circuit Courts have found that, under the United States Constitution, limitations on marriage to opposite sex couples do not violate the equal protection or due process clauses of the Constitution. While it is important to have the freedom to choose your partner, the limitation of marriage to men and women does not prohibit same-sex couples from choosing their own partner. Currently, a traditional analysis of equal protection finds "sex" is not the same as "sexual preference," thus; homosexuality is not a suspect class requiring limitations on marriage to be reviewed under strict scrutiny. Furthermore, homosexuals lack the kind of historic discrimination necessary to find "invidious" discrimination, and lack conclusive scientific data showing that homosexuality is an immutable characteristic. However, homosexuals do not lack political power and should not be considered a "discrete and insular" minority. Thus, under rational basis review, restrictions on marriage to opposite sex couples should be upheld if a legitimate state or government interest is provided. 239

[d.

240

[d.

241

Goodridge, 798 N.E.2d at 964.

242

[d.

243

Dean, 653 A.2d at 333.

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Moreover, under traditional analysis for substantive due process, the right to marry is based on "deeply rooted traditions" and fundamental to this is procreation. There is simply no fundamental right to marry a person of the same-sex. Thus, only rational basis is necessary in reviewing the limitation of marriage. Under rational basis the state has a legitimate interest in protecting procreation, because procreation is the reason why the right to marry is in itself fundamental. Thus, under rational basis review for due process under the Constitution samesex couples do not have the right to marry. A majority of state courts follow federal precedent to determine that restrictions on marriage to opposite sex couples do not violate their State Constitutions. While a very small minority of states has found a violation, they depart from traditional analysis and finesse legal authority to reach this conclusion. Simply stated, there is no strong legal support for the notion of same-sex marriage under either the United States Constitution or state constitutions. Same-sex marriage is a recent concept that was not contemplated when the federal Constitution and state constitutions were created. Thus, same-sex marriage lacks the necessary history and tradition to be an individual liberty. In addition, same-sex marriage cannot be placed on equal footing with other suspect classifications such as race where there is no definitive scientific data to prove that homosexuality is an immutable characteristic, no history of "invidious" discrimination, and no lack of political power.

REVISING THE ANALYSIS OF PERSONAL JURISDICTION TO ACCOMMODATE INTERNET-BASED PERSONAL CONTACTS Matthew L. Perdoni* INTRODUcnON

From online banking, to cyber-shopping, to the growth of social-networking websites, the Internet is a medium for human interaction as much as it is a part of modern commerce and business, and now encompasses nearly every facet of American life. By all indications, use will become more widespread and complex over time. The Internet now facilitates the modern functional equivalent of human interaction, and provides worldwide access to users with the mere click of a button. For these reasons, examining the role of the Internet in the law is critical. Particularly, it is necessary to consider whether and to what extent Internet users are subject to personal jurisdiction as a result of their online activities. I.

THE GROWTH OF THE INTERNET

&

ITS ApPEARANCE IN THE LAW

Technology first entered the educational system with limited library-based Internet access and video-linked classrooms. 1 But by 2006-2007, 66% of two and four-year degree-granting schools offered some type of online coursework, and there were over 12 million enrollments in some form of online or other distancelearning courses? Now, even the legal system has embraced the free flow of information and the economic benefits made possible by the Internet, and this trend shows no signs of slowing. 3

* J.D. Candidate 2011, University of the District of Columbia David A. Clarke School of Law. Matthew L. Perdoni, Co-Editor-in-Chief and Publications Editor of the University of the District of Columbia Law Review, would like to thank Professors Edward Allen and Christine Jones for their support and guidance, as well as the Law Review's Editorial Board, Senior Editors, and Associate Editors for their assistance throughout the publication process. Finally, the author expresses his eternal gratitude to Paula, Louis, Katey, Chris, and Meredith for their unwavering support. 1 See, e.g., Thomas R. Lee, In Rem Jurisdiction in Cyberspace, 75 WASil. L. REV. 97 (2000) (discussing the progression of the Internet from its early use as a primarily government, military, and education information transfer network, to its more modern form); Table 427, NAT'L CENTER FOR EDlJC. STAT., available at http://nces.ed.gov/programs/digestld08/tables/dt08_427.asp (citing various statistics on the consistently growing role of the Internet in schools, including the estimate that Internet access in schools rose from 35% in 1994 to 95% in 1999, and that the figure has remained at 100% since 2003). 2 Basmat Parsad & Laurie Lewis, Distance Education at Degree-Granting Postsecondary Institutions: 2006-07, U.S. DEI,'T OF EDlJC., NAT'L CENTER FOR EDlJc. STAT., & INST. OF EDllC. SCI. (2008), available at http://nces.ed.gov/pubs2009l2009044.pdf. 3 Early on, courts recognized the rapid expansion of Internet use. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996) ("The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has

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Included in its vast research portfolio, the Pew Foundation has conducted a series of surveys on the prevalence and characteristics of Internet use in America. 4 Studies from the Pew Internet and American Life Project illustrate the growth of Internet use over the past decade and its ever-growing prominence in everyday life. According to one study, about 15% of American adults used the Internet in 1995.5 Five years later, this figure soared to roughly half of the adult population. 6 By 2005, nearly 700/0 of adults in the United States were Internet users, and in Pew's April 2009 survey, the figure approached 80%. 7 The rise in Internet use coincided with. the increased capacity to access the Internet in homes and workplaces across the country. Less than 5% of American adults had a broadband connection in 2000, but the percentage neared 35% by 2005.8 Now, approximately 60% of adults have a broadband-Internet connection,9 and estimates show that 100% of schools provide Internet access.lO Moreover, a growing number of activities can be conducted in cyberspace. In 2008-2009, nearly 60% of adults in the United States executed an online purchase, over 40% handled banking over the Internet, nearly 30% read a "blog" posting (with 10% writing their own posting), and about 100/0 downloaded files using peer-to-peer networks. 11 The number of activities and encounters facilitated by the Internet continues to grow, and new cyber-forums and web technologies are taking hold faster than ever. When such innovative functions are coupled with the rapid progression of general Internet use and improvements in accessiexperienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet, and by 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide, of which approximately 60 percent located within the United States, are estimated to be linked to the Internet. This count does not include the personal computers people use to access the Internet using modems. In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.").

4 See PEW INTERNET & AMERICAN LIFE Plmmer, http://www.pewinternet.orgl (last visited Mar. 14,2010). For a complete listing of the Pew Foundation studies, see PEW INTERNET & AM. LIFE PROJECT, http://pewinternet.orglData-Tools/Download-Data/Data-Sets.aspx (last visited Mar. 14, 2010).

5 Internet Adoption Over Time, PEW INTERNET & AM. LIFE PROJECT, http://www.pewinternet. orglTrend-Datallnternet-Adoption.aspx (last visited Feb. 23, 2010). 6 Id. 7 Id. 8 Home Broadband Adoption, 2000-2010, PEW INTEHNET & AM. LIFE PHomc..., http://www. pewinternet.orglTrend-Data/Home-Broadband-Adoption.aspx (last visited Feb. 23, 2010).

9 Id. 10 Table 427, NAT'J. CENTER FOR EDlJC. STAT., http://nces.ed.gov/programs/digestld08/tablesl dt08_427.asp (last visited Dec. 12,2(09). 11 Online Activities, 2000-2009, PEW INTERNET & AM. LIFE PRomer, http://www.pewinternet. orglTrend-Data/Online-Activities-20002009.aspx (last visited Feb. 23, 2010).

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bility discussed above, the volume of information available to the average person becomes staggering. The internet's increasing role in American life also is attributable to its ability to facilitate the modern functional equivalent of face-to-face interaction. Where 80/0 of adults had a social-networking profile on websites like Facebook or Myspace in 2005, by 2009,350/0 had such profiles. 12 Although only 11 % of adult Internet users had a Twitter account in April 2009, that figure nearly doubled by October of that year. 13 And all of the statistics presented to this point overlook the most dominant segment of Internet users; those under the age of thirty. In 2009, an estimated 95% of eighteen to twenty-nine-year-olds used the Internet, as compared to 87% of thirty to forty-nine-year-olds, and 78% of fifty to sixty-fouryear-olds. 14 Incoming generations are exposed to cyberspace and related technologies earlier than ever before. This fosters their reliance on such technologies, and that reliance subsequently is reinforced through schools, peer groups, and future work experiences; thus, further entrenching Internet-based contacts as the modern functional equivalent of human interaction. Internet use may start with e-mail correspondence at work or in the home, but the research suggests that this quickly leads to more frequent personal use for general "web-surfing." Moreover, the advent of interactive telephones and other wireless devices has resulted in 24-hour Internet accessibility in nearly every setting.t s Initiation to the Internet also is occurring at younger ages. Where the majority of online activities by older age brackets typically center on routine Internet use, younger users engage in more advanced activities. 16 Thus, it stands to reason that Internet use will become even more prevalent in everyday life. For this reason, it is critical to examine its role in the context of the law.

12 Amanda Lenhart, Pew Internet Project Data Memo, PEW INTERNET & AM. LIFE PROJECT (2009), http://www.pewinternet.orgl-/medialIFileslReportsl2oo9/PI P_Adulcsocial_networkin~data_ memo_FINAL.pdf. 13 Susannah Fox, Kathryn Zickuhr & Aaron Smith, Twiller & Status Updating, Fall 2009, PEW INTERNET & AM. LIFE PROJECT, http://www.pewinternet.orgl-/medialIFileslReportsl2oo9/PIP_ Twitter_Fall_2009web.pdf. 14 Demographics of Internet Users, PEW INTERNET & AM. LIFE PROJECr, http://www.pewinter net.orgITrend-Data/Whos-Online.aspx (last visited Feb. 23, 2010). 15 See generally PEW INTERNET & AM. LIFE PROJECT weblinks, supra notes 13-14. See also Haya EI Nasser, Census Gets New Interactive Website: Step Reflects Huge Leap in Net Use, USA ToDAY, Oct. 23, 2009, at 3A; The Mobile Difference - Tech User Types, PEW INTERNET & AM. LIFE PROJECT, http://www.pewinternet.orgiI nfographicslThe-Mobile-Difference-Tech-User-Types.aspx (last visited Feb. 23, 2010); Generational Difference in Online Activities, PEW INTERNET & AM. LIFE PR()JI~(:'T, http://www.pewinternet.orgiInfographicslGenerational-differences-in-online-activities.aspx (last visited Mar. 1, 2010). 16 See supra note 15. In fact, these studies show that the complexity of activities runs converse to the age of the user.

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Courts began hearing Internet-based disputes shortly after Internet use extended into people's business and personal worlds. 17 Courts hearing Internet-related cases immediately faced challenges when determining their jurisdiction over nort-resident defendants. 18 These complications were the result of the broad accessibility to information provided via the Internet, the unusual application of the law in cyberspace, and the delicate policy concerns surrounding the exercise of a court's power over the first generation of Internet-based claims. 19 It comes as no surprise that such litigation increased parallel to the growth of the Internet throughout the late 1990's and into the early 2000's, and that these disputes now are commonplace in state and federal courts. The Internet's role in shaping the law is covered throughout this paper. Before moving forward, though, it is important to acknowledge the fact that the Internet facilitates the modern functional equivalent of physical presence, albeit a form unforeseeable at the time of Pennoyer v. Neff, International Shoe Co. v. Washington, or even Shaffer v. Heitner. 20 As will be examined throughout, the nature of Internet-based contacts provides a basis for personal jurisdiction consistent with these longstanding requirements, despite some courts' reluctance toward adopting such a position. II.

THE HISTORY OF PERSONAL JURISDlcrION AND AN EYE TOWARD ITS FUTURE

In this section, the general history, conceptualization, and requirements of personal jurisdiction are outlined. These topics are covered in detail sufficient for the 17 See infra note 19. 18 See infra note 19. 19 See, e.g., Pres-Kap, Inc. v. Sys. One, 636 So. 2d 1351, 1353 (Fla. Dist. Ct. App. 1994) ("Across the nation, in every state, customers of 'on-line' computer information networks have contractual arrangements with out-of-state supplier companies . . . Lawyers, journalists, teachers, physicians, courts, universities, and business people throughout the country daily conduct various types of computer-assisted research over telephone lines linked to supplier databases located in other states. [Without strict jurisdictional guidelines] users of such 'on-line' services could be haled into court in the state in which supplier's billing office and database happen to be located, even if such users ... are solicited, engaged, and serviced entirely instate by the supplier's local representatives. Such a result, in our view, is wildly beyond the reasonable expectations of such computer-information users, and, accordingly, the result offends traditional notions offair play and substantial justice.") (citations omitted); ACLU v. Reno, 929 F. Supp. 824, 829 (E.D. Pa. 1996) (weighing 1st Amendment rights and policy considerations in determining whether a statute barring "obscene or indecent [materials posted on websites], knowing that the recipient of the communication is under 18 years of age" was unconstitutional); Zippo Mfg. Co. v. Zippo Dot Com, Inc, 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) (holding that the existing tests for exercising a court's power over non-resident businesses are sufficient regardless of whether transactions are conducted over the Internet). 20 Pennoyer v. Neff, 95 U.S. 714 (1877); In1'l Shoe Co. v. Wash., 326 U.S. 310 (1945); Shaffer v. Heitner, 433 U.S. 186 (1977).

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analysis of personal jurisdiction in the context of Internet-related conduct presented in the following sections. A.

International Shoe and Its Progeny

To hale a non-resident defendant into a foreign jurisdiction, the two-pronged test set forth in International Shoe Co. v. Washington and expounded in its progeny must be satisfied?1 The first prong of the test requires that a non-resident "have certain minimum contacts" with the forum state, such that they could reasonably foresee being haled into court there as a result. 22 In other words, courts must examine the nexus between the forum, the litigation, and the non-resident over whom jurisdiction is sought. 23 The longstanding requirement is that "in each case ... there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.,,24 Thus, the minimum contacts requirement includes an element of intent; as a result, unilateral acts by others or "random, fortuitous, or attenuated contacts" will not satisfy the first prong of the test. 25 Instead, "[j]urisdiction [only] is proper ... where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State.,,26 The nature and quality of a non-resident's conduct in the 21 326 U.S. at 316. Although a more detailed examination may be required in some jurisdictions, those with long-arm statutes conferring the full reach permitted under the U.S. Constitution need only meet the International Shoe test for a court to exercise its power over a non-resident. See, e.g., Fix My PC, L.L.c. v. N.F.N. Assoc., Inc., 48 F. Supp. 2d 640, 642 (N.D. Tex. 1999). Most states now include "doing business" clauses and other such language in their long-arm statutes to address the problem of determining a non-resident's amenability to litigation in the forum where their conduct does not include a physical presence. See, e.g., MINN STAT § 543.19 Subd. 1(1), (2), (4) (2009) ("[A] court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any nonresident individual, or the individual's personal representative, in the same manner as if it were a domestic corporation or the individual were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or nonresident individual: (1) owns, uses, or possesses any real or personal property situated in this state, or; (2) Transacts any business within the state, or ... (4) Commits any act outside Minnesota causing injury or property damage in Minnesota [subject to specified limitations]."). Courts tend to interpret these broader statutory allowances as granting the full jurisdictional power permitted by the Due Process Clause of the U.S. Constitution. See, e.g., U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977) (holding that although Texas incorporates "doing business" language in its long-arm statute, the "other acts that may constitute doing business" clause grants the full power permitted by the Due Process Clause). 22 Int'l Shoe Co., 326 U.S. at 316 (citations omitted). 23 Shaffer v. Heitner, 433 U.S. 186,205 (1977), enforced, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984). 24 Hanson v. Denckla, 357 U.S. 235, 253 (1958) (emphasis added), enforced, Burger King Corp. v. Rudzewicz, 471 U.S. 462,474 (1985), and Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 109 (1987). 25 Burger King Corp., 471 U.S. 462, 480 (1985). 26 Id. at 475.

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forum state establishes a court's power over that individual. 27 However, a defendant need not be physically present in the forum to establish the requisite minimum contacts. 28 The second prong of the International Shoe test examines whether haling the defendant into a foreign court comports with traditional notions of fair play and substantial justice.29 Even if a non-resident defendant has the requisite minimum contacts with the forum state, constitutional due process requires courts to weigh a number of factors before exercising jurisdiction over a non-resident. These include: "[1] the burden on the defendant, [2] the interests of the forum State, [3] the plaintiff's interest in obtaining relief ... [4] the interstate judicial system's interest in obtaining the most efficient resolution of controversies ... [5] and the shared interest of the several States in furthering fundamental substantive social policies. ,,30 Despite its formulaic presentation, fair play and substantial justice is evaluated on a case-by-case basis. 31 Most often, "[w]hen minimum contacts have been established, the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant."32 This is the natural result of the defendants purposefully availing him or herself of the forum state's laws. 33 Thus, when a plaintiff establishes the first prong of the International Shoe test, the second prong generally also is satisfied.34 27 Id. at 474-75. 28 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123 (W.O. Pa. 1997) ("In Hanson v. Denckla, the Supreme Court noted that 'as technological progress has increased the flow of commerce between States, the need for jurisdiction has undergone a similar increase.' Twenty seven years later [in Burger King Corp. v. Rudzewicz], the Court observed that jurisdiction could not be avoided 'merely because the defendant did not physically enter the forum state. The Court observed that: It is an inescapable fact of modern commercial life that a substantial amount of commercial business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted."') (citations omitted). 29 326 U.S. 310, 320 (1945). 30 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987) (citing WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980». 31 See, e.g., Kulko v. Superior Court of Cal., 436 U.S. 84, 92 (1978) (citing Hanson v. Denckla, 357 U.S. 235, 246 (1958); Estin v. Estin, 334 U.S. 541, 545 (1948». 32 Kulko, 436 U.S. at 114. 33 See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2(05) (holding that "by invoking the benefits and protections of a forum's laws, a nonresident consents to suit there"). 34 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78 (1985) (The Court suggests a burden-shift in the analysis of fair play and substantial justice for certain types of claims. "[WJhere a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. ... [and] minimum requirements inherent in the concept of 'fair play and substantial justice' may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities .... As we previously have noted, jurisdictional rules

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When a non-resident's forum presence arises from internet-based contacts, the personal jurisdiction evaluation may become complicated. In Hanson v. Denckla, the Supreme Court noted how technological and other advances lessened the burdens of litigating in foreign jurisdictions.35 However, significant Due Process concerns have arisen in Internet-related cases. Courts have taken great care to limit their power when establishing jurisdiction over non-residents in such instances. Nevertheless, this may unreasonably burden resident-plaintiffs seeking to vindicate various personal and proprietary rights. Moreover, a limited jurisdictional approach permits non-resident defendants to encumber residents' rights without immediate consequence. B.

The Evolution of in rem Jurisdiction

In rem is a Latin phrase, meaning "against a thing," and "[i]nvolv[es] or determin[ es] the status of a thing, and therefore the rights of persons generally with respect to that thing.,,36 Thus, an action in rem "determines the title to property and the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property.,,37 Early cases often involved one party attaching a non-resident defendant's property either to establish personal jurisdiction over them, or to satisfy an existing judgment.38 Plaintiffs served constructive notice by attaching the non-resimay not be employed in such a way as to make litigation 'so gravely difficult and inconvenient' that a party unfairly is at a 'severe disadvantage' in comparison to his opponent."). 35 357 U.S. 235 (1958). Note that the Court raised these concerns over a half-century ago. [d. at 250-51. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (summarizing the Court's history of dealing with the second prong of the Int'I Shoe test); McGee v. Int'l Life Ins. Co., 355 U.S. 220, 222-23 (1957) ("[I)ncreasing nationalization of commerce has [brought) a great increase in the amount of business conducted by mail across state lines.... [but at] the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity."). 36 BI.ACK'S LAW DICnONARY 809 (8th ed. 2004). See also RESTATEMENT (SECOND) OF JlJDG. MENTS § 6 ("In traditional terminology, 'in rem' and 'quasi in rem' proceedings are subdivided into three types. The first is called a 'true' in rem proceeding, or one 'against all the world.' In this type of proceeding, the court undertakes to determine all claims that anyone has to the thing in question. The second type is called a 'quasi in rem' proceeding and is one in which the court undertakes to determine the claims of specifically identified persons to the thing in question. The third type was and is also called a proceeding 'quasi in rem' but is now often called attachment or garnishment jurisdiction. In this type of proceeding, a thing owned by a specified person is seized as a basis for exercising jurisdiction to decide a claim against the owner. The claim does not concern interests in the thing; it concerns some other transaction."). 37 BLACK'S LAW DICI'IONARY 32 (8th ed. 2004). It also should be noted that in some in rem cases "the named defendant is real or personal property." [d. See, e.g., The Daniel Ball, 77 U.S. 557 (1871). 38 Pennoyer v. Neff, 95 U.S. 714, 723-24 (1878) ("Every State owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its

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dent's land in the forum state, establishing jurisdiction over them regardless of the subject matter of the pending lawsuit. Under these circumstances, a court exercised quasi in rem jurisdiction over a non-resident property owner.39 It was not until Shaffer v. Heitner that the often grossly unjust outcomes resulting from quasi in rem proceedings were abolished. 40 The focus shifted to "the relationship among the defendant, the forum, and the litigation ... ,,41 and absent some relationship with the pending litigation, a non-resident's ownership of land in the forum no longer provided a basis for personal jurisdiction. Thus, comporting with the requirements of constitutional due process requires application of "the minimum-contacts standard elucidated in International Shoe.,,42 III.

NEW JURISDIcrIONAL ApPROACHES IN INTERNET-RELATED LITIGATION

Courts hearing the first generation of Internet cases were charged with reconciling existing laws with a new communicative medium. Over time, legislatures and courts alike responded with several new approaches (or at least redefined existing methods), for dealing with Internet-based cases. This section examines the early history of Internet-related litigation, a notable statute dealing with such cases, and two prominent tests that have emerged from the fifteen years of Internet -related litigation. tribunals can inquire into that non-resident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-residents have no property in the State, there is nothing upon which the tribunals can adjudicate .... Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said ... '[w]here [a party] is not within [the forum], and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non judice.' "). 39 BLACK'S LAW DICnONARY 809 (8th ed. 2004) ("Involving or determining the rights of a person having an interest in property located within the court's jurisdiction."). 40 433 U.S. 186,207-08 (1977) ("[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally indicate that he expected to benefit from the State's protection of his interest. The State's strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.") (emphasis added) (citations omitted). 41 [d. at 204. 42 [d. at 207.

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The "First Generation" of Internet-Related Litigation

The initial problem facing the courts was characterizing Internet-activity within existing legal frameworks. 43 Thus, early cases reflected a cautious approach by the courts. In ACLU v. Reno, the court granted a motion enjoining enforcement of a newly enacted statute, and impliedly rejected the notion that the judiciary should have responsibility over monitoring Internet conduct due to the potential infringement on personalliberties.44 Likewise, in Bensusan Restaurant Corp. v. King, the court declined jurisdiction over a Missouri resident based 43 ACLU v. Reno, 929 F. Supp. 824,830-32, 838, 842-44 (E.D. Pa. 1996) (Discussing in relevant part that "[t]he Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks. This is best understood if one considers what a linked group of computers -referred to here as a 'network'is, and what it does. Small networks are now ubiquitous (and are often called 'local area networks') · .. [They] are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of /inked networks and computers is referred to as the Internet · .. The resulting whole is a decentralized, global medium of communications -or 'cyberspace'- that links people, institutions, corporations, and governments around the world. The Internet is an international system. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole . ... No single entity -academic, corporate, governmental, or non-profit- administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet · ... The Internet is not exclusively, or even primarily, a means of commercial communication. Many commercial entities maintain Web sites to inform potential consumers about their goods and services, or to solicit purchases, but many other Web sites exist solely for the dissemination of non-commercial information. The other forms of Internet communication -e-mail, bulletin boards, newsgroups, and chat rooms- frequently have non-commercial goals .... Such diversity of content on the Internet is possible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions . ... Any Internet user can communicate by posting a message to one of the thousands of newsgroups and bulletin boards or by engaging in an on-line 'chat,' and thereby reach an audience worldwide that shares an interest in a particular topic .... Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between 'speakers' and 'listeners' on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen .... It follows that unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once one has entered cyberspace, one may engage in the dialogue that occurs there. In the argot of the medium, the receiver can and does become the content provider, and vice-versa .... The Internet is therefore a unique and wholly new medium of worldwide human communication.") (emphasis added). 44 Id. at 824, 831, 855 (recognizing the potential for indecent materials to reach children, but nevertheless determining that the Communications Decency Act of 1996 was unconstitutional, because it infringed on 1st Amendment rights).

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on his operating a website that used the plaintiff's trademarked club name. 45 There, the court recognized the potential for exposing website owners to general jurisdiction in every forum. 46 However, other courts were not so restrictive. For example, the court in Inset Systems v. Instruction Set, held that by posting Internet advertisements and contact information on its website, mailing print catalogues, and engaging in other limited contacts with the state, the defendant purposefully availed himself of the benefits and protections of Connecticut, as well as any other forum receiving the advertisements. 47 Other courts, while allowing Internet-activities to form a basis for personal jurisdictional, did so in a more limited fashion. 48 For example, in Plus Systems v. New England Network, the court held that a Connecticut defendant was amenable to suit in Colorado despite their being no physical presence there. 49 In examining the first-prong of the International Shoe test, the court reasoned while "[t]here could be no dispute over minimum contacts had Defendant physically flown to Colorado ... and asked Plaintiff to perform [services] . . . Defendant's use of Plaintiff's [services] to effect the same result is no less an availment of Colorado and its laws."so Although the law has achieved some degree of clarity in the years since the first generation of Internet cases, decisions on whether to exercise personal jurisdiction over non-residents in such suits still are far from uniform. The remaining subsections examine modern jurisdictional approaches, and identify several barriers that litigants may face when seeking to vindicate their rights. B.

The Anticybersquatting and Consumer Protection Act

In rem jurisdiction was common prior to the Supreme Court's ruling in International Shoe, and even leading up to the Court's decision in Shaffer. In recent years, courts and legislatures have revived in rem proceedings as a means for responding to increases in Internet-related lawsuits. One notable example is the AnticybersquaUing Consumer Protection Act (ACPA).Sl 45 937 F. Supp. 295 (S.D.N.Y. 1996). 46 Id. at 297, 301. 47 937 F. Supp. 161, 165 (D. Conn. 1996). 48 See e.g., CompuServe, Inc. v. Patterson, 89 F. 3d 1257, 1269 (6th Cir. 1996) (holding that a defendant's voluntary business interactions in Ohio, and its benefiting from the plaintifrs marketing efforts, satisfied the Int'l Shoe test); see also Mark C. Dearing, Personal Jurisdiction and the Internet: Can the Traditional Principles and Landmark Cases Guide the Legal System into the 21st Century, 4 J. TECH. L. & POL'Y (Spring 1999) (discussing in detail the importance of the holding in CompuServe v. Patterson, and its implications in subsequent internet-based litigation). 49 804 F. Supp. 111 (D. Colo. 1992). 50 Id. at 119. 51 Anticybersquatting Consumer Protection Act, 15 U.S.c. § 1125 (1999) [hereinafter ACPA]. In 1999, 15 U.S.c. § 1125(d) was added as an amendment to The Trademark Act of 1946, otherwise

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Under the ACPA, Congress established procedural and remedial measures for plaintiffs alleging infringement on their protected website domain names. However, the ACPA is not without flaws. Initiating litigation under the ACPA requires overcoming several barriers. Although at first glance section 1125 (d)(l)(E) of the ACPA indicates a broad scope of conduct providing a basis for litigation, the specified activities, and the use of the term "transactions," suggests a strictly commercial brand of activities. 52 The language throughout section 1125 limits litigation to a specific class of Internet-based claims.53 Furthermore, litigation under section 1125(d) of the ACPA also includes additional limitations not otherwise seen in section 1125.54 Section 1125(d)'s "bad faith" requirement in many ways singles out particular classes of defendants: those making a living in Cyberpiracy.55 This limitation is magnified by the exception in section 1125(d)(1)(B)(ii), which, like the individual activities listed in sections 1125(d)(l)(B)(i)(I)-(IV), effectively affords a rebuttable presumption of innocent intent to individuals not making a career in Cyberpiracy.56 Moreover, the presence of "bad faith" is not required in other ACPA provisions, and section 1125(c)(5) goes as far as to open additional remedies in light of willful violations. 57 Thus, when considering its "commerciality" requirement and limited relief, the ACPA likely provides protections primarily for corporate websites. However, on its face, the ACPA is not clear about the extent of the protections it offers for the most common forms of websites; those operated by individuals deriving little to no profit from their operation. The statutory text most relevant to the present discussion is section 1125(d)(2) of the ACPA, because it provides an in rem basis for jurisdiction over a domain name. 58 Much like the discussion of ACPA provisions to this point, however, a careful review of the language demonstrates section 1125(d)(2)'s limited power. For example, section 1125(d)(2)(C) provides that a domain name's situs, lies in known as the Lanham Act, as Section 43(d). See Appendix A for the text of the ACPA relevant to this discussion. 52 ACPA § 1125(d)(I)(E). 53 See generally ACPA § 1125; Appendix A infra. 54 /d. 55 In particular, ACPA §§ 1125(d)(l)(B)(i)(V)-(IX) detail the types of activities typically engaged in by Cyberpirates, whereas §§ 1125(d)(l)(B)(i)(I)-(IV) focus on activities indicating that an individual clearly is not engaged in Cyberpiracy. 56 See supra note 55. 57 Other remedial considerations further limit the power of the ACPA. Under ACPA § 1125(d)(2)(O)(ii), litigants are barred from seeking relief from website registries hosting violating domain names absent a showing of bad faith, reckless disregard, or failure to obey a court order. Furthermore, § 1125(d)(2)(D)(i) limits available relief to termination of the violating domain name, or its being transferred to the plaintiff. Thus, the violators themselves are not liable. Although §1125(d)(3) opens a door for additional relief, its ambiguous language (especially in light of other subsections' specific allowances) makes its possible effectiveness and application questionable. 58 ACPA § 1125(d)(2).

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either the judicial district where the domain name registry is located or where "documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court."S9 Despite the section's potential linguistic ambiguity, courts almost unanimously view this as a procedural mechanism, and have determined that a domain name's situs lies only in the judicial district in which it is registered. In her opinion for the court in Mattei, Inc. v. Barbie-Club. com, current Supreme Court Justice Sonia Sotomayor summarized the generally accepted reading of section 1125(d)'s in rem provision.60 However, this interpretation of section 1125(d) greatly limits its application, and has two significant consequences. First, only a limited number of judicial districts house the majority of domain name registries. For example, several of the most prominent registries are situated in the Eastern District of Virginia. 61 As a result of this restrictive interpretation, the bulk of section 1125(d) litigation proceeds to a limited number of jurisdictions. With the increase in Internet use, this may impose substantial bur59 ACPA § 1125(d)(2)(C). 60 310 F.3d 293, 300-01, 303, 306 (2d Cir. 2002) ("[T]he arrangement of § 1125(d)(2) separates, conceptually and chronologically, the prescriptive jurisdiction-granting language of subsection (d)(2)(A) from the descriptive language of legal situs in subsection (d)(2)(C). Moreover, while subsection (d)(2)(A) speaks of 'filing an in rem civil action,' subsection (d)(2)(C), which begins with the words 'in an in rem action under this paragraph,' plainly presupposes that such an action has already been filed in a judicial district referred to in subsection (d)(2)(A), and then proceeds to describe the domain name's legal situs during that action. Thus, by the time we reach subsection (d)(2)(C), we are already 'in' litigation that was commenced pursuant to subsection (d)(2)(A). Nothing on the face of the statute suggests that a plaintiff may alter this procedural sequence ... by filing suit in a judicial district of its own choosing, and then attempting unilaterally to relocate the domain name's legal situs to buttress that choice .... [B]oth the language of the statute and its legislative history indicate that in rem jurisdiction is a preexisting fact determined by the location of the disputed domain name's registrar or a similar authority, and that the subsequent deposit of sufficient documents with a court of appropriate jurisdiction confirms the domain name's legal situs as being in that judicial district for purposes of the litigation .... [T]he legislative history of the ACPA reveals Congress's concern to establish a circumscribed basis for in rem jurisdiction that is grounded in the 'nexus' provided by the registrar or other domain-name authority having custody of the disputed property. This congressional solicitude is fully consistent with what we find to be the plain meaning of § 1125(d)(2)(A): that an in rem action may be brought only 'in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located.' ... [T]he ACPA's basic in rem jurisdictional grant, contained in subsection (d)(2)(A), contemplates exclusively a judicial district within which the registrar or other domain-name authority is located. A plaintiff must initiate an in rem action by filing a complaint in that judicial district and no other. Upon receiving proper written notification that the complaint has been filed, the domain-name authority must deposit with the court documentation 'sufficient to establish the court's' control and authority regarding the disposition of ... the domain name, as required by subsection (d)(2)(D). This combination of filing and depositing rules encompasses the basic, mandatory procedure for bringing and maintaining an in rem action under the ACPA. Subsection (d)(2)(C) contributes to this scheme by descriptively summarizing the domain name's legal situs as established and defined in the procedures set forth in subsections (d)(2)(A) and (d)(2)(D).") (emphasis added). 61 See, e.g., Lee, supra note 1.

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dens on courts in those forums. Second, and perhaps more important, is the burden imposed on potential litigants. Because a domain name's situs generally is limited to a select few judicial districts, plaintiffs and defendants often have to appear in courtrooms outside of the jurisdictions in which they reside to vindicate their rights. This subsection examines only a small segment of the ACPA. However, it is important to contemplate the potential reach of the ACPA in light of its textual construction,62 as compared to the narrow application applied by the courts. Such considerations will be given further treatment in the latter portion of this article. C. 1.

Modern Approaches

General Jurisdiction and Zippo's "Sliding Scale" Test

A close examination of an early test formulated by the courts for determining their power over non-residents' internet-based litigation coincides with the discussion of general jurisdiction. General jurisdiction is available over a non-resident defendant where he or she is "present" in the forum, has pervasive contacts in that forum, and therefore, can justifiably be called into court regardless of whether the pending lawsuit arises from his or her contacts there. 63 An individual is amenable to all lawsuits brought in the state in which he or she is domiciled. 64 Similarly, a corporation generally is amenable to any suit brought in its primary place of business or the state in which it is incorporated, regardless of whether 62 See infra Appendix A. 63 See Int'l Shoe Co. v. Wash., 326 U.S. 310, 317 (1945) ("[TJhe terms 'present' or 'presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process. Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there."). 64 Milliken v. Meyer, 311 U.S. 457, 462-64 (1940) ("Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service .... [insofar as] the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard .... "The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable' from the various incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.") (citations omitted).

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the litigation arises from its contacts in the forum. 65 Beyond these general rules, however, the types of pervasive contacts with a forum state necessary to establish general jurisdiction are uncommon; especially when dealing with individual defendants as opposed to business entities. Thus, this exercise of general jurisdiction is rare. 66 Courts typically are reluctant to hold a defendant amenable to suit on the basis of general jurisdiction, because such a finding could expose that defendant to subsequent lawsuits brought in any other jurisdiction.67 A discussion of a once 65 See Int'I Shoe Co., 326 U.S. at 318 (holding that "there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities"); and Perkins v. Benguet Consol. Min. Co., 342 U.S. 437,446 (1952) (reaffirming the holding in International Shoe, and further supporting its logic by reasoning that "some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents .... [b]ut more realistically it may be said that those authorized acts were of such a nature as to justify the fiction") (citations omitted). But cf Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192-94 (2010) (The term "'principal place of business' is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities .... [often referred to as] the corporation's 'nerve center' .... [which] in practice ... should normally be the place where the corporation maintains its headquarters -provided that the headquarters is the actual center of direction, control, and coordination, i.e., the 'nerve center,' and not simply an office where the corporation holds its board meetings." The Court held that this reading is closely aligned with the intent of 28 U.S.c. § 1332, because it provides a moderate and simplistic approach for establishing jurisdiction over a corporation, and affords a degree of predictability beneficial to corporations and individual plaintiffs alike.). 66 Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 418 (1984) ("Mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. Nor [does] the fact that Helicol sent personnel into Texas for training in connection with the purchase of helicopters and equipment in that State in any way enhanced the nature of Helicol's contacts with Texas. The training was a part of the package of goods and services purchased by Helicol from Bell Helicopter. The brief presence of Helicol employees in Texas for the purpose of attending the training sessions is no more a significant contact than were the trips to New York made by the buyer for the retail store in Rosenberg. See also [Kulko v. Superior Court of Cal., 436 U.S. 84 (1978)] (basing California jurisdiction on 3-day and I-day stopovers in that State 'would make a mockery of due process limitations on assertion of personal jurisdiction. "). See also Submersible Sys. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 419 (5th Cir. 2001) ("As commentators have recognized, the continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum .... [so much so that the] Supreme Court has upheld an exercise of personal jurisdiction when the suit was unrelated to the defendant's contacts with a forum only once") (citations omitted); Gardemal v. Westin Hotel Co., 186 F.3d 588, 596 (5th Cir. 1999) (declining jurisdiction because the plaintiffs "assertions [were] vague and overgeneralized .... [giving] no indication as to the extent, duration, or frequency of [the defendant's] business dealings in Texas .... [and] even if taken as true, [the plaintiffs] assertions amount[ed] to little more than a vague claim that [the defendant] conduct[ed] business in Texas .... [Therefore the defendant lacked] the continuous and systematic contacts necessary for the exercise of general jurisdiction. "). 67 For a general discussion of this possibility, see Note: No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction and the Internet, 116 HARv. L. REV. 1821, 1834 (2003), and

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popular test used to consider a court's power over non-residents in Internet-related lawsuits illustrates this possibility. The court in Zippo Manufacturing Co. v. Zippo DOT Com, Inc., established a "Sliding Scale" test for exercising jurisdiction over a non-resident defendant based on his or her Internet-related conduct in the forum. 68 There, the court found that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.,,69 Following the decision in Zippo, the Sliding Scale test gained popularity as a means for determining a defendant's amenability to suit based on the categorization of his or her website within the Sliding Scale framework and the types of activities conducted through that website. A comparison of the language defining the nature of conduct sufficient for exercising general jurisdiction over a defendant with that of the Sliding Scale test identifies a clear theoretical overlap. Under the Sliding Scale test, a non-resident's contacts with a forum state can be found to be so continuous, systematic, and substantial that the forum state's court has power over him or her in litigation unrelated to those contacts?O On one end are "active" websites. Active sites are akin to large corporations that deliberately conduct business in a forum and subsequently are deemed amenable to suit there on any ground, because they have continued to avail themselves of the benefits and protections of the forum's laws?l At the lower end of the Sliding Scale are "passive" websites, which are Michael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16 BERKELEY TEeli. LJ. 1345, 1370 (2001). Also compare Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996) (suggesting that even if a website provides contacts normally satisfying a general jurisdiction analysis, due process protections impose a significant barrier, because allowing jurisdiction on these grounds may result in website owners being amenable to jurisdiction wherever the website is accessible), with Inset Sys. v. Instruction Set, 937 F. Supp. 161, 165 (D. Conn. 1996), supra text on page 8. 68 952 F. Supp. 1119 (W.D. Pa. 1997). 69 Id. at 1123-24. 70 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446 (1952); see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770,780 n.11 (1984) (The Court clarified its holding in Perkins by making the distinction with the case at bar that "[t]he defendant corporation's contacts with the forum State in Perkins were more substantial than those of respondent with New Hampshire in this case. In Perkins, the corporation's mining operations, located in the Philippine Islands, were completely halted during the Japanese occupation. The president, who was also general manager and principal stockholder of the company, returned to his home in Ohio where he carried on 'a continuous and systematic supervision of the necessarily limited wartime activities of the company.' The company's files were kept in Ohio, several directors' meetings were held there, substantial accounts were maintained in Ohio banks, and all key business decisions were made in the State. In those circumstances, Ohio was the corporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even over a cause of action unrelated to the activities in the State.") (citations omitted). 71 But see Hertz Corp. v. Friend, 130 S. Ct. at 1192-94. Given the Supreme Court's recent interpretation of 28 U.S.c. § 1332, the author recognizes that the above statement may soon become an outdated view. See also BNA, Jurisdiction and Procedure: High Court Endorses 'Nerve Center' Test for Corporate Citizenship in Diversity Cases, 42 SEC'. REG. & L. REP. 342 (2010).

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insufficient for establishing jurisdiction over a non-resident. The logic for declining jurisdiction under these circumstances mirrors that used by courts rejecting a "stream of commerce" justification in typical general jurisdiction cases.72 Between these extremes are "interactive" websites, and jurisdiction based on the operation of these sites will depend on the surrounding facts and circumstances of each case?3 Despite its overlap with the analysis of general jurisdiction, the Sliding Scale test often was used to determine a defendant's amenability to specific jurisdiction?4 Moreover, courts have not always embraced its application in the general jurisdiction context.75 Thus, concerns that broad exercises of general jurisdiction 72 See Pavlovich v. Superior Court, 29 Cal. 4th 262, 274-75 (Cal. 2002) (Affirming previous holdings that" '[c]reating a site, like placing a product into the stream of commerce, may be felt nationwide -or even worldwide- but, without more, it is not an act purposefully directed toward the forum state.'" Otherwise, 'personal jurisdiction in Internet-related cases would almost always be found in any forum in the country' .... Such a result would 'vitiate long-held and inviolate principles of personal jurisdiction.") (citations omitted). See also Bearry v. Beech Aircraft Corp., 818 F.2d 370, 375 (5th Cir. 1987) (holding that the "conclusion that there is a stream of commerce ensures that the contact that caused harm in the forum occurred there through the defendant's conduct and not the plaintiffs unilateral activities; it does not ensure that defendant's relationship with the forum is continuous and systematic, such that it can be sued there for unrelated claims"); Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir. 2(03) (holding the defendant's "reliance on the stream of commerce theory is misplaced because that theory is relevant only to the exercise of specific jurisdiction; it provides no basis for exercising general jurisdiction over a nonresident defendant"). 73 See also Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) ("At the one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which 'involve the knowing and repeated transmission of computer files over the Internet ... .' In this situation [the website is considered active or commercial, and] personal jurisdiction is proper. At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet. With passive websites, personal jurisdiction is not appropriate. In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer. In this middle ground, 'the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on [these interactive] Website[s].' ") (emphasis added) (citations omitted). 74 In fact, Zippo was a specific jurisdiction case, Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1125-26 (W.O. Pa. 1997) ("We are being asked to determine whether Dot Com's conducting of electronic commerce with Pennsylvania residents constitutes the purposeful availment of doing business in Pennsylvania .... [and we] conclude that it does."). However, courts also used the Sliding Scale test when evaluating general jurisdiction, e.g., Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (adopting Zippo's Sliding Scale test in the 5th Circuit in the context of a general jurisdiction analysis, but declining to exercise jurisdiction based on the defendant's website). 75 The confusion arising from Gator.com Corp. v. L.L. Bean, Inc., 2001 U.S. Dist. LEXIS 19737 (N.D. Cal. Nov. 21,2001), and a sequence of subsequent decisions on appeal illustrates this point. On appeal from the District Court's dismissal for want of personal jurisdiction, the 9th Circuit determined that L.L. Bean in fact had established a continuous and systematic presence in California. The court reasoned that "[u]nder the sliding-scale analysis, L.L. Bean's contacts with California are sufficient to confer general jurisdiction. L.L. Bean's website is highly interactive and very extensive: L.L. Bean 'clearly does business over the Internet.' Moreover, millions of dollars in sales, driven by an extensive,

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would expose non-resident defendants to unpredictable and potentially unrestricted personal jurisdiction, and over the difficulty in consistently applying the Sliding Scale test, gave rise to other approaches. However, when conduct in a forum is more substantial, continuous, and systematic, the test may retain value as a means for establishing general jurisdiction over websites and defendants. 2.

Specific Jurisdiction and Calder's "Effects" Test

A closer look at another test used by the courts for determining their power over a non-resident defendant in internet-based disputes aligns with the discussion of specific jurisdiction. Courts generally hale non-residents into a foreign courtroom by exercising their power of specific jurisdiction. "Specific jurisdiction is only appropriate when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. ,,76 It is unquestioned that a single act is sufficient to establish specific jurisdiction, insofar as that single act gives rise to the pending lawsuit. 77

ongoing, and sophisticated sales effort involving very large numbers of direct email solicitations and millions of catalog sales, qualifies as 'substantial' or 'continuous and systematic' commercial activity .... The District Court erred in concluding that there was no general jurisdiction in this case." Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1080 (9th Cir. 2003) (citations omitted). But it did not end there. After yet another appeal, the 9th Circuit once more had an opportunity to view the facts, and summarized the events leading up to their once more hearing the case, and the uncertain state of the law. "We vacated the decision of the three-judge panel when we took the appeal en bane, but the panel decision is in the Federal Reporter for anyone to read. That decision no longer has the force of law, but it is a clear statement by three judges of this court that, in their view, there is general jurisdiction over L.L. Bean in California .... The disarray in our case law is patent. How else to explain such dramatically different holdings from our judges -one judge dismissing for lack of jurisdiction and three judges holding that there is general jurisdiction? It is not only the litigants in this case that would benefit from an en bane opinion in this appeal. All potential litigants in this circuit would benefit." Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1142-43 (9th Cir. 2005) (citations omitted). See also Silverstein v. E360 Insight, LLC, 2007 U.S. Dist. LEXIS 57695, *7-8 n.2 (C.D. Cal. Aug. 6,2007). 76 Global 360, Inc. v. Spittin' Image Software, Inc., No. 3:04-CV-1857-L, 2005 U.S. Dist. LEXIS 4092, at *8 (N.D. Tex. Mar. 17,2005). 77 See, e.g., Int'l Shoe Co. v. Wash., 326 U.S. 310,317 (1945) ('''Presence' in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given."); Burnham v. Superior Court of CaL, 495 U.S. 604, 618 (1990) (interpreting [nt'l Shoe as suggesting "the defendant's litigationrelated 'minimum contacts' may take the place of physical presence as the basis for jurisdiction."); McGee v. InCI Life Ins. Co .• 355 U.S. 220, 224 (1957) ("It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State."); Lewis v. Fresne, 252 F.3d 352, 358-59 (5th Cir. 2001) (holding that "[aJ single act by a defendant can be enough to confer personal jurisdiction if that act gives rise to the claim being asserted").

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Following the Supreme Court's decision in Calder v. Jones, a new wrinkle was added to the "single act is enough" rule. 78 The Court upheld California's jurisdiction over the defendants, Calder and South, holding that the story they published "concerned the California activities of a California resident ... whose television career was centered in California.,,79 Because "the brunt of ... respondent's emotional distress and the injury to her professional reputation, was suffered in California," the court viewed California as "the focal point both of the story and of the harm suffered.... [therefore making jurisdiction] over petitioners ... proper in California based on the 'effects' of their Florida conduct in California.,,8o The Court was, however, careful in defining the reach of this "effectsbased" doctrine, stating that Calder's and South's "intentional, and allegedly tortious, actions were expressly aimed at California.... [a]nd they knew that the brunt of that injury would be felt by respondent in the State in which she live [d] and work[ ed] and in which the[ir] [employer] ha[ d] its largest circulation. ,,81 Given the totality of the circumstances, therefore, Calder and South "must 'reasonably [have anticipated] being haled into court there' to answer for the truth of the statements made in their article. ,,82 In the aftermath of Calder, courts across the country began utilizing the "Effects" test. 83 Before long, the logic extended beyond its initial use in libel cases, 78 465 U.S. 783 (1984). And even if it is argued that the Effects test was not a novel approach by the time Calder reached the Supreme Court, there is no denying that it achieved its current prominence as a result of the Court's endorsement. 79 Id. at 789. 80 Id. 81 Id. at 789-790. 82 Id. at 790 (citations omitted). 83 See, e.g., Guidry v. U.S. Tobacco Co., 188 F.3d 619, 628 (5th Cir. 1999) (The court cites a number of helpful sources on the Effects doctrine in the context of intentional torts, as well as its roots in Calder, stating that "[w)hen a nonresident defendant commits a tort within the state, or an act outside the state that causes tortious injury within the state, that tortious conduct amounts to sufficient minimum contacts with the state by the defendant to constitutionally permit courts within that state, including federal courts, to exercise personal adjudicative jurisdiction over the tortfeasor and the causes of actions arising from its offenses or quasi-offenses. See, e.g., Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996); Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 231 (5th Cir. 1995); Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990); DJ. Invs., Inc. v. Metzeler Motorcycle TIre Agent Gregg, Inc., 754 F.2d 542, 547 (5th Cir. 1985); DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1270-71 (5th Cir. 1983); Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir. 1983); Simon v. United States, 644 F.2d 490, 499 (5th Cir. 1981); Wilkerson v. Fortuna Corp., 554 F.2d 745,748 (5th Cir. 1977); Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1233-34 (5th Cir. 1973), abrogated on other grounds by United States v. Cooper, 135 F.3d 960 (5th Cir. 1998); Elkhart Eng'g. Corp. v. Dornier Werke, 343 F.2d 861, 866-67 (5th Cir. 1965); Calagaz v. Calhoon, 309 F.2d 248, 256-57 (5th Cir. 1962); see 4 Wright & Miller, § 1069; Willis L. M. Reese & Nina M. Galston, Doing an Act or Causing Consequences as Bases of Judicial Jurisdiction, 44 IOWA L. REV. 249 (1959). Even an act done outside the state that has consequences or effects within the state will suffice as a basis for jurisdiction in a suit arising from those consequences if the effects are seriously harmful and were intended or highly likely to follow from the nonresident defendant's conduct. See Calder, 465 U.S. at

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moving into other intentional torts, business torts,84 and eventually, the Effects test was applied by courts seeking jurisdiction over non-residents whose internetrelated contacts allegedly caused harm to plaintiff's in the forum. "[W]hen an entity intentionally reaches beyond its boundaries to conduct business with foreign residents, the exercise of specific jurisdiction is proper. Different results should not be reached simply because business is conducted over the Internet.,,85 The courts routinely have held that although a physical presence in the forum may solidify a court's power over him or her, "murisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State.... [and insofar as] efforts are 'purposefully directed' toward residents of another State ... absence of physical contacts [cannot] defeat personal jurisdiction there."s6 Given the previously noted inconsistency in the application of the Sliding Scale test, and continuing uncertainty about the best method for determining jurisdiction in internet-based litigation, Calder's Effects test quickly became the standard.87 789-90; Bullion, 895 F.2d at 217; Brown, 688 F.2d at 333; Simon, 644 F.2d at 499; see 4 Wright & Miller, § 1069."). 84 See Pavlovich v. Superior Court, 29 Cal. 4th 262, 269 (Cal. 2002). 85 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) (citations omitted). 86 Burger King Corp. v. Rudzewicz, 471 U.S. 462,476 (1985) (discussing jurisdiction over "commercial actors," but this reasoning has readily been applied over businesses and individuals alike). 87 See, e.g., Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir. 2002) (holding that when viewed as a whole, website postings by Connecticut newspapers about a prison in Virginia were not sufficient for establishing jurisdiction, because "the newspapers' websites, as well as the articles in question, were aimed at a Connecticut audience. The newspapers did not post materials on the Internet with the manifest intent of targeting Virginia readers. Accordingly, the newspapers could not have 'reasonably anticipated being haled into court [in Virginia] to answer for the truth of the statements made in their articles"') (citation omitted); Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F.Supp. 456, 470 (D.Mass. 1997) (dismissing defendant's motion to dismiss for lack of personal jurisdiction, because by posting a website infringing on the plaintiffs trademark, they "like the petitioners in Calder, should have anticipated being haled into a Massachusetts court to answer for [their] acts"); IIIustro Sys. Int'l, LLC v. IBM, No. 3:06-CV-1969-L, 2007 U.S. Dist. LEXIS 33324, at *29-31 (N.D. Tex. May 4, 2007) (concluding that copyright infringement is an intentional tort, and noting the utility of Calder's "Effects" test for determining the amenability of jurisdiction in such cases); Goldhaber v. Kohlenberg, 395 N.J. Super. 380,389-390,928 A.2d 948, 953 (N.J. Super. App. Div. 2007) (holding the defendant's internet postings were sufficient to establish jurisdiction, due to their targeted and specific language toward plaintiffs, who were forum residents); Bochan v. La Fontaine, 68 F. Supp. 2d 692, 699, 702 (E.D. Va. 1999) (The court extended a broad jurisdictional reach, holding that "a prima facie showing of a sufficient act by the La Fontaines in Virginia follows from their use of the AOL account, a Virginia-based service, to publish the allegedly defamatory statements. According to Bochan's expert, because the postings were accomplished through defendant's AOL account, they were transmitted first to AOL's USENET server hardware, located in Loudon County, Virginia. There, the message was apparently both stored temporarily and transmitted to other USENET servers around the world. Thus, as to the La Fontaines, because publication is a required element of defamation, and a prima facie showing has been made that the use of USENET server in Virginia was integral to that publication, there is a sufficient act in Virginia to satisfy [statutory requirements]," and that "[u]nder

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Despite the value of Calder's Effects test, one requirement poses significant barriers when evaluating the propriety of specific personal jurisdiction over a non-resident defendant. "[V]irtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant's knowledge that his intentional conduct would cause harm in the forum.,,88 This requirement likewise has been required in Internet cases, but is ill-equipped for responding to the factual underpinnings of such cases. 89 In the context of internet-related lawsuits, it may be difficult to establish the type of expressly aimed conduct necessary for satisfying Calder. Although a nonresident may know who their conduct effects, or the website their acts are directed toward, proving that they expressly aim their conduct at a forum may be problematic. This is because while the internet facilitates the modem functional equivalent of physical interaction, it does not necessarily facilitate the type of tangible relationship with a forum and its residents that is inherently linked to their physical presence. Where the Effects test in some ways embodies the topic of sharp divide in the Supreme Court's plurality opinion in Asahi Metal Industries Co. v. Superior Court of California, many have argued that this intent requirement now is an accepted part of all specific jurisdiction analyses. 9o Thus, however restrictive Calder's "express aiming" requirement may be, in many respects, it does not impose new [the] circumstances, because the predominant 'effects' of the La Fontaines' and Harris's conduct are in Virginia, these defendants could reasonably foresee being haled into court in this jurisdiction."). See also Jason W. Callen, Asserting In Personam Jurisdiction over Foreign Cybersquatters, 69 U. CIII. L. REV. 1837, 1839-40 (2002) (The author maintains that a combination of the "Effects" test and Fed. R. Civ. P. 4(k)(2) is superior to 28 U.S.C. § 1125(d), because "[w]hen cybersquatters ... register trademark-infringing domain names and engage in activities that tarnish the value of the mark, they intentionally injure mark owners in the United States. Cybersquatters establish minimum contacts with the nation as a whole because mark owners suffer harm in the United States. Based on these nationwide contacts, federal courts may exercise in personam jurisdiction under Fed R. Civ. P. 4(k)(2)."). 88 Pavlovich v. Superior Court, 29 Cal. 4th 262, 271 (Cal. 2002); see also IMO Indus. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir. 1998) ("[W]e reject Janmark and agree with the conclusion reached by the First, Fourth, Fifth, Eighth, Ninth, and Tenth Circuits that jurisdiction under Calder requires more than a finding that the harm caused by the defendant's intentional tort is primarily felt within the forum. Moreover, we agree with the Far West, Southmark, and Esab Group decisions that the Calder 'effects test' can only be satisfied if the plaintiff can point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum, and thereby made the forum the focal point of the tortious activity. Simply asserting that the defendant knew that the plaintiffs principal place of business was located in the forum would be insufficient in itself to meet this requirement. The defendant must 'manifest behavior intentionally targeted at and focused on' the forum for Calder to be satisfied. In the typical case, this will require some type of 'entry' into the forum state by the defendant.") (citations omitted). 89 See, e.g., Pavlovich v. Superior Court, 29 Cal. 4th 262 (2002). 90 480 U.S. 102 (1987). See generally Note, No Bad Puns: A Differelll Approach to the Problem of Personal Jurisdiction and the Internet, 116 HARV. L. REV. 1821, 1834 (2003) (discussing that al-

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barriers for establishing jurisdiction over non-resident defendants. Nevertheless, Internet-based contacts may not allow for direct proof of the specific intent likely necessary to justify haling a non-resident defendant into a foreign court. This is where the Effects test begins to weaken. But, much like the Sliding Scale test, it would remain useful under the proper circumstances. 3. Summary In response to a flood of Internet-related litigation, the courts initially struggled to analyze the suitability of jurisdiction within the existing personal jurisdiction framework. Two tests emerged from this early period of litigation that survive to this day: Zippo's Sliding Scale test, and Calder's Effects test. Although courts often apply one or both of these tests to determine whether a non-resident's contacts are sufficient to confer jurisdiction,91 both approaches have their drawbacks. Under the Effects test, jurisdiction rarely is exercised absent a defendant's "expressly aiming" their conduct at the forum state. As the court in Pavlovich v. Superior Court held, "knowledge alone is insufficient to establish express aiming at the forum state as required by the effects test.,,92 In many ways, then, this requirement serves the same purpose as the graduated website classification scheme in the Zippo test, because both are intended to add a degree of predictthough there appears to be an "intent" requirement inherent in the purposeful availment analysis, courts generally have set a low standard for satisfying it). 91 TITI Nguyen, A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition, 19 BERKELEY TECH. L.J. 519 (2004). 92 29 Cal. 4th 262, 278 (Cal. 2002). It is notable that the dissenting opinion, although relaxing the requirement that the defendant expressly aim their conduct at a known person or place, still required express aiming at the forum, stating that "it cannot matter that defendant may not have known or cared about the exact identities or precise locations of each individual target, or that he happened to employ a so-called passive Internet Web site, or whether any California resident visited the site. By acting with the broad intent to harm industries he knew were centered or substantially present in this state, defendant forged sufficient 'minimum contacts' with California 'that he should reasonably anticipate being haled into court [here).'" Id. at 279 (citations omitted). The dissenting judges went on to state that "the intended injurious effects of posting DeCSS were aimed directly at the computer hardware industry involved in producing CSS-encrypted DVD players -an industry Pavlovich knew was heavily concentrated in California .... Moreover, Pavlovich knew the purpose of CSS was to protect copyrighted movies from pirating, and ... [t]hus, even if he did not personally pirate copyrighted material for commercial gain, Pavlovich ... took an action calculated to harm the movie industry, which [he) knew was centered in California." Id. at 288. The dissent concluded by stating that "defendants who aim conduct at particular jurisdictions, expecting and intending that injurious effects will be felt in those specific places, cannot shield themselves from suit there simply by using the Internet, or some other generalized medium of communication, as the means of inflicting the harm." Id. at 289 (citations omitted). "[T)he unusual and unprecedented facts of this case demonstrate purposeful activity directed toward this forum sufficient to establish minimum contacts under the Calder test. As a result of his actions, defendant Pavlovich should reasonably have anticipated being haled into court in this state, and recognition of California's jurisdiction thus meets constitutional standards of fairness." Id. at 294.

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ability to Internet-related activity that will support personal jurisdiction, but just as importantly, institute a stringent standard that prevents all Internet users (and in particular website operators) from being exposed to litigation in all forums. The concerns of the majority in Pavlovich 93 can be summarized as follows: [If] the mere posting of information on a [website], which is accessible from anywhere but is directed at no particular audience, [is deemed] an action targeted at a particular forum ... mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible. 94

Unfortunately, internet users typically do not have actual and specific knowledge of the where or to whom their conduct is directed. Certainly, interactions among friends and acquaintances via the Internet generally involve the type of "express aiming" required by Pavlovich. But what of the millions of business interactions, or blog posts, or the various other activities that previously required physical presence or interaction, but now are achievable through the Internet with the click of a button? Somewhere in between the restrictive view incorporated in modern legal approaches, and the potential for nightmarish and unconstitutional outcomes predicted by countless judges, lies a more suitable framework for determining personal jurisdiction in the Internet age. The following section explores several possible alternatives. IV.

TECHNOLOGICAL ADVANCES REQUIRE NEW ApPROACHES TO THE PERSONAL JURISDICTION ANALYSIS

Internet-related conduct facilitates interactions that modern legal approaches do not adequately consider. It is almost beyond dispute that the Internet facilitates the modern functional equivalent of the physical presence in a forum that is necessary for a court to exercise its power. Courts continue to explore the boundaries of their power in Internet-related litigation. 95 However, the law has yet to 93 Author's note: the quoted language is from the dissenting opinion and is not intended to reflect the dissent's agreement with the majority'S view of potential outcomes, but rather, was the dissent's well-stated summary of the majority's position. 94 Pavlovich, 29 Cal. 4th at 262, 289. 95 See, e.g., Molly McDonough, Indiana High Court Allows MySpace Entry as Evidence in Murder Trial, ABA JOURNAL: LAW NEWS Now, Oct. 16, 2009 (discussing the Indiana Supreme Court's recent upholding of a conviction in which comments made on a defendant's MySpace page were used as character evidence, and quoting a Fort Wayne Journal Gazette interview with Valparaiso University's Bruce Berner, who commented on the decision's consistency in terms of established law, despite the difference in forum ("this guy spouts off on a MySpace page instead of to a guy at a bar .... The format is different ... , but other than that, this is classic prosecution rebutting a defendant who put his own character at issue."»; Dart v. Craigslist, Inc., 09 C 1385 (N.D. III. Oct. 20, 2009) (dismissing a claim against Craigslist.com on the grounds that the lawsuit brought was preempted by 47 U.S.c. § 230); Bosh v. Zavala (08-CV-04851-FMC-MANx) (C.D. Cal. Sept. 24,2009) (touching on the concept of Cybersquatting discussed in Section III.B supra, the court allowed basketball star Chris Bosh

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fully acknowledge the influence of the Internet in everyday life, often resulting in less-than-adequate outcomes in light of concerns for fair play and substantial justice. Yet this is not the first instance of the law encountering conflicts between emerging legal issues and long-held procedural practices. The following presents several innovations that would allow courts to more effectively, efficiently, and fairly adjudicate Internet-related disputes. Although these ideas are offered merely as a starting point for a more substantive discussion on the relevant issues, each is firmly rooted in the logic of traditional jurisdictional analyses, and is supported by the broader philosophical underpinnings of the courts' methods for handling Internet litigation to date. A. Statutes Under the ACPA, Congress effectively established a website as a form of property, designated its legal situs in the jurisdiction in which its domain name registry is located, and made an allowance for plaintiffs to bring in rem proceedings in that locale. One method for adapting the personal jurisdiction analysis to modern realities would be a wide-scale implementation of the ACPA approach. The court in Caesars World, Inc. v. Caesars-Palace. com, adequately captured the power of statutes in reshaping jurisdictional frameworks: "There is no prohibition on a legislative body making something property. Even if a domain name is no more than data, Congress can make data property and assign its place of registration as its situs.,,96 The first determination to make under an ACPA-like approach is the proper situs of the Internet property, because absent careful planning, outcomes would be no better than those occurring under existing approaches. One option is to uniformly apply the ACPA's logic, and to entertain all disputes arising from webrelated contacts in the jurisdiction where the domain name's registry is located. However, this likely would pose an undue burden on a select few jurisdictions.97 A more novel, albeit controversial approach would be to "localize" the website's sitUS. 98 Much like the Internet facilitates the modern functional equivalent to seize various domain names held by the defendant) (for more on Bosh and other recent cases bringing about the question of whether domain names can be used to satisfy creditor judgments, see Eric Goldman, Domain Names as Property Subject to Creditor Claims -Bosh v. Zavala, TECH. & MARKETING LAW BLOG, Oct. 21, 2009); CoStar Realty Info., Inc. v. Field, 2009 WL 841132 (D. Md. March 31, 2009) (holding that jurisdiction was proper over defendants who used plaintiffs online databases without authorization, because they likely would have seen the terms of service, and the choice of forum clause therein, during the several years they accessed the site). 96 112 F. Supp. 2d 502, 504 (E.D. Va. 2000) (emphasis added). 97 See, e.g., Lee, supra note 1. 98 This approach is, however, consistent with existing methods. See, e.g., 28 U.S.C. § 1391 (2010) (providing venue both where jurisdiction is founded solely on diversity, as well as where jurisdiction is not founded solely on diversity in "a judicial district in which a substantial part of the events

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of physical contact and interaction, it likewise gives rise to the modern functional equivalent of physical possession. In a theoretical sense, a website is just as much a personal possession as a diary, a work of art, or any other individual creation. Unlike these tangible possessions, however, attaining actual physical possession of Internet property is not as easy to conceptualize. One may print the display of their home page and put it in their pocket, but would this qualify as possession? Put another way, if someone took that piece of paper, would they now have possession of the website? Do individuals possess the website simply because they are looking at it on their home computer screen, while they act as the site administrator and upload information and alter content? With a moment of thought, the disconnect is easy to understand. Despite having all of the characteristics of personal property, a website falls short of achieving traditional standards simply by virtue of the medium in which it exists; cyberspace. Thus, as we accept the idea that the Internet allows contact with others in a way previously unavailable, so too must we recognize that it allows for property ownership, and thus property rights, in much the same fashion. 99 If this logic is accepted, a website's situs quickly can become more localized than provided under statutes like the ACPA. It could be the jurisdiction in which the website's owner or operator lives. Just as appropriately, it could be deemed the jurisdiction in which its Internet service provider is located. Whatever the determination, the burdens of litigation would be more equally spread across courtor omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated") (emphasis added); see also RESTATEMENT (SECOND) OF JUDGMENTS § 6 cmt. e (1982) ("The connection classically sufficient to found jurisdiction to determine interests in a thing is the presence of the thing within the state .... This limitation may still have some validity.... [but under modem views] it is relevant to consider not merely the physical location of the property [in determining jurisdiction over it], but the apparatus of providing a remedy with respect to it .... A more difficult problem arises in determining the relationship between the forum state and intangible property. Two questions arise. The first is the identity of the thing that is the subject of adjudication. If, for example, a debt evidenced by a writing is involved, the 'thing' at issue may be conceived as the writing or as the debt that it evidences. Whether the thing is found to be present depends on which of these conceptions is adopted. The second question is whether the thing, whatever it is, is situated within the forum state. Traditionally, the question of location was formulated and answered in terms of physical presence, an approach that inevitably involves legal fiction when intangible property is involved. In some instances, situs may be defined by statute. Modem decisional law has tended to ascribe location of an intangible by inquiring whether the state has significant relationships to the transaction giving rise to the property claims in dispute. Thus, essentially a test of minimum contacts is used for determining whether the property may be subjected to adjudication.") (emphasis added) (citations omitted). 99 The Author thanks an anonymous Law Review Editor who presented the following artful example conveying this point: Joe leases a fractional Tl from a local provider, connects it to his home computer, registers a domain name to the corresponding IP address, and run an HTTP server on his home computer with an HTTP root directory on Joe's local hard drive. All of the data is stored on a hard disk owned and controlled by Joe. Under these facts, the website likely is not distinguishable from a handwritten diary. Thus, the website likely is property that Joe possesses.

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rooms, and jurisdiction would be established in a fashion much closer to traditional frameworks, rather than imposing the mutual inconvenience of litigating in foreign courtrooms on both plaintiffs and defendants, as is the case under the ACPA. However, this approach is not without its pitfalls. First, this framework generally would only apply to litigation arising from some form of website-related dispute. Thus, the various other forms of Internet-related disputes, including suits arising from Internet-based breaches of contract, Internet-related business transactions, Internet-based tort claims, and so on, do not fit neatly within this framework. More important, potentially significant concerns arise in terms of constitutional due process when non-residents suddenly are being haled into foreign courtrooms in a manner the courts have been so careful to prevent. These concerns do not altogether destroy the viability of a statutory approach to modernizing jurisdictional analyses, but they do make an examination of additional alternatives worthwhile. B.

Expanding the Use of in rem Jurisdiction

This subsection expands on the notion presented above that the Internet gives rise to the modern functional equivalent of property possession. From the onset, it bears repeating that a valid exercise of in rem jurisdiction requires that the property in question be related to the pending lawsuit, and that the appropriateness of jurisdiction be evaluated according to the two-pronged test originally set forth in International Shoe. tOO To utilize in rem jurisdiction in Internet-related disputes in a meaningful way, two propositions must be accepted. First, Internet-based proprietary rights must be acknowledged as valid and enforceable. This notion is most readily acceptable when considering websites as personal possessions, but a similar line of logic extends to written works, software, and any other property-like interests that normally are connected with physical possession, but now extend into cyberspace in the form Internet-based equivalents of property. Such recognition is consistent with the widely accepted view that stocks, trademarks, and other intangible interests are to be afforded rights consistent with those enjoyed by the holders of real or personal property.tOl Second, the most efficient means of conducting in rem proceedings would be to hale a non-resident defendant into the forum where the property is located. This requires acceptance of in rem jurisdiction as a "twoway" concept. The Supreme Court decisions examining whether property is a valid basis for jurisdiction over a non-resident defendant suggest that in rem jurisdiction is a 100 Shaffer v. Heitner, 433 U.S. 186,207 (1977). 101 See generally RESTATEMENT (SECOND) OF JUDGMENTS, § 6 (1982). In particular, the reporter notes are helpful in navigating the evolution of the law in this area.

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viable alternative in the context of Internet-based disputes. Furthermore, they suggest that in rem jurisdiction may be appropriate even when the defendant does not own property in the forum. In both McGee v. International Life Insurance Co., and Shaffer v. Heitner, the Court gives considerable attention to equity, and to the interests of states and plaintiffs. 102 McGee cited the forum's "manifest interest in providing effective means of redress for its residents" as a basis for in rem jurisdiction, and stated that resident plaintiffs "would be at a severe disadvantage if . . . forced to follow [defendants] to a distant State in order to hold [him or her] legally accountable.,,103 In Shaffer, the Court stated that the presence of property provides the contact between the forum, the defendant, and the litigation necessary for a state to exercise its power over a non-resident, insofar as the property is related to the instant claim. 104 Furthermore, Shaffer cites as reasons for subjecting a defendant to in rem jurisdiction the availability of resources to conduct efficient litigation, and the benefits of the forum that the defendant implicitly receives through his or her connection with the property in that forum. 105 The Court further held that "when claims to the property itself are the source of the underlying controversy ... it would be unusual for the State where the property is located not to have jurisdiction."lo6 Finally, viewing in rem jurisdiction as a two-way concept is consistent with the underlying intent in the lineage of case from Penn oyer, to International Shoe, and to Shaffer. 107 In other words, in rem jurisdiction should be viewed as a basis for establishing jurisdiction over a non-resident defendant, regardless of whether he or she owns property in the forum state, or merely benefits from a resident plaintiffs property ownership in the forum. The connection that property forms between a forum, a defendant, and the litigation in cases where a non-resident defendant derives benefits from a forum plaintiff's property likely are just as strong as it is when the non-resident defendant him or herself owns property there. lOS This connection establishes the requisite minimum contacts with the forum state, and in doing so satisfies the first prong of the International Shoe test, because the non-owner reasonably should believe that any grievance or injury arising from his or her relationship with the 102 103 104 105

McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957); Shaffer v. Heitner, 433 U.S. 186 (1977). McGee,355 U.S. at 223. Shaffer,433 U.S. at 207. [d. at 207-208. 106 /d. at 208. 107 Pennoyer v. Neff, 95 U.S. 714 (1877); Int'l Shoe Co. v. Wash., 326 U.S. 310 (1945); Shaffer v. Heitner, 433 U.S. 186 (1977). See supra text accompanying notes 21, 28, 34. 108 See Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App. 1999) (holding that, regardless of residency, "a state [probate] court maintains in rem jurisdiction over property located within the state that gives rise to the cause of action"); State v. Approximately $2,000,000.00 in U.S. Currency, 822 S.W.2d 721, 726 (Tex. App. 1991) (ruling that "if the res is released accidently [sic], fraudulently, or improperly, the court will not be divested of its jurisdiction").

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property will expose him or her to liability in the state where it is located. In litigation over the rights to or injuries arising out of Internet-based property, any judgment would directly determine the parties' rights to such property. A court's exercising its power over such disputes would be consistent with traditional grants of personal jurisdiction, because the Internet property would be the subject of the litigation. Thus, haling a non-resident defendant into a foreign court on the basis of in rem jurisdiction remains true to the meaning of the term,109 and is consistent with long-held due process requirements. I 10 Nevertheless, potential concerns arise when considering these suggested approaches in light of the second prong of the International Shoe test. Would haling a non-resident defendant into a foreign jurisdiction comport with constitutional due process, where it is quite possible he or she previously is unaware of the forum in which his or her conduct is felt? Does a forum have a substantial interest in determining a dispute where Internet-based property rightly could be viewed as something closer to a legal fiction than other more tangible property interests? A systemic innovation proposed in the last subsection could adequately address such justifiable concerns.

c. Reexamining Accepted Approaches The courts and the law have established a series of self-imposed restraints when dealing with Internet-related litigation, likely to prevent the inevitable fallout from too loose an application of traditional personal jurisdiction analyses. II I However, such responses undervalue the prominent role of the Internet in everyday life, and do not accurately reflect the character of the Internet-based activi109 See supra text accompanying note 40; Shaffer, 433 U.S. at 207. 110 A third alternative may prove useful if one is not willing to view in rem jurisdiction in the manner presented above, but still requires the initial acknowledgment of Internet-based property rights. In rem jurisdiction generally is divided into three categories. See supra text accompanying note 36. If the defendant's conduct can be classified as a claim of an "unlawful" or "adverse" interest in the resident-plaintiffs Internet-based property, in rem jurisdiction is justifiable under both the quasi in rem type I and the quasi in rem type II approaches. First, the "two-way" in rem argument presented above becomes unnecessary, because the non-resident, by way of this legal fiction, does actually own Internet-based property in the forum; albeit the ownership interest is a negative one. Thus, a court's exercise of power falls nearly in line with the standard application of in rem jurisdiction. Under type I, the plaintiff could be viewed as essentially "quieting the title" to their Internet property. Under type II, the plaintiff would concede ownership of the "unlawful" portion of the Internet-based property that the non-resident defendant creates by way of their conduct (as the Court suggests in Shaffer), would bring an action based on the "injury" incurred to that portion of their Internet property, and would then seek to re-establish full and uninterrupted ownership of the Internet-based property. Once in rem jurisdiction is established in this manner, the plaintiff also may have grounds to seek other in personam relief under another "two-way" application. See, e.g., Garfein v. McInnis, 162 N.E. 73, 74 (N.Y. 1928); see also Buzzell v. Edward H. Everett Co., 180 F.Supp. 893, 902 (D. Vt. 1960). 111 See, e.g., Mark C. Dearing, Personal Jurisdiction and the Internet: Can the Traditional Principles and Landmark Cases Guide the Legal System into the 21st Century?, 4 J. TEell. L. & POL'y. en 10 (Spring 1999).

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ties that give rise to litigation. This is not to suggest that existing approaches must be completely abandoned. Instead, they simply require a renewed focus and slight retooling to accommodate the exercise of personal jurisdiction in the Internet Age. First, the Zippo and Calder tests should be modified to better determine the appropriateness of personal jurisdiction in Internet-related litigation. Zippo arose out of business-related Internet conduct. I 12 Moreover, its language clearly resembles the concept of "continuous and systematic" presence that serves as the foundation for general personal jurisdiction. Nevertheless, courts have been reluctant to exercise general jurisdiction over non-resident defendants, and have applied the Sliding Scale test cautiously to protect Internet users and website owners from being haled into court in any jurisdiction in which Internet access is available. However, this article argues that the Internet facilitates the modem functional equivalent of actual, physical presence in a forum, and that non-residents now are equipped to engage in activities in foreign jurisdictions at their leisure, and without leaving their homes. As the court in L. L. Bean recognized, for example, there is little difference between an online store and a store physically located in a forum. I 13 And with the growth of forums like eBay and Craigslist, this commercial thrust likely will continue. When combined with "doing business" long-arm statutes,114 the Sliding Scale test provides an ideal mechanism for establishing general personal jurisdiction over non-residents based on their business activities or other such pervasive Internet-related contacts in a forum. Under this approach, one level of analysis examines the interactivity of the website, and the other level whether the nonresident "does business" in the forum. Thus, general personal jurisdiction only would be exercised over those realistically engaged in cyber commerce, and who should foresee being haled into a foreign court as a result of their Internet-based activities. This framework would be more responsive to the realities of the Internet, and more suitable for dealing with the growing number of individuals engaging in "e-commerce." 112 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) ("[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet."). 113 Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1079 (9th Cir. 2003). 114 See supra text accompanying notes 21; see also Citigroup Inc. v. City Holding Co., 97 F. Supp. 2d 549, 569 (S.D.N.Y. 2(00) ("[New York's long arm statute] states that a New York court 'may exercise jurisdiction over persons, property, or status as might have been exercised heretofore' .... Pursuant to [the statute], a foreign corporation will be subject to personal jurisdiction in New York if it is present or 'doing business' in the state. A corporation's activity rises to the level of 'doing business' only when it is engaged in 'such a continuous and systematic course of activity that it can be deemed present in the state of New York."') (emphasis added) (citations omitted).

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Calder's Effects test likewise warrants closer scrutiny. The Effects test mandates "express aiming" at a forum, such that only the most intentional and directed Internet-related conduct will give rise to litigation in the plaintiff's home state. On the one hand, this requirement prevents all Internet users from being subjected to broad sweeping jurisdiction} 15 On the other hand, it prevents the exercise of personal jurisdiction in cases where Internet-based activities represent the modern functional equivalent of actual physical presence in a forum. Thus, the Effects test should be reexamined, because it does not fully reflect the realities of Internet use, and because it does not take into account the types of interactions facilitated through this medium. Several alternatives are available for modifying the Effects test in light of modern technological advances. One is to relax the first prong of the International Shoe test in Internet cases. 116 Non-residents making contact with a foreign jurisdiction via the Internet may not know specifically where the effects of their conduct will be felt. However, it is reasonable for them to foresee being haled into court as a result of their modem functional equivalent of directed physical contact in whatever jurisdiction the brunt of any harm is felt. While this method may not appeal to some, perhaps this is the unfortunate reality for dealing with litigation in the Internet Age. Moreover, steps can be taken to better inform Internet users of where their conduct is directed; or possibly to remove a defense of ignorance. For example, "jurisdictional identifiers" with the name or an abbreviation of the situs or primary place of operation for a website could be added to existing domain names, as currently is seen when visiting internationally-based websites. 117 Other possibilities include user agreements, built-in forum selection clauses, and other such notice devices. 115 See supra text accompanying note 72. See also Corrected Brief for Public Citizen as Amicus Curiae Supporting Appellee, Internet Solutions Corp. v. Tabatha Marshall (Fla. July 29. 2009) (SC09272).2009 FL S. Ct. Briefs LEXIS 714, at *6 ("As nearly every court to have considered the question has held, a website owner who refers to a company on a website that is equally accessible in all states cannot reasonably expect to face jurisdiction in every state where that website can be viewed. Accordingly, in determining whether jurisdiction is proper, courts look to whether a website specifically targets forum residents and whether the site is commercially interactive .... 'To hold otherwise would subject millions of internet users to suit in the state of any company whose trademarked name they happen to mention on a website ...·) (citations omitted). 116 See Andrew J. Grotto, Due Process and In Rem Jurisdiction Under the Anti-Cybersquatting Consumer Protection Act. 2 COLlIM. SCI. & TECII. L. REV. 3. 4-5 (2001) (The author proposes "a relaxed minimum contacts standard for in rem jurisdiction as it applies narrowly to the ACPA. primarily on the basis of a pair of procedural safeguards contained in the in rem provisions .... [and further maintains that] additional contacts supplied by certain indicia of bad faith further support the constitutionality of the provisions.") (emphasis added). 117 For example. websites based in Italy typically include ".it" at the end of their web addresses. Under the suggested approach, existing postal codes or other like identifiers could be added to web addresses to notify the user of the website's recognized situs.

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The most appropriate way to modify Calder's brand of the Effects test, however, would be to incorporate the rationales of two other Supreme Court cases: Burger King Corp. v. Rudzewicz, and Keeton v. Hustler Magazine, Inc.. llS Rather than requiring "express aiming" at a forum, blending the aforementioned cases would accommodate jurisdiction: 1) regardless of a non-resident's physical presence in the forum (and thus would recognize Internet-based activities' role in facilitating the modern functional equivalent of physical entry into a forum); and 2) simply by virtue of the non-resident engaging in activity that will cause harm somewhere, no matter "where that where may be.,,119 CONCLUSION

Internet-based contacts can provide a basis for exercising personal jurisdiction in a manner consistent with the requirements of International Shoe Co. v. Washington. 120 However, existing jurisdictional frameworks do not reflect the realities 118 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984). 119 Burger King Corp., 471 U.S. at 475-76 & n.18 ("[The] 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts, or of the 'unilateral activity of another party or a third person.' Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State. Thus where the defendant 'deliberately' has engaged in significant activities within a State, or has created 'continuing obligations' between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by 'the benefits and protections' of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well .... So long as it creates a 'substantial connection' with the forum, even a single act can support jurisdiction .... [However,] 'some single or occasional acts' related to the forum may not be sufficient to establish jurisdiction if 'their nature and quality and the circumstances of their commission' create only an 'attenuated' affiliation with the forum. This distinction derives from the belief that, with respect to this category of 'isolated' acts, the reasonable foreseeability of litigation in the forum is substantially diminished.") (citations omitted); Keeton, 465 U.S. at 776, 780-81 ("'A state has an especial interest in exercising judicial jurisdiction over those who commit torts within its territory. This is because torts involve wrongful conduct which a state seeks to deter, and against which it attempts to afford protection, by providing that a tort-feasor shall be liable for damages which are the proximate result of his tort' .... The plaintiffs residence is not, of course, completely irrelevant to the jurisdictional inquiry. As noted, that inquiry focuses on the relations among the defendant, the forum, and the litigation. Plaintiffs residence may well play an important role in determining the propriety of entertaining a suit against the defendant in the forum. That is, plaintiffs residence in the forum may, because of defendant's relationship with the plaintiff, enhance defendant's contacts with the forum. Plaintiffs residence may be the focus of the activities of the defendant out of which the suit arises. But plaintiffs residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant'S contacts . ... The victim of a libel, like the victim of any other tort, may choose to bring suit in any forum with which the defendant has "certain minimum contacts . .. such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice."') (emphasis added) (citations omitted). 120 326 U.S. 310, 316-20 (1945) (citations omitted).

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of Internet communications, nor do they properly address the role of technological interactions in the modern human experience. The utility of Calder's Effects test is diluted by its "express aiming" requirement, and Zippo's Sliding Scale test borders on unworkable. The Anticybersquatting Consumer Protection Act and its grant of in rem personal jurisdiction has the potential to deliver consistent jurisdictional determinations, but the benefits of this provision are tempered by its narrow scope and the mutual burdens it imposes on plaintiffs and defendants. Nevertheless, slight modifications to the Effects test and the Sliding Scale test likely are the first steps for curing these deficiencies. As discussed in this article, if use of the Sliding Scale is limited to determining general jurisdiction over individuals and businesses for their Internet-based activities, a modified version of the Effects test can be utilized in cases where a non-resident uses the Internet to reach beyond his or her physical location to cause an injury in a distant forum. These changes are manageable, and would be further solidified by supplemental statutory protections and the expanded availability of in rem jurisdiction in Internet-based disputes. The Internet allows a person to reach out beyond his or her access point, and to engage in contact with others in a way once only possible through direct physical contact. The analysis of personal jurisdiction must accommodate this reality. Selected Provisions from the Anticybersquatting Consumer Protection Act. 15 U.S.C. § 1125 (1999) (emphasis added).

ApPENDIX A.

(c) Dilution by blurring; dilution by tarnishment. (5) Additional remedies. In an action brought under this subsection, the owner of the famous mark shall be entitled to injunctive relief as set forth in section 34. The owner of the famous mark shall also be entitled to the remedies set forth in sections 35(a) and 36 [15 uses § 1117(a) and 1118], subject to the discretion of the court and the principles of equity if(A) the mark or trade name that is likely to cause dilution by blurring or dilution by tarnishment was first used in commerce by the person against whom the injunction is sought after the date of enactment of the Trademark Dilution Revision Act of 2006 [enacted Oct. 6, 2006]; and (B) in a claim arising under this subsection(i) by reason of dilution by blurring, the person against whom the injunction is sought willfully intended to trade on the recognition of the famous mark; or (ii) by reason of dilution by tarnishment, the person against whom the injunction is sought willfully intended to harm the reputation of the famous mark

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(d) Cyberpiracy prevention. (1) (A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses a domain name that(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or (III) is a trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code. (B) (i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to- [subsections (I) through (IX) are omitted] (ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful. (C) In any civil action involving the registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. (D) A person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that registrant's authorized licensee. (E) As used in this paragraph, the term "traffics in" refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for consideration or receipt in exchange for consideration. (2) (A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if(i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c); and

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(ii) the court finds that the owner(I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) by(aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant of the domain name at the postal and email address provided by the registrant to the registrar; and (bb) publishing notice of the action as the court may direct promptly after filing the action. (B) The actions under subparagraph (A)(ii) shall constitute service of process. (C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which(i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court. (D) (i) The remedies in an in rem action under this paragraph shall be limited to a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. Upon receipt of written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph, the domain name registrar, domain name registry, or other domain name authority shall(I) expeditiously deposit with the court documents sufficient to establish the court's control and authority regarding the disposition of the registration and use of the domain name to the court; and (II) not transfer, suspend, or otherwise modify the domain name during the pendency of the action, except upon order of the court. (ii) The domain name registrar or registry or other domain name authority shall not be liable for injunctive or monetary relief under this paragraph except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any such court order. (3) The civil action established under paragraph (1) and the in rem action established under paragraph (2), and any remedy available under either such action, shall be in addition to any other civil action or remedy otherwise applicable. (4) The in rem jurisdiction established under paragraph (2) shall be in addition to any other jurisdiction that otherwise exists, whether in rem or in personam

JURISPRUDENCE FOR A DIGITAL AGE: FREE SOFTWARE AND THE NEED FOR A NEW MEDIA LEGAL AUTHORITY Nicholas Clark* INTRODUCTION

In an age of digital multimedia, it may still make sense to construct our laws as purely textual documents, in the same way that it still makes sense to publish written documentation for users of our digital devices, and written source code for all of our software. These are operating instructions, and we value the unique power of the written word to embody abstract concepts in highly adaptable relationships. However, just as documentation will feature illustrations to guide users through an interface, and just as programmers map out hash tables, trees and directed graphs, so too do lawyers and law students make charts, tables and illustrations to help them understand the complex concepts the discipline has generated. As distribution of visual media becomes increasingly inexpensive and immediate, and our collective consciousness becomes increasingly dominated by new media, perhaps the management of the operating instructions underpinning those media can help to inform the way we manage, understand, and even produce laws.· This note seeks to illustrate the irresistible necessity of formulating an authority on illustrations of laws and legal concepts employing the immediacy and inexpensiveness of distribution through new media. Moreover, this note explores the parallel importance of freedom both to the software underlying much of new media and to American jurisprudence by using the "four freedoms" of Free Software as a framework through which to imagine the form and jurisprudential effect of a definitive legal authority on laws and legal concepts based in new media. I.

A.

LAW IS CODE

(?)

Law is Not Code

Before proceeding further with the comparison of operating instructions as they exist in software source code, documentation, and laws, it is important to point out the very different ways which laws and computer code function; although jurists strive for predictability in our discussions and interpretations of

*

J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law. 1 See generally LAWRENCE LESSIG, CODE v2 (2006), available at hUp:/Icodev2.cddownload® emix (last visited Mar. 2, 2010) (discussing at length the significance of computer code in comparison to legal authority).

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laws, laws cannot be relied upon to provide the sorts of foreseeable outcomes that computer code will. 2 In part, the lack of legal predictability is the fault of the fact that judges are human beings, incapable of being relied upon to make the sorts of wholly dispassionate calculations made by computers, and sometimes more interested in just outcomes than in predictable outcomes? While predictable application of laws is deemed by some legal scholars to promote justice by providing the individuals with clear notice of what is expected of them, this is a fiction where laws and legal thought are opaque to laypeople. 4 Since predictable legal outcomes only benefit justice to the extent that they are predictable to the people they affect directly, a new media authority on legal thought should strive to increase the transparency and accessibility of laws to those people. B.

Human Readable Codes

Programmers typically write "source code" for programs in "human readable" programming languages that resemble casual verbal communication closely enough that a determined novice reading the code could arrive at a fairly accurate guess as to the function of the commands. 5 In order to function as computer software, human readable source code needs to be compiled - essentially a process of translation - into the machine readable binary language of ones and zeroes. 6 The distinction between the human readability of source code and the human readability of legal authority is vital to this note. The expression "human readable" has been employed to some degree by those working at the intersection of new media and the law to criticize the use of opaque legalese, or applaud the use in legal materials of verbiage penetrable to those without a legal background? The comparison of source code and legal code inherent in this use of the term "human readable" helps to emphasize the earlier point about the difference in the operation of the two; while the words in source code can be read and understood, each one stands for a particular, definite computational operation that will 2 Pod cast: Software Freedom Law Show: Episode OxOl: The Engineer and the Lawyer, held by the Software Freedom Law Center (2008), available at http://www.softwarefreedom.orglpodcast-media/Software-Freedom-Law-Show_OxOLEngineer-and-Lawyer.ogg (last visited Mar. 2, 2010) (discussing the tendency among programmers to expect laws to provide outcomes predictable on the basis of circumstances). 3 lohn M. Walker, Judicial Tendencies in Statutory Construction: Differing Views on the Role of the Judge, 58 N.Y.V. ANN. SURV. AM. L. 203, 237 (2001) ("The judicial discretion promoted by seeking to effect purposes or to 'do justice' detracts from the law's certainty and predictability."). 4 Nita Gheii and Francesco Parisi, Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order, 25 CARDOZO L. REV. 1367, 1371 (2004). 5 Apple Computer, Inc. v. Franklin Computer Corp. 714 F.2d 1240, 1243 (3d Cir. 1983). 6 [d. 7 See, e.g. Fred Benenson, The Value of Human Readable Deeds - Creative Commons, Feb. 18, 2009, hUp:llcreativecommons.orglwebloglentryI12778.

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not ordinarily be altered by interpretation. Legal codes attempt to provide unambiguous definitions of the terminology they employ, but ultimately the value of verbal language to a human reader is its adaptability rather than its precision. s It is because of the adaptability of verbal language that it needs to be supplemented by the specificity of illustration when used in areas such as law wherein definiteness could benefit justice. II.

DISTRIBUTION, DIGITAL MIND, AND THE PRINTING PRESS PRISON

A.

Illustrating Legal Thought

Although digital media has enabled the effortless, inexpensive, and seemingly boundless reproducibility of images, text remains the default medium by which to disseminate information that seeks to be taken seriously. The history of this tendency is long, but not indefinite. The 18th century B.C.E. Code of Hammurabi appeared on an illustrated stele. 9 Before the invention of the printing press, the pages of books took the form their authors dictated while illustrations and text flowed into one another. to For example, laws in European texts were illustrated with tree diagrams in the middle ages. 11 Movable type was a revolution for distribution, but meant that books would come to be synonymous with blocks of text. Today's jurist seldom, if ever, picks up a code service or court reporter expecting to see illustrations more informative than a state seal, nor does she typically visit an online resource like LexisNexis expecting the sorts of illuminations that predated Gutenberg. The Hammurabi Code and the legal trees point to the use of illustration as it would be incorporated into legal works absent the textual focus brought about by the invention of the printing press. In both these examples, the laws are textual, and the illustrations merely top the stele or occupy a page in a largely textual book. Laws seem to invite text because, just like user documentation or source code, the concision and abstraction they require seems to be more efficiently communicated in text. 8 ARIE VERIIAGEN, CONTEXT, MEANING, AND INTERI'RETATION, IN A PRAcnCAL AI'I'ROACII TO LINGUISTICS, IN DISCOURSE ANALYSIS AND DISCOURSE EVALUATION 16 (L. Lentz & H.L.W. Pander Maat eds., 1997). 9 Martha T. Roth, Mesopotamian Legal Traditions and the Laws of Hammurabi, 71 CIII.-KENT L. REV. 13, 16 (1995). 10 DAVE GRAY, MARKS AND MEANING 70 (2008). 11 Mike Widener, Yale Law Library - Rare Books Blog, Legal Trees, http://blogs.law.yale.edu/ blogslrarebooks/archive/2008/04/30Ilegal-quot-trees-quot.aspx (last visited May 3, 2010) (the Yale Law Library's Rare Books Blog contains many other images of illustrated laws from books dating back centuries).

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B.

Seeing Laws

Visual information aids the work of programmers, in the form of hash maps and data trees, and users, in the form of illustrated directions and graphical interfaces. Where verbal information, in the form of either text or speech, is augmented by visual images memory retention is enhanced; in a study conducted by the Swedish Broadcasting Corporation, subjects who were shown images of a map corresponding to a spoken news item scored 15 % higher on a test of retention than did subjects who heard the item accompanied by images of the reporter reading the report, and 14% higher than subjects hearing the audio only.12 The study also showed that the most positive impact on retention of the news item came when the illustrations corresponded well to the item and when they were detailed and easy to follow. 13 As consumers of informational media, we owe it to ourselves to facilitate learning of difficult concepts with correlated, detailed, easy to follow illustrations. As jurists, and indeed, as citizens in a nation of laws, we are all to some degree responsible for the operating instructions embodied in our laws. While we may not see illustrations adorning our legal codes as they did before Gutenberg, there are certain areas where governments have recognized the importance of the immediacy of communication that visual illustrations can afford in reminding us of those operating instructions. Specifically, traffic signs and warning labels visually communicate legal expectations or consequences. Their ubiquity may be an irritating eyesore, but it may just as well be a step toward letting "men and women and yes, even children ... know that which is expected of them and that which they can expect of others. ,,14 We know then from our day-to-day experiences that our legal responsibilities can be communicated visually. Obviously safety restrictions are not the only laws to which we are all held answerable. Communication of legal expectations in a manner that is immediate, and that enriches our understanding and retention need not stop with safety regulations when our legal rights and responsibilities extend so far beyond safety. III.

THE NEED FOR A NEW MEDIA LEGAL AUTHORITY

A.

The Jurist's Need for Respected Authority

Visual legal illustration is an informal reality without a decisive clearinghouse comparable to the authoritative niches topical areas of law frequently find in respected Law Reviews and journals. At the New York Law School, the Visual 12 Olle Findahl, Swedish Broadcasting Corp., The Effect of Visual Illustrations Upon Perception and Retention of News Programmes, 9 (1971), http://www.eric.ed.gov/ERICWebPortallcontent delivery/servletlERICServlet?accno=ED054631. 13 [d. at 10-12. 14 Edgar Caho and Jean Camper Cahn, This I Believe (1977) (unpublished credo, on file with Edgar Cahn) (this source appears in full in this note's Appendix).

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Persuasion Project focuses a keen eye on the value of visual materials and new media to the litigator in the persuasive presentation of evidence, and to a lesser degree on the value of visual materials and new media for the understanding of underlying laws and legal concepts. I5 The Visual Persuasion Project's founder and Director Richard K. Sherwin has identified an important shortcoming in the communication and critical interpretation of visual legal materials: "legal scholars have been less quick than their counterparts in other academic fields to heed the implications of the cultural shifts to the visual and the digital.,,16 Moreover, Professor Sherwin concedes to some degree that the work of the Visual Persuasion Project exploits that shortcoming, while simultaneously identifying a vital resource that does not yet exist; "Responses to pictures are not arguable in the same way that responses to legal texts are. Absent an extensive tradition of critical interpretation and without readings that have been applied over time, there can be no appeal to more authoritative texts or to any consensus of scholars.,,17 A decisive critical resource to distribute and perfect visual legal illustration must be created in order that authoritative texts can emerge by which the influence of new media on finders of fact can be assessed, and on the basis of which laws can be made more widely accessible and just, both in substance and in freely distributable form. B.

Free Software and the Layperson's Need for Legal Conversation

Opening legal discourse to non-lawyers through a new media authority on visual legal illustration could promote the just application of the laws that authority explicates; this authority should model itself on the freedom of both the existing form of the verbal laws it interprets, and of the operating instructions behind much of the new media behind it. The United States Government has refused to copyright its work, such that any laws or legal materials created by the United States Government are, to the extent that they are available, freely usable as verbal material, freely distributable to the extent their secrecy is not otherwise ensured, and freely malleable as verbiage without constituting violations of copyright law. 18 An analogous subset of programming exists, under which source code is made freely available. The operating instructions, like laws, are only fully understandable-even to experts-when they are available for scrutiny. Were bad laws concealed from the public eye, people might still be subject to an arbitrary or draconian restriction, but without access to the law itself, could not under15 Visual Persuasion Project Home, http://old.nyls.edu/pages/2734.asp (last visited Feb. 25, 2010). 16 Richard K. Sherwin, Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, 12 S.U. J. Sci. & Tech. L. 227, 236-37 (2006). 17 Id. at 263. 18 17 U.S.c. §105 (2009).

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stand, challenge, or work to correct it. What is known as "Free Software" is actually, unlike federal government materials, typically protected by copyright, and usable only by adoption of a strict license. 19 It is the particular terms of these free software licenses that resemble in effect the non-copyright status of federal laws; the Free Software Foundation describes the intended outcomes of their licenses as a set of "four freedoms": First, Freedom Zero is the freedom to run the program for any purpose, any way you like. Freedom One is the freedom to help yourself by changing the program to suit your needs. Freedom Tho is the freedom to help your neighbor by distributing copies of the program. And Freedom Three is the freedom to help build your community by publishing an improved version so others can get the benefit of your work. 2o A distribution scheme for visual legal resources should strive to embrace these four freedoms, inasmuch as they are relevant. The goal of illustrating laws is to make them accessible in order that jurists can better ply their trade, and laypeople can better understand their expectations. Indeed the freedoms for which free software strives are inspired in part by an expectation of liberty in access to laws. 21 Respectful of the relationships between new media and freedom, and between freedom and laws, a new media legal authority that stiffens the final link in the circle between laws and new media would benefit from an observation of the means by which the freedom of new media operating instructions is ensured - to wit, the four freedoms, each of which can define both the literal form the authority is to take and the jurisprudential effects the authority should strive to achieve. IV.

THE "FOUR FREEDOMS" AND THE JURISPRUDENTIAL EFFECTS THEY BEG OF A NEW MEDIA LEGAL AUTHORITY

A.

The Freedom to Know

The first freedom, the freedom to run the program for any purpose, might be adapted to legal thought as the freedom to use applicable laws. While a new media legal authority would be encouraging frivolous lawsuits if it literally encouraged the use of laws for any purpose, the gist of this freedom is ownership 19 Lawrence Lessig, Introduction to RICHARD M. STALI.MAN, FREE SOFTWARE, FREE SOCIETY 12 (2002). 20 RICIIAIW M. STALLMAN, FREE SOFIWARE, FREE SOCIETY 65 (2002). 21 Lessig, supra note 19 (""Free software" would assure that the world governed by code is as

"free" as our tradition that built the world before code. For example: A "free society" is regulated by law. But there are limits that any free society places on this regulation through law: No society that kept its laws secret could ever be called free. No government that hid its regulations from the regulated could ever stand in our tradition. Law controls. But it does so justly only when visibly. And law is visible only when its terms are knowable and controllable by those it regulates.... ").

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over the operating instructions that affect yoU. 22 "[W]hether you run or change a program I wrote affects you directly and me only indirectly.,,23 In the same sense that a programmer may not use all of his published programs, lawmakers often prescribe expectations to which they themselves are not subject. If the lawmaker lacks ownership of a law because he is not affected by it, and the person whom a law directly affects lacks ownership over it because he is unaware, or misunderstands it, the law lacks the guidance of those it governs, and can become - or indeed, it can begin - out of touch with reality.24 The analogy from free software is the much derided proprietary software notion of "security through obscurity," which suggests that software can provide greater security if its source code is hidden, despite the fact that a visible source code enables quick patching of flaws, bugs, and vulnerabilities in one of the most sensitive areas of computing. 25 Just as the Sixth Amendment guarantees a public trial and laws such as the Government in the Sunshine Act and FOIA seek to ensure that laws and their operations are technically accessible, a new media legal authority should seek to ensure that they are meaningfully accessible. 26 The vital function of a new media legal authority in this regard is to promote its audience's awareness and understanding of the laws that affect it. The adapted freedom might be defined as the freedom to know when a law or legal authority applies to oneself. B.

The Freedom to Understand and Challenge

The second freedom, the freedom to adapt the program to your needs, might be adapted to legal thought as the freedom to make non-frivolous challenges to existing laws. 27 This freedom is tightly knit with the first; while only those affected by laws are able to understand them fully, the right to go to court to petition for a redress of grievances is meaningless if the law itself is so opaque as to 22 FED. R. c.v. P. 11(b)(2) (frivolous argument for extending laws can be grounds for sanctions ). 23 Stallman, supra note 20 at 49. 24 Lee 1. Strang. Originalism and the "Challenge of Change": Abduced-Principle Originalism and Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions, 60 HASTINGS L.1. 927, 933 (2009) ("Legal norms that do not fit the circumstances of their society cannot effectively coordinate the activities of the society's members."). 25 STEPHANIE FORREST ET AL., BlJlLDING DIVERSE COMI'lJTER SYSTEMS 5 (1997), http:// www.bennetyee.orglucsd-pages/Courses/cse190_A.s99/steph.ps ("Within computer security there is widespread distrust of security through obscurity for example. proprietary cryptographic algorithms that are kept secret on the grounds that publishing their algorithms would weaken their security. Such distrust is warranted proprietary cryptographic algorithms, once revealed, often turn out to have serious flaws."). 26 Act of Aug. 31, 1976, Pub. L. 94-409, 1976 U.S.C.C.A.N. 2183, 2186, citing TIlE FEDERALIST No. 49 ("the people are the only legitimate foundation of power, and it is from them that the constitutional charter ... is derived.' Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalr'). 27 FED. R. c.v. P. t1(b)(2).

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discourage grievances from being raised in the first place.28 Those affected by a particular law need a way of understanding the logic behind that law in order to determine whether it should be challenged as being out of touch with reality. The second adapted freedom might be defined as the freedom to understand the justice, and challenge the injustice of the laws that affect oneself.

c. The Freedom to Communicate Legal Information The third freedom ("freedom two"), the freedom to distribute copies to help one's neighbor, might be adapted to legal thought as the freedom to discuss laws and legal concepts. While this may seem an inane provision in a country whose constitution guarantees free speech, lawyers, the experts in laws and legal concepts, are sometimes reluctant to discuss legal issues with the general public for fear of creating an attorney-client relationship, which could subject them to liability.29 To minimize this liability while attempting to facilitate the use of new media to communicate legal concepts to interested laypeople, attorneys must avoid offering advice "tailored to the unique facts of a particular person's circumstance".30 The challenge lies in providing relevant, but not tailored information. Those who know the law need a way of easily communicating it to those who need to know it without exposing themselves to liability. This form of communication will be discussed in the next section. The third adapted freedom might be defined as the freedom of jurists to communicate relevant legal information to those who need it. D.

The Freedom to Build Communities Around Legal Interpretation

The fourth freedom ("freedom three"), the freedom to distribute copies of one's changes to help the community, might be adapted to legal thought as the freedom to discuss and advocate non-frivolous challenges to existing laws, and to associate in communities focused around achieving those challenges. The value of community to free software is tremendous, in that it focuses significantly more critical eyes on the set of operating instructions; testing has shown that the community approach of free software produces the most reliable programs. 31 The lawyer's secretive posture is suited to an adversarial court system, but is out of 28 BE & K Const. Co. v. N.L.R.B. 536 U.S. 516, 525 (2002) ("the right to petition extends to all departments of the Government," and that "[t]he right of access to the courts is ... but one aspect of the right of petition." (citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508,511 (1972»). 29 MOJ)EI. RULES OF PROF',- CONJ)ucr R. 4.3 (2004); see also Judy M. Cornett, The Ethics of Blawging: A Genre Analysis, 41 Loy. U. CIII. LJ. 221, 261 (2009) (admonishing against provision of legal advice in "blawgs"). 30 D.C. Bar Legal Ethics Comm., Ope 316 (2002), available at http://www.dcbar.orglfoclawyersl ethics/legal_ethics/opinionslopinion316.cfm. 31 Stallman, supra note 20, at 169.

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step with the demands of a critical community wherein open dialogue helps to refine a set of operating instructions to more reliably produce a desired outcome. Where the fecundity of software freedom is the refusal of its community to ever be satisfied with its products, the interest of judges and lawmakers in the status quo poses a high obstacle. Where legislatures wind up deadlocked and bound to concede meaningful improvements in favor of scoring a putative victory, perhaps a community of concerned laypeople acting solely out of passion and interest in improving the operating instructions that most affect their work can develop meaningful alternatives. Where courts and legislatures are immovable, a new media legal authority needs to fiercely promote discourse toward the improvement of laws. The fourth adapted freedom might be defined as the freedom to discuss, share and contribute to the improvement of ideal laws, and to generate communities.

v.

THE "FOUR FREEDOMS" AS STRUCTURAL PRINCIPLES OF A NEW MEDIA LEGAL AUTHORITY

A.

Dissemination of Legal Information

The first freedom, the freedom to run for any purpose, will define the access the public will have to the new media legal authority; it will be available to anyone regardless of expertise, interest in a particular area of law, or in law at all. Using the resource should be as free and unfettered as possible. While making comments and submissions may require some minimum amount of identifying information, too much already stands between the average person and an understanding of the laws that affect him.32 The first principle of a new media legal authority is that it must disseminate legal information as freely as possible. B.

Organization by Circumstances Rather than Laws

The second freedom, the freedom to adapt the program to your circumstances, will define the authority's organizational interface. A person without a background in law, rather than questioning whether a given cause of action would apply, might begin a search for a piece of legal understanding from the knowledge that her particular set of circumstances seem to imply some legal recourse. An authority directed at enriching the legal understanding of laypeople should not be divided into categories according to subjects taught in law schools, but according to real life circumstances as they are likely to arise. The second princi32 Thomas o. Rice, The Public's View of the Law, 71 N.Y. ST. BJ. 5, 5 (1999). See also Kimberlianne Podlas, Impact of Television on Cross Examination and Juror "Truth ",14 WJI)ENER L. REV. 479. 498-99 (2009) (S500-01s' opinion of laws and legal procedures more likely to be confused by television than aided by it).

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pIe of a new media legal authority is that it must be organized according to categories of real-life experience rather than - or in addition to - areas of law.

c. Liberal Attribution Licensing The third freedom, the freedom to freely copy and distribute, will define the new media legal authority's licensure. Because laws and the systems behind them affect everyone and have the power to terminate one's freedom, family, and life, a resource successfully making laws cognitively accessible is of tremendous value. To hold content of this value without making it available freely would be a tragedy. The licensure scheme for the authority should ensure the widest possible audience. Because commercial distribution reaches a wide market, licensing the authority'S content under a noncommercial license could exclude an important portion of the interested public. Where availability is the goal, the content should be "free as in speech, not free as in beer".33 Similarly, a requirement that derivative works be shared under the same license precludes penetration of the illustrative content into markets interested in using other licenses; the disappointment of not having your license reserved in derivative works is eased by the knowledge that the license remains intact on your original copyrighted work. 34 The third principle of the new media legal authority is that it must be published under a license that permits republishing, commercial use, and the creation of derivative works, but requires an attribution directing the user of derivative or republished works back to the authority. D.

Community Critique and Contributions

The fourth freedom, the freedom to benefit the community by sharing your changes, will define the authority'S responsiveness to user generated content and critique. While editing of visual illustrations is not yet feasible in a wiki-type environment, the form of the authority should reflect an intent to mimic that functionality as nearly as is realistic. The fourth principle of new media legal authority is that it must accept user generated content and critique to facilitate adaptation and collaboration. VI.

SUMMARY OF THE NEW MEDIA LEGAL AUTHORITY'S FORM AND FuNcnON

It should not surprise the reader at this point that the basic form for a new media legal authority envisioned by this note is a website. According to the prin33 Stallman, supra note 20, at 43. 34 Creative Commons, Frequently Asked Questions, Fequently_Asked_Questions (last visited May 3, 2010).

http://wiki.creativecommons.org!

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ciples and freedoms defined above, this website should have the following characteristics: • •

• • •

it should accept illustrations of laws and legal concepts from anyone willing to license them for the authority's use; it should facilitate open and meaningful critical discussion of those illustrations so that their understandability and applicability can be improved; it should guide users to the illustrations best suited to their own circumstances; it should facilitate broad dissemination of useful illustrations both in its form and in its licensure; it should promote itself by being effective, so that disseminated materials lead users back to the authority.

While it is important that the authority empower its users by having a lenient submission policy, it must also meaningfully identify the usefulness of the illustrations it publishes. In order for the website to take on the character of a respected authority, jurists at the organization maintaining it will need to actively mediate and assess the illustrations submitted. The authority must engage its users as meaningful co-producers; it can only do that to the extent that it respects those users by providing them with an easy way of identifying valuable, meaningful illustrations, and clearly distinguishing them from illustrations in need of revision. Those illustrations which need revision will benefit tremendously from vibrant discussion. Each illustration should be accompanied by a discussion forum permitting contributors from legal and nonlegal backgrounds alike to comment on the value of the illustration to understanding of the legal concept depicted. To focus the discussion, jurists at the maintaining organization should comment regularly on illustrations in need of revision, in order that the authors of those images, or other readers, could reconfigure the illustration to most effectively communicate the intended legal concept. To this end, the maintaining organization should develop a set of criteria by which to assess illustrations tailored to generating clear, authoritative work. I suggest the following: 1) Conceptualization: How completely does the visual material imagine the logical connections between elements or steps of the law or legal concept depicted? How much of the proverbial elephant would the proverbial blind men perceive? 2) Boundaries: Does this image make clear the extent of the applicability of the legal concept? How easily could a person use this image to determine whether the law or legal concept applies to him? 3) Judicial Splits, Conflicts, and Unsettled Law: Does the image clarify areas where an individual might expect a different outcome on the basis of

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procedural differences? Does it illustrate the logic behind competing interpretations? 4) Communicative Efficacy: Is the visual material something you could readily call to mind for reference in court, or while sitting for the bar? 5) Dissemination of Knowledge: Would a non-lawyer feel more comfortable with the concept after seeing the visual material? Is it something an interested layperson could remember, describe, or reproduce for the benefit of others? 6) Social Justice Subject Matter: How relevant to social justice and public interest is the subject matter depicted? Does the material illustrate legal concepts relevant to folks who can't afford their own attorneys? If it appears not, what could make it relevant?35 By applying these criteria, editors from the maintaining organization can direct the conversations surrounding visual materials toward meaningful revisions, and inspire further discourse. In order for meaningful illustrations to reach the greatest number of people they would benefit, the authority as a whole should be available under a Creative Commons Attribution license, which will enable reuse and adaptation of the content on the condition that users provide attribution leading back to the authority.36 Because the biggest challenge to the efficacy of the authority will likely be the digital divide, free reproducibility of the authority's material in any media will help ensure that the authority's material can appear in media that reaches those who need it. 37 VII.

THE MAINTAINING ORGANIZATION

The ideal organization to maintain the new media legal authority imagined in this note would be the University of the District of Columbia David A. Clarke School of Law (DCSL); DCSL is uniquely focused on the public interest, populated by dedicated legal scholars, accessible to artists and system administrators, proximate to important legal resources, and eager to distinguish itself. Indeed, DCSL has approved an organization - still in its infancy - whose goal is the main35 Memorandum from Nicholas Clark to Katherine S. Broderick, Dean, UDC David A. Clarke School of Law (Nov. 17,2009). 36 Creative Commons, Attribution 3.0 United States, http://creativecommons.orgllicenses/by/3.0/ (last visited May 3, 2010). 37 See Press Release, Creative Commons, Developing Nations Copyright License Frees Creativity Across the Digital Divide (Sept. 13, 2004), available at http://creativecommons,orglpress-releaseslentry/4397 (discussing a license targeted at the digital divide between developing and developed nations. Because the digital divide the new media legal authority faces is primarily social rather than geographic, differential treatment of licensees is neither expedient nor helpfuL).

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tenance of such an authority.38 The youthfulness of DCSL is a rare blessing, in that the vision and passion that informed the creation of the institution and its predecessors persists, most conspicuously embodied in the person of Edgar Cahn, who, along with his late wife Jean founded the school and composed the credo reprinted in the appendix - that informs its mission. The mission embodied in this credo, together with the need for "legal education [to] adapt to the contingencies of technology and the emerging vernacular of digital culture and the digital mind,,39 demand the creation at DCSL of an authority critically assessing visual illustrations of law and legal knowledge. This authority will provide unambiguous information to interested laypeople, help to break the lawyer's monopoly, and let those who use it know that which is expected of us and that which we can expect of others. The credo's penultimate stanza emphasizes the Cahns' passion for co-production, a model Edgar has promoted and developed into systems, economies and infrastructures empowering poor people around the world.4o Put simply, no one likes to feel useless, and traditional welfare systems treat apparent uselessness as a person's only value. 41 Co-Production, like free software, emphasizes the good that comes of connecting people with distinct skills and perspectives to tackle one another's problems. In fact, Edgar Cahn has defined a set of four core values for Co-Production that echo the Four Freedoms' ethos of communities: • •





Assets: The real wealth of this society is its people. Every human being can be a builder and contributor. Redefining Work: Work must be redefined to include whatever it takes to rear healthy children, preserve families, make neighborhoods safe and vibrant, care for the frail and vulnerable, redress injustice, and make democracy work. Reciprocity: The impulse to give back is universal. Whenever possible, we must replace one way acts of largesse in whatever form with two-way transactions. "You need me," becomes "We need each other." Social Capital: Humans require a social infrastructure as essential as roads, bridges, and utility lines. Social networks require ongoing investments of social capital generated by trust, reciprocity, and civic engagemen t. 42

The relationships between these principles and the four freedoms are so striking as to suggest that there may be something elemental and universal about the 38 Interview with Kemit Mawakana, Faculty Advisor, UDC-DCSL Journal of Legal Illustration (Mar. 17, 2010). 39 Sherwin, supra, note 16, at 259-60. 40 EDGAR S. CAHN, No MORE THROW-AWAY PEOPLE, at xvi-xvii (2004). 41 Id. at 28-29. 42 Cahn, supra note 40, at 24.

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values they both describe. Indeed, it is somewhat in keeping with the notion of Co-Production that inherent in both is the notion that the value of the individual is her capacity and tendency to contribute to the community. CONCLUSION

New media has revolutionized the individual's capacity to contribute to communities by destroying geographic barriers between skills and needs. This is especially true of abstract work that can be wholly transmitted electronically. As long as there are individual needs, there will be needs for communities. As long as there are laws to regulate behavior, there will be a need for explanations of legal concepts. As jurists at an institution uniquely dedicated to justice, the students and faculty at the David A. Clarke School of Law have an obligation to see that a future increasingly defined by visual media can also shepherd communication in a way beneficial to the cause of justice, and to all who come to the community to contribute from their passion, to receive what they need, to discuss how more needs can be met and more contributions can be offered. With the speed and inexpensiveness of new media behind us, with a world of potential contributors around us, and the establishment of an organization to maintain a new media authority of visual legal illustrations, the David A. Clarke School of Law is poised, through the principles of Co-Production as embodied in free software, to enrich our understanding by welcoming our skills and knowledge.

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APPENDIX Edgar Cahn and Jean Camper Cahn, This I Believe (1977) (unpublished credo, on file with Edgar Cahn).

This I Believe I believe the day will come when rich and poor will stand equal before the law And I believe the day will come when Black and White Hispanic, Asian and Native American, Young and old, man and woman will stand equal before the law This I believe And I believe the day will come when the monopoly over law and legal knowledge - the lawyers' monopoly the law schools' monopoly - will be broken When men and women and yes, even children will know that which is expected of them and that which they can expect of others: to refrain from harm to honor their word to respect the dreams of others and the right of others to dream in their own way This I believe And I believe that the day will come when courts of law will be courts of justice, courts for people, not courts for lawyers above all, courts to render simple justice, to see that promises are honored that the injured are made whole that the weak are protected from the powerful and the greedy This I believe For in the fullness of time, I must believe that the voices of love shall prevail over the voices of hate and the forces of justice shall triumph over the forces of injustice and inhumanity This I believe But in the here and now, there can be no safety, no guarantees and no easy way. At each point, our faith will be tested and when weighed in the balance, if we are honest, our best efforts will be found wanting This is true, this I believe

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And so, all that we have, in the here and now is our love for each other, our willingness to forgive each other, our willingness to come to each other's rescue, and our unwillingness to stand by silent or passive in the face of injustice. This is my belief, this is our joint belief and this we shall try to honor so long as life and breath permit.

THE CHILD ONLINE PRIVACY PROTECTION ACT: THE RELATIONSHIP BETWEEN CONSTITUTIONAL RIGHTS AND THE PROTECTION OF CHILDREN Sasha Grandison* INTRoDucnoN

The Internet was introduced to the world in the early 1990s and it is now one of the leading sources of information. 1 The world popUlation is estimated at around 6.7 billion people and approximately 1.5 billion people are internet users.2 Of the 1.5 billion Internet users, the United States has 225 million people who use the Internet, which is second only to China. Second only to China in the number of Internet users, the United States has 225 million users.3 The Internet makes distances between states shorter and allows access to the global community with the click of a mouse. It provides a forum for the dissemination of information and ideas and "has gone from being a curiosity to being a daily source for e-mail, shopping, research and news.,,4 But like all other technological advancements, the Internet poses serious risks. "The Internet and computers have come to playa growing role in sex crimes that are committed against children and youth.,,5 Approximately one in seven children receives sexual solicitation on the Internet, and four percent of children are contacted offline by solicitors.6 A child is not only at risk from encountering sexually explicit material on the Internet, but also at risk of being lured by online predators to reveal personally identifiable information. Children often times do not understand the consequence and the impact of revealing personal information on the Internet about themselves and their families. Revealing personal information may lead to offline sexual solicitation and identity theft. 7 In 1998, Congress enacted the Child Online Privacy Protection Act ("COPPA" or "Act") to combat the dangers that the Internet posed. s To comply with

*

J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law 1 Internet and World Stats, Usage and Population Statistics, http://www.internetworldstats.com (last visited March 26, 201 0).

2 Id. 3 Id. 4 Jennifer Zwick, Casting a Net Over the Net: Attempts to Protect Children in Cyberspace, 10 SETON HALl. CONST. L. J. 1133, 1133 (2000). 5 JANIS WOI.AK ET AI.., INTERNET SEX CRIMES AGAINST MINORS: TilE RESPONSE OF LAW ENFORCEMENT vii (Univ. of N.H. 2(03), available at http://www.unh.edu/ccrclpdf/CV70.pdf. 6 JANIS WOLAK ET AI.., ONLINE VICI'IMIZATION OF Youm: FIVE YEAH.s LATER vii-t (Univ. of N.H. 2(06), available at http://www.missingkids.com/en_US/publications/NC167.pdf. 7 See supra note 5. 8 Children's Online Privacy Protection Act of 1998 § 6551, 15 U.S.C.A. § 6501 (2000).

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COPPA, "a website operator cannot collect or disclose personally identifiable information from a child without getting prior verifiable parental consent from the child's parent.,,9 While COPPA attempts to protect the privacy of children on the Internet, many critics argue that the Act infringes upon the constitutional rights of children. lO The interplay in COPPA between constitutional freedoms and the protection of children reaches equilibrium as Congress addresses privacy concerns on the Internet in the Act. This paper will analyze the constitutionality of the COPPA and its ability to remedy the conflict between a child's freedom of expression and the protection of a child's privacy on the Internet. Part I details the requirements of the COPPA and examines the history of privacy law. Part II analyzes failed Congressional legislation that attempted to protect children on the Internet. Part III explores the constitutional rights of children and determines whether the COPPA infringes upon those rights. I.

A.

COPPA AND THE PRIVACY IMPLICATIONS

The Child Online Privacy Protection Act

The Internet poses "unique privacy and safety concerns because of the particular vulnerability of children, the immediacy and ease with which information can be collected from them, and the ability of the online medium to circumvent the traditional gate keeping role of the parent."t t Just over a decade ago, it was possible to buy and receive information about children, including their name and location. 12 Marketers would collect personal information from children through chat room registrations, discussion boards, and promising gifts. 13 The personal information received from the children was then organized in a database and sold to third parties.t 4 In fact, in 1995, a Los Angeles television station, for only $277, obtained a detailed printout of the ages and addresses of approximately 5,500 children in Pasadena. ls The station wanted "to prove how easy it is for pedophiles to obtain mailing lists of kids.,,16 9 Nancy L. Savitt, Comment, A Synopsis of the Children's Online Privacy Protection Act, 16 ST. JOliN'S L. REV. 631 (2002). 10 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights, 12 COMM. L. & POI.'Y REV. 119, at 3 (2007). 11 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights, 12 COMM. L. & POI:Y REV. 119, 123 (2007). 12 ELECfRONIC PRIVACY INFORMATION CENTER, The Children's Online Privacy Protection Act, http://epic.orglprivacy/kids/ (last visited March 27, 2010).

13 14 15 16

Jd. Jd. Jd. Jd.

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Following growing concerns regarding the online privacy of children, the Federal Trade Commission ("FTC") began to hold public forums in which privacy advocates, Internet industry representatives, and the public discussed issues concerning the protection of children on the Internet. 17 Subsequently, the FTC conducted a survey of 1,400 popular web sites in the spring of 1998, and found that out of the 1,400 sites surveyed, 212 of them were websites that targeted children. IS The compiled data revealed that: (1) 85% of the total websites collected personal information; (2) the majority of the children websites collected personal information from children; and (3) only a few of the children websites posted an adequate privacy pOlicy.19 Armed with this information, the FTC reported its findings to Congress. On October 21, 1998, the COPPA was enacted. In proposing the COPPA, the four goals addressed were: (1) to enhance parental involvement in a child's online activities in order to protect the privacy of children in the online environment; (2) to enhance parental involvement to help protect the safety of children in online fora such as chatrooms, home pages, and pen-pal services in which children may make public postings of identifying information; (3) to maintain the security of personally identifiable information of children collected online; and (4) to protect children's privacy by limiting the collection of personal information from children without parental consent. 20

Essentially the COPPA was designed to address two central problems: too much solicitation aimed at children and "collection of [p ]ersonal [i]nformation from children that is shared with advertisers and marketers" and "sharing information with online predators who could use it to find them online.,,21 The requirements of the COPPA address the privacy and safety concerns children face with Internet use. The COPPA requires operators of websites directed at children under the age of thirteen and operators who have actual knowledge that they are collecting personal information from children, to post a link to a "notice of its information practices on the home page of its website or online service and at each area where it collects [p]ersonal [i]nformation from chil17 Simmons, supra note 9, at 122. 18 Id.at 123. 19 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights, 12 COMM. L. & POL'y REV. 119, n. 8 at 3 (2007). 20 144 CONGo REc. S11657 (daily ed. Oct. 7, 1998) (statement of Rep. Bryan). 21 Melanie L. Hersh, Is COPPA a Cop Out? The Child Online Privacy Protection Act as Proof that Parents, Not Government, Should Be Protecting Children's Interests on the Internet, 28 FORDHAM URB. LJ. 1831, 1853-55 (2001).

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dren. ,,22 Personal information includes the child's full name, home address, email address, telephone number, or "any other online identifier where you can communicate directly with the child.,,23 The Act also requires an operator or service provider to obtain verifiable parental consent before collecting, using, and disclosing personal information from children. The degree of consent is based upon what is subsequently done with the collected information. If the site desires to share the collected information with a third party, "the consent has to be of a much higher order.,,24 The COPPA also prohibits "children focused internet sites" from conditioning "participation on the site on requiring the disclosure of more personal information than necessary to participate. ,,25 In addition to personal information, hobbies, interests, and information collected through the use of "cookies" are covered by the Act. 26 "Cookies are a general mechanism" which computer programs use to "both store and retrieve information on the client side of the connection," in effect allowing a "web site to record your comings and goings, usually without your knowledge or consent.,,27 Collection of data for purposes of the Act not only includes data that children knowingly give a website, but also data that a child publicly discloses online. 28 The COPPA contains several exceptions to its rules, including a "safe harbor" provision. 29 Parental consent is not required in situations where an operator collects an e-mail address to respond to a one-time request from a child and then deletes the email address or when an operator collects a child's or parent's e-mail address to provide notice and seek consent.30 The COPPA also grants a "safe harbor" to any operators that create self-regulatory programs to govern participants' compliance with the ACt.31 The COPPA's stringent rules serve an important governmental interest but there are serious concerns about the impact of COPPA on small websites, the parental consent requirement, and the undue burden it places on the Internet community.J2 These concerns will be addressed subsequently in Part IV of this 22 FEDERAL TRAI)E COMMISSION, How TO COMI'LY WITII TilE CHILDREN'S ONLINE PRIVACY PROTEcnON RULE 1 (2006), available at http://www.ftc.govlbcp/edu/pubslbusiness/idtheftlbus45.pdf. 23 Savitt, supra note 8, at 632. 24 Id. at 636. 25 Hersh, supra note 21, at 1855-56. 26 Id. at 1852. 27 Electronic Privacy Information Center, Cookies, http://epic.orglprivacy/internet/cookies/ (last visited on March 29, 2010). 28 Savitt, supra note 9, at 632. 29 FEDERAL TI~ADE COMMISSION, supra note 22, at 5. 30 Id. at 3. 31 Hersh, supra note 21, at 1856; See also How to Comply with the Children's Online Privacy Protection Rule, supra note 24, at 5. 32 Hersh, supra note 21, at 1856.

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paper. However, a brief examination of privacy law will lay the foundation to address the COPPA and its constitutional implications. B.

Privacy

Adults have become increasingly concerned about access to personal information over the Internet and one's right to privacy. This concern is even greater for children who are susceptible to being exploited and tricked over the Internet. Privacy advocates and Internet operators have noted five primary privacy concerns over the Internet; "the selling of information, the theft of personal data by third parties, the loss of Personal Information, the destruction of data by hackers, and the presence of spam. ,,33

1.

Background

The right to privacy is not expressly enumerated in the U.S. Constitution. The right first gained recognition at the hands of a law review article written by Louis D. Brandeis and Samuel Warren. 34 Brandeis and Warren argued that privacy laws were based upon the right "to be let alone. ,,35 Then, in 1960, William Prosser identified the modern right to privacy torts: publicly disclosing private facts, depicting a person in a false light, commercial exploitation of a person's name or likeness, and intruding physically or technologically into a person's solitude.36 Although there is not an express grant of the right to privacy in the Constitution, the Supreme Court has established and recognized, through a long line of cases a number of privacy rights. The Court traced privacy rights to the First Amendment, the Fourth and Fifth Amendments, the Ninth Amendment, and in the "concept of liberty guaranteed by the first section of the Fourteenth Amendment.,,37 This group of privacy rights include: the right to marry38, the right to

33 Simmons, supra note 9, at 122. 34 MARC A. FRANKLIN ET AL., MASS MEDIA LAW: CASES AND MATElUAU, 365 (Foundation Press 2005) (1995). 35 Simmons, supra note 9, at 121. 36 [d. 37 Roe v. Wade, 410 U.S. 113, 152 (1973) 38 Loving v. Virginia, 388 U.S. 1, 8 (1967) (the Supreme Court invalidated a miscegenation statute that prevented marriages between persons based on racial classifications. The Court stated that the freedom to marry "has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.").

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have children39, the right to direct the education and upbringing of one's child40, and the right to abortion.41 2.

Children's Right to Privacy

With the advent of computers and the Internet there has been a surge of privacy law developments in the United States. Many of the new laws were a product of the need to control "access to and use of routine information about individuals- name, address, telephone number, social information, credit card number, etc.,,42 The protection of informational privacy continues to be a hotly debated issue. Yet, a majority of commentators agree that a child's informational privacy is grouped with the privacy right of their parent.43 The Family Educational Right to Privacy Act ("FERPA") provides that parents have control over the collection, maintenance, and use of information contained in their children's educational records. 44 On the other hand, however, in several cases the Supreme Court recognized a child's right to privacy. In Vernonia School District 47j v. Acton45 and New Jersey v. T. L. 0. 46 the Supreme Court recognized a child's right to privacy, but the Court noted that the right could be curtailed in special settings. 47 In Vernonia, the Court stated that "the Federal Constitution's Fourth Amendment does not protect all subjective expectations of PRIVACY, but only those that society recognizes as legitimate; what expectations are legitimate varies with context. ,,48 Minors possess constitutional rights akin to adults. 49 However, "still today, unemancipated minors lack 39 Skinner v. State of Oklahoma, 316 U.S. 535, 536 (1942) (the Supreme Court held that a statute that required the operation of vasectomy be performed on a defendant who was labeled a habitual offender was unconstitutional. The Court noted that the statute deprived individuals of the basic "right to have offspring."). 40 See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (the Supreme Court promulgated the doctrine that parents and guardians have a liberty interest in directing the upbringing and education of children under their control). 41 See Roe, 410 U.S. at 113 (held that a state may only regulate abortion after the end of the first trimester of a woman's pregnancy for justifications reasonably related to the mother's health. Once the pregnancy is at the stage of viability, the state may regulate and even prohibit abortion procedures except where the mother's life or health is in danger. Prior to the end of the first trimester, the decision to have an abortion is solely up to the woman and the medical judgment of the attending physician); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (affirmed the central holding of Roe v. Wade, but introduced a new test; undue burden test, to evaluate abortion regulations before the viability of a fetus). 42 FRANKI.IN, supra note 36, at 366. 43 Ginsberg v. New York, 390 U.S. 629 (1968). 44 Zwick, supra note 4, at 1143. 45 Vernonia Sch. Dist. 47j v. Acton, 515 U.S. 646 (1995). 46 New Jersey v. T.L.O., 469 U.S. 809 (1984). 47 [d. 48 Vernonia, 515 U.S. at 654. 49 See, e.g., Vernonia, 515 U.S. at 646; T.L.O., 469 U.S. at ?

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some of the most fundamental rights.. .including the right of liberty ... to the control of their parents or guardians.,,5o Thus, a child's constitutional rights, including the right to privacy, can be diminished or lessened. Students in a school setting have "a lesser expectation of privacy than members of the population generally.,,51 Specifically, a school setting permits "a degree of supervision and control that could not be exercised over free adults.,,52 II.

HISTORY OF LEGISLATION TO PROTECT CHILDREN ON THE INTERNET

COPPA is not Congress' first attempt to protect a child's safety and welfare on the Internet. The Communications Decency Act ("CDA") and the Child Online Protection Act ("COPA") were enacted by Congress to address the detrimental effects that sexually explicit material can have on children. 53 In spite of the government's significant interest, both the CDA and the COPA were found to be unconstitutional. 54 A.

Communications Decency Act

Congress enacted the CDA in 1996, which was a section of the Telecommunications Act of 1996. "lbe CDA endeavored to make illegal any telecommunications contact that was intended to send indecent and obscene materials to minors.,,55 A specific provision of the CDA prohibited the transmission of any communication which is obscene or indecent" with knowledge that the recipient is under eighteen years of age. 56 The Act also provided that a party cannot knowingly transmit or display any communication that depicted or described patently offensive and sexual or excretory activities or organs to minors.57 Immediately following the enactment of the CDA, the act faced extreme backlash from the legal community. Groups like Morality in Media, the American Family Association, and the Department of Justice expressed concerns over the First Amendment and privacy rights threatened by the act. 58 The Center for Democracy and Technology stated that the Act, "threatened the very existence of the Internet as a means for free expression, education, and political discourse.,,59 Vernonia, 515 U.S. at 654. Id. at 657 (quoting New Jersey v. T.L.O., 469 U.S. at 348). 52 Id.at 646. 53 Communications Decency Act, 47 U.S.c. § 223 (1996); Child Online Protection Act, 47 U .S.c. § 231 (1998). 54 Reno v. ACLU, 521 U.S. 844 (1997); ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). 55 Hersh, supra note 22, at 1847. 56 47 U.S.c. § 223(a) (1) (8) (1996). 57 Id. § 223(d) (1) (8). 58 Free Speech: The Communications Decency Act- Legislative History, Center for Democracy & Technology, (2007), http://www.cdt.orglspeech/cdalcda.shtml. 59 Communications Decency Act (CDA), Center for Democracy & Technology, http:// www.cdt.orglgrandchild/cdal (last visited March 31, 2010). 50 51

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The American Civil Liberties Union (ACLU) challenged the CDA, arguing that "the provisions that banned 'indecent' and 'patently offensive'" speech transmitted online were unconstitutional. 60 The ACLU believed that the terms were too vague for "Internet users to rely on when making sure their communications stay in line with the CDA. ,,61 The Act did not define 'indecent' and 'patently offensive' nor were the terms distinguished within the statute.62 The Supreme Court ultimately agreed with the ACLU. In Reno v. ACLU, the Court held that the CDA was unconstitutional because it was facially overbroad and violated the First Amendment. 63 The Court found that the CDA's terminology was "vague and inconsistent," the act was unconstitutionally broad, and "had the effect of limiting communications to which adults were constitutionally entitled. ,,64 The Court reasoned that the vagueness of the provisions that banned "indecent" and "patently offensive" speech would "lead to a chilling effect on people's expressions through the Internet since the CDA imposed criminal punishments.,,65 Accordingly, the CDA failed to meet the second part of the strict scrutiny test because the ambiguity of the terms demonstrated the statute was not narrowly tailored. B.

The Child Online Protection Act

After the CDA was deemed unconstitutional, Congress enacted the COPA to remedy the problems that were left unresolved by the Act. Referred to as "CDA II" or "Son of CDA," the COPA was passed in 1998 as part of the Omnibus Appropriations Act for the Fiscal Year 1999.66 Like the CDA, the COPA was aimed at determining if material transmitted over the Internet was harmful to minors and therefore illegal and punishable as a crime.67 To resolve the problems cited in Reno, the COPA's focus was narrowed. 68 The Act only: (1) applied to online speech for commercial purposes, (2) applied to material displayed on the World Wide Web, and (3) restricted access to materials that were harmful to minors.69 60 Hersh, supra note 21, at 1847. 61 Steven E. Merlis, Preserving Internet Expression While Protecting Our Children: Solutions Following Ashcroft v. ACLU, 4 Nw. J.TECII & INn~LL. PROP. 117 (2005). 62 Id. at 120. 63 Reno v. ACLU, 521 U.S. 844 (1997). 64 Zwick, supra note 4, at 1137-38. 65 Merlis, supra note 61, at 119. 66 Zwick, supra note 4, at. 1143. 67 See, Kerry Di Gioia, Regulation of Speech on the Internet and the First Amendment: Should the Government Be the Primary Protector of Children from Harmful Material on the Internet?, 29 OKLA. CITY U.L. REV. 617, 621 (2004). 68 Hersh, supra note 21, at 1838. 69 Simmons, supra note 9, at 6.

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Like its predecessor, the COPA was challenged on grounds that it infringed upon constitutional free speech rights?O In 2000, the Third Circuit Court of Appeals upheld a lower court decision holding that the community standards test in COPA rendered the statute unconstitutionally overbroad.71 In Miller v. California, the test for obscenity was solidified.72 The Supreme Court held that "a contemporary standards test should be used to determine what materials are obscene. ,,73 The Third Circuit Court later articulated that "a community standards test would require every Web communication to abide by the most restrictive community standards, which is not a constitutionally permitted burden on free speech. ,,74 Following the Third Circuit decision, the government sought and obtained certiorari. After several appeals and additional rulings from the Third Circuit Court, the Supreme Court ultimately upheld the Third Circuit's ruling that the COPA may be unconstitutiona1. 75 The Supreme Court invalidated COPA because the government failed to show that the statute was the least restrictive means for the government to prevent minors from accessing harmful materials on the Internet. 76 The demise of the CDA and the COPA demonstrate the constant struggle between government regulation and constitutional rights. Protecting children's privacy on the Internet is a substantial governmental interest. Like COPA, however, the COPPA is also criticized for presenting similar constitutional issues. III:

CONSTITUTIONAL ASPECfS OF

COPPA

AND CHILDREN'S FREE

SPEECH RIGHTS

A.

Constitutional Rights of Children

The Supreme Court has rendered numerous decisions regarding the constitutional rights of children. An examination of these case holdings span the spectrum: many decisions hold that children have constitutional rights akin to adults, while others restrict the constitutional rights of children in certain settings. In In 70 ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). 71 See, e.g. ACLU, 217 F.3d at 162. 72 Miller v. California, 413 U.S. 15,24 (1973) (holding that obscene material is not protected by the First Amendment. The Court held that the test for obscenity is: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.) 73 Miller, 413 U.S. at 24; Sarah B. Evans, Hear No Evil, Speak No Evil: Protecting the Nation's Children From Sexually Explicit Material on the Internet, 13 TEMI'. POL. & CIV. Rrs. L. REV. 253, 255 (2003). 74 Evans, supra note 73, at 258. 75 Ashcroft v. ACLU, 542 U.S. 656 (2004). 76 Id.

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re Gault, the Supreme Court held that children possess the same constitutional rights as adults; "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.,,77 Dissenting in Wisconsin v. Yoder, Justice Douglas argued that children "are possessed of fundamental rights which the State must respect. ,,78 Nonetheless, the decisions provide insight into the constitutional implications of the COPPA. The notion of children possessing constitutional rights was further explored in Tinker v. Des Moines Independent Community School District.19 Middle school students were suspended from school for wearing black armbands to protest the Vietnam War. 80 The Supreme Court upheld the constitutional rights of the students to wear the black armbands in opposition to the war, noting that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.,,81 More notably, the Court extended the constitutional rights of children beyond the purviews of the school yard, proclaiming that "[s]tudents in school as well as out of school are 'persons' under the Constitution.,,82 Although the Court recognizes the constitutional rights of children, there is a long standing concept that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.,,83 The state has a legitimate interest in protecting the well-being of a child; however, the state's exercise of power to protect children must be done so as to "not make children second-class rights holders. ,,84 Thus, the constitutional rights of children may only be infringed upon in distinct situations. A 1986 case upheld a high school's suspension of a student for reciting a speech with sexual innuendos at an official school assembly.85 The Court found that the speech was not political and was "disruptive to the learning process fostered by the school setting.,,86 Therefore, the speech was not entitled to full protection of the First Amendment and the constitutional rights of children in the school environment were reduced. The Court pronounced the general rule that the "constitutional rights of students are not automatically coextensive with the rights of adults in other settings.,,87 77 78 79 80 81

82 83 84 85 86 87

In re Gault, 387 U.S. 1, 7 (1967). Wisconsin v. Yoder et aI., 406 U.S. 205, 226 (1971). TInker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969). Id. Id at 506. Id. at 509. Simmons, supra note 10, at 6. Simmons, supra note 10, at 6. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). Simmons, supra note 11, at 7. Bethel Sch. Dist., 478 U.S. at 680.

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Children's constitutional rights were further eroded in Hazelwood School District v. Kuhlmeier. 88 Here, the Court ruled that schools could censor student newspapers that are sponsored by the schoo1.89 Due to the fact that the "speaker" was the school itself, the Court concluded that the school had the right to "disassociate itself."9O Justice Burger identified three main rationales for restricting the constitutional rights of children: (1) the special vulnerability of children, (2) their lack of experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, and (3) the importance of parents' guiding role. 91 These rationales are applicable to both inside and outside the school setting. Consequently, they can be used to justify the restriction of a child's speech in other settings, such as on the Internet.

B.

Constitutionality of COPPA

Throughout the course of Congressional legislating to protect children on the Internet, there has been a struggle to find a balance between regulation of the medium and protection of constitutional rights of free speech. The COPPA further exemplifies how the government walks the fine line between regulation and infringing upon individual constitutional rights. When the COPPA was first introduced, many groups raised concerns regarding the limitation of a child's ability to speak, and the terms "disclosure" and "collection.,,92 Original opponents of the COPPA argued that "the definitions went beyond the statutory language and threatened to upset the balance between protecting children's privacy and ensuring their ability to participate online.,,93 The final version of the COPPA narrowed the definition of "disclosure" and changed the definition of "collection".94 Following the final version of the Act, original opponents praised the COPPA, while new opponents expressed additional concerns. New critics of the COPPA challenged the constitutionality of the Act on several grounds. First, some critics argue that the COPPA "infringes the free speech rights of web sites by forcing them to self-censor their content. ,,95 The parental consent requirement of the COPPA is alleged to lead to "self-censorship,,96 of speech directed towards children. 97 Secondly, critics state that the Act places an 88 89

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Hazelwood Sch. Dist., 484 U.S. at 260. /d. at 268.

90 91 92

Simmons, supra note II, at 121.

93

/d.

94

Id.

95

/d.

/d. at 122. Simmons, supra note 11, at 122. 97 Simmons, supra note II, at 122.

96

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undue burden on commercial web site operators. 98 Many websites have either disallowed children from access to its website or shut down completely due to the amount of funding necessary to comply with the COPPA. 99 "When it is cheaper and easier for companies simply not to run children-focused websites, ultimately there will be fewer choices for child appropriate Internet content websites."lOo Thirdly, critics have questioned the effectiveness of the Act. Lastly, the greatest concern with the COPPA is its alleged infringement on the constitutional rights of children. Critics acknowledge that while protection of children "remains an important goal," the means employed by the government must coexist with the child's "right to express himself or herself, and the right to receive other parties' expression." 10I C.

COPPA and the Free Speech Rights of Children

Both adults and children alike have the protection of the First Amendment. Nevertheless, the regulation of speech is neither prohibited nor unconstitutional when specific requirements are met. The nature of the regulation directly affects how the court will examine the Act. To determine whether the COPPA infringes upon children's right to free speech, it must first be established whether the Act is content neutral or content based. As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are contentbased . . . by contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutra1. 102 The Court has also recognized that even if an act is "neutral on its face," it may be "content based if its manifest purpose is to regulate speech because of the message it conveys.,,103 The threshold question before the Court is always "whether the government has adopted the regulation because of agreement or disagreement with the message the speech conveys.,,104 The COPPA regulates the collection of personal information over the Internet by children without the consent and knowledge of their parents. The main objective of the Act is to regulate only personal information. The message the speech conveys is not what is desired to be regulated, rather the collection of the speech 98 Simmons, supra note 11, at 122. 99 Hersh, supra note 21, at 1844. 100

Jd.

101 Merlis, supra note 61, at 119. 102 Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 639 (1994). 103 /d. at 641. 104 /d. at 639.

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itself is the concern. Beyond the definition of what constitutes "personal information," the Act does not reference the "the ideas or views expressed.,,105 For that reason, the COPPA is content neutral. Since content-neutral regulations "do not pose the same inherent dangers to free expression that content-based regulations dO,,,106 content-neutral regulations receive the intermediate level of scrutiny. In order for a content-neutral regulation to be sustained, the government must show that: (1) the regulation furthers an important or substantial governmental interest; (2) the governmental interest is unrelated to the suppression of free expression; and (3) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 107 A number of critics argue that the COPPA does not serve a substantial interest, because the interest alleged "does not assert more than a generalized interest in children's development.,,108 However, the National Center for Missing and Exploited Children estimates that one in seven children, between the ages of ten and seventeen, experience online sexual solicitation. lo9 Additionally, the FfC noted "sexual predators use the Internet to identify and contact children whom they wish to victimize." 110 Not only is the COPPA protecting the safety of children, Congressional findings indicate that children may not understand the effects of revealing information about themselves and "the Internet gives marketers the capability of interacting with your children and developing a relationship without your knowledge."lll An author of the COPPA, Senator Bryan, stated that some web sites were asking children questions such as; "what the family income was, does the family own stocks or certificates of deposit, did their grandparents give them any financial gifts?"l12 A particular concern of Senator Bryan was the collection of answers to the aforementioned questions, without the knowledge of the parents. I13 Answers to questions of this nature put parents and the immediate family at risk, as well as, the children themselves. It is unmistakably apparent the COPPA's main purposes are to protect children from marketing scams and online sexual solicitation. More importantly, the 105 Simmons, supra note 11, at 127. 106 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 198 (1997). 107 Turner, 512 U.S. at 649. 108 See, e.g. Barry J. Reingold, Jason Rylander, Privacy vs. Speech, Again: Even a Law Meant to Protect Kid's Online Privacy Conflicts with the First Amendment, LEGAL TIMES, at 3 (2001). 109 TilE NATIONAl. CENTER FOR MISSING & EXPI.OITED CII".DREN ONLINE VICTIMIZATION OF YOlfrIl: FIVE YEARS LATER (2006), http://www.missingkids.com/en_US/publicationslNCI67.pdf. 11 0 Simmons, supra note 11, at 10. 111 See 144 Congo Rec. S8483 (daily ed. July, 17 1998). 112 See, e.g. Simmons, supra note 9, at 9; 105 Congo Rec. S8,482 (1998). 113 See 144 Congo Rec. S8483 (daily ed. July, 17 1998) (statement of Rep. Bryan); Simmons, supra note 11, at 9.

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COPPA is aimed at preventing sexual solicitation offline from predators who use personal information to contact children. The COPPA therefore serves a specific interest of protecting the safety and welfare of a child while encouraging social growth. In Turner Broadcasting Systems v. Federal Communications Commission, the Court held that the government must prove real harm, not just anticipated harm, to justify a speech restriction. 114 Based on this requirement, critics argue that the COPPA only addresses "potential harms.,,115 However, the critics' claim is misguided. Evidence from the previously mentioned Los Angeles television station report confirms that personal information obtained from children from chat rooms, discussion boards, and marketing ploys was compiled into lists that were then sold to individuals; many of whom could have used this information for illegal purposes. Furthermore, harms by pedophiles and online sexual solicitation are also far from merely potential. According to one survey, one in five children who "regularly use the Internet received sexual solicitations or approaches during a [one]year period.,,116 This statistic illustrates that pedophilia and sexual solicitations pose a real and imminent threat to children. Accordingly, the government's interest in protecting a child's personal information from marketers and pedophiles is important and substantial. The next step is to determine whether the governmental interest is unrelated to the suppression of free expression. 117 In Turner, the Court concluded that the Federal Communication Commission's "must carry" provisions were not related to the suppression of free expression, or to the content of any speaker's messages. llB The Court relied upon the interrelated interests expressed by Congress. Similarly, Congress declared that the COPPA is to serve four previously mentioned interrelated interests: (1) to enhance parental involvement in a child's online activities in order to protect the privacy of children in the online environment; (2) to enhance parental involvement to help protect the safety of children in online fora such as chatrooms, home pages, and pen-pal services in which children may make public postings of identifying information; (3) to maintain the security of personally identifiable information of children collected online; and (4) to protect children's privacy by limiting the collection of personal information from children without parental consent. 119 114 See, e.g. Simmons, supra note 11, at 10; Turner, 512 U.S. at 630. 115 Simmons, supra note 11, at 10. 116 U.S. DEPARTMENT OF JUSTICE, OVC Bulletin: Internet Crimes Against Children (2005), http://www.ojp.usdoj.gov/ovclpublicationslbulletins/interneC2_2001/welcome.html 117 Turner, 520 U.S. at 184. 118 Turner, 520 U.S. at 180. 119 144 Congo Rec. S11657 (daily ed. Oct. 7, 1998) (statement of Rep. Bryan).

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The goals and interests of the COPPA are not concerned with the content of the child's message or with suppressing free expression. Therefore, the COPPA passes the second element. To satisfy the last element, "a regulation need not be the least speech-restrictive means of advancing the government's interests." 120 The central aspect of the COPPA is that website operators must obtain verifiable parental consent before collecting personal information from children. 121 Many critics posit a number of alternatives to the parental consent requirement. Opponents to the COPPA argue that it is feasible for the Internet industry to self-regulate, allowing the "individual freedom, responsibility, and accountability that make up the Internet culture" to foster. 122 Two prominent self-regulation programs are Truste and BBBOnline®.l23 Both programs issue licenses to web operators to display the programs' privacy seals, on the condition that the website follows certain guidelines}24 In addition, websites can self-regulate by deleting personal information from the website. As another alternative, many critics contend that parents can play an active role in the protection of their child's personal information by investing in filtering devices. Filtering devices enable a parent "to determine, in advance, how much information their children may disclose to websites, as well as how much information websites may disclose, if any, to third parties.,,125 Contrary to opponents' positions, the "less-restrictive" approach "has never been a part of the inquiry into the validity of content-neutral regulations on speech.,,126 The Supreme Court in Turner stated, "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest ... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech restrictive alternative. ,,127 Despite the abovementioned alternatives, the COPPA "promotes a substantial government interest that would be achieved less effectively absent the regulation.,,128 Not all web operators participate in programs such as Truste and BBBOnline®. Furthermore, web operators that do participate only face the removal of the right to display the programs' seals if they are found in violation of the programs' policies. 129 Additionally, not every family can purchase filtering de120 121 122 123 124 125

126 127 128 129

Turner, 512 U.S. at 649. Child Online Privacy Protection Act, 15 U.S.c. § 6501 (1998). Hersh, supra note 21, at 1842. Zwick, supra note 4, at 1148. Zwick, supra note 4, at 1148. Zwick, supra note 4, at 1149. Turner, 520 U.S. at 200. ld.at 201. Turner, 512 U.S. at 649. Zwick, supra note 4, at 1448.

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vices. Devoid of government regulation, children whose families can afford to invest in self-regulatory devices will have their personal information protected, while millions of other children remain vulnerable to the exact ploys the COPPA intends to protect against. Lastly, the COPPA does not "burden substantially more speech than is necessary to further the government's legitimate interests.,,130 The COPPA leaves open alternative means of communication for children on the Internet. The Act only intends to restrict the collection of personal information without the knowledge or consent of the parent. Hence, a child is still permitted to participate in monitored chat rooms and discussion boards. The COPPA does not prohibit a child from other methods of communication on the Internet such as e-mail. The COPPA does not offend a child's First Amendment right to free speech. CONCLUSION

Protecting children's privacy and safety online is a priority of both the government and parents. But protection should not arise at the expense of children's First Amendment free speech rights. Internet privacy rights must be "balanced against other competing interest of the public, law enforcement, government agencies and private commercial interests.,,131 The COPPA strikes an appropriate balance of protecting children from marketers and sexual predators online, while allowing children to take advantage of the plethora of benefits the Internet has to offer.

130 Turner, 512 U.S. at 649. 131 See, e.g. Hersh, supra note 21, at 8; Carey v. Population Servo Int'l., 431 U.S. 678 (1977).

THE RUCKUS IN THE CAUCASUS: A CASE AGAINST MIKHEIL SAAKASHVILI FOR CRIMES AGAINST HUMANITY IN THE AUGUST WAR Yancy Cottrill* INfRoDucnoN

While the world's attention was focused on the fireworks display of the 2008 Olympic Games in China, the citizens of South Ossetia were watching the sky too. Only their sky was being lit up by warfare. At 7:30 p.m. on August 7, 2008, Georgian President Mikheil Saakashvili, held a televised speech promising the Ossetians a ceasefire and unlimited autonomy.1 At 11:00 p.m., Saakashvili ordered the Georgian Army to launch an offensive on Tskhinvalli, the capital of South Ossetia. Over the next five days, the civilians of South Ossetia and Abkhazia would be directly targeted by the Georgian forces and forcibly displaced from their homes. 2 Rising to power after the tainted elections of 2003, known as the Rose Revolution, Mikheil Saakashvili gave the Georgian people hope that a true democracy would be established. Instead, his unilateral decision to attack his own citizens along with Russian peacekeepers in South Ossetia and Abkhazia proved that he was no different than previous leaders. The same Georgian people who swept Saakashvili to power are now in the streets demanding his resignation. 3 His actions in the August War lead to the forced displacement, murder, imprisonment, and enforced disappearance of the civilian populations of South Ossetia and Abkhazia. 4 Saakashvili, being responsible for these crimes against humanity, should stand trial in the International Criminal Court. This article will begin by identifying and defining the crimes against humanity, which were committed by the Georgian forces. Then the evidence of the crimes will be evaluated as documented through media and international non-profit assessments. Finally, by examining international case law, it will become apparent

*

J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law. Dimitry Avaliani, et ai, How Georgia Began War, INST. FOR WAR AND PEACE Rm·., http:// www.mail-archive.com/[email protected]/msg00133.html; AMNESTY INT'L, CIVILIANS IN THE LINE OF FIRE: TilE GEORGIA-RUSSIA CONFLICT, http://www.amnesty. orglen/library/assetlE U R04/00512008/en/d9908665-ab55-11 dd-a4cd-bfaOfdea9647/eur040052008eng. pdf [hereinafter AMNESTY IN't"L). 2 AMNESTY IN'r'L, supra note 1, at 18; Conference of Plenipotentiaries on the Establishment of an Int'I Crim. Court, July 17, 1998, Rome Statute of The Int'l Crim. Court, Art. 7, U.N. Doc. AI CONF.183/9 (1998), available at http://www.un-documents.netlicc.htm [hereinafter Rome Statute]. 3 Protests in Moldova and Georgia: Street Scenes, ECONOMIST, April 18-24,2009, at 58. 4 HUMAN RIGHTS WATCII, UI' IN FLAMES: HUMANITARIAN LAW VIOLATIONS AND CIVILIAN VICTIMS IN THE CONFLICt' OVER SOUTII OSSETIA, http://www.hrw.orglen/reports/2009/01122If1ames-0; AMNESTY INT'L, supra note 1, at 19. 1

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that Saakashvili should be held accountable for his actions. Under the theory of command responsibility, the Georgian president oversaw the forced displacement, murder, imprisonment, and the enforced disappearance of civilians, which he should now have to explain to the international community. I.

CRIMES AGAINST HUMANITY

A.

Command Responsibility

Mikheil Saakashvili will be held responsible for the crimes against humanity of forced displacement, murder, enforced disappearance, and imprisonment under Article 28 of the Rome Statute addressing the responsibilities of commanders and superiors.s The statute states that the military commander of the Army can be held criminally responsible for the crimes committed by his forces under his command or contro1. 6 It further states that the commander will be held criminally responsible if he knows the crimes are being committed and does not take steps to prevent them from occurring.7 Saakashvili was President and Commander of the Georgian armed forces during the August War against Russian peacekeepers and local militias when these crimes against humanity occurred. s On September 5, 2003, Georgia ratified the Rome Statute - making any war crimes, genocide, or crimes against humanity committed within the country fall 5 The responsibility of commanders and other superiors specifically states: In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Rome Statute, supra note 2, at Art. 28. 6 Rome Statute, supra note 2, at Art. 28. 7 Rome Statute, supra note 2, at Art. 28. 8 President of Georgia Website-Functions, hUp:/Iwww.president.gov.gel?l=E&m=l(last visited May 2, 2010) (laying out the power of the Georgian Executive Branch under Georgian Constitution.).

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under the jurisdiction of the International Criminal Court. 9 Under the Rome Statute, certain "acts when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" are considered crimes against humanity. to Those acts include: murder; extermination; enslavement; deportation or forcible transfer of a population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules or international law; torture; rape and other sexual crimes; persecution against any identifiable group or collectively; enforced disappearances; apartheid; and other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 11 One of the results of the August War and the actions of the Georgian forces under SaakashviIi's command was that thousands of civilians were forcibly displaced. 12 B.

Forced Displacement

The August War, initiated by the invasion of Georgian forces upon South Ossetia, displaced an estimated 127,000 people in South Ossetia and Abkhazia combined. 13 The intentional targeting of civilians by the Georgian forces lead to the forced displacement of these individuals. 14 Forcibly displacing civilians by parties at war is prohibited by the Article 7 of the Rome Statute unless it is for their own safety or when necessary for vital military reasons. 15 The Rome Statute defines this crime against humanity as: "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under internationallaw.,,16 The elements of forcible displacement as defined in the Rome Statute include "conduct [that] was committed as a part of a widespread or systematic attack directed against a civilian population." 17 While 68,000 individuals were able to return to their homes, the United Nations High Commissioner for Refugees estimated that 54,000 civilians would remain displaced through 2009. 18 As well as being forcibly displaced, civilians were also victims to murder at the hands of the Georgian forces during the August War.19 9 Rome Statute, supra note 2, at Art. 5, 12. 10 Rome Statute, supra note 2, at Art. 7. 11 Rome Statute, supra note 2, at Art. 7. 12 AMNESTY hr.-'I., supra note I, at 18-19. 13 U.N. High Comm'r for Refugees - Georgia, http://www.unhcr.orglcgibin/texislvtx/ page?page=4ge48d2e6# (last visited May 2, 2010). 14 Rome Statute, supra note 2, at Art. 7(1)(d); Human Rights Watch, supra note 4, at 6. 15 Rome Statute, supra note 2. 16 Rome Statute, supra note 2, at Art. 7(2)(d). 17 lnt'l Crim. Court, Elements o/Crimes, U.N. Doc. PCNICCI2000lllAdd.2 (2000), available at http://www1.umn.edulhumanrts/instree/iccelementsofcrimes.html(last visited May 3, 2010). 18 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, supra note 13. 19 HUMAN RIGHTS WATCH, supra note 4, at 31.

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c. Murder Georgian forces murdered civilians during their attacks in South Ossetia by failing to distinguish between military targets and civilians.20 Furthermore, the Georgian Army attacked civilian vehicles in South Ossetia as they were trying to flee the combat zone resulting in the murder of those civilians. 21 The elements of murder under the Rome Statute are as follows: the perpetrator killed one or more persons; the conduct was committed as part of a widespread or systematic attack directed against a civilian population; the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.22 The Georgian Army's actions under the directive of Mikheil Saakashvili resulted in the murder of civilians which is a crime against humanity under Article 7 of the Rome Statute.23 In addition to the murder of civilians, the Georgian President should also answer to the charge of enforced disappearance of a civilian. D.

Enforced Disappearance

There has been one documented case of enforced disappearance by the Georgian Army upon a South Ossetian civilian.24 The Rome Statute defines enforced disappearance as: the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.25 The Georgian Army took into custody Tomaz Kabisov, twenty-nine years old, in the village of Tebti, South Ossetia on August 8.26 Kabisov was last seen by a fellow detainee who served as a translator for him on August 10th in a prison camp in the town of Khashuri. 27 The Georgian government denies that he is in their custody.28 While this scenario resulted in the disappearance of the individ20 HUMAN RIGHTS WATCII, supra note 4, at 6. 21 HUMAN RIGHTS WATCH, supra note 4, at 6. 22 Int'l Crim. Court, Elements of Crimes, supra note 17, at 5. 23 Rome Statute, supra note 2, AMNESTY INT' .., supra note 1, at 28, HUMAN RIGHTS WATCII, supra note 4, at 53-57; !rH'L CRISIS GROUP, RUSSIA VS. GEOI~G1A: TilE FALL Our, http:// www.crisisgroup.orglhome/index.cfm?id:::::5636 (last visited May 3, 2010). 24 HUMAN RIGI-ITS WATCH, supra note 4, at 85. 25 Rome Statute, supra note 2, at Art. 7(2)(i). 26 HUMAN Rim rrs WATCI-I, supra note 4, at 85. 27 HUMAN RIGHTS WATCH, supra note 4, at 85. 28 HUMAN RIGIn"S WATCH, supra note 4, at 86.

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ual, there were situations where civilians were imprisoned and denied their liberty before being released. 29 E

Imprisonment

There were numerous accounts of Georgian soldiers detaining, beating, and then imprisoning Ossetian civilians. 3o While civilians are considered protected persons in times of conflict under the Fourth Geneva Convention, the Georgian Army denied them their liberty.31 The Georgian Army claimed to have thirtytwo detainees which were all military combatants, but upon release of these individuals it was discovered that some those detained were civilians.32 It was also determined that at least five of the thirty-two prisoners were beaten and illtreated while in custody.33 This imprisonment of civilians is a crime against humanity pursuant to the Rome Statute.34 Saakashvili oversaw the Georgian Army while they participated in these activities and should be prosecuted by the International Criminal Court for his role. Now that all the charges have been defined, the evidence as compiled by international human rights organizations and the media will be assessed. II.

THE EVIDENCE

International Criminal Court prosecutor has taken the allegations of crimes against humanity, which were committed during the August War, under analysis. 35 The prosecutor may initiate an investigation on his own under the Rome 29 HUMAN RIGHTS WATCH, supra note 4, at 81-85 (relaying the accounts of prisoners detained by Georgian forces in Khetagurovo, Tskhinvali, Znauri, and the conditions of detainment). 30 HUMAN RIGHTS WATCH, supra note 4, at 81-85. 31 Convention (IV) relative to the Protection of Civilian Persons in lime of War, Geneva, Switz., Aug. 12, 1949, Final Declaration, http://www.icrc.org/ihl.nsfl7c4d08d9b287a42141256739003e63 6b/6756482d86146898c125641eOO4aa3c5?OpenDocument (last visited May 3, 2010) (stating: "Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity"); HUMAN RIGHTS WATCH, supra note 4, at 81-85. 32 HUMAN RIGITI'S WATCH, supra note 4, at 81-85. 33 HUMAN RIGHTS WATCH, supra note 4, at 4. 34 Rome Statute, supra note 2, at Art. 7(1)(e): Crime against humanity of imprisonment or other severe deprivation of physical liberty defines the elements as: 1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty; 2. The gravity of the conduct was such that it was in violation of fundamental rules of international law; 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct; 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population; 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. /d. 35 Press Release, In1'l Crim. Court, ICC Prosecutor Confirms Situation in Georgia Under Analysis (n.d.), http://www.icc-cpUnt/menus/icc/press%20and%20media/press%20releases/press%20re-

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Statute by means of relying on information from sources such as state parties, non-governmental organizations, or other reliable sources. 36 Currently, the Office of the Prosecutor is conducting preliminary analysis of the situation in Georgia. 37 The reports of well known international human rights organizations are influential in compiling the facts to begin an investigation.38 Another court looking into Georgia's actions is the Parliamentary Assembly of the Council of Europe which determined that Georgia's initiation of the shelling of South Ossetia accompanied by disproportionate use of force created grave risks for civilians, and thus, violated international humanitarian law. 39 The European Court of Human Rights has received over 3,300 complaints against Georgia due to the events of the August War, of which seven have received priority by the Chamber. 40 Many human rights groups have documented the crimes against humanity committed by the Georgian Army, under the direct control of Mikheil Saakashvili, during the August War with Russian peacekeepers and local militia.41 Despite the Georgian president's counterclaims that the Russian peacekeepers were responsible for the war, the people of Georgia have shown that they will not be fooled. 42 Recently thousands of citizens attended an opposition Independence leases %20(2008)/icc% 20prosecu tor%20con firms %20si t ua tion % 20in %20georgia %20under%20 analysis (last visited May 2, 2010). 36 Rome Statute, supra note 2, at Art. 15. 37 Int'l Crim. Court, Office of the Prosecutor, http://www.icc-cpi.int/Menus/ICc/Structure+of+ the+CourtlOffice+of+the+Prosecutorl (last visited May 2, 2010). 38 Rome Statute, supra note 2, at Art. 15. 39 Parliamentary Assembly Council of Europe, The Consequences of the War Between Georgia and Russia enS, http://assembly.coe.int/Mainf.asp?link==IDocuments/AdoptedTextlta08/ERES 1633. htm (last visited May 2, 2010) "The use of heavy weapons and cluster munitions, creating grave risks for civilians, constituted a disproportionate use of armed force by Georgia, albeit within its own territory, and as such a violation of international humanitarian law and Georgia's commitment to resolve the conflict peacefully." Id. 40 Press Release, European Court of Human Rights, Seven Applications Against Georgia Concerning Hostilities in South Ossetia, http://cmiskp.echr.coe.intltkpI97/view.asp?action==html&documentld==845593&portal==hbkm&source==externalbydocnumber&table=F69A27FD8FB86142BFOICl 166DEA398649 (last visited May 2, 2010). 41 AMNESTY IN'r'I., supra note 1, at 24-28, 48-49; HUMAN RIGHTS WATCII, supra note 4, at 4653, 64-66; INT'L CRISIS GROUP, supra note 23; NORWEGIAN HEUHNKI COMMITI'EE, GEf)J{GlA-RUSSIA CONFLlcr: ETHNIC CLEANSING CONTINUES IN SOUTH OSSETIAN CONFLlcr ZONE IN GEORGIA, http:// www.nhc.no/php/index.php?module=article&view=784; Brian Whitmore, Is The Clock Ticking For Saakashvili?, RAJ)JO FlmE EUROPE, Sept. 12, 2008, available at http://www.rferl.orglcontent/Is_The_ Clock_lickinr-FocSaakashviliI1199512.html; INST. FOR WAR AND PEACE REI'., supra note 1; Nona Salaghaia, Georgian People Rose to their Feet to Express Respect for Abkhaz and Ossetian People, GEORGIAN HUMAN RIGHT CENTRE, May 28, 2009, available at http://www.humanrights.ge/index.php? a=article&id=3792&lang==en. 42 Factual Evidence Contradicts War Claims in Recent Media Stories: OSCE Cautions on Drawing Conclusions Based on Incomplete Evidence, GEORGIA UPDATE, Nov. 18, 2008, http://georgiaupdate.gov .ge/enJdocll 0006924/0SCE %20Nov%20t8%20vt.htm.

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Day celebration voicing their disdain for the sham democracy Saakashvili has perpetuated and showing their support for the citizens of South Ossetia and Abkhazia. 43 The evidence of the forced displacement of the South Ossetian civilians is well documented by international human rights organizations and will be evaluated below.44 A.

Forced Displacement

Forced displacement of Ossetians and Abkhazians, due to civilians being attacked during August War, has been widely acknowledged.4s As of October 27, 2008, the Georgian government website had the number of internally displace persons at 35,495, but the UNHRC estimated a total of 54,000 people would be displaced through 2009. 46 Civilians in South Ossetia were not taken into consideration as villages and residential areas were bombed, schools and hospitals damaged or destroyed, and civilian deaths outnumbered those of combatants. 47 There were also reports of fleeing civilians being targeted by bombs.48 Human Rights Watch found that the Georgian Army failed to distinguish between military targets and civilians.49 They went on to conclude "that Georgian forces demonstrated disregard for the protection of civilians during the shelling campaign, causing large-scale damage to civilian objects and property, and civilian casualties."so In many instances the Human Rights Watch researcher did not find any evidence of a military objective in the area which was targeted. Sl The Guiding Principles on Internal Displacement have been recognized as an important tool to protect internally displaced persons by the United Nations General Assembly.52 It states that all authorities shall respect and ensure respect for their obligations under international law in all circumstances to prevent and avoid conditions that might lead to people being displaced. s3 Saakashvili's inva43 I NST. FOR WAR AND PEACE REI'., supra note 1; GEOIWIAN HUMAN RIGHTS CENTRE, supra note 41. 44 U.N. High Comm'r for Refugees, supra note 13; IN'f'!. CRISIS GROlJJ>, supra note 23, at ii, 3,4,9-10, 15; AMNESTY IN'!"!., supra note 1, at 5. 45 U.N. High Comm'r for Refugees, supra note 13; IN'f'!. CRISIS GROUJ>, supra note 23, at ii, 34,9-10, 15; AMNESTY IN'!"!., supra note 1, at 5. 46 Georgia Update, Russian Invasion of Georgia: Refugees and Displaced Persons, http://georgiaupdate.gov.ge/en/doc/10006949/IDP%20Update%2021.11.htm (last visited May 2, 2010); U.N. High Comm'r for Refugees, supra note 12. 47 AMNESTY INT'L, supra note 1, at 5. 48 AMNESTY IN'!"L, supra note 1, at 5. 49 HUMAN RIGIITS WATCH, supra note 4, at 38. 50 HUMAN RIGJlTS W ATCJI, supra note 4, at 38. 51 HUMAN RIGJlTS WATCH, supra note 4, at 38. 52 G.A. Res. 60/1 'lI 132, U.N. Doc. Al60/L.l(Sept. 20, 2005). 53 U.N. Economic and Social Council, Report of the Representative of the Secretary-General:

Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission Human Rights, Mass Exoduses

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sion of South Ossetia, showing little regard for civilian life, created a hostile environment where civilians were forced to flee. 54 He took no precautions to spare civilian causalities or adhere to guiding principles of any sort in the shelling of Tskhinvali or the issuance cluster munitions to the soldiers. 55 B.

Murder

Mikheil Saakashvili told the Ossetian people that a ceasefire was in place just hours before he ordered Georgian troops to shell their villages. 56 Tskhinvali resident, Aelita Jioyeva, recalled, "no one thought that they would attack us so unexpectedly, at night, when everyone was asleep and when the Olympic Games were opening in another part of the world. It was such a horrible thing they did. ,,57 The Georgian president made false representations to the Ossetians, and then the troops fired on civilians as they were fleeing the conflict, including an incident of a Georgian tank firing upon a civilian car. 58 Russian President, Dmitry Medvedev, ordered an investigation by the Investigation Committee at the General Prosecutor's Office to gather evidence of the murders to ascertain if the actions amounted to genocide. 59 The Norwegian Helsinki Committee condemned both sides for using excessive bombing and indiscriminate use of force against civilians.60 The disregard on behalf of the Georgian forces prompted the ICC to launch an investigation into the civilian attacks which occurred in South Ossetia.61 C.

Enforced Disappearance

As described above Tomaz Kabisov was taken into Georgian custody on August 8, 2008 and was last seen on August 10,2008.62 He was an Ossetian civilian and Displaced Persons, §2, Principle 5, submitted pursuant to Commission resolution 1997139, U.N. Doc E/CN.4/1998/53/Add.2 (Feb. 11, 1998). 54 HUMAN Rim rrs W ATCII, supra note 4, at 53-56 (detailing the accounts of civilians who were compelled to flee and came under attack while doing so). 55 HUMAN RIGHTS WATCH, supra note 4, at 64; Assoc. Press, Georgia's Saakashvili Commits War Crimes Against Humanity, PRAVDA, Aug. 8, 2008, available at http://english.pravda.rulhotspotsl 106045-georgia-0. 56 INST. FOR WAR ANI) PEACE REP., supra note 1. 57 INST. FOR WAR ANI) PEACE REP., supra note 1. 58 INST. FOR WAR ANI) PEACE REP., supra note 1; HUMAN RIGm-s W ATCII, supra note 4, at 5356; AMNESTY INT'L, supra note 1, at 28. 59 Russia Launches Genocide Probe Over S.Ossetia Events, RIANovOSTl, Aug. 14,2008, available at http://en.rian.rulrussial200808141116026568.html. 60 Norwegian Helsinki Committee, Georgia-Russia Conflict: Ethnic Cleansing Continues in South Ossetian Conflict Zone in Georgia, http://www.nhc.no/php/index.php?module=article& view=784 (last visited May 2, 2010). 61 Int'l Crim. Court, supra note 35. 62 HUMAN RlGm-s WATCH, supra note 4, at 85.

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who, at the time of his detainment, was walking through a village. 63 Kabisov managed to give another prisoner his sister's cell phone number on August 10th and that individual contacted the family upon release. 64 The Georgian authorities exchanged thirty-two prisoners with the Ossetians at the end of August but Kabisov was not one of them. 65 Georgian authorities have denied that he is in their custody.66 The most recent development of international law in the field of enforced disappearance is the International Convention for the Protection of All Persons from Enforced Disappearance.67 This persuasive document prohibits enforced disappearance under any circumstances including war or internal stability.68 The arrest, detention, and then denial by the Georgian forces that Kabisov is in their custody or that they know of his whereabouts violated the very first article of the abovementioned convention. 69 Saakashvili has been made aware of this case of enforced disappearance as the government has had to answer questions from the international community about Kabisov's situation.7o D. Imprisonment Amnesty International reports that the Georgian forces detained a small number of Ossetian civilians during the conflict.71 They provided an account of a young man, his wife, and his mother being detained just three days in Tbilisi and Gori. 72 This individual told Amnesty International that he was arrested outside his home by Georgian troops, but maintained neither he nor his family was mistreated while being detained. 73 This is a much different tale from some of the accounts detailed by Human Rights Watch. They reported that Georgia took thirty-two detainees of which it was not possible to differentiate between civilians and combatants. 74 They interviewed five of the detainees and determined that at least one of them, Tengiz HUMAN RIGIITS WATCII, supra note 4, at 85. HUMAN RIGIITS W ATCII, supra note 4, at 85 HUMAN RIGIITS WATCII, supra note 4, at 85 HUMAN RIGIITS WATCII, supra note 4, at 85 U.N. High Comm'r for Human Rights, Int'l Convention for the Protection of All Persons from Enforced Disappearance, Art. 1, U.N. Doc. A/611488 (Dec. 20, 2006), available at http://untreaty.un.org/English/notpubI/IV _16_english.pdf [hereinafter UNHCHR). 68 UNHCHR, supra note 67. Article 1 reads: 1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. 69 HUMAN RIGIITS WATCII, supra note 4 at 85; UNHCHR, supra note 67. 70 HUMAN RIGHTS WATCII, supra note 4, at 85. 71 AMNESTY IN"r'l., supra note 1, at 47. 72 AMNESTY INT'I., supra note 1, at 47. 73 AMNESTY IN"r'l., supra note 1, at 47. 74 HUMAN RIGIITS W ATCII, supra note 4, at 79. 63 64 65 66 67

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Bakaev, age sixty-six, was a pacifist on religious grounds, and not an enemy combatant".15 He claimed that the Georgians beat him in the face and on the back with their fists and gun butts before dragging him away.16 Human Right Watch gave the account of Sergei Lokhov, an Ossetian, who said the Georgians ignored his attempts to explain that he was a civilian, and then they beat him until they dislocated his jaw.77 Lastly, the Georgian Army detained Zaza Lakhtilashvili, who is half Ossetian and half Georgian.1 8 He is mentally disabled and when the soldiers were asking him his name he attempted to appease them (thinking they were Russian) and told them his mother's Russian maiden name. 79 He also told the soldiers that he had killed four Georgians; the soldiers then beat him up and detained him at an undisclosed location. 80

01.

PAST TRENDS IN DECISIONS

The Rome Statute created the International Criminal Court ("ICC") in 1998 at the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court. 81 The ICC is an independent court and is a court of last resort, hearing serious offenses such as crimes against humanity.82 Saakashvili should be tried in the ICC for the atrocities that took place under his command in the August War. The cases relied on in the following analysis are from the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the Human Rights Chamber for Bosnia and Herzegovina. The ICTY was created by the United Nations and is governed by the Statute of the ICTY. 83 The Statute of the ICTY allows the Tribunal to hear the same crimes against humanity, which fall under the Rome Statute.84 The Human Rights Chamber for Bosnia and Herzegovina was set up by the Dayton Peace Agreement and can also hear crimes against humanity in accord with the European Convention for the Protection of Human Rights and Fundamental Freedoms.85 These judicial bodies' deci75 HUMAN RIGHTS WATCH, supra note 4, at 79, 83. 76 HUMAN RIGHTS W ATCII, supra note 4, at 83. 77 HUMAN RIGHTS WATCH, supra note 4, at 79. 78 HUMAN RIGHTS WATCH, supra note 4, at 83. 79 HUMAN RIGIl'I'S WATCII, supra note 4, at 83 80 HUMAN RIGH'I'S WATCII, supra note 4, at 83. 81 Int'I Crim. Court - Establishment of the Court, http://www.icc-cpLintlMenuslICCI AboutHhe+CourtlICC+at+a+glance/Establishment+ofHhe+Court.htm (last visited May 2, 2010). 82 Int'l Crim. Court - ICC at a Glance, http://www.icc-cpi.intlMenus/ICCIAboutHhe+Courtl ICC+at+a+glance/ICC+at+a+glance.htm (last visited May 2, 2010). 83 United Nations, Int'I Crim. Tribunal for the Former Yugoslavia, http://www.icty.orglsid/319 (last visited May 2, 2010). 84 United Nations, Undated Statute of the Int'I Crim. Tribunal for the Former Yugoslavia, http:/ Iwww.icty.orglxlfile/Legal%20Library/Statute/statute_sept08_en.pdf ;Rome Statute, supra note 2. 85 The Human Rights Chamber for Bosnia and Herzegovina, Annex 6 to the general framework agreement for peace in BiH, http://www.hrc.ba/ENGLISH/annual_reportl2002/ANNEX6.HTM (last visited May 2, 2010).

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sions should be looked to as precedence, as the ICC has not tried a case such as the one involving the Georgian forces. A.

Forced Displacement

There are two cases decided by the Trial Chambers of the International Criminal Tribunal for the Former Yugoslavia ("ICTY"), which involve the crime against humanity of deportation or forcible transfer of population - forced displacement.86 The first ICTY case involved Vinko Pandurevic, a Lieutenant Colonel in the Bosnian Serb Army ("VRS"), who oversaw the commission of atrocities upon the Bosnian Muslims in the city of Potocari.87 He faced seven charges, including the crime against humanity of forcible transfer under the theory of command responsibility.88 The VRS under his command went into Potocari, separated the women and children from the men, ages 16-60, and then executed the men. 89 The women and children were placed on buses and taken to another location. 90 Pandurevic was found gUilty of having "committed, planned, instigated, ordered, or otherwise aided and abetted the planning, preparation, or execution of a crime against humanity, that is, the forcible transfer of Bosnian Muslims from the Srebrenica enclave. ,,91 The second ICTY case involved the prosecution of Jovica Stanisic and Franko Simatovic.92 Stanisic was the Head of the DB, the Serbian State Security Service, and Simatovic was commander of the Special Operations Unit of the DB.93 These individuals financed, trained, and supervised special DB officers who forcefully transferred thousands of non-Serbians from their home regions to different parts of Bosnia.94 The ICTY found both individuals, "acting alone or in concert with members of the joint criminal enterprise, planned, ordered, committed or otherwise aided and abetted the planning, preparation or execution of: deportation, a crime against humanity.,,95 The Icry Trial Chamber found all three of these individuals gUilty of forcible displacement via Article 28 of the Rome Statute addressing command responsibility. Like these individuals, Mikheil Saakashvili's actions of using the South Os86 Prosecutor v. Pandurev;c, Case No. ICfV IT-05-86-1 (Feb. 10, 2005), available at http:// www.icty.orglxlcases/pandurevic_trbidind/en/pan-lai050303.htm (last visited May 5, 2010); Prosecutor v. Stanis;c, Case No. ICfV IT-03-69 (May 1, 2003), available at http://www.icty.orglxlcasesl stanisic_simatovidind/en/sta-ii030501e.pdf (last visited May 5, 2010). 87 Pandurevic, supra note 86, at 'II 'II 1-13. 88 Pandurev;c, supra note 86, at 'II 33. 89 Pandurevic, supra note 86, at 'II'lI 4-11. 90 Pandurev;c, supra note 86, at '11'11 4-11. 91 Pandurevic, supra note 86, at 'II 33. 92 Slanisic, supra note 86, at 'lI'II 59-60. 93 Stanis;c, supra note 86, at 'I'll 1-2. 94 Stallisic, supra note 86, at '1'1 59-60. 95 Stanisic, supra note 86, at '160.

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setian and Abkhazian civilians as pawns in his plan to expose the Russian peacekeepers as unfit to perform in a neutral capacity, will win him a conviction. 96 He showed disregard for civilians in the ordering use of excessive force when invading South Ossetia as evidenced by residential areas being destroyed,97 The Georgian president, as head of the armed forces, was aware that these acts were taking place as he issued the troops to advance into South Ossetia on the night of August seventh after telling the Ossetians that there was a ceasefire just hours earlier.98 The attacks were a part of a systematic attack with a disregard for civilian lives, "resulting in large-scale damage to civilian objects and property, and civilian casualties.,,99 Finally, Saakashvili knew that the attack launched in Tskhinvali would cause excessive civilian death as he permitted the use of multiple rocket launching systems which use in populated areas is prohibited by international humanitarian law due to their "broad area effect.,,100 Having shown that Saakashvili should be found gUilty of forced displacement under command responsibility, the crime of murder will next be evaluated. B.

Murder

In Prosecutor v. Pandurevic, the ICfY Trial Chamber found Milorad Trbic gUilty of the crime against humanity of murder through the theory of command responsibility.101 He was a reserve Captain in the VRS and the direct assistant to Lieutenant Drago Nikolic, the Chief of Security of the Zvornik Brigade.102 The crimes he was tried for related to the same incidents described above dealing with the abuses upon non-Serbs in the town of Potocari. 103 Trbic was a security officer who organized, and detained, murdered thousands of the Bosnian Muslim men (including personally executed Orahovac Muslim men from Srebrenica) from July 13-17, 1995.104 In Prosecutor v. Meakic, the ICTY Trial Chamber held six individuals, Zeljko Meakic, Miroslav Kvocka, Dragoljub Prcac, Mladen Radic, Milojica Kos, and Momcilo Gruban, responsible for the crime against humanity of murder under command responsibility. 1OS These individuals oversaw the atrocities that were carried out upon Bosnian Muslims at Omarska Camp during May of 1992. 106 96 97 98 99 100 101 102 103

IN"r'L CRISIS GROUP, supra note 23, at 7. AMNESTY INT'L, supra note 1, at 5, HUMAN RIGlrrs WATCH, supra note 4, at 6. INST. FOR WAR AND PEACE REPORTING, supra note 1. HUMAN RIGIITS WATCII, supra note 4, at 6. HUMAN RIGIITS WATCH, supra note 4, at 7. Stanisic, Case No. ICfY IT-03-69, supra note 86, at Count 4-5 (murder). [d. at '1115. [d. at '11'11-11. 104 [d. at '110. 105 Prosecutor v. Meakic et ai, Case No. ICTY 95-4-1, CJl19.5 (Julyl8, 2001), available at http:// www.icty.orglx/cases/mejakic/indlen/mea-ii950213e.pdf (last visited May 5, 2010). 106 [d. at CJlCJl2.1-3.

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Omarska Camp was established after the Muslim residential areas were shelled and the civilians surrendered. 107 While at Omarska, the prisoners were beaten, tortured, raped, sexually assaulted, humiliated, and killed. IOB The individuals charged had varying levels of responsibility but did not personally take part in the killings.109 The ICfY stated they "are criminally responsible for the acts of their subordinates in the murder of Omarska prisoners. ,,110 The situation in Georgia was similar, as Georgian forces killed numerous civilians while carrying out operations in South Ossetia. l l l Their shelling of residential areas in Ossetian villages, shooting at fleeing civilians, and using prohibited weaponry in populated areas was a part of a widespread attack on the civilians of Ossetia. 112 Saakashvili most certainly knew that there would be massive civilian causalities due to his unilateral decision to invade South Ossetia as he had hours before the attack issued a ceasefire and promised the Ossetians "unlimited autonomy."ll3 These factors satisfy all the elements needed to convict the Georgian President of the crime against humanity of murder under command responsibility.114 Now, Saakashvili's actions will be analyzed in relation to the enforced disappearance of a South Ossetian civilian. C.

Enforced Disappearance

In a case before the Human Rights Chamber for Bosnia and Herzegovina, Esma Palic brought a claim against the Republika Srpska for the enforced disappearance of her husband Avdo Palic. 115 On July 27, 1995, Colonel Avdo Palic, a commander in the Army of Bosnia and Herzegovina, was negotiating with Bosnian Serbs on United Nations premises when fighting broke out and he was taken prisoner. 116 The Bosnian Serb Army was under the direction of Ratko Mladic at the time the fighting and subsequent imprisonment occurred. ll7 Ms. Palic initially brought the case against both Srpska and Bosnia and Herzegovina; however, the 107

[d. at 'lI'J!2.1-2.6.

108

/d. at 'J!2.6. [d. at 1j('J!4-7.

109

110 Meakic, supra note 105, at 'J!19.5. 111 AMNESTY INT'L, supra note ,1 at 5, 10,23-24,27-28,60; HUMAN RIGHTS WATCH, supra note 4, at 38-61. 112

[d.

INST. FOR WAR ANI) PEACE REP., supra note 1. Rome Statute, supra note 2, at arts. 7, 28. 115 Avdo and Esma Palic v. Republika Srpska, Case No. CH/99/3196 (Jan. 11,2001), 1-21, available at http://www.hrc.ba/database/decisions/CH99-3196%20Palic%20Admissibi1ity%20and %20 Merits%20E.pdf (last visited May 5, 2010). 116 [d. at 'J!2. 113 114

117

en,

[d.

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UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEW

Chamber only found responsibility with Srpska and dismissed the claim against Bosnia and Herzegovina. ltS Ms. Palic sought the relief "that the Respondent Party be ordered to provide her with complete and accurate information on her husband's fate.,,119 Ms. Palic had witnesses who confirmed seeing her husband alive, imprisoned by the VRS. 12o The Chamber found that the Republik Srpska was responsible for the enforced disappearance of Mr. Palic under the United Nations Declaration on the Protection of All Persons from Enforced Disappearance. 121 They awarded Ms. Palic a full investigation into the whereabouts of her husband, the immediate release of Mr. Palic, and if deceased his remains would be made available, costs for mental suffering and non-pecuniary damages. 122 While the Georgian authorities arrested Kabisov, as witnessed by fellow inmates, they deny he is still in their custody.123 Mikheil Saakashvili knew that civilians were being detained as they acknowledged thirty-two individuals were in their custody, but claimed they were all combatants. 124 The existence of Kabisov and his situation has been brought to the attention of the Georgian government, yet they still have not attempted to remedy the situation. 125 These actions collectively meet the elements needed to prove that Saakashvili is guilty of the crime against humanity of forced disappearance. 126 Finally, the crime against humanity of imprisonment, which occurred during the August War, will be proven. D. Imprisonment In Prosecutor v. Meakic, the same six individuals mentioned under the murder charges were found guilty of imprisonment - a crime against humanity.127 The Tribunal's Trial Chamber found them "criminally responsible for their own acts or omissions and for the acts of their subordinates in the unlawful imprisonment of the prisoners of Omarska."t2S Once again, the six fulfilled a superiorsubordinate relationship with the guards who carried out the unlawful imprison118

[d. at Cj[3. 119 Avdo and Esma Palic v. Republika Srpska, Case No. CH/99/3196 (Jan. 11,2001), CJI'II 1-21, available at http://www.hrc.ba/database/decisions/CH99-3196%20Palic%2OAdmissibility%20and%20 Merits%20E.pdf (last visited May 5,2010). 120 [d. at '112-17. 121 [d. at Cj[91(3). 122 Id .at Cj[91(3)-(13). 123 HUMAN RIGIffS WATCII, supra note 4, at 85. 124 HUMAN RIGHTS W ATCII, supra note 4, at 78. 125 HUMAN RIGHTS W ATe II , supra note 4, at 85-86. 126 Rome Statute, supra note 2, Article 7(1)(i); Int'l Crim. Court, Elements of Crimes, supra note 17, at 7(1)(i). 127 Meakic, supra note 105, at «j[19.13. 128 Meakic, supra note 105, at «j[19.t3.

THE RUCKUS IN THE CAUCASUS

239

ment. 129 They had knowledge, due to serving as superiors at the Camp, that civilians were being held unlawfully. 130 Finally, the six also failed to prevent or punish their subordinates for keeping the civilians imprisoned. 13 1 There are detailed accounts of the Georgian Army detaining civilians, depriving them of their liberty, and in some cases subjecting them to extreme physical punishment. 132 Saakashvili, as head of the armed forces who issued the attack, was fully aware of the factual circumstances and the gravity of the conduct. 133 The unlawful imprisonment of civilians was another example of the Georgian President's lack of regard for international law and the lives of civilians in South Ossetia. 134 The Georgian Army admitted to having thirty-two detainees, including civilians, they exchanged for their combatants that the Ossetians detained. 135 Thus, as the Commander of the Army, Saakashvili should be held accountable for the crime against humanity of unlawful imprisonment. CONCLUSION

The events of that took place during the five days of the August War in Georgia were triggered by the actions of Mikheil Saakashvili. The Georgian President lied to the Ossetian people on national television just hours before he shelled their villages. 136 The Georgian Army under his command terrorized the civilian popUlation of South Ossetia and committed crimes against humanity. The Georgian forces attacked residential areas where there were no military objectives, they fired upon civilians as they attempted to flee, they fired their tanks at civilian cars, they unlawfully imprisoned and beat civilians, they engaged in the enforced disappearance of a civilian, they forcefully displaced thousands of Ossetians and Abkhazians, and they used prohibited weaponry, cluster munitions in populated areas. I37 Saakashvili should be held accountable for his actions and tried in the International Criminal Court for the crimes against humanity of murder, imprisonment, enforced disappearance, and forced displacement under Article 28 of the Rome Statute, responsibility of commanders and other superiors.

129 Meakic, supra note 105, at 'iJBOOK OF FEI>ERAL INDIAN LAW

TIBETAN

U.N.

erR.

FOR HUMAN RIGHTS ANI> DEMOCRACY,

(1971).

supra note 14.

CHR, FINAL REI'ORT OF THE SPECIAL RAPPORTEUR ON HUMAN RIGHTS ANI> POPULA-

TION TRANSFER,

E/CN.4/Sub.211997/23, paragraph 51 (1997).

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UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEW

ulation without their consent, or demographic manipulation by implanting settlers, would be a breach of economic self-determination and the equality of peoples within a State.25 In the mid-1980s, the Beijing government began to encourage Chinese workers to migrate to Tibet. In 1984, The Second Work Forum announced new development projects in Tibet, which resulted in over 60,000 Chinese laborers migrating to Tibet to work on these projects. 26 Deng Xiaoping, former Secretary General of the Chinese Communist Party, openly discussed China's new policy in Tibet: Tibet is a region with a sparse population and has a vast expanse of land. The more than two million compatriots of the Tibetan nationality alone are insufficient for construction .... Some more Han people there will be conducive to the development of the local nationality economy. This is not a bad thing ....27 While it may not be a "bad thing" for the Chinese, this development policy is a source of great concern for most Tibetans. The continually growing population of Chinese transferred into Tibet has reduced the native people to a minority group in their homeland. The recent construction of the Qinghai-Tibet railway has made it much easier and more affordable for Chinese people to migrate to Tibet and marginalize the Tibetan people by gaining "control in all spheres of economic, social, and politicallife.,,28 This vast popUlation transfer is further facilitated by "special allowances" the government offers to Chinese people as incentives to settle in Tibet, including: [H]igher salaries and retirement pensions for government cadres; helping cadres to obtain housing, schooling and employment for their dependents; more relaxed family planning regulations (compared to the one-child policy which prevails through urban China); favorable tax investment policies for private entrepreneurs; increased research funds and opportunities for scientific or social personnel; the retention of benefits available in their previous work positions or places of origin, including housing and welfare benefits. -Speech by Chairman Ragdi, chairman of National People's Congress Standing Committee29

These incentives have put the Tibetans at a clear disadvantage in all realms of life. Tibetans now face discrimination in employment, education, health, and housing, as illustrated by increasing unemployment figures among the TibetalJ. 25

[d. (emphasis added). 26 TmETAN Cm. FOR HUM. RTS. & DEMOCRACY, supra note 14. 27 [d. 28 Human Rights 96 Report, CENT. TIBETAN ADMIN. (1996), http://www.tibet.netlen/index.php (last visited Nov. 28, 2010). 29 TIBETAN Cm. FOR HUM. Rrs. & DEMOCRACY, supra note 6.

THE LEGAL PROCESS OF CULTURAL GENOCIDE

249

people. 3o This process increasingly denies native Tibetans the right to self-determination. Moreover, the effect of the implantation of settlers has been to further remove control of the TIbetans. The United States, under President Andrew Jackson, used similar techniques to marginalize the Native Americans and move white settlers onto their land. When discussing how he was successful in obtaining the Native Americans' "consent" to certain land treaties, Jackson stated the treaties would not have been successful had his administration not "addressed [itself] feelingly to the predominant and governing passion of all Indian tribe, i.e., their avarice or fear.,,31 Jackson encouraged white squatters to move into Native American lands and then proceeded to tell the Native Americans that the government could not remove the whites. He would ultimately leave them with two options: cede their lands or be wiped out completely.32 Several examples in TIbetan history and Native American history exemplify the effects of population transfers on native peoples, raising serious concerns when analyzed in the context of the United Nations Commission on Human Rights' 1997 report on population transfer. A.

The Gold Rush Example

In the 1990s, the Chinese arrival into TIbet was escalated by a gold rush in Qinghai (Amdo). At a PRC Conference held in Lhasa, it was noted, "in Gansu and from Tso-ngon province to the districts of the west of Nagchu in central TIbet there are over 12,000 [Chinese] gold miners.,,33 Yet Tibetans have made it clear that they oppose the environmental destruction of their land caused by mining. The Central Tibetan Administration in Dharamsala emphasized that mining is not "development," but is simply "resource extraction.,,34 However, the Chinese have simply chosen to ignore the Law of the People's Republic of China on the Environmental Impact Assessment, adopted in 2002 (effective 2003). Article 1 of this law states that: The present Law has been enacted for the purpose of carrying out the strategy of sustainable development, [to] prevent the unfavorable impacts of programs and constructions projects upon the environment after they are 30

[d.

31

MICIIAEI. RaGIN, FATIIERS AND CIIII.DREN: ANDREW JACKSON AND THE SlJIUUGATION OF

(1975). 32 [d. 33 Annual Report, 1997 -China in Tibet: Striking Hard Against Human Rights, TmETAN em. FOR HUM. Rrs. & DEMOCRACY (1997). http://www.tchrd.orglpublicationslannuaI3eportslI997/. 34 CENT. TIBETAN ADMIN •• supra note 28.

TilE AMERICAN INDIAN

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carried out, and [to] promote the concerted development of the economy, society and environment. 35 In the gold mining mountains of Tibet, "an estimated 200 tons of rock yield 1 ounce of gold, 80% of which are used for nonessential applications such as jewelry.,,36 Additionally, large amounts of toxic cyanide, the chemical being used by the gold mining industry in Tibet, are polluting local rivers, yet the Chinese government ignores the grave downstream environmental risks. 37 The cyanide leakage affects not only the native Tibetan people, who must continually relocate as larger areas of Tibet are mined, but also the migrant Chinese workers who are exposed to and suffer from their dangerous work environments.38 While the current gold rush in Tibet has not yet escalated into a crisis, one can anticipate a likely future by looking at the path of the gold rush in the United States. While over 150,000 Native Americans lived sustainably in California prior to the gold rush, by 1870 (only 22 years after James Marshall discovered gold in northern California), there remained an estimated native population of only 31,000.39 While most Native Americans perished from diseases brought by the "4gers," many Native Americans were also removed from their lands, enslaved, and even brutally massacred. 40 In January of 1851, California Governor Peter H. Burnett even promised the California legislature that "a war of extermination will continue to be waged between the two races until the Indian race becomes extinct. ,,4 I Like the process currently underway in TIbet, the California gold rush saw the destruction of much of its local environment. Gold miners in California removed 12 billion tons of earth excavating riverbeds and blasting apart hillsides. The miners also used mercury to extract gold from the ore, dumping over 7,600 tons of the toxic chemical into rivers and lakes. 42 In both the U.S. and China, economic interests have seemingly superseded the livelihoods of indigenous peoples as well as environmental sustainability. IV.

CULTURE

I

RELIGIOUS LAW

The United Nations Convention No. 169's preamble acknowledges "the aspirations of [indigenous] peoples to exercise control over their own institutions, 35 Law of the People's Republic of China on the Environmental Impact Assessment,

CHINA

(Sept. 1, 2003), http://www.chinaenvironmentallaw.com/wp-contentJuploads/2008/03/environmental-impact-assessment-Iaw.doc. 36 T ASHI TSERING, TIBET'S GOLI) RUSII IN THE INTERNATIONAL MARKET (2006). 37 Jd. ENVIL. LAW

38 Scurr LECKIE, DESTRlJCnON BY DESIGN (1995). 39 1.S. HOI.II)AY, RUSH FOI{ RICIIES: GOLD FEVER ANI> 40 Id. 41 Id. 42 Id.

TilE MAKING OF CAI.IFORNIA

(1996).

THE LEGAL PROCESS OF CULTURAL GENOCIDE

251

ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live."43 Article 8 of the United Nations ILO Convention No. 169 goes even further and states that indigenous peoples "shall have the right to retain their own customs and institutions, where these are not incompatible with the fundamental rights defined by the national legal system and with internationally recognized human rights.,,44 However, an examination of the ways the U.S. and China have handled the religious and cultural views of the Native Americans and Tibetans calls into serious question how well these two U.N. member states uphold the declarations in Convention No. 169. Both governments were and continue to be quick to judge the indigenous lifestyles of the native peoples they sought to assimilate. Thomas Jefferson was known for saying the best way to deal with the Native Americans was to bring them into "civilization. ,,45 President Andrew Jackson echoed this message in his first annual address to Congress when he stated, "[f]or Indians, it will perhaps cause them, gradually, under the protection of government and through the influence of good counsels, to cast off their savage habits and become an interesting, civilized, Christian society.,,46 There has been no attempt by either government to try to understand the indigenous peoples' way of life. Recently in China, for example, State Order No.5: Management Measures for the Reincarnation of Living Buddhas in Tibetan Buddhism, was passed by the State Administration of Religious Affairs. The law states in short that the Chinese government must approve all reincarnated Tibetan Buddhist lamas. 47 This law is a deliberate attack on the history and tradition of Tibetan Buddhism and an attempt to undermine the power of the exiled fourteenth Dalai Lama. The concept of reincarnation in Tibetan Buddhism is an essential part of the religion and is crucial to understanding the real implications of this law. Since the 14th century, Tibetans have believed that enlightened leaders return to the human world in the same mind-consciousness but in a new physical body. For example, the current Dalai Lama, Tenzin Gyatsowho, is the 14th reincarnation of the spiritual leader of Tibetan Buddhism. Through State Order No.5, the Chinese are attempting to destroy the tradition of identifying new, reincarnated lamas. 43 44 45

U.N. HCHR, supra note 13. Id. JOEL H. SPRING, TilE ClILTURAI.

TRANSFORMATION OF A NATIVE AMERICAN FAMII.Y ANI)

1763-1995 (1996). 46 President Andrew Jackson's Case for the Removal Act: First Annual Message 10 Congress, B Dec. IB29, available at http://www.mtho)yoke.edu/acad/intrellandrew.htm. 47 State Order No.5: Management Measures for the Reincarnation of Living Buddhas in Tibetan Buddhism (2007), http://www.freetibet.orglaboutlorder-number-5. ITS TRIBE,

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This process began in May 1995, when the 14th Dalai Lama recognized sixyear-old Gendun Choekyi Nyima as the 11th Panchen Lama. Immediately thereafter, Chinese security personnel took Nyima from his home on May 17, 1995, and he has not been seen since. 48 After international uproar, the Chinese government decided to change the law so it would have direct influence in the reincarnation process. Specifically, in State Order No.5, "those with particularly great impact shall be reported to the State Council for approval. ,,49 The Order also imposes criminal sanctions on anyone, including the exiled Dalai Lama, who participates in the location and recognition of reincarnates. It states that "no group or individual may without authorization carry out any activities related to searching for or recognizing reincarnating living Buddha.,,5o This Order not only addresses the reincarnations, but also places further demands and restrictions on all TIbetan religious figures (monks, nuns, etc.). Article 1 states that the purpose of this Order is to "protect the principles of the unification of the state. ,,51 In TIbetan monasteries, Patriotic Education programs require religious figures to say that TIbet has always been a part of China and denounce the 14th Dalai Lama. 52 Further, Article 12 ensures state control over the religious teachings, dictating that "the management organization at the monastery where [a monk] is registered shall formulate a training plan, recommend a scripture teacher and submit the plan [for official review]."s3 Failure to comply with this law results in the criminal prosecution of those who question Chinese policies in Tibet. All articles of this law are an overt attempt by the Chinese government to use the influence of Tibetan religious figureheads to maintain control over the TIbetan religious establishment and people. The Chinese government's actions suggest the view that TIbetan Buddhism is a potential threat to the authority of the state and the "unity" of the PRC, and therefore seeks to ensure that all religious heads are loyal to China.54 Like the Chinese government's actions, the United States also took legal measures to control the Native American population and conduct internal affairs to further consolidate power over their everyday lives. Once Andrew Jackson was elected president, Alabama, Mississippi, and Georgia began to pass laws to extend state rule over the Native Americans. "These laws did away with the tribe as 48 Gedhun Choekyi Nyima the Xltlz Pane/,en Lama Turns 18: Still Disappeared, TIlE BUDDlIIST (2007), http://www.buddhistchannel.tv/index.php?id=70,4013,0,0,1,0. 49 State Order No.5, supra note 47. 50 Id. 51 Id. 52 New State Regulations on Recognition of Tibetan Reincarnates, INT'L CAMPAI(jN FOR TIBET DElJTSCllLAND E. Y. (2007), http://www.savetibet.de/. 53 State Order No.5, supra note 47. 54 Irn'L CAMPAIGN FOR TIBET DEUTSCIILAND H.Y., supra note 52.

ClIANNEI.

THE LEGAL PROCESS OF CULTURAL GENOCIDE

253

a legal unit, outlawed tribal meetings, took away the chiefs' powers, made the Indians subject to militia duty and state taxes, but denied them the right to vote, to bring suits, or to testify in court.,,55 The United States was as eager as today's Chinese government to meddle in the affairs of indigenous peoples and to ban traditional aspects of their culture, such as tribal meetings. Like the Tibetan Buddhists, the Cherokees in Georgia followed a policy of nonviolence, "though their property was being taken, their homes were being burned, their schools were closed, their women mistreated, and liquor was being sold in their churches to render them even more helpless.,,56 Unfortunately, this peaceful and nonviolent way of life is arguably what enabled the U.S. and Chinese to consolidate power over the respective indigenous groups.

v.

IGNORING THE RULE OF LAW

The United States has persistently encouraged the Chinese to adopt a political system that follows the rule of law. When former U.S. President Jimmy Carter spoke at the China University of Political Science and Law, he noted how he would like to see the dreams of former Chinese political leader Sun Yet-Sen fulfilled: "a unified, peaceful and democratic China to be governed by the rule of law.,,57 However, in a historical context, it has often been the case that the U.S. ignored the rule of law in order to carry out its goals contrary to those of the Native Americans. Likely, the most well known example of this was the United States Supreme Court case of Worcester v. Georgia. 58 This case arose following the passing of a Georgia state law in 1832 that required all white people living within Native American territory to obtain a state license and to take an oath of allegiance to the state of Georgia and the United States. Several white missionaries that had been living in the Cherokee territory ignored the orders of the new law and were arrested and sentenced to hard labor upon their refusal to leave the territory. One of the missionaries, Samuel Worcester, was particularly targeted because of his support of Cherokee resistance to the U.S. Indian Removal policy. Because of his political association, Worcester knew that if he applied for one of the state licenses, he would be denied. He therefore filed suit against the state of Georgia questioning the legitimacy of the new law following his arrest. 59 The case eventually made it to the U.S. Supreme Court, where Chief Justice John Marshall wrote the opinion for the majority. The Court held that Native American tribes were "dependent domestic nations" with rights to lands they did 55

HOWARD ZINN, A PEOJ>l.E'S HISTOItY

56

[d.

OF

TilE UNITED STATES: 1492-PRESENT (2003).

57 Jimmy Carter, Rule of Law and Social Harmony in China, CIIINA EI.ECTIONS & GOVERN. ANCE (2007), available at http://chinaelectionsblog.netl?p=7912. 58 Worcester v. Georgia, 31 U.S. 515 (1832). 59 Zinn, supra note 55.

254

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not voluntarily cede to the United States.60 Marshall noted that the law under which Worcester was jailed violated the treaty with the Cherokees, which, per the Constitution, was binding on the states.61 Nonetheless, the state of Georgia ignored the Supreme Court decision, as did the federal government. It is reported that after the Supreme Court issued its decision, President Andrew Jackson stated, "John Marshall has made his decision; now let him enforce it.,,62 Federal troops began expelling the Cherokee tribes, ignoring the Court's decision, and Georgia eventually put the Cherokee land on sale and used the militia to crush Cherokee resistance. Given the United States history of ignoring the rule of law, it seems hypocritical that the U.S. would now try and pressure China into following international law. Yet, as Jimmy Carter also noted, "I have seen China make tremendous progress in economic growth, rule of law, transparency, and democracy.,,63 This alleged "progress" is nevertheless difficult to observe in light of China's disregard for the rule of law in its Tibet policy. For example, in 1989, during a period of martial law in Lhasa, all Tibetans without residence permits (an estimated 40,000) were forcibly removed and returned to their birthplace villages. 64 During this time, there were also numerous police raids in which private households in urban areas of Tibet were invaded and any "separatist" items (e.g. pictures, writings, videos of Dalai Lama) seized. "These intimidatory searches, whichever their motivation, are clear breaches of the human right to privacy which is integral to the right to security of tenure.... [and] is also guaranteed in the Article 10 of China's Constitution. ,,65 China has continually failed to respect the rule of law with regard to Tibetan policy and is following the example set by the United States with regard to its treatment of Native Americans. The issue then becomes how to get both the United States and China to adhere to international human rights law and address these serious issues that Tibetans and Native Americans continue to face. The following section examines the methods and tactics that can be used to improve the situations of both the Tibetans and Native Americans. VI.

CONCLUSIONS AND SOLUTIONS

On Tibet, President [Obama] said that human rights are an essential aspect, central component, of U.S. foreign policy; that we are going to speak frankly about differences as well as about areas of cooperation .... But this 60 Worcester v. Georgia, supra note 58. 61

Id.

62 PETER IRONS, A PEOPLE'S HISTORY OF TilE SUPREME COURT (2006). 63 Jimmy Carter, supra note 57. 64 An Analysis of the Situation Regarding the Right to Adequate Housing in Tibet, INT'L COALITION

65 Six Years for Watching Dalai Lama Video, (2001).

HABITAT

(1992). TIBETAN erR. FOR HUM.

Rrs. &

DEMOCRACY

THE LEGAL PROCESS OF CULTURAL GENOCIDE

255

is an area of difference. He expressed concern over the human rights situation in Tibet. -Statement from the White House during the G20 summit in London, 1 April 2009 While the White House states that human rights are an essential aspect of U.S. foreign policy, there is no mention of domestic policy regarding the human rights abuses that have affected and continue to affect Native Americans at home. Additionally, as of yet, President Obama's words regarding Tibet have been followed with little or no action. In the same way that the United States used the law to further its economic and political interests against Native Americans, the PRC has used the law and continues to commit grave human rights violations against the Tibetans' way of life. Since the "Peaceful Liberation of Tibet" in 194950, Tibetans have continually been denied ownership and effective control of their land. "Commencing from China's redrawing of the map of Tibet, continuing with the mass confiscation of land, through to the dictation of resource-management directives and policies, Tibetans have little say in the use of their traditional lands. ,,66 This land abuse is demonstrated through the destruction of ecologically sustainable land management systems by the Chinese government's implementation of new "development" laws. Tibetans are being removed from lands that they have lived on for centuries using a process that remarkably emulates that of Native American removal policies put in place by the United States. Along with the inequality and discrimination that exists in both land and housing developments is the continuous migration of Chinese settlers into Tibet. This movement results in Chinese control of access to most resources because ultimately "Tibetans simply do not have the same access to services as Chinese.,,67 The Chinese destruction of Tibetan culture mirrors the same path that the United States pursued to assimilate the Native Americans. The following examines what the future entails for Tibetans and how U.S. policy can help use international human rights law to engage the Chinese in decreasing its human rights violations. A.

The Future and Role of International Human Rights

In his lecture, A United States Human Rights Policy for the 21st Century, Harold Hongju Koh lays out his ideas for how the United States can promote international human rights across the globe. 68 Koh begins with a discussion about the development of international human rights law: 66 TIBETAN CTR. FOR HUM. Rrs. & DEMOCRACY, supra note 6. 67 Id. 68 Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 ST. U. L.J. 293 (2002).

LatHS

256

UNIVERSITY OF nlE DIS'IlUCT OF COLUMBIA LAW REVIEW

[I]n the wake of the Holocaust, the paradigmatic human rights violation was genocide. To prevent future genocides, global human rights policy principally focused on standard-setting, and to some extent -with the Tribunals at Nuremberg and Tokyo- on accountability and on institution-building. But the principal focus of this first era -"the age of universalization"- was on the universalization of human rights norms. On examination, these standardsetting efforts found remarkable success. International human rights law has won nearly universal acceptance from nations around the globe and has been formalized through many instruments. Although in practice abuses continue, since the 1993 Vienna World Conference on International Human Rights, few now seriously question the universality of international human rights norms. 69 While the U.S. has promoted international human rights as a "rhetorical cornerstone" of its foreign policy, it "has been criticized for the gap between its stated human rights principles and its political actions. ,,70 The issue for Koh, then, is how to take these international human rights norms and implement them while ensuring that the United States, as well as the rest of the world, actually adheres to these norms. Koh notes that the United States must first start by "telling the truth" about human rights conditions at home and around the world, "however painful or unwelcome that truth might be. ,,71 We must seriously acknowledge the atrocities against Native Americans that happened on our own soil, although "the State Department has no congressional mandate to report on human rights conditions [with]in the United States."n We must re-write our history books that glorify Christopher Columbus as a hero and founder of our country, and teach our children the reality of Columbus' interactions with Native Americans. Collectively, we must start by being honest about our own human rights abuses before we can critique a country like China for its abuses against the Tibetans. "In implementing a twenty-first century human rights policy, it is necessary but not sufficient to tell the truth about human rights conditions abroad and at home. We also need to take consistent positions with regard to the past, present and future abuses. ,,73 Before we can move to the future and critique a country like China about their human rights abuses, we must first lead by example by seriously acknowledging the genocide of Native Americans in our country. 69 70 71 72 73 U. LJ.,

Id. (emphasis added). Id. Id. at 306. Id. at 307. Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 ST. LoUIS 293, 311 (2002).

THE LEGAL PROCESS OF CULTURAL GENOCIDE

B.

257

Inside/Outside Engagement

If we genuinely want to aid the Tibetans in their own struggle to preserve their identity, we must first acknowledge that "indeed, in any given country, human rights change more frequently comes from the inside, bottom-up, than from the outside, top-down." Therefore, the goal of the United States should be to persuade China, over time, to accept the human rights norms of the international community as internal norms, a technique Koh calls "inside/outside engagement," which includes:

"[I]nside" diplomatic channels for government-to-government dialogue against a background of "outside" sanctions. Thus a consistent strategy to stop ongoing abuses with those countries to whom we have diplomatic relations thus requires us to use an inside/outside approach that combines techniques of internal persuasion with techniques of external pressure.14 This can be extremely difficult, especially with a country like China, which has a tight grip on the information that its citizens obtain from various media outlets. However, this approach is more sensible than that of sanctions alone. After we seriously inform our own citizens of the harsh realities of our own treatment of Native Americans, we must engage the Chinese citizens to fully understand what is currently happening to the TIbetans. There is presently a clear disconnect between the ways each group understands the situation. Like U.S. history books, and similar to what was mentioned earlier in this article, the Chinese have rewritten history to ignore the harsh realities of what really is happening in Tibet. A disconnect regarding the realities of the situation with Native Americans are prevalent in China as well. The logic of the inside/outside approach can be summarized in the following example: If, for example, you and your neighbors want to stop a rich and powerful neighbo~ from littering the neighborhood or playing loud music, there is only so much you can achieve by threats, calling the police or even by getting a court order. Sanctions and the fear of sanctions may spur short-term compliance, but will just as likely incur long-term resentment and non-cooperation by the target neighbor. Over time, the strategy most likely to work is, therefore, one that uses dialogue and sanctions in concert to persuade the neighbor to follow, and ultimately internalize, the community norm against littering or boisterous music. In short, the policy objective should be not simply short-term behavioral change, but long-term revision of the internalized norms that drive the neighbor's social conduct.75

74 75

[d., supra note 68, at 316-317 (emphasis added). [d., supra note 68, at 317 (emphasis added).

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A real-life example of this scenario can been seen when examining the way the Clinton Administration used an array of "inside/outside methods" as a part of a strategy to engage China on human rights issues in the 1990s. The following ten examples (five "inside" and five "outside") demonstrate this approach. The "inside" approach included: 1) direct diplomatic demarches; 2) conducting a human rights dialogue in which the Clinton Administration reviewed the status of Chinese human rights conditions face-to-face with Chinese officials; 3) expanding the people-to-people dialogue with Chinese citizens; 4) taking measures to promote expansion of Internet access; and 5) supporting the forces working toward Chinese decentralization, through meetings with dissidents, Radio Free Asia broadcasts, and the like?6 The "outside" approach included: 1) publically condemning illegal arrests; 2) issuing human rights reports chronicling Chinese human rights abuses; 3) designating China for sanctions under the International Religious Freedom Act; 4) joining with other Western allies to press the Chinese to ratify the Covenants on Civil and Political Rights and Economic, Social and Cultural Rights; and 5) sponsoring resolutions each year at the United Nations Human Rights Commission calling attention to China's human rights abuses?7 While this engagement strategy with China from the Clinton Administration achieved only limited human rights improvements, Koh notes that under the circumstances, this strategy is the only reasonable long-term approach to confront ongoing abuse, and, in fact, a similar approach with Turkey had more noticeable success over time?S This does not negate the importance of using United Nations procedures for dealing with violations of human rights. However, it is important to recognize that these methods can often prove to be very difficult, especially given the unique circumstances of indigenous groups like the Tibetans. For example, the United Nations complaint procedure for violations of human rights requires that all domestic remedies be exhausted before bringing a complaint to the United Nations?9 Most Tibetans are too fearful to attempt to use domestic remedies in China, as the repercussions of taking such action could result in serious harm to themselves, their families, or even their community as a whole. so This is why, as Koh suggests, it is especially important to use not just "outside" approaches but "inside" approaches as well. s1

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[d. at 318. [d.

[d. at 319. 79 U.N. HRC, Human Rights Council Complaint Procedure (June 18,2007), hup:/Iwww2.ohchr. orglenglish/bodies/chr/complaints.htm. 80 TIBETAN erR. FOR HUM. Rl's. & DEMOCRACY, supra note 6. 81 Koh, supra note 68. 78

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The recent global economic crisis has made addressing China's human rights abuses much more difficult for the United States. Secretary of State Hilary Clinton was recently criticized by numerous human rights organizations for saying that "human rights violations by China cannot block the possibility of significant cooperation between Washington and Beijing on the global economic crisis. ,,82 Amnesty International has been very critical of Clinton, arguing that the United States is one of the only countries that can meaningfully stand up to China on human rights issues. With help from numerous international human rights organizations like Amnesty International, it is important to remember that the struggle continues. Contemporary groups of TIbetans and Native Americans are continually resisting, fighting for their self-preservation and sovereignty. The goal of this analysis has been to shed light on the similarities between these two major struggles, revealing the vast injustices, but also to illustrate how indigenous groups historically have resisted and will continue to resist. In closing, the struggle of both the TIbetans and the Native Americans can be felt through Chief Black Hawk's speech after his defeat to the United States in 1832:

I fought hard. But your guns were well aimed. The bullets flew like birds in the air, and whizzed by our ears like the wind through the trees in the winter. My warriors fell around me .... The sun rose dim on us in the morning, and at night it sunk in a dark cloud, and looked like a ball of fire. That was the last sun that shone on Black Hawk .... He is now a prisoner to the white men .... He has done nothing for which an Indian ought to be ashamed. He has fought for his countrymen, the squaws and papooses, against white men, who came, year after year, to cheat them and take away their lands. You know the cause of our making war. It is known to all white men. They ought to be ashamed of it. The white men despise the Indians, and drive them from their homes. But the Indians are not deceitful. The white men speak bad of the Indian, and took at him spitefully. But the Indian does not tell lies; Indians do not steal. An Indian who is as bad as the white men, could not live in our nation; he would be put to death, and eaten up by the wolves. The white men are bad school-masters; they carry false books, and deal in false actions; they smile in the face of the poor Indian to cheat him; they shake them by the hand to gain their confidence, to make them drunk, to deceive them, and ruin our wives. We told them to leave us alone; but they followed on and beset our 82 Glenn Kessler, Clinton Criticized for Not Trying to Force China's Hand, 21, 2009.

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paths, and they coiled themselves among us like the snake. They poisoned us by their touch. We were not safe. We lived in danger. We were becoming like them, hypocrites and liars, adulterers, lazy drones, all talkers, and no workers .... The white men do not scalp the head; but they do worse-they poison the heart .... Farewell my nation! ... Farewell to Black Hawk. 83 *

83 Chief Black Hawk surrender speech (1832), http://www.mtholyoke.edu/acadlintrel/black.htm. * Special thanks to the UDC Law Review Editorial Board, Senior Editors and Associate Editors; Shannon and Brooke for your guidance; Jen, Yarrow, Jackson, Frank Jr., Joann, and Larry for your inspiration; and Frank III, Theresa, Christian, Coury, Phil, and Hannah for your continued love and support. Finally, I would like to thank Sam and Glenna Hazen for never failing to remind me that we still have so much work to get done! "Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King, Jr.