November 16, 2009 by Marisa Floriani
Ian Group, Government Law Review member
It is relatively rare that in adulthood we are faced with vaccinations as most are administered during childhood, for federal law requires United States residents to be vaccinated for diseases such as measles, rubella and polio.[1] Similarly, New York State requires residents be vaccinated for measles, mumps, and rubella.[2] But whereas shots as we know them are like a right of passage for children, the widely publicized 2009-H1N1 epidemic presented health care workers in New York State with an interesting dilemma: a regulation requiring them to get an immunization shot for the virus.
In his response to the epidemic, the Commissioner of the New York State Department of Health, Dr. Richard F. Daines, M.D., announced a regulation from the New York State Hospital Review and Planning Council requiring all health care workers[3] in New York State be vaccinated with both the seasonal flu and 2009-H1N1 flu vaccination by November 30th of this year.[4]
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Posted in Constitutional Law, Health Law, Uncategorized | Tagged 179 ny 235, 197 us 11 1905, 2009 strain of h1n1, 562 nys2d 605, center for disease control and prevention, donald s burke, Food and Drug Administration, fourteenth amendment, H1N1, jacobson v. massachusetts, mandatory vaccinations, New York State Department of Health, public health emergency, richard e besser, Richard F. Daines, ritterband v. axelrod, Secretary of the Department of Health and Human Services, shanta m zimmer, Swine Flu, swine flu vaccinations, vaccinations, viemeister v. white | Leave a Comment »
November 9, 2009 by Marisa Floriani
Stephen Dushko, Editing Chair for the AGLR Fireplace Blog, Staff Writer
For better or worse, the digital age has provided teenagers with a plethora of new means of exploring their nascent sexuality. Prominent among these practices is that of “sexting.” According to the plaintiffs in the case Miller v. Skumanick,[1] “sexting” is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.”[2] According to studies cited by the court in Miller, about twenty percent of Americans aged thirteen to nineteen have “sexted.”[3] This kind of behavior creates a singular set of problems, particularly because it is engaged in by minors.[4] While laws covering child pornography were aimed at protecting minors from predatory activities by adults, the laws do not exempt minors themselves from criminal liability for possessing or distributing “pornographic material.” Thus, teenagers who engage in activities like “sexting” may, perhaps unknowingly, be risking exposure to sexual predators and the full force of the law.[5]
Miller provides an instance where the effect of the law may be more deleterious than the conduct it punishes.[6] Among the images involved in that case were those of Marissa Miller who, at age twelve, had taken photographs of herself and a friend, from the waist up, wearing bras.[7] Skumanick, the District Attorney for Wyoming County, PA, promised to prosecute Miller, as well as other students involved in images he claimed fit the definition of “child pornography,” unless they submitted to probation, fines, and a six-to-nine month program geared toward counseling and education.[8] Miller, her mother, and an anonymous mother and daughter, threatened by the possibility of prosecution, sued. They obtained a temporary restraining order on March 30, 2009.[9]
Due to the great interest in protecting the welfare of children, the penalties for possession and distribution of child pornography are harsh.[10] However, when those penalties have the potential to be turned against the children they seek to protect, it cannot rightfully be said that such interests are in fact being served. This is not to say that all teen activities involving “sexting” or like practices are benign. In Florida, eighteen-year-old Philip Alpert landed himself a felony conviction and a place on the sex offender registry for forwarding a naked picture of his then-girlfriend to her friends and family after the young couple had gotten in a fight.[11] Alpert will remain on the sex offender registry until he is forty-three.[12] The consequences were even more dire for Jessica Logan, a teenager who hung herself after her boyfriend forwarded a nude photo meant only for him to students in several high schools.[13] Continue Reading »
Posted in Uncategorized | Tagged Adam Walsh Child Protection and Safety Act, child pornography laws, Jessica Logan, marissa miller, Miller v. Skumanick, Philip Alpert, Riva Richmond, sexting | 2 Comments »
October 26, 2009 by Marisa Floriani
Danielle A. Erickson, Staff Writer
On September 14, 2009, New York City’s Health Commissioner, Dr. Thomas A. Farley, announced that he would strive to ban smoking in city parks and beaches.[1] A few years ago, on March 26, 2003, New York legislators approved and Governor Pataki signed a state-wide smoking ban that took effect July 24, 2003.[2] This ban forced cigarette smokers outside- banning smoking in offices, train stations, bars and other public places.[3] The new ban would restrict the areas in which smokers are free to “light up” even further by designating, “1,700 parks and outdoor recreational areas, along with the city’s seven beaches, extending up to 14 miles of shoreline” as smoke free.[4] When questioned about this new ban, Mr. Farley stated that, “[w]e don’t think it’s too far to say that people shouldn’t be smoking in parks.”[5] He then went on to say that, “parents shouldn’t have to breathe smoke while standing on the sidelines of their children’s soccer games, and children shouldn’t even have to look at adults smoking.”[6]
The proposed ban seeks to expand “smoke free” areas in order to further protect the public from the dangers of second-hand smoke and as a tool to reduce the number of smokers overall.[7] Supporters look to the success of the 2003 ban, which gained widespread acceptance and is credited for helping to reduce the city’s smoking rate from 21.5 percent in 2002 to 16.9 percent in 2007.[8] Dr. David Kessler, former Food and Drug Administration commissioner, agrees that second hand smoke is a very real issue and states that “[w]hile undoubtedly some will think this is going too far, 10 years from now, we’ll look back and ask how could it have been otherwise. It’s not only us, but our kids in these parks and beaches.”[9] Dr. Kessler referred to health department statistics, which reveal that 7,500 city residents die each year as a result of smoking related diseases and that 6.9 percent of adult New Yorker’s smoke.[10]
But even with the goal of the proposed ban being to protect the health of city residents, is that enough to pass what could easily be seen as legislation that would effectively restrict the rights and freedoms of a class of people referred to as “smokers”? While the ban championed support from health advocates, and is being promoted by City council Speaker Christine Quinn, it still may require the approval of the City Council.[11] New York Mayor Michael Bloomberg, who is known for his anti-smoking campaigns, was caught off guard by the proposal.[12] Bloomberg, who seemed to want to soften the impact of the proposal, qualified it by saying that he wanted “to see if smoking in parks has a negative impact on people’s health.”[13] Additionally, he stated that, “[i]t may not be logistically possible to enforce a ban across thousands of acres, but there may be areas within parks where restricting smoking can protect health.”[14]
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Posted in Uncategorized | Tagged Christine Quinn, Clinton v. Brown & Williamson Holdings, David Kessler, Food and Drug Administration, smoking laws, Thomas A Farley | Leave a Comment »
October 19, 2009 by Marisa Floriani
Edward J. Rao, Topics Chair, Staff Writer
On September 8, a federal judge for the Eastern District of New York ruled that New York State violated Title II of the Americans with Disabilities Act (“ADA”) as well as Section 504 of the Rehabilitation Act by failing to provide housing and services “in the most integrated setting” to nearly 4,300 individuals currently living in “Adult Homes” under the supervision of the state.[1] The 210-page opinion, authored by United States District Judge Nicholas G. Garaufis, stated that the “integration mandate” of both the Americans With Disabilities Act and the Rehabilitation Act was violated when individuals who could otherwise be thriving in supported housing, offering them most all of the amenities of their nondisabled peers, languished in Adult Homes, which the Court likened to “de facto institutions and satellite mental institutions.”[2]
As reported by the New York Times on September 8, the ruling appears “likely to affect similar cases in other states.”[3] The suit was filed by Disability Advocates, Inc., an organization aimed at protecting the rights of people with disabilities.[4] The named defendants included New York Governor David Paterson, as well as the commissioners of the New York Department of Heath and the New York Department of Mental Health, respectively. At the core of plaintiff’s argument was the notion that by not enabling residents to “interact[] to the fullest extent possible with nondisabled persons[,]” New York’s services ran afoul of the United States Supreme Court’s mandate in the landmark disability rights case Olmstead v. L.C. By Zimring.[5] The Court agreed, holding that:
Supported housing is an integrated, community-based setting that enables interaction with nondisabled persons to the fullest extent possible. People who live in supported housing have the autonomy to live and participate in their communities in essentially the same ways as people without disabilities. Simply put, residents of supported housing are not defined by the setting in which they receive services. Residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community.[6]
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Posted in Constitutional Law, Equal Protection, Health Law, Judges, Prosecution, Uncategorized | Tagged 164 F. Supp. 2d 591, 1999 U.S. Dist. LEXIS 22469, 2009 WL 2872833, 24 Harv. J.L. & Pub. Pol'y 695, 527 US 581 (1999), ADA, adult homes, Americans with Disabilities Act, Benjamin H. V. Ohl, Disability Advocates, Justice Ginsburg, New York Department of Mental Health, New York Times, Nicholas G. Garaufis, Olmstead v. LC by Zimring, Rehabilitation ACt, Williams v. Wasserman | 1 Comment »
October 12, 2009 by Marisa Floriani
Shane J. Egan, Staff Writer
New York State is facing growing budget deficits that are a threat to the long-term viability of the state.[1] New York State leaders will have to make some very difficult choices in the months and years ahead about how to close these record budget deficits. The financial panic of last fall combined with the historic economic downturn that followed will mean that the state will have to spend less. According to State Comptroller Thomas DiNapoli, New York depends on Wall Street for up to twenty percent of its revenue.[2] While it is likely that we have made it through the worst of this recession, the New York State government will have to adapt to this new economic reality.
New York has very few good options to close the budget gap. The state could, of course, raise taxes, but in this author’s opinion, this is not the right course of action because raising taxes on an already overtaxed state[3] will only stifle economic growth and innovation. Borrowing money is another option that is simply not feasible. The Governor has stated that he, “fears rating agencies would downgrade the state’s credit standing if New York used loans to address the financial crisis.”[4] Finally, the aid New York State receives from the American Investment and Recovery Act is only a short-term solution to the state’s budget deficit, which does nothing to solve the underlying problem — too much spending.
One area where spending can be cut is in the form of state aid to local government entities.[5] Reducing the number of local government entities will allow the state to reduce its expenditure on aid to local government entities and at the same time help avoid painful cuts in important areas like education and healthcare. New York State Attorney General Andrew Cuomo has put forward a plan that overhauls the current process of municipal consolidation.[6] The plan streamlines the process of consolidation by allowing municipalities to consolidate in a more efficient manner.
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Posted in Civil Procedure, Constitutional Law, Municipal Law, Uncategorized | Tagged American Investment and Recovery Act, Andrew Cuomo, consolidation, Fred Lebrun, Kenneth Lovett, Matt Woolsey, New York budget, NY Constitution, NY General municipal law, NY Village Law, property tax, Thomas DiNapoli, Valierie Bauman, Wall Street | 2 Comments »
October 5, 2009 by Marisa Floriani
Sara Mase, Staff Writer
Political scandal has long been the fodder for juicy media stories. In just the last several decades there have been numerous examples of poorly behaving public officials – but the most recent is John Edwards. After losing the vice-presidency in 2004, losing the presidential race in 2008, and finding out that his wife has cancer you wouldn’t think that life could get much worse for him.[1] Enter, Rielle Hunter, a videographer during his 2008 presidential bid.[2] In July 2008, Edwards admitted to having an extramarital affair with her, that ended in 2006, but that appears to only be the tip of the iceberg.[3] Earlier this year, on May 3, 2009, Edwards admitted “that federal investigators [were] looking into the handling of” his campaign finances during his 2008 run for the presidential nomination.[4]
Specifically, investigators are looking into money and gifts, including a BMW, that were paid to Ms. Hunter during the campaign.[5] These included:
Benefits Ms. Hunter received from the two Edwards supporters, Fred Baron, a wealthy trial lawyer from Dallas who has since died, and Rachel Mellon, known as Bunny, a 99-year-old heiress to the Mellon fortune. Before his death, Mr. Baron said in a statement that he paid Ms. Hunter and helped move her and [an aide] to California and other places on his own initiative, without informing Mr. Edwards. Mr. Edwards has asserted that he knew nothing of the benefits provided to Ms. Hunter by Mr. Baron or Mrs. Mellon.[6]
In addition, investigators are also “examining some $114,000 paid by the Edwards campaign to Ms. Hunter for a series of short campaign videos she produced. About $14,000 of that money was paid to her well after the videos were produced, some through transfers from accounts and listed as for furniture purchases.”[7] Despite the investigation, “Edwards has maintained that there was no impropriety in campaign payments for Hunter’s work.”[8]
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Posted in Uncategorized | Tagged campaign contributions, campaign oriented spending, Federal Election Campaign Act, federal grand jury, hush money, John Edwards, Rielle Hunter, Supreme Court | Leave a Comment »
October 1, 2009 by Marisa Floriani
Meredith Perry, Executive Editor of the Government Law Review
The Powers of the President in an Age of Terror—Dr. Abraham Wagner, Adjunct Professor of International and Public Affairs at the School of International and Public Affairs, Columbia University.
Dr. Wagner started his talk on the use of executive powers by the President with a discussion of September 11th. Dr. Wagner noted how prior to September 11th the United States had not been attacked since 1812, noting that at the time of Pearl Harbor, Hawaii was merely a U.S. territory and not a state. Further, the media exacerbated the magnitude of September 11th. Dr. Wagner detailed how the casualties of September 11th totaled around 3,000 and how this number is not enough to cause the end of a republic, especially when about 457,000 people die each year from smoking. Also, Dr. Wagner mentioned how September 11th was the most significant intelligence failure since the 1962 Missile Crisis. It is also important to note that during the months following September 11th, there was a great amount of limited and conflicting data.
Dr. Wagner discussed how executive power was an enormous concern of our Founding Fathers, as seen in the Federalist Papers. He transitioned to President George W. Bush’s use of executive power by pointing out that its use, throughout time, is more cyclical than serial. President Bush used executive power following September 11th, having no experience in national security, and with a “supporting cast,” which included Cheney, Rice, Rumsfeld, Tenet, Powell, Wolfowitz, and Ashcroft. The need to save the nation from impending threats, such as the report of a nuke targeting New York City (also known as the Dragonfly threat), spurred President Bush to exercise Executive Power. The Bush Doctrine changed the U.S. approach from that of strategic globalism to preemption, as is witnessed by the United State’s actions in Afghanistan and Iraq.
Through President Bush’s use of executive power, the U.S. detained foreign nationals in such prisons as Guantanamo Bay, tortured these prisoners and detainees through the implementation of secret programs (now supported by the Department of Justice’s “Torture Memos”), and instituted a domestic surveillance program. Dr. Wagner detailed how there is no approval or support for these actions under FISA, Title III of § 1986, nor the U.S. Constitution. Both of the laws governing electronic surveillance, FISA and Title III, are ancient compared to the technology used today. Dr. Wagner specifically commented that they are “best seen in the Smithsonian and not applicable to our current means of communication.” In regards to the Constitution, neither the First nor the Fourth amendments really apply. Particularly, Dr. Wagner commented that the Fourth Amendment and its right to privacy might apply in regards to preventing the “Big Brother” listening; however, there is nothing about communication explicitly anywhere in the Constitution or the Amendments.
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Posted in Uncategorized | Tagged 1962 Missile Crisis, Abraham Wagner, Article 1 Section 9, Brennan Center, Bush Doctrine, Commander-in-chief, Dragonfly threat, Emily Berman, executive privilege, Federalist Papers, FISA, Guantanamo Bay, lack of clear guidelines, Necessary and Proper Clause, presidential bias, Recess Appointment, Saikrishna Prakash, September 11th, Suspension Clause, title II of 1986, writ of habeas corpus | Leave a Comment »
October 1, 2009 by Marisa Floriani
Amanda Sherman, Managing Editor for Business and Production for the Government Law Review
Lincoln & Immigration: Angela Alexander, Instructor of History and Humanities, York Technical College
Instructor Alexander began discussing the nativist movement of the mid-1800s. This group, whose motto was “America for the Americans” believed that no foreign-born citizens should govern in America. The voice of the anti-nativist at this time was much softer, although it may not have been less popular. Instructor Alexander said that Lincoln saw each ethnic group as distinct; he had a unique conception of those who were not born in America. In the instructor’s words, “Lincoln treated people as people.” In her presentation, Instructor Alexander detailed President Lincoln’s encounters with several minority groups as a depiction of Lincoln’s conception of non-natives.
The group that Lincoln was most in contact with was the Germans, which was the most common immigrant group in Illinois in his day. Lincoln owned a German language newspaper in Springfield, and also worked and corresponded with many Germans. In a letter, circa 1858, Lincoln wrote, “Our fellow German citizens, ever true to liberty . . . not for special classes of men, but for all men. True to the union and the constitution as the best means to advance that liberty.”[1]
Additionally, Lincoln wanted to ensure that Germans could read his speeches in their own language. Although, Instructor Alexander says this was politically advantageous for Lincoln, it was mutually beneficial to the Germans. Germans and others were to be judged by their individual merit and not their nativity. The instructor went on to detail Lincoln’s encounters with the Jewish and Irish population. She spoke of Lincoln’s handling of General Ulysses S. Grant’s denial of orders to pay permits for Jewish individuals in 1862 as a demonstration of his ability to divorce himself from certain political or social pressures in order to do what he felt was necessary.
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Posted in Uncategorized | Tagged Act to Encourage Immigration, Angela Alexander, anti-nativist, Burlingame Treaty, chinese immigration, Comprehensivce Immigration Reform, Coolie Trade, General Ulysses S. Grant, nativism, Renee Redman, Stephen Douglas | 1 Comment »
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