February 7, 2010 by Marisa Floriani
Fatin Haddad, Government Law Review member
According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy.[1] College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl.[2] The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.[3]
While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy.[4] She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time. This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.”[5] Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned.[6] Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.[7]
The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards.[8] In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.
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Posted in Constitutional Law, Health Law, Religion | Tagged 395 US 44, 553 us 285, abortion, anti-abortion, Brandenburg v. Ohio, CBS, clear and present danger, colts, First Amendment, freedom of speech, Heisman Trophy, pro-choice, pro-life, saints, super bowl 2010, super bowl commercials, tebow commercial, tim tebow, United States v. Ohio, Women's media center | 1 Comment »
February 1, 2010 by Marisa Floriani
Mike Telfer, Government Law Review Member
Background
In the area of medical decision making, minors “are presumed incompetent, and thus require the aid of parents or guardians to assist in the decision-making process.” [1] Under common law, doctors were required “to obtain parental consent before treating a minor” and were liable for battery if a minor was treated without parental consent.[2] The mature minor doctrine is the exception to the common law and essentially transforms a minor into a competent adult for medical decision making purposes.[3] For the doctrine to apply, a minor must “demonstrate a sufficient level of maturity . . . to have their choices respected independent of third parties.”[4]
New York does not have a statutory law creating a mature minor doctrine or any case law recognizing its application in the state. One lower court has refused to adopt the rule, holding that the “legislature or the appellate courts [should] take a hard look at the ‘mature minor’ doctrine and make it either statutory or decisional law in New York State.”[5] While the courts in the State, like the Supreme Court, have recognized the right of competent adults to refuse life-sustaining treatment,[6] New York does not currently recognize the right of anyone under eighteen who is not married or a parent to refuse life-sustaining treatment by himself.[7] When a minor is not a parent or married, the State or a minor’s parents can overrule a minor’s decision to refuse life-sustaining treatment if a court finds the minor’s decision is not in his best interest.[8]
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Posted in Constitutional Law, Criminal Law, Health Law, Human Rights, Uncategorized | Tagged constitutional rights, DNR, Do Not Resuscitate, Fosmire v. Nicoleau, in re seiferth, life-sustaining treatment, Matter of Storar, medical decision making, New York, parental consent, Rule of Sevens, state interests, Tennessee | Leave a Comment »
January 19, 2010 by Marisa Floriani
Alicia Dodge, Government Law Review Member
I. Background
The vast advancements in technological capabilities have greatly changed traditional jurisdictional principles. No longer is it sufficient for a state’s laws to only apply to persons and property solely within its territory, a concept known as the “territorial principle.”1 A state’s jurisdiction must now be able to extend extraterritorially in order to comport with the technological advancements of today. States have realized this necessity, sparking the prevalence of international law documents aimed at resolving disputes between states. However, international law also raises questions of internal legitimacy in regards to political, judicial, and societal differences between states.
II. The Hague Convention on the Civil Aspects of International Child Abduction
Increased divorce rates coupled with advancements in technology, which make travel much easier, spurred the need for an international treaty to regulate child abductions.2 The resulting document is known as The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter The Hague Abduction Convention), the purpose of which is to establish judicial guidelines for states to follow after a child has been wrongfully abducted.3 Time is of the essence in child abductions, as the abductors typically will attempt to drag out the process, lengthening the time that the child is separated from the parent. The signatory countries are bound to follow the treaty, making the return much smoother and expedited. In order to maintain the legitimacy of international law, the states must comply with their treaty obligations or risk damaging their reputation with other states.4 According to UN Charter Article 2(2), “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them . . . .”5 In order to state a claim under The Hague Abduction Convention, it must be demonstrated that
[The] child was habitually [a] resident of the country from which the child was abducted; [the] petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and at the time of wrongful[] removal, [the] petitioning parent was exercising those rights.6
The petitioner bears the burden of proof by a preponderance of the evidence, and then the responding party may attempt to prove an affirmative defense to oppose the child’s return.7 There are four such affirmative defenses, two of which must be proven by clear and convincing evidence, which are “that ‘there is a grave risk that the child’s return would expose the child to physical or psychological harm[,] . . .’” or that the return would violate fundamental human rights norms.8 The other two affirmative defenses require proof by a preponderance of the evidence, and they “are either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, or that the Appellant was not actually exercising custody rights at the time of removal.”9
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Posted in International Law, Uncategorized | Tagged Battle over Child, Brazil, Bring Sean Home, Bruna Bianchi Carneiro Ribeiro, Charter of the United Nations', Child Abduction, David Goldman, Drummond, Edecio Martinez, Elian Gonzalez, Hague Convention, HCCH, International Child Abduction, International Law Norms, Jeffrey L. Dunoff, Joano Paulo Lins e Silva, Kirk Semple, NY Divorce and Family Law, Rafael romo, Sean Goldman, The Goldman Controversy, Tim Padgett, United States | Leave a Comment »
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 Food and Drug Administration, Swine Flu, H1N1, vaccinations, swine flu vaccinations, mandatory vaccinations, Richard F. Daines, New York State Department of Health, Secretary of the Department of Health and Human Services, 2009 strain of h1n1, public health emergency, fourteenth amendment, center for disease control and prevention, shanta m zimmer, donald s burke, richard e besser, jacobson v. massachusetts, 197 us 11 1905, viemeister v. white, 179 ny 235, ritterband v. axelrod, 562 nys2d 605 | 1 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 | 2 Comments »
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 »
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