Category: Blog Spring 2018

By SARATH NINAN MATHEW & SIDDHARTH SONKAR

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On June 27, 2018, the Supreme Court of the United States in Janus v. AFSCME, overturned the nearly forty-year-old precedent of Abood v. Detroit Board of Education.[i] Janus invalidated an Illinois law which required ‘non-recognized’ public sector union workers to contribute towards union funds by paying “agency fees.”[ii] The term ‘agency-fees’ refers to a portion of the union fund that is collected from non-member workers. In Janus, the Supreme Court finds it unconstitutional to mandate payment of agency fees despite non-members’ enjoying the fruits of collective bargaining arrangements.[iii]

Whereas its predecessor Abood considered the balance of free speech and labour welfare, Janus not only fails to achieve such a balance, but in the name of doing so, sacrifices labour welfare altogether.

The Abood position

In order to appreciate the balance envisaged in Abood, it is important to understand the nuances riddled in the interplay between free speech and labour welfare. The right to free speech involved here takes the the form of a negative right: the right to not speak. The concern is that a union represents a specific political or ideological belief to which all workers may not subscribe. Consequently, mandating non-members to contribute to any particular union runs the risk of forcing a person to bolster an opinion to which she is opposed. This would be a violation of her right to refrain from speaking.

The complementary relationship between mandatory contributions and labor welfare exists due to the prevalence of ‘recognized unions.’ Around the globe, recognized unions have been used to tackle drawbacks associated with the multiplicity of unions. Such multiplicity makes it extremely difficult for a trade union to maintain quality membership, in turn eroding its bargaining power. When a recognized union receives contributions, it protects its collective bargaining power, leading to effective unionization. Therefore, such contributions play a crucial role in ensuring worker welfare.

The Supreme Court while adjudicating Abood recognized the inherent worth of both these interests. It ruled that contributions can be mandated from non-members only if the union expends such funding solely toward employment-related matters, rather than promoting specific ideological beliefs.[iv] By refusing to deprive recognized unions of funding while ensuring that workers’ contributions do not subsidize specific political initiatives or beliefs, the Supreme Court’s position accommodated both workers’ employment related interests and free speech.

Issues with Janus         

(i) A Misunderstanding of Free Speech

The majority in Janus refers to an earlier Supreme Court decision, West Virginia Board of Education v. Barnette[v] to judge the importance of the right to remain silent.[vi] Admittedly, Barnette gives a broad understanding of the negative right to free speech. However, Janus failed to take note of the specific facts in Barnette which warranted such a broad conception. Barnette concerned a petitioner being forced to swear an oath in contravention to his religious beliefs.[vii] Here, the interests were not competing with one another. In fact, in Barnette, religious freedom and free speech complemented one another. Therefore, the court was justified in adopting a broad interpretation here.  

The facts of Janus directly involve contradictory interests of labour welfare versus free speech. Therefore, Barnette is distinguishable on facts. Instead, Pickering v Board of Education,[viii] cited by the minority is the relevant authority in this context. Pickering testifies that the first amendment jurisprudence is flexible enough to take into account employment-related interests. In this case, the court had held that first amendment rights of employees in the public sector are subject to legitimate interests of the employer.[ix] The court recognized that an absolutist protection of first amendment rights would hamper the smooth functioning of government offices.

Drawing a parallel, the facts of Janus pit first amendment rights against an equally important competing interest: the protection of collective bargaining power through strengthening trade unions. This in turn allows workers an opportunity to reclaim their dignity and protect themselves against exploitation. This is as essential as the smooth functioning of government offices. The majority in Janus ought to have adopted the balancing exercise in Pickering rather than sacrifice labour welfare in the name of free speech.

(ii) Freeloading Hurts Collective Bargaining

Janus analyzes freeloading as a concern on two counts: moral and economic. On the moral count, Janus argues that the simple act of receiving a benefit does not make an employee morally liable to contribute to the union.[x] Based on a highly libertarian conception that premises morality on consent, Janus would be justified on this count. However, regardless of a moral duty, there exist strong economic benefits to the labour force, and by extension the state as a whole, by mandating contributions.  When contributions are not made mandatory, most workers are subsumed by a powerful, short-term economic incentive to withhold their union dues. A consequential reduction in revenue compels unions to demand greater contributions from existing members. This in turn makes union-membership highly undesirable due to excessive economic costs associated with membership, shouldered entirely by a small section of the workforce. The unattractiveness of union-membership leads to the exit of a sizable number of workers, simply to avoid these associated costs. Dilution in existing membership hurts unionization, weakening the collective bargaining power of workers.

In response to this, the majority in Janus relies on statistics to observe that despite 28 states’ prohibiting agency fees, millions of employees join unions in the public sector.[xi] However, the majority did not consider the extent to which union membership would have increased, had contributions been mandatory. The economic argument dictates that unions would have had more funds, even in these areas, had contributions been mandatory, making collective bargaining stronger than it is at present.

Janus‘s Incompatibility with Ground Realities

Past experience highlights how precluding unions from collecting agency fees results in ‘free riding,’ which in turn reduces resources needed to afford transaction-costs associated with negotiating contracts and general worker welfare.[xii]  By encouraging free-riding, Janus may result in causing irreparable damage to collective bargaining. While realizing its consequences may take years, Illinois Economic Policy Institute suggests that overturning Abood would result in severely shrinking the economy and reducing public sector wages. It indicates that wages of government employees, both at the state and local levels would diminish by 3.6 percent, resulting in a loss of $1,810 in wage and salary income per worker.[xiii] The Institute further states that unionization in the public sector would substantially shrink by 8.2 percentage points, predictably translating into a loss of 726,000 members over time. Specifically, there could be an estimated decrease by 189,000 members in California, 136,000 members in New York, and 49,000 members in Illinois.[xiv]

The ruling also disproportionately hurts African-American workers, forming a large fraction of union members in the state and local government, discouraging their unionization and in turn, undermining their political influence. African-American workers are statistically (1.0 and 1.3 percentage points) more likely to be members of labour unions, as compared to White, Non-Latino American employees.[xv] The weakening an already fragile bargaining power, would allow state leverage over public employees such as teachers, police officers, firefighters, and other public workers to increase. As a result of increased asymmetry in the employer-employee relationship, employer pressure could cripple wages for public sector workers.[xvi]

Conclusion

The Supreme Court should have retained its earlier position in Abood. Instead, it has disregarded stare decisis, stirring labour jurisprudence violently. The majority decision in Janus will cause burgeoning turbulence for a while in the lives of the American worker when she is already fragile.[xvii] In an attempt to save workers’ free speech already between cushions, it has slipped and hurt workers’ interests instead.

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[i] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

[ii] Janus v. AFSCMEC, No. 16-1466, slip op. at 2 (U.S. 2018).

[iii] Id.

[iv] Supra note 1, at 254.

[v] West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

[vi] Supra note 2, at 9.

[vii] Supra note 5, at 629.

[viii] Pickering v. Board of Education, 391 U.S. 563 (1968).

[ix] Id., at 568.

[x] Supra note 2, at 13.

[xi] Id., at 12.

[xii] Frank Manzo & Robert Bruno, After Janus The Impending Effects on Public Sector Workers from a Decision Against Fair Share, Ill. Econ. Pol’y Inst., 3 (May 9, 2018), https://illinoisepi.files.wordpress.com/2018/05/ilepi-pmcr-after-janus-final.pdf (Last visited July 25, 2018); Joe Davis & John Huston, Right-to-Work Laws and Free Riding, 31(1), Econ. Inquiry 52-58 (1993).

[xiii] Id., Frank Manzo & Rober Bruno, at 3-4.

[xiv] Id.

[xv] Id.

[xvi] Id., at 6-7.

[xvii] Steven Greenhouse, Unions are as weak as they’ve been in a century. The Supreme Court’s Janus decision will gut them further, L.A. Times, June 27, 2018, http://www.latimes.com/opinion/op-ed/la-oe-greenhouse-janus-supreme-court-20180627-story.html (last visited July 25, 2018).

By KELLY GIBNEY

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Mass incarceration is one of the United States’ systemic problems that need to be addressed. One of the main causes of mass incarceration, especially in New York, is the bail system. The original intent of the bail system was to ensure that defendants showed up to their court dates.[i] A judge requires the defendant to pay a certain amount of money in order to be released, which in turn creates certainty that the defendant will attend their trial date. It is important to note that those who are considered too dangerous or a flight risk are often not offered bail. Today, however, posting bail is something that separates the rich from the poor, not the dangerous from the harmless. While there are several types of bail, the most common forms in New York are cash bails or bail bonds, where a bail bondsman fronts the bail amount in exchange for a non-returnable fee and temporary collateral from the defendant.[ii] There are many problems with this. The average cost of bail in New York is $1,000 or less, but rarely falls below $500.[iii] Despite these somewhat modest numbers, in New York City for example, only 15% of defendants are able to provide this amount at the time of the arraignment.[iv] Therefore, the other 85% of defendants are either forced to go to jail to wait their trial date or plead guilty on the spot, even if they are innocent. Neither of these is an adequate option; if people cannot pay bail, their lives will be negatively affected whether or not they are proved guilty.

There are great implications of the unequal bail system. First, this inequality against the poor has allowed for the bail bond industry to prosper. Bail bondsmen are involved in a for-profit, multi-billion dollar industry at the expense of struggling New Yorkers.[v] This further contributes to growing economic inequality. Additionally, the current bail system is a large factor in the high incarceration rates in New York. While New York has been making substantial progress in dropping its prison populations (in 2016 the population was down to 22,580), there is still more that can be done.[vi] Much of this decrease in population can be contributed to improved rehabilitation programs, judicial attitude, and a change in the minimum sentencing laws.[vii] However, New York could decrease this number even further, as shown by New Jersey where bail reform has been adopted. Comparatively, New Jersey has decreased their jail population to 19,619 since getting rid of cash bail almost entirely.[viii]

Not being able to post bail affects both the defendant and the everyday taxpayer. For the defendant, not posting bail means being sent to a state prison, and for many defendants in New York City this means the notoriously dangerous Riker’s island. According to a New York Time’s article, “Sexual and other physical assaults are most common in the first three days. Almost half of deaths in jail, including suicides, happen the first week.”[ix] Therefore, these “few days” in jail before one’s trial does not just consist of sitting in a jail cell, it can be a life altering experience. On top of this, the days that defendants wait in jail can take away from weekly income, potentially cause them to lose their jobs, and can greatly affect their families.[x] In terms of affecting taxpayers, putting someone in prison costs a large amount of money. At Riker’s Island, the cost of keeping one person at the prison is $247,000 a year.[xi] By reducing the unnecessary amount of people going to places like Riker’s, New York taxpayers could get a bit of a break. Overall, it is essential that New York legislators address this problem now in order to continue the great success in reducing mass incarceration. Furthermore, it is important to make changes as soon as possible so that no more people living in poverty have to be unfairly sent to jail. As the Human Rights Watch writes, “Poverty should not be an impediment to pretrial freedom.”[xii]

To create greater equality in pretrial cases and continue to lower the mass incarceration rates, I propose that New York State gets rid of virtually all utilizations of money bail and bail bonds. Instead, I recommend a system that requires defendants to complete non-financial requirements based on past criminal history and the cases presented by prosecutors and defense lawyers. This system will look at a wide variety of factors such as prior convictions and charges (such as drug possession or gun possession), prior interaction with courts, length of any jail time, and any illegal activity the defendant may be affiliated with. Each factor will be worth a certain amount of points. For example, if a defendant has had a previous conviction, that may grant them two points. After looking at each factor, the total amount of points will finally correlate with a general level of risk. Judges are able look at this analysis and pair it with the arguments presented at the arraignment to then decide if a defendant should be freed or taken into custody. Defendants who are granted permission to leave, however, are then required to complete other measures to ensure they attend their court dates. For example, a defendant may be required to wear a home monitor, return home at a certain hour each night, be subject to random drug testing, or be required to call the court regularly in the weeks leading up to the trial.[xiii]

Under this system, people would go to jail during pretrial based on the danger they present to society, not based on whether or not they are able to pay a certain amount of money. In State v. Habeeb Robinson, the NJ Supreme Court went further to ensure this process was just and ruled that the court could hold an individual pre-trial as long as the defendant had access to the evidence guiding the judge’s decision.[xiv] Essentially, it would help to eliminate the economic inequality the current bail system embodies and focus more on the crime itself. Additionally, this system would ensure that harmless people with minor offenses do not unnecessarily populate the state prisons. This, in turn, would help to further reduce New York’s incarceration rates, and help to decrease taxes, even if just a small amount.

Similar systems have been adopted in both New Jersey and the District of Columbia. In New Jersey, a computerized algorithm analyses similar factors based on three different categories: failure to appear, new criminal activity, and new violent criminal activity. After computing a raw score for each of these categories, the defendant is then rated on a scale from one to six, six being a high risk of violence or avoidance of court.[xv] If a defendant is on the higher side of the scale, he or she is taken into custody. If the defendant is on the lower side, they are released but may have similar restrictions as the ones presented above.[xvi] For New Jersey, this system has worked quite well. There have been a few instances where people have been released and have committed new crimes soon after, but for the most part the new system has provided a number of positive results.[xvii] For example, in June 2016, prior to passage of the bail reform, 8,332 defendants were detained prior to their trial. A year later in June 2017, after the new system was implemented, 5,717 defendants were detained.[xviii] This is a dramatic decrease in only a year. Along with this decrease in detainees, the system is balancing out to be divided between those who are dangerous and those who are not. Wealthy criminals are no longer being set free just because they have the money for bail, and poor and harmless people are no longer being jailed just because they don’t.[xix] Similarly, the District of Columbia has also done away with money bail and has also seen some success. In D.C.’s system, the judges look at the defendant’s criminal record and assesses whether or not the defendant will be a flight risk or commit another crime.[xx] This is called the “risk assessment” model and has enabled the district to detain mainly high-risk defendants. Furthermore, this model has been mostly successful in analyzing whether or not someone will appear for court: 88% of defendants do appear when required to.[xxi]

After looking at the models adopted by New Jersey and D.C., I would tweak a few areas where negative results have arose. Fundamentally, these systems pose limitations in that humans make errors and will not always analyze cases correctly. Along with this, it is possible that past charges and instances may be overlooked. For example, in the New Jersey PSA system, the algorithm does not look at past gun possession charges when calculating a risk score. This has resulted in released defendants committing gun crimes soon after their arraignment. Therefore, the system I am presenting would have to look into all past illegal activities. This includes drug possessions, gun possessions, DUI’s, and other offenses, all of which would be weighed based on the severity of their possible outcomes. Taking this further step would hopefully ensure that instances such as those in New Jersey do not happen. Both New Jersey and New York have similar crime indexes, racial makeup, and geographical location, making them a good pair of states to have this type of system.[xxii] If it has been successful in New Jersey, it is likely that is can be successful in New York.

Presumably, this policy change would receive widespread support from both lower and middle class individuals. As these citizens are the ones who are most affected by the current bail system, they would likely support any measures taken to reduce the inequality. Additionally, many politicians would be smart to support this policy change. Edward R. Tufte argues for a three-point theory in “Political Control of the Economy.” In his electoral-economic cycle theory, he argues that (1) economic changes shortly before an election can tip the balance, (2) electorates reward incumbents who provide them prosperity, and (3) that short-run growth preceding an election will benefit incumbents.[xxiii] If Tufte’s theory is correct, then you, Governor Cuomo, and the other legislators that are hoping to get re-elected in the 2018 elections should begin reforming the bail system as soon as possible. As stated before, the new system would decrease the demand for taxpayer money and would allow for this money to be put into other projects favored by taxpayers, or given back to them directly. On top of the economic benefits, you would have the support of a large number of lower and middle class constituents, helping to propel you into your third term as New York’s Governor.

While the loss of clients and business will inevitably cause backlash from the bail-bond industry, these bondsmen should not be prioritized over the everyday New Yorker. The bail-bond industry may propose that judges be able to impose bail for more serious cases in this new system. Under this alternative proposal, only serious crimes and not minor offenses could be asked to post bail, which would in turn keep the bail bondsmen in business and still keep the poor from going to jail unnecessarily.[xxiv] The biggest flaw to this proposal, however, is that it cannot ensure that wealthy criminals are detained. Under this proposal, violent criminals may be able to make bail through bail bonds or through their own cash flow. This is even more dangerous because bondsmen may take on clients that are simply able to provide them income, no matter how violent the crime. Thus, my proposal would be more successful in ensuring that criminals are detained until trial and would likely guarantee that both taxpayers and politicians receive their own personal benefit too.

Cash bail is an unequal component of our justice system that favors the rich and attacks the poor. By implementing a new system that eliminates cash bail and imposes a more cohesive analysis of the risk a defendant poses, New York can make great strides in its journey towards equality. You are likely to gain a fair amount of support for this policy change, as it will not only help the average tax payer, but it will help both lower and middle class citizens who are put in very difficult situations when they are unable to pay bail for a minor offense. There would be some negative implications of this policy change from the bail-bond industry, which could lead to lawsuits, as this has happened in New Jersey. However, the positive implications are that New York legislators, and yourself, will be putting yourselves in a good position for election season, tax payers will not be paying so much for correctional facilities, defendants with minor offenses will avoid unnecessary jail time while keeping their jobs and families, and New York will continue to lower incarceration rates. There are so many positives to implementing this policy that it is imperative New York makes this next step towards equality.

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[i] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010, https://www.hrw.org/report/2010/12/02/price-freedom/bail-and-pretrial-detention-low-income-nonfelony-defendants-new-york.

[ii] “Bail Bondsman,” Legal Information Institute, accessed November 20, 2017, https://www.law.cornell.edu/wex/bail_bondsman.

[iii] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017, https://www.nytimes.com/2017/11/15/opinion/bail-assistance-poverty.html.

[iv] Ibid.

[v] “Cash Bail’s Lonely Defender,” New York Times, August 25, 2017, https://www.nytimes.com/2017/08/25/opinion/cash-bails-lonely-defender.html.

[vi] Judith A. Greene and Vincent Schiraldi, “Better by Half: The New York City Story of Winning Large-Scale Decarceration while Increasing Public Safety,” Federal Sentencing Reporter, Vol. 29, No. 1 (University of California Press, 2016): 22, https://sites.hks.harvard.edu/ocpa/cms/files/criminal-justice/research-publications/fsr2901_04_greeneschiraldi.pdf.

[vii] Ibid.

[viii] “Total Inmates in New Jersey State Correctional Institutions and Satellite Units,” State Of New Jersey Department of Corrections, accessed November 20, 2017, http://www.state.nj.us/corrections/pdf/offender_statistics/2017/Total%20NJDOC%20Inmates%202017.pdf.

[ix] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017.

[x] Ibid.

[xi] Ibid.

[xii] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010.

[xiii] John Schuppe, “Post Bail,” NBC News, August 22, 2017, https://www.nbcnews.com/specials/bail-reform.

[xiv] State of New Jersey v. Habeeb Robinson, No. A-1891-16T2, NJ, May 10, 2017.

[xv] “Public Safety Assessment: Risk Factors and Formula,” Laura and John Arnold Foundation, last modified 2016, http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-and-Formula.pdf.

[xvi] John Schuppe, “Post Bail,” NBC News, last modified August 22, 2017.

[xvii] Ibid.

[xviii] Ibid.

[xix] Ibid.

[xx] Jason Flom and Inimai Chettiar, “Jailing the Poor and Releasing the Rich,” U.S. News, last modified October 19, 2016, https://www.usnews.com/opinion/civil-wars/articles/2016-10-19/its-time-for-states-to-abolish-money-bail-which-preys-on-the-poor.

[xxi] Ibid.

[xxii] “U.S. Crime Index State Rank,” USA.com, accessed November 20, 2017, http://www.usa.com/rank/us–crime-index–state-rank.htm?hl=&hlst=&wist=&yr=&dis=&sb=DESC&plow=&phigh=&ps=

[xxiii]Edward R. Tufte, Political Control of the Economy, (Princeton University Press, 1980), 9.

[xxiv] “Have bail reforms made us safer? Two views,” APP.com, last modified June 15, 2017, http://www.app.com/story/opinion/columnists/2017/06/15/bail-reforms-made-us-safer-two-views/102898838/

 

 

By KAARISH MANIAR

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Early in the year 2000, United States District Judge, Thomas Penfield Jackson, ruled that Microsoft Corporation, in “unlawfully tying its Web browser to its operating system,” behaved in an anticompetitive manner, thereby violating the Sherman Antitrust Act. Later that year, in June, the court ordered Microsoft to break up the two functions into separate units.[1] The antitrust action against Microsoft created an opportunity for new tech giants to rise;[2] among those younger monopolists was Amazon. Enjoying baffling 75% and 44% market shares in the electronic books and online commerce industries respectively, Amazon seems to be infiltrating every sector of consumer-focused commerce.[3] Likewise, companies like Wal-Mart, Apple, Google, and Facebook also dominate their markets, creating a situation akin to one in which the nation found itself just over a century ago. In 1911, President William Howard Taft declared that the country needed to decide between a socialist future, or one with “legitimate and independent competition.”[4] If we are to choose the latter, as did Presidents Taft and Wilson, American antitrust laws must be reformed so as to be made relevant to the economic issues confronted today.

As the law is currently written, the American consumer’s interest is paramount. Dating back to 1890, the Sherman Antitrust Act was designed to prevent large railroad and oil conglomerates from becoming monopolistic behemoths and subsequently causing a significant restraint on free trade. Thus, it aimed to ensure that large corporations were competitive on the grounds of low prices and high quality, but the Supreme Court limited its scope to prohibit ‘unreasonable’ restrictions on free trade, not just any restriction.[5] In 1914, Congress passed the Federal Trade Commission and Clayton Acts which further specified the Sherman Act. While the FTC Act slightly expanded the Sherman Act, to include “unfair methods of competition,” the Clayton Act prohibits mergers that may substantially lessen competition or have monopolistic tendencies.[6] These three pieces of legislation form the consumer welfare standard, which essentially narrows the scope of antitrust violations to acts which have the tendency of harming the consumer via price hikes, compromised quality, or reduced access.

However, unlike the “respected but unloved” commercial giants to whom these antitrust laws were originally addressed, the companies in question today enjoy warm reception from consumers.[7] Specifically, Amazon has become the ever-expanding entity it is precisely for its ability to provide efficient customer service while offering low prices for the same high-quality products. Amazon’s immediate threat is not to the customer. Rather, it poses a threat to the livelihood of capitalism as a system. In systematically wiping out its smaller competition, Amazon has made itself a commodity for both consumer and supplier. Amazon has become online customers’ go-to for any type of product. Moreover, it has come to control the way small businesses go about their business. Without selling as a third-party through Amazon, small businesses have little chance of winning substantial profits in the world of e-commerce. But with Amazon’s strict customer service policies, these small businesses are forced to sell at margins and abide by policies they simply cannot afford.

Furthermore, Amazon has managed to pose a challenge to some of the most stalwart names in retail for the past several decades. Companies such as Macy’s, Sears Holdings, JCPenny, and Kohl’s are closing massive portions of their brick-and-mortar storefronts, creating a surplus in available retail real estate. The blows to these massive companies will in turn impact the 16.5 million Americans, nearly 10% of the workforce, employed by the retail sector.[8] Although this “Amazon Effect”[9] is not necessarily detrimental to the consumer in the short run, by systematically removing competition from every industry, it proves to be a present threat to capitalistic competition. Indeed, Amazon, among other large rising giants, displays market shares similar to the trusts of the late 19^th and early 20^th century.[10] However, unlike those earlier trusts, these mammoth conglomerates prey on different victims. If we are to protect smaller and small businesses, as well as retail jobs, Amazon, and similar companies, must be domesticated with methods appropriate to the new creature. Antitrust laws from the 20^th century simply will not suffice.

Thus far, little has been done to hinder Amazon’s growth. The lack of action is partly due to the government’s inability to sufficiently prove a violation of either the Sherman or Clayton Acts, and partly due to a fear of stifling innovation. Like similar leading tech companies, Amazon re-invests a large sum of its earnings in researching and developing new products and technology.[11] However, the idea behind a capitalist system is that more competitors yield more innovation. If we buy into the idea of a capitalist economy, we must ensure that it functions per capitalism’s principles. Currently, antitrust laws speak nothing of the issues Amazon raises. If the government is unwilling to creatively apply the existing law to the issue at hand, as they did with Microsoft, then Congress must re-design the laws to create a proper framework in which to foster competition.

An alternative to the consumer welfare standard is the Democrats’ “Better Deal” proposal. Such a scheme would aim to prevent mergers that “reduce wages, cut jobs, lower product quality, limit access to services, stifle innovation, or hinder the ability of small businesses and entrepreneurs to compete.”[12] Unlike the consumer welfare standard, a multifaceted guideline such as the Democrats’ is certainly more subjective. While the language demonstrates a move in the right direction, the nation needs a middle ground that reflects the same intent with more practicable provisions. Whereas the Sherman, Clayton, and FTC Acts were adequate in controlling companies that preyed on the consumers, new legislation is unquestionably required to protect America’s small businesses, retail jobs, and long-term technological innovation.

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[1] Joel Brinkley, ” U.S. Judge Says Microsoft Violated Antitrust Laws with Predatory Behavior,” The New York Times, April 03, 2000, accessed March 07, 2018, http://www.nytimes.com/2000/04/04/business/us-vs-microsoft-overview-us-judge-says-microsoft-violated-antitrust-laws-with.html.

[2] Jed Graham, “The Amazon Monopoly Problem: Prime Time For Antitrust Action Vs. Internet Giants?” Investor’s Business Daily, September 18, 2017, accessed March 07, 2018, https://www.investors.com/news/technology/amazon-monopoly-problem-antitrust-action-vs-amazon-facebook-google/.

[3] Greg Ip, “The Antitrust Case Against Facebook, Google and Amazon,” The Wall Street Journal, January 16, 2018, accessed March 07, 2018, https://www.wsj.com/articles/the-antitrust-case-against-facebook-google-amazon-and-apple-1516121561.

[4] Harry B. McMeal, Telephony, vol. 61 (The University of Michigan, 1911), 451, October 30, 2009, accessed March 7, 2018.

[5] “The Antitrust Laws,” Federal Trade Commission, December 14, 2017, accessed March 07, 2018, https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws.

[6] Id.

[7] Supra note 3.

[8] Adam Hartung, “How The Amazon Effect Will Change Your Life And Investments,” Forbes, March 02, 2017, , accessed March 07, 2018, https://www.forbes.com/sites/adamhartung/2017/02/28/how-the-amazon-effect-will-change-your-life-and-investments/#4212e52a5e76.

[9] Id.

[10] Supra note 3.

[11] Id.

[12] Supra note 2.

By MATTHEW SCHNEIDER

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The ever-changing economy of the 21^st century has transformed the ways Americans work and spend their money. Accordingly, firms in newer technology-driven sectors have become some of the dominant forces in the business world, and have consolidated unprecedented amounts of power in their markets. For example, companies like Google and Amazon have dominated their respective industries (search engines and e-commerce), while companies in older industries have engaged in numerous mergers and acquisitions to increase their market power amid a variety of economic changes (such as in banking and airlines) [1, 2, 3]. As such, the increased concentration of critical American industries in the hands of just a few firms has made antitrust law in the United States even more important than ever. One case being considered in the Supreme Court, however, could jeopardize the Department of Justice’s ability to litigate on behalf of consumers when they are threatened with anticompetitive business behaviors.

In late February, the Supreme Court considered the case of Ohio v. American Express. The case revolves around credit card company American Express’s use of anti-steering provisions, which instruct merchants that they cannot charge consumers who use their card more than they charge users of other cards, namely those issued by Visa, Mastercard, and Discover (the other three major credit card companies) [4]. While the provision is not inherently anticompetitive, what might be problematic—and what is at the heart of this case—is that American Express charges more to merchants who accept its card per transaction than the other card companies do, and prevents merchants from disclosing the fees they pay to credit card companies [5]. This leads to higher costs for merchants, who in turn might pass on these costs and raise the prices of their goods or services for all consumers. This is the argument presented by the state of Ohio and several other states that have joined the lawsuit, as well as the Justice Department, which has sided with the states [6].

American Express, however, has argued that these provisions have allowed the company to compete with the far larger Visa and Mastercard, which have more widespread networks of merchants and more consumers who utilize their cards, and thereby can afford to charge lower fees to merchants [7]. Initially, a district-level court sided with the plaintiffs, arguing that such anti-steering provisions violated the Sherman Antitrust Act [8]. This ruling was reversed, however, under the Second Circuit court, which stated that the states and Justice Department did not establish that such fees were harmful to consumers in addition to merchants. This ruling put the burden of proof on the plaintiffs to establish that the provisions were truly anticompetitive [9].

This case is important because American Express and credit card companies in general operate in what is called a “two-sided market.” This means that these types of companies serve two groups: the first being merchants who must decide whether or not to accept certain cards in their places of business, and the second being consumers, who select which card they will use [10]. Credit card companies are not the only firms that operate in two-sided markets; indeed, many technology companies utilize this market set-up as well. For example, Facebook operates in a market where it seeks to get consumers to utilize its social networking application, while also attempting to get advertisers to pay to use their platform to market to consumers using the application. Google and other search engine companies operate in a very similar fashion. Meanwhile, Amazon links consumers and other companies as well, with consumers using the platform to purchase items and companies and other merchants using the platform to make sales [11].

Given the marked similarities in the business models of both credit card companies and technology companies, Ohio v. American Express will inevitably have highly significant implications for these industries, even though the case just involves the former. If the Supreme Court accepts the decision of the Second Circuit Court, this could set a precedent that could allow tech companies to argue in the future that price increases on one side of the market do not necessarily entail anticompetitive behavior, putting the burden of proof on consumers and the plaintiffs in antitrust cases to prove that harm was done [12]. Several technology companies have noticed the value in establishing this precedent, and an industry trade group, the Computer and Communications Industry Association, has submitted an amicus brief on behalf of the likes of Amazon, Google, and Facebook, in favor of the ruling of the Second Circuit [13].

Given these circumstances, it appears that there a lot at stake in Ohio v. American Express. The exchanging economy of recent years has left many potential loopholes that new types of companies can exploit to increase their profitability and shut out competition. The rapid developments that characterize the new American economy have left traditional antitrust law behind, and this case proves that it needs to catch up as new types of business models arise. Should the Supreme Court side with the plaintiffs in this case, this could ensure that antitrust law continues to operate in the way that it was intended to: to protect consumers from corporate behavior that increases profitability at the expense of harming consumers.

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Works Cited:

[1] Khan, Lina. “The Supreme Court Case That Could Give Tech Giants More Power.” The New York Times, The New York Times, 2 Mar. 2018, http://www.nytimes.com/2018/03/02/opinion/the-supreme-court-case-that-could-give-tech-giants-more-power.html.

[2] Schaefer, Steve. “Five Biggest U.S. Banks Control Nearly Half Industry’s $15 Trillion In Assets.” Forbes, Forbes Magazine, 3 Dec. 2014, http://www.forbes.com/sites/steveschaefer/2014/12/03/five-biggest-banks-trillion-jpmorgan-citi-bankamerica/.

[3] Yellin, Tal. “The Runway to the Final Four.” CNNMoney, Cable News Network, money.cnn.com/infographic/news/companies/airline-merger/.

[4] Goldfein, Shepard, and Karen Hoffman Lent. “The Supreme Court Takes on Two-Sided Markets.” Yahoo! Finance, Yahoo!, 9 Feb. 2018, finance.yahoo.com/news/supreme-court-takes-two-sided-074522009.html.

[5] White, Deborah. “Supreme Court Case Seeks Disclosure of Credit Card Fees to Benefit Consumers.” Fox News, FOX News Network, 24 Feb. 2018, http://www.foxnews.com/opinion/2018/02/25/supreme-court-case-seeks-disclosure-credit-card-fees-to-benefit-consumers.html.

[6] Wheeler, Lydia. “Supreme Court Agrees to Hear American Express Case.” TheHill, 16 Oct. 2017, thehill.com/regulation/court-battles/355721-supreme-court-agrees-to-hear-american-express-case.

[7] Chung, Andrew. “U.S. Supreme Court Liberals Skeptical of American Express Merchant…” Reuters, Thomson Reuters, 26 Feb. 2018, http://www.reuters.com/article/us-usa-court-american-express/u-s-supreme-court-liberals-skeptical-of-american-express-merchant-fees-idUSKCN1GA2BU.

[8] Farmer, Beth. “Argument Preview: Antitrust Analysis – Do Two-Sided Markets Require Different Rules?” SCOTUSblog, 20 Feb. 2018, http://www.scotusblog.com/2018/02/argument-preview-antitrust-analysis-two-sided-markets-require-different-rules/.

[9] Ibid.

[10] Goldfein, Shepard, and Karen Hoffman Lent. “The Supreme Court Takes on Two-Sided Markets.”

[11] Khan, Lina. “The Supreme Court Case That Could Give Tech Giants More Power.”

[12] McLaughlin, David. “U.S. Supreme Court Weighs Amex Rules in Antitrust Enforcement Test.”Bloomberg.com, Bloomberg, 26 Feb. 2018, http://www.bloomberg.com/news/articles/2018-02-26/amex-rules-weighed-by-high-court-in-antitrust-enforcement-test.

[13] Ibid.

 

By CYNTHIA KARNEZIS

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Sex trafficking constitutes a form of modern day slavery[1] as it denies victims their agency and reduces them to mere object status by shamelessly exploiting their bodies for economic gain[2]. Current laws do not explicitly define “modern slavery”, yet the terminology refers to sex trafficking and other forms of exploitation that a person cannot escape due to threats, coercion, violence, deception, and/or the abuse of power (3). According to the U.S. State Department’s Office to Monitor and Combat Trafficking in Persons, people may be victims of trafficking: “whether they were born into a state of servitude, were exploited in their home town, were transported to the exploitative situation, previously consented to work for a trafficker, or participated in a crime as a direct result of being trafficked”.[3] Essential to the phenomenon of sex trafficking is the traffickers’ goal to (1) exploit and (2) enslave their victims through deceptive and controlling practices.[4]

In 2012, the International Labor Organization estimated that there are 20.9 million victims of human trafficking at any given time internationally.[5] 22% of these global human trafficking victims (4.5 million individuals), are specifically sex-trafficked[6]. According to the United Nations Office on Drugs and Crime Global Report on Trafficking in Persons, sexual exploitation constitutes the most common form of human trafficking worldwide (79%), followed by forced labor at 18% in activities like agriculture, domestic work, or manufacturing[7]. Nonetheless, sex traffickers disproportionately prey on women, as females constitute 97% of victims of sexual exploitation worldwide, compared to other types of human trafficking, such as forced labor, where only 35% of trafficked victims are female[8]

In a domestic context, the best estimate for the number of trafficked victims comes from U.S Department of Health and Human services who cite that roughly 600,000 to 800,000 victims — half of whom are younger than 18 years old — are trafficked each year across American borders[9]. Roughly 80% are female, and 70% are believed to be trafficked into the sex industry as opposed to other forced labor industries[10]. Furthermore, 199,000 children annually are estimated to be victims of sex trafficking in the United States[11]. The U.S Congress reports that the sex trafficking of women and children is the third largest source of revenue for organized crime worldwide, following closely behind illegal drug and firearm sales[12]. According to the Urban Institute’s comprehensive 2014 report on the size and structure of the underground commercial sex industry in the United States, the city of Atlanta’s 2007 sex economy alone was estimated at 290 million dollars[13]. As world renowned activist and human trafficking expert Siddarth Kara states:

Drug trafficking generates greater dollar revenues, but trafficked women are far more profitable. Unlike a drug, a human female does not have to be grown, cultivated, distilled, or packaged. Unlike a drug, a human female can be used by the customer again and again[14]

Kara’s piercing words illuminate one of the many reasons why the sex trafficking industry has flourished, yet remains difficult to criminalize. In order to grasp the immense scope of the problem in the United States, it is important to first understand the reasons why criminalizing, controlling, and eradicating the industry prove difficult. (1) The Ills of Globalization details the adverse effects of globalization on women and illuminates how poverty increases their vulnerability to traffickers. (2) The high reward / low risk nature of the sex trafficking industry delineates the lucrative economy of the U.S sex trafficking industry. Lastly, (3) Ambiguity of the TVPA & Other Legislation unravels current understandings and legislative definitions for trafficking that lead to misunderstanding what constitutes sex trafficking and the uneven applications of the law.

1. The Ills of Globalization

The top three types of sex trafficking services in the U.S as of 2016 are (1) Escort Services (2) Illicit Massage Businesses, and (3) Residential (e.g apartment brothels)[15]. Conditions of poverty, unemployment, and other forms of economic dislocation primarily force women and girls into sex trafficking, according to Article 6 of UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in its 11th meeting in 1992[16]. Specifically, runaway/homeless youth, victims of domestic violence, sexual assault, war or conflict, or other types of social discrimination are targets for sex traffickers[17]. Globalization plays a toxic role in the proliferation of the modern day slave trade as it creates circumstances which force women into sexual exploitation[18]. Namely, a widening divide exists between the rich and poor as a result of globalization due to the transfer of commodities and assets (e.g people) from developing nations into rich, already developed nations[19]. This freer exchange of goods and people catalyzed the sex trafficking industry. Women, children, and minorities are the hardest hit by socio economic crises, thus, these they are the most heavily trafficked groups[20].

Sex trafficking victims themselves often respond that economic hardship and childhood trauma pushes them into the trade, thereby making them susceptible to countless methods of control by traffickers, like force, fraud, and coercion[21]. Traffickers commonly withhold victims’ travel and identity documents and threaten that they will call police or immigration authorities (if the victim’s country of origin is not the United States) if the victim attempts to escape, according to a foundational 2005 Dept. of Justice report analyzing the American sex-trafficking epidemic[22]. Pimps also recruit young U.S women in malls or clubs, typically befriending them first, and creating emotional and/or drug dependencies as a method to maintain control[23]. Consequently, fully eradicating the industry lies in abolishing the forces which drive women into the sex-trade, specifically economic globalization and poverty, which proves a monolithic undertaking[24].

2. The high reward / low risk nature of the sex trafficking industry

The economics of the U.S sex trafficking industry itself also make it difficult to criminalize and eradicate long-term. According to the 2014 Urban Institute report on the sex trafficking industry across eight major American cities, 142 interviewed (and convicted) pimps said that there exists a perception that trafficking is far less risky than other crimes, like drug trafficking, for example[25]. While pimps have varying degrees of knowledge regarding the law itself, they overwhelmingly believe that arrest remains the foremost risk of pimping[26]. Multiple offenders in the study expressed that “no one actually gets locked up for pimping”, despite their own incarcerations[27]. From an economics stance, forced sexual exploitation proves incredibly lucrative due to constant demand since men will always desire to pay for sex[28]. The low price of sex from slaves incentivizes men to participate in this illicit activity (as opposed to more expensive prostitutes or escorts)[29]. Slaves become commodities, where price drives demand, rather than empathy for their condition[30]. Beneath the surface of massage parlors and escort services, there exists an extensive network of conventional business techniques like “advertising (e.g online ads, social media), renting business locations, the transportation of workers, communication, internal business structure organization, and financial transactions and recordkeeping” that keeps the illicit industry alive[31]. One of the main issues that arises from attempting to criminalize sex trafficking is that pimps consciously elude law enforcement by using coded online ads and coded communications between themselves and employees, for example, while employing tactics to proactively identify law enforcement stings[32].

3. Ambiguity of the TVPA & Other Legislation

Despite popular sentiments among traffickers that sex trafficking does not constitute a crime,[33] the U.S enacted its first anti-trafficking legislation in October 2000, called the Trafficking Victims Protection Act, or TVPA[34]. A federal policy advisor who took part in drafting the law contends that the TVPA provided a new and highly needed category under which sex trafficking cases in the United States could be prosecuted. He notes that everything prosecuted under the TVPA technically could have been taken to court under pre-existing statues; nonetheless: “it was very important from the United States’ perspective to be seen as a leader in the area and pass a statute that had a crime called ‘trafficking’ because we were encouraging everybody else in the world to do it, and other countries did not have the tools that we already had.”[35]

Several high profile cases brought sex trafficking to the national agenda in the 1990’s, highlighting the pre-existing law’s insufficiency to criminalize the complex issue[36]. The TVPA outlines an operational definition for “severe forms of trafficking” (which includes trafficking for forced labor/servitude and trafficking for sexual exploitation) and a non-operational definition for non-severe types[37]. Nonetheless, “severe” forms of trafficking embody the core of the law and include:

(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or

(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery [38]

The U.S definition requires the presence of 1. a process (e.g recruitment, harboring, or transportation), 2. occurring by means of certain methods (e.g force, fraud, or coercion) and 3. ending in exploitative conditions of labor or commercial sex to qualify as a severe form of sex trafficking[39]. Reauthorizations of the TVPA took place in 2003, 2005, 2007, and 2013[40] to: strengthen its prevention strategies, create programs to assist state and local law enforcement to combat trafficking, and expand protections available to non U.S citizens with the T-visa program (special, three-year-residency visas provided to victims of severe forms of human trafficking), to name a few addendums.[41]

TVPA legislation coincidentally coincided with the drafting of international UN sex trafficking protocol[42]. In December 2003, UN Nation States entered into legally binding guidance in The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, that establishes a definition of trafficking in persons to facilitate convergence in approaches across countries to criminalize human trafficking[43].The TVPA and UN Protocol, however, boast holes in their policies[44]. Their ambiguous and subjective language primarily leads to confusion and implementation of the law[45].

Domestic Response

Luckily, America boasts federal legislation unlike many countries who comprise the UN, nonetheless, TVPA guidelines remains far from comprehensive in combating sex trafficking. Although elements of “force, fraud, or coercion”, as cited above, are required for a case to qualify as trafficking, precisely determining what circumstances and conditions constitute these elements proves complex[46]. “Force” may sometimes be apparent to an outsider immediately, yet other times, it takes a highly experienced professional to recognize its nuances[47]. The TVPA also proves problematic as it excludes cases of sex trafficking for which the acts were deemed absent of force, fraud, or coercion[48]. In many cases, according to world renowned sex trafficking expert Siddarth Kara, people are judged to not be ‘severe’ victims of sex trafficking if they “originally agreed to work as prostitutes, albeit under false promises of rosy conditions that turned out to be slavery”, for example[49]

TVPA legislation similarly excludes illegal immigrants who fall victim to exploitation within U.S borders. Although implementation of T-visas to protect non-citizens arose through TVPA reauthorizations, in reality, many criticize the program’s protracted application process that leaves victims’ statuses unresolved. Furthermore, upwards of 50 percent of T-visa applications are denied because the individual is deemed to not be a victim of “severe” human trafficking[50]. Although programs exist to assist victims of sex trafficking, the reality of the law and its implementation does not live up to the law in its ideal sense.

Moreover, barriers to the criminalization of sex trafficking stem from the fact that state enforcement of human trafficking does not match federal TVPA laws, which results in many severe trafficking cases to be prosecuted as lesser crimes, like pandering, for example[51]. Additionally, some states entirely lack legislation which defines domestic trafficking as a crime[52]. In a report to the National Institute of Justice, Doctors Kevin Bales and Steven Lize discovered that state law enforcement agencies largely report having insufficient tools to attend to sex trafficking cases[53]. Moreover, even in states with explicit anti-trafficking legislation, interpretation and application of the laws have been excluded from police training[54]. The average officer remained unaware of their state’s anti trafficking laws in Dr. Bales’ and Dr. Lize’s extensive research[55]. There is much work to be done in the domestic context as those who even receive basic training still note that limited resources plague their agencies’ ability to investigate cases and identify victims[56].

Recommendations:

As author Dvora Yanow states in her novel How Does a Policy Mean?, “There is no single, correct solution to a policy problem any more than there is a single correct perception of what that problem is”[57]. I believe that Yanow’s words ring incredibly true in combating the sex trafficking industry in the United States. Based on my research, I believe that the best and most comprehensive way to rightfully criminalize and eventually eradicate the sex-trafficking industry is by developing a multi-faceted government/law enforcement and civilian approach.

First, I think that public awareness of the issue must increase exponentially in order to assist victims of sex trafficking. Yes, documentaries exist to educate the mass public, yet people often do not realize the extent to which the problem persists in their immediate community. Sex trafficking is undoubtedly “otherized” and carries connotations of being an international problem. This remains so far from the truth. As Kara states in his novel, Sex Trafficking: Inside the Business of Modern Slavery, “Approximately one-third of trafficking victims in the United States are discovered by individual citizens, not the police”[58]. That is why movements like CNN’s Freedom Project[59] and other public awareness campaigns are of the utmost importance because everyday citizens have the power to be vigilant and save potential victims in their own communities. Raising public awareness of the general public goes hand in hand with increasing training and awareness of law enforcement agencies and police departments towards this issue. In trainings, specifically for the police, I believe it is important to have highly skilled experts in the field of human trafficking to educate police teams as to the intersectionality of the problem. Often, the drug, sex, and weapons trade go hand in hand, thus, officers must be aware as to the nuances of the industry in order to best identify victims.

Second, I believe that U.S federal policy makers must address holes in implementing the TVPA, especially in regards to the effectiveness of issuing T-Visas to non-U.S citizens victimized by the sex trade. Oftentimes, victims cannot afford to wait months before they know they are safe within national borders; thus, T-Visa programs must expedite their process in order to issue the most effective help and assistance to non-U.S resident victims of forced sexual exploitation. For actors in the UN as well, although protocol to punish sex traffickers exists, it proves useless as I enumerated above unless nation states draft their own guidelines to prevent sex trafficking. Since sex trafficking plagues every nation, it must be combatted transnationally in order to best criminalize and abolish it. I strongly believe that sex trafficking must be treated as a human rights issue as opposed to an immigration one as the latter poses problems of stereotyping the trafficking industry and its victims.

Third, in order to get at the root of the problem, policies need to be in place to fund public programs which connect at-risk youth to helpful community services, rather than wait for them to matriculate into juvenile detention centers. Taking a proactive approach to engaging particularly at risk girls is incredibly important and has the ability to save countless lives from being trafficked. Service programs in public schools and in communities, with a focus on programming for girls, will hopefully prevent the typically marginalized and vulnerable individuals from entering into the sex trafficking industry.

Lastly, I think that the best way to criminalize sex trafficking within our borders is to make economic and prison penalties as steep as current drug offenses. Traffickers themselves cite that they often get involved in the sex trafficking trade because it carries less risk than the drug trade. Pressure must be placed on the domestic and global community to increase penalties for human slavery to at least equal to that of drug trafficking in order to deconstruct the current, pervasive low-risk perception that modern day slavery carries.

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[1] “Sex Trafficking.” Polaris Project. October 26, 2017. https://polarisproject.org/human-trafficking/sex-trafficking.

[2] “United Nations Office on Drugs and Crime.” General Assembly President Calls for Redoubling of Efforts to End Human Trafficking. April 3, 2012.

[3] “What Is Modern Slavery?” U.S. Department of State. https://www.state.gov/j/tip/what/index.htm.

[4] Ibid.

[5] “Global Estimates of Modern Slavery: Forced Labour and Forced Marriage.” Report: Global Estimates of Modern Slavery: Forced Labour and Forced Marriage. September 19, 2017. http://www.ilo.org/global/publications/books/WCMS_575479/lang–en/index.htm.

[6] Ibid.

[7] Global Report on Trafficking in Persons: 2014. Vienna: United Nations Office on Drugs and Crime (UNODC), 2014.

[8] Ibid, 37

[9] Clawson, Heather J., Nicole M. Dutch, Amy Saloman, and Lisa Goldblatt Grace. “Study of HHS Programs Serving Human Trafficking Victims.” U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, December 2009.

[10] Ibid.

[11] Estes, R., & Weiner, N. (2001). “The commercial sexual exploitation of children in the U.S., Canada, and Mexico”. Philadelphia: University of Pennsylvania.

[12] Territo, Leonard, and George Kirkham. International Sex Trafficking of Women & Children: Understanding the Global Epidemic. Flushing, NY: Looseleaf Law Publications, 2015.

[13] Dank, Meredith, Bilal Khan, P. Mitchell Downey, Cybele Kotonias, Debbie Mayer, Colleen Owens, Laura Pacifici, and Lilly Yu. “Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major US Cities.” Urban Institute. March 11, 2014. https://www.urban.org/research/publication/estimating-size-and-structure-underground-commercial-sex-economy-eight-major-us-cities/view/full_report.

[14] Kara, Siddharth. Sex Trafficking: Inside the Business of Modern Slavery. New York: Columbia University Press, 2009, pg 12

[15] “More Assistance, More Action: 2016 Statistics from the National Human Trafficking Hotline and BeFree Textline.” Polaris. December 2016. Accessed December 16, 2017. https://polarisproject.org/resources/2016-hotline-statistics.

[16] “General Recommendations Made by the Committee on the Elimination of Discrimination against Women.” United Nations. Accessed December 16, 2017. http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm.

[17] “Sex Trafficking.” Polaris Project.

[18] Kara, pg 55

[19] ibid.

[20] ibid, pg 59

[21] Dank, Meredith et al, pg 2

[22] Bales, Kevin, Ph.D, and Steven Lize, Ph.D. Trafficking in Persons in the United States: A Report to the National Institute of Justice. Report. U.S. Department of Justice, 2005, pg 5

[23] Territo, pg 7

[24] Kara, pg 31

[25] Dank, Meredith et al, pg 8

[26] ibid

[27] ibid, 3

[28] ibid, pg 210

[29] Kara, pg 268

[30] ibid

[31] Dank, Meredith et al, pg 192

[32] ibid, pg 286

[33] ibid

[34] Peters, Alicia W. Responding to Human Trafficking: Sex, Gender, and Culture in the Law. University of Pennsylvania PR, 2015, pg 63

[35] ibid, 57

[36] ibid, 63

[37] ibid

[38] Bales, Kevin, Ph.D, and Steven Lize, pg 11

[39] Peters, pg 63

[40] “Current federal laws”. Polaris Project. https://polarisproject.org/current-federal-laws

[41] Kara, pg 258

[42] Peters, 49-50

[43] “United Nations Office on Drugs and Crime” United Nations Convention Against Transnational Organized Crime. https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html.

[44] Kara, 255

[45] ibid.

[46] Peters, 80

[47] ibid, 78

[48] Kara, 70

[49] ibid, 255.

[50] ibid, 258

[51] Dank, Meredith et al, pg 8

[52] Clawson, Heather, pg 19

[53] Bales, Kevin and Steven Lize, 12.

[54] Clawson, Heather, pg 19

[55] Bales, Kevin and Steven Lize, 6.

[56] Clawson, Heather, pg 19

[57] Peters, 43

[58] Kara, 256

[59] “CNN Freedom Project.” CNN. March 31, 2015. http://www.cnn.com/specials/world/freedom-project.

 

by MATTHEW BUCKWALD

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As early as 2004, over 500 men from India were recruited by Signal International LLC, a
Gulf Coast marine services company, to work in their New Orleans site on the shore which was still recovering from massive loses during Hurricanes Katrina and Rita. Despite the tragedies of the storm and the dramatic employee drop at Signal, business was highly in demand because of storm-damaged rigs that desperately needed work. Recruiters representing Signal charged workers $10,000 to $20,000 per person for the “opportunity” to work at Signal; this “opportunity” included work, residence, registration with an H-2B “guest worker” visa, and the promise of an eventual employment-based permanent residence visa in the United States [1]. Promised a better life to eventually bring back to their families across the world, workers pulled money together by borrowing from families or villagers, selling land and jewelry, and borrowing from “loan sharks” at outrageously high interest rates. At the time these promises were made, there was a 5 year wait to get a green card for workers from India, which was obviously made unknown to the hopefuls.

As mandated by U.S. Citizenship and Immigration Services under the U.S. Department of
Homeland Security, H-2B “guest worker” visas may be owned for 10 months at a time, with the ability to renew such ownership only one, maybe two, times. A recipient’s guest worker visa is only valid if they are working for the sponsor employer. Contrary to Signal’s recruitment promise to the Indian men, H-2B visas expressly cannot be used as a path to permanent residency. In fact, immigrant intent is grounds for visa denial. Therefore, not only did the recruiters lie to the workers, but they also lied to the government. Later on the trial, Signal’s defense team would argue ignorance; they did not know about the promise of green cards. In essence, Signal’s counsel claimed that the plaintiffs were “self-trafficked.” Additionally, there are H-2B eligible countries, only from which immigrants may be considered for a guest work visa; India is still not among them [2].

Life at the Signal compound was humiliating and undignified. The contracts required the
workers to live in housing facilities that were built on the grounds, for which they were charged $1,065 per month to live there. Up to 24 men were assigned to live with each other in each small trailers and visitors were not allowed on the grounds. They were fenced, guarded, and constantly arbitrarily searched [1]. Essentially, they were forced into slave labor, with the threat of deportation always looming over their heads after it was revealed that they would not be receiving the promised path to citizenship nor an extension of their green card. Moreover, because of recruiting fees paid and debts incurred, the workers had to stay employed there, anyway. Culturally, the social stigmas around debt in India had a strong coercive impact. When the men borrowed money from “loan sharks,” little did they know of the constant threats and intimidations from across the world. Diaries and testimonies later exposed in discovery and in the trial would reveal that many of the workers were self-harming or suicidal.

As horrendous as living conditions were at Signal, the environment of the surrounding
area was similarly decimated by the hurricanes. Lawyers found voir dire to be particularly challenging because they were choosing from New Orleans natives who were already living in FEMA trailers due to their houses being destroyed during Katrina. Despite this, plaintiffs found clear intent and knowledge of living conditions at Signal on behalf of their recruiters and superiors. Litigants persuaded the judge to order Signal to turn over all search items, which included a diary from one of the Signal executives that noted intent for labor trafficking and enslavement. Many workers would escape the Signal compound and find refuge in over twelve big-name litigation firms across the country. Right in our backyard, some workers would stage a hunger protest on Embassy Row in Washington, DC.

After over 180 days of testimony and a year and half of trial, the jury found for the
plaintiffs on every single on of their claims against Signal on a false imprisonment charge, resulting in over $14 million in compensatory and punitive damages to the five Indian plaintiffs [3]. The case of David v. Signal highlights many of the modern challenges in international labor trafficking: environmental refugees, the power of international law, the effectiveness of monitoring human trafficking, and guest work visa disparities.

For one, Signal illustrates the realities of environmental refugees and how natural
disasters heavily impact human trafficking. The European Commission alleges that “The greatest single impact of climate change could be on human migration with millions of people displaced by shoreline erosion, coastal flooding, and agricultural disruption – a crisis in the making” [4]. When these millions are displaced domestically, however, large corporations are forced to turn to cheap labor, which often comes in the form of international labor trafficking, whether it is intentional or not.

In an international perspective, Signal violations of the United Nations’ “International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families” staggers up to over 14 violations of Articles and Sections [5]. There still exists the question, however, of if a worker’s citizenship status affects their eligibility to be protected in a particular country. Regardless, despite the United States having the largest percentage of migrant populations at 12.4%, they have still yet to ratify the Convention [6]. Of course, this calls into play the timely discussion of the relationship between International Law and United States Law. To what extent can we hold domestic enforcement agencies, namely the Department of Homeland Security, the Department of Justice, and the Department of State, accountable for international norms and regulations? The question remains wholly untouched, even with the augmented tensions in the Middle East regarding the Trump administration’s decision to move the United States embassy in Israel from Tel Aviv to Jerusalem.

Additionally, how did we not know about these violations? What went wrong in the job
supply chain that missed over 500 foreign nationals being trafficked? The tracking and
measurement systems in place are not doing enough to monitor large-scale human rights
violations. Polaris, one of the largest anti-human trafficking NGOs, reports that there is little or no data on the trafficker profile, recruitment methods, or victim profile of construction and non-agricultural trafficking incidents, such as the one with Signal [7]. If we drew parallels between technology and trafficking, then perhaps monitoring methods would have advanced far enough to impede Signal’s recruitment process.

Finally, there are a myriad of visas available to potential guest workers, but almost all are still controlled by the sponsor employer which complicates the ability to monitor and enforce human trafficking incidents. Domestic workers for foreign diplomats, royalty, or staff of international organizations may apply for an A-3 and G-5 visa, temporary business workers may apply for a B-1 visa, specialty occupations fall under H-1B, agricultural workers are eligible for H-2A, cultural exchange jobs can apply for J-I, and of course, non-agricultural workers may apply for H-2B visas. As much variety as there may seem at face value, only B-1 and some J-I visas have portability, or the ability to allow the worker in question to leave abusive jobs without losing their legal worker status in the United States [8]. Still, the overwhelming majority of guest workers do not have this choice.

The case of David v. Signal remains as one of the most gruesome public labor trafficking
cases in the United States. There is, however, substantial evidence to suggest that there are worse cases, domestically and internationally. Although Signal certainly sheds light on some of the most pressing issues in labor trafficking, there are more to be uncovered. This cases perfectly illustrates the potential for monstrous human rights abuses to take place closer to home than we ever thought, without penalty, without accountability, and without justice.

 

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Notes
[1] Southern Poverty Law Center, “Federal jury in SPLC case awards $14 million to Indian guest workers victimized in labor trafficking schemed by Signal International and its agents”
[2] U.S. Citizen and Immigration Services, “H-2B Temporary Non-Agricultural Workers”
[3] American Civil Liberties Union, “David, et al. v. Signal International, LLC, et al.”
[4] European Commission, “COP21 UN Climate Change Conference, Paris,”
[5] United Nations, “Convention and Protocol Relating to the Status of Refugees”
[6] United Nations, “Convention on Migrants’ Rights”
[7] Polaris, “The Facts”
[8] Department of Homeland Security, “U.S. Citizen and Immigration Services”

 

By DOMINIC SOLARI

 

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Much of modern law in American society is devoted to the protection of property, usually meant to include one’s possessions and one’s own person. However, counterintuitively, there have been court cases where one’s own body, organs, and cells were not considered to be one’s property. One such case is Moore v. Regents of University of California. In this case, the court found that an individual did not maintain a proprietary interest in his cells after they had been removed from his body for the ostensible purposes of medical testing and diagnosis. [1] While, at first blush, this ruling may appear irrational, philosophical underpinnings of our conception of property provided by John Locke support that Moore, the plaintiff, did not retain a proprietary interest over the cells removed from his body and that he was not entitled to the products made from them.

In the case, Moore voluntarily allowed samples of blood and other bodily substances to be removed from his body to help diagnose and treat his hairy-cell leukemia. These bodily substances were used for the stated purpose, but were then also used by researchers to study the cells of hairy-cell leukemia. Those researchers eventually created a cell line which generated a profit for one Dr. Golde (Moore’s physician) and for the Regents of the University of California. When Moore discovered this, he brought multiple suits against Golde, the UC Regents, and others including a suit of conversion, which protects against interference with someone’s property. Besides the issue of malpractice discussed in the case, the court grappled with Moore’s claim that he retained a proprietary interest over those cells which the medical staff used in their research and even over the products derived from studying them. Ultimately, and rightly, the court found that Moore did not retain a proprietary interest over his cells, and he was certainly not entitled to the products and profits of the researchers who used his cells. [2]

The philosopher John Locke’s Second Treatise of Government contributes to the understanding of why Moore did not retain a proprietary interest over the cell line and other products created by the researchers from his bodily samples. In his writing, Locke attempts to explain the origins of private property in a world with abundant natural resources given to humankind collectively. Locke believes that property is acquired through labor. Labor is done with one’s person, Locke argues, so that labor is an extension of one’s person and can turn public resources into private property. [3] As a result, his theory has been called the “labor theory” of property.

Locke’s explanation provides that the researchers’ actions of exerting labor on Moore’s cells, which were identical leukemia cells that could hypothetically have been found in any patient with the same disease, made those cells, or at least the products created from them, those researchers’ own property. Essentially, the scientists’ acts of studying and exerting labor on a natural resource (made more convincing by the point that the cells they were studying were non-unique to Moore and occur “naturally” in multiple people) created property through their labor that was theirs alone, not Moore’s.

In conclusion, there is great philosophical weight behind the court’s decision in Moore v. Regents of University of California. Specifically, Moore’s claim of proprietary interest over his cells and the products derived from them is not justified by the principles of bodily autonomy and property established by John Locke. While the malpractice of the doctor’s not informing Moore about the usage of his cells once removed from his body is an entirely different matter, as the court found, there seems to be no foundation, in either the philosophical world or the legal one, for Moore’s claim that the research and products from his cells were his property. This sets an interesting precedent in the ever-evolving world of genetic engineering and cell-line patenting. Once again, it seems medical research is pushing the boundaries of what we thought possible and our most basic questions of who we are.

 

Notes

[1] Moore v. Regents of University of California, No. S006987 (Supreme Court of Ca. Jun. 9, 1990).

[2] Id.

[3] John Locke, Second Treatise of Government,11, Ed. Jonathan Bennett (2017).

By KELSEY YUREK (COL’2019)

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Teen pregnancy and birth rates have declined by one-half since the early 1990s, but the drop-out rates for young mothers are disproportionately high.[1] Teen childbearing continues to cost taxpayers billions of dollars on the local, state, and federal levels each year, and the welfare programs available for mothers necessitate adherence to strict rules regarding their educational and living arrangements to receive federal assistance.[2] TANF, Temporary Assistance for Needy Families, is one of these programs, and it was created in 1996.[3] A study by Janellen Duffy and Jodie Levin-Epstein (2002), Add It Up: Teen Parents and Welfare…Undercounted, Oversanctioned, Underserved, shows even teens who benefit from these programs fall into the categories of “undercounted, undertracked, oversanctioned, and underserved.” Simply put, their states and their schools are not doing enough to provide services to enable their continued education or even meet their daily needs. In fact, “at least eight states had difficulty narrowing down one top priority for services to help teen parents who have left school return” (Duffy & Levin-Epstein, 2002, p. 14). The services listed did not even identified childcare as a top issue. The following research provides an overview of relevant laws, the negative impact that pregnancy and parenting has on dropping out of high school, and the federal regulations associated with this issue.

Studies demonstrate that pregnant and parenting students possess decreased rates of educational success and drop out at a significantly higher rate. The Department of Education conducts a periodic High School & Beyond study which provides significant data on this topic.[4] The following three reports analyze this most recent national data and address students who are not pregnant or parenting, but only characteristics pertaining to pregnant and parenting students will be noted in this memo. Late High School Dropouts: Characteristics, Experiences, Changes Across Cohorts, published by Ben Dalton, Elizabeth Glennie, & Steven J. Ingels in 2009 highlights the high rate of girls who become pregnant and are forced to drop out of high school. [5] Olga Yakusheva finds that a strong negative correlation between immediate educational outcomes and early childbirth in her 2011 article In high school and pregnant: The importance of educational and fertility expectations for subsequent outcomes (p.822).[6] Finally, Phillip Kaufman, Marilyn McMillen & David Sweet examine students at-risk for dropping out in their report A Comparison of High School Dropout Rates from 1982 to 1992.[7] The group with “the greatest proportion of dropouts in 1990-92 had a child of their own living with them when they were in the 10^th grade.”^[8] While overall dropout rates have improved from the 1980s to the 1990s, the statistics for those at-risk categories, such as pregnant and parenting students have not improved.^[9] They also note that the childcare burden disproportionately falls on females which increases their likelihood of dropping out.^[10]

While truancy laws demonstrate a state interest in ensuring each citizen grows into productive a member of society by providing public education, they also pose a barrier to a new teen parent. Each state laws out their own truancy guidelines, which often recommend the proper steps to support students who violate truancy laws. The superintendent is heavily involved around all processes involving students and truancy.

With that, Title IX, which prohibits discrimination based on sex in places of employment or public accommodation, requires pregnant and parenting students have equal treatment within the educational system. The passage of this educational amendment in 1972 prohibited discrimination on the basis of pregnancy, childbirth, and parental status (Title IX, 1972). Prior to Congress passing Title IX, “students who became pregnant or had children were often treated poorly and sometimes were dismissed from high school” (“Supporting,” 2013, p. 4). According to the Department of Education, the following is true:

• Encouraging pregnant and parenting students to stay in school will have a positive effect on their lives and their children’s lives.[11]
• It is illegal for schools to exclude a pregnant student from participating in any part of an education program.[12] This includes anywhere from specific advanced placement classes to extracurricular activities.
• The school must excuse absences and accommodate the pregnant student as long as the student’s doctor deems the absence medically necessary.[13]
• If any special service is provided to students with temporary medical conditions, they must also be provided to students who are pregnant.[14] For example, if at-home tutoring is offered to another student as a medical accommodation then a pregnant student may also request it.

The class-action truancy case Boyer v. Bedrosian[15] parallels pregnant and parenting students’ situation where they are “not willfully” or “habitually” absent, but rather has a specific obstacle that keep them from attending school because of “special educational or medical needs or caretaking obligations at home.”[16] Almost all of the students in this case had special needs and benefitted from individualized education plans, known as IEPs. While a pregnant or parenting student has differing needs from those of the students in this case, caretaking responsibilities for a child indicates the potential benefit of instituting an IEP to accommodate their educational goals. As the school provides this service to students with medical conditions or special needs, they must also provide it to pregnant or parenting students

Any form of harassment of a pregnant student is a violation of Title IX. The Department of Education notes that harassment can take many forms.[17] A school district must also have a Title IX Coordinator to oversee these policies and any concerns regarding them. If a student feels that their rights have been violated under Title IX, they can file a complaint of discrimination with the Office of Civil Rights through an online form or a claim in court through their own attorney or the court’s clerk’s office.[18]

Overall, pregnant and parenting students should find support in their school to allow them to continue to pursue their academic goals. Title IX guarantees legal protections to these students, and a variety of resources are available at the local, state, and federal level. Although this group is at an increased risk of dropping out of high school compared to their peers, proper precautions should be taken to ensure they do not follow this path.

 

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[1] The National Campaign to Prevent Teen and Unplanned Pregnancy. (2013, December). Counting It Up [The Public Costs of Teen Childbearing: Key Data].

[2] Duffy & Levin-Epstein, 2002, p. 1.

[3] Ibid.

[4] The data was originally published in a series of ongoing studies in 1982, 1992, and 2004. It was later analyzed in a report called Late High School Dropouts: Characteristics, Experiences, Changes Across Cohorts published by Ben Dalton, Elizabeth Glennie, and Steven J. Ingels in 2009. The same data is assessed by authors Olga Yakusheva and Phillip Kaufman, Marilyn McMillen & David Sweet in In high school and pregnant: The importance of educational and fertility expectations for subsequent outcomes and A Comparison of High School Dropout Rates from 1982 to 1992.

[5] Roughly one in three girls—28 percent of females to be exact—get pregnant while in high school and are forced to drop out as a result (Dalton, Glennie, Ingels, 2009, vii). The number of students dropping out has reduced from the 1980s to the 1990s, but these numbers demonstrate that the educational system continues to fail in supporting pregnant and parenting students

[6] Yakusheva states that “having a child or becoming pregnant is associated with a 5.9 percent higher probability of dropping out of high school and many mothers put off high school graduation.”

[7] Those considered “at-risk” fall into the following categories: “living in poverty, being of a minority group, being from an intact family, young people having children of their own” (p. v).

[8] Kaufman, P., McMillen, M., & Sweet, D. (October 1996). A Comparison of High School Dropout Rates from 1982 to 1992. National Center for Education Statistics,1-66. Retrieved October 30, 2017.

[9] Ibid.

[10] Male students drop out at only a rate of 6 percent compared to the females’ 28 percent (Kaufman, Marilyn, and Sweet, 2002). The burden is unfairly shifted on female students and necessitated intervention on the school’s behalf as “dropping out of high school is a major life event that severely impacts students’ chances for subsequent educational and occupational opportunities” (Dalton, Glennie, Ingels, 2009, iii).

[11] Supporting the Academic Success of Pregnant and Parenting Students. (2013). U.S. Department of Education,1-23. Retrieved October 30, 2017, p. 4.

[12] Ibid, 5.

[13] Ibid.

[14] Supporting the Academic Success of Pregnant and Parenting Students. (2013). U.S. Department of Education,1-23. Retrieved October 30, 2017, p. 6.

[15] Boyer v. Bedrosian (State of Rhode Island Superior Court 2010).

[16] Boyer v. Bedrosian was brought forth by several parents and legal guardians against the Rhode Island Truancy Court on behalf of their children who were summoned for absences. Boyer v. Bedrosian (2010) states that the Truancy Court was “initially designed with the stated purpose of providing at-risk students with quick and efficient access to services and support they needed to stay in school” (p. 3). The case highlights the issue that the Truancy Court targets students who have a specific obstacle preventing their attendance and penalizes them rather than offering services or support (Boyer v. Bedrosian, 2010, p. 3).

[17] Harassment includes verbal acts and name calling, graphic and written statements, and other conduct that may be humiliating or physically threatening or harmful (“Supporting,” 2013, p. 8).

[18] Supporting the Academic Success of Pregnant and Parenting Students. (2013). U.S. Department of Education,1-23. Retrieved October 30, 2017, p. 14.