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University of the District of ColumbiaLaw ReviewVolume 14 Spring 2011Number 1CONTENTS18TH ANNUAL JOSEPH L. RAUH, JR. LECrUREUNIVERSITY OF THE DISTRICT OF COLUMBIADAVID A. CLARKE SCHOOL OF LAW,THURSDAY, JUNE 17,2010 ••••••....••...••. Attorney General Eric H. Holder, Jr. 3YES WE CAN, PASS THE BAR.UNIVERSITY OF THE DISTRICT OF COLUMBIA,DA VID A. CLARKE SCHOOL OF LAW BAR PASSAGEINITIATIVES AND BAR PASS RATES-FROM THE TITANIC TO TI-IE QUEEN MARY! ..•...••..••...•••.... Derek Alphran, 9Tanya Washingtonand Vincent EaganTHE DISTRICT OF COLUMBIA V. THE 50 STATES:A 21sT CENTURY LAWSUIT TO REMEDY AN18TH CENTURY INJUSTICE ••••••••••.•••••••••••••••••••••••••• Timothy Cooper 43ADISCUSSION ON THE DISTRICT OF COLUMBIA'SPROCUREMENT LAW AND THE SPARK THATLED TO RENEWED REFORM EFFORTS ••••••••.•••••••••••••..•• Megan S. Vahey 115SAME SEX MARRIAGE: DOES THE CONSTITUTION ORSTATE CONSTITUTION SUPPORT SAME-SEX MARRIAGES? ..•••.••• Sonja Seehusen 133REVISING THE ANALYSIS OF PERSONAL JURISDICTION TOACCOMMODATE INTERNET-BASED PERSONAL CONTAcrS ..••• Matthew L. Perdoni 159JURISPRUDENCE FOR A DIGITAL AGE: FREE SOFTWARE ANDTHE NEED FOR A NEW MEDIA LEGAL AUTHORITY Nicholas Clark 193THE CHILD ONLINE PRIVACY PROTECTION Acr:THE RELATIONSHIP BETWEEN CONSTITUTIONALRIGHTS AND THE PROTECTION OF CHILDREN ••••••••.••••••••• Sasha Grandison 209THE RUCKUS IN THE CAUCASUS: A CASE AGAINSTMIKHEIL SAAKASHVILI FOR CRIMES AGAINSTHUMANITY IN THE AUGUST WAR. • • • • • • • • • • • • • • . . • • • • . . . • • • • • • •• Yancy Cottrill 225THE LEGAL PROCESS OF CULTURAL GENOCIDE:CHINESE DESTRUCTION OF TIBETAN CULTURE V. U.S.DESTRUCTION OF NATIVE AMERICAN CULTURE •••.•..•••••••••• Evan Mascagni 241

WADE HENDEI{SONLolllSE A. HOWEI.u;FRANCESCO ISOIU)CHRISTINE L. JONESKEVIN KELLYTilE HONORAULE MILTON C. LEE, JR.KERRY J. UmlNGTIIOMAS MACKKEMIT MAWAKANAWILLIAM G. McLAINSTEPIIEN B. MEI{CERANGELA D. MINORLAURIE A. MORINJILL C. MORRISONROYCE BERNSTEIN MURRAYKOSlso ONYIAMELVIN L. OTEYAUDREY ORTEZATilE HONORABLE PETER J. PANUTIIOSSIIAKIRA D. PLEASANTROBERT POMEI{ANCETHE HONORAULE WILLIAM C. PRYOROMYRA M. RAMSINOIIROUERT RAYMONDWU.HELMINA M. REUBEN-COOKETilE HONORABLE ROUERT R. RIGSBYLAURA RINALIlIALYSIA ROBBENWILLIAM L. ROBINSONW. SHERMAN ROGERSWALLACE E. SII ....., JI{.BARBARA V. SMITIIMAUNICA STIIANKIJACQUELINE SWANSONLASHANDA TAYLORTAMI TAYLORJOHN F. TERZANOJOSE .. H B. TULMANSUSAN L. W A YSDOIU'

University of the District of ColumbiaDavid A. Clarke School of LawTHE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW (ISSN 1063-8601) ispublished at least once annually by students of the University of the District of ColumbiaDavid A. Clarke School of Law. The opinions expressed in articles are those of theauthor(s) and do not necessarily reflect the views of the University of the District ofColumbia School of Law or the LAW REVIEW.Subscriptions are accepted for the entire volume.! Subscriptions are payable inadvance or billable. Domestic & Foreign: $25.00. Mailing Address: TI-IE UNIVERSITY OFTHE DISTRICf OF COLUMBIA LAW REVIEW, The University of the District of ColumbiaDavid A. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor,Washington, D.C. 20008. Manuscripts should be sent to the Articles Editor at this address.Subscriptions are renewed automatically upon expiration unless the subscriber sendstimely notice of termination. All notifications of change of address should include oldaddress, including zip code, and new address, including zip code. POSTMASTER: Sendaddress changes to: THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW, TheUniversity of the District of Columbia David A. Clarke School of Law, 4200 ConnecticutAvenue NW, Building 38, 2nd Floor, Washington, D.C. 20008.Unless a claim is made for nonreceipt of LAW REVIEW issues within six months of themailing date, the LAW REVIEW shall not be held responsible for supplying those issueswithout additional charge.All articles are copyrighted © 2010 by THE UNIVERSITY OF THE DISTRlcr OFCOLUMBIA LAW REVIEW, except when otherwise expressly indicated. For all articles inwhich it holds copyright, THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWpermits copies to be made for classroom use, provided that: the user notifies THEUNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW; the user has made suchcopies; the author and THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW areidentified; and proper notice of copyright is affixed to each copy. Except when otherwiseexpressly provided, the copyright holder for every article in this issue of THE UNIVERSITYOF THE DISTRICf OF COLUMBIA LAW REVIEW grants permission for copies of that articleto be made for classroom use, provided that: the user notifies the author and THEUNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW; the user has made suchcopies; the author and THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW areidentified; and proper notice of copyright is affixed to each copy.Information for Contributors:THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW invites submission ofunsolicited manuscripts. All manuscripts should be double-spaced and all footnotes shouldconform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law ReviewAss'n et al. eds., 19th ed.). As a matter of policy, the LAW REVIEW encourages the use ofgender-neutral language. Please enclose an envelope with return postage if you would likeyour manuscript returned after consideration.Send all correspondence to the Articles Editor at: THE UNIVERSITY OF THE DISTRlcrOF COLUMBIA LAW REVIEW, The University of the District of Columbia David A. ClarkeSchool of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C.20008. Manuscripts also may be sent to lawreview@udc.edu.1 To be cited as 14 UDC/DCSL L. REV. - (2011).

University of the District of ColumbiaLaw ReviewVolume 14 Spring 2011 Number 1Dear Reader,We proudly introduce Volume 14, Issue 1 of the University of the District ofColumbia Law Review. This issue reflects the hard work of the outstanding Seniorand Associate Editors of the Law Review. Our goal this year is to producemultiple issues of the Law Review, as well as introduce our new website. Theseresources will provide cutting-edge scholarly work from some of the most prominentand progressive legal minds in the country, and to reflect the new directionof our publication.First, we would like to thank the 2009-2010 Editorial Board. The majority ofthis issue is a continuation of the materials accepted and reviewed by the previousBoard. At 450+ pages, Volume 13, Issue 2 (Summer 2010) was one of thelargest editions ever released by our Law Review. We will strive to maintain theirlevel of enthusiasm and productivity in Volume 14.Volume 14, Issue 1 begins with a transcript of Attorney General Eric H.Holder, Jr.'s June 17, 2010 delivery of the 18th Annual Joseph L. Rauh, Jr. Lecture.With over 500 Washingtonians in attendance, the Attorney General laudedthe University of the District of Columbia David A. Clarke School of Law(UDC-DCSL) as a model for legal education and a point of inspiration for lawschools across the country. Accordingly, it seemed fitting to follow the AttorneyGeneral's speech with an article providing empirical analysis on UDC-DCSL'ssuccessful efforts to increase law students' bar passage rates over the past fiveyears.As the only public law school in the District of Columbia, our Law Review hasa duty to provide relevant information pertaining to the livelihood of Districtresidents. The next two articles do exactly that: one explores a new approach forachieving equal representation for the District of Columbia, and the other examinesD.C. 's procurement law and the efforts aimed at reform.In 2010, D.C. became the most recent jurisdiction to allow same-sex marriages.The fifth article in this issue explores the constitutionality of same-sex marriages.

2 UNIVERSITY OF TilE DISTRWr OF COLUMBIA LAW REVIEWThe three articles that follow examine the ever-increasing interaction betweentechnology and the law. The first article discusses the evolution of personal jurisdictionand the need for the law to recognize that the Internet accommodates anew variety of personal contacts. The second article contemplates the viability ofa centralized source containing illustrations of laws and legal concepts that can bedistributed through new technological outlets. The third article reviews the ChildOnline Privacy Protection Act and the balance between protecting children's privacyand their freedom of expression in the Internet context.The last two articles in this issue focus on international human rights. Onearticle presents a case against Georgian President Mikheil Saakashvili for crimesagainst humanity stemming from the country's August 2008 conflict with Russia.The final article compares China's use of the law as a means for oppressingTIbetans with similar practices carried out by the U.S. over Native Americans.Finally, we extend our sincere gratitude to the 2010-2011 Senior and AssociateEditors, who contributed a great deal of time and effort in bringing this issue topublication. We also would like to thank our faculty advisors, Helen Frazer andWilliam McLain, as well as Joe Libertelli and Dean Katherine S. Broderick, fortheir continued guidance and support.Sincerely,Evan Mascagni & Matthew PerdoniOn behalf of the 2010-2011 Un.iversity of theDistrict of Columbia Law Review Editorial Board

18TH ANNUAL JOSEPH L. RAUH, JR. LECTUREUNIVERSITY OF THE DISTRICT OF COLUMBIADAVID A. CLARKE SCHOOL OF LAW,THURSDA Y, JUNE 17,2010Attorney General Eric H. Holder, Jr.*Thank you, Wade [Henderson]. It's an honor to join you and to thank you foryour leadership and service here at UDC and across this city. Not only is Wade agreat professor, he is also an outstanding ambassador for the David A. ClarkeSchool of Law. And he never misses an opportunity to champion this school'sunique and provocative approach to legal education.Of course, much of the credit goes to Dean Broderick and her team of administrators,faculty, and staff. I want to thank you all for inviting me to join youtoday. I'm especially grateful for the chance to commend the Clarke LawSchool's extraordinary example of excellence, service, and innovation - an examplethat inspires the legal community in this city and far beyond.Tonight also provides a rare and welcome opportunity to do something everyattorney, and certainly any Attorney General, regularly should - to reflect on thesystemic challenges facing our justice system and to consider the future of legaleducation in this country. In the spirit of Joseph Rauh, the visionary namesake ofthis lecture series, that's exactly what tonight is all about: taking a step back fromwhat we do and what we study to consider what we owe - to our country and toour community.... Eric H. Holder, Jr. was sworn in as the 82nd Attorney General of the United States on February3, 2009 by Vice President Joe Biden. President Barack Obama announced his intention to nominateMr. Holder on December 1,2008.In 1997, Mr. Holder was named by President Clinton to be the Deputy Attorney General, thefirst African-American named to that post. Prior to that he served as U.S. Attorney for the District ofColumbia. In 1988, Mr. Holder was nominated by President Reagan to become an Associate Judge ofthe Superior Court of the District of Columbia.Mr. Holder, a native of New York City, attended public schools there, graduating from StuyvesantHigh School where he earned a Regents Scholarship. He attended Columbia College, majored inAmerican History, and graduated in 1973. He graduated from Columbia Law School in 1976.While in law school, he clerked at the N.A.A.C.P. Legal Defense Fund and the Department ofJustice's Criminal Division. Upon graduating, he moved to Washington and joined the Department ofJustice as part of the Attorney General's Honors Program. He was assigned to the newly formedPublic Integrity Section in 1976 and was tasked to investigate and prosecute official corruption on thelocal, state and federal levels.Prior to becoming Attorney General, Mr. Holder was a litigation partner at Covington & BurlingLLP in Washington.Mr. Holder lives in Washington with his wife, Dr. Sharon Malone, a physician, and their threechildren. Meet the Attorney General, U.S. DEP'')' OF JUSTICE, hUp:llwww.justice.gov/aglmeet-ag.html(last visited Jan. 29, 2011).

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

18TH ANNUAL JOSEPH L. RAUH, JR. LECfURE 5public safety. I saw them in the uplifting examples of criminals reformed, afterrehabilitation, and turned into productive citizens. As U.S. Attorney for the Districtof Columbia, I saw hope in the activism of community members who cametogether in times of crisis to safeguard their neighborhoods and help to prevent,not only punish, violence. And when I served as Deputy Attorney General andwas asked by President Clinton to lead Lawyers for One America, I saw thoseripples of hope in the attorneys, all across this nation, who banded together forthe shared purpose of addressing and eliminating racial inequality in our legalsystem.Over many years, in many different ways, I have learned that ripples of hope -and rooting out injustice one individual action at a time - can take many forms.There is no one way to fight for what's right. I have also learned that achievingjustice, like accomplishing anything worthwhile, does not come easily. But thepath to justice always starts with a single action - and in 2010 it must start withyou.Of course, many of you already know this. The students here, in the traditionof the Clarke School of Law, have already been working to fulfill the promise ofjustice -long before studying for the Bar Exam. Although this is a small school -with only 300 students - you annually provide more than 85,000 hours of publicservice to low-income community members. And each UDC law student is requiredto provide at least 700 hours of clinical service - to helpless tenants, vulnerableseniors, suffering HIV/AIDS patients, needy children, communitygroups, and businesses.Seven hundred hours. That's incredible. Imagine, for a moment, if every lawstudent in the country were to give back, as UDC students do, while earning theirdegrees. Since there are approximately 150,000 law students at anyone time inthis country, that would mean about 100 million hours of clinical services combined- enough to turn tens of thousands of ripples of hope into that "currentwhich can sweep down the mightiest walls of oppression and resistance." I hopethat, now, you can start to see my vision, my hope.Your responsibility to serve others has proven to be not only an effectivemeans of providing your community with much-needed legal assistance, but alsoan effective means of learning the law. Joseph Rauh predicted it would be - andyour example shows that he was right. Today, we can all be encouraged that lawschools across the country are taking steps to promote public service and to createopportunities for students to help meet community needs. But I agree withthe assertion by UDC's leadership that all publicly funded law schools shouldlook to the Clarke School of Law for inspiration and consider a similar servicerequirement. That would be a profound and powerful change. And it would lead,no doubt, to a more just nation and world.Such a paradigm shift in legal education would also align with what I see as aninflection point in our justice system. I believe we have arrived at a watershed

6 UNIVERSITY OF TilE DISTIUcr OF COI.UMBlA LAW REVIEWmoment. The choices we now make will reverberate for decades to come. Butsome important decisions must be made. After all, we face a crisis in our justicesystem - an environment where, despite our founding promise of justice for all,we still must strive to reach that vaunted goal.Our indigent defense system, for example, is broken; public defenders in someareas are so overwhelmed that they can spend, at most, an hour per case, many ofwhich present life-altering legal questions and decisions. The situation is no betterin the civil arena. More than 50 million Americans qualify for federallyfunded legal assistance, but over half of those who qualify and seek assistancefrom a federally funded legal assistance program are turned away. There simplyaren't enough resources.But, fortunately, there are an increasing number of attorneys around the countrywho are beginning to realize how critical it is that those who have it all - a lawdegree, a steady job, a good income - help those who have next to nothing, freeof charge. And I'm pleased to report that, at the Department of Justice, there isnow - at long last - an "Access to Justice" office, which is led by the eminentHarvard law professor Laurence Tribe and dedicated to ensuring the fairness,integrity, and improvement of our legal system.But let me be clear about something: the Justice Department's Access to JusticeInitiative is not rooted in the notion that the government can do it all. Governmentcan't. And that's where each of you comes in. To me, UDC's students,alumni, and supporters represent an attitude change that is reaching its "tippingpoint" and, I expect, will soon become widely accepted practice - that pro bonowork is not merely good, as its Latin name implies, but is necessary - that itdefines the notion of what is expected of an attorney. That every lawyer shouldengage in pro bono practice frequently, whether you are a professor, a partner, astudent, an associate, or a Department of Justice attorney.Granted, we're not quite there yet. An American Bar Association study lastyear reported a definite rise in pro bono activities among lawyers, but it alsonoted, and I quote, that "more than three-fourths of those who had performedpro bono service in the past year indicated that they do not seek out pro bonoopportunities: the opportunities find them." And many surveyed still did not participatein pro bono, citing a lack of interest among their employers for such workor the sense that there was no free time to spare.But all of you, current and future leaders who have regularly engaged in publicservice and seen the power of these individual and collective acts, can help tofulfill the potential attitude shift that I've just described. And as you do so, youcan - indeed, I expect you will - remain engaged in critical pro bono work here inWashington, D.C., not because the opportunities find you, but because you findthem. As you know well, there is so much need in this city, and so many differentways to use your skills, training, and talents to help others.

18TH ANNUAL JOSEPH L. RAUH, JR. LECfURE 7It may not always be easy. Ripples of hope can be easily smothered by wavesof resistance. The cases you take up may not be glamorous, and your servicesmay not always be appreciated. And, if you are a student, after you graduatethere may no longer be any formal requirement to give back; you'll have to seekout service opportunities.But I urge you to do just that. Find ways to contribute and to encourage othersto serve. Individual acts, performed in the pursuit of justice, must continue andmust spread as far and as wide as possible - even, and especially, into conferencerooms and classrooms where they previously had no place. That is what thisschool - and what both David Clarke and Joseph Rauh - stood for: training lawyers,not only to be successful, but to be examples for others and to be remindersabout the importance and power of pro bono service.So tonight, let us renew our commitment to what Robert Kennedy once calledin South Africa, "our shared determination to wipe away the unnecessary sufferingsof our fellow human beings." That may not be our only purpose as lawyers,but it is our most sacred and important. It should, and must, define who we are asattorneys and the legal system within which we operate. As leaders in our professionyou must spread the philosophy of this great institution and make what isunique commonplace.Thank you.

YES WE CAN, PASS THE BAR. UNIVERSITY OF THEDISTRICT OF COLUMBIA, DAVID A. CLARKE SCHOOLOF LAW BAR PASSAGE INITIATIVES AND BAR PASSRATES-FROM THE TITANIC TO THE QUEEN MARY!*lDerek A1phran, Tanya Washington and Vincent Eagan, PhD. 2INTRODUCTIONBar passage rates began to fall at the University of the District of Columbia,David A. Clarke School of Law (UDC-DCSL) in the late 1990s as the Districtand the School of Law dealt with many changes related to uncertain funding andstaffing. As a result, in 1998, the Law School created the Bar Passage Task Force(BPTF) to study the issue, prepare a plan of action to put bar passage on anupward path, and to implement that plan. In 2003, at the time of UDC-DCSL'sapplication for full accreditation with the American Bar Association (ABA), theLaw School's first time bar passage rate was 36%. In 2004, the first time passagerate increased to 460/0. 3 By 2008, UDC-DCSL reached an 820/0 overall passage* The study that is the focus of this article covered the years of 2004 through 2008. Our articlewas submitted for publication in April 2010. At that time, complete data for July 2009 bar exam wasunavailable, and therefore, was not a part of our study. Furthermore, the July 2010 bar exam had notbeen administered at the time this article was submitted for publication. Although final results for theJuly 2010 bar exam were not tabulated at the time this article went to press, early indications show adramatic drop in the overall bar passage rate for first time exam takers. We plan to conduct a followupto the study presented in this article that includes data from the 2009 and 2010 bar exams. Theintended study also would examine passage rates for those students who took part in the courseworkand exam preparation classes outlined in this article, and whether any internal or external factorsaffected bar passage. The results of the forthcoming follow-up study will be published on Universityof the District of Columbia Law Review website.1 This quote belongs to Professor Robert Burgdorf (UDC-DCSL) who offered this comment atone of our faculty meetings. In response to an upward increase in bar passage he said, "Since whenhave we gone from sinking on the Titanic to the Queen Mary?"2 Derek Alphran, J.D., V.C.L.A. School of Law, is an Associate Professor and Director of theAcademic Support Program at the David A. Clarke School of Law. Professor Alphran also chairs theBar Passage Task Force. Tanya Washington, J.D., University of Maryland School of Law, is an AssociateProfessor at Georgia State Law School and the Director of PTEX, a bar essay writing program.Professor Washington authored the section describing the content and emphasis of the Bar SkillsEssay Writing practicum, which constitutes a significant aspect of VDC-DCSL's bar passage initiative.Vincent Eagan is an Associate Professor of economics at Morehouse College. He holds a Ph.D. inEconomics from Georgia State University (1988) and a J.D. from Harvard Law School (1991). ProfessorEagan conducted the statistical analysis of bar data for this study as described in Part VI. Valuableresearch assistance was provided by Bakary Seckan. The authors also would like to pay tribute tothe late Professor Jim Gray who chaired the Bar Passage Task Force for many years and who workedtirelessly on the bar passage program.3 Application for full accreditation with the ABA on file with Academic Dean Ann Richardson(UDC-DCSL). The results were based on information available to the School of Law at that time. Asubsequent 2008 report by the ABA following full accreditation of the law school in 2005 showed the

10 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWrate in Maryland, the District of Columbia (D.C.), and Virginia. 4 This article addressesthe efforts of UDC-DCSL to improve its bar passage rate, particularlyrelating to the measures taken over the past five years. The bar passage rate improvedoverall as the result of a wide range of academic support and bar passageassistance.Many factors contributed to the recent increase, notably an improved academicprofile of incoming students' LSAT scores and undergraduate GP As(UGPA), and the strengthening of the in-house bar skills program. In an effort toshow which factors may be contributing to the improving bar passage rate, weundertook a study of the academic profile of graduating students over a five yearperiod, 2004 to 2008, examining their LSA T scores, undergraduate grade pointaverage (UGPA, Cumulative GPA), and enrollment in the Bar Skills PreparationProgram (BSPP), instituted in 2003. Beginning in 2007, the BSPP included enrollmentin a 14 week YfEX Essay Writing Practicum and a three-day PMBR prepcourse. The focus of this study is on the impact of these programmatic variableson the bar passage rate and specifically whether the bar skills preparation programand YfEX impact the bar passage rate. 5Bar Passage has been a central concern for many years; not just to UDC­DCSL but other law schools and the ABA accreditation bodies. 6 Between 1996and 2005, the bar examination passage rates for all states fell from 79% to 76%.7following bar passage rates: the 2004 class showed a passage rate of 56.5%; 63.6% for 2005; 58.1 % for2006; and 68.4% for 2007.4 See American Bar Association, Site Team Report to UDC-DCSL (2008) (on file with ProfessorAlphran). These numbers are relatively small for a comparison yet the graduating class of the Schoolof Law had been relatively small for a number of years. The 2008 bar passage rate was exceptional.Importantly Maryland's overall bar passage rate also had increased 10% from the previous year. Seecomments by Bedford Bentley, Secretary to the Maryland Board of Bar Examiners, Maryland DailyRecord (Nov. 19, 2008) ("We saw a significant increase in the passage rate when compared to lastJuly."). After the results of this study were compiled, the 2009 bar passage rates were released, showinga 63.64% first time bar passage rate for those UDC-DCSL students who took the Maryland barexam and an overall School of Law bar passage rate of 68%. This data was compiled after the resultsof our internal five-year study. A number of factors likely contributed to the decline in the 2009 barpassage rate and is under review as part of the School of Law's ongoing assessment of its bar passageprogram.5 The authors would like to thank Ariel Shea, Electronic Services Librarian, and Lewis Perry,Network Administrator, for their work on the data collection for this study. This project could nothave been done without them. Ms. Shea is a 2008 graduate of the School of Law, a member of theMaryland bar, and a former student member of the BPTF, with which she continues to work. LewisPerry is the Director of the IT Department, who assisted in the data collection over the years inquestion. We also want to give special thanks to Helen Frazer, Associate Director, UDC-DCSL LawLibrary, for her editorial assistance and thoughtful insights.6 See, e.g., Douglass Rush and Hisako Matsuo, Does Law School Curriculum Affect Bar ExaminationPassage? 57 J. Legal Ed. 224, 225 (2007) ("Law schools are becoming increasingly concernedabout their bar examination failure rates.").7 [d. at 224. See also National Conference of Bar Examiners, available at http://www.ncbex.orglbar-admissions/statsl (last visited Nov. 22, 2010).

YES WE CAN, PASS THE BAR. 11In response, the ABA's Section on Legal Education relaxed its rules to allow forbar preparation programs as part of law school curricula. 8 In 2003, the School ofLaw faculty and administration undertook a major initiative with the BSPP toincrease bar passage rates. Over the past seven years, the School of Law hasoffered some form of bar scholarship for students enrolled in the bar skills program.9 In 2007, the School of Law offered its first "for credit" bar skills class,Essay Writing for the Bar, which focused on intensified essay writing and analyticalskills.1O This study concludes that these efforts have been transformative asindicated by the gradual and steady increase in recent bar passage rates.UDC-DCSL has improved its bar pass rate over the past five years in D.C. andalso in the bordering states of Maryland and Virginia. In July 2008, for the graduatingclass of 2008, of fifty-eight first time takers, forty-eight passed a bar examinationfor a first time rate of 82.75%, a substantial increase. I1 For takers of theMaryland bar, the bar pass rate rose to 92% in 2008. 12 In the District, seven outof seven students passed the bar exam, for a 1000/0 passage rate. Virginia's firsttime rate was 670/0. Cumulatively, the class of 2008 had an 82% first time rate inMD, D.C. and V A.I3 In comparison, in 2003, the overall UDC-DCSL passagerate was 36%. The bar passage rate since the 2004 class has shown a consistentincrease. In 2008, the BPTF recommended a pilot program aimed at providingbar support for repeat bar takers. 14This study provides an empirical analysis of the School of Law's bar passagedata. Many law schools have created bar support programs - in addition to academicsupport programs - to improve their bar passage rates. Few studies, however,have assessed their program's using a statistical analysis. 1s One recent study8 American Bar Association, www.abanet.orgllegaled/standards/standards.html(last visitedNov. 22, 2010).9 See infra Part I, D. The bar scholarship was conditioned on participation in the workshops andenrollment in the Remedies course. The Bar Passage Task Force adopted this bar scholarship during aperiod in which the school had a low bar pass rate. It was also designed to help defray students'expenses for the bar.10 See infra Part II.11 Internal records of UDC-DCSL (on file with the author). See also Action letter of the ABAto the School of Law (Oct. 14,2009). This was the bar passage data reported to the ABA at that time.The actual first time pass rate has since declined to 78% for the 2008 class but the overall pass ratefor the class of 2008 has increased to 87%. Tracking of data is not an easy endeavor since there is nouniform clearinghouse for collection of bar data and states are not required to send data to lawschools. The numbers may change as the law school learns of more takers and passers. This numberalso includes repeat takers of the exam. The new rules allow for counting of subsequent takers for thebar passage rate but not the first time rate. See ABA Standards for Approval of Law Schools, 2009-2010.12 For Maryland, 25 out of 28 UDC-DCSL students passed the bar exam on the first attempt.13 See supra note 4. Bar results on file with the UDC-DCSL Academic Dean.14 Minutes of UDC-DCSL Faculty Meeting, May 2008 (on file with the author).15 See Linda Jellum & Emmeline Paulette Reeves, Cool Dala on a Hot Issue: Empirical EvidenceThai Law School Bar Support Program Enhances Bar Performance, 5 NEV. L.1. 646 (2008).

12 UNIVEI{SITY OF HIE DISTRICT OF COLUMBIA LAW REVIEWof the University of Richmond's bar support program found that its bar programhad improved the University of Richmond's bar passage rate and the increase inpassage was statistically significant. 16 The study also found that the program hada dramatic improvement for those students who were in the bottom half of thegraduating class. 17 The study found an 8.5% improvement in the bar passage ratefor students as a whole after the bar program was implemented. IsThe Richmond study provides the empirical model for our review, althoughsome of the programmatic aspects are different. 19 The UDC-DCSL study of theimprovement in bar passage rates is the first to use a logistical regression analysisfor all variables. Like the Richmond study, our results reveal that our bar supportprograms have had a statistically significant impact on bar passage programs. Forthe entire study period, there was a 14.7% difference between bar passage rateson the first attempt (first time takers) for those who participated in the bar reviewclass versus those who did not participate. 2oThe results of the logistical regression analysis indicate that law schools' barpreparation programs can contribute significantly to improvement in the overallbar passage rate. This paper describes the steps taken at UDC-DCSL to improveits bar passage rate and provides an analysis of the factors which have proven tobe effective in reaching that goal.I. THE CHALLENGE AND TRANSFORMATIVE CHANGEA. The ABA's Mandate for Law Students Bar PassageToday, UDC-DCSL is in full compliance with ABA Standard 301-6, asadopted by the ABA House of Delegates?1 In 2009, 78.3% of students who grad-16 Id. at 646.17 Id. at n.17.18 Id. at 65819 The Richmond Supplemental Bar Program is available to third year students and provides anintensive substantive review of six subjects, focusing on test taking skills, multiple choice questions,and essay writing. The program is a three credit class. It also offers a tutoring program. The UDC­DCSL bar skills class is a two-credit course focusing on intensive essay writing skills. There are numeroushomework exercises with written graded feedback. There is also a three day multi-stateworkshop.20 See infra Part VI.21 American Bar Association, 20/0-201 J Standards and Rules of Procedure for Approvalof Law Schools, app. 3: Guidance on Interpretation 301-06, available at www.abanet.orgllegaled/standards/standards.html. The ABA adopted new rules on actual bar passage requirements after alengthy and contentious process. The Council of the Section on Legal Education (Council) issued areport on a new interpretation of 301-6 for notice and comment. After a substantial amount of deliberationand public comment from various groups inside and outside the field of legal education, theCouncil adopted new rules to guide accreditation committees for determining compliance with 301-6(A). The standards established several alternatives for showing compliance as it relates to bar passage.For students who graduated within the past five calendar years either: (a) 75% or more of thesegraduates who sat for the bar passed a bar examination; or (b) in at least three of these calendar

YES WE CAN, PASS THE BAR. 13uated from UDC-DCSL within five years and who sat for a bar exam had passedthe bar. However, this was not always the case.The ABA accreditation standard mandates that "a law school shall maintainan educational program that prepares its students for admission to the bar andeffective and reasonable participation in the legal profession.,,22 This is the governingrule for the ABA's evaluation of a law school's academic program andcontrols applications for accreditation. An ABA interpretation expands the standardby stating that among factors to be considered "are the rigors of its academicprogram, including assessment of student performance, and the barpassage rate of its graduates.,,23In 2003, the ABA, following a Site Inspection Report and review by the AccreditationCommittee and the Section of the Council on Legal Education,granted UDC-DCSL a two-year extension to achieve full accreditation, based onits low bar pass rate. 24 The Council of the Section on Legal Education did notaccept the Accreditation Committee's recommendation for full accreditation forthe Law Schoo1. 25 The Council concluded that "in light of the School's very lowfirst time bar passage rate, the School has not yet demonstrated that it is in fullcompliance with Standard 301, in that the School has not yet established that itmaintains an educational program that prepares its graduates for admission tothe bar.,,26 The Council was mindful of many factors affecting bar passage, suchas declining enrollment, transfer of students, and the financial instability of theUniversity and the District of Columbia during the 1990s, all of which affectedthe Law School's ability to admit and retain qualified students. 27Subsequent to the action by the ABA in 2003, the School of Law intensified itsbar skills program in response to the ABA concerns. 28 "For the graduating classof 2004, the BPTF revamped the School of Law's bar skills enhancement proyears,75% of the students graduating in those years and sitting for the bar have passed a bar examination.In demonstrating compliance the school must report bar passage results from as many jurisdictionsas are necessary for at least 70% of its graduates.22 Id. Standard, 301(a). Among the factors to consider in assessing compliance with standard501(b) ("[a] law school shall not admit applicants who do not appear capable of satisfactorily completingits educational program and being admitted to the bar [J") are the academic attrition rate of thelaw school's students, the bar passage rate of its graduates, and the effectiveness of the law school'sacademic support program.23 [d.24 In 1998, the School of Law received provisional accreditation by the ABA. It sought fullaccreditation in 2003 under the five year limit. In 2002, the School adopted a "Reliable Plan" to bringit within compliance of the ABA standards. This program included, among many other things, achange in admission standards and efforts at retention and recruitment policies, increasing financialresources, and adequate facilities (including the library).25 See ABA Action Letter June 16,2003.26 Id. at 2-3.27 Id.28 UDC-DCSL. Self Study, Report for Limited ABA Site Visit (2004).

14 UNIVERSITY OF 'IlIE DISTRICT OF COLUMBIA LAW REVIEWgram, making it more rigorous and incorporating doctrinal review with the skillsprogram.,,29 For the first time, the Admissions Committee selected students forthe class of 2004 who had a mean LSAT of 148 and a mean GPA of 2.8. 30 Thefaculty and administration believed the steady increase in statistical profiles ofthe entering class would lead to higher bar passage rates for the 2004 class andbeyond. 31In 2005, the ABA granted the School of Law full accreditation. 32 This achievementculminated a decade long effort to achieve full accreditation and compliancewith the ABA standards, in particular efforts to improve the School ofLaw's bar passage rate.In October 2008, the ABA held its first conference on Outcome Measures toImprove Bar Passage in Chicago, Illinois. Well over 100 law schools were presentat the conference. UDC-DCSL's Dean, Katherine S. ("Shelley") Broderick, addresseda panel session where she discussed the historical efforts of the School ofLaw to improve its bar passage rates. Many of the schools had adopted similarbar preparation programs in response to a relaxing of ABA rules. The ABA'snew interpretation of Standard 302 permitted law schools to grant credit for barpreparation programs. 33 Concerned with the declining bar passage of its students,law schools across the country expanded efforts to increase bar passagerates. 34At UDC-DCSL, the Bar Passage Task Force instituted a series of discussionsfollowing the ABA change in rules and immediately instituted a for-credit 14-week essay writing class in place of its then existing bar skills workshops.35B. History of UDC-DCSL's Efforts to Improve its Bar Passage RateMission of the Law School:29 [d. at 29.30 [d. The class admitted in 2003 was the first with an LSAT floor of 144.31 [d. at 41.32 ABA House of Delegates. Resolution No. 300B (2005).33 Although abandoned in August 2008, in 2004-05, Standard 302 was completely revised andInterpretation 302-7 was added to the Standards. The subject matter of Interpretation 302-7 waspreviously covered in Standard 302(f), which was deleted in the 2004-05 revisions. Standard 302(f)stated that "[a] law school may offer a bar examination preparation course, but may not grant creditfor the course or require it as a condition for graduation." Interpretation 302-7 revised the rule topermit a school to grant academic credit for a bar preparation course, but did not permit such creditto be counted toward the minimum classroom instruction required for graduation under Standard304. The Interpretation continued the current prohibition against requiring successful completion of abar preparation course as a condition of graduation. See American Bar Association, Section of LegalEducation and Admissions to the Bar, Rept. to the House of Delegates. Interpretation 302-7 (Aug.2008) available at http://search.abanet.orglsearch/302-7 (last visited Nov. 22, 2010).34 Denise Riebe, A Bar Review for Law School: Getting Students on Board to Pass Their BarExams,45 BRANDEIS L.J. 269, 270 (2006).35 See infra Part VI.

YES WE CAN. PASS THE BAR.The University of the District of Columbia as a land grant institutionis the only public institution of higher education in the District of Columbia.Its predecessor law schools, the Antioch School of Law andthe District of Columbia School of Law, have a unique history ofopening up the legal profession to poor people, people of color andwomen, who have been under-represented at the bar. District law furthermandates that the School of Law, to the extent feasible, enrollstudents from groups who are historically under-represented at thebar and serve the low-income residents of the District of Columbia. 36 15UDC-DCSL has had some unique challenges over the years. The District ofColumbia experienced a financial crisis in the early 1990's that directly impactedDCSL, the predecessor law school. The Law School experienced considerableinstability with ever-declining financial resources between 1994 and 1996 due toon-going changes in the governing structure of the District government. 3 ?According to the 2002 Self Study, the School of Law's low bar results alsoreflected the reality that as part of its mission to provide access to students fromunder-represented groups, the School of Law accepts more "at risk" studentsthan a more traditional school might. 38 Because the School of Law's mission is toeducate a diverse student body and to serve under-represented residents of theDistrict of Columbia, the bar passage numbers may reflect a disproportionatelylower rate. As part of its mission, the School of Law over the course of its historyhas recruited, admitted, and enrolled a diverse student body which has included ahigh number of minority students and students of color. At times, the school hasmaintained a predominantly minority student body.39 Several studies have"demonstrated that bar passage rate, especially on the first attempt, is signifi-36 D.C. CODE ANN. § 38-1202.06(2)(C)(ii)-(iii) (2010).37 See ABA, June 2003 Action Letter. In its letter extending the School of Law's provisionalapproval for an additional two years, the ABA found that the "significant financial difficulties experiencedby the District of Columbia during the 1990's and the effect of those financial difficulties onthe University of the District of Columbia and on the School [of Law] constitute an extraordinarycause and good cause sufficient to justify extending the School's provisional approval beyond thenormal five year period." During this time, enrollment dropped and some thirty students transferred.A merger subsequently occurred between DCSL and the University of the District of Columbia whichcombined resources and enabled the School of Law to lease space from the University. On April 28.1998, legislation renaming the new University of the District of Columbia David A. Clarke School ofLaw was signed into law by President Clinton. See Self Study. supra note 28, at 3-5.38 In recognition of this effort, the School of Law launched its Mason Enhancement Program, asummer program to introduce at risk students to the study of law and to prepare them for the demandsof law school. The goals of the program are to familiarize students with the stringent demandsand expectations of law school so that they may realistically prepare for entrance to the first yearprogram. See Self Study. supra note 28, at 23.39 See Shelley Broderick, The Nation's Urban Land Grant School, 40 U. ToL. L. REV. 305, 309(2009) (the student body tends to be about half students of color-about 30% African American).

16 UNIVERSITY OF TI IE DISTIUCT OF COLUMBIA LAW REVIEWcantly lower for students of color than for white students. ,,40 A 1998 study by theLaw School Admission Council (LSAC) titled National Longitudinal Bar Studyfound a lower pass rate for minority students. 41Following an ABA Action Letter in 1999, the School of Law commissioned astudy undertaken by Dr ~ Russell Cort, Ph.D., a special consultant to the School ofLaw, to correlate LSAT, UGPA, and bar passage rates for the 1997, 1998, and1999 classes. 42 The study also correlated LSAT, UGPA, and first year performancefor the classes that would be graduating in 2000, 2001, and 2002, includingan analysis of student transfers out of the schoo1. 43 Based on the findings of thisstudy, the School of Law made significant changes in its admissions policies.In 2000, the Admission Committee began using a projected class profile as atool in the admissions process. Adoption of a desired class profile has resulted insteadily improving academic credentials for each entering class since 2000. 44 "Themean LSAT rose to 150 for the entering 2003 class, with the 25th percentile at146. Significantly, the 25th percentile of 146 for this class was higher than the 75thpercentile of the 2002 class at 143. 45Undoubtedly, the academic profile of the entering students has improved since2000 and gradually the bar passage rate improved. Based upon the adoption ofthe 2002 "Reliable Plan," the faculty had anticipated substantial change in barpassage beginning with the class of 2004, based on increased LSAT scores. 46Their expectations were borne out. The 2004 bar passage rate was 480/0 for the2004 class. The LSAT average was 148.0, compared to a 144.7 for the 2003 class,and 141.4 for the 2002 class. 47 On the other hand, the LSAT scores of UDC­DCSL students for the past three years have remained virtually unchanged at 151or 152, with a similarly steady undergraduate GPA of 3.0 to 3.04.40 See, e.g., Richard A. White, AALS Survey of Law Schools on Programs and Courses Designedto Enhance Bar Examination Performance, 52 J. LEGAL EI)UC. 453 (2002).41 [d. at 454 (citing the LSAC Bar Passage Study).42 Dr. Russell Cort, ABA Site Evaluation Data, Correlation Studies: Performance Measures(1999) (on file with the author). The ABA Action letter requested the School of Law to examine therelationships of LSAT scores and UGPA's to performance in the law school's academic program andto the first time bar performance. The study could only report on the bar passage of classes for 1997,1998, and 1999 who had taken the bar exam.43 [d. at 1.44 See Self Study, supra note 28. This requirement was based on BPTF studies that indicate theUGPA is a significant indicator of future bar passage in that LSAT range. There is other empiricalevidence to suggest that law school GPA is a better predictor. See Deborah Riebe, supra note 34(citing White, supra note 40).45 Self Study, supra note 28.46 See supra text accompanying note 24.47 Self Study, supra note 28.

YES WE CAN, PASS THE BAR. 17C. Identifying Factors Responsible for Low Bar Passage.In 1999, Dean Broderick asked the BPTF to investigate the causes of theSchool of Law's low bar passage rate and make recommendations to improve it. 48In June 1999, the BPTF issued an interim report, recommending to the facultyand the administration measures to strengthen bar preparation efforts. Theseitems included gathering literature on bar exams, including surveys of other lawschools' course coverage and subjects tested on bar exams, surveys of alumniperceptions and common problems of bar passage, raising student awarenessabout the bar, and publishing regular articles in the School of Law's newsletter,The Advocate. 49 The School of Law also began funding financial scholarships forcompletion of the bar preparation program. 50Studies also indicated that law students with lower numerical predictors andthose in the bottom quartile of their class had difficulties in passing the bar. 51Based on the results of the 1999 Cort study, UDC-DCSL law students with a 2.8GPA had a 25% chance of bar passage. 52 During this period, an effort also wasmade to strengthen the curriculum of bar tested subjects in core courses. TheSchool of Law made a conscious commitment throughout the ensuing years to"provid[ e] ample resources to support and encourage high risk and low performingstudents. ,,53 Starting with the class of 2002, the School of Law made additionalscholarships available to help defray summer commercial bar coursesoffered to students who successfully completed the course in Remedies. It wasthought that the Remedies class provided a substantial doctrinal review of manyof the multi-state subjects tested on the bar exam. 54 Professors who taught bartested courses also were instructed to parallel course content to the multi-statesubjects where appropriate.Additionally, the Academic Support Program, headed by Professor LaurieMorin, conducted bar workshops on substantive review and bar testing of multiplechoice questions. The School of Law also hired a specialized instructor,known as the Mason Enhancement Fellow, to assist in conducting bar workshops,focusing on essay and mUltiple choice questions. 55 Today, the key components to48 The BPTF was formally adopted in 1998. See Self Study, supra note 28.49 See Jim Gray, The Bar Corner, THE ADVOCATE, Spring 2002, at 14. Professor Graychaired and later co-chaired the BPTF.50 Self Study, supra note 28.51 White, supra note 40, at 453.52 Cort, supra note 42.53 See Self Study, supra note 28, at 21.54 See Self Study, supra note 28, at 19; see also DENISE RIEBE & MICIIAEL SCIIWAR"I7., PASSTilE BAR! (2006).55 See Self Study, supra note 28, at 23. Adjunct Professor John Terzano became the first MasonEnhancement Fellow. He is now an adjunct professor at UDC-DCSL, part of the academic supportprogram, and a member of the BPTF.

18 UNIVEI{SITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWpromote academic success are the academic support program and the bar skillspreparation program.D. Dean's Fellowship Program Reduces Transfers and AttritionThe School of Law also took steps to reduce the number of students transferringto other law schools in the second and even third years. The School of Lawadopted the Dean's Fellowship Program, which provided a $2,000 scholarshipaward to all students who excelled in their first year. 56 The Dean's Fellowshipprogram has been largely successful in retaining high performing students. In addition,the BPTF also recognized the importance of bar passage and retentionand admissions. The Academic Support Director and chair of the BPTF also saton the admissions committee to assist in identifying students in need of furthersupport based on their numerical predictors of bar passage.A full bar prep tuition scholarship was made available to every third year studenttaking the PMBR summer preparation course. This funding was available toevery student who completed the Friday afternoon workshops and who also completedthe course in Remedies. 57 The efforts made by the BPTF were consistentwith the strategies that other schools had employed to increase bar passage rates.Students were in fact motivated to obtain monetary assistance for completion ofthe bar workshops. Twenty-five out of twenty-eight students participated in theprogram in 2004.II. ENHANCED BAR SUPPORT PROGRAMSFollowing the ABA's Action Letter and two year accreditation extension in2004, the School of Law further intensified its bar preparation program. UDC­DCSL hired a new Academic Support Director, Derek Alphran, who co-chairedthe BPTF with Professor Jim Gray. The BPTF conducted a review of its thenexisting bar program and efforts, and revamped the School of Law's pre-barpreparation program, making it more rigorous and incorporating doctrinal reviewof key subjects. Long-term preparation would assist in early substantive review ofthe bar tested subjects and provide opportunities for taking practice exams containingmUltiple choice questions and bar essay questions. One aspect of the programwas to introduce self-regulated learning and self-efficacy as part of theoverall goal of helping students foster a culture of success.56 Dean's Fellowship Program, http://www.law.udc.edul?page=deansFellows (last visited Nov.22, 2010) ("Dean's Fellows are chosen at the end of Fall semester of the first year of law school basedon academic excellence. These outstanding students have a variety of opportunities to meet and workwith top public interest and private sector litigators, public officials, legislators, and legal educators.They are invited to attend special events with the Dean, the Rauh Professor, and other top Universityofficials. ").57 Bar Scholarships tied to the completion of the course in Remedies were started in 2001.

YES WE CAN, PASS THE BAR. 19The Program's renewed efforts focused on enhancing student awareness of thebar examination components and increasing student motivation in taking andpassing the exam. Self-efficacy was a part of the self-regulated learning approachin the academic support program, focusing on students' beliefs they could learnand succeed in law school. 58 A shift or transformation in building a culture ofsuccess was important. Negative attitudes and pessimism affect motivation forlearning. Low self-efficacy can also reduce a student's belief in reaching his or herpotential success. 59 The program aimed at helping students believe in their potentialsuccess and in their ability to overcome obstacles to their learning by increasingopportunities for preparation to take the bar.The School of Law also had to overcome a history of negative perceptions oflower bar pass rates associated with poor results during the early turbulent yearswithin the university. We adopted an attitude of "yes we can pass the bar" withearly preparation and a renewed sense of self efficacy and building a culture ofsuccess. We developed a mantra of "rock and sock the bar, every day, every way"as a motivating tool. Building and reinforcing self esteem and self confidence wasimportant to the bar skills learning process. 60 Getting students motivated to learnand to take charge of their learning process was critical in changing studentattitudes.Efforts were made to intensify student awareness about the bar exam by invitingbar examiners from D.C., Maryland, and Virginia to the School of Law todiscuss the components of the exam, license requirements, and fitness issues.During the Spring of 2004, the BPTF conducted a series of voluntary Bar SupportEnhancement workshops led by in-house faculty. The focus was on a substantivereview of Multi-State subjects and issue spotting in essays. These workshops wereconducted on Friday afternoons by the Director of Academic Support and theFaculty. Students were given opportunities to practice essay writing and multiplechoice testing strategies. 61 Students were also provided a two-day workshop conductedby PMBR as a part of the in-house program on how to answer mUltiplechoice questions.58 See MICHAEL SCHWARTZ, EXPERT LEAI{NINO FOR LAW STUDENTS (2005); see also RIEBE &SCIIWART/., supra note 54.59 Ruth Ann McKinney, Depression and Anxiety in Law Students: Are We Part of the Problemand Can We Be Part of the Solution? 8 LEGAL WIUTINO J. 229 (2002).60 The phrase "rock it, sock it" caught on and students were encouraged to use it while testingand studying. Rock and sock every multiple choice question, 1.8 minutes per question.61 Self Study, supra note 28, at 29. The School of Law also provided every third year studentwith a copy of Aspen's STRATEGIES & T Acnes FOR TIlE MBE. Professors would assign twenty-five tothirty questions per week from the book. The following week, the professors would go over the answersin class.

20 UNIVERSITY OF THE DISTRICI' OF COI.UMBlA LAW REVIEWIII. BAR SURVEYSIn an effort to increase student awareness and to focus attention on barpreparedness, beginning in 2004, the BPTF distributed surveys to third year studentsabout their course selection and first and second choices for taking the barexamination. A comparison of subjects tested on the D.C. and Maryland bars isincluded, aligned with the related course offerings by the School of Law. Studentsare also encouraged to identify or select a commercial bar provider for their summerbar study. These surveys help students to identify their course selections ofheavily tested areas on the bar and are then distributed to the faculty bar mentors.The BPTF also began distributing the surveys to second year students to getthem looking ahead at course selection and their bar choice.The BPTF is mindful of the divergent views on bar course selections and theeffect on bar passage rates. Few studies, if any, however, have found any significantstatistical relationship between bar examination subject course selection andbar passage. One study undertaken at the S1. Louis University School of Lawcomparing bar passage rates over a five year period to the number of upper levelbar subject courses taken by their graduates found no statistically significant relationshipfor graduates in the first, second, and fourth quartiles. There was a statisticallysignificant relationship between bar examination courses taken and barpassage for students in the third quartile, however. Evidently, class rank andgrade point averages were the most important indicators of bar passage. 62 Althoughthe School of Law has not directly studied the impact of bar related subjects,we believe it is important for students who are particularly at risk to takebar related courses and the bar skills essay writing class. 63IV. MENTORING PROGRAMThe task force also assigned faculty mentors to each first year (or transfer) lawstudent to assist in individual counseling about course and bar selections. Studentswere paired with professors who were familiar with the respective states'bar requirements. Students were encouraged to do a self-assessment of theirlearning, discovering their strengths and weaknesses. Students were encouragedto take bar tested courses from electives such as the UCC, Remedies, Wills andEstates, and Tax if they had not done so in their prior semesters. 6462 Rush and Matsuo, supra note 6.63 See Christian Day, Law Schools Can Solve the "BAR Pass Problem" - "Do the Work!," 40Cal. W. L. Rev 321, 343 (2004) ("Law Schools should encourage students to take bar courses for agrade and be prepared to counsel them if their work is poor in these courses.").64 UDC-DCSL students are required to enroll in two seven-hour courses of clinical instruction(14 credit hours) beginning the second semester of the second year. In addition to other requiredcourses in the second year, the number of electives are thus limited if no advanced bar subjects havebeen chosen.

YES WE CAN, PASS THE BAR. 21According to the AALS Survey of Law Schools on Programs and Courses Designedto Enhance Bar Examination Performance, law schools identified variousstructural components of successful programs which included the following: makingstudents more aware of bar requirements; steering students toward subjectsthat are going to be tested; raising awareness of bar exam preparation; increasingrigor in the classroom; revising the curriculum; establishing a bar exam coordinator;and heightening academic standards. 65 Typical components of these programsincluded lectures on substantive law tested on bar exams, review ofmultiple choice questions, essay writing instruction and practice, advice on stressmanagement, outlining, and test taking strategies. 66 Many of these measures wereundertaken by the BPTF at UDC-DCSL in 2004. The following year, the barpassage rates increased from 360/0 to 48%.67 It appears that the intervention of abar skills program and an increase in LSA T scores can have a substantialimpact. 68v. 2005 BAR PREPARATION PROGRAMThe BPTF at UDC-DCSL continued to assess the effectiveness of its in-housebar skills program and efforts and to experiment with commercial bar preparationproducts and courses. The BARBRI program offered UDC-DCSL studentsa videotaped lecture series focusing on several multi-state doctrinal courses, includingTorts, Evidence, Contracts, and Corporations, all taught by seasoned barlecturers. BARBRI also offered to UDC-DCSL students a Bar Essay Writingworkshop taught by Professor Warnekin from the University of Baltimore. Manyof these resources were offered at no cost to the school. Recognizing that therewere inevitable inconsistencies among faculty members in the coverage of subjectmatter and in essay testing of bar subjects, the BPTF decided to use the BARBRIBeat Program as the program for delivery of substantive overview of Multi-Statesubjects. 69 The bar skills program also maintained a separate essay writing classtaught by BPTF members. 70 The program continued to offer the PMBR workshopsfor multi-state testing. The PMBR workshops extended over three weekends,covering two multi-state sessions each week. Students who successfully65 White, supra note 40, at 457.66 White, supra note 40, at 456.67 See American Bar Association, Action Letter, Oct. 14, 2009 (on file with the author).68 See Riebe, supra note 34, at 299.69 Letter from BARBRI to Professor Derek Alphran (on file with the author). See also Memorandumto the Students Outlining the Bar Program for the 2004-2005 year, Derek Alphran, Directorof Academic Support 2005 (on file with the author).70 Adjunct Professors John Terzano and Tammy Taylor conducted the essay writing classes.Professor Terzano, a UDC-DCSL alum, had been a member of the BPTF and taught in the MasonEnhancement Program. He had conducted numerous bar workshops with Professor Laurie Morin.Professor Taylor, a member of the law school's writing faculty, has tutored students for a number ofyears in essay writing for various bar jurisdictions.

22 UNIVERSITY OF TIlE DISTRK:'T OF COLUMBIA LAW REVIEWcompleted the bar skills workshops and the class in Remedies were eligible for abar scholarship in the form of a six day PMBR workshop during the summermonths?1 The school also supported bar workshops sponsored by the Black LawStudents Association (BLSA) with the Richard Litvin Bar Prep Program. 72 Thelatter program consisted of a videotaped presentation of multi-state subjects andMulti-State Bar Exam (MBE) testing, live lectures, and one-on-one essay tutoring.Students who completed these workshops also received a six-day PMBR barscholarship.A. Integrating Academic Support InitiativesA study conducted at the UCLA School of Law found academic support programsthat reinforce student learning and reasoning skills and that provide opportunitiesfor written feedback and one-on-one counseling can improve astudent's performance on the bar exam. 73 The study concluded that the expansionof the academic support program correlated with a rise in the bar passagerates. 74 Also, the earlier the intervention, the more likely the improvement inacademic and bar passage performance. Teaching legal reasoning skills throughfirst year substantive law improves student learning?5Academic Support is an important component of the School of Law's bar supportprogram. The emergence of UDC-DCSL's bar preparation programs hasbeen largely grounded in the academic support structure. The School of Law'sDirector of the Academic Support Program also chairs the BPTF and therebycoordinates the School of Law's academic support initiatives with the bar preparationprogram?6 The School of Law's academic support program follows theUCLA model of a Spring term legal reasoning skills course for first year studentson academic probation. Originally, Legal Reasoning I was required for studentswhose GPA was 2.0 or below. In 2006, the faculty adopted a change based on therecommendation of the Academic Support Director to require mandatory enrollmentfor students whose GP A was 2.3 or below. This change was based on a71 The bar scholarships, which had been in place since 2001, have changed from direct cashgrants towards commercial bar courses to smaller cash grants. During the 2004 year, for example, thebar scholarships were actual dollars awarded to students.72 See Litvin Bar Review of Texas, available at http://www.litvinbarreviewoftexas.com.73 Kristine Knaplund & Richard Sander, The Art and Science of Academic Support, 45 J. LE­GAL EDUC. 157 (1995).74 /d. at 201.75 [d. The UCLA study found that teaching legal reasoning skills combined with substantivematerial was more effective than teaching skills alone. The study found that higher grades were likelyto increase bar passage because bar exams test similar skills and knowledge.76 Self Study, supra note 28, at 26. The current Director is a co-author of this article.

YES WE CAN, PASS THE BAR. 23calculation of students who were in the bottom quartile of the class. 77 The same2.3 requirement was extended to students for the Legal Reasoning II class.The Academic Support Director emphasizes the Self Regulated Learning approachfor students in the academic support program. Self-Regulated Learning isa structured approach which emphasizes cognitive awareness of the process oflearning?8 The Self-Regulated Learning approach was developed by ProfessorMichael Schwartz. 79 Self Regulation is a process whereby students actually controltheir own motivation for learning and in completing academic tasks. 8oSecond year UDC-DCSL students whose GPA is 2.3 or below also are requiredto take Legal Reasoning II, which is an advanced legal skills class. Thecourse emphasizes legal analysis in essay writing and legal memoranda. Testingstrategies are employed using the Multi-State Performance Exam, by deconstructingthe exam in incremental learning steps. Case reading and synthesis, issuespotting, and drafting legal memoranda are also techniques. Second yearstudents are therefore introduced to bar exam and performance style questions asskill building exercises. While the goal is to improve student learning and successin law school, this is also an opportunity to increase student preparation for thebar exam. Early intervention helps with decreasing attrition and increasing theanalytical skills needed for passage of the bar exam. 81 Although no empiricalanalysis was done of the review period in our study, anecdotal evidence showsthat students who matriculated through the Legal Reasoning classes were successfulbar takers on the first attempt despite having GPAs in the bottom quartileof the class. 82Our statistical analysis shows an increase in bar passage for those students inthe bottom quartile of the class over the past five years. Many of the students inthis quartile are in the mandatory Legal Reasoning class. These results are supportedby the experiences of other law school academic support programs. 83 Forexample, a recent study by New York Law School showed that its CombinedCurriculum approach resulted in a substantial increase in the school's bar pas-77 See Memorandum from Derek Alphran, Academic Support Director, to Curriculum Committee,Apr. 2006 (on file with the author).78 See Self Study, supra note 28 (describing the Self Regulated Learning Approach).79 See Schwartz, supra note 58. Professor Schwartz addressed the UDC-DCSL faculty in 2004to introduce his expert learning approach and integrated expert learning strategies in the classroom.80 Schwartz, supra note 58.81 See Riebe, supra note 34, at 326. ("[E]arly intervention would also be beneficial because itwould help students build the skills necessary to perform well in law school as well as to increase theirlikelihood of success on their bar exams and in law practice.").82 Because of time constraints for this project, the study did not disaggregate students who tookthe Legal Reasoning classes. The focus of the study was on the bar passage program which is open toall the students, although academic support is an important part of early intervention. The recordsshowing successful Legal Reasoning students who took the bar exams are on file with the Director ofAcademic Support. A future study is contemplated.83 See Riebe. supra note 34.

24 UNIVERSITY 01' TIlE DISTRICT OF COLUMBIA LAW REVIEWsage.84 The New York Law School's combined curriculum emphasizes an academicsupport approach, using a Principles of Legal Analysis class and anadvanced reasoning class, both focusing on fundamental concepts and skills essentialto legal reasoning. Students also take a Consolidated Legal Analysis classfocusing on bar type essay exams. According to the study, "the goal of the programwas to ensure that students took a rigorous academic program best designedto enhance their analytical and writing skills and increase their chances ofpassing the bar. ,,85 These results provide further evidence that academic support,designed around both a bar skills program and a rigorous focused program ofstudy, can improve student learning and success on the bar exam.B. Bar Passage Task Force Initiatives - Curriculum Change BarPreparation Class for Credit, 2006The UDC-DCSL BPTF continued to assess the efficacy of the bar skills programevery year to explore the best strategies for early bar preparation. Severalinitiatives were undertaken. The committee invited Professor Byron Warnekinfrom the University of Baltimore to conduct a workshop for the faculty on gradingand testing bar exam essay questions for the Maryland Bar. His presentationfocused on heavily tested areas of the Maryland Bar and how bar examinersgrade bar essays. Professor Warnekin spent many years preparing students forthe Maryland Bar and was the BARBRI Executive Director for Maryland. 86 Inaddition, the BPTF recommended strategies for enhancing essay writing instructionand involving the faculty in bar essay grading as part of the in-house program.Most of the resources of the bar prep program had emphasized MBEtesting and review with some essay testing. The BPTF wanted more emphasis onimproving essay writing and analytical skills needed for the bar exam. Studentswho were particularly "at risk" of not passing needed reinforcing essay skills inaddition to practicing MBE questions. 87 The committee also proposed a shift tomore intense essay writing skills and received a proposal from the PTEX EssayWriting Program.84 Donald H. Zeigler, et aI., Curriculum Design and Bar Passage: New York Law School's Experience,59 1. LEGAL EDuc. 393 (2008).85 [d. The authors argue that their data shows a casual relationship between the preparationprogram and the bar passage rate, although the study did not use regression analysis to prove thishypothesis.86 Memorandum from Byron Warnekin, Professor, University of Baltimore Law School, toDerek Alphran, Background and Overview of the Maryland Bar Exam (Mar. 31, 2006) (on file withthe author).87 Students who are considered at risk have lower numerical indicators such as law school GPAand LSA T scores. Many academic support programs direct attention to providing skills programs forat risks students. Because of limited resources, some academic support programs may be limitedsolely to at risk students. See Riebe. supra note 34.

YES WE CAN, PASS THE BAR. 25The American Bar Association also relaxed its rules on in-house bar preparationprograms, authorizing schools to grant academic credit with some restrictions.ss Previously, under Standard 302-7, law schools were prohibited fromrequiring mandatory participation in bar support programs nor could bar classacademic credit hours be extended to courses which counted towards the school'sgraduation requirements. s9 A school also could not require passage of a barpreparation class as a requirement for graduation. Following the ABA's newrules on law school bar preparation programs, the Director of the BPTF submitteda proposal for academic credit for a two-credit bar skills essay writing class ona pass/fail basis to the UDC-DCSL Curriculum Committee. 9o This proposal representeda pedagogical shift in the BPTF's approach. The class would focus onincreasing essay writing skills with some substantive review. Moreover, the classwould be taught by a group of adjunct law professors, directed by ProfessorTanya Washington who was affiliated with the PTEX Company and who specializedin bar essay instruction. Many of the PTEX professors were from other arealaw schools and/or served as members of the state and federal judiciaries. Thelectures focused on heavily tested areas of the Maryland Bar. There would beindividual feedback on written essays assigned each week and in class administrationand review of two essay questions per week. The Curriculum Committeeapproved the bar skills essay writing program on a pass/fail basis. 91 We continuedto offer instruction on the MBE testing over a three day period using PMBR as apart of the bar skills class.In the summer of 2008, the BPTF also developed a pilot program aimed atrepeat bar takers. The ABA relaxed its rule to allow for law school bar passagedata for subsequent takers to be counted in tabulating the overall bar passagerate for accreditation purposes. The new program aimed at enhancing the essaywriting skills and multiple choice testing, including the Multistate PerformanceTest. To direct the program, the law school hired Adjunct Professor BarbaraSmith, who was an instructor in the legal writing program and an experienced88 American Bar Association, Standard 301 (a) (2006-07), available at www.abanet.orgllegaled/standards. The changes were recommended by the Section on Legal Education.89 Id. The ABA has since rescinded the prohibition on counting credits towards graduation.However, schools cannot mandate participation as a condition of graduation.90 Memorandum from Derek Alphran, Professor, UDC-DCSL, to Louise Howells, Professor,Chair of the Curriculum Committee (Nov. 2006) (on file with the author). The committee had athorough discussion of the need to offer a for credit bar course. Several schools like the University ofBaltimore and Howard Law School had begun to offer for credit bar courses. See also Minutes ofFaculty meeting, Nov. 18,2006 (on file with the author).91 UDC-DCSL Course Catalogue, available at http://www.law.udc.edu!?page=ASP.

26 UNIVERSITY OF TilE DISTRICI' OF COLUMBIA LAW REVIEWinstructor in bar tutoring and bar preparation courses.92 The program was wellreceived by alumni. 93C. PTEX Essay Writing PracticumThere are some cultural and structural reasons, specific to the legal academy,that may make law schools hesitant to implement in-house bar preparation programs,despite challenged bar passage rates. 94 However, "[p]roviding bar preparationas part of law school curricula does not need to change the orientation ofdoctrinal professors," and preparing students to pass bar exams "does not need toconvert law schools into bar exam schools and may help students become effectiveattorneys. ,,95 An effective bar preparation course must be tailored to addressand strengthen these known skills and knowledge-based deficiencies. Accordingly,the PTEX Bar Skills Essay Writing Course was developed to introduce andreinforce effective bar exam writing skills, within the context of the specific testingformat of most bar essay exams and the Multistate Perfonnance Test. Moreover,the PTEX course adopts an integrated approach to bar preparation that isfocused on teaching exam taking skills, writing skills, legal and factual analysis,time management, and effective study strategies. Bar preparation experts haveobserved:[T]hat students usually do not just randomly fail bar exams. Rather,when we work with repeaters we usually discover many deficienciessuch as: 1) Failing to understand the "big picture" of the licensingprocess; 2) Underestimating the amount of hard work necessary topass; 3) Failing to invest enough time in study hours; 4) Failing to planin advance for the bar preparation period ... 5) Possessing deficientlegal analysis skills such as identifying issues, stating rules, and applyingrules to factual situations to reach logical conclusions; and 6) Failingto communicate effectively in writing. 96The PTEX approach to teaching and reinforcing essay exam writingskills implements several factors that have been identified as "criticalto academic support success." These include: 1) Grounding the learningprocess in specific substantive contexts facing students, but keep-92 The program offers a ten week course focusing on heavily tested areas of the bar. The summerprogram also offered a three Saturday PMBR tutorial as part of the alumni program. Studentsenrolled in the essay class also took three Saturday workshops on MBE testing by PMBR at no cost tothe students.93 The overall 2008 bar pass rate also included results from the pilot bar class of repeat takers.94 See Riebe, supra note 34, at 283 ("[L]AW SCHOOLS have not traditionally been the forum inwhich STUDENTS learn about and prepare for BAR EXAMS •••• ").95 Riebe, supra note 34, at 289.96 Riebe, supra note 34, at 279-80 (citations omitted).

YES WE CAN, PASS THE BAR.ing the substantive focus relatively narrow; 2) Explicitly explaining thelearning process and skills such as reading, case briefing, outlining,studying, preparing for tests, and exam writing; 3) Providing explicitmodeling of skills ... 6) Encouraging independent learning, focusingon reflective learning methods which encourage students to thinkabout their own learning processes ... 8) Providing academic credit;9) Providing repeated practice opportunities for applying new learningskills followed by immediate verbal or written feedback ... and 11)using professional teachers. 97 27The following sub-section provides a description of the PTEX course and detailshow it is designed to facilitate and enhance effective bar skills competencies andperformance on the writing-focused portions of the Bar Exam.1. Course DescriptionThe PTEX Bar Skills Essay Writing class is a fourteen-week practicum thatprovides an intensive writing experience for students in preparation for the writtenportions of the bar exam, the essay examination,98 and the MPT.99 Thoughthe specific focus of the course is on the writing portions of the bar exam, theclass begins with an introductory PowerPoint presentation describing the purpose,format, and content of the bar exam, as well as highlighting the specificcompetencies essential to success on the different portions of the exam. looThough there are some general competencies that are important to success on thebar (e.g., discipline, knowledge of substantive law, good exam taking skills), becausethe MBE differs dramatically in format and focus from the MPT and Essay97 Riebe, supra note 34, at 293.98 The length of the essay examination and the subject matter tested varies from jurisdiction tojurisdiction. However, most essay exams test the examinee's ability to spot issues, identify and analyzerelevant facts in the context of controlling doctrine, and reason their way towards a well supportedconclusion.99 The MPT is a national examination designed to test an examinee's ability to apply fundamentallawyering to a factual scenario presenting a problem requiring legal resolution. It tests theexaminees' ability to extract legal principles and facts from the library case file and to apply controllingdoctrine to the facts at issue in a well organized an analytically sound motion or memorandum.The MPT instruction offered in the PTEX course addresses the most challenging aspects of draftingMPT answers: discriminating between relevant and irrelevant facts; identifying the controlling legaldoctrine; engaging in well-reasoned analysis; and writing a well-organized response. Professors reviewadministered MPT questions, using PTEX model responses, which provide a step-by-step roadmap for identifying issues, analyzing issues within the applicable legal framework, and drafting conciseand well-structured answers. They also emphasize and reinforce use of the PTEX Exam WritingTechnique in the context of MPT questions.100 For a full discussion of the PTEX Writing Program, see The Writing Experts, available athttp://www.ptexbar.com (last visited Nov. 23, 2010).

28 UNIVERSITY OF THE DISTIUCT OF COLUMBIA LAW REVIEWExam, different skill sets are essential for these written portions of the exam. 101This information helps students appreciate the nature and character of the differentparts of the examination they are preparing for, the ways in which the variousparts are similar to and different from law school exams, and the kinds of preparationactivities that will improve their performance on each portion of theexam. 102It has been noted that "[t]he [Bar] exam is considerably different from thetype of exams that law students have been exposed to either in law school or intheir undergraduate training."to3 It is particularly important that students appreciatethe difference between law school essay exams and bar essay exams becausethe similar format of the exam motivates students to believe that they are moresimilar than they actually are. Most bar essay examinations are written andgraded by practitioners, not law professors. During law school, the focus is onteaching the evolutionary development of legal doctrines, and law school examstest the student's ability to engage in legal discourse with an emphasis on thesubtle distinctions and nuances of the law. The bar essay exam, on the otherhand, is used to test the quality and reasonableness of one's judgment in identifyingissues, recognizing and analyzing key facts, and applying the relevant legalstandards to those facts. 104 So, while a law-laden answer may earn big points on alaw school exam, on most essay examinations, substantial points are allocated forissue-identification and factual analysis. Other important distinctions betweenlaw school and bar essay exams include: bar essays provide a shorter time framefor answering questions; bar essays present multiple-subject questions; and baressays test an examinees ability to identify the subject matter area being tested ineach question (e.g., whether the question is testing Torts or Contract law). In lawschool, a student, by virtue of being enrolled in a particular class, knows that theexam will test a particular subject area.Next, students are introduced to the PTEX Exam Writing Technique (Technique),a step-by-step jurisdiction and subject-matter neutral methodology for101 See, e.g., Riebe, supra note 34, at 302-03 ("It is recommended that [s]chools ... ensure thatstudents understand what the bar exam is ... [and] that students understand the structure of theirstates' bar exams.").102 It is important for students to appreciate that certain kinds of preparation methods (e.g.,using flash cards which strengthens one's ability to recognize the correct rule of law) may be moreuseful for the MBE but not as useful for the MPT and essay exam. The course instruction emphasizesthat their preparation must include activities that prepare them for all portions of the bar. This isimportant because generally students spend a disproportionate percentage of their preparation timepreparing for the MBE, which presents a more inviting format (multiple choice questions), and lesstime preparing for the MPT and essay exam questions which are formatted such that examinees arerequired to write their answers.103 Day, supra note 63, at 335.104 Day, supra note 63, at 337 (discussing the Multistate Essay Examination which, "[i]n additionto testing knowledge of subjects not tested on the MBE ... tests factual analysis, legal analysisand reasoning and communication skills").

YES WE CAN, PASS THE BAR. 29writing well-reasoned, well-organized, grader-friendly, responsive answers to essayexams and MPT questions administered under timed conditions. Studentspractice the Technique over the course of the semester, across a variety of testablesubject areas, in the context of in-class writing exercises, homework exercises,and a final examination. During the introductory lecture, students are shown theprimary goals of the course, which are: (1) to encourage them to use essay andMPT Bar Exam questions as diagnostic rather than prognostic tools; 2) to practiceand master utilization of the Technique under simulated exam conditions;and 3) to habituate effective practice and review activities that will foster a senseof confidence in their approach to preparing for and taking the bar exam.Course instruction provides the following: 1) numerous in-class and take-homebar essay and MPT writing exercises; 2) a technique for expressing coherent,well-reasoned, and well-organized legal and factual analysis in response to baressay and MPT questions; 3) diversified methods of feedback,105 includingPowerPoint instructional review of all in-class writing assignments 106 and weeklygraded feedback on essay and MPT writing assignments; 107 and 4) strategies fororganizing and maximizing their bar preparation efforts. The PTEX faculty iscomprised of a talented and experienced cohort of law professors and a member105 See, e.g., Day, supra note 63, at 341 ("Law schools must give students better feedback regardingtheir performance."). Various modalities of feedback are provided to students enrolled in theJYfEX course to ensure that all types of learners benefit from the class. As the Day study stresses, it isimportant to "[r]ecognize and support students who learn differently." [d. Students may be visual,aural or kinesthetic learners or a combination of these learning types. To reach all learning types,feedback in the PTEX course is delivered in the form of: PowerPoint presentation based lectures,which responds to the visual and aural learning styles; video-taped classes where aural and visuallearners can review the classes at their convenience; and the administration of practice exams in-classunder timed conditions and model answers, which corresponds to the strengths and needs of kinestheticlearners.106 Each answer is formatted to highlight identification of issues, organization of issues, andpresentation of legal and factual analysis using a grader-friendly format that responds to the gradingmethod used by most Boards of law examiners (i.e., short grading periods, practitioners, etc.). Eachanswer is also formatted to emphasize and reinforce using the JYfEX Technique so that students arereceiving consistent instruction over the course of the semester and learning to apply the Technique inthe context of a variety of testable subjects.107 See Lorenzo A. Trujillo, The Relationship Between Law School and the Bar Exam: A LookAt Assessment and Student Success, 78 U. COl.o. L. REV. 69, 76 (2007) ("State bar examiners use oneof two methodologies for grading the essay portion of the exams: holistic or analytical .... Holisticgrading consists of comparing the whole of each essay against a defined performance standard ....On the other hand, analytical grading deconstructs the analysis and assigns a point value to each issueand sub-issue."). The PTEX grading methodology employs both assessment measures and providesstudents with a numerical assessment (i.e., a holistic indicator) and narrative comments evaluating thequality of specific aspects of the answer (i.e., an analytical indicator). The PTEX Diagnostic gradingform is designed to standardize feedback and direct students to recognize the strengths and weaknessesof their written responses to essay exam questions.

30 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWof the federal judiciary.l0B Each faculty member teaches questions in the subjectarea in which he or she practices, researches, and/or teaches, so each facultymember is able to direct students in the use of the PTEX Technique to writeresponsive essay and MPT answers in their doctrinal area of expertise.2. Course Format and MaterialsThe PTEX course begins with an emphasis on essay exam writing, transitionsto a focus on the MPT, and culminates with a final exam testing both questiontypes. The class is organized based on an active learning model that is characterizedby question-taking, followed by direct and constructive feedback. 109 As anapplication-based course, students spend most of their class time taking questionsunder simulated exam conditions. I to During the review, which immediately followsthe administration of each question, students receive feedback in the formof a PowerPoint presentation of a model answer,111 learn about the aspects oftheir answer that are essential to achieving a passing score, and learn to evaluateaccurately the quality of their own answers.112 To further reinforce this instruc-108 See PTEX: Faculty who Practice and Teach, available at http://www.ptexbar.com/faculty.htm. The PTEX faculty is led by Professor and PTEX Course Director Tanya Washington. ProfessorWashington is a recently tenured Associate Professor of Law at Georgia State University College ofLaw. Her team of distinguished PTEX faculty include Professor Barbara Babb, Professor CharlesTiefer, Fourth Circuit Judge Andre M. Davis, and Professor Roger Fairfax. All PTEX faculty havesignificant experience practicing in their areas of instruction and substantial law teaching experience.109 See, e.g., Day, supra note 63, at 345 ("Exams can be deconstructed for students by workingthrough the question, exposing the relevant issues, and then demonstrating how the student shouldapply legal analysis to the problem .... If professors can teach students to deconstruct essay questionsand hone their writing skills, they immeasurably enhance students' chances of passing the exam.").110 Following the introductory lecture, seven classes are devoted to essay exam writing instructionand the administration of essay exam questions testing subjects that are tested on bar exams inmost jurisdictions: Torts; Property; Constitutional Law; Contracts; Criminal Law/Criminal Procedure;Family Law; and Civil Procedure. Three classes are devoted to Multistate Performance Test writingexercises, and one class is devoted to the administration of a final examination comprised of threeessay exam questions and one Multistate Performance Test question. The final is formatted like anactual bar examination and is administered under simulated exam conditions to afford students theactual bar exam experience.111 The administration of each in-class question is followed by a thorough review of the answerby a PTEX Instructor who presents a model answer. These answers, which are prepared and providedby the Instructors, emphasize the applicable substantive law and the most effective and time efficientway to approach, organize and write reasoned, responsive answers. Students are encouraged to askquestions as part of the review of all essay and MPT questions administered in class. Over the courseof the semester, students take thirteen in-class essay questions and two in-class MPT questions. All ofthe model answers are designed to emphasize application of the PTEX Technique and to providestudents with an example of a well-organized, grader friendly format for their essay exam and MPTanswers.112 See, e.g., Day, supra note 63, at 344 ("Law schools must produce better legal writers byimproving essay exam writing. Many professors make available to students sample exams and questions.But professors often do not explain to students how to achieve the results. Putting samples onclass websites or on reserve or handing them to students is insufficient. The learning is passive at best.

YES WE CAN, PASS THE BAR. 31tion, students are assigned weekly homework assignments, which require answeringone essay exam question or one MPT question. A self-assessment form mustbe completed and turned in with each homework assignment. 113 The self-reflectionexercise directs students to evaluate their answers in the areas of organization,issue spotting, legal knowledge, factual analysis, and effective writtenexpression. Each homework assignment is graded by a PTEX Instructor and returnedto the students with both a numerical assessment and narrative commentaryreflecting the quality of the answer.114The in-class drills and homework assignments are designed to allow studentsto master the competencies essential to effective exam writing and cement goodstudy habits that target those competencies. The self-reflection exercises assiststudents in assessing accurately the quality of their written responses and developingtheir ability to recognize and cure specific deficiencies that impair the qualityof their answers. Strengthening these skill sets benefits students during thecourse and improves the effectiveness of their bar preparation during thesummer.Because of the application-based character of the course, attendance, activeclass participation, and completion of all homework assignments are essential toensuring that students derive the maximum benefit from the class. llS The twocreditcourse is offered pass/fail, and regular attendance, completion of weeklyin-class and take-home written assignments, and successful completion of the finalexamination are requirements for course credit. 116The course materials consist of a workbook containing PTEX Attack StrategyOutlines, which are outlines that highlight distinctive features of the substantivelaw frequently tested on bar examinations. These outlines are uniquely designedto facilitate conceptual understanding of the law and issue spotting. The work-Professors must teach the student how to deconstruct the questions to determine what is asked andneeded and highlight what is good and bad about the sample writing.").113 The self-assessment form requires students to identify the strengths and weaknesses of theiranswers, explain what caused the deficient aspects of their answers (e.g., missing issues due to failureto read the facts), and state how they will address/correct these deficiencies.114 Grading of homework assignments is done according to a detailed grading rubric so thatstudents receive consistent, standardized evaluations of their essay responses. Homework assignmentsare returned to students within one week of their submission so that they can use the feedback providedto improve the quality of their exam writing on other in-class and homework writingassignments.115 See, e.g., Day, supra note 63, at 330 ("Students must regularly attend class and activelyparticipate, [and] answer the exam questions asked with cogent analysis .... ").116 See Day, supra note 63, at 350 ("Classroom learning is critical to the mastery of law andcannot be replicated by distance learning or solitary study. If schools hold to attendance requirementsand strive to make classes professionally sound, schools will likely help students to pass the bar.").Students enrolled in the PTEX course are permitted no more than two absences or two missed homeworkassignments or any combination thereof if they wish to earn course credit. There is no passingscore requirement for the final examination.

32 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWbook also contains essay questions from past Maryland bar exams and Board andStudent Representative Answers. 117 Students are provided past MPT Exams andPTEX model answers for each MPT question, which are designed to teach studentshow to effectively and efficiently approach, organize, and analyze responsiveissues, doctrines, and facts under timed conditions. All practice questions,including the final examination, are formatted like actual exam questions so thatstudents become familiar and comfortable with the look and feel of the writtenportions of the bar exam} 18Although the course is focused on exam writing techniques 119 (not memorizationof substantive law) to effectively teach and strengthen issue spotting, analysisand essay exam writing skills requires the use of a body of substantive law toserve as a context for imparting this skills set. 120 Maryland law is used in thePTEX course for that purpose. The practice questions assigned for homeworkand in-class administration are designed to test general propositions of law, however,that are frequently tested in all jurisdictions rather than the substantive lawof any particular jurisdiction.The course ends with students receiving their graded final examinations andpresentation of the PTEX Schedule for Success, a study schedule that providesstrategies for effective bar preparation during the summer. This daily calendarhelps students to organize their time and adopt a disciplined approach to preparingfor the bar exam. 121 It directs examinees to engage in specific preparation117 The Board Answers are prepared by the authors of the Maryland Bar, and the StudentRepresentative answers are answers selected by the Board written by examinees sitting for that administrationof the bar. The PTEX model answers that are presented to students in class are distinctfrom the Board and Student Representative answers. PTEX model answers are designed to teachstudents how to present the issues they have identified as responsive to the call of the question andthe relevant legal and factual analysis of those issues in an organized and grader friendly format. TheBoard and Student Representative Answers present the responsive issues and relevant law and analysis,but do not provide students with guidance as to how to organize and express their issues andanalysis, which are key exam writing skills.118 The final examination is formatted like an actual bar examination and administered undersimulated exam conditions. It is a one hour and sixty-five minute exam comprised of three essayquestions and one MPT question.119 Richard Cabrera, Working to Improve: A Plan of Action for Improving the Bar Exam PassRate, 27 WM. MITCHELL L. REV. 1169, 1186 (2000) ("Experience tells us that the reason most peoplefail is not lack of substantive knowledge, but the failure to correctly apply substance to the exam'shypotheticals. ").120 See, e.g., Riebe, supra note 34, at 294 ("One of the most significant findings in the UCLAstudy was that teaching skills combined with substantive material was more effective than teachingeither skills or substantive material alone .... [T]his makes sense; skills are more effectively learnedwhen students can immediately practice and apply those skills in connection with learning substantivematerial, and substantive material is more effectively learned when students actively process it inskills-based tasks.") (citation omitted).121 See, e.g., Riebe, supra note 34, at 308 ("Educational research demonstrates that studentswho take control of their learning and plan effectively are more successful learners than those who do

YES WE CAN, PASS THE BAR. 33activities (i.e., memorization, practice, and review), on a daily basis, that targetthe relevant skill set for improved performance on the MBE, the Essay Exam,and the MPT. 122 It eliminates the guess work that many examinees encounter asa challenge to adequate preparation, and it allows examinees to track their performancein each testable subject over an eight week period, so that they canmake informed choices about how to spend their valuable study time mosteffectively.VI. UDC-DCSL BAR DATA REVIEW 2003-2008.According to the 2008 site report by the ABA, the LSA T scores of UDC­DCSL students for the past three years are "virtually unchanged at 151 or 152with a similarly steady undergraduate GPA of 3.0 to 3.04 .... These show aconsistent pool of available applicants within the academic achievement levelsought by the school."l23 During this time, however, UDC-DCSL's Marylandfirst time bar pass rate increased from 64% to 820/0. To shed light on this increase,Dr. 1. Vincent Eagan, an economics professor, lawyer, and national expert ondisparity studies, conducted an analysis on the bar passage data, academicprofiles of the students, and participation in the bar skills class during the reviewyears in question.A. Background to the Data AnalysisThe study period for this analysis covered UDC-DCSL students who graduatedfrom 2003 through 2008. There were 324 records in the data file. Thirtythreestudents either did not take the bar exam or there is no record of themtaking the bar exam. There were 291 records with complete data for analysis. Asnoted above, the bar skills preparation workshops covered 2003 through 2006,and the PTEX practicum covered 2007 and 2008. 124 Although virtually every studentwho was listed with a grade in the PTEX course received a grade of Pass, nojudgments were made as to the quality of participation or performance in theclass. There was no other data on attendance in the class or level of commitmentby the students. 125 Finally, there were no pure control groups in this study.126not. Accordingly, students should be encouraged to take control of and plan for their bar preparationperiod and bar exam.").122 See, e.g., Riebe, supra note 34, at 311-12 ("All students should create an individualized planthat establishes a specific, day-by-day schedule before their bar review courses begin .... Students'study schedules should include time to attend bar review classes, study the substantive law, completepractice questions, and refresh .... [S]tudents should map out their study schedules in writing toprovide themselves concrete plans and to ensure those plans are realistic.").123 American Bar Association, UDC-DCSL Site Report (2008) (on file with the author).124 Over the whole study period, both classes will be referred to as "the bar review class."125 See supra text accompanying note 116 (class attendance, homework assignments, and examcompletion were requirements for passing the course).

34 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWStudents were not randomly assigned to the bar review class in order to allow acomparison of participants and non-participants. 127B. Bar Passage Rates and Law School G P AThe overall passage rate for UDC-DCSL graduates over the study period was80.1 %. Over 59.1 % of students passed on their first attempt and 18.5 percent ontheir second attempt. First, as would be expected, there were significant differencesin pass rates based on UDC-DCSL GPA. As shown in Table 1 there was adifference in bar passage rates on first attempt of 36.8% between students in theupper half of the law school GPA distribution and the bottom half of the GPAdistribution. The bottom half of the class was students with a GPA of 2.91 andbelow. There was a bar passage rate of 92.7% for first and multiple attempts forthe top half of the class and 66.4% for the bottom half of the class. This differencein bar passage rates is more pronounced when GPAs are broken out byquartile (Table 2). The bar passage rate on first attempt of the top quartile was86.80/0 and of the bottom quartile was 25.0%. Over 94.2% of students in the topquartile had passed the bar after their second attempt as compared to 46.0% ofstudents in the bottom quartile.Table 1Bar Passage Rates and Law School GP AUDC-DCSL2003-2008RankBar Pass RateFirst AttemptBottom Half 40.0%Top Half 76.8%Source: UDC-DCSLBar Pass RateMultiple Attempts26.4%15.9%126 Cf. Zeigler et aI., supra note 84. This present study is in contrast to the results of experimentaland control groups used in the New York Law School study.127 See Knaplund & Sandler, supra note 73 (discussing ethical issues with having control groupsin settings involving academic evaluation).

YES WE CAN, PASS THE BAR.35Table 2Bar Passage Rates, First Attempt and Law School GP ABy QuartileUDC·DCSL2003·2008QuartileBar Pass RateFirst AttemptBar Pass Rate SecondAttempt1 st 2.59 or less 25.0% 21.0%2nd 2.60-2.90 52.0% 24.7%3rd 2.91-3.15 67.1 % 21.0%4th 3.16 or higher 86.8% 7.4%Source: UDC-DCSLC. Bar Pass Rates and Law School GPA, 2007-08The UDC-DCSL bar passage rate after the first attempt increased significantlyfrom 2003-2006 to 2007-2008. As shown in Table 3 the bar pass rate on firstattempt in the data increased from 52.7% in 2003-2006 to 69.7% in 2007-2008, an18.00/0 increase. The bar passage rate for the bottom half of the class increased19.60/0, from 31.3% to 50.9%.Table 3Bar Passage Rates and Law School GP ABy 50 PercentileUDC·DCSL2003·06; 2007·082003·06All StudentsBar Pass Rate First Attempt 51.7%Bar Pass Rate26.7%Multiple AttemptsBottom Half of ClassBar Pass Rate First Attempt 31.3%Bar Pass Rate Multiple32.5%AttemptsSource: UDC-DCSL2007·08ImprovementImprovement inin OverallFirst AttemptPass Rate69.7% 18.0% 7.5%12.6%50.9% 19.6% 5.3%18.2%

36 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWD. Bar Review Skills Program! PTEXThe next issue, and the critical one for this article, is the impact of the barreview program on bar passage rates. Over the entire study period there was a14.7% difference between bar passage rates on the first attempts of those whoparticipated in the Bar Skills Class/PTEX practicum and those who did not participatein the bar review class (Table 4). For students in the bottom half of theclass, there was a 25.0% improvement in the bar passage rates of students whotook the Bar Skills Class/PTEX practicum versus those who did not participate inthe class.Table 4First Time Bar Passage RateBar Review Class ParticipationUDC·DCSL2003·2008Class ParticipantBar Pass RateFirst AttemptOverall 62.50/0Bottom Halfof ClassSource: UDC-DCSL46.60/0Non ParticipantBar Pass RateFirst AttemptPercentageImprovement47.8% 14.70/021.6% 25.0%The differences were less pronounced for 2007-2008. Overall the bar passagerates for students who participated in the PTEX classes were somewhat lowerthan for those students who did not participate in the class. The bar passage onfirst attempt for the bottom half of the class was larger for students taking thePTEX class, but the percentage improvement was not as significant (about 9.2%).

YES WE CAN, PASS THE BAR.37Table 5Bar Pass RateBar Review Class ParticipationUDC-DCSL2007-2008Class ParticipantBar Pass RateFirst AttemptOverall 68.8%Bottom Half of Class 52.1%Source: UDC-DCSLNon ParticipantBar Pass RateFirst Attempt73.9%42.9%PercentageImprovement-5.10/09.2%E. Statistical TestsThe next step was to test whether the differences observed in the bar skillsclass was a statistically significant factor in the increased rate of bar passage.First, we tested how the course affected the class as a whole, and top half andbottom half of the class separately, again as measured by UDC-DCSL GPA usinga chi-square (X 2 ) test. 128We can reject the null hypothesis for the whole class. The increase in bar passageoverall from taking the bar skills review class was statistically significant(X 2 =l1.02, p=0.0004).129 We can also reject the null hypotheses for the bottomhalf of the class (X 2 =7.23, p=0.0269). For the top 50 percentile we cannot rejectthe null hypothesis (X 2 =1.25, p=0.5353).The results differed for the PTEX 2007-2008 period. For the class overall wecannot reject the null hypothesis (X 2 =1.86, p=0.3906). We also cannot reject thenull hypothesis for the bottom half of the class. Because of the few number of128 See, e.g., Jellum & Reeves, supra note 15, at 674 n.168 ("[The chi-square test determines] ifa difference between the percentages of individuals in two groups responding to the same treatment issignificant at a specified probability level. That is, how likely it is that the observed response-ratedifference could be due imply to chance or due to another plausible hypothesis."). The chi-squaretests used in this paper use a 2 x 3 matrix, with first time passage, eventual passage, and no passage, ascompared to whether the bar review class was taken or not. The null hypotheses are that the PTEXcourse did not improve the bar passage rate for either the top or bottom half of the class, or the classas a whole.129 Statistical significance shows how likely a result is due to chance. It does not necessarilymean there is a strong relationship. This paper follows the convention of researchers in this area, andelsewhere, of using a 5% significance level, meaning that the results have a 5% chance of not beingtrue.

38 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWobservations the Fisher's Exact Test was used for the bottom half of the class for2007-2008,130 resulting in p=0.8627, which was not statistically significant.F. LSA T Scores and Bar Passage RatesAs noted above, UDC-DCSL set a LSAT floor on admissions of 144 in the2003 academic year. 131 There was a substantial change between the admissionsof low LSA T score students over the study period. Prior to 2007, 70.3 % of UDC­DCSL students had LSA T scores below 150. For students graduating in 2007 and2008 only 46.6% of the students had LSAT scores below 150. More significantly,5.,1 % of the students in the 2007 and 2008 graduating classes had an LSAT scorebelow 145. In contrast, 29.1 % of students who had a LSAT below 145 graduatedin the 2003-2006 period. Thus, the data does support the contention that UDC­DCSL became more selective over the study period, particularly vis-a-vis at-riskstudents. For students with LSAT scores below 150 there was a 19.0% improvementin first time bar passage for students taking the PTEX practicum (Table 6).Table 6Bar Pass RateBar Review Class ParticipationUDC·DCSL2007·2008Class ParticipantNon ParticipantPercentageImprovementBelow 150 First TimeBar PassageSource: UDC-DCSL50.0%31.0% 19.0%In this case the null hypotheses was that the PTEX class did not improve barpassage rate for the bottom LSAT group. We can reject the null hypothesis forthe bar skills essay writing class for low LSA T students in the 2003-2008 period130 See, e.g., Eric Weisstein, Fischer's Exact Test, WOLFRAM MATHWORLD, http://mathworld.wolfram.com/FishersExactTest.html (last updated Nov. 19,2010). The Freeman-Halton extensionof the Fisher Exact Probability Test was used. The Fisher Exact Test is another test used tocompare nonrandom associations of categorical variables. The test is used for small samples.131 See Gail L. Heriot & Christopher T. Wonnell, Standardized Tests Under the MagnifyingGlass: A Defense of the LSA T Against Recent Charges of Bias, 7 TEX. REV. L. & POL. 467, 475 (2003).(LSATscores are preferred over undergraduate GPAs because undergraduate GPAs are a function ofthe difficulty of undergraduate majors, institutions, and grade inflation),

YES WE CAN, PASS THE BAR. 39(X 2 =4.85, p=O.0885); thus the relationship between the PTEX class and bar passagefor low LSAT students was statistically significant. 132G. Logistic Regression133More detailed results from a logistic regression analysis are contained in theappendix to this article. This analysis covers the impact of UGP A, UDC-DCSLCumulative GPA, LSAT scores, and the PTEX essay exam writing practicum onfirst time bar passage rates for students in the bottom half of the class, again asmeasured by the UDC-DCSL Cumulative GPA. These results are largely consistentwith the previous findings. Over the whole period, UDC-DCSL GPA, LSATscores, and the bar review class/PTEX were statistically significant variables inexplaining the odds of bar passage for students with a low GPA. The relationshipbetween these variables and first time bar passage was also positive. UGPA didnot have a statistically significant impact on bar passage rates in this model. Mostsignificantly, the results show that holding UGPA, UDC-DCSL CumulativeGP A, and LSAT scores constant, the odds of a low GPA student passing the barexam on the first time was 157 % higher if they took the bar skills programIPTEXpracticum than if they did not take the class. 134We want to continue to sail!CONCLUSIONOur article has demonstrated that, over the past five years, UDC-DCSL's barpassage program and increased academic profile had a significant impact on theimproved bar passage rate. No single factor is responsible, but rather, it is a combinationof increased admissions scores, strengthening of the academic curriculum,and a full scale effort at early bar preparation.132 Cf, lellum & Reeves, supra note 15, at 675. ("[I]mposition of the floor LSA T was notresponsible for the improvement we observed; hence, we again are left with the bar support programas the explanation.").133 See, e.g., Logil Regression, UCLA Academic Technology Services, www.ats.ucla.edulstatlspss/dae/logit.htm. Logistic regression is commonly used in statistical analysis where there is a binarydependent variable. The dependent variable in this instance is first time bar passage. The dependentvariable (first time bar passage) is binary in this case because the result is either yes or no. In logisticregression the dependent variable is the natural log of the odds. Linear regression generally does notwork in this instance because of the violation of homoscedasticity when there is a binary dependentvariable. Homoscedasticity is the assumption that each probability distribution for the dependentvariable has the same standard deviation as each probability distribution for the independent variable.134 See infra App. A. In the logistic regression with multiple independent variables each estimatedcoefficient in the model is the expected change in the log odds of first time bar passage for aunit increase in the independent variable holding the other independent variables constant. Theseestimated coefficients are the numbers in the coefficient column in the appendix. These coefficientsare then transformed into odds ratios by taking exp(coefficient). in this case, exp (0.947), resulting inthe odds ratio of 2.5779. The odds ratio of 2.5579 has the interpretation given in the paragraph above.

40 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWOur data shows that the PTEX class has had a significant impact on the barpassage rate of students with lower LSA T scores. The data also shows there was aslight impact on bar passage for students taking the PTEX class in the bottomhalf of the class. These results highlight the importance and efficacy of an intensifiedfocus on skills-building. Moreover, there was an 18% increase in bar passageafter the PTEX class was implemented. Multiple-choice testing through thePMBR spring workshop has been a central component of the program in helpingstudents with MBE early preparation for the past five years. Increasing studentawareness about the bar and early preparation has also been instrumental in theprogram's success.To a large degree, the bar skills program helps fulfill the mission of UDC­DCSL. Admitting students with lower numerical academic indicators gives achance to those who would otherwise be left without the opportunity for a legaleducation. The school's mission from its Antioch Law School predecessor to thepresent has been to provide a legal education to those who are under-representedat the bar. In many, if not most, instances, these students are minority studentswho have been socially and educationally disadvantaged.Once students are admitted, there is an obligation to help them prepare forand pass the bar. As the ABA has since recognized, law school bar preparationprograms and academic support programs do help students fulfill that mandate.Increasing the bar passage probabilities of students through our bar support programis an important aspect of legal education beyond the traditional classroom.It helps students to enhance their skills and go on to become lawyers fulfillingUDC-DCLS 's mission of serving the public.

YES WE CAN, PASS THE BAR.41ApPENDIX 135Table ALogistic Regression ResultsFirst Time Bar Passage RateUDC-DCSL2003-2008VariablesUndergradGPAOddsRatio95%0.6396 0.2543LSAT Score 1.1389 1.0416Took EssayWriting Class2.5779 1.0046UDC-DCSLCumulative 12.1973 1.8122GPACONSTANT * *C.I.Coefficient1.6084 -0.4471.2452 0.13016.6147 0.94782.0984 2.5012* -25.6476Bold indicates statistically significant variablesS. E.z- p-Statistic Value0.4705 -0.9499 0.34220.0455 2.8554 0.00430.4808 1.9696 0.04890.9728 2.5711 0.01016.8815 -3.727 0.0002Convergence:ConvergedIterations: 5Final -2*Log-Likelihood: 165.3746Cases included: 144TestStatisticScore 25.9764Likelihood Ratio 28.7725D.F. P-Value4 04 0135 A logistical regression analysis underscored earlier findings of the importance of the barskills program. As of this writing it is the first study of bar passage programs to illustrate the resultsthrough a logistical regression analysis. Our study has indicated that bar preparation programs cancontribute to overall passage and contribute to the empirical research of the efficacy of suchprograms.

THE DISTRICT OF COLUMBIA v. THE 50 STATES:A 21st CENTURY LAWSUIT TO REMEDYAN 18th CENTURY INJUSTICETimothy Cooper*INTRODUcnONFor 190 years, resourceful residents of the District of Columbia ("D.C."), bothindignant because Congress and state legislatures have failed to pass the necessarylegislation to grant them equal representation in the U.S. Congress, and humiliatedby Congress' plenary authority over them, have attempted withoutsuccess to adjudicate an effective legal remedy to win equal rights under the law.Their inventive yet doomed challenges have claimed that the U.S. Constitution,which circumscribes their fundamental rights by granting representation only tothe "people of the several states," is unconstitutional, arguing, among otherthings, that the denial of equal congressional representation violates the politicalprinciple of no taxation without representation; infringes on their right to EqualProtection under the 5th and 14th Amendments; and contravenes their right to arepublican form of government under Article 4. Thus, U.S. courts have left theDistrict of Columbia without legal recourse to overturn a 210-year-old injustice,permitting a subversion of its residents' natural rights, and in the prescient wordsof Rep. John Smilie prior to the passage of the Organic Act of 1801, which servedto officially disenfranchise them, made any who lived in the District "not a citizen,but a subject."·As unsympathetic as U.S. courts have been to the District's legal challenges,the District's fortunes have faired considerably better before the world's leadinghuman rights monitoring institutions charged with monitoring u.S. compliancewith its own human rights obligations under international law. In fact, so sympathetichave these rights-monitoring institutions been that they have unanimouslydeclared the denial of voting rights to the District as an international humanrights violation, and called on the United States to remedy this abuse by adoptingsuch legislation as may be necessary to grant them equal rights under the U.S.Constitution. The fact that official U.S. policy toward the residents of its owncapital city has been found to violate internationally recognized human rightsstandards should be sufficient inducement for the national government to forcefullyact, but it hasn't, which reaffirms the widespread notion that the United* To Frank Karel and Jim Gray, who reached for the impossible, and to all the true believersyouknow exactly who you are. And for Jo, Ian, Arran, and Dylan, who contributed in ways tooinnumerable to count and too significant to summarize.1 6 ANNAl_'i OF CONGo 997 (1801). available at http://memory.loc.gov/cgi-bin/ampage?collId=lIac&fileName=01 OlllacO 1 O.db&recN um=496.

44 UNIVERSITY OF TilE DISTRICT OF COl.UMBIA LAW REVIEWStates practices a policy of "American exceptionalism" -one that allows it to existwithin and without its legal obligations under international law- free, on the onehand, to call on every other nation to comply with their own human rights obligations;while on the other hand ignoring U.S. obligations when convenient. Thisdouble standard has contributed to the U.S. Governments' international reputationfor arrogance, and has damaged its credibility as a defender of human rightsworldwide, making it that much easier for rogue nations to justify non-compliancewith international human rights standards, at the expense and suffering oftheir people.For example, the United States' effort to influence reform in the Hong Konglegislature has been retarded by its failure to remedy the non-voting status of theDistrict of Columbia, as is noted by former House of Representatives memberRep. Tom Davis (R-VA):I got it in Hong Kong with the vice-mayor [Donald Tsang] when I broughtup democracy in Hong Kong because we had been briefed on that by MartinLee [Hong Kong's leading pro-democracy leader] and the vice mayorsaid to us: "Give your nation's capital the right to vote and then come talkto us about democracy in Hong Kong.,,2The District of Columbia's lack of equal congressional voting rights has alsoenabled foreign governments to deflect criticism away from their own humanrights abuses. For example, on November 2, 2004 the Republic of Belarus introducedin the Third Committee of the 59th Session of the United Nations GeneralAssembly, a draft resolution "On the Situation of Democracy and Human Rightsin the United States of America." The Belarus Embassy press release read:The draft resolution shows that any country in the world can become anobject of legitimate concern in the sphere of human rights. The documentbrings up as matters of primary concern the numerous cases of violations ofhuman rights committed in the United States of America, namely in thesphere of electoral procedures, civil liberties, political and other rights. 3The resolution read in pertinent part:Guided by the purposes and principles of the Charter of the United Nations,the provisions of the Universal Declaration of Human Rights, the2 World Rights, http://world-rights.orglus/HK_Vice_Mayor_on_DC_Votin~RighC012505.htm(as said on WTOP Radio on January 25, 2005).3 Press Release, Embassy of the Republic of Belarus in the United States of America, Introductionby the Republic of Belarus of a Draft Resolution "Situation of Democracy and Human Rights inthe United States of America" in the Third Committee of the 59th Session of the United NationsGeneral Assembly (Nov. 4, 2004). available at http://www.belarusembassy.orglnews/digests/prl10404.htm. (Contact author for website information).

THE DISTRICf OF COLUMBIA v. THE 50 STATES45International Covenants on Human Rights and other applicable humanrights instruments ....Noting that the United States is a member of the Organization ofAmerica States (O.A.S.) and is obliged to observe the human rights standardsunder the O.A.S. Charter, and aware that O.A.S. Inter-AmericanCommission on Human Rights on December 23, 2003, decided that the denialof equal participation by the residents of Washington D.C. in their ownnational legislature by duly elected representatives constituted violations ofprovisions of the American Declaration of the Rights and Duties of Man,Noting the Needs Assessment Mission Report on the United States ofAmerica Presidential Elections of the Organization on Security and Cooperationin Europe (ODIHR.GALI74/04) .. , .Urges the Government of the United States ... [t]o bring the electoralprocess and legislative framework into line with international standards ...[and t]o take the necessary steps in accordance with its constitutional processand with the provision of the International Covenant on Civil and PoliticalRights as well as with respect to the recommendations made by theInter-American Commission on Human Rights, and grant the residents ofWashington D.C. an effective remedy, which includes adopting the legislativeor other measures necessary to guarantee to them the effective right toparticipate, directly or through freely chosen representatives and in generalconditions of equality, in their national legislature .. , ,4After succeeding in its purpose of embarrassing the United States and promptingthe U.N. to stop action on a U.S. resolution ostracizing Belarus, the draftresolution was withdrawn on November 19, 2004.Part I of this Article will define international law and its primary sources, includingcustomary international law and its development in these areas: statepractice as customary law on the right of representation for all people in thenational legislature; whether states generally and consistently follow such a practiceout of a sense of legal obligation; dissenting state views exempting them frombinding customary law; "instant" customary law and "regional" customary law;declarations and resolutions made by international organizations contributive tomaking customary law on the matter of representational rights; and decisions andfindings of international tribunals and other global bodies, including legal expertsand scholars on the question of the right to vote under international law.Part II will examine the contours of a new legal strategy that the author proposesthe D.C, Government consider implementing on behalf of the disen-4 /d.

46 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWfranchised residents of the District. This innovative legal challenge draws oncustomary international law, as more fully informed by the recent findings andrecommendations made by international panels of human rights experts on thequestion of D.C. voting rights, and the First and Ninth Amendments. In order tovindicate these rights, in the proper jurisdiction and by identifying the appropriatedefendants in a cause of action, such a complaint would be filed in an originalaction before the u.s. Supreme Court. SIt would name as defendant, not the u.s. Congress or the Commerce Secretary,but the State Legislatures, Governors, and Attorneys General of the SeveralStates, because the District's continuing lack of voting rights are fairly traceableto these would-be defendants. Moreover, they enjoy the constitutional authorityunder Article 5 to convene state conventions for the purpose of proposing a constitutionalamendment to fully remedy the anomalous disenfranchisement of approximately600,000 American citizens, who bear all of the responsibilities ofcitizenship, but do not enjoy one of the world's most fundamental rights: the rightto equal representation in the national legislature of their country through dulyelected representatives.Part III will look at the use of foreign jurisprudence and international law inu.S. Supreme Court cases and the standards for invoking it, as well as provide abrief overview of where Associate Justices stand on the application of intern a­tionallaw and foreign law in U.S. cases. The application of foreign jurisprudencein U.S. cases may signify their positions in any new legal challenge to win equalrights for the citizens of the District of Columbia in the Court.I. CUSTOMARY LAW IN THE CONTEXT OF VOTING RIGHTSIN THE DISTRICT OF COLUMBIAA. The Application of International Law in Supportof Equal D. C. Voting RightsThe American Law Institute ("ALI") defines "international law" as consisting"of rules and principles of general application dealing with the conduct of statesand of international organizations and with their relations inter se, as well as withsome of their relations with persons, whether natural or juridical.,,6 It also notesmore generally that international law is law "that applies to states and interna-5 U.S. CONST.art. III, § 2 (provides for Supreme Court original jurisdiction in controversies betweenthe Several States). See also United States v. Texas, 143 U.S. 621 (1892); California v. S. Pac.Co., 157 U.S. 229 (1895); 22 MOORE'S FEDERAL PRAcnCE §§ 400-499 (3d. ed. 2010) (suits between astate and citizens of another state are also specifically consigned to the Court's original jurisdiction).6 See RESTATEMENT (TIIIRD) OF TilE FOREIGN REI.ATIONS LAW OF TilE UNITED STATES § 101(1987).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 47tional (intergovernmental) organizations," and that is "contained in widely acceptedmultilateral agreements."?Article 38(1) of the Statute of International Court of Justice has establishedfour main "sources" of international law as auxiliary ways to discern rules of law,including "international conventions, international customs, as evidenced by ageneral practice accepted as law, general principles of law recognized by civilizednations, and judicial decisions and the teachings of the most highly qualified publicistsof the various nations. ,,8 These so-called "sources" of international law areconsidered authoritative by the ALI, and are recognized as such in itsRestatement.The Restatement also recognizes its binding nature, defining international lawas rules of law "applicable to a state or international organization that cannot bemodified unilaterally by it.,,9 Moreover, the U.S. Supreme Court, in The PaqueteHabana, recognized binding international law. to Thus, if evidence can be producedin U.S. Courts proving that the continuing denial of equal congressionalvoting rights to the District of Columbia on general terms of equality violatesinternational law, as federal common law, together with rights made available tothem under the Bill of Rights, U.S. Courts may consider themselves bound torender a declaratory judgment in favor of the District's right to elect voting representativesto Congress.Accordingly, this contribution asks whether the right to vote in the nationallegislature of one's own country through duly elected representatives is a rightsecured to the citizens of the District of Columbia under international law, and ifso, does international law compel U.S. courts to recognize that right?B. Customary International Law as General and Consistent State PracticeThe Restatement defines one source of international law as a rule of law acceptedby the community of nations in the "form of customary law." It interpretscustomary international law ("CIL") as following from "a general and consistentpractice of states drawn from a sense of legal obligation" -opinio juris sivenecessitatis .Consequently, any new legal challenge on behalf of equal D.C. voting rightsbased on customary international law will, of necessity, require that the Districtprove that there is in existence today a global state practice, both general andconsistent, and followed from a sense of legal obligation, which provides the citizensliving in the world's capital cities the right to representation in the national7 /d. emt. d.8 Acts and Documents No.6: Charter of the United Nations, the Statute and Rules of Courtand Practice Directions, available at http://www.icj-cij.orgldocuments/index.php?pl=4&p2=2&p3=0.9 RESTATEMENT (Tllllm) OF TilE FOREIGN RELATIONS LAW § 101 reporters note 1.10 The Paquete Habana, 175 U.S. 677 (1900).

48 UNIVEI~SITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWlegislature of their countries on general terms of equality, whether they live incity-states, unitary systems, or federal districts.If this practice can be demonstrated, then U.S. Courts would be faced with adynamic new question regarding the District of Columbia's alleged right to equalpolitical participation, one that would create considerable tension between internationallaw and the U.S. Constitution. In any event, such a vital question putbefore the u.s. Supreme Court during this era of increasing globalization, couldprovide the Court with the opportunity to, once and for all, resolve a 200-yearoldinjustice, could end a serious human rights blotch on America's record, andcould harmonize state practice not only in the Western Hemisphere, but acrossthe globe.C. Evidence of State Practice and opinio jurisThe Restatement notes that the "the process of determining whether a rule hasbeen accepted as international law depends on the particular source of internationallawindicated."ll Accordingly, the best evidence of general state practiceregarding the right of all citizens to enjoy equal representation is found in officialdocuments such as state constitutions and applicable statutes. While a state-bystatesurvey of the representational rights granted to capital city residents in the194 national legislatures of U.N. member states may be required to posit definitiveproof of universal state practice regarding this right, for the purposes of thiscontribution it will be assumed that the United States is unique in circumscribingthis right to the citizens of the District of Columbia.Regardless, state practice need not be universally followed to become customarylaw. According to the Restatement "[a] practice can be general even if it isnot universally followed . . . [and] there is no precise formula to indicate howwidespread a practice must be, but it should reflect wide acceptance among thestates particularly involved in the relevant activity."t2 Furthermore, while the Restatementrecognizes that customary law may fail to concretize over time if a"significant number of important states" resist adoption of a custom or practice,customary law may also be specific to and binding on those states, inter se, in aparticular region of the world, thus creating "regional" customary law. 13 Thisprinciple has been recognized by the International Court of Justice ("ICJ") inColumbia v. Peru (The Asylum Case), even though the Court did not find evidenceof customary law in that case. 14 However, the Court did define the contoursof regional customary law, concluding a state alleged to be bound by11 RESTATEMENT (TIIIRD) OF TilE FOREIGN RELATIONS LAW OF TIlE UNITED STATES § 103cmt. a (1987).12 [d. § 102 cmt. b.13 [d.14 1950 l.e.J. 266.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 49custom must have accepted it out of a sense of legal obligation opinion juris, orbarring that, acquiesced in it, "not merely for reasons of political expediency.,,15The Restatement also notes "a practice that is generally followed but whichstates feel legally free to disregard does not contribute to customary law.,,16 Becausethe right to representation in a national legislature appears to be a fundamentalright, as the following examples of regional and global state practices andopino juris suggest, this may put U.S. policy on the District of Columbia at oddswith customary international law.D. State Practice and opinio juris in the AmericasNo other constitution in the Americas that creates a federal district does sowithout representation in the national legislature. The District of Columbia is theonly capital city in the Western Hemisphere where equal voting rights for its residentsare curtailed. For example, in Brazil, the citizens of the Federal Districtelect three Senators, equal to the number of state-elected Senate representatives.17 They also elect representatives to the House of Deputies, proportional tothe Federal District's population. 18Article 45 of the Constitution of the Federative Republic of Brazil states that"[t]he Chamber of Deputies is composed of representatives of the people,elected, by the proportional system, in each state, territory and in the FederalDistrict."19 Article 46(1) further states that "[e]ach state and the Federal Districtshall elect three Senators for a term of office of eight years. ,,20In Argentina, residents of the capital city of Buenos Aires, constituting anelectoral district, elect three senators and eight deputies to the Argentine NationalCongress, equal to the citizens of the other electoral districts comprisingthe Province of Buenos Aires. 21 Section 45 of the Constitution of the ArgentineNation asserts "[t]he House of Deputies shall be composed of representativesdirectly elected by the people of the provinces, of the City of Buenos Aires, andof the Capital City.,,22 Section 54 of the constitution states "[t]he Senate shall be15 Id. at 277.16 RESTATEMENT (Tllum) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 102cmt. c (1987).17 c) The Federal Senate, http://www2.camara.gov.br/english/the-federal-senate (last visitedDec. 1, 2010).18 Establishing the Number of Deputies, http://www2.camara.gov.br/english/the-chamber-ofdeputies/establishing-the-number-of-deputies(last visited Dec. 1,2010).19 CONSTITl1lC,'AO FEDERAL [C.F.] [CONSTITUTION] art. 45 (Braz).20 Id. at art. 46(1).21 Electoral Constituency, http://eng.senado-ba.gov.ar/Map_Section.aspx (last visited Dec. 1,2010).22 Art. 45, CONSTITUCION NACIONAL [CONST. NAC.] (Arg.), available at, www.argentina.gov.ar/argentine/portalldocumentos/constitucion_ingles.pdf.

50 UNIVm~SITY OF TilE DISTRICr (W COLUMBIA LAW REVIEWcomposed of three senators from each province, and three from the City of BuenosAires, who shall be jointly and directly elected. ,,23The citizens of Mexico City elect representatives to the Chamber of Deputiesof the Congreso de la Uni6n, proportionate to the citizens of each state and territory,and in the Chamber of Senators, Federal District residents vote for twosenators, equal to the same number of senators representing each state. 24 Article51 of the 1917 Constitution of Mexico stipulates "[t]he Chamber of Deputies iscomposed of representatives of the Nation, all elected every three years by theMexican citizens.,,25 Article 52 declares "[o]ne proprietary deputy shall beelected . . . according to the general census of the Federal District and of eachState and Territory.,,26 Article 56 states that "[t]he Chamber of Senators shall becomposed of two members for each State and two for the Federal District, alldirectly elected every six years. ,,27In Venezuela, the population of the Capital District of Caracas elects its owndeputies to the 167-member, Unicameral Asamblea Nacional, on the basis of proportionalrepresentation equal to each of the other federal entities. 28 Article 186of the Constitution of the Bolivarian Republic of Venezuela says "[t]he NationalAssembly shall consist of Deputies elected in each of the federal entities by universal,direct, personalized and secret ballot with proportional representation.,,29In Haiti, the residents of Port-au-Prince are guaranteed the right to vote forand be represented by members of the House of Deputies and Senate in thecountry's parliament. 3o Article 89 of the Constitution of 1987 of Haiti states that"[t]he House of Deputies is a body composed of members elected by direct suffrageby the citizens .... " Article 94 states "[t]he Senate is a body composed ofmembers elected by direct suffrage of the citizens. ,,31In Guyana, the residents of Georgetown enjoy the right to participate in thefifty-three-member National Assembly.32 Article 59 of the Constitution of theCo-operative Republic of Guyana states that, "every person may vote at an elec-23 Id. at art. 54.24 Constitucion Politica de los Estados Unidos Mexicanos [C.P.], as amended, Diario Oficial dela Federacion [DO], 5 de Febrero de 1917 (Mex.), available at http://www.ilstu.edu/class/hist263/docs/1917const.html#Sectionl. (Contact author for website information).25 Id at art. 51.26 Id at art. 52.27 Id. at art. 56.28 Constitution of the Bolivarian Republic of Venezuela, available at http://www.analitica.com/bitbliotecalvenezuelalconstitucion_ingles.pdf (last visited July 26, 2010).29 Id at art. 186.30 Constitution of 1987: The Republic of Haiti, http://www.constitution.orglcons/haiti.htm (lastvisited July 26,2010).31 Id. at art. 94.32 Constitution of the Co-Operative Republic of Guyana, http://www.constitution.orglcons/guyana.htm (last visited July 26, 2010).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 51tion if he is of the age of eighteen years or upwards and is either a citizen ofGuyana or a Commonwealth citizen domiciled and resident in Guyana.,,33In Cuba, the residents of Havana have the right to voting representation in theNational Assembly of People's Power. 34 Article 71 of the Constitution of theRepublic of Cuba provides that "[t]he National Assembly of People's Power iscomprised of deputies elected by free, direct and secret vote, in the proportionand according to the procedure established by law.,,35In Canada, residents living in the capital city of Ottawa in the province ofOntario possess the right to vote for members of Parliament of Canada in theHouse of Commons on a basis equal to those citizens living in the other provinces.Article 3 of the Consolidation of Constitution Acts of Canada and the CanadianCharter of Rights and Freedoms states "[ e ]very citizen of Canada has theright to vote in an election of members of the House of Commons or of a legislativeassembly and to be qualified for membership therein.,,36Such examples of state practice and opinio juris in the Western Hemisphereregarding the right to representation in the national legislature are highly suggestiveof the existence of, at the very least, a "regional" customary law, bindingamong the states, inter se, supported if not in fact, then by America'sacquiescence.E. State Practice and opinio juris in EuropeIn Belgium, the citizens of the federal district of Brussels are provided representationalrights in the Belgian Federal Parliament. Article 61 of the Constitutionof Belgium provides that "[ t ]he members of the Chamber of Representativesare elected directly by citizens who have completed the age of eighteen and whodo not fall within the categories of exclusion stipUlated by law. Each elector hasthe right to only one vote.,,37 Article 64 stipulates that "[t]o be eligible, one must:1, be Belgian; 2, enjoy civil and political rights; 3, have completed the age oftwenty-one; 4, be legally resident in Belgium. No other condition of eligibility canbe required.,,38 Regarding Senate representation, Article 67(1)(2) states "theSenate is made up of seventy-one senators, of whom: at least one of the senators... [from the Dutch electoral college, the Council of the Flemish Community, orappointed by the senators] is to be legally resident, on the day of his election, in33 Id. at art. 59.34 The Constitution of the Republic of Cuba, http://www.cubanet.org/ref/dis/consC92_e.htm(last visited July 26, 2010).35 Id. at art. 71.36 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB to the Canada Act, 1982, c. 11 (U.K.).37 1994 CONST. art. 61 (Belg.)., http://www.fed-parl.be/gwukOO04.htm#E11E4 (last visited July26,2010).38 Id. at art. 65.

52 UNIVERSITY OF THE DISTIUCr OF COLUMBIA LAW REVIEWthe bilingual region of Brussels-Capital" and at least six senators from the Frenchelectoral college, Council of the French Community, or appointed by the senators"are to be legally resident, on the day of their election, in the bilingual region ofBrussels-Capital. ,,39In Germany, citizens residing in the city-state of Berlin are also afforded fullvoting rights in the Bundestag. Article 38(1)(2)(3) of the Basic Law for the FederalRepublic of Germany stipulates "[m]embers of the German Bundestag shallbe elected in general, direct, free, equal, and secret elections .... Any personwho has attained the age of eighteen shall be entitled to vote; any person who hasattained the age of majority may be elected. Details shall be regulated by a federallaw.,,40In Austria, the capital city residents of Vienna are also guaranteed such rightsin the Osterreichisches Parliament. Article 26(1) of the Austria Constitution setsout "[ t ]he House of Representatives is elected by the nation in accordance withthe principles of proportional representation on the basis of equal, direct, secret,and personal suffrage for men and women who have completed their nineteenthyear of life on a day appointed prior to the election.,,41 Article 34(1)(2) specifies"the States are represented in the Senate in proportion to the number of nationalsin each of them .... However, every State is entitled to a representation of atleast three members.,,42In England, the population of London, which is part of a unitary system, isentitled to enjoy parliamentary voting rights and representation in the House ofCommons of the Parliament of the United Kingdom of Great Britain and NorthernIreland. Statutory Instruments 2007, No. 1681, Representation of the People,England Redistribution of Seats, the Parliamentary Constituencies (England) Order2007 prescribes in Section 2(1)(a) that "England shall be divided into theparliamentary constituencies ... which are named in ... the Table in the Scheduleto this Order .... [the] Name, Designation and Composition of Constituenciesin England . . . [of] Greater London," including 73 Greater Londonconstituencies (voting districts). ,,43In Sweden, the citizens of the capital of Stockholm, also a unitary system, havethe right to representation in the Riksdag, the National Diet of Sweden. Under39 [d. at art. 67.40 GRUNDGESETZ FOR DIE BUNI)ESIU'UBLIK DEUTSCHLAND [GRUNDGESETL:] [GG] [BasicLaw], May 23, 1949, BGBI. I (Ger.).41 BlJNDES-VEI~FASSlJNGSGESETZ [B-VG] [Constitution] BGBI No. 111930, as last amended byBundesverfassungsgesetz [BVG] BGBII No. 100/2003, art. 26, 'II 1 (Austria), available at http://www.servat.unibe.chlicUauOOOOO.html. (Contact author for website information).42 [d. at art. 34, en 1 (2).43 The Parliamentary Constituencies Order No. 1681,2007, § 2(1), available at http://www.opsi.gov.uk/si/si2oo7/uksi_2007168Cen_l, (Eng.) (Contact author for details on access procedure). Seealso Greater London Authority, 5, www.parliament.uk/commons/lib/research/notes/snpc-02208.pdf(last visited July 26, 2010). (Contact author for website information).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 53Chapter 3, the Riksdag, of the Constitution of Sweden, Instrument of Government,Chapter 3, Article 2 affirms "[e]very Swedish citizen who is currently domiciledwithin the Realm or who has ever been domiciled within the Realm isentitled to vote in a Riksdag election.,,44No state in the 27 member European Union restricts the right of any citizendomiciled in the capital city to vote in the national legislature by virtue of theirresidency. Thus, all European states, in addition to all states in the Americas(except for the United States), incorporate, either in constitutional or statutorylaw, the right of capital citizens to vote in national decision-making bodies as amatter of law, and not "as a matter of courtesy or habit.,,45 This survey clearlybuttresses the case for the right of representation having emerged as a rule ofcustomary law. This same state practice and opinio juris is revealed also in a briefoverview of Central Asia states.F. State Practice and opinio juris in Central AsiaIn Latvia, citizens of Riga are endowed with full representative voting rights inthe 100 member Saeima,46 its Unicameral Parliament. Article 8 of the Constitutionof the Republic of Latvia affirms that all citizens are entitled to vote in thenational assembly, noting "[a]ll citizens of Latvia who enjoy full rights of citizenshipand, who on election day have attained eighteen years of age, shall be entitledto vote;" under Article 9, and "[a]ny citizen of Latvia, who enjoys full rightsof citizenship and, who is more than twenty-one years of age on the first day ofelections may be elected to [the parliament]. ,,47In Russia, the citizens of Moscow are provided with equal voting rights in theFederal Assembly, electing two delegates to the Federation Council of Russia-comparable to other "federal subjects" of Russia- and deputies to the StateDuma. 48 Article 95(2) of the Constitution of the Russian Federation provides theresidents of Moscow the right to representation in the Council of the Federation,which "includes two representatives from each subject of the Russian Federation:one from the legislative and one from the executive body of state authority.,,49Article 97(1) grants "[a] citizen of the Russian Federation over 21 years of age44 Regeringsformen [RF] [Constitution] 3:2 (Swed.), available at http://www.riksdagen.se/templates/R_PageExtended_6320.aspx(last visited Dec. 1,2010).45 RESTATEMENT (Tllm.D) OF TilE FOREIGN REI.ATIONS LAW OF TilE UNITED STATES § 102emt. e (1987).46 Constitution of the Republic of Latvia, http://www.saeima.lv/LapasEnglish/Constitution_Visa.htm (last visited July 29, 2010). (Contact author for website information).47 [d. at art. 8, 9.48 KONSTITUTSIIA ROSSIISKOI FEllERATSII [Konst. RF] [Constitution], available at http://www.eonstitution.ru/en/10003000-06.htm.49 [d. at art. 95(2).

54 UNIVERSITY OF TilE DISTRICI' OF COLUMBIA LAW REVIEWand with the right to participate in elections may be elected deputy of the StateDuma.,,5oIn the Ukrainian National Republic, the citizens of Kiev may elect representativesto the unicameral parliament of Ukraine-the Verkhovna Rada. 51 Article76 of the Constitution of Ukraine provides "[a] citizen of Ukraine who has attainedthe age of twenty-one on the day of elections, has the right to vote, and hasresided on the territory of Ukraine for the past five years, may be a NationalDeputy of Ukraine. ,,52In India, the National Capital Territory of Delhi, one of seven Union territoriesand twenty-eight states entitled to parliamentary representation, elects representativesto both the Council of States and the House of the People. 53 Article 80of the Constitution of India states the Parliament of the Union, consisting of theCouncil of States and the House of the People, is composed of "not more thantwo hundred and thirty-eight representatives of the States [and of the Union territories,]"inclusive of citizens of the National Capital Territory of Delhi.54 Article81(b) stipulates "the House of the People shall consist of ... not more than[twenty members] to represent the Union territories, chosen in such manner asParliament may by law provide. ,,55In Pakistan, the people of the Federal City of Islamabad may elect representativesto the Majlis-e-Shoora, the national unicameral parliament, on an equal basisto the people of the provinces and the Federally Administered Tribal Areas. 56Article 51(1)(a) of the Constitution of Pakistan states that "[t]here shall be threehundred and forty-two seats of the members in the National Assembly .... Theseats in the National Assembly ... are allocated to each Province, the FederallyAdministered Tribal Areas and the Federal Capital," thus providing citizens ofthe Federal City of Islamabad representatives in the Majlis-e-Shoora. 57G. State Practice and opinio juris in AfricaIn Morocco, the voters of Rabat may elect members to the Assembly of Representativesof Morocco directly, and to the House of Councillors indirectlythrough an electoral college system composed of local authorities, professional50 Id. at art. 97(1).51 Constitution of Ukraine, http://www.rada.gov.ualconstlconengl.htm#r7 (last visited July 29,2010).52 Id. at art. 76.53 INDIA CONST., amended by the Constitution (Eighteenth Amendment) Act, 2000, availableat http://indiacode.nic.in/coiweb/we1come.html54 Id. at art. 80.55 Id. at art. 81 (b).56 PAKISTAN CONST., available at http://www.pakistani.orglpakistan/constitution/.57 [d. at art. 51(1)(a).

THE DISTRICT OF COLUMBIA v. THE 50 STATES 55chambers and, at the national level, employee representatives. 58 Article 37 of theConstitution of Morocco affords the capital residents of Rabat the right to votedirectly for members of the House of the Assembly of Representatives, the lawproviding they "shall be elected for a six-year term by direct universal suffrage."s9Under Article 38, they may also be elected to the House of Councillorsthrough an electoral college system, composed of local authorities, professionalchambers and, at the national level, employee representatives. 6oIn Nigeria, Abuja residents in the Federal Capital Territory elect representativesto the Nigerian National Assembly, one to the Senate and two to the Houseof Representatives. 61 Article 48 of the Constitution of the Republic of Nigeriastates that residents of the Federal Capital Territory of Abuja may elect one senatorto the Nigerian National Assembly and two to the House of Representatives,as "[t]he Senate shall consist of three Senators from each State and one from theFederal Capital Territory, Abuja.,,62 Article 49 stipulates "the House of Representativesshall consist of three hundred and sixty members representing constituenciesof nearly equal popUlation as far as possible, provided that no constituencyshall fall within more than one State. ,,63In Senegal, voters in Dakar may elect deputies to the ISO-member NationalAssembly by direct and universal ballot, and indirectly to the IOO-member Senate.64 Article 3 of the Constitution of the Republic of Senegal states "[n]ationalSovereignty shall belong to the Senegalese people who shall exercise it throughtheir representatives or by way of referendum ... , [s ]uffrage may be direct orindirect ... , [i]t shall always be universal, equal and secret ... [and all] Senegalesenationals ... shall be eligible to vote.,,65In South Africa, citizens of the three capital cities, Cape Town (legislative),Bloemfontein Gudicial}, and Pretoria (administrative), vote for representativeson a national basis in the National Assembly, the lower house of the Parliamentof South Africa, and vote for representatives on a provincial basis in the NationalCouncil of Provinces, with each capital city voting for their individual provincialdelegations. 66 Article 47 of the Constitution of South Africa provides citizensresiding in the three capital cities, Cape Town, Bloemfontein, and Pretoria, withvoting representatives in the National Assembly on a national basis, stipulating58 Constitution of Morocco, http://www.al-bab.comlmaroclgov/con96.htm (1996) (last visitedJuly 29, 2010).59 [d. at art. 37.60 [d. at art. 38.61 CONSTITUTION OF NIGERIA, (1999), http://www.nigeria-law.orglConstitutionOfTheFederalRepublicOfNigeria.htm(last visited July 29, 2010).62 [d. at art. 48.63 [d. at art. 49.64 Constitution of the Republic of Senegal.65 [d. at art. 3.66 S. AFR. CONST. 1996, available at www.info.gov.za/documentslconstitution/index.htm.

56 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEW"[ e ]very citizen who is qualified to vote for the National Assembly is eligible tobe a member of the Assembly.,,67 Article 60 states "[t]he National Council ofProvinces is composed of a single delegation from each province consisting of tendelegates" thus ensuring provincial representation. 68Exemplifications in Africa also appear to confirm that each state's practiceenshrines the right of national representation for the citizenry of capital cities,consistent with state practice in the Americas, Europe, and Central Asia.H. State Practice and opinio juris in AsiaIn the Republic of Korea, no limitations are placed on the right of citizens inthe capital of Seoul to elect single-member constituencies to the 299-member NationalAssembly of South Korea. 69 Article 24 of the Constitution of the Republicof Korea guarantees "[a]ll citizens have the right to vote under the conditionsprescribed by law.,,7o Article 41(1)(3) declares "[t]he National Assembly is composedof members elected by universal, equal, direct, and secret ballot by thecitizens .... [t]he constituencies of members of the National Assembly, proportionalrepresentation, and other matters pertaining to National Assembly electionsare determined by law.1 1In Malaysia, citizens of the Federal Territory of Kuala Lumpur are representedin the National Parliament. In particular they are appointed two representativesin the Senate, equal in number to the thirteen states, and may elect to the 180-member House of Representatives seven members. 72 Article 45 of the Constitutionof Malaysia provides "the Senate shall consist of elected and appointedmembers as follows ... two members for each State shall be elected in accordancewith the Seventh Schedule; and two members for the Federal Territory ofKuala Lumpur.,,73 Article 46 states "[t]he House of Representatives shall consistof one hundred and eighty elected members .... [t]here shall be ... one hundredand seventy-two members from the States in Malaysia as follows ... seven membersfrom the Federal Territory of Kuala Lumpur.,,74In Japan, the residents of Tokyo may vote for representatives in a parallelvoting system in the bicameral legislature of the National Diet of Japan, both inthe House of Representatives, with single-member constituency and proportional67 [d. at art. 47.68 [d. at art. 60.69 Constitution of the Republic of Korea, http://korea.assembly.go.kr/res/low_OCread.jsp (lastvisited August 23, 2010). (Contact author for details on access procedure).70 [d. at art. 24.71 [d. at art. 41 (1 )(3).72 Federal Constitution of Malaysia, confinder.richmond.eduladmin/docs/malaysia.pdf (last visitedAugust 23, 2010).73 [d. at art. 45.74 [d. at art. 46.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 57representation systems, and in the House of Councillors, with local constituencysystem and proportional representation systems. 75 Article 42 of the Constitutionof Japan specifies "[t]he Diet shall consist of two Houses, namely the House ofRepresentatives and the House of Councillors.,,76 Article 43(1)(2) says "[b]othHouses shall consist of elected members, representative of all the people ....[t]he number of the members of each House shall be fixed by law."77In Indonesia, the voters of the Jakarta Special Capital Region, one of 33 provinces,elect representatives to the 550-member People's Representatives Councils(Dewan Perwakilan Rakyat: "DPR"), and to the Regional RepresentativesCouncil (Dewan Perwakilan Daerah: "DPD")?S Article 2 of the 1945 Constitutionof the Republic of Indonesia provides the Jakarta Special Capital Regionrepresentation in the House of Representatives, stipulating "[t]he People's ConsultativeAssembly shall consist of members of the [DPR] augmented by delegatesfrom regional territories and functional groups, in accordance withstatutory regulations. ,,79 Article 27(1) states "[a]ll citizens, without exception,shall be equal before the law and in government."soIn Singapore, all citizens have the right to elect representatives to the 94-MP,unicameral Singapore Parliament, as single member or Group RepresentationConstituencies ("GRC'S,,).Sl Article 39(1) of the Constitution of the Republic ofSingapore declares "[p]arliament shall consist of (a) such number of electedMembers as is required to be returned at a general election by the constituenciesprescribed by or under any law made by the Legislature."s2 Article 44(1)(2) mandatesthat "[m]embers of Parliament shall be persons qualified for election ....[and a] person shall be qualified to be elected or appointed as a Member of Parliamentif ... he is a citizen of Singapore. "S3I. State Practice and opinio juris in OceaniaIn Australia, residents of Canberra, also known as the Australian Capital Territory("ACf"), enjoy the right to elect representatives to the Senate and to the75 NIIIONKOKU KENI>O [KENPO ] [CONSTITUTION], available at http://history.hanover.edu/textsl1947con.html.76 ld. at art. 42.77 ld. at art. 43(1 )(2).78 The Constitution of the Republic of Indonesia, http://www.indonesia-ottawa.orglindonesia/constitution/fourth_amendmencconst.pdf (last visited August 23, 2010).79 ld. at art. 2.80 ld. at art. 27(1).81 Parliament of Singapore, http://www.parliament.gov.sglAboutUs/Org-MP.htm (last visitedDec. 1, 2010).82 Constitution of the Republic of Singapore, http://www.servat.unibe.ch/ici/snOOOOO_html (lastvisited Aug. 23, 2010). (Contact author for website information).83 ld. at art. 44(1 )(2).

58 UNIVEI~SITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWHouse of Representatives. 84 Section 3(2) of the Senate (Representation of Territories)Act 1973 states and "[t]he Territories to which this Act applies are the AustralianCapital Territory and the Northern Territory of Australia.,,85 Section 4provides "[ e ]ach Territory shall be represented in the Senate by two Senators forthe Territory directly chosen by the people of the Territory.,,86 Section 4 of theAustralian Capital Territory Representation (House of Representatives) Act1974 prescribes "[fJor the purposes of the Australian Capital Territory Representation(House of Representatives) Act 1974, the areas having the boundaries described... shall be the two Electoral Divisions of the Territory.,,87In New Zealand, Wellington citizens elect a representative in the 122-memberHouse of Representatives, participating in a Mixed Member Proportional (MMP)electoral system, which provides for proportional representation. 88 Section 27 ofthe Electoral Act 1993 No 87 [of New Zealand] states that "[t]he House of Representativesshall have as its members those persons who are elected from time totime in accordance with the provisions of the Electoral Act 1956 or this Act, andwho shall be known as members of Parliament.,,89 Section 47(1) states "everyperson who is registered as an elector of an electoral district ... is qualified to bea candidate and to be elected a member of Parliament, whether for that electoraldistrict, any other electoral district. ,,90In the Republic of Kiribati, the citizens of South Tarawa, the island nation'scapital and one of 23 electoral districts, have the right to elect representatives tothe unicameral House of Assembly, the Maneaba ni Maungatabu, as prescribed84 http://www.aph.gov.au/house/memberslmi-state-asp. (Contact author for website information);see also Australian Bureau of Statistics, http://www.abs.gov.aulausstats/abs@.nsf/productsbytopic/8CA5022B2135FI62CA256CDOOO7BEE22?OpenDocument, (last visited Dec. 1,2010) (The disproportionatenumber of representatives allotted among the states, Tasmania, ACf and NorthernTerritory calls into question the fairness of the distribution of voting rights. While the residents of thestates of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australiaelect 12 Senators, as well as representatives to the House of Representatives, based on popUlation, theresidents of the ACf and the Northern Territory elect only two Senators and two representatives tothe House. At first blush this may appear reasonable in light of the fact that the population of NewSouth Wales is 6.9 million, Victoria, 5.2 million, and Queensland, 4.2 million, and the population ofthe ACf is only 340,000, and the Northern Territory a scant 217,000. Yet Tasmania, with a populationof 495,000, also elects 12 senators and five representatives to the House).85 Senate (Representation of Territories) 1973 Act, http://www.foundingdocs.gov.au/scan.asp?sID=1070 (last visited Aug. 23, 2010).86 Id. at sec. 4.87 Australian Capital TerritoryRepresentation (House of Representatives), http://www.foundingdocs.gov.au/scan.asp?sID=1075(last visited Aug. 23, 2010).88 New Zealand Parliament, http://www.parliament.nzlen-NZlMPP/MPs/MPs/Default.htm (lastvisited Dec. 1, 2010). (Contact author for details on access procedure).89 Electoral Act 1993, http://www.legislation.govt.nzlactlpublicI1993/0087 14.0/whole.html#DLM308518 (last visited Aug. 23, 2010).90 Id. at sec. 47(1).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 59in the Elections Ordinance 1977. 91 Article 52 of the Constitution of Kiribatistates "[t]here shall be a legislature for Kiribati which shall be known as theManeaba ni Maungatabu and shall consist of a single chamber."92 Article 55 setsout that "a person shall be qualified to be elected as an elected member of theManeaba ni Maungatabu if ... he is a citizen of Kiribati ... [and] attained the ageof 21 years. ,,93In Tuvala, the citizens of the capital city, Funafuti, elect two representatives inthe 12-member Parliament. 94 Article 81(1) of the Constitution of Tuvalu providesthat "[p]arliament shall consist of such number of members as is fixed by orunder an Act of Parliament .... ,,95 According to Electoral Provisions (Parliament)(Amendment No.2) Act 1997, Section 15 "[r]egistered electors may vote incontested elections in any electoral district for the electoral districts they areregistered. ,,96Thus, the right to representation appears to be a fundamental human right andis consistently practiced in states by legal obligation; from the island nation ofTuvalu, with a population of 12,000,97 to the Russian Federation, with a populationof 140,000,000;98 from predominantly Muslim states to predominantly Catholicstates; from Southeast Asia to North Africa; everywhere but in the District ofColumbia of the United States of America.While a state-by-state survey is required to analyze in greater depth the votingrights practices of all 193 U.N. members, it appears unlikely that a dissimilar patternof practice and opinio juris will emerge. There exists a de facto case based onpreliminary evidence that the curtailment of voting rights in the District of Columbiamay be a violation of customary international law.J. Duration of Practice Prior to Becoming Customary LawIt is generally accepted that state practice exercised over even a comparativelybrief period of time may create customary law, so long as the practice is "generaland consistent," and reflects a broad international consensus. While no precise91 Constitution of Kiribati, http://www.paclii.orglki/legis/consol_actlcok257/ (last visited Aug.23, 2010).92 /d. at art. 52.93 Id. at art. 55.94 Constitution of Tuvalu, http://www.tuvaluislands.com/consLtuvalu.htm (last visited Aug. 23,2010); see also Comparative Data, http://aceproject.orglepic-en/CDCountry?country=TV (last visitedDec. 1,2010).95 Id. at art. 81 (1).96 Electoral Provisions (Parliament) (Amendment No, 2) Act 1997 (Act 10 of 1997), availableat www.paclii.orgltv/legis/num_actlepn2a1997455.rtf97 CIA - The World Factbook, httPS:llwww.cia.gOV/librarY/PUblicationSlthe-world-factboOk/geOs/tv.html(last visited Dec. 1,2010). (Contact author for details on access procedure).98 CIA - The World Factbook, https:llwww.cia.gov/library/publications/the-world-factbooklgeos/rs.html (last visited Dec. 1,2010). (Contact author for details on access procedure).

60 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWscience exists permitting an empirical analysis of what does and does not constitutecustomary law, and a final determination is more legal art than incisive ratiocination,a consensus has emerged that the time necessary for state practice tobecome customary law has notably and unalterably changed in the post WorldWar II era.The necessity that state practice take place over an extended period of timebefore being recognized as opinion juris has given way to a more expeditiousapproach, resulting from the swiftness and ease of modern communications, andthe almost instant globalization of contemporary practices. The I.C.1. establishedthe principle of expeditious customary law in the North Sea Continental ShelfCases, finding that "the passage of only a short period of time is not necessarily,or of itself, a bar to the formation of a new rule of customary internationallaw.,,99 United States v. Maine 100 has also acknowledged this principle in a casethat addressed the doctrine of continental shelf, and is often cited as a model ofthe acceptance of "instant customary law"lOl in U.S. jurisprudence. The Restatementnotes that "[t]he doctrine of the continental shelf became accepted as customarylaw on the basis of assertions of exclusive jurisdiction by coastal statesand general acquiescence by other states.,,102 In light of these two cases, it appearsthat the pre-World War II era timetable for the development of a rule ofinternational customary law, has been replaced. The evolution of customary lawis on a fast track. It would appear now that a mere decade suffices to give rise tocustomary law.Such a principle supports the assertion that the right to representation hasbecome a rule of customary law in the form of "expeditious law," at the very leastregarding state practice in the Western Hemisphere, if not global practice. Thisnotwithstanding the fact that the citizens of the Federal District of Brasilia weregranted the right to elect three Senators to the Federal Senate, and equal to theBrazilian states -together with a proportionate number of rep'resentatives to theChamber of Deputies- only since 1986. A quarter century of general and cons is-99 See Continental Shelf, 1969 I.C.J. 44, 72 ("The dispute, which was submitted to the Court on20 February1967, related to the delimitation of the continental shelf between the Federal Republic ofGermany and Denmark on the one hand, and between the Federal Republic of Germany and theNetherlands on the other.").100 United States v. Maine, 420 U.S. 515 (1975).101 See Continental Shelf, 1969 I.C.J. 44, 72 ("The Truman Proclamation of 1945 was not challengedby governments and was followed by similar claims by other states. The International LawCommission, engaged in codifying and developing the law or the sea during the years 1950-56,avoided a clear position as to whether the continental shelf provisions in its draft convention werecodifying customary law or proposing a new development. The provisions were included in the 1958Convention on the Continental Shelf. It was soon assumed that the doctrine they reflected was part ofinternational law even for states that did not adhere to the Convention.").102 RESTATEMENT (THIRD) OF TilE FOREIGN REI.ATIONS LAW 01' TilE UNITED STATES § 102reporters notes 2 (1987).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 61tent state practice in the region suffices even under the narrowest definition of"instant" customary law to create such a right for the people of the whole region.K. State Dissent and Customary LawWhile it is generally recognized that when a state dissents from engaging in aparticular state practice during a period when it is developing into a rule of internationallaw it is not bound by it, even after that practice is recognized as customarylaw by the community of nations, such dissent on principle by demurringstates has been infrequent. In any event, the United States has never lodged anysuch dissent regarding the state practice of full and equal congressional votingrights for the District of Columbia. In fact, the United States has done theopposite.Acknowledging the gross unfairness of the long-standing constitutional prohibitionon full and equal congressional voting rights for the District of Columbia,the U.S. Congress, supported by then-President Jimmy Carter, passed a constitutionalamendment designed to secure those rights in 1978, and which would haveguaranteed, if passed, that right to the nation's capital. 103Only the reluctance of 22 state legislatures to ratify the amendment doomed itto failure. However, the United States, far from dissenting to a regional, if notworldwide state practice, demonstrated its explicit support for it. Furthermore,historically the United States has been a prime mover on the world stage in effortsto secure fundamental human rights for all people. Eleanor Roosevelt was aleading architect of the U.N. Universal Declaration of Human Rights("UDHR"), and a representative of the United States in that forum. Article 21 ofthe UDHR provides for the right of everyone "to take part in the government ofhis country, directly or through freely chosen representatives."t04 The UnitedStates has never dissented on the substance and content of that declaration ofprinciple. At the very least, the United States has demonstrated its acquiescencein the state practice of granting all citizens the right to representation in the nationallegislative body, at the regional, if not global, level. 105L. Ancillary Evidences of State PracticesThe Restatement recognizes multiple sources for proving that a rule of law hasdeveloped, including, among others, "judgments and opinions of international judicialand arbitral tribunals ... judgments and opinions of national judicial tribu-103 US Senator Paul Strauss, http://paulstrauss.orglvoting-rights (last visited Dec. 1,2010).104 Universal Declaration of Human Rights, G.A. Res. 217 A, U.N. GAOR, 3d Sess., 1st plen.mtg., U.N. Doc. Al810 (Dec. 12, 1948) [hereinafter UDHR].105 RESTATEMENT (TIIIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNHED STATES § 102cmt. d (1987) ("[C]ustomary law may be built by the acquiescence as well as by the actions of states[cmt. b] and become generally binding on all states .... ").

62 UNIVERSITY OF TilE DISTRICT OF COI.UMBlA LAW REVIEWnals ... [and] the writings of scholar." 106 It further identifies as secondary sourcesinternational agreements as contributive to customary law, inclusive of bindingresolutions and declaratory resolutions of international organizations, also commentingthatThe contributions of such resolutions and of the statements and votes supportingthem to the lawmaking process will differ widely, depending on factorssuch as the subject of the resolution, whether it purports to reflect legalprinciples, how large a majority it commands and how numerous and importantare the dissenting states, whether it is widely supported (includingin particular the states principally affected), and whether it is later confirmedby other practice. 107The Restatement also observes that legally binding multilateral internationalagreements, "open to all states," may contribute to the maturation of customarylaw and that "[i]nternational agreements constitute practice of states and as suchcan contribute to the growth of customary law.,,108 Moreover, "[a] wide networkof similar bilateral arrangements on a subject may constitute practice and alsoresult in customary law.,,109 Multilateral agreements are commonly utilized in thearea of human rights, serving also as a basis for legislation and contributing tocustomary law. Most importantly, the Restatement emphasizes, "[a] determinationas to whether a customary rule has developed is likely to be influenced byassessment as to whether the rule will contribute to international order.,,110As set forth in The Restatement:[A]rticle 38(1)(d) of the Statute of the International Court of Justice ...does not include resolutions of international organizations among the 'subsidiarymeans for the determination of rules of law.' However, the Statutewas drafted before the growth and proliferation of international organizationsfollowing the Second World War. Given the universal character ofmany of those organizations and the forum they provide for the expressionby states of their views regarding legal principles, such resolutions sometimesprovide important evidence of law. I IIFinally, in his book Principles of Public International Law, Ian Brownlie identifies"[ t ]he opinions of official legal advisers ... state legislation, internationaland national judicial decisions, recitals in treaties and other international instruments,a pattern of treaties in the same form, the practice of international organs,106 Id. § 103(2).107 Id. § 102 reporters notes 2.108 Id. § 102 emt. i. See also, Continental Shelf, 1969 I.C.J. 44109 RESTATEMENT (TulIm) OF TilE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102emt. i (1987).110 Id. § 103 emt. a.111 Id. § 103 reporters notes 2.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 63and resolutions relating to legal questions in the United Nations General Assembly,"as evidentiary sources.1I2 Several such sources follow.M. Declaratory Resolutions of International Organizations1. The Universal Declaration of Human RightsArticle 21 of the Universal Declaration of Human Rights ("UDHR") incorporatesthe positive right of all citizens of all countries "to take part in the governmentof his country, directly or through freely chosen representatives."t13Reinforcing this right to representative equality, Article 1 asserts "[a]ll humanbeings are born free and equal in dignity and rights.,,114 Moreover, Article 2 stipulatesthat "[ e ]veryone is entitled to all the rights and freedoms set forth in thisDeclaration, without distinction of any kind, such as ... political or other opinion... or other status," such as the fact that the District of Columbia is a federalenclave, and its residents vote consistently in the majority for presidential andlocal candidates of the Democratic Party.tt5 Article 2 further qualifies the rightto equality asserting that "no distinction shall be made on the basis of the political... [or] jurisdictional ... territory to which a person belongs, whether it be ...non-self-governing or under any other limitation of sovereignty.,,116The significance of the UDHR, as evidence of the emergence of customary lawon the right to vote, is recognized in the Restatement. "The United Nations GeneralAssembly in particular has adopted resolutions, declarations, and otherstatements of principles that in some circumstances contribute to the process ofmaking customary law, insofar as statements and votes of governments are kindsof state practice and may be expressions of opinio juris.,,117 Furthermore:"Declarations of principles" may have greater significance than ordinaryresolutions. A memorandum of the Office of Legal Affairs of the UnitedNations Secretariat suggests that: [I]n view of the greater solemnity and significanceof a "declaration," it may be considered to impart, on behalf ofthe organ adopting it, a strong expectation that Members of the internationalcommunity will abide by it. Consequently, insofar as the expectationis gradually justified by State practice, a declaration may by custom becomerecognized as laying down rules binding upon States. ttS112 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University Press, 7thed.2008).113 UDHR, supra note 104, at art. 21.114 UDHR, supra note 104, at art. 1.115 UDHR, supra note 104, at art. 2.116 UDHR, supra note 104, at art. 2 (emphasis added).117 RESTATEMENT (Til 11m) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 102reporters notes 2 (1987) (citations omitted).118 Id.(citation omitted).

64 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWAfter vigorous review, debate and negotiation, the U.N. General Assembly, ofwhich the United States was a voting member, adopted the UDHR on December10, 1948. 119 The vote in support of the adoption of the UDHR was unanimous.After the adoption of the UDHR by the General Assembly, it called on U.N.member states "to cause [the UDHR] to be disseminated, displayed, read andexpounded principally in schools and other educational institutions, without distinctionbased on the political status of countries or territories.,,12o The U.S. Departmentof State often refers to the UDHR in its annual Country Reports onHuman Rights Practices it publishes on its website. 1212. The Inter-American Democratic CharterOn September 11, 2001, the General Assembly of the Organization of AmericanStates ("O.A.S.") adopted the Inter-American Democratic Charter by acclamation.122 The United States, acting as a Charter Member of the O.A.S., voted tosupport it. l23 The principles evinced in the Charter recognize representative democracyfor what it is: a vital component of peace and international order.Among other things, the Charter "recognizes that representative democracy isindispensable for the stability, peace, and development of the region, and thatone of the purposes of the O.A.S. is to promote and consolidate representativedemocracy." 124The Inter-American Democratic Charter affirmed that "the participatory natureof democracy in [O.A.S.] countries in different aspects of public life contributesto the consolidation of democratic values and to freedom and solidarity inthe Hemisphere" and observed that "the American Declaration on the Rights119 General Assembly resolution 217 A (III), available at http://ods.un.org120 A United Nations Priority, http://www.un.orglrightslHRToday/declar.htm (last visited Dec.1,2010). ("An eight-member drafting committee prepared the preliminary text of the Universal Declaration.The committee, chaired by Mrs. Eleanor Roosevelt, widow of the former United States President,agreed on the central importance of affirming universal respect for human rights andfundamental freedoms, including the principles of non-discrimination and civil and political rights ....The Commission then revised the draft declaration, in the light of replies from Member States, beforesubmitting it to the General Assembly .... The General Assembly, in turn, scrutinized the document,with the 58 Member States voting a total of 1,400 times on practically every word and every clause ofthe text.").121 U.S. Dept. of State Human Rights Reports, available at, http://www.state.gov/gldrl/rlslhrrptl122 The OAS is comprised of 35 States (Antigua and Barbuda, Argentina, Commonwealth ofThe Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Commonwealthof Dominica, Dominican Republic, Ecuador, EI Salvador, Grenada, Guatemala, Guyana,Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Saint Vincentand the Grenadines, St. Kitts & Nevis, Suriname, Trinidad and Tobago, United States of America,Uruguay, and the Bolivarian Republic of Venezuela).123 Organization of American States, Inter-American Democratic Charter, Sept. 11, 2001,available at http://www.oas.orglOASpage/englDocuments/Democractic_Charter.htm.124 [d.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 65and Duties of Man and the American Convention on Human Rights contain thevalues and principles of liberty, equality, and social justice that are intrinsic todemocracy[.],,125 Moreover, it noted that "the promotion and protection ofhuman rights is a basic prerequisite for the existence of a democratic society, andrecognizing the importance of the continuous development and strengthening ofthe inter-American human rights system for the consolidation of democracy," itreiterated that "in the Declaration of Managua for the Promotion of Democracyand Development ... the member states expressed their firm belief that democracy,peace, and development are inseparable and indivisible parts of a renewedand integral vision of solidarity in the Americas ... ," and the "ability of theOrganization to help preserve and strengthen democratic structures in the regionwill depend on the implementation of a strategy based on the interdependenceand complementarity of those values[.],,126 It further emphasized that "in theDeclaration of Managua for the Promotion of Democracy and Development, themember states expressed their conviction that the [O.A.S.'s] mission is not limitedto the defense of democracy wherever its fundamental values and principleshave collapsed," but that is also extended to calling for "ongoing and creativework to consolidate democracy as well as a continuing effort to prevent and anticipatethe very causes of the problems that affect the democratic system of government[.],,127The General Assembly resolved to adopt the Inter-AmericanDemocratic Charter. 128The O.A.S. General Assembly agreed that:The peoples of the Americas have a right to democracy and their governmentshave an obligation to promote and defend it. Democracy is essentialfor the social, political, and economic development of the peoples of theAmericas. The effective exercise of representative democracy is the basisfor the rule of law and of the constitutional regimes of the member states ofthe [O.A.S.]. Representative democracy is strengthened and deepened bypermanent, ethical, and responsible participation of the citizenry .... 129It acknowledged that the "[ e ]ssential elements of representative democracy include... respect for human rights and fundamental freedoms, access to and theexercise of power in accordance with the rule of law, the holding of periodic, free,and fair elections ... and universal suffrage as an expression of the sovereignty ofthe people.,,130 It further stated that "[i]t is the right and responsibility of all125 [d.126 Id.127 [d.128 Id.129 Organization of American States, Inter-American Democratic Charter, Sept. 11, 2001,available at http://www.oas.orglOASpage/eng/Documents/Democractic_Charter.htm.130 Id. at art. 3.

66 UNIVERSITY OF TilE DISTRICI' OF COLUM8IA LAW REVIEWcitizens to participate in decisions relating to their own development[,]" that"[t]his is also a necessary condition for the full and effective exercise of democracy[,]"and that "[p ]romoting and fostering diverse forms of participationstrengthens democracy."t31 Moreover, the Assembly declared that "[d]emocracyis indispensable for the effective exercise of fundamental freedoms and humanrights in their universality, indivisibility and interdependence, embodied in therespective constitutions of states and in inter-American and international humanrights instruments.,,132 It also maintains that "[m]ember states reaffirm their intentionto strengthen the inter-American system for the protection of humanrights for the consolidation of democracy in the Hemisphere.,,133The Restatement points out that "[ d]eclarations interpreting a charter are entitledto considerable weight if they are unanimous or nearly unanimous and havethe support of all the principal members."134 Such explicit language about theimport of representative democracy in the Western Hemisphere argues persuasivelythat, at a minimum, a "regional" customary law has developed in theAmericas on the matter of representational rights, consistent with state practiceof every state but the United States, and opinio juris.3. European ParliamentIn 1989, the European Parliament, the main legislative body of the EuropeanUnion, adopted a declaratory resolution on fundamental rights and freedoms,called the Declaration of Fundamental Rights. Noting its regard for the sharedgeneral principles of law of Member States, case law of the Court of Justice of theEuropean Communities, the UDHR, the U.N. Covenant on Civil and PoliticalRights, together with the European Convention for the Protection of HumanRights and Fundamental Freedoms and its Protocols, the parliament resolvedunder Article 17(1)(2)(3)(4) of the Principles of Democracy that "[a]ll public authorityemanates from the people and must be exercised in accordance with theprinciples of the rule of law;" that "[e]very public authority must be directlyelected or answerable to a directly elected parliament[,]" that "European citizensshall have the right to take part in the election of Members of the EuropeanParliament by free, direct and secret universal suffrage[,]" and that "Europeancitizens shall have an equal right to vote and stand for election."t35Moreover, in 2000, the Presidents of the European Parliament, the Council ofthe European Union, and European Commission, signed the European Union131 [d. at art. 6.132 [d. at art. 7.133 [d. at art. 8.134 RESTATEMENT (TIIIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 103reporters notes 2 (1987).135 Convention for the Protection of Human Rights, http://conventions.coe.intffreaty/enrrreaties/HtmllOOS.htm(last visited Dec. 1, 2010).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 67Charter of Fundamental Rights, ]36 which set forth in consolidated text for the firsttime in the history of the European Union a comprehensive declaration of thecivil and political rights of "European citizens and all persons resident in theEU.,,]37 The Charter defines the rights of European Union citizens to vote andstand for elections to the European Parliament. Article 39(1)(2) secures thatright, stating that "[e]very citizen of the Union has the right to vote and to standas a candidate at elections to the European Parliament in the Member State inwhich he or she resides, under the same conditions as nationals of that State,"and "[m]embers of the European Parliament shall be elected by direct universalsuffrage in a free and secret ballot." 138The unanimous adoption of Declaration of Fundamental Rights and Freedomsby the European Parliament,139 and the acceptance of the European Union Charterof Fundamental Rights by the Presidents of the European Parliament, theCouncil of the European Union, and the European Commission, coupled withevidence of the general and consistent state practice of European Union memberstates and opinio juris regarding the right to representation, must be accordedsubstantial weight and consideration of whether this right to political participationhas grown into customary law.N. International Organization Agreements Codifying and DevelopingHuman Rights Law as Customary Law1. The Charter of the a.A.S.The Restatement refers to legally binding multilateral international agreements,"open to all states," as evidence of primary sources of customary law. 140The United States is a founding member of the a.A.S. and is therefore bound bythe terms of its Charter. 141 Among other things, the principles referred to in thea.A.S. Charter are consistent with those enunciated in the Inter-American Dem-136 Council of the European Union, available at http://www.consilium.europa.eu/showPage.aspx?id=242&lang=EN. (The Council of the European Union, together with the European Parliament,forms the bi-camerallegislative branch of the European Union, and is the main decision-makingbody of the European Union).137 Charter of Fundamental Rights of the European Union, 2000/C364/01, Dec. 18, 2000, availableat http://www.europarl.europa.eu/charter/defauicen.htm [hereinafter Charter of FundamentalRights].138 Charter of Fundamental Rights, supra note 137.139 The European Parliament is composed of parliamentarians elected by 27 countries (Austria,Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal,Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom).140 RESTATEMENT (Tllllm) OF TilE FOREION RELATIONS LAW OF TI-IE UNITED STATES § 102cmt. f (1987).141 Charter of the Organization of American States, available at http://www.oas.orgldilltreaties_A-41_ Charter _oCthe_ Organization_oCAmerican_States.htm.

68 UNIVERSITY OF TilE DISTRICr OF COI.UMBlA LAW REVIEWocratic Charter and endowed with the terminology of opinio juris. They affirmthat the purpose of the organization is to "consolidate representative democracy"in the Western Hemisphere. Article 2 states that "in order to put into practice theprinciples on which it is founded and to fulfill its regional obligations under theCharter of the United Nations," the O.A.S. stated that its essential purposes include"promot[ing] and consolidate[ing] representative democracy." and "promotingand encouraging respect for human rights and ... fundamental freedomsfor all" as set forth under Article 1(3) of the U.N. Charter. 142 The O.A.S. Charter,under Article 3(d), declares that the "solidarity of the American States andthe high aims which are sought through it require the political organization ofthose States on the basis of the effective exercise of representativedemocracy.,,143The O.A.S. Charter also attests that one of the central organs of the O.A.S.,the Inter-American Commission on Human Rights ("IACHR"), shall "promotethe observance and protection of human rights." 144 The IACHR is composed of apanel of eminent international legal scholars and experts elected by the O.A.S.General Assembly. The central human rights instruments of the O.A.S. are theAmerican Declaration of the Rights and Duties of Man and the Inter-AmericanConvention on Human Rights, which, according to the IACHR, define the humanrights referred to in the Charter binding on O.A.S. states. The American Declarationof the Rights and Duties of Man provides under Article 2 the right to equality:"[a]ll persons are equal before the law and have the rights and dutiesestablished in this Declaration, without distinction as to race, sex, language, creedor any other factor.,,145 Under Article 20 the right to vote and to participate ingovernment is addressed: "[e]very person having legal capacity is entitled to participatein the government of his country, directly or through his representatives,and to take part in popular elections, which shall be by secret ballot, and shall behonest, periodic and free.,,146In 2003, after 11 years of litigation between the Statehood Solidarity Committeeand the United States Government, the IACHR issued REPORT N° 98/03CASE 11.204 STATEHOOD SOLIDARITY COMMITTEE UNITEDSTATES. 147 The report concluded that as a result of the denial of the right of the142 Charter of the Organization of American States, supra note 141, at chap. I, art. 2(b).143 Charter of the Organization of American States, supra note 141, at chap. I, art. 3(d).144 Charter of the Organization of American States, supra note 141, at chap. XV, art. 106.145 OAS Declaration of the Rights and Duties of Man, http://www.hrcr.orgldocs/OAS_Deciaration/oasrights3.html.(last visited Dec. 1,2010).146 /d. at art. 20.147 Id. (In its summary, the report states "[o]n April I, 1993, the Inter-American Commissionon Human Rights (the "Commission") received a petition from Timothy Cooper on behalf of theStatehood Solidarity Committee (the "Petitioners") against the Government of the United States (the"State" or "United States"). The petition indicated that it was presented on behalf of the members ofthe Statehood Solidarity Committee and all other US citizens resident in the District of Columbia.").

THE DISTRICf OF COLUMBIA v. THE 50 STATES 69citizens of the District of Columbia to enjoy equal political participation in theU.S. House of Representatives and the U.S. Senate, "the State is responsible forviolations of the Petitioners' rights under Articles II and XX of the AmericanDeclaration by denying them an effective opportunity to participate in their federallegislature.,,148 The IACHR then recommended that "Petitioners [be provided]an effective remedy, which includes adopting the legislative or othermeasures necessary to guarantee [them] the effective right to participate, directlyor through freely chosen representatives and in general conditions of equality, intheir nationallegislature.,,149 To date the United States has failed to comply withthe Commission's recommendations.It should be recalled that the Restatement supports the view that "to the extentthat decisions of international tribunals adjudicate questions of internationallaw, they are persuasive evidence of what the law is" and that "D]udgments andopinions of international tribunals generally are accorded more weight than thoseof domestic courts, since the former are less likely to reflect a particular nationalinterest or bias.,,15o The United States has also signed, but not ratified, theIACHR, which stipulates under Article 23 that "every citizen shall enjoy the ...[ right] to take part in the conduct of public affairs, directly or through freelychosen representatives[,] to vote and to be elected in genuine periodic elections... , and to have access, under general conditions of equality, to the public serviceof his country.,,151 Under Article 24, "[a]ll persons are equal before the law ...[and c]onsequently, they are entitled, without discrimination, to equal protectionof the law.,,152However, Article 18 of the Vienna Convention on the Law of Treaties, 1969,which is legally binding on the United States, obligates every state not to defeatthe "object and purpose" of the treaty "prior to its entry into force," when "it hassigned the treaty or has exchanged instruments constituting the treaty subject toratification." 153148 Inter-American Commission on Human Rights Statehood Solidarity Comm. U.S. ReportN°. 98/03, Case 11.204, available at http://www.cidh.oas.org/annualrep/2003eng/USA.11204.htm (Report,at 1).149 Id.150 RESTATEMENT (THIRD) OF TilE FOREIGN RELATIONS LAW OF TilE UNITED STATES § 103cmt. b (1987).151 American Convention on Human Rights, Nov. 22, 1969, available at http://www.cidh.org/basicos/english/Basic3.American%20Convention.htm.152 ld. at art. 24.153 Vienna Convention on the Law of Treaties, 1969, May 23, 1969, U.N.T.S., vol. 1155, p.33 1 ,available at untreaty.un.orglilc/texts/instrumentsl .. .Iconventionsll_l_1969.pdf. (Contact author fordetails on access procedure).

70 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEW2. The Council of EuropeForty-seven European and Central Asian states are members of the Council ofEurope ("C.O.E."), as distinct from the European Union. As of 2009, each participatingmember has ratified the European Convention for the Protection ofHuman Rights and Fundamental Freedoms (Protocol 1).154 Article 3 of the ConventionProtocol 1 (Enforcement of certain Rights and Freedoms not included inSection I of the Convention adopted in 1952) provides, inter alia, that "[t]he HighContracting Parties undertake to hold free elections at reasonable intervals bysecret ballot, under conditions which will ensure the free expression of the opinionof the people in the choice of the legislature.,,155The Convention is legally binding on all signatory states, and enforceableunder Article 38 of the Convention by the European Court of Human Rights.The right to representation granted under the European Convention's Protocol isconsistent with general state practice and opinio juris in the region, providingevidence a rule of customary law exists, at least at the regional level, regardingthat right.3. Matthews v. The United KingdomAs noted above, international judicial decisions also provide evidence of customarylaw. In 2000, the European Court of Human Rights held in Matthews v.The United Kingdom that a British citizen living in Gibraltar was denied the rightto stand for election in the European Parliament under Article 3 of Protocol 1 ofthe European Convention on Human Rights. 156 Though Gibraltar was a part ofthe European Union, it had never had the right to vote in Parliamentary elections.Article 3 provides for the right to regular, free and fair elections "underconditions which will ensure the free expression of the opinion of the people inthe choice of the legislature.,,157The petitioner had complained that the prohibition prevented her from participatingin elections to choose the legislature of the European Parliament and was154 Council of Europe, http://conventions.coe.intffreaty/Commun/ListeTableauCourt.asp?MA=3&CM=16&CL=ENG (last visited Dec. 1,2010). (The Council of Europe is made up of 47 states(Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia,Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary,Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco,Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia,Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine,and the United Kingdom).).155 The European Convention on Human Rights, Nov. 4, 1950, available al http://www.hri.orgldocs/ECHR50.html [hereinafter European Convention].156 Matthews v. The United Kingdom, Application No. 24833/94, (1999), available al hUp:llwebcitation.orgl5IWx37qMR.157 European Convention, supra note 155, protocol 1, art. 3.

THE DISTRICT' OF COLUMBIA v. THE 50 STATES 71therefore a violation under Article 3 of Protocol No. 1. 158 The European Courtfound that the petitioner had been denied any opportunity to express her opinionin the choice of members of the European Parliament, despite the fact that, as theCourt had found, legislation that emanated from the European Communityforms part of the legislation in Gibraltar and the applicant is directly affected byit.The very essence of the applicant's right to vote to choose the legislature, asguaranteed under Article 3 of Protocol No.1, had been denied. 159 Thus, the provisionhad been violated. The European Court of Human Rights' decision inMatthews v. The United Kingdom is consistent with the IACHR's decision inStatehood Solidarity v. the United States.4. The Organization for Security and Cooperation in EuropeThe United States is also a founding member of the Organization for Securityand Cooperation in Europe ("OSCE"), formerly known as the Conference forSecurity and Cooperation in Europe ("CSCE,,).16o The CSCE rose out of a twoyear,bi-Iateral conference among Warsaw Pact and Western nations, culminatingin the unanimous adoption by those states of the Helsinki Act in 1975, whichenunciated the vital principles of the CSCE, and which, after the conclusion ofthe Cold War, became known as the OSCE at the Budapest Summit in 1994. 161The OSCE, a "de facto" 55-member international organization 162 that meets regularlyon security and human rights issues affecting those states,163 considers the158 Matthews v. The United Kingdom, Application No. 24833/94, (1999), available at http://webcitation.orgl5IWx37qMR.159 Id.160 Conference on Security and Co-Operation in Europe Final Act (1975), http://www.osce.orgldocuments/mcsl1975/08/4044_en.pdf161 Fourth Heads of State Summit, http://www.osce.orgliteml15849.html(last visited Dec. 12010).162 Eric Manton, The OSCE Human Dimension and Customary International Law Formation,available at http://www.osce.orgldocumentslodihr/2006/01l36428_en.pdf. (Eric Manton notes "[t]henew OSCE possesses many of the traits one expects of an international organization including recognitionas a 'regional arrangement' under Chapter VIII of the UN Charter and Observer Status in theGeneral Assembly of the UN, in spite of the fact that it still does not have a founding charter, andthus is arguably not an international legal entity.").163 Conference on Security and Co-Operation in Europe Final Act, supra note 160. (TheCSCE was attended by "High Representatives" of 35 states, including Austria, Belgium, Bulgaria,Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, the German, Democratic Republic, theFederal Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein,Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino,Spain, Sweden, Switzerland, Turkey, the Union of Soviet Socialist Republics, the United Kingdom,the United States of America and Yugoslavia. The second stage of the Conference was attended bysix non-participating Mediterranean States as well, including the Democratic and Popular Republic ofAlgeria, the Arab Republic of Egypt, Israel, the Kingdom of Morocco, the Syrian Arab Republic,Tunisia. These states offered contributions and made statements.).

72 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWhuman rights commitments of its participating states to be "matters of direct andlegitimate concern to all participating States and do not belong exclusively to theinternal affairs of the State concerned."I64 However:The OSCE has a unique status. On the one hand, it has no legal statusunder most of its instruments, decisions and commitments are framed inlegal language and their interpretation requires an understanding of theprinciples of international law and of the standard techniques of the law oftreaties. Furthermore, the fact that OSCE commitments are not legallybinding does not detract from their efficacy. Having been signed at thehighest political level, they have an authority that is arguably as strong asany legal statute under international law. 165The Helsinki Final Act asserts that "the participating States will respect humanrights and fundamental freedoms ... promote and encourage the effective exerciseof civil, political ... and other rights and freedoms all of which derive fromthe inherent dignity of the human person and are essential for his free and fulldevelopment.,,166 It continues by stating that:[I]n the field of human rights and fundamental freedoms, the participatingStates will act in conformity with the purposes and principles of the Charterof the United Nations and with the Universal Declaration of Human Rights.... [A]nd fulfill their obligations as set forth in the international declarationsand agreements in this field, including inter alia the International Covenantson Human Rights, by which they may be bound. 167In addition, signatory countries agreed to "fulfill in good faith their obligationsunder international law, both those obligations arising from the generally recognizedprinciples and rules of international law and those obligations arising fromtreaties or other agreements, in conformity with international law, to which theyare parties." 168The I.C.J. referenced the Helsinki Final Act in the Nicaragua Case as evidenceof opinio juris, thus, "opening up the possibility that the Final Act and perhapsalso other OSCE documents may qualify as customary international law," positsEric Manton. 169 Citing Arie Bloed, he argues that:The binding force of these documents is not seriously doubted. Van Dijkcorrectly states: "[a] commitment does not have to be legally binding inorder to have binding force; the distinction between legal and non-legal164 Manton, supra note 162, at 1 n.4.165 Manton, supra note 162, at 4 (footnote omitted).166 Helsinki Final Act, August 1, 1975, available at hup:/Iwww.hri.orgidocs/Helsinki7S.html.167 [d.168 [d.169 Manton, supra note 162, at S (footnotes omitted).

THE DISTRICf OF COLUMBIA v. THE 50 STATES73binding force resides in the legal consequences attached to the bindingforce," not in the binding force as such. Violation of politically, but notlegally binding agreements is as inadmissible as any violation of norms ofinternational law. In this respect there is no difference between politicallyand legally binding rules. 170Manton maintains that:OSCE documents are ... eligible as evidence of state practice. The qualifiersof type of language and proportion of support for the resolutions aremet as OSCE documents usually use mandatory terminology, express obligations,and are accepted unanimously. In addition, due to the shortenedrequired time to demonstrate consistent state practice ... , and while theOSCE commitments have been around for over 25 years in the HelsinkiFinal Act, many of the most progressive commitments have been developedsince the end of the Cold War. Thus Stuart Ford would be correct in saying:"[s]tretching as they do over a period of nearly ten [now twenty] years,these declarations are evidence of a general state practice consistent withOSCE principles.,,171In 1989, the Concluding Document of the Vienna Meeting of the CSCE issueda similar resolution to the Helsinki Final Act regarding the assembly's principles,in which all of the participating states, including the United States, "express theirdetermination to guarantee the effective exercise of human rights and fundamentalfreedoms, all of which derive from the inherent dignity of the human personand are essential for his free and full development ... [and] recognize that civil,political ... and other rights and freedoms are all of paramount importance andmust be fully realized by all appropriate means."l72It went on to declare that theparticipating states agreed to "ensure human rights and fundamental freedoms toeveryone within their territory and subject to their jurisdiction, without distinctionof any kind" and to "ensure that no individual exercising, expressing theintention to exercise or seeking to exercise these rights and freedoms or anymember of his family, will as a consequence be discriminated against in anymanner.,,173In 1990, the CSCE met again to expand on the human rights principles andobligations of member states. The concluding document, known as the CopenhagenDocument 1990, incorporated both the principles and the human rights commitmentsthe 35 convening CSCE States, including the United States, promised170 Manton, supra note 162, at 5-6 (footnote omitted).171 Manton, supra note 162, at 8 (footnotes omitted).172 Concluding Document of the Vienna Meeting of the CSCE, Jan. 19, 1989, available at http://web.archive.org/web/19990220113731/http://www.osceprag.czldocs/chronos.htm.173 /d. at 8.

74 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWto observe. 174 The CSCE reaffirmed the principles first articulated in the HelsinkiFinal Act and subsequent Vienna 1989 document, expressing "their convictionthat full respect for human rights and fundamental freedoms and the developmentof societies based on pluralistic democracy and the rule of law are prerequisitesfor progress in setting up the lasting order of peace, security, justice ... " and"reaffirm [ ed] their commitment to implement fully all provisions of the Final Actand of the other CSCE documents relating to the human dimension [humanrights].,,175Article 1(4) of the Copenhagen Document states that participating States will"ensure that their laws ... conform with their obligations under international lawand are brought into harmony with the provisions of the Declaration on Principlesand other CSCE commitments.,,176 Article 1(5) asserts that "among thoseelements of justice which are essential to the full expression of the inherent dignityand of the equal and inalienable rights of all human beings are the following:free elections that will ... ensure in practice the free expression of the opinion ofthe electors in the choice of their representatives[.]"I77 Article 1(6) states that"the will of the people, freely and fairly expressed through periodic and genuineelections, is the basis of the authority and legitimacy of all government ... [andthat t]he participating States will accordingly respect the right of their citizens totake part in the governing of their country, either directly or through representativesfreely chosen by them through fair electoral processes.,,178Further:To ensure that the will of the people serves as the basis of the authority ofgovernment, the participating States will ... permit all seats in at least onechamber of the national legislature to be freely contested in a popular vote.... guarantee universal and equal suffrage to adult citizens ... [and] respectthe right of citizens to seek political or public office, individually or asrepresentatives of political parties or organizations, without discrimination179Again, quoting Manton arguing OSCE human dimension standards constitutehard "soft law" that qualifies as opinio juris:The OSCE human dimension (documents, commitments, instruments) is ade facto treaty regime, as it is founded on pacta sunt servanda -on the goodfaith of the participating States. It is a treaty in the sense that there are174 Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, (June 29,1990), http://www.osce.orgldocuments/odihr/1990/06113992_en.pdf. [hereinafter Copenhagen].175 Copenhagen, supra note 174.176 Copenhagen, supra note 174 at art. 1(4).177 Copenhagen, supra note 174 at art. 1(5).178 Copenhagen, supra note 174 at art. 1(6).179 Copenhagen, supra note 174 at art. 1 (7).

THE DISTRICf OF COLUMBIA v. THE 50 STATESlegitimate expectations among the States that each will be in good faith, butthis de facto contractual agreement does not address merely a single document,but rather the OSCE process as a whole. This intention to act in goodfaith in a de facto contractual agreement (combined with its "hard" obligationsand binding force), may thus amount to evidence of opinio juris. 180 75Thus, the Copenhagen Document 1990, together with other relevant OSCE documentsand commitments, has been unanimously adopted by consensus by 56OSCE participating States. 181 These documents enshrine the fundamental rightto political participation for all people, and may now, twenty years after theiradoption, provide an important supplementary source of customary law (in theform of a regional European/Central Asian customary law) stemming from thestate practice and opinio juris of the states, and acquiesced to by the UnitedStates, a participating member of the OSCE.5. Expressions of Concern Under the Copenhagen Document 1990 by theOSCE/ODIHR on D.C. Voting RightsThe OSCE has expressed serious concerns about the denial of voting rights tothe residents of the District of Columbia. The Office of Democratic Institutionsand Human Rights ("ODIHR,,)182 issued its final report on the 2004 U.S. presidentialelections, expressing serious concern about the failure of the UnitedStates to meet its obligations under the OSCE Copenhagen Document in thisregard. 183 The OSCE report observed that:[T]he U.S. constitutional framework grants full representation and votingrights in elections for federal office to U.S. citizens, who are also citizens ofindividual states. However, to varying degrees, these rights are limited for180 Manton, supra note 162 at 17 (footnotes omitted).181 The 56 OSCE participating States are Albania, Andorra, Armenia, Austria, Azerbaijan,Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark;Estonia, Finland, France, Georgia, Germany, Greece, Holy See, Hungary, Iceland, Ireland,Italy, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, The former YugoslavRepublic of Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal,Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden,Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, United Kingdom, United States of America,and Uzbekistan.182 See Office for Democratic Institutions and Human Rights, http://www.osce.orglodihr/13421.html (last visited Dec. 1, 201O) (The ODIHR is a "specialized institution of the OSCE dealing withelections, human rights, and democratization.").183 UNITED STATES OF AMERICA GENERAL EwcnoNS, OSCE/ODIHR, Warsaw, Pol. (Nov. 2,2004). Democracy First, a Washington, DC-based NGO, intervened on behalf of the District of Columbiain 1992, 1993, 1994, and 1995, before OSCE Human Dimension Implementation Meetings inWarsaw, Poland, calling on the OSCE to intervene.

76 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWcitizens of other U.S. jurisdictions, such as Washington, D.C. Ensuring equalvoter rights is a fundamental OSCE commitment. l84On March 9, 2007, the OSCE/ODIHR issued its U.S. 2006 mid-term congressionalelections report, concluding similarly to its 2004 report that United StatesGovernment policy concerning District residents was inconsistent with OSCEhuman rights standards. The OSCE report stated that:U.S. citizens who are not citizens of one of the fifty states are not able tovote for members of Congress and do not have the right to vote on the floor.... These restrictions exist even though such U.S. citizens are subject toU.S. federal law and pay federal taxes .... [It is] estimated that in WashingtonD.C. alone, without including U.S. citizens of U.S. territories, up to halfa million U.S. citizens are not permitted to vote in federal elections for fullcongressional representation. As these citizens are subject to U.S. laws, includingtaxation, the denial of full representation, as underscored by theConstitution and Supreme Court decisions, would appear to be a limitationof voting rights. ls5The OSCE/ODIHR further recommended that U.S. authorities should considerall possibilities to provide full representation rights for all U.S. citizens. ls6On March 13, 2009 the OSCE/ODIHR issued its U.S. 2008 presidential electionreport, concluding similarly to its 2006 report that "[s]ome 600,000 residentsof Washington D.C. are entitled to vote only for Electors, i.e. for the Presidentand the Vice-President as if the District of Columbia was a state, but are notrepresented in Congress by representatives with full voting rights."ls7 It added:The D.C. Court of Appeals rejected the "taxation without representation"argument in Green v. D. C. [1966]. In Adams v. Clinton [2002] the D.C.Court of Appeals said that voting rights were a matter for legislative, notjudicial relief. The U.S. Supreme Court refused to reconsider this ruling.This effectively closes the judicial approach to voting rights for D.C. residentsfor the near future. A draft bill to address the issue was passed bythe House in 2007 but is yet to be passed by the Senate. The OSCE ParliamentaryAssembly, in its 2005 Washington Declaration, called on the U.S.184 Id. at 2.185 UNITED STATES OF AMERICA MIJ)-TERM CONGRESSIONAL ELECI'IONS, 7 November 2006,OSCEIODIHR, Warsaw, Poland.186 Id. at 19-20.187 UNITED STATES OF AMERICA GENERAl. ELECI'IONS, 4 November 2008, OSCE/ODIHRLimited Election Observation Mission Final Report, Issued on March 13,2009, Warsaw, Poland, availableat http://www.osce.orgiodihr-elections/documents.html?lsi=true&limit= 1 0&grp=221 (last visitedDec. 1,2010).

THE DISTRICT OF COLUMBIA v. THE 50 STATES77Congress to adopt "such legislation as may be necessary to grant the residentsof Washington D.C., equal voting rights.,,188The OSCE reiterated its previous recommendation to the United States that"[c]onsideration should be given for providing full representation rights in Congressfor all U.S. citizens, including those of Washington, D.C. and U.S.territories." 1896. Expressions of Concern Under the 1990 Copenhagen Documents by theOSCE Parliamentary Assembly on D.C. Voting RightsIn 2005, the OSCE Parliamentary Assembly ("PA"), composed of 320 membersfrom 55 parliaments, assembled in Washington, D.C. and passed a unanimousresolution calling on the U.S. Congress to grant equal congressional votingrights to Washingtonians; Le., one member of the U.S. House of Representativesand two representatives in the U.S. Senate. The PA resolution called "on theCongress of the United States to adopt such legislation as may be necessary togrant the residents of Washington, D.C. equal voting rights in their national legislaturein accordance with its human dimension commitments.,,190 Such declarationsby legal scholars, human rights experts, and democratic practitioners,authoritative interpreters of international human rights law, further serve to codifyand develop customary international law.7. The African UnionThe Constitutive Act of the African Union, which established the AfricanUnion ("AU") in 2000 (and replaced the Organization of African Unity), createslegally binding commitments on the part of member states.t 91 Like the O.A.S.,the EU, the COE, and the OSCE, the objectives of the AU run parallel regardingsupport for principles of representative democracy and the right for all citizens tovote through duly elected representatives in the national legislature of one'scountry.188 [d. at 8 n.16.189 [d. at 32.190 The OSCE Parliamentary Assembly's resolution language was authored by the NGO,Worldrights.191 http://www.africa-union.orglrootlAU/memberstates.map.htm (Contact author for websiteinformation). 53 African nations have also endorsed the Constitutive Act (Algeria, Angola, Benin,Botswana, Burkina Faso, Burundi, Cameroon, Central African Rep., Cape Verde, Chad, Coted'Ivoire, Comoros, Congo, Djibouti, Democratic Rep. of Congo, Egypt, Equatorial Guinea, Eritrea,Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Guinea, Kenya, Libya, Lesotho, Liberia, Madagascar,Mali, Malawi, Mozambique, Mauritania, Mauritius, Namibia, Nigeria, Niger, Rwanda, South Africa,Sahrawi Arab Democratic Republic, Senegal, Seychelles, Sierra Leone, Somalia, Sao Tome &Principe, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, and Zimbabwe).

78 UNIVERSITY OF TilE DISTRICI" OF COLUMBIA LAW REVIEWThe objectives of the AU include 1) the "[ e ] ncourage [ ment of] internationalcooperation, taking due account of the Charter of the United Nations and theUniversal Declaration of Human Rights;" and 2) the "[p]romot[ion] and protect[ionof] human and peoples' rights in accordance with the African Charter onHuman and Peoples' Rights and other relevant human rights instruments.,,192Under Article 4 of the Constitutive Act, AU State members also agree to functionaccording to certain principles, including "[r]espect for democratic principles,human rights, the rule of law and good governance.,,193The Constitutive Act also refers to the African Charter on Human and People'sRights ("African Charter,,).194 Article 13 of the African Charter establishesthat "[ e ]very citizen shall have the right to participate freely in the government ofhis country, either directly or through freely chosen representatives in accordancewith the provisions of the law" and also that "[ e ]very citizen shall have the rightof equal access to the public service of his country.,,195 All AU States have ratifiedthe African Charter. 196 The commitments undertaken by AU States to respecthuman rights in accordance with the African Charter, consistent with theUDHR, both of which provide for equal representation in the national legislaturesof African states, reinforces the argument that state practice in Africa contributesto customary international law.When taking into account European and Central Asia state practice, as well asstate practice in Oceania, it appears as though a general and consistent state practicefollowed from a sense of legal obligation on the fundamental right to vote inthe national legislature of one's own country has emerged in the Eastern Hemisphereas well as in the Western hemisphere, thus contributing to the codifyingand development of customary law worldwide.O. Other International Covenants Codifying and Developing Customary LawThe Restatement acknowledges that a broad network of complimentary multilateralagreements, commonly used in the field of international human rights law,constitute state practice and support the growth and development of customarylaw. 197 And while, the American Declaration of the Rights and Duties of Man, theInter-American Convention on Human Rights, the European Convention for the192 Constitutive Act of the African Union, available at http://www.au2002.gov.za/docs/key_oau/au_act.htm (last visited Dec. 2, 2010).193 Id. at art. 4.194 Id. at art. 3.195 African Charter on Human and People's Rights, http://www.africa-union.orglroot/au/DocumentsffreatiesffextIBanjul%20Charter.pdf.(Contact author for website information).196 See African Union" http://www.africa-union.orglroot/au/Documentsrrreaties/treaties.htm(last visited Dec. 2, 2010).197 See, RESTATEMENT (TIIIRD) OF TilE FOREIGN REI.ATIONS LAW OF THE UNITED STATES(1987).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 79Protection of Human Rights and Fundamental Freedoms and its Protocols, theEuropean Union Charter of Fundamental Rights, the Copenhagen Document1990, and the African Charter provide other important examples of multilateralaccords that have been ratified by states at the regional, hemispheric level, anddemonstrate evidence of state action and practice,198 two other major internationalhuman rights treaties, the International Covenant on Civil and PoliticalRights ("ICCPR") and the International Convention on the Elimination of AllForms of Racial Discrimination ("ICERD"), provide additional evidences of statepractice at the global level. 199Both treaties are legally binding on signatory states and provide for the rightto representation for all citizens in the national legislature of their country. TheUnited States is a signatory to the ICCPR and took no reservations to Article 25and 26. Under Article 25:Every citizen shall have the right and the opportunity ... and without unreasonablerestrictions: (a) to take part in the conduct of public affairs, directlyor through freely chosen representatives; (b) to vote and to be electedat genuine periodic elections which shall be by universal and equal suffrageand shall be held by secret ballot, guaranteeing the free expression of thewill of the electors; (c) to have access, on general terms of equality, to publicservice in his country.2ooUnder Article 26:All persons are equal before the law and are entitled without any discriminationto the equal protection of the law. In this respect, the law shall prohibitany discrimination and guarantee to all persons equal and effectiveprotection against discrimination on any ground such as race, colour, sex,language, religion, political or other opinion, national or social origin, property,birth or other status.z OlIn 1996, the U.N. Human Rights Committee 202 issued General Comment 25,which defines in detail the contours of Article 25, after the matter of the disen-198 Excepted from this list is the UDHR, which serves as a model for the world's other humanrights instruments, and is in fact universal in its acceptance and application.199 See also, Statement of Ttmothy Cooper on Behalf of the International Human Rights LawGroups before the 58th Sessions of the UN Commission on Human Rights Under Item 11: Civil andPolitical Rights, April 16,2002 available at http://dcwatch.com/issues/voting04.htm and http://worldrights.orglhome.htm.200 Office of the United Nations High Commissioner for Human Rights, International Covenanton Civil and Political Rights, opened for signature December 16, 1966, available at http://www2.ohchr.orglenglishllaw/ccpr.htm [hereinafter ICCPR]201 ICCPR, supra note 2oo,at art. 26.202 The Human Rights Committee considers periodic compliance reports submitted by memberStates of the U.N. that have signed and ratified the ICCPR. Committee members are elected by themember states, but serve in their own personal capacity. Committee members recuse themselves

80 UNIVERSUY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWfranchisement of the District of Columbia was first presented to the Committeeduring its 53rd Sessions in New York in 1995. 203According to General Comment 25:Article 25 of the Covenant recognizes and protects the right of every citizento take part in the conduct of public affairs, the right to vote and to beelected and the right to have access to public service. Whatever form ofconstitution or government is in force, the Covenant requires States toadopt such legislative and other measures, as may be necessary to ensurethat citizens have an effective opportunity to enjoy the rights it protects.Article 25 lies at the core of democratic government based on the consentof the people and in conformity with the principles of the Covenant. 204It further noted that:The conduct of public affairs ... is a broad concept which relates to theexercise of political power, in particular the exercise of legislative, executiveand administrative powers. It covers all aspects of public administration,and the formulation and implementation of policy at international, national,regional and local levels. The allocations of powers and the means by whichindividual citizens exercise the right to participate in the conduct of publicaffairs protected by [A ]rticle 25 should be established by the constitutionand other laws. 205Moreover, it stated that:Where citizens participate in the conduct of public affairs through freelychosen representatives, it is implicit in [A]rticle 25 that those representativesdo in fact exercise governmental power, [and that n]o distinctions arepermitted between citizens in the enjoyment of these rights on the groundsof race, colour, sex, language, religion, political, national or social origin,property, birth or other status. 206Further, it maintained that:when the Committee considers their own country reports. Article 40 of the ICCPR stipulates that"[t]he States Parties to the present Covenant undertake to submit reports on the measures they haveadopted which give effect to the rights recognized herein and on the progress made in the enjoymentof those rights: (a)Within one year of the entry into force of the present Covenant for the StatesParties concerned; (b) Thereafter whenever the Committee so requests."203 See Timothy Cooper, WASIIINGTON POST, April 1, 1995. The intervention on behalf of theDistrict of Columbia was made by Timothy Cooper, executive director, the Statehood SolidarityCommittee.204 Human Rights Committee, General Comment 25, available at hUp:/Iwww2.ohchr.orglenglishlbodies/hrc/comments.htm.205 [d. If 5.206 [d. CJI 3, 4.

THE DISTRICf OF COLUMBIA v. THE 50 STATES81Any conditions which apply to the exercise of the rights protected by Article25 should be based on objective and reasonable criteria .... The exerciseof these rights by citizens may not be suspended or excluded ongrounds which are established by law and which are objective and reasonable.For example, established mental incapacity may be a ground for denyinga person the right to vote or to hold office?07During the appearance of the United States' delegation to the Human RightsCommittee in 1995, U.S. State Department Legal Advisor, Conrad Harper, informedthe Committee that the "courts of the [United States] could refer to theCovenant and take guidance from it.,,208To date, 165 countries are party to the ICCPR, with 72 additional signatories.209 U.N. General Assembly Resolution 2200A(XXI) adopted and opened itfor signature, ratification and accession in 1966. It entered into force in 1976.1 10Similarly, under ICERD Article 1:[T]he term "racial discrimination" shall mean any distinction, exclusion, restrictionor preference based on race, colour, descent, or national or ethnicorigin which has the purpose or effect of nullifying or impairing the recognition,enjoyment or exercise, on an equal footing, of human rights and fundamentalfreedoms in the political, economic, social, cultural or any otherfield of public life. 211Article 2, paragraph l(c) states that "[e]ach State Party shall take effective measuresto review governmental, national and local policies, and to amend, rescindor nullify any laws and regulations which have the effect of creating or perpetuatingracial discrimination wherever it exists[.],,212 ICERD Article 5 stipulates that:In compliance with the fundamental obligations laid down in article 2 of thisConvention, States Parties undertake to prohibit and to eliminate racial discriminationin all its form and to guarantee the right of everyone, withoutdistinction as to race, colour, or national or ethnic origin, to equality beforethe law, notably in the enjoyment of the following rights: ... (c) Politicalrights, in particular the rights to participate in elections-to vote and tostand for election-on the basis of universal and equal suffrage, to take part207 [d.

82 UNIVERsrrv OF TilE DISTRICT OF COLUMBIA LAW REVIEWin the Government as well as in the conduct of public affairs at any leveland to have equal access to public service[.]213The United States is a signatory to ICERD and took no reservations to Article2 paragraph 1(c) or Article 5. To date, 173 countries are party to ICERD, with 85additional signatories. U.N. General Assembly Resolution 2106 (XX)2 adoptedand opened it for signature, ratification and accession in 1965. It entered intoforce in 1969. 2141. Expressions of Concern Under the ICCPR by the U.N. Human RightsCommittee on D.C. Voting RightsIn light of the fact that the ICCPR is legally binding on the United States, andthat the U.N. Human Rights Committee is empowered to review U.S. Governmentcompliance under its treaty obligations, the Committee has twice reviewedand twice expressed serious concern about the congressional non-voting status ofthe District of Columbia. 215 In 1995, the Committee questioned the delegation ofthe United States when it appeared before the Committee to report on U.S. compliance.Regarding the disenfranchisement of the citizens of the District of Columbia,committee member and international human rights expert Ms. CeciliaMedina Quiroga of Chile sought clarification on the voting rights of D.C.residents. 216Mr. Deval Patrick, Assistant Attorney General, Civil Rights Division, U.S.Department of Justice, responded on behalf of the United States, stating that theDistrict's "delegate" in the U.S. House of Representatives for the District of Columbiaenjoyed a "voice" in Congress, but had no right to vote in Congress?17Committee member Quiroga responded by stating that although the representativehad summarized the status of the District of Columbia's voting right, he didnot explain "why.,,218In 1999, then Vice-Chair of the U.N. Commission on Human Rights, Mr. FranciscoAguillar of Costa Rica, also stated unofficially to Timothy Cooper of theStatehood Solidarity Committee at the United Nations in Geneva, Switzerlandthat the disenfranchised status of Washingtonians was a violation of internation-213 ICERD, supra note 211, at art. 5.214 ICERD, supra note 211.215 Human Rights Committee, http://www2.ohchr.orglenglish/bodies/hrd (last visited Dec. 2,2010).216 Human Rights Committee, supra note 204. (The U.N.'s intervention with the official U.S.Delegation to the Human Rights Committee was prompted by testimony before the U.N. Committeeby Timothy Cooper of the Statehood Solidarity Committee.)217 TIMOTHY CO(WER, CHRONOLOGY OF MAJOR EVENTS IN TilE INTERNATIONAL HUMANRIGIITS CAMI'AIGN ON BElIALI' OF EOUAL RIGHTS FOR TIlE PEOPLE OF W ASIIINGTON D.C., availableat http://world-rights.orglusldc_human_rights_time_line.htm.218 [d.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 83ally recognized human rights standards under the ICCPR. Mr. Aguillar had beenthe U.N. Human Rights Committee chair in 1995. 219In 2005, the U.N. Human Rights Committee again questioned the delegationof the United States when it appeared before them on U.S. compliance on thematter of the disenfranchisement of the citizens of the District of Columbia in theU.S. Congress. 220 Finding that their non-voting status was inconsistent with itstreaty obligations, the U.N. Human Rights Committee addressed the issue in itsConcluding Observations and Recommendations.The U.N. Human Rights Committee called on the U.S. Government to grantthe residents of Washington, D.C. full representation in Congress, noting that theU.N. Human Rights Committee "remains concerned that residents of the Districtof Columbia do not enjoy full representation in Congress, a restriction whichdoes not seem to be compatible with article 25 of the covenant." The Committeerecommended that the United States provide the citizens of the District of Columbia,at the very least, the right to representation in the national legislature ofthe United States with regard to the House of Representatives. 2212. Expressions of Concern Under the ICERD by the U.N. Committee on theElimination of Racial Discrimination on D.C. Voting RightsIn light of the fact that the ICERD is legally binding on the United States, andthe U.N. Committee on the Elimination of Racial Discrimination ("CERD,,)222is empowered to review U.S. Government compliance under its treaty obligations,the CERD has twice reviewed and twice expressed serious concern aboutthe congressional non-voting status of the District of Columbia. In 2001, theCERD examined the U.S. compliance report at the U.N. in Geneva, Switzerland.223 Two legal experts on racial discrimination on the CERD questioned theU.S. practice of curtailing the voting rights of the citizens of the District of Columbiain Congress, particularly in view of the fact that the city's majority popula-219 Human Rights Committee, supra note 204.220 The U.N. Human Rights Committee issued its Concluding Observation on D.C. votingrights based on an intervention by World rights, available at http://world-rights.orglhome.htm.221 See Human Rights Committee, U.N. Human Rights Committee Calls for Full Representationin Congress for DC Residents, CCPRlC/USAlQ/3/CRP.4 (July 10-26), available at http://worldrights.orglhome.htm.222 Office of the United Nations, High Commissioner for Human Rights, Committee on theElimination of Racial Discrimination, monitoring racial equality and non-discrimination, available at,http://www2.ohchr.orglenglish/bodies/cerdl.223 ICERD, supra note 211. Article 9 of the ICERD stipulates that: "1. States Parties undertaketo submit to the Secretary-General of the United Nations, for consideration by the Committee, areport on the legislative, judicial, administrative or other measures which they have adopted andwhich give effect to the provisions of this Convention: (a) within one year after the entry into force ofthe Convention for the State concerned; and (b) thereafter every two years and whenever the Committeeso requests. The Committee may request further information from the States Parties."

84 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWtion is African-American. 224 The rights experts were Ms. Gabriele Britz ofGermany and Mr. Mario Jorge Yutzis of Argentina. Mr. Ralph F. Boyd, then U.S.Assistant-Attorney for Civil Rights of the U.S. Department of Justice, defendedU.S. government policy, claiming District residents may vote for a non-votingdelegate in the House of Representatives. CERD member Mario Jorge Yutzisexpressed dissatisfaction with the U.S. delegation's response.In 2008, the CERD again questioned the delegation of the United States whenit appeared before them on U.S. compliance on the matter of the disenfranchisementof the citizens of the District of Columbia. CERD member Mr. MortenKjaerum of Germany expressed his concern over the prohibition on D.C. votingrights in light of the District's majority African-American population. 225 The U.S.defended the District's absence of congressional voting rights as non-racially motivated,notwithstanding evidence suggesting that racial animus has contributedto the disenfranchisement of District of Columbia residents for centuries. 226A total of nine major international human rights instruments explicitly refer tothe right of all people to participate in their country's national legislature throughthe election of voting representatives. Taken together, this network of complimentarymultilateral agreements, which use similar, and in some cases identical,language to describe this right which finds foundational root in the language ofArticle 21 of the U.N. Declaration of Human Rights, appears to affirm theuniversality of a global state practice as acknowledged and accepted by all of theworld's states and followed from a sense of legal obligation, thus providing furtherevidence of a manifest global state practice honoring the right of politicalparticipation for all citizens, regardless of where they live, and codifying and developingcustomary international law on three levels-the regional, the superregionaland the universal.Lastly, recalling the Restatement's assertion that "[a] determination as towhether a customary rule has developed is likely to be influenced by assessmentas to whether the rule will contribute to international order,,,227 there can be noquestion that international order is served by the advance and consolidation ofrepresentative democracy at all elevations of participatory governance, be theylocal, national, or international. In fact, a judgment by the United States SupremeCourt that a 19th century injustice will not be left to stand in light of 21st centurydemocratic standards, and that it will be, at last, fully and finally remedied will no224 Human Rights Committee, supra note 220.225 ICERD, supra note 211.226 Human Rights Advocacy Worldwide, http://world-rights.orglhome.htm (last visited Dec. 2,2010). See also VIOLATIONS OF EQUAL POLITICAL PARTICIPATION IN THE UNITEDSTATES CONGRESS, Submitted for consideration to the U.N. Committee on the Elimination ofRacial Discrimination, Worldrights, December 10, 2007.227 RESTATEMENT (Til 11m) OF TilE FOREIGN RELATIONS LAW OF Tim UNITED STATES § 103cmt. a (1987).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 85doubt be viewed by the rest of the world as a triumph of American jurisprudenceover tyranny and a testament to the nation's commitment to the right to vote,both at home and abroad, and a tacit acknowledgment of the long-standing presumptionthat democracy is a pre-condition for the protection of human rightsand the making of a more peaceful planet.D. MAKING THE CASE: THE DISTRICT OF COLUMBIA v. THE SO STATESThis section outlines the contours of a new legal strategy for winning full andequal congressional voting rights for the District of Columbia in the U.S. SupremeCourt, and ending, to the maximum extent practicable, Congress's 200year-old plenary authority over the District, through a grant of injunctive relief,predicated on the application of customary international law as federal commonlaw to justify that relief. The case is referred to herein as The District of Columbiav. The 50 States. As stated previously, the defendants in such a suit would be theState Legislatures, the Governors, the Attorneys General, Speakers of the Houseof Representatives, and the Presidents Pro Tempore of the Senates of the SeveralStates.A. U.S. Supreme Court Original JurisdictionIt is proposed that a motion be submitted to the U.S. Supreme Court for leaveto file an original action before the Court on behalf of the District of Columbia,naming as defendants the State Legislatures of, the Governors of, the AttorneysGeneral of, Speakers of the House of Representatives of, and the Presidents ProTempore of the Senates of the Several States, and brought under the authority ofArticle III, section 2 of the Constitution of the United States and 28 U.S.C. section1251(a), which provides for Supreme Court original jurisdiction of suits betweenthe Several States?28 The Supreme Court would have original jurisdictionover the instant case because of the character of the parties: the District of Columbiais suing the Several States because the District is a de facto state, otherthan with respect to the limitations imposed on it as incorporated in the merits ofthe District's claim. The Supreme Court has previously held that its original jurisdictionincludes only those cases under Article III in which the Court had subjectmatter jurisdiction due to the character of the parties, as opposed to the presenceof a federal question. 229228 U.S. CONST. art. III, § 2; See also 22 JAMES WM. MOORE ET AL., MO()Ju~'s FEDERAL PRAC­TICE (3d ed.) (Suits may also between a state and citizens of another state are also specifically consignedto the Court's original jurisdiction); United States v. Texas, 143 U.S. 62 (1892); California v.Southern Pac. Co.,157 U.S. 229 (1985).229 Cohens v. Virginia, 19 U.S. 264 (1821). (The existence of a state as a party gives the SupremeCourt original jurisdiction under Article III. However, the party-based grants did include controversies"between a State and Citizens of another State." ).

86 UNIVEHSITY OF TIlE DISTHICr OF COLUMBIA LAW REVIEWTwo questions would be presented to the Court for review. First, whether theFirst Amendment provides the citizens of the District of Columbia with equalrepresentation in the Congress of the United States under the Ninth Amendment,the laws of nations and customary international law. Second, whether Districtof Columbia citizens are guaranteed the right to equal representation in theCongress of the United States by virtue of rights retained under the NinthAmendment, the law of nations and customary international law?B. Grounds for Review Under Original Jurisdiction1. Seriousness and Dignity of ClaimThis case is appropriate for the U.S. Supreme Court to address under originaljurisdiction because both the seriousness and dignity of the claim and the lack ofavailability of another forum meet the requirements of the Court's conditions. 23oThe constitutional issue to be addressed (equal representation under generalterms of equality in the U.S. Senate and the U.S. House of Representatives) isserious because the residents of the District of Columbia have been denied theopportunity to be represented in Congress since the passage of the Organic Actof 1801 by Congress. The basis of democratic government and governance is theconsent of the governed; a principle espoused in the Declaration of Independence.231 There can be no more serious purpose in a democracy than securing theright to vote, the free expression of the will of the people. 232The unrepresented and non-voting status of District residents in the nationallegislature of the United States violates customary international law, a network oflegally binding international human rights instruments protective of fundamentalrights, as well as the principles and purposes of international institutions dedicatedto the consolidation and promotion of representative democracy on twohemispheres and representative of over 90 nations. Three major internationalhuman rights panels, composed of the world's leading human rights experts empoweredto consider the illegality of the status of the District of Columbia underinternational human rights law, have roundly condemned violations of internationalhuman rights law by the United States Government in this instance. Add tothis the grave implications such denunciations have had and continue to have onthe capacity of the United States to conduct foreign policy and influence, among230 Illinois v. City of Milwaukee, 406 U.S. 91, 93-94 (1972) (U.S. Supreme Court stating thatOriginal Jurisdiction is granted "only in appropriate cases. And the question of what is appropriateconcerns of course the seriousness and dignity of the claim."). See also Wyoming v. Oklahoma, 502U.S. 437, 451 (1982) (The Supreme Court finding that "where claims are of sufficient 'seriousness anddignity,' in which resolution by the judiciary is of substantial concern, the Court will hear them.").The principles are the same whether the Court's jurisdiction is exclusive or concurrent. See also Texasv. New Mexico., 462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981).231 THE DECLARATION OF INDEPENDENCE (U.S. 1776).232 Wesberry v. Sanders, 376 U.S. 1, 18 (1964).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 87other things, democratic reform in such areas of the world as Hong Kong andBelarus, and the abiding embarrassments such condemnations have had and continueto have on the honor and dignity of the nation. These condemnations exposethe intrinsic hypocrisy that lies at the foundation of this nation, whereby,against all sense of fairness and any notion of equality, it is justified as a matter oflaw and perpetuated in the name of partisan politics, that the citizens of the capitalcity of a great world democracy are treated as unequal, both in dignity and infundamental rights, as compared to the citizens of the 50 states and the rest of theself-governing people of the world.This hypocrisy, startling, disturbing, unreasonable, which violates the tranquilityof rational, objective and fair minds, is perhaps best illustrated by the inexplicablecontradiction that exists when it is noted that America has waged war in Iraqto liberate and democratize a foreign people, while here at home, the people ofthe District of Columbia live in a democratic wasteland, abide in a backwaterbathed in the web of a tyranny that will not end, though centuries come and go.Even as soldiers from the District of Columbia offer their lives for the democracyof others-6,OOO miles away-they do so without true democracy at home. Whileit may appear as self-evident that a nation's first duty is to serve its own, it has notbeen so for over two hundred years. A nation cannot serve the cause of democracybeyond its borders without reconciling tyranny at home. It cannot preachfreedom far and wide while practicing subjugation of the patriotic citizens of itscapital city. To have done so and continue to do so is to shame its credibility,weaken its legacy and expose itself to the derision of the world community ofnations.In 1801, Rep. John Smilie, a member of the Democratic-Republican Partyfrom the 9th congressional district of Pennsylvania, put into words, as few havedone better since, the expressive seriousness of the nature of the District of Columbia'spresent claim. At once it expresses the dignity of the District's call forright and the incomprehensibility of the contradiction revealed at the heart of anation established on principles of liberty. In a speech delivered to members ofthe House of Representatives condemning the impending disenfranchisement ofthe inhabitants of the District of Columbia, Smilie stated that:Not a man in the District would be represented in the government, whereasevery man who contributed to the support of a government ought to berepresented in it; otherwise his natural rights were subverted, and he left,not a citizen, but a subject. It was a right which this country, when undersubjection to Great Britain, thought worth making a resolute struggle for,and evinced a determination to perish rather than not enjoy.233233 6 ANNAI_" OF CONGo 997 (1801), available at http://memory.loc.gov/cgi-binlampage?collId=llac&fiIeN ame=01 O/llac01 0.db&recNum=496.

88 UNIVERSITY OF TIlE Disnucl' OF COLUMBIA LAW REVIEWThe Founding Fathers, despite their best intentions, created conditions for Districtresidents that bear an uncomfortable resemblance to involuntary servitude.There exists in the District of Columbia a perpetual involuntary political servitudethat is imposed from above by Congress without the consent of the peopleand in violation of internationally recognized human rights and customary internationallaw. The citizens of the District of Columbia are compelled by law toperform all of the duties of citizenship, yet are denied, as if subjects, the right tohave any say in the making of those laws through duly elected representatives.And above all, they are denied the right to enjoy the dignity of a real republicanform of government, set irrevocably beyond the commands of Congress, in allcases whatsoever, except those measured by the necessity of a compelling nationalinterest, and the right to live free under true democracy.In the 20th century the U.S. Supreme Court informed the nation that discriminationwould no longer stand as a condition permissible in the states. By an act ofreason and courage it undid Plessy v. Ferguson, and vanquished a central injusticeleft standing for too long. 234 It reviewed a serious claim about the indignity imposedon a subjugated population.Our petition for leave to file an original action before Supreme Court on behalfof the District of Columbia requests that the Court vanquish a similar injusticeserving to subjugate a huge concentration of American citizens withoutrational basis, while doing incalculable damage to the nation. The Court shouldremedy a grievous infraction of basic rights so fundamental that they are in thisday and age universal. This is a cause that calls for relief -an end to a stingingdisenfranchisement and a final repudiation of an intolerable servitude that noother Americans face: the absence of genuine self-government and equal votingrightS. 235234 See Brown v. Bd. of Educ., 347 U.S. 483 (1954).235 See Lee A. Casey, The Constitution and the District of Columbia, Mar. 22,2007, available athttp://www.heritage.orglresearchllegalissues/wm1404.cfm (Some conservative lawyers view the District'sunique circumstances in a different light. Because of the District's unique character as thefederal city, neither the Framers nor Congress accorded the inhabitants the right to elect Members ofthe House of Representatives or the Senate. In exchange, however, the District's residents receivedthe multifarious benefits of the national capital. As Justice Joseph Story noted in Commentaries onthe Constitution of the United States, "there can be little doubt, that the inhabitants composing [theDistrict] would receive with thankfulness such a blessing, since their own importance would bethereby increased, their interests be subserved, and their rights be under the immediate protection ofthe representatives of the whole Union." In effect, the Framers believed that the residents were "virtually"represented in the federal interest for a strong, prosperous capital).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 892. No Alternative ForumThere is no alternative judicial forum, other than the U.S. Supreme Court, inwhich to try a case of this magnitude. 236 This case implicates the Fifty States inunconstitutional conduct, and may only be remedied by the Fifty States throughinjunctive relief by order of the V.S. Supreme Court. No other court in the landis capable of providing injunctive relief in such a broad civil action, involvingevery state legislator in each House and Senate of every State, except Nebraska?37If the District were to be compelled to litigate this in each of the FiftyStates, the District would likely face undue prejudice by the state courts. Further,it would be highly impractical and would not promote judicial economy. Moreover,state courts could not provide the District with an adequate remedy as, at aminimum, 38 states are required for ratification of a constitutional amendment.No one court could provide injunctive relief. Finally, the Supreme Court is theonly judicial forum empowered to supercede state sovereignty. It is the only judicialbody capable of enjoining the Fifty States to act constitutionally and to grantthe District relief in order to redress the constitutional infirmities and actual injuriesthe District of Columbia suffers. To redress the injury, the Fifty States wouldbe required to call state conventions in order to pass a constitutional amendmentthat would grant the District equal political rights, consistent with the states,under the V.S. Constitution. 238The Fifty States, in particular their state legislatures, would properly be thedefendants in this case because a causal connection can be established betweenthose state legislatures and the District of Columbia's absence of rights. Thosestate legislatures are directly responsible for the District's injury, which is actual,distinct and palpable, and therefore fairly traceable. Furthermore, state legislaturespossess all necessary constitutional powers to redress the District's injury. Agrant of injunctive relief by the V.S. Supreme Court to the District of Columbia isrequired to compel states to call state conventions for the purpose of passing aconstitutional amendment that would 1) treat the District of Columbia as if it236 Illinois v. City of Milwaukee, 406 U.S. 91, 93-94 (1972) (Original jurisdiction is honored"only in appropriate cases ... And the question of what is appropriate ... necessarily involves theavailability of another forum where there is jurisdiction over the named parties, where the issuestendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of ouroriginal jurisdiction so that our increasing duties with the appellate docket will not suffer.").237 Nebraska Legislature, http://nebraskalegislature.gov/aboutlhistory_unicameral.php (last visitedAugust 25, 2010) ("Nebraska's legislature is unique among all state legislatures in the nationbecause it has a single-house system.").238 U.S. CONST., art. V ("The Congress, whenever two thirds of both houses shall deem it necessary,shall propose amendments to this Constitution, or, on the application of the legislatures of twothirds of the several states, shall call a convention for proposing amendments, which, in either case,shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislaturesof three fourths of the several states, or by conventions in three fourths thereof, as the one or theother mode of ratification may be proposed by the Congress.").

90 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWwere a state, for most intents and purposes,239 or 2) grant the District of Columbiastatehood. 240For the purposes of standing, is the District's injury traceable to the state legislaturesof the Fifty States? This question is answered in the affirmative. Between1978 and 1985, only 16 state legislatures ratified the proposed D.C. voting rightsamendment, which would have provided the District with full and equal votingrights in Congress, both in the House of Representatives and in the U.S. Senate.241 34 state legislatures did not ratify the amendment, aborting any prayer ofpassing the amendment. 242To strengthen any District of Columbia claim that its injury is in fact fairlytraceable to the Fifty States, the District of Columbia would serve legal notice onthe States declaring its intention to file suit against them after 90 days. Legalnotice would be served should the respective States legislatures fail to take such239 D.C. Equal Constitutional Rights Amendment, TImothy Cooper, May 15,2001: A D.C. Billof Rights: The Constitutional Amendment Text: "For purposes of discussion, the language of anamendment for equal constitutional rights might read as follows:Section 1. All US citizens residing in the non-federal areas of the District of Columbia shall betreated as residents of a state for all constitutional intents and purposes, and shall enjoy those samerights, powers and privileges, including: equal representation in the House of Representatives underArticle 1; equal representation in the US Senate under the 17th amendment; the right to a republicanform of government under Article 4; the right to all powers and privileges under the 9th and 10thamendments; equal protection under the 14th amendment.Section 2. Congress shall limit its power to exercise its "exclusive legislation" over the District ofColumbia under Article 1, Section 8, paragraph 17 of the constitution to the following geographicalareas, except in the case of a compelling national interest: all federal buildings and properties, and theNational Park Service area; all foreign embassies and missions.Section 3. The Federal Height Act of 1910 shall remain in full force and effect.Section 4. All other federal laws shall apply to the District of Columbia, as if it was a state.Section 5. General services may be provided to the federal government by the government of theDistrict of Columbia on an as needed basis on such terms as are mutually satisfactory to the parties.The federal government shall have jurisdiction over and provide for the District of Columbia's courtsand correctional facilities until such time as the District becomes a state.Section 6. Nothing shall prevent the federal government from compensating the District of Columbiain the form of payment in lieu of taxes for revenues foregone as the seat of nationalgovernment.Section 7. The 23rd amendment shall be repealed concurrently with the passage of thisamendment.Section 8. Nothing in this amendment shall prohibit the District of Columbia from becoming astate in due course. At such time as the District becomes a state, this amendment shall become nulland void. The Congress shall have the power to enforce these articles by appropriate legislation."240 H.R. 51, 103d Congo (1993), available at http://www.thomas.gov/cgi-bin/bdquery/z?dl03:HR00051:@@@D&summ2=m&.241 H.RJ. Res. 554, 95th Congo (1978), available at http://www.sourcewatch.orglindex.php?title=Votin&-rights_in_the_DistriccoCColumbia#District_oCColumbia_ Votin&-Rights_Amendment.242 ALEXANDER HAMILTON, AN EXI'RESSION OF SlJl'J>ORT TO PROVIDE TilE DISTRICI' OF CO.LUMBIA WITII VOTING REPRESENTATION, reprinted in, TilE PAPERS OF ALEXANDER HAMII.TON at 189(Harold C. Sybeu & Jacob E. Cooke eds., Columbia University Press 1962) (1804).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 91steps as may be necessary to call into session a state convention for the purposeof passing a constitutional amendment that largely would treat the District ofColumbia as if it were a state, or make the non-federal areas of the District astate while preserving a discrete federal enclave over which Congress would continueto exercise exclusive jurisdiction in all cases whatsoever, as required by theConstitution. 243 Assuming in advance the Several States will rebuff the District'sappeal for them to call state conventions to pass such an amendment, the Districtcould then proceed to serve the States with legal notice, claiming violations ofcustomary international law under the Bill of Rights with a high degree of certaintythat their claim will meet the requirements to demonstrate standing: injury,causation, and redressability?44III. GROUNDS TO BE TREATED As A STATE UNDER AUTHORITY OFARTICLE UJ, SECTION 2 AND 28 U.S.C. SECTION 1251(A), WHICHPROVIDES FOR SUPREME COURT ORIGINAL JURISDICTIONOF SUITS BETWEEN THE SEVERAL STATESA. The District of Columbia Is Treated as If It Was a State Under 537 FederalStatutes, So Its Claim Should Be Heard Under Original JurisdictionIt would be an undue burden for the Plaintiff to prove that the District ofColumbia has sovereign immunity like the Fifty States when the issue the Plaintiffwould bring before the Court would not exist if the District of Columbia didhave sovereign immunity. Nevertheless, for all intents and purposes, other thanthe Constitutional claims that the Plaintiff would present to the Court, the Districtof Columbia is treated as a state in 537 federal statutes. 245243 Casey, supra note 235 (The question of the constitutionality of D.C. statehood under an actof Congress remains controversial. "Statehood is now the clear preference of District of Columbiavoting-rights advocates, but ... would, in any case ... require a constitutional amendment since anindependent territory, subject to the ultimate authority of Congress, was a critical part of the Framers'original design for an indestructible federal union of indestructible states.").244 U.S. CONST. art, III § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555,560-61 (1992) (Theplaintiff must have suffered an injury in fact -an invasion of a legally protected interest which is (a)concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second,there must be a causal connection between the injury and the conduct complained of -the injury hasto be fairly traceable to the challenged action of the defendant, and not the result of the independentaction of some third party not before the court. Third, it must be likely, as opposed to merely speculative,that the injury will be redressed by a favorable decision. The plaintiff bears the burden of establishingthese elements); See also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998)("[T]he Supreme Court has made clear that courts must resolve questions of standing before anyconsideration of the merits.").245 Jamin B. Raskin, Is This America? The District of Columbia and the Right to Vote,34 HARv.c.R.-c.L. L. REV. 39, 92 n.271 (1999) ("There are 537 federal statutes that treat the District of Columbiaas though it were a State for programmatic, governmental and constitutional purposes.").

92 UNIVERSITY OF TIlE DIS"IlUcr OF COLUMBIA LAW REVIEWThe Constitution requires that any case brought before the Supreme Court inoriginal jurisdiction be between one state and another state for the purposes oforiginal jurisdiction. 246 However, the District of Columbia is a de facto state,other than with respect to the limitations imposed on it as incorporated in themerits of the Plaintiff's claim. The District functions just as any other state. It hasits own executive, legislative, and judicial branches of government. It has its ownDistrict of Columbia Code. It even possesses its own National Guard. Further,the District is held to the same standards of governance, administration, and judicialcomportment as any of the Fifty States.Additionally, the District is subject to all of the permanent laws of the UnitedStates, as enumerated in the U.S. Code, as are the Fifty States?47 District ofColumbia citizens are in fact state citizens inasmuch as they:[S]hare all of the essential characteristics of citizens of the states. Like stateresidents but unlike territorial residents, they pay federal taxes, indeedmore per capita than most states. Like state residents but unlike territorialresidents, they vote for president and vice-president. District residents arecounted in the national census .... [They] were part of the original thirteenstates. They fight wars, are drafted into the military, and have lost manymen and women in foreign battles. They are treated like residents of thestates for federal diversity jurisdiction purposes. The principle of one person-onevote applies within the District to the reapportionment of the District'sCouncil. 248The only distinctions are that the District of Columbia does not enjoy theequal right to vote in Congress and Congress exercises plenary authority over theDistrict by virtue of Article I, Section 8, Clause 17 of the U.S. Constitution. Thesedissimilarities inform the merits of the District's complaint against the Fifty Statesand are the basis for its injuries.B. The Supreme Court Has Treated the District of Columbia as a StateFor constitutional purposes, the Supreme Court has treated the District of Columbiadirectly as a State. The Court held that the "courts of the District arebound, equally with courts of the states, to observe the command of the Full Faithand Credit Clause, wherever applicable," under the Full Faith and Credit Clauseof Article IV of the Constitution. 249246 28 U.S.C.S. § 1251 (2009).247 Published by the Office of the Law Revision Counsel of the U.S. House of Representatives.248 Raskin, supra note 243, at 55-56 (footnotes omitted).249 Loughran v. Loughran, 292 U.S. 216, 228 (1934).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 93C. The Supreme Court Has Upheld Congress' Authority to Treat the Districtof Columbia as If It Were a State For Limited Purposes; If CongressMay Treat the District as If It Were a State,So Too May the Supreme CourtThe Supreme Court has upheld Congress' right to tax the District of Columbia.250 The Constitution states: "[r]epresentatives and direct taxes shall be apportionedamong the several States which may be included within this Union. ,,251Despite the absence of any mention of the District in this clause, the Court heldthat direct taxation on the District was permissible due to its constitutional authorityover the District. 252The Supreme Court affirmed legislation extending Article III diversity jurisdictionto citizens of the District. 253 This was not always the case. For example,the Court denied District residents the right to bring diversity suits in federalcourt under Article III, which provides federal jurisdiction only to disputes "betweenCitizens of the several States.,,254 In Hepburn, District residents arguedthey were "a distinct political society, and ... therefore 'a state' according to thedefinitions of writers on general law. ,,255 The Court, rejecting that position, heldthat the term "state" under the Constitution means a member of the union. 256However, the Court conceded that "it is extraordinary that the courts of theUnited States, which are open to aliens, and to the citizens of every state in theunion, should be closed" to District residents, who are also citizens of the UnitedStates. 257By analogy, it would be extraordinary if the U.S. Supreme Court, which isopen to aliens suing under the Alien Tort Claims Act and the laws of nations andcustomary international law, and to the "States," which are composed of the citizensfrom every state in the union, under Original Jurisdiction, be "closed" to theDistrict of Columbia, which is composed of the "citizens of the United States" aswell, and have an extraordinary case regarding violations by the Fifty Statesunder customary international law that could and should be heard by the SupremeCourt under Original Jurisdiction.Under a Tidewater plurality, the Supreme Court affirmed that Congress hasthe power to treat the District as if it were a state for limited purposes affecting"only the mechanics of administering justice in our federation.,,258 So too should250 Loughborough v. Blake, 18 U.S. 317 (1820).251 [d. at 319.252 [d. at 325.253 Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1948).254 Hepburn v. Ellzey, 6 U.S. 445 (1805).255 [d. at 452.256 [d.257 [d. at 453.258 Nat'l Mut. Ins. Co., 337 U.S. at 585.

94 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWthe U.S. Supreme Court, in the interest of "administering justice in our federation,"treat the District of Columbia as if it were a State for the limited purposesof hearing the District's extraordinary claims under Original Jurisdiction. 259The Court need not reach a conclusion on the merits of the District of Columbia'scase in order to rule favorably on the question of jurisdiction. The Plaintiffsmerits arguments are separate and distinct from that of jurisdiction.IV. CAUSE OF ACTIONPlaintiff maintains a cause of action under 42 U.S.C.S. § 1983 because the SeveralStates and their legislative representatives have denied them the constitutionalright to equal representation in the national legislature of their owncountry as enjoyed under Article 1, Section II of the Constitution by the "peopleof the several states.,,26042 U.S.C.S. § 1983 reads as follows:Every person who, under color of any statute, ordinance, regulation, custom,or usage, of any State or Territory or the District of Columbia, subjects,or causes to be subjected, any citizen of the United States or otherperson within the jurisdiction thereof to the deprivation of any rights, privileges,or immunities secured by the Constitution and laws, shall be liable tothe party injured in an action at law, suit in equity, or other proper proceedingfor redress, except that in any action brought against a judicial officerfor an act or omission taken in such officer's judicial capacity, injunctiverelief shall not be granted unless a declaratory decree was violated or declaratoryrelief was unavailable. For the purposes of this section, any Act ofCongress applicable exclusively to the District of Columbia shall be consideredto be a statute of the District of Columbia. 261259 [d.260 U.S. CONST. art. I § 2.261 42 U.S.C. § 1983 (2006). There are two potential obstacles to the District's claim against theFifty States' legislators: the Eleventh Amendment and common-law official immunity. Any clash withthe Eleventh Amendment can be avoided by bringing suit against the legislators in their personal,rather than official, capacities. State officials can be sued personally for official acts without impedimentto state sovereignty because an official who violates federal law is considered to be acting withoutthe state's authority and, thus, is not entitled to share in the state's immunity. See, e.g., Ex parteYoung, 209 U.S. 123 (1908) ("If the act which the [official] seeks to enforce be a violation of theFederal Constitution, the officer ... comes into conflict with the superior authority of that Constitution,and he is in that case stripped of his official or representative character and is subjected in hisperson to the consequences of his individual conduct."). State sovereign immunity is easily avoided inthe District's claim, but the District may have more difficulty overcoming the legislators' common-lawimmunity.Although the Supreme Court has consistently applied common-law immunity as a bar to §1983actions against state legislators acting within the scope of their legitimate legislative power, it hasrecognized the potential for exceptions. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 378-79 (1951)("It is not necessary to decide here that there may not be things done, in the one House or the other,

THE DISTRICf OF COLUMBIA v. THE 50 STATES 95of an extraordinary character, for which the members who take part in the act may be held legallyresponsible. "). The District's claim is arguably such an exception for a number of reasons.First, the District's unique claim is easily distinguished from current common-law immunity jurisprudence.The courts have generally only considered the § 1983 claims of individuals or small groupsof citizens alleging frivolous, vague, and limited constitutional rights violations resulting from thelegitimate acts of their own state's legislators. See, e.g., [d. at 369 (upholding California state senators'immunity from citizen's §1983 claim alleging his contempt prosecution resulting from his refusal totestify before committee violated his First Amendment rights); National Ass'n of Social Workers v.Harwood, 69 F.3d 622 (9th Cir. 1998) (dismissing 1983 claim brought by Rhode Island non-profitorganizations against Speaker of Rhode Island House of Representatives and head doorkeeper allegingthat congressional policy banning lobbyists from House floor violated the First Amendment);Larson v. Senate of Pennsylvania, 152 F.3d 240 (3d Cir. 1998) (applying common-law immunity tostate judge's § 1983 claim that his impeachment violated various constitutional rights, despite evidencethat he awarded special treatment to campaign contributors, lied before grand jury, and obtainedprescription drugs using staff information); but see Dyer v. Abe, 138 F. Supp. 220, 224 (D. Haw. 1956)(allowing citizen's §1983 claim against state legislators alleging failure to reapportion legislative districtsfor 50 years despite drastic population shift violated citizens' right to due process and equalprotection of laws).In contrast, the District's claim involves the continuous and deliberate violation of the internationally-mandatedhuman rights of over 600,000 citizens, directly and solely the result of legislativeinaction on the part of all fifty States. Although the states' legislators do have the authority to proposeand ratify constitutional amendments, this power does not authorize them to withhold sovereignequality and basic civil liberty to an entire population without a legitimate purpose. The state legislators'refusal to propose and ratify a D.C. voting rights amendment can be considered either legislativelaziness or blatant discrimination, either of which is an abuse of legislative authority that falls outsidethe scope of common-law immunity. See Tenney, 341 U.S. at 382 (Douglas, J., dissenting) ("If a committeedeparts so far from its domain to deprive a citizens of a right protected by the Constitution, Ican think of no reason why it should be immune."). The District is not simply grasping at straws in anattempt to find a cause of action against the states' legislators, unlike many previous §1983 plaintiffswho alleged minor, temporary "injuries" of far less significance than §1983 was intended to address.See, e.g., Larson, 152 F.3d at 244. The District's claim alleges the violations of the very civil rights that§ 1983 was designed to address, chiefly the equal protection of the laws and the right to vote. Becausethese violations are far more serious and occur on a much larger scale than ever previously consideredby the courts, the current interpretation of common-law immunity should not be applied to bar theDistrict's claim.The Court's rationale behind its application of common-law immunity to §1983 actions is also notcompelling in the District's situation. Common-law immunity was developed to protect the integrityand efficiency of the legislative process by allowing legislators to perform their duties without fear ofliability for their official acts and preventing outside influence from overpowering the will of thevoters. Tenney, 341 U.S. at 373-74. Rather than allow the litigious influence of one individual toregulate legislative conduct, the Court has held that "self-discipline and the voters must be the ultimatereliance for discouraging or correcting such abuses." Id. at 378. This rationale fails with respectto the District's claim because District citizens have no authority over the Fifty States' legislatures andcannot use the threat of lost votes to influence the actions of individual legislators. Furthermore, thefact that District citizens have been continuously denied an equal voice in Congress for over 200 yearsproves that the citizens of the Fifty States themselves will not push for reform and legislative "selfdiscipline"cannot be counted on to correct the injustice. To achieve equality and enjoy the basic civilliberties mandated by international law, District citizens have no alternative to civil litigation againstthe state legislators, and the desired remedy will constitute only a minor, temporary interference withthe states' legislative function. This limited effect on the states' legislators is overwhelmingly out-

96 UNIVERSITY OF TI IE DISTRICr OF COLUMBIA LAW REVIEWUnder 42 U.S.C. § 1983, only persons are liable; a state is not subject to suit;however, an officer of the state may be sued in his "official capacity for prospectiveor injunctive relief[,]" notwithstanding the fact that a suit is in actuality acause of action against a governmental entity.262 "Despite this logical inconsisten(..)"the current state of the law is that a state may not be sued for damages, butmay be sued for declaratory or injunctive relief.,,263 In their individual capacities,employees of federal, state and local government "may be sued for damages, declaratoryor injunctive relief.,,264v. ARGUMENTA. Does the First Amendment Provide the Citizens of the District of ColumbiaWith Equal Representation in the Congress of the United StatesUnder the Ninth Amendment, Laws of Nations, andCustomary International Law?The District of Columbia claims that its citizens are denied the right of freedomof expression under the First Amendment 265 because they cannot voiceweighed by the States' unchecked, oppressive interference with the District's legislative process, andaffording immunity to the States' legislators seems wholly irrational.Finally, the application of common-law official immunity to all § 1983 claims can be challenged onthe grounds that it eviscerates the intended force of §1983 as a civil remedy and violates customaryinternational law. While §1983 was intended to provide citizens with a cause of action against officialswho violate their constitutional rights under the guise of state authority, the Court's interpretation ofcommon-law immunity has resulted in all but the lowliest of state and local government employeesenjoying absolute immunity from legal responsibility. See, e.g., National Ass'n of Social Workers, 69F.3d at 622 (granting common-law official immunity to head doorkeeper of state house of representatives).By severely limiting the reach of §1983 liability, common-law immunity leaves many potentialplaintiffs without an effective remedy, in violation of several international covenants, treaties, anddeclarations to which the United States is a party. See, e.g., International Covenant on Civil andPolitical Rights, art. 2, §3(a) ("[e]ach State Party to the present Covenant undertakes to ensure thatany person whose rights or freedoms as herein recognized are violated shall have an effective remedy,notwithstanding that the violation has been committed by persons acting in an official capacity"); UNUniversal Declaration of Human Rights, art. 8 ("[e]veryone has the right to an effective remedy bythe competent national tribunals for acts violating the fundamental rights granted him by the constitutionor by law"). The Court's interpretation of common-law immunity prevents § 1983 from being aneffective remedy, as mandated by customary international law, and should thus be re-evaluated. TheDistrict's claim provides a timely opportunity for such consideration." Source: Memo dated July 13,2010, from Stacey Rohrs to TImothy Cooper, Executive Director, World rights262 Ian D. Forsythe, A Guide to Civil Rights Liability Under 42 U.S.c. § 1983, (footnotes omitted),available at http://www.constitution.orglbrief/forsythe_42-1983.htm.263 Forsythe, supra note 262.264 Forsythe, supra note 262 ("Government officials may be sued in their individual capacity.Such a suit does not represent a suit against the government entity for which he is associated. Thefailure to identify in which capacity a defendant is being sued is a critical pleading defect.") (footnotesomitted).265 The First Amendment reads: "Congress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;

THE DISTRICf OF COLUMBIA v. THE 50 STATES 97their opinions on policies regarding any and all national issues of solemn importin the greatest deliberative bodies in the land; the U.S. House of Representativesand U.S. Senate. They are prohibited the fundamental right to equal representationthat is not only a constitutional right but also a right secured to them byvirtue of customary international law and the laws of nations, as exhaustivelydescribed. For the entire 208-year history of the District of Columbia, it has sufferedall manner of injury sustained from the denial of full and equal congressionalvoting rights, as evidenced by the fact that the District residents have beensegregated from the affairs of the nation and never once been afforded the rightto voice their opinions, participate in the debate over and passage of vital nationallegislation affecting their lives, economically, politically, and otherwise,even from time to time affecting whether they live or die, by leading them intoharm's way. Never has a single citizen of the District of Columbia ever had theirvoice heard on the floor of the U.S. Senate or had an effective vote cast on theirbehalf in the U.S. House of Representatives on any legislation since 1801, censoringtheir opinions in the wells of Congress, silencing their voices while others areheard and actions taken on their behalf, curtailing their right to speak in thehighest chambers of government where it most matters when it most matters.On all matters of foreign policy, on deliberations of war and peace, on theratification of international treaties, on the selection of Supreme Court Justices,on impeachment proceedings, on national health care, on tax policy, on education,on crime, on civil rights, on all federal statutory laws whatsoever, the Districtof Columbia may not speak.This is materially demonstrated by virtue of the fact that no voting representativeof the District of Columbia in the United States Congress has ever had theunimpeded right to vote on any of the law passed by Congress and contained inthe United States Code,266 which embodies all the laws of the United States andrepresents the full expression of the voice of the people of the Fifty States of theUnited States, except those living as citizens in the District of Columbia, in violationof their First Amendment rights and customary international law.The case law on voting rights as a right retained by them under the FirstAmendment is explicit: "[n]o right is more precious in a free country than that ofhaving a voice in the election of those who make the laws under which, as goodor the right of the people peaceably to assemble, and to petition the Government for a redress ofgrievances. "266 United States Code Annotated, http://wesuhomson.com/productdetaiIl3198122048097/productdetail.aspx?promcode=6oo582C43556&promtype=internal# (last visited Dec. 1, 2010). (The2009 edition of the United States Code Annotated® (Copyright 1927-2009) is 378 volumes inhardback. The list price is $6791. According to West Legal Products and Services, "[tJhis set containsall the laws, as classified to the United States Code, of a general and permanent nature enacted byCongress (Titles 1-50 and the Constitution), plus their judicial constructions .... [and iJt mirrors theofficial text of the United States Code published by the Office of the Law Revision Counsel of theHouse of Representatives.")

98 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWcitizens, we must live .... [and o]ther rights, even the most basic, are illusory ifthe right to vote is undermined.,,267 Voting is a fundamental right.268 "[T]he rightto vote in state elections is one of the rights historically 'retained by the people'by virtue of the Ninth Amendment as well as included in ... First Amendmentrights.,,269 "The right to vote derives from the right of association that is at thecore of the First Amendment, protected from state infringement by the FourteenthAmendment.,,27o While the 14th Amendment does not apply to the District,the Fifth Amendment does. In Bolling v. Sharpe,271 which was handed downas a companion decision with Brown v. Board of Education,2n and ended segregationin District of Columbia schools, the Supreme Court held that:[While the Fifth Amendment] does not contain an equal protection clause,as does the Fourteenth Amendment ... the concepts of equal protectionand due process, both stemming from our American ideal of fairness, arenot mutually exclusive. The "equal protection of the laws" is a more explicitsafeguard of prohibited unfairness than "due process" of law, and, therefore,we do not imply that the two are always interchangeable phrases. But,as this Court has recognized, discrimination may be so unjustifiable as to beviolative of due process. 273Without the right to speech on the floor of the V.S. House of Representativesand the V.S. Senate through elected representatives, there can be no right to freespeech for the citizens of the District of Columbia, no right to the free expressionof the will of the people, the very essence of democratic government and libertyin a democracy.To resolve constitutional challenges to election laws, a balancing test is applied.First, the Court considers the character and magnitude of the asserted injuryto the rights protected by the First and Fourteenth Amendments, or in thecase of the District of Columbia, the Fifth Amendment. Then the Court mustidentify and evaluate the precise interests put forward by the State as justificationsfor the burden imposed by the rule that the party claims infringes on aconstitutionally derived right. Finally, the Court must determine the legitimacyand strengths of each of the first two interests, as well as the "extent to whichthose interests make it necessary to burden the plaintiff's rights. ,,274267 Lubin v. Panish, 415 U.S. 709 (1974) (Douglas, J., concurring) (quoting Wesberry v. Sanders,376 U.S. 1 (1964).268 [d.269 [d. at 722.270 [d.271 Bolling v. Sharpe, 347 U.S. 497 (1954).272 Brown v. Bd. of Educ., 347 U.S. 483 (1954).273 Bolling, 347 U.S. at 499.274 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 99The magnitude of the infringement on the rights of the citizens of the Districtof Columbia is breathtaking. Over half a million people have been purposefullydenied the right to the free expression of their will through the voice of their dulyelected representatives in both houses of the United States Congress since 1801.They have been gagged and muzzled by state legislatures that would not grantthem this right, though they had been repeatedly asked. Not only are they prohibitedfrom expressing their views on national legislation and participating innegotiations to pass or vanquish proposed legislation, when it is passed withouttheir consent, they are then subject to this law and compelled to obey it underpenalty of law. Representation is equal to speech. There can be no free speechwithout the right to elect representatives to the United States Congress, who inturn speak for them and express their will. There can be no free expression of thepeople in a representative democracy without all of the people enjoying the fulland equal right to speech, which under the First Amendment may not beabridged.There is no reasonable basis on which to deny the citizens of the District ofColumbia equal representation in Congress as well as the right to genuine selfgovernance.There is no objective and reasonable governmental purpose to beserved by curtailing those rights. Any governmental justification for doing so haslong since come and gone. The historical rationale cannot be imposed on a modernDistrict of Columbia. The disenfranchisement of the District of Columbia isno longer justified to protect a fledging national government perched on thewings of a rising new experiment in federalism.In Statehood Solidarity Committee v. United States of America, District of Columbiacitizens argued that:[T]he appropriate test to determine the existence of discrimination ... iswhether differential treatment is proved to be "reasonable" and that unreasonablenessor injustice does not depend on the intent or motive of theparty charged with discriminatory treatment .... [A]pplying this test in thecircumstances of the present case leads to the result that the United StatesGovernment imposes an unjustified and arbitrary distinction upon the peopleof the District of Columbia which lacks a legitimate aim and an objectivejustification, and that this differential treatment bears no relationship ofproportionality between the means employed and the aim sought to be realized.To the contrary, the Petitioners claim that the differential treatment isdetrimental to the residents of the District of Columbia, and cannot beproperly justified by reference to the arguments of the framers of the U.S.Constitution at the time of the forming of the Republic over 200 years agorelating to the physical security of the federal seat of government. The Petitionersnote in this regard that according to the Department of Defense, asof February 28,1994 there were 1,607,844 men and women employed by the

100 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWArmed Services of the United States of America. In light of the U.S. government'spresent-day military capabilities, the Petitioners maintain that itis impossible to imagine circumstances under which the men, women andchildren of the District of Columbia could conceivably pose a viable threatto the seat of government. 275That argument is as pertinent today as in 1994. There remains no legitimatejustification on the part of the federal government to deny the District of Columbiaequal congressional voting rights and full local autonomy. The grand politicalcompromise of 1783 may have assisted in forging the bonds of the nation, but thefull enfranchisement of the District of Columbia will not undo those bonds, whichhave held fast for over 200 years. The Republic is secure and well capable ofexpanding democracy, without fear of injury, by giving a voice to citizens of itscapital city.Moreover, the First Amendment and customary international law require thisbe done. The United States is the only identifiable country in the world thatdisenfranchises the citizens of its capital city, denying free speech by curtailingtheir right to representation in the national legislature. Furthermore, internationalscrutiny of this prohibition on voting rights in America's capital city citizenshas become an international embarrassment for the United States and hasbegun to hamper its foreign policy, to the detriment of all the American people.The lasting disenfranchisement of the capital city does the nation harm, corrodingits dignity, tarnishing its reputation, undermining its seriousness of purpose. Acountry that seeks to light the world's path to democracy must correct its ownundemocratic infirmities.In light of the stability of the federal republic in the 21st Century and theRepublic's manifest capability of defending itself, arguendo, should the need arisefrom the citizens of the District of Columbia, the requirements of the balancingtest have been met. The Fifty States, which are bound by the Constitution, arebound to rectify this anomalous policy under the First and Fifth Amendments,which is also violative of the laws of nations and therefore customary internationallaw, because it has been demonstrated that the "general and consistent"practice of nations, followed from "a sense of legal obligation" (opinio juris), is toprovide for that universal right to be represented in the national legislature ofone's own country and to vote, regardless of where one lives, is binding on theUnited States and the Fifty States, and therefore may be compelled by order ofinjunctive relief. 276275 See REPORT N° 98/03, CASE 11.204, 'iI'lI 42, 43 (Dec. 29, 2003), available at http://www.cidh.org/annualrep/2003eng/USA.11204.htm.276 Riddell v. Fuhrman, 233 Mass. 69 (Mass. 1919) (The court recognized that "[i]nternationallaw is a part of the law of the United States, and must be administered whenever involved in causespresented for determination, though in a state court.").

THE DISTRICf OF COLUMBIA v. THE 50 STATES101B. Are District of Columbia Citizens Guaranteed the Right to EqualRepresentation in the Congress of the United States by Virtue of RightsRetained Under the Ninth Amendment and the Law ofNations and Customary International Law?The Ninth Amendment guarantees rights not enumerated by the Framers ofthe U.S. Constitution. 277 Chief among these are the laws of nations, which incorporatethe rights of individuals. These rights apply to all the people of the UnitedStates because U.S. courts have recognized that international law "is part of thelaw of the United States."278 The laws of nations are defined in federal commonlaw as customary international law, which is held to be binding on U.S. Courts,and which, arguably, provides for all citizens of all countries the right to enjoyequal representation in their own national legislature, as articulated under theplain language of internationally recognized human rights as well as customaryinternational law. Case law in U.S. courts enumerates the right to vote as well.A citizen's constitutional rights can hardly be infringed on simply because amajority of population chooses that they be. 279 The right to vote is a civil rightguaranteed by the Constitution, as the Supreme Court "re-emphasized in Oregonv. Mitchell.,,280 "Rights, not explicitly mentioned in the Constitution, have attimes been deemed so elementary to [the United States'] way of life that theyhave been labeled as basic rights.,,281 "[T]he Ninth Amendment shows a belief ofthe Constitution's authors that fundamental rights exist that are not expresslyenumerated in the first eight amendments and an intent that the list of rightsincluded there not be deemed exhaustive. ,,282The Ninth Amendment indicates that not all liberties and rights are mentionedin the first eight amendments, and that is relevant to show that other fundamentalrights exist. 283 To decide which rights are fundamental, judges "must look to the'traditions and (collective) conscience of our people' to determine whether aprinciple is 'so rooted (there) ... as to be ranked as fundamental.' ,,284 The judgemust consider "whether a right involved 'is of such a character that it cannot bedenied without violating those fundamental principles of liberty and justice whichlie at the base of all our civil and political institutions.' ,,285 Equal congressional277 U.S. CONST. amend. IX reads: "The enumeration in the Constitution, of certain rights, shallnot be construed to deny or disparage others retained by the people."278 See Forsythe, supra note 262.279 Palmer v. Thompson, 403 U.S. 217, 235 (1971) (Douglas, J., dissenting).280 [d. at 234 (citing Or. v. Mitchell, 400 U.S. 112 (1970».281 [d. at 233 (alteration in original).282 [d. at 237 (quoting Griswold v. Connecticut, 381 U.S. 479, 492 (1965) (Goldberg, J.,concurring) ).283 Griswold v. Connecticut, 381 U.S. 479, 492 (1965) (Goldberg, J., concurring).284 [d. at 493 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934».285 [d. (quoting Powell v. Alabama, 287 U.S. 45, 67 (1932».

102 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWvoting is one such right. Voting rights form the basis of democracy, without whichthere can be no equality; only tyranny, without the hope of the administration ofjustice and a life of liberty. That is why the right to representation "on generalterms of equality,,286 is recognized as a rule of customary international law and aright retained by the people under the Ninth Amendment, making it, Plaintiffsubmits, a right enforceable by the U.S. Supreme Court in the case of The Districtof Columbia v. The 50 States. 287 VI. PRAYERWHEREFORE, the District of Columbia prays for the following relief:1. Declare the District of Columbia's lack of full and equal congressional votingrights unconstitutional under the First and Ninth Amendments and customaryinternational law and grant it injunctive relief;2. Declare the District of Columbia's lack of full and equal congressional votingrights unconstitutional under the First and Ninth Amendments and customaryinternational law and grant it states' rights through the passage of a constitutionalamendment that would treat the District as if it were a state, for most intents andpurposes;2883. Declare District of Columbia's lack of full and equal congressional votingrights unconstitutional under the First and Ninth Amendments and customaryinternational law and grant D.C. statehood by constitutional amendment;289 and4. For such further and other relief to be granted as the Court may deem just andproper.VII.U.S. SUPREME COURT DECISIONS INCORPORATINGINTERNATIONAL AND CUSTOMARY LAWIf a case is made in the Supreme Court that the right to vote in the nationallegislature is an enforceable right secured to the citizens of the District of Columbiaunder the First and Ninth Amendments as well as customary internationallaw, a brief overview of three important U.S. cases relating to the laws of nationsas customary law provides an indication of how the majority on the Court mayrespond.286 Statehood Solidarity Committee v. United States, REPORT N° 98/03, CASE 11.204 (Dec.29, 2003) (Recommendation of the Inter-American Commission to the United States of Americaregarding the residents of the District of Columbia: "Provide the Petitioners with an effective remedy,which includes adopting the legislative or other measures necessary to guarantee to the Petitionersthe effective right to participate, directly or through freely chosen representatives and in generalconditions of equality, in their national legislature.").287 Supra note 243.288 Supra note 237.289 Supra note 238.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 103The first case to incorporate customary international law into U.S. law was ThePaquete Habana. 290 The U.S. Supreme Court held that:International law is part of our law, and must be ascertained and administeredby the courts of justice of appropriate jurisdiction as often as questionsof right depending upon it are duly presented for their determination.For this purpose, where there is no treaty and no controlling executive orlegislative act or judicial decision, resort must be had to the customs andusages of civilized nations, and, as evidence of these, to the works of juristsand commentators who by years of labor, research, and experience havemade themselves peculiarly well acquainted with the subjects of which theytreat. Such works are resorted to by judicial tribunals not for the speculationsof their authors concerning what the law ought to be, but for trustworthyevidence of what the law really is. 291The second case was Filartiga v. Pefia-Irala. 292 In 1980, The Paquete Habanawas cited in Fildrtiga v. Pefia-Irala, a case brought by a torture victim, not a citizenof the United States, under customary international law. The Court held"that deliberate torture perpetrated under color of official authority violates universallyaccepted norms of the international law of human rights, regardless ofthe nationality of the parties. ,,293 The Court went on to say that "Habana is particularlyinstructive ... [because] it held that the traditional prohibition againstseizure of an enemy's coastal fishing vessels during wartime, a standard that beganas one of comity only, had ripened over the preceding century into 'a settledrule of international law' by 'the general assent of civilized nations.' ,,294 Thus it isclear that courts must interpret international law not as it was in 1789, but as ithas evolved and exists among the nations of the world today.295Among the sources of customary law cited by the Court in Filartiga v. Penalralawas the United Charter, defined as a treaty by the Court, as a source ofcustomary internationallaw?96 It noted that Article 55 of the Charter:290 The Paquete Habana, 175 U.S. 677 (1900).291 [d. at 700 (citing Hilton v. Guyot, 159 U.S. 113 (1895».292 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).293 [d. at 878.294 [d. at 881 (citing The Paquete Habana, 175 U.S. 677 (1900».295 Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964) (The requirement that a rulecommand the "general assent of civilized nations" to become binding upon them all is a stringent one.Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules uponothers, in the name of applying international law. The Court declined to pass on the validity of theCuban government's expropriation of a foreign-owned corporation's assets, noting the sharply conflictingviews on the issue propounded by the capital-exporting, capital-importing, socialist and capitalistnations).296 Filartiga. 630 F.2d 876.

104 UNIVERSITY OF TilE DISTRICr OF COI.UMBlA LAW REVIEW[M]akes it clear that in this modern age a state's treatment of its own citizensis a matter of international concern. [The Charter] provides: "With aview to the creation of conditions of stability and well-being which are necessaryfor peaceful and friendly relations among nations ... the UnitedNations shall promote ... universal respect for, and observance of, humanrights and fundamental freedoms for all without distinctions as to race, sex,language or religion." And further: "[a]U members pledge themselves totake joint and separate action in cooperation with the Organization for theachievement of the purposes' set forth in Article 55.,,297The Court stated that:These U.N. declarations are significant because they specify with great precisionthe obligations of member nations under the Charter. Since theiradoption, "[m]embers can no longer contend that they do not know whathuman rights they promised in the Charter to promote." Moreover, a U.N.Declaration is, according to one authoritative definition, "a formal and solemninstrument, suitable for rare occasions when principles of great andlasting importance are being enunciated." Accordingly, it has been observedthat the Universal Declaration of Human Rights "no longer fits intothe dichotomy of 'binding treaty' against 'non-binding pronouncement,' butis rather an authoritative statement of the international community." Thus,a Declaration creates an expectation of adherence, and "insofar as the expectationis gradually justified by State practice, a declaration may by custombecome recognized as laying down rules binding upon the States."Indeed, several commentators have concluded that the Universal Declarationhas become, in toto, a part of binding, customary internationallaw. 298The third case to incorporate customary international law into U.S. law wasSosa v. Alvarez-Machain. 299 In 2004, after Alvarez-Machain was acquitted forkidnapping and torturing a DEA agent in Mexico, he sued the United States forfalse arrest under the Federal Tort Claims Act (FTCA).3oo The act waives sovereignimmunity in suits for personal injury "caused by the negligent or wrongfulact or omission of any employee of the Government while acting within the scopeof his office or employment.,,301 Additionally, Alvarez sued Sosa for violating thelaws of nations under the Alien Tort Statute (ATS), a 1789 law giving districtcourts "original jurisdiction of any civil action by an alien for a tort only, committedin violation of the law of nations. ,,302 The FTCA was dismissed in District297 [d. at 881.298 [d. at 883 (citations omitted).299 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).300 [d. at 698.301 [d. (citation omitted).302 [d. at 698-99 (citation omitted).

THE DISTRICf OF COLUMBIA v. THE 50 STATES 105Court, but Alvarez was awarded summary judgment and damages on the ATSclaim.303 The Ninth Circuit affirmed the ATS judgment, and reversed the lowercourt's dismissal of Alvarez-Machain's FfCA claim. 304 Of relevance are the historicalprecedents the Supreme Court used to justify dismissal of Alvarez's claim.Justice Souter delivered the opinion of the Court, which reflected the majority'sthinking on the application of the laws of nation to domestic cases, and thestandard of proof the Court requires for customary international law violations.305 "[W]e think courts should require any claim based on the present-daylaw of nations to rest on a norm of international character accepted by the civilizedworld and defined with a specificity comparable to the features of the 18thcenturyparadigms we have recognized.,,306 The Court went on to say that:Now, however, in most cases where a court is asked to state or formulate acommon law principle in a new context, there is a general understandingthat the law is not so much found or discovered as it is either made orcreated. Holmes explained famously in 1881 that "in substance the growthof the law is legislative ... [because t]he very considerations which judgesmost rarely mention, and always with an apology, are the secret root fromwhich the law draws all the juices of life. I mean, of course, considerationsof what is expedient for the community concerned." One need not acceptthe Holmesian view as far as its ultimate implications to acknowledge that ajudge deciding in reliance on an international norm will find a substantialelement of discretionary judgment in the decision. 307Further:[W]e now tend to understand common law not as a discoverable reflectionof universal reason but, in a positivistic way, as a product of human choice.And we now adhere to a conception of limited judicial power first expressedin reorienting federal diversity jurisdiction that federal courts haveno authority to derive "general" common law.Whereas Justice Scalia sees these developments as sufficient to close thedoor to further independent judicial recognition of actionable internationalnorms, other considerations persuade us that the judicial power should beexercised on the understanding that the door is still ajar subject to vigilantdoorkeeping, and thus open to a narrow class of international norms today.Erie did not in terms bar any judicial recognition of new substantive rules,no matter what the circumstances, and post-Erie understanding has identi-303 Jd. at 699.304 Jd.305 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).306 Id. at 725.307 Id. at 725-26 (citation omitted).

106 UNIVERSITY OF THE DISTIUCr OF COLUMBIA LAW REVIEWfied limited enclaves in which federal courts may derive some substantivelaw in a common law way. For two centuries we have affirmed that thedomestic law of the United States recognizes the law of nations. It wouldtake some explaining to say now that federal courts must avert their gazeentirely from any international norm intended to protect individuals.We think an attempt to justify such a position would be particularly unconvincingin light of what we know about congressional understandingbearing on this issue lying at the intersection of the judicial and legislativepowers. The First Congress, which reflected the understanding of the framinggeneration and included some of the Framers, assumed that federalcourts could properly identify some international norms as enforceable ....We think it would be unreasonable to assume that the First Congress wouldhave expected federal courts to lose all capacity to recognize enforceableinternational norms simply because the common law might lose some metaphysicalcachet on the road to modem realism .... 308Moreover:While we agree with Justice Scalia to the point that we would welcomeany congressional guidance in exercising jurisdiction with such obvious potentialto affect foreign relations, nothing Congress has done is a reason forus to shut the door to the law of nations entirely. It is enough to say thatCongress may do that at any time (explicitly, or implicitly by treaties orstatutes that occupy the field) just as it may modify or cancel any judicialdecision so far as it rests on recognizing an international norm as such.309And finally:Whatever the ultimate criteria for accepting a cause of action ... we arepersuaded that federal courts should not recognize private claims underfederal common law for violations of any international law norm with lessdefinite content and acceptance among civilized nations than the historicalparadigms familiar when § 1350 was enacted. And the determinationwhether a norm is sufficiently definite to support a cause of action should(and, indeed, inevitably must) involve an element of judgment about thepractical consequences of making that cause available to litigants in the federalcourts.Thus, Alvarez's detention claim must be gauged against the current stateof international law, looking to those sources we have long, albeit cautiously,recognized. "[W]here there is no treaty, and no controlling executiveor legislative act or judicial decision, resort must be had to the customs308 [d. at 729-30 (footnotes omitted) (citations omitted).309 [d. at 731.

THE DISTRICf OF COLUMBIA v. THE 50 STATES 107and usages of civilized nations; and, as evidence of these, to the works ofjurists and commentators, who by years of labor, research and experience,have made themselves peculiarly well acquainted with the subjects of whichthey treat. Such works are resorted to by judicial tribunals, not for the speculationsof their authors concerning what the law ought to be, but for trustworthyevidence of what the law really is.,,310In conclusion, the Sosa court uses the same criterion found in the Restatement toestablish violations of customary international law.A. The Associate Justices of the U.S. Supreme Court on theUse of Foreign Law in U.S. CasesWhat are the attitudes of past and current Associate Justices of the U.S. SupremeCourt regarding the use of foreign law in U.S. cases? In recent years, sixSupreme Court Justices have invoked foreign authorities, either delivering orjoining in opinions, citing foreign law. In 2003, former Justice Sandra DayO'Connor stated that decisions of other countries courts could be persuasive authorityin U.S. courts and that:[N]o institution of government can afford to ignore the rest of the world.... Conclusions reached by other countries and by the international community,although not formally binding upon our decisions, should at timesconstitute persuasive authority in American courts-what is sometimescalled "transjudicialism." American courts have not, however, developed asrobust a transnational jurisprudence as they might. Many scholars have documentedhow the decisions of the Court on which I sit have had an influenceon the opinions of foreign tribunals. One scholar has even remarkedthat: "When life or liberty is at stake, the landmark judgments of the SupremeCourt of the United States, giving fresh meaning to the principles ofthe Bill of Rights, are studied with as much attention in New Delhi or Strasbourgas they are in Washington, D.C., or the State of Washington, orSpringfield, Illinois."This reliance, however, has not been reciprocal. There has been a reluctanceon our current Supreme Court to look to international or foreign lawin interpreting our own Constitution and related statutes. While ultimatelywe must bear responsibility for interpreting our own laws, there is much tobe learned from other distinguished jurists who have given thought to thedifficult issues we face here. 31 )310 Id. at 732-34 (quoting The Paquete Habana, 175 U.S. 677 (1900».311 Remarks by Sandra Day O'Connor, Associate Justice, Supreme Court of the United Statesat the Southern Center for International Studies, Atlanta, Georgia, October 28, 2003.

108 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWJustice Stephen Breyer, dissenting from the denial of certiorari in Knight v.Florida and Moore v. Nebraska, both 8th amendment cases involving petitionerswho spent nearly twenty years or more on death row, wrote that he found decisionsby foreign courts "useful" in interpreting the U.S. Constitution. 312In Thompson v. Oklahoma, Justice John Paul Stevens, joined by Justices Brennan,Marshall, and Blackmun, held that the 8th Amendment prohibition on"cruel and unusual punishment" was applicable to the States under the 14thAmendment, forbidding the application of the death penalty on a minor who was312 Available at http://fedbbs.access.gpo.gov/librarylsc_99/989741d.pdf. ("A growing number ofcourts outside the United States -courts that accept or assume the lawfulness of the death penalty- haveheld that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman,degrading, or unusually cruel. In Pratt v. Attorney General of Jamaica for example, the Privy Councilconsidered whether Jamaica lawfully could execute two prisoners held for 14 years after sentencing.The Council noted that Jamaican law authorized the death penalty and that the United Nations Committeeon Human Rights has written that 'capital punishment is not per se unlawful under the[Human Rights] Covenant.' But the Privy Council concluded that it was an 'inhuman act to keep aman facing the agony of execution over a long extended period of time,' and the delay of 14 years was'shocking,'. It held that the delay (and presumptively any delay of more than five years) was 'inhumanor degrading punishment or other treatment' forbidden by Jamaica's Constitution unless 'due entirelyto the fault of the accused.'The Supreme Court of India has held that an appellate court, which itself has authority to sentence,must take account of delay when deciding whether to impose a death penalty. A condemnedprisoner may ask whether it is 'just and fair' to permit execution in instances of '[p]rolonged delay.'The Supreme Court of Zimbabwe, after surveying holdings of many foreign courts, concluded thatdelays of five and six years were 'inordinate' and constituted 'torture or ... inhuman or degradingpunishment or other such treatment.' And the European Court of Human Rights, interpreting theEuropean Convention on Human Rights, noted the convention did not forbid capital punishment.But, in the Court's view, the convention nonetheless prohibited the United Kingdom from extraditinga potential defendant to the Commonwealth of Virginia-in large part because the six-to-eight yeardelay that typically accompanied a death sentence amounts to 'cruel, inhuman, [or] degrading treatmentor punishment' forbidden by the convention.Not all foreign authority reaches the same conclusion. The Supreme Court of Canada, for example,held that Canadian constitutional standards, though roughly similar to those of the EuropeanConvention on Human Rights, did not bar extradition to the United States of a defendant facing thedeath penalty. And the United Nations Human Rights Committee has written that a delay of 10 yearsdoes not necessarily violate roughly similar standards set forth in the Universal Declaration of HumanRights. Given the closeness of the Canadian Court's decision (4 to 3) and language that the UnitedNations Human Rights Committee used to describe the ten-year delay ("disturbingly long"), onecannot be certain what position those bodies would take in respect to delays of 19 and 24 years.Obviously this foreign authority does not bind us. After all, we are interpreting a 'Constitutionfor the United States of America.' Nonetheless .... this Court has long considered as relevant andinformative the way in which foreign courts have applied standards roughly comparable to our ownconstitutional standards in roughly comparable circumstances .... Willingness to consider foreignjudicial views in comparable cases is not surprising in a Nation that from its birth has given a 'decentrespect to the opinions of mankind.'In these cases, the foreign courts I have mentioned have considered roughly comparable questionsunder roughly comparable legal standards. Each court has held or assumed that those standardspermit application of the death penalty itself. Consequently, I believe their views are useful eventhough not binding." (citations omitted».

THE DISTRICf OF COLUMBIA v. THE 50 STATES 109fifteen years old at the time of his crime. 313 In his majority opinion, Justice Stevens,writing on behalf of his colleagues, said "[t]he conclusion that it would offendcivilized standards of decency to execute a person who was less than 16years old at the time of his or her offense is consistent with the views that havebeen expressed by respected professional organizations, by other nations thatshare our Anglo-American heritage, and by the leading members of the WesternEuropean community.,,314 Justice Stevens also references three major humanrights treaties that "explicitly prohibit juvenile death penalties.,,315More recently in Lawrence v. Texas, a landmark opinion creating a constitutionalright to homosexual sodomy, Justice Kennedy rejected the controllingpoints of Bowers v. Hardwick, relying in part on a decision of the EuropeanCourt of Human Rights in his majority opinion. Justice Kennedy reasoned that:To the extent Bowers relied on values shared with a wider civilization, itshould be noted that the reasoning and holding in Bowers have been rejectedelsewhere. The European Court of Human Rights has followed notBowers but its own decision in Dudgeon v. United Kingdom. Other nations,too, have taken action consistent with an affirmation of the protected rightof homosexual adults to engage in intimate, consensual conduct. There hasbeen no showing that in this country the governmental interest in circumscribingpersonal choice is somehow more legitimate or urgent. The doctrineof stare decisis essential to the respect accorded to the judgments ofthe Court and to the stability of the law. It is not, however, an inexorablecommand. 316In a concurring opinion in Grutter v. Bollinger, a case upholding a law school'sminority preferences in admissions, Justice Ginsberg, joined by Justice Breyer,invoked the language of the International Convention on the Elimination of AllForms of Racial Discrimination:The Court's observation that race-conscious programs "must have a logicalend point" accords with the international understanding of the office of affirmativeaction. The International Convention on the Elimination of AllForms of Racial Discrimination, ratified by the United States in 1994, endorses"special and concrete measures to ensure the adequate development313 Thompson v. Oklahoma, 487 U.S. 815 (1988).314 [d. at 830 ("Although the death penalty has not been entirely abolished in the United Kingdomor New Zealand (it has been abolished in Australia, except in the State of New South Wales,where it is available for treason and piracy). in neither of those countries maya juvenile be executed.The death penalty has been abolished in West Germany, France. Portugal, The Netherlands. and all ofthe Scandinavian countries, and is available only for exceptional crimes such as treason in Canada,Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.").315 [d. at 831 n.34.316 Lawrence v. Texas, 539 U.S. 558 (2003).

110 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWand protection of certain racial groups or individuals belonging to them, forthe purpose of guaranteeing them the full and equal enjoyment of humanrights and fundamental freedoms." But such measures, the Convention instructs,"shall in no case entail as a consequence the maintenance of unequalor separate rights for different racial groups after the objectives forwhich they were taken have been achieved. ,,)17In Roper v. Simmons, Justice Kennedy delivered the majority opinion of thecourt. 318 Justice Kennedy stated that "[i]t is proper that we acknowledge theoverwhelming weight of international opinion against the juvenile death penalty.... The opinion of the world community, while not controlling on our outcome,does provide respected and significant confirmation for our own conclusions.,,319Justice Kennedy goes on to say that "[i]t does not lessen our fidelity to the Constitutionor our pride in its origins to acknowledge that the express affirmation ofcertain fundamental rights by other nations and peoples simply underscores thecentrality of those same rights within our own heritage of freedom. ,,320In Hamdan v. Rumsfeld, the Court's most recent application of internationallaw, Justice Stevens invoked portions of the Geneva Convention (Ill) Relative tothe Treatment of Prisoners of War, Aug. 12, 1949, [1955J and customary internationallaw:Inextricably intertwined with the question of regular constitution is theevaluation of the procedures governing the tribunal and whether they afford"all the judicial guarantees which are recognized as indispensable bycivilized peoples" .... [T]his phrase is not defined in the text of the GenevaConventions. But it must be understood to incorporate at least the barest ofthose trial protections that have been recognized by customary internationallaw. Many of these are described in Article 75 of Protocol I to theGeneva Conventions of 1949, adopted in 1977 (Protocol I) ....We agree with Justice Kennedy that the procedures adopted to tryHamdan deviate from those governing courts-martial in ways not justifiedby any "evident practical need," and for that reason, at least, fail to affordthe requisite guarantees. We add only that ... various provisions of CommissionOrder No.1 dispense with the principles, articulated in Article 75and indisputably part of the customary international law, that an accused317 Grutter v. Bollinger, 539 U.S. 306,344 (2003) (Ginsburg, J., concurring) (citations omitted).318 Roper v. Simmons, 543 U.S. 551 (2005) (Forbids the imposition of the death penalty onconvicted offenders when their crimes were perpetrated under the age of eighteen, consistent with the8th and 14th Amendments).319 [d. at 578 (citation omitted).320 [d.

THE DISTRICf OF COLUMBIA v. THE 50 STATES111must, absent disruptive conduct or consent, be present for his trial and mustbe privy to the evidence against him . . . .321Justice Sotomayor, has also endorsed the application of international law inher dissenting opinion in Croll v. Croll, which involved the application of the1980 Hague Convention on the Civil Aspects of International Child Abduction in achild custody case. 322 She wrote:While not essential to my conclusion that ne exeat rights constitute "rightsof custody" under the Convention, I note that my analysis is consistent withthe decisions of most foreign courts to consider the issue. Given the desirabilityof uniformity in treaty interpretation, these cases lend support to myunderstanding of the Convention. 323Further, Justice Sotomayor relied on several International authorities when shewrote:While traditional American notions of custody rights are certainly relevantto our interpretation of the Convention, the construction of an internationaltreaty also requires that we look beyond parochial definitions to thebroader meaning of the Convention, and assess the "ordinary meaning tobe given to the terms of the treaty in their context and in the light of [theConvention's] object and purpose.,,324On occasion justices have also commented on the use of foreign law outsidethe confines of the Court. For example, in 2005, Justice Ginsburg made the followingremarks before the American Society of International Law:Returning to my own perspective, while U.S. jurisprudence has evolvedover the course of two centuries of constitutional adjudication, we are notso wise that we have nothing to learn from other democratic legal systemsnewer to judicial review for constitutionality. The point was well made bySecond Circuit Judge, former Dean of Yale Law School, Guido Calabresi:"Wise parents,' Judge Calabresi said in a 1995 concurring opinion, 'do nothesitate to learn from their children." In the value I place on comparativedialogue-on sharing with and learning from others-I am inspired bycounsel from the founders of the United States. The drafters and signers ofthe Declaration of Independence cared about the opinions of other peoples;they placed before the world the reasons why the States, joining together tobecome the United States of America, were impelled to separate fromGreat Britain. The Declarants stated their reasons out of "a decent Respect321 Hamdan v. Rumsfeld, 548 U.S. 557, 633 (2006) (citation omitted).322 Croll v. Croll, 229 F.3d 133, 144 (2d Cir. 2(00) (Sotomayor, J., dissenting).323 [d. at 150 (citations omitted).324 [d. at 145 (citations omitted).

112 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWto the Opinions of Mankind." To that end, they presented a long list ofgrievances, submitting the "Facts"-the "long Train of [the British Crown's]Abuses and Usurpations"-to the scrutiny of "a candid World .... "Far from [exhibiting hostility] to foreign countries' views and laws, ProfessorVicki Jackson of the Georgetown law faculty told a congressionalcommittee last year, "the founding generation showed concern for how adjudicationin our courts would affect other countries' regard for the UnitedStates." Even more so today, the United States is subject to the scrutiny of"a candid World." What the United States does, for good or for ill, continuesto be watched by the international community, in particular, by organizationsconcerned with the advancement of the "rule of law" and respectfor human dignity.The new United States looked outward not only to earn the respect ofother nations. In writing the Constitution, the Framers looked to other systemsand to thinkers from other lands for inspiration, and they understoodthat the new nation would be bound by "the Law of Nations," today calledinternational law. Among powers granted the U. S. Congress, the Framersenumerated in Article I the power "[t]o define and punish ... Offencesagainst the Law of Nations."John Jay, one of the authors of The Federalist Papers and the first ChiefJustice of the United States, wrote in 1793 that the United States, "by takinga place among the nations of the earth, [had] become amenable to the lawsof nations." Eleven years later, Chief Justice John Marshall cautioned that"an act of Congress ought never to be construed to violate the law of nationsif any other possible construction remains .... "There are generations-old and still persistent discordant views, I acknowledge,on recourse to the "Opinions of Mankind." A mid-19th centuryU. S. Chief Justice expressed opposition to such recourse in an extremestatement. He wrote: "[n]o one, we presume, supposes that any change inpublic opinion or feeling ... in the civilized nations of Europe or in thiscountry, should induce the [U.S. Supreme Court] to give the words of theConstitution a more liberal construction . . . than they were intended tobear when the instrument was framed and adopted."Those words were penned in 1857. They appear in Chief Justice RogerTaney's opinion for a divided Court in Dred Scott v. Sandford, an opinionthat invoked the majestic Due Process Clause to uphold one human's right

THE DISTRICT OF COLUMBIA v. THE 50 STATES 113to hold another in bondage. The Dred Scott decision declared that no"descendan[t] of Africans [imported into the United States], and sold asslaves" could ever become a citizen of the United States. 325***325 Remarks by Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United Statesbefore the American Society of International Law, Apr. 1,2005.

A DISCUSSION ON THE DISTRICT OF COLUMBIA'SPROCUREMENT LAW AND THE SPARK THAT LED TORENEWED REFORM EFFORTSMegan S. Vahey*INTRODUCfIONOctober 2009 was a touchstone month for District of Columbia taxpayers. Itwas during that month that it was revealed that Mayor Adrian Fenty's administrationauthorized $82 million in contracts to improve or rebuild a number ofparks and recreation facilities throughout the city. With just under 600,000 residents,the District of Columbia's gross budget in fiscal year 2010 was $10.1 billion.1 Spending $82 million to upgrade parks and recreation facilities after hadthey had fallen "into a severe state of disrepair" at the end of the last decade wassomething many residents felt was long overdue. 2It is common for cities like the District of Columbia to use tax dollars to rehabilitateits facilities for the enjoyment of residents and visitors. In fact, the District's"proposed capital budget for FY 2010 - FY 2015 call[ed] for financing $595million of general capital expenditures in FY 2010."3 The parks and recreationcontracts represented less than 140/0 of the overall capital budget. What makesthese particular contracts so unusual is the fact that they were pushed throughwithout the approval of the taxpayers' elected representatives-the Council ofthe District of Columbia. 4By law the Mayor must send contracts that exceed $1 million to the Councilfor its approval or disapproval. Instead, the $82 million for the parks and recreationprojects was channeled through various city agencies before ending up at theD.C. Housing Authority ("DCHA"), an independent agency exempt from theDistrict's procurement law. s No contracts were ever sent to Council for its approval.Contracting the projects out to the independent DCHA seemingly bypassedthe lengthy Council review process and therefore the Council had no* B.A., The Ohio State University, 2001; J.D., University of the District of Columbia, David A.Clarke School of Law, 2010.1 GOVERNMENT OF TilE DISTRICt' OF COI.UMBlA, FY 2010 PROPOSED BUDGET AND FINANCIALPLAN VOL. 1 EXECUTIVE SUMMARY 1-1 (Sept. 2009) [hereinafter BUDGET AND FINANCIAL PLAN].2 TIm Craig, D.C. Boasts New Recreation Facilities, But Can It Pay for Them?, WASil. POST,Aug. 29, 2009, available at http://www.washingtonpost.com/wp-dyn/contentJarticle/2009/08/28/AR2009082803843.html?sid=STI009120203198.3 BUDGET AND FINANCIAL PLAN, supra note 1, at 6-1.4 Nikita Stewart, D.C. Council Questions Parks Projects it Didn't Approve, WASH. POST, Oct.23, 2009, available at http://www.washingtonpost.com/wp-dynlcontentJarticlel2009/1 01221 AR20091 02204602.html?sid=STI0091202031985 See id.

116 UNIVERSITY OF TilE DISTRICt' OF COLl/MUIA LAW REVIEWopportunity to review who was contracted to perform the work on the parks andrecreation facilities. Had the review happened, it would have been known thatthe developer selected as the manager of the multi-million dollar contracts was"Banneker Ventures, a firm run by Omar Karim, [Mayor] Fenty's fraternitybrother and a campaign contributor.,,6The District has very extensive, yet fractured, contracting and procurementlaws and regulations. The "Mayor and all independent agencies and entities"must submit all multiyear contracts or those in excess of $1 million during a 12-month period to the Council for review and approval? Only those agencies specificallyexempted from the District's procurement law may avoid this reviewprocess. s Those agencies that funneled the parks and recreation rehabilitationmoney to DCHA were not excluded from the procurement law. Therefore, at themoment the District agencies formulated the parks and recreation contracts withDCHA, the duty to submit them to Council for review was triggered.Why did the Fenty Administration choose to route the money for the parksand recreation projects in this manner? The administration has not directly addressedthat question and the Council has been embroiled in hearings for monthsin an attempt to get an answer. What is known is that Mayor Fenty "campaignedin 2006 on a platform of investing more resources in city neighborhoods. Shortlyafter he took office, he started expediting the construction of recreational facilities.,,9It begs the following question: was the law ignored for expediency's sake?This note explores the premise that the Council contract review process appliesto all non-exempt agency contracts which meet the $1 million or multiyearthresholds. The first section explores the history of procurement law in the Districtof Columbia. The second section discusses procurement reform efforts. Thethird section provides an overview of the parks and recreation contracts controversy.Finally, the fourth section analyzes the procurement authority of exemptand non-exempt District agencies with respect to the legislative powers grantedto the Council of the District of Columbia.6 Nikita Stewart, D.C. Housing Agency Contracts That Bypassed Council "Illegal", WASil.POST, Oct. 24, 2009 available at http://www.washingtonpost.com/wp-dyn/contentlarticleI2009/10/231AR2009102303974_pf.html.7 D.C. CODE § 2-301.05d (2010).8 D.C. CODE § 2-303.20 (2010).9 Craig, supra note 2.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 117I. THE HISTORY OF PROCUREMENT LAW IN THE DISTRICT OF COLUMBIAA. The Home Rule Act"In 1973, Congress enacted the District of Columbia Self-Government andGovernmental Reorganization Act or Home Rule Act." 10 The Act provides for"an elected Mayor and a council with certain delegated legislative powers."l1 TheMayor is "responsible for the proper execution of all laws relating to the Districtand for the proper administration of the affairs" of the city.12 The Mayor appointsthe heads of District departments, agencies and offices. 13 The city's chiefexecutive may also "reorganize the offices, agencies, and other entities within theexecutive office of the government.,,14 In addition, the Mayor "may authorize theheads of executive departments, offices, and agencies to place orders with anyother department, office, or agency of the District for materials, supplies ... [or]work."ISThe Council is "vested [with] and ... exercise[s]" legislative power in the District.16 It has the "authority to create, abolish, or organize any office, agency,department, or instrumentality of the government of the District and to definethe powers, duties, and responsibilities" of such entities. 17 This includes the independentDCHA.The Home Rule Act carved out very specific provisions for the Council regardingcertain contracts. "No contract involving expenditures in excess of $1million during a 12-month period may be made unless the Mayor submits thecontract to the Council for its approval" and the Council approves the contract. 1SIt may also enter into "multiyear contracts to obtain goods and services" providedthat the "Mayor submits the contract to the Council for its approval andthe Council approves the contract.,,19The Council review process is detailed but its time parameters ensure that contractsmove through the deliberation period expeditiously. The legislative body is"deemed to approve a [$1 million threshold] contract" in two ways. First, thecontract is approved if no member "introduces a resolution approving or disapproving"it during the ten day window from the point of introduction by the10 UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, GAO-07-159, DlsTRICf Of' CO.LUMIUA: PROCUREMENT SYSTEM NEEDS MAJOR REFORM 7 (Jan. 2007) (citing Pub. L. No. 93-198(1973» [hereinafter GAO Report].11 Id.12 D.C. CODE §1-204.22 (2010).13 Id.14 Id.15 D.C. COl)!: § 1-301.01(k) (2010).16 D.C. CODE § 1-204.04(a) (2010).17 D.C. CODE § 1-204.04(b) (2010).18 D.C. COlli: § 1-204.51(b) (2010) (emphasis added).19 D.C. CODE § 1-204.51 (c) (2010).

118 UNIVEl{Sr)'Y OF TIlE DISTRIC'T OF COLUMBIA LAW REVIEWMayor.2o A resolution is "an expression of a simple determination of the Councilof a special or temporary character.,,21 Second, the contract is approved if theCouncil does not "disapprove [it] during the 45-calendar day" from the point ofits introduction. 22 The Council must "take affirmative action to approve [a multiyear]contract within 45 days ... [or else it will] "be deemed disapproved.,,23B. The District of Columbia's Procurement Practices Act"The objective of a public procurement system is to deliver on a timely basisthe best value product or service to the customer, while maintaining the public'strust and fulfilling public policy goals.,,24 The objective is simple; the implementationand fulfillment of this goal is complicated. The District's procurement law iswrought with challenges for elected officials and the public.The District of Columbia Procurement Practices Act of 1985 ("PPA") was firstsigned into law in December 1985. It was designed to "provide for a uniformprocurement law and procedures for the District of Columbia government. ,,25The PPA applied to "all agencies and employees of District government whichwere subordinate to the Mayor" but "excluded from its application a separatebranch of government or an independent agency that had authority to enter intocontracts ... pursuant to existing law.,,26 The law also created the Contracts AppealsBoard which provided a forum for contractors to protest contract awards. 27The Act was amended with the Procurement Reform Amendment Act of 1996which became effective in April 1997.2 8 The "amendment was enacted aroundthe same time that various procurement studies were published, with one describingprocurement in the District as 'in crisis.' ,,29 These studies found that the existingprocurement law was "inconsistent" and ineffective. 3o In short, there wasno uniformity in the law or in its application.The PPA's purpose is straightforward: it seeks to "simplify, clarify, and modernizethe law governing the procurement [or acquisition] of property, supplies,services, and construction" by the District's government. 31 The law was designed20 § 1-204.51(b).21 D.C. Res. 18-1 (Jan. 2009).22 [d.23 § 1-204.51(c) .24 GAO REPORT, supra note 10, at 9.25 GAO REPORT, supra note 10, at 54.26 GAO REPORT, supra note 10, at 54.27 D.C. CODE §§2-309.01, 309.04 (2010).28 Legislative History of the District of Columbia Procurement Practices Act of 1985, D.C.CODE § 2-301.01 (2010); Legislative History of the Procurement Practices Amendment Act of 1997,D.C. CODE § 2-301.01 (2010).29 GAO REPORT, supra note 10, at 8.30 GAO REPORT, supra note 10, at 8.31 D.C. COI)E § 2-301.01 (2010).

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 119to "centralize procurement and the authority" to direct procurement operationsin one office led "by a chief procurement officer with a team of procurementprofessionals.,,32 The PPA's purpose also made clear the government's intent tomake the system equitable and transparent to all parties.The PPA applies to all governmental departments, offices, and agencies andapplies to "any contract for procurement of goods and services, including constructionand legal services.,,33 The Reform Amendment Act of 1996 "expandedthe [PPA's] application to include independent agencies, which were previouslyexcluded from its application.,,34 However, many agencies were still exemptedfrom the reach of the PPA including the D.C. Advisory Neighborhood Commissions,the District's Water and Sewer Authority, and the "Metropolitan PoliceDepartment's authority to make procurements not in excess of $500,000.,,35The Act mandates that any proposal to "contract out services" must be submittedto Council for approva1. 36 Contracts exceeding $1 million or for multipleyears are also mandated to comply with the Council review and approval process.37 The law demands that the Mayor provide a summary of the proposedcontract, including the name of the proposed contractor, the goods to be provided,and the details of the selection process. 38 This is to assist the members ofCouncil in the review process.The PPA sets out disciplinary provisions its willful or knowing violation. Districtemployees and agency heads are subject to suspension or dismissa1. 39 A contractor"who knowingly or willfully performs on a contract with the District byproviding a product or service worth in excess of $1 million ... without priorCouncil approval, can be paid no more than $1 million for the product of servicesprovided.,,4o Should the contractor "knowingly or willfully" perform on a multiyearcontract without prior Council approval or review, the contractor cannot 'bepaid in more than one calendar year for the products or services provided.,,4132 [d.33 D.C. CODE § 2-301.04 (2010).34 GAO REPORT, supra note 10, at 55.35 D.C. CODE § 2-303.20 (2010).36 D.C. CODE § 2-301.05d (2010). D.C. CODE § 2-301.07(t5A) (2010) defines "contracting out"as the "process in which the District ... enters into a contract with a private-sector firm ... or otherexternal entity, to provide a good or service to or on behalf of the District government that has[previously] been provided by District government employees, departments, or agencies."37 D.C. CODE § 2-301.05a (2010).38 [d.39 [d.40 [d.41 [d.

120 UNIVERSITY OF TIlE DISTRICr OF COI.UMBIA LAW REVIEWII. PAST AND PRESENT EFFORTS AT PROCUREMENT REFORMA. A System in Need of RepairThe District procures "approximately $3.75 billion by contract" each year and,according to a 2006 study, "a substantial portion of this amount is known to be inviolation of procurement procedures, indicating a lack of controls to insure compliancewith the procurement laws and regulations.,,42 The Office of Contractingand Procurement ("OCP") reported that it "purchases approximately $1.5 billionin goods and services on behalf of more than 60 different District agencies andprograms. ,,43Given the enormous amount of tax dollars that are expended each year, andthe state of the procurement law in the District, the Council unanimously passedemergency legislation that established a Contracting and Procurement ReformTask Force. 44 It was made up of seven voting members who were contract orprocurement experts; its purpose was to "assess and improve the District's contractingand procurement process; establish appropriate laws to decrease theover-utilization of sole-source contract awards; and enhance the District's ethicsand disciplinary provisions regarding contracting and procurement.,,45The Task Force, after a full assessment of the District's procurement law andprocesses, levied its finding succinctly:[T]here [were] no significant deficiencies in the District's procurementframework which would cause the procurement system, if its requirementswere followed, to be dysfunctional. The critical problem in the District systemis the failure to establish a climate of compliance and enforcement ofcontrols that insure compliance with the existing procurement regulationsystem. 46The Task Force's report issued findings and a series of recommendations tocure the issues surrounding the procurement and contracting law. It found that"many of the inappropriate procurement actions . . . were the result of negligence,while others were the result of failure to hire or assign appropriatestaff. ,,47 The group also discovered that "procurement regulations and proce-42 DISTRICt' OF COLUMBIA CONTRACTING ANI) PROCUREMENT TASK FORCE FINAL REPORT 3(Dec. 2006) available at http://www.dcwatch.com/govern/ocp061204.htm [hereinafter TASK FORCE].43 GOVERNMENT OF OlliE DISTRlcr OF COLUMBIA, OFFICE OF CONTRACrlNG ANI> PROCURE­MENT, FY09 PERFORMANCE PLAN, 1 (2008).44 816-546, the "Contracting and Procurement Reform Task Force Establishment EmergencyAct of 2005," Council Period 16 (2005), available at http://www.dccouncil.washington.dc.usllims/searchbylegislation.aspx.45 [d.46 TASK FORCE 3, supra note 42.47 TASK FORCE 3, supra note 42, at 4.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 121dures are difficult to access by both government agencies and the contractingpublic. ,,48The group found a serious a lack of "respect for compliance with basic tenantsof government procurement" and the failure to empower a Chief ProcurementOfficer ("CPO") with authority to regulate and enforce procurement law was amajor cause of concern. 49 At the time of the report's release, the interim CPOhad "little procurement experience, let alone senior-level procurement experience"which helped lead to the decrease in the "office's effe

122 UNIVERSITY 011 TIlE DISTRICT 011 COLUMBIA LAW REVIEWThe GAO report had similar findings to that of the Contracting and ProcurementTask Force. It found that the District lacked "a uniform procurement lawthat appli[ed] to all District entities and provid[ed] the CPO with adequate authorityand responsibility for the entire acquisition function.,,56 The GAO alsocited the numerous agencies that were exempted from the procurement law as aserious flaw. The exemptions led to an "undermin[ed] ... authority to capture anoverall view of [the District'S] procurements as well as ... an added burden onvendors to understand how to do business with the District."57The culture that existed in 2007, and what could be said of current times, wasthat "entities seek exemptions believing that working through the CPO or thecompetitive process required by the law takes too much time. ,,58 The report furthercited the CPO's relatively low-level status assigned within the government asa problem. This status weakened the ability to "enforce agency compliance withpolicies and procedures. ,,59 Despite efforts to reform the process, the GAO foundthat the District's procurement officials were concerned "about the merits andbenefits of these efforts as well as the absence of high-level and sustained attentionfrom District leaders to address systemic problems that hamper managementand oversight of the procurement system."6OThe GAO provided several recommendations to address the serious concernssurrounding the District's procurement practices. Included among the recommendations:the suggestion that the CPO should be given "sole authority andresponsibility to head the District's Office of Contracting and Procurement," thatthe administration ensure that the "ratification procures are not . . . used in amanner that encourage unauthorized commitments by government personnel,"and that the CPO's position be elevated "in line with other critical cross-governmentalfunctions . . . or higher" to allow for participation in "management,budgeting, planning, and review processes. ,,61B. Current Legislative Procurement Reform EffortsThe last major overhaul of the District's procurement law occurred in 1996.There have also been numerous amendments to permit exemptions from thePPA. 62 Now, fourteen years later, there are two bills making their way throughthe legislative process. Both were introduced in January 2010-one by the Mayor56 GAO REPORT, supra note 10, at 11.57 GAO REPORT, supra note 10, at 12.58 GAO REPORT, supra note 10, at 15.59 GAO REPORT, supra note 10, at 30.60 UNITED STATES GOVERNMENT ACCOUNTAHU.ITY OI'HeE, GAO-07-159, DISTRlcr OF Co­LUMUlA: PROCUREMENT SYSTEM NEEDS MAJOR REFOI{M 41 (Jan. 2007) (citing Pub. L. No. 93-198(1973)}.61 [d. at 44.62 [d. at 57.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 123and the other by Council. Each seeks to reform the District's current procurementpractices.B18-610, the "Omnibus Procurement Reform Amendment Act of 2010" wasunanimously sponsored by the members of Council. It was introduced on January5, 2010, and referred to the Committee on Government Operations and theEnvironmen t. 63B18-610 adds several new sections to the PPA. First, the bill creates an independentOffice of the Procurement Ombudsman. 64 The office would "provideoversight and review of the procurement process" including "audits and reviewsfor compliance" and "detecting fraud, waste and abuse in procurement operations.,,65The office's director would be appointed by the Mayor, approved by theCouncil, and "serve for no more than two terms. ,,66Second, B18-610 mandates the creation of a "single procurement transparencywebsite to ensure that all publically available information regarding District procurementis easily accessible in one online location. ,,67 The website would featurethe names of all "personnel with delegated contracting authority," copies of contractsand supporting documents "in excess of $100,000," and "notice of all emergencyprocurements. ,,68B18-610 provides for specific and required "training, continuing education,and certification for District contracting personnel. ,,69 The bill adds another newsection regarding acquisition planning. Here, all contracts exceeding $100,000must be on a chronological list detailing the expiration of each contract, includingthe contracting officer responsible for the contract. 70 In what appears to be adirect response to the parks and recreation controversy, among the other newsections in the bill, is the provision that each member of the Contract AppealsBoard must be licensed District of Columbia attorneys with no less than "fiveyears experience in public contract law.,,71B18-635, the "Procurement Reform Act of 2010," was transmitted to CityCouncil on January 29, 2010. 72 Mayor Fenty, in a letter to Council ChairmanVincent C. Gray, stated that the "legislation provides for a comprehensive,63 818-610, "Omnibus Procurement Reform Amendment Act of 2010," Council Period 18(D.C. 2010) available at http://www.dccouncil.washington.dc.us/lims/searchbylegislation.aspx.64 [d.65 [d.66 [d.67 /d.68 818-610, "Omnibus Procurement Reform Amendment Act of 2010," Council Period 18(D.C. 2010), available at http://www.dccouncil.washington.dc.us/lims/searchbylegislation.aspx.69 /d.70 [d.71 [d.72 818-635, "Procurement Reform Act of 2010," Council Period 18 (D.C. 2010), available athttp://www.dccouncil.washington.dc.us/lims/searchbylegislation.aspx.

124 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWstreamlined overhaul of the District's Procurement System.,,73 B18-635 seeks tomodernize the PPA. At the time of the bill's public introduction, Mayor Fentyproclaimed that "[f]or decades the District neglected to make substantial changesin the way we do business in this government. This legislation will bring our procurementinto the 21st Century.,,74Though not all sections of the original PPA are changed, nine new provisionsare found in within the seventy-eight pages of the bill. Training, education, andexpediency are major themes of this legislation. Its stated purpose is to "safeguardthe integrity of the procurement process" and to "increase public confidencein the procedures followed in public procurement. ,,75 The bill applies to"any contract for procurement of goods and services, including construction, but[does not] apply to a contract or agreement receiving or making grants or loansor for federal assistance. ,,76Similar to B18-610, Mayor Fenty's bill creates an option for the Chief ProcurementOfficer to establish a Procurement Training Institute which is designed to"[c]onduct, develop, or collaborate with established training or certification programsfor the express purpose of providing certifications of proficiency to all participants.,,77The legislation does not state that the CPO "shall" create thistraining program; instead, it uses the word "may" and does not mandate training.B18-610 maintains the original provision that Council shall review contracts inexcess of $1 million or those for multiple years. It also keeps the disciplinaryprovisions for District employees who "knowingly or willfully enter into a proposedmultiyear contract or a proposed contract in excess of $1 million withoutprior Council review and approval.,,78 Contractors with the District of Columbiaare also under the same knowing and willful provision. Like the original PPA, if acontractor performs on a contract without prior Council approval, that contractorwill be limited to payment of not more than $1 million or to payment only withinthe first year of a multiyear contract. 79Mayor Fenty's legislation attempts to "consolidate the CPO's procurement authority.,,8oAs in the initial PPA, the "CPO shall be the exclusive contracting au-73 Letter from Adrian M. Fenty, Mayor, to Vincent C. Gray, Chairman, Council of the D.C.(Jan. 29, 2010) (on file with the Office of the Secretary to the Council).74 Press Release, Office of Contracting and Procurement, Mayor Fenty Announces ComprehensiveProcurement Reform Legislation (Feb. 4, 2010), available at http://newsroom.dc.gov/show.aspx/agency/ocp/section/2/releasel19162.75 B18-635, "Procurement Reform Act of 2010," Council Period 18 (D.C. 2010), available athttp://www.dccouncil.washington.dc.usllims/searchbylegislation.aspx.76 [d.77 [d.78 [d.79 [d.80 Press Release, Office of Contracting and Procurement, supra note74.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 125thority for all procurements covered by [the] Act. ,,81 The CPO is "authorized todelegate contracting authority" to District employees in order to carry out the"objectives of [the] Act.,,82 However, the bill then proceeds to exempt twelveDistrict agencies from the CPO's purview. Included among the exempt agenciesare the Washington Convention and Sports Authority, the District of ColumbiaHousing Finance Agency, and the District of Columbia Courts. Notably, the veryagency at the center of the parks and recreation contracts controversy­DCHA-is explicitly left under the control of the PPA.Another new provision in the Mayor's proposed legislation is the addition ofstipends "to cover a portion of bid or proposal developments costs to an unsuccessfulresponsible offeror that submits a responsive proposal ... to generatemeaningful competition and to ensure that small businesses are not competitivelydisadvantaged. ,,83 Here, the District could take advantage of "any ideas or informationcontained in the proposals in connection with any contract awarded forthe project" if the offeror chose to accept the stipend. 84Both pieces of legislation, the Council's and the Mayor's, make an attempt tochange the way procurement is handled in the District of Columbia. As was discussedin the GAO and Task Force Reports, the need for reform has been outstandingfor many years. The Administration and the Council have begun totakes the steps to reform the system with the introduction of these bills. At thetime of the writing of this note, neither bill been passed by Council or signed intolaw by the Mayor.III. THE PARKS AND RECREATION CONTRACTS CONTROVERSYA. An Overview of the Parks and Recreation Contracts ControversyIn October 2009, the Council of the District of Columbia became aware that$82 million in contracts had been routed through the government without its approval.Complicating the matter was the fact that every project was managed by"Banneker Ventures, a firm owned by [Mayor Fenty's] fraternity brother, OmarKarim. ,,85 The contracts came to light when, after the Mayor held numerouspress events to announce new parks and recreation facilities, it was noticed thatthe projects "did not correspond with the recreation capital budget.,,86 AfterCouncil members talked with "housing authority and parks officials" it was dis-81 818-635, supra note 75.82 818-635, supra note 75.83 818-635, supra note 75.84 818-635, supra note 75.85 Nikita Stewart, D. C. Council Questions Parks Projects It Didn't Approve, WASH. POST, Oct.23, 2009, available at http://www.washingtonpost.com/wp-dynlcontentJarticle/2009/1 0/221 A R20091 02204602.html.86 Id.

126 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWcovered that the "money was taken from the Department of Parks and Recreations,given to the Deputy Mayor of Planning and Economic Development("DMPED") and then passed through the quasi-government agency that operatesthe city's public housing system [DCHA].,,87The DCHA is independent of the District's procurement policy.88 It has a "legalexistence separate from the District government" and is authorized to "adoptand administer its own procurement and contracting policies and procedures. ,,89When asked "why [the administration] went through the housing authority tobuild the facilities," a spokesperson cited the DCHA's "autonomous procurementauthority.,,90After news of the contracts broke, a series of opinions came from the District'sAttorney General, Peter Nickles. First, Mr. Nickles opined that the "D.C. HousingAuthority broke the law when it failed to seek the approval of D.C. Councilbefore awarded [the parks and recreation contracts].,,91 Just three days later, Mr.Nickles said that "past or current DCHA contracts that were awarded withoutCouncil approval ... should be regarded as legal and binding".92 He went on tostate that:DCHA has a long-standing practice of awarding contracts over $1 millionduring a 12-month period ... without Council approval. To regard such pastor current DCHA contracts as unlawful would be to run an unacceptablerisk of depriving the Authority's contracting partners of legitimate expectationsand of upsetting settled transactions. 93General confusion ensued. DCHA went on record that it "did not think that[the Council contract approval] law applied to its procurement process. ,,94 Mr.Nickles, in a memorandum to the DCHA, held that the independent agencywould have to submit contracts to Council in the future only.95 This opinion,according to the Council Chairman, was "inappropriate" and "not in compliancewith [his] reading of the law.,,96 The Council did not make a "distinction between87 [d.88 D.C. CODE § 6-219 (2010).89 D.C. CODE §§ 6-202, 6-203 (2010).90 Stewart, supra note 85.91 Stewart, supra note 6.92 Memorandum from Attorney General Peter Nickles to Adrienne Todman, Interim ExecutiveDirector, D.C. Housing Authority (Oct. 26, 2009).93 [d., see e.g., E. Enters v. Apfel, 524 U.S. 498, 533 (1998).94 Nikita Stewart, D.C. Parks Contracts Are Legal After All, City Official Says, WASil. POST,Oct. 27, 2009, available at http://www.washingtonpost.com/wp-dyn/contentlarticlel2009/10/26/AR2009102603280.html?sid=ST2009120203198.95 Memorandum from Attorney General Peter Nickles, supra note 92.96 Stewart, supra note 94.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 127the past and the future" and "expect[ed] to receive the [parks and recreation]con tracts. ,,97B. The Council Takes ActionThe revelation that the money for the parks and recreation contracts wentfrom the District's Department of Parks and Recreation to the Deputy Mayor forPlanning and Economic Development and ultimately came to rest with the D.C.Housing Authority-all without Council's approval-jumpstarted a series of legislativehearings. Four Council committees-Economic Development; GovernmentOperations and the Environment; Parks, Recreation, and Libraries; andHousing and Workforce Development-came together to launch "a joint specialinvestigation in October [2010] after learning that the Fenty administration hadtransferred millions of dollars to the [DCHA] to build recreation centers,ballfields, and parks. ,,98Omar Karim, of Banneker Ventures, was called to testify before the joint committeein December 2010, the fifth since the discovery of the contracts. 99 Mr.Karim was asked about his relationship with the Mayor and about the "amountof contact he had with city officials before Banneker won the contract.")OO Hestated that "he did not participate in 'any inappropriate, unethical or unlawfulactions to obtain the contract. '" 101The Council voted to "remove Banneker as the manager of the constructionprojects [and] effectively [terminate] Banneker's base $4.2 million [project manager]contract and the agreements with several subcontractors."102 During theheight of the council hearings, and on Christmas Eve, the District government cuta $2.5 million check to Banneker Ventures in recognition of the work performedon the parks and recreation contracts. 103 The Council was not informed of thepayment until another joint committee hearing in January and "questionedwhether the Fenty administration had once again circumvented the legislativebody.,,)04 In response, the administration stated that the payment was for servicesrendered through November 2010, prior to the Council vote to terminate the97 Stewart, supra note 94.98 Nikita Stewart, D.C Council Hires Lawyer Robert P. Trout to Probe Recreation Contracts,WASil. POST, March 6,2010, available at http://www.washingtonpost.com/wp-dyn/contentlarticle/2010103/051 AR20t 0030503858.html.99 Nikita Stewart, Contractor Defends Dealings with D.C, WASH. POST, Dec. 11,2009, availableat http://www.washingtonpost.com/wp-dyn/contentlarticle/2009112/10/AR2009121004141.html.100 Id.lOt Id.102 Nikita Stewart, Fenty's Friend's Firm Got Millions After D.C Ended Contract, WASil. POST,Jan. 9, 2010, available at http://www.washingtonpost.com/wp-dyn/contentlarticle/2010101I08/AR2010010803663.html.103 /d.104 Id.

128 UNIVERSITY OF THE DISTIUCT OF COLUMBIA LAW REVIEWBanneker contract. 105 Further, the administration maintained that the multi-milliondollar payment was a "fair way to end the contract and 'the right thing todO.",106All of the contracts for the rehabilitation of the parks and recreation facilitieswere halted by the Council in December 2009 on the basis that they should havebeen submitted to the body for approval. After the contracts were submitted forreview, the Council, through emergency legislation in February 2010, unanimouslyauthorized the District's Chief Financial Officer to "transfer all funds associatedwith the Department of Parks and Recreation ("DPR") capital projectsin the disapproved contract ... from the Office of the Deputy Mayor for Planningand Economic Development to DPR.,,107 The legislation then authorized the Officeof Public education Facilities Modernization to manage the parks and recreationprojects instead of Banneker Ventures. 108With the management of the DPR projects back in the hands of the Districtgovernment, the Council continued its probe into the background of the contracts.It appointed a special investigator in March 2010. Defense lawyer RobertP. Trout took that role pro bono to conduct "an independent examination of howthe Fenty administration awarded the contracts without Council approval. ,,109The appointment of Mr. Trout has been assailed as politically motivated. llo AttorneyGeneral Nickles has assisted the investigation by providing documents relatedto the parks and recreation contracts and remains on record as stating thatthe "contracts should have been submitted to the council for approval, but ...[he] deemed them legal and binding."l11IV. ANALYSIS OF INDEPENDENT AGENCY PROCUREMENT AUTHORITY ANDTHE LEGISLATIVE POWERS OF COUNCILA. The Dispute Between the Council of the District of Columbia andthe AdministrationThe dispute between the Council of the District of Columbia and the FentyAdministration arose soon after the discovery that the parks and recreation contractsescaped legislative review. The lingering question was whether an independentagency waS required to observe the Council approval law for contracts that105 Id.106 Id.107 818-664, "Contracts for Project Management and General Contractor Services for the Revitalizationof District Recreation Centers, Schools, and Public Parks Approval and Payment AuthorizationEmergency Act of 2009," Council Period 18 (2010). available at http://www.dccouncil.washington.dc.usllims/searchbylegislation.aspx.108 [d.109 Stewart, supra note 98.110 Stewart, supra note 98.111 Stewart, supra note 98.

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 129exceed $1 million or those that were for multiple years. A fortiori, was a governmentalagency that transferred funds to an independent agency bound by thesame requirement?As outlined earlier, the District's Attorney General issued conflicting statementsregarding the necessity of Council review for the projects. The transfer ofparks and recreation capital dollars to an independent agency outside the scopeof the District's PPA laws only led to extra murkiness about the details of, andreasoning behind, the transaction.The Department of Parks and Recreation and the Office of the Deputy Mayorfor Planning and Economic Development entered into a Memorandum of Understandingto transfer the $82 million in capital funds between each other.112 D.C.Code section 1-301.01(k) was cited in the MOU as the authority for DPR andDMPED to transfer these funds. Departments and agencies may enter intoagreements with each other for "materials, supplies, equipment, work, or servicesof any kind that the requisitioned department ... may be a in a position to supply.,,113Following the law to that extent, it was only after the MOU was signedwith DPR that DMPED then transferred the capital funds to DCHA for theparks and recreation projects. Once the funds left the government's coffers forDCHA, the requirement to inform Council of the contract was triggered.B. Analysis of Independent Agency Procurement Authority and the CouncilApproval RequirementThe District of Columbia Housing Authority is an independent agency of theDistrict government. 114 It enjoys a "legal existence separate" from the District. I ISThe Council of the District of Columbia empowered DCHA to "enter into contracts,joint ventures, or other cooperative arrangements with the District.,,116DCHA was created to "govern public housing and implement the Housing Act of1937 in the District [and is] responsible for providing decent, safe, and sanitarydwellings, and related facilities, for persons and families of low-and moderateincomein the District."117 Thus, by virtue of its enabling statute, DCHA is adistinct body with a clear purpose, separate and independent from the executive,legislative, and judicial branches of the District government. It also enjoys independentprocurement authority and may enter into contracts. 1tS112 Memorandum of Understanding Between the Department of Parks and Recreation and theDeputy Mayor for Planning and Economic Development (Feb. 27, 2(09) [hereinafter MOU].113 D.C. CODE § 1-301.01 (k) (2010).114 D.C. CODE § 6-202(a) (2010).115 [d.116 D.C. CODE § 6-203(17) (2010).117 D.C. CODE § 6-202(b) (2010).118 §6-203(17).

130 UNIVERSITY OF 11IE DISTIUCT OF COLUMBIA LAW REVIEWConversely, the Office of the Deputy Mayor for Planning and Economic Developmentis an executive department of the District. It is under "direct administrativecontrol of the Mayor.,,119 DMPED does not have a separate existencefrom the District government and derives its authority from an act of Council. 120It is specifically not exempted from the pPA.121 Anytime it seeks to enter into amulti-year contract of one in excess of $1 million or for multiple years, it mustseek Council approval.Based on these factors, there is no question that agreement for the rehabilitationof the parks and recreation facilities involved two separate entities­DMPED and DCHA. It is plain that DMPED, prior to entering into a contractwith DCHA, was required by law to seek Council approval for projects in questiononce it determined that it would utilize DCHA for the project. 122 For purposesof the procurement law, a "contract" is defined as a "mutually bindingagreement" [that includes but is not limited to] awards, letter contracts, and orders.,,123It matters not that DCHA was exempted from the Council review processin this instance because DMPED had the primary duty.Thus, any contract for expenditures in excess of $1 million during a twelvemonth period that is not submitted to Council for approval is invalid. It must besubmitted to Council for review and approval. The Council may choose to ratifythe contract at its discretion.CONCLUSIONWhile it has not been thoroughly revealed what the true rationale was forpushing the parks and recreation contracts through an independent-and procurementlaw exempt-agency, the multi-million dollar episode opened wide thediscussion for procurement reform in the District of Columbia. The issues surroundingthe District's procurement law and the difficulties observing it are plentifuland well documented.The District of Columbia's Contracting and Procurement Task Force and theGovernment Accountability Office reports, though years old, found that therewas a lack of empowerment of the CPO as well as a lack of respect for generallyacceptable procurement law. The mUltiple agency exemptions contribute to that119 D.C. CODE § 6-603.01 (17)(VV) (2010).120 D.C. CODE § 1-204.04(b) (2010). ("The Council shall have the authority to create, abolish,or organize any office, agency, department or instrumentality of the government of the District .... ")121 D.C. CODE §2-303.20 (2010).122 D.C. CODE § 2-204.51(b)(1) (2010). ("No contract involving expenditures in excess of$1,000,000 during a 12-month period may be made unless the Mayor submits the contract to theCouncil for its approval and the Council approves the contract .... "; D.C. CODE § 2-301.05d (2009)."[T]he Mayor and all independent agencies and entities of the District government shall submit to thecouncil for approval any proposal to contract services ... that involves expenditures in excess of$1,000,000 during a 12-month period.")123 D.C. CODE § 2-301.07 (2010).

IGNORING THE LAW FOR EXPEDIENCY'S SAKE? 131effect. Continued use of the disjoined PPA will likely enhance and compound theDistrict's issues with procurement. Without a commitment from the District'selected and appointed leaders to changing the status quo, episodes such as theparks and recreation contracts may continue to happen.It can be argued that these contracts provided the spark which led to theCouncil and the Administration taking serious steps towards reforming the waygovernment procurement issues are handled. However, how the District's procurementlaw will be reformed remains to be seen.Henry M. Robert once said, "where there is no law, but everyman does what isright in his own eyes, there is the least of real liberty. ,,124 His words ring truewhen considering how the parks and recreation contracts were handled. Takeinto consideration the words of Valerie Santos, the Deputy Mayor of EconomicDevelopment. She stated in November that the contracts were routed throughthe DCHA because it was "the cheapest, fastest and most efficient path to deliverfirst-rate community and recreation facilities.,,125 What one deputy mayor thinksis cheap, fast, and efficient may very well be the opposite of the next deputymayor.Was the law avoided for expediency's sake? This note does not make a pronouncementon this question. However, it is not far-fetched to draw the conclusionthat had the law been followed in the first place, the parks and recreationcontracts may have been reviewed and approved without controversy. The Councilof the District of Columbia has a mandate to review all governmental contractsthat exceed the $1 million or multi-year threshold. Any notion to thecontrary is clearly contrary to the spirit and letter of the law.District residents view the parks and recreation projects as worthy of their taxdollars. They have waited a long time to see these new parks and recreation centersbuiIt. 126 However, these same residents have entrusted its government withtheir tax dollars. Their elected officials have a duty to ensure that tax dollars areexpended in a manner that is free from fraud, waste, and abuse. While theseprojects should get done quickly, District leaders must guarantee that they aredone according to the law. The fate of real reform may very well hang in thebalance if they act otherwise.124 HENRY M. ROBERT, ROBERT'S RULES OF ORDER REVISED (1915) available al http://www.bartleby.com/176/92.html.125 Elizabeth Wiener, Rosedale Lies In Wait As Council Worries Over Park Contracts, VOICEOF TI-IE HILI., Nov. 18, 2009, available at http://www.voiceofthehill.com/FRONT-PAGE/Rosedalelies-in-wait-as-council-br-argues-over-park-contracts.126 Craig, supra note 2.

SAME SEX MARRIAGE: DOES THE CONSTITUTION ORSTATE CONSTITUTION SUPPORTSAME-SEX MARRIAGES?Sonja Scehusen*INTRoDucnoNDearly Beloved, we are gathered together here in the sign of God - and in theface of this company - to join together this man and this woman in holymatrimony, ... If any person can show just cause why they may not be joinedtogether - let them speak now or forever hold their peace . . . Marriage is theunion of husband and wife. . .. So, by the power vested in me by the State of___ and Almighty God, I now pronounce you man and wife. 1This wedding vow represents the current controversy surrounding marriagewithin the United States. Why is marriage controversial? It is controversial becausethe majority of the population defines marriage as a union between a "manand woman.,,2 However, a growing part of the population defines marriage as aunion between couples, which includes same-sex couples. 3 Thus, this controversyover marriage leads to several important legal questions, such as, whether samesexcouples have a constitutional right to marry, and by implication, whethersame-sex couples have the right to marry under state constitutions.Many opponents of same-sex marriages believe that marriage is between aman and woman. 4 These opponents also believe that same-sex marriages conflictwith their own religious beliefs. s Opponents also focus on the fact that traditionalmarriages promote procreation and have a stabilizing effect on children of thosemarriages. 6 On the other hand, proponents of same-sex marriage believe that the* J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law.1 Wedding Planning Links, http://www.weddingplanninglinks.com/planningltraditionalweddingvows.html(last visited Jan. 11,2010); see also Genesis 2:21-25 (King James).2 LUIs LUGU ET AL., MAJORITY CONTINUES To SUJ>I'()RT CIVIL UNIONS: MOST STILL OI'I>

134 UNIVEI{SITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWdenial of marriage limits same-sex couples from receiving the same benefits andprivileges of opposite-sex couples?This article focuses on the legal aspects of the marriage controversy; whethersame-sex couples are guaranteed the right to marry under the Constitution andstate constitutions. This article is limited in scope and will not directly address theimplications of property law and Full Faith and Credit. Nor will this article directlyaddress the Defense of Marriage Act. Part One discusses the basic principlesof constitutional analysis under the Fourteenth Amendment. Part Twoexamines whether the basic principles of constitutional analysis provide same-sexcouples a right to marry under the Constitution. Finally, Part Three examineswhether the basic principles of equal protection and substantive due process providesame-sex couples a right to marry under state constitutions.I. BASIC PRINCIPLES OF CONSTITUTIONAL ANALYSIS UNDER THEFOURTEENTH AMENDMENTThe issue of whether same-sex couples have a right to marry can be addressedunder either the Equal Protection Clause of the Fourteenth Amendment or theDue Process Clause of the Fifth and Fourteenth Amendments. 8 The analysis ofsame-sex marriages differs under an equal protection or due process analysis. 9Under due process, the court asks, "whether the government's interference isjustified by a sufficient purpose.,,10 Under equal protection, the court determines"whether the government's discrimination as to who can exercise the right is justifiedby a sufficient purpose."ll There is a violation of equal protection if theright to marry is allowed to some people but not others and the action by thestate or federal government does not meet the appropriate level of scrutiny.12 Onthe other hand, there is a violation of due process if a liberty interest, such as theright to marry, is implicated and the action by the state or federal governmentdoes not meet the appropriate level of scrutiny.137 Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 949 (Mass. 2003); see also Kenneth K.Hsu, Why the Politics of Marriage Matter: Evaluating Legal and Strategic Approaches on Both Sides ofthe Debate on Same-Sex Marriage, 20 8YU J. Pun. L. 275 (2006).8 U.S. CONST. amend. V; U.S. CONST. amend. XIV, §1.9 ERWIN CIIEMERINSKY, CONSTITUTIONAl. I.AW: I'IUNCIPI.ES ANO POLICIES 792-93 (Aspen 3rded.2006).10 [d.; see also 168 AM. JUR. 20 Constitutional Law § 789 (2008).11 CJIEMERINSKY, supra note 9, at 793.12 CJIEMERINSKY, supra note 9, at 794; see also 168 AM. JUR. 20, supra note to.13 CIIEMElUNSKY, supra note 9, at 794; see also 168 AM. JUR. 20, supra note to.

SAME SEX MARRIAGE 135A. Equal ProtectionThe Equal Protection Clause of the Fourteenth Amendment guarantees equalprotection from the states. 14 However, this provision of the Fourteenth Amendmentis made binding upon the federal government through the Fifth Amendment'sDue Process Clause. 15 Equal protection claims are treated the same underthe Fifth and Fourteenth Amendments. 16 Traditionally, equal protection analysisrequires the showing of a classification, identification of the corresponding levelof scrutiny, and a review of government action to see if it meets the chosen levelof scrutiny. 17 Additionally, equal protection claims require state action; the FourteenthAmendment only protects citizens from unlawfully discriminatory state action,not private discrimination. ISThere are two ways of creating a classification through the law: facial orfacially neutral classifications}9 In a facial classification, the precise languagefound within the law classifies people based on a particular characteristic, such asrace. 20 In a facially neutral classification, the language within the law does notdraw any classifications, but the application of the law creates a discriminatoryimpact. 21 If a person claims that a "facially neutral" law has a discriminatoryimpact, the plaintiff must show that that the there is a discriminatory purpose orintent when the law was created?2After identifying the classification, the next step is to identify and apply theappropriate level of scrutiny.23 There are three levels of scrutiny: (1) strict scrutiny,(2) intermediate scrutiny, and (3) rational basis. 24 "Under strict scrutiny, alaw is upheld if it is shown to be necessary to achieve a compelling governmentpurpose. ,,25 The burden is on the government to show that it cannot achieve its14 ClIEMERINSKY, supra note 9, at 794; see also 16B AM. JUR. 2», supra note 10.15 CIIEM E1UNSKY, supra note 9, at 668-69; (citing Bolling v. Sharpe, 347 U.S. 497, 498-99(1954»; see Weinberger v. Wiesenfeld, 420 U.S. 636,638 n. 2 (1975). See also 16B AM. JUI{. 2», supranote 10, at § 777-858.16 ClIEMERINSKY, supra note 9, at 668-69 (citing Sharpe, 347 U.S. at 498-99); see Wiesenfeld,420 U.S. at 638. See also 16B AM. JUR. 2», supra note 9, § 777-858.17 CIIEMERINSKY, supra note 9, at 669-70; see also 16B AM. JUR. 2», supra note 10, at § 777-858.18 Equal. Found. of Greater Cincinnati v. City of Cincinnati, 54 F.3d 261, 263, 265-66 (6th Cir.1995), vacated, 518 U.S. 1001 (1996), remanded, 128 F.3d 289 (6th Cir. 1997) (citing Moose Lodge No.107 v. Irvis, 407 U.S. 163, 172 (1972».19 CIIEMERINSKY, supra note 9, at 670-71; see also 16B AM. JUR. 2», supra note 10, at § 777-858.20 CUEMERINSKY, supra note 9, at 670-71; see also 16B AM. JUR. 2», supra note 10, at § 777-858.21 CIIEMElUNSKY, supra note 9, at 670-71; see also 16B AM. JUR. 2», supra note 10, at § 777-858.22 CIIEMERINSKY, supra note 9, at 670-71; see also 16B AM. JUR. 2», supra note 10, at § 777-858.23 CIIEMERINSKY, supra note 9, at 671.24 ClIEMEIUNSKY, supra note 9, at 670-71; see also 16B AM. JUR. 2», supra note 10, at § 777-858.25 CIIEMERINSKY, supra note 9, at 670-71; see also 16B AM. JUR. 21>, supra note 10, at § 777-858.See, e.g., Palmore v. Sidoti, 466 U.S. 429,432 (1984); see also 16B AM. JlJI{. 2», supra note 10, at § 777-858.

136 UNIVEI~SITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWobjective in a less discriminatory way.26 Further, the government must prove thatthere is a compelling purpose for discriminating. 27 "Under intermediate scrutiny,a law is upheld if it is substantially related to an important government purpose.,,28"Under rational basis review, a law is upheld if it is rationally related toa legitimate government purpose. ,,29According to the Supreme Court, selecting the appropriate level of scrutinydepends on the type of discrimination that takes place. 3o The Supreme Courtautomatically applies strict scrutiny to discrimination based on race, national origin,and alienage. 31 Further, the Supreme Court identifies gender and non-maritalchildren as quasi-suspect classes and applies intermediate scrutiny.32 For othertypes of discrimination, the Supreme Court looks at several factors to determineif a particular group should be considered a suspect class. 33 First, the Court examinesimmutable characteristics such as race, national origin, gender, and maritalstatus of a person's parents, because there is a fundamental lack of choice in eacharea. 34 Second, the Court determines if the group is unable to protect themselvesthrough the political process,35 Finally, the Court examines the history of a particulargroup and determines if the discrimination is "invidious. ,,36Generally, the Supreme Court does not wish to expand the list of suspect classificationsand the use of strict scrutiny or quasi-suspect classifications and the useof intermediate scrutiny, thus, other types of discrimination will usually only receiverational basis review. 37 If the government at the very least states a legitimatepurpose for the restrictive law such as protecting the health, safety, andmorals of the public then the law will generally survive rational basis review. 38Moreover, the Court has declared that under rational basis, the purpose of thelaw is not overly important and they will uphold the law if there are any reasona-26 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858.27 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858.28 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858.See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976); Lehr v. Robertson, 463 U.S. 248,266 (1983).29 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858.See, e.g., Craig, 429 U.S. at 197; Lehr, 463 U.S. at 266.30 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21), supra note 10, at § 777-858.31 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 21>, supra note 10, at § 777-858.32 CIIEMERINSKY, supra note 9, at 749, 777; see also 16B AM. JUR. 21>, supra note 10, at § 777-858.33 CIIEMERINSKY, supra note 9, at 671; see also 16B AM. JUR. 2D, supra note 10, at § 777-858.34 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777-858. See e.g. United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938).35 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777-858.36 CIIEMERINSKY, supra note 9, at 672, 795; see also 16B AM. JUR. 21>, supra note 10, at § 777-858.37 CIIEMERINSKY, supra note 9, at 672-73.38 CIIEMERINSKY, supra note 9, at 680; see also 16B AM. JUI~. 2D, supra note 10, at § 777-858.

SAME SEX MARRIAGE 137ble facts to support the discrimination. 39 Further, the Court upholds the law unlessthe government action is "clearly wrong. ,,40B. Substantive Due ProcessSubstantive Due Process is a question of whether the government has a sufficientreason for denying a person of life, liberty, or property.4l To find a violationunder substantive due process requires the infringement of a liberty interest andthe government action must not meet the appropriate level of review. 42 Further,if the liberty interest is a fundamental right then strict scrutiny is automaticallyused. 43Enumerated rights in the Constitution are fundamental rights. 44 The SupremeCourt has determined through case law that various unremunerated rights arealso fundamental rights either because of the importance of the interest or becauseof the expectations created by state law. 45 The Court reviews laws thatinfringe on fundamental rights under strict scrutiny.46 The government must havea "compelling interest" to justify an infringement of a fundamental right, showthat the law is necessary to achieve the stated purpose, and demonstrate thatthere is no less restrictive way to achieve the stated end. 47 If the liberty or right isnot fundamental, generally, rational basis review is applied and the governmentonly has to show a "legitimate interest" that is rationally related. 48Thus, to trigger equal protection, a law by a state or the federal governmentmust be based on a classification and violate the level of scrutiny applied to thatclassification. In addition, to trigger substantive due process, a law by a state orthe federal government must involve a liberty interest and violate the applicable39 CIIEMERINSKY, supra note 9, at 683; see also 16B AM. JUR. 2n, supra note 10, at § 777-858.See McGowan v. Maryland, 366 U.S. 420, 426 (1961).40 CIIEMElUNSKY, supra note 10, at 685; see also 16B AM. Jlm. 2n, supra note 10, at § 777-858.See Mathews v. DeCastro,429 U.S. 181, 185 (1976) (quoting Helvering v. Davis, 301 U.S. 619, 640(1937».41 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUR. 2n, supra note 10, at§ 890-922.42 CIIEMElUNSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUI~. 2n, supra note 10, at§ 890-922.43 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUR. 2n, supra note 10, at§ 890-922.44 CIIEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JUI~. 2n, supra note to, at§ 890-922.45 CHEMERINSKY, supra note 9, at 546, 565, 792-97; see also 16B AM. JIm. 2n, supra note 10, at§ 890-922.46 CIIEMERINSKY, supra note 9, at 565, 792-97; see also 168 AM. JUR 2D, supra note 10, at § 890-922.47 CJIEMEIUNSKY, supra note 9, at 797; see also 168 AM. JUR. 21>, supra note 10, at § 890-922.48 CIIEMElUNSKY, supra note 9, at 795 (citing Carolene Prod. Co., 304 U.S. at 152 n.4) (thejudiciary will defer to the legislature unless there is discrimination against a discrete and insular minorityor infringement of a fundamental right). See also 168 AM. JlJl~. 20, supra note to, at § 890-922.

138 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWlevel of scrutiny. Loving v. Virginia exemplifies the application of the traditionalequal protection principles and due process principles to the fundamental right tomarry.C. Loving v. VirginiaLoving v. Virginia symbolizes the Supreme Court's first recognition of theright to marry as a fundamental right protected as a liberty interest under theDue Process Clause. 49 In addition, Loving represents the Court's rejection ofdiscrimination under the Equal Protection Clause. 5o Both opponents and proponentsof same-sex marriages use Loving to support their viewpoints.In Loving, the Court declared Virginia's anti-miscegenation statute that prohibiteda "white person from marrying anyone other than another white person,unconstitutional.,,51 In 1958, Mildred Jeter, an African American woman, marriedRichard Loving, a Caucasian man, in Washington, D.C. 52 Shortly after themarriage they moved to Virginia, where they were charged with violating VirginiaCode Section 20-58 and 20-59. 53 Both sections of the Virginia Code derivetheir source from the adoption of the Racial Integrity Act of 1924,54 which statesin part:No marriage license shall be granted until the clerk or deputy clerk hasreasonable assurance that the statements as to color of both man and womanare correct. .. If there is reasonable cause to disbelieve that applicantsare of pure white race, when that fact is stated, the clerk or deputy clerkshall withhold the granting of the license until satisfactory proof is producedthat both applicants are "white persons" as provided for in this act. .. Itshall hereafter be unlawful for any white person in this State to marry anysave a white person, or a person with no other admixture of blood thanwhite and American Indian. For the purpose of this act, the term "white person"shall apply only to the person who has no trace whatsoever of any bloodother than Caucasian; but persons who has one-sixteenth or less of the bloodof the American Indian and has no other non-Caucasian blood shall bedeemed to be white persons. All laws heretofore passed and now in effectregarding the intermarriage of white and colored persons shall apply tomarriages prohibited by this act. .. All acts or parts of acts inconsistent withthis act are, to the extent of such inconsistency, hereby repealed 5549 CHEMERINSKY, supra note 9, at 798; see als016B AM. JUR 21) supra note to, at § 890-922.50 CHEMERINSKY, supra note 9, at 798; see also16B AM. JUR 21) supra note 10, at § 890-922.51 Loving v. Virginia, 388 U.S. 1 (1967).52 Id. at 2.53 Id. at 3.54 Id. at 6.55 Virginia Racial Integrity Act of 1924, http://www2.vcdh.virginia.edu/encounter/projects/monacans/Contemporary_Monacans/racial.html (last visited May 3, 2010) (emphasis added).

SAME SEX MARRIAGE 139The Lovings pled guilty to the charge. 56 In the subsequent trial, the presidingjudge suspended the Lovings' one-year jail sentence on the condition that theyleave the Virginia. 57 The Lovings moved back to D.C., but instituted a suit inVirginia's Supreme Court of Appeals. 58 The Court of Appeals affirmed their convictions.59 The Lovings appealed to the United States Supreme Court. 60Under equal protection, the state contended that its miscegenation statutespunished both white and the black people in an interracial marriage equally, thus,their "reliance on racial classifications did not constitute invidious discriminationbased upon race.,,61 The state assumed that this argument was valid,62 and assertedthat the constitutional issue was "whether there is any rational basis for aState to treat interracial marriages differently from other marriages. ,,63 On thisquestion, the state argued that since the scientific evidence regarding interracialmarriages was disputable, the appellate court should defer to the wisdom of thestate legislature and adopt its policy of discouraging interracial marriages. 64 TheAppeals Court did exactly this, and affirmed the Lovings' conviction. 65 Fortunately,the Supreme Court did not agree with the state's argument and found thatthe equal application of the anti-miscegenation law to whites and blacks did notmean that it deserved rational basis review. 66 The Court held that the law impermissiblyclassified couples based on race and should be reviewed using strict scrutiny.67Under strict scrutiny, the state lacked a compelling reason to restrict theright to marry.68 Thus, the anti-miscegenation law constituted invidious racialdiscrimination. 69The Court found that Virginia's anti- miscegenation law was a violation of thefundamental right to marry and the state does not have a compelling reason todeny interracial couples the right to marry.70 The law "deprives all of the State'scitizens of liberty without due process of law."71 Thus, Loving represents the basicprinciples of constitutional analysis under the Fourteenth Amendment.56 Id.57 Loving, 338 U.S. at 3.58 Id. at 4.59 /d.60 Id.61 Loving, 388 U.S. at 8.62 Id.63 Id.64 Id.65 Id.66 Loving, 388 U.S. at 9.67 Id.68 Id.69 Id. at 11.70 Loving, 388 U.S. at 11 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942»; see also Maynardv. Hill, 125 U.S. 190 (1888).71 Loving, 388 U.S. at 12.

140 UNIVERSITY OF TIlE DISTRIC(, OF COLUMBIA LAW REVIEWII. SAME-SEX COUPLES RIGHT TO MARRY UNDER THE CONSTITUTIONA. Equal ProtectionThe proponents of same-sex marriage, who state that Loving v. Virginia standsfor the proposition that same-sex marriages are a violation of equal protectionand due process, have analyzed the case incorrectly.72 The Court stated that Virginia'santi-miscegenation statute was invalidated solely on the grounds of racialdiscrimination?3 The Court acknowledged that not "all state restrictions uponthe right to marry are beyond the reach of the Fourteenth Amendment.,,74 Nevertheless,"there is a clear distinction between a marital restriction based merelyupon race and one based upon the fundamental difference in sex.,,75 Finally, theCourt held that the state marriage statute recognizes only opposite-sex marriages,and this limitation does not violate the Fourteenth Amendment right toequal protection and due process. 76Another reason why Loving is not the answer to questions on the legality ofsame-sex marriage is that the Supreme Court has not determined if discriminationbased on sexual orientation requires the application of intermediate or strictscrutiny?7 However, most of the United States Courts of Appeals cases haveheld that rational basis is the correct standard of review for discrimination basedon sexual orientation. 7s In the various appellate cases that use rational basis review,the majority of them uphold restrictive laws based on sexual orientation. 79One exception is Watkins v. United States Army, where the court held that strictscrutiny is the proper standard of review for discrimination based on sexual orientation.so The majority of the appellate courts use rational basis review foundthat sexual orientation is not a suspect classification warranting strict scrutinybecause homosexuality is arguably not an immutable characteristic such as race,national origin, or gender. Furthermore, the Courts found that homosexuals areable to protect themselves through the political process unlike aliens, and homo-72 Richard F. Duncan, From Loving to Romer: Homosexual Marriage and Moral Discernment,12 BYU J. PUB. L. 239,243 (1998).73 Robin Cheryl Miller & Jason Binimow, Annotation, Marriage between Persons of Same Sex-Unites States and Canadian Cases, I A.L.R. FEll. 2d 1, §7 (2005).74 [d.75 [d.76 [d.77 CIIEMERINSKY, supra note 9, at 787.78 [d. at 788 (citing Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Equal. Found. ofGreater Cincinnati, 54 F.3d at 26; Nat'l Gay Task Force v. Bd. of Educ. of Okla. City, 729 F.2d 1270(10th Cir. 1984); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Steffan v. Perry, 41 F.3d 677 (D.C.Cir. 1994); see also High Tech Gays v. Def. Insus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990)(rejecting view that sexual orientation is a suspect classification».79 CIIEMERINSKY, supra note 9, at 788 (citing Watkins v. U.S. Army, 875 F.2d 699 (9th Cir.1989».80 CIIEMERINSKY, supra note 9, at 788 (citing Watkins, 875 F.2d at 699).

SAME SEX MARRIAGE 141sexuals as a class do not have a history of "invidious" discrimination. Thus, inview of the prevailing use of rational basis, restrictions on same-sex marriageswill have a very high probability of surviving under equal protection.Ben-Shalom v. Marsh is one of the first cases where an appellate court did notfind that homosexuals are a suspect class. In Ben-Shalom, the plaintiff was a sergeantin the United States Army Reserve on active duty with the 509th 1stUnited States Army Reception Battalion in Milwaukee, Wisconsin. 81 While servingher original enlistment, the Plaintiff tried to reenlist for another six-yearterm. 82 In response, the Plaintiffs commanding officer notified her that the Armywas considering barring her from reenlistment because she admitted to being ahomosexual. 83 Subsequently, the Army discharged her from the Reserves pursuantto an Army regulation that allows the discharge of any soldier who "evidenceshomosexual tendencies, desire, or interest, but is without overthomosexual acts.,,84On appeal, the appellate court held that homosexuals are not a suspect orquasi-suspect classification, because the law was not based on the Plaintiffs statusas a homosexual. 85 The state established the law to prevent homosexual conductthat disrupts discipline. 86 In addition, the appellate court found that while homosexualshave suffered a history of discrimination in the military, the Army's regulationwas considered "invidious" under equal protection. s7 Further, the courtfound that homosexuals have political power,88 "where a political approach isopen to them to seek a congressional determination about the rejection of homosexualsby the Army.,,89 The appellate court found that the Army's regulationpromoted a legitimate government interest that was passable under rational basisreview. 90 The appellate court agreed with Judge Hall, who wrote in the dissent inWatkins, "there is no doubt that the majority's intrusion into military affairs, unjustifiedby important federal interests, will have a disruptive effect upon militarydiscipline.,,91 Thus, the appellate court in Ben-Shalom held that strict scrutinydoes not apply to laws regarding sexual orientation. 9281 Ben-Shalom, 881 F.2d at 456.82 Id.83 Id.84 Id. at 457.85 Id.86 Ben-Shalom, 881 F.2d at 457.87 Id. at 466.88 Id. (citing Cleburne, 473 U.S. at 445 (1985».89 Id.90 Id. (citing Watkins, 875 F.2d at 699) (the court agreed with Judge Hall, who wrote in dissentin Watkins, that "[t]here is no doubt that the majority's intrusion into military affairs, unjustified byimportant federal interests, will have a disruptive effect upon military discipline").91 Ben-Shalom, 881 F.2d at 466.92 Id.

142 UNIVERSITY OF TilE DISTRICf OF COLUMBIA LAW REVIEWAnother appellate court decision, Equality Foundation of Greater Cincinnati v.City of Cincinnati, did not find that homosexuality is a suspect classification. 93 InEquality Foundation of Greater Cincinnati, the city appealed a bench trial judgment,which found "Issue 3," a voter amendment to the city charter, unconstitutionalbecause the amendment violated equal protection. 94 The trial court foundthat homosexuals are a suspect classification with limited political access and theamendment does not survive strict scrutiny.95 The voters approved the amendmentin an effort to appeal the Cincinnati City Council ("Council") enactment ofthe "Equal Employment Opportunity Ordinance," which stated that the Citymay not discriminate in its own hiring practices because of classifications likesexual orientation. 96 In addition, the amendment contradicted another Councilordinance, the "Human Rights Ordinance," which prohibits private discriminationin areas such as employment, housing, or public accommodation because ofsexual orientation. 97 The appellate court disagreed with the trial court and foundhomosexuals are not subject to a quasi-suspect classification based on their sexualorientation. 98 Further, the appellate court, found that homosexuality is based onconduct, which is not easily identifiable or immutable and therefore is not a classificationthat deserves strict scrutiny.99 Specifically, the appellate court determinedthat:No law can successfully be drafted that is calculated to burden or penalize,or to benefit or protect, an unidentifiable group or class of individualswhose identity is defined by subjective and unapparent characteristics suchas innate desires, drives, and thoughts. Those persons having a homosexual"orientation" simply do not, as such, comprise an identifiable class. Manyhomosexuals successfully conceal their orientation. Because homosexualsgenerally are not identifiable "on sight" unless they elect to be so identifiableby conduct (such as public displays of homosexual affection or seIf-93 Equal. Found. of Greater Cincinnati, 54 F.3d at 261.94 [d. at 263.95 [d. at 266.96 [d.97 [d.98 Equal. Found. of Greater Cincinnati, 54 F.2d at 266-67.99 [d. (citing Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en bane) (following Padula,822 F.2d at 103 ("It would be quite anomalous, on its face, to declare status defined by conduct thatstates may constitutionally criminalize as deserving of strict scrutiny under the equal protectionclause"»; Ben-Shalom, 881 F.2d at 464, cerro denied, 494 U.S. 1004 (1990) ("If homosexual conductmay constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspectclass entitled to greater than rational basis scrutiny for equal protection purposes"); High Tech Gays,895 F.2d at 571; Baker v. Wade, 769 F.2d 289,292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022(1986) (homosexuals compose neither a suspect nor a quasi-suspect class); Nat'l Gay Task Force, 729F.2d at 1273, affd mem., by an equally divided Court, 470 U.S. 105 (1985) (legal classification of gaysis not suspect) (both decided prior to Bowers».

SAME SEX MARRIAG E 143proclamation of homosexual tendencies), they cannot constitute a suspectclass or a quasi-suspect class because "they do not [necessarily] exhibit obvious,immutable, or distinguishing characteristics that define them as a discretegroup [.]"100Further, the appellate court found that homosexuals are not prevented fromparticipating in the political process, where they have other avenues to supporthomosexual legislation through their Congressmen, and where the amendmentdoes not stop homosexuals from voting for City Council members. 101 The amendmentonly "renders futile the lobbying of Council for preferential enactments forhomosexuals because the electorate places the enactment of such legislation beyondthe scope of Council's authority." 102Finally, the appellate court found that under rational basis the amendment hadthe legitimate purpose of allowing the Council to return to a "neutral opinion"about homosexuality.103 Similar to Ben-Shalom, the appellate court found thatstrict scrutiny did not apply to matters of sexual orientation, because homosexualsare not considered a suspect class.National Gay Task Force v. Board of Education of Oklahoma City is anotherexample where an appellate court did not find homosexuality to be a suspectclass. In National Gay Task Force, the Plaintiffs challenged a statute that prohibitsteachers from displaying "public homosexual conduct, which means advocating,soliciting, imposing, encouraging, or promoting public or private homosexualactivity in a manner that creates a substantial risk that such conduct will come tothe attention of school children or school employees."I04 The appellate court rejectedthe equal protection claim and found that teachers displaying homosexualconduct do not meet the standards of a suspect classification. I OS However, theappellate court did have the "advocating" section of the statute removed becausethat particular section was unconstitutionally overbroad under the First Amendment.106 The Supreme Court affirmed the decision in this case l07Steffan v. Perry also follows the other appellate court decisions. In Steffan, aNaval Academy midshipman was forced to resign because he admitted to twofellow midshipmen and the chaplain that he was a homosexual.10 8 In the subse-100 Equal. Found. of Greater Cincinnati, 54 F.3d at 266-67 (citing Bowen v. Gilliard, 483 u.s.587,602 (1987».101 [d. at 266-69.102 [d.103 [d. at 270.104 Nat'l Gay Task Force, 729 F.2d at 1272.105 [d. at 1273.106 [d. at 1274.107 Bd. of Educ. of Okla. City v. Nat'l Gay Task Force. 470 U.S. 903 (1985).108 Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994).

144 UNIVEHSITY OF TI IE DISTRICT OF COLUMBIA LAW REVIEWquent investigation, he only admitted to being a homosexual when asked. lo9 Hewas eventually discharged from the Naval Academy.llo The Court of Appeals enbane held that the Naval Academy regulations and the directives of the Departmentof Defense ("DOD") did not violate the midshipmens' equal protectionrights under the Constitution. I II The appellate court held that homosexuals arenot a suspect class, because "a group that is defined by reference to that conductcannot constitute a 'suspect class.'"\ 12 Thus, under rational basis review, the NavalAcademy regulations that discharge admitted homosexuals because they mayengage in homosexual conduct, rationally relates to the legitimate interest in preservingorder and unity within the military. I 13 Although homosexuals cannot bedischarged based solely on their "status" as a homosexual, they can be dischargedbased on the presumption that they will or have engaged in homosexual condUCt.II4 Thus, the military may rely on the presumption of homosexual conductto avoid the administrative cost that will be needed to produce evidence of theconduct, "so long as there is a rational basis for the belief that the presumptionfurthers that end.,,115 In addition, "the military furthers its policy of dischargingthose members who either engage in, or are likely to engage in, homosexual conductwhen it discharges those who state that they are homosexual." I 16 The courtcan use a rational basis review to the DOD directives. However, it was unnecessaryfor the appellate court to apply such a review because the service memberadmitted he was a homosexual and the resulting implication was that he engagedin homosexual conduct. I I? Thus, his admission made his facial challenge that theAcademy based his discharge on his "inner thoughts" or "desires" instead of actualconduct moot. IISWatkins v. United States Army is one notable case in which the appellate courtreversed the revocation of a service member's security clearance and dischargefrom the Army because of his homosexuality. In 1981, the Army discharged Watkins,a soldier in the Army, pursuant to a newly adopted Army Regulation thatordered the discharge of all homosexuals "regardless of merit.,,119 The Army dischargedWatkins despite the fact that they knew of his homosexuality from hisoriginal enlistment. 12o In addition, they were aware of his homosexuality where109 [d. at 677-86.110 [d.111 [d.112 [d. at n.3.113 Perry,41 F.3d at 677-86.114 [d. at 686.115 [d.116 [d.117 [d.118 Perry, 41 F.3d at 677-93.119 Watkins,875 F.2d at 701-05.120 [d.

SAME SEX MARRIAGE 145he admitted in an affidavit that he engaged in homosexual conduct with twoother soldiers.121 The District Court enjoined the Army from discharging Watkins122 and from barring Watkins' reenlistment. 123 However, the appellate courtvacated the District Court's injunction allowing reenlistment. 124 On remand, theDistrict Court found for the Army, thus Watkins filed a second appeal. 125The Court of Appeals in Watkins found that although the Army had a policythat "homosexuality is a non-waivable disqualification for reenlistment," theycontinued to reenlist the service member throughout his fourteen-year career. 126The Court of Appeals held that the Army could not discharge Watkins under thenew 1981 ordinance, based on their actions reenlisting the member. 127 Watkinsdoes not lend support to the proposition that homosexuality is a suspect classification,thus triggering strict scrutiny review, because the only mention of equalprotection violations is in the concurring opinion. 128 Although the SupremeCourt has been silent on the issue, the appellate court in Watkins like the majorityof federal appellate cases previously discussed did not find that homosexualityis a suspect classification.Similar to Watkins, Romer v. Evans, and Lawrence v. Texas do not proposethat homosexuality is a suspect classification and that strict scrutiny is the standardof review for laws on sexual orientation. In Romer, the Supreme Court invalidatedan amendment to Colorado's Constitution that prohibited anylegislative, executive, or judicial action designed to protect homosexuals from discrimination.129 The Court held that the law impermissibly made it more difficultfor homosexuals to receive help from the government than for other citizens andwas a violation of equal protection. 130 Although the Court was silent on whethersexuality is a suspect classification, it appears that the Court applied the rationalbasis test. 131 Under the rational basis test, the Court held that the amendment didnot advance a legitimate legislative goal and only denied homosexuals equal protectionunder Colorado's Constitution. 132 The amendment was impermissible becauseit promoted discrimination against homosexuals. 133 Romer does not state121 Id.122 Id.123 Id.124 Watkins, 875 F.2d at 701-05.125 Id.126 Id. at 707.127 Id.128 Id. at 738.129 Ann M. Reding. Lofton v. Kearney: Equal Protection Mandates Equal Adoption Rights. 36U.c. DAVIS L. REV. 1285. 1295 (2003) (citing Romer v. Evans. 517 U.S. 620 (1996».130 Id.131 Id.132 Id.133 Id.

146 UNIVEI~SITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWthat homosexuality is a suspect classification, and does not call for the use ofstrict scrutiny review.134In Lawrence, the trial court convicted two men under a Texas criminal statutethat prohibits sodomy between people of the same sex. 135 The Supreme Courtreversed the Texas conviction, and found that the prohibition violated privacyrightS. 136 The Court found that people should have privacy in their own privateaffairs. 137 "While Lawrence is a victory for homosexuals, it does not provide anequal protection victory.,,138 The Court did not determine whether homosexualsare a suspect class or the level of review homosexuals should be provided in anequal protection lawsuit. 139 Moreover, the majority opinion explicitly states thatits decision did not involve "whether the government must give formal recognitionto any relationship that homosexual persons seek to enter."140 Thus, likeRomer, Lawrence does not classify homosexuals as a suspect or quasi-suspectclass. Nor does Lawrence promote the use of strict scrutiny review.Most appellate courts such as those in Ben Shalom, Equality Foundation ofGreater Cincinnati, National Gay Task Force, and Steffan, use traditional constitutionalanalysis of the Equal Protection Clause and find that homosexuals do notmeet the three factors, established by the Supreme Court, that are necessary tofind a suspect classification. Thus, the majority of courts including the SupremeCourt in Lawrence and Romer do not consider homosexuals a suspect or quasisuspectclass. Further, since homosexuals are generally not considered a suspectclass, it follows that same-sex restrictions should be reviewed in equal protectionchallenges under rational basis. Moreover, since most state actions survive rationalbasis review, same-sex marriage restrictions based on a legitimate reasonwill also survive.The majority of the appellate courts do not find that homosexuals are a suspectclass because (1) there is a lack of overwhelming scientific data showinghomosexuality as an immutable characteristic, (2) there is a lack of data showinghomosexual discrimination reaches the level of "invidious" discrimination, and(3) that political outlets, although weak, are available to homosexuals.134 Reding, supra note 129, at 1295.135 Charles E. Mauney, Jr., Landmark Decision or Limited Precedent: Does Lawrence v. TexasRequire Recognition of a Fundamental Right to Same-Sex Marriage?, 35 CUMBo L. REV. 147, 154(2005).136 Id.137 Id.138 Kari Balog, Equal Protection for Homosexuals: Why the Immutability Argument Is Necessaryand How It Is Met, 53 CLI~V. ST. L. REV. 545,552 (2006).139 Id.140 Lawrence V. Texas, 539 U.S. 558, 578 (2003).

SAME SEX MARRIAGE 147There is no overwhelming scientific data that shows that homosexuality is animmutable characteristic. 141 In fact, most of the scientific data on homosexualityis mixed. 142 "An immutable characteristic is a trait that is 'determined solely bythe accident of birth' and is 'not capable of or susceptible to change.",143 "Thisdefinition of immutability does not include 'ethnic or socio-cultural' characteristics'such as citizenship or alienage' or 'poverty.",144 "While this definition seemsto exclude psychological conditions and only include biological traits, a predispositionto a certain psychological trait is determined solely by the accident of birth,thus being beyond the control of the inheriting child."14s However, the Courtdoes not currently recognize psychological traits. 146 "According to current scientificand professional understanding, the core attractions that form the basis foradult sexual orientation typically emerge between middle childhood and earlyadolescence."147 However, some studies find homosexuality is determined atbirth. 148 Thus, with the lack of definitive scientific proof that homosexuality is acharacteristic from birth such as race or gender, it follows that homosexualitydoes not meet the definition of an immutable characteristic.Further, homosexuality lacks the level of discrimination necessary to find "invidious"discrimination. The Lawrence Court's opinion stated, "there is not alongstanding history in this country of laws directed at homosexual conduct as adistinct matter.,,149 Thus, there is no foundation for an equal protection claimwithout proof of inviduious discrimination or "discriminatory purpose."IS0 A"discriminatory purpose implies more than intent as volition or intent as awarenessof consequences."IS1 "Rather, it implies that the 'state legislature, selected141 Lyn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996B.Y.U. L. REV. 1,62-74 (1996).142 Balog, supra note 138, at 554; see also Janet E. Halley, Sexual Orientation and the Politics ofBiology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503 (1994).143 Balog, supra note 138, at 554; see also Halley, supra note 142, at 503; see also Fronterio v.Richardson, 411 U.S. 677, 686-87 (1973); Garcia v. Gloor, 618 F.2d 264,269 (5th Cir. 1980); Downenv. Warner, 481 F.2d 642, 643 (9th Cir. 1973).144 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411U.S. at 686-87; Gloor, 618 F.2d at 269; Warner,481 F.2d at 643.145 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411U.S. at 686-87; Gloor, 618 F.2d at 269; Warner, 481 F.2d at 643.146 Balog, supra note 138, at 554-55; see also Halley, supra note 142 at 503; Richardson, 411U.S. at 686-87; Gloor, 618 F.2d at 269; Warner, 481 F.2d at 643.147 AMERICAN PSYCIIOLOGICAL ASSOCIATION. ANSWERS TO YOUR QUESTIONS: FOR BmTERUNDERSTANDING OF SEXUAL ORIENTATION AND HOMOSEXUALITY (2008), http://www.apa.orgltopics/sexuality/sorientation.pdf.148 Balog, supra note 138, at 556.149 Lawrence, 539 U.S. at 565.150 K.G. Jan Pillai, Shrinking Domain of Invidious Intent, 9 WM. & MARY BILL OF Rrs. J. 525,528 (2001) (citing Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 278-79 (1979»; see also AndrewKoppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL OF Rrs. J. 89 (1997).151 Pillai, supra note 150, at 525, 528; see also Koppelman, supra note 150, at 89.

148 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWor reaffirmed a particular course of action at least in part 'because of,' not merely. 'in spite of,' its adverse effects upon an identifiable group.,,152 The Court's rationaleimplies that many individuals or groups can claim that they have experienceda history of discrimination, but the key is that the level of discriminationshould be "invidious" and based on an immutable characteristic. 153 The discriminationexperienced by homosexuals does not rise to the same level discriminationexperienced by other suspect classifications such as race. Thus, homosexual discriminationdoes not meet the level of "invidious" discrimination necessary toclassify homosexuality as a suspect classification. Today, the level of discriminationexperienced by people of different races is still three times more evidentthan discrimination based on sexual orientation. The Federal Bureau of Investigation2008 Hate Crime Report showed that there are three times as many acts ofracial discrimination than discrimination based on sexual orientation. 154Finally, homosexuals have political outlets. 155 Although, the available outletsare not strong enough to defeat their opposition,156 it cannot be said that they area "discrete and insular" minority lacking in political power. Homosexuals are notconsidered "discrete and insular," because over the years they have been able tolobby for gay rightS. 15 ? Although homosexuals have ·not always been successful intheir political endeavors, they are able to influence legislation. 15s Several billswere introduced in Congress, where at least eight states have legislation that protectshomosexuality, several cities and counties incorporate "sexual orientation"into their civil rights statutes and ordinances, and several jurisdictions adopt somekind of protection for homosexuality.159 For example, the Federal MarriageAmendment was successfully defeated, in part because of strong opposition fromhomosexual activists. 160Under equal protection, the majority of appellate courts find that homosexualitydoes not meet the three factors that the Supreme Court typically uses to determineif a group is considered a suspect class. Thus, strict scrutiny review for equalprotection challenges should not be applied to laws that restrict marriage to oppositesex couples. While the Supreme Court is silent on the type of review, ho-152 Pill ai, supra note 150, at 525, 528; see also Koppelman, supra note 150, at 89.153 Pillai, supra note 150, at 571.154 Federal Bureau of Investigation. http://www.fbi.gov (last visited Jan. 17, 2(09).155 Patrick Healy, Democrats Voice Support of Gay Rights in TV Forum, N.Y. TIMES, Aug. 10,2007, available at http://www.nytimes.coml2oo7/08/10/us/politics/10dems.html.156 Emily K. Baxter, Rationaliz.ing Away Political Powerlessness: Equal Protection Analysis ofLaws Classifying Gays and Lesbians, 72 Mo. L. REV. 891, 891 (2007).157 Monte E. Kuligowski, Romer v. Evans: Judicial Judgment or Emotive Utterance?, 12 ST.JOliN'S J. LEGAL COMMENT. 323,324 (1996).158 [d.159 [d.160 Christopher Wolfe, The Meaning of Marriage: Why the Federal Marriage Amendment isNecessary, 42 SAN DIEGO L. REV. 895, 895 (2005).

SAME SEX MARRIAGE 149mosexuality should receive, it is clear that rational basis is currently theprevailing standard in Equal Protection challenges. Generally, if same sex marriagerestrictions are reviewed under rational basis, typically any legitimate reasonprovided by the state or federal government should survive. 161B. Substantive Due ProcessThe Supreme Court in Zablocki held that the right to marry is a fundamentalliberty interest and subject to strict scrutiny.162 Since there is no fundamentalright for same-sex couples to marry, laws restricting marriage to heterosexuals isnot reviewed under strict scrutiny. Rational basis review should be used in reviewingwhether there is a violation of due process. Much like equal protection,it is easy for a state or government to provide a legitimate reason for restrictingmarriage to heterosexual couples. Several cases support this proposition and findno violation of due process when same-sex couples are restricted from marriage.The appellate court in Dean v. District of Columbia rejected the propositionthat same-sex marriage is guaranteed under the Due Process Clause of the Constitutionas a fundamental right.163 Quoting the Supreme Court in Palko, the appellatecourt stated that a fundamental right is one that is "deeply rooted in theNation's history and tradition.,,164 Although homosexuals can have childrenthrough adoption, surrogacy, and artificial insemination; and not all heterosexualsmay want or have children, the appellate court stated that it cannot overlookthe fact that the Supreme Court deems marriage a fundamental right because ofits relationship to procreation. 165 Thus, the appellate court reasoned that thefundamental right to marry as recognized by the Supreme Court only contemplatesmarriages between heterosexuals or people who can procreate with eachother. 166 Thus, the issue is whether there is a constitutional basis under the dueprocess clause for finding that the fundamental right to marry granted to heterosexualcouples extends to homosexual couples. 167 The appellate court said thatthe answer is "NO.,,168Another case, High Tech Gays v. Defense Industries Security Clearance Office,involves a class action suit on behalf of homosexuals against the Department ofDefense alleging violation of the Constitution's Due Process Clause. 169 The161 CIIEMERINSKY, supra note 9, at 683, 685; see also, 16B AM. JUR 2D, supra note 10, at § 777-858.162 Zablocki v. Redhail, 434 U.S. 190 (1978).163 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995); Miller & Binimow, supra note 73,at 1.164 Dean, 653 A.2d at 332.165 [d. at 333.166 [d.167 [d.168 [d.169 High Tech Gays, 895 F.2d at 574.

150 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWDOD performs extensive background checks on applicants who define themselvesas homosexuals under the premise that a more extensive check is requiredto protect the government's legitimate interest in protecting national secrets. 170The appellate court determined that homosexuals have suffered a history of discrimination,however, the other criteria requiring an immutable characteristic fora "suspect" or "quasi-suspect" is not satisfied. 171 Homosexuality is considered abehavior and fundamentally different from immutable traits such as race or gender,where the "behavior or conduct of the already recognized classes is irrelevantto their identification."I72 Further, homosexuals have political power asevidenced in their ability to persuade legislatures to address homosexual discriminationthrough the passage of anti-discrimination legislation. 173 Thus, the Courtfound that homosexuality is not an immutable characteristic, and the right tomarry someone of the same sex is not a fundamental right,I74 The court reasonedthat since a fundamental right is not involved, the government only has to have alegitimate interest rationally related to the law.175 Thus, the appellate court heldthat the government interest in protecting governmental secrets is legitimatewhere it is known that homosexuals are targets for blackmail. I76Finally in Wilson v. Ake, the District Court held that same-sex marriage is nota fundamental right guaranteed by the Due Process Clause of the Constitution.I77 A county clerk in Florida did not recognize Nancy Wilson's and PaulaSchoenwether's Massachusetts marriage license. 178 The Plaintiffs filed a declaratoryjudgment request that asked the District Court to find the Federal Defenseof Marriage Act ("DOMA"), 1 U.S.C. § 7; 28 U.S.C. § 1738C, and Florida StatutesSection 741.212 unconstitutional and to enjoin their enforcement. 179 TheWilson court followed Supreme Court precedent and defined fundamental rightsas those liberties that are "implicit in the concept of ordered liberty, such thatneither liberty nor justice will exist if they are sacrificed. ,,180 The Wilson courtobserved that the Due Process Clause "specially protects those fundamentalrights and liberties that are, objectively, deeply rooted in this Nation's history and170 [d.171 [d. at 573-74.172 [d.173 [d.174 High Tech Gays, 895 F.2d at 573-74.175 [d.176 [d. at 576177 Wilson v. Ake, 354 F. Supp. 2d 1298, 1301 (M.D. Fla. 2(05).178 [d.179 [d. at 1302.180 [d. at 1306 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (]997» (quoting Palko v.Connecticut, 302 U.S. 3]9, 325-26 (1937».

SAME SEX MARRIAGE 151tradition.,,181 The Wilson court stated that the petitioner's interpretation thatLawrence v. Texas grants a fundamental right to homosexuals to marry eachother is incorrect. 182 Moreover, the Court stated that the Lawrence v. Texas holdingexplicitly "does not involve whether the government must give formal recognitionto any relationship that homosexual persons seek to enter.,,183 Although itis important to recognize the importance of a homosexual person's ability tochoose their partners, this is not a fundamental right, thus no violation of DueProcess Clause under the Constitution. l84The Courts in Dean, High Tech Gays, and Wilson all follow the same constitutionalanalysis, stating that the right to marry is a fundamentally protected libertyinterest and restrictions on this right should be reviewed under strict scrutiny.However, there is no fundamental right or liberty interest that states homosexualshave the right to marry that is rooted in our nation's history or tradition. Thus,rational basis review should be used. In general, most states that use rationalbasis review will uphold marriage restrictions if there is a legitimate interest.III. SAME-SEX COUPLES RIGHT TO MARRY UNDER STATE CONSTITUTIONSA. Same-Sex Marriage Restrictions Do Not Violate State ConstitutionsThe courts in the following cases hold that the limitation of state recognizedmarriage to opposite sex couples does not violate a state constitutional provisionmandating equal protection or due process of law. 185 The courts utilized the samefactors and principles that the federal Circuit Courts of Appeals used in its analysisof same-sex marriage under the U.S. Constitution}86In Standhardt v. Superior Court, the clerk denied two men a marriage licensebased on Arizona Revised Statute Section 25-101(C) where "marriage betweenpersons of the same sex is void and prohibited," and Arizona Revised StatuteSection 25-125A where "valid marriages are contracted by a male person and afemale person." I 87 The men claim violations of their fundamental right to marryand equal protection under both the Constitution and Arizona constitution. 188The Superior Court, much like the federal Circuit Courts discussed earlier, deter-181 Id. (quoting Washington v. Glucksberg, 521 U.S. at 720-21) (quoting Moore v. East Cleveland,431 U.S. 494, 503 (1977».182 Wilson, 354 F. Supp. 2d at 1298 (quoting Washington v. Glucksberg, 521 U.S. at 720-21)(quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977».183 Id. (quoting Lawrence 539 U.S. at 578».184 Id.185 Miller & Binimow, supra note 73, at 1.186 Miller & Binimow, supra note 73, at 1.187 A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, andDomestic Partnerships, 38 FAM. L.Q. 339, 376 (2004); Standhart v. Sup. Court, 77 P.3d 451 (Ariz. Ct.App.2003).188 Standhart, 77 P.3d at 451 n.1.

152 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWmined that in order to have a violation of due process under the Constitutionthere must be a violation of a fundamental right.189 The Superior Court determinedthat neither the Supreme Court nor the Arizona state courts found thatmarrying someone of the same-sex is a fundamental right. 19o Further, the holdingin Lawrence does not state that same-sex marriage is a fundamental right. 191The Superior Court also discredited petitioner's argument that Loving standsfor the proposition that the right to marry can be extended to same-sex couples asit is extended for interracial couples. 192 The Superior Court found that same-sexrecognition would not be an extension of the right to marry but "will redefine thelegal meaning of marriage" because the right to marry and marriage is groundedin procreation and marriage is defined as being between a man and women. 193Thus, the Superior Court struck down Petitioner's arguments that there is a fundamentalright for same-sex marriages under the state constitution. 194 The SuperiorCourt also rejected Petitioner's claim that Arizona's constitution goesbeyond the United States Constitution by conferring greater individual rightssuch as the right to marry for same-sex couples. 195 The superior court explicitlystated that the expansion of privacy rights to health care and home searches donot equate to the extension of the right to marry.196 In addition, the court foundthat the intent of the framers of the Arizona Constitution does not show that theycontemplated same-sex marriage. 197 Thus, the Arizona Constitution like theUnited States Constitution does not support redefining of "marriage" or the expansionof the right to marry to same-sex couples. Finally, the Superior Courtdetermined that since there was no fundamental right to marry under the Constitutionor expansion of privacy rights under Arizona's Constitution, the state'sgoal in protecting procreation was legitimately related to the prohibition againstsame-sex marriage. 198Following along the same lines as Arizona, Indiana did not find a violation ofequal protection or due process under its state constitution. Indiana's Defense ofMarriage ("DOMA") statute was challenged in Morrison v. Sadler, as violatingthe Indiana Constitution Article 1, Section 23; Article 1, Section 1; or Article 1,Section 12, by three same-sex couples who sought to be recognized as married,after traveli.ng to Vermont and obtaining civil unions. 199 The Petitioners con-189 [d. at 460-61.190 [d.191 [d. at 458.192 [d.193 Standhart, 77 P.3d at 458.194 [d.195 [d. at 460-61.196 [d.197 [d.198 Standhart, 77 P.3d at 460-61.199 Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. Ct. App. 2005).

SAME SEX MARRIAGE 153ceded that under the United States Constitution there is no fundamental right tosame-sex marriage. 2OO The Indiana appellate court determined that Article 1,Section 1, does not confer a "core value" or fundamental right, and, if it does, thehistory does not show that same-sex marriage is a "core value.,,201 Further, theappellate court held that Article 1, Section 12 would be the equivalent of a substantivedue process right under the United States Constitution, and Petitionersagain do not meet the qualifications to support a due process violation underIndiana's Constitution. 202Unlike the previous states, New York has many cases regarding the right tomarry for same-sex couples under their State Constitution. However, most NewYork cases, such as Hernandez v. Robles do not support same-sex marriagesunder New York's State Constitution. 203 The couple in this case claimed NewYork Domestic Relations Law articles 2 and 3 violated the New York Constitution'sDue Process and Equal Protection Clauses by limiting marriage to oppositesex couples. 204 The Hernandez court found that articles 2 and 3 do not specificallylimit marriage to opposite sex couples, but that is clearly the intent fromstudying other statutes. 205The Hernandez court correctly points out that the Plaintiff's reliance on Lovingis misplaced. 206 The court stated that the history behind the statute in Lovingis based on racism dating back to the birth of this country, whereas the limitationon marriage for opposite sex couples is based on the traditional definition ofmarriage and is not based on historical injustice. 207 In addition, since there is nofundamental right to same sex marriage rooted in "history and tradition," theanalysis under due process uses rational basis review. 208 Further, since same-sexmarriage does not fall within a suspect classification, the New York statute is alsoreviewed using rational basis under equal protection. 209 Additionally, while "sexdiscrimination" may trigger intermediate or even strict scrutiny, the limitation onmarriage to opposite sex couples is not "sex discrimination," because men andwomen are placed on unequal footing based on their gender?10 Homosexuality isa sexual preference not an immutable trait based on gender 211 The Hernandezcourt explicitly held that the legislature is free to expand the definition to include200 [d.201 [d. at 31-33.202 [d. at 33-35.203 Hernandez v. Robles. 855 N.E.2d 1 (N.Y. 2006).204 Hernandez. 855 N.E.2d at 5.205 [d.206 [d.207 [d. at 7-tO.208 [d.209 Hernandez. 855 N.E.2d at to.210 [d.211 [d.

154 UNIVEI~SITY OF THE DlsTRlcr OF COLUMBIA LAW REVIEWsame sex couples but the state has a rational basis in limiting marriage to oppositesex couples in the best interest of children and preservation of procreationthrough marriage. 212 There is no violation of either equal protection or due processunder New York's Constitution?13The majority of states such as those in Standhardt, Morrison, and Hernandezmimic the equal protection and due process analysis of the federal cases whenanalyzing same-sex marriages under their respective State Constitutions. 214B. Same-Sex Marriage Restrictions Violate State ConstitutionsThere is a minority of states which hold the limitation of state recognized marriageto opposite sex couples violates state constitutional provisions mandatingequal protection or due process of law. 215 However, the arguments and evidenceused to support same-sex marriage is weak and disembarks from the traditionalprinciples of equal protection and due process.In Baehr v. Lewin, the plaintiffs Nina Baehr, Genora Dancel, Tammy Rodrigues,Antoinette Pregil, Pat Lagon, and Joseph Melilio were denied a marriagelicense by the State of Hawaii's Department of Health ("DOH"), and alleged intheir original complaint a violation of a fundamental right to marry and equalprotection rights under Hawaii's Constitution. 216 The circuit court granted defendant'smotion to dismiss for failure to state a claim. 217 On appeal, the HawaiiSupreme Court found that the right to privacy does not include the fundamentalright to marry for same-sex couples by following the analysis set down in federalcases. 218 The Hawaii Supreme Court found that the" right to marry had the samelevel of importance as decisions relating to procreation, childbirth, child rearing,and family relationships," and refused to extend the right to marry to same-sexcouples. 219The Hawaii Supreme Court used federal cases and traditional federal constitutionalanalysis to find that same-sex couples do not have a fundamental right to212 [d. at 12.213 [d. at 12.214 Lewis v. Harris, 378 N.J. Super. 168 (N.J. Super. Ct. App. Div. 2005); Dean, 653 A.2d at 307;Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct.App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972); Inre Cooper, 592 N.Y.S.2d 797, 799-801 (N.Y. 1993), appeal dismissed, 624 N.E.2d 696 (N.Y. 1993);Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), appeal denied, 84 Wash. 2d 1008 (1974).215 Miller & Binimow, supra note 73, at 1.216 Baehr v. Lewin, 852 P.2d 44, 49-51 (Haw. 1993).217 [d.218 Baehr, 852 P.2d at 56-57; see generally Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstaedtv. Baird, 405 U.S. 43 (1972); Zablocki, 434 U.S. at 374; Skinner, 316 U.S. at 535; Maynard, 125U.S. at 190; Meyer v. Nebraska, 262 U.S. 390 (1923); Palko, 302 U.S. at 319.219 Baehr,852 P.2d at 56-57.

SAME SEX MARRIAGE 155marry under the right of privacy.2 2o However, they failed to use the same analysisand determined that "sex" is a suspect classification that requires either immediateor strict scrutiny.22l The Hawaii Supreme Court liked "sex" to "race" by citingLoving v. Virginia and stated that "sex" is a suspect class. 222 The HawaiiSupreme Court then relied on the United States Supreme Court's rationale inHoldman v. Olim, the "Brennan plurality, the Powell group in Frontiero v. Richardson,and the presence of article I, section 3-the Equal Rights Amendment-inthe Hawaii Constitution" and found that "sex" should receive either intermediateor strict scrutiny instead of rational basis review. 223The Hawaiian Supreme Court utterly failed to see the distinction between"gender" and "sexual orientation," as previously discussed in the Hernandazcase. Further, the Hawaiian Supreme Court failed to correctly analyze Frontiero,because that particular case was about "gender" discrimination. 224 Thus, the HawaiiSupreme Court employed strict scrutiny instead of rational basis review onthe misguided idea that "sex" is the same as homosexuality, and determined thatthe state did not have a compelling interest in restricting marriage to opposite sexcouples. 225After Baehr, the Hawaiian legislature proposed an amendment to the HawaiianConstitution that effectively defeated the judicial recognition of same-sexmarriages. The voters affirmatively voted to allow the legislature to reserve marriageto opposite-sex couples.Another example of where the right to marry is recognized for same-sexcouples is in Brause v. Bureau of Vital Statistics. 226 In Brause, plaintiffs JayBrause and Gene Dugan filed suit against the Bureau of Vital Statistics, theAlaska Department of Health and Social Services, and the Alaska court systemafter they were denied a marriage license. 227 The Plaintiffs requested an injunctionto prevent Alaska from enforcing the statutes preventing same-sex marriages,because the statutes violated the Alaskan Constitution's equal protection220 Id. at 65-68.221 [d.222 [d.; see generally Loving, 385 U.S. at 986.223 Baehr, 852 P.2d at 65-68; see generally Holdman v. Olim, 581 P.2d 1164 (Haw. 1978) (citingFrontiero,411 U.S. at 677).224 Baehr, 852 P.2d at 67.225 [d.; see Baehr v. Mikke, 910 P.2d 112 (Haw. 1996).226 Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Feb. 27,1998); a/rd, Brause v. State, 21 P.3d 357 (Alaska 2001): see also Kevin G. Clarkson et aI., The AlaskaMarriage Amendment: The People's Choice on the Last Frontier, 16 ALASKA L. REV. 213, 218-24(1999).227 Bureau of Vital Statistics, 1998 WL 88743 at * I.

156 UNIVERSITY OF TIlE DISTRICr OF COI.UMBlA LAW REVIEWand privacy rights. 228 In addition, the Plaintiffs claimed that the violation of equalprotection and privacy rights requires strict scrutiny review. 229While discussing same-sex marriages under the right to privacy, the Brausecourt ignored the traditional formulation for finding a right to privacy. TheBrause court asked, "whether the freedom to choose one's own life partner isrooted in our traditions?,,23o By framing the issue in this manner, the Brausecourt found that there is a fundamental right for same-sex couples to choose theirpartners under the right of privacy.231 However, this is a very weak argumentbecause the fundamental principle underlying the right to privacy is that rightsare based on deep-rooted traditions. While it is important for same sex couples tochoose their partners as determined in Wilson v. Ake, the limitation of marriageto men and women does not stop anyone from choosing a person of the same sexas their partner. 232The Brause court moved even further away from the traditional analysis underequal protection, and employed a sliding scale standard of review in which thestandard of review is determined by the importance of the individual right.233The Brause court like the Baehr court mistook "sex" as the equivalent of "sexualpreference" and found a suspect class using the sliding scale. 234 Under strict scrutinyanalysis, the Brause court concluded that the state lacks a compelling interestto support the prohibition against same-sex marriage. 235 The Brause analysis isflawed because "sex" is a gender based classification, whereas homosexuality is a"sexual preference," and they are simply not the same. Similar to the Hawaiianlegislature, the Alaskan legislature instituted an amendment that changed thedefinition of marriage in their Constitution and effectively defeated the recognitionof same sex marriages in those states.Unlike Hawaii and Alaska, Massachusetts is the first state to recognize samesexmarriage, which has not been defeated by an amendment to its Constitution.236 In Goodridge v. Department of Public Health, a town clerk denied sevensame-sex couples marriage licenses because, at that time, Massachusetts state lawdid not recognize same-sex marriage. 237 The Superior Court judge ruled for theDefendants, holding that the prohibition did not violate State liberty or equalprotection guarantees. 238 However, on appeal, the Massachusetts Supreme Court228 Id.229 /d.230 Id. at 5.231 Id.232 Bureau of Vital Statistics, 1998 WL 88743 at *5.233 Id. at 5-6.234 Id. at 5.235 Id.236 Goodridge, 798 N.E.2d 941.237 Id. at 950.238 Id.

SAME SEX MARRIAGE 157found that under its individual state constitution they have the ability to protectindividual liberty more extensively than the federal government. 239Unlike the Hawaii Supreme Court in Baehr, the Massachusetts Supreme Courtdid not find that same-sex couples are a "suspect class," worthy of strict scrutiny.240The Massachusetts Supreme Court reasoned that a rational basis reviewis necessary and that the state does not meet their burden of finding a rationalrelationship between their legislative purpose and the prohibition against samesexmarriages. 241 The Massachusetts Supreme Court found that the restriction ofsame-sex marriage had no rational relationship to the state legislative purposes of(1) protecting procreation; (2) protecting opposite-sex marriages by denyingsame-sex marriages; and (3) protecting the economy.242Surprisingly, the Goodridge court did not try to apply strict scrutiny, but appliedrational basis review. However, the Goodridge court does not follow thetraditional use of rational basis review. Under rational basis review, the state'sinterest in protecting procreation alone should have been enough to uphold thelimitation of marriage to opposite sex couples. Procreation in federal cases suchas Dean and Supreme Court cases such as Palko, recognize the right to marry asfundamental because of the "link to procreation.,,243 Thus, the Goodridge courtshould have found that protecting procreation is a legitimate interest and upheldsame-sex marriage restrictions.CONCLUSIONFederal Circuit Courts have found that, under the United States Constitution,limitations on marriage to opposite sex couples do not violate the equal protectionor due process clauses of the Constitution. While it is important to have thefreedom to choose your partner, the limitation of marriage to men and womendoes not prohibit same-sex couples from choosing their own partner. Currently, atraditional analysis of equal protection finds "sex" is not the same as "sexualpreference," thus; homosexuality is not a suspect class requiring limitations onmarriage to be reviewed under strict scrutiny. Furthermore, homosexuals lack thekind of historic discrimination necessary to find "invidious" discrimination, andlack conclusive scientific data showing that homosexuality is an immutable characteristic.However, homosexuals do not lack political power and should not beconsidered a "discrete and insular" minority. Thus, under rational basis review,restrictions on marriage to opposite sex couples should be upheld if a legitimatestate or government interest is provided.239 [d.240 [d.241 Goodridge, 798 N.E.2d at 964.242 [d.243 Dean, 653 A.2d at 333.

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

REVISING THE ANALYSIS OF PERSONAL JURISDICTIONTO ACCOMMODATE INTERNET-BASEDPERSONAL CONTACTSMatthew L. Perdoni*INTRODUcnONFrom online banking, to cyber-shopping, to the growth of social-networkingwebsites, the Internet is a medium for human interaction as much as it is a part ofmodern commerce and business, and now encompasses nearly every facet ofAmerican life. By all indications, use will become more widespread and complexover time. The Internet now facilitates the modern functional equivalent ofhuman interaction, and provides worldwide access to users with the mere click ofa button. For these reasons, examining the role of the Internet in the law is critical.Particularly, it is necessary to consider whether and to what extent Internetusers are subject to personal jurisdiction as a result of their online activities.I. THE GROWTH OF THE INTERNET & ITS ApPEARANCE IN THE LAWTechnology first entered the educational system with limited library-based Internetaccess and video-linked classrooms. 1 But by 2006-2007, 66% of two andfour-year degree-granting schools offered some type of online coursework, andthere were over 12 million enrollments in some form of online or other distancelearningcourses? Now, even the legal system has embraced the free flow of informationand the economic benefits made possible by the Internet, and thistrend shows no signs of slowing. 3* J.D. Candidate 2011, University of the District of Columbia David A. Clarke School of Law.Matthew L. Perdoni, Co-Editor-in-Chief and Publications Editor of the University of the District ofColumbia Law Review, would like to thank Professors Edward Allen and Christine Jones for theirsupport and guidance, as well as the Law Review's Editorial Board, Senior Editors, and AssociateEditors for their assistance throughout the publication process. Finally, the author expresses his eternalgratitude to Paula, Louis, Katey, Chris, and Meredith for their unwavering support.1 See, e.g., Thomas R. Lee, In Rem Jurisdiction in Cyberspace, 75 WASil. L. REV. 97 (2000)(discussing the progression of the Internet from its early use as a primarily government, military, andeducation information transfer network, to its more modern form); Table 427, NAT'L CENTER FOREDlJC. STAT., available at http://nces.ed.gov/programs/digestld08/tables/dt08_ 427.asp (citing variousstatistics on the consistently growing role of the Internet in schools, including the estimate that Internetaccess in schools rose from 35% in 1994 to 95% in 1999, and that the figure has remained at100% since 2003).2 Basmat Parsad & Laurie Lewis, Distance Education at Degree-Granting Postsecondary Institutions:2006-07, U.S. DEI,'T OF EDlJC., NAT'L CENTER FOR EDlJc. STAT., & INST. OF EDllC. SCI. (2008),available at http://nces.ed.gov/pubs2009l2009044.pdf.3 Early on, courts recognized the rapid expansion of Internet use. See, e.g., ACLU v. Reno, 929F. Supp. 824, 831 (E.D. Pa. 1996) ("The nature of the Internet is such that it is very difficult, if notimpossible, to determine its size at a given moment. It is indisputable, however, that the Internet has

160 UNIVERSITY OF TilE DISTIUcr OF COLlJMBlA LAW REVIEWIncluded in its vast research portfolio, the Pew Foundation has conducted aseries of surveys on the prevalence and characteristics of Internet use inAmerica. 4 Studies from the Pew Internet and American Life Project illustrate thegrowth of Internet use over the past decade and its ever-growing prominence ineveryday life. According to one study, about 15% of American adults used theInternet in 1995. 5 Five years later, this figure soared to roughly half of the adultpopulation. 6 By 2005, nearly 700/0 of adults in the United States were Internetusers, and in Pew's April 2009 survey, the figure approached 80%. 7 The rise inInternet use coincided with. the increased capacity to access the Internet in homesand workplaces across the country. Less than 5% of American adults had abroadband connection in 2000, but the percentage neared 35% by 2005. 8 Now,approximately 60% of adults have a broadband-Internet connection,9 and estimatesshow that 100% of schools provide Internet access.lOMoreover, a growing number of activities can be conducted in cyberspace. In2008-2009, nearly 60% of adults in the United States executed an onlinepurchase, over 40% handled banking over the Internet, nearly 30% read a "blog"posting (with 10% writing their own posting), and about 100/0 downloaded filesusing peer-to-peer networks. 11 The number of activities and encounters facilitatedby the Internet continues to grow, and new cyber-forums and web technologiesare taking hold faster than ever. When such innovative functions are coupledwith the rapid progression of general Internet use and improvements in accessiexperiencedextraordinary growth in recent years. In 1981, fewer than 300 computers were linked tothe Internet, and by 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000computers were linked. Today, over 9,400,000 host computers worldwide, of which approximately 60percent located within the United States, are estimated to be linked to the Internet. This count doesnot include the personal computers people use to access the Internet using modems. In all, reasonableestimates are that as many as 40 million people around the world can and do access the enormouslyflexible communication Internet medium. That figure is expected to grow to 200 million Internet usersby the year 1999.").4 See PEW INTERNET & AMERICAN LIFE Plmmer, http://www.pewinternet.orgl (last visitedMar. 14,2010). For a complete listing of the Pew Foundation studies, see PEW INTERNET & AM. LIFEPROJECT, http://pewinternet.orglData-Tools/Download-Data/Data-Sets.aspx (last visited Mar. 14,2010).5 Internet Adoption Over Time, PEW INTERNET & AM. LIFE PROJECT, http://www.pewinternet.orglTrend-Datallnternet-Adoption.aspx (last visited Feb. 23, 2010).6 Id.7 Id.8 Home Broadband Adoption, 2000-2010, PEW INTEHNET & AM. LIFE PHomc ... , http://www.pewinternet.orglTrend-Data/Home-Broadband-Adoption.aspx (last visited Feb. 23, 2010).9 Id.10 Table 427, NAT'J. CENTER FOR EDlJC. STAT., http://nces.ed.gov/programs/digestld08/tablesldt08_427.asp (last visited Dec. 12,2(09).11 Online Activities, 2000-2009, PEW INTERNET & AM. LIFE PRomer, http://www.pewinternet.orglTrend-Data/Online-Activities-20002009.aspx (last visited Feb. 23, 2010).

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 161bility discussed above, the volume of information available to the average personbecomes staggering.The internet's increasing role in American life also is attributable to its abilityto facilitate the modern functional equivalent of face-to-face interaction. Where80/0 of adults had a social-networking profile on websites like Facebook or Myspacein 2005, by 2009,350/0 had such profiles. 12 Although only 11 % of adult Internetusers had a Twitter account in April 2009, that figure nearly doubled byOctober of that year. 13 And all of the statistics presented to this point overlookthe most dominant segment of Internet users; those under the age of thirty. In2009, an estimated 95% of eighteen to twenty-nine-year-olds used the Internet, ascompared to 87% of thirty to forty-nine-year-olds, and 78% of fifty to sixty-fouryear-olds.14 Incoming generations are exposed to cyberspace and related technologiesearlier than ever before. This fosters their reliance on such technologies,and that reliance subsequently is reinforced through schools, peer groups, andfuture work experiences; thus, further entrenching Internet-based contacts as themodern functional equivalent of human interaction.Internet use may start with e-mail correspondence at work or in the home, butthe research suggests that this quickly leads to more frequent personal use forgeneral "web-surfing." Moreover, the advent of interactive telephones and otherwireless devices has resulted in 24-hour Internet accessibility in nearly every setting.ts Initiation to the Internet also is occurring at younger ages. Where the majorityof online activities by older age brackets typically center on routineInternet use, younger users engage in more advanced activities. 16 Thus, it standsto reason that Internet use will become even more prevalent in everyday life. Forthis reason, it is critical to examine its role in the context of the law.12 Amanda Lenhart, Pew Internet Project Data Memo, PEW INTERNET & AM. LIFE PROJECT(2009), http://www.pewinternet.orgl-/medialIFileslReportsl2oo9/PI P _Adulcsocial_networkin~data_memo_FINAL.pdf.13 Susannah Fox, Kathryn Zickuhr & Aaron Smith, Twiller & Status Updating, Fall 2009,PEW INTERNET & AM. LIFE PROJECT, http://www.pewinternet.orgl-/medialIFileslReportsl2oo9/PIP_Twitter _Fall_2009web.pdf.14 Demographics of Internet Users, PEW INTERNET & AM. LIFE PROJECr, http://www.pewinternet.orgITrend-Data/Whos-Online.aspx (last visited Feb. 23, 2010).15 See generally PEW INTERNET & AM. LIFE PROJECT weblinks, supra notes 13-14. See alsoHaya EI Nasser, Census Gets New Interactive Website: Step Reflects Huge Leap in Net Use, USA To­DAY, Oct. 23, 2009, at 3A; The Mobile Difference - Tech User Types, PEW INTERNET & AM. LIFEPROJECT, http://www.pewinternet.orgiI nfographicslThe-Mobile-Difference-Tech-User-Types.aspx(last visited Feb. 23, 2010); Generational Difference in Online Activities, PEW INTERNET & AM. LIFEPR()JI~(:'T, http://www.pewinternet.orgiInfographicslGenerational-differences-in-online-activities.aspx(last visited Mar. 1, 2010).16 See supra note 15. In fact, these studies show that the complexity of activities runs converseto the age of the user.

162 UNIVERSITY OF TilE Dls'nucr OF COLUMBIA LAW REVIEWCourts began hearing Internet-based disputes shortly after Internet use extendedinto people's business and personal worlds. 17 Courts hearing Internet-relatedcases immediately faced challenges when determining their jurisdiction overnort-resident defendants. 18 These complications were the result of the broad accessibilityto information provided via the Internet, the unusual application of thelaw in cyberspace, and the delicate policy concerns surrounding the exercise of acourt's power over the first generation of Internet-based claims. 19 It comes as nosurprise that such litigation increased parallel to the growth of the Internetthroughout the late 1990's and into the early 2000's, and that these disputes noware commonplace in state and federal courts.The Internet's role in shaping the law is covered throughout this paper. Beforemoving forward, though, it is important to acknowledge the fact that the Internetfacilitates the modern functional equivalent of physical presence, albeit a formunforeseeable at the time of Pennoyer v. Neff, International Shoe Co. v. Washington,or even Shaffer v. Heitner. 20 As will be examined throughout, the nature ofInternet-based contacts provides a basis for personal jurisdiction consistent withthese longstanding requirements, despite some courts' reluctance toward adoptingsuch a position.II. THE HISTORY OF PERSONAL JURISDlcrION AND AN EYETOWARD ITS FUTUREIn this section, the general history, conceptualization, and requirements of personaljurisdiction are outlined. These topics are covered in detail sufficient for the17 See infra note 19.18 See infra note 19.19 See, e.g., Pres-Kap, Inc. v. Sys. One, 636 So. 2d 1351, 1353 (Fla. Dist. Ct. App. 1994) ("Acrossthe nation, in every state, customers of 'on-line' computer information networks have contractualarrangements with out-of-state supplier companies . . . Lawyers, journalists, teachers, physicians,courts, universities, and business people throughout the country daily conduct various types of computer-assistedresearch over telephone lines linked to supplier databases located in other states.[Without strict jurisdictional guidelines] users of such 'on-line' services could be haled into court inthe state in which supplier's billing office and database happen to be located, even if such users ... aresolicited, engaged, and serviced entirely instate by the supplier's local representatives. Such a result,in our view, is wildly beyond the reasonable expectations of such computer-information users, and,accordingly, the result offends traditional notions offair play and substantial justice.") (citations omitted);ACLU v. Reno, 929 F. Supp. 824, 829 (E.D. Pa. 1996) (weighing 1st Amendment rights andpolicy considerations in determining whether a statute barring "obscene or indecent [materials postedon websites], knowing that the recipient of the communication is under 18 years of age" was unconstitutional);Zippo Mfg. Co. v. Zippo Dot Com, Inc, 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) (holdingthat the existing tests for exercising a court's power over non-resident businesses are sufficient regardlessof whether transactions are conducted over the Internet).20 Pennoyer v. Neff, 95 U.S. 714 (1877); In1'l Shoe Co. v. Wash., 326 U.S. 310 (1945); Shaffer v.Heitner, 433 U.S. 186 (1977).

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 163analysis of personal jurisdiction in the context of Internet-related conductpresented in the following sections.A. International Shoe and Its ProgenyTo hale a non-resident defendant into a foreign jurisdiction, the two-prongedtest set forth in International Shoe Co. v. Washington and expounded in its progenymust be satisfied?1 The first prong of the test requires that a non-resident"have certain minimum contacts" with the forum state, such that they could reasonablyforesee being haled into court there as a result. 22 In other words, courtsmust examine the nexus between the forum, the litigation, and the non-residentover whom jurisdiction is sought. 23 The longstanding requirement is that "in eachcase ... there be some act by which the defendant purposefully avails itself of theprivilege of conducting activities within the forum State, thus invoking the benefitsand protections of its laws.,,24 Thus, the minimum contacts requirement includesan element of intent; as a result, unilateral acts by others or "random,fortuitous, or attenuated contacts" will not satisfy the first prong of the test. 25Instead, "[j]urisdiction [only] is proper ... where the contacts proximately resultfrom actions by the defendant himself that create a 'substantial connection' withthe forum State.,,26 The nature and quality of a non-resident's conduct in the21 326 U.S. at 316. Although a more detailed examination may be required in some jurisdictions,those with long-arm statutes conferring the full reach permitted under the U.S. Constitutionneed only meet the International Shoe test for a court to exercise its power over a non-resident. See,e.g., Fix My PC, L.L.c. v. N.F.N. Assoc., Inc., 48 F. Supp. 2d 640, 642 (N.D. Tex. 1999). Most statesnow include "doing business" clauses and other such language in their long-arm statutes to addressthe problem of determining a non-resident's amenability to litigation in the forum where their conductdoes not include a physical presence. See, e.g., MINN STAT § 543.19 Subd. 1(1), (2), (4) (2009)("[A] court of this state with jurisdiction of the subject matter may exercise personal jurisdiction overany foreign corporation or any nonresident individual, or the individual's personal representative, inthe same manner as if it were a domestic corporation or the individual were a resident of this state.This section applies if, in person or through an agent, the foreign corporation or nonresident individual:(1) owns, uses, or possesses any real or personal property situated in this state, or; (2) Transactsany business within the state, or ... (4) Commits any act outside Minnesota causing injury or propertydamage in Minnesota [subject to specified limitations]."). Courts tend to interpret these broader statutoryallowances as granting the full jurisdictional power permitted by the Due Process Clause of theU.S. Constitution. See, e.g., U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977) (holdingthat although Texas incorporates "doing business" language in its long-arm statute, the "other actsthat may constitute doing business" clause grants the full power permitted by the Due ProcessClause).22 Int'l Shoe Co., 326 U.S. at 316 (citations omitted).23 Shaffer v. Heitner, 433 U.S. 186,205 (1977), enforced, Keeton v. Hustler Magazine, Inc., 465U.S. 770, 775 (1984).24 Hanson v. Denckla, 357 U.S. 235, 253 (1958) (emphasis added), enforced, Burger King Corp.v. Rudzewicz, 471 U.S. 462,474 (1985), and Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S.102, 109 (1987).25 Burger King Corp., 471 U.S. 462, 480 (1985).26 Id. at 475.

164 UNIVERSITY OF TilE DISTRICr OF COLUMnIA LAW REVIEWforum state establishes a court's power over that individual. 27 However, a defendantneed not be physically present in the forum to establish the requisite minimumcontacts. 28The second prong of the International Shoe test examines whether haling thedefendant into a foreign court comports with traditional notions of fair play andsubstantial justice. 29 Even if a non-resident defendant has the requisite minimumcontacts with the forum state, constitutional due process requires courts to weigha number of factors before exercising jurisdiction over a non-resident. These include:"[1] the burden on the defendant, [2] the interests of the forum State, [3]the plaintiff's interest in obtaining relief ... [4] the interstate judicial system'sinterest in obtaining the most efficient resolution of controversies ... [5] and theshared interest of the several States in furthering fundamental substantive socialpolicies. ,,30 Despite its formulaic presentation, fair play and substantial justice isevaluated on a case-by-case basis. 31 Most often, "[w]hen minimum contacts havebeen established, the interests of the plaintiff and the forum in the exercise ofjurisdiction will justify even the serious burdens placed on the alien defendant."32This is the natural result of the defendants purposefully availing him or herself ofthe forum state's laws. 33 Thus, when a plaintiff establishes the first prong of theInternational Shoe test, the second prong generally also is satisfied. 3427 Id. at 474-75.28 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123 (W.O. Pa. 1997) ("In Hansonv. Denckla, the Supreme Court noted that 'as technological progress has increased the flow ofcommerce between States, the need for jurisdiction has undergone a similar increase.' Twenty sevenyears later [in Burger King Corp. v. Rudzewicz], the Court observed that jurisdiction could not beavoided 'merely because the defendant did not physically enter the forum state. The Court observedthat: It is an inescapable fact of modern commercial life that a substantial amount of commercialbusiness is transacted solely by mail and wire communications across state lines, thus obviating theneed for physical presence within a State in which business is conducted."') (citations omitted).29 326 U.S. 310, 320 (1945).30 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987) (citing World­Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980».31 See, e.g., Kulko v. Superior Court of Cal., 436 U.S. 84, 92 (1978) (citing Hanson v. Denckla,357 U.S. 235, 246 (1958); Estin v. Estin, 334 U.S. 541, 545 (1948».32 Kulko, 436 U.S. at 114.33 See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2(05) (holdingthat "by invoking the benefits and protections of a forum's laws, a nonresident consents to suitthere").34 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78 (1985) (The Court suggests aburden-shift in the analysis of fair play and substantial justice for certain types of claims. "[WJhere adefendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction,he must present a compelling case that the presence of some other considerations would render jurisdictionunreasonable. Most such considerations usually may be accommodated through means shortof finding jurisdiction unconstitutional. ... [and] minimum requirements inherent in the concept of'fair play and substantial justice' may defeat the reasonableness of jurisdiction even if the defendanthas purposefully engaged in forum activities .... As we previously have noted, jurisdictional rules

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 165When a non-resident's forum presence arises from internet-based contacts, thepersonal jurisdiction evaluation may become complicated. In Hanson v. Denckla,the Supreme Court noted how technological and other advances lessened theburdens of litigating in foreign jurisdictions. 35 However, significant Due Processconcerns have arisen in Internet-related cases. Courts have taken great care tolimit their power when establishing jurisdiction over non-residents in such instances.Nevertheless, this may unreasonably burden resident-plaintiffs seeking tovindicate various personal and proprietary rights. Moreover, a limited jurisdictionalapproach permits non-resident defendants to encumber residents' rightswithout immediate consequence.B. The Evolution of in rem JurisdictionIn rem is a Latin phrase, meaning "against a thing," and "[i]nvolv[es] ordetermin[ es] the status of a thing, and therefore the rights of persons generallywith respect to that thing.,,36 Thus, an action in rem "determines the title to propertyand the rights of the parties, not merely among themselves, but also againstall persons at any time claiming an interest in that property.,,37Early cases often involved one party attaching a non-resident defendant'sproperty either to establish personal jurisdiction over them, or to satisfy an existingjudgment. 38 Plaintiffs served constructive notice by attaching the non-resimaynot be employed in such a way as to make litigation 'so gravely difficult and inconvenient' that aparty unfairly is at a 'severe disadvantage' in comparison to his opponent.").35 357 U.S. 235 (1958). Note that the Court raised these concerns over a half-century ago. [d. at250-51. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (summarizingthe Court's history of dealing with the second prong of the Int'I Shoe test); McGee v. Int'l Life Ins.Co., 355 U.S. 220, 222-23 (1957) ("[I)ncreasing nationalization of commerce has [brought) a greatincrease in the amount of business conducted by mail across state lines .... [but at] the same timemodern transportation and communication have made it much less burdensome for a party sued todefend himself in a State where he engages in economic activity.").36 BI.ACK'S LAW DICnONARY 809 (8th ed. 2004). See also RESTATEMENT (SECOND) OF JlJDG.MENTS § 6 ("In traditional terminology, 'in rem' and 'quasi in rem' proceedings are subdivided intothree types. The first is called a 'true' in rem proceeding, or one 'against all the world.' In this type ofproceeding, the court undertakes to determine all claims that anyone has to the thing in question. Thesecond type is called a 'quasi in rem' proceeding and is one in which the court undertakes to determinethe claims of specifically identified persons to the thing in question. The third type was and isalso called a proceeding 'quasi in rem' but is now often called attachment or garnishment jurisdiction.In this type of proceeding, a thing owned by a specified person is seized as a basis for exercisingjurisdiction to decide a claim against the owner. The claim does not concern interests in the thing; itconcerns some other transaction.").37 BLACK'S LAW DICI'IONARY 32 (8th ed. 2004). It also should be noted that in some in remcases "the named defendant is real or personal property." [d. See, e.g., The Daniel Ball, 77 U.S. 557(1871).38 Pennoyer v. Neff, 95 U.S. 714, 723-24 (1878) ("Every State owes protection to its own citizens;and, when non-residents deal with them, it is a legitimate and just exercise of authority to holdand appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is invirtue of the State's jurisdiction over the property of the non-resident situated within its limits that its

166 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWdent's land in the forum state, establishing jurisdiction over them regardless ofthe subject matter of the pending lawsuit. Under these circumstances, a courtexercised quasi in rem jurisdiction over a non-resident property owner.39 It wasnot until Shaffer v. Heitner that the often grossly unjust outcomes resulting fromquasi in rem proceedings were abolished. 40 The focus shifted to "the relationshipamong the defendant, the forum, and the litigation ... ,,41 and absent some relationshipwith the pending litigation, a non-resident's ownership of land in theforum no longer provided a basis for personal jurisdiction. Thus, comporting withthe requirements of constitutional due process requires application of "the minimum-contactsstandard elucidated in International Shoe.,,42III.NEW JURISDIcrIONAL ApPROACHES IN INTERNET-RELATED LITIGATIONCourts hearing the first generation of Internet cases were charged with reconcilingexisting laws with a new communicative medium. Over time, legislaturesand courts alike responded with several new approaches (or at least redefinedexisting methods), for dealing with Internet-based cases. This section examinesthe early history of Internet-related litigation, a notable statute dealing with suchcases, and two prominent tests that have emerged from the fifteen years of Internet-related litigation.tribunals can inquire into that non-resident's obligations to its own citizens, and the inquiry can thenbe carried only to the extent necessary to control the disposition of the property. If the non-residentshave no property in the State, there is nothing upon which the tribunals can adjudicate .... Thus, inPicquet v. Swan, 5 Mas. 35, Mr. Justice Story said ... '[w]here [a party] is not within [the forum], andis not personally subject to its laws, if, on account of his supposed or actual property being within theterritory, process by the local laws may, by attachment, go to compel his appearance, and for hisdefault to appear judgment may be pronounced against him, such a judgment must, upon generalprinciples, be deemed only to bind him to the extent of such property, and cannot have the effect of aconclusive judgment in personam, for the plain reason, that, except so far as the property is concerned,it is a judgment coram non judice.' ").39 BLACK'S LAW DICnONARY 809 (8th ed. 2004) ("Involving or determining the rights of aperson having an interest in property located within the court's jurisdiction.").40 433 U.S. 186,207-08 (1977) ("[T]he presence of property in a State may bear on the existenceof jurisdiction by providing contacts among the forum State, the defendant, and the litigation. Forexample, when claims to the property itself are the source of the underlying controversy between theplaintiff and the defendant, it would be unusual for the State where the property is located not to havejurisdiction. In such cases, the defendant's claim to property located in the State would normallyindicate that he expected to benefit from the State's protection of his interest. The State's stronginterests in assuring the marketability of property within its borders and in providing a procedure forpeaceful resolution of disputes about the possession of that property would also support jurisdiction,as would the likelihood that important records and witnesses will be found in the State. The presenceof property may also favor jurisdiction in cases, such as suits for injury suffered on the land of anabsentee owner, where the defendant's ownership of the property is conceded but the cause of actionis otherwise related to rights and duties growing out of that ownership.") (emphasis added) (citationsomitted).41 [d. at 204.42 [d. at 207.

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 167A. The "First Generation" of Internet-Related LitigationThe initial problem facing the courts was characterizing Internet-activitywithin existing legal frameworks. 43 Thus, early cases reflected a cautious approachby the courts. In ACLU v. Reno, the court granted a motion enjoiningenforcement of a newly enacted statute, and impliedly rejected the notion thatthe judiciary should have responsibility over monitoring Internet conduct due tothe potential infringement on personalliberties. 44 Likewise, in Bensusan RestaurantCorp. v. King, the court declined jurisdiction over a Missouri resident based43 ACLU v. Reno, 929 F. Supp. 824,830-32, 838, 842-44 (E.D. Pa. 1996) (Discussing in relevantpart that "[t]he Internet is not a physical or tangible entity, but rather a giant network which interconnectsinnumerable smaller groups of linked computer networks. It is thus a network of networks. Thisis best understood if one considers what a linked group of computers -referred to here as a 'network'­is, and what it does. Small networks are now ubiquitous (and are often called 'local area networks')· .. [They] are connected to other networks, which are in turn connected to other networks in amanner which permits each computer in any network to communicate with computers on any othernetwork in the system. This global Web of /inked networks and computers is referred to as the Internet· .. The resulting whole is a decentralized, global medium of communications -or 'cyberspace'- thatlinks people, institutions, corporations, and governments around the world. The Internet is an internationalsystem. This communications medium allows any of the literally tens of millions of people withaccess to the Internet to exchange information. These communications can occur almost instantaneously,and can be directed either to specific individuals, to a broader group of people interested in aparticular subject, or to the world as a whole . ... No single entity -academic, corporate, governmental,or non-profit- administers the Internet. It exists and functions as a result of the fact that hundreds ofthousands of separate operators of computers and computer networks independently decided to usecommon data transfer protocols to exchange communications and information with other computers(which in turn exchange communications and information with still other computers). There is nocentralized storage location, control point, or communications channel for the Internet, and it wouldnot be technically feasible for a single entity to control all of the information conveyed on the Internet· ... The Internet is not exclusively, or even primarily, a means of commercial communication. Manycommercial entities maintain Web sites to inform potential consumers about their goods and services,or to solicit purchases, but many other Web sites exist solely for the dissemination of non-commercialinformation. The other forms of Internet communication -e-mail, bulletin boards, newsgroups, andchat rooms- frequently have non-commercial goals .... Such diversity of content on the Internet ispossible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience,potentially of millions . ... Any Internet user can communicate by posting a message to one ofthe thousands of newsgroups and bulletin boards or by engaging in an on-line 'chat,' and therebyreach an audience worldwide that shares an interest in a particular topic .... Because of the differentforms of Internet communication, a user of the Internet may speak or listen interchangeably, blurringthe distinction between 'speakers' and 'listeners' on the Internet. Chat rooms, e-mail, and newsgroupsare interactive forms of communication, providing the user with the opportunity both to speak and tolisten .... It follows that unlike traditional media, the barriers to entry as a speaker on the Internet donot differ significantly from the barriers to entry as a listener. Once one has entered cyberspace, onemay engage in the dialogue that occurs there. In the argot of the medium, the receiver can and doesbecome the content provider, and vice-versa .... The Internet is therefore a unique and wholly newmedium of worldwide human communication.") (emphasis added).44 Id. at 824, 831, 855 (recognizing the potential for indecent materials to reach children, butnevertheless determining that the Communications Decency Act of 1996 was unconstitutional, becauseit infringed on 1st Amendment rights).

168 UNIVERSfrY OF HIE DISTRICr OF COLUMBIA LAW REVIEWon his operating a website that used the plaintiff's trademarked club name. 45There, the court recognized the potential for exposing website owners to generaljurisdiction in every forum. 46However, other courts were not so restrictive. For example, the court in InsetSystems v. Instruction Set, held that by posting Internet advertisements and contactinformation on its website, mailing print catalogues, and engaging in otherlimited contacts with the state, the defendant purposefully availed himself of thebenefits and protections of Connecticut, as well as any other forum receiving theadvertisements. 47 Other courts, while allowing Internet-activities to form a basisfor personal jurisdictional, did so in a more limited fashion. 48 For example, inPlus Systems v. New England Network, the court held that a Connecticut defendantwas amenable to suit in Colorado despite their being no physical presencethere. 49 In examining the first-prong of the International Shoe test, the court reasonedwhile "[t]here could be no dispute over minimum contacts had Defendantphysically flown to Colorado ... and asked Plaintiff to perform [services] . . .Defendant's use of Plaintiff's [services] to effect the same result is no less anavailment of Colorado and its laws."soAlthough the law has achieved some degree of clarity in the years since thefirst generation of Internet cases, decisions on whether to exercise personal jurisdictionover non-residents in such suits still are far from uniform. The remainingsubsections examine modern jurisdictional approaches, and identify several barriersthat litigants may face when seeking to vindicate their rights.B. The Anticybersquatting and Consumer Protection ActIn rem jurisdiction was common prior to the Supreme Court's ruling in InternationalShoe, and even leading up to the Court's decision in Shaffer. In recentyears, courts and legislatures have revived in rem proceedings as a means forresponding to increases in Internet-related lawsuits. One notable example is theAnticybersquaUing Consumer Protection Act (ACPA).Sl45 937 F. Supp. 295 (S.D.N.Y. 1996).46 Id. at 297, 301.47 937 F. Supp. 161, 165 (D. Conn. 1996).48 See e.g., CompuServe, Inc. v. Patterson, 89 F. 3d 1257, 1269 (6th Cir. 1996) (holding that adefendant's voluntary business interactions in Ohio, and its benefiting from the plaintifrs marketingefforts, satisfied the Int'l Shoe test); see also Mark C. Dearing, Personal Jurisdiction and the Internet:Can the Traditional Principles and Landmark Cases Guide the Legal System into the 21st Century, 4 J.TECH. L. & POL'Y (Spring 1999) (discussing in detail the importance of the holding in CompuServev. Patterson, and its implications in subsequent internet-based litigation).49 804 F. Supp. 111 (D. Colo. 1992).50 Id. at 119.51 Anticybersquatting Consumer Protection Act, 15 U.S.c. § 1125 (1999) [hereinafter ACPA].In 1999, 15 U.S.c. § 1125(d) was added as an amendment to The Trademark Act of 1946, otherwise

REVISING THE ANALYSIS OF PERSONAL JURISDICTION 169Under the ACPA, Congress established procedural and remedial measures forplaintiffs alleging infringement on their protected website domain names. However,the ACPA is not without flaws. Initiating litigation under the ACPA requiresovercoming several barriers. Although at first glance section 1125(d)(l)(E) of the ACPA indicates a broad scope of conduct providing a basis forlitigation, the specified activities, and the use of the term "transactions," suggestsa strictly commercial brand of activities. 52 The language throughout section 1125limits litigation to a specific class of Internet-based claims. 53Furthermore, litigation under section 1125(d) of the ACPA also includes additionallimitations not otherwise seen in section 1125. 54 Section 1125(d)'s "badfaith" requirement in many ways singles out particular classes of defendants:those making a living in Cyberpiracy.55 This limitation is magnified by the exceptionin section 1125(d)(1)(B)(ii), which, like the individual activities listed in sections1125(d)(l)(B)(i)(I)-(IV), effectively affords a rebuttable presumption ofinnocent intent to individuals not making a career in Cyberpiracy.56 Moreover,the presence of "bad faith" is not required in other ACPA provisions, and section1125(c)(5) goes as far as to open additional remedies in light of willful violations.57 Thus, when considering its "commerciality" requirement and limited relief,the ACPA likely provides protections primarily for corporate websites.However, on its face, the ACPA is not clear about the extent of the protections itoffers for the most common forms of websites; those operated by individuals derivinglittle to no profit from their operation.The statutory text most relevant to the present discussion is section 1125(d)(2)of the ACPA, because it provides an in rem basis for jurisdiction over a domainname. 58 Much like the discussion of ACPA provisions to this point, however, acareful review of the language demonstrates section 1125( d)(2)'s limited power.For example, section 1125(d)(2)(C) provides that a domain name's situs, lies inknown as the Lanham Act, as Section 43( d). See Appendix A for the text of the ACPA relevant to thisdiscussion.52 ACPA § 1125(d)(I)(E).53 See generally ACPA § 1125; Appendix A infra.54 /d.55 In particular, ACPA §§ 1125(d)(l)(B)(i)(V)-(IX) detail the types of activities typically engagedin by Cyberpirates, whereas §§ 1125(d)(l)(B)(i)(I)-(IV) focus on activities indicating that anindividual clearly is not engaged in Cyberpiracy.56 See supra note 55.57 Other remedial considerations further limit the power of the ACPA. Under ACPA§ 1125(d)(2)(O)(ii), litigants are barred from seeking relief from website registries hosting violatingdomain names absent a showing of bad faith, reckless disregard, or failure to obey a court order.Furthermore, § 1125(d)(2)(D)(i) limits available relief to termination of the violating domain name,or its being transferred to the plaintiff. Thus, the violators themselves are not liable. Although§1125(d)(3) opens a door for additional relief, its ambiguous language (especially in light of othersubsections' specific allowances) makes its possible effectiveness and application questionable.58 ACPA § 1125( d)(2).

170 UNIVERSITY OF TilE DISTRICt' OF COLUMBIA LAW REVIEWeither the judicial district where the domain name registry is located or where"documents sufficient to establish control and authority regarding the dispositionof the registration and use of the domain name are deposited with the court."S9Despite the section's potential linguistic ambiguity, courts almost unanimouslyview this as a procedural mechanism, and have determined that a domain name'ssitus lies only in the judicial district in which it is registered.In her opinion for the court in Mattei, Inc. v. Barbie-Club. com, current SupremeCourt Justice Sonia Sotomayor summarized the generally accepted readingof section 1125(d)'s in rem provision. 60 However, this interpretation ofsection 1125( d) greatly limits its application, and has two significant consequences.First, only a limited number of judicial districts house the majority ofdomain name registries. For example, several of the most prominent registries aresituated in the Eastern District of Virginia. 61 As a result of this restrictive interpretation,the bulk of section 1125(d) litigation proceeds to a limited number ofjurisdictions. With the increase in Internet use, this may impose substantial bur-59 ACPA § 1125(d)(2)(C).60 310 F.3d 293, 300-01, 303, 306 (2d Cir. 2002) ("[T]he arrangement of § 1125(d)(2) separates,conceptually and chronologically, the prescriptive jurisdiction-granting language of subsection(d)(2)(A) from the descriptive language of legal situs in subsection (d)(2)(C). Moreover, while subsection(d)(2)(A) speaks of 'filing an in rem civil action,' subsection (d)(2)(C), which begins with thewords 'in an in rem action under this paragraph,' plainly presupposes that such an action has alreadybeen filed in a judicial district referred to in subsection (d)(2)(A), and then proceeds to describe thedomain name's legal situs during that action. Thus, by the time we reach subsection (d)(2)(C), we arealready 'in' litigation that was commenced pursuant to subsection (d)(2)(A). Nothing on the face ofthe statute suggests that a plaintiff may alter this procedural sequence ... by filing suit in a judicialdistrict of its own choosing, and then attempting unilaterally to relocate the domain name's legal situsto buttress that choice .... [B]oth the language of the statute and its legislative history indicate that inrem jurisdiction is a preexisting fact determined by the location of the disputed domain name's registraror a similar authority, and that the subsequent deposit of sufficient documents with a court of appropriatejurisdiction confirms the domain name's legal situs as being in that judicial district for purposesof the litigation .... [T]he legislative history of the ACPA reveals Congress's concern to establish acircumscribed basis for in rem jurisdiction that is grounded in the 'nexus' provided by the registrar orother domain-name authority having custody of the disputed property. This congressional solicitude isfully consistent with what we find to be the plain meaning of § 1125(d)(2)(A): that an in rem actionmay be brought only 'in the judicial district in which the domain name registrar, domain name registry,or other domain name authority that registered or assigned the domain name is located.' ... [T]heACPA's basic in rem jurisdictional grant, contained in subsection (d)(2)(A), contemplates exclusivelya judicial district within which the registrar or other domain-name authority is located. A plaintiffmust initiate an in rem action by filing a complaint in that judicial district and no other. Upon receivingproper written notification that the complaint has been filed, the domain-name authority must depositwith the court documentation 'sufficient to establish the court's' control and authority regarding thedisposition of ... the domain name, as required by subsection (d)(2)(D). This combination of filingand depositing rules encompasses the basic, mandatory procedure for bringing and maintaining an inrem action under the ACPA. Subsection (d)(2)(C) contributes to this scheme by descriptively summarizingthe domain name's legal situs as established and defined in the procedures set forth in subsections(d)(2)(A) and (d)(2)(D).") (emphasis added).61 See, e.g., Lee, supra note 1.

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 171dens on courts in those forums. Second, and perhaps more important, is the burdenimposed on potential litigants. Because a domain name's situs generally islimited to a select few judicial districts, plaintiffs and defendants often have toappear in courtrooms outside of the jurisdictions in which they reside to vindicatetheir rights.This subsection examines only a small segment of the ACPA. However, it isimportant to contemplate the potential reach of the ACPA in light of its textualconstruction,62 as compared to the narrow application applied by the courts. Suchconsiderations will be given further treatment in the latter portion of this article.C. Modern Approaches1. General Jurisdiction and Zippo's "Sliding Scale" TestA close examination of an early test formulated by the courts for determiningtheir power over non-residents' internet-based litigation coincides with the discussionof general jurisdiction. General jurisdiction is available over a non-residentdefendant where he or she is "present" in the forum, has pervasive contactsin that forum, and therefore, can justifiably be called into court regardless ofwhether the pending lawsuit arises from his or her contacts there. 63 An individualis amenable to all lawsuits brought in the state in which he or she is domiciled. 64Similarly, a corporation generally is amenable to any suit brought in its primaryplace of business or the state in which it is incorporated, regardless of whether62 See infra Appendix A.63 See Int'l Shoe Co. v. Wash., 326 U.S. 310, 317 (1945) ("[TJhe terms 'present' or 'presence' areused merely to symbolize those activities of the corporation's agent within the state which courts willdeem to be sufficient to satisfy the demands of due process. Those demands may be met by suchcontacts of the corporation with the state of the forum as make it reasonable, in the context of ourfederal system of government, to require the corporation to defend the particular suit which isbrought there.").64 Milliken v. Meyer, 311 U.S. 457, 462-64 (1940) ("Domicile in the state is alone sufficient tobring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgmentby means of appropriate substituted service .... [insofar as] the form of substituted serviceprovided for such cases and employed is reasonably calculated to give him actual notice of the proceedingsand an opportunity to be heard .... "The state which accords him privileges and affordsprotection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoymentof the privileges of residence within the state, and the attendant right to invoke the protection ofits laws, are inseparable' from the various incidences of state citizenship. The responsibilities of thatcitizenship arise out of the relationship to the state which domicile creates. That relationship is notdissolved by mere absence from the state. The attendant duties, like the rights and privileges incidentto domicile, are not dependent on continuous presence in the state. One such incident of domicile isamenability to suit within the state even during sojourns without the state, where the state has providedand employed a reasonable method for apprising such an absent party of the proceedingsagainst him.") (citations omitted).

172 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWthe litigation arises from its contacts in the forum. 65 Beyond these general rules,however, the types of pervasive contacts with a forum state necessary to establishgeneral jurisdiction are uncommon; especially when dealing with individual defendantsas opposed to business entities. Thus, this exercise of general jurisdictionis rare. 66Courts typically are reluctant to hold a defendant amenable to suit on the basisof general jurisdiction, because such a finding could expose that defendant tosubsequent lawsuits brought in any other jurisdiction. 67 A discussion of a once65 See Int'I Shoe Co., 326 U.S. at 318 (holding that "there have been instances in which thecontinuous corporate operations within a state were thought so substantial and of such a nature as tojustify suit against it on causes of action arising from dealings entirely distinct from those activities");and Perkins v. Benguet Consol. Min. Co., 342 U.S. 437,446 (1952) (reaffirming the holding in InternationalShoe, and further supporting its logic by reasoning that "some of the decisions holding thecorporation amenable to suit have been supported by resort to the legal fiction that it has given itsconsent to service and suit, consent being implied from its presence in the state through the acts of itsauthorized agents .... [b]ut more realistically it may be said that those authorized acts were of such anature as to justify the fiction") (citations omitted). But cf Hertz Corp. v. Friend, 130 S. Ct. 1181,1192-94 (2010) (The term "'principal place of business' is best read as referring to the place where acorporation's officers direct, control, and coordinate the corporation's activities .... [often referred toas] the corporation's 'nerve center' .... [which] in practice ... should normally be the place where thecorporation maintains its headquarters -provided that the headquarters is the actual center of direction,control, and coordination, i.e., the 'nerve center,' and not simply an office where the corporationholds its board meetings." The Court held that this reading is closely aligned with the intent of 28U.S.c. § 1332, because it provides a moderate and simplistic approach for establishing jurisdictionover a corporation, and affords a degree of predictability beneficial to corporations and individualplaintiffs alike.).66 Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 418 (1984) ("Merepurchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of inpersonam jurisdiction over a nonresident corporation in a cause of action not related to thosepurchase transactions. Nor [does] the fact that Helicol sent personnel into Texas for training in connectionwith the purchase of helicopters and equipment in that State in any way enhanced the natureof Helicol's contacts with Texas. The training was a part of the package of goods and services purchasedby Helicol from Bell Helicopter. The brief presence of Helicol employees in Texas for thepurpose of attending the training sessions is no more a significant contact than were the trips to NewYork made by the buyer for the retail store in Rosenberg. See also [Kulko v. Superior Court of Cal.,436 U.S. 84 (1978)] (basing California jurisdiction on 3-day and I-day stopovers in that State 'wouldmake a mockery of due process limitations on assertion of personal jurisdiction. "). See also SubmersibleSys. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 419 (5th Cir. 2001) ("As commentators haverecognized, the continuous and systematic contacts test is a difficult one to meet, requiring extensivecontacts between a defendant and a forum .... [so much so that the] Supreme Court has upheld anexercise of personal jurisdiction when the suit was unrelated to the defendant's contacts with a forumonly once") (citations omitted); Gardemal v. Westin Hotel Co., 186 F.3d 588, 596 (5th Cir. 1999)(declining jurisdiction because the plaintiffs "assertions [were] vague and overgeneralized .... [giving]no indication as to the extent, duration, or frequency of [the defendant's] business dealings inTexas .... [and] even if taken as true, [the plaintiffs] assertions amount[ed] to little more than avague claim that [the defendant] conduct[ed] business in Texas .... [Therefore the defendant lacked]the continuous and systematic contacts necessary for the exercise of general jurisdiction. ").67 For a general discussion of this possibility, see Note: No Bad Puns: A Different Approach tothe Problem of Personal Jurisdiction and the Internet, 116 HARv. L. REV. 1821, 1834 (2003), and

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 173popular test used to consider a court's power over non-residents in Internet-relatedlawsuits illustrates this possibility. The court in Zippo Manufacturing Co. v.Zippo DOT Com, Inc., established a "Sliding Scale" test for exercising jurisdictionover a non-resident defendant based on his or her Internet-related conductin the forum. 68 There, the court found that "the likelihood that personal jurisdictioncan be constitutionally exercised is directly proportionate to the nature andquality of commercial activity that an entity conducts over the Internet.,,69 Followingthe decision in Zippo, the Sliding Scale test gained popularity as a meansfor determining a defendant's amenability to suit based on the categorization ofhis or her website within the Sliding Scale framework and the types of activitiesconducted through that website.A comparison of the language defining the nature of conduct sufficient forexercising general jurisdiction over a defendant with that of the Sliding Scale testidentifies a clear theoretical overlap. Under the Sliding Scale test, a non-resident'scontacts with a forum state can be found to be so continuous, systematic,and substantial that the forum state's court has power over him or her in litigationunrelated to those contacts?O On one end are "active" websites. Active sitesare akin to large corporations that deliberately conduct business in a forum andsubsequently are deemed amenable to suit there on any ground, because theyhave continued to avail themselves of the benefits and protections of the forum'slaws?l At the lower end of the Sliding Scale are "passive" websites, which areMichael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16BERKELEY TEeli. LJ. 1345, 1370 (2001). Also compare Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 1996) (suggesting that even if a website provides contacts normally satisfying ageneral jurisdiction analysis, due process protections impose a significant barrier, because allowingjurisdiction on these grounds may result in website owners being amenable to jurisdiction whereverthe website is accessible), with Inset Sys. v. Instruction Set, 937 F. Supp. 161, 165 (D. Conn. 1996),supra text on page 8.68 952 F. Supp. 1119 (W.D. Pa. 1997).69 Id. at 1123-24.70 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446 (1952); see also Keeton v. HustlerMagazine, Inc., 465 U.S. 770,780 n.11 (1984) (The Court clarified its holding in Perkins by making thedistinction with the case at bar that "[t]he defendant corporation's contacts with the forum State inPerkins were more substantial than those of respondent with New Hampshire in this case. In Perkins,the corporation's mining operations, located in the Philippine Islands, were completely halted duringthe Japanese occupation. The president, who was also general manager and principal stockholder ofthe company, returned to his home in Ohio where he carried on 'a continuous and systematic supervisionof the necessarily limited wartime activities of the company.' The company's files were kept inOhio, several directors' meetings were held there, substantial accounts were maintained in Ohiobanks, and all key business decisions were made in the State. In those circumstances, Ohio was thecorporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even overa cause of action unrelated to the activities in the State.") (citations omitted).71 But see Hertz Corp. v. Friend, 130 S. Ct. at 1192-94. Given the Supreme Court's recent interpretationof 28 U.S.c. § 1332, the author recognizes that the above statement may soon become anoutdated view. See also BNA, Jurisdiction and Procedure: High Court Endorses 'Nerve Center' Test forCorporate Citizenship in Diversity Cases, 42 SEC'. REG. & L. REP. 342 (2010).

174 UNIVEI{SITY OF THE DISTRICT OF COLUMHIA LAW REVIEWinsufficient for establishing jurisdiction over a non-resident. The logic for decliningjurisdiction under these circumstances mirrors that used by courts rejecting a"stream of commerce" justification in typical general jurisdiction cases.72 Betweenthese extremes are "interactive" websites, and jurisdiction based on theoperation of these sites will depend on the surrounding facts and circumstances ofeach case?3Despite its overlap with the analysis of general jurisdiction, the Sliding Scaletest often was used to determine a defendant's amenability to specific jurisdiction?4Moreover, courts have not always embraced its application in the generaljurisdiction context. 75 Thus, concerns that broad exercises of general jurisdiction72 See Pavlovich v. Superior Court, 29 Cal. 4th 262, 274-75 (Cal. 2002) (Affirming previousholdings that" '[c]reating a site, like placing a product into the stream of commerce, may be feltnationwide -or even worldwide- but, without more, it is not an act purposefully directed toward theforum state.'" Otherwise, 'personal jurisdiction in Internet-related cases would almost always befound in any forum in the country' .... Such a result would 'vitiate long-held and inviolate principlesof personal jurisdiction.") (citations omitted). See also Bearry v. Beech Aircraft Corp., 818 F.2d 370,375 (5th Cir. 1987) (holding that the "conclusion that there is a stream of commerce ensures that thecontact that caused harm in the forum occurred there through the defendant's conduct and not theplaintiffs unilateral activities; it does not ensure that defendant's relationship with the forum is continuousand systematic, such that it can be sued there for unrelated claims"); Purdue Research Found.v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir. 2(03) (holding the defendant's "reliance on thestream of commerce theory is misplaced because that theory is relevant only to the exercise of specificjurisdiction; it provides no basis for exercising general jurisdiction over a nonresident defendant").73 See also Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) ("At the one end of thespectrum, there are situations where a defendant clearly does business over the Internet by enteringinto contracts with residents of other states which 'involve the knowing and repeated transmission ofcomputer files over the Internet ... .' In this situation [the website is considered active or commercial,and] personal jurisdiction is proper. At the other end of the spectrum, there are situations where adefendant merely establishes a passive website that does nothing more than advertise on the Internet.With passive websites, personal jurisdiction is not appropriate. In the middle of the spectrum, thereare situations where a defendant has a website that allows a user to exchange information with a hostcomputer. In this middle ground, 'the exercise of jurisdiction is determined by the level of interactivityand commercial nature of the exchange of information that occurs on [these interactive] Website[s].' ") (emphasis added) (citations omitted).74 In fact, Zippo was a specific jurisdiction case, Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1125-26 (W.O. Pa. 1997) ("We are being asked to determine whether Dot Com's conductingof electronic commerce with Pennsylvania residents constitutes the purposeful availment ofdoing business in Pennsylvania .... [and we] conclude that it does."). However, courts also used theSliding Scale test when evaluating general jurisdiction, e.g., Mink v. AAAA Dev. LLC, 190 F.3d 333,336 (5th Cir. 1999) (adopting Zippo's Sliding Scale test in the 5th Circuit in the context of a generaljurisdiction analysis, but declining to exercise jurisdiction based on the defendant's website).75 The confusion arising from Gator.com Corp. v. L.L. Bean, Inc., 2001 U.S. Dist. LEXIS 19737(N.D. Cal. Nov. 21,2001), and a sequence of subsequent decisions on appeal illustrates this point. Onappeal from the District Court's dismissal for want of personal jurisdiction, the 9th Circuit determinedthat L.L. Bean in fact had established a continuous and systematic presence in California. The courtreasoned that "[u]nder the sliding-scale analysis, L.L. Bean's contacts with California are sufficient toconfer general jurisdiction. L.L. Bean's website is highly interactive and very extensive: L.L. Bean'clearly does business over the Internet.' Moreover, millions of dollars in sales, driven by an extensive,

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 175would expose non-resident defendants to unpredictable and potentially unrestrictedpersonal jurisdiction, and over the difficulty in consistently applying theSliding Scale test, gave rise to other approaches. However, when conduct in aforum is more substantial, continuous, and systematic, the test may retain valueas a means for establishing general jurisdiction over websites and defendants.2. Specific Jurisdiction and Calder's "Effects" TestA closer look at another test used by the courts for determining their powerover a non-resident defendant in internet-based disputes aligns with the discussionof specific jurisdiction. Courts generally hale non-residents into a foreigncourtroom by exercising their power of specific jurisdiction. "Specific jurisdictionis only appropriate when the nonresident defendant's contacts with the forumstate arise from, or are directly related to, the cause of action. ,,76 It is unquestionedthat a single act is sufficient to establish specific jurisdiction, insofar as thatsingle act gives rise to the pending lawsuit. 77ongoing, and sophisticated sales effort involving very large numbers of direct email solicitations andmillions of catalog sales, qualifies as 'substantial' or 'continuous and systematic' commercial activity.... The District Court erred in concluding that there was no general jurisdiction in this case."Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1080 (9th Cir. 2003) (citations omitted). But it didnot end there. After yet another appeal, the 9th Circuit once more had an opportunity to view thefacts, and summarized the events leading up to their once more hearing the case, and the uncertainstate of the law. "We vacated the decision of the three-judge panel when we took the appeal en bane,but the panel decision is in the Federal Reporter for anyone to read. That decision no longer has theforce of law, but it is a clear statement by three judges of this court that, in their view, there is generaljurisdiction over L.L. Bean in California .... The disarray in our case law is patent. How else toexplain such dramatically different holdings from our judges -one judge dismissing for lack of jurisdictionand three judges holding that there is general jurisdiction? It is not only the litigants in this casethat would benefit from an en bane opinion in this appeal. All potential litigants in this circuit wouldbenefit." Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1142-43 (9th Cir. 2005) (citations omitted).See also Silverstein v. E360 Insight, LLC, 2007 U.S. Dist. LEXIS 57695, *7-8 n.2 (C.D. Cal. Aug.6,2007).76 Global 360, Inc. v. Spittin' Image Software, Inc., No. 3:04-CV-1857-L, 2005 U.S. Dist. LEXIS4092, at *8 (N.D. Tex. Mar. 17,2005).77 See, e.g., Int'l Shoe Co. v. Wash., 326 U.S. 310,317 (1945) ('''Presence' in the state in thissense has never been doubted when the activities of the corporation there have not only been continuousand systematic, but also give rise to the liabilities sued on, even though no consent to be sued orauthorization to an agent to accept service of process has been given."); Burnham v. Superior Courtof CaL, 495 U.S. 604, 618 (1990) (interpreting [nt'l Shoe as suggesting "the defendant's litigationrelated'minimum contacts' may take the place of physical presence as the basis for jurisdiction.");McGee v. InCI Life Ins. Co .• 355 U.S. 220, 224 (1957) ("It is sufficient for purposes of due process thatthe suit was based on a contract which had substantial connection with that State."); Lewis v. Fresne,252 F.3d 352, 358-59 (5th Cir. 2001) (holding that "[aJ single act by a defendant can be enough toconfer personal jurisdiction if that act gives rise to the claim being asserted").

176 UNIVERSITY OF TIlE DISTRICr OF COI.UMBlA LAW REVIEWFollowing the Supreme Court's decision in Calder v. Jones, a new wrinkle wasadded to the "single act is enough" rule. 78 The Court upheld California's jurisdictionover the defendants, Calder and South, holding that the story they published"concerned the California activities of a California resident ... whose televisioncareer was centered in California.,,79 Because "the brunt of ... respondent'semotional distress and the injury to her professional reputation, was suffered inCalifornia," the court viewed California as "the focal point both of the story andof the harm suffered .... [therefore making jurisdiction] over petitioners ...proper in California based on the 'effects' of their Florida conduct in California.,,8oThe Court was, however, careful in defining the reach of this "effectsbased"doctrine, stating that Calder's and South's "intentional, and allegedly tortious,actions were expressly aimed at California .... [a ]nd they knew that thebrunt of that injury would be felt by respondent in the State in which she live [ d]and work[ ed] and in which the[ir] [ employer] ha[ d] its largest circulation. ,,81Given the totality of the circumstances, therefore, Calder and South "must 'reasonably[have anticipated] being haled into court there' to answer for the truth ofthe statements made in their article. ,,82In the aftermath of Calder, courts across the country began utilizing the "Effects"test. 83 Before long, the logic extended beyond its initial use in libel cases,78 465 U.S. 783 (1984). And even if it is argued that the Effects test was not a novel approach bythe time Calder reached the Supreme Court, there is no denying that it achieved its current prominenceas a result of the Court's endorsement.79 Id. at 789.80 Id.81 Id. at 789-790.82 Id. at 790 (citations omitted).83 See, e.g., Guidry v. U.S. Tobacco Co., 188 F.3d 619, 628 (5th Cir. 1999) (The court cites anumber of helpful sources on the Effects doctrine in the context of intentional torts, as well as itsroots in Calder, stating that "[w)hen a nonresident defendant commits a tort within the state, or an actoutside the state that causes tortious injury within the state, that tortious conduct amounts to sufficientminimum contacts with the state by the defendant to constitutionally permit courts within thatstate, including federal courts, to exercise personal adjudicative jurisdiction over the tortfeasor andthe causes of actions arising from its offenses or quasi-offenses. See, e.g., Jobe v. ATR Mktg., Inc., 87F.3d 751, 753 (5th Cir. 1996); Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 231 (5th Cir.1995); Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990); DJ. Invs., Inc. v. Metzeler MotorcycleTIre Agent Gregg, Inc., 754 F.2d 542, 547 (5th Cir. 1985); DeMelo v. Toche Marine, Inc., 711 F.2d1260, 1270-71 (5th Cir. 1983); Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir. 1983); Simonv. United States, 644 F.2d 490, 499 (5th Cir. 1981); Wilkerson v. Fortuna Corp., 554 F.2d 745,748 (5thCir. 1977); Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1233-34 (5th Cir. 1973), abrogated onother grounds by United States v. Cooper, 135 F.3d 960 (5th Cir. 1998); Elkhart Eng'g. Corp. v.Dornier Werke, 343 F.2d 861, 866-67 (5th Cir. 1965); Calagaz v. Calhoon, 309 F.2d 248, 256-57 (5thCir. 1962); see 4 Wright & Miller, § 1069; Willis L. M. Reese & Nina M. Galston, Doing an Act orCausing Consequences as Bases of Judicial Jurisdiction, 44 IOWA L. REV. 249 (1959). Even an actdone outside the state that has consequences or effects within the state will suffice as a basis forjurisdiction in a suit arising from those consequences if the effects are seriously harmful and wereintended or highly likely to follow from the nonresident defendant's conduct. See Calder, 465 U.S. at

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 177moving into other intentional torts, business torts,84 and eventually, the Effectstest was applied by courts seeking jurisdiction over non-residents whose internetrelatedcontacts allegedly caused harm to plaintiff's in the forum. "[W]hen anentity intentionally reaches beyond its boundaries to conduct business with foreignresidents, the exercise of specific jurisdiction is proper. Different resultsshould not be reached simply because business is conducted over the Internet.,,85The courts routinely have held that although a physical presence in the forummay solidify a court's power over him or her, "murisdiction in these circumstancesmay not be avoided merely because the defendant did not physicallyenter the forum State .... [and insofar as] efforts are 'purposefully directed' towardresidents of another State ... absence of physical contacts [cannot] defeatpersonal jurisdiction there."s6 Given the previously noted inconsistency in theapplication of the Sliding Scale test, and continuing uncertainty about the bestmethod for determining jurisdiction in internet-based litigation, Calder's Effectstest quickly became the standard. 87789-90; Bullion, 895 F.2d at 217; Brown, 688 F.2d at 333; Simon, 644 F.2d at 499; see 4 Wright &Miller, § 1069.").84 See Pavlovich v. Superior Court, 29 Cal. 4th 262, 269 (Cal. 2002).85 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) (citationsomitted).86 Burger King Corp. v. Rudzewicz, 471 U.S. 462,476 (1985) (discussing jurisdiction over "commercialactors," but this reasoning has readily been applied over businesses and individuals alike).87 See, e.g., Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir. 2002) (holding thatwhen viewed as a whole, website postings by Connecticut newspapers about a prison in Virginia werenot sufficient for establishing jurisdiction, because "the newspapers' websites, as well as the articles inquestion, were aimed at a Connecticut audience. The newspapers did not post materials on the Internetwith the manifest intent of targeting Virginia readers. Accordingly, the newspapers could nothave 'reasonably anticipated being haled into court [in Virginia] to answer for the truth of the statementsmade in their articles"') (citation omitted); Digital Equip. Corp. v. AltaVista Tech., Inc., 960F.Supp. 456, 470 (D.Mass. 1997) (dismissing defendant's motion to dismiss for lack of personal jurisdiction,because by posting a website infringing on the plaintiffs trademark, they "like the petitionersin Calder, should have anticipated being haled into a Massachusetts court to answer for [their] acts");IIIustro Sys. Int'l, LLC v. IBM, No. 3:06-CV-1969-L, 2007 U.S. Dist. LEXIS 33324, at *29-31 (N.D.Tex. May 4, 2007) (concluding that copyright infringement is an intentional tort, and noting the utilityof Calder's "Effects" test for determining the amenability of jurisdiction in such cases); Goldhaber v.Kohlenberg, 395 N.J. Super. 380,389-390,928 A.2d 948, 953 (N.J. Super. App. Div. 2007) (holding thedefendant's internet postings were sufficient to establish jurisdiction, due to their targeted and specificlanguage toward plaintiffs, who were forum residents); Bochan v. La Fontaine, 68 F. Supp. 2d 692,699, 702 (E.D. Va. 1999) (The court extended a broad jurisdictional reach, holding that "a prima facieshowing of a sufficient act by the La Fontaines in Virginia follows from their use of the AOL account,a Virginia-based service, to publish the allegedly defamatory statements. According to Bochan's expert,because the postings were accomplished through defendant's AOL account, they were transmittedfirst to AOL's USENET server hardware, located in Loudon County, Virginia. There, themessage was apparently both stored temporarily and transmitted to other USENET servers aroundthe world. Thus, as to the La Fontaines, because publication is a required element of defamation, anda prima facie showing has been made that the use of USENET server in Virginia was integral to thatpublication, there is a sufficient act in Virginia to satisfy [statutory requirements]," and that "[u]nder

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

REVISING THE ANALYSIS OF PERSONAL JURISDICTION 179barriers for establishing jurisdiction over non-resident defendants. Nevertheless,Internet-based contacts may not allow for direct proof of the specific intent likelynecessary to justify haling a non-resident defendant into a foreign court. This iswhere the Effects test begins to weaken. But, much like the Sliding Scale test, itwould remain useful under the proper circumstances.3. SummaryIn response to a flood of Internet-related litigation, the courts initially struggledto analyze the suitability of jurisdiction within the existing personal jurisdictionframework. Two tests emerged from this early period of litigation thatsurvive to this day: Zippo's Sliding Scale test, and Calder's Effects test. Althoughcourts often apply one or both of these tests to determine whether a non-resident'scontacts are sufficient to confer jurisdiction,91 both approaches have theirdrawbacks.Under the Effects test, jurisdiction rarely is exercised absent a defendant's"expressly aiming" their conduct at the forum state. As the court in Pavlovich v.Superior Court held, "knowledge alone is insufficient to establish express aimingat the forum state as required by the effects test.,,92 In many ways, then, thisrequirement serves the same purpose as the graduated website classificationscheme in the Zippo test, because both are intended to add a degree of predictthoughthere appears to be an "intent" requirement inherent in the purposeful availment analysis,courts generally have set a low standard for satisfying it).91 TITI Nguyen, A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition,19 BERKELEY TECH. L.J. 519 (2004).92 29 Cal. 4th 262, 278 (Cal. 2002). It is notable that the dissenting opinion, although relaxingthe requirement that the defendant expressly aim their conduct at a known person or place, stillrequired express aiming at the forum, stating that "it cannot matter that defendant may not haveknown or cared about the exact identities or precise locations of each individual target, or that hehappened to employ a so-called passive Internet Web site, or whether any California resident visitedthe site. By acting with the broad intent to harm industries he knew were centered or substantiallypresent in this state, defendant forged sufficient 'minimum contacts' with California 'that he shouldreasonably anticipate being haled into court [here).'" Id. at 279 (citations omitted). The dissentingjudges went on to state that "the intended injurious effects of posting DeCSS were aimed directly atthe computer hardware industry involved in producing CSS-encrypted DVD players -an industry Pavlovichknew was heavily concentrated in California .... Moreover, Pavlovich knew the purpose ofCSS was to protect copyrighted movies from pirating, and ... [t]hus, even if he did not personallypirate copyrighted material for commercial gain, Pavlovich ... took an action calculated to harm themovie industry, which [he) knew was centered in California." Id. at 288. The dissent concluded bystating that "defendants who aim conduct at particular jurisdictions, expecting and intending thatinjurious effects will be felt in those specific places, cannot shield themselves from suit there simply byusing the Internet, or some other generalized medium of communication, as the means of inflictingthe harm." Id. at 289 (citations omitted). "[T)he unusual and unprecedented facts of this case demonstratepurposeful activity directed toward this forum sufficient to establish minimum contacts underthe Calder test. As a result of his actions, defendant Pavlovich should reasonably have anticipatedbeing haled into court in this state, and recognition of California's jurisdiction thus meets constitutionalstandards of fairness." Id. at 294.

180 UNIVERSITY OF TIlE DISTRICT (W COLUMBIA LAW REVIEWability to Internet-related activity that will support personal jurisdiction, but justas importantly, institute a stringent standard that prevents all Internet users (andin particular website operators) from being exposed to litigation in all forums.The concerns of the majority in Pavlovich 93 can be summarized as follows:[If] the mere posting of information on a [website], which is accessible fromanywhere but is directed at no particular audience, [is deemed] an actiontargeted at a particular forum ... mere use of the Internet would subject theuser to personal jurisdiction in any forum where the site was accessible. 94Unfortunately, internet users typically do not have actual and specific knowledgeof the where or to whom their conduct is directed. Certainly, interactionsamong friends and acquaintances via the Internet generally involve the type of"express aiming" required by Pavlovich. But what of the millions of business interactions,or blog posts, or the various other activities that previously requiredphysical presence or interaction, but now are achievable through the Internetwith the click of a button?Somewhere in between the restrictive view incorporated in modern legal approaches,and the potential for nightmarish and unconstitutional outcomes predictedby countless judges, lies a more suitable framework for determiningpersonal jurisdiction in the Internet age. The following section explores severalpossible alternatives.IV. TECHNOLOGICAL ADVANCES REQUIRE NEW ApPROACHES TO THEPERSONAL JURISDICTION ANALYSISInternet-related conduct facilitates interactions that modern legal approachesdo not adequately consider. It is almost beyond dispute that the Internet facilitatesthe modern functional equivalent of the physical presence in a forum that isnecessary for a court to exercise its power. Courts continue to explore the boundariesof their power in Internet-related litigation. 95 However, the law has yet to93 Author's note: the quoted language is from the dissenting opinion and is not intended toreflect the dissent's agreement with the majority'S view of potential outcomes, but rather, was thedissent's well-stated summary of the majority's position.94 Pavlovich, 29 Cal. 4th at 262, 289.95 See, e.g., Molly McDonough, Indiana High Court Allows MySpace Entry as Evidence in MurderTrial, ABA JOURNAL: LAW NEWS Now, Oct. 16, 2009 (discussing the Indiana Supreme Court'srecent upholding of a conviction in which comments made on a defendant's MySpace page were usedas character evidence, and quoting a Fort Wayne Journal Gazette interview with Valparaiso University'sBruce Berner, who commented on the decision's consistency in terms of established law, despitethe difference in forum ("this guy spouts off on a MySpace page instead of to a guy at a bar .... Theformat is different ... , but other than that, this is classic prosecution rebutting a defendant who puthis own character at issue."»; Dart v. Craigslist, Inc., 09 C 1385 (N.D. III. Oct. 20, 2009) (dismissing aclaim against Craigslist.com on the grounds that the lawsuit brought was preempted by 47 U.S.c.§ 230); Bosh v. Zavala (08-CV-04851-FMC-MANx) (C.D. Cal. Sept. 24,2009) (touching on the conceptof Cybersquatting discussed in Section III.B supra, the court allowed basketball star Chris Bosh

REVISING THE ANALYSIS OF PERSONAL JURISDICTION 181fully acknowledge the influence of the Internet in everyday life, often resulting inless-than-adequate outcomes in light of concerns for fair play and substantialjustice.Yet this is not the first instance of the law encountering conflicts betweenemerging legal issues and long-held procedural practices. The following presentsseveral innovations that would allow courts to more effectively, efficiently, andfairly adjudicate Internet-related disputes. Although these ideas are offeredmerely as a starting point for a more substantive discussion on the relevant issues,each is firmly rooted in the logic of traditional jurisdictional analyses, and is supportedby the broader philosophical underpinnings of the courts' methods forhandling Internet litigation to date.A. StatutesUnder the ACPA, Congress effectively established a website as a form ofproperty, designated its legal situs in the jurisdiction in which its domain nameregistry is located, and made an allowance for plaintiffs to bring in rem proceedingsin that locale. One method for adapting the personal jurisdiction analysis tomodern realities would be a wide-scale implementation of the ACPA approach.The court in Caesars World, Inc. v. Caesars-Palace. com, adequately captured thepower of statutes in reshaping jurisdictional frameworks: "There is no prohibitionon a legislative body making something property. Even if a domain name is nomore than data, Congress can make data property and assign its place of registrationas its situs.,,96The first determination to make under an ACPA-like approach is the propersitus of the Internet property, because absent careful planning, outcomes wouldbe no better than those occurring under existing approaches. One option is touniformly apply the ACPA's logic, and to entertain all disputes arising from webrelatedcontacts in the jurisdiction where the domain name's registry is located.However, this likely would pose an undue burden on a select few jurisdictions. 97A more novel, albeit controversial approach would be to "localize" the website'ssitUS. 98 Much like the Internet facilitates the modern functional equivalentto seize various domain names held by the defendant) (for more on Bosh and other recent casesbringing about the question of whether domain names can be used to satisfy creditor judgments, seeEric Goldman, Domain Names as Property Subject to Creditor Claims -Bosh v. Zavala, TECH. &MARKETING LAW BLOG, Oct. 21, 2009); CoStar Realty Info., Inc. v. Field, 2009 WL 841132 (D. Md.March 31, 2009) (holding that jurisdiction was proper over defendants who used plaintiffs onlinedatabases without authorization, because they likely would have seen the terms of service, and thechoice of forum clause therein, during the several years they accessed the site).96 112 F. Supp. 2d 502, 504 (E.D. Va. 2000) (emphasis added).97 See, e.g., Lee, supra note 1.98 This approach is, however, consistent with existing methods. See, e.g., 28 U.S.C. § 1391(2010) (providing venue both where jurisdiction is founded solely on diversity, as well as where jurisdictionis not founded solely on diversity in "a judicial district in which a substantial part of the events

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

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 183rooms, and jurisdiction would be established in a fashion much closer totraditional frameworks, rather than imposing the mutual inconvenience of litigatingin foreign courtrooms on both plaintiffs and defendants, as is the case underthe ACPA.However, this approach is not without its pitfalls. First, this framework generallywould only apply to litigation arising from some form of website-related dispute.Thus, the various other forms of Internet-related disputes, including suitsarising from Internet-based breaches of contract, Internet-related business transactions,Internet-based tort claims, and so on, do not fit neatly within this framework.More important, potentially significant concerns arise in terms ofconstitutional due process when non-residents suddenly are being haled into foreigncourtrooms in a manner the courts have been so careful to prevent. Theseconcerns do not altogether destroy the viability of a statutory approach to modernizingjurisdictional analyses, but they do make an examination of additionalalternatives worthwhile.B. Expanding the Use of in rem JurisdictionThis subsection expands on the notion presented above that the Internet givesrise to the modern functional equivalent of property possession. From the onset,it bears repeating that a valid exercise of in rem jurisdiction requires that theproperty in question be related to the pending lawsuit, and that the appropriatenessof jurisdiction be evaluated according to the two-pronged test originally setforth in International Shoe. tOOTo utilize in rem jurisdiction in Internet-related disputes in a meaningful way,two propositions must be accepted. First, Internet-based proprietary rights mustbe acknowledged as valid and enforceable. This notion is most readily acceptablewhen considering websites as personal possessions, but a similar line of logic extendsto written works, software, and any other property-like interests that normallyare connected with physical possession, but now extend into cyberspace inthe form Internet-based equivalents of property. Such recognition is consistentwith the widely accepted view that stocks, trademarks, and other intangible interestsare to be afforded rights consistent with those enjoyed by the holders of realor personal property.tOl Second, the most efficient means of conducting in remproceedings would be to hale a non-resident defendant into the forum where theproperty is located. This requires acceptance of in rem jurisdiction as a "twoway"concept.The Supreme Court decisions examining whether property is a valid basis forjurisdiction over a non-resident defendant suggest that in rem jurisdiction is a100 Shaffer v. Heitner, 433 U.S. 186,207 (1977).101 See generally RESTATEMENT (SECOND) OF JUDGMENTS, § 6 (1982). In particular, the reporternotes are helpful in navigating the evolution of the law in this area.

184 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWviable alternative in the context of Internet-based disputes. Furthermore, theysuggest that in rem jurisdiction may be appropriate even when the defendantdoes not own property in the forum. In both McGee v. International Life InsuranceCo., and Shaffer v. Heitner, the Court gives considerable attention to equity,and to the interests of states and plaintiffs. 102 McGee cited the forum's "manifestinterest in providing effective means of redress for its residents" as a basis for inrem jurisdiction, and stated that resident plaintiffs "would be at a severe disadvantageif . . . forced to follow [defendants] to a distant State in order to hold[him or her] legally accountable.,,103 In Shaffer, the Court stated that the presenceof property provides the contact between the forum, the defendant, and thelitigation necessary for a state to exercise its power over a non-resident, insofar asthe property is related to the instant claim. 104 Furthermore, Shaffer cites as reasonsfor subjecting a defendant to in rem jurisdiction the availability of resourcesto conduct efficient litigation, and the benefits of the forum that the defendantimplicitly receives through his or her connection with the property in that forum.105 The Court further held that "when claims to the property itself are thesource of the underlying controversy ... it would be unusual for the State wherethe property is located not to have jurisdiction."lo6 Finally, viewing in rem jurisdictionas a two-way concept is consistent with the underlying intent in the lineageof case from Penn oyer, to International Shoe, and to Shaffer. 107 In otherwords, in rem jurisdiction should be viewed as a basis for establishing jurisdictionover a non-resident defendant, regardless of whether he or she owns property inthe forum state, or merely benefits from a resident plaintiffs property ownershipin the forum.The connection that property forms between a forum, a defendant, and thelitigation in cases where a non-resident defendant derives benefits from a forumplaintiff's property likely are just as strong as it is when the non-resident defendanthim or herself owns property there. lOS This connection establishes the requisiteminimum contacts with the forum state, and in doing so satisfies the firstprong of the International Shoe test, because the non-owner reasonably shouldbelieve that any grievance or injury arising from his or her relationship with the102 McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957); Shaffer v. Heitner, 433 U.S. 186 (1977).103 McGee,355 U.S. at 223.104 Shaffer,433 U.S. at 207.105 [d. at 207-208.106 /d. at 208.107 Pennoyer v. Neff, 95 U.S. 714 (1877); Int'l Shoe Co. v. Wash., 326 U.S. 310 (1945); Shaffer v.Heitner, 433 U.S. 186 (1977). See supra text accompanying notes 21, 28, 34.108 See Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App. 1999) (holding that, regardless of residency,"a state [probate] court maintains in rem jurisdiction over property located within the statethat gives rise to the cause of action"); State v. Approximately $2,000,000.00 in U.S. Currency, 822S.W.2d 721, 726 (Tex. App. 1991) (ruling that "if the res is released accidently [sic], fraudulently, orimproperly, the court will not be divested of its jurisdiction").

REVISING THE ANALYSIS OF PERSONAL JURISDICTION 185property will expose him or her to liability in the state where it is located. Inlitigation over the rights to or injuries arising out of Internet-based property, anyjudgment would directly determine the parties' rights to such property. A court'sexercising its power over such disputes would be consistent with traditionalgrants of personal jurisdiction, because the Internet property would be the subjectof the litigation. Thus, haling a non-resident defendant into a foreign court onthe basis of in rem jurisdiction remains true to the meaning of the term,109 and isconsistent with long-held due process requirements. I 10Nevertheless, potential concerns arise when considering these suggested approachesin light of the second prong of the International Shoe test. Would halinga non-resident defendant into a foreign jurisdiction comport with constitutionaldue process, where it is quite possible he or she previously is unaware of theforum in which his or her conduct is felt? Does a forum have a substantial interestin determining a dispute where Internet-based property rightly could beviewed as something closer to a legal fiction than other more tangible propertyinterests? A systemic innovation proposed in the last subsection could adequatelyaddress such justifiable concerns.c. Reexamining Accepted ApproachesThe courts and the law have established a series of self-imposed restraintswhen dealing with Internet-related litigation, likely to prevent the inevitable falloutfrom too loose an application of traditional personal jurisdiction analyses. II IHowever, such responses undervalue the prominent role of the Internet in everydaylife, and do not accurately reflect the character of the Internet-based activi-109 See supra text accompanying note 40; Shaffer, 433 U.S. at 207.110 A third alternative may prove useful if one is not willing to view in rem jurisdiction in themanner presented above, but still requires the initial acknowledgment of Internet-based propertyrights. In rem jurisdiction generally is divided into three categories. See supra text accompanying note36. If the defendant's conduct can be classified as a claim of an "unlawful" or "adverse" interest in theresident-plaintiffs Internet-based property, in rem jurisdiction is justifiable under both the quasi inrem type I and the quasi in rem type II approaches. First, the "two-way" in rem argument presentedabove becomes unnecessary, because the non-resident, by way of this legal fiction, does actually ownInternet-based property in the forum; albeit the ownership interest is a negative one. Thus, a court'sexercise of power falls nearly in line with the standard application of in rem jurisdiction. Under type I,the plaintiff could be viewed as essentially "quieting the title" to their Internet property. Under typeII, the plaintiff would concede ownership of the "unlawful" portion of the Internet-based propertythat the non-resident defendant creates by way of their conduct (as the Court suggests in Shaffer),would bring an action based on the "injury" incurred to that portion of their Internet property, andwould then seek to re-establish full and uninterrupted ownership of the Internet-based property.Once in rem jurisdiction is established in this manner, the plaintiff also may have grounds to seekother in personam relief under another "two-way" application. See, e.g., Garfein v. McInnis, 162 N.E.73, 74 (N.Y. 1928); see also Buzzell v. Edward H. Everett Co., 180 F.Supp. 893, 902 (D. Vt. 1960).111 See, e.g., Mark C. Dearing, Personal Jurisdiction and the Internet: Can the Traditional Principlesand Landmark Cases Guide the Legal System into the 21st Century?, 4 J. TEell. L. & POL'y. en 10(Spring 1999).

186 UNIVERSITY OF THE DISTRICT OF COLUMnIA LAW REVIEWties that give rise to litigation. This is not to suggest that existing approaches mustbe completely abandoned. Instead, they simply require a renewed focus andslight retooling to accommodate the exercise of personal jurisdiction in the InternetAge.First, the Zippo and Calder tests should be modified to better determine theappropriateness of personal jurisdiction in Internet-related litigation. Zippo aroseout of business-related Internet conduct. I 12 Moreover, its language clearly resemblesthe concept of "continuous and systematic" presence that serves as the foundationfor general personal jurisdiction. Nevertheless, courts have been reluctantto exercise general jurisdiction over non-resident defendants, and have appliedthe Sliding Scale test cautiously to protect Internet users and website ownersfrom being haled into court in any jurisdiction in which Internet access isavailable.However, this article argues that the Internet facilitates the modem functionalequivalent of actual, physical presence in a forum, and that non-residents now areequipped to engage in activities in foreign jurisdictions at their leisure, and withoutleaving their homes. As the court in L. L. Bean recognized, for example, thereis little difference between an online store and a store physically located in aforum. I 13 And with the growth of forums like eBay and Craigslist, this commercialthrust likely will continue.When combined with "doing business" long-arm statutes,114 the Sliding Scaletest provides an ideal mechanism for establishing general personal jurisdictionover non-residents based on their business activities or other such pervasive Internet-relatedcontacts in a forum. Under this approach, one level of analysisexamines the interactivity of the website, and the other level whether the nonresident"does business" in the forum. Thus, general personal jurisdiction onlywould be exercised over those realistically engaged in cyber commerce, and whoshould foresee being haled into a foreign court as a result of their Internet-basedactivities. This framework would be more responsive to the realities of the Internet,and more suitable for dealing with the growing number of individuals engagingin "e-commerce."112 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.O. Pa. 1997) ("[T]helikelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to thenature and quality of commercial activity that an entity conducts over the Internet.").113 Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1079 (9th Cir. 2003).114 See supra text accompanying notes 21; see also Citigroup Inc. v. City Holding Co., 97 F.Supp. 2d 549, 569 (S.D.N.Y. 2(00) ("[New York's long arm statute] states that a New York court 'mayexercise jurisdiction over persons, property, or status as might have been exercised heretofore' ....Pursuant to [the statute], a foreign corporation will be subject to personal jurisdiction in New York ifit is present or 'doing business' in the state. A corporation's activity rises to the level of 'doing business'only when it is engaged in 'such a continuous and systematic course of activity that it can bedeemed present in the state of New York."') (emphasis added) (citations omitted).

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 187Calder's Effects test likewise warrants closer scrutiny. The Effects test mandates"express aiming" at a forum, such that only the most intentional and directedInternet-related conduct will give rise to litigation in the plaintiff's homestate. On the one hand, this requirement prevents all Internet users from beingsubjected to broad sweeping jurisdiction} 15 On the other hand, it prevents theexercise of personal jurisdiction in cases where Internet-based activities representthe modern functional equivalent of actual physical presence in a forum. Thus,the Effects test should be reexamined, because it does not fully reflect the realitiesof Internet use, and because it does not take into account the types of interactionsfacilitated through this medium.Several alternatives are available for modifying the Effects test in light of moderntechnological advances. One is to relax the first prong of the InternationalShoe test in Internet cases. 116 Non-residents making contact with a foreign jurisdictionvia the Internet may not know specifically where the effects of their conductwill be felt. However, it is reasonable for them to foresee being haled intocourt as a result of their modem functional equivalent of directed physical contactin whatever jurisdiction the brunt of any harm is felt. While this method maynot appeal to some, perhaps this is the unfortunate reality for dealing with litigationin the Internet Age. Moreover, steps can be taken to better inform Internetusers of where their conduct is directed; or possibly to remove a defense of ignorance.For example, "jurisdictional identifiers" with the name or an abbreviationof the situs or primary place of operation for a website could be added to existingdomain names, as currently is seen when visiting internationally-based websites.117 Other possibilities include user agreements, built-in forum selectionclauses, and other such notice devices.115 See supra text accompanying note 72. See also Corrected Brief for Public Citizen as AmicusCuriae Supporting Appellee, Internet Solutions Corp. v. Tabatha Marshall (Fla. July 29. 2009) (SC09-272).2009 FL S. Ct. Briefs LEXIS 714, at *6 ("As nearly every court to have considered the questionhas held, a website owner who refers to a company on a website that is equally accessible in all statescannot reasonably expect to face jurisdiction in every state where that website can be viewed. Accordingly,in determining whether jurisdiction is proper, courts look to whether a website specificallytargets forum residents and whether the site is commercially interactive .... 'To hold otherwise wouldsubject millions of internet users to suit in the state of any company whose trademarked name theyhappen to mention on a website ... ·) (citations omitted).116 See Andrew J. Grotto, Due Process and In Rem Jurisdiction Under the Anti-CybersquattingConsumer Protection Act. 2 COLlIM. SCI. & TECII. L. REV. 3. 4-5 (2001) (The author proposes "arelaxed minimum contacts standard for in rem jurisdiction as it applies narrowly to the ACPA. primarilyon the basis of a pair of procedural safeguards contained in the in rem provisions .... [and furthermaintains that] additional contacts supplied by certain indicia of bad faith further support the constitutionalityof the provisions.") (emphasis added).117 For example. websites based in Italy typically include ".it" at the end of their web addresses.Under the suggested approach, existing postal codes or other like identifiers could be added to webaddresses to notify the user of the website's recognized situs.

188 UNIVERSITY OF TilE DISTRICt' OF COLUMBIA LAW REVIEWThe most appropriate way to modify Calder's brand of the Effects test, however,would be to incorporate the rationales of two other Supreme Court cases:Burger King Corp. v. Rudzewicz, and Keeton v. Hustler Magazine, Inc .. llS Ratherthan requiring "express aiming" at a forum, blending the aforementioned caseswould accommodate jurisdiction: 1) regardless of a non-resident's physical presencein the forum (and thus would recognize Internet-based activities' role infacilitating the modern functional equivalent of physical entry into a forum); and2) simply by virtue of the non-resident engaging in activity that will cause harmsomewhere, no matter "where that where may be.,,119CONCLUSIONInternet-based contacts can provide a basis for exercising personal jurisdictionin a manner consistent with the requirements of International Shoe Co. v. Washington.120 However, existing jurisdictional frameworks do not reflect the realities118 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Keeton v. Hustler Magazine, Inc.,465 U.S. 770 (1984).119 Burger King Corp., 471 U.S. at 475-76 & n.18 ("[The] 'purposeful availment' requirementensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,'or 'attenuated' contacts, or of the 'unilateral activity of another party or a third person.' Jurisdiction isproper, however, where the contacts proximately result from actions by the defendant himself thatcreate a 'substantial connection' with the forum State. Thus where the defendant 'deliberately' hasengaged in significant activities within a State, or has created 'continuing obligations' between himselfand residents of the forum, he manifestly has availed himself of the privilege of conducting businessthere, and because his activities are shielded by 'the benefits and protections' of the forum's laws it ispresumptively not unreasonable to require him to submit to the burdens of litigation in that forum aswell .... So long as it creates a 'substantial connection' with the forum, even a single act can supportjurisdiction .... [However,] 'some single or occasional acts' related to the forum may not be sufficientto establish jurisdiction if 'their nature and quality and the circumstances of their commission' createonly an 'attenuated' affiliation with the forum. This distinction derives from the belief that, with respectto this category of 'isolated' acts, the reasonable foreseeability of litigation in the forum is substantiallydiminished.") (citations omitted); Keeton, 465 U.S. at 776, 780-81 ("'A state has an especialinterest in exercising judicial jurisdiction over those who commit torts within its territory. This isbecause torts involve wrongful conduct which a state seeks to deter, and against which it attempts toafford protection, by providing that a tort-feasor shall be liable for damages which are the proximateresult of his tort' .... The plaintiffs residence is not, of course, completely irrelevant to the jurisdictionalinquiry. As noted, that inquiry focuses on the relations among the defendant, the forum, andthe litigation. Plaintiffs residence may well play an important role in determining the propriety ofentertaining a suit against the defendant in the forum. That is, plaintiffs residence in the forum may,because of defendant's relationship with the plaintiff, enhance defendant's contacts with the forum.Plaintiffs residence may be the focus of the activities of the defendant out of which the suit arises. Butplaintiffs residence in the forum State is not a separate requirement, and lack of residence will notdefeat jurisdiction established on the basis of defendant'S contacts . ... The victim of a libel, like thevictim of any other tort, may choose to bring suit in any forum with which the defendant has "certainminimum contacts . .. such that the maintenance of the suit does not offend 'traditional notions of fairplay and substantial justice."') (emphasis added) (citations omitted).120 326 U.S. 310, 316-20 (1945) (citations omitted).

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 189of Internet communications, nor do they properly address the role of technologicalinteractions in the modern human experience.The utility of Calder's Effects test is diluted by its "express aiming" requirement,and Zippo's Sliding Scale test borders on unworkable. The AnticybersquattingConsumer Protection Act and its grant of in rem personal jurisdiction has thepotential to deliver consistent jurisdictional determinations, but the benefits ofthis provision are tempered by its narrow scope and the mutual burdens it imposeson plaintiffs and defendants.Nevertheless, slight modifications to the Effects test and the Sliding Scale testlikely are the first steps for curing these deficiencies. As discussed in this article, ifuse of the Sliding Scale is limited to determining general jurisdiction over individualsand businesses for their Internet-based activities, a modified version of theEffects test can be utilized in cases where a non-resident uses the Internet toreach beyond his or her physical location to cause an injury in a distant forum.These changes are manageable, and would be further solidified by supplementalstatutory protections and the expanded availability of in rem jurisdiction in Internet-baseddisputes.The Internet allows a person to reach out beyond his or her access point, andto engage in contact with others in a way once only possible through direct physicalcontact. The analysis of personal jurisdiction must accommodate this reality.ApPENDIX A. Selected Provisions from the Anticybersquatting ConsumerProtection Act. 15 U.S.C. § 1125 (1999) (emphasis added).( c) Dilution by blurring; dilution by tarnishment.(5) Additional remedies. In an action brought under this subsection, the ownerof the famous mark shall be entitled to injunctive relief as set forth in section 34.The owner of the famous mark shall also be entitled to the remedies set forth insections 35(a) and 36 [15 uses § 1117(a) and 1118], subject to the discretion ofthe court and the principles of equity if-(A) the mark or trade name that is likely to cause dilution by blurring ordilution by tarnishment was first used in commerce by the person against whomthe injunction is sought after the date of enactment of the Trademark DilutionRevision Act of 2006 [enacted Oct. 6, 2006]; and(B) in a claim arising under this subsection-(i) by reason of dilution by blurring, the person against whom the injunctionis sought willfully intended to trade on the recognition of the famous mark;or(ii) by reason of dilution by tarnishment, the person against whom theinjunction is sought willfully intended to harm the reputation of the famous mark

190 UNIVERSITY OF TIlE DISTRICT OF COLlJMnIA LAW REVIEW(d) Cyberpiracy prevention.(1)(A) A person shall be liable in a civil action by the owner of a mark, includinga personal name which is protected as a mark under this section, if, withoutregard to the goods or services of the parties, that person-(i) has a bad faith intent to profit from that mark, including a personalname which is protected as a mark under this section; and(ii) registers, traffics in, or uses a domain name that-(I) in the case of a mark that is distinctive at the time of registration ofthe domain name, is identical or confusingly similar to that mark;(II) in the case of a famous mark that is famous at the time of registrationof the domain name, is identical or confusingly similar to or dilutive of thatmark; or(III) is a trademark, word, or name protected by reason of section 706of title 18, United States Code, or section 220506 of title 36, United States Code.(B) (i) In determining whether a person has a bad faith intent describedunder subparagraph (A), a court may consider factors such as, but not limitedto- [subsections (I) through (IX) are omitted](ii) Bad faith intent described under subparagraph (A) shall not be foundin any case in which the court determines that the person believed and had reasonablegrounds to believe that the use of the domain name was a fair use or otherwiselawful.(C) In any civil action involving the registration, trafficking, or use of a domainname under this paragraph, a court may order the forfeiture or cancellationof the domain name or the transfer of the domain name to the owner of themark.(D) A person shall be liable for using a domain name under subparagraph(A) only if that person is the domain name registrant or that registrant's authorizedlicensee.(E) As used in this paragraph, the term "traffics in" refers to transactionsthat include, but are not limited to, sales, purchases, loans, pledges, licenses, exchangesof currency, and any other transfer for consideration or receipt in exchangefor consideration.(2)(A) The owner of a mark may file an in rem civil action against a domainname in the judicial district in which the domain name registrar, domain nameregistry, or other domain name authority that registered or assigned the domainname is located if-(i) the domain name violates any right of the owner of a mark registered inthe Patent and Trademark Office, or protected under subsection (a) or (c); and

REVISING THE ANALYSIS OF PERSONAL JURISDICfION 191(ii) the court finds that the owner-(I) is not able to obtain in personam jurisdiction over a person whowould have been a defendant in a civil action under paragraph (1); or(II) through due diligence was not able to find a person who would havebeen a defendant in a civil action under paragraph (1) by-(aa) sending a notice of the alleged violation and intent to proceedunder this paragraph to the registrant of the domain name at the postal and e­mail address provided by the registrant to the registrar; and(bb) publishing notice of the action as the court may direct promptlyafter filing the action.(B) The actions under subparagraph (A)(ii) shall constitute service ofprocess.(C) In an in rem action under this paragraph, a domain name shall be deemedto have its situs in the judicial district in which-(i) the domain name registrar, registry, or other domain name authoritythat registered or assigned the domain name is located; or(ii) documents sufficient to establish control and authority regarding thedisposition of the registration and use of the domain name are deposited with thecourt.(D) (i) The remedies in an in rem action under this paragraph shall be limitedto a court order for the forfeiture or cancellation of the domain name or the transferof the domain name to the owner of the mark. Upon receipt of written notificationof a filed, stamped copy of a complaint filed by the owner of a mark in aUnited States district court under this paragraph, the domain name registrar, domainname registry, or other domain name authority shall-(I) expeditiously deposit with the court documents sufficient to establishthe court's control and authority regarding the disposition of the registration anduse of the domain name to the court; and(II) not transfer, suspend, or otherwise modify the domain name duringthe pendency of the action, except upon order of the court.(ii) The domain name registrar or registry or other domain name authorityshall not be liable for injunctive or monetary relief under this paragraph except inthe case of bad faith or reckless disregard, which includes a willful failure to complywith any such court order.(3) The civil action established under paragraph (1) and the in rem action establishedunder paragraph (2), and any remedy available under either such action,shall be in addition to any other civil action or remedy otherwise applicable.(4) The in rem jurisdiction established under paragraph (2) shall be in additionto any other jurisdiction that otherwise exists, whether in rem or in personam

JURISPRUDENCE FOR A DIGITAL AGE: FREESOFTWARE AND THE NEED FOR A NEW MEDIALEGAL AUTHORITYNicholas Clark*INTRODUCTIONIn an age of digital multimedia, it may still make sense to construct our laws aspurely textual documents, in the same way that it still makes sense to publishwritten documentation for users of our digital devices, and written source codefor all of our software. These are operating instructions, and we value the uniquepower of the written word to embody abstract concepts in highly adaptable relationships.However, just as documentation will feature illustrations to guide usersthrough an interface, and just as programmers map out hash tables, trees anddirected graphs, so too do lawyers and law students make charts, tables and illustrationsto help them understand the complex concepts the discipline has generated.As distribution of visual media becomes increasingly inexpensive andimmediate, and our collective consciousness becomes increasingly dominated bynew media, perhaps the management of the operating instructions underpinningthose media can help to inform the way we manage, understand, and even producelaws.·This note seeks to illustrate the irresistible necessity of formulating an authorityon illustrations of laws and legal concepts employing the immediacy and inexpensivenessof distribution through new media. Moreover, this note explores theparallel importance of freedom both to the software underlying much of newmedia and to American jurisprudence by using the "four freedoms" of FreeSoftware as a framework through which to imagine the form and jurisprudentialeffect of a definitive legal authority on laws and legal concepts based in newmedia.I. LAW IS CODE (?)A. Law is Not CodeBefore proceeding further with the comparison of operating instructions asthey exist in software source code, documentation, and laws, it is important topoint out the very different ways which laws and computer code function; althoughjurists strive for predictability in our discussions and interpretations of* J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law.1 See generally LAWRENCE LESSIG, CODE v2 (2006), available at hUp:/Icodev2.cddownload®emix (last visited Mar. 2, 2010) (discussing at length the significance of computer code in comparisonto legal authority).

194 VNIVEltSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWlaws, laws cannot be relied upon to provide the sorts of foreseeable outcomesthat computer code will. 2 In part, the lack of legal predictability is the fault of thefact that judges are human beings, incapable of being relied upon to make thesorts of wholly dispassionate calculations made by computers, and sometimesmore interested in just outcomes than in predictable outcomes? While predictableapplication of laws is deemed by some legal scholars to promote justice byproviding the individuals with clear notice of what is expected of them, this is afiction where laws and legal thought are opaque to laypeople. 4 Since predictablelegal outcomes only benefit justice to the extent that they are predictable to thepeople they affect directly, a new media authority on legal thought should striveto increase the transparency and accessibility of laws to those people.B. Human Readable CodesProgrammers typically write "source code" for programs in "human readable"programming languages that resemble casual verbal communication closelyenough that a determined novice reading the code could arrive at a fairly accurateguess as to the function of the commands. 5 In order to function as computersoftware, human readable source code needs to be compiled - essentially a processof translation - into the machine readable binary language of ones andzeroes. 6The distinction between the human readability of source code and the humanreadability of legal authority is vital to this note. The expression "human readable"has been employed to some degree by those working at the intersection ofnew media and the law to criticize the use of opaque legalese, or applaud the usein legal materials of verbiage penetrable to those without a legal background?The comparison of source code and legal code inherent in this use of the term"human readable" helps to emphasize the earlier point about the difference inthe operation of the two; while the words in source code can be read and understood,each one stands for a particular, definite computational operation that will2 Pod cast: Software Freedom Law Show: Episode OxOl: The Engineer and the Lawyer, held bythe Software Freedom Law Center (2008), available at http://www.softwarefreedom.orglpodcast-media/Software-Freedom-Law-Show_OxOLEngineer-and-Lawyer.ogg(last visited Mar. 2, 2010) (discussingthe tendency among programmers to expect laws to provide outcomes predictable on the basis ofcircumstances).3 lohn M. Walker, Judicial Tendencies in Statutory Construction: Differing Views on the Role ofthe Judge, 58 N.Y.V. ANN. SURV. AM. L. 203, 237 (2001) ("The judicial discretion promoted by seekingto effect purposes or to 'do justice' detracts from the law's certainty and predictability.").4 Nita Gheii and Francesco Parisi, Adverse Selection and Moral Hazard in Forum Shopping:Conflicts Law as Spontaneous Order, 25 CARDOZO L. REV. 1367, 1371 (2004).5 Apple Computer, Inc. v. Franklin Computer Corp. 714 F.2d 1240, 1243 (3d Cir. 1983).6 [d.7 See, e.g. Fred Benenson, The Value of Human Readable Deeds - Creative Commons, Feb. 18,2009, hUp:llcreativecommons.orglwebloglentryI12778.

JURISPRUDENCE FOR A DIGITAL AGE 195not ordinarily be altered by interpretation. Legal codes attempt to provide unambiguousdefinitions of the terminology they employ, but ultimately the value ofverbal language to a human reader is its adaptability rather than its precision. s Itis because of the adaptability of verbal language that it needs to be supplementedby the specificity of illustration when used in areas such as law wherein definitenesscould benefit justice.II. DISTRIBUTION, DIGITAL MIND, AND THE PRINTING PRESS PRISONA. Illustrating Legal ThoughtAlthough digital media has enabled the effortless, inexpensive, and seeminglyboundless reproducibility of images, text remains the default medium by which todisseminate information that seeks to be taken seriously. The history of this tendencyis long, but not indefinite. The 18th century B.C.E. Code of Hammurabiappeared on an illustrated stele. 9 Before the invention of the printing press, thepages of books took the form their authors dictated while illustrations and textflowed into one another. to For example, laws in European texts were illustratedwith tree diagrams in the middle ages. 11 Movable type was a revolution for distribution,but meant that books would come to be synonymous with blocks of text.Today's jurist seldom, if ever, picks up a code service or court reporter expectingto see illustrations more informative than a state seal, nor does she typically visitan online resource like LexisNexis expecting the sorts of illuminations that predatedGutenberg.The Hammurabi Code and the legal trees point to the use of illustration as itwould be incorporated into legal works absent the textual focus brought about bythe invention of the printing press. In both these examples, the laws are textual,and the illustrations merely top the stele or occupy a page in a largely textualbook. Laws seem to invite text because, just like user documentation or sourcecode, the concision and abstraction they require seems to be more efficientlycommunicated in text.8 ARIE VERIIAGEN, CONTEXT, MEANING, AND INTERI'RETATION, IN A PRAcnCAL AI'I'ROACIITO LINGUISTICS, IN DISCOURSE ANALYSIS AND DISCOURSE EVALUATION 16 (L. Lentz & H.L.W. PanderMaat eds., 1997).9 Martha T. Roth, Mesopotamian Legal Traditions and the Laws of Hammurabi, 71 CIII.-KENTL. REV. 13, 16 (1995).10 DAVE GRAY, MARKS AND MEANING 70 (2008).11 Mike Widener, Yale Law Library - Rare Books Blog, Legal Trees, http://blogs.law.yale.edu/blogslrarebooks/archive/2008/04/30Ilegal-quot-trees-quot.aspx (last visited May 3, 2010) (the YaleLaw Library's Rare Books Blog contains many other images of illustrated laws from books datingback centuries).

196 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWB. Seeing LawsVisual information aids the work of programmers, in the form of hash mapsand data trees, and users, in the form of illustrated directions and graphical interfaces.Where verbal information, in the form of either text or speech, is augmentedby visual images memory retention is enhanced; in a study conducted bythe Swedish Broadcasting Corporation, subjects who were shown images of amap corresponding to a spoken news item scored 15 % higher on a test of retentionthan did subjects who heard the item accompanied by images of the reporterreading the report, and 14% higher than subjects hearing the audio only.12 Thestudy also showed that the most positive impact on retention of the news itemcame when the illustrations corresponded well to the item and when they weredetailed and easy to follow. 13 As consumers of informational media, we owe it toourselves to facilitate learning of difficult concepts with correlated, detailed, easyto follow illustrations.As jurists, and indeed, as citizens in a nation of laws, we are all to some degreeresponsible for the operating instructions embodied in our laws. While we maynot see illustrations adorning our legal codes as they did before Gutenberg, thereare certain areas where governments have recognized the importance of the immediacyof communication that visual illustrations can afford in reminding us ofthose operating instructions. Specifically, traffic signs and warning labels visuallycommunicate legal expectations or consequences. Their ubiquity may be an irritatingeyesore, but it may just as well be a step toward letting "men and womenand yes, even children ... know that which is expected of them and that whichthey can expect of others. ,,14 We know then from our day-to-day experiences thatour legal responsibilities can be communicated visually. Obviously safety restrictionsare not the only laws to which we are all held answerable. Communicationof legal expectations in a manner that is immediate, and that enriches our understandingand retention need not stop with safety regulations when our legal rightsand responsibilities extend so far beyond safety.III. THE NEED FOR A NEW MEDIA LEGAL AUTHORITYA. The Jurist's Need for Respected AuthorityVisual legal illustration is an informal reality without a decisive clearinghousecomparable to the authoritative niches topical areas of law frequently find inrespected Law Reviews and journals. At the New York Law School, the Visual12 Olle Findahl, Swedish Broadcasting Corp., The Effect of Visual Illustrations Upon Perceptionand Retention of News Programmes, 9 (1971), http://www.eric.ed.gov/ERICWebPortallcontentdelivery/servletlERICServlet?accno=ED054631.13 [d. at 10-12.14 Edgar Caho and Jean Camper Cahn, This I Believe (1977) (unpublished credo, on file withEdgar Cahn) (this source appears in full in this note's Appendix).

JURISPRUDENCE FOR A DIGITAL AGE 197Persuasion Project focuses a keen eye on the value of visual materials and newmedia to the litigator in the persuasive presentation of evidence, and to a lesserdegree on the value of visual materials and new media for the understanding ofunderlying laws and legal concepts. I5 The Visual Persuasion Project's founderand Director Richard K. Sherwin has identified an important shortcoming in thecommunication and critical interpretation of visual legal materials: "legal scholarshave been less quick than their counterparts in other academic fields to heed theimplications of the cultural shifts to the visual and the digital.,,16 Moreover, ProfessorSherwin concedes to some degree that the work of the Visual PersuasionProject exploits that shortcoming, while simultaneously identifying a vital resourcethat does not yet exist; "Responses to pictures are not arguable in thesame way that responses to legal texts are. Absent an extensive tradition of criticalinterpretation and without readings that have been applied over time, therecan be no appeal to more authoritative texts or to any consensus of scholars.,,17 Adecisive critical resource to distribute and perfect visual legal illustration must becreated in order that authoritative texts can emerge by which the influence ofnew media on finders of fact can be assessed, and on the basis of which laws canbe made more widely accessible and just, both in substance and in freely distributableform.B. Free Software and the Layperson's Need for Legal ConversationOpening legal discourse to non-lawyers through a new media authority on visuallegal illustration could promote the just application of the laws that authorityexplicates; this authority should model itself on the freedom of both the existingform of the verbal laws it interprets, and of the operating instructions behindmuch of the new media behind it. The United States Government has refused tocopyright its work, such that any laws or legal materials created by the UnitedStates Government are, to the extent that they are available, freely usable asverbal material, freely distributable to the extent their secrecy is not otherwiseensured, and freely malleable as verbiage without constituting violations of copyrightlaw. 18 An analogous subset of programming exists, under which source codeis made freely available. The operating instructions, like laws, are only fully understandable-evento experts-when they are available for scrutiny. Were badlaws concealed from the public eye, people might still be subject to an arbitraryor draconian restriction, but without access to the law itself, could not under-15 Visual Persuasion Project Home, http://old.nyls.edu/pages/2734.asp (last visited Feb. 25,2010).16 Richard K. Sherwin, Law In The Digital Age: How Visual Communication Technologies AreTransforming The Practice, Theory, And Teaching Of Law, 12 S.U. J. Sci. & Tech. L. 227, 236-37(2006).17 Id. at 263.18 17 U.S.c. §105 (2009).

198 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWstand, challenge, or work to correct it. What is known as "Free Software" is actually,unlike federal government materials, typically protected by copyright, andusable only by adoption of a strict license. 19 It is the particular terms of these freesoftware licenses that resemble in effect the non-copyright status of federal laws;the Free Software Foundation describes the intended outcomes of their licensesas a set of "four freedoms":First, Freedom Zero is the freedom to run the program for any purpose, anyway you like. Freedom One is the freedom to help yourself by changing theprogram to suit your needs. Freedom Tho is the freedom to help yourneighbor by distributing copies of the program. And Freedom Three is thefreedom to help build your community by publishing an improved versionso others can get the benefit of your work. 2oA distribution scheme for visual legal resources should strive to embrace thesefour freedoms, inasmuch as they are relevant. The goal of illustrating laws is tomake them accessible in order that jurists can better ply their trade, and laypeoplecan better understand their expectations. Indeed the freedoms for whichfree software strives are inspired in part by an expectation of liberty in access tolaws. 21 Respectful of the relationships between new media and freedom, and betweenfreedom and laws, a new media legal authority that stiffens the final link inthe circle between laws and new media would benefit from an observation of themeans by which the freedom of new media operating instructions is ensured - towit, the four freedoms, each of which can define both the literal form the authorityis to take and the jurisprudential effects the authority should strive to achieve.IV. THE "FOUR FREEDOMS" AND THE JURISPRUDENTIAL EFFECTS THEYBEG OF A NEW MEDIA LEGAL AUTHORITYA. The Freedom to KnowThe first freedom, the freedom to run the program for any purpose, might beadapted to legal thought as the freedom to use applicable laws. While a newmedia legal authority would be encouraging frivolous lawsuits if it literally encouragedthe use of laws for any purpose, the gist of this freedom is ownership19 Lawrence Lessig, Introduction to RICHARD M. STALI.MAN, FREE SOFTWARE, FREE SOCIETY12 (2002).20 RICIIAIW M. STALLMAN, FREE SOFIWARE, FREE SOCIETY 65 (2002).21 Lessig, supra note 19 (""Free software" would assure that the world governed by code is as"free" as our tradition that built the world before code. For example: A "free society" is regulated bylaw. But there are limits that any free society places on this regulation through law: No society thatkept its laws secret could ever be called free. No government that hid its regulations from the regulatedcould ever stand in our tradition. Law controls. But it does so justly only when visibly. And lawis visible only when its terms are knowable and controllable by those it regulates .... ").

JURISPRUDENCE FOR A DIGITAL AGE 199over the operating instructions that affect yoU. 22 "[W]hether you run or change aprogram I wrote affects you directly and me only indirectly.,,23 In the same sensethat a programmer may not use all of his published programs, lawmakers oftenprescribe expectations to which they themselves are not subject. If the lawmakerlacks ownership of a law because he is not affected by it, and the person whom alaw directly affects lacks ownership over it because he is unaware, or misunderstandsit, the law lacks the guidance of those it governs, and can become - orindeed, it can begin - out of touch with reality.24 The analogy from free softwareis the much derided proprietary software notion of "security through obscurity,"which suggests that software can provide greater security if its source code ishidden, despite the fact that a visible source code enables quick patching of flaws,bugs, and vulnerabilities in one of the most sensitive areas of computing. 25 Just asthe Sixth Amendment guarantees a public trial and laws such as the Governmentin the Sunshine Act and FOIA seek to ensure that laws and their operations aretechnically accessible, a new media legal authority should seek to ensure thatthey are meaningfully accessible. 26 The vital function of a new media legal authorityin this regard is to promote its audience's awareness and understanding ofthe laws that affect it. The adapted freedom might be defined as the freedom toknow when a law or legal authority applies to oneself.B. The Freedom to Understand and ChallengeThe second freedom, the freedom to adapt the program to your needs, mightbe adapted to legal thought as the freedom to make non-frivolous challenges toexisting laws. 27 This freedom is tightly knit with the first; while only those affectedby laws are able to understand them fully, the right to go to court to petitionfor a redress of grievances is meaningless if the law itself is so opaque as to22 FED. R. c.v. P. 11(b)(2) (frivolous argument for extending laws can be grounds forsanctions ).23 Stallman, supra note 20 at 49.24 Lee 1. Strang. Originalism and the "Challenge of Change": Abduced-Principle Originalismand Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions,60 HASTINGS L.1. 927, 933 (2009) ("Legal norms that do not fit the circumstances of their societycannot effectively coordinate the activities of the society's members.").25 STEPHANIE FORREST ET AL., BlJlLDING DIVERSE COMI'lJTER SYSTEMS 5 (1997), http://www.bennetyee.orglucsd-pages/Courses/cse190_A.s99/steph.ps ("Within computer security there iswidespread distrust of security through obscurity for example. proprietary cryptographic algorithmsthat are kept secret on the grounds that publishing their algorithms would weaken their security. Suchdistrust is warranted proprietary cryptographic algorithms, once revealed, often turn out to have seriousflaws.").26 Act of Aug. 31, 1976, Pub. L. 94-409, 1976 U.S.C.C.A.N. 2183, 2186, citing TIlE FEDERALISTNo. 49 ("the people are the only legitimate foundation of power, and it is from them that the constitutionalcharter ... is derived.' Government is and should be the servant of the people, and it should befully accountable to them for the actions which it supposedly takes on their behalr').27 FED. R. c.v. P. t1(b)(2).

200 UNIVEI{SITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWdiscourage grievances from being raised in the first place. 28 Those affected by aparticular law need a way of understanding the logic behind that law in order todetermine whether it should be challenged as being out of touch with reality. Thesecond adapted freedom might be defined as the freedom to understand the justice,and challenge the injustice of the laws that affect oneself.c. The Freedom to Communicate Legal InformationThe third freedom ("freedom two"), the freedom to distribute copies to helpone's neighbor, might be adapted to legal thought as the freedom to discuss lawsand legal concepts. While this may seem an inane provision in a country whoseconstitution guarantees free speech, lawyers, the experts in laws and legal concepts,are sometimes reluctant to discuss legal issues with the general public forfear of creating an attorney-client relationship, which could subject them to liability.29To minimize this liability while attempting to facilitate the use of new mediato communicate legal concepts to interested laypeople, attorneys must avoid offeringadvice "tailored to the unique facts of a particular person's circumstance".30The challenge lies in providing relevant, but not tailored information.Those who know the law need a way of easily communicating it to those whoneed to know it without exposing themselves to liability. This form of communicationwill be discussed in the next section. The third adapted freedom might bedefined as the freedom of jurists to communicate relevant legal information tothose who need it.D. The Freedom to Build Communities Around Legal InterpretationThe fourth freedom ("freedom three"), the freedom to distribute copies ofone's changes to help the community, might be adapted to legal thought as thefreedom to discuss and advocate non-frivolous challenges to existing laws, and toassociate in communities focused around achieving those challenges. The value ofcommunity to free software is tremendous, in that it focuses significantly morecritical eyes on the set of operating instructions; testing has shown that the communityapproach of free software produces the most reliable programs. 31 Thelawyer's secretive posture is suited to an adversarial court system, but is out of28 BE & K Const. Co. v. N.L.R.B. 536 U.S. 516, 525 (2002) ("the right to petition extends to alldepartments of the Government," and that "[t]he right of access to the courts is ... but one aspect ofthe right of petition." (citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508,511(1972»).29 MOJ)EI. RULES OF PROF',- CONJ)ucr R. 4.3 (2004); see also Judy M. Cornett, The Ethics ofBlawging: A Genre Analysis, 41 Loy. U. CIII. LJ. 221, 261 (2009) (admonishing against provision oflegal advice in "blawgs").30 D.C. Bar Legal Ethics Comm., Ope 316 (2002), available at http://www.dcbar.orglfoclawyerslethics/legal_ethics/opinionslopinion316.cfm.31 Stallman, supra note 20, at 169.

JURISPRUDENCE FOR A DIGITAL AGE 201step with the demands of a critical community wherein open dialogue helps torefine a set of operating instructions to more reliably produce a desired outcome.Where the fecundity of software freedom is the refusal of its community to everbe satisfied with its products, the interest of judges and lawmakers in the statusquo poses a high obstacle. Where legislatures wind up deadlocked and bound toconcede meaningful improvements in favor of scoring a putative victory, perhapsa community of concerned laypeople acting solely out of passion and interest inimproving the operating instructions that most affect their work can developmeaningful alternatives. Where courts and legislatures are immovable, a new medialegal authority needs to fiercely promote discourse toward the improvementof laws. The fourth adapted freedom might be defined as the freedom to discuss,share and contribute to the improvement of ideal laws, and to generatecommunities.v. THE "FOUR FREEDOMS" AS STRUCTURAL PRINCIPLES OF A NEW MEDIALEGAL AUTHORITYA. Dissemination of Legal InformationThe first freedom, the freedom to run for any purpose, will define the accessthe public will have to the new media legal authority; it will be available to anyoneregardless of expertise, interest in a particular area of law, or in law at all.Using the resource should be as free and unfettered as possible. While makingcomments and submissions may require some minimum amount of identifyinginformation, too much already stands between the average person and an understandingof the laws that affect him.32 The first principle of a new media legalauthority is that it must disseminate legal information as freely as possible.B. Organization by Circumstances Rather than LawsThe second freedom, the freedom to adapt the program to your circumstances,will define the authority's organizational interface. A person without a backgroundin law, rather than questioning whether a given cause of action wouldapply, might begin a search for a piece of legal understanding from the knowledgethat her particular set of circumstances seem to imply some legal recourse.An authority directed at enriching the legal understanding of laypeople shouldnot be divided into categories according to subjects taught in law schools, butaccording to real life circumstances as they are likely to arise. The second princi-32 Thomas o. Rice, The Public's View of the Law, 71 N.Y. ST. BJ. 5, 5 (1999). See also KimberliannePodlas, Impact of Television on Cross Examination and Juror "Truth ",14 WJI)ENER L. REV. 479.498-99 (2009) (S500-01s' opinion of laws and legal procedures more likely to be confused by televisionthan aided by it).

202 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWpIe of a new media legal authority is that it must be organized according to categoriesof real-life experience rather than - or in addition to - areas of law.c. Liberal Attribution LicensingThe third freedom, the freedom to freely copy and distribute, will define thenew media legal authority's licensure. Because laws and the systems behind themaffect everyone and have the power to terminate one's freedom, family, and life,a resource successfully making laws cognitively accessible is of tremendous value.To hold content of this value without making it available freely would be a tragedy.The licensure scheme for the authority should ensure the widest possibleaudience. Because commercial distribution reaches a wide market, licensing theauthority'S content under a noncommercial license could exclude an importantportion of the interested public. Where availability is the goal, the content shouldbe "free as in speech, not free as in beer".33 Similarly, a requirement that derivativeworks be shared under the same license precludes penetration of the illustrativecontent into markets interested in using other licenses; the disappointment ofnot having your license reserved in derivative works is eased by the knowledgethat the license remains intact on your original copyrighted work. 34 The thirdprinciple of the new media legal authority is that it must be published under alicense that permits republishing, commercial use, and the creation of derivativeworks, but requires an attribution directing the user of derivative or republishedworks back to the authority.D. Community Critique and ContributionsThe fourth freedom, the freedom to benefit the community by sharing yourchanges, will define the authority'S responsiveness to user generated content andcritique. While editing of visual illustrations is not yet feasible in a wiki-type environment,the form of the authority should reflect an intent to mimic that functionalityas nearly as is realistic. The fourth principle of new media legal authorityis that it must accept user generated content and critique to facilitate adaptationand collaboration.VI. SUMMARY OF THE NEW MEDIA LEGAL AUTHORITY'S FORMAND FuNcnONIt should not surprise the reader at this point that the basic form for a newmedia legal authority envisioned by this note is a website. According to the prin-33 Stallman, supra note 20, at 43.34 Creative Commons, Frequently Asked Questions, http://wiki.creativecommons.org!Fequently_Asked_Questions (last visited May 3, 2010).

JURISPRUDENCE FOR A DIGITAL AGE 203ciples and freedoms defined above, this website should have the followingcharacteristics:• it should accept illustrations of laws and legal concepts from anyonewilling to license them for the authority's use;• it should facilitate open and meaningful critical discussion of those illustrationsso that their understandability and applicability can beimproved;• it should guide users to the illustrations best suited to their owncircumstances;• it should facilitate broad dissemination of useful illustrations both in itsform and in its licensure;• it should promote itself by being effective, so that disseminated materialslead users back to the authority.While it is important that the authority empower its users by having a lenientsubmission policy, it must also meaningfully identify the usefulness of the illustrationsit publishes. In order for the website to take on the character of a respectedauthority, jurists at the organization maintaining it will need to actively mediateand assess the illustrations submitted. The authority must engage its users asmeaningful co-producers; it can only do that to the extent that it respects thoseusers by providing them with an easy way of identifying valuable, meaningfulillustrations, and clearly distinguishing them from illustrations in need of revision.Those illustrations which need revision will benefit tremendously from vibrantdiscussion. Each illustration should be accompanied by a discussion forum permittingcontributors from legal and nonlegal backgrounds alike to comment onthe value of the illustration to understanding of the legal concept depicted. Tofocus the discussion, jurists at the maintaining organization should comment regularlyon illustrations in need of revision, in order that the authors of thoseimages, or other readers, could reconfigure the illustration to most effectivelycommunicate the intended legal concept. To this end, the maintaining organizationshould develop a set of criteria by which to assess illustrations tailored togenerating clear, authoritative work. I suggest the following:1) Conceptualization: How completely does the visual material imagine thelogical connections between elements or steps of the law or legal conceptdepicted? How much of the proverbial elephant would the proverbial blindmen perceive?2) Boundaries: Does this image make clear the extent of the applicability ofthe legal concept? How easily could a person use this image to determinewhether the law or legal concept applies to him?3) Judicial Splits, Conflicts, and Unsettled Law: Does the image clarify areaswhere an individual might expect a different outcome on the basis of

204 UNIVERSITY OF THE DISTRICT OF COI.UMBIA LAW REVIEWprocedural differences? Does it illustrate the logic behind competinginterpretations?4) Communicative Efficacy: Is the visual material something you couldreadily call to mind for reference in court, or while sitting for the bar?5) Dissemination of Knowledge: Would a non-lawyer feel more comfortablewith the concept after seeing the visual material? Is it something aninterested layperson could remember, describe, or reproduce for the benefitof others?6) Social Justice Subject Matter: How relevant to social justice and publicinterest is the subject matter depicted? Does the material illustrate legalconcepts relevant to folks who can't afford their own attorneys? If it appearsnot, what could make it relevant?35By applying these criteria, editors from the maintaining organization can directthe conversations surrounding visual materials toward meaningful revisions, andinspire further discourse.In order for meaningful illustrations to reach the greatest number of peoplethey would benefit, the authority as a whole should be available under a CreativeCommons Attribution license, which will enable reuse and adaptation of the contenton the condition that users provide attribution leading back to the authority.36Because the biggest challenge to the efficacy of the authority will likely bethe digital divide, free reproducibility of the authority's material in any media willhelp ensure that the authority's material can appear in media that reaches thosewho need it. 37VII. THE MAINTAINING ORGANIZATIONThe ideal organization to maintain the new media legal authority imagined inthis note would be the University of the District of Columbia David A. ClarkeSchool of Law (DCSL); DCSL is uniquely focused on the public interest, populatedby dedicated legal scholars, accessible to artists and system administrators,proximate to important legal resources, and eager to distinguish itself. Indeed,DCSL has approved an organization - still in its infancy - whose goal is the main-35 Memorandum from Nicholas Clark to Katherine S. Broderick, Dean, UDC David A. ClarkeSchool of Law (Nov. 17,2009).36 Creative Commons, Attribution 3.0 United States, http://creativecommons.orgllicenses/by/3.0/(last visited May 3, 2010).37 See Press Release, Creative Commons, Developing Nations Copyright License Frees CreativityAcross the Digital Divide (Sept. 13, 2004), available at http://creativecommons,orglpress-releaseslentry/4397(discussing a license targeted at the digital divide between developing anddeveloped nations. Because the digital divide the new media legal authority faces is primarily socialrather than geographic, differential treatment of licensees is neither expedient nor helpfuL).

JURISPRUDENCE FOR A DIGITAL AGE 205tenance of such an authority.38 The youthfulness of DCSL is a rare blessing, inthat the vision and passion that informed the creation of the institution and itspredecessors persists, most conspicuously embodied in the person of Edgar Cahn,who, along with his late wife Jean founded the school and composed the credo -reprinted in the appendix - that informs its mission.The mission embodied in this credo, together with the need for "legal education[to] adapt to the contingencies of technology and the emerging vernacular ofdigital culture and the digital mind,,39 demand the creation at DCSL of an authoritycritically assessing visual illustrations of law and legal knowledge. Thisauthority will provide unambiguous information to interested laypeople, help tobreak the lawyer's monopoly, and let those who use it know that which is expectedof us and that which we can expect of others.The credo's penultimate stanza emphasizes the Cahns' passion for co-production,a model Edgar has promoted and developed into systems, economies andinfrastructures empowering poor people around the world. 4o Put simply, no onelikes to feel useless, and traditional welfare systems treat apparent uselessness asa person's only value. 41 Co-Production, like free software, emphasizes the goodthat comes of connecting people with distinct skills and perspectives to tackle oneanother's problems. In fact, Edgar Cahn has defined a set of four core values forCo-Production that echo the Four Freedoms' ethos of communities:• Assets: The real wealth of this society is its people. Every human beingcan be a builder and contributor.• Redefining Work: Work must be redefined to include whatever it takesto rear healthy children, preserve families, make neighborhoods safeand vibrant, care for the frail and vulnerable, redress injustice, and makedemocracy work.• Reciprocity: The impulse to give back is universal. Whenever possible,we must replace one way acts of largesse in whatever form with two-waytransactions. "You need me," becomes "We need each other."• Social Capital: Humans require a social infrastructure as essential asroads, bridges, and utility lines. Social networks require ongoing investmentsof social capital generated by trust, reciprocity, and civicengagemen t. 42The relationships between these principles and the four freedoms are so strikingas to suggest that there may be something elemental and universal about the38 Interview with Kemit Mawakana, Faculty Advisor, UDC-DCSL Journal of Legal Illustration(Mar. 17, 2010).39 Sherwin, supra, note 16, at 259-60.40 EDGAR S. CAHN, No MORE THROW-AWAY PEOPLE, at xvi-xvii (2004).41 Id. at 28-29.42 Cahn, supra note 40, at 24.

206 UNIVERSITY OF HIE DISTRICT OF COLUMBIA LAW REVIEWvalues they both describe. Indeed, it is somewhat in keeping with the notion ofCo-Production that inherent in both is the notion that the value of the individualis her capacity and tendency to contribute to the community.CONCLUSIONNew media has revolutionized the individual's capacity to contribute to communitiesby destroying geographic barriers between skills and needs. This is especiallytrue of abstract work that can be wholly transmitted electronically. As longas there are individual needs, there will be needs for communities. As long asthere are laws to regulate behavior, there will be a need for explanations of legalconcepts. As jurists at an institution uniquely dedicated to justice, the studentsand faculty at the David A. Clarke School of Law have an obligation to see that afuture increasingly defined by visual media can also shepherd communication in away beneficial to the cause of justice, and to all who come to the community tocontribute from their passion, to receive what they need, to discuss how moreneeds can be met and more contributions can be offered. With the speed andinexpensiveness of new media behind us, with a world of potential contributorsaround us, and the establishment of an organization to maintain a new mediaauthority of visual legal illustrations, the David A. Clarke School of Law ispoised, through the principles of Co-Production as embodied in free software, toenrich our understanding by welcoming our skills and knowledge.

JURISPRUDENCE FOR A DIGITAL AGE 207APPENDIXEdgar Cahn and Jean Camper Cahn, This I Believe (1977) (unpublished credo, on file withEdgar Cahn).This I BelieveI believe the day will comewhen rich and poor will stand equal before the lawAnd I believe the day will come when Black and WhiteHispanic, Asian and Native American,Young and old, man and womanwill stand equal before the lawThis I believeAnd I believe the day will come when the monopolyover law and legal knowledge - the lawyers' monopolythe law schools' monopoly - will be brokenWhen men and women and yes, even children will know that whichis expected of them and that which they can expect of others:to refrain from harmto honor their wordto respect the dreams of others and the right of othersto dream in their own wayThis I believeAnd I believe that the day will come when courts of lawwill be courts of justice, courts for people, not courts for lawyers -above all, courts to render simple justice, to seethat promises are honoredthat the injured are made wholethat the weak are protected from the powerful and the greedyThis I believeFor in the fullness of time, I must believe that the voices of loveshall prevail over the voices of hate and the forces of justiceshall triumph over the forces of injustice and inhumanityThis I believeBut in the here and now, there can be no safety,no guarantees and no easy way.At each point, our faith will be tested and when weighed in the balance,if we are honest, our best efforts will be found wantingThis is true, this I believe

208 UNIVERSITY OF TilE DISTRICT OF COLUMBIA LAW REVIEWAnd so, all that we have, in the here and now isour love for each other,our willingness to forgive each other,our willingness to come to each other's rescue,and our unwillingness to stand by silent or passivein the face of injustice.This is my belief, this is our joint belief and this we shall try to honorso long as life and breath permit.

THE CHILD ONLINE PRIVACY PROTECTION ACT: THERELATIONSHIP BETWEEN CONSTITUTIONAL RIGHTSAND THE PROTECTION OF CHILDRENSasha Grandison*INTRoDucnoNThe Internet was introduced to the world in the early 1990s and it is now oneof the leading sources of information. 1 The world popUlation is estimated ataround 6.7 billion people and approximately 1.5 billion people are internetusers.2 Of the 1.5 billion Internet users, the United States has 225 million peoplewho use the Internet, which is second only to China. Second only to China in thenumber of Internet users, the United States has 225 million users.3The Internet makes distances between states shorter and allows access to theglobal community with the click of a mouse. It provides a forum for the disseminationof information and ideas and "has gone from being a curiosity to being adaily source for e-mail, shopping, research and news.,,4 But like all other technologicaladvancements, the Internet poses serious risks. "The Internet and computershave come to playa growing role in sex crimes that are committed againstchildren and youth.,,5 Approximately one in seven children receives sexual solicitationon the Internet, and four percent of children are contacted offline bysolicitors. 6A child is not only at risk from encountering sexually explicit material on theInternet, but also at risk of being lured by online predators to reveal personallyidentifiable information. Children often times do not understand the consequenceand the impact of revealing personal information on the Internet aboutthemselves and their families. Revealing personal information may lead to offlinesexual solicitation and identity theft. 7In 1998, Congress enacted the Child Online Privacy Protection Act ("COPPA"or "Act") to combat the dangers that the Internet posed. s To comply with* J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law1 Internet and World Stats, Usage and Population Statistics, http://www.internetworldstats.com(last visited March 26, 201 0).2 Id.3 Id.4 Jennifer Zwick, Casting a Net Over the Net: Attempts to Protect Children in Cyberspace, 10SETON HALl. CONST. L. J. 1133, 1133 (2000).5 JANIS WOI.AK ET AI.., INTERNET SEX CRIMES AGAINST MINORS: TilE RESPONSE OF LAWENFORCEMENT vii (Univ. of N.H. 2(03), available at http://www.unh.edu/ccrclpdf/CV70.pdf.6 JANIS WOLAK ET AI.., ONLINE VICI'IMIZATION OF Youm: FIVE YEAH.s LATER vii-t (Univ. ofN.H. 2(06), available at http://www.missingkids.com/en_US/publications/NC167.pdf.7 See supra note 5.8 Children's Online Privacy Protection Act of 1998 § 6551, 15 U.S.C.A. § 6501 (2000).

210 UNIVERSITY OF TIlE DISTRICT OF COLlJMHlA LAW REVIEWCOPPA, "a website operator cannot collect or disclose personally identifiableinformation from a child without getting prior verifiable parental consent fromthe child's parent.,,9 While COPPA attempts to protect the privacy of children onthe Internet, many critics argue that the Act infringes upon the constitutionalrights of children. lOThe interplay in COPPA between constitutional freedoms and the protectionof children reaches equilibrium as Congress addresses privacy concerns on theInternet in the Act. This paper will analyze the constitutionality of the COPPAand its ability to remedy the conflict between a child's freedom of expression andthe protection of a child's privacy on the Internet. Part I details the requirementsof the COPPA and examines the history of privacy law. Part II analyzes failedCongressional legislation that attempted to protect children on the Internet. PartIII explores the constitutional rights of children and determines whether theCOPPA infringes upon those rights.I. COPPA AND THE PRIVACY IMPLICATIONSA. The Child Online Privacy Protection ActThe Internet poses "unique privacy and safety concerns because of the particularvulnerability of children, the immediacy and ease with which information canbe collected from them, and the ability of the online medium to circumvent thetraditional gate keeping role of the parent."t t Just over a decade ago, it was possibleto buy and receive information about children, including their name andlocation. 12 Marketers would collect personal information from children throughchat room registrations, discussion boards, and promising gifts. 13 The personalinformation received from the children was then organized in a database and soldto third parties.t 4 In fact, in 1995, a Los Angeles television station, for only $277,obtained a detailed printout of the ages and addresses of approximately 5,500children in Pasadena. ls The station wanted "to prove how easy it is forpedophiles to obtain mailing lists of kids.,,169 Nancy L. Savitt, Comment, A Synopsis of the Children's Online Privacy Protection Act, 16 ST.JOliN'S L. REV. 631 (2002).10 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online PrivacyProtection Act and Children's Free Speech Rights, 12 COMM. L. & POI.'Y REV. 119, at 3 (2007).11 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online PrivacyProtection Act and Children's Free Speech Rights, 12 COMM. L. & POI:Y REV. 119, 123 (2007).12 ELECfRONIC PRIVACY INFORMATION CENTER, The Children's Online Privacy ProtectionAct, http://epic.orglprivacy/kids/ (last visited March 27, 2010).13 Jd.14 Jd.15 Jd.16 Jd.

THE CHILD ONLINE PRIVACY PROTECTION ACT 211Following growing concerns regarding the online privacy of children, the FederalTrade Commission ("FTC") began to hold public forums in which privacyadvocates, Internet industry representatives, and the public discussed issues concerningthe protection of children on the Internet. 17 Subsequently, the FTC conducteda survey of 1,400 popular web sites in the spring of 1998, and found thatout of the 1,400 sites surveyed, 212 of them were websites that targeted children.IS The compiled data revealed that: (1) 85% of the total websites collectedpersonal information; (2) the majority of the children websites collected personalinformation from children; and (3) only a few of the children websites posted anadequate privacy pOlicy.19Armed with this information, the FTC reported its findings to Congress. OnOctober 21, 1998, the COPPA was enacted. In proposing the COPPA, the fourgoals addressed were:(1) to enhance parental involvement in a child's online activities in order toprotect the privacy of children in the online environment; (2) to enhanceparental involvement to help protect the safety of children in online forasuch as chatrooms, home pages, and pen-pal services in which children maymake public postings of identifying information; (3) to maintain the securityof personally identifiable information of children collected online; and (4)to protect children's privacy by limiting the collection of personal informationfrom children without parental consent. 20Essentially the COPPA was designed to address two central problems: too muchsolicitation aimed at children and "collection of [p ]ersonal [i]nformation fromchildren that is shared with advertisers and marketers" and "sharing informationwith online predators who could use it to find them online.,,21The requirements of the COPPA address the privacy and safety concerns childrenface with Internet use. The COPPA requires operators of websites directedat children under the age of thirteen and operators who have actual knowledgethat they are collecting personal information from children, to post a link to a"notice of its information practices on the home page of its website or onlineservice and at each area where it collects [p]ersonal [i]nformation from chil-17 Simmons, supra note 9, at 122.18 Id.at 123.19 Charlene Simmons, Protecting Children While Silencing Them: The Children's Online PrivacyProtection Act and Children's Free Speech Rights, 12 COMM. L. & POL'y REV. 119, n. 8 at 3(2007).20 144 CONGo REc. S11657 (daily ed. Oct. 7, 1998) (statement of Rep. Bryan).21 Melanie L. Hersh, Is COPPA a Cop Out? The Child Online Privacy Protection Act as Proofthat Parents, Not Government, Should Be Protecting Children's Interests on the Internet, 28 FORDHAMURB. LJ. 1831, 1853-55 (2001).

212 UNIVERSITY OF TIlE DISTIUCT OF COLUMBIA LAW REVIEWdren. ,,22 Personal information includes the child's full name, home address, e­mail address, telephone number, or "any other online identifier where you cancommunicate directly with the child.,,23The Act also requires an operator or service provider to obtain verifiable parentalconsent before collecting, using, and disclosing personal information fromchildren. The degree of consent is based upon what is subsequently done with thecollected information. If the site desires to share the collected information with athird party, "the consent has to be of a much higher order.,,24 The COPPA alsoprohibits "children focused internet sites" from conditioning "participation onthe site on requiring the disclosure of more personal information than necessaryto participate. ,,25In addition to personal information, hobbies, interests, and information collectedthrough the use of "cookies" are covered by the Act. 26 "Cookies are ageneral mechanism" which computer programs use to "both store and retrieveinformation on the client side of the connection," in effect allowing a "web site torecord your comings and goings, usually without your knowledge or consent.,,27Collection of data for purposes of the Act not only includes data that childrenknowingly give a website, but also data that a child publicly discloses online. 28The COPPA contains several exceptions to its rules, including a "safe harbor"provision. 29 Parental consent is not required in situations where an operator collectsan e-mail address to respond to a one-time request from a child and thendeletes the email address or when an operator collects a child's or parent's e-mailaddress to provide notice and seek consent. 30 The COPPA also grants a "safeharbor" to any operators that create self-regulatory programs to govern participants'compliance with the ACt. 31The COPPA's stringent rules serve an important governmental interest butthere are serious concerns about the impact of COPPA on small websites, theparental consent requirement, and the undue burden it places on the Internetcommunity.J 2 These concerns will be addressed subsequently in Part IV of this22 FEDERAL TRAI)E COMMISSION, How TO COMI'LY WITII TilE CHILDREN'S ONLINE PRIVACYPROTEcnON RULE 1 (2006), available at http://www.ftc.govlbcp/edu/pubslbusiness/idtheftlbus45.pdf.23 Savitt, supra note 8, at 632.24 Id. at 636.25 Hersh, supra note 21, at 1855-56.26 Id. at 1852.27 Electronic Privacy Information Center, Cookies, http://epic.orglprivacy/internet/cookies/(last visited on March 29, 2010).28 Savitt, supra note 9, at 632.29 FEDERAL TI~ADE COMMISSION, supra note 22, at 5.30 Id. at 3.31 Hersh, supra note 21, at 1856; See also How to Comply with the Children's Online PrivacyProtection Rule, supra note 24, at 5.32 Hersh, supra note 21, at 1856.

THE CHILD ONLINE PRIVACY PROTECTION ACT 213paper. However, a brief examination of privacy law will lay the foundation toaddress the COPPA and its constitutional implications.B. PrivacyAdults have become increasingly concerned about access to personal informationover the Internet and one's right to privacy. This concern is even greater forchildren who are susceptible to being exploited and tricked over the Internet.Privacy advocates and Internet operators have noted five primary privacy concernsover the Internet; "the selling of information, the theft of personal data bythird parties, the loss of Personal Information, the destruction of data by hackers,and the presence of spam. ,,331. BackgroundThe right to privacy is not expressly enumerated in the U.S. Constitution. Theright first gained recognition at the hands of a law review article written by LouisD. Brandeis and Samuel Warren. 34 Brandeis and Warren argued that privacy lawswere based upon the right "to be let alone. ,,35 Then, in 1960, William Prosseridentified the modern right to privacy torts: publicly disclosing private facts, depictinga person in a false light, commercial exploitation of a person's name orlikeness, and intruding physically or technologically into a person's solitude. 36Although there is not an express grant of the right to privacy in the Constitution,the Supreme Court has established and recognized, through a long line ofcases a number of privacy rights. The Court traced privacy rights to the FirstAmendment, the Fourth and Fifth Amendments, the Ninth Amendment, and inthe "concept of liberty guaranteed by the first section of the Fourteenth Amendment.,,37This group of privacy rights include: the right to marry38, the right to33 Simmons, supra note 9, at 122.34 MARC A. FRANKLIN ET AL., MASS MEDIA LAW: CASES AND MATElUAU, 365 (FoundationPress 2005) (1995).35 Simmons, supra note 9, at 121.36 [d.37 Roe v. Wade, 410 U.S. 113, 152 (1973)38 Loving v. Virginia, 388 U.S. 1, 8 (1967) (the Supreme Court invalidated a miscegenationstatute that prevented marriages between persons based on racial classifications. The Court statedthat the freedom to marry "has long been recognized as one of the vital personal rights essential tothe orderly pursuit of happiness by free men.").

214 UNIVERSITY OF 'I11E DISTRICt' OF COLUMBIA LAW REVIEWhave children 39 , the right to direct the education and upbringing of one's child 40 ,and the right to abortion. 412. Children's Right to PrivacyWith the advent of computers and the Internet there has been a surge of privacylaw developments in the United States. Many of the new laws were a productof the need to control "access to and use of routine information aboutindividuals- name, address, telephone number, social information, credit cardnumber, etc.,,42 The protection of informational privacy continues to be a hotlydebated issue. Yet, a majority of commentators agree that a child's informationalprivacy is grouped with the privacy right of their parent. 43The Family Educational Right to Privacy Act ("FERPA") provides that parentshave control over the collection, maintenance, and use of information containedin their children's educational records. 44 On the other hand, however, inseveral cases the Supreme Court recognized a child's right to privacy.In Vernonia School District 47j v. Acton 45 and New Jersey v. T. L. 0. 46 the SupremeCourt recognized a child's right to privacy, but the Court noted that theright could be curtailed in special settings. 47 In Vernonia, the Court stated that"the Federal Constitution's Fourth Amendment does not protect all subjectiveexpectations of PRIVACY, but only those that society recognizes as legitimate;what expectations are legitimate varies with context. ,,48 Minors possess constitutionalrights akin to adults. 49 However, "still today, unemancipated minors lack39 Skinner v. State of Oklahoma, 316 U.S. 535, 536 (1942) (the Supreme Court held that astatute that required the operation of vasectomy be performed on a defendant who was labeled ahabitual offender was unconstitutional. The Court noted that the statute deprived individuals of thebasic "right to have offspring.").40 See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925)(the Supreme Court promulgated the doctrine that parents and guardians have a liberty interest indirecting the upbringing and education of children under their control).41 See Roe, 410 U.S. at 113 (held that a state may only regulate abortion after the end of thefirst trimester of a woman's pregnancy for justifications reasonably related to the mother's health.Once the pregnancy is at the stage of viability, the state may regulate and even prohibit abortionprocedures except where the mother's life or health is in danger. Prior to the end of the first trimester,the decision to have an abortion is solely up to the woman and the medical judgment of the attendingphysician); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (affirmed the central holdingof Roe v. Wade, but introduced a new test; undue burden test, to evaluate abortion regulations beforethe viability of a fetus).42 FRANKI.IN, supra note 36, at 366.43 Ginsberg v. New York, 390 U.S. 629 (1968).44 Zwick, supra note 4, at 1143.45 Vernonia Sch. Dist. 47j v. Acton, 515 U.S. 646 (1995).46 New Jersey v. T.L.O., 469 U.S. 809 (1984).47 [d.48 Vernonia, 515 U.S. at 654.49 See, e.g., Vernonia, 515 U.S. at 646; T.L.O., 469 U.S. at ?

THE CHILD ONLINE PRIVACY PROTECTION ACT 215some of the most fundamental rights .. .including the right of liberty ... to thecontrol of their parents or guardians.,,5o Thus, a child's constitutional rights, includingthe right to privacy, can be diminished or lessened. Students in a schoolsetting have "a lesser expectation of privacy than members of the population generally.,,51Specifically, a school setting permits "a degree of supervision and controlthat could not be exercised over free adults.,,52II. HISTORY OF LEGISLATION TO PROTECT CHILDREN ON THE INTERNETCOPPA is not Congress' first attempt to protect a child's safety and welfare onthe Internet. The Communications Decency Act ("CDA") and the Child OnlineProtection Act ("COPA") were enacted by Congress to address the detrimentaleffects that sexually explicit material can have on children. 53 In spite of the government'ssignificant interest, both the CDA and the COPA were found to beunconstitutional. 54A. Communications Decency ActCongress enacted the CDA in 1996, which was a section of the TelecommunicationsAct of 1996. "lbe CDA endeavored to make illegal any telecommunicationscontact that was intended to send indecent and obscene materials tominors.,,55 A specific provision of the CDA prohibited the transmission of anycommunication which is obscene or indecent" with knowledge that the recipientis under eighteen years of age. 56 The Act also provided that a party cannot knowinglytransmit or display any communication that depicted or described patentlyoffensive and sexual or excretory activities or organs to minors.57Immediately following the enactment of the CDA, the act faced extreme backlashfrom the legal community. Groups like Morality in Media, the AmericanFamily Association, and the Department of Justice expressed concerns over theFirst Amendment and privacy rights threatened by the act. 58 The Center for Democracyand Technology stated that the Act, "threatened the very existence ofthe Internet as a means for free expression, education, and political discourse.,,5950 Vernonia, 515 U.S. at 654.51 Id. at 657 (quoting New Jersey v. T.L.O., 469 U.S. at 348).52 Id.at 646.53 Communications Decency Act, 47 U.S.c. § 223 (1996); Child Online Protection Act, 47U .S.c. § 231 (1998).54 Reno v. ACLU, 521 U.S. 844 (1997); ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).55 Hersh, supra note 22, at 1847.56 47 U.S.c. § 223(a) (1) (8) (1996).57 Id. § 223(d) (1) (8).58 Free Speech: The Communications Decency Act- Legislative History, Center for Democracy& Technology, (2007), http://www.cdt.orglspeech/cdalcda.shtml.59 Communications Decency Act (CDA), Center for Democracy & Technology, http://www.cdt.orglgrandchild/cdal (last visited March 31, 2010).

216 UNIVERSITY Of' TIlE DISTRICr OF COLUMBIA LAW REVIEWThe American Civil Liberties Union (ACLU) challenged the CDA, arguing that"the provisions that banned 'indecent' and 'patently offensive'" speech transmittedonline were unconstitutional. 60 The ACLU believed that the terms were toovague for "Internet users to rely on when making sure their communications stayin line with the CDA. ,,61 The Act did not define 'indecent' and 'patently offensive'nor were the terms distinguished within the statute. 62The Supreme Court ultimately agreed with the ACLU. In Reno v. ACLU, theCourt held that the CDA was unconstitutional because it was facially overbroadand violated the First Amendment. 63 The Court found that the CDA's terminologywas "vague and inconsistent," the act was unconstitutionally broad, and "hadthe effect of limiting communications to which adults were constitutionally entitled.,,64 The Court reasoned that the vagueness of the provisions that banned"indecent" and "patently offensive" speech would "lead to a chilling effect onpeople's expressions through the Internet since the CDA imposed criminal punishments.,,65Accordingly, the CDA failed to meet the second part of the strictscrutiny test because the ambiguity of the terms demonstrated the statute was notnarrowly tailored.B. The Child Online Protection ActAfter the CDA was deemed unconstitutional, Congress enacted the COPA toremedy the problems that were left unresolved by the Act. Referred to as "CDAII" or "Son of CDA," the COPA was passed in 1998 as part of the OmnibusAppropriations Act for the Fiscal Year 1999. 66 Like the CDA, the COPA wasaimed at determining if material transmitted over the Internet was harmful tominors and therefore illegal and punishable as a crime. 67 To resolve the problemscited in Reno, the COP A's focus was narrowed. 68 The Act only: (1) applied toonline speech for commercial purposes, (2) applied to material displayed on theWorld Wide Web, and (3) restricted access to materials that were harmful tominors.6960 Hersh, supra note 21, at 1847.61 Steven E. Merlis, Preserving Internet Expression While Protecting Our Children: SolutionsFollowing Ashcroft v. ACLU, 4 Nw. J.TECII & INn~LL. PROP. 117 (2005).62 Id. at 120.63 Reno v. ACLU, 521 U.S. 844 (1997).64 Zwick, supra note 4, at 1137-38.65 Merlis, supra note 61, at 119.66 Zwick, supra note 4, at. 1143.67 See, Kerry Di Gioia, Regulation of Speech on the Internet and the First Amendment: Shouldthe Government Be the Primary Protector of Children from Harmful Material on the Internet?, 29OKLA. CITY U.L. REV. 617, 621 (2004).68 Hersh, supra note 21, at 1838.69 Simmons, supra note 9, at 6.

THE CHILD ONLINE PRIVACY PROTECfION ACT 217Like its predecessor, the COPA was challenged on grounds that it infringedupon constitutional free speech rights?O In 2000, the Third Circuit Court of Appealsupheld a lower court decision holding that the community standards test inCOPA rendered the statute unconstitutionally overbroad. 71 In Miller v. California,the test for obscenity was solidified. 72 The Supreme Court held that "a contemporarystandards test should be used to determine what materials areobscene. ,,73 The Third Circuit Court later articulated that "a community standardstest would require every Web communication to abide by the most restrictivecommunity standards, which is not a constitutionally permitted burden onfree speech. ,,74Following the Third Circuit decision, the government sought and obtained certiorari.After several appeals and additional rulings from the Third Circuit Court,the Supreme Court ultimately upheld the Third Circuit's ruling that the COPAmay be unconstitutiona1. 75 The Supreme Court invalidated COPA because thegovernment failed to show that the statute was the least restrictive means for thegovernment to prevent minors from accessing harmful materials on theInternet. 76The demise of the CDA and the COPA demonstrate the constant struggle betweengovernment regulation and constitutional rights. Protecting children's privacyon the Internet is a substantial governmental interest. Like COPA, however,the COPPA is also criticized for presenting similar constitutional issues.III:CONSTITUTIONAL ASPECfS OF COPPA AND CHILDREN'S FREESPEECH RIGHTSA. Constitutional Rights of ChildrenThe Supreme Court has rendered numerous decisions regarding the constitutionalrights of children. An examination of these case holdings span the spectrum:many decisions hold that children have constitutional rights akin to adults,while others restrict the constitutional rights of children in certain settings. In In70 ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).71 See, e.g. ACLU, 217 F.3d at 162.72 Miller v. California, 413 U.S. 15,24 (1973) (holding that obscene material is not protected bythe First Amendment. The Court held that the test for obscenity is: (a) whether 'the average person,applying contemporary community standards' would find that the work, taken as a whole, appeals tothe prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexualconduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole,lacks serious literary, artistic, political, or scientific value.)73 Miller, 413 U.S. at 24; Sarah B. Evans, Hear No Evil, Speak No Evil: Protecting the Nation'sChildren From Sexually Explicit Material on the Internet, 13 TEMI'. POL. & CIV. Rrs. L. REV. 253, 255(2003).74 Evans, supra note 73, at 258.75 Ashcroft v. ACLU, 542 U.S. 656 (2004).76 Id.

218 UNIVERSITY OF '11m DISTRICT OF COLUMBIA LAW REVIEWre Gault, the Supreme Court held that children possess the same constitutionalrights as adults; "neither the Fourteenth Amendment nor the Bill of Rights is foradults alone.,,77 Dissenting in Wisconsin v. Yoder, Justice Douglas argued thatchildren "are possessed of fundamental rights which the State must respect. ,,78Nonetheless, the decisions provide insight into the constitutional implications ofthe COPPA.The notion of children possessing constitutional rights was further explored inTinker v. Des Moines Independent Community School District.1 9 Middle schoolstudents were suspended from school for wearing black armbands to protest theVietnam War. 80 The Supreme Court upheld the constitutional rights of the studentsto wear the black armbands in opposition to the war, noting that studentsdo not "shed their constitutional rights to freedom of speech or expression at theschoolhouse gate.,,81 More notably, the Court extended the constitutional rightsof children beyond the purviews of the school yard, proclaiming that "[s]tudentsin school as well as out of school are 'persons' under the Constitution.,,82Although the Court recognizes the constitutional rights of children, there is along standing concept that "the power of the state to control the conduct of childrenreaches beyond the scope of its authority over adults.,,83 The state has alegitimate interest in protecting the well-being of a child; however, the state'sexercise of power to protect children must be done so as to "not make childrensecond-class rights holders. ,,84 Thus, the constitutional rights of children may onlybe infringed upon in distinct situations.A 1986 case upheld a high school's suspension of a student for reciting aspeech with sexual innuendos at an official school assembly.85 The Court foundthat the speech was not political and was "disruptive to the learning process fosteredby the school setting.,,86 Therefore, the speech was not entitled to full protectionof the First Amendment and the constitutional rights of children in theschool environment were reduced. The Court pronounced the general rule thatthe "constitutional rights of students are not automatically coextensive with therights of adults in other settings.,,8777 In re Gault, 387 U.S. 1, 7 (1967).78 Wisconsin v. Yoder et aI., 406 U.S. 205, 226 (1971).79 TInker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969).80 Id.81 Id at 506.82 Id. at 509.83 Simmons, supra note 10, at 6.84 Simmons, supra note 10, at 6.85 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).86 Simmons, supra note 11, at 7.87 Bethel Sch. Dist., 478 U.S. at 680.

THE CHILD ONLINE PRIVACY PROTECTION ACf 219Children's constitutional rights were further eroded in Hazelwood School Districtv. Kuhlmeier. 88 Here, the Court ruled that schools could censor studentnewspapers that are sponsored by the schoo1. 89 Due to the fact that the"speaker" was the school itself, the Court concluded that the school had the rightto "disassociate itself."9OJustice Burger identified three main rationales for restricting the constitutionalrights of children: (1) the special vulnerability of children, (2) their lack of experience,perspective, and judgment to recognize and avoid choices that could bedetrimental to them, and (3) the importance of parents' guiding role. 91 Theserationales are applicable to both inside and outside the school setting. Consequently,they can be used to justify the restriction of a child's speech in othersettings, such as on the Internet.B. Constitutionality of COPPAThroughout the course of Congressional legislating to protect children on theInternet, there has been a struggle to find a balance between regulation of themedium and protection of constitutional rights of free speech. The COPPA furtherexemplifies how the government walks the fine line between regulation andinfringing upon individual constitutional rights. When the COPPA was first introduced,many groups raised concerns regarding the limitation of a child's ability tospeak, and the terms "disclosure" and "collection.,,92Original opponents of the COPPA argued that "the definitions went beyondthe statutory language and threatened to upset the balance between protectingchildren's privacy and ensuring their ability to participate online.,,93 The finalversion of the COPPA narrowed the definition of "disclosure" and changed thedefinition of "collection".94 Following the final version of the Act, original opponentspraised the COPPA, while new opponents expressed additional concerns.New critics of the COPPA challenged the constitutionality of the Act on severalgrounds. First, some critics argue that the COPPA "infringes the free speechrights of web sites by forcing them to self-censor their content. ,,95 The parentalconsent requirement of the COPPA is alleged to lead to "self-censorship,,96 ofspeech directed towards children. 97 Secondly, critics state that the Act places an88 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).89 Hazelwood Sch. Dist., 484 U.S. at 260.90 /d. at 268.91 /d.92 Simmons, supra note II, at 121.93 /d.94 Id.95 /d. at 122.96 Simmons, supra note 11, at 122.97 Simmons, supra note II, at 122.

220 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWundue burden on commercial web site operators. 98 Many websites have eitherdisallowed children from access to its website or shut down completely due to theamount of funding necessary to comply with the COPPA. 99 "When it is cheaperand easier for companies simply not to run children-focused websites, ultimatelythere will be fewer choices for child appropriate Internet content websites."lOoThirdly, critics have questioned the effectiveness of the Act. Lastly, the greatestconcern with the COPPA is its alleged infringement on the constitutional rights ofchildren. Critics acknowledge that while protection of children "remains an importantgoal," the means employed by the government must coexist with thechild's "right to express himself or herself, and the right to receive other parties'expression." 1 0 IC. COPPA and the Free Speech Rights of ChildrenBoth adults and children alike have the protection of the First Amendment.Nevertheless, the regulation of speech is neither prohibited nor unconstitutionalwhen specific requirements are met. The nature of the regulation directly affectshow the court will examine the Act.To determine whether the COPPA infringes upon children's right to freespeech, it must first be established whether the Act is content neutral or contentbased.As a general rule, laws that by their terms distinguish favored speech fromdisfavored speech on the basis of the ideas or views expressed are contentbased. . . by contrast, laws that confer benefits or impose burdens onspeech without reference to the ideas or views expressed are in most instancescontent-neutra1. 102The Court has also recognized that even if an act is "neutral on its face," it maybe "content based if its manifest purpose is to regulate speech because of themessage it conveys.,,103 The threshold question before the Court is always"whether the government has adopted the regulation because of agreement ordisagreement with the message the speech conveys.,,104The COPPA regulates the collection of personal information over the Internetby children without the consent and knowledge of their parents. The main objectiveof the Act is to regulate only personal information. The message the speechconveys is not what is desired to be regulated, rather the collection of the speech98 Simmons, supra note 11, at 122.99 Hersh, supra note 21, at 1844.100 Jd.101 Merlis, supra note 61, at 119.102 Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 639 (1994).103 /d. at 641.104 /d. at 639.

THE CHILD ONLINE PRIVACY PROTECTION ACT 221itself is the concern. Beyond the definition of what constitutes "personal information,"the Act does not reference the "the ideas or views expressed.,,105 For thatreason, the COPPA is content neutral.Since content-neutral regulations "do not pose the same inherent dangers tofree expression that content-based regulations dO,,,106 content-neutral regulationsreceive the intermediate level of scrutiny. In order for a content-neutral regulationto be sustained, the government must show that: (1) the regulation furthersan important or substantial governmental interest; (2) the governmental interestis unrelated to the suppression of free expression; and (3) the incidental restrictionon alleged First Amendment freedoms is no greater than is essential to thefurtherance of that interest. 107A number of critics argue that the COPPA does not serve a substantial interest,because the interest alleged "does not assert more than a generalized interestin children's development.,,108 However, the National Center for Missing and ExploitedChildren estimates that one in seven children, between the ages of tenand seventeen, experience online sexual solicitation. lo9 Additionally, the FfCnoted "sexual predators use the Internet to identify and contact children whomthey wish to victimize." 1 1 0Not only is the COPPA protecting the safety of children, Congressional findingsindicate that children may not understand the effects of revealing informationabout themselves and "the Internet gives marketers the capability ofinteracting with your children and developing a relationship without your knowledge."lllAn author of the COPPA, Senator Bryan, stated that some web siteswere asking children questions such as; "what the family income was, does thefamily own stocks or certificates of deposit, did their grandparents give them anyfinancial gifts?"l12 A particular concern of Senator Bryan was the collection ofanswers to the aforementioned questions, without the knowledge of the parents.I13 Answers to questions of this nature put parents and the immediate familyat risk, as well as, the children themselves.It is unmistakably apparent the COPPA's main purposes are to protect childrenfrom marketing scams and online sexual solicitation. More importantly, the105 Simmons, supra note 11, at 127.106 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 198 (1997).107 Turner, 512 U.S. at 649.108 See, e.g. Barry J. Reingold, Jason Rylander, Privacy vs. Speech, Again: Even a Law Meant toProtect Kid's Online Privacy Conflicts with the First Amendment, LEGAL TIMES, at 3 (2001).109 TilE NATIONAl. CENTER FOR MISSING & EXPI.OITED CII".DREN ONLINE VICTIMIZATION OFYOlfrIl: FIVE YEARS LATER (2006), http://www.missingkids.com/en_US/publicationslNCI67.pdf.11 0 Simmons, supra note 11, at 10.111 See 144 Congo Rec. S8483 (daily ed. July, 17 1998).112 See, e.g. Simmons, supra note 9, at 9; 105 Congo Rec. S8,482 (1998).113 See 144 Congo Rec. S8483 (daily ed. July, 17 1998) (statement of Rep. Bryan); Simmons,supra note 11, at 9.

222 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWCOPPA is aimed at preventing sexual solicitation offline from predators who usepersonal information to contact children. The COPPA therefore serves a specificinterest of protecting the safety and welfare of a child while encouraging socialgrowth.In Turner Broadcasting Systems v. Federal Communications Commission, theCourt held that the government must prove real harm, not just anticipated harm,to justify a speech restriction. 114 Based on this requirement, critics argue that theCOPPA only addresses "potential harms.,,115 However, the critics' claim is misguided.Evidence from the previously mentioned Los Angeles television stationreport confirms that personal information obtained from children from chatrooms, discussion boards, and marketing ploys was compiled into lists that werethen sold to individuals; many of whom could have used this information for illegalpurposes.Furthermore, harms by pedophiles and online sexual solicitation are also farfrom merely potential. According to one survey, one in five children who "regularlyuse the Internet received sexual solicitations or approaches during a [one]­year period.,,116 This statistic illustrates that pedophilia and sexual solicitationspose a real and imminent threat to children. Accordingly, the government's interestin protecting a child's personal information from marketers and pedophiles isimportant and substantial. The next step is to determine whether the governmentalinterest is unrelated to the suppression of free expression. 117In Turner, the Court concluded that the Federal Communication Commission's"must carry" provisions were not related to the suppression of free expression,or to the content of any speaker's messages. llB The Court relied upon theinterrelated interests expressed by Congress. Similarly, Congress declared thatthe COPPA is to serve four previously mentioned interrelated interests:(1) to enhance parental involvement in a child's online activities in order toprotect the privacy of children in the online environment; (2) to enhanceparental involvement to help protect the safety of children in online forasuch as chatrooms, home pages, and pen-pal services in which children maymake public postings of identifying information; (3) to maintain the securityof personally identifiable information of children collected online; and (4)to protect children's privacy by limiting the collection of personal informationfrom children without parental consent. 119114 See, e.g. Simmons, supra note 11, at 10; Turner, 512 U.S. at 630.115 Simmons, supra note 11, at 10.116 U.S. DEPARTMENT OF JUSTICE, OVC Bulletin: Internet Crimes Against Children (2005),http://www.ojp.usdoj.gov/ovclpublicationslbulletins/interneC2_2001/welcome.html117 Turner, 520 U.S. at 184.118 Turner, 520 U.S. at 180.119 144 Congo Rec. S11657 (daily ed. Oct. 7, 1998) (statement of Rep. Bryan).

THE CHILD ONLINE PRIVACY PROTECTION ACT 223The goals and interests of the COPPA are not concerned with the content of thechild's message or with suppressing free expression. Therefore, the COPPApasses the second element.To satisfy the last element, "a regulation need not be the least speech-restrictivemeans of advancing the government's interests." 120 The central aspect of theCOPPA is that website operators must obtain verifiable parental consent beforecollecting personal information from children. 121 Many critics posit a number ofalternatives to the parental consent requirement.Opponents to the COPPA argue that it is feasible for the Internet industry toself-regulate, allowing the "individual freedom, responsibility, and accountabilitythat make up the Internet culture" to foster. 122 Two prominent self-regulationprograms are Truste and BBBOnline®.l23 Both programs issue licenses to weboperators to display the programs' privacy seals, on the condition that the websitefollows certain guidelines}24 In addition, websites can self-regulate by deletingpersonal information from the website.As another alternative, many critics contend that parents can play an activerole in the protection of their child's personal information by investing in filteringdevices. Filtering devices enable a parent "to determine, in advance, how muchinformation their children may disclose to websites, as well as how much informationwebsites may disclose, if any, to third parties.,,125Contrary to opponents' positions, the "less-restrictive" approach "has neverbeen a part of the inquiry into the validity of content-neutral regulations onspeech.,,126 The Supreme Court in Turner stated, "[s]o long as the means chosenare not substantially broader than necessary to achieve the government's interest... the regulation will not be invalid simply because a court concludes that thegovernment's interest could be adequately served by some less-speech restrictivealternative. ,,127Despite the abovementioned alternatives, the COPPA "promotes a substantialgovernment interest that would be achieved less effectively absent the regulation.,,128Not all web operators participate in programs such as Truste and BB­BOnline®. Furthermore, web operators that do participate only face the removalof the right to display the programs' seals if they are found in violation of theprograms' policies. 129 Additionally, not every family can purchase filtering de-120 Turner, 512 U.S. at 649.121 Child Online Privacy Protection Act, 15 U.S.c. § 6501 (1998).122 Hersh, supra note 21, at 1842.123 Zwick, supra note 4, at 1148.124 Zwick, supra note 4, at 1148.125 Zwick, supra note 4, at 1149.126 Turner, 520 U.S. at 200.127 ld.at 201.128 Turner, 512 U.S. at 649.129 Zwick, supra note 4, at 1448.

224 UNIVERSITY OF THE DISTIUCT OF COLUMBIA LAW REVIEWvices. Devoid of government regulation, children whose families can afford toinvest in self-regulatory devices will have their personal information protected,while millions of other children remain vulnerable to the exact ploys the COPPAintends to protect against. Lastly, the COPPA does not "burden substantiallymore speech than is necessary to further the government's legitimate interests.,,130The COPPA leaves open alternative means of communication for childrenon the Internet. The Act only intends to restrict the collection of personalinformation without the knowledge or consent of the parent. Hence, a child isstill permitted to participate in monitored chat rooms and discussion boards. TheCOPPA does not prohibit a child from other methods of communication on theInternet such as e-mail. The COPPA does not offend a child's First Amendmentright to free speech.CONCLUSIONProtecting children's privacy and safety online is a priority of both the governmentand parents. But protection should not arise at the expense of children'sFirst Amendment free speech rights. Internet privacy rights must be "balancedagainst other competing interest of the public, law enforcement, governmentagencies and private commercial interests.,,131 The COPPA strikes an appropriatebalance of protecting children from marketers and sexual predators online,while allowing children to take advantage of the plethora of benefits the Internethas to offer.130 Turner, 512 U.S. at 649.131 See, e.g. Hersh, supra note 21, at 8; Carey v. Population Servo Int'l., 431 U.S. 678 (1977).

THE RUCKUS IN THE CAUCASUS:A CASE AGAINST MIKHEIL SAAKASHVILI FOR CRIMESAGAINST HUMANITY IN THE AUGUST WARYancy Cottrill*INfRoDucnoNWhile the world's attention was focused on the fireworks display of the 2008Olympic Games in China, the citizens of South Ossetia were watching the skytoo. Only their sky was being lit up by warfare. At 7:30 p.m. on August 7, 2008,Georgian President Mikheil Saakashvili, held a televised speech promising theOssetians a ceasefire and unlimited autonomy.1 At 11:00 p.m., Saakashvili orderedthe Georgian Army to launch an offensive on Tskhinvalli, the capital ofSouth Ossetia. Over the next five days, the civilians of South Ossetia andAbkhazia would be directly targeted by the Georgian forces and forcibly displacedfrom their homes. 2Rising to power after the tainted elections of 2003, known as the Rose Revolution,Mikheil Saakashvili gave the Georgian people hope that a true democracywould be established. Instead, his unilateral decision to attack his own citizensalong with Russian peacekeepers in South Ossetia and Abkhazia proved that hewas no different than previous leaders. The same Georgian people who sweptSaakashvili to power are now in the streets demanding his resignation. 3 His actionsin the August War lead to the forced displacement, murder, imprisonment,and enforced disappearance of the civilian populations of South Ossetia andAbkhazia. 4 Saakashvili, being responsible for these crimes against humanity,should stand trial in the International Criminal Court.This article will begin by identifying and defining the crimes against humanity,which were committed by the Georgian forces. Then the evidence of the crimeswill be evaluated as documented through media and international non-profit assessments.Finally, by examining international case law, it will become apparent* J.D. Candidate 2010, University of the District of Columbia, David A. Clarke School of Law.1 Dimitry Avaliani, et ai, How Georgia Began War, INST. FOR WAR AND PEACE Rm·., http://www.mail-archive.com/caucasus3eportin~service_english@iwpr.gn.apc.org/msg00133.html; AM­NESTY INT'L, CIVILIANS IN THE LINE OF FIRE: TilE GEORGIA-RUSSIA CONFLICT, http://www.amnesty.orglen/library/assetlE U R04/00512008/en/d9908665-ab55-11 dd-a4cd-bfaOfdea9647/eur040052008eng.pdf [hereinafter AMNESTY IN't"L).2 AMNESTY IN'r'L, supra note 1, at 18; Conference of Plenipotentiaries on the Establishment ofan Int'I Crim. Court, July 17, 1998, Rome Statute of The Int'l Crim. Court, Art. 7, U.N. Doc. AICONF.183/9 (1998), available at http://www.un-documents.netlicc.htm [hereinafter Rome Statute].3 Protests in Moldova and Georgia: Street Scenes, ECONOMIST, April 18-24,2009, at 58.4 HUMAN RIGHTS WATCII, UI' IN FLAMES: HUMANITARIAN LAW VIOLATIONS AND CIVILIANVICTIMS IN THE CONFLICt' OVER SOUTII OSSETIA, http://www.hrw.orglen/reports/2009/01122If1ames-0;AMNESTY INT'L, supra note 1, at 19.

226 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWthat Saakashvili should be held accountable for his actions. Under the theory ofcommand responsibility, the Georgian president oversaw the forced displacement,murder, imprisonment, and the enforced disappearance of civilians, whichhe should now have to explain to the international community.I. CRIMES AGAINST HUMANITYA. Command ResponsibilityMikheil Saakashvili will be held responsible for the crimes against humanity offorced displacement, murder, enforced disappearance, and imprisonment underArticle 28 of the Rome Statute addressing the responsibilities of commandersand superiors. s The statute states that the military commander of the Army canbe held criminally responsible for the crimes committed by his forces under hiscommand or contro1. 6 It further states that the commander will be held criminallyresponsible if he knows the crimes are being committed and does not take stepsto prevent them from occurring.7 Saakashvili was President and Commander ofthe Georgian armed forces during the August War against Russian peacekeepersand local militias when these crimes against humanity occurred. sOn September 5, 2003, Georgia ratified the Rome Statute - making any warcrimes, genocide, or crimes against humanity committed within the country fall5 The responsibility of commanders and other superiors specifically states:In addition to other grounds of criminal responsibility under this Statute for crimes withinthe jurisdiction of the Court: (a) A military commander or person effectively acting as amilitary commander shall be criminally responsible for crimes within the jurisdiction of theCourt committed by forces under his or her effective command and control, or effectiveauthority and control as the case may be, as a result of his or her failure to exercise controlproperly over such forces, where: (i) That military commander or person either knew or,owing to the circumstances at the time, should have known that the forces were committingor about to commit such crimes; and (ii) That military commander or person failed to take allnecessary and reasonable measures within his or her power to prevent or repress their commissionor to submit the matter to the competent authorities for investigation and prosecution.(b) With respect to superior and subordinate relationships not described in paragraph(a), a superior shall be criminally responsible for crimes within the jurisdiction of the Courtcommitted by subordinates under his or her effective authority and control, as a result of hisor her failure to exercise control properly over such subordinates, where: (i) The superioreither knew, or consciously disregarded information which clearly indicated, that the subordinateswere committing or about to commit such crimes; (ii) The crimes concerned activitiesthat were within the effective responsibility and control of the superior; and (iii) The superiorfailed to take all necessary and reasonable measures within his or her power to prevent orrepress their commission or to submit the matter to the competent authorities for investigationand prosecution.Rome Statute, supra note 2, at Art. 28.6 Rome Statute, supra note 2, at Art. 28.7 Rome Statute, supra note 2, at Art. 28.8 President of Georgia Website-Functions, hUp:/Iwww.president.gov.gel?l=E&m=l(last visitedMay 2, 2010) (laying out the power of the Georgian Executive Branch under Georgian Constitution.).

THE RUCKUS IN THE CAUCASUS 227under the jurisdiction of the International Criminal Court. 9 Under the RomeStatute, certain "acts when committed as a part of a widespread or systematicattack directed against any civilian population, with knowledge of the attack" areconsidered crimes against humanity. to Those acts include: murder; extermination;enslavement; deportation or forcible transfer of a population; imprisonment orother severe deprivation of physical liberty in violation of fundamental rules orinternational law; torture; rape and other sexual crimes; persecution against anyidentifiable group or collectively; enforced disappearances; apartheid; and otherinhumane acts of similar character intentionally causing great suffering, or seriousinjury to body or to mental or physical health. 11 One of the results of theAugust War and the actions of the Georgian forces under SaakashviIi's commandwas that thousands of civilians were forcibly displaced. 12B. Forced DisplacementThe August War, initiated by the invasion of Georgian forces upon South Ossetia,displaced an estimated 127,000 people in South Ossetia and Abkhazia combined.13 The intentional targeting of civilians by the Georgian forces lead to theforced displacement of these individuals. 14 Forcibly displacing civilians by partiesat war is prohibited by the Article 7 of the Rome Statute unless it is for their ownsafety or when necessary for vital military reasons. 15 The Rome Statute definesthis crime against humanity as: "forced displacement of the persons concerned byexpulsion or other coercive acts from the area in which they are lawfully present,without grounds permitted under internationallaw.,,16The elements of forcible displacement as defined in the Rome Statute include"conduct [that] was committed as a part of a widespread or systematic attackdirected against a civilian population." 17 While 68,000 individuals were able toreturn to their homes, the United Nations High Commissioner for Refugees estimatedthat 54,000 civilians would remain displaced through 2009. 18 As well asbeing forcibly displaced, civilians were also victims to murder at the hands of theGeorgian forces during the August War.199 Rome Statute, supra note 2, at Art. 5, 12.10 Rome Statute, supra note 2, at Art. 7.11 Rome Statute, supra note 2, at Art. 7.12 AMNESTY hr.-'I., supra note I, at 18-19.13 U.N. High Comm'r for Refugees - Georgia, http://www.unhcr.orglcgibin/texislvtx/page?page=4ge48d2e6# (last visited May 2, 2010).14 Rome Statute, supra note 2, at Art. 7(1)(d); Human Rights Watch, supra note 4, at 6.15 Rome Statute, supra note 2.16 Rome Statute, supra note 2, at Art. 7(2)(d).17 lnt'l Crim. Court, Elements o/Crimes, U.N. Doc. PCNICCI2000lllAdd.2 (2000), available athttp://www1.umn.edulhumanrts/instree/iccelementsofcrimes.html(last visited May 3, 2010).18 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, supra note 13.19 HUMAN RIGHTS WATCH, supra note 4, at 31.

228 UNIVEI~SITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWc. MurderGeorgian forces murdered civilians during their attacks in South Ossetia byfailing to distinguish between military targets and civilians. 20 Furthermore, theGeorgian Army attacked civilian vehicles in South Ossetia as they were trying toflee the combat zone resulting in the murder of those civilians. 21 The elements ofmurder under the Rome Statute are as follows: the perpetrator killed one ormore persons; the conduct was committed as part of a widespread or systematicattack directed against a civilian population; the perpetrator knew that the conductwas part of or intended the conduct to be part of a widespread or systematicattack against a civilian population. 22 The Georgian Army's actions under thedirective of Mikheil Saakashvili resulted in the murder of civilians which is acrime against humanity under Article 7 of the Rome Statute. 23 In addition to themurder of civilians, the Georgian President should also answer to the charge ofenforced disappearance of a civilian.D. Enforced DisappearanceThere has been one documented case of enforced disappearance by the GeorgianArmy upon a South Ossetian civilian. 24 The Rome Statute defines enforceddisappearance as:the arrest, detention or abduction of persons by, or with the authorization,support or acquiescence of, a State or a political organization, followed by a refusalto acknowledge that deprivation of freedom or to give information on thefate or whereabouts of those persons, with the intention of removing them fromthe protection of the law for a prolonged period of time.25The Georgian Army took into custody Tomaz Kabisov, twenty-nine years old,in the village of Tebti, South Ossetia on August 8. 26 Kabisov was last seen by afellow detainee who served as a translator for him on August 10th in a prisoncamp in the town of Khashuri. 27 The Georgian government denies that he is intheir custody.28 While this scenario resulted in the disappearance of the individ-20 HUMAN RIGHTS WATCII, supra note 4, at 6.21 HUMAN RIGHTS WATCH, supra note 4, at 6.22 Int'l Crim. Court, Elements of Crimes, supra note 17, at 5.23 Rome Statute, supra note 2, AMNESTY INT' .., supra note 1, at 28, HUMAN RIGHTS W ATCII,supra note 4, at 53-57; !rH'L CRISIS GROUP, RUSSIA VS. GEOI~G1A: TilE FALL Our, http://www.crisisgroup.orglhome/index.cfm?id:::::5636 (last visited May 3, 2010).24 HUMAN RIGI-ITS WATCH, supra note 4, at 85.25 Rome Statute, supra note 2, at Art. 7(2)(i).26 HUMAN Rim rrs W ATCI-I, supra note 4, at 85.27 HUMAN RIGHTS WATCH, supra note 4, at 85.28 HUMAN RIGIn"S WATCH, supra note 4, at 86.

THE RUCKUS IN THE CAUCASUS 229ual, there were situations where civilians were imprisoned and denied their libertybefore being released. 29 E ImprisonmentThere were numerous accounts of Georgian soldiers detaining, beating, andthen imprisoning Ossetian civilians. 3o While civilians are considered protectedpersons in times of conflict under the Fourth Geneva Convention, the GeorgianArmy denied them their liberty.31 The Georgian Army claimed to have thirtytwodetainees which were all military combatants, but upon release of these individualsit was discovered that some those detained were civilians. 32 It was alsodetermined that at least five of the thirty-two prisoners were beaten and illtreatedwhile in custody.33 This imprisonment of civilians is a crime against humanitypursuant to the Rome Statute. 34 Saakashvili oversaw the Georgian Armywhile they participated in these activities and should be prosecuted by the InternationalCriminal Court for his role. Now that all the charges have been defined,the evidence as compiled by international human rights organizations and themedia will be assessed.II. THE EVIDENCEInternational Criminal Court prosecutor has taken the allegations of crimesagainst humanity, which were committed during the August War, under analysis.35 The prosecutor may initiate an investigation on his own under the Rome29 HUMAN RIGHTS WATCH, supra note 4, at 81-85 (relaying the accounts of prisoners detainedby Georgian forces in Khetagurovo, Tskhinvali, Znauri, and the conditions of detainment).30 HUMAN RIGHTS WATCH, supra note 4, at 81-85.31 Convention (IV) relative to the Protection of Civilian Persons in lime of War, Geneva,Switz., Aug. 12, 1949, Final Declaration, http://www.icrc.org/ihl.nsfl7c4d08d9b287a42141256739003e636b/6756482d86146898c125641eOO4aa3c5?OpenDocument (last visited May 3, 2010) (stating: "Protectedpersons are entitled, in all circumstances, to respect for their persons, their honour, their familyrights, their religious convictions and practices, and their manners and customs. They shall at all timesbe humanely treated, and shall be protected especially against all acts of violence or threats thereofand against insults and public curiosity"); HUMAN RIGHTS WATCH, supra note 4, at 81-85.32 HUMAN RIGITI'S WATCH, supra note 4, at 81-85.33 HUMAN RIGHTS WATCH, supra note 4, at 4.34 Rome Statute, supra note 2, at Art. 7(1)(e): Crime against humanity of imprisonment orother severe deprivation of physical liberty defines the elements as: 1. The perpetrator imprisonedone or more persons or otherwise severely deprived one or more persons of physical liberty; 2. Thegravity of the conduct was such that it was in violation of fundamental rules of international law; 3.The perpetrator was aware of the factual circumstances that established the gravity of the conduct; 4.The conduct was committed as part of a widespread or systematic attack directed against a civilianpopulation; 5. The perpetrator knew that the conduct was part of or intended the conduct to be partof a widespread or systematic attack directed against a civilian population. /d.35 Press Release, In1'l Crim. Court, ICC Prosecutor Confirms Situation in Georgia Under Analysis(n.d.), http://www.icc-cpUnt/menus/icc/press%20and%20media/press%20releases/press%20re-

230 UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEWStatute by means of relying on information from sources such as state parties,non-governmental organizations, or other reliable sources. 36 Currently, the Officeof the Prosecutor is conducting preliminary analysis of the situation in Georgia.37 The reports of well known international human rights organizations areinfluential in compiling the facts to begin an investigation. 38Another court looking into Georgia's actions is the Parliamentary Assembly ofthe Council of Europe which determined that Georgia's initiation of the shellingof South Ossetia accompanied by disproportionate use of force created graverisks for civilians, and thus, violated international humanitarian law. 39 The EuropeanCourt of Human Rights has received over 3,300 complaints against Georgiadue to the events of the August War, of which seven have received priority by theChamber. 40 Many human rights groups have documented the crimes against humanitycommitted by the Georgian Army, under the direct control of MikheilSaakashvili, during the August War with Russian peacekeepers and localmilitia. 41Despite the Georgian president's counterclaims that the Russian peacekeeperswere responsible for the war, the people of Georgia have shown that they will notbe fooled. 42 Recently thousands of citizens attended an opposition Independenceleases %20(2008)/icc% 20prosecu tor%20con firms %20si t ua tion % 20in % 20georgia % 20under%20analysis (last visited May 2, 2010).36 Rome Statute, supra note 2, at Art. 15.37 Int'l Crim. Court, Office of the Prosecutor, http://www.icc-cpi.int/Menus/ICc/Structure+of+the+CourtlOffice+of+the+Prosecutorl (last visited May 2, 2010).38 Rome Statute, supra note 2, at Art. 15.39 Parliamentary Assembly Council of Europe, The Consequences of the War Between Georgiaand Russia enS, http://assembly.coe.int/Mainf.asp?link==IDocuments/ AdoptedTextlta08/ERES 1633.htm (last visited May 2, 2010) "The use of heavy weapons and cluster munitions, creating grave risksfor civilians, constituted a disproportionate use of armed force by Georgia, albeit within its own territory,and as such a violation of international humanitarian law and Georgia's commitment to resolvethe conflict peacefully." Id.40 Press Release, European Court of Human Rights, Seven Applications Against Georgia ConcerningHostilities in South Ossetia, http://cmiskp.echr.coe.intltkpI97/view.asp?action==html&documentld==845593&portal==hbkm&source==externalbydocnumber&table=F69A27FD8FB86142BFOICl166DEA398649 (last visited May 2, 2010).41 AMNESTY IN'r'I., supra note 1, at 24-28, 48-49; HUMAN RIGHTS WATCII, supra note 4, at 46-53, 64-66; INT'L CRISIS GROUP, supra note 23; NORWEGIAN HEUHNKI COMMITI'EE, GEf)J{GlA-RUSSIACONFLlcr: ETHNIC CLEANSING CONTINUES IN SOUTH OSSETIAN CONFLlcr ZONE IN GEORGIA, http://www.nhc.no/php/index.php?module=article&view=784; Brian Whitmore, Is The Clock Ticking ForSaakashvili?, RAJ)JO FlmE EUROPE, Sept. 12, 2008, available at http://www.rferl.orglcontent/Is_The_Clock_lickinr-FocSaakashviliI1199512.html; INST. FOR WAR AND PEACE REI'., supra note 1; NonaSalaghaia, Georgian People Rose to their Feet to Express Respect for Abkhaz and Ossetian People,GEORGIAN HUMAN RIGHT CENTRE, May 28, 2009, available at http://www.humanrights.ge/index.php?a=article&id=3792&lang==en.42 Factual Evidence Contradicts War Claims in Recent Media Stories: OSCE Cautions on DrawingConclusions Based on Incomplete Evidence, GEORGIA UPDATE, Nov. 18, 2008, http://georgiaupdate.gov.ge/enJdocll 0006924/0SCE %20Nov%20t8%20vt.htm.

THE RUCKUS IN THE CAUCASUS 231Day celebration voicing their disdain for the sham democracy Saakashvili hasperpetuated and showing their support for the citizens of South Ossetia andAbkhazia. 43 The evidence of the forced displacement of the South Ossetian civiliansis well documented by international human rights organizations and will beevaluated below.44A. Forced DisplacementForced displacement of Ossetians and Abkhazians, due to civilians being attackedduring August War, has been widely acknowledged. 4s As of October 27,2008, the Georgian government website had the number of internally displacepersons at 35,495, but the UNHRC estimated a total of 54,000 people would bedisplaced through 2009. 46 Civilians in South Ossetia were not taken into considerationas villages and residential areas were bombed, schools and hospitals damagedor destroyed, and civilian deaths outnumbered those of combatants. 47 Therewere also reports of fleeing civilians being targeted by bombs. 48Human Rights Watch found that the Georgian Army failed to distinguish betweenmilitary targets and civilians. 49 They went on to conclude "that Georgianforces demonstrated disregard for the protection of civilians during the shellingcampaign, causing large-scale damage to civilian objects and property, and civiliancasualties."so In many instances the Human Rights Watch researcher did notfind any evidence of a military objective in the area which was targeted. SlThe Guiding Principles on Internal Displacement have been recognized as animportant tool to protect internally displaced persons by the United NationsGeneral Assembly.52 It states that all authorities shall respect and ensure respectfor their obligations under international law in all circumstances to prevent andavoid conditions that might lead to people being displaced. s3 Saakashvili's inva-43 I NST. FOR WAR AND PEACE REI'., supra note 1; GEOIWIAN HUMAN RIGHTS CENTRE, supranote 41.44 U.N. High Comm'r for Refugees, supra note 13; IN'f'!. CRISIS GROlJJ>, supra note 23, at ii, 3,-4,9-10, 15; AMNESTY IN'!"!., supra note 1, at 5.45 U.N. High Comm'r for Refugees, supra note 13; IN'f'!. CRISIS GROUJ>, supra note 23, at ii, 3-4,9-10, 15; AMNESTY IN'!"!., supra note 1, at 5.46 Georgia Update, Russian Invasion of Georgia: Refugees and Displaced Persons, http://georgiaupdate.gov.ge/en/doc/10006949/IDP%20Update%2021.11.htm(last visited May 2, 2010); U.N.High Comm'r for Refugees, supra note 12.47 AMNESTY INT'L, supra note 1, at 5.48 AMNESTY IN'!"L, supra note 1, at 5.49 HUMAN RIGIITS WATCH, supra note 4, at 38.50 HUMAN RIGJlTS W ATCJI, supra note 4, at 38.51 HUMAN RIGJlTS WATCH, supra note 4, at 38.52 G.A. Res. 60/1 'lI 132, U.N. Doc. Al60/L.l(Sept. 20, 2005).53 U.N. Economic and Social Council, Report of the Representative of the Secretary-General:Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including theQuestion of the Programme and Methods of Work of the Commission Human Rights, Mass Exoduses

232 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWsion of South Ossetia, showing little regard for civilian life, created a hostile environmentwhere civilians were forced to flee. 54 He took no precautions to sparecivilian causalities or adhere to guiding principles of any sort in the shelling ofTskhinvali or the issuance cluster munitions to the soldiers. 55B. MurderMikheil Saakashvili told the Ossetian people that a ceasefire was in place justhours before he ordered Georgian troops to shell their villages. 56 Tskhinvali resident,Aelita Jioyeva, recalled, "no one thought that they would attack us so unexpectedly,at night, when everyone was asleep and when the Olympic Games wereopening in another part of the world. It was such a horrible thing they did. ,,57 TheGeorgian president made false representations to the Ossetians, and then thetroops fired on civilians as they were fleeing the conflict, including an incident ofa Georgian tank firing upon a civilian car. 58Russian President, Dmitry Medvedev, ordered an investigation by the InvestigationCommittee at the General Prosecutor's Office to gather evidence of themurders to ascertain if the actions amounted to genocide. 59 The Norwegian HelsinkiCommittee condemned both sides for using excessive bombing and indiscriminateuse of force against civilians. 60 The disregard on behalf of the Georgianforces prompted the ICC to launch an investigation into the civilian attacks whichoccurred in South Ossetia. 61C. Enforced DisappearanceAs described above Tomaz Kabisov was taken into Georgian custody on August8, 2008 and was last seen on August 10,2008. 62 He was an Ossetian civilianand Displaced Persons, §2, Principle 5, submitted pursuant to Commission resolution 1997139, U.N.Doc E/CN.4/1998/53/Add.2 (Feb. 11, 1998).54 HUMAN Rim rrs W ATCII, supra note 4, at 53-56 (detailing the accounts of civilians who werecompelled to flee and came under attack while doing so).55 HUMAN RIGHTS WATCH, supra note 4, at 64; Assoc. Press, Georgia's Saakashvili CommitsWar Crimes Against Humanity, PRAVDA, Aug. 8, 2008, available at http://english.pravda.rulhotspotsl106045-georgia-0.56 INST. FOR WAR ANI) PEACE REP., supra note 1.57 INST. FOR WAR ANI) PEACE REP., supra note 1.58 INST. FOR WAR ANI) PEACE REP., supra note 1; HUMAN RIGm-s W ATCII, supra note 4, at 53-56; AMNESTY INT'L, supra note 1, at 28.59 Russia Launches Genocide Probe Over S.Ossetia Events, RIANovOSTl, Aug. 14,2008, availableat http://en.rian.rulrussial200808141116026568.html.60 Norwegian Helsinki Committee, Georgia-Russia Conflict: Ethnic Cleansing Continues inSouth Ossetian Conflict Zone in Georgia, http://www.nhc.no/php/index.php?module=article&view=784 (last visited May 2, 2010).61 Int'l Crim. Court, supra note 35.62 HUMAN RlGm-s WATCH, supra note 4, at 85.

THE RUCKUS IN THE CAUCASUS 233who, at the time of his detainment, was walking through a village. 63 Kabisovmanaged to give another prisoner his sister's cell phone number on August 10thand that individual contacted the family upon release. 64 The Georgian authoritiesexchanged thirty-two prisoners with the Ossetians at the end of August butKabisov was not one of them. 65 Georgian authorities have denied that he is intheir custody.66The most recent development of international law in the field of enforced disappearanceis the International Convention for the Protection of All Personsfrom Enforced Disappearance. 67 This persuasive document prohibits enforceddisappearance under any circumstances including war or internal stability.68 Thearrest, detention, and then denial by the Georgian forces that Kabisov is in theircustody or that they know of his whereabouts violated the very first article of theabovementioned convention. 69 Saakashvili has been made aware of this case ofenforced disappearance as the government has had to answer questions from theinternational community about Kabisov's situation. 7oD. ImprisonmentAmnesty International reports that the Georgian forces detained a small numberof Ossetian civilians during the conflict. 71 They provided an account of ayoung man, his wife, and his mother being detained just three days in Tbilisi andGori. 72 This individual told Amnesty International that he was arrested outsidehis home by Georgian troops, but maintained neither he nor his family was mistreatedwhile being detained. 73This is a much different tale from some of the accounts detailed by HumanRights Watch. They reported that Georgia took thirty-two detainees of which itwas not possible to differentiate between civilians and combatants. 74 They interviewedfive of the detainees and determined that at least one of them, Tengiz63 HUMAN RIGIITS WATCII, supra note 4, at 85.64 HUMAN RIGIITS W ATCII, supra note 4, at 8565 HUMAN RIGIITS WATCII, supra note 4, at 8566 HUMAN RIGIITS WATCII, supra note 4, at 8567 U.N. High Comm'r for Human Rights, Int'l Convention for the Protection of All Personsfrom Enforced Disappearance, Art. 1, U.N. Doc. A/611488 (Dec. 20, 2006), available at http://untreaty.un.org/English/notpubI/IV_16_english.pdf [hereinafter UNHCHR).68 UNHCHR, supra note 67. Article 1 reads: 1. No one shall be subjected to enforced disappearance.2. No exceptional circumstances whatsoever, whether a state of war or a threat of war,internal political instability or any other public emergency, may be invoked as a justification for enforceddisappearance.69 HUMAN RIGIITS WATCII, supra note 4 at 85; UNHCHR, supra note 67.70 HUMAN RIGHTS WATCII, supra note 4, at 85.71 AMNESTY IN"r'l., supra note 1, at 47.72 AMNESTY INT'I., supra note 1, at 47.73 AMNESTY IN"r'l., supra note 1, at 47.74 HUMAN RIGIITS W ATCII, supra note 4, at 79.

234 UNIVERSITY OF THE DISTRICr OF COLUMIHA LAW REVIEWBakaev, age sixty-six, was a pacifist on religious grounds, and not an enemy combatant".15 He claimed that the Georgians beat him in the face and on the backwith their fists and gun butts before dragging him away.1 6Human Right Watch gave the account of Sergei Lokhov, an Ossetian, who saidthe Georgians ignored his attempts to explain that he was a civilian, and thenthey beat him until they dislocated his jaw. 77 Lastly, the Georgian Army detainedZaza Lakhtilashvili, who is half Ossetian and half Georgian.1 8 He is mentallydisabled and when the soldiers were asking him his name he attempted to appeasethem (thinking they were Russian) and told them his mother's Russianmaiden name. 79 He also told the soldiers that he had killed four Georgians; thesoldiers then beat him up and detained him at an undisclosed location. 8001. PAST TRENDS IN DECISIONSThe Rome Statute created the International Criminal Court ("ICC") in 1998at the United Nations Conference of Plenipotentiaries on the Establishment ofan International Criminal Court. 81 The ICC is an independent court and is acourt of last resort, hearing serious offenses such as crimes against humanity.82Saakashvili should be tried in the ICC for the atrocities that took place under hiscommand in the August War. The cases relied on in the following analysis arefrom the International Criminal Tribunal for the Former Yugoslavia ("ICTY")and the Human Rights Chamber for Bosnia and Herzegovina. The ICTY wascreated by the United Nations and is governed by the Statute of the ICTY. 83 TheStatute of the ICTY allows the Tribunal to hear the same crimes against humanity,which fall under the Rome Statute. 84 The Human Rights Chamber for Bosniaand Herzegovina was set up by the Dayton Peace Agreement and can also hearcrimes against humanity in accord with the European Convention for the Protectionof Human Rights and Fundamental Freedoms. 85 These judicial bodies' deci-75 HUMAN RIGHTS WATCH, supra note 4, at 79, 83.76 HUMAN RIGHTS W ATCII, supra note 4, at 83.77 HUMAN RIGHTS WATCH, supra note 4, at 79.78 HUMAN RIGHTS WATCH, supra note 4, at 83.79 HUMAN RIGIl'I'S WATCII, supra note 4, at 8380 HUMAN RIGH'I'S WATCII, supra note 4, at 83.81 Int'I Crim. Court - Establishment of the Court, http://www.icc-cpLintlMenuslICCIAboutHhe+CourtlICC+at+a+glance/Establishment+ofHhe+Court.htm (last visited May 2, 2010).82 Int'l Crim. Court - ICC at a Glance, http://www.icc-cpi.intlMenus/ICCIAboutHhe+CourtlICC+at+a+glance/ICC+at+a+glance.htm (last visited May 2, 2010).83 United Nations, Int'I Crim. Tribunal for the Former Yugoslavia, http://www.icty.orglsid/319(last visited May 2, 2010).84 United Nations, Undated Statute of the Int'I Crim. Tribunal for the Former Yugoslavia, http:/Iwww.icty.orglxlfile/Legal%20Library/Statute/statute_sept08_en.pdf ;Rome Statute, supra note 2.85 The Human Rights Chamber for Bosnia and Herzegovina, Annex 6 to the general frameworkagreement for peace in BiH, http://www.hrc.ba/ENGLISH/annual_reportl2002/ANNEX6.HTM(last visited May 2, 2010).

THE RUCKUS IN THE CAUCASUS 235sions should be looked to as precedence, as the ICC has not tried a case such asthe one involving the Georgian forces.A. Forced DisplacementThere are two cases decided by the Trial Chambers of the International CriminalTribunal for the Former Yugoslavia ("ICTY"), which involve the crimeagainst humanity of deportation or forcible transfer of population - forced displacement.86 The first ICTY case involved Vinko Pandurevic, a Lieutenant Colonelin the Bosnian Serb Army ("VRS"), who oversaw the commission ofatrocities upon the Bosnian Muslims in the city of Potocari. 87 He faced sevencharges, including the crime against humanity of forcible transfer under the theoryof command responsibility.88 The VRS under his command went into Potocari,separated the women and children from the men, ages 16-60, and thenexecuted the men. 89 The women and children were placed on buses and taken toanother location. 90 Pandurevic was found gUilty of having "committed, planned,instigated, ordered, or otherwise aided and abetted the planning, preparation, orexecution of a crime against humanity, that is, the forcible transfer of BosnianMuslims from the Srebrenica enclave. ,,91The second ICTY case involved the prosecution of Jovica Stanisic and FrankoSimatovic.92 Stanisic was the Head of the DB, the Serbian State Security Service,and Simatovic was commander of the Special Operations Unit of the DB.93These individuals financed, trained, and supervised special DB officers whoforcefully transferred thousands of non-Serbians from their home regions to differentparts of Bosnia. 94 The ICTY found both individuals, "acting alone or inconcert with members of the joint criminal enterprise, planned, ordered, committedor otherwise aided and abetted the planning, preparation or execution of:deportation, a crime against humanity.,,95The Icry Trial Chamber found all three of these individuals gUilty of forcibledisplacement via Article 28 of the Rome Statute addressing command responsibility.Like these individuals, Mikheil Saakashvili's actions of using the South Os-86 Prosecutor v. Pandurev;c, Case No. ICfV IT-05-86-1 (Feb. 10, 2005), available at http://www.icty.orglxlcases/pandurevic_trbidind/en/pan-lai050303.htm (last visited May 5, 2010); Prosecutorv. Stanis;c, Case No. ICfV IT-03-69 (May 1, 2003), available at http://www.icty.orglxlcaseslstanisic_simatovidind/en/sta-ii030501e.pdf (last visited May 5, 2010).87 Pandurevic, supra note 86, at 'II 'II 1-13.88 Pandurev;c, supra note 86, at 'II 33.89 Pandurevic, supra note 86, at 'II'lI 4-11.90 Pandurev;c, supra note 86, at '11'11 4-11.91 Pandurevic, supra note 86, at 'II 33.92 Slanisic, supra note 86, at 'lI'II 59-60.93 Stanis;c, supra note 86, at 'I'll 1-2.94 Stallisic, supra note 86, at '1'1 59-60.95 Stanisic, supra note 86, at '160.

236 UNIVERsn"Y OF TIlE DISTRICr OF COLUMBIA LAW REVIEWsetian and Abkhazian civilians as pawns in his plan to expose the Russianpeacekeepers as unfit to perform in a neutral capacity, will win him a conviction.96 He showed disregard for civilians in the ordering use of excessive forcewhen invading South Ossetia as evidenced by residential areas being destroyed,97The Georgian president, as head of the armed forces, was aware that these actswere taking place as he issued the troops to advance into South Ossetia on thenight of August seventh after telling the Ossetians that there was a ceasefire justhours earlier. 98 The attacks were a part of a systematic attack with a disregard forcivilian lives, "resulting in large-scale damage to civilian objects and property,and civilian casualties.,,99 Finally, Saakashvili knew that the attack launched inTskhinvali would cause excessive civilian death as he permitted the use of multiplerocket launching systems which use in populated areas is prohibited by internationalhumanitarian law due to their "broad area effect.,,100 Having shown thatSaakashvili should be found gUilty of forced displacement under command responsibility,the crime of murder will next be evaluated.B. MurderIn Prosecutor v. Pandurevic, the ICfY Trial Chamber found Milorad TrbicgUilty of the crime against humanity of murder through the theory of commandresponsibility.101 He was a reserve Captain in the VRS and the direct assistant toLieutenant Drago Nikolic, the Chief of Security of the Zvornik Brigade.102 Thecrimes he was tried for related to the same incidents described above dealing withthe abuses upon non-Serbs in the town of Potocari. 103 Trbic was a security officerwho organized, and detained, murdered thousands of the Bosnian Muslim men(including personally executed Orahovac Muslim men from Srebrenica) fromJuly 13-17, 1995.104In Prosecutor v. Meakic, the ICTY Trial Chamber held six individuals, ZeljkoMeakic, Miroslav K vocka, Dragoljub Prcac, Mladen Radic, Milojica Kos, andMomcilo Gruban, responsible for the crime against humanity of murder undercommand responsibility. 1 OS These individuals oversaw the atrocities that werecarried out upon Bosnian Muslims at Omarska Camp during May of 1992. 10696 IN"r'L CRISIS GROUP, supra note 23, at 7.97 AMNESTY INT'L, supra note 1, at 5, HUMAN RIGlrrs WATCH, supra note 4, at 6.98 INST. FOR WAR AND PEACE REPORTING, supra note 1.99 HUMAN RIGIITS W ATCII, supra note 4, at 6.100 HUMAN RIGIITS WATCH, supra note 4, at 7.101 Stanisic, Case No. ICfY IT-03-69, supra note 86, at Count 4-5 (murder).102 [d. at '1115.103 [d. at '11'11-11.104 [d. at '110.105 Prosecutor v. Meakic et ai, Case No. ICTY 95-4-1, CJl19.5 (Julyl8, 2001), available at http://www.icty.orglx/cases/mejakic/indlen/mea-ii950213e.pdf (last visited May 5, 2010).106 [d. at CJlCJl2.1-3.

THE RUCKUS IN THE CAUCASUS 237Omarska Camp was established after the Muslim residential areas were shelledand the civilians surrendered. 107 While at Omarska, the prisoners were beaten,tortured, raped, sexually assaulted, humiliated, and killed. IOB The individualscharged had varying levels of responsibility but did not personally take part in thekillings.109 The ICfY stated they "are criminally responsible for the acts of theirsubordinates in the murder of Omarska prisoners. ,,110The situation in Georgia was similar, as Georgian forces killed numerous civilianswhile carrying out operations in South Ossetia. lll Their shelling of residentialareas in Ossetian villages, shooting at fleeing civilians, and using prohibitedweaponry in populated areas was a part of a widespread attack on the civilians ofOssetia. 112 Saakashvili most certainly knew that there would be massive civiliancausalities due to his unilateral decision to invade South Ossetia as he had hoursbefore the attack issued a ceasefire and promised the Ossetians "unlimited autonomy."ll3These factors satisfy all the elements needed to convict the GeorgianPresident of the crime against humanity of murder under command responsibility.114Now, Saakashvili's actions will be analyzed in relation to the enforced disappearanceof a South Ossetian civilian.C. Enforced DisappearanceIn a case before the Human Rights Chamber for Bosnia and Herzegovina,Esma Palic brought a claim against the Republika Srpska for the enforced disappearanceof her husband Avdo Palic. 115 On July 27, 1995, Colonel Avdo Palic, acommander in the Army of Bosnia and Herzegovina, was negotiating with BosnianSerbs on United Nations premises when fighting broke out and he was takenprisoner. 116 The Bosnian Serb Army was under the direction of Ratko Mladic atthe time the fighting and subsequent imprisonment occurred. ll7 Ms. Palic initiallybrought the case against both Srpska and Bosnia and Herzegovina; however, the107 [d. at 'lI'J!2.1-2.6.108 /d. at 'J!2.6.109 [d. at 1j('J!4-7.110 Meakic, supra note 105, at 'J!19.5.111 AMNESTY INT'L, supra note ,1 at 5, 10,23-24,27-28,60; HUMAN RIGHTS WATCH, supra note4, at 38-61.112 [d.113 INST. FOR WAR ANI) PEACE REP., supra note 1.114 Rome Statute, supra note 2, at arts. 7, 28.115 Avdo and Esma Palic v. Republika Srpska, Case No. CH/99/3196 (Jan. 11,2001), en, 1-21,available at http://www.hrc.ba/database/decisions/CH99-3196%20Palic%20Admissibi1ity%20and %20Merits%20E.pdf (last visited May 5, 2010).116 [d. at 'J!2.117 [d.

238 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWChamber only found responsibility with Srpska and dismissed the claim againstBosnia and Herzegovina. ltSMs. Palic sought the relief "that the Respondent Party be ordered to provideher with complete and accurate information on her husband's fate.,,119 Ms. Palichad witnesses who confirmed seeing her husband alive, imprisoned by theVRS. 12o The Chamber found that the Republik Srpska was responsible for theenforced disappearance of Mr. Palic under the United Nations Declaration onthe Protection of All Persons from Enforced Disappearance. 121 They awardedMs. Palic a full investigation into the whereabouts of her husband, the immediaterelease of Mr. Palic, and if deceased his remains would be made available, costsfor mental suffering and non-pecuniary damages. 122While the Georgian authorities arrested Kabisov, as witnessed by fellow inmates,they deny he is still in their custody.123 Mikheil Saakashvili knew thatcivilians were being detained as they acknowledged thirty-two individuals were intheir custody, but claimed they were all combatants. 124 The existence of Kabisovand his situation has been brought to the attention of the Georgian government,yet they still have not attempted to remedy the situation. 125 These actions collectivelymeet the elements needed to prove that Saakashvili is guilty of the crimeagainst humanity of forced disappearance. 126 Finally, the crime against humanityof imprisonment, which occurred during the August War, will be proven.D. ImprisonmentIn Prosecutor v. Meakic, the same six individuals mentioned under the murdercharges were found guilty of imprisonment - a crime against humanity.127 TheTribunal's Trial Chamber found them "criminally responsible for their own actsor omissions and for the acts of their subordinates in the unlawful imprisonmentof the prisoners of Omarska."t2S Once again, the six fulfilled a superiorsubordinaterelationship with the guards who carried out the unlawful imprison-118 [d. at Cj[3.119 Avdo and Esma Palic v. Republika Srpska, Case No. CH/99/3196 (Jan. 11,2001), CJI'II 1-21,available at http://www.hrc.ba/database/decisions/CH99-3196%20Palic%2OAdmissibility%20and%20Merits%20E.pdf (last visited May 5,2010).120 [d. at '112-17.121 [d. at Cj[91(3).122 Id .at Cj[91(3)-(13).123 HUMAN RIGIffS WATCII, supra note 4, at 85.124 HUMAN RIGHTS W ATCII, supra note 4, at 78.125 HUMAN RIGHTS W ATe II , supra note 4, at 85-86.126 Rome Statute, supra note 2, Article 7(1)(i); Int'l Crim. Court, Elements of Crimes, supranote 17, at 7(1)(i).127 Meakic, supra note 105, at «j[19.13.128 Meakic, supra note 105, at «j[19.t3.

THE RUCKUS IN THE CAUCASUS 239ment. 129 They had knowledge, due to serving as superiors at the Camp, that civilianswere being held unlawfully. 130 Finally, the six also failed to prevent or punishtheir subordinates for keeping the civilians imprisoned. 13 1There are detailed accounts of the Georgian Army detaining civilians, deprivingthem of their liberty, and in some cases subjecting them to extreme physicalpunishment. 132 Saakashvili, as head of the armed forces who issued the attack,was fully aware of the factual circumstances and the gravity of the conduct. 133The unlawful imprisonment of civilians was another example of the GeorgianPresident's lack of regard for international law and the lives of civilians in SouthOssetia. 134 The Georgian Army admitted to having thirty-two detainees, includingcivilians, they exchanged for their combatants that the Ossetians detained. 135Thus, as the Commander of the Army, Saakashvili should be held accountablefor the crime against humanity of unlawful imprisonment.CONCLUSIONThe events of that took place during the five days of the August War in Georgiawere triggered by the actions of Mikheil Saakashvili. The Georgian Presidentlied to the Ossetian people on national television just hours before he shelledtheir villages. 136 The Georgian Army under his command terrorized the civilianpopUlation of South Ossetia and committed crimes against humanity. The Georgianforces attacked residential areas where there were no military objectives,they fired upon civilians as they attempted to flee, they fired their tanks at civiliancars, they unlawfully imprisoned and beat civilians, they engaged in the enforceddisappearance of a civilian, they forcefully displaced thousands ofOssetians and Abkhazians, and they used prohibited weaponry, cluster munitionsin populated areas. I37 Saakashvili should be held accountable for his actions andtried in the International Criminal Court for the crimes against humanity of murder,imprisonment, enforced disappearance, and forced displacement under Article28 of the Rome Statute, responsibility of commanders and other superiors.129 Meakic, supra note 105, at 'iJ

THE LEGAL PROCESS OF CULTURAL GENOCIDE:CHINESE DESTRUCTION OF TIBETAN CULTUREv.U.S. DESTRUCTION OF NATIVE AMERICAN CULTUREEvan Mascagni*INTRODUCTIONIn the incongruous atmosphere of the Wilshire Hotel in Los Angeles, anextraordinary encounter took place in 1979. During the Dalai Lama's firstvisit to North America, he met with three Hopi elders. The spiritual leadersagreed to speak in only their Native tongues. Through Hopi elder and interpreterThomas Benyakya, delegation head Grandfather David's first wordsto the Dalai Lama were: "Welcome home."tThe culture of Native Americans in the Southwest United States strikingly resemblesthat of Tibetan culture, to which the Dalai Lama belongs. From their useof turquoise to ward off evil spirits, to their connection with the natural worldand desire to live in harmony with the Earth, the TIbetans and Native Americansshare common worldviews and lifestyles that often seem foreign to Western cultures.Yet, not only are there physical similarities between the two cultures, butthey also share a common history of political oppression. As a result of the expansionof their respective powerful governments, both indigenous groups weredisplaced and forced to assimilate into unfamiliar societies: the Tibetans by theChinese, and the Native Americans by the United States. These two governmentsused both laws and public policy to force their ideas and ways of life onto theindigenous people. Both groups have experienced a cultural genocide, resultingin the near extinction of their respective traditions, languages, and populations.However, recent movements by indigenous communities and supportive nongovernmentalorganizations have led to initiatives aimed at developing humanrights declarations that will specifically articulate the rights of indigenous peoples,such as the Native Americans and TIbetans. For example, a working groupof the United Nations ("V.N.") Sub-Commission on the Promotion and Protec-* Evan Mascagni is a third year law student at the University of the District of Columbia DavidA. Clarke School of Law, where he is the Editor-in-Chief of the UDC Law Review. Following his firstyear of law school, Evan spent the summer studying Chinese law at Peking University Law School inBeijing, China. While in China, Evan also spent time in Lhasa, Tibet, and the surrounding areasresearching for this article.1 Antonio Lopez, From the Roof of the World to the Land of Enchantment: The Tibet-PuebloConnection, SmrnlwEsT CVUERI'ORT, INC. (2002), http://www.freesangha.com/forumslindex.php?topic=836.0;wap2.

242 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWtion of Human Rights recently developed a draft entitled Declaration of theRights of Indigenous Peoples, which was approved and submitted to its parentbody, the Commission on Human Rights. 2 Similar work is being done within theOrganization of American States and the Inter-American Commission onHuman Rights? Collectively, these initiatives are part of the international humanrights system's response to the demands of communities like the Native Americansand Tibetans, who seek to restore, maintain and pass on their distinctivecultural attributes and sense of community to future generations.This article explores the legal processes that led to oppression of these groupsand the parallels between U.S. and Chinese policies that have led and continue tolead to the destruction of the Native American and Tibetan ways of life, respectively.Additionally, this article examines how both the U.S. and China have respondedto international rights declarations and treaties in their treatment ofindigenous peoples. Finally, this article concludes by considering how internationalhuman rights law can be used to improve the situations of these nations'indigenous peoples, the Native Americans and Tibetans.I. BACKGROUND: DISTORTIONS OF HISTORY[The Indians] are so naive and so free with their possessions that no onewho has not witnessed them would believe it. When you ask for somethingthey have, they never say no. To the contrary, they offer to share with anyone.... They do not bear arms, and do not know them, for I showed thema sword, they took it by the edge and cut themselves out of ignorance. Theyhave no iron. Their spears are made of cane .... They would make fineservants .... With fifty men we could subjugate them all and make them dowhatever we want.-Christopher Columbus' journal shortly after arriving in the Americas 4This image of Christopher Columbus is vastly different from that found inmost U.S. history textbooks, which typically portray a courageous visionarywhose navigational skills led him to innocently "discover" the Americas. Such adistorted view of Christopher Columbus as a heroic friend of the Native Americansis quite different from what his personal journal reveals. Similar misconceptionsare found in stories about Native Americans welcoming the pilgrims and theallegedly "peaceful" relations between the two groups. For example,2 Draft United Nations Declaration on the Rights of Indigenous Peoples, The Sub-Comm'n ofPrevention of Discrimination & Prot. of Minorities, Rep. on its 46th Sess., U.N. Doc. E/CN.4/Sub.211994156 (1994).3 Annual Report of the Inter-American Commission on Human Rights, 1996, Inter-Am.Comm'n H.R., Report on its 95th Sess., O.A.S. Doc. OEA/Ser.UVIII.95, Doc. 7 rev., ch. IV (Mar. 14,1996).4 See HANS KONING, COLUMBUS: HIS ENTERPRISE (1992).

THE LEGAL PROCESS OF CULTURAL GENOCIDE 243Thanksgiving is a holiday that celebrates how Pilgrims, aided by the friendlyWampanoag Indians, survived in a new and harsh environment, leading to a harvestfeast in 1621 following the Pilgrims first winter. As scholar Robert Jensenwrites:Some aspects of the conventional story are true enough. But it's also truethat by 1637 Massachusetts Gov. John Winthrop was proclaiming athanksgiving for the successful massacre of hundreds of Pequot Indian men,women and children, part of the long and bloody process of opening upadditional land to the English invaders. The pattern would repeat itselfacross the continent until between 95 and 99 percent of American Indianshad been exterminated and the rest were left to assimilate into white societyor die off on reservations, out of the view of polite society .... Simply put:Thanksgiving is the day when the dominant white culture (and, sadly, mostof the rest of the non-white but non-indigenous population) celebrates thebeginning of a genocide that was, in fact, blessed by the men we hold up asour heroic founding fathers. 5Distorting facts to fit with dominant governments' views of history is notunique to the United States. In China, the 1949-50 invasion and subsequent occupationof Tibet by the People's Liberation Army ("PLA") is now called "ThePeaceful Liberation of TIbet" in official Chinese historical texts. Yet official Chinesestatistics record at least 87,000 deaths in the 1959 Tibetan uprising againstthe Chinese occupation, while TIbetan and international sources suggest as manyas 430,000 deaths. 6Further, the Chinese claim that the "17 Point Agreement," signed into law bythe Communist Government and Tibetan officials in May 1951, "enjoyed the approvaland support of the people from every ethnic group in Tibet. ,,7 This statementwas clearly misleading, as shown by the scores of TIbetans who escaped tothe mountains to become guerilla warriors and the thousands of Eastern Tibetanswho fled west to Lhasa to escape Chinese persecution. s Discrimination and thesuppression of traditional practices also drove the 14th Dalai Lama into exile innorthern India. The subsequent Chinese crackdown in TIbet was catastrophic. 95 Robert Jensen, No Thanks to Thanksgiving, ALTERNET (Nov. 23, 2005), http://www.alternet.orglstory128584/.6 Dispossessed: Land and Housing Rights ill Tibet, TIBETAN C ... {. FOR HUM. Rrs. & DEMOC­RACY (2002), http://www.tchrd.orglpublications/topical_reports/dispossessed-land_and_housin!Lrights-2002/.7 Historical Relations Between Tibet alld Chilla, FREE TIBET, http://www.freetibet.orglaboutlhistorical-relations(accessed by searching for historical relations between Tibet and China).8 TIBETAN CTR. FOR HUM. Rrs. & DEMOCIMCY, supra note 6.9 Leh Old Town Conservation Project, TIBET HERITAGE FUN!>, http://www.tibetheritagefund.orglpages/projects/ladakh/leh-old-town.php (last visited Nov. 28, 2010).

244 UNIVERSfl"Y OF TIlE DISTRICT OF COLUMBIA LAW REVIEWII. LAND LAWSThe United States has been a member state of the United Nations since 1945.After much debate and over twenty votes on whether or not the People's Republicof China ("PRC") should join the U.N., the PRC finally became a memberstate in 1971. At that time, the United States unsuccessfully tried to exclude thePRC, but their motion failed and the PRC was admitted on a vote of 76 in favor,35 opposed, and 17 abstentions. toThe International Labor Organization ("ILO") is a United Nations-specializedagency that promotes social justice and internationally recognized human andlabor rights. In 1959, the ILO adopted ILO Convention No. 107 Concerning theProtection and Integration of Indigenous and Other Tribal and Semi-Tribal Populationsin Independent Countries, its first multilateral treaty that exclusively addressedthe issue of indigenous rights. I I The treaty was eventually revised byConvention No. 169 Concerning Indigenous and Tribal Peoples in IndependentCountries and entered into effect in 1991. Among other things, Convention No.169 requires that indigenous peoples be consulted whenever laws or regulationsaffecting them are considered and that special measures be adopted to shieldtheir interests. 12 Specifically, Article 14 of the Convention acknowledges "[t]herights of ownership and possession of the peoples concerned over the lands whichthey traditionally occupy.,,13 However, the following land laws imposed by boththe U.S. and China call into serious question their conformity with ConventionNo. 169. Additionally, while nations like the United States and China are obligatedto report on their implementation of Convention No. 169's provisions,there is no specific mechanism to oversee compliance with Convention No. 169.This essentially allows both groups in power the ability to pursue their own agendas,often contrary to the rights and interests of their respective native peoples,while at the same time claiming that they are acting within the scope of internationalguidelines.10 1971 Year in Review, UNITED PRESS IN'r'I., INC., http://www.upi.com/AudioNearjn_Review/Events-of-1971112295509436546-1I#title (last visited Nov. 28, 2010).11 See LUIs RODlUGUES-PINERO, INDIGENOUS PEOPLES, POSTCOI.ONIAI.ISM, ANI) INTERNA­TIONAL LAW: THE ILO REGIME, 1919-1989 (2005).12 RICIIARD B. LU.I.ICII ET AI.., INTERNATIONAL HUMAN RIGHTS- PROBLEMS OF LAW, POI.lCY,AND PRACI'ICE (4th ed. 2006).13 Indigenous and Tribal Peoples Convention, U.N. HCHR, Convention No. 169 (1991).

THE LEGAL PROCESS OF CULTURAL GENOCIDE 245A. HistoryTIbetans do not have the right to say anything on the matter since the landbelongs to the country of China.-Communist Party of China ("CPC") to Tibetansprotesting against a mining project in MeldrogonkarCounty, Lhasa municipality, TAR14After the CPC invaded and took control of TIbet, one of its first orders ofbusiness was marking the territory that would become the "TIbet AutonomousRegion" ("TAR"). Historically, TIbet consisted of three provinces: U-Tsang(west); Amdo (northeast); and Kham (southeast). When the CPC took over TIbet,it immediately began rewriting maps and history. The Party named U-Tsangas the official "TAR," when more TIbetans actually lived outside the province. Itis surely no coincidence that the Kham and Amdo (the two Tibetan provinces notincluded in the CPC's official "TAR") contained most of the fertile agriculturalland, forests, and river resources of Tibet. 1s This redrawing of territorial lines wasthe first official move by the Chinese to strip the TIbetans of their land andresources.Similarly, the United States shares a long history of removing Native Americansfrom their indigenous land and displacing them to areas where they couldnot sustain their traditional ways of life. For example, in 1823 following the defeatof the Seminoles in the Florida Wars, the Treaty of Camp Moultrie was signed,forcing the Seminoles to leave northern Florida and all coastal areas and to relocateto a reservation in central Florida. 16 This relocation forced the Seminoles toabandon their traditional way of life along the north Florida coast and adapt tothe inner swampland unsuitable for agriculture and the hunting of wild game. Itwas U.S. policy that directly led to the Seminoles' forced abandonment of landand cultural tradition, as was the case with other Native American tribes whowere similarly subjugated in accordance with government interests. While thisspecific treaty occurred long before the enactment of Convention No. 169, itnonetheless provides an example of how the United States has been able to usethe law to pursue an agenda contrary to the interests of Native Americans. Moreover,even after Convention No. 169, Native Americans today are still facing similarforms of land law discrimination by the United States, which has consistentlybeen diminishing their access to land since the 18008.14 Human Rights Update and Archives, TIBETAN erR. FOR HUM. RTS. & DEMOCRACY (Apr.1997). http://www.tchrd.orglpublications/hcupdates/1997/.15 INTERNATIONAL CAMPAIGN FOR TIBET ANI> THE INTEI{NATIONAL HUMAN RIGI-HS LAWGROlH., TilE MYTII OF TInETAN AUTONOMY: A LEGAL ANALYSIS OF TilE STATlIS OF TInET (1994).16 CIIAI~LES J. KAI'I'I.ER, LAWS ANI> TREATIES 399 (1904).

246 UNIVI ~ I(SITY 01 ' TI l E DISTI{I( · r ()F o lI.lJ/I.·1 III A L AW RI ~ VIEWB. Present: 7"e Grass/and LmvIn 1985 the PRC put into errcct -nlC G rassland Law o f the PRC, which IS 111essence an attempt by th e PRC to settle Tibetan nomads with the alloca ti on o rfixed ponio ns o f land. According to the Chinese, the purpose of the G rasslandLaw was to "enh ance the prosperity o f local economics of national autonomousareas.,, 17 Article 4 o f the Grassland Law sta tes that grassland is owned by thestate, but county governments are auth orizc cl to contract o ut po rti ons o f the lane!" to ind ivid uals fo r pursuits o f an imal husbandry. illS Numero us internationalrangeland experts have concluded that the Grnssland Law's attempt to transformth e traditional communal land tenure system o f the Tibetans to individual householdcon tracts is detrimental not only to the ecology of Tibet's land but also toth e livelihoods o f the TIbetan nomads. 19 ll,ese selliements cause land degradation thro ugh overgrazing, in turn leading to an im poverishment of no madicTibetans. ·l1lCse tnlditional no mads are typically le ft destitute or even ho melessas a resuit of this law, especially those who know no o ther way o f life. Forexample:High mountain villages have been a llocated the high land surrounding themwhil e low·lying vi llages arc given low land. Low-lying vill agers then have noaccess to the high grazing lands in warmer months, and high-land villagershave no access to low-lying land in the wint er. ·l1lC seasonal ro tation essentialfor crfective nomadism has thereby been destroyed 20A nother se rio us pro blem with the G rassland Law is cont ain ed in A rt icle 7,which permits grassland to be seized for state constructio n. A rticle 7 states, "[iJfgrasslands in national autonomous areas are to be requisitioned or Llsed for stateconstruction, due consideration shall be given to the interests o f the na tional autonomousareas and arrangements made in favor of the economic developmento f those £1reas. ,,2 1 ~nli s article ultimately permits the Chinese government to removenomads from the land it wishes to develop and to move them to fixedallocations o f land upon which they must settle and adapt to an unfamiliar way o fli fe . Some recent examples of this process arc the bui ldi ng o f th e Qinghai-Tibe lrailway, th e west-to-cast gas pipeline, and the west-to-east electricit ytransmissio n.17 CH INA.ORG.eN. Grassllllld LtllI' of the People's I?epllblic oJ Chil/{/, M U D ANJ1AN(i ACO ltl .f'l Jl.Tl)HI\1. RI :(,I.AMATION B1 IHEAU (adopted on June t8. 1985), http://l11djn kj .c hina.com.cn/c nglish/cnvirollmcnl134338.hl m.t8 trl.t9 Camill e Ri chard, /?allgeland Poli ch:~' ill 'he Eastern Ti/)eftlll !'Ialcall: Impacts of Chilla'sGnus/lind Lmv 0 11 {'aslOralism {Il1d the L(III(/sc(lpe. Flu 'l; TI1I1 ~T (2()()~). http://www.frcctibeLorglabout/rural-society.20 TIIIFTAN em. I 'OR '·I UM AN RIGII'l'S & DI'MO(,IM{,Y. slIpra note 6.21 M U D ANJI ANG A(;ltJ('IJI.TUI(,\I. RI :, ('l .A~IA'I'ION B tJ R!:t\U, SlIpra note 17.

THE LEGAL PROCESS OF CULTURAL GENOCIDE 247The United States similarly believed that Native American tradition of communallyowned property was a major obstacle to their assimilation. The GeneralAllotment Act of 1887, also known as The Dawes Act, was enacted on February8, 1887 to address this issue. The Act authorized the Bureau of Indian Affairs("BIA") to divide Native American lands in the Oklahoma area and allocateparcels of 160 acres to families and 80 acres to single individuals 18 years andolder who were then granted U.S. citizenship.22 This law was intended to assimilateindigenous peoples, who were expected to become farmers and to embracean agrarian lifestyle as property owners. While this policy did effectively force theNative Americans to adopt a Western lifestyle, it had a negative impact on theNative Americans' sense of community and right to self-government, helping tostrip them of their traditional identity and culture.The Tibetans' and Native Americans' analogous struggle to adjust to the unfamiliaridea of private land ownership (as opposed to communally held property)can be summarized by a farmer from Ngamring County, Shigatse Prefecture,TAR, when he expressed his concerns about the introduction of land distributionto the region:My greatest fear is that this type of land redistribution could be the cause ofmany disputes and soon people will start saying "my land, your land" whichwas totally unheard of in earlier times. Such actions may sound superficialbut the Chinese do not make policies for no reason. Very often such policiesact as a fa~ade for the actual goal of destroying communal harmony.23Removing indigenous people from their traditional lands also serves powerfulgovernmental interests by creating room for "development" and "popUlationtransfer," which are both addressed in the next section.III. IMPERIALIST IMMIGRATION: DEVELOPMENT & POPULATION TRANSFERThe United Nations Economic and Social Council: Commission on HumanRights, issued a report in 1997 entitled FREEDOM OF MOVEMENT: Humanrights and popUlation transfer- Final report of the Special Rapporteur, Mr. Al­Khasawneh. 24 It stated the following regarding popUlation transfers:The combined application of self-determination, equality and non-discriminationof any kind in the enjoyment of economic, social and cultural rightsmeans that development, as a right of the people, must be pursued in theinterest of all the people belonging to a State, and that the pursuit of developmentgoals which have the effect of transferring selected or targeted pop-22 FELIX S. COllEN, FELIX S. COllEN'S HANI>BOOK OF FEI>ERAL INDIAN LAW (1971).23 TIBETAN erR. FOR HUMAN RIGHTS ANI> DEMOCRACY, supra note 14.24 U.N. CHR, FINAL REI'ORT OF THE SPECIAL RAPPORTEUR ON HUMAN RIGHTS ANI> POPULA­TION TRANSFER, E/CN.4/Sub.211997/23, paragraph 51 (1997).

248 UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWulation without their consent, or demographic manipulation by implantingsettlers, would be a breach of economic self-determination and the equalityof peoples within a State. 25In the mid-1980s, the Beijing government began to encourage Chinese workers tomigrate to Tibet. In 1984, The Second Work Forum announced new developmentprojects in Tibet, which resulted in over 60,000 Chinese laborers migrating toTibet to work on these projects. 26 Deng Xiaoping, former Secretary General ofthe Chinese Communist Party, openly discussed China's new policy in Tibet:Tibet is a region with a sparse population and has a vast expanse of land.The more than two million compatriots of the Tibetan nationality alone areinsufficient for construction .... Some more Han people there will be conduciveto the development of the local nationality economy. This is not abad thing .... 27While it may not be a "bad thing" for the Chinese, this development policy is asource of great concern for most Tibetans. The continually growing population ofChinese transferred into Tibet has reduced the native people to a minority groupin their homeland. The recent construction of the Qinghai-Tibet railway hasmade it much easier and more affordable for Chinese people to migrate to Tibetand marginalize the Tibetan people by gaining "control in all spheres of economic,social, and politicallife.,,28This vast popUlation transfer is further facilitated by "special allowances" thegovernment offers to Chinese people as incentives to settle in Tibet, including:[H]igher salaries and retirement pensions for government cadres; helpingcadres to obtain housing, schooling and employment for their dependents;more relaxed family planning regulations (compared to the one-child policywhich prevails through urban China); favorable tax investment policies forprivate entrepreneurs; increased research funds and opportunities for scientificor social personnel; the retention of benefits available in their previouswork positions or places of origin, including housing and welfare benefits.-Speech by Chairman Ragdi, chairman ofNational People's Congress Standing Committee2 9These incentives have put the Tibetans at a clear disadvantage in all realms oflife. Tibetans now face discrimination in employment, education, health, andhousing, as illustrated by increasing unemployment figures among the TibetalJ.25 [d. (emphasis added).26 TmETAN Cm. FOR HUM. RTS. & DEMOCRACY, supra note 14.27 [d.28 Human Rights 96 Report, CENT. TIBETAN ADMIN. (1996), http://www.tibet.netlen/index.php(last visited Nov. 28, 2010).29 TIBETAN Cm. FOR HUM. Rrs. & DEMOCRACY, supra note 6.

THE LEGAL PROCESS OF CULTURAL GENOCIDE 249people. 3o This process increasingly denies native Tibetans the right to self-determination.Moreover, the effect of the implantation of settlers has been to furtherremove control of the TIbetans.The United States, under President Andrew Jackson, used similar techniquesto marginalize the Native Americans and move white settlers onto their land.When discussing how he was successful in obtaining the Native Americans' "consent"to certain land treaties, Jackson stated the treaties would not have beensuccessful had his administration not "addressed [itself] feelingly to the predominantand governing passion of all Indian tribe, i.e., their avarice or fear.,,31 Jacksonencouraged white squatters to move into Native American lands and thenproceeded to tell the Native Americans that the government could not removethe whites. He would ultimately leave them with two options: cede their lands orbe wiped out completely.32Several examples in TIbetan history and Native American history exemplifythe effects of population transfers on native peoples, raising serious concernswhen analyzed in the context of the United Nations Commission on HumanRights' 1997 report on population transfer.A. The Gold Rush ExampleIn the 1990s, the Chinese arrival into TIbet was escalated by a gold rush inQinghai (Amdo). At a PRC Conference held in Lhasa, it was noted, "in Gansuand from Tso-ngon province to the districts of the west of Nagchu in central TIbetthere are over 12,000 [Chinese] gold miners.,,33 Yet Tibetans have made it clearthat they oppose the environmental destruction of their land caused by mining.The Central Tibetan Administration in Dharamsala emphasized that mining isnot "development," but is simply "resource extraction.,,34 However, the Chinesehave simply chosen to ignore the Law of the People's Republic of China on theEnvironmental Impact Assessment, adopted in 2002 (effective 2003). Article 1 ofthis law states that:The present Law has been enacted for the purpose of carrying out the strategyof sustainable development, [to] prevent the unfavorable impacts ofprograms and constructions projects upon the environment after they are30 [d.31 MICIIAEI. RaGIN, FATIIERS AND CIIII.DREN: ANDREW JACKSON AND THE SlJIUUGATION OFTilE AMERICAN INDIAN (1975).32 [d.33 Annual Report, 1997 -China in Tibet: Striking Hard Against Human Rights, TmETAN em.FOR HUM. Rrs. & DEMOCRACY (1997). http://www.tchrd.orglpublicationslannuaI3eportslI997/.34 CENT. TIBETAN ADMIN •• supra note 28.

250 UNIVERSITY OF TIlE DISTRICr OF COLUMBIA LAW REVIEWcarried out, and [to] promote the concerted development of the economy,society and environment. 35In the gold mining mountains of Tibet, "an estimated 200 tons of rock yield 1ounce of gold, 80% of which are used for nonessential applications such as jewelry.,,36Additionally, large amounts of toxic cyanide, the chemical being used bythe gold mining industry in Tibet, are polluting local rivers, yet the Chinese governmentignores the grave downstream environmental risks. 37 The cyanide leakageaffects not only the native Tibetan people, who must continually relocate aslarger areas of Tibet are mined, but also the migrant Chinese workers who areexposed to and suffer from their dangerous work environments. 38While the current gold rush in Tibet has not yet escalated into a crisis, one cananticipate a likely future by looking at the path of the gold rush in the UnitedStates. While over 150,000 Native Americans lived sustainably in California priorto the gold rush, by 1870 (only 22 years after James Marshall discovered gold innorthern California), there remained an estimated native population of only31,000. 39 While most Native Americans perished from diseases brought by the"4gers," many Native Americans were also removed from their lands, enslaved,and even brutally massacred. 40 In January of 1851, California Governor Peter H.Burnett even promised the California legislature that "a war of exterminationwill continue to be waged between the two races until the Indian race becomesextinct. ,,4 ILike the process currently underway in TIbet, the California gold rush saw thedestruction of much of its local environment. Gold miners in California removed12 billion tons of earth excavating riverbeds and blasting apart hillsides. The minersalso used mercury to extract gold from the ore, dumping over 7,600 tons ofthe toxic chemical into rivers and lakes. 42 In both the U.S. and China, economicinterests have seemingly superseded the livelihoods of indigenous peoples as wellas environmental sustainability.IV. CULTURE I RELIGIOUS LAWThe United Nations Convention No. 169's preamble acknowledges "the aspirationsof [indigenous] peoples to exercise control over their own institutions,35 Law of the People's Republic of China on the Environmental Impact Assessment, CHINAENVIL. LAW (Sept. 1, 2003), http://www.chinaenvironmentallaw.com/wp-contentJuploads/2008/03/environmental-impact-assessment-Iaw.doc.36 T ASHI TSERING, TIBET'S GOLI) RUSII IN THE INTERNATIONAL MARKET (2006).37 Jd.38 Scurr LECKIE, DESTRlJCnON BY DESIGN (1995).39 1.S. HOI.II)AY, RUSH FOI{ RICIIES: GOLD FEVER ANI> TilE MAKING OF CAI.IFORNIA (1996).40 Id.41 Id.42 Id.

THE LEGAL PROCESS OF CULTURAL GENOCIDE 251ways of life and economic development and to maintain and develop their identities,languages and religions, within the framework of the States in which theylive."43 Article 8 of the United Nations ILO Convention No. 169 goes even furtherand states that indigenous peoples "shall have the right to retain their owncustoms and institutions, where these are not incompatible with the fundamentalrights defined by the national legal system and with internationally recognizedhuman rights.,,44 However, an examination of the ways the U.S. and China havehandled the religious and cultural views of the Native Americans and Tibetanscalls into serious question how well these two U.N. member states uphold thedeclarations in Convention No. 169.Both governments were and continue to be quick to judge the indigenous lifestylesof the native peoples they sought to assimilate. Thomas Jefferson wasknown for saying the best way to deal with the Native Americans was to bringthem into "civilization. ,,45 President Andrew Jackson echoed this message in hisfirst annual address to Congress when he stated, "[f]or Indians, it will perhapscause them, gradually, under the protection of government and through the influenceof good counsels, to cast off their savage habits and become an interesting,civilized, Christian society.,,46There has been no attempt by either government to try to understand the indigenouspeoples' way of life. Recently in China, for example, State Order No.5:Management Measures for the Reincarnation of Living Buddhas in Tibetan Buddhism,was passed by the State Administration of Religious Affairs. The lawstates in short that the Chinese government must approve all reincarnated TibetanBuddhist lamas. 47 This law is a deliberate attack on the history and traditionof Tibetan Buddhism and an attempt to undermine the power of the exiledfourteenth Dalai Lama.The concept of reincarnation in Tibetan Buddhism is an essential part of thereligion and is crucial to understanding the real implications of this law. Since the14th century, Tibetans have believed that enlightened leaders return to thehuman world in the same mind-consciousness but in a new physical body. Forexample, the current Dalai Lama, Tenzin Gyatsowho, is the 14th reincarnation ofthe spiritual leader of Tibetan Buddhism. Through State Order No.5, the Chineseare attempting to destroy the tradition of identifying new, reincarnatedlamas.43 U.N. HCHR, supra note 13.44 Id.45 JOEL H. SPRING, TilE ClILTURAI. TRANSFORMATION OF A NATIVE AMERICAN FAMII.Y ANI)ITS TRIBE, 1763-1995 (1996).46 President Andrew Jackson's Case for the Removal Act: First Annual Message 10 Congress, BDec. IB29, available at http://www.mtho)yoke.edu/acad/intrellandrew.htm.47 State Order No.5: Management Measures for the Reincarnation of Living Buddhas in TibetanBuddhism (2007), http://www.freetibet.orglaboutlorder-number-5.

252 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWThis process began in May 1995, when the 14th Dalai Lama recognized sixyear-oldGendun Choekyi Nyima as the 11th Panchen Lama. Immediately thereafter,Chinese security personnel took Nyima from his home on May 17, 1995,and he has not been seen since. 48 After international uproar, the Chinese governmentdecided to change the law so it would have direct influence in the reincarnationprocess. Specifically, in State Order No.5, "those with particularly greatimpact shall be reported to the State Council for approval. ,,49 The Order alsoimposes criminal sanctions on anyone, including the exiled Dalai Lama, who participatesin the location and recognition of reincarnates. It states that "no groupor individual may without authorization carry out any activities related to searchingfor or recognizing reincarnating living Buddha.,,5oThis Order not only addresses the reincarnations, but also places further demandsand restrictions on all TIbetan religious figures (monks, nuns, etc.). Article1 states that the purpose of this Order is to "protect the principles of the unificationof the state. ,,51 In TIbetan monasteries, Patriotic Education programs requirereligious figures to say that TIbet has always been a part of China and denouncethe 14th Dalai Lama. 52 Further, Article 12 ensures state control over the religiousteachings, dictating that "the management organization at the monastery where[a monk] is registered shall formulate a training plan, recommend a scriptureteacher and submit the plan [for official review]."s3 Failure to comply with thislaw results in the criminal prosecution of those who question Chinese policies inTibet.All articles of this law are an overt attempt by the Chinese government to usethe influence of Tibetan religious figureheads to maintain control over the TIbetanreligious establishment and people. The Chinese government's actions suggestthe view that TIbetan Buddhism is a potential threat to the authority of thestate and the "unity" of the PRC, and therefore seeks to ensure that all religiousheads are loyal to China. 54Like the Chinese government's actions, the United States also took legal measuresto control the Native American population and conduct internal affairs tofurther consolidate power over their everyday lives. Once Andrew Jackson waselected president, Alabama, Mississippi, and Georgia began to pass laws to extendstate rule over the Native Americans. "These laws did away with the tribe as48 Gedhun Choekyi Nyima the Xltlz Pane/,en Lama Turns 18: Still Disappeared, TIlE BUDDlIISTClIANNEI. (2007), http://www.buddhistchannel.tv/index.php?id= 70,4013,0,0,1,0.49 State Order No.5, supra note 47.50 Id.51 Id.52 New State Regulations on Recognition of Tibetan Reincarnates, INT'L CAMPAI(jN FOR TIBETDElJTSCllLAND E. Y. (2007), http://www.savetibet.de/.53 State Order No.5, supra note 47.54 Irn'L CAMPAIGN FOR TIBET DEUTSCIILAND H.Y., supra note 52.

THE LEGAL PROCESS OF CULTURAL GENOCIDE 253a legal unit, outlawed tribal meetings, took away the chiefs' powers, made theIndians subject to militia duty and state taxes, but denied them the right to vote,to bring suits, or to testify in court.,,55 The United States was as eager as today'sChinese government to meddle in the affairs of indigenous peoples and to bantraditional aspects of their culture, such as tribal meetings. Like the Tibetan Buddhists,the Cherokees in Georgia followed a policy of nonviolence, "though theirproperty was being taken, their homes were being burned, their schools wereclosed, their women mistreated, and liquor was being sold in their churches torender them even more helpless.,,56 Unfortunately, this peaceful and nonviolentway of life is arguably what enabled the U.S. and Chinese to consolidate powerover the respective indigenous groups.v. IGNORING THE RULE OF LAWThe United States has persistently encouraged the Chinese to adopt a politicalsystem that follows the rule of law. When former U.S. President Jimmy Carterspoke at the China University of Political Science and Law, he noted how hewould like to see the dreams of former Chinese political leader Sun Yet-Sen fulfilled:"a unified, peaceful and democratic China to be governed by the rule oflaw.,,57However, in a historical context, it has often been the case that the U.S. ignoredthe rule of law in order to carry out its goals contrary to those of the NativeAmericans. Likely, the most well known example of this was the United StatesSupreme Court case of Worcester v. Georgia. 58 This case arose following the passingof a Georgia state law in 1832 that required all white people living withinNative American territory to obtain a state license and to take an oath of allegianceto the state of Georgia and the United States. Several white missionariesthat had been living in the Cherokee territory ignored the orders of the new lawand were arrested and sentenced to hard labor upon their refusal to leave theterritory. One of the missionaries, Samuel Worcester, was particularly targetedbecause of his support of Cherokee resistance to the U.S. Indian Removal policy.Because of his political association, Worcester knew that if he applied for one ofthe state licenses, he would be denied. He therefore filed suit against the state ofGeorgia questioning the legitimacy of the new law following his arrest. 59The case eventually made it to the U.S. Supreme Court, where Chief JusticeJohn Marshall wrote the opinion for the majority. The Court held that NativeAmerican tribes were "dependent domestic nations" with rights to lands they did55 HOWARD ZINN, A PEOJ>l.E'S HISTOItY OF TilE UNITED STATES: 1492-PRESENT (2003).56 [d.57 Jimmy Carter, Rule of Law and Social Harmony in China, CIIINA EI.ECTIONS & GOVERN.ANCE (2007), available at http://chinaelectionsblog.netl?p=7912.58 Worcester v. Georgia, 31 U.S. 515 (1832).59 Zinn, supra note 55.

254 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWnot voluntarily cede to the United States. 60 Marshall noted that the law underwhich Worcester was jailed violated the treaty with the Cherokees, which, per theConstitution, was binding on the states. 61Nonetheless, the state of Georgia ignored the Supreme Court decision, as didthe federal government. It is reported that after the Supreme Court issued itsdecision, President Andrew Jackson stated, "John Marshall has made his decision;now let him enforce it.,,62 Federal troops began expelling the Cherokeetribes, ignoring the Court's decision, and Georgia eventually put the Cherokeeland on sale and used the militia to crush Cherokee resistance.Given the United States history of ignoring the rule of law, it seems hypocriticalthat the U.S. would now try and pressure China into following internationallaw. Yet, as Jimmy Carter also noted, "I have seen China make tremendous progressin economic growth, rule of law, transparency, and democracy.,,63 This alleged"progress" is nevertheless difficult to observe in light of China's disregardfor the rule of law in its Tibet policy. For example, in 1989, during a period ofmartial law in Lhasa, all Tibetans without residence permits (an estimated 40,000)were forcibly removed and returned to their birthplace villages. 64 During thistime, there were also numerous police raids in which private households in urbanareas of Tibet were invaded and any "separatist" items (e.g. pictures, writings,videos of Dalai Lama) seized. "These intimidatory searches, whichever their motivation,are clear breaches of the human right to privacy which is integral to theright to security of tenure .... [and] is also guaranteed in the Article 10 of China'sConstitution. ,,65 China has continually failed to respect the rule of law with regardto Tibetan policy and is following the example set by the United States withregard to its treatment of Native Americans. The issue then becomes how to getboth the United States and China to adhere to international human rights lawand address these serious issues that Tibetans and Native Americans continue toface. The following section examines the methods and tactics that can be used toimprove the situations of both the Tibetans and Native Americans.VI.CONCLUSIONS AND SOLUTIONSOn Tibet, President [Obama] said that human rights are an essential aspect,central component, of U.S. foreign policy; that we are going to speakfrankly about differences as well as about areas of cooperation .... But this60 Worcester v. Georgia, supra note 58.61 Id.62 PETER IRONS, A PEOPLE'S HISTORY OF TilE SUPREME COURT (2006).63 Jimmy Carter, supra note 57.64 An Analysis of the Situation Regarding the Right to Adequate Housing in Tibet, HABITATINT'L COALITION (1992).65 Six Years for Watching Dalai Lama Video, TIBETAN erR. FOR HUM. Rrs. & DEMOCRACY(2001).

THE LEGAL PROCESS OF CULTURAL GENOCIDE 255is an area of difference. He expressed concern over the human rights situationin Tibet.-Statement from the White House duringthe G20 summit in London, 1 April 2009While the White House states that human rights are an essential aspect of U.S.foreign policy, there is no mention of domestic policy regarding the human rightsabuses that have affected and continue to affect Native Americans at home. Additionally,as of yet, President Obama's words regarding Tibet have been followedwith little or no action. In the same way that the United States used thelaw to further its economic and political interests against Native Americans, thePRC has used the law and continues to commit grave human rights violationsagainst the Tibetans' way of life. Since the "Peaceful Liberation of Tibet" in 1949-50, Tibetans have continually been denied ownership and effective control oftheir land. "Commencing from China's redrawing of the map of Tibet, continuingwith the mass confiscation of land, through to the dictation of resource-managementdirectives and policies, Tibetans have little say in the use of their traditionallands. ,,66 This land abuse is demonstrated through the destruction of ecologicallysustainable land management systems by the Chinese government's implementationof new "development" laws. Tibetans are being removed from lands thatthey have lived on for centuries using a process that remarkably emulates that ofNative American removal policies put in place by the United States.Along with the inequality and discrimination that exists in both land and housingdevelopments is the continuous migration of Chinese settlers into Tibet. Thismovement results in Chinese control of access to most resources because ultimately"Tibetans simply do not have the same access to services as Chinese.,,67The Chinese destruction of Tibetan culture mirrors the same path that the UnitedStates pursued to assimilate the Native Americans. The following examines whatthe future entails for Tibetans and how U.S. policy can help use internationalhuman rights law to engage the Chinese in decreasing its human rights violations.A. The Future and Role of International Human RightsIn his lecture, A United States Human Rights Policy for the 21st Century, HaroldHongju Koh lays out his ideas for how the United States can promote internationalhuman rights across the globe. 68 Koh begins with a discussion about thedevelopment of international human rights law:66 TIBETAN CTR. FOR HUM. Rrs. & DEMOCRACY, supra note 6.67 Id.68 Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 ST. LatHSU. L.J. 293 (2002).

256 UNIVERSITY OF nlE DIS'IlUCT OF COLUMBIA LAW REVIEW[I]n the wake of the Holocaust, the paradigmatic human rights violation wasgenocide. To prevent future genocides, global human rights policy principallyfocused on standard-setting, and to some extent -with the Tribunals atNuremberg and Tokyo- on accountability and on institution-building. Butthe principal focus of this first era -"the age of universalization"- was on theuniversalization of human rights norms. On examination, these standardsettingefforts found remarkable success. International human rights law haswon nearly universal acceptance from nations around the globe and hasbeen formalized through many instruments. Although in practice abusescontinue, since the 1993 Vienna World Conference on International HumanRights, few now seriously question the universality of international humanrights norms. 69While the U.S. has promoted international human rights as a "rhetorical cornerstone"of its foreign policy, it "has been criticized for the gap between itsstated human rights principles and its political actions. ,,70 The issue for Koh, then,is how to take these international human rights norms and implement them whileensuring that the United States, as well as the rest of the world, actually adheresto these norms.Koh notes that the United States must first start by "telling the truth" abouthuman rights conditions at home and around the world, "however painful or unwelcomethat truth might be. ,,71 We must seriously acknowledge the atrocitiesagainst Native Americans that happened on our own soil, although "the StateDepartment has no congressional mandate to report on human rights conditions[with]in the United States."n We must re-write our history books that glorifyChristopher Columbus as a hero and founder of our country, and teach our childrenthe reality of Columbus' interactions with Native Americans. Collectively,we must start by being honest about our own human rights abuses before we cancritique a country like China for its abuses against the Tibetans. "In implementinga twenty-first century human rights policy, it is necessary but not sufficient totell the truth about human rights conditions abroad and at home. We also need totake consistent positions with regard to the past, present and future abuses. ,,73Before we can move to the future and critique a country like China about theirhuman rights abuses, we must first lead by example by seriously acknowledgingthe genocide of Native Americans in our country.69 Id. (emphasis added).70 Id.71 Id. at 306.72 Id. at 307.73 Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 ST. LoUISU. LJ., 293, 311 (2002).

THE LEGAL PROCESS OF CULTURAL GENOCIDE 257B. Inside/Outside EngagementIf we genuinely want to aid the Tibetans in their own struggle to preserve theiridentity, we must first acknowledge that "indeed, in any given country, humanrights change more frequently comes from the inside, bottom-up, than from theoutside, top-down." Therefore, the goal of the United States should be to persuadeChina, over time, to accept the human rights norms of the internationalcommunity as internal norms, a technique Koh calls "inside/outside engagement,"which includes:"[I]nside" diplomatic channels for government-to-government dialogueagainst a background of "outside" sanctions. Thus a consistent strategy tostop ongoing abuses with those countries to whom we have diplomatic relationsthus requires us to use an inside/outside approach that combines techniquesof internal persuasion with techniques of external pressure.1 4This can be extremely difficult, especially with a country like China, which hasa tight grip on the information that its citizens obtain from various media outlets.However, this approach is more sensible than that of sanctions alone. After weseriously inform our own citizens of the harsh realities of our own treatment ofNative Americans, we must engage the Chinese citizens to fully understand whatis currently happening to the TIbetans. There is presently a clear disconnect betweenthe ways each group understands the situation. Like U.S. history books,and similar to what was mentioned earlier in this article, the Chinese have rewrittenhistory to ignore the harsh realities of what really is happening in Tibet. Adisconnect regarding the realities of the situation with Native Americans areprevalent in China as well. The logic of the inside/outside approach can be summarizedin the following example:If, for example, you and your neighbors want to stop a rich and powerfulneighbo~ from littering the neighborhood or playing loud music, there isonly so much you can achieve by threats, calling the police or even by gettinga court order. Sanctions and the fear of sanctions may spur short-termcompliance, but will just as likely incur long-term resentment and non-cooperationby the target neighbor. Over time, the strategy most likely to workis, therefore, one that uses dialogue and sanctions in concert to persuadethe neighbor to follow, and ultimately internalize, the community normagainst littering or boisterous music. In short, the policy objective should benot simply short-term behavioral change, but long-term revision of the internalizednorms that drive the neighbor's social conduct. 7574 [d., supra note 68, at 316-317 (emphasis added).75 [d., supra note 68, at 317 (emphasis added).

258 UNIVERSITY OF TIlE DISTIUcr OF COLUMBIA LAW REVIEWA real-life example of this scenario can been seen when examining the way theClinton Administration used an array of "inside/outside methods" as a part of astrategy to engage China on human rights issues in the 1990s. The following tenexamples (five "inside" and five "outside") demonstrate this approach. The "inside"approach included: 1) direct diplomatic demarches; 2) conducting a humanrights dialogue in which the Clinton Administration reviewed the status of Chinesehuman rights conditions face-to-face with Chinese officials; 3) expanding thepeople-to-people dialogue with Chinese citizens; 4) taking measures to promoteexpansion of Internet access; and 5) supporting the forces working toward Chinesedecentralization, through meetings with dissidents, Radio Free Asia broadcasts,and the like?6 The "outside" approach included: 1) publically condemningillegal arrests; 2) issuing human rights reports chronicling Chinese human rightsabuses; 3) designating China for sanctions under the International ReligiousFreedom Act; 4) joining with other Western allies to press the Chinese to ratifythe Covenants on Civil and Political Rights and Economic, Social and CulturalRights; and 5) sponsoring resolutions each year at the United Nations HumanRights Commission calling attention to China's human rights abuses?7While this engagement strategy with China from the Clinton Administrationachieved only limited human rights improvements, Koh notes that under the circumstances,this strategy is the only reasonable long-term approach to confrontongoing abuse, and, in fact, a similar approach with Turkey had more noticeablesuccess over time?S This does not negate the importance of using United Nationsprocedures for dealing with violations of human rights. However, it is importantto recognize that these methods can often prove to be very difficult, especiallygiven the unique circumstances of indigenous groups like the Tibetans. For example,the United Nations complaint procedure for violations of human rights requiresthat all domestic remedies be exhausted before bringing a complaint to theUnited Nations?9 Most Tibetans are too fearful to attempt to use domestic remediesin China, as the repercussions of taking such action could result in seriousharm to themselves, their families, or even their community as a whole. so This iswhy, as Koh suggests, it is especially important to use not just "outside" approachesbut "inside" approaches as well. s176 [d. at 318.77 [d.78 [d. at 319.79 U.N. HRC, Human Rights Council Complaint Procedure (June 18,2007), hup:/Iwww2.ohchr.orglenglish/bodies/chr/complaints.htm.80 TIBETAN erR. FOR HUM. Rl's. & DEMOCRACY, supra note 6.81 Koh, supra note 68.

THE LEGAL PROCESS OF CULTURAL GENOCIDE 259CONCLUSIONThe recent global economic crisis has made addressing China's human rightsabuses much more difficult for the United States. Secretary of State Hilary Clintonwas recently criticized by numerous human rights organizations for sayingthat "human rights violations by China cannot block the possibility of significantcooperation between Washington and Beijing on the global economic crisis. ,,82Amnesty International has been very critical of Clinton, arguing that the UnitedStates is one of the only countries that can meaningfully stand up to China onhuman rights issues. With help from numerous international human rights organizationslike Amnesty International, it is important to remember that the strugglecontinues. Contemporary groups of TIbetans and Native Americans arecontinually resisting, fighting for their self-preservation and sovereignty. The goalof this analysis has been to shed light on the similarities between these two majorstruggles, revealing the vast injustices, but also to illustrate how indigenousgroups historically have resisted and will continue to resist.In closing, the struggle of both the TIbetans and the Native Americans can befelt through Chief Black Hawk's speech after his defeat to the United States in1832:I fought hard. But your guns were well aimed. The bullets flew like birds inthe air, and whizzed by our ears like the wind through the trees in the winter.My warriors fell around me .... The sun rose dim on us in the morning,and at night it sunk in a dark cloud, and looked like a ball of fire. That wasthe last sun that shone on Black Hawk .... He is now a prisoner to thewhite men ....He has done nothing for which an Indian ought to be ashamed. He hasfought for his countrymen, the squaws and papooses, against white men,who came, year after year, to cheat them and take away their lands. Youknow the cause of our making war. It is known to all white men. They oughtto be ashamed of it. The white men despise the Indians, and drive themfrom their homes. But the Indians are not deceitful. The white men speakbad of the Indian, and took at him spitefully. But the Indian does not telllies; Indians do not steal.An Indian who is as bad as the white men, could not live in our nation; hewould be put to death, and eaten up by the wolves. The white men are badschool-masters; they carry false books, and deal in false actions; they smilein the face of the poor Indian to cheat him; they shake them by the hand togain their confidence, to make them drunk, to deceive them, and ruin ourwives. We told them to leave us alone; but they followed on and beset our82 Glenn Kessler, Clinton Criticized for Not Trying to Force China's Hand, WASil. POST, Feb.21, 2009.

260 UNIVERSITY OF TilE DISTRICr OF COLUMUIA LAW REVIEWpaths, and they coiled themselves among us like the snake. They poisonedus by their touch. We were not safe. We lived in danger. We were becominglike them, hypocrites and liars, adulterers, lazy drones, all talkers, and noworkers ....The white men do not scalp the head; but they do worse-they poison theheart .... Farewell my nation! ... Farewell to Black Hawk. 83 *83 Chief Black Hawk surrender speech (1832), http://www.mtholyoke.edu/acadlintrel/black.htm.* Special thanks to the UDC Law Review Editorial Board, Senior Editors and Associate Editors;Shannon and Brooke for your guidance; Jen, Yarrow, Jackson, Frank Jr., Joann, and Larry foryour inspiration; and Frank III, Theresa, Christian, Coury, Phil, and Hannah for your continued loveand support. Finally, I would like to thank Sam and Glenna Hazen for never failing to remind methat we still have so much work to get done! "Injustice anywhere is a threat to justice everywhere." -Dr. Martin Luther King, Jr.