Monday, March 28, 2011

Court Allows Paraplegic Mother Visitation Rights

By: Zannie Carlson

March 26, 2011 marked a legal victory for mother, Abbie Dorn, when the Los Angeles County Court temporarily granted Dorn injunctive relief holding that she had children’s visitation rights. Severe complications during the labor of triplets led to Dorn’s permanent disability. As a paraplegic, Dorn’s primary mode of communication is through a series of blinks, which, following divorce, the father of the children deemed psychologically harmful to the triplets. The father chose to raise the children on his own, barring Dorn from visiting. Consequently, Dorn has only seen her children three times since their birth in 2006; it wasn’t until last year that the father even told his now-four year old daughters that they had a mother.

The court tentatively found that although Dorn’s interaction with her children is significantly impaired, the children still have the ability to interact with their mother. The court found that such interaction would in fact be beneficial to their psychological growth. This decision is still early in the case’s development, as a full trial is set for later this year. Nevertheless, Dorn and her parents, who filed suit on behalf of their daughter, are celebrating this temporary holding as a sign of the success to come. The fact that the case may end at the county level may limit its effect but the case, nonetheless, marks a notable achievement in disability rights.

--Zannie Carlson
   TMA Staff Writer

Sunday, March 20, 2011

Do You Have A Receipt For That Rape?

By: Shailee Diwanji

Fancy filing away that receipt for your hush-hush abortion along with your latest business entertainment expenses? The No Taxpayer Funding For Abortion Act might just make it so you have to. This bill, introduced by representatives Dan Lipinski (D-Ill.) and Chris Smith (R-N.J.), has significant support from the GOP (and some Democrats) and is expected to sail through the House of Representatives. Slightly modified from its original version, which only recognized "forcible" rape, the bill now focuses on federal funding for abortions with some flagrantly ill-devised consequences. The bill mandates that federal funds not be used to fund an abortion, unless it was the result of rape or incest, or seriously endangers the life of the mother.

Sunday, March 13, 2011

Amidst Financial Crisis, Politicians Try to Redirect our Attention to the Usual Scapegoats

By: Zannie Carlson

The March 21 edition of The Nation features an article on Washington’s lackluster efforts in improving the lives of unemployed or soon-to-be laid off Americans: Finding that individuals with college degrees comprise less than half of the unemployment rate, the article observes that “while the overall economy continues to suffer through the worst labor market since the Great Depression, the elite centers of power have recovered.”

Monday, February 28, 2011

Wisconsin Workers’ Woes: Fiscally Sound or Unions Aground?

By: Shailee Diwanji

In 1959, Wisconsin was the first state to pass a comprehensive collective bargaining law for public employees and was the birthplace of the national union representing all non-federal public employees. In a dramatic shift, today, Wisconsin's Assembly passed a bill attempting to curb union rights. Protests, both for and against the bill, have been underway across the country for weeks. But the fight is far from over. Wisconsin's Senate is now in the hot seat, as it gears up to tackle this bill. And with the fourteen "missing" Democratic state senators (they can be found in Illinois in an effort to prevent a quorum from voting on the issue), this could prove to be a real challenge.

The bill creates an interesting dichotomy. It purports to reign in fiscal spending and end the budgetary woes (or at least begin to), but many are concerned that it may foreshadow the demise of unions. The bill terminates collective bargaining for most public employees and requires employees to contribute heavily to their pensions and health care. On the other hand, the bill bars unions from forcing employees to pay dues and does not terminate collective bargaining rights for local police, firefighters, and state troopers. Most significantly, the bill has the potential to save up to $300 million over the next two years.

Although the battle appears to be largely political and based on fiscal policy, it implicates the centuries old battle between the rich and the poor. Unions, according to its ardent advocates, allow the American middle class to bargain for increased wages and benefits, better job security, and guaranteed retirement benefits. These may seem like meager demands when pitted against the inflated bonuses doled out on Wall Street. Without a doubt, the passage of this bill could deteriorate the quality of education and other public services in the state. But budgetary problems are looming large. The result of continued fiscal irresponsibility could be unquestionably devastating. One Ohio state senator pointed to Camden, New Jersey saying, "It's an example of where the union refused to renegotiate, and now that city is suffering a 45 percent reduction in the size of its police force because management had no choice."

This bill has elicited passionate responses on both sides of the issue. As neighboring states move to adopt similar legislation, the people are left with a difficult question. Is this sound fiscal policy, or simply a strategy to widen the rift between the economic classes?

-- Shailee Diwanji
   TMA Staff Writer

Wednesday, February 16, 2011

Terminating the Parental Rights of Undocumented Immigrants

By: Shailee Diwanji

The recent media coverage of the illegal termination of undocumented immigrant Encarnacion Bail Romero's parental rights has, once again, brought the issue of the parental rights of undocumented immigrants to the forefront. While, under law, an individual's immigration status is unrelated to his or her parental rights, we are increasingly witnessing the tenuous connection that does, in fact, exist between the two.  Bail Romero's case exemplifies the numerous injustices and flagrant violations of due process that undocumented immigrant parents may be subjected to.

Bail Romero was picked up by INS in a 2007 raid at the factory at which she was working. She was imprisoned for using a stolen Social Security Number and deportation proceedings were initiated against her. Meanwhile, Ms. Romero’s then six-month-old son, Carlitos, was cared for first by Ms. Romero’s brother, then by her sister, and then by a clergy couple who offered to help. The clergy couple sought to adopt the boy, but when Ms. Romero refused and asked that her son be placed in foster care, the couple introduced the boy to the Mosers. Carlitos, now renamed Carlos, was placed under guardianship of the Mosers, who first petitioned for temporary custody, and a year later, filed for adoption. Since Ms. Romero, who was still in prison, had not sought to visit her son in over a year, a judge approved the adoption. Ms. Romero, who spoke no English, was left with no way to plead her side. Last month, the Missouri Supreme Court ruled that the State had terminated Ms. Romero's parental rights without a fair trial in violation of its own laws, which require a trial in such cases. The court, however, refused to return the child to Ms. Romero, and instead ordered a new trial.

Professor Marcia Zug at the University of South Carolina, School of Law, has researched several such cases and says that this chain of events is far more common than we may think. In fact, children are separated from their undocumented parents by state welfare agencies even before their parents' immigration status is called into question. The reason for such separation is usually "abuse and neglect." "Abuse and neglect," however, can range from violence to the inability to speak English or simply the undocumented status of the parent. The latter cases are usually dismissed on appeal; but in the case of an undocumented immigrant, the opportunity to appeal may only occur after he or she is deported and left without an opportunity to do so.

- Shailee Diwanji
   TMA Staff Writer

Monday, February 14, 2011

From ‘Victim’ to ‘Accuser’: A Misguided Attempt at Courtroom Neutrality?

By: Shailee Diwanji

Last November, Georgia State Rep. Bobby Franklin introduced a bill to re-label "victims" of rape, stalking, and domestic violence cases, "accusers." The bill seeks to "amend Titles 16 and 17 of the Official Code of Georgia Annotated, relating to criminal law and criminal procedure, respectively, so as to change the term 'victim' to the term 'accuser' in the context of a number of statutes making reference to the circumstances where there has not yet been a criminal conviction."

The bill seems to have been met with little support from both sides of the aisle. Most agree that this bill could create an additional barrier to reporting the already underreported crime of rape. Worse, the bill disproportionately affects women, who form the majority of victims of rape and sexual assault. Besides creating a disincentive for victims to come forward, the bill leaves a glaringly obvious question unanswered - Are victims of these unreported crimes not victims at all, but simply accusers? Even when these crimes are reported, convictions are generally difficult to get and this bill just makes it more difficult to get a conviction because it insinuates, perhaps unintentionally, that the crime was fabricated.

Many want to know why these crimes were specifically targeted for reformation. As Carolyn Fiddler, the communications director for the Democratic Legislative Committee, pointed out, "Burglary victims are still victims. Assault victims are still victims. Fraud victims are still victims." There is, however, some merit to the notion of neutralizing the language used in the courtroom to encourage jurors to focus on the facts of the case rather than the emotions that necessarily accompany it. But even the proponents of language neutrality in courtrooms admit that "accuser" sounds rather hostile. Instead, they recommend "complainant," a term currently used in Pennsylvania.

The outcome of this Georgia bill remains to be seen. The Democratic Legislative Campaign Committee has organized a petition urging Republicans to denounce this bill. It can be found at:

- Shailee Diwanji
   TMA Staff Writer

Saturday, February 12, 2011

Reconceptualizing Race Across Campus: Multiracial Youth’s Engagement in Identity Projects

By: Zannie Carlson

In my Critical Race Theory course, we have been discussing a contingent of critical race theorists who asserted that race should no longer be considered a relevant means of self-identification. These theorists’ rationale is that the social construct of race has been used to oppress and divide, and by rejecting these dangerous categories, individuals of color will be better able to create unity based on personality or humanity rather than skin tone.

However, increasing numbers of multiracial youth have been engaging in a different kind of racial project where they assert and embrace both parents’ lineages in efforts to celebrate their multiracial identities. The student organizations offer support for mixed-race individuals, who are more common in American society now more than ever before. Likewise, more individuals are filling “other” as their racial identity on the census so that they do not choose one parent’s racial background over another’s.

 Shifting demographics and attitudes hardly makes us post-racial, however. Part of the reason for establishing these organizations originates from students’ interest in creating a safe space to express their experiences to address a defining characteristic that strangers and friends tip-toe around, misrepresent, or misunderstand. America’s racial hierarchy is not broken, but rather accommodated for multiracial individuals.

What is most moving about these student organizations, however, is the fact that they are encouraging dialogue. Through dialogue, the students promote cross-racial understanding.  These connections may have a more profound effect on attitudes on multiculturalism than the diversity itself.

- Zannie Carlson
   TMA Staff Writer

Caught between Honoring History and Celebrating Slavery

By: Zannie Carlson

2011 marks the 150-year anniversary of the Civil War, and the South is gearing up to honor history and heritage in various celebrations that glorify the antebellum South. There will even be a ‘“secession ball” in the former slave port of Charleston.”  Amid public controversy, Virginia retracted its proposal for an April Confederate History month, which honored Confederate soldiers’ sacrifices, but failed to mention slavery. Being a Yankee myself, I have never fully understood the Southern pride that seems to stem from secession and the establishment of the Confederacy itself, but I wonder if history, culture, and upbringing comingle in our not taking advantage of an opportunity to engage in dialogue and deepen understandings of American history.

Southern and Northern identity construction further divided as the North supplanted an agrarian lifestyle with industrialization. A Northern interpretation of the postbellum South would assert that following the Civil War, Southerners sought to reestablish the antebellum status quo and reject Northern Reconstructionist policy by engaging in racial terrorism, while Southerners highlight resistance as part of their heritage. The destruction of social structures and institutions essential to white Southerners’ way of life were no longer viable options resulted in chaos in the South. The lack of alternative means to sustenance was so prevalent that many ex-slaves went back to their masters to work as farmhands.

I figure a lot of this is common knowledge to many of us, but my intent in highlighting the two interpretations of the Southern experience is that there is still a social barrier in which the South still has an interest in sanitizing history in defense of the North’s knee-jerk exclamations of racism. I don’t think it’s the celebrations themselves that are necessarily racist, but if they are promoted without the understanding of the social and racial context in which the South operated at the time, Southern states would be doing more than a disservice in miseducating the public and misrepresenting history. I think that necessary in the celebration of the anniversary is a healthy acknowledgment of how both the North and South depended on slave labor to drive the economy. As one historian noted, 'Now we find some attention also in the North.... We can mourn without the allegation that all Southerners are rednecks who want to defend slavery. How many soldiers had slaves?'  Forwarding more complicated understandings of both regions’ roles in the institution both discourages the blame game and promotes a richer understanding of the relationship between Blacks and whites in America today.

One article argued that America may be closer than ever before in repairing psychological war wounds between the two regions, as it noted Georgia’s remarkable reinterpretation of the Civil War since the centennial, from a defense of a Northern invasion to a defense of the institution of slavery. As increasing numbers of African Americans take prominent positions of power in American society, it will be interesting to see how public perceptions of the Civil War and attitudes between the North and South will further evolve over time. 

- Zannie Carlson
   TMA Staff Writer

Sunday, January 23, 2011

WCL students will present an oral argument against the DOJ

On January 25, the UNROW Human Rights Impact Litigation Clinic will present an oral argument against the Department of Justice in the Fourth Circuit on behalf of David Johnson, a United States citizen who is facing deportation.  Mr. Johnson has been wrongfully held in immigration detention for more than two years while the U.S. government has tried to deport him to Jamaica, a country Mr. Johnson has not seen for over three decades. 

Mr. Johnson derived U.S. citizenship as a child when his father became a naturalized U.S. citizen.  When the government tried to deport Mr. Johnson in 1998, an immigration judge reviewed documentary evidence, decided that Mr. Johnson was a citizen, and terminated the removal proceedings.  This has not stopped the government from trying yet again to litigate the issue of Mr. Johnson’s citizenship.

What is at stake in this case is whether an individual such as Mr. Johnson is entitled to repose—a concept protected by the legal doctrines of res judicata and collateral estoppel—or whether the government can litigate the same issue repeatedly, perhaps ceaselessly until it obtains the result it desires.  In the past eighteen years, the U.S. government has denied Mr. Johnson repose by subjecting him to three sets of removal proceedings. 

Mr. Johnson’s case also raises important questions dealing with the Equal Protection Clause.  According to the government’s interpretation of the relevant statute, Mr. Johnson’s parents must have been married and subsequently legally separated in order for him to derive U.S. citizenship.  The government’s interpretation of this statute effectively penalizes a child for the actions of his parents, namely his parents’ failure to marry.  A constitutional reading of the statute would not discriminate between the child of parents who are married and parents who are unwed.  In fact, Congress deleted the language requiring a legal separation in a revised version of the statute, but these revisions do not apply retroactively.

Angad Singh, a third-year law student, will be arguing with the assistance of third and second-year law students, Brenda L. Robles and Rachel Zoghlin.  The oral argument is scheduled for 9:30 a.m.  For more information on the case, please contact the UNROW Human Rights Impact Litigation Clinic at

Wednesday, January 19, 2011

Gay Marriage News That You May Have Missed

Gay marriage is an issue worth keeping up with even if your queer politics are not inclined to focus on issues affecting mostly conventional, privileged gay couples. The gay marriage battle is constantly evolving, and consists of a landscape that is more complex than most people know, involving an overlay of statutory and constitutional bans on same-sex marriage, and alternative forms of couple recognition like civil unions, and domestic partnerships. Some states even have prohibitions on same-sex marriage, while they offer alternative forms of couple recognition. It is a cracked, uneven surface ahead. 

Nonetheless there are two related developments that you may have missed over the holiday season. 

First, the good news. Illinois approved a civil union measure called The Illinois Religious Freedom and Civil Union Act in late November. The bill is expected to be signed in the near future. The new law will allow same-sex couples to enjoy spousal benefits though under civil union instead of marriage recognition. 

And in terms of bad news, WCL's very own Nancy Polikoff reported on the Beyond (Straight & Gay) Marriage blog that New Mexico's Republican Governor may repeal domestic partner benefits. Domestic partner benefits, which were established by former Governor Bill Richardson by executive order, are currently available to same-sex and opposite-sex couples. The issue is in litigation, and is due for a Ninth Circuit hearing on February 14. We'll have to wait and see. 

Tuesday, January 18, 2011

The "Atmospherics" Around Constitutionalism & The Healthcare Law

By Richael Faithful

On Wednesday the House of Representatives will vote on H.R. 2, the "Repealing the Job-Killing Health Care Law Act," otherwise known as the Republican bill to repeal the health care law (Affordable Care Act). Throngs of legal scholars have defended the health care law's constitutionality--including over 100 professors who have recently signed the American Constitution Society's statement to that effect. Simply put, leading constitutional thinkers have reached a consensus that the federal government's authority exercised through the healthcare law is "unambiguous." So, if the people who think and breath the Constitution, from the ideological left and right, have no question about the law, why the fuss?

The fuss boils down to what some are describing as "radical constitutionalism" by certain political communities and constituents, namely the so-called Tea Party Movement. I use the less generous and sound-bite worthy term "selective constitutional literalism." The reason that some of the public is ignoring the constitutional experts is because they deeply believe in literal constitutional interpretation in which a person can read and point to a specific clause to refute or bolster broad claims about the law or their own rights. From this perspective all matters of law and policy are simple matters; the health care law's health care mandate provision is unconstitutional because there is no express constitutional language about the federal government's authority to require health care coverage. Why is Big Government trying to make me buy their insurance? Isn't it my right to do what I want with my money? My health is my own business, not theirs. End of story.

In reality, the health care law is really the beginning of a very interesting and important conversation not about its constitutionality, but on its opponents' socio-legal philosophy, as framed by Tom Ashbrook's On Point show, "Congress & Constitutional Arguments." Here, two constitutional scholars, a law/politics reporter, and the host illuminate that public backlash against the health care law, based on supposed constitutional principles, is little more than an isolated and selective reading of the Constitution, one which is frozen in a revisionist 1787 history.

The discussion highlighted two important points: 1) the Constitution must be read and understood in its entirety of have any coherent meaning; 2) it is fundamentally a pro-tax document which expressly invested the federal government with expanded powers over time via the Amendments; and 3) popular constitutional literalist movements are usually driven by "atmospherics" such as political and cultural skepticism of constitutional authorities (i.e. the country's first Black President, Barack Obama). The most disturbing fact is that the so-called Tea Party Movement reflects a widely-held belief that the Constitution is a literal, static, and ahistorical source of law, much like The Bible. In other words, Americans just don't get the Constitution, despite our democratic obligation as a free people to govern through it.

Most Congress watchers doubt that the repeal bill will go far, as it is expected to die in the Senate. Predictions are about the same for the law in courts, even though the issue may reach the highest court. But perhaps the most significant outcome of this debate is whether constitutional illiteracy will become real, and in effect, kill one of the most significant legislative measures of this century.

Friday, January 7, 2011

Keep Ahead: Interesting American University Law School Spring Events To Look Out For

Perhaps one of the coolest programs at American University, Washington College of Law (home of TMA) is the Founders' Day events. Dean of WCL, Claudio Grossman, through the initiative, funds a number of symposia, conferences, and events during the spring semester based on students' proposals. 

They are free, open to the public, held at WCL in Northwest DC, and usually offer lunch or dinner depending on the time (only registration is required). It's a really neat way for folks to learn about legal happenings, engage in discussion, and connect with other like-minded people.

The Special Events website contains a comprehensive list of the events here. We wanted to highlight several events:

TMA affiliated
Minority Majority: The Social and Legal Implications of a Post-White America, March 23, 6 - 8pm. Sponsored by The Modern American.

Roots & Reality II: Hip Hop, Law, and Social Justice Organizing, April 13, 10am - 2:30pm. Co-sponsored by TMA, WCL chapter of the National Lawyers Guild, Sports and Entertainment Law Society, and corporate sponsors, HBO & BET.

12th Annual Martin Luther King Jr. Birthday Commemoration, January 20, 4 - 6pm. Sponsored by the Office of Diversity Services. 

Responding to Anti-Muslim Bigotry, January 26, 12 - 2pm. Sponsored by the Program on Law & Government, and the Center for Human Rights & Humanitarian Law. 

Violence Against Native Women: Is the Tribal Law and Order Act of 2010 A Step Forward? January 27, 12 - 2pm. Sponsored by the Women and the Law Program. 

Vulnerable Populations: LGBT Youth in the Correctional System and Foster Care. February 1, 10am - 12pm. Sponsored by the Lambda Law Society and the Labor and Employment Law Forum. 

Housing Justice in the Nation's Capital: Strategies to Preserve Homes and Neighborhoods During the Foreclosure Crisis, February 3, 1 - 5pm. Sponsored by the Community and Economic Development Clinic, the Disability Rights Law Clinic, and the General Practice Clinic. 

Washington "Redskins": Pride or Prejudice? February 15, 6 - 9pm. Sponsored by the Sports and Entertainment Law Society and the Program on Information Justice and Intellectual Property. 

The Freedom Riders and the Progression to Post Racial America. February 17, 5:30 - 9:30pm. Sponsored by the Black Law Students Association. 

Keeping the Needs of Students with Disabilities on the Agenda: Current Issues in Special Education Advocacy. February 25, 9am - 5:30pm. Sponsored by the Journal of Gender, Social Policy and the Law, and the Disability Rights Law Clinic. 

Tribes, Land, and the Environment. February 25, 9am - 5pm. 

To Kill A Mockingbird: An Examination of Race and Justice 50 Years Later. February 28, 12 - 2pm. 

14th Annual Hispanic Law Conference: The Role of the Legal Community in Addressing Latino Issues. March 1, 4 - 9pm. Sponsored by the WCL Latino/a Law Students Association, Hispanic Bar Associations of DC, MD, and VA, and the Latina/o Alumni Association of WCL. 

Immigration Law Conflicting with Human Rights: Families Lost Through Deportation. March 24, 9am - 5pm. Sponsored by the International Human Rights Law Clinic. 

The New "Illegitimacy": Re-visiting Why Parentage Should Not Depend on Marriage. March 25 - 26, 9 - 5pm. Sponsored by the Journal on Gender, Social Policy, and the Law, and the National Center for Lesbian Rights. 

The New Racism. March 28, 2:30 - 5:30pm. Sponsored by the Journal on Gender, Social Policy, and the Law. 

The Fourth Annual WCL Asian Pacific Americans and the Law Alumni Awards Dinner. March 30, 6 - 9pm. Sponsored by the Asian Pacific American Law Students Association and the Asian Pacific American Bar Association of DC. 

National South Asian Summit. April 2 & 3, 9 - 5pm. Sponsored by the South Asian Law Students Association and South Asian Americans Leading Together. 

14th Annual Sylvania Woods Conference and African Americans in the Law. April 7, 4 - 9pm. Sponsored by the Office of Diversity Services. 

Soul Food Seder. Sponsored by the Jewish Law Students Association and the Black Law Students Association. 

Tara's Crossing: LGBT Asylum-Seekers and the U.S. Immigration System. April 14, 6 - 9pm. Sponsored by the Immigrant Justice Clinic, Immigrants' Rights Coalition, and the Lambda Law Society. 

The "New" American Workday: How 9 - 5 has become 24/7. April 18, 9 - 5pm. Sponsored by the Labor and Employment Law Forum & the Labor and Employment Law Society. 

Not in the DC area? No sweat. See WCL's podcast collection to listen/watch the event you missed.

If you need practical information about transportation, accessibility, dietary accommodation requests or more, contact The Modern American at, refer to this post, and we'll be glad to help. 

See you at the events!

Tuesday, January 4, 2011

Announcing Fall 2010 TMA Issue - Volume 6 Issue 2

The Modern American is proud to announce publication of the Fall 2010 issue. This issue features five articles and five features on issues ranging from immigrant voting to sex-segregated athletics. Plus, check out exclusive interviews from authors and our LatCrit conference highlight at our website.

Finally, tell us what YOU think. Until March 1 TMA will be conducting a Readers' Survey. A completed survey can enter you into a raffle for an ipod shuffle.