Sunday, October 8, 2017
In anticipation of the United Nations Special Rapporteur on extreme poverty and human rights’ country visit to the U.S. in December, the International Corporate Accountability Roundtable sent a submission addressing the Poverty Impact of Corporate Influenced Trade Policy in the United States. ICAR argues that “[g]iven the relationship between trade, poverty, and the enjoyment of human rights, it is critically important to examine how trade policy is developed in the United States, who is sitting at the negotiating table, and what impacts these policies are having on the realization of human rights” The submission focused on communities ravaged by trade policies, including the loss of millions of jobs and its deleterious impact on struggling families, many of whom live below the federal poverty line. Those communities are further harmed by depleted local coffers that result in decreased public spending, which in turn impedes access to public infrastructure and welfare systems. Through their focus on the benefits to corporations, ICAR argues, U.S. trade policies ignore the damaging impact on human rights, including the right to an adequate standard of living and the right to health. ICAR recommends several policy shifts aimed at prioritizing the consideration of human rights in trade policy, including increasing transparency and participation by affected communities, the development of mechanisms to conduct human rights impact assessments, the development and implementation of laws and policies that address the prominence of corporate influence in trade policymaking, and undertaking an analysis of and efforts to redress shortcomings in the Trade Adjustment Assistance (TAA) program.
On another front, last month a group of NGOs including ICAR, EarthRights International, Greenpeace, the AFL-CIO and the Institute for Policy Studies wrote to the US the Trade Representative Robert Lighthizer, who is in the process of renegotiating NAFTA. The organizations ask him to safeguard the goals of addressing the Agreement’s harms and that revisions benefit “the economies and populations of the United States and of our trading partners.” They letter cites the Ambassador’s previous statement that central to that objective is ensuring that “dispute settlement provisions [be] designed to respect our national sovereignty and our democratic processes.” The organizations “support this negotiating objective and therefore urge the United States to reject and remove the investor-state dispute settlement system (ISDS) under Chapter 11 of NAFTA that empowers multinational corporations to undermine U.S. sovereignty and the United States government’s efforts to enact policies to protect the public interest, human rights and the environment.” In closing, the letter exhorts the Ambassador to honor the “growing international consensus that in order for trade and investment to be fully beneficial to all, international investment agreements must not undermine human rights and environmental protections.”
Sunday, May 1, 2016
by Jeremiah Ho
The fall-out from the North Carolina anti-LGBT bill seems to continue. With the numerous businesses taking their ventures out of the state (including notables such as PayPal and Angie’s List) and big-name entertainers (Bruce Springsteen, the band Pearl Jam, and Ringo Starr) cancelling shows in North Carolina, the question of the economics of the business backlash is obviously inevitable. According to a PBS Newshour’s piece that aired this week, the economic backlash based on cancelled conventions has cost the state at least $8 million dollars. That’s not chump change, given that the bill (HB2) was passed only within the last two months.
The Williams Institute at the UCLA School of Law recently weighed in on the answer to the fiscal question for such anti-LGBT legislation—this time examining the fiscal impact of the Tennessee anti-LGBT bill (HB 2414) and the costs beyond the boycotts and backlash of private businesses. Instead, the Institute released a report this month that examines the fiscal impact from an administrative angle. In sum, the researchers note that there are three major areas in which there would be negative financial impact to Tennessee with the bill in effect. First the study notes that there might be a loss of federal educational funding of up to $1.2 billion annually as a result of Title IX violations. Secondly, the loss of federal contracts to educational institutions could rise up to $3 million to $9 million annually as a result of violations of Executive Order 13672, which prohibits federal contractors that receive more than $10,000 in federal contracts annually from discriminating against their employees and job applicants based on gender identity. Lastly, there likely will be costs incurred as a result of litigation and federal administrative enforcement. The report can be found here.
If the report is accurate, then are these costs that both the citizens and the state of Tennessee will tolerate because of legislative intolerance? Is this a worthy cost of fear and hate?
Thursday, April 14, 2016
Apparently Bruce Springstein's decision to cancel his North Carolina concert was the tipping point for Governor McCrory in compromising his position regarding safeguards for the LGBT community. And in breaking news, Ringo Starr has done the same.
As reported earlier, North Carolina passed a bill that would protect those who discriminate against those whose sexual identity differs from the purported North Carolina norm. The Boss' decision came on the heals of Pay Pal and Duetsche Bank's decisions not to expand in North Carolina because of the new law. Facing millions in lost revenue, Governor McCrory signed an executive order in an attempt to remove the economic backlash.
The Governor restored protections for LGBT state employees and he said that he would ask the legislature to restore the right to sue for discrimination. But the Governor fell short. He did not stop implementation of the law's harsh provision that demands people use only the public bathroom that corresponds to the sex assigned at birth.
Sarah Preston of ACLU (NC) said Governor McCrory's actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed into law the harmful House Bill 2, which stigmatizes and mandates discrimination against gay and transgender people.
We will see if businesses are pacified by half-measures.
Wednesday, March 30, 2016
When the Georgia legislature passed a bill that would protect religious organizations when they discriminate against gay and transgender individuals, the business community reacted. The "religious freedom" bill would have permitted faith based organizations to discriminate because of sexual identity. In what were likely unnecessary provisions, the bill also would have protected clergy who decline to perform same sex marriages and those who would not attend weddings based on their religious beliefs.
The Georgia statue was not unique. It followed a wave of states passing similar legislation. Georgia's Governor Deal vetoed the bill, saying it was unnecessary to protecting religious freedom. He also claimed that his decision was a matter of "character" of the state. Deal said that "Georgia is a welcoming state." What was out of character for Governor Deal was his decision to veto the bill. But he had impressive economic pressure to do so.
Major corporations threatened to move their operations from Georgia. Fans of "The Walking Dead" would no longer see their show filmed on a Georgia landscape because AMC threatened to film elsewhere. Disney and Marvel joined AMC in stating that they are inclusive companies and would no longer film in Georgia. Perhaps the most economically powerful company that threatened to leave the state is Coca-Cola, for decades a major Atlanta employer. The National Football League announced that the chances of Atlanta hosting a super bowl would be hurt.
While businesses such as Bank of America in Charlotte, NC, have voiced concern about their state's recent array of anti-gay and transgender legislation, they did not assert their economic power to prevent the enactment of the bills. Granted, the NC bill was passed and signed into law during a twelve hour period. BOA and others (PayPal, Dow Chemical, NBA and Google) have voiced opposition but have not threatened any economic consequences.
By contrast, Georgia based businesses put money on the line. While re-locating a major business, such as Coca-Cola, would cost millions of dollars, the economic damage to the state would cost more.
Cheers to these Georgia businesses for using their power to effect positive change and promoting human rights principles along the way.
Wednesday, December 2, 2015
In mid-November, an 8-year-old boy in Birmingham, Alabama, was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that late on October 10, the girl’s mother and a friend had left six children, none older than 8, at the home unsupervised. They believe that the boy had “recklessly” and “viciously” beaten the toddler when she would not stop crying. The case will be heard in Jefferson County Family Court and can result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s 26-year-old mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can only be transferred from family court to adult criminal court when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
The jurisdictional limits in North Carolina, where I teach and practice, are similar: the minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability, and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18% were dismissed at intake and an additional 27% were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55%, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases that were dismissed or handled informally in 2013 were even lower than the national average – only 38.5% of the 158, 973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers, and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income-level of a youth’s family have found that nearly 80% of those in juvenile court were on public assistance or had annual incomes of less than $30,000.
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is rooted in the early history of the juvenile court when the focus was on the needs of destitute youth. The founders of the juvenile court were part of a nineteenth century movement that helped elevate the status of children from that of property to a dependent class in need of protection by the state.
In 1825, reformers established the New York House of Refuge, which provided food, shelter, and education to homeless and impoverished youth, many of whom were children of recent immigrants. They made few distinctions between children who were paupers and those who committed crimes and viewed poverty and crime to be virtually synonymous. As legal historian Sanford Fox wrote in 1970, “Unattended pauperism was thought to ripen into criminality, and uncontrolled criminality—particularly vagrancy, beggary and minor thefts—swelled the ranks of paupers who had to be supported in public institutions.” The reformers of this era conceived of both of these conditions in moral terms. Philanthropists as well as public officials believed that immorality caused poverty and that the poor, by virtue of their socioeconomic status, posed a threat to lawful society.
Needs-based delinquency continues to be perpetuated through the structure and culture of the modern juvenile court, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. In all of these forums, typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
The insidious phenomenon is further sustained via juvenile code provisions and court practices as well as the individual perceptions and biases of system actors. For instance, the legislation that governs juvenile court practice in each state commonly contains provisions that explicitly call for consideration of a child’s needs and the family’s socioeconomic status. Also, court policies give decision-makers wide discretion to consider these factors at critical stages of the case.
As a result, there are two explicit tracks that exist in the juvenile justice system: one for middle- and upper-class families who are able to secure private services for their children, such as mental health counseling and drug or alcohol treatment, and the other for low-income (often minority and single-parent) families who can most readily access these resources through a court order following a juvenile delinquency adjudication.
In this way, at each stage of the process, the court gives as much or more weight to the perceived “needs” of the child than to the strength of the evidence against her or to the propriety and rationality of pursuing a criminal prosecution, as in the case of a 8-year-old boy charged with murder.
This phenomenon is particularly troubling given research indicating that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign—even when the disposition is arguably beneficial. Potential negative consequences of juvenile delinquency adjudications implicate such areas as housing, education, immigration, and employment as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process.
This concern over stigma draws on sociological literature on labeling theory, the concept that attaching a label to a behavior creates further “deviance.” Once the label of juvenile delinquent is formally imposed, it is readily accepted by both the child and the community, and the child is defined and perceived by others through the lens of this label. Community members, police officers, teachers, and potential employers then interact with and judge the child according to that description.
With the increasing awareness of the income gap and how it affects the most vulnerable among us—poor children and their families—we know that children who grow up in poverty are likely to remain poor. We know that language deficits exist in poorer homes and that gaps in school achievement between higher-income and lower-income students have become chasms. We know that poverty impacts the physical health of children—from obesity and diabetes to asthma and heart disease. We know that toxic stress can develop in young children, caused by exposed to stress hormones, such as cortisol and norepinephrine. We know that this level of stress may actually reset neurological and hormonal systems, permanently impacting children’s brains and even their genes.
We also know that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of assault. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence. And we know that the number of cases that are referred to the juvenile court system approximates the same percentage of youth who have been found to grow out of delinquent behavior through typical adolescent development without any court intervention.
Yet, we continue to use the juvenile court system as the primary safety net for poor children and their families. We allow those children with the most needs—emotional, physical, and behavioral—to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.
The 8-year-old boy in Birmingham, Alabama, may sound familiar to you. He may remind you of a friend’s child or a young neighbor. He may even resemble your own son or your younger self. Imagine if he were from a family of means with two college-educated parents who were both gainfully employed. Imagine he had access to therapists and tutors. Picture him living in a well-tended home in a suburban neighborhood. Would this have made a difference to the Jefferson County district attorney’s office? To the Birmingham Police?
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.
Tuesday, October 27, 2015
Higher education is considered one of the most reliable routes to higher pay. A recent study reported in a Federal Reserve publication suggests that how much higher one can climb up the pay ladder is race dependent.
William Emmons and Bryan Noeth report that higher education does increase income and wealth for all racial and ethnic groups. And protection from accumulated wealth increases, as well. The problem is that how much protection is afforded varies with Blacks and Latinos afforded lower rates of wealth protection. The study's findings suggest that advanced degrees, most available to whites and Asians, may be a protective factor in preserving wealth. Findings also indicate that in some ways, when economic crisis occurs college educated blacks and Latinos may fare worse, percentage-wise, in preserving their wealth than their less educated counterparts.
Nonetheless, all racial and ethnic groups studied improved their economic positions considerably by completing a course of higher education. Why there is disparity in wealth preservation when crisis occurs remains speculative, however. The authors conclude that the reasons for this disparity are likely complex and call for further studies on the sociological and societal reasons for the discrepancies.
Thursday, April 2, 2015
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.
Tuesday, March 31, 2015
Follow the Money.
It’s no secret that an important way to assess someone's priorities is to look at how they allocate their resources. This is true for individuals, but it applies to governments too.
Many lawyers are not numbers people, but we ought to be. By watching how governments spend specific dollars, we can more effectively identify the extent to which stated commitments to human rights, are, in fact, priorities. Being well-versed in financing can also help advocates influence how money is being spent.
Of course, budget processes are not often transparent. But that is changing, as the Transparency and Accountability Initiative has detailed. A human rights framework requires transparency, because it is critical for accountability. Transparency alone, however, does not make a budget process human rights-compliant. Human rights also call for governments, both national and local to foster meaningful participation of communities in decision-making:
The right to participate is not spelled out in any one treaty or covenant, but is drawn from a number of international agreements, including the International Covenant on Civil and Political Rights, the U.N. Declaration on the Rights of Indigenous Peoples and the Convention on the Elimination of All Forms of Discrimination Against Women.
In 2013, then U.N. Rapporteur on Extreme Poverty and Human Rights, Magdelena Sepulveda, issued a report detailing the contours of participation, focused on participation of individuals living in extreme poverty. She emphasizes that “To be in line with human rights obligations, participation should challenge existing power relations that restrict people’s agency and enable free, informed and meaningful input, with real influence over the final decision or outcome.” Her report also offers concrete strategies for ensuring basic human rights principles, such as dignity, non-discrimination, access, and empowerment. For one, placing a priority on creating circumstances in which marginalized or typically vulnerable populations can participate. Additionally, fostering access to information so that all community members can make informed choices, regardless of literacy, language or other factors.
Bringing a human rights framework to budgeting has the potential to be transformative. There are efforts underway to develop human rights based budgeting in the U.S. and abroad. In 2011, Mexico City enacted a law putting human rights budgeting in place. Within the U.S., the most notable action has been at the state level. In Vermont, the Legislature has declared that “the state budget should be designed to address the needs of the people of Vermont in a way that advances human dignity and equity” and that spending and revenue should promote economic well-being and “recognize every person’s need for health, housing, dignified work, education, food, social security, and a healthy environment.”
While not based in human rights principles, there is also a growing city level effort in the United States to infuse participation into spending through participatory budgeting (“PB”). Boston, Chicago, New York, San Francisco, St. Louis and Vallejo, CA, are all experimenting with versions of PB. (PB originated in Puerto Allegre, Brazil in the 1980’s and has been used in localities around the world – over 1,500 localities – according to the Participatory Budgeting Project). NESRI has discussed subnational examples, including from Canada and the UK, in a short briefing paper.
In my own hometown, New York City, participatory budgeting began in 2011. The way it works is that in each district that has PB, residents choose collectively how to spend $1 million of their City Council Member’s discretionary capital funds. Neighborhood assemblies develop project ideas and spearhead project proposals that are ultimately presented to the district members. Any resident of the district can participate, as long as they are 16 or older and have proof of residency in the district – moving closer to “one person, one vote” than typical elections.
Since 2011, the number of City Council Members who participate has tripled (up to 24 in 2015). And, the City Council is trumpeting this effort.
Of course, this type of budget participation only gets at a small slice of the pie, and the options and outcomes are not necessarily based on human rights principles. But, participatory budgeting is clearly a step toward more inclusive, transparent and accountable civic participation. It is also a signal that direct democracy is alive and well.
Friday, March 20, 2015
The State Department reports that on March 18, 2015, the United States became the Chair of the Voluntary Principles on Security and Human Rights Initiative. The United States' annual report under the Principles is available here.
The U.S. Report particularly touts the Administration's progress toward development of a National Action Plan on responsible business conduct -- a culmination of significant advocacy by the International Corporate Accountability Roundtable and others. Among other things, the US Government reports that it will "hold several dialogues with stakeholders throughout the year to provide input into the NAP process," including an upcoming dialogue on April 2 at the University of Oklahoma College of Law in Norman, Oklahoma focused, in part, on the extractives sector. Another dialogue will be held in Washington, D.C. on April 16. Earlier dialogues were conducted at Berkeley, California and New York University. The dialogues are open to the public, but discussions are not otherwise publicized.
In 2013, Oxfam withdrew from the Voluntary Principles Initiative, citing its frustration “at the lack of meaningful progress in independent assurance, despite more than ten years of deliberation and discussion — and notwithstanding the commendable efforts of some companies to develop relevant indicators on the margins of the VPs."
Two years after Oxfam's move, the US term as Voluntary Principles chair, coinciding with the development of the US National Action Plan, provides a strategic opportunity to press for more progress in these areas, both from within the Voluntary Principles group and, like Oxfam, from the outside.
Tuesday, February 24, 2015
Many in social media and elsewhere have weighed in on Academy Award winner Patricia Arquette's statements at the Oscar award ceremonies, where she won Best Supporting Actress for her role in Boyhood. In her acceptance speech, she called for equality for women, and particularly for equal pay. Mega-stars Meryl Streep and Jennifer Lopez whooped their approval. But in a press conference following her award, Arquette elaborated and urged LGBTQ activists, people of color and others to get behind women's equality. Some criticized her for minimizing the equality struggles of these groups and seeming to suggest that they should wait their turn. Later, Arquette tweeted that "[w]age equality will help ALL women of all races in America. It will also help their children and society." With that, maybe this tempest can be laid to rest -- or better, taken as an opportunity to expand the conversation, as thoughtfully suggested by Imani Gandy at RH Reality Check.
Meanwhile, what has received virtually no attention is Arquette's perspective on American exceptionalism. Said Arquette during her press conference: “Equal means equal. . . . It’s inexcusable that we go around the world and we talk about equal rights for women in other countries and we don’t [address it here.]”
Arquette specifically called for passage of the Equal Rights Amendment. CEDAW ratification would, of course, also continue the pressure to achieve women's equality within the U.S. But whatever the legal vehicle for promoting greater social equality, everyone who cares about the plight of marginalized groups in the U.S. should applaud Arquette's willingness to speak out to millions of Americans with the message that human rights begins at home.
Friday, February 20, 2015
Recently, the New York Times reported on "Two Judges Who Get It About Banks". Decisions by the two judges addressed unscrupulous and illegal bank practices, in these cases by Wells Fargo, that led to wrongful foreclosure. The cases are demonstrative of the deceit and fraud that caused much of the mortgage foreclosure crisis.
The first case involved a wrongful foreclosure against Mr. and Mrs. Holms. They were told that a payment of $10,000.00 would stop the foreclosure and if they faxed a copy of the check to Wells Fargo that the foreclosure scheduled for the next day would be cancelled. The couple managed to raise the funds, faxed the check copy and Wells Fargo proceeded anyway. The couple learned as soon as a lawyer was retained that they had a viable defense to the original foreclosure.
“Defendant Wells Fargo’s deceptive and intentional conduct displayed a complete and total disregard for the rights of David and Crystal Holm,” wrote Judge R. Brent Elliott, a circuit judge in Missouri’s 43rd Judicial District, in his Jan. 26 opinion. “Wells Fargo took its money and moved on, with complete disregard to the human damage left in its wake.” The court awarded the Holms $200,000.00 in actual damages, attorney's fees and nearly $3,000,000.00 in punitive damages.
In the second case, New York Bankruptcy Judge Drain, heard a separate case involving Wells Fargo. In that case it became clear that Wells Fargo had manufactured evidence purporting to make the bank the legitimate owner of the debt at issue. The testimony, Judge Drain noted, shows “a general willingness and practice on Wells Fargo’s part to create documentary evidence, after the fact, when enforcing its claims, WHICH IS EXTRAORDINARY.” (Original emphasis)
The White Plains lawyer who represented the debtors, Linda Terelli, commented: “I very respectfully disagree that this is extraordinary...This is business as usual, not just at Wells Fargo.”
So the question arises why are these cases newsworthy? The judges are to be applauded for their findings. Some might call this courageous judging. Their findings certainly were unusual and welcomed. But these judges were simply doing their jobs well. Without regard to clearing dockets and other administrative considerations, these judges listened and weighed the evidence, made findings and took offense at the bank's disregard for the law and process.
There have, however, been thousands of similar foreclosure cases across the nation. Why now are we hearing of cases addressing bank fraud and assessing penalties against those institutions who engaged in fraud? Why haven't judges made these findings before? Is it poor lawyering? The inability of debtors to hire counsel? Are the attorneys retained by debtors quickly overwhelmed by the aggressive tactics of the bank attorneys? We may not have the answers to those questions although it seems implausible that so many years after the foreclosure crisis started debtors are only now presenting evidence of fraud and forgery. The sad stories of those who lost their homes, of broken families and dreams, reinforce the need for Civil Gideon statutes. Appointment of competent counsel in civil cases that so fundamentally alter people's lives must be viewed as a right and not as a privilege that the state cannot afford.
Tuesday, February 10, 2015
Building upon Cindy Soohoo's post from yesterday, The George Washington University School of Law Associate Professorial Lecturer in Law Robin Runge reflects upon U.S. policy toward women and workplace equity.
Prof. Runge writes:
The concept of using employment laws to promote specific societal behaviors and values is one that has been considerably explored in U.S. legal scholarship. For example, Title VII of the Civil Rights Act in 1964, prohibiting discrimination in employment based on race, ethnicity, color, religion, and sex is frequently described as a law intended to more broadly increase economic opportunity and promote equality for populations that had historically experienced extensive societal discrimination. The passage of the Family and Medical Leave Act in 1993 has been described as a reflection of U.S. society valuing a specific set of family and caregiving responsibilities over others by mandating employers provide unpaid, job guaranteed leave to employees for limited medical or caregiving reasons. I, among others, have criticized the FMLA for promoting behaviors that reflect the needs and experience of middle and upper class “ideal families,” to the exclusion of low income women who cannot afford to take unpaid leave and often don’t qualify for the job guarantee leave provided by the FMLA because they need to take leave for family-related reasons that don’t meet the requirements. See Robin R. Runge, Redefining Leave From Work, 19 Geo. J. on Poverty L. & Pol’y 445 (2012). Finally, recent amendments to the Fair Labor Standards Act are intended to promote breastfeeding among low income working women and help them maintain employment by requiring employers to provide break time and a private location to express milk at work. However, as Young v. UPS, currently pending before the U.S. Supreme Court demonstrates, pregnant women are still fighting for basic rights in the workplace.
Unlike Prof. Soohoo’s description of countries in East Asia, the U.S. is not facing a significant drop in birth rates or considerable concerns about a shrinking labor pool. I do not think, however, this is because our workplaces are models of equality for women. Quite the opposite. Women make up almost half the workforce, and a high percentage of mothers are working. Moreover, 40% of American mothers are the primary breadwinners for their families. So, women seem to be able to make it work in spite of a lack of pay equity, paid family leave, workplace flexibility, and rampant violence against women in some workplaces, even though the Pregnancy Discrimination Act was passed in 1978.
The employment and labor laws of the U.S. have created workplace structures and cultures that make women vulnerable to exploitation and discourage mothers from working. Just this week a headline in an article asked “When we will stop punishing women for having babies at the peak of their careers? Others have attributed a recent decrease in women in the workforce to U.S. employment policies that make it nearly impossible to have a child and maintain employment.
The Administration and several members of Congress have recently and consistently argued that passage of legislation mandating paid family leave and raising the minimum wage (women are the majority of minimum wage-earners) would promote women’s equality and economic opportunity with the Women’s Economic Agenda: When Women Succeed, America Succeeds: An Economic Agenda for Women and Families. However, this effort does not seem to be effective in getting the legislation passed.
Maybe if the U.S. did face a crisis in our birth rate, or a need to increase women’s participation in the workforce, that would result in legislation that makes our workplaces more equitable for women. Or maybe, whether there is a connection between increasing economic equality for women and government policy depends on where a woman lives, China or the U.S.
Monday, February 9, 2015
Co-Editor Cindy Soohoo writes on a shift in China's one child policy. Tomorrow's post will discuss the differences between US - China policy in both motivation and social policy in addressing women's equality.
Prof. Soohoo writes:
After years of pursuing a one-child policy, China is taking steps to try to increase its birth rate, but is finding that it’s not so easy. The current policy changes respond to demographic shifts caused by a low birth rate and aging population. The prospect of a smaller labor pool saddled with supporting an aging population has fueled fears that China will “get old before it gets rich.” Promoting women’s equality may be the key to addressing China’s labor and population problem.
China’s one child policy has been criticized for employing coercive tactics that violate women’s reproductive autonomy and for triggering a gender imbalance in the population due to a historic societal preference for sons. Human rights bodies have denounced abusive tactics employed pursuant to the policy including forced abortion and sterilization. They have also emphasized the need to address the structural causes of son preference by eliminating gender stereotypes and promoting women’s equality. The same emphasis on improving the status of women, including eliminating barriers faced by working mothers, will go a long way to support China’s current efforts to encourage births and economic growth.
Since China’s current 1.5 birth rate is substantially below the 2.1 rate needed to maintain a stable population, last year it decided to allow parents a second child if one of the parents was an only child (the prior policy allowed only two children if both parents were only children). But the number of couples that applied to have second children is much lower than expected. This is especially true in urban areas like Shanghai. At the end of 2014, only 5% of couples in Shanghai eligible to have a second baby applied to do so.
Chinese reticence to take advantage of the new policy is consistent with regional trends. East Asia has the lowest fertility rate in the world, and some demographers say that China’s birth rates would have declined even without the one child policy. There are dire forecasts about the future of Japan, where the birth rate is currently 1.4, and social security costs are projected to be 24.4% of the country’s GDP by 2026. Last summer, South Korea’s birth rate dropped to 1.19 leading a government research service to declare that at current rates, its population will be extinct by 2750.
Reports suggest for the growing middle class in these countries the cost of child-rearing, including housing, child-care and education have become prohibitively expensive. An official in Shanghai cited the high cost of raising children and the negative impact of having a child on a woman’s career development as driving the lack of interest in having a second child.
Promoting women’s equality and economic opportunity can make it easier for families to bear the costs of larger families and expand the work force. But often parents face substantial hurdles in the workplace, forcing women to choose between work and motherhood. In Japan 70% of women stop working after having a child due in part to inflexible work hours and lack of male participation in household chores and children rearing. And if they return to work they end up in low wage, part-time or contract positions. The loss of female talent has led economists to suggest that closing the gender gap could substantially improve Japan’s GDP.
Japan and South Korea have funded match-making and dating services to address their low birth rates. Adopting family friendly policies that encourage and support working parents could have a greater long term impact. Japan’s prime minister is reportedly considering a number of policies to encourage women to stay in the workforce after having children, including increasing the availability of affordable child care, changing tax rules favoring single income couples, encouraging more flexible hours in the workplace, and encouraging companies to employ more women in senior positions.
The current demographic pressures may cause China to further relax regulation of family sizes. But, if China is serious about increasing its birth rate and increasing the labor pool it must ensure that women have equal economic opportunities and working families have the support they need.
Monday, January 19, 2015
The Houston Chronicle recently reported 10 travel locations recommended by Ethical Traveler, a Berkeley, California organization that advocates spending our travel dollars to enhance the economies of those countries that treat their people, animals and environment well.
According to the Chronicle, Ethical Traveler’s founder and executive director Jeff Greenwald explained the rationale for ethical travel:
"Where we choose to put our footprints has economic and political reverberations that reach far beyond our personal experience. By 'voting with our wings' - choosing our destinations well, and cultivating our roles as citizen diplomats - we promote international goodwill and help change the world for the better. The report and list are based on tourism destinations that are doing the "most impressive job of promoting human rights, preserving the environment and supporting social welfare - all while creating a lively, community-based tourism industry."
An example of a named ethical travel location for 2015 is Uruguay, described as -
“Highlights: Eighty percent of the country's energy comes from renewable resources, and Uruguay has put itself "at the forefront of sustainable public transportation in Latin America." It has the most liberal policy for LGBTQ in the region, and leaders made abortion legal, and instituted a 30 percent quota for representation of women in the government. Uruguay received a near perfect score in Freedom's House index of Political Rights and Civil Liberties, and it ranked near the top for press freedoms.
Wild card: Uruguay accepted Syrian refugees and has a program in place to help the refugee families adapt to life in Uruguay.”
A big caution: Some locations are questionable from a human rights perspective. The “issues to overcome” statements are so serious that I wonder how the location could be on the ethical list, even if, say, their environmental policies are exemplary. For example, see the report for Cape Verde:
Highlights: This West African group of islands off the coast of Senegal is a small country with big changes recently. Cape Verde abolished the death sentence, introduced an ethics code to deal with corruption and has decriminalized homosexuality. Leaders have a number of plans in the works for environmental projects and environmental training for teachers; sustainable development; and for combatting child labor and violence against children.
Attractions: The country is known for gorgeous hikes, crystal beaches, water sports, turtle-watching tours on Boa Vista and the country's highest peak, Mount Fogo.
Issues to overcome: Human trafficking, sex tourism, violence against women and shark fishing (for fins).
Nonetheless, the list is worth checking out as some locations, such as Uruguay, do not have the cautionary “Issues to Overcome” .
Thursday, January 8, 2015
Teachers everywhere look for vivid and multifaceted case studies to drive their lessons home. Tragic as the situation is for residents of Detroit, the events of the past year -- the city's bankruptcy, the municipal water shut off, the UN Special Rapporteurs' efforts to intervene, the local organizing on the ground -- provide an excellent case study for teaching about the human right to water in particular and the status of economic and social rights in the U.S. more generally.
There is plenty of reading material that can be assigned as background for this case study, including the series of letters submitted to the UN Special Rapporteurs, the resulting UN statements, and the reports on the bankruptcy court's bench ruling rejecting a human rights analysis.
For teachers who want to provide additional context while adding some visuals, a new series of two reports on RT America (Russian television) are particularly noteworthy. The RT series Breaking the Set, hosted by alternative journalist Abby Martin, has just posted two 30-minute segments focused on Detroit. In the first segment, titled Extinguishing the Homeless and Shutting Off Human Rights, Martin goes on the scene in Detroit to interview residents about the impact of the water cut-offs, including an extensive discussion with Beulah Walker, a leader of the Detroit Water Brigade. The second segment, titled Bankrupcy Dictatorship and Foreclosed Futures, includes a fascinating driving tour of Detroit's fragile neighborhoods and abandoned factories, and in-depth interviews of two Detroit activists -- Rev. D. Alexander Bullock and Michele Oberholtzer -- who are working to address fundamental inequalities in the city. In both segments, Martin asks repeatedly about the human rights frame, pressing the activists on how such a frame might be meaningful in the Detroit context. The answers are telling and provide provocative fodder for classroom discussion about whether and how human rights matter in the U.S.
Martin closes the second segment by expressing a strong point of view about the national, state and municipal priorities which have allowed Detroit to sink into bankruptcy. A teacher might decide to turn the tape off before that point to allow students to reach their own conclusions. But whether or not you make it to the end, these segments provide many moments that will stimulate discussion and reflection.
Wednesday, January 7, 2015
By Brian Howe
When I started working at Legal Aid and later at the Innocence Project, I understood that the communities weserved harbored some mistrust for authority figures. At least, I understood it on an intellectual level, as a descriptive fact about the communities and the people who lived there. The more people I get to know, the more clients and witnesses I meet--the more I pay attention to what is actually happening here-- the more I really do start to understand and feel this mistrust on a deeper level. Why would you trust your money to a bank, when that bank just sold you subprime refinancing loan with predatory terms-- not because you couldn't qualify for a better loan, but as part of an intentional scheme to rip equity away from low-income black neighborhoods?
“We just went right after them,” said Ms. Jacobson, who is white and said she was once the bank’s top-producing subprime loan officer nationally. “Wells Fargo mortgage had an emerging-markets unit that specifically targeted black churches, because it figured church leaders had a lot of influence and could convince congregants to take out subprime loans.”"
The NAACP along wih others filed suit against over twelve banks charging systematic racial discrimination.
Multiple cases against mortgage banks for this practice-- including cases brought by the US Justice Department-- have since been settled.
This egregious abuse of power to manipulate the poor into contributing to the wealth of businesses violates the human rights of vulnerable U.S. citizens. At the same time, we appreciate responsible reporting that brings these abuses to light.