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Social Work and the Law

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Baltimore City Department of Social Services v Bouknight,

488 U.S. 1301 (1988)

A three month old infant was admitted for treatment in a hospital. It became apparent that the mother, Jackie Bouknight may have maltreated the infant. Consequently, the Department of Social Services (DSS) petitioned the Court to declare the child as a “child in need of assistance” and grant it the power to put the child under foster care (Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988). The Court granted relief and it was agreed upon by the parties that Bouknight shall have the custody of the child subject to the conditions of supervised parenting and an undertaking of non-infliction of bodily harm and punishment on the child. At first, Bouknight complied with the conditions but later on she became uncooperative and refused to produce her son to the DSS.

The DSS in fear for the safety and well being of the child filed a case before the Court to compel Bouknight to produce her son. She failed to appear before the Court but was later on arrested. On her refusal to disclose the whereabouts of her son, she was found guilty of contempt and was ordered to be incarcerated until compliance with the order [In re Maurice, No. 50 (Dec. 19, 1988). 314 Md. 391, 550 A.2d 1135].

On certiorari, the Court of Appeals of Maryland ruled that the incarceration of Bouknight was an infringement of her Fifth Amendment right against self incrimination. According to the Court, the production of the son is testimonial in nature because by doing so, it only proves Bouknight’s “continuing control” over her son which may be utilized in a criminal proceeding. It ruled that there are acts of production deemed to have testimonial value citing the case of U.S. vs. Doe (Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988).

The U.S. Supreme Court granted the stay of DSS pending the filing of the requisite petition for certiorari. The grant of stay was based on the fact that even assuming that the act of production of the child is testimonial in character, many line of decisions of the Court are clear that as between the public need vis-à-vis a single claim of an individual on constitutional privilege, the former is upheld. In this particular case, the safety and interests of the abused child must be upheld over Bouknight’s assertion considering that, in the hierarchy of values, the safety and welfare of the child takes precedence over other concerns (Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988). Moreover, the information sought which is the whereabouts of the child is for the contempt charge and therefore civil in nature (Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988).

The Fifth Amendment: Right against Self-Incrimination

The Fifth Amendment originated from England and derived from the Latin maxim “nemo tenetur seipsum accusare” meaning “no man is bound to accuse himself” (Levy, 1968). It was used in both the accusatorial and inquisitorial legal systems of England (Levy, 1968).

In the U.S., after the revolution the states ratified the Constitution with the inclusion of the privilege in the bill of rights. The original version of Madison was amended by the House to include “in any criminal case” (Schwartz, 1971). Thus, as it now stands, the Fifth Amendment provides, “. . . nor shall be compelled in any criminal case to be a witness against himself . . .” (U.S. Constitution, Bill of Rights). The primary purpose of its inclusion in the Bill of Rights is “to protect the innocent and to further the search for truth” [Ullmann v. United States, 350 U.S. 422 (1956)]. However, in subsequent line of decisions, the Court ruled that other privileges stated in the bill of Rights are more in the nature of adjuncts to the determination of truth such as the right to counsel or the safeguards afforded by the Fourth Amendment while the privilege against self-incrimination is primarily for “the preservation of the accusatorial system of criminal justice” [Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–765 (1966); California v. Byers, 402 U.S. 424, 448–58 (1971)]. This maintains the integrity of the judicial system and protects the privacy of the individuals from government intrusion [Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–765 (1966); California v. Byers, 402 U.S. 424, 448–58 (1971)]. The privilege is a guarantee against compulsion for testimonial evidence which consequently will result in the imposition of criminal penalty on such person making testimony.

The Court laid down the requirements necessary before a party can successfully invoke the protection of the privilege against self-incrimination. In the cases of U.S. v. Doe, (465 U.S. 605) and Doe v. U.S. [487 U.S. 201, 209 (1988)], the Court enumerated the three (3) requisites that should be present for the Fifth Amendment to apply, namely: a) “that the statement be testimonial; b) incriminating; and, c) compelled.” According to the court, ‘testimonial’ refers to all communications whether express or implied which “relate to a factual assertion or disclose information” (Ashby, J., 2006 citing Doe v. U.S., 487 U.S. 201). The statements or communications made whether verbally or in writing fall within the privilege (Ashby, J., 2006) and is not limited by the forum where it was elicited, i.e. before the court, administrative proceedings or before the law enforcement office [Lefkowitz v. Turley, 414 U.S. 70 (1973)]. The second requirement, ‘incriminating’ refers to statements that can be used as a basis for a finding of criminal liability under a penal law or “provides a link to the chain of evidence for prosecution under a criminal statute” [United States v. Hubbell, 530 U.S. 27 (2000)]. The third requisite is the compulsion to give a statement. The Court explained that this requisite refers to “circumstances that deny the individual a free choice to admit, to deny, or to refuse to answer” (Ashby, J., 2006). Additionally, the Court ruled in the case of Fisher v. United States that these three requisites should all concur and be present so that the privilege can be successfully invoked [425 U.S. 391(1976)].

Legal and Ethical Issues and their Impact on Social Work Practice

The main legal issue in the case of Baltimore is whether the circumstances surrounding it would fall within the ambit of the privilege against self incrimination and consequently, Bouknight may successfully invoke it and prevent her from being compelled to produce or furnish the whereabouts of her son lest be incarcerated for contempt.

The Supreme Court allowed the stay of the decision of the appellate court for overturning the ruling of the juvenile court and in finding that the compulsion for Bouknight to produce her son squarely fell within the privilege and therefore ordered her release (Alderman and Kennedy, 1992). The appellate court found that the act of production is testimonial and therefore its compulsion, is a violation of the privilege. Furthermore, the interest of the government in the safety of the son cannot outweigh the observance and respect for the privilege against self incrimination as provided in the Bill of Rights (Alderman and Kennedy, 1992). In other words, the three requisites concurred, i.e. the act of production or of furnishing information as to the whereabouts of her son are incriminating and testimonial in character; and, there was also compulsion because if she failed to disclose information sought she would be incarcerated for contempt as what had happened.

The Supreme Court through Chief Justice Rehnquist predicated his discussion on three major points, namely: a) The Court of Appeals passed upon a controversy concerning the federal Constitution which logically can be properly resolved by the U.S. Supreme Court (California v. Riegler, 449 U.S. 1319); b) The act of production does not fall within the ambit of the privilege citing the cases of U.S. v. Doe, Fisher v. U.S. and Schmerber v. California. In these cases, the court ruled that the act of production of the documents is not ‘testimonial’ and therefore does not infringe upon the privilege considering that their existence and location are already known to the Government. In fact, responding to a subpoena have been considered legal and acceptable even if compulsion is present [Fisher v. United States, 425 U.S. 391 (1976)]. Moreover, when an accused is required to furnish his handwriting sample, this had been held not to violate the privilege because it is not ‘testimonial’  but merely evidentiary United States v. Flanagan, 34 F.3d 949 [10th Cir. 1994]). The third point c) is by using the balancing of interests test or balancing the public need vis-à-vis ensuring the individual’s constitutional civil liberties, public need prevailed considering that the disclosure of information was non-criminal and not directed at a particular group as was held in the case of California v. Byers, 402 U.S. 424 (1971) where the validity of a law requiring disclosure of the name and address at the scene of a vehicular accident. Similarly in the case of New York v. Quarles where the Fifth Amendment rights have to give way to a public safety exception and therefore in the case of Bouknight, “the public safety exception to the Fifth Amendment was justified because its interest was in protecting children like Maurice, not in prosecuting” (Alderman and Kennedy, 1992).

In sum, the privilege against self-incrimination is not an absolute right. Albeit the civil liberties accorded under the Bill of Rights safeguards undue government intervention and restraint to its power, there are instances when these rights would have to give way to compelling interests of the society that would warrant Government intervention and intrusion such in the case of protecting and ensuring the safety of infants or children from physical abuse. Once it has been established that a child is abused, it becomes the duty of the State to take over and protect.

The judicial pronouncement in the case of Bouknight has a pervading and far reaching implication on social work practice. This gives the social workers a great burden and responsibility to follow up sharply abused children in foster care or those released under an order of protective supervision. Admittedly, there is an apparent lack of strict protocols in the present system of child welfare agencies (Parks, 2005). A set of guidelines must be crafted to govern exigencies of missing children from foster care like supervised visits and court orders in cases of abduction like what have occurred in Maryland with “Ariel” who had been abducted by his mother Teresa B (Parks, 2005). Guidelines should also be drawn to address the coordinated efforts both with the law enforcement and child welfare personnel.

Tarasoff v. Regents of University of California,

17 Cal.3d 425

A graduate student from India, Prosenjit Poddar went to the University of California Berkeley to study naval architecture. It was there that he met Tatiana Tarasoff. A few kisses made him believe that they have a special relationship until Tarasoff bragged about her many relationships with other men. Poddar suffered depression until he sought professional help from Dr. Moore, a psychologist of the University Health Service. He confided to the doctor that he intended to secure a gun and to kill Tarasoff. On the strength of a letter request of Dr. Moore, Poddar was taken by the campus police, however upon assurance that Poddar was reasonable he was released. Upon the return of the University Health psychiatrist from his vacation, he ordered the destruction of Dr. Moore’s letter and did not recommend any further action on Poddar’s case.

When Tarasoff returned from her vacation, she was stabbed and killed by Poddar who at that time moved in with her brother already. The parents of Tarasoff sued the Regents of the University, its health personnel namely, Gold, Moore, Powelson, Yandell and the campus police namely, Atkinson, Beall, Brownrigg, Hallernan, and Teel  for “failing to warn their daughter of an impending danger” (Tarasoff v. Regents of University of California, 17 Cal.3d 425). At the lower court, the complaint was dismissed because there was no cause of action. According to the lower court, the defendants only had the duty to the patient and not to a third party.

The dismissal was appealed to the Appeals Court but which only sustained the dismissal. Thus, it was elevated to the Supreme Court of California. The appealed decision in so far as the university police officers, Atkinson, Beall, Brownrigg, Hallernan, and Teel finding them not liable to the plaintiffs was affirmed. However, in so far as the therapists and the Regents of the university, the appealed decision was overturned for reception of evidence in accordance with the pronouncements of the Supreme Court (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

In fine, the complainants averred four (4) causes of action, namely: a) “Failure to detain a dangerous patient; b) failure to warn on a dangerous patient; c) abandonment of a dangerous patient; and, d) breach of primary duty to patient and the public” (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

Anent the first and fourth causes of action, the Supreme Court ruled that the defendants cannot be held liable because of a specific provision of the Government Code or Section 856 thereof which grants immunity to public employees from any resultant damage or injury from deciding whether or not to confine a person with mental ailment. This provision is also applicable to the therapists because the law also refers to those who are capable of recommending confinement. As regards the third cause of action, the government immunity includes the “award of exemplary damages resulting from a wrongful death” and therefore, defendants cannot be held liable (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

Anent the second cause of action, the Supreme Court found defendants therapists and Regents of the University to have failed to comply with their duty to warn Tarasoff of the peril to her life. Albeit, the therapists had no direct relations with Tarasoff, they could have reasonably foreseen the danger and threat to her life as confided by their patient, Poddar. This is the point where the law establishes the duty of care on their part to warn Tarasoff. Their failure to warn her may reasonably concluded as a proximate cause of her death. The duty of confidentiality between patient and psychotherapist and the right to privacy of the patient cannot prevail over public interest or public safety. Moreover, there are clear provisions of laws, i.e. Section 1024 of the Evidence Code and Section 9 of the Principles of Medical Ethics of the American Medical Association which allows the physician to divulge matters confided to him in confidence when it is necessary for public welfare (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

Confidentiality

The effective therapeutic relationship between physician/psychiatrist and patient rests largely on trust that matters confided by the patient during the treatment are kept in strictest confidence by the physician/psychiatrist.  It is the ethical duty of the physician to observe privacy and confidentiality of his patients (Corbin, 2007). While it is also of public interest to ensure that treatment of those who are mentally ill by maintaining an atmosphere whereby they can have an open dialogue with their therapist and of safeguarding its confidential character; the same public interest calls for an imperative recognition of instances whereby disclosure of the confidential communications be revealed and be made to safeguard public safety and avert the threatened peril. In the instances, where the public safety is at risk, the therapist must disclose confidential information discreetly with due regard to protecting the privacy of his patient (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

The parameters of confidentiality are defined by law and by the ethical code of conduct for practitioners in the territorial jurisdiction. In the case of Tarasoff, the Evidence Code and the Principles of Medical Ethics of the American Medical Association provided specific and limited exceptions under which the confidentiality privilege can be breached, i.e. “if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger; unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community” (Tarasoff v. Regents of University of California, 17 Cal.3d 425).

It would be wise for the practitioners to familiarize themselves of the limits of confidentiality as provided under the laws considering that it may differ from state to state. The Tarasoff case provided a basis to guide a practitioner in his professional dealings relative to the duty to warn others in cases of a specific threat of harm by his patient against others/another. Subsequent cases followed the consistent pattern of the jurisprudence laid down by the Supreme Court. In the case of David v. Lhim (1983), the plaintiff-administrator of the estate sued the psychiatrist who treated the son who killed his mother after he was released from the hospital. There was failure on the part of the psychiatrist who treated the son to warn the mother of the potential danger after her son confided his intentions of killing her (Corbin, 2007). In another case, Chrite v. U.S. (2003), the Veterans Administration was held liable for having failed to warn the intended victim of a patient of a threatened harm. Subsequent rulings of the court clarified and defined what constituted ‘threat’ as “imminent threat of serious danger to a readily identifiable victim” and “specific” (Corbin, 2007).

When there are no specific provisions of the law, Dickson (1998) proposes that the therapist/practitioner may be protected against lawsuits if he would consult and keenly document the case of the patient or comply with the “mandated reporting guidelines” required by some states. Reamer (2003) on the other hand, suggests that the therapist must have evidence that the patient is a threat to the safety of another; evidence of that the threat can be foreseen; threat is imminent and that the potential victim is identifiable.

Legal and Ethical Implications and their Impact on Social Work Practice

The duty of reasonable care to assist others in danger is a legal duty as well as a moral duty. However, American negligence law only recognizes it as a moral duty except when there exists a relationship between parties. In the case of Tarasoff, no special relationship existed between the therapist and Tarasoff; however the court has made an exception to this general rule (Bickel, 2001). It declared that the therapist has the duty to care and to warn Tarasoff of the imminent harm on her life. This also includes the duty to control the conduct of his patient, Poddar. In the same breath, a doctor has the duty to warn his patient if he has a contagious disease (Saltzman and Furman, 1999).

There is an affirmative duty for the therapist to advise and warn Tarasoff of the threat to her life although this meant breach of confidentiality with his patient Poddar. This finds basis both legally and ethically considering that the law and the code of ethics for doctors have recognized and provided specifically that doctors are bound to disclose relevant facts to others even if this violates confidentiality with their patients provided they are required by law or if it is required for public safety (Saltzman and Furman, 1999). This legal duty to warn applies when the threat is specific and imminent and where the victim is “readily identifiable” (Bickel, 2001). The courts also have recognized the difficulty in assessing and predicting circumstances that may lead to harm or violence and consequently, adhered to the ‘professional judgment rule’ whereby the therapist is not held liable for errors of judgments. Liability attaches only upon showing that the conduct of the therapist was not in accordance with the “accepted professional standards” (Bickel, 2001).

There is an ambivalence that was created by the Tarasoff protective disclosure ruling with the practitioners (Kachigian and Felthous, 2004). Analogous cases and protective disclosure statutes in the different states were analyzed and it was discovered that there are no clear defined parameters of these duties. The therapist is required to a certain way betray his patient by disclosing matters which are protected by confidentiality. Considering the uncertainty brought about by the legal doctrine and court decisions, the undesirable consequence of which was deterrence for therapists to accept “treatment potentially violent patients” (Merton, 1982). Moreover, therapists are more inclined to have their patients committed in an institution so that threats to the safety of potential victims can be averted.

The Tarasoff protective disclosure was even extended recently to include even “communications made from a patient’s family member” as pronounced by the Court in the case of Ewing v. Goldstein (May and Ohlschlager, 2008). The dubious jurisprudential precedents by the courts in interpreting the protective disclosure statutes or its resort to common law instead of interpreting the statute left a vacuum in the definition of the duty to protect (Kachigian and Felthous, 2004). As a result, “clinicians must continue to rely on their clinical and ethical judgment, rather than statutory guidance, when considering potential protective disclosures or future drafts of protective disclosure statutes” (Kachigian and Felthous, 2004).

References

Alderman, E. and Kennedy, C. (1992). In our defense: the bill of rights in action. First Avon

Books edition.

Ashby, J. (February 2006).  Note declining to state a name in consideration of the fifth amendment’s self-incrimination clause and law enforcement databases after Hiibel. Michigan Law Review, No. 4, Vol. 104:779.

Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988).

Bickel, R. Revisiting Tarasoff v. Regents of University of California: the scope of the psychotherapist’s duty to control dangerous students. Presented before the 22nd Annual Law and higher Education conference in Clearwater, Florida on 18-20 February 2001.

California v. Byers, 402 U.S. 424, 448–58 (1971).

Corbin, J. (Fall 2007). Confidentiality and the duty to warn: Ethical and legal implications for the therapeutic relationship. The New Social Worker, Vol. 14, No. 4.

Dickson, D. T. (1998). Confidentiality and privacy in social work. New York: The Free Press

Doe v. U.S., 487 U.S. 201, 209 (1988).

Fisher v. United States, 425 U.S. 391 (1976).

Kachigian, C. and Felthous, A. (September 2004). Court responses to Tarasoff statutes. Journal

of  American Academy of Psychiatry and Law Online, Vol. 23:263-273.

Levy, L. (1968). Origins of the fifth amendment: The right against self-incrimination.

May, S. and Ohlschlager, J. (2008). California alert! Tarasoff ruling expanded for clients who ‘go off.’ ECounseling. American Association of Christian Counselors.

Merton, V. (1982). Confidentiality and the dangerous patient: Implications of Tarasoff for Psychiatrists and lawyers. Emory Law Journal, Vol. 31:265.

New York v. Quarles, 476 U.S. 649 (1984).

Parks, A. (2008). Unless the Court of Appeals decision is reversed, MD children may not be. Daily Record The Baltimore.

Reamer, F. (2003). Social work malpractice and liability. New York: Columbia University Press, 2nd ed.

Saltzman, A. and Furman, D. (1999). Law in social work practice. Brooks Cole, 2nd edition.

Schmerber v. California, 384 U.S. 757 (1966).

Schwartz, B (December 1971). The bill of rights: A documentary history. Chelsea House Publishers with McGraw-Hill Education.

Tarasoff v. Regents of University of California, 17 Cal.3d 425.

Ullmann v. United States, 350 U.S. 422 (1956).

U.S. v. Doe, 465 U.S. 605.

United States v. Hubbell, 530 U.S. 27 (2000).

E.Writers
http://www.articlesbase.com/education-articles/social-work-and-the-law-756045.html

Churchill’s During World War II and Its Aftermath

The growing rapacity of German gluttony forced Hitler to take over Austria in 1938 and threaten Czechoslovakia. In Britain this produced a national crisis which resulted in Prime Minister Neville Chamberlain’s meeting Hitler in September 1938 at Berchtesgaden. Chamberlain returned from the meeting announcing ‘peace in our time’ which was abruptly smashed when Hitler invaded Prague in March 1939. Soon after given Western weakness and hesitation to work with the Soviet Union Stalin formed a pact with the Nazi’s guaranteeing Russian security and the partitioning of Eastern Europe between the Bear and the Hun. There was nothing to stop Hitler from destroying Poland and then turning his malevolence towards the West.

Public anger which had exploded after the subjugation of Prague had forced Chamberlain to give the improvident pledge to guarantee Poland’s security. Militarily and rationally this was an impossibility. The British did not possess a large enough standing army to lend help to Poland to stem a German advance and the logistics of transferring military relief to Poland was never calculated. Only the Navy was possessed war making power and there was little the Navy could do to defend Poland. She was invaded on the first of September and the Second World War began. Churchill was immediately recalled into power as First Lord of the Admiralty – the very same post he had assumed control of 25 years previous on the eve of the First World War.

From day one of the war Churchill was the true Leader of Britain. Chamberlain was defeatist and broken hearted remarking bitterly how his life’s work was now tragically sundered. He did not have the capability to rouse a nation and persevere to the bitter end. Winston as Naval War Lord was not only attacking the enemy on the seas but combating defeatist elements at home and trying to prod the blind neutral nations into action. Only Churchill could utter with true conviction and spirit, “Now we have begun; now we are going on; now with the help of God, and with the conviction that we are the defenders of Civilisation and Freedom, we are going on, and we are going on to the end.”

The Royal Navy was the only strong force that Britain possessed and from the opening bell the naval squads were on the offensive. Churchill worked at least an 18 hour day. Plans were drawn for a blockade of the German coast, convoy arrangements were made; mine-sweeping was instituted, enemy raiders harassed and submarines sunk. By the end of 1939 the Royal Navy had sunk half of all German submarines. However the war was only in its infancy. Great battles loomed.

On May 10 1940 the Germans began their vicious assault on the West. The Hun streamed into Holland and Belgium. That night the King of England sent for Churchill and asked him to form a government. Thus began the creation of the Churchill legend and his enshrinement into history. The story of the British war effort under Churchill falls into two distinct categories – the struggle to survive and the establishment of the alliance with the USA and Russia and the ultimate destruction of Germany and Japan.

The battle to survive covers the twelve or so months that Britain fought Germany completely alone in 1940-1. This period covered the dazzlingly quick disappearance of France under the heel of the Gestapo in June of 1940 to the German attack on Russia in June of 1941. This grim year brought horrible highlights; the partition of France, the formation of the pro-Nazi French Vichy government, the battle of Britain, the blitz on London, the beginning of the North African desert war, the defeat of Greece, and the British Commando raids along the Norwegian and French coasts.

It was during this sombre episodic current of ruin that Churchill became the most inspirational Leader of the Western world in the 20th century. He portrayed the towering, implacable fierceness of a proud nation, and of liberty, and expressed every free man’s tenacity to fight in words that no other could have summoned forth. Winston’s knowledge of military matters and his close operational vigilance over all affair animated and excited the British war effort with a boldness that astonished. British prestige in this desperate hour reached its highest ever pitch. The world over prayed for its salvation and success.

The immense energy and illimitable skill that throbbed and turned in his heart and mind was at last released from its bondage and given full scope of use. Churchill no longer knew the frustration of ideas that could not be brought alive, vitality that could not be expended, or ingenious approaches that could not be tested. The supreme challenge was met by a man of supreme stature. The Government was turned upside down. Routine was destroyed. Twenty four activity the rule with Churchill as the master organiser. All knew their place and role. Churchill immediately established a small War Cabinet to make effective and quick decisions. At first the membership was four which grew during the war to seven. This tiny all powerful directing force was supported by sixty or seventy other ministers of all parties who formed the core membership of the Coalition government but responsible only for their own departments. As Churchill pointed out, it was only the members of the War Cabinet, “who had the right to have their heads cut off on Tower Hill if we did not win.”

Never before in modern history did one man have so much power. Churchill was everywhere. He not only controlled the government but the operational side of the conflict as well. He was not only the King’s First Minister but Leader of the House of Commons and, even more important Minister of Defence also. The military Chiefs of Staff instead of reporting to their own ministries reported instead directly to Churchill. The Joint Planning Committee – a body of professional staff officers of all three services – worked under Churchill as part of the Ministry of Defence rather than under the Chiefs of Staff. Thus by permission of the War Cabinet and Parliament Churchill became the penultimate democratic Leader.

No one can study Churchill’s part in the war without being staggered by the colossal output of interests, dictation’s, orders, speeches, broadcasts, plans, promotions and prunings. In military matters he covered an almost incomprehensible range of activity. When Britain stood alone and the nation was bracing itself for the storm of invasion Churchill was racing about the government demanding attack plans, offensive action and targets of British incursions. He demanded the end of the passive war. Thus the commando raids were born. He participated during the war in every operational plan and strategy demanding full technical elaboration’s and missives to be sent to his attention. “During the war,” the American General Eisenhower later testified, “Churchill maintained such close contact with all operations as to make him a virtual member of the British Chiefs of Staff; I cannot remember any major discussion with them in which he did not participate.”

Churchill’s power was dependent upon the War Cabinet. It is a tribute to his skill of persuasion that unlike Roosevelt or Stalin, who were by their constitutions absolute military leaders of their nation, Churchill exercised his authority only by the permission of the War Cabinet who were willing to grant this authority only so long as Winston commanded the confidence of Parliament. Much of Parliament’s confidence was bolstered by Churchill’s impassioned, humanised and soaring orations. No man or women in the British Commonwealth who heard on June 4 1940 that France was being devoured by the German beast, will forget the tingling of emotion and courage when Churchill uttered in a strange, hoarse voice: “We shall go on to the end, we shall fight in France, we shall fight on the seas and the oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever he cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle until in God’s good time, the new world, with all its power and might, steps forth to the rescue and the liberation of the old.”

Another Leader may have uttered, “We will do what is necessary to win this war and persevere in its struggle until it is won. This government believes in the ultimate ability of our nation to come through to victory.” Or something to that effect. Very few would have evinced the crescendo of emotional “We shall’s” in a peroration. Churchill gave the roar to the British lion and heart to the British public. Romance, history, philosophy and leadership all running in the cloud-burst of Churchill’s speeches and leadership of the war effort. But though he carried his role with pride, prompt execution and relish in no way implies a cold heart or an acceptance of war’s carnage. The suffering that he saw, and he saw a lot with his own eyes as he inspected damage through Britain, on more than one occasion pushed him into tears. When Churchill saw a small shop in ruins and wondered out loud to his private secretary the anguish that the owner must feel to have his whole life exploded and ruptured so completely, he became so visibly upset that he resolved at that moment to compensate all damaged property with state payments. Thus the policy of war damage for private assets came into effect. If Churchill enjoyed the waging of war he certainly suffered from the anguish it induced and endeavoured to share its destruction with the common man and woman.

The second phase of the war lasted from the infamous Japanese attack on Pearl Harbour on December 7 1941 until the end of the war. Until 1944 the British and Russian armies bore the brunt of the struggle against the demented German race. From early 1944 onwards the Americans assumed a greater share and responsibility of the war effort and began to relegate the British to a supporting role in the drive to victory. Roosevelt and Churchill met nine times during the war establishing a strong if short lived friendship. The Americans including Roosevelt were incorrectly convinced that Churchill and the British wanted to expand their Empire.

This calamitous suspicion allowed the Russians more freedom in Eastern Europe than the British would ever have tolerated. As early as 1943 with victory a matter of time and logistics Churchill implored the American leadership not to let Soviet ambition run unimpeded in Eastern Europe. The American reply was incredibly purblind and vague. It appears in scouring the documents and American communiqués that they trusted the Soviets to behave themselves more than their close allies the British ! Eisenhower and many of his chiefs remarked in letters and in meetings that they could not understand why the British constantly mixed politics and military affairs.

To the British this represented reality and the best hope to avoid another world war with the Soviets after the defeat of Germany. Churchill and his advisors even preached that upon the war’s closing everything necessary should be attempted to revive Germany as a bulwark against the pending Soviet menace. The Americans felt that such targets as Prague, Berlin and Vienna were unnecessary military ventures that would endanger the lives of their men. If the Soviets wanted to shed more life in attacking these seemingly remote locations than the Americans were content to let them. The British just shook their heads in dismay unable to impress the Americans with their superior logic. Victory was attained but it set the stage for the Cold War.

The fact that the British survived the early years of the war when Germany swept all before it and that the British evaded a complete national disaster at Dunkirk and defeated the Nazi’s in the air during the Battle of Britain, issued during the remainder of the war and for a short period after it, an inflated sense of self destiny and strength and even an isolationist mentality. The collective suffering and emotional agony endured by the entire British nation also gave express an imbued spirit of egalitarianism. The depth of this communal desire was the most profound in British history and exercised a new faith in social planning and cohesion. During Churchill’s premiership in the war the most celebrated social reconstruction document of the period was the report by William Beveridge which outlined a radical scheme of comprehensive social security, financed from central taxation. This new state aided social plan included maternity benefits, child allowances, universal health and unemployment insurance, old age pension and death benefits – an entire cradle to grave policy. From 1940-45 Britain moved more rapidly to the left than at any time in history a move marked by the important positions Labour ministers occupied in the war government.

At the end of World War II in 1945, Britain was still one of the Big 3 powers, indeed it was ranked as a great power, an illusion that held until about 1963. The British still had their empire in 1945 and in the ensuing years they could still produce great artists and Nobel prize winners, but much to the chagrin of Churchill and the leadership class British glory was long past. The rapid decolonisation of most of its empire — India, Pakistan, Burma, Sri Lanka — and parts of Africa shedded from British finance much unneeded expense and worry, and solidified Britain’s secondary role in world affairs subordinate to the USA and Russia.

Success in conflict notwithstanding the British electorate in the 1945 general election shockingly kicked Churchill and the Conservatives from office by an overwhelming share. For the third time the Labour party was called forth to govern. Churchill after leading the democracies to attain the supreme glories and garlands of success instantly found himself shorn of privilege and casted into opposition. It was a role he obviously did not appreciate. For Churchill defeat was only explained by the plain fact that people believed his government to be a war council, unprepared for the extended restructuring of society that peace demanded. Labour presented a sharper and more intelligent platform and catalogue of change. The Conservatives were quite content to rest upon Churchill’s name and ignore the organisation and deliverance of a viable alternative to the Labour programme.

Whilst Churchill harried the Labour government and began the rebuilding of the Conservative party to respond to public and peace-time pressure he began the personal memoirs of the great struggle and in the absence of anything else offered by the other leaders – Stalin, Roosevelt, Truman, or Hitler – Churchill was able to dictate on the best terms and in the most convincing language possible, his and Britannia’s exalted position in the struggle against evil. It was an incomparable success, ensuring that in times forward, historians would favourably compare the works of Thucydides and those of Churchill. Both men represented and recorded their times and events on an unparalleled scale.

What Churchill was able to offer the reader was a glimpse into the details of history’s most horrible man-made disaster. The wicked folly of the conflict was evident at the war’s end. Whole nations lay in ruins. Towns, cities, industrial plants and transportation facilities were erased. Food and life essentials were unavailable to great migratory populations. Cynicism and disillusionment in Europe and elsewhere bred the shift to the political left. Marxism replaced Fascism as an acceptable form of social order. Communism erupting from poverty, spread like an open wound across Asia and Europe. With the complete eradication of Nagasaki and Hiroshima the nuclear age dawned. Moral questionings loudly divided those in the West over the usage of weapons of such finality – especially against a prostrate Japan. Dropping two bombs three days apart on a nation that was in the process of trying to negotiate an exit from the war seemed to many morally reprehensible. It was an inauspicious beginning to the scientific era.

The United States and Russia emerged from the rubble of the war as opponents. Russia was mauled and mutilated by the war with over 20 million dead and whole sections of her country raped. The USA stood at war’s end possessing a massive ego and the greatest economic supremacy in history. The big two were joined by the little third – Great Britain – and the three during the war and after drove the discussions regarding the build up of the United Nations. Most vexing to the Allies in the construction of the United Nations Assembly was whether members were obliged to surrender part or all of their own independence to the new body in order to maintain peace. How would it be possible to invest such a supranational body with enough force to enforce decisions ? How would the large powers relate to the smaller in the decision making of such a forum ? At Moscow in 1943 the Big Three resolved many of these issues and in Washington in 1944, joined by China, hammered out the shape of the new international body. At the Yalta conference in 1945, the Big Three came to terms on the matter of securing for each of the major powers the right to veto decisions of the new international body. This allowed the creation of the UNO charter at San Francisco in April 1945 which clearly identified the principles and responsibilities of the new organisation. Fifty one founding nations signed the document and in September 1945 the UNO opened its headquarters in New York.

Comprising the UNO were principally the Security Council, the General Assembly, the Economic and Social Council, the International Court of Justice, and the Secretariat. Most power resided in the Security Council which was given the task of maintaining the peace. Five permanent members sit in the council; the United States, the Soviet Union, Great Britain, China and France and six other nations are elected for two year terms as non-permanent members. The permanent members retained veto power with all resolutions needing the consent of the five permanent nations before passing.

In contrast to the Security Council the UNO General Assembly was shaped by all the member states each wielding one nation one vote rights. International problems are to be solved in an open forum and mandates need to be passed by majority vote. This effectively gives the smaller nations more voice in international affairs. The Secretariat acting as the permanent secretary of the UNO concerned itself with internal operations with its Secretary General the highest profiled member of the UNO, exerting wide diplomatic powers emanating from the prestige of the office.

Thus the founding of the UNO was an expression of hope by the survivors of the Second World War. Quickly this vision was marred and jaded by political ineptitude and quivering resolve by the UNO in major affairs. There was little effective work during the Cold War that could be resoundingly accomplished. This war which was contested by two sides that viewed the other as monolithic or controlling inimical forces, could never have been settled via diplomatic channels. The mental straitjackets of both sides; with the Soviet Union believing that the capitalist West controlled by a few monied financiers who desired the destruction of communism and especially the Soviet Union and which would never grant the Russians fair credit in defeating Hitler; and the West believing that Russia controlled the communistic movement world-wide and that communism and especially Russia wanted to overthrow the better functioning liberal states, could only end with the breakdown of one of the combatants. The demise of Marxism gave spring to the hope of a liberal-democratic world.

The major events since 1945 can be summarised in a short list;
- The Collapse of Communism
- The Triumph of Capitalism
- The beginning of the High Tech Era
- The Decline of the USA and the re-emergence of Europe, Japan and China
- The Fragmentation of parts of the world into tribes
- Ecological dislocation
- Growing disparity between the have and have-not nations
- Emerging militant Islamism
- Questioning over the role of the UNO

The most momentous and important event however has been the spread of globalism. Economically, morally, and spiritually people are viewing themselves regardless of race, kin, geography or circumstance as belonging to the entire human race and not a limited defined tribe. Though tribalism in some areas of the world is taking hold even within these identified units a greater consciousness is emanating out to the rest of the globe that though distinct there resides a desire and need to be integrated into a global framework. Economics, peace and ecological salvation commonsensically dictate this. So do the various images from space capturing a small blue ball in the surroundings of space. Somehow this humbles even the largest of egos. So even as, in some parts of the world, balkanisation is shattering mature states, the pieces will still be forced to bond not only together but somehow they will need to align themselves to the greater puzzle that resides outside their narrow borders. It is only by collective effort that the solutioning of poverty, ecological rapine, and the stoppage of war can be peacefully effected.

Churchill died just after the Cuban missile crisis during a bitter period of Cold War strife, which almost pushed the world into a nuclear confrontation. Though he felt certain of liberal-democracy’s triumph he did not see the maturity of his concept. And though he sustained an undying faith in the ability of man to overcome his worst problems we can be sure that without using the leadership skills presented through his example we will have a very difficult time indeed.

C. Read
http://www.articlesbase.com/business-articles/churchills-during-world-war-ii-and-its-aftermath-700338.html

Sightseeing In Dubai

Although a very small place, Dubai offers a lot of scope for sightseeing. Dubai has deeply rooted Islamic traditions but at the same time, has a life style similar in many ways to other parts of the world.

Jumeirah Mosque – The best known illustration of modern Islamic architecture. The mosque has two minarets and a splendid dome and is one of the most popular spots visited by tourists.

Sheikh Saeed’s House – The house is situated near the sea. It was built by the Sheikh for getting a better view of shipping activities. It is an exquisitely designed structure which exhibits traditional architecture.

Bastakiya – This is an old district which gives you an idea of how Dubai used to look before the skyscrapers started to take over. It has very narrow lanes and lofty wind towers. Here you can also find the Al Fahidi Fort, which is the biggest concentration of traditional courtyard houses with wind towers.

Dubai Museum – This is one the tallest buildings in Dubai and is in the Al Fahidi Fort. It was built in 1799, and was used as a palace, garrison and prison. But later in 1970, it was renovated as a museum. It is breath taking with full size figures, colors and sound and lighting effects. One can experience scenes from the creek, traditional houses, mosques, date gardens, and marine life. There is also the magnificent underwater world of pearl diving.

Wonderland – This is a family fun park covering around eighteen hectares. There are lots in store for you including water attractions, speed slides, surf hills, wave pools, twisters and a cruise.

Magic Planet – This one is for children. It is an indoor entertainment house which has ten-pin bowling alley, a bungle jungle, electronic games and a mini putt. It is in the Deira City Center.

Parks and Gardens – There are a lot of parks and gardens all over Dubai. You can enjoy some of the largest parks in Dubai like the Jumeirah Beach Park, Dubai Creekside Park, Mushrif Park, Al Mamzar Park, and Safa Park.

Dubai World Trade Center – It is a marvelous structure with thirty nine floors and it houses the regional headquarters of many international corporations. It has a state of the art conference center and seven exhibition halls. By paying a small fee, you can have a fantastic view of the city from its viewing gallery.

Dubai City – Deira and Bur Dubai – the two parts of the Central Business District. They are connected by a tunnel and two bridges. They have all the necessities of an ultra modern city.

The Creek – a natural sea-water inlet goes through the center of the city. You will enjoy the creek most if you go across it by abra, an old traditional dhow, which goes across Deira to Bur Dubai.

Al Boom Tourist Village – Very close to the Creek Park is the Al Boom Tourist Village which has a banquet hall, a coffee shop, amusement park, ornamental lake and a marina with five cruise boats.

Bait Al Wakeel – This was built by Sheikh Rashid in 1934. It was an office building at that time but now it has been turned in to a museum devoted to fishing and maritime traditions.

In this article we have given you just a small taste of the types of things you can see and do in Dubai. However, there is much much more to this fantastic city. We have lots more to tell you about Dubai at the Dubai Visits website. Why not use the information there to plan an unforgettable trip to Dubai.

Wayne Armstrong
http://www.articlesbase.com/business-articles/sightseeing-in-dubai-53084.html

Anti Poverty

Anti Poverty in USA

                          Even the wealthiest nation in the world like the United States does not escape the problem of poverty. This paper takes a critical look at poverty and anti-poverty policies in the United States. In this paper, I have argued that poverty is caused by several factors. This paper also discusses the liberal and conservative perspectives for reducing poverty in America. The conservatives have focused on individual factors such as wide wage gaps, breakdown of family, racial factors and other reasons while the liberals have focused on the structural transformation of the American economy to explain the persistence of poverty.  Since 1960, both the federal and state governments have been responding with policies that address the problem with mixed results. In this paper, I have analyzed the policies and have also recommended the possible ways to deal with this intractable nature of poverty.

                   According to Sen (1981), ‘the poor are those people whose consumption standards fall short of the norms, or whose income lie below that line’. The word "poverty" suggests destitution, an inability to provide a family with nutritious food, clothing, and reasonable shelter. Over thirty-six million Americans live below the official U.S. poverty line (Blank, 2007). This means a family of three earns less than less than $ 16,000 or a single individual earns $10,300 per annum (Blank, 2007, p. 17). Millions more struggle each month to pay for basic necessities, or run out of savings when they lose jobs or face health emergencies. Job cuts, high rates of unemployment, foreclosures and high food and gas prices continue to stimulate policy formulation designed to improve the condition of the poor.

                     Poverty is integrally associated with misery and suffering. The lost potential of children in poor households and the lower productivity and earnings of poor adults are all intertwined with poor health, increased crime and broken neighborhoods. Childhood poverty typically leads to poor health care and high crime neighborhoods. Persistent childhood poverty is estimated to cost the United States $500 billion each year, or about 4% of the nation’s gross domestic product (Blank, 2007, p.1).

                    One in eight Americans lives in poverty and poverty in the United States is far higher than in many developed nations (Rebecca Blank, 2007, p1). Inequality has reached record high. The richest 1 percent of Americans in 2005 held the largest share of the nation’s income (19%) since 1929 (Rebecca Blank, 2007, p. 2). At the same time the poorest 20% of Americans held only 3.4% of the nation’s income (Rebecca Blank, 2007, p.2).

                    Colorado in spite of being surrounded by the beautiful Rocky Mountains and experiencing a cool, mountain climate has many homeless people. Scholars have identified that, a growing number of single parent households, a shortage of jobs for lower wage workers and a low rate of high school graduation have contributed to the growth of poverty in Colorado. The Colorado poverty rate has increased from 9.2% in 2000-2001 to 10.6% in 2005-2006 while the poverty rate of United States has increased from 11.5% in 2000-2001 to 12.5 % in 2005-2006 (Center on Law and Policy, 2006, p.1).  Most of these ill-fated poor people suffer from mental and health problems. 

Causes of Poverty

                        Policy analysts are trying to explore numerous perceived direct and indirect causes of poverty in the United States to formulate effective policies to alleviate poverty. The work of scholars such as Corley (2003), Sowell ( 2004), Iceland (2006), Jencks (1992), James Tobin (1993) and others have shown that the intractable nature of poverty is a result of not any one factor but of the interaction of a variety of causes. The breakdown of family and other social causes as well as the structural changes in the economy, have all contributed to society’s failure to eradicate poverty inspite of ardent efforts by policy analysts.

                   Individual Explanation of poverty mainly stresses the attitudinal or motivational factors and human capital factors. Thus lack of motivation among indigents causes poverty. Generous welfare programs sometimes affect the mind-set of recipients and they prefer to stay at home and enjoy the benefits rather than work outside. Murray (1984) argues that individuals prefer to remain on welfare because of insufficient motivation to come out from public welfare programs.

                  Formulation and proliferation of policies to alleviate poverty has been a major concern of the United States Government since 1960. Educational attainment is necessary to get a high paying job. Elementary school education, as well as lack of adequate skills and motivation among indigents to come out of the situation is the major causes of poverty. People well equipped with technical skills get high salaried jobs while people who are school drop outs get low pay on an hourly basis. During the 1960s when the then- President of United States Lyndon Johnson began to implement the United States ‘war on poverty’, he placed great emphasis on education (Jencks, 1992). The Lyndon Johnson administration even invested in programs like Head Start and occupational training to upgrade the skills of the poor and also to prevent future generations from working in low-paying jobs. Scholars like Sowell (2004) and Corley (2003) have emphasized individual level factors as the central causes of poverty. They argue that a person’s compensation is based on his or her educational qualification and marketable skills. Sowell (2004) argues that the lack of appropriate skills has affected the ability of many indigents to climb out of poverty. He also argues that there has been an increase in the poverty rate of unskilled Americans, who have lost jobs to Asian immigrants. Corley (2003) also supports the above argument and regards ‘lack of educational attainment’ as one of the entrenched sources of poverty. Low quality education from poorly funded inner-city schools results in few marketable skills which leads to low-wage jobs and other miseries associated with it such as less ability to pay for housing, food, clothing, medical care, bad neighborhoods, funding problems for schools, and increased risk of serious illness (Corley, 2003). 

                          Many scholars have argued that structural changes are the primary reason for the persistence of poverty in the United States. Structuralists emphasize issues such as joblessness, discrimination in education, institutional racism and economic transformations in explaining the causes of poverty. Scholars argue that the inability to provide decent paying jobs for some American families and the ineffectiveness of American public policy to reduce poverty are basically the result of structural failures and processes. Poverty is rooted in the structure of American society. Rank, 2004 supports the above view and argues that lack of human capital tends to place individuals in a vulnerable state when events and crises occur. The incidence of these events like loss of a job, family break-up and ill-health often result in poverty. These ill-fated people unable to handle these situations often end up in paying more. Scholars also argue that the acquisition of human capital is strongly influenced by the impact of social class on this process (Rank, 2004). Apart from poor family, race and gender also play a role in the acquisition of human capital (Mark Robert Rank, 2004).

                          Globalization, the expansion of credit markets leading to greater indebtness and foreclosures leading to recession in 2008 all point to the growth of poverty.  Iceland (2006) primarily focused on economic factors and has argued that poverty is also the product of deindustrialization. As the U.S. shifts from a manufacturing, industrial society to a service-oriented, high-tech society, many of the blue-collar jobs that required little education but paid well are disappearing or are being outsourced. Rural areas, such as Appalachia, suffer losses of mining jobs, and cities such as Detroit lose many manufacturing jobs to automation or overseas factories. Some people are unable to follow the jobs or commute to work are left in neighborhoods without employment or tax-basis to support needed social functions, such as schools, public transportation, police departments, and so forth. Others simply cannot find jobs because of the shift towards a service-based economy; in economic terms these people are structurally unemployed due to the changing skills needed. Tobin (1993) supports the above viewpoint and emphasizes on the disappearance of jobs in the 1900s as the main reason for the country’s failure to eradicate poverty. Recent employment data shows that the US housing slump and the crisis in America’s credit markets are threatening to increase poverty levels. Isidore (2008) mentions that the job losses  are widespread, with the battered construction sector losing 51,000 jobs and manufacturing employment falling by 48,000 in the year 2008 . Retail employment dropped by 12,000 jobs, and business and professional service employers cut staff by 35,000. The unemployment rate jumped to 6.1% in September from 4.9 % in January (Bureau of Labor Statistics, 2008).

                         Kelso (1994), argues that over the last forty years, there has been a major shift of American firms first to the west and then to the south. Part of this shift was due to the rise of the Cold War and the decision of the government to enlarge U.S. military power (kelso, 1994). He argues that as America elected to invest more in defense and in the aerospace industry, cities like Seattle and Los Angeles on the West Coast began to boom while the growth of a high technology and information based technology led to the growing affluence of California and the San Francisco Bay area. Later with the expansion of inter-state highway system and growth of jobs, markets were created in the south.

                         Iceland (2006) also argues that although the service sector of the economy has generated millions of jobs, but again polarized earning distribution based on educational attainment separates better paying jobs from poorer paying jobs. He supports a Marxian analysis of class conflict and exploitation and emphasizes on business owners favor hiring inexpensive labor to maximize profit. This also accounts for the inflow of cheap labor to the United States from Mexico and other countries. Greater access to credit has put cars, computers, credit cards, and even homes within reach for many more of the working poor. But this remaking of the marketplace for low-income consumers has a dark side. Roubini notes that, "Having access to credit should be helping low-income individuals, but instead of becoming an opportunity for upward social and economic mobility, it becomes a debt trap for many trying to move up (Grow and Epstein, 2007).

                          Inspite of public assistance and wide initiatives taken by both Federal and State governments, poverty still exists. Meticulous analysis of the situation and effective formulation of policies is needed to solve the problem of poverty in the United States. Scholars like Rank (2004), Blank (2007) and others have shown that the United States Government spends fewer funds addressed towards poverty than any other industrialized country. Thus a major structural failure is found at the political level (Rank, 2004). Most European countries provide a wide range of insurance programs, unemployment assistance, and wide universal health coverage along with considerable support for child care (Rank, 2004). Such social programs are far more generous than those in the United States (Rank, 2004). While, low-income families in the United States work more than those in other countries, they are still not able to make up for lower governmental income support relative to their European counterparts (Blank, 2007, 141-142).

                          The gross disparities among impoverished people in the United States along racial lines have led many scholars to speculate that institutional racism is responsible for much of the poverty in the United States. Racial discrimination in employment and   education contribute to the growth of poverty. Some scholars like Massey and Denton (1993) interpret the statistics in terms of institutional racism while others like Kelso (1994) interpret the statistics as evidence of deficiencies and suffering of blacks.   In spite of efforts to remove racism, slavery and Jim Crow segregation, Massey and Denton (1993) argue that racial segregation still exists and that the fundamental cause of poverty among African Americans is segregation. They argue that segregation has created and perpetuated a black underclass by limiting educational and employment opportunities. Massey and Denton (1993) have shown that Blacks were shown homes in racially mixed areas or areas adjacent to predominantly black areas.

                           Also, changing patterns of family formation are more pronounced among racial and ethnic groups. Family patterns are also one of the causes of poverty in the United States. There is a wide gender gap in wages. In 2004 the median income of FTYR male workers was $40,798, compared to $31,223 for FTYR female workers (DeNavas-Walt et al, 2005) Pearce (1978) argues that ‘poverty is rapidly becoming a female problem’. Iceland (2006) supports this statement and showed that in 2000, the female poverty rate (12.5%) was 26% higher than the male poverty rate (9.9%) (Iceland, 2006). According to Iceland, women have fewer economic resources than men, and they are more likely to be the head of single- parent families. It also leads to the greater likehood that single, divorced or widowed women will be poorer than their male counterparts because of less social security income or other retirement income in addition to higher female life expectancies. Women’s lower wages, lower retirement benefits and the increasing number of single mothers have led some scholars to talk about the “Feminization of Poverty.”

Federal policies

                       After the Second World War, by 1963, creation of jobs by President John F. Kennedy’s tax policies could not remove the problem of poverty. Poverty was still recognized as a major national problem. President Lyndon B. Johnson’s War on Poverty led to a host of programs that included Medicare, Medicaid, Food Stamps, Aid to Families with Dependent Children, and others. These entitlements eventually consumed half the federal budget and could not alleviate poverty. The U.S. economy had been devastated by the recession of 1979-83 when the United Statess manufacturing infrastructure was shattered by the Federal Reserve’s skyrocketing interest rates causing unemployment to shoot up by sixty-five percent in four years (Cook, 2007). By the end of the 1980s the economy was in another recession, leading to the election of Bill Clinton who in 1992 replaced the incumbent George H.W. Bush. The investment boom of the 1990s was fueled by foreign capital lured in by the Treasury’s strong dollar policies. Jobs were created as the dot.com bubble expanded, trade barriers fell, and utility trading giants like Enron took off. NAFTA was enacted to promote free trade, welfare-to-work brought low-income women into the job market, and the Earned Income Tax Credit was extended. The party ended when the stock market crashed in December 2000 and millions of people lost their retirement savings and other investments. Recession was returning even as George W. Bush was being declared president by the U.S. Supreme Court in December 2000. The economic crisis deepened after the September 11, 2001 attacks when $1.4 trillion in wealth vanished during the worst five days of the stock market since the Great Depression (Cook, 2007). Cook (2007) argues that today, poverty is becoming a national catastrophe. Cook (2007) argues that from 2002 through 2006 the economy was floated by the housing bubble, with many lower income people getting into homes of their own through the proliferation of sub prime mortgages. With the financial woes in late 2008, many American citizens are left with inflated home prices and no way to pay for them.

                      The 1960’s policy initiatives and declaration of ‘unconditional war on poverty’ by the then president Lyndon Johnson marked a discrete change in the federal government’s willingness to intervene for the purpose of improving the economic situation of poor Americans. Despite the billions of dollars spent on programs like CETA (Comprehensive Employment Training Act), The Manpower Development and Training Act, Head Start, and the Elementary and Secondary Education Act, the government efforts to deal with the origins of poverty have met with minimal success. During this period, implementation of the Social Security old-age program insured virtually all retired workers against the risk of outliving their savings. The Social Security Act of 1935 sought to protect the incomes of those who did not work because of age or a poor economy by establishing a federal framework for unemployment insurance, old-age benefits, and assistance to women. In early 1964, the two most pressing priorities of President Johnson’s antipoverty agenda involved passing a massive tax cut designed to stimulate the economy and organizing a task force to shape the ‘War on Poverty’. The Economic opportunity Act (EOA) signed by Johnson created a long list of programs designed to help individuals develop marketable skills, political power, and civic aptitude. But this anti-poverty legislation oversaw other programs like Community Action Program, Job Corps, VISTA, Head Start (1965), Legal Services (1965) which were not included in its framework. While extensive programs like the Food Stamp Program, Medicare for elderly, Medicaid applied to qualified poor residents, the Elementary and Secondary Education Act for poor students overshadowed the EOA. The Higher Education Act eased the financial burdens of millions of college students. The Civil Rights Act opened up new spaces in the American marketplace, while the Voting Rights Act did the same for the political marketplace. The Fair Housing Act established an important base of law to combat housing discrimination. As a result the EOA slowly lost importance. Again, Murray (1984) argues that welfare benefits had soared so high so as to make living in poverty a meaningful option for the poor. Even Burton (1992) has supported the above viewpoint and argues that the programs have done more to cause poverty than to alleviate it.

                          When Nixon assumed power, he tried to deal with poverty in a more direct way than emphasizing social programs. . Although President Nixon expressed dislike for much of the War on Poverty, his administration responded to public pressure by maintaining most programs and by expanding the welfare state through the liberalization of the Food Stamp program, the indexing of Social Security to inflation, and the passage of the Supplemental Security Income (SSI) program for disabled Americans (Rank, 2004). The Nixon administration also endorsed a “New Federalism” in which the federal government shifted more authority over social welfare enterprises to state and local governments. His plan to implement the ‘Family Assistance Plan’ (FAP) consisted of various income provisions, work provisions, and training provisions for those below the poverty line (Rank, 2004). It failed to pass the Senate much like the ‘Programs for Better Jobs and Income’ initiated by President Carter in later years.                                       Welfare reform continued as a focus of federal policy debates even after the legislative defeat of FAP. Even though a cash ‘Negative income Tax’ (NIT) for all poor persons never passed, the Food Stamp program provided a national benefit in food coupons that varied by family size, regardless of state of residence or living arrangements or marital status. The number of AFDC recipients increased from about 6 million to 11 million and the number of food stamp recipients, from about 1 million to 19 million during the Nixon administration (Danziger, 1999, p. 8). Danziger (1999) also argues that as higher cash and in-kind benefits became available to a larger percentage of poor people, the work disincentives and high budgetary costs of welfare programs were increasingly challenged. The public and policy makers came to view increased welfare recipients as evidence that the programs were subsidizing dependency and encouraging idleness.

                        Despite the failure to enact a guaranteed income program, both the number of recipients and the amount of money spent on welfare programs increased substantially during the 1970’s (Rank, 2004). Rank (2004) has given an overview of Reagan’s policies and noted that Reagan emphasized individual action unhampered by government interference, rejected the social engineering of the 1960’s and also supported federalism, that is, returning power to the states rather than centralizing them within the federal government. Reagan tried to address the problem and set the tone for welfare reform that occurred in 1990 during his successor’s administration. The Reagan administration thought eligibility for welfare benefits had increased so much, that many persons who were not “truly needy” were receiving benefits. The Reagan Administration opposed simultaneous receipt of wages and welfare benefits. Rather, it proposed that welfare become a safety net, providing cash assistance only for those unable to secure jobs.

                    The Earned Income Tax Credit (EITC), enacted in 1975, provides families of the working poor with a refundable income tax credit (i.e., the family receives a payment from the Internal Revenue Service if the credit due exceeds the income tax owed). Thus the EITC raises the effective wage of low-income families, is available to both one- and two-parent families, and does not require them to apply for welfare. The maximum EITC for a poor family was $400 in 1975 and rose to $550 by 1986 (Danziger, 1999, p. 14). The 1986 Tax Reform Act increased the EITC so that by 1990 a low-income working parent received a maximum credit of $953 (Danziger, 1999, p. 14). The number of families receiving credits increased from between 5 and 7.5 million families a year between 1975 and 1986 to more than 11 million by 1988 (Danziger, 1999, p. 14). Danziger, 1999 argues that as the expanded EITC supplements low earnings, it became easier for policy makers to emphasize welfare reform policies that could place recipients into any job, rather than training them for “good jobs.” Thus he argues that if a nonworking recipient took a low-wage job, a substantial EITC could make work pay as much as a higher-wage job would have paid in the absence of an EITC.

                         The Family Support Act (FSA) of 1988 expanded the scope of the AFDC program for two-parent families, instituted transitional child care and Medicaid for recipients leaving welfare for work, and added funds and required states to establish programs to move greater numbers of welfare recipients into employment. When the welfare rolls jumped in the late-1980s and early-1990s, from about 11 to about 14 million recipients, dissatisfaction with welfare again increased ( Danziger, 1999).    

                        President Nixon identified the two main economic problems, inflation and unemployment, that justify the need for economic recovery to the American worker. Reagan has emphasized despair caused by unemployment combined with high inflation. Reagan’s rhetorical construction of welfare recipients and the welfare system was aimed at reducing anxiety among Americans caused by increasing taxes, inflation and the continuous fear of losing jobs. To end this victimization, Reagan proposed a plan for economic recovery (Rank, 2004). Apart from cutting government spending, specifically spending on social programs, Reagan also proposed to have State governments assume control of Aid to Families with Dependent Children (AFDC) and the food stamps program in exchange for the Federal Government control of Medicaid. Although this proposal failed to reach the Congressional floor, his presentation of the proposal to exchange AFDC and food stamp program with Medicaid made poverty a local concern (Mark Robert Rank, 2004).  

                       Liberals and conservatives still disagreed on other goals of welfare-to-work programs. Liberals thought welfare reform should expand opportunities for welfare mothers to receive training and work experiences that would help them raise their families’ living standards by working more and at higher wages. Conservatives emphasized work requirements, obligations welfare mothers owed in return for government support whether or not their families’ incomes increased (Mead, 1992). 

                       In later years President Clinton’s approach also emphasized empowerment as a way of helping welfare recipients and to accumulate more savings without being penalized and expanding the earned income tax credit (Blank, 2007). By the mid-1990s, the focus of policy concern shifted from fighting poverty to reducing welfare dependence. President Clinton’s signing of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the PRWORA) ended the entitlement to cash assistance and dramatically changed the nature of the social safety net. The Act created the Temporary Assistance to Needy Families Program (TANF). TANF began on July 1, 1997, provides cash assistance to indigent American families with dependent children through the United States Department of Health and Human Services (The Center for American Progress Task Force on Poverty, 2007).  Danziger, 1999 argues that each state can now decide which families to assist, subject only to a requirement that they receive “fair and equitable treatment.”  In instituting a block grant program, the PRWORA granted states the ability to design their own systems, as long as states met a set of basic federal requirements. The bill’s emphasis on ending welfare as an entitlement program, places a lifetime limit of five years on benefits paid by federal funds, and also aims to encourage two-parent families and discourages out-of-wedlock births. In granting states wider latitude for designing their own programs, some states have decided to place additional requirements on recipients. Although the law placed a time limit for benefits supported by federal funds of no more than 2 consecutive years and no more than 5 years over a lifetime, some states have enacted more stringent limits. All states, however, have allowed exceptions with the intent of not punishing children because their parents have gone over the time limit. Federal requirements have ensured some measure of uniformity across states, but the block grant approach has led individual states to distribute federal money in different ways. Certain states more actively encourage education, others use the money to help fund private enterprises helping job seekers. The PRWORA offers no opportunity to work in exchange for welfare benefits when a recipient reaches her lifetime limit of 60 months of federally-supported cash assistance. But the reform has certain limits. States may not use federal block grant funds to provide more than a cumulative lifetime total of 60 months of cash assistance to any welfare recipient, no matter how willing she might be to work for her benefits, and they have the option to set shorter time limits. States can grant exceptions to the lifetime limit and continue to use federal funds for up to 20 percent of the caseload. The extent of work expectations has also been increased. Single-parent recipients with no children under age one will be expected to work at least 30 hours per week by FY 2002 in order to maintain eligibility for cash assistance (Danziger, 1999, p 20). States can require participation in work or work-related activities regardless of the age of the youngest child. Thus PRWORA emerged from research that sought both to reduce poverty and welfare dependency (Danziger, 1999).  In the 1990s, following Clinton’s call to “end welfare as we know it,” policy makers escalated their demands for recipients to work and reduced government obligations toward and funds to serve them (Danziger, 1999).

                     When Bush took office in 2001, the U.S. was experiencing a national surplus, unemployment and poverty had been on the decline for years, and the economy was booming. Now, almost six years later, poverty is on the rise, healthcare coverage is on the decline, and the country is faced with the largest national deficit in history. Lower middle class families are slowly slipping below the poverty line and the poorest are becoming even more destitute. Most of these families are headed by women.

                      President Bush has extended the TANF. There has been a general economic stimulus policy initiative during the Bush administration but nothing targeting low income Americans has been enacted. President Bush signed the economic stimulus package (H.R. 5140) into law with the hope that it will provide a much-needed boost to the lagging economy. The package includes tax rebates for individuals, tax breaks for businesses, and a temporary increase of the Federal Housing Administration loans from $417,000 to $729,750 (White House report, 2008). More than 130 million people are expected to get tax rebates ranging from $300 to $1,200 per household for individuals earning $75,000 or less and couples earning up to $150,000 (White House report, 2008). While the stimulus package will provide much needed financial help to millions of people, it fails to target those most in need as it will not include an extension of unemployment benefits, energy assistance, food stamp benefits, or fiscal relief to states for Medicaid.                       

                  From the above analysis, the question arises whether poor are responsible for their own condition. The above analysis implies that recipients become dependent and lethargic due to vast welfare measures. Scholars such as Murray (1984) and Kilty and Segal (2006) have emphasized on individual factors. They argue that welfare measures and lack of spirit and motivation among indigents contribute poverty. Danziger, 1999 argues that during the Nixon era increased welfare measures encouraged idleness. Kilty and Segal, 2006 also argues that poor people can come out into a state of self-sufficiency from dependency by learning proper work attitude and skills. Kilty and Segal, 2006 argue the importance of welfare reform and a ‘tough love’ approach would ultimately help the poor by making them conscious of their condition and forcing them to take their own responsibility. Bill Clinton’s emphasis on ‘personal responsibility’ and measures to ‘end welfare as we know it’ in 1992 all supports the above argument.

                     Due to the implementation of TANF, the numbers of people on welfare have decreased. As a result more funds are accumulated. In 1996 the number of ADFC recipients was 12,644,076 while in 2001, the number of TANF recipients was 5,91, 811 and the poverty rate also reduced from 13.7 to 11.3 ( Kilty and Segal, 2006) and while in 2008 it is 1,628,422  ( US Dept of Health and Human Services). The share of single mothers on welfare (based on administrative caseload counts divided by population numbers) rose from 38 percent in 1969 to 48 percent in 1980, but had fallen to 30 percent by 1998 ( Kilty and Segal, 2006). These caseload changes are widespread, with every state in the country experiencing substantial caseload decline. This decline has been widely hailed by politicians as an indication that policies designed to reduce dependence on public assistance and move less-skilled adults into the labor market have been extremely effective ( Blank, 2007). But however Blank argues that declines in welfare do not affect the poverty rate. The poverty rate in 2007 was 12.5 percent, increasing slightly from its level of 12.3 percent in 2006. The poverty rate increased for four straight years from 2000 to 2004. In 2007, the poverty rate was 1.2 percentage points higher than it was in 2000 (Blank, 2007).     

States welfare initiatives

                      Most states took a significant decision about reform, and this decision was sensible in light of state goals and experience. A few states did not seriously make reform policy. New York was so deeply divided that it took no serious decisions about AFDC (Mead, 2002). Alabama and Missouri were pushed into reform by federal action and appeared to have little welfare policy of their own (Mead, 2002). In several other Southern states (Florida, North Carolina), policymaking appeared to be casual and personalized, with the governor or legislators offering reform plans with, apparently, little inquiry or evidence behind them( Mead, 2002) . Texas policymaking was incoherent as the state claimed to pursue work first but based its policy on an experimental program and focused far more on education and training (Mead, 2002). States have always emphasized on reform. But sometimes lower contribution towards these plans result in total failure of the program. Mead (2002) argues that in Florida and Georgia, however, officialdom was dragged into reform but showed little commitment to it. In Arizona and California, the agency or major localities had been heavily committed to a skills-oriented approach to welfare and resisted the shift toward work first. In Texas, welfare reform was a lower priority to administrators than rebuilding non-welfare employment programs and other initiatives. In Colorado and New Jersey, local agencies had a history of defiance toward the state government, and this prevented them from fully endorsing reforms decided in the capital. Mead (2002) argues that inspite of establishment of Employment Service (ES), a federally-funded job placement agency, and training programs under the federal Job Training Partnership Act (JTPA), poverty rate did not improve. After national welfare work programs were first enacted in 1967, the ES engaged in welfare practices. But because the ES’s routine stressed serving job seekers who came to it voluntarily, it generally performed poorly with welfare clients (Mead, 2002). These jobseekers came to it on a mandatory basis, as a condition of receiving aid. To succeed with them, the agency had to enforce work but also support employment with special services. The ES often found both these roles uncongenial (Mead, 2002). The ES was denoted to the role of contractor to welfare and later in 1988 the Workforce Investment Act (WIA) merged the ES, JTPA, and other non-welfare work programs. But this merging also created confusion. The problems included lack of clear procedures to refer clients to WIA, to serve them there, or to report results back to welfare. The states that lacked coordination and inadequate management information systems (MIS) were Massachusetts, Rhode Island, Tennessee, Washington, West Virginia, Florida, Georgia, and Tennessee.      

                         Colorado’s public reform has been associated with decline in poverty rate. By the close of 2000, Colorado’s unemployment rate dropped to 2.6 percent, personal income showed steady gains, state welfare cases declined dramatically, and State legislators wrestled with an estimated $833 million revenue surplus (Colorado Fiscal Policy Institute, 2001). But inspite of all the above facts poverty still persists as expenses like child care, out-of-pocket medical expenses and geo-graphic differences in housing costs increased. The increases occurred even after adjusting for income support such as tax relief, food stamps and school lunch programs, housing subsidies and energy assistance. A report published in 2001 by the Colorado Fiscal Policy Institute determined that a single parent with two small children living in Denver County would need to earn an annual salary of approximately $39,924 in order to meet their basic needs such as housing, food, health care, childcare and transportation without public or private assistance. Even child poverty rate is high in Colorado. About 180,000 children, 15.7 percent of the state total was living in poverty in Colorado in 2006, a 73 percent increase since 2000 (Frosch, 2008). The state of Colorado purchases childcare for income eligible families through the Colorado Child Care Assistance Program (CCCAP). The state allows individual counties to set the purchase price of childcare and make payments to providers from a combination of parental fees and federal, state and county funds. However, the Colorado Office of Resource and Referral Agencies (CORRA) found in a 2001 study that the average county payment fell below 75 percent of market value (Colorado Fiscal Policy Institute, 2001, pp 9). As a result counties forced providers to subsidize the cost of service to low-income families, which many were simply unwilling to do when limited slots could be filled with families that could afford to pay full rates. Other providers that chose not to simply refuse service to CCCAP families saved money by limiting the number of children on CCCAP that they would accept, cutting programs, or reducing workers’ wages. All of these actions limited availability and sacrificed quality of care to low-income children. Poverty still exists in Colorado despite initiatives to alleviate poverty as too many working families lives with incomes below the poverty line and more families earn wages simply too low to afford their basic needs. The Colorado government started the Common Good Caucus in 2007 to develop a 2009 agenda, emphasizing on K-12 education and determined to bring technologies out of the laboratory and into the marketplace by investing $4.5 million dollars in bioscience industry, supporting the Clean Energy fund to reduce high family utility costs , creating the Colorado Solar Incentive Program with $2 million to provide rebates for photovoltaic and solar thermal systems to help Coloradans join the new energy economy and cut their utility bills ( State Rep. Kerr Andy, 2008). Poor people cannot pay the full cost of heating and lighting their homes. Governments and social service agencies have long assisted low-income ratepayers in paying their bills through such programs as the Low Income Home Energy Assistance Program (LIHEAP), charitable fuel funds, levelized billing, discounts, home weatherization, energy efficiency, energy usage education and debt management. If all Americans live in weatherized and energy efficient homes and have the income to pay their full share of utility bills, all other ratepayers would save nearly $6 billion in poverty costs, including fuel assistance, lifeline and other rate assistance, weatherization and efficiency costs, the costs of late payments and service disconnections (Oppenheim and MacGregor, 2007).      

Recommendations  

              From the above analysis it is clear that poverty remains pervasive due to the economic system, social stratification and welfare measures. According to Iceland (2003) on one hand, economic growth and technological changes contribute to increase in wages and overall standard of living. Economic growth accompanied by rising education levels improves the condition of people. On the other hand, the market economy often exerts a contrary effect on poverty levels (Iceland, 2003). To maximize profits, businesses usually seek to pay low wage to workers which increase inequality and poverty. Again policy may increase or decrease the harmful effects of inequality. Combining the factors emphasized by both liberals and conservatives, poverty is multifaceted. I believe that a strong national effort would alleviate poverty. Employment opportunities for all so that that worker and their families can avoid poverty, meet basic needs and save for the future. Increasing hourly wages would definitely improve the condition of these people. A smaller share of unemployed low-wage workers, receive unemployment insurance benefits. I believe that states (with federal help) should reform “monetary eligibility” rules that screen out low-wage workers, broaden eligibility for part-time workers and workers who have lost employment as a result of compelling family circumstances. Workers should use this period of unemployment and the money received from the Unemployment Insurance System and upgrade their skills and qualifications. Thus adults should have opportunities throughout their lives to connect to work, get more education, and live in a good neighborhood and move up in the workforce.

                         Child care assistance to low-income families and emphasis on K 12 education would definitely reduce the rate of poverty in the United States.                          Low-income youth hardly attend college than their higher income peers. Pell Grants play a crucial role for lower-income students. Simplification of the Pell grant application process, and encouragement of institutions to do more to raise student completion rates would definitely improve the condition. Expansion of Pell Grants would make higher education accessible to residents of each state. The states at the same time should also develop strategies to make postsecondary education affordable for all residents. Expansion of the Saver’s Credit would encourage saving for education, homeownership, and retirement. As a result all Americans would have assets that would allow them to weather periods of volatility and to have the resources that may be essential for upward economic mobility. Apart from Saver’s credit, expansion of Earned Income Tax Credit would raise incomes and helps families build assets. Thus there should be opportunity for all so that children grow up in conditions that maximize their opportunities for success.

References:

Blank Rebecca (2007); Poverty to Prosperity; Center for American task force on Poverty;

www.americanprogress.org/issues/2007/04/pdf/poverty_report.pdf – Similar pages

Colorado Statewide Homeless Count (2007), School of Public Affairs, University of Colorado, denver.www.dola.state.co.us/cdh/Publications/Winter_2007_Statewide_PIT.pdf – Similar pages

Cook Richard (2007), Poverty in America

www.globalresearch.ca/index.php?context=va&aid=5905 – 61k – Cached – Similar pages

Corley Mary Ann (2003); Poverty, Racism and Literacy; ERIC Clearinghouse on Adult Career and Vocational Education

Danziger Sheldon (1999), Welfare Reform Policy from Nixon to Clinton, Institute for  for Social Research, University of Michigan.

De Navas-Walt, et al., “Income, Poverty and Health Insurance in the United States: 2005.

Diana Pearce Diana Pearce (1978) "The Feminization of Poverty: Women, Work, and Welfare," Urban and Social Change Review.

Iceland John (2006); Poverty in America; University of California Press

Isidore Chris (2008); the Trillion-Dollar Mortgage Bomb,

money.cnn.com/2008/04/21/news/economy/fannie_freddie/?postversion=2008042103 – 66k –

James Tobin (1993); Poverty in Relation to macroeconomic Trends, Cycles and Policies; Cowles foundation discussion paper.

Garima Dasgupta
http://www.articlesbase.com/politics-articles/anti-poverty-688499.html

EXiiT ”CORRUPTION” No Scope Montage

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Black hawk down soundtrack-gortoz a ran

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LED Lighting – Enlightening the World

Light Emitting Diode, which is conveniently called as LED lights in electronic term is a semi conductor light that emits light as soon as an electric current is applied to it. They are extensively used as indicator lights on electronic devices and also in higher power applications as in case of flashlights and area lighting. As per the technological methodology, an LED is a light source which can be infrared, visible or ultra violet. The color is determined by the composition and condition of the semi conducting material used. Discovered in the year 1907 by H.J Round, a British experimenter, earlier these bulbs were used as replacements for incandescent indicators only.

Methodology

The white color of the LED bulbs come from a narrow band blue that is emitted naturally by GaN LEDs. The yellow on the other hand is generated by a phosphor coating on the die which absorbs a proportion of the blue and converts it to yellow. These GaN die are able to produce operational wavelengths from green to ultraviolet by varying the relative amounts of indium and gallium during production. When electric applied in the forward direction of the device it results in a form of electro luminescence where incoherent and narrow-spectrum light is discharged from the p-n junction in a solid state material.

Advantages

LED technology has taken the world to a whooping stage of development as it is very useful in conservation of energy and pollution. Some of the important advantages of the bulb are -

1. LED lights are more efficient when compared to the conventional bulbs and tube lights. They produce more light per watt against an incandescent bulb and this facet makes it very useful when used in battery powered or energy-saving devices.

2. This technology has the capacity of emitting various colors of light without the use of colors filters that traditional lighting methods require, thus saving initial costs.

3. Due to their small size, they can be easily placed and they also light up very quickly and achieve full brightness in microseconds.

4. These LED light have a better cycling life as compare to incandescent bulbs and also radiate much less heat in the process of switching on and off.

5. They have a better life span around 35,000 to 50,000 hours of useful life and LEDs mostly fail by dimming over time, rather than the abrupt burn-out of incandescent bulbs as in comparison to incandescent lights.

6. These lights are shock resistant and the solid package of the LED can be designed to focus its light. The fact that they are non toxic (do not contain mercury) also favors the application of these bulbs.

Disadvantages

However, withstanding all the advantages, there are certain short comings faced by these LED lights as well. they are listed below -

1. As compared to incandescent bulbs the LEDs are much more expensive and its execution largely depends on the ambient temperature of the operating environment. They require adequate heat sinking in order to make it more durable.

2. These LEDs are also voltage sensitive and one needs to be vigilant as they involve series of resistors or current-regulated power supplies. As they work on the mechanism of area light source, it becomes difficult for them to operate in spherical light field.

3. Of recent it is being observed by the scientists that blue and cool white LEDs emit blue light hazard that is unsafe for eyes. The cool white LED lights should not be used for outdoor lighting near astronomical observatories. Together these lights have certain limitations that are termed as blue pollution.

Applications

LED lights are perhaps the most advanced technology that is taking its tool over the people all over the world. Their application is diverse and hence they can be divided in three distinct categories – Visual signal application where the lights transpires from the bulb to the human eyes directly, Illuminations where LED light is reflected from an object to give visual response and finally, technological approach that does not require the contact with human visual system as in case of light photosynthesis in plants.

Products and Evolution

In the past decade, LED technology has expanded its scope to almost every household in the world. From little red spots that tells one that the wi fi connection is on, to the excellent light source that we see in our rooms just by switching on a plug, applications of LED is ubiquitous. Production quality LEDs are now capable of efficiencies of around 70 lm/W, compared with 12 lm/W for incandescent light bulbs, and single die devices are producing over 100 lm.

Today one can find the implication of these LED lights in many areas. Be it the LCD screen of the computers or the latest version of the mobile phones, be it Ipods or safety and security hardware like LED enabled drainage system or Led micro lights for reading at nights, LED technology is vast and growing by leaps and bounds. The newest trend in the electronic market is the green influence that has not left the LED world bereft. The most recent launches in the LED market are theLight bulbs that can help one save up to 90% of electricity costs plus reduce the heat output and even more than this the bulbs claim to last up to 10 times longer than a standard light bulb or compact florescent. Some of the most advanced LED enabled products in the electronic world are -

LED enabled Faucet Lights – Install this in your homes to give a new look to the monotonous water taps. Available in red and blue they are heat sensitive and alarm the user by changing colors, as soon as the water temperature goes above 89 degrees centigrade.

LED Jellyfish Mood Lamps – These are unique desktop tank that plays trick with the eyes by displaying three jellyfish that swim, with the aid of the 6 bright colorful LEDS that are placed at the top of the tank.

Sony’s Walkman - Sony, the largest supplier of electronic goods has launched a new Walkman called NWZ-X1000 that features an OLED (Organic light emitting diode) touchscreen.

pvyas
http://www.articlesbase.com/electronics-articles/led-lighting-enlightening-the-world-719451.html

Justice Delayed is Justice Denied

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.” He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread and then go out in search of doctors. Referring to an adage that “Justice Delayed is Justice Denied”, Pt. Nehru stressed that disposal of cases must not be delayed.

Securing Justice – Social, Economic and Political to all citizens is one of the key mandates of the Indian Constitution. This has been explicitly made so in Article 39 – A of the Constitution that directs the state “to secure equal justice and free legal aid for all its citizens.” But the experience of last 57 years shows that the state has failed to dispense quick, inexpensive justice to protect the rights of the poor and the vulnerable. Hon’ble Justice B.P. Singh, a serving Judge of the Hon’ble Supreme Court, spoke on the topic “Justice Delayed is Justice Denied: the Plight of Indian Poor” at Observer Research Foundation and said that “the situation today is so grim that if a poor is able to reach to the stage of Hon’ble High Court, it should be considered as an achievement. It has merely become a court of the rich.”

The justice delivery system is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much time that even a generation is too short to get any type of redressal. A brief look at some of the judicial statistics would tell the true story of the state of justice in India today: -

On an average, 50 lakh crimes are registered everyday, which are sought to be investigated by the police.

The pendency of criminal cases in subordinate courts is in the region of 1.32 crores and the effective strength of judges is 12,177.

· The number of under – trials in criminal cases pending in the courts is 1.44 crores and of these over 2 lakh persons are in prison.

· On an average, Courts are able to dispose off 19% of pending cases every year.

The reasons for delay could be attributed to the fact that every case moves from the lowest to the highest level. Too many revisions, bails, applications make five cases of one. The Centre and the State Governments also contribute to the backlog. Not only is the Govt. the biggest litigant but also it creates fresh litigation because it doesn’t honour judicial decisions. Another obstacle to speedy justice is adjournments. As far as the situation in Subordinate Courts is concerned, the infrastructure is non existent and at times the judges have to write judgments with their own hands as they don’t have stenos. Every subordinate judge is caught between oppressive workload and hardly any time or facilities.

Constitution which mandates that the state shall secure that the operation of the legal system shall promote justice, on a basis of equal opportunity and shall ensure that opportunities for securing justice are not denied to any citizen. The Judiciary is bound to shape the processes of the law to actualize the constitutional resolve to secure equal justice to all. A people who are illiterate by and large, indigent in no small measure, feudal in their way of life, and tribal and backward in large numbers, need an unconventional cadre of jurists and judges, if equal justice under the law is to be a reality. If there is breach, judicial power must offer effective shelter. Even if a legislation hurting or hampering the backward sector is passed, the higher courts have to declare the statute void, if it be contra-constitutional. In sum, the judicial process, in its functional fulfillment, must be at once a shield and sword in defending the have-nots when injustice afflicts them. And this must be possible even if the humbler folk, directly aggrieved, are too weak to move the court on their own and a socially sensitive agency advocates the cause. Securing justice – social, economic and political to all citizens is one of the key mandates of the Indian Constitution. This has been explicitly made so in the Article 39-A of the Constitution that directs the State – to secure equal justice and free legal aid for the citizens. But the experiences of last 57 years show that the State has failed squarely on addressing some very basic issues–quick and inexpensive justice and protecting the rights of poor and the vulnerable. The justice delivery system is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.

That it will take more than 300 years to clear the backlog of cases in Indian courts is proof enough that our criminal justice system is sick, stagnant and in urgent need of a complete overhaul. A committee was set up, a couple of years ago, under Justice V S Malimath to examine changes and its report came, coincidentally, at the time that justice was finally done in the Uphaar Cinema case and just before the fourth anniversary, Jessica Lal’s horrific murder. Both cases draw attention, in different ways, to the glaring flaws in our justice system.

In the Uphaar case it is shocking that it took ten years to establish that the 59 people died because of criminal negligence on the part of the cinema management and the Delhi government. It was clear from day one that nobody would have died had the cinema followed safety rules but because the wheels of Indian justice move at the pace of our national vehicle – the bullock cart – it took ten years for justice to be done.

Causes of Delay:-

Delay in disposition of cases- Due to huge pendency, the cases take years for its final disposal, which would normally take few months time. The arrears cause delay and delay means negating the accessibility of justice in true terms to the common man. The very core of a civil society and rule of law is the provision of justice, but the decision must be delivered within a reasonable time. It is totally unfair if a suspected criminal waits for trial for years and is ultimately found innocent. Similarly, the victim of the crime will be also not satisfied if there is no punishment to the criminal for so long. Only speedy justice could ensure effective maintenance of Law and order. Quality of justice not only promotes peace in the society but also strengthens internal security of the country. There are number of litigations which could be avoided if Govt. officials had taken interest, for e.g. section 80 of CPC require a prior notice of two months to Govt. by a party who wish to sue the Govt. The purpose of this section is to give time to Govt. to settle the matter with such party by taking proper and suitable action, and thereby could avoid unwanted and unnecessary litigation. But the utter failure of Govt. official in taking a quick, bold and suitable action inspite of giving time forces a person to file case.

Strength of Judges are inadequate according to population and bunch of cases. As of January 2005, pending cases in the Supreme Court number 30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore – a totally unacceptable situation. Much of this is due to shortage of judges. The ratio of judges to population is 10.5 to one million, the lowest in the world. Even this low level is not reached because of the accumulation of vacancies in the Benches -140 against the approved strength of 668 judges in high courts and 2000 against 15000 in subordinate courts.4

The infrastructure of the lower courts is very disappointing. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The Courts have no convenient building or physical facilities. The executive has failed to provide necessary infrastructure to enable judiciary and function normally. Good library, requisite furniture, sufficient staff and reasonable space are the need of the qualitative justice. In some courts security systems is also not good. The legal profession is one of the most struggling profession but no social security scheme is available for lawyers, some financial aid should be provided to Bar associations or the new beginners by the government. The good working condition of the lawyers would help in the excellence of service and qualitative justice to the litigating public.

Competency of the Other Staff in Court : It should also be kept in mind that not only Judges and Advocates be competent but also the administrative and clerical staff. The clerical staff must be free from all type of corruption. This is the era of computerization. The highly technical and competitive clerical staff will also help in speedy course. We all know how much time is taken in getting merely a copy of the judgment? It is hard that money is used to speed up the process. The bribe giver does not wish, to get anything done unlawfully, but merely wants to speed up the process of movement of files and communication relating to decision. Certain sections of staff concerned do work only after taking money.

Investigative agencies generally delay : The investigation of crime It is generally heard that the accused gets bail as the investigating agency failed to submit charge sheet within statutory period. The combination of several functions, such as crime investigation, riot control, intelligence gathering, and security of VIPs by a single police force has a devastating effect on the criminal justice system. Nowadays, the crime investigation is not immune from the partisan politics. The power of the government to drop criminal charges against the accused has further abused it. The lethargic police investigation is also a ground of slow process of law.

Consider the condition of the poor victims of Bhopal gas Leak disaster, which took a toll of 15000 people. Twenty years had passed to that ghastly incident; still now victims were fighting for its compensation, which fails to measure up the damage caused to them. Consider the terrible situation occurred in August 1991 as massacre of Dalits at Tsundur in Andhra Pradesh. 13 years had passed to that incident, the families of the victims of Tsundur, still await justice for those who died. They say, they will not find any peace until the guilty are punished for their crime. Consider the condition of those girls who were brutally gang raped during the Godhra riots in front of their helpless family members. Consider the victims of Best Bakery case who still awaits justice to be dispensed in their favour but the climax starts with the key witness in the case turned hostile and the entire fate of the Bakery case is in turmoil. Today the victims of the all the above-enumerated cases know full well that the price of truth is extremely high.

“Still they are waiting… But for what? Whether all these amounts to justice?”

Remedies to Overcome Delay (Suggestions)

I. Talking about the strategies to deal with justice delay, an improved justice delivery system means cutting down the number of adjournments, reducing the time for arguments, keeping a check on review petitions/ frivolous petitions, stopping lawyers extending cases and so on.

II. Punishments should be very stringent and the implementing authorities should be tough so that crime comes down automatically.

III. Lawyers should encourage out of Court settlements.

IV. In case a lawyer looses a certain number of cases, his license should be suspended for sometime so that lawyers refrain from taking up frivolous cases.

V. Govt. Officials should be made personally liable for lapses so that cases against the Govt. are reduced.

VI. The number of appeals to be filed for each category of case should be fixed. Every litigant should not be allowed to go to the Hon’ble Supreme Court. If need be, the law can be changed accordingly.

VII. It is needed to establish a body at national level composed of Judges, Lawyers and Legal academics, which should be charged with a duty to conduct examinations for recruitment to Indian Judicial Service (IJS). Article 233 will have to be amended to confer power on the president to appoint members of Indian Judicial Services on the recommendation of National Judicial Service Commission. The creation of Indian Judicial Service is appeared necessary to get best available talent in the country.

VIII. There is urgently need to improve the basic infrastructure and management of resources. Modern technology and use of computers could also increase the efficiency of the court system. The judiciary has also to learn management techniques through training at all levels. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The lower courts are the basic institution of justice and to improve the quality of the justice dispensed with, it is necessary to improve their infrastructure by modern technology. Lack of funds should not be allowed to enter in the way of development of infrastructure, as external security is necessary, internal maintenance of law and order is also necessary for the internal security, national interest, peace and progress. In general budget certain handsome amount could also be allocated to judiciary like defence and education or a separate judicial budget should be placed, like railway budget. The panel of government lawyer should also be on merits not on the basis of nearness to ministers. As the government is the largest litigant, more transparency is required on their part. Govt. counsel should be selected on the basis of merit, efficiency, integrity, by some transparent manner. There should also be some permanent vigilance provision to observe the working of the public prosecutors. Security system in courts also needs improvement for proper confidence of people and fearless functioning of system. Information-counter should be set up in every court for the convenience of litigating public.

IX. Our criminal justice system has the urgent requirement of Independent Investigative Agency. Delay in police investigation is also one reason due to which cases linger on for years. It is, therefore, good to create an independent wing of police force, fully in charge of crime investigation, and functioning under the direct control of independent prosecutors. That wing should be accountable to judiciary and not to particular government of a time. The practice of torture and third degree methods, extra judicial execution in fake encounters may be stopped also when crime investigation machinery became accountable to judiciary. Such type of police wing also became knowledgeable about the type and method of the evidence needed. Hence, baseless cases, which lead acquittal, also could come down. So, there should be co-ordination between police and prosecuting agencies. The early disposal of case also boosts the morals of police force and will save time, which would have been taken in producing arrestee to the court Horn time to time.

X. We have inherited British legal system, British prescribed it at that time, without considering the need of Indian society nor did they consider the practical of the procedure. So, this system is drawn from different sources without seeing the ground realities. Some people today prefer to keep quiet, rather than go to the court of law. So, now this system is more Indianised for making it fit to society. It is heard that in ancient time justice system was very good. The disputes were settled on the spot by delivering justice. But ancient justice proceedings were oral in general and therefore no much record is available. Now we can take modem know-how from the countries, which have best justice delivery system by getting acquainted with the procedure followed there, if fit to Indian society. The civil and criminal procedure codes and the laws of evidence have to be substantially revised to meet the requirements of modem judicial administration. Though most of procedural laws are effective even today but some provision needs revision, especially the civil laws. To lessen the burden of cases, we may introduce the concept of’ Plea-bargaining’ by decriminalization of those wrongs, which can justly be dealt with by compensatory remedies (Compensation to victim like in tort). The institutions involved in justice delivery system such as the police, the prosecution, and the court, prison etc.-requires to be reformed in terms of organization, procedures, resources and accountability. So that, nowhere citizen feels uneasiness. There should be time limits prescribed for adjudication. There should be uniform formats for the appeals and petitions to make the procedure easy. The judgment should be in brevity and clarity. The concept like of public interest litigation is always welcoming, which is affordable to common men. Hence, there is a lot of scope to improve the situation. For e.g. Section 301 Cr. P.c. should be amended to allow the victim to appoint a lawyer of his choice in addition to public prosecutor to defend his case. Similarly, Section 3 13 (3) of Cr. P.C. also be amended so that the accused would be held liable for refusal to give answer or telling lie. The victim will be allowed to cross-examine the accused to elucidate the truth. There must be some fixed time for presentation of written statement, counter claim and reply like the plaint, under the I imitation Act. After all procedural law is meant to further ends of justice.

Conclusion

While the problem of delay looks daunting, it can be dealt with, by having more fast track Courts, making judicial services more attractive thereby attracting good lawyers and filling up all vacancies at various Courts. We can conclude from the above discussion that we should not resort in extra-ordinary hurry-up of cases by whatever means. As justice delayed is justice denied, similarly, the saying, justice hurried is justice buried is equally true. Therefore, sufficient, reasonable and due hearing of every cases with consideration of its circumstances is the necessary requirement of natural justice and balance of convenience. In fact, the untiring efforts put by fear and flavorless Indian Judiciary is doing commendable job of imparting justice in spite of so many difficulties, which created faith of public in the rule. Of law is a great achievement, which really requires deep appreciation. Social justice will be possible only if the entire concept of egalitarian politico-social order is followed, where no one is exploited, where every one is liberated and where every one is equal and free from Hunger and poverty. The proverb ‘Justice Delayed is Justice Denied’ is proved as it is denied to the poorest of the poor. Providing basic necessities to them will amount to Justice because the definition of justice varies from individuals to individuals on the basis of its economic conditions. According to B.P.Singh J the situation today is so grim that if a poor is able to reach to the stage of a high court, it should be considered as an achievement.  Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Finally, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

“Without Justice, life would not be possible and even if it were it would not be worth living” ……Giorgio Del Vecchio”

Siddharth Chitturi
http://www.articlesbase.com/national,-state,-local-articles/justice-delayed-is-justice-denied-678153.html

In Search of War-free World

Man may or may not accept the questions of ultimate causes and purposes, of reality of man and other living beings, and of  matter, energy and consciousness, as insoluble mystery or may or may not find himself unable to reach some supreme Reality or may or may not believe in God as enforcing His moral discipline, but his targets of life should not be such as determined  on uncertain antagonistic basis and attainable by shedding blood of each other, but should be addressed  to social cohesion and peace. Without peace viz. in conditions of tension and wars, material acquisitions do not give enjoyment, but bring worries.  

       Man, by his original error, has been taking the world for his own indulgence resulting in individuals’ inter se relationship as of rivalry and violence, spending whole life so far in becoming strong by accumulating wealth and inventing weapons of war and shedding blood of his own kind. The present order has, therefore, developed as pro-establishment and anti people. As the path is leading mankind to catastrophic conditions, man should seek some other way that may save mankind from the apprehended dark future. Capitalism and socialism are not the only systems, either to replace the other. Both are based on the same error of self indulgence, growing from hostile atomism leaving no scope for an order of co-existence. 

    Man has produced neither the world nor himself that he may fix his targets of life as self indulgence and self supremacy. The world produces beings/individuals from its own self with certain potentials and properties for its own purpose. It has provided every being with the reproductive system and divided each species into male and female genders obviously for its own continuity through their offspring. Beings have been provided with other faculties and properties for their maintenance Thus the role of individuals is of contribution to the world order like all other forces of nature. In performing their role in the service of the world order, beings get superior enjoyment to that pleasure that they get in sensual indulgence and arrogance. All beings are therefore for one purpose that is to serve the world order and therefore their inter se relationships become that of cooperation, co-existence and love, not of rivalry, tension  and wars. Mankind should therefore develop a culture that should   establish a world order of coexistence finishing all chances of wars and that is possible in realizing the reality as cohesive organism

        Materialism that has been erected by the commercial class on hostile atomism, not on science, is illogical and is obsessed with the motivation of increasing their own wealth, not for the wellbeing of the people. It is also in struggle to get emancipation from the papacy that imposes moral discipline which businessmen think as anti progress. . Though material science has given mankind many things of comforts, speed and efficiency, but, materialism that rules the people by its political science and economics, which are not authenticated as scientific by the scientists, .is responsible for all the modern human problems which are threatening the very existence of mankind. The problems emanate from its wrong targets of self indulgence and self supremacy, and doctrines like individualism, competition, and the misuse of maxim of survival of the fittest with the corollary that unfit must suffer for their  unfitness. These are against the spirit of social cohesion and peace and deny others right to live with dignity.

     Modernism since its advent has ever been pursing linear approach in inventing   things and innovating measures, claiming to make life comfortable, but practically for eliminating each other, making life complicated, hard, stressful and devastating by result. People are allured by it as well as fearful of its march and find themselves disillusioned and helpless apprehending that this way goes to hell, not to paradise Theoretically, they are to cooperate, compete and co-exist in the exploitation of Nature for this purpose. But people competing for self indulgence and self supremacy, cannot by nature co-exist. They exploit Nature in competition for eliminating each other.      

    Atomism developed after industry was mechanized in Europe. Then their businessmen became greedy and arrogant and made their targets as self indulgence and self supremacy, holding that progress is possible by competition. The European countries became the producers and the whole world was their market, thereby they became prosperous.. In the process they themselves fought many bloody wars for carving out their empires and   wasted their funds on wars. After the World War II, the slave countries become free and they too have become industrialized and producers. Mechanization of industry is increasing unemployment and   bringing poverty to the majority of the people.   Now the whole world is going to be producer producing goods much more than the need and beyond the purchasing power of the majority. The mechanized capitalism is waiting for its own collapse and the end of atomism though it has already got  crippled by its own produced problems viz. pollution, global warming, over-consumption of natural resources,  diseases and other problems routed in them. Though   disillusioned from this order, atomists   feel helpless seeing no other alternative.

   Now the people are at the mercy of lethal weapons, terrorism; wars, stress and tension, global warming and pollution of environments and food, diseases like cancer as legacy of this order. These problems are the product of .atomism and the state constitutions made under it. Issues of purposefulness of life, stability of family, social cohesion and peace of mind most needed by mankind, pose greatest challenge to the linear atomism .From the above results we do understand that the path is wrong and needs revolutionary change, not patch work in the present system. Presently  countries are governed by state hostile polities under nationalism and patriotism. Its antidote is world polity World polity means one system to govern the whole mankind believing in oneness of mankind and for the welfare of all. World government is different thing from world polity. The former can be by domination of one country without believing in the oneness of mankind and the welfare of all.  Feasibility of world polity has to be maintained as there is no other alterative. As state polities are under atomism, World Polity would be established in the culture of its antidote organism.

. The world in reality is an organism functioning by its own produced constituents by their inter se relationship of complementarity and interdependence. We understand that all beings have the one and the same source, support and destination. These facts point to the oneness of mankind as the reality and to the divinity of   world polity. Purpose of life is enjoyment by making contribution. Tendencies of assertion and greed are individual’s weaknesses, not reality. It is to be won over and can be won over by culture of organism.

        People should raise voice against exploitative atomism and for the annulment of the constitution made there under and a new one be made on the basis of organism, not by politicians but by those who believe in the oneness of mankind and co-existence to function as per world polity; allowing freedom for local cultures and arrangements, subject to their conformity to the world polity. It appeals to the governments and universities to reject state polities and instead propose world polity to be enforced though UN. It would save mankind from destruction by wars and wastage of huge funds on arrangement of armies, parliaments and legislative assemblies and law and order machinery. Laws would be part of culture and education. Education of organism in all units/countries would be under UN to ensure that no unit gets   inclined for assertion over others.           

        Organism is the seed of phenomena, from which two leaves or wings sprout, one of World Polity and the other is of Culture, which are complementary like male and female genders for the maintenance of the world order. Culture disciplines the world polity and world polity protects culture.        The forum of UN can play the role for promulgating world polity from above. As an agency of the whole world, world polity under UN would check competition and exploitation between countries from top. Within the states, after being free from fear of external aggression, the culture of organism   would guide and discipline minds of the people both in authority and in the public at the bottom, to work for the welfare of all, not for self supremacy. The states then would be administrative units.   UN would prepare the member countries to adopt organism as path of peace and cooperation and shun the path of exploitation of each other by trade or militarily in the interest of world peace It would amend its own Charter of objectives by the new one and ask member countries to change their own constitutions too with the objective of ending economic exploitation of the people and the countries by trade or militarily,   

  ..                                                                                                                       

  Dr. S.R. SHARDA

DR. S R SHARDA
http://www.articlesbase.com/self-publishing-articles/in-search-of-warfree-world-716433.html

Preemption of State Law Intentional Tort Actions Under the Airline Deregulation Act of 1978

After years of tight government control over the airline industry, Congress chose to pursue a policy of economic deregulation, enacting the Airline Deregulation Act of 1978 (ADA). Areas formerly controlled by the federal government, such as the awarding of routes, the entry of new air carriers, and the setting of fares, were left to the airlines and the free market to determine. Congress, concerned that States might attempt to circumvent federal airline deregulation through their own state enforcement actions, included an express preemption clause in the ADA, which bars States from enforcing laws “related to a price, route, or service of an air carrier.” This apparently innocuous provision continues to cause confusion and divide courts over exactly what causes of action are preempted by the ADA.

Top-ranked Chicago personal injury attorney, Matthew A. Passen, examines one class of state-law based actions, intentional tort claims, and considers whether such actions are sufficiently “related to” an airline “service” for preemption under the ADA. For example, can a passenger who was refused boarding on a commercial airline and strapped to an immobile chair in the waiting area sue the airline for false imprisonment? Can a passenger detained by airline employees upon landing of an aircraft, wrongfully accused of stealing another passenger’s ring, and arrested by police, seek recourse against the airline for false arrest, intentional infliction of emotional distress or slander? Can an airline racially discriminate against a passenger or airline employee with impunity?

As the following discussion reveals, the answer to these questions often depends entirely on how broad or narrow courts interpret the ADA’s statutory phrase, “related to a . . . service of an air carrier.” If a narrow reading is adopted, plaintiffs will have their day in court. If, on the other hand, a court interprets the preemption provision broadly, airlines will essentially receive immunity from state-law intentional tort actions.

Often, the best answer to such questions of statutory interpretation is found by reconsidering the purpose of the underlying statute containing the preemption provision. Here, the purpose of the ADA is straightforward: economic deregulation of the airline industry.

BRIEF HISTORY OF THE ADA’s PREEMPTION CLAUSE

Prior to 1978, the federal government heavily regulated the airline industry.1 Beginning with the Federal Aviation Act (FAA) of 1958,2 Congress created a regulatory organization, known as the Civil Aeronautics Board (CAB), to serve three main functions: award routes to airlines, control the entry of air carriers into new markets, and regulate fares for consumers.3 Still, Congress preserved state common law actions against airlines by including a “saving clause,” which provided: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”4

In 1978, however, Congress changed courses with respect to airline regulation, determining that “maximum reliance on competitive market forces would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . . of air transportation services.”5 Accordingly, Congress enacted the Airline Deregulation Act of 1978 (ADA),6 which gradually ended economic regulation of the airline industry in a series of steps over the years, including the elimination of the CAB.7

The ADA, unlike its predecessor, contained express federal preemption clause to ensure that “States would not undo federal deregulation with regulation of their own.”8 The ADA’s preemption clause states:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart.9

This preemption standard, while simply stated, has proven far more difficult to apply than Congress could have anticipated.

One source of confusion is Congress’ retention of the “saving clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 10 Some courts have found Congress preserved this clause in order to protect the states’ ability to control non-economic matters involving airlines within their respective borders.11 Still, the Supreme Court has referred to the saving clause as “a relic of the pre-ADA/no pre-emption regime,” without power to supersede the specific substantive preemption provision of the ADA. 12

The greatest source of confusion surrounding the ADA’s preemption clause concerns the ambiguous language of the statute itself. In particular, courts have struggled to advance a coherent framework for what types of causes of action are “related to a price, route, or service” for preemption under the ADA. Congress neither defined the terms nor specified what types of state action are preempted, and the Supreme Court has not drawn any distinct preemption lines.13 Consequently, lower courts have been left to apply their own, often conflicting, interpretations of the ADA’s preemption clause. Regardless of statutory interpretation, courts remain guided by fundamental principles of preemption doctrine.

BRIEF INTRODUCTION TO PREEMPTION DOCTRINE

The foundation for federal preemption of state law is based on the Supremacy Clause of Article VI of the Constitution, which provides: “This Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”14 As a general rule, federal law preempts state law in three situations:15 (1) Express preemption: where Congress has explicitly preempted state law;16 (2) Field preemption: where Congressional intent to preempt may be inferred generally from the pervasiveness of a federal regulatory scheme in a particular area;17 and (3) Conflict preemption: where state law conflicts with federal law or interferes with the achievement of congressional objectives.18

Where Congress has included an express preemption clause in a statute, courts “typically do not consider the issue of implied pre-emption,” and instead simply “determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress.”19 In other words, according to the Supreme Court:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.20

Because Congress included an express preemption clause in the ADA, courts look to the specific statutory language in order to determine whether a particular state action is preempted. Unfortunately, the literal text of the ADA’s preemption clause is ambiguous; and the Supreme Court has not resolved the uncertainty.

SUPREME COURT INTERPRETATION OF

THE ADA’s PREEMPTION CLAUSE

The United States Supreme Court has interpreted the ADA’s preemption provision only twice since 1978. In Morales v. Trans World Airlines, Inc.,21 the Court decided whether the ADA preempts States from regulating deceptive airline fare advertisements through enforcement of state consumer protection statutes.22 The Court held such actions were indeed preempted by the ADA.23

In reaching its decision, the Court focused on the statutory phrase “related to” in the ADA’s preemption provision. First, the Court looked to Black’s Law Dictionary for guidance, concluding that “the words thus express a broad pre-emptive purpose.”24

Second, the Court examined the similarly worded preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA),25 which the Court had previously interpreted as having a “broad scope.”26 Therefore, the Court held: “Since the relevant language of the ADA is identical [to the ERISA preemption clause], we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted” by the ADA.27 Although the Court in Morales declined to define with particularity the circumstances under which a state law “relates to” airline services, it held the state consumer protection guidelines at issue were sufficiently “related to” airline “price[s]” because enforcement of such guidelines would compel or restrict airline price advertising.28

Notably, however, the Court recognized there are limits to the scope of the ADA’s preemption clause.29 Specifically, the Court explained that state action affecting the airlines in “too tenuous, remote, or peripheral a manner” will not be preempted by the ADA.30 The Court declined to expand on this notion, instead stating, “[t]he present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line.”31

In 1995, the Supreme Court revisited the ADA’s preemption clause in American Airlines, Inc. v. Wolens.32 Here, the plaintiffs brought claims against American Airlines for breach of contract and for violations of the Illinois Consumer Fraud Act following the airline’s unilateral devaluation of frequent flyer mileage credits earned by the plaintiffs.33 Rather than focusing on the “related to” language of the ADA’s preemption clause, the Court examined the phrase “enact or enforce any law” in the provision.34

First, in accord with Morales, the Court held that the plaintiffs’ claims based on the Illinois Consumer Fraud Act were preempted by the ADA.35 The purpose of the Illinois statute, according to the Court, was “to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers.”36 Therefore, because the plaintiffs sought to “enforce [a] law” regulating “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,” the plaintiffs’ claims under the Consumer Fraud Act were preempted.37

Second, the Court carved out an exception to ADA preemption for the plaintiffs’ breach of contract claim. The Court explained: “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.”38 Because the plaintiffs’ breach of contract claim (based on American’s modification of its frequent flyer program) sought to enforce the terms of a voluntary undertaking by the airlines, and did not seek to “enforce any law,” the claim was not preempted by the ADA.39

COURTS OF APPEALS’ CONFLICTING DEFINITION OF “SERVICE”

Although the Supreme Court interpreted the “related to” phrase in Morales, and the “enact or enforce any law” language in Wolens, the Court has not defined the term “service” of an airline, as it is used in the ADA’s preemption clause. Instead, the United States Courts of Appeals have been left to define the term, resulting in conflicting approaches.

In Charas v. Trans World Airlines, Inc., the Ninth Circuit adopted a relatively narrow definition of “service.”40 Because the term “service” is inherently ambiguous, the court looked to the purpose behind the ADA, which Congress enacted to protect “the economic deregulation of the airlines and the forces of competition within the airline industry.”41 As such, only state laws that interfere with economic deregulation and the forces of competition within the airline industry should be preempted.42 Conversely, ADA preemption should not “displace state tort law in actions that do not affect deregulation in more than a ‘peripheral manner.’”43

With these principles in mind, the Ninth Circuit defined “service,” as referring to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.”44 This definition includes “such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided.”45 This definition of “service” does not, however, encompass things such as “the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions,” which the court found only peripherally affect airline deregulation or competition.46 Any broader a definition, according to the court, “effectively would result in the pre-emption of virtually everything an airline does. It seems clear to us that that is not what Congress intended.”47 This approach to ADA preemption has been followed by the Third Circuit.48

In contrast, the Fifth Circuit adopted a much broader definition of “service.”49 In Hodges v. Delta Airlines, Inc., a female passenger was injured when another passenger opened an overhead compartment and dislodged a case of rum. She brought a state law personal injury claim against Delta Airlines based on alleged negligent operation of the aircraft.50 In order to determine whether the plaintiff’s claim was preempted by the ADA, the Fifth Circuit adopted the following definition of “service”:

“Services” generally represent a bargained-for or anticipated provision of labor from one party to another . . . Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provisions of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.51

This definition of “service” is clearly far broader than the Ninth Circuit’s definition in Charas.

Still, the Fifth Circuit held the plaintiff’s claims were not preempted by the ADA. The court distinguished between claims related to the “operation and maintenance of the aircraft,” and claims related to airline “services,” holding that claims falling in the former category are not preempted by the ADA.52 With respect to the plaintiff’s claims, the court explained: “One uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation.”53 The court rejected Delta’s arguments that the plaintiff’s injuries arose out of the “service” of baggage handling and boarding.54 Instead, the court found: “Whether certain luggage may be placed in overhead bins and whether the flight attendants properly monitor compliance with overhead rack regulations are matters that pertain to the safe operation of a flight.”55

Thus, while the Fifth Circuit adopted a broad definition of “service,” it added another layer of confusion with an almost untenable distinction between “service” and “operation and maintenance.” 56 Nevertheless, at least three other Circuit Courts of Appeals have adopted the Hodges court’s definition of “service.”57

SUPREME COURT DECLINES TO DEFINE “SERVICE”

In late 2000, the Supreme Court declined the opportunity to resolve the conflict concerning the appropriate definition of “service” within the meaning of the ADA’s preemption clause.58 Earlier that year, in Duncan v. Northwest Airlines, Inc., the Ninth Circuit held that a class-action lawsuit challenging Northwest’s smoking policy was not preempted by the ADA.59 Relying on its earlier narrow definition of “service” in Charas, the Ninth Circuit held that allowing smoking on Northwest flights does not constitute a “service” because such decision does not deal with “the frequency and scheduling of transportation, [or] the selection of markets to or from which transportation is provided.”60 Northwest appealed the Ninth Circuit’s decision, and the Supreme Court denied the petition for a writ of certiorari.61

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented to the Court’s denial of certiorari. In her dissent, she notes how the Courts of Appeals have “taken directly conflicting positions on this question of statutory interpretation.”62 Given these contradictory interpretations, the dissenting Justices would have granted certiorari in order to “provide needed certainty to airline companies.”63

APPLICATION OF THE ADA PREEMPTION CLAUSE

TO STATE-LAW INTENTIONAL TORT CLAIMS

Also in her dissent to the Court’s denial of certiorari in Duncan, Justice O’Connor suggests that while the underlying case involved a state law personal injury claim based on an airline’s smoking policy, “the legal principle at stake,” namely, the correct definition of “service” within the meaning of the ADA’s preemption clause, “has ramifications for a host of other tort actions against airline,” including “false imprisonment,” “intentional infliction of emotional distress,” and “defamation.”64 This section examines how courts have analyzed and should analyze these types of actions. Such cases often include state law discrimination claims.

DISCRIMINATION CLAIMS

The United States Supreme Court has not decided whether actions against airlines alleging state discrimination violations are preempted by the ADA.65 For lower courts examining this issue, the preemption outcome largely depends on the court’s definition of “service.”

A. Employment Discrimination Actions

Generally, discrimination suits brought by former airline employees bear “too tenuous, remote or peripheral” a relation to airline rates or services for preemption under the ADA, regardless of the court’s definition of “service.”66 Courts refusing to preempt such actions stress the purpose of the ADA, which “was concerned with the states’ attempt to regulate airline fares, routes and services, not employment practices.” 67

For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.68 As the Second Circuit explained in Abdu-Brisson: “Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [Wolens], whether an airline discriminates on the bases of age (or race or sex) has little or nothing to do with competition or efficiency.”69

In other contexts, however, enforcement of state discrimination laws may appreciably “relate to” airline “services,” warranting preemption by the ADA. For instance, in 1996, the Michigan Court of Appeals held that state law weight discrimination claims brought by a baggage handler who was terminated for failure to comply with the airline’s height and weight standards were preempted by the ADA.70 Applying the Supreme Court’s broad interpretation of the phrase “related to” in Morales, the Michigan Court of Appeals held the plaintiff’s discrimination claims “related to” the “services of an air carrier,” and were preempted accordingly.71 In this case, as well as in other disability discrimination actions where the state law arguably “relates to” airline “service,” the scope attached to these statutory terms ultimately determines the preemption outcome.

B. Passenger Discrimination Actions

Cases addressing the scope of ADA preemption in discrimination actions brought by airline passengers provide a less coherent body of case law.72 Ultimately, whether or not a discrimination claim is preempted depends on the court’s definition of “service.”

Generally, courts have found such claims entirely unrelated to the performance of airline services, and therefore outside the scope of ADA preemption.73 For example, in Doricent v. American Airlines, Inc., a male passenger alleged that prior to his flight’s departure from Haiti, American Airlines employees referred to him using racial epithets, threatened to remove him from the plane, and physically assaulted him.74 The court held the plaintiff’s state law race discrimination claims did not “relate to” airline “services” under the Supreme Court’s precedent in Morales.75 While the airline employees’ behavior might “arguably constitute ‘services’—poor services, to be sure,” the court found this behavior had “nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service.”76

Still, in other contexts, discrimination claims may have some legitimate bearing on an airline’s ability to render safe and efficient “service.”77 In such cases, even those involving alleged race discrimination, the plaintiff’s discrimination claims might be preempted by the ADA.

For instance, in Huggar v. Northwest Airlines, Inc., the United States District Court for the Northern District of Illinois held that an airline passenger’s race discrimination claims against Northwest were preempted by the ADA.78 The plaintiff, a 21-year-old black male was removed from a Northwest flight after removing another passenger’s luggage from an overhead bin and throwing it on the floor, threatening to physically assault the passenger, and claiming he could “buy” the passenger.79 The plaintiff’s ten-count claim against Northwest alleged that his ejection from the flight was racially motivated, and included a claim for a violation of the Illinois Human Rights Act.80

In determining whether the plaintiff’s state law race discrimination claims related to Northwest’s “service” of providing airline transportation, the court employed the following analysis: “the critical inquiry is [sic] the underlying nature of the actions taken, not the manner in which they were accomplished. Therefore, a court should not look to the subjective motivations of the employees because they are irrelevant to determining what constitutes ‘services’ within the meaning of the [ADA].”81 According to the majority, because the plaintiff’s actions clearly posed a safety threat to the other passengers, the airline’s decision to eject him from the flight “related to” the “service” of boarding and seating passengers, notwithstanding the airline employee’s subjective, allegedly discriminatory motivations.

As the above case highlights, the preemption outcome in passenger discrimination cases often depends entirely on whether a particular jurisdiction employs a broad or narrow definition of “service.” In order to find the plaintiff’s claims preempted by the ADA, the Huggar court first had to include “boarding and seating decisions” as cognizable “services” under the ADA’s preemption clause. In a similar case, the U.S. District Court for the District of Massachusetts held that a passenger’s lawsuit alleging he was discriminated against on account of his handicap in connection with boarding on a particular flight was preempted by the ADA.82 Necessary to the court’s decision was its reliance on the Fifth Circuit’s broad definition of “service,” which explicitly refers to “boarding.”

Conversely, jurisdictions employing the Ninth Circuit’s narrow definition of “service” will reach the opposite result under identical scenarios. For instance, the Ninth Circuit held a plaintiff’s disability discrimination claim against American Airlines based on the airline’s refusal to allow the plaintiff to board without a doctor’s certificate (she was in a wheelchair and had a heart problem) was not preempted by the ADA.83 The court’s analysis was probably over-simplistic; it simply held, “the term ‘service’ does not refer to alleged discrimination to passengers due to their disabilities.”84 Consequently, whether a passenger discrimination lawsuit is preempted by the ADA may ultimately depend on the court’s definition of “service.”

FALSE ARREST/ IMPRISONMENT

Several courts have addressed the issue of whether the ADA preempts false imprisonment and false arrest claims, reaching divergent conclusions.85 These cases can, however, be reconciled.

Where the courts have held a plaintiff’s claim for false arrest or false imprisonment is preempted by the ADA, such cases involve incidents where the airline refused or failed to provide a service relating to the transportation of a passenger.86 In these cases, “where the crux of the claim was the airline’s refusal to transport the passenger,” the courts have concluded that the claims related to the services of the airlines, and were therefore preempted by the ADA.87 This makes sense because all Circuit Courts of Appeals agree that “transportation” of passengers is a cognizable “service” under the ADA.

Conversely, where the basis of a false arrest or false imprisonment claim “is that the airline caused the passenger to be arrested by authorities without a proper factual basis,” courts have held that such claims are not “related to” an airline “service.”88 For example, if “an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted.”89

OTHER INTENTIONAL TORT CLAIMS

The Circuit Court of Appeals for the Seventh Circuit, in Travel All Over The World, Inc., examined whether a travel agency’s intentional tort claims against Saudi Arabian Airlines, arising out of the travel agency’s unsuccessful attempts to arrange flights to Saudi Arabia for its clients, were preempted by the ADA’s express provision.90 The court organized the plaintiff’s claims into two categories: (1) defamation and slander; and (2) “other” intentional tort claims.91

With respect to the first category, the Seventh Circuit acknowledged that courts have reached “divergent results” concerning whether claims for slander and defamation are preempted by the ADA.92 Here, the plaintiff based its defamation and slander claims on the airline employees’ making knowingly false verbal and written statements about the travel agency to the agency’s clients; specifically, that the agency “was not a reputable company, that [the agency] had not booked seats on Saudi for many of them, that [the agency] often lied to its clients about reserving seats for them, and that” the agency’s president would not be there to help them.93

Even after adopting the Fifth Circuit’s broad definition of “service,” the Seventh Circuit held the statements themselves were not airline “services” within the meaning of the ADA.94 Citing the Supreme Court’s opinion in Morales, the court explained: “It is difficult for us to envision how tort claims based on an airline’s knowingly false statements about a travel agency would have even a ‘tenuous, remote or peripheral’ economic effect on the rates, routes, or services that the airline offers.”95 Furthermore, although the statements refer to the travel agency’s services, the court held they certainly do not refer to the airline’s rates, routes, or services.96 Therefore, the plaintiff’s defamation and libel claims were not preempted by the ADA.

With respect to the second category of “other” intentional tort claims, including intentional infliction of emotional distress, tortious interference and fraud, the Seventh Circuit reached a different opinion. Only where these claims are based upon the same slanderous and defamatory comments that the court already found not preempted, could such claims withstand preemption scrutiny.97

Yet, the Seventh Circuit doubted this would hold true for the plaintiff in Travel All, as with most plaintiffs. Instead, the “other” intentional tort claims were most likely “based, at least in part, on [the airline’s] canceling the confirmed tickets of [the agency’s] clients and requiring these clients to purchase their tickets directly through [the airline].”98 To the extent that the plaintiff’s intentional tort claims rely on this “conduct” of the airline, rather than the airline employee’s allegedly slanderous and defamatory “comments,” the court held such claims “expressly refer to airline ‘services,’ which include ticketing as well as the transportation itself,” and are therefore preempted by the ADA.99 Again, this holding depends entirely on the court’s adoption of the Fifth Circuit’s broad “service” definition in Hodges, as opposed to the Ninth Circuit’s narrow definition of “service” in Charas.

CONCLUSION

The ADA’s preemption clause continues to cause confusion and divergent opinions throughout our nation’s courtrooms. The fundamental problem concerns the seemingly benign phrase “related to a price, route, or service” of an air carrier. The Supreme Court has done little to clear the fog surrounding this issue. Aside from expressly declining the opportunity to define “service,” the Court’s interpretation of the phrase “related to” has recently come into question.

In Morales, the Supreme Court interpreted the “related to” language of the ADA broadly, based largely on the “broad scope” previously applied to the similarly worded ERISA preemption clause.100 Yet, in recent years the Supreme Court has been narrowing the reach of ERISA’s preemption provisions.101 Indeed, the phrase “related to” in ERISA’s preemption clause “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the ERISA legislation.”102 Although the literal text of ERISA’s preemption clause is “clearly expansive,” like the ADA, the Supreme Court has held that for practical purposes the statute must be interpreted more narrowly, “lest its reach stop nowhere.”103 Analogously, it is unclear whether the ADA’s “related to” phrase should likewise receive a narrower interpretation to mean: whether state law actually interferes with the purpose of the ADA.

The larger question involving the ADA preemption clause concerns the proper definition of “service.” The Supreme Court has expressly declined to answer the question, despite the objections of three Justices.104 If the Court is not going to answer this question, Congress should. A clear definition of “service,” from either the Supreme Court or the Legislature, “would provide needed certainty to airline companies.”105

The question becomes: What definition of “service” should the Supreme Court or Congress adopt for the ADA’s preemption clause? This question must be answered in light of the fundamental purpose behind the underlying statute—courts should look to the objectives of the ADA as a guide to the scope of state law that should survive. The ADA is an economic deregulation statute designed to promote competitive rates, routes and services among the nation’s airlines.106 As such, only those actions directly impacting the airlines’ ability to provide competitive rates, enter new markets, and provide effective transportation to consumers should be preempted by the ADA.

The Ninth Circuit’s narrow definition of “service,” which encompasses the “prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” best aligns with the purpose of the underlying ADA statute. Furthermore, this definition comports with the Supreme Court’s approach to express preemption clause analysis: “the familiar principle of expression unius est exclusio alterius.”107

Neither the language nor the history of the ADA suggests that Congress was attempting to displace all state law tort causes of action against the airlines; nor should the preemption clause act as a safe harbor against claims having only a tenuous impact on airline services.108 The vast majority of state law intentional tort claims cannot be said to frustrate the goal of economic deregulation in the airline industry. Furthermore, such claims do not affect a particular airline’s competitive posture any more so than a lawsuit affects any corporation in America. Accordingly, such actions should fall outside the scope of federal preemption under the ADA.

1 For a good discussion of the ADA’s legislative history, see Daniel H. Rosenthal, Legal Turbulence: The Court’s Misconstrual of the Airline Deregulation Act’s Preemption Clause and the Effect on Passengers’ Rights, 51 Duke L.J. 1857, 1869-1872 (2002).

2 Pub. L. No. 85-726, 72 Stat. 731 (later codified as amended at 49 U.S.C. §§ 40010-44310 (1994)).

3 Matt Andersson, The New Airline Code 62-64 (iUniverse, Inc. 2005).

4 49 U.S.C. § 1506 (current version at 49 U.S.C. § 40120 (c)).

5 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (citing 49 U.S.C.App. §§ 1302 (a)(4), 1302 (a)(9)).

6 49 U.S.C. app. §§ 1301-1557 (1988).

7 Matt Andersson, The New Airline Code 67 (iUniverse, Inc. 2005).

8 Morales, 504 U.S. at 378; See also Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996) (stating that the purpose of ADA’s preemption clause was to prevent states from interfering with the development of an air transportation system driven to higher levels of innovation and efficiency by economic competition).

9 49 U.S.C. § 41713 (1997) (emphasis added).

10 49 U.S.C. § 40120 (c); Chrissafis, 940 F. Supp at 1296.

11 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995); Morales, 504 U.S. at 425 (Stevens J., dissenting).

12 Morales, 504 U.S at 385.

13 See Matthew J. Jelly, Federal Preemption by the Airline Deregulation Act of 1978: How do State Tort Claims Fare?, 49 Cath. U. L. Rev. 873 (2000).

14 U.S. const. art. VI § 1, cl. 2.

15 See Susan D. Hall, Preemption Analysis After Geier v. American Honda Motor Co., 90 Ky. L.J. 251 (2002).

16 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983).

17 Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947).

18 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

19 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1253 (11th Cir. 2003).

20 Id.; Cipollone v. Liggert Group, Inc. 505 U.S. 504, 517 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)); compare Grier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (existence of express preemption provision does not mean that implied preemption cannot exist where the express preemption does not apply).

21 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).

22 Id. at 378.

23 Id. at 391.

24 Id. at 383.

25 29 U.S.C. § 1144 (a).

26 Morales, 504 U.S. at 384 (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).

27 Id. (emphasis added).

28 Id. at 390.

29 See John T. Houchin, Harris v. American Airlines: Flying Through the Turbulence of Federal Preemption and the Airline Deregulation Act, 51 U. Miami L. Rev. 955, 966 (1997).

30 504 U.S. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 (1983) (emphasis added)).

31 Id.

32 American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

33 Id. at 224.

34 Id. at 226.

35 Id at 228.

36 Id.

37 Id. (emphasis added).

38 Id. at 228 (emphasis added); see also Williams v. Midwest Airlines, Inc., 321 F. Supp. 2d 993, 996 (E.D.Wisc. 2004) (holding the plaintiffs’ breach of contract claim was not preempted because the airline’s agreement to transport plaintiffs to New York City “was a self-imposed undertaking, and plaintiffs’ attempt to enforce it does not involve the enforcement of any state law”).

39 Wolens, 513 U.S. at 232-33. The Court stated that this distinction makes sense in light of the ADA’s saving clause, which does not prevent states from “affording relief to a party who claims and proves that an airline dishonored a term that the airline itself stipulated.” Id.

40 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).

41 Id. at 1261.

42 Id. at 1263 (citing Gee v. Southwest Airlines, Inc., 110 F.3d 1400, 1410 (9th Cir. 1997) (O’Scannlain, J., concurring).

43 Id. at 1265.

44 Id. at 1261.

45 Id. at 1265-66.

46 Charas, 160 F.3d at 1266.

47 Id.

48 See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998); Duncan, 531 U.S. 1058; compare Abdulla v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that the entire aviation industry is field preempted).

49 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc).

50 Id. at 335.

51 Id. at 336 (citations omitted) (emphasis added).

52 Hodges, 44 F.3d at 336-37. The court found that claims relating to the “operation and maintenance of the aircraft” concern matters of “air navigation.” Id. at 338 (citing 49 U.S.C.App. § 1301(31) (1998)).

53 Id. (emphasis added)

54 Id. at 338-39.

55 Id. at 339.

56 The Firth Circuit admits that “the provinces of ‘services’ and ‘operation and maintenance of aircraft’ overlap somewhat conceptually; no strict dichotomy exists.” Id. at 339.

57 See Duncan, 531 U.S. 1058; Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).

58 Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (cert denied)

59 Duncan v. Northwest Airlines, Inc., 208 F.3d 1112 (9th Cir. 2000).

60 Id. at 1115 (quoting Charas, 160 f.3d at 1265-66).

61 Duncan, 531 U.S. 1058 (2000) (cert denied).

62 Id.

63 Id.

64 Id.

65 Lynette M. Bledsaw, The Express Preemption Provision of the Federal Aviation Administration Authorization Act Does Not Reach State Civil Rights Claims of Race Discrimination, American Bar Association (2000).

66 See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (former airline employee’s state court claim for retaliatory discharge was not preempted by the ADA); Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (former airline employee’s race discrimination claim was not preempted); Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1467-68 (11th Cir. 1998) (plaintiff’s age discrimination claim was not preempted by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997) (holding Hawaii law barring physical disability discrimination was not preempted by the ADA); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84 (2d Cir. 1997) (holding New York age discrimination action was not preempted by the ADA).

67 Id.; (citing Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S2d 253, 257 (1996);

68 Ryan L. Bangert, When Airlines Profile Based On Race: Are Claims Brought Against Airlines Under State Anti-Discrimination Laws Preempted By the Airline Deregulation Act?, 68 J. Air L. & Com. 791, 801 (2003); see Thomas v. United Parcel Service, 241 Mich. App. 171 (2000) (holding that former African-American employee’s race discrimination claim was not preempted by the ADA).

69 Abdu-Brisson, 128 F.3d at 84; Wellons, 165 F.3d at 496; Thomas, 241 Mich.App. at 181; see also Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (“State law claims of racial discrimination—as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual’s ability to render service safely and efficiently—are not preempted, in our view; they bear ‘too tenuous, remote, or peripheral’ a relation to airline rates or services.”); Thomas, 241 Mich.App. 171, 181 (2000) (“Plaintiffs’ race and gender are wholly unrelated to defendants’ services”).

70 Bledsaw, supra note 65; Fitzpatrick v. Simmons Airlines, Inc., 218 Mich. App. 689 (1996).

71 Fitzpatrick, 218 Mich. App. At 692. See also Belgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992) (“any law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one ‘relating to,’ the services to be rendered by the airline”)

72 Bangert, supra note 22 at 803.

73 Bledsaw, supra note 65 at 5.

74 Doricent v. American Airlines, Inc., 1993 WL 437670 (D.Mass 1993).

75 Id.

76 Id. at *5.

77 Bledsaw, supra note 65 at 5.

78 Huggar v. Northwest Airlines, Inc., 1999 WL 59841 (N.D. Ill. 1999).

79 Id. at *1; see also Bangert, supra note 22 at 805-06.

80 Id.

81 Id. (citations omitted).

82 DeTerra v. America West Airlines, Inc., 226 F. Supp. 2d 274 (D.Mass. 2002).

83 Newman v. American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999).

84 Id. at 1131;

85 Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298 (N.D. Ill. 1996).

86 Id.; see Williams v. Express Airlines I Inc.,, 825 F. Supp. 831, 832-33 (W.D. Tenn. 1993) (holding that plaintiff’s claim for false imprisonment after he was denied admittance to a flight and then strapped to an immobile chair in the airline waiting area was preempted by the ADA); Lawal v. British Airways, PLC, 812 F. Supp. 713, 715 (S.D. Tex. 1992) (holding that plaintiff’s false arrest and false imprisonment claims where airline personnel detained the plaintiff and forced him to purchase a new ticket were preempted); Galbut v. American Airlines, Inc., 27 F. Supp. 2d 146 (E.D. N.Y. 1997) (holding that plaintiff’s false arrest and false imprisonment claims arising out of airline’s refusal to permit plaintiff to upgrade using stickers the airline had falsely alleged were stolen and the demand for payment for the upgrade were preempted by the ADA); Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (passenger’s claim for false imprisonment based on the airline’s refusal to permit him to board due to the airline’s failure to ask for photo identification at the point of original departure was preempted).

87 Chrissafis, 940 F. Supp. at 1298.

88 Id.; see Diaz Aguasviva v. Iberia Lineas Aereas 902 F. Supp. 314, 316 (D. Puerto Rico 1995) (permitting a passenger to pursue a claim that airline personnel falsely identified the passenger as an illegal alien, causing police and customs agents to arrest and detain her); Curley v. American Airlines, Inc., 846 F. Supp. 280, 281-82 (S.D.N.Y. 1994) (holding that plaintiffs claim that the flight crew had falsely arrested the passenger for smoking marijuana, causing him to be strip-searched, was not preempted); Bayne v. Adventure Tours USA, Inc., 841 F. Supp. 206, 207 (N.D.Tex 1994) (refusing to preempt a passenger’s claim that an airline pilot made misrepresentations to police, causing the plaintiff to be taken into custody, detained, and subjected to a luggage search); Rombom v. United Airlines, Inc., 867 F. Supp. 214, 224 (S.D.N.Y. 1994) (finding that false imprisonment claims stemming from the airline’s decision to have plaintiff arrested, allegedly motivated by spite, were not preempted).

89 Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1289-99 (N.D. Ill. 1996)

90 Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).

91 Id.; see also Chrissafis , 940 F. Supp. 1292 (recognizing this distinction). In addition to defamation and slander, the “other” intentional tort claims included tortious interference with a business relationship, fraud, intentional infliction of emotional distress, and tortuous interference with a business relationship.

92 Travel All Over The World, Inc., 73 F.3d. at 1433; compare Fenn v. American Airlines, Inc., 839 F. Supp. 1218, 1223 (S.D. Miss. 1993) (finding claims for slander unrelated to airline “services”) with Chukwu v. Board of Directors of British Airways, 889 F. Supp. 12, 14 (D.Mass. 1995) (finding specific claims for slander related to airline “services”) and Pearson v. Lake Forest Country Day Sch., 262 Ill.App.3d 228 (1994) (same).

93 Id.

94 Id. at 1433.

95 Id. citing Morales, 504 U.S. at 383-85.

96 Id. at 1433.

97 Travel All Over The World, Inc., 73 F.3d at 1434..

98 Id.

99 Id. (citing Hodges, 44 F.3d at 336); see also DeTerra, 226 F. Supp. 2d at 277 (finding handicapped passenger’s claims for intentional and negligent infliction of emotional distress in connection with his denial of boarding on a particular flight was preempted); Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D.Mass. 1995) (concluding that plaintiff’s claim for intentional infliction of emotional distress based on the allegation that he had been improperly denied boarding on a flight was preempted by the ADA).

100 Morales, 504 U.S. at 384.

101 See Abdu-Brisson, 128 F.3d 77, 82 (2d Cir. 1997); DeBuono v. NYSA-ILA Medical and Clinical Serv., 520 U.S. 806, 816 (1997).

102 Abdu-Brisson, 128 F.3d at 82 (emphasis added); citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Boggs v. Boggs, 520 U.S. 833 (1997) (“We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects).

103 Travelers Ins. Co., at 655 (Too expansive an interpretation of “relate to,” according to the Court, “would be to read Congress’s words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”).

104 See Duncan, 531 U.S. 1058 (cert denied).

105 Id.

106 See Morales, 504 U.S. at 378.

107 See Cipollone, 505 U.S. at 517 (quoting Malone, 435 U.S. at 505).

108 Smith v. America West Airlines, Inc., 44 F.3d 344, 346-47 (5th Cir. 1995).

Mathew A. Passen
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