Thank You, Justice Kennedy

Thank You, Justice Kennedy

Heather Stinson

Justice Kennedy is in the news due to his recent retirement announcement. Once again, many of those speaking or writing about him will mischaracterize his jurisprudence. To most, his voting patterns seem erratic and unpredictable. Yet, after all these decades, more than anyone else on the Court, Justice Kennedy has been uber-consistent and reliable. You would think that more people would better understand him, although a few seem to get it, as evidenced in the titles of some books regarding his jurisprudence. See, here, here, and here.

I became familiar with Justice Kennedy, like many law students, during the first few weeks of Constitutional Law. My professor introduced him to us by saying, “now for all of you libertarians and freedom lovers in the room, you are going to love Justice Kennedy,” and love him I did. His votes were on point with how I would have personally sided on each issue. More than that though, his words swept me up and for the time it took to read his opinion(s), I felt a sense of hope and optimism in the overall good of people. He made me love our Constitution, giving me a feeling that the structure and order it provided existed in perfect harmony, so as to preserve as much freedom as possible.

Many become confused over Justice Kennedy’s voting patterns; one minute he is authoring opinions that make him appear reliably conservative, and the next minute he is penning prose that would make most conservative voters cringe. I must admit, I too cringed when I first read the language he used in Obergefell v. Hodges: what he referred to as “Principles”. While I agreed with his vote, I was confused by his method of Constitutional Law and wondered if I had inadvertently wandered into a philosophy class. While I still have reservations about his methods, I can at least appreciate that to Justice Kennedy there is a point to the Constitution. There are, of course, the words and their dictionary definitions (where most conservatives begin and end), but there is also meaning behind the words chosen, the purpose of crafting the whole document in the first place. To Justice Kennedy, it’s not that the Constitution is ‘alive,’ as many on the left like to view it-subject to modern interpretation, with an updated dictionary. Rather, it is more like the original words and structure point to the Founders hope in penning it. Justice Kennedy simply showed us the fine tension that must exist between federal and state, and between state and person, to ensure that enough space exists in the in-between for breathing, which is a necessary requirement for life, and liberty.

It is ironic, that so many conservatives now feel excitement about the chance to get a true Constitutionalist onto the bench in his stead. Justice Kennedy is nothing but a Constitutionalist. It is also interesting that his votes are tracked, as if the Court has sportscasters, always trying to figure out his next move. I can hear them now saying, “this season he is batting conservative, with only two fly balls out in Left-field.” I can’t imagine how frustrating it has been to be known as some sort of watered-down, unreliable conservative, whose only purpose on the Court is to be persuaded to swing one way or the other. As it is, no one seems to know how to mention his name without also calling him the “swing vote.” See here and here, for a few recent examples.

History should not remember Justice Kennedy as a swing voter, a moderate, or a centrist. All of those descriptions fail to see him for what he has been, a major disappointment. He spent his career disappointing some side of the aisle every day. What I wouldn’t give to have another disappointment of a jurist put on the Court to take his place! We need jurists who have no cause, but the cause of liberty, as defined by the Constitution. Jurists whose personal beliefs and opinions are left at home while they handle the one piece of paper that we must all share. Justice Kennedy showed me that the structure of the Constitution whispers its function. He heard the whispers and shared them with us, and for that, I am grateful. As for the future appointment to the Court, all we can hope for are a few Congress men and women who will follow Justice Kennedy’s example, and be disappointments.

Is Brexit the End of European Integration As We Know It?

Is Brexit the End of European Integration As We Know It?

Sam Poon

The United Kingdom’s secession (Brexit) from the European Union (EU) will forever shape the history of the UK and of European integration. While the full impacts of Brexit are unknown, Brexit is the actualization of latent discontent about extensive integration of the European continent. In part, Brexit signals deep dissatisfaction with the concept of free movement of peoples and more porous borders. However, Brexit does not necessarily signal a complete failure of European integration.

Brexit signals the first, and possibly only, ever substantial member state withdrawal from the EU.[1] Britain has always been wary of EU integration and its role as a supranational organization in Europe. The first serious talks of Brexit, as it is now conceived, began during David Cameron’s 2013 re-election campaign.[2] Playing at discontent with the EU, he promised to negotiate new terms with the EU and hold a referendum to let the citizens of the United Kingdom choose whether they want to stay in the EU under these new terms.[3] The Conservative Party unexpectedly won, David Cameron carried through on his promise, and eventually, the European Union Referendum Act of 2015 was introduced in Parliament.[4] Thus, the campaign for the UK’s future in the EU commenced.

The two main campaigns were colloquially known as the “Leave” or “Vote Leave”[5] and the “Remain”[6] campaigns, with their respective titles denoting the positions the campaigns took on Brexit. The Vote Leave campaign realized that their economic argument held little weight and shifted towards severe, anti-immigration rhetoric.[7] Leaders of Vote Leave asserted immigration and national sovereignty as the reason for a decline in economy, loss of jobs, terrorism, the migrant crisis, and more.[8] The simplified message was persuasive: remaining in the EU meant support of failed EU policies that perpetuated the migrant crisis, exhausted jobs, and drained money from the British economy. To paint a poignant picture, Nigel Farage, one of the campaign’s leaders, released a poster of thousands of seemingly Arab refugees coming to the EU.[9] The poster was captioned: “Breaking Point—the EU has failed us all,” and at the bottom, “we must break free of the EU and taken back control of our borders. Leave the European Union.”[10] It was clearly designed to illustrate that “swathes of brown-skinned foreigners were trekking towards Britain’s ‘open borders.’”[11] Thus, the Leave campaign had a simple, strong, xenophobic, and compelling message, albeit misleading and false.[12]

In contrast, the Remain campaign was unorganized, incoherent, and unable to create a singular message around Brexit, an immensely complicated issue.[13] On the defensive, the Remain campaign weakly stirred fear about economic risk.[14] The Remain campaign tried to combat the Leave campaign’s rhetoric with the fact that a withdrawal from the EU held infinite unknowns and potential repercussions. However, the anxiety that the Leave campaign stirred was not petered with the Remain campaign’s slogan of unknown risk of Brexit’s economic impact. In the end, the haphazard, poorly planned campaign failed. With the world watching, on June 23, 2016, the UK voted to leave the EU.[15] Leave won with 51.9,% to Remain’s 48.%, with approximately 71.8% of the population voting.[16] The Parliament confirmed the referendum results with the European Union Notification of Withdrawal Bill on March 13, 2017.[17]

The existence of the EU requires supremacy, free movement of people, and member states to cede a certain amount of state sovereignty. Ultimately, Brexit was the UK’s sign of dissatisfaction with the EU to some level, even if the Leave campaign played on xenophobia and relied on half-truths. However, the UK has always been skeptical of integration and even of the EU. This skepticism is demonstrated in the UK’s history of involvement leading up to the EU, refusal to join the Eurozone, and declination to take part in the Schengen Area. The Leave campaign wove together lies and misleading facts to create a strong message that was easy for voters to understand. Thus, though the results of Brexit are unpalatable, the history of the UK’s approach towards integration signaled a resistance to integration throughout the history of the EU.

Though Brexit will certainly change the trajectory of the UK, it does not signal the demise of European integration post-World War II. There are still organizations, member states, and non-EU countries that support the idea of integration. In fact, states are still seeking to join the EU as part of their national goals. Nevertheless, the EU should take note of the dissatisfaction leading to Brexit and attempt to seek understanding as to why Brexit was able to occur, particularly as it relates to the free movement peoples. The EU must be proactive about stamping out xenophobia and providing platforms for informed debate for its citizens. Doing so will prevent another Brexit, or Grexit, Spexit, Frexit, etc., and further the goals of integration well into the twenty-second century.


[1] Sans Greenland’s exit in 1985.

[2] David Cameron Promises In/Out Referendum on EU, BBC (Jan. 23, 2013), http://www.bbc.co.uk/news/uk-politics-21148282.

[3] Id.

[4] http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted

[5] See About the Campaign, Vote Leave, http://www.voteleavetakecontrol.org.

[6] See Britain Stronger in Europe, http://www.strongerin.co.uk/.

[7] Paul Stocker, Brexit and the Mainstreaming of the British Far Right, London School of Economics and Political Science (Oct. 5, 2017), http://blogs.lse.ac.uk/brexit/2017/10/05/brexit-and-the-mainstreaming-of-the-british-far-right/.

[8] Id.

[9] See Anealla Safdar, Brexit: UKIP’s ‘Unethical’ Anti-Immigration Poster, Al-Jazeera, (June 28, 2016) http://www.aljazeera.com/indepth/features/2016/06/brexit-anti-immigration-ukip-poster-raises-questions-160621112722799.html.

[10] See id.

[11] See Stocker, supra note 29.

[12] It is far easier to understand and join a simple, yet misleading message, while far more difficult to understand a complex but more accurate message. Similarly, it is easier to create a xenophobic, false message, but more difficult to craft a coherent, accurate message that takes into account nuances of reality.

[13] See Tortsen Bell, The Referendum, Living Standards and Inequality, Resolution Foundation (June 24, 2016) http://www.resolutionfoundation.org/media/blog/the-referendum-living-standards-and-inequality/ (“The legacy of increased national inequality in the 1980s, the heavy concentration of those costs in certain areas, and our collective failure to address it has more to say about [Brexit] than shorter term considerations from the financial crisis or changed migration flows.”).

[14] See Rafael Behr, How Remain Failed: the Inside Story of a Doomed Campaign, The Guardian (July 5, 2016), https://www.theguardian.com/politics/2016/jul/05/how-remain-failed-inside-story-doomed-campaign.

[15] Alex Hunt & Brian Wheeler, Brexit: All You Need to Know About the UK Leaving the EU, BBC (Sept. 26, 2017) http://www.bbc.com/news/uk-politics-32810887.

[16] Id.

[17] Id.

Semester in D.C.

Semester in D.C.

Heather Stinson

           I have had the distinct privilege, as a law student, to assist with the various Independent Reconciliation Compensation Programs (“IRCP”) administered by The Law Offices of Kenneth Fienberg in the settling of claims against the Catholic Church of New York. Many readers may recognize Kenneth Fienberg as the person responsible for compensation after the 9/11 terrorist attacks, BP oil spill, or any other high-profile disaster or incident of negligence over the past several decades. There are in fact five IRCP’s, each of which represents a different Diocese in the state of New York: New York Archdiocese; Brooklyn Diocese; Diocese of Rockville Centre; Diocese of Syracuse; and Diocese of Ogdensburg. There are eight total Diocese in the state of New York, six of which have implemented compensation programs, but only five of which are overseen by the Feinberg legal team. The Diocese of Buffalo is administering their own version of an IRCP, and the Diocese of Rochester and Albany have not yet instituted an official IRCP, although the Diocese of Albany previously attempted to settle multiple abuse claims over ten years ago.

The first of these funds (New York Archdiocese) began in October of 2016 and all five, in one capacity or another, are still active. All five funds began with set time periods within which those who have previously reported the abuse could participate, known as Phase I. Three of the five funds have also included a phase within which those who had not previously come forward could participate, known as Phase II. Both the Diocese of Syracuse and Ogdensburg, which are the two most recent funds, have not yet agreed to accept Phase II claims. In addition, all of the IRCP’s only cover abuse committed by actual Diocesan priest. Thus, abuse committed by religious order priest, lay members, or nuns is not covered. This has proved frustrating for many victims because religious order priest can account for the majority of the priest in a parish. For example, within the Archdiocese of New York, religious order priest account for 79% of all working priest.

For those who have previously reported the abuse either to the Diocese or to law enforcement, participating in Phase I of an IRCP is generally speaking a relatively quick and streamlined process. First, a claimant registers themselves on-line. Then the Administrators of the fund supply the Claimant a Phase I form. The form is fairly straight forward. It requires the Claimant to name the priest who abused them, as well as the nature of the abuse and its quantity. It also requires the Claimant to list anyone whom they may have previously informed of the abuse.  Phase II claimants will likewise first register on-line and then receive a form. The form is identical for Phase I and Phase II claimants, what is different is how those two claims are assessed. It is easier to corroborate a Phase I claim, after all, they have already previously informed either the Diocese or law enforcement of the abuse, which means there is usually a record and possibly a previous investigation into the matter. Since a Phase II claimant is coming forward for the first time, in addition to answering the questions on the form, they also must inform the relevant District Attorney’s office (for some programs), inform the relevant Diocese (for some programs), and provide third-party corroboration for the abuse, such as witness affidavits or therapy records which can show that the Claimant spoke about the abuse to a third-party previous to the start of the IRCP. Once the form and any relevant information is provided it can take anywhere from three weeks to several months to hear back from the Administrators. The Claimant will then receive a settlement offer from the fund Administrators and the Claimant can choose to appeal that amount, accept it, or reject it. Once accepted, the Claimant is required to meet with an attorney (either one of their choosing or if living in New York, one will be provided-free of charge-to the Claimant) who will explain the Release form and witness their signature. The Release stipulates that by accepting the settlement offer, the Claimant forfeits his or her right to sue the Diocese for the abuse. Throughout the process, the Claimant has the right to speak with the fund Administrators, including in-person interviews. Some claimants decide that as part of their review process they would like the opportunity to tell the Administrators face-to-face about the abuse and its effects upon them. Of course, for every claimant who would like a face-to-face interview, there are a dozen who choose to opt out of such an option, they in-fact enjoy the anonymity of the claim process.

There are many criticisms of the various IRCP’s. From the standpoint of victim advocates and attorneys who work for adult survivors of child-hood sexual abuse, the settlement offers are simply too low compared to what they would be able to obtain from a jury, if only the statute of limitation period had not run. From the standpoint of the claimants, the IRCP fails to give them the one thing they may prefer, a public apology and admission of culpability. Lastly, for the various Dioceses’ the IRCP’s have required massive funds, which has led to parish consolidations and loans. As with all settlements, no one party is fully satisfied with the end result, no one side ‘wins.’ It is important to remember though that due to the very short statute of limitation period in New York (three years after reaching the age of majority), all of the claimants who have participated in the various IRCP’s would have been barred from suing the church or their abuser. Thus, the Catholic church is voluntarily offering to settle through the administration of the IRCP and not required. While this appears generous on their part, the motive is colored by the fact that New York is set to shortly pass The Child Victims Act, which would extend the statute of limitations to the age of 53 and provide for a one-year retroactive window, in which all these same claimants could sue the church. Many see the IRCP’s as a way to pay out less now, compared to more when the law changes down the road. For now though, many claimants see this as a chance to finally reveal the secret of their abuse and receive compensation by the organization they hold responsible for the abuse.

Participating in the assessment of claims for the various IRCP’s has been the internship of a lifetime. While many may wonder what I see in the job-after all, as a practical matter, I spend my days reading about minute details of horrific sexual abuse-I see this opportunity as a privilege. For all intents and purposes, I am the first person most of the claimants tell about their secret of childhood sexual abuse. It is no small feat for them to finally speak about such a hard, life-altering experience, much less to a stranger (me), and the Administrators who review my work and make the ultimate decisions regarding an offer for settlement. Every day of work I am in awe at the courage and strength of each claimant. They inspire me to be a better attorney and a more zealous advocate. While not without multiple faults, the IRCP fund programs represent a step in the right direction on the part of the various Catholic Dioceses and meet the needs of the vast majority of claimants, who desire anonymity and compensation.

Section 1502 of the Dodd Frank Act: Combating Conflict Minerals through Regulation

Section 1502 of the Dodd Frank Act: Combating Conflict Minerals through Regulation

Samantha Poon

The Democratic Republic of Congo (“DRC”) is a vast country with a diverse groups of peoples and an immense wealth of natural resources. However, centuries of colonization, imperialism, and civil strife has scarred what should be a thriving society. Its natural resources, a main source of industry, employment, and income, fund rebel groups instead of fueling a healthy economy and thriving families.

Conflict minerals have been a source of human rights abuses since their inception. True to their name, conflict minerals are valuable natural resources that are mined in conditions that perpetuate civil war and human rights abuses. To combat this issue, the global community is scrambling to find solutions to the complex problem that perpetuates egregious human rights abuses.As global awareness increases about conflict minerals and their devastating consequences, international organizations and states have struggled to come to a collective, effective solution. The DRC government is unable, or unwilling, to take measures to effectively end its conflict mineral crisis. Who then is to blame? More importantly, who is to take responsibility?

As the world hegemon, the United States has attempted to lead the global community in eliminating human rights abuses, albeit at times quite unsuccessfully. In wake of the 2008 Great Recession, Congress passed the Dodd-Frank Act in 2010. It was a broad sweeping law that increased regulation of the financial services industry. Notably, there was also a controversial, and unexpected, provision among the hundreds of pages of regulation: Section 1502 – Conflict Minerals. This section specifically addresses regulation of conflict minerals originating from the DRC.

The goals of the provision are to “enhance transparency” and “help American consumers and investors make more informed decisions.” It only requires companies that trade on the U.S. Stock Exchange to participate, and only focuses on conflict minerals stemming from one region in Africa. This legislation and corresponding regulation have effectuated change in minimizing conflict minerals in supply chains.[1]

Though some companies, such as Intel, Apple, and HP, were already shifting towards due diligence and eliminating conflict minerals from their supply chains, Section 1502 has incentivized other companies to do so as well. It mandates companies to “exercise due diligence” and audit their supply chains to ensure that “products [] do not contain minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country.” If products in their supply chains do contain conflict minerals, then companies must compile reports and these reports must then be made public through the Securities and Exchange Commission (“SEC”). In order to comply with Section 1502 of the Dodd-Frank Act, companies are setting up systems to identify potential conflict minerals in their products and subsequently to clean up their supply chains. According to the SEC, this action has resulted in a decrease the illegal supply of conflict minerals from the DRC that funds rebel groups and conflict. The United Nations Group of Experts on the DRC wrote to the SEC that “since the signing into law of the Dodd-Frank Act, a higher proportion th[a]n before of tin, tungsten and tantalum mined in the DRC is not funding conflict” and production of such minerals was already beginning to shift to non-conflict mines and areas. While Section 1502 of the Dodd-Frank Act has shortcomings, it is a significant step in combating use of conflict minerals in United States consumer products and should be a model that is continually refined and adopted in other states’ domestic legislation.

[1] It is also important to note that there are other factors that have eliminated rebel control of some of the mines in the DRC. For example, the Congolese army and the United Nations Force Intervention Brigade have undertaken military operations to neutralize particularly harmful armed groups. African governments are also beginning to take action and attempt to regulate conflict minerals, though these efforts have not been entirely effective. See Fidel Bafilemba, Timo Mueller, & Sasha Lezhnev, Enough Project, The Impact of Dodd-Frank and Conflict Minerals Reforms on Eastern Congo’s Conflict, 1 (June 2014) http://www.enoughproject.org/files/Enough%20Project%20-%20The%20Impact%20of%20Dodd-Frank%20and%20Conflict%20Minerals%20Reforms%20on%20Eastern%20Congo%E2%80%99s%20Conflict%2010June2014.pdf.

Consent to be Recorded

Consent to be Recorded

Heather Stinson

The state of Utah recently proposed legislation that would have made it the thirteenth state to require two-party consent for recordings. It is currently part of the majority of states who only require one party to the conversation to consent. Due to the negative  public uproar, the sponsoring legislators have withdrawn the bill in order to re-craft its broad language. It was no secret that this legislation, while technically sponsored by the Salt Lake Chamber of Commerce, was backed by the Church of Jesus Christ of Latter-Day Saints (hereafter, ‘LDS church’), which is the predominant religion in Utah, and whose members make up almost 90% of all state legislators but only 60% of the states population.

While it may seem fairly normal for business to desire two-party consent laws, what really prompted the push for this law was anything but usual. Towards the end of 2017, a current member of the LDS church created a petition to stop the common practice of one-on-one interviews that occur behind closed doors between LDS church leaders, known as Bishops, and minors. That petition has since garnered over 15,000 signatures, as well as significant news coverage. For their part, the church publically responded to the petition, stating that they had no intention of changing their practices. The LDS church pushed for and supported the legislation to change the law to a two-party consent state as they have recently come under fire for other secretly taped conversations and videos.

The LDS church’s desire for a two-party consent law for recordings seems to be more akin to states who push for what are called AgGag laws. AgGag laws were put in place to protect the agricultural industry after disparaging videos showing animal cruelty or questionable practices in the industry were being shared on-line by activist who would either go under cover themselves as farm workers or would obtain the tapes from workers. Several states have passed AgGag laws, and Utah itself passed an AgGag law in 2012, which was later found to be unconstitutional.[1] Most people, outside of the industry, saw and still see AgGag laws as an attempt to keep work practices secret so that the industries bottom line is not injured from public uproar.

While we generally do not talk about religious organizations as businesses or an industry, they function as one in practice. As such it is not surprising that the LDS industry desires the same assistance from the state legislature that the agricultural industry sought: state backed secrecy. The LDS church received national flack last year for a video, taped on a cell phone, of a young 12-year old girl sharing her thoughts during a church meeting that she knew God had made her gay, which directly contradicts LDS beliefs. What caused the uproar was not so much that the girl shared a contradictory belief, but that the local leader cut her mic off and asked her to go sit down, not allowing her to finish. In addition, the LDS church spent considerable effort trying to track down who was secretly recording meetings inside their temples, which only certain members can participate in.

While there are pros to two-party consent laws, such as allowing all parties of the conversation to have the equal opportunity to censor their speech or actions, there are also pros to only have one-party consent laws, such as getting to catch someone in questionable behavior or to have proof of an altercation. Thankfully, many states that do enact two-party consent laws provide for exceptions that would allow for one party consent in the event of trying to obtain proof of criminal behavior. The proposed Utah two-party consent bill would have allowed for an exception for communication that was likely to lead to abuse, either physical, psychological, or otherwise. Thus, even if Utah can refine their two-party consent bill language so as to not infringe upon First Amendment free speech concerns for the press, it appears that the exceptions would still provide a way for LDS church leaders one-on-one meetings to be recorded as long as the person recording feels threatened by the interaction or has a concern that abuse may occur. It will be interesting to see if the LDS church continues to encourage the Utah legislature to pass two-party consent laws for the same reasons that states pass AgGag laws or whether the LDS church, and all other churches for that matter, will embrace that in this day and age of cell phones and easy internet access, their reliance upon privacy may no longer be sustainable.

[1] Here you can find which states currently have AgGag laws, which states AgGag laws have been declared unconstitutional, and which states are considering such legislation.

Must It Stay This Dismal?

Suggestions from an Earth-Friendly, Progressive Funeral Home Owner

Amy Cunningham

            I spent the wee hours of December 21, 2016 in the dining room of a lovely woman who wanted to hold a two-day wake for her newly deceased husband in the home they had shared for decades. Around midnight, the headlamps of a van driven by another funeral director working for me shone in the driveway, and the dead man was rolled into the residence on a covered stretcher, still in his hospital gown.

The woman’s two adult sons slid the Christmas tree nearer to where we stood and then left us in the twinkling light, with our bowl of soapy water and essential oils beside us, and scissors nearby to snip the hospital bracelet off his wrist. The dead man was now on a massage table I had draped with a vintage chenille daybed cover. The widow hesitated over which military uniform to put her husband in, and changed his jacket twice. From a cooler on the floor, I pulled several thin slabs of dry ice, which I wrapped in brown Kraft paper and soft bath towels. I was relieved that I secured the ice before the vendor’s closing time, but our deceased gentleman was actually in wonderful shape. There was nothing to fear. By eleven o’clock the next morning, loving friends with plates of Christmas cookies, cakes, sandwiches and salads arrived, and a priest dropped by for an impromptu service.

The following morning, December 23, we were ready to place the dead man, a little sunken in the cheek but still well preserved from the ice, in a cardboard casket. We drove him to the crematory chapel I use in Brooklyn. The widow, illuminated from within by the two days she had just spent with her late husband, friends, and family members, had a last chance to place her hands on the closed cardboard box that we had draped with an American flag for that moment. She then witnessed the uncovered casket’s entry into the cremation chamber flanked by her two stalwart, loving sons. We all hugged and said goodbye, and as I stood there watching them drive off, it hit me that virtually none of my training for licensure as a New York funeral director had prepared me for this homespun funeral service—not my $21,000 year of mortuary schooling, not the instruction in embalming, and not the required continued education.

Even though I billed this woman $5500 for the funeral, I knew that I was still some months off from pulling any meaningful salary out of my year-old company once I accounted for my $7400 annual insurance premium, my cash advances, my “trade” assistance, my rent, my car lease, my answering service, and other more typical small business costs. Another year with no true return on investment; only the satisfaction I get from my work. I am telling you, I get satisfaction from my work beyond belief. This is not a pity party. This is the tale of my fledgling funeral LLC which I am confident will be a thriving concern in the future despite the rules and regulations of the funeral business, not because of them.

Some quick background on me personally: I was a happily-married, fifty-four year old mom of two, and a magazine writer with a little psychoanalytic training when my father died in South Carolina in 2009. Back then, you might have called me religiously promiscuous: I identified as a Kundalini-practicing Buddhist Presbyterian who had also served on the board of the synagogue my Jewish husband and I attended in Brooklyn. As a writer, I was covering the new American spiritual scene that I once represented. Americans were inter-marrying, feeling more spiritual than religious. Stewardship of the earth was becoming a value yearning for ways to express itself. Cries for progressive funeral service were not being met by an industry that was frumpy and outdated.

The people who knew me best recognized that my decision to start mortuary school was a deeply personal repositioning. The more I got into funeral service, the more I became aware of a force field at work that inhibits innovation and seems to keep new firms from profiting. Frank Ostaseski, one of the key founders of the Zen Hospice Center, has mentioned that the conventional funeral industry needs a loving and compassionate burial. I can’t help but agree. I would like to review a few of the things I have learned the hard way as a funeral firm owner.

I. Mortuary education is out of sync, and far too focused on embalming.


You may have heard that mortuary school is demanding, but it is arduous in the most peculiar way. Mortuary school is uniquely frustrating in that you are forced to memorize enormous quantities of information; the curriculum has a lot of leachy tentacles that can grab you and suck you dry without requiring any intellectual reflection or synthesis. For example, you must learn the names of each of the twenty-six bones of the foot and the precise flow of the circulatory system. It is back-breaking test prep. You have to learn about leprosy and yellow fever, and study color spectrum and theatric lighting, or the ways blue or red or purple acetate films refract from the ceiling fixtures of funeral home chapels. We sculpted ears and noses out of wax and pancaked makeup onto each other’s faces.

Embalming instruction is still the cornerstone of mortuary education. And, actually, I adored my embalming teacher. I now know with great intimacy how formaldehyde chemically mummifies the dead and binds the proteins in soft tissue. But frankly, for me, the year-long mortuary program had too little to do with the things I needed to study to help people get through the sadness of a death, and emerge in one piece, integrated, calm, and forward-looking in the bearing of their grief. Greener funerals, home funerals, and family-centered funerals were introduced to me through a fortuitous trip to Boulder, Colorado at the annual convention of the National Home Funeral Alliance, a group that is changing the funeral industry beyond its own definition of its goals.

My starting mortuary school class of forty-eight was winnowed down to twenty-one by the end of our academic year; this was standard, apparently. Of the younger people coming into funeral training, a disproportionate number of the students from minority groups were summarily flunked after tuition was collected, much of which was paid for with student loans. The school was much, much harder than mere passage of the National Board exam might require, but in unnecessary, poorly coordinated ways, and for reasons I’ll never understand.

II. Residency requirements are outdated, and morticians lucky enough to find a residency that allows them to pursue their true interests are underpaid. 

Today, I get letters from women in New York City who have graduated from mortuary school and passed the National Board but cannot find a reasonable residency. The corporate funeral firms occasionally offer women opportunities to volunteer before residencies are extended—as if they see the gals as powdery docents, excited to have some proximity to the healing powers of overpriced funeral service!

So, I was personally fortunate to get a state-required year-long residency from a sweet funeral firm that had a modicum of interest in what I wanted to do. I found a working funeral home owner who did not show me the door for expressing my zeal for earth-friendlier funerals as well as my request to bring my own aromatherapy diffuser to the office. Also, more importantly, he proved to be someone who did not keep me in what is known in Brooklyn as “the pit.” The pit is the embalming room. I worked into the middle of the night for seventeen days straight at one point. I was responsible for holding the funeral home phones at night, driving caskets in the snow to the airport, picking up deceased people from the medical examiner’s office or nursing homes by myself, and working on my baseball stitch to repair the Y-shaped incision on folks who had been autopsied.

I liked the other people at the firm so much that, once licensed, I was willing to work there for a very low salary. After a year of earning quite a bit below minimum wage, my boss started to pay me twenty dollars an hour as a licensed director. Also, because he allowed me to blog and lecture as a death educator, I continued working there for three years as I became a notary, a funeral celebrant, and then a home funeral guide, trained by Jerrigrace Lyons and Olivia Bareham, all the while mulling over exactly what to do next. Since I had been a magazine writer all my previous working years, it was not too tough to see the potential in a well-written, thoughtful funeral planning blog so I launched my recommendations into the social media sphere. Upon publishing a list of green cemeteries within a reasonable drive of New York City, I was profiled by the New York Times for bringing the “Back-to-Basics” funeral service to an urban area that had little experience with it.

By end of my third year as a mortician, I desperately wanted to operate my own earth-friendly company. I did not want to just offer green burials, I wanted my business’s website to shout, “we are green burial advocates!” So, I left my job to start my own business.

III. There must be greater openness to alternative corporate funeral home structures like non-profits and community-backed cooperatives.

            When I phoned the New York Bureau of Funeral Directing to say that I was gearing up to one day launch a non-profit, the fellow on the other end shouted “NOOOOOOOO” so loudly that I had to distance my cell phone from my ear. The only nonprofit funeral firm in New York was created from Jewish community funds and a rare, very specific act of the State Legislature. Otherwise, it is illegal to set up a funeral home in New York State as a non-profit organization. This all seems a little mysterious to me. It seems to me that there should be a lawful way to model any funeral home in New York after successful nonprofit funeral societies, such as People’s Memorial in Seattle.

IV. Outmoded “ready-to-embalm” laws place unmanageable financial burdens on funeral home start-ups.

In an ideal world, I would have set up an attractive, calming funeral arrangements office with one pine box and one willow casket in the neighborhood where most of my customers live. But arranging any funeral in a satellite office detached from a chapel and prep room is illegal in state of New York. I am required to be physically attached to a tiled, ventilated, formaldehyde-ready, 120-square-foot prep room with hot and cold running water, a utility sink, sewage and waste disposal, tight closing, rigid doors, and a funeral chapel with 300 square feet of floor space. As I was launching my new company with only $20,000 in family savings, I couldn’t pull those things out of a bag.

So, sixteen months ago, I met with the owner of Brooklyn’s oldest Jewish funeral services firm and presented him with photographed evidence of the green, home, alternative funerals I had been helping families orchestrate at the firm where I was trained. He pretty quickly agreed to hang my shingle and host my eco-friendly company (which conforms to Jewish principle). Today, I pay Joe $300 a month in rent. His unionized staff of directors earns good money on every call I get—helping with my transfers, the driving, and heavy lifting. I personally appear with flowers in my arms at any hour, day or night, at the place of death when a family is waiting in the room. I have not been happy with the quality of the cot covers or flat house stretchers my trade service uses, so I have recently spent another $1000 on my own gear.

I have no permanent, personalized desk space in the funeral firm where I now hang my license, there is just no room, and there is also no storage for anything more than a few white alternative containers there, and there is no current opportunity to get a willow casket into the Jewish showroom. Nevertheless, I am getting along well with the guys, and my clients appreciate the opportunity to make funeral arrangements at their own dining room tables anyway. They can stay in their bedroom slippers or meet me in the cafeterias and waiting rooms of hospitals. I am a virtual funeral home. I show all my biodegradable caskets on my iPad, and I can carry the shrouds anywhere in a bag.

But as long as a “ready to embalm” room and full chapel are mandatory for any freestanding funeral home start up, there will be no New York City freestanding funeral home startups! It is as simple as that. No one could do that on their own in New York City unless an angel investor with no expectation of rapid return on the dollar, someone who, say, would just be willing to buy and refurbish an existing funeral home and decorate it in a way grieving families might find healing. Someone like Yoko Ono or media mogul Martha Stewart, who might decide to create such a funeral firm as a public service to make a substantial, aesthetic shift in the way we care for our dead.

I once informally shared my “not-so-ready to embalm” frustrations with New York regulation with a lobbyist for the New Jersey Funeral Directors Association, and I have to say, I greatly admired his directness. We were waiting at the elevator of the Atlantic City Trump Casino, where New Jersey directors had their conventions until last year. And I said, “Why can’t I have an attractive, sweet-smelling satellite office in Park Slope Brooklyn where I can meet with families to make funeral arrangements?” He said, “Because we don’t want insurance agents and others outside the industry to start selling pre-need.” Then he smiled and said, nicely and straight to my face: “You’re our worst nightmare.”

V. The General Price List format should be adapted to extend the funeral director’s role beyond disposition into more modern directions.

Here is where I may sound to you too much like a funeral director. The whole industry has been geared to think of a funeral director as the custodian of the body and little else. To that end, I recently called the new head of the New York Bureau of Funeral Directing to report that I was doing a heck of a lot of work for my customers that I could not legally monetize through my funeral home’s General Price List (“GPL”): grave and niche shopping, support in organizing memorialization efforts as a celebrant, lumber and fabric hunting. I searched a Bed, Bath and Beyond in Manhattan last month to find an afghan throw in the deceased’s favorite shade of robin’s egg blue so that we could place it over a cardboard casket (I found it, too). I am regularly engaged these days in the planning of memorial services that are almost as elaborate as weddings and tough to get to conform to the GPL. So, here is what the New York Bureau of Funeral Directing’s legal team recently advised me to do: start a second LLC and call it something like “Fitting Tribute Events.” Two bank accounts, two tax filings. I am thinking I have got to do it, but gee, I wish there were an easier way.

In order to survive in the future, funeral homes will have to monetize some new goods and different service options, and I feel this is worthy, distinguished work. It doesn’t mean the consumer has to buy these services from the director, but at least funeral homes could develop some new areas of expertise. As cremation rates rise, and funeral homes bid farewell to heavy, fancy casket sales, responsible funeral theorists are wisely thinking that funeral directors should help in the effort to keep the legacies of the dead well remembered.

The good news is that in 2016, my first year of business, I directed twenty-six pretty gorgeous funerals (five green burials, three home funerals, fifteen cremations services, and three large memorial services). I am on track for managing forty funerals and twelve memorial services in 2017. The word is out. I am seeing encouraging business growth and getting great reviews posted online. It will not be long. Sometimes I get angry and frustrated, but I am getting attention and receiving thanks, and that helps push me forward. Also, I feel certain that the future of the funeral will be female informed.

I hope to soon be training new directors in sustainable, reasonably priced funeral services, and to help more families find stability in their own gumption and resilience, inspired by my growing firm. Never in my life as a writer and social observer have I found an area that so desperately needed more public scrutiny and awareness. It is a great, great honor to be a change agent in the funeral business. I am not going to shut up, and I am not going to quit. I expect to be a little old lady tromping around cemeteries in my sneakers. I want to be buried in a silk shroud, surrounded by whatever flowers are in season. This way, trust me, I will die happy. I end all my funerals by saying: “May the source of peace grant you each peace, and grant peace to all who mourn.”

Amy Cunningham is the owner of Fitting Tribute Funeral Services LLC and Fitting Tribute Memorial Events LLC, with Kateyanne Unullisi, the co-editor of the popular blog TheInspiredFuneral.com.

Expanding the Scope of Church Liability for Sexual Abuse Claims

Expanding the Scope of Church Liability for Sexual Abuse Claims

Heather Stinson

            Jury selection just concluded in a West Virginia case that may prove monumental in expanding the scope of liability assigned to churches for sexual abuse of minors. What makes this case unique is that while we are familiar with the many lawsuits against the Catholic church for sexual abuse by priests. The abuser in this instance was not a church leader but was another member, who was a minor himself, and the abuse took place off church premises. Nine minors and their parents have joined together to sue the Church of Jesus Christ of Latter-Day Saints (otherwise known as the Mormons) claiming negligence, negligent supervision, fraud, conspiracy, civil assault, failure to report as required under the state’s mandatory reporting laws, and intentional infliction of emotion distress.

Michael Jensen moved to West Virginia with his family at the age of 14 in 2006. From 2007 until 2012, both parents and church leaders though he was a suitable babysitter for children in the congregation. In 2003, Mr. Jensen was criminally charged and sentenced for the abuse committed on two of the nine children. While he spends the next 35 years in prison, the children who endured the abuse and their parents turn their attention to their own church, who they claim knew about Michael predications to abuse and did not warn them. In order to prove that the church was in fact negligent in its supervision of Mr. Jensen, the plaintiffs in this case will need to show that the church knew, or should have known, that Mr. Jensen could cause harm and that they failed to warn of this risk.

While not controlling, in a consolidated state court case out of Washington, the court expanded liability to those actions that take place off of church premises and done by those outside of the otherwise identified special priests-parishioner relationship. This Washington case involved a prominent church member that held various leadership positions in the church who sexually abused the pastor’s three daughters. It was shown that church leadership knew of the abuser’s previous history of molestation but failed to take steps to prevent or warn. Similar to the West Virginia case, none of the abuse occurred in the church itself but while he was babysitting for the children. The majority of the court found that the church had a legal duty since it was the church who first “placed [the perpetrator] in authority and in close relationship to church children, knowing of the danger”. It will be most interesting to see if the West Virginia state court feels similarly.

Naturally the Church of Jesus Christ of Latter-Day Saints does not want to be held liable for criminal actions committed by one member against another while off-church premises. At the same time though, the state of West Virginia requires clergy, or church leadership, to report suspicions of abuse, and these families will attempt to show that neither the church nor its agents reported known allegations against Mr. Jensen.

For its part, the church is concerned that that such sweeping liability would cause government intrusion into internal affairs of the church that are arguably impermissible under the First Amendment.  Churches tend to argue that the First Amendment, among other things, offers religious organizations special status in society; there is a concern that if courts start to apply neutral laws of general applicability of non-religious organizations to church actions that somehow religious status will be downgraded . But the Establishment Clause provides no shelter for the church from abuse claims and the Free Exercise Clause only imposes limits on laws that single out religion from disfavored treatment. In Employment Division v. Smith,  the Supreme Court ruled that the Free Exercise Clause of the First Amendment does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. A state mandatory reporting law is not meant to burden religious exercise.

Likewise, in Lemon v. Kurtzman, the Court has held that a state action does not violate the Establishment Clause if the action has a secular purpose, whose primary purpose or effect neither advances nor inhibits religion and does not excessively entangle the state with religion. In this instance, the negligent supervision claim would not require excessive entanglement into the internal affairs of the church because all these families need to discover is: (1) when the church leaders became aware of Mr. Jensen’s allegations of abuse; (2) whether they reported the suspicion to law enforcement as required in West Virginia once they became aware of the allegations; (3) and whether the leader failed to warn those in harm’s way.

In the West Virginia case, the plaintiffs have a high probability of proving negligent supervision on the part of the Church and various leaders. Proving the claim would not cause an impermissible entanglement with the Church. Because the families in this case have refused to settle, it appears that we will get a chance to see if another state will expand church liability to encompass abuse committed by one member upon another member, off church property.

Spratly Islands

The Spratly Islands

Samantha Poon

In a time when the United States is slowly slipping away from its former title as the global hegemon, countries, like the People’s Republic of China (“China”), are asserting their regional power. China’s place within southeast Asia is shifting into one of greater influence. This is most clearly visible in China’s role in the enduring Spratly Island drama and its complete rejection of the United Nations Permanent Court of Arbitration’s (“Tribunal”) final decision.

Disputes over a handful of islands in the middle of the sea have been a historically complex international legal debate, involving issues such as water rights, natural resource rights, economic rights, military occupation rights, and more. The Spratly Islands disputes are paradigmatic of this convoluted international problem. The Spratly Islands consists of more than a hundred islands or reefs located in the South China Sea, occupying a 150,000 square mile area, which are valuable for political, economic, and military reasons. The Spratly Islands are surrounded by Malaysia, Brunei, Vietnam, Philippines, Singapore, the People’s Republic of China (“China”), and Taiwan. Because all of these states have relative proximity and centrality to the Spratly Islands, they each claim total or partial entitlement to the Spratly Islands, excluding Singapore. China, Taiwan, and Vietnam claim the Spratly Islands in their entirety, while Brunei, Malaysia, and Philippines stake partial claim. Consequently, historical international dispute has arisen over the Spratly Islands. It has been a backdrop for ongoing territorial disputes since the 1960s.

The disputes that arise in the South China Sea stem from China’s overreach. China’s greater military strength is a substantial factor and reality to consider in the disputes, and “any agreement concerning the Spratly Islands that does not satisfy China’s interest would fail at its inception.” It has claimed “historic rights” to essentially the entire South China Sea, including the area which encompasses the Spratly Islands. After decades of dispute, the Philippines brought a claim against China to the United Nations Permanent Court of Arbitration in 2013.

The Philippines brought the claim under the United Nations Convention of Law and the Sea, which governs maritime disputes and the law of the sea at large. The main issues the Philippines presented were that: (1) China did not have “historic rights” to the Spratly Islands; (2) territories in the Spratly Islands are reefs and rocks, not islands, which do not generate independent entitlement to maritime zones; and (3) China conducted illegal activities in the South China Sea. In an incredibly surprising decision to the international community, the Tribunal asserted jurisdiction over the claims and ruled in favor of the Philippines on all its submissions.

China has continually refused to recognize the validity of the Tribunal’s jurisdiction over the case, and consequently its decision in favor of the Philippines. The Tribunal’s decision to rule heavily in favor of the Philippines presents the global community with a unique problem. China’s refusal to participate in the arbitration tribunal undoubtedly complicates the outcome of the Tribunal’s decision. China has a variety of options: it can comply with the decision; ignore the decision and proceed as before; withdraw as a party from UNCLOS; or increase aggressiveness in the South China Sea and in its activities in the claimed territories in the Spratly Islands. The optimal outcome is certainly for China to peacefully resolve the dispute and comply with the Tribunal’s decisions. However, the Tribunal’s harsh rulings against China make it very difficult for China to save face. Alternatively, China could engage in diplomatic negotiations with the Philippines to resolve the Spratly Islands disputes based on the Award. This would allow China to save face, in an appearance of bilateral negotiations, while complying with certain aspects of the Award on its own timeline. This would require the Philippines to be flexible, but may be the most practical option, taking into account China’s superior political position in Asia. As it stands, the international community is at a loss for how to deal with China’s rising power. Only time will dictate how the maritime dispute will unfold.