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ADDED TO EMAILING LIST, PLEASE CONTACT:
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SEVERAL EXAMPLES SHOWING THE TYPES OF LEGAL
OR LAW-RELATED PROPOSALS WHICH MIGHT BE SUBMITTED
AND ALSO
ILLUSTRATING THE FORM IN WHICH THE INITIAL SUBMISSION SHOULD BE
TRANSMITTED VIA EMAIL
The purpose of this contest is
to encourage law students to think about, research, and write about new
ideas for using a legal or law-related action designed to be
particularly effective in advancing and/or protecting the rights of
nonsmokers, primarily by protecting them from exposure to tobacco smoke
pollution.
These proposals may consist of ideas for a new legal action which
could be brought in court by an antismoking organization, actions
-- such as complaints and/or petitions for rulemaking -- which health
groups could bring before administrative agencies, proposals for novel
laws or ordinances which could be presented to state and local
legislative bodies by activist organizations, or projects which provide
guidance, assistance, and/or encouragement for individuals
or small organizations to initiate action on their own. Below are
four
examples:
1.
AN EXAMPLE OF A PROPOSAL FOR A NEW TYPE OF LAW SUIT
2.
AN EXAMPLE OF A PROPOSAL FOR AN ADMINISTRATIVE
PETITION FOR RULEMAKING
3.
AN EXAMPLE OF A PROPOSAL FOR A NOVEL AND INDIRECT LEGISLATIVE APPROACH TOWARDS
BANNING SMOKING IN RESTAURANTS
4. AN
EXAMPLE OF A NOVEL EDUCATIONAL
LAW-RELATED PROPOSAL TO ENCOURAGE COMPLAINTS ON BEHALF OF CHILDREN
Please read each only as an example,
not as a specific suggestion.
Moreover, please follow the forms
shown below in making your initial submission via email.
Remember, the entire submission must
be in the form of text in an email message, with no attachments.
1. AN EXAMPLE OF A PROPOSAL FOR A NEW TYPE OF LAW SUIT
SMITH, John, jsmith@aol.com, 202-994-6123, 202-994-2316
Suing States Under Tennessee v. Lane on Behalf of Sensitive Nonsmokers
Protected by the ADA
In Tennessee v. Lane, 124 S.Ct. 1978 (2004), the U.S. Supreme Court
held for the first time that, under the Americans With Disabilities Act
[ADA], states could be held liable for monetary damages to persons with
disabilities for failing to make reasonable accommodations permitting
them effective access to courthouses.
It also specifically mentioned the problems with limiting their ability
to participate as jurors – including not only harm to the person
excluded,
but also to the rights of defendants in criminal and all parties in
civil
cases.
Moreover, it suggested that the state’s duties under the ADA might not
be limited to courthouses, and could include any restrictions on their
access to “vital services” and/or “fundamental rights”– categories
which could include many governmental buildings, the fundamental right
to travel, etc.
In addition, the U.S. Supreme Court has held that exposure to
secondhand tobacco smoke can be so harmful as to constitute “cruel and
unusual punishment,” and many lower courts have followed its lead in
upholding monetary damages awarded to prisoners exposed to tobacco
smoke pollution. The Court also
recently upheld a verdict against an airline for causing the
death of
a nonsmoking passenger by subjecting him to secondhand tobacco smoke.
Many courts have held that persons who are especially sensitive to
tobacco smoke may be entitled to protection under the Americans With
Disabilities Act , 42 U.S.C.S. § 12131 et seq., a protection
likely to survive recent decisions limiting the scope of the ADA at
least for persons whose sensitivity is so great that exposure to
tobacco smoke interferes with their very ability to breathe.
Therefore an effective strategy to encourage state governments to more
effectively restrict – if not to totally ban – smoking in governmental
buildings,
and perhaps even in bus, train and other transportation facilities,
would
be to find a very sensitive nonsmoker who could not serve on a jury,
vote,
or avail himself of other vital services such as transportation
because of tobacco smoke pollution, and sue the state for monetary
damages
for permitting if not encouraging smoking.
The author respectfully suggests that such an approach would be
especially effective because . . .
{{ MORE DISCUSSION, AMPLIFICATION, AND ARGUMENTS FOR PROPOSAL}}
2. AN EXAMPLE OF A PROPOSAL FOR AN ADMINISTRATIVE PETITION FOR
RULEMAKING
JONES, Mary, mjones@gwu.edu, 202-833-3333, 703-567-1234
KURRY, Steve, skurry@gwu.edu, 202- 833-4444;
FELDMAN, Larry, lfeldman777@yahoo.com, 202-994-2020, 703-567-4321
Petitioning Foster Care Agencies to Adopt Regulations Prohibiting
Smoking in Cars When Foster Children Are Present
Both to protect foster children, and to open the door towards the
eventual adoption of laws prohibiting smoking in all cars when any
young children are
present, it is proposed that an appropriate health organization with
standing
submit a petition for rulemaking asking a state foster care agency to
prohibit
smoking in cars when foster children are present.
Such a petition could also state or at least suggest that a law suit on
behalf of one or more foster children sensitive to tobacco smoke might
be
brought against the agency, and perhaps even against some of its
personnel,
if such a rule is not adopted within a reasonable period of time.
A growing number of courts have held that prisoners may sue those
responsible for their care in federal as well as in state court, and
hold officials personally liable for their exposure to tobacco
smoke. The U.S. Supreme Court in
Helling v. McKinney, 509 U.S. 25, 33 (1993) went so far as to say that
deliberate
indifference to the risks of exposing adult prisoners to tobacco smoke
pollution
can violate their constitutional rights and constitute “cruel and
unusual
punishment.”
Moreover, many courts have frequently said that foster children - who,
like prisoners, are held against their will, and also are wards of the
state
- have at least the same legal rights to sue as do prisoners, and are
entitled to no less protection. Indeed, the application of
Helling to the state’s legal obligation to protect foster children has
been specifically suggested.
Thus, a petition for rulemaking could argue that a state foster care
agency should adopt rules prohibiting smoking in cars when foster
children are present in order to avoid legal liability.
Additional argument supporting such a rule could also include one or
more of the following:
ONE: it’s hypocritical and unfair to protect adults from occasional and
easily avoidable exposure to tobacco smoke while subjecting child wards
of
the state to continuing tobacco smoke pollution;
TWO: Rulemaking avoids legislative hearings, and the possible
imposition of such requirements on a foster child agency by state law,
as recently occurred in both Maine and Oklahoma;
THREE: The ban would significantly reduce unnecessary taxpayer costs
for medical treatment, drugs, and other medical care associated with
foster children’s exposure to tobacco smoke pollution;
FOUR: Agencies and their personnel have a moral – as well as legal –
obligation to protect foster children, who are defenseless wards of the
state, from easily
preventable readily foreseeable harm.
There are many reasons to believe that such a petition for rulemaking
could be successful, and open the door to eventually asking the
legislature to provide
the same protection to all children by banning smoking in all vehicles
when
young children are present.
{{ MORE DISCUSSION, AMPLIFICATION, AND ARGUMENTS FOR PROPOSAL}}
3. AN EXAMPLE OF A PROPOSAL FOR
A NOVEL
AND INDIRECT LEGISLATIVE APPROACH
TOWARDS BANNING SMOKING IN RESTAURANTS
NELL, Mark, mnell@gwu.edu, 202-833-3333, 703-567-1234
MURRY, Stan, smurry@gwu.edu, 202- 833-4444;
GREEN, Larry, lgreen123@yahoo.com, 202-994-2020, 703-567-4321
Although a growing number of states - as well as local jurisdictions
such a counties, cities, towns, etc. - have banned smoking in
restaurants, such legislation has so far proven impossible to pass in
all too many jurisdictions.
A common reason is that the chairman or the leading minority member of
the legislative committee which has jurisdiction over such bills
strongly
opposes the legislation and refuses to permit it to come to a vote,
even
where passage by the entire house would be likely.
Often these obstructionist legislators are not amiable to argument or
persuasion, either because the restaurant and/or tobacco industries
have a great deal of control over them, or because of very firmly held
beliefs (including by some who are smokers).
One possible way around such a roadblock would be to craft legislation
so that it would go before another committee where a different chairman
and/or minority leader might be more sympathetic. This might
permit the bill to finally come to a vote by the entire house.
For example, a bill to provide additional tax benefits to restaurants
which prohibit smoking might arguably come before a legislative
committee which deals with taxation rather than a health
committee. Similarly, a bill which denies certain zoning benefits
or advantages to establishments which permit smoking could be steered
to a committee dealing with zoning matters rather than health matters.
As this paper will show, such approaches have been successful in a few
isolated cases, and therefore the technique might be useful in a wider
range
of jurisdictions.
Thus one effective legal action project might be for a public interest
organization to document examples where these techniques have worked,
then
find jurisdictions where obstructionist legislators might be bypassed,
and
share their information with local antismoking groups.
Another technique might be for a public interest organization to
prepare a white paper on how this technique might work in a number of
different situations, cite examples where it has been successful, and
distribute the document in the form of a brochure and/or download from
a web site to a large number of
health, antismoking, and similar organizations around the
country.
{{ MORE DISCUSSION, AMPLIFICATION, AND ARGUMENTS FOR PROPOSAL}}
4. AN
EXAMPLE OF A NOVEL EDUCATIONAL
LAW-RELATED PROPOSAL TO ENCOURAGE COMPLAINTS ON BEHALF OF CHILDREN
CORBIN, Paul, lawman007@hotmail.com,
617-123-4567, 617-861-2345
In at least fifteen
states, courts have ruled that, in a custody proceeding, courts may
consider whether one parent subjected his or her child to tobacco
smoke. If so, courts have held that such an act could be the
basis for loss of custody. Indeed, in a few cases, parents have
lost custody for subjecting their child to tobacco smoke, with some
judges and commentators suggesting that the act amounted to "child
abuse" (or "child neglect" or "reckless endangerment").
Perhaps more importantly, in a small number of cases, courts have
revoked custody based upon complaints of outsiders - i.e., persons
other than a parent. There also appear to be some situations in
which child welfare officials have
taken action to protect children from tobacco smoke pollution based
upon
complaints filed by third parties, just as they would with other
complaints that children were being unnecessarily subjected to
unhealthy situations.
There are various classes of persons who might logically be both able
and willing to file complaints when children are being made sick by
parental exposure
to tobacco smoke pollution if only they knew that such complaints might
have
a basis in law and in fact, and that there was precedent for such
filings.
These persons include emergency room doctors who frequently treat
children
with asthma and other medical conditions admitted in respiratory
distress
brought on by exposure to tobacco smoke, school nurses who treat
children
whose respiratory problems, ear aches and other medical conditions are
exasperated
by tobacco smoke in the home, pediatricians treating children whose
health
is endangered by exposure, etc.
Therefore one very effective way of encouraging such third parties to
file such complaints so that authorities could begin to take
appropriate action in situations where very susceptible children are
involved would be to develop a campaign to educate such persons that
such complaints are appropriate and well grounded by providing them
factual underpinnings, legal arguments based upon relevant statute and
regulations, and examples where such complaints have been acted upon.
Such information could perhaps best be made available by working with
professional societies of emergency room physicians, school nurses,
pediatricians, allergists and respiratory therapists, etc. and asking
them to make the information available
to their members through professional publications, newsletters, web
sites,
email messages, and other conventional means.
A similar and parallel campaign could be organized for welfare workers
and other officials who respond to such complaints so that they would
realize just how serious exposing a child with allergies or respiratory
problems to tobacco smoke can be, and that by law they should treat
such complaints the same way they would complaints of exposing children
to other airborne toxins such a asbestos, benzene, fumes from a kiln,
etc.; all of which, like secondhand tobacco smoke, have been found by
the U.S. government to be human carcinogens.
This approach could be very cost effective because . . .
{{ MORE DISCUSSION, AMPLIFICATION, AND ARGUMENTS FOR PROPOSAL}}
For the rules and more
information about this unique contest, see Contest Rules
For more information about the sponsors, see National Center
for Nonsmokers' Rights and
Law Professor John Banzhaf
