This morning I had to print an essay I wrote a couple of weeks back. After I printed it and was scanning it, I thought, "Oh no! Tessa must have saved her essay over mine!" because it was so well written. It turns out that it *was* mine after all.
I don't mean to toot my own horn, but am posting the essay here. As always, when I cut and paste my essays from Microsoft Word, the footnotes and citations do not transfer. If you need cites, please post a comment and I will provide them.
Free Movement of Services (Freedom of Establishment)
One of the pillars of the European Union is the free movement of services (the Freedom of Establishment) within the twenty-seven member states. Many times, this is not controversial (for example, if a French baker wanted to open a bakery in Sofia). However, at other times, states obstruct the free movement of services within their borders until sanctioned by the European Court of Justice. The free movement of legal services required litigation and much negotiation to clarify in what manner member states may regulate admission to the profession without such regulation being an unreasonable burden on the free movement of services.
The regulation of the legal profession differs in many respects from other services. This is because, unlike the baking of bread, the law differs within each territory. States have an interest in ensuring the competency of the members of the bar and protecting their citizen consumers from the potential damage caused by incompetent attorneys practicing with unfamiliar laws in an unfamiliar language. At the same time, members of the legal profession typically are considered officers of the court. As such, courts are cautious in who they allow to represent their institution.
Regulation can take many forms, from bar entrance requirements to the regulation of attorney fees (thereby impeding the free market system and free competition). Regulation by member states is not prohibited, but must serve an important and justifiable state interest; and the regulation must be narrowly tailored to achieve the interest in a way that does not favor their own citizens over citizens of other member states.
Ultimately, after over 30 years of wrangling, permissible regulation of the legal profession under EC/EU treaties was determined to be those that guaranteed consumers competent legal council, but that did not discriminate against foreign attorneys. For example, member states may not require residence or registration with the professional organization in the host member state, but may require that attorneys “observe the rules of professional conduct of the host member state without prejudice to his [home state] obligation.” Some of the basic “rules” governing movement of legal services have been established as follows:
• Member states must mutually recognize the comparable diplomas and professional licensing of other states.
• Attorneys may immediately practice under their home state titles (i.e., a “solicitor” from the U.K. practicing under that title in Rome) or under their migrant state’s title after a suitable period of supervision by a competent attorney within the host state.
• “A migrant lawyer practicing under his home country professional title may ‘give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.”
The EU portability differs greatly from the U.S. system. In the United States, each state establishes guidelines for admission to the bar. Another state is not required to accept another state’s attorney licensing and allow that attorney to practice within its jurisdiction. If an attorney wishes to move from one state to another within the United States, that attorney must meet the entrance requirements of the bar of his new state, including taking another bar exam, if required by that state. Of course, for members of the bar of at least one state, practicing solely in Federal Court, this limitation is of no matter because one can practice in any Federal Court in the country so long as one is admitted to the bar in at least one state. However, it is rare for attorneys to have a practice area limited to solely Federal Court and, at a minimum, the vast majority of attorneys are licensed in the states where they reside and have their offices.
The authors of the Syracuse article (from the class reading) believe that “while taking a procedurally different course from that followed in the European Union, the bottom line goals of the EU and the United States are substantially similar.” I disagree. The European Union was developed in order to enhance security and economic vitality of the European Union member states. For this benefit, member states have been willing to exchange a certain amount of their sovereignty, including the right to regulate their own legal professions as they saw fit. Member states must now prove that their regulations are justifiable in relationship to the EC pillar of the free movement of services. States within the United States have no such motivation to cooperate with other states of the union. In fact, the ABA proposed guidelines regarding proposed attorney licensing portability specifically reject a “single nation-wide law license that would eliminate state jurisdictional restrictions.” This rejection cannot be justified by the notion that laws within the individual states vary so much that attorneys cannot be trusted to apply the proper law when practicing. Aside from Louisiana, law and procedure within the other 49 states are substantially similar with only minor variations. Therefore, the rejection of a single nationwide law license can only be based on individual states jealously guarding and protecting their sovereignty, even at the expense of efficiency and productivity.
Monday, September 17, 2007
Wednesday, September 12, 2007
The teeter-totter of immigrant inclusion.
This was a short response paper I wrote for my Comparative Legal Culture course. I scored well. (Too bad it isn't worth more in the final grade.) Also, the footnotes didn't carry over to the blog so much of this text had citations in the original document. If you need citations for any reason, please post a comment and I will include them.
_____________________________________________
In her book, “Immigrants at the Margins,” Kitty Calavita sets forth the problem of immigrant inclusion as a two-headed contradiction between the economic necessity of immigrant labor and the “otherness” required to keep immigrants in a lower status that facilitates their exploitation as laborers. However, I see the contradictions of immigrant inclusion as a three-faceted problem. The first two facets are as Calavita sets forth: the economic necessity of the immigrant labor force, whether legal or illegal; and secondly, the necessary “otherness.” I also propose that there is the contradiction between the internal political requirements of balancing each of the first two forces (immigrant labor and the “otherness”) against the external forces and pressures that measure a liberal democracy (i.e., international law, treaties and supranational organizations.)
Italy’s view of immigration is centered on human rights. Article 43 of the Turco-Napolitano Law of 1998 made it illegal to discriminate, defined as “any activity or attitude that compromises a person’s enjoyment of ‘full human rights and liberties in political, economic, social and cultural contexts.’” Italy enacted several regional laws to give force to Turco-Napolitano, focusing many resources on integrating immigrants into Italian society. At the same time, resources also were directed to courses and programs designed to help immigrants retain their original culture and to provide information about immigrants reinsertion into their homelands.
In the implementation of the regional laws, we can see the tension politicians face. Regions and cities must apply for grants from the national government for the various integration and cultural programs for immigrants. However, in the areas where there is most need, there is also the highest likelihood that politicians will not apply for these funds due to the political backlash from the general population who wish to keep immigrants out. However, the areas most hostile to immigrants are not always the ones that shun funds for immigrant programs. Sometimes, economic realities and the needs of business in the most socially conservative regions intervene to ensure that politicians secure these funds. A comparison of two politically and ideologically different regions in Italy found that their immigration policies were surprisingly similar, even though the rhetoric differs.
Spain’s immigration policies are also built upon a foundation of human rights. Its integration policies specifically mention “the right of (legal) immigrants to access all of the fundamental human rights that Spaniards claim; their access to social services; and the importance of tolerance, ‘respect for cultural diversity,’ and ‘the fight against racism and xenophobia.’” Despite Spain’s rhetoric about “respect for cultural diversity” and the fight against xenophobia, Spain has translated this concern into a focus on protecting domestic culture and languages, like in Catalonia.
Prior to coming to study in Rome, I spent time with a French family that I lived with when I was sixteen years old. I asked them their views of immigration in France. Despite the family’s overall liberal view of immigration, one thing that they mentioned was the need to preserve French culture and language. This is a common theme in France. For example, people will watch the evening news and fault the newscasters for not using proper (i.e., old) French and incorporating any new slang or American terms into their language. So, while some French welcome immigrants, many retain a concern over guarding their own culture and customs.
The United States’ view of immigration has little to do with international human rights, international law or treaties. This is not surprising in a country that has made the very few human rights treaties it has signed non-self-executing, giving their own citizens absolutely no right of redress if the U.S. government fails to fulfill their treaty obligations. Both Italy and Spain’s integration policies specifically mention fundamental human rights, which are extended to immigrants by virtue of their status as human beings. Conversely, there was legislation proposed in Washington State this spring to limit Medicaid benefits to the children of undocumented immigrants. Washington H.B. 1441. This law would actually violate the Convention of the Rights of the Child. Article 24, section 1, states:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access such health care services.
In addition, Article 2, section 1, states:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Finally, Article 3, section 1, states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added.)
These provisions, read together, would ban legislation that would prevent children from accessing basic healthcare based on their parent’s status as undocumented immigrants. However, the United States, along with Somalia, has not ratified this treaty. One could argue that by virtue of the ratification by all member states, save two, that the rights enshrined in this treaty rise to the level of customary international law. However, like most international human rights law violated by the United States, redress is not readily accessible.
Conversely, Spain and Italy have, at least on the books, laws that enable immigrants to access healthcare, housing and other basic human needs. However, despite having the proper legislation that fulfills their treaty obligations, Calavita demonstrates that both Spain and Italy have serious problems “on the ground” with implementation of these laws at the local level.
In viewing these three countries’ policies broadly, one can see similarities in how Italy, Spain and the United States deal with the tensions between the need for immigrant labor and the need to exclude “others” from their societies. However, there is a stark contrast between how Italy and Spain view their obligations to uphold basic international human rights, and the United States where human rights does not appear to be part of the discourse, either for immigrants or its own citizens.
_____________________________________________
In her book, “Immigrants at the Margins,” Kitty Calavita sets forth the problem of immigrant inclusion as a two-headed contradiction between the economic necessity of immigrant labor and the “otherness” required to keep immigrants in a lower status that facilitates their exploitation as laborers. However, I see the contradictions of immigrant inclusion as a three-faceted problem. The first two facets are as Calavita sets forth: the economic necessity of the immigrant labor force, whether legal or illegal; and secondly, the necessary “otherness.” I also propose that there is the contradiction between the internal political requirements of balancing each of the first two forces (immigrant labor and the “otherness”) against the external forces and pressures that measure a liberal democracy (i.e., international law, treaties and supranational organizations.)
Italy’s view of immigration is centered on human rights. Article 43 of the Turco-Napolitano Law of 1998 made it illegal to discriminate, defined as “any activity or attitude that compromises a person’s enjoyment of ‘full human rights and liberties in political, economic, social and cultural contexts.’” Italy enacted several regional laws to give force to Turco-Napolitano, focusing many resources on integrating immigrants into Italian society. At the same time, resources also were directed to courses and programs designed to help immigrants retain their original culture and to provide information about immigrants reinsertion into their homelands.
In the implementation of the regional laws, we can see the tension politicians face. Regions and cities must apply for grants from the national government for the various integration and cultural programs for immigrants. However, in the areas where there is most need, there is also the highest likelihood that politicians will not apply for these funds due to the political backlash from the general population who wish to keep immigrants out. However, the areas most hostile to immigrants are not always the ones that shun funds for immigrant programs. Sometimes, economic realities and the needs of business in the most socially conservative regions intervene to ensure that politicians secure these funds. A comparison of two politically and ideologically different regions in Italy found that their immigration policies were surprisingly similar, even though the rhetoric differs.
Spain’s immigration policies are also built upon a foundation of human rights. Its integration policies specifically mention “the right of (legal) immigrants to access all of the fundamental human rights that Spaniards claim; their access to social services; and the importance of tolerance, ‘respect for cultural diversity,’ and ‘the fight against racism and xenophobia.’” Despite Spain’s rhetoric about “respect for cultural diversity” and the fight against xenophobia, Spain has translated this concern into a focus on protecting domestic culture and languages, like in Catalonia.
Prior to coming to study in Rome, I spent time with a French family that I lived with when I was sixteen years old. I asked them their views of immigration in France. Despite the family’s overall liberal view of immigration, one thing that they mentioned was the need to preserve French culture and language. This is a common theme in France. For example, people will watch the evening news and fault the newscasters for not using proper (i.e., old) French and incorporating any new slang or American terms into their language. So, while some French welcome immigrants, many retain a concern over guarding their own culture and customs.
The United States’ view of immigration has little to do with international human rights, international law or treaties. This is not surprising in a country that has made the very few human rights treaties it has signed non-self-executing, giving their own citizens absolutely no right of redress if the U.S. government fails to fulfill their treaty obligations. Both Italy and Spain’s integration policies specifically mention fundamental human rights, which are extended to immigrants by virtue of their status as human beings. Conversely, there was legislation proposed in Washington State this spring to limit Medicaid benefits to the children of undocumented immigrants. Washington H.B. 1441. This law would actually violate the Convention of the Rights of the Child. Article 24, section 1, states:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access such health care services.
In addition, Article 2, section 1, states:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Finally, Article 3, section 1, states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added.)
These provisions, read together, would ban legislation that would prevent children from accessing basic healthcare based on their parent’s status as undocumented immigrants. However, the United States, along with Somalia, has not ratified this treaty. One could argue that by virtue of the ratification by all member states, save two, that the rights enshrined in this treaty rise to the level of customary international law. However, like most international human rights law violated by the United States, redress is not readily accessible.
Conversely, Spain and Italy have, at least on the books, laws that enable immigrants to access healthcare, housing and other basic human needs. However, despite having the proper legislation that fulfills their treaty obligations, Calavita demonstrates that both Spain and Italy have serious problems “on the ground” with implementation of these laws at the local level.
In viewing these three countries’ policies broadly, one can see similarities in how Italy, Spain and the United States deal with the tensions between the need for immigrant labor and the need to exclude “others” from their societies. However, there is a stark contrast between how Italy and Spain view their obligations to uphold basic international human rights, and the United States where human rights does not appear to be part of the discourse, either for immigrants or its own citizens.
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