Vivian Berger Mediator

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Selected Articles on Topics Other Than
Mediation, Employment, and Civil Rights

Is an End to the Death Penalty Nearing?
New state laws, improved science and better representation of defendants all point to change.
Special to The National Law Journal
November 16, 2015  
The Nebraska Legislature in May 2014 overrode the governor's veto of a bill repealing the state's capital punishment law. In October of this year, a successful drive by death penalty supporters to force a referendum on the issue culminated in the law's suspension. More startling than conservative Nebraskans' ambivalence about a charged topic is this development's stark contrast with the growing opposition to the penalty that has arisen in the 21st century. Lately, it is only picking up speed.   More ...

Anti-Darwinists Are Relentless in Their Agenda, Despite Court Rulings
South Carolina Board of Education rejects push to include debate about evolution.
Special to The National Law Journal
October 13, 2014
In June, the South Carolina Board of Education declined to endorse an amendment to the state's science standards that would have assigned students the task of constructing scientific arguments to support and scientific arguments to discredit Darwin's principle of natural selection. The board's decision to decline an endorsement was good news, since no serious case can be made against the validity of evolution.   More ...

Debtors' Prison — It Still Exists in 21st Century America
Underfunded criminal and civil courts are functioning as abusive collection agencies.
Special to The National Law Journal
March 24, 2014
Ask the average American whether failing to pay a debt can land a person in jail, and the answer will likely be "no." But that would be wrong. Although the federal government abolished imprisonment for debt in 1833, more than one-third of the states permit incarceration of those in default of their civil obligations. Furthermore, despite the U.S. Supreme Court's holding in Bearden v. Georgia (1983) that revoking probation for failure to honor a criminal fine or make restitution abridges due process when obligors through no fault of their own are unable to pay, the constitutional mandate is widely in the breach. Affronted by these shameful practices, several organizations have recently called for abolition of debtors' prison in its modern incarnations. Their appeals must be heeded promptly.   More ...

Life Without Parole: A Sentence That's Cruel but Not Unusual
Special to The National Law Journal
January 6, 2014
The American Civil Liberties Union recently released a report aptly titled "A Living Death." It deals with the phenomenon of life sentencing without possibility of parole. Known as "LWOP," it might as aptly be called "LWOH," for life without hope.   More ...

Tough Fight to End Legislative Prayer
Special to The National Law Journal
November 4, 2013
For the first time in 30 years, the U.S. Supreme Court will revisit the practice common to many legislative bodies of commencing their sessions with prayer.   More ...

Solitary Confinement's High Costs More Than Monetary
Special to The National Law Journal
September 16, 2013
A man who is isolated and alone can be regarded as a sort of discarded person," Dinizulu, king of the Zulus, wrote in 1910. "There is nothing worse than being isolated." Prisoners who have endured solitary confinement agree. According to Senator John McCain, who was kept alone in a cell as a prisoner of war in Vietnam, "It crushes your spirit."   More ...

The Justices Confront a Solomonic Task

Special to The National Law Journal
May 16, 2013
No area of law presents such intractable human problems as domestic relations, especially when a child is involved. Only rarely do federal judges need to deal with custodial issues. But currently the U.S. Supreme Court is considering a case that pits the interests of a white, would-be adoptive couple, to whom a Latina biological mother surrendered her baby girl at birth, against those of the natural father and his Cherokee tribe.   More ...

The graying of the penitentiary

Special to The National Law Journal
October 1, 2012
Picture a facility many of whose occupants are obviously frail, ill or disabled. Most have sparse or graying hair. A number lean upon canes or walkers; others navigate by means of wheelchairs. Some cannot even leave their beds or eat and drink without assistance. Surely this must be a senior citizens' or nursing home. But if so, why are the denizens all male and dressed in identical colored jumpsuits? The answer is that you are looking at a prison — and not a unique one.   More ...

Jump off the private prison bandwagon
Special to The National Law Journal
April 9, 2011
On March 1, a broad coalition of public interest organizations wrote to the governors of every state, urging them to decline a bid from Corrections Corp. of America to buy up public prisons and turn them into private facilities. Significantly, this proposal from the largest for-profit prison company in the country did not come without strings attached.   More ...

Muzzling teachers on Facebook

Special to The National Law Journal
November 28, 2011
With class sizes burgeoning and many youngsters remaining anonymous to their teachers, one might think that efforts by teachers to enhance communication with pupils would be applauded. Instead, school authorities and, more recently, legislators are casting a wary eye on such practices as teacher-student “friending” on Facebook.   More ...

No recompense for John Thompson's stolen years
Special to The National Law Journal
June 20, 2011
John Thompson spent 18 years in prison, 14 on death row. He landed there because the prosecution team responsible for his convictions of attempted armed robbery and capital murder failed to turn over evidence that had the potential to prove his innocence. None of the four assistant district attorneys involved has incurred any sanction. After his convictions were vacated and he was retried for murder and acquitted, Thompson brought a § 1983 suit against the then Orleans Parish District Attorney, Harry F. Connick.   More ...

Enact the DREAM Act
Special to The National Law Journal
November 29, 2010
On Oct. 13, Georgia became the second state to bar illegal immigrants from enrolling in its public colleges; South Carolina has a similar ban. Although the Georgia prohibition extends only to schools with selective admissions policies, Republican lawmakers will most likely advance bills to broaden it to cover all state colleges. This radical move is not only mean-spirited, it also counters the generous intent of current efforts to enact legislation at the national level easing the plight of undocumented students who seek post-secondary education.  More ...

Involuntary servitude

Special to The National Law Journal
May 3, 2010
The 13th Amendment banned slavery in 1865. A modern form of it still subsists, however, hidden behind residential walls and, when exposed, unremediable in the courts. Its locale is apartments and houses occupied by foreign diplomats. The United States allows them to bring employees into the country on special visas to perform domestic tasks. Although obliged to obey our laws, a significant number of such officials routinely flout them, luring workers with false promises of good pay and a decent environment, only to trap these hapless people in conditions of abject servitude.  More ...

Court-ordered community treatment
Special to The National Law Journal
February 8, 2010
The mid-20th century witnessed the deinstitutionalization movement. Spurred by toxic conditions in psychiatric hospitals and the development of anti- psychotic drugs that would permit residents to function outside their walls, these establishments began to shut their doors in droves. Community treatment, recognized as superior in theory, often failed to deliver in fact.
More ...

A win for people with mental disabilities

Special to The National Law Journal
November 2, 2009
Approximately 4,300 people live in "impacted" adult homes in New York City; these are facilities in which at least 25 residents (or, if fewer than 25 residents, 25%) suffer from mental disabilities. In 2003, Disability Advocates Inc. (DAI) sued the New York State Office of Mental Health (OMH) and the Department of Health on behalf of dwellers in the 21 largest homes, seeking an order requiring defendants to move its constituents to supported housing in the community.     More ...

Stop Prosecuting Teens for “Sexting”

Special to The National Law Journal
July 27, 2009
A cute moniker for a widespread, toxic phenomenon, "sexting" refers to teenagers sending nude or semi‑nude pictures of themselves or other youths to friends' cellphones or posting these photos on social Web sites like MySpace and Facebook. Although young people have always behaved in risky and impulsive ways, modern technology has seriously upped the ante for doing so.    More ...

Strip-Searching Kids

Special to The National Law Journal
March 2, 2009
With ever younger children abusing an increasing smorgasbord of substances, schools have become the front line of defense against this troubling trend. On the one hand, educators cannot responsibly ignore tips that students may be ingesting or distributing dangerous drugs — information that may require verification by bodily searches. On the other hand, public employees are constrained by the Constitution: The U.S. Supreme Court has long recognized that students do not abandon their rights at the schoolhouse door and are entitled to obtain redress if these are infringed on.     More ...

Report Refutes Court
Special to The National Law Journal
September 22, 2008
In 1977, the U.S. Supreme Court held, 5-4, in Ingraham v. Wright, 430 U.S. 651, that neither the Eighth nor the 14th Amendment constrains the use of corporal punishment in public schools. According to Justice Lewis F. Powell Jr.'s majority opinion, the cruel and unusual punishment clause was designed to shield prisoners, not kids: "The schoolchild has little need for [its] protection . . . .[T]he public school remains an open institution."     More ...

Exonerated Prisoners: Improve Remedial Laws

Special to The National Law Journal
March 24, 2008
The wrongful Convictions Tax Relief Act of 2007, S. 2421, recently introduced by senators Charles E. Schumer, D-N.Y., and Sam Brownback, R-Kan., would furnish certain tax benefits to exonerated prisoners without prior felony convictions. Most important, for 15 years or the number of years of incarceration (whichever is less), it would exempt them from federal income tax liability on the first $50,000 of annual income received as reparations for their imprisonment. The bill is aimed at preventing others from suffering the plight of exoneree David Pope, who ended up owing nearly a quarter of the $385,000 that Texas had awarded as recompense for the decade and a half of hard time he endured before being cleared of rape charges.     More ...

The Death Penalty: Unwise for Child Rape
Special to The National Law Journal
January 21, 2008
On Jan. 4, the U.S. Supreme Court granted Patrick Kennedy's petition to review his capital sentence for raping his eight-year old step-daughter. Kennedy v. Louisiana, No. 07-343. One of only two people on death row for a nonhomicidal offense (the other is also in Louisiana), he claims that the Eighth Amendment forbids the ultimate penalty to be imposed on the perpetrator of a violent crime in which the victim does not die. As a matter of constitutional law, he has a very strong position. But even if the court rejects his challenge, legislators should spurn calls to expand a punishment that is plainly counter-productive in this setting — not to mention, declining here and moribund in the rest of the world.     More ...

Abolition of the Death Penalty: Prospects Brighten
Special to The National Law Journal
January 29, 2007
The odds are good that New Jersey will make history by becoming the first jurisdiction to repeal the death penalty in the modern era of capital punishment. That era began 35 years ago, when — after the U.S. Supreme Court, in Furman v. Georgia, 408 U.S. 238 (1972), invalidated all existing death-sentence laws as impermissibly arbitrary — states began to re-enact revised capital sentencing statutes. The impetus behind this potentially momentous event is the recently released report of New Jersey's Death Penalty Study Commission.    More ...

It Can't Be Humane
The National Law Journal: Opinion
September 11, 2006
Last June, the Supreme Court in Hill v. McDonough (2006) reaffirmed its decision in Nelson v. Campbell (2004), approving the use of 42 U.S.C. 1983 to attack a means of execution as violative of the Eighth Amendment. In so doing, it permitted condemned inmates nearing the end of their legal appeals to sidestep a ban on virtually all successive habeas corpus petitions filed by applicants who cannot establish innocence.  These challenges, impugning specific lethal injection procedures rather than the method in general, were deemed by the justices not to run afoul of the rule that assaults on the lawfulness of confinement must proceed by way of habeas.    More ...

Academic Freedom: Wrong 'Bill of Rights'
The National Law Journal: Opinion
June 12, 2006
"Bills of rights" have become an increasingly popular phenomenon. A quick tour of the Internet yields charters for consumers, charitable givers, hospital patients, library users and software customers, among many others. A misnomer because they ordinarily confer no new rights, or at least no legally enforceable ones, they are mainly aspirational: provocative at best, innocuous at worst.     More ...

Civil Liberties: Big Victory for Charities

The National Law Journal: Opinion
January 16, 2006
A coalition of 13 not-for-profit groups took on the U.S. government and won. By commencing litigation (recently dropped), these organizations ... persuaded the U.S. Office of Personnel Management (OPM) to rescind its recently adopted requirement that, as a condition of participating in the Combined Federal Campaign (CFC), applicants screen recipients of funds and employees against various official watch lists. In so doing, they struck a significant blow to the administration's hydra-headed 'war on terror' — which has often degenerated into a wrongheaded war on civil liberties.     More ...

Gay Adoption: Ban Hurts Children
The National Law Journal: Opinion
April 4, 2005
According to the U.S. Department of Health and Human Services, 586,000 children in the country were living in foster care in 2000; 117,000 of them were awaiting adoption. For many such children, the wait would be long and, for some, fruitless. In 2001, in Florida alone, more than 3,400 adoption-eligible youngsters had to remain in foster homes because of a lack of adoptive parents. Eighty percent stay in state custody for more than two years; 36%, for more than four years — a substantial fraction of their childhood. Moreover, the ones lucky enough to get permanent placements go disproportionately to single parents: 25% in the state as a whole and 40% in Miami-Dade County.     More ...

Stop Loss: Debate the Issue Now
The National Law Journal: Opinion
January 31, 2005
On Dec. 6, 2004, Army Specialist David W. Qualls, together with eight 'John Doe' co-plaintiffs, sued Secretary of Defense Donald Rumsfeld in the District of Columbia, attacking the legality of the 'Stop Loss' program and requesting preliminary injunctive relief releasing them from military service.      More ...

Persuade Don't Punish

The National Law Journal: Opinion
Monday, January 19, 2004
Presidential candidate General Wesley K. Clark has announced that he favors a constitutional amendment permitting Congress to ban physical "desecration" of the American flag. The need to alter the Constitution, rather than merely enact a law, to achieve this end arises from the U.S. Supreme Court's invalidation, in Texas v. Johnson (1989) and United States v. Eichman (1990), of both a state and a federal statute criminalizing such activity.    More ...