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State constitutional privacy rights post Webster--broader protection against abortion restrictions?
  • Article

February 1990


9 Reads

M M Ezzard

Husbands & Wives, Dangerousness & Dependence: Public Pensions in the 1860s-1920s

June 1999


13 Reads

In the latter part of the nineteenth century, states enacted public pension programs for civil servants, following on military pensions. In contests over who deserved these pensions, discussions in courts moved from an anaylsis of the obligations owed to the national government and the relationship between the state and national governments to an analysis of the qualities required to perform the work. Earned benefits were often considered to require masculine characteristics, considering marriage as part of a proper masculine role. When women claimed the benefits as heirs, courts would sometimes consider what made a woman a proper wife. This article discusses these benefits in light of assessing a sometimes close connection in state policy between heterosexuality and gender.

Government Speech 2.0

March 2010


100 Reads

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices. This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.

Finding the 'Eternal and Unremitting Force' of Habeas Corpus: § 2254(D) and the Need for De Novo Review

April 2009


53 Reads

Federal circuit courts are split in determining the proper standard of review for state court decisions that lack significant, new evidence made available on appeal for federal habeas corpus claims. Specifically, federal courts have not reached consensus on whether Section 2254(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) applies to claims that rely on newly found evidence that the state court failed to consider in reaching its decision.The Tenth Circuit, in the case Wilson v. Sirmons, provides a clearer application of Section 2254(d). Namely, when a state court fails to consider new and significant evidence in reaching its decision, then Section 2254(d) simply does not apply because the claim was never “adjudicated on the merits.” Instead, de novo review is the proper standard of review for these unique types of federal habeas claims.The Wilson decision arrives at an important time. The Supreme Court in its 2008-09 term granted certiorari in Bell v. Kelly to address the circuit split on this very issue. Although the case was ultimately dismissed as improvidently granted, the Supreme Court is still looking for an opportunity to address this circuit split - as evident by another case this term, Cone v. Bell, that had the Court again raising the possibility that the reach of Section 2254(d)(1) might not be as broad as many circuits believe. Even the Tenth Circuit recently granted rehearing en banc in Wilson because of the importance of this issue.This paper examines how federal courts have misapplied Section 2254(d), and argues that federal courts should return to the procedural requirements of granting a “full and fair” hearing for federal habeas appeals. Moreover, this paper argues that the courts should follow the Tenth Circuit’s Wilson decision and apply de novo review when significant, new evidence is presented in federal court. This paper can be found in the forthcoming Denver University Law Review annual Tenth Circuit Survey.

Enacting Libertarian Property: Oregon's Measure 37 and Its Implications
  • Article
  • Full-text available

August 2007


83 Reads

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it's clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years. Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in the 1970s and 1980s. But after a hiatus of a decade-and-a-half, land planning opponents put on the ballot a scheme that promised landowners either compensation or a regulatory waiver from land use requirements imposed after they - or a family member - acquired the land in question. That 2000 measure, which the voters approved as an amendment to the Oregon Constitution, was struck down by the Oregon Supreme Court for violating the state constitutional requirement that initiatives be limited to only a single subject. Undaunted, the opponents of Oregon land use planning put another initiative on the ballot quite similar to the 2000 initiative in 2004, except that this initiative was a statutory amendment, not a constitutional amendment. Thus, it was not burdened by the concerns that led to the 2000's measure's judicial rejection. This measure, known as Measure 37, promises to transform land use regulation in Oregon and the Oregon landscape in the process. This article explains the background, politics, and implementation of Oregon's experiment in creating what is the leading example of libertarian property in the world. The article explains early judicial and attorney general interpretations of the measure and its predecessor and focuses attention on the many ambiguities in the measure's language, particularly the uncertain scope of its express exceptions from compensation. Measure 37's proponents have attempted to export its principles to other states and, in 2006, Arizona joined Oregon as another laboratory for libertarian property. Finally, the Oregon legislature recently sent to the voters a referendum, which would attempt to clarify some of Measure 37's ambiguities, expedite regulatory waivers for small developments, but impose limits on new waivers for large developments. The Oregon electorate will decide this referendum in November 2007.

Praying for a Tax Break: Churches, Political Speech and the Loss of Section 501(C)(3) Tax Exempt Status

May 2008


43 Reads

Churches in the United States, like individuals, are free to speak on any issue that they choose. However, if a church wishes to retain tax-exempt status, it must comply with the requirements of Section 501(c)(3) of the Internal Revenue Code. One of those requirements is that churches may not participate or intervene in political campaigns. Some churches, however, believe that their mission includes not just traditional religious teachings, but guidance on issue that affect the lives of their parishioners including politics. Those churches believe they are fulfilling their faith and mission when they offer this guidance. This has caused a tension between the Internal Revenue Service, which must enforce the tax laws, and churches that feel that it is part of their mission to speak out on social issues of the day, which may include political issues. With the 2008 U.S. Presidential election already in full swing, this issue has become more visible and more contentious. This paper examines the issues involved in churches, political speeches and tax-exempt status. It will propose that a limited exception be created for churches so that they may speak freely on all issues to their congregants, including politics, during regularly scheduled religious services.

What the Abortion Disclosure Cases Say About the Constitutionality of Persuasive Government Speech on Product Labels

August 2010


15 Reads

This article addresses the uncertain constitutional status of government compelled disclosure requirements imposed on commercial speech. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that, while commercial speech restrictions are subject to intermediate scrutiny review under Central Hudson, at least certain types of disclosure requirements would be subject to more lenient rational basis review. Many had assumed that Zauderer’s deferential review applied to disclosure requirements imposed to promote legitimate regulatory objectives including, but not limited to, preventing consumers from being deceived by unsupplemented commercial speech. As new requirements that cigarette labels provide larger and more graphic health warnings illustrate, these regulatory purposes may include achieving the public health objective of reducing demand for the product on which the information must be placed. But the Supreme Court’s recent interpretations expanding the free speech protection of commercial and corporate speakers from government regulations that take the form of restricting their speech create uncertainty as to whether and how these changes in the jurisprudence of speech restrictions will modify the authority of governments to achieve their legitimate regulatory objectives by means of information disclosure requirements imposed on commercial speech. Yet this apparent uncertainty in the commercial speech jurisprudence has an odd and inconsistent counterpart. At the same time that members of the Court have suggested that disclosure requirements imposed on commercial speech for purposes other than preventing consumer deception may be constitutionally suspect, in the analogous context of the abortion service, the Court has applied deferential rational basis review to uphold selective and persuasive disclosure requirements that were imposed for purposes other than correcting potentially misleading speech. This piece identifies the symmetry between the two lines of cases, and to points out that, so long as the informed consent to abortion precedent remains unchanged, it is controlling in the context of commercial speech disclosures. Deferential rational basis scrutiny applies to judicial evaluations of information disclosure mandates imposed on product labels and other types of commercial speech, even if the government’s purpose is something other than preventing consumer deception and even if the information is obviously selected and presented to persuade.

Turner v. Rogers and the Right of Meaningful Access to the Courts

February 2012


133 Reads

The article examines the implications of last term's Supreme Court ruling in Turner v. Rogers for the development of meaningful access to the courts jurisprudence. In Turner, the Supreme Court held that for a litigant to have meaningful access he must be able to identify the central issues in the case and present evidence and arguments regarding those issues. In so holding, the Court implicitly rejected the definition of meaningful access used by the Court in its 1996 opinion Lewis v. Casey, which encompassed only the ability to present grievances to the Court, and embraced a broader definition from its 1977 opinion in Bounds v. Smith: that litigants must be able to engage in “an adversary presentation.” At the same time, the Court’s application of its meaningful access standard threatens to rob that standard of any real meaning. The Court adopted a suggestion by a nonparty, presented for the first and only time in a Supreme Court amicus brief, that civil contempt defendants can obtain meaningful access to the courts if they are provided with minimal assistance. The Court's embrace of extra-record information resembles the Court’s analyses of the abilities of pro se litigants in two other cases, Lassiter v. Department of Social Services and Walters v. National Association of Radiation Survivors, which likewise rely on the Justices’ intuitions regarding the abilities of pro se litigants, even in the face of evidence to the contrary. The article concludes that the only way to make the meaningful access standard meaningful is for the courts to rely on empirical evidence regarding the capabilities of pro se litigants.

Accountability in the Administrative Law Judiciary: the Right and Wrong Kind

November 2009


58 Reads

In the Introduction to the symposium edition of the law review, Justice Sandra Day O'Connor states: "Colorado administrative law judge Edwin L. Felter, Jr., [then] discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary." The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other than the political system.The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration,"which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. Indeed, the 2007 ABA Model Code of Judicial Conduct refers to the administrative law judiciary. All codes of judicial conduct espouse the values of independence, impartiality, integrity, diligence and competence.The article discusses and analyzes appropriate and inappropriate judicial performance evaluations. It distinguishes developmental evaluations (for the purpose of performance improvement, but not to affect pay or employment status) from judgmental evaluations. Developmental evaluations are sometimes in the form of anonymous surveys of practitioners and litigants, peer review quality assurance processes and/or both. Judgmental evaluations, which often legally required and can affect pay and employment status, can be evaluations by a supervisory judge or by a performance commission.The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day. The article takes issue with James Bopp, Jr., Esq., of Indiana (who successfully argued Republican Party of Minnesota v. White before the U.S. Supreme Court), who maintains that judges should be responsive to the electorate and should be free to make campaign promises, e.g. "elect me and I'll string up those criminals." The article recommends that administrative law judges must constantly create, develop and implement meaningful accountability measures that demonstrate a high degree of accountability.

Days without immigrants: Analysis and implications of the treatment of immigration rallies under the National Labor Relations Act

September 2007


79 Reads

The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages. Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning of the NLRA. There are rich issues extending beyond the prima facie protection of employee participation in the rallies, however. Traditionally, employees "intermittently" engaging in concerted work stoppages could lose whatever protection they enjoyed under the NLRA. It might be argued that repetitive immigration rallies could similarly strip employees of protection. It is also possible to characterize rallies resulting in work stoppages as unlawful "secondary activity," if the rallies are sponsored by labor organizations and "enmesh" neutral employers. The significance of the rallies being classified as NLRA-cognizable conduct goes beyond the entitlement of individual employees to remedies for discharge or of employers for injunctions to suspend or forbid the rallies. There are systemic considerations at play deriving from deep tensions between the immigration and labor law regimes. Federal labor law could in some instances protect participation in immigration rallies and in other instances prohibit the rallies as unlawful. The article argues that when addressing these issues legal actors should not abandon the labor law model, designed as it is to carefully regulate mass, work-related protest potentially injurious to the national economy, for a risky and untested amalgam of federal and state immigration law enforcement. The conflicts with federal labor law generated thereby could and should be avoided.

Beyond Lane: Who is Protected By the Americans With Disabilities Act, Who Should Be?

November 2007


7 Reads

This article reviews the state of disability law under the Americans with Disabilities Act ("ADA"), with particular attention paid to Lane and other recent Supreme Court cases. In Lane, the Court affirmed that Congress validly exercised its power when it made states subject to suits under the ADA, at least with regard to limitations on access to courts. While the decision addresses Title II of the ADA (restrictions on state discrimination), it does have broader implications for the Act as a whole. Lane reflects a significant shift in the ethical paradigm used by the court to decide ADA cases and creates the opportunity to re-open dialogue about the policy goals of the ADA and broader questions of justice for those with disabilities. Analysis of the measurable impact of the ADA continues and results in sometimes conflicting assertions. With this in mind, the article proposes specific empirical studies to test the effectiveness of the ADA as well as alternative language intended to better meet the original legislative intent.

Local Illegal Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis

March 2007


427 Reads

Obtaining comprehensive immigration reform is one of the most important legal issues facing the Latino community today. For the nation, virtually every family, business, and community is touched by immigration. In 2006, when millions marched for comprehensive immigration reform, prospects for federal action increased. During the summer of 2006, as the U.S. House failed to move forward to complete legislative action, frustrations by anti-immigrant activists led to a small number of cities and towns attempting to enact restrictions and prohibitions against illegal immigrants at the local level. These measures violate the Constitution, and pit neighbor against neighbor. Immigration policy must be established and enforced at the federal level, as local ordinances threaten to discriminate against all Latinos, citizen and newcomer alike. This Article describes some of the local ordinances that have been enacted across the country and their legal flaws, provides arguments that can be utilized against them, and gives an overview of the current legal challenges against these ordinances throughout the United States. Part I describes the origin of these anti-immigrant ordinances and the types of ordinances that were enacted in their wake, in particular the first local anti-immigrant ordinance passed in the United States in Hazleton, Pennsylvania. Part II discusses the legal arguments against these types of ordinances, in particular federal preemption of local immigration laws and possible violations of the Fair Housing Act. Part III provides a brief overview of the litigation that has been brought against municipalities that have enacted local illegal immigration relief ordinances, and the current status of those cases. The Conclusion summarizes the article and looks forward to the next step in combating local anti-immigrant ordinances from a legal, policy, and litigation standpoint.

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