Showing papers in "Albany law review in 2004"

The Futile Quest for a System of Judicial “Merit” Selection

Abstract: It is a mistake ... to try to establish and maintain, through ignorance, public esteem for our courts. --Judge Jerome Frank (1) I. INTRODUCTION The challenge in designing the optimal selection system for judges is that judicial independence and accountability are mutually antagonistic: To the extent that greater public involvement in judicial campaigns occurs, the threat to judicial independence is increased. (2) The "Missouri Plan," or alternatively the "merit-selection plan," was an attempt to find a middle ground. Under merit selection--purely, so far as I can tell, a propagandistic misnomer: nothing ensures that judges chosen under that plan will be better than judges under any other system (3)--the public has little say in who assumes the bench initially, but can vote out incumbents at retention elections. The elections to which judges under the Missouri Plan are subject differ in important ways from the elections judges face in other systems. Most notably, there is no opponent in a retention election. Incumbent judges appear on a ballot asking voters only whether the judge should be retained in office. In most states with the Missouri Plan, a majority vote is sufficient for retention for a term, at the conclusion of which the judge must again stand for retention. The ballot discloses only the name of the judge; no partisan affiliations appear on the ballot. (4) Public involvement under the merit selection plan, generally confined simply to retention elections, (5) is so constrained as to be misdirected and ineffective. By removing challengers from the ballot, retention races eliminate the public figures most likely to motivate and organize opposition to the incumbent. In contested elections, challengers have an incentive to exploit every ruling by their opponents that might be characterized as benefiting an unpopular group or policy. Merit selection hopes to limit the pressure on incumbents to rule in particular ways by ensuring that there will be no candidate opposing the incumbent, and therefore less chance that the public will be alerted to those instances where the judge has flouted the popular will. Furthermore, by removing party labels from judicial elections, voters are deprived of an important proxy for determining whether a judge's decisions are likely to reflect the preferences of the voter. In low-visibility races, including most judicial elections, party affiliation can provide one of the most valuable indications voters have of a judge's likely future decisions. (6) Without knowing a candidate's party, voters often use racial, ethnic, and gender stereotypes in a less accurate, and more offensive, attempt to predict the decisions of the candidates. (7) Others have discussed exhaustively the merits and demerits of merit selection, and I do not intend in this essay to debate the "success" or "failure," per se, of merit selection since its introduction in Missouri in 1940. (8) Instead, I wish to discuss the effect merit selection has on squelching public debate about the judiciary. Once that effect is demonstrated, I then wish to assess this antidemocratic tendency against the purported goal of merit selection: maintaining some measure of accountability in a selection system nonetheless designed to make judges confident enough in their independence to render decisions according to the law rather than the will of the public. In making it difficult for voters to remove an unpopular judge, merit selection gives up on the goal of judicial accountability. Merit selection uses the public as participants in what is predetermined to be a useless exercise designed to ensure the retention of the incumbent. (9) Thus, accountability is sacrificed for independence, but the public is pacified with assurances that they continue to have the power, through retention elections, to discard unfit judges. I claim only that the Missouri Plan is unwise as a policy matter; I do not suggest any constitutional defects in the plan, and indeed insofar as it distances the public from judicial selection, merit selection approximates the model of appointing judges prescribed in the Constitution for federal judges. …

Identity Theft Statutes: Which Will Protect Americans the Most?

Abstract: INTRODUCTION Imagine opening up your mail and finding a credit card statement demanding the payment of thousands of dollars for items you never bought. Or, imagine getting pulled over on a neighborhood street for traveling a couple of miles over the speed limit only to end up getting arrested, strip searched, and taken to jail due to an outstanding arrest warrant for drugs and gun charges that someone else committed in your name. Unfortunately, for too many Americans, these nightmarish scenarios have become a reality. As the crime of identity theft has swept the nation, thousands of victims have been left with damaged credit, a criminal record, and emotional distress. (1) With the advent of the Internet, personal information travels across the globe at lightning speed. (2) Identity thieves use personal information--such as names, social security numbers, and birth dates--to commit frauds or crimes in someone else's name. As a result, state and federal governments have passed laws in an attempt to punish the perpetrators and to deter others from committing these crimes in the future. Each law is different, and each law takes a different approach to combat the problem. This Comment compares and contrasts four different identity theft statutes, and ultimately proposes an alternative statute that combines the strengths of the existing statutes. This proposed alternative statute includes additional provisions which provide more effective solutions to the identity theft problem in America. I. ARIZONA'S IDENTITY THEFT STATUTE The earliest identity theft statute adopted was in 1996 by the State of Arizona. (3) This statute made it unlawful for a person to "knowingly take[] or use[] any personal identifying information of another person, without the consent of that other person." (4) To violate the statute, the identity thief must have "the intent to obtain or use the other person's identity for any unlawful purpose or to cause loss to a person." (5) Finally, the statute states that a victim is the person "whose personal identifying information is taken or used without consent, whether or not the victim actually suffers any economic loss as a result of the offense." (6) In codifying the identity theft statute, the Arizona Legislature sought to warn criminals of the serious nature of this offense by labeling it a Class 4 felony. (7) This classification translates into a sentence of between one-and-one-half and three years in prison for first time offenders (8) and between three and twelve years for repeat offenders. (9) The statute's simple language and relatively short provisions address most acts that could be considered identity theft crimes. First, the term "personal identifying information" (10) is extremely broad and, although never interpreted by the courts of Arizona, could be used to include most government issued items. Second, the statute criminalizes any attempt to obtain a person's personal identifying information, whether or not the victim actually suffers economic loss. (11) This provision serves a two-fold purpose: it broadens the class of people susceptible to prosecution, and serves as a deterrent to those considering committing the crime of identity theft. Finally, it is important to note that the statute specifically limits the class of victims of identity theft to persons whose personal identifying information was taken or used. (12) The Arizona statute does not include banks or businesses that suffer financial loss as a result of the fraudulent transaction. (13) This limitation is both a strength and a weakness. By limiting the victims of identity theft to individuals, the provision creates a private cause of action only for individuals whose personal identifying information was stolen. The status of identity theft victim, as defined by the statute, may give a person more credibility with credit-reporting agencies when attempting to clear their credit. …

The Competitiveness of Female Candidates in Judicial Elections: An Analysis of the North Carolina Trial Court Races

Abstract: The extent to which state judgeships are accessible to women raises important concerns about using elections as a method of judicial selection. Even though the judicial selection debate has centered on whether the selection process should foster judicial accountability or judicial independence, there seems to be widespread agreement that states should adopt a selection method that at least ensures that all qualified candidates have equal access to state judgeships. (1) As women comprise an increasing percentage of the legal profession, their access to state judgeships is affected by their ability to compete effectively in state judicial elections. (2) Therefore, any study that explores the impact of gender upon judicial elections will add to the debate over the appropriateness of using elections to select state court judges. Although numerous studies have examined the impact of gender upon political campaigns, research concerning the women who campaign in judicial elections has been strikingly limited. (3) This study fills that void in the existing literature on judicial selection and gender politics by examining whether, or to what extent, gender affects judicial campaigns and judicial elections. Specifically, it provides one of the few empirical comparisons of the women and men who have campaigned for elective state judgeships. Indeed, the findings presented here will contribute to our understanding of the competitiveness of female candidates in judicial elections and, to a lesser extent, the accessibility of judicial elections. This study adopts the methodology found in existing political science research. It uses campaign contribution totals and what percentage of the vote candidates received as indicators of electoral competitiveness. (4) Drawing upon the research on female political candidates and judicial selection, this study also assumes that money plays an important--albeit not determinative--role in mounting viable campaigns for political and judicial office. (5) Similarly, the percentage of the vote provides a very good measure of electoral competitiveness because it, more accurately than whether a candidate wins or loses, indicates how competitive candidates are in comparison to their opponents. (6) For example, a candidate who wins by ten percentage points is considered electorally stronger (more competitive) than a candidate who wins by two percentage points. Finally, this study employs aggregate comparisons and multivariate analysis to assess whether female candidates were as competitive as male candidates when pursuing elective state judgeships. The general elections for the North Carolina District Court held between 1994 and 1998 provide a good set of races to explore how women competed for elected state judgeships. The North Carolina District Court is the state's minor trial court. As such, it hears misdemeanors, civil suits in which less than $10,000 is in jeopardy, and selected family cases. Judicial candidates run for district court seats from geographical districts (judicial districts) that are dispersed throughout the state of North Carolina. Interestingly, these judicial districts do not correspond closely with other political districts: they can cross county lines or encompass one county, and they do not have the same geographic parameters as state legislative or congressional districts. District court judges are the most electorally accountable judges in North Carolina because, in contrast to higher state court judges who serve eight-year terms, their terms of office are four years. During the 1994 to 1998 election cycles, North Carolina used partisan elections to select district court judges as well as appellate court judges. (7) The district court races held during this time netted impressive results. Sixty-eight contested races occurred over these three general-election cycles. Forty-three women competed for thirty-four seats; these women ran as incumbents, as challengers, and as open-seat candidates; they ran as Democrats and Republicans; and they participated in contests where they were pitted against men as well as against other women. …

Examining the Decline in Support for Merit Selection in the States

Abstract: Popular support for constitutional change from judicial elections to merit selection systems has declined significantly over the past three decades. (1) The last state to adopt a merit selection system by constitutional amendment was New Mexico in 1988, and that was a compromise measure that retained contested partisan elections following initial appointment. (2) Between 1940 and 1988, fifteen states adopted constitutional amendments to replace judicial elections with some type of merit-selection system for some or all levels of courts. (3) Of these fifteen states, five completely abolished contested judicial elections; the remaining ten kept contested elections for some or all of their trial court judgeships. The 1960s and 1970s were the real heyday of merit selection, with twelve of the fifteen constitutional amendments occurring between 1960 and 1977. (4) Five other state constitutions include merit selection provisions, but all of these states had existing systems of gubernatorial appointment or legislative selection, or were admitted to the Union with merit selection included in their original constitutions. (5) In addition, five other states have adopted constitutional amendments to provide for merit selection processes only in the filling of some or all midterm judicial vacancies; full terms in these states are still determined through contestable elections. (6) In total, twenty-five state constitutions include provisions for some type of merit selection system. Proponents of judicial merit selection have suffered several setbacks of late, most recently in Florida in 2000 when all counties and judicial districts in the state voted overwhelmingly to reject a proposed local-option constitutional amendment to move from nonpartisan elections to merit selection and retention for circuit and county court judgeships. (7) Ohio voters rejected a proposed merit selection amendment in 1987, (8) and long-standing efforts in Illinois, Louisiana, Michigan, and Texas--among other states--have failed to gain legislative support. The focus of judicial selection reform in the past decade has shifted decisively from the pursuit of fundamental, constitutional alteration of the methods of selection to statutory, regulatory, and voluntary measures such as public financing of judicial campaigns, contribution limits, and enhanced voter education efforts that are designed to improve, but not eliminate, contested judicial elections. Advocates of traditional merit selection plans must ask themselves if their position remains a viable political option. There are a number of possible explanations for the decline in popular and political support for merit selection systems. Philip Dubois's study of merit selection proposals in the states between 1941 and 1980 finds that the context in which the amendments were put forth had a significant influence on the likelihood of success. (9) Those merit selection proposals that were part of larger judicial article reform packages or wholesale constitutional revisions were less likely to succeed than merit plans presented to the voters as a stand-alone measure or as part of a narrower package of judicial selection and tenure reforms. (10) But Dubois's study does not include the two most recent stand-alone proposals that were defeated handily in Ohio (1987) and Florida (2000). Most commentary on and studies of judicial selection reform have focused either on popular response to ballot measures or on the dynamics of legislative support for merit selection proposals. Few have considered the decline in support for merit selection in the broader context of popular support for and confidence in a range of institutions that play key roles in merit-based appointive systems, such as state executive and legislative branches and the organized bar. The term-limits movement of the early 1990s, during which eighteen states adopted term limits for state legislators, (11) reflects a growing mistrust of governmental institutions and public officials that correlates with the public reaction to merit selection proposals. …

Challenging the Legality of Section 106 of the USA PATRIOT Act

Abstract: I. INTRODUCTION The attacks of September 11, 2001 have focused our national security efforts on eradicating terrorism. In doing so, the government has enacted legislation to provide law enforcement with powerful tools to combat this imminent threat. One such piece of legislation is the PATRIOT Act, which was signed into law on October 26, 2001. (1) Sectors of the world legal community have criticized the PATRIOT Act because Congress passed it six weeks after September 11th--without committee hearings or substantive debate--even though the Act granted new powers to the federal government affecting privacy and other constitutional rights. (2) Containing ten titles and 342 pages, the PATRIOT Act is so immense that most of its provisions are not well understood. (3) Consequently, the judiciary will be called upon to clear up its ambiguity as the war on terror progresses. A primary purpose of the PATRIOT Act is to drain terrorists of their monetary resources. (4) Therefore, many of its provisions are implemented through regulations imposed by the United States Department of the Treasury. (5) One such provision is section 106, contained in the Enhancing Domestic Security Against Terrorism procedures of Title I. Section 106, entitled Presidential Authority, amends section 203 of the International Emergency Economic Powers Act ("IEEPA"). (6) The amendment allows the President to "confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States" once a national emergency has been declared. (7) The President now may freeze assets during a pending IEEPA investigation, as opposed to waiting for the outcome as was previously required. (8) Additionally, this authority may be delegated periodically to any agency or person the President chooses. (9) The United States has carefully re-evaluated its national security strategy in the post-September 11th era. The PATRIOT Act has been instrumental in this development because provisions, such as section 106, are allowing the government to dismantle the financial network of terrorists. For example, in 2002 the Secretary of the Treasury froze the assets of two Muslim charity organizations--found to have been supporting terrorists--using the authority delegated to him by the President under section 106. (10) In March 2003, President Bush confiscated Iraqi funds held in the United States after the decision to take military action against Saddam Hussein's government. (11) However, despite its effectiveness, section 106 of the PATRIOT ACT may violate customary international law. In Brown v. United States, (12) the Supreme Court addressed, pursuant to the law of nations, whether enemy property found on United States land during wartime could be confiscated as a consequence of a declaration of war. (13) The Court determined that a declaration of war, by itself, was not enough to permit enemy property to be confiscated. (14) In addition to the declaration, there needed to be a specific legislative act authorizing the taking of enemy property. (15) The Court reasoned that a declaration of war merely places two nations in a state of aggression, while the authority to confiscate enemy property is produced by other measures of government. (16) In other words, "war gives the right to confiscate, but does not itself confiscate the property of the enemy." (17) Chief Justice Marshall's opinion is filled with references to the theories of English legal scholars. (18) He refers to a passage from Chitty's Law of Nations, stating: '"[I]n strict justice, [the right of seizure] ... can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities."' (19) The language in Marshall's opinion is very specific. …

Judicial Diversity: Where Independence and Accountability Meet

Abstract: A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so --Justice Anton Scalia (1) I INTRODUCTION Unquestionably, the subject of judicial selection continues to be a hot topic for legal forums, bar journals, and law reviews The challenge continues to be how to balance the competing interests of judicial independence and judicial accountability For while judicial independence connotes an institutional immunity from inappropriate extra-legal pressures in the decisionmaking process, judicial accountability seeks to comport with the democratic ideal of responsiveness to public opinion Thus, in the federal system, lifetime tenure and salary protection are said to enhance judicial independence, whereas in thirty-nine states, popular elections (partisan, non-partisan, and retention) are thought to further the aim of judicial accountability This article makes the argument that in a diverse society, the ideals sought by the independence/accountability dichotomy are dependant upon and subsumed by the attainment of judicial diversity Fundamentally, judicial independence is predicated on an impartial judge, and judicial accountability is predicated on notions of popular representation In the absence of diversity, the goals of obtaining an impartial and representative judiciary are credibly challenged As Justice Scalia stated for the majority in Republican Party v White, lack of judicial predisposition is neither desirable, nor possible Taking that statement as true, it seems evident that a judge's predisposition is inextricably bound to the judge's racial, gender, and ethnic experience Likewise, a judge's representative capacity is contingent on the ability to hear, understand, and articulate diverse views Thus, without substantive ideological and narrative judicial diversity, any discussion touting the relative advantages to accountability or independence of elective or appointive judicial selection methods is largely irrelevant As Deborah Goldberg, Director of the Brennan Center's Democracy Program, notes "[w]hether judicial diversity will be helped or harmed by a movement to non-elective systems is unclear" (2) It is clear, however, that efforts to obtain a diverse bench, whether in a system of merit selection or popular election, foster the complementary interests of judicial independence and judicial accountability II THE FORCED DICHOTOMY OF INDEPENDENCE AND ACCOUNTABILITY In the legal literature, judicial independence and judicial accountability are at war (3) According to this collective history, a fundamental conundrum in our constitutional republic is the method of creating a judicial branch that is both sufficiently insulated from republican concerns--to remain faithful to the Constitution--and democratically accountable This section will describe this groundwork in anticipation of a discussion of judicial diversity A Judicial Independence Judicial independence is a foundational principle of our Constitution The two structural arguments for its importance are straightforward First, in a constitutional republic the judiciary must be independent from the other branches of government The Constitution serves as the sovereign will of the people: the Constitution is the definition of government (4) Thus, as often noted, the executive and legislative branches are precluded from acting in the absence of an express or implied constitutional grant of authority In this system of government, the judiciary is a constitutional priesthood loyal to the sovereign will--the Constitution--in the face of majoritarian excess, executive encroachment, and legislative self-aggrandizement (5) Although, seemingly, it is counterintuitive to ordain the sovereign will at the expense of the popular will, this is central to a constitutional republic: constitutional guarantees are empty if subordinated to extraconstitutional passions …

Robert H. Jackson: Nuremberg's Architect and Advocate

Abstract: It is a great privilege for me to join in this celebration of the life of Robert H. Jackson. I have this privilege because I served under Justice Jackson, the United States Chief Prosecutor for the International Military Tribunal at Nuremberg ("IMT" or "Tribunal"), in 1945-46. So much has been written about his service as chief prosecutor that I can attempt no more than to remind you of his approach to Nuremberg and his priorities for his work there. Since that work was addressed in part to posterity it is useful, from time to time, to recall Jackson's accomplishments and aspirations at that trial. Justice Jackson considered his work in connection with Nuremberg the greatest accomplishment of his life. (1) His contributions there went far beyond those of a conventional prosecutor. He shaped what became known as the London Charter ("Charter"), agreed to by France, the Soviet Union, the United Kingdom and the United States on August 8, 1945. The Charter set forth the offenses over which the IMT would have jurisdiction and established the general procedural framework for the trial. (2) He also was involved in the selection of the American judges who were to be members of the Tribunal. (3) He energized the American Army's search for documentary and other relevant evidence. He helped pick the courtroom, which would be equipped for simultaneous translation in four languages during the trial. He had the responsibility for establishing a large scale law office in a city that Allied bombing had turned into heaps of rubble. Finally, he had the ultimate responsibility for the recruitment and organization of a staff to deal with the mass of evidence that eventually flowed to the prosecution. Jackson later said, amusedly: "This is the first case I have ever tried when I had first to persuade others that a court should be established, help negotiate its establishment, and when that was done, not only prepare my case but find myself a courtroom in which to try it." (4) The context out of which the Nuremberg trials arose will help us understand Jackson's approach there. Before Germany's surrender, reliable evidence had shown: first, ruthless pre-war Nazi assaults on Jews, Christian churches, independent labor unions, opposition parties and dissidents in Germany, as the Nazis achieved and consolidated their power; second, deliberate and indisputable aggression against Czechoslovakia, Poland, most of the rest of Europe and then against the U.S.S.R. and the United States; third, concomitant to those wars, the systematic and massive pillaging, plundering and devastation of a continent, and the deportation of millions of slave laborers, all centrally organized; and fourth, deliberate mistreatment and execution of prisoners of war, and the murder of millions of Jews, Slavs, Gypsies and dissidents. The concentration camp and slaughter of Jews became the emblems of the Nazi regime. World War II has understandably been called "the largest single event (and the Holocaust the greatest crime (5)) in human history." (6) Many of those horrors had, of course, been war crimes. As Peter Calvocoressi observed: "In the eyes of the law not all is fair in war, whatever may be the case in love." (7) For a long time, war crimes had resulted in individual punishment. But given the human misery resulting from Nazi aggressions and modern warfare in general, it was not sufficient, in Jackson's view, to file charges based solely on misconduct during the war; it was necessary also to condemn aggressive war, as a violation of international law, and to subject participating leaders of aggressor states to individual punishment. Jackson achieved this objective with the inclusion of Article 6(a) of the Charter. That article provided jurisdiction for the Tribunal over Crimes against the Peace, "namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. …

The Untouchables: The Impact of South Carolina's New Judicial Selection System on the South Carolina Supreme Court, 1997-2003

Abstract: I. INTRODUCTION Although South Carolina has perennially been considered one of the nation's most rebellious states, the South Carolina Supreme Court has historically been extremely deferential to precedent. (1) However, in 1997, the South Carolina judicial system experienced a reform that significantly changed the South Carolina Supreme Court's traditional deference to past precedent. (2) As a result of a South Carolina Constitutional amendment, jurists are no longer solely elected by the General Assembly. Rather, a Judicial Merit Selection Commission reviews the qualifications of all applicants and nominates the three most qualified candidates. (3) These three nominees are then voted on by the General Assembly, and the nominee with the highest number of votes is appointed to the bench. (4) While some scholars argue that this change has done little to eliminate the highly political system that the previous method of judicial selection legislative election--promoted, a look at the court's decisions since the implementation of the new selection system tells a different story. (5) In contrast to the decade prior to the amendment where the court only overruled its own precedent twice, in the period between 1997 and 2003, the South Carolina Supreme Court has overruled its own precedent thirty-six times and defied the United States Supreme Court twice. (6) These numbers attest to the fact that the current bench now decides cases with a sense of independence from the General Assembly, resulting in decisions based upon their individual ideologies, rather than the political tides of the General Assembly. The willingness of the new bench to overrule past precedent indicates that, at least to some degree, the justices are shielded from the political backlash which can result from challenging the status quo in South Carolina. By examining criminal cases from 1997 through 2003 in which the majority chose to overturn previous case law, as well as discussing the rationale behind the court's decisions to disobey the United States Supreme Court, this study seeks to demonstrate the new trend toward judicial independence, while also identifying the underlying ideology of each jurist. Ultimately, it will be apparent that although the change to the judicial selection system resulted in greater independence for the justices, this independence came at the cost of accountability to the public or the General Assembly: arguably the only two bodies through which jurists are forced to consider the principles of majoritarianism. II. JUDICIAL SELECTION: SOUTH CAROLINA'S 1996 MERIT SELECTION AMENDMENT Prior to 1997, the South Carolina General Assembly had statutory authority to elect and re-elect the state's judges and justices. (7) Through a joint committee, members of both houses of the legislature reviewed the qualifications of all applicants. (8) However, the statutes enabling the committee to review the candidates did not define the qualifications to be reviewed or how they were to be weighed. (9) Moreover, the committee lacked authority to remove an applicant's name from consideration. (10) Therefore, unqualified applicants remained eligible for appointment. This process at times resulted in unqualified applicants being elected to the bench because members of the General Assembly--provided with little external guidance on the qualifications of the candidates--often elected sitting or former legislators, with whom they had experience. (11) In fact, from 1995 until 2000, all five South Carolina Supreme Court justices had previously served in the General Assembly. (12) Moreover, all of the current justices, with the exception of Justice Pleicones, were elected very shortly after ending their service in the legislature. (13) Although most of the justices first sat on the Circuit Court, current Chief Justice Jean Hoefer Toal was elected directly to the Supreme Court from the legislature. (14) While this connection did not go unnoticed, the General Assembly was unwilling to add credibility to the selection process and thereby relinquish its power through public elections. …

Terri Schiavo and the law.

Abstract: This is not a law review article. Rather, it is a brief description of the legal battle over whether to remove the feeding and hydration tube which is keeping Terri Schiavo alive. The battle of and for "public opinion," (1) which has also been waged over this issue is beyond the scope of what I have to say here. The legal battle is not about whether Terri has a hypothetical right to refuse medical treatment under the privacy guarantee in the Florida Constitution. Article I, Section 23 is "an independent, freestanding constitutional provision which declares the fundamental right to privacy." (2) So, clearly, she has that right if certain conditions exist. She must be in a persistent vegetative state (3) and--there being no form of advanced directive (4)--there must be clear and convincing evidence of what her wishes would have been if she could have envisioned her situation while still physically able to make her wishes known. (5) Therefore, the battle has centered on whether Terri is or is not in a persistent vegetative state and what would Terri's wishes be regarding the continued life support provided by the feeding and hydration tube if she could tell us. This brief commentary is based primarily upon the briefs submitted by the petitioner, Michael Schiavo, and the respondent, Governor Jeb Bush. Two District Court of Appeal cases are also cited. Finally, I have relied on my own knowledge as a teacher of the Florida Constitution. This protracted battle, or at least the initial circumstances leading to it, began on February 29, 1990 when Terri "suffered cardiac arrest and was rushed to the hospital." (6) This multi-year battle which was primarily between her husband as guardian and her parents (7) apparently ended when the circuit court, having found both the above conditions met, (8) directed "the guardian to remove the 'nutrition and hydration tube' on October 15, 2003." (9) It was removed on that date. (10) But the battle was not over. A new player had now taken the field. The Florida Legislature with virtually unprecedented speed enacted legislation that gave the Governor legal grounds to have the feeding and hydration tube replaced. This was accomplished on October 21, 2003. (11) The guardian, Terri's husband, sought to have the law declared unconstitutional and the entry of a "permanent injunction prohibiting its effect and any actions taken by state officials pursuant to its terms." (12) The grounds alleged in support of this motion were, generally stated, that: 1) Terri's rights under the Florida constitutional privacy guarantee had been violated by the Legislature and the Governor; 2) The legislation was a violation of "separation of powers;" 3) The legislation violated "equal protection;" 4) The legislation was a bill of attainder; 5) The legislation was an "invalid special law;" and 6) The legislation was "unconstitutionally vague." (13) The respondent's brief on behalf of Governor Jeb Bush basically denied the various grounds for unconstitutionality put forward by Mr. Schiavo as petitioner. (14) In addition, the Governor proposed that the request for an injunction was improper because, among other things, the Governor was new to the case and, hence, none of the prior findings were binding upon him. The Governor contended that he should have the opportunity to establish that Terri's privacy rights were not violated by the feeding and hydration tube. (15). As I am writing this brief comment, I am looking at a February 13, 2004 decision of the Second District Court of Appeal reversing the circuit judge's refusal to allow the Governor to take "the deposition of seven witnesses." (16) The court reversed the circuit judge's protective order because "[a] complete bar to the taking of any depositions may cause harm to the Governor that will not be remediable on appeal from a final judgment." (17) As the court's opinion explained, this was not an unqualified victory for the Governor. …

Requiem for a Heavyweight: Costa as Countermonument to McDonnell Douglas - a Countermemory Reply to Instrumentalism

Abstract: I. INTRODUCTION Recently in the pages of the Drake Law Review, I wrote of the demise of McDonnell Douglas at the hands of Desert Palace, Inc. v. Costa. (1) The position that I have taken has aroused a measure of controversy, as one might expect, including an opposing view expressed in another article published in the Drake Law Review. (2) By concluding that Costa, in reading the logically clear language of Section 703(m) of the Civil Rights Act of 1991, compelled an end to the useful life of the Bobbsey twins (3) of Title VII--McDonnell Douglas and Burdine (4)--my essay treads upon sacred space for those comfortable with a regime where plaintiffs lose most of the time. (5) My first essay on this topic--written in the summer of 2003--predicted that many courts would not at first grasp the revolution and would instead resort to instrumentalist rationalizations to "preserve the phenomenon" of McDonnell Douglas-Burdine. And, to date, these low expectations have largely been met. As I have contemplated the varied responses to this issue--including those of the courts and other scholars--it appeared to me that we see the question very differently. I see the question as one going to the heart of whether or not the goals of the Second Reconstruction (6) will be realized; will we confront our "--isms" and extirpate them? Others see the question in the narrowest possible terms--what small tweaking of the McDonnell Douglas-Burdine framework did Costa accomplish? (7) It appeared to me that I spoke of these things in a different language from theirs--yet, initially, I could not pinpoint how or why. I sensed that the stark difference in what we saw when we looked at Costa was grounded upon some divergence in views at the most fundamental level. Then, like a bolt of lightning, insight into the problem struck me. Resistance to the view of Costa that I have attempted to articulate stems from the phenomenon of monumentalism. (8) It is a particularly virulent form of instrumentalism, a tendency of contemporary legal reasoning against which I have written elsewhere recently. (9) As a form of instrumentalism, monumentalism was first identified in critical historical studies in the Nineteenth Century, (10) but it has recently been recognized as a palpable phenomenon in jurisprudence as well. (11) As I conceive monumentalism in the civil-rights law context, I mean the tendency of many to see Title VII as a monument to the end of invidious discrimination in our country, rather than the first step--truly a baby step--toward the elimination of discrimination in our society. The monumentalist view of Title VII fails to see it as a measure confronting a fundamental tear in our social fabric, which may require an ongoing healing process. To the contrary, the monumentalist view perceives Title VII as a "remember[ance] [of] historical injustices in such a way as to find reassurance in them." (12) In the pages of the Columbia Law Review, Professor Norman Spaulding has recently written of the phenomenon of legal monumentalism. (13) Professor Spaulding's ideas are compelling, but they do not yet lend themselves to an analytic template for approaching a broader range of legal issues than the critique he offers of the recent Eleventh Amendment jurisprudence in light of the Civil War Amendments. However, there is an irresistible parallel between the subject of his critique--the Rehnquist Court's reading of Reconstruction out of our history while supposedly returning to "first principles" to interpret state immunity under the Eleventh Amendment (14)--and the similar obliviousness that we see toward Title VII, a capstone of the Second Reconstruction. I was thus inspired to extrapolate an analytic template from Spaulding's work that we might use to examine the analogous problem posed by McDonnell Douglas-Burdine and Costa. What Professor Spaulding described can be characterized as a process of historical denial. …

The Twelve Year Rain Delay: Why a Change in Leadership Will Benefit the Game of Baseball

Abstract: It breaks your heart. It is designed to break your heart. The game begins in the spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone. (1) [E]xamining the business of baseball is like looking at the sun, you can't do it for very long before you have to turn away. (2) INTRODUCTION Baseball is a beautiful game. Despite the recent surge in the popularity of professional football and basketball, baseball is--and will always be--the greatest game ever played. Baseball is so graceful and elegant that even the United States Supreme Court could not resist professing its love for the game and its players: [T]here are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker ... Rogers Hornsby ... Jackie Robinson ... Honus Wagner ... Satchel Paige ... Three-Finger Brown ... Cy Young ... Smokey Joe Wood ... Roy Campanella ... [and] Dizzy Dean. (3) The beauty of the game lies in its relationship to numbers. Baseball is played and revered worldwide; yet no matter where it is played, it remains a universal game of numbers: a baseball must weigh between five and five and a quarter ounces, (4) ninety feet separate each of the four bases, (5) and the pitcher's mound lies exactly sixty feet and six inches from home plate. (6) Baseball also revolves around statistics. (7) Fans of the game pride themselves on knowing the stats of the single season strikeout leader, (8) the all-time hits leader, (9) and the player with the highest single season batting average. (10) The most important numbers in baseball, however, have nothing to do with on-base percentages or earned run averages. The most important numbers in baseball are expressed in terms of dollars and cents. Baseball is a business. As sad as that is to say, it is true. Fans once attended games at places like Comiskey Park, Tiger Stadium, and the Polo Grounds. (11) Now they force themselves into tiny seats at advertisement-laden and dreadfully named stadiums such as Comerica Park, Network Associates Coliseum, Citizens Bank Park, and Minute Maid Park. (12) Corporate renaming of ballparks, which has been a staple in the world of sports for nearly a decade, is one of the many ways the business side of the sport overshadows the game of baseball. (13) It is widely believed that the 1994 player strike marked the point when economics took over and the game of baseball lost its innocence. (14) The game, however, has been dominated by economics since its inception. Baseball is, was, and will always be a business, and like any good business, baseball has one objective--to make money. The business of baseball has often been compared to the inner-workings of a large corporation. (15) In the business world, corporations need strong leaders to make important decisions and successfully govern the business. Just as a chief executive officer heads a corporation, the Office of the Commissioner governs the game and business of Major League Baseball ("MLB"). However, while a director of a corporation owes fiduciary duties to the corporation and its shareholders, the Commissioner of Baseball does not owe similar duties because "[b]aseball is a private enterprise, bound by its own internal laws and regulations." (16) The MLB governing structure is an anomaly. If it were more like a public corporation, perhaps baseball could have avoided the issues that have plagued it for years. Instead, baseball is riddled with strikes, lockouts, gambling, drugs, and collusion. This article analyzes the history of the Office of the Commissioner of MLB and demonstrates how change in the current governing structure will allow fans to concentrate more on the game played between the lines, rather than what occurs in the conference rooms. …

Rethinking Politics and Judicial Selection during Contentious Times

Abstract: Students of judicial selection are living through interesting times. Consider, for example, the continuing skirmishes on the same-sex marriage front in the culture wars. In November 2003 (and again in February 2004), the Massachusetts Supreme Judicial Court read that State's constitution as requiring state recognition of marital unions between gay and lesbian couples. (1) In his January 2004 State of the Union Address, President George W. Bush characterized such decisions as the result of "[a]ctivist judges.... forcing their arbitrary will upon the people" and warned that "the only alternative left to the people" might be a federal constitutional amendment to bulwark the 1996 federal Defense of Marriage Act. (2) Then, in February 2004, San Francisco Mayor Gavin Newsom, citing the California Constitution's equal protection clause, authorized City Hall officials to begin licensing and officiating at marriages of same-sex couples. (3) Two groups opposed to Mayor Newsom's action, the Proposition 22 Legal Defense and Education Fund--backed by the Alliance Defense Fund--and the Campaign for California Families, went to the California Superior Court, arguing that San Francisco was violating the California Family Code and California Ballot Measure 22, adopted in November 2000, that limit marriage to a man and a woman. (4) Everyone in this contest, it seems, has the law on their side. And politics abound. In this highly charged environment, how are we to make sense of debates over the best way to select state judges? The question does not lend itself to any single definitive answer. Any answer will also be essentially contestable, because different people will define "best" differently. Nevertheless, amidst the comparatively tranquil precincts of academia, several salutary developments over the past decade serve as useful signposts indicating how we might think more clearly about the knotty issue of selecting state judges. IT'S THE SORT OF POLITICS, STUPID First and foremost, some students of judicial selection have sought to sophisticate (or one might say complicate) the concept of politics as that activity pertains to what judges do and how to select judges. Our key insight is comprehending that not all "politics" is the same. Scholars almost universally acknowledge that no selection procedure can be devoid of politics. "Merit selection" has a nice neutral ring, but such procedures turn out in practice to merely shift the locus of politics, rather than eliminate it. Elections to fill or to retain incumbents in judicial positions can be thoroughly political whether partisan or nonpartisan. So, for openers, there is wide awareness that judicial selection is the continuation of politics by other means. (5) It is simply delusional to attempt to purge politics from the process by which we select state jurists. Nor is it desirable to do so. In a republic that at least aspires to be based on popular sovereignty, many--including myself--believe that the judges who do the publics' business ought not to be removed from electoral politics. Here's the rub: What do we mean by "politics?" It's the Context that Counts Politicization is one species of politics. However, the species is not coextensive with the genus. In certain contexts, the politics of judicial selection can become politicized. That is, under certain circumstances, state judicial elections occasionally can become metaphorical "crocodiles in the bathtub," as the late Judge Otto Kaus vividly pictured hotly contested judicial elections. (6) Politicization of judicial elections occurs via the infusion of large sums of cash, with all of the attendant media advertising, sound bites, and other trappings of contemporary American no-holds-barred electoral contests for executive and legislative posts. Not all judicial elections bite judges--in fact very few do so. Big spending on judicial elections is driven by controversy over specific judicial decisions. …

Expressive Liberties in the State Courts: Their Permissible Reach and Sanctioned Restraints

Abstract: I. A BRIEF RETROSPECTIVE Freedom of expression has enjoyed a long history and, on significant occasions, an exalted status in the evolution of constitutional principles and the safeguards designed to prevent their abridgment. From early efforts to promote liberty, dating from the Magna Carta and the periodic contests that succeeded it, recognition of expressive freedoms slowly occurred within the narrow context of English constitutional law and the restrictive framework to which it was often confined. (1) A collection of tracts-known to the American colonists and to the framers of future state charters--stood out as classic expositions along the road to more exacting libertarian instruments. Among these were defenses of freedom of the press, exemplified by John Milton's Areopagitica (2) and in other unlicensed papers attacking press censorship that surfaced during the mid-to-late seventeenth century. (3) Increasingly, personal rights succeeded in assuming a positive place in the English legal system by way of statutes, the common law, and the Bill of Rights associated with the Glorious Revolution of 1688. (4) Therein lay the origins of early state declarations of expressive liberties. Sometimes omitted when identifying the sources of state expressive liberties are the years of benign imperial neglect preceding the American Revolution. (5) It was during this era that traditions began to develop out of struggles and crises that set the royal governors against well-placed colonists who controlled the appropriation of funds: a source of friction that often spelled the difference between minimally effective government and creeping stagnation. (6) Opportunities multiplied for a confluence of theories and ideas drawn from the English heritage and the practical idiom of colonial experiences. (7) Unlike a strong British penchant for pragmatic, unplanned experiments and procedures, (8) American development was marked by the adoption of written constitutions and the preservation of liberty by way of explicit guarantees. (9) Prominent among the provisions set out were those intended to protect free expression and publication. (10) Yet Sir William Blackstone's famous defense of press freedom was limited to the absence of prior restraint with warnings against the extension of protection to the publication of what was "improper, mifchievous, or illegal." (11) It remained for recurrent feats of American upgrading to temper such caveats and to move both the nation and the states toward the realization of a level of expressive freedom more in keeping with contemporary ideals. (12) Abuses of liberty have come to pass, most noticeably during periods of stress when real or supposed threats to security have outweighed oft-acclaimed rights. If the Alien and Sedition Acts of the early Republic (13) and transgressions during the Great Wars (14) impugned the national government as a trustworthy protector of precious liberties, so like failings during times of crisis detracted from state contributions. (15) While legislative and executive excesses initiated downward spirals, judicial responses--premised on state constitutional safeguards--did not always provide staunch counter-remedies. State courts, acknowledged expositors of opinions that could have extended beyond federal minima, were not known for exceptional defenses of liberty. (16) The 1970s proved to be a relatively quiescent period as a renewed reliance on independent state grounds became meaningful. The newfound activities of state courts, in their relations with the federal judiciary, were restricted largely to peripheral issues of expressive freedom, not to the major conflicts of the preceding anti-communist crusade. (17) What has become apparent during the past three decades of the new judicial federalism is the narrow framework of expressive freedom in which state courts have elected to function and to project innovative doctrines. Perhaps the United States Supreme Court's primacy in the exposition of the First Amendment and its leadership in cases in which such decisions were rendered have eclipsed state efforts. …

Why You Should Not Judge a Book by Its Cover: Looking beyond Party Affiliations to Discern Patterns in Judicial Decisionmaking in the North Carolina Supreme Court: An Analysis of Voting Trends in Criminal and Tort Cases from 1995-2002

Abstract: I. INTRODUCTION The people of North Carolina have the power to elect the justices who sit on the state's Supreme Court. (1) Between 1995 and 2002, the registered voters of the state used this power to transform the court from one dominated by Democrats to one controlled by Republicans. (2) From 1995 to 1998, the court was composed of five Democrats and two Republicans. (3) The election of Republicans Mark Martin and George L. Wainwright, Jr. in 1999, both taking seats formerly held by Democrats, marked the beginning of the change. (4) In 2000, Republicans I. Beverly Lake, Jr. and Robert H. Edmunds, Jr. won their races, further shifting the balance of the court, and leaving only two Democrats still holding seats. (5) The 2003 election ushered in another Republican justice--Edward Thomas Brady--and created a court comprised of six Republicans and one Democrat. (6) This high court study of the North Carolina Supreme Court was conducted in order to determine what impact, if any, this dramatic shift in the court's political composition had on its rulings in both criminal and tort cases. Did the court's voting pattern fluctuate as a result of the changes in the number of Democratic or Republican justices? And if so, would it be possible to judge a court simply based on the party affiliations of its members? This study addresses these questions. In order to gain insight into the effect recent changes have had on the court, one must go beyond the partisan labels of the justices and examine each justice's voting record and individual writings to discern the true nature of each one's decision-making process. (7) This study was designed to explore these issues and provide a comprehensive analysis of the North Carolina Supreme Court. Part II describes the methodology used to conduct this study. It will also expand on what is meant by "conservative" and "liberal" in the judicial sense, labels that will be used to provide a general idea of each justice's judicial approach. Part III briefly discusses the court's organizational structure and the justices who were included in the study. Parts IV and V examine and analyze each justice's voting record along with his or her judicial values and philosophies. Part VI assesses the court as a whole and concludes that during the eight-year period considered, the court remained conservative when voting on criminal cases, but became more liberal in its treatment of tort cases. II. THE STUDY The methodological process of this study involved analyzing both criminal and tort cases decided by the North Carolina Supreme Court that resulted in divided opinions. (8) Criminal cases were examined separately from tort cases in order to determine whether a particular justice's voting tendency would remain consistent regardless of the subject matter. Only cases filed between 1995 and 2002 were included in this study. By utilizing a two-part analysis, a broad and in-depth understanding of each justice's decision-making process emerged. The first part of the analysis was quantitative in nature, providing a general picture of each justice's conservative or liberal leanings. This study reviewed forty-two criminal cases; in each case a justice's vote was labeled either pro-defendant or pro-prosecution. A vote was classified as "pro-defendant" if it operated to protect the rights of the accused: conversely, a justice's vote was classified as "pro-prosecution" if it favored an outcome the state desired or advocated. This study also analyzed thirty tort cases; for each case, a justice's vote was labeled as either pro-individual or pro-tortfeasor. A vote was labeled "pro-individual" if the reasoning used to support the vote protected the rights of an allegedly injured party. If the vote protected the alleged tortfeasor, to the detriment of the allegedly injured party, it was deemed to be a "pro-tortfeasor" vote. Graphing the pro-defendant and pro-individual voting percentages demonstrated the voting tendencies of each justice, and the court as a whole. …

American Youth in the Workplace: Legal Aberration, Failed Social Policy

Abstract: I. INTRODUCTION "'Young people who spend more time flipping burgers and stacking boxes than preparing for a meaningful career may be hindering their own futures and the future of this country.'" --Mario Cuomo (1) Today, the workplace is as much a part of American teen life as the Friday night football game and the high school prom. Students in the 1990s were twice as likely to be working than students in 1950. (2) In 2001, an estimated 3.7 million adolescents between the ages of fifteen and seventeen were employed. (3) Likewise, large numbers of children under fifteen were working during the same time period. (4) The United States has the highest percentage of working children of any developed nation: many work long hours even during the school week. (5) These statistics have remained stable for at least a decade. Employment does present potential benefits for the adolescent. Working can provide valuable lessons about responsibility, punctuality, interacting with the public, and finances. However, work in the United States poses substantial immediate and long-term safety and health risks for youth workers. The National Institute for Occupational Safety and Health ("NIOSH") reports an average of sixty-seven minors die each year from work-related injuries. (6) Additionally, 77,000 are treated in hospital emergency facilities for injuries. (7) Annually, over 200,000 minors are injured on the job. (8) Other indicators of a minor's well being, such as academic performance, are also negatively affected by employment, particularly by working excessive hours. (9) Most scholars consider twenty or more hours per week--termed "high intensity work"--to be the threshold for negative outcomes. (10) High school students who work twenty hours or more have lower grade point averages than students who do not work, or who work fewer hours. (11) They are more likely to be suspended from school, (12) to use cigarettes or other harmful substances, (13) to have more traffic accidents, (14) and to experience a wide variety of other negative outcomes. Subgroups of child workers--particularly those in agriculture--are at even greater health and educational risks. (15) Like most social science propositions and data, great controversy surrounds the appropriate variables to be considered and the conclusions to be drawn from those variables. (16) Drawing causal links is difficult: correlation should not be equated with causation. The association between work intensity and academic outcomes may, for example, be attributable to pre-existing differences: youths who were previously performing poorly in lower grades may be working more intensely in high school. Nevertheless, the prestigious Institute of Medicine, the research arm of the National Academy of Sciences, concluded after a thorough review of the literature that "high-intensity work ... is associated with unhealthy and problem behaviors." (17) Teens are working after choices are made about priorities in allocating time. Parent, child, and state form a triangle in decision-making regarding the lives of children. In Roman law and English common law, children were totally subject to the wishes of their parents--particularly the father. (18) Although the father owed duties of support and protection, Blackstone reported that children lived in the "empire of the father." (19) Today, doctrinal changes in constitutional law and statutes have equalized the legal position of the father and the mother. (20) In broad strokes, however, contemporary American law reflects the following dominant paradigm: minors are incompetent to make major life decisions and parents are entrusted with the task of making these choices because they will normally act in the child's best interest. Many legal scholars have argued that the formal lines of physical age or emancipation should not be the sole determinants of when an adolescent may be legally authorized to make important life decisions. …

Protect Us or Leave Us Alone: The New York State Smoking Ban

Abstract: The kind of man who demands that government enforce his ideas is always the kind whose ideas are idiotic. Henry Louis Mencken (1) I. INTRODUCTION The United States of America has always placed a premium on freedom. As Americans, we have never been afraid to make sacrifices to attain and preserve the freedom that we enjoy. Nor have we hesitated in championing causes to spread our notion of freedom to other peoples of the world. We believe in freedom so strongly that our Constitution contains a Bill of Rights, which protects individuals from the power of government. (2) Additionally, the Fourteenth Amendment, ratified in 1868, guarantees all United States citizens equal protection, and due process, under the law. (3) Given this dedication to freedom, one would assume that Americans would have the ability--perhaps the right--to perform a perfectly legal act in a private establishment. One would be mistaken though. Recently, the State of New York banned smoking in almost all indoor places, including restaurants and bars, (4) furthering its position that benefits to public health justify limitations on the freedom of New Yorkers. (5) This paper asserts that the recent tobacco legislation represents a cowardly and deceitful act on the part of New York State legislators. While medical experts continuously warn of the dangers of smoking and the harmful effects of environmental tobacco smoke ("ETS"), the legislature refuses to completely ban smoking. A total ban would be the obvious step in adequately protecting public health. Instead, the legislation prevents competent adults from deciding for themselves whether and where to smoker The argument of this paper is that the legislation takes this middle-of-the-road approach due to enormous financial, economic and societal pressures urging each side of the argument. By taking this stance, the legislature attempts to appease both the tobacco industry and anti-tobacco advocates, while neither protecting public health nor our rights as citizens of New York and the United States. Furthermore, the State of New York continues to benefit from the tax revenue generated from smoking, (6) and legislators keep lining their pockets with the tobacco industry's money. (7) II. NEW YORK STATE'S SMOKING BAN The smoking ban, codified in Article 13-E of the New York Public Health Law, prohibits smoking in almost every indoor area. (8) This present smoking ban became effective on July 24, 2003, amending the Clean Indoor Air Act of 1989. (9) Among the places to which smoking restrictions extend are bars and food service establishments. (10) The statute defines a "bar" as "any area, including outdoor seating areas, devoted to the sale and service of alcoholic beverages for on-premises consumption and where the service of food is only incidental to the consumption of such beverages." (11) "Food service establishment" is defined as "any area, including outdoor seating areas, or portion thereof in which the business is the sale of food for on-premises consumption." (12) Finally, "smoking" is "the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco." (13) Although the law extends to almost all indoor areas, there are a few exceptions. Smoking is allowed in private homes, residences and automobiles. (14) In addition, smoking is allowed in hotel rooms, (15) retail tobacco businesses, (16) certain membership associations (17) and certain cigar bars. (18) Restaurants may allow smoking in outdoor seating areas so long as there is no roof or ceiling, (19) the area does not amount to more than twenty-five percent of outdoor seating, (20) the area is at least three feet from the non-smoking outdoor seating, (21) and there are conspicuously placed signs designating the area as a smoking section. (22) In addition to the specific exceptions, the law also has a waiver provision. (23) In order to qualify for a waiver, the applicant must establish that compliance would cause "undue financial hardship" or that other factors make compliance unreasonable. …

Eroding the Public's Confidence in Judicial Impartiality: First Amendment Federal Jurisprudence and Special Interest Financing of Judicial Campaigns

Abstract: The tension between the popular election of judges and the performance of the judiciary's core functions--impartiality and dedication to the enforcement of the rule of law regardless of the perceived popular will--has long been the subject of serious debate among scholars of various disciplines (1) Nevertheless, judges continue to be selected by popular vote in the majority of states (2) In fact, despite efforts in a number of states to change the method of judicial selection to some form of appointive/merit system, no effort has been successful in the last twenty years (3) That is so even though voters admit that they often know little about the judicial candidates for whom they are voting (4) In recent years, the debate has been centered around the threat to judicial impartiality arising from the out-of-control special interest financing of judicial elections For example, in 2000, special interest groups--excluding political parties--spent $16,000,000 on judicial races in only five states (5) These spiraling judicial election campaign expenditures by special interest groups, combined with the pernicious rhetoric directed at courts and individual judges by many of those groups, are perceived by numerous commentators as threatening to eventually erode the public's confidence in the impartiality of the judicial branch In an attempt to preserve some measure of integrity in state judicial elections, the National Center for State Courts has made a number of recommendations aimed at negating any advantage a judicial candidate might gain through demagogic campaign tactics and rhetoric Some of the pertinent recommendations include: Educational programs on state elections laws, judicial canons, and sanctions for [judicial conduct] code violations "Hotlines" established by the Legislature, the Judiciary, or the appropriate judicial discipline body to respond expeditiously to questions about campaign conduct, campaign finance, judicial ethics, or related issues [and] [n]on-governmental monitoring groups established to encourage fair and ethical judicial campaigns (6) The recommendations appear to have been premised on the assumed validity of the state judicial conduct codes that regulate, in varying degrees, judicial campaign speech However, any ameliorating effect those recommendations might have on the current judicial election environment is likely to be negligible in light of Republican Party v White, (7) a decision that appears to forecast the constitutional demise of most state judicial campaign speech regulations This essay briefly examines the White case to make two observations about the future of judicial elections The first is that although the "announce" provision was contained in the judicial codes of only eight states when White was decided, the reasons underlying the Supreme Court's rejection of Minnesota's asserted interest in regulating judicial campaign speech will likely promote future successful challenges to other state judicial election speech restrictions The second point flows from the first: To the extent that campaign speech regulation is impermissible, the degree to which judicial elections will resemble partisan, promise-driven elections will likely increase, and thereby continue the steady erosion of the public's confidence in the judiciary's impartiality and dedication to enforcement of the rule of law In White, Justice Scalia, joined by Chief Justice Rehnquist, and Justices O'Connor, Kennedy, and Thomas, held that Minnesota's judicial conduct code provision prohibiting judicial candidates from announcing their views on disputed legal and political issues--the announce clause--was unconstitutional because it violated the First Amendment rights of judicial candidates and voters (8) Using a strict scrutiny analysis, the majority concluded that the announce clause was not narrowly tailored to serve Minnesota's asserted interest in preserving judicial impartiality and the public's confidence in that impartiality …

Meeting the Needs: Fairness, Morality, Creativity and Common Sense Hugh R. Jones Memorial Lecture: Albany Law School - March 29, 2004

Abstract: I am deeply honored to have been asked by the Fund for Modern Courts to give the third Honorable Hugh R. Jones Memorial Lecture. I did not have the privilege of serving on the New York State Court of Appeals with Hugh Jones. He retired at the end of 1984 and I joined the Court in January of 1986. Nevertheless, Hugh Jones has been a role model, not only as a Judge but as a selfless, public-spirited citizen--one who devoted the better part of his life to serving his country, his state, his community, his church, and his fellow lawyers. His distinguished career included service as a naval officer in the Pacific during World War II, Presidency of the New York State Bar Association, participation as an appointee of Governor Rockefeller on the Commission to Review the Attica Riots, membership on the Board of Trustees of Hamilton College and leadership of the Episcopal Diocese of Central New York as its Chancellor. While Judge Jones will long be remembered for these contributions, it is for his work on the Court of Appeals that his memory will be enshrined. Judge Jones is recognized today as one of the great jurists to have served on the Court of Appeals. His beautifully crafted opinions stand out in the New York Reports as models of scholarship, clarity of thought, and lucid graceful wordsmanship. Their influence in charting the course of the law in New York is unquestioned. While I did not serve with Judge Jones on the Court, I did have the pleasure of knowing him and his delightful wife, Jean. We saw each other frequently at Bar Association and other functions. We shared a close mutual friend, Miss Lucy Eliott, who today at ninety years of age is a New York City artist of note. Lucy, Jean and Hugh Jones maintained a life-long friendship. Lucy used to tell me that she knew many judges, but only kept pictures of two on her wall--Judges Jones and Hancock. "Not bad to be paired with Hugh Jones," I thought. Lucy will be delighted to learn that I am giving this lecture in honor of her dear friend Hugh. Judges Wesley and Levine, in their excellent presentations, have described and analyzed Judge Jones's approach to appellate decision-making as illustrated in his many opinions--such as the far-reaching precedent in Codling v. Paglia (1) which adopted the theory of strict products liability as a rule in New York law--and in his 1979 Cardozo Lecture before the Association of the Bar of the City of New York entitled Cogitations on Appellate Decision Making. (2) As Judge Howard Levine observed last year, Judge Jones, in his Cogitations, stresses four attributes of the ideal common law judge. (3) First, utter neutrality. Second, institutional loyalty. Third, insistence on an objective and rigorous analysis which reduces the risk of result oriented decision-making. And finally, a commitment to the common law process of gradual incremental development of the law through case-by-case evolution and refinement. Most judges and lawyers, I believe, would agree with these "Jonesian" characteristics of the ideal judge which, as acknowledged by both Howard Levine and Judge Jones, are certainly not novel. Indeed, in a recent discussion among well known academics about Justice Sandra Day O'Connor's role as the fifth and deciding vote in many Supreme Court decisions, Justice O'Connor was described in terms that would fit the "Jonesian" ideal. One professor commented: I think Justice O'Connor for many of us in the legal academy represents the ideal of a judge--somebody who doesn't have a predetermined outcome but who in fact does strive to craft a result that is just in the particular case, and is understandable both in terms of legal thought as well as understandable to the larger polity. (4) And he alluded to another essential attribute of our model judge. Again, referring to Justice O'Connor, he said: "She has a wonderful expression that says a wise old man and a wise old woman decide pretty much the same way, they just both need wisdom," and he added "I think the word 'wisdom' is associated with Justice O'Connor. …

Reform in New York: The Budget, the Legislature, and the Governance Process

Abstract: I. INTRODUCTION New York once prided itself as being a leader in governance among the states. Now mediocrity is the norm. One fifty-state study is particularly revealing. In 2001, Governing magazine, in collaboration with the Maxwell School of Syracuse University, graded the states in five key areas of government performance: Financial Management, Capital Management, Human Resources, Managing for Results, and Information Technology. New York received a "C+" average, and no grade higher than a "B." (1) Those who prefer to think of the glass as half full might be encouraged by the improvement over the state's "C-" average reported two years earlier. (2) But New York's improved Governing Grade Point Average, "GPA", was helped by a higher grade in Financial Management. (3) Knowing this, it would be understandable if those attentive to New York's fiscal practices and condition concluded that the state's movement from C- to C+ was evidence not of progress, but of grade inflation. New York's fiscal practices have been regularly criticized by the Citizens Budget Commission and others. Recurring state revenues do not cover recurring expenses. State budgets are "balanced" by extensive use of one shots, borrowing, movement of programs and activities off budget, and displacement of costs onto localities. This latter practice, along with a failure to address the state's complex overlapping arrangements for local governance, has resulted in one of the highest average per capita local property tax burdens in the nation. (4) In reaction to both the process and results of budgeting in New York, national rating agencies again downgraded state bonds in the summer of 2003. (5) New York's are now among the lowest rated in the nation. (6) More than any other single factor, the consistent lateness of the state budget has become a metaphor for the dysfunction in New York State government. The regularity of late adoption of the state budget in Albany--twenty years in a row--is annually grist for editorialists' mills and has become a leading symbol of state governmental nonperformance. The 2001-02 and 2002-03 fiscal years were, some said, the worst for the American states since World War II ("WWII"). Virtually all states experienced serious revenue shortfalls. The resultant fiscal stress engendered a number of late state budgets. But in almost all the states--unlike in New York--budget deadlock has not been the norm. In a recent paper, Dall Forsythe and Donald Boyd indicated that only California has, in recent years, had late budgets with a frequency similar to that of New York. (7) But California is constrained in budgeting by the results of statewide initiatives that significantly limit legislative discretion by mandating spending and limiting taxation. (8) There is no initiative process in New York that has produced tax limits and spending requirements. Moreover, while New York limits state government discretion in borrowing--through a constitutional referendum requirement authorizing general obligation borrowing--the legislature and governor have found numerous ways around it. New York budgets were regularly adopted far in advance of the beginning of the state fiscal year until the mid-1960s--though more time was required during the Harriman administration (1955-58), when partisan control of the government was divided, than in years of Republican control of the governorship and both legislative houses. (9) The first late budget in the post-WWII era came in 1965, during the Nelson Rockefeller governorship, after reapportionment and the Johnson landslide in the presidential election gave control of the legislature to the Democrats. (10) Budgets became consistently late following the mid-1970's fiscal crisis. (11) The average time between the opening of the fiscal year and adoption of the budget has lengthened, and indeed has come to exceed that in California, (12) as techniques have been developed in New York to allow the State to operate for months without a budget in place. …