Showing papers in "Albany law review in 2008"

Victims Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies

Abstract: I. INTRODUCTION The consensus among physicians and social scientists, (1) educators and youth development organizations, (2) civil rights advocates, (3) and law enforcement (4) is that bullying is neither inevitable nor normal, and that it seriously impairs the health and achievement of victims. Consequently, an increasing number of state legislatures, including Ohio's, are mandating that local school boards adopt anti-bullying policies aimed at prevention and mitigation. (5) What exactly is bullying? "Bullying," a term used interchangeably with peer harassment, means aggressive acts made with harmful intent, repeatedly inflicted by one or more students against another. (6) Acts may be physical, verbal, indirect (such as social exclusion), or electronic (such as posting threatening messages to a website). (7) What distinguishes bullying from mere aggression is that bullying is repetitive and involves a power imbalance between a socially powerful perpetrator and a socially weaker victim. (8) Hence, bullies prey on students who are often marginalized in the wider school community because of actual or perceived differences such as obesity, disability, or sexual orientation. (9) Federal and state laws neither deter bullying nor provide most victims a remedy for psychological or physical injuries. Generally, federal law, whether civil rights statutes or the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, offers remedies for victims who are bullied on the basis of federally protected criteria: race, nationality, sex, or disability. (10) The vast majority of victims, however, are bullied for reasons that do not fall under this civil rights umbrella. For example, in a survey of Ohio students aged thirteen to eighteen, the majority cite physical appearance as the most common reason students are bullied and harassed (49%), followed by sexual orientation (18%), and gender expression (9%). (11) Moreover, even when victims do fall into protected categories, courts have set a high bar for recovery, with plaintiffs often prevailing in only the most horrific cases. (12) Victims seeking redress under state tort law often face some variation of the common law doctrine of sovereign immunity. (13) Ohio's sovereign immunity law is typical of state statutes that immunize school districts from negligent supervision claims by allowing: (1) teachers ample discretion to determine the level of supervision necessary to ensure students' safety, (14) and (2) administrators ample discretion to investigate and respond to instances of peer harassment. (15) Statutes may also shield school employees from personal liability for ordinary negligence, making them liable only for misconduct that is reckless, malicious, in bad faith, or outside the scope of employment. (16) Even if a victim obtains a legal remedy under state or federal law, such remedy comes long after the harm has been done--after the student has changed schools, dropped out, or is well past eighteen. (17) As a practical matter, kids need their schools to adopt and enforce effective anti-bullying policies that will protect them while they are in school. (18) Clearly, policies offering students the greatest protection are those that prevent bullying from happening in the first place, not those merely imposing consequences after incidents arise. (19) Thus, model anti-bullying policies are those that deter bullying by improving overall school climate. (20) This article presents an overview of current legal theories available to victims of peer harassment. The purpose of this overview is not to encourage lawsuits. Rather, by showing how the law is inadequate either to deter bullying or to provide victims redress, we hope to encourage advocates to help schools develop comprehensive, inclusive anti-bullying policies. Such policies necessarily enumerate specifically protected personal traits or characteristics so that all students--regardless of the basis of their victimization--are protected. …

Rulemaking without Rules: An Empirical Study of Direct Final Rulemaking

Abstract: In an effort to improve efficiency, several administrative agencies have adopted a procedure known as "direct final rulemaking" (DFR). Some academics have debated whether DFR violates the Administrative Procedure Act (APA), but none have studied how DFR has functioned in practice. This paper, which examines the first decade of DFR at the Food and Drug Administration (FDA), is the first of this kind. The results are surprising, and suggest DFR deserves more attention than it has received. Intended for noncontroversial rules that are expected to receive no significant comments in a notice-and-comment rulemaking, the FDA has often used direct final rulemaking for the opposite: regulations that may be expected to be controversial. Far from generating few comments, forty percent of DFRs have had to be withdrawn due to significant opposition. These findings suggest greater limits should be placed on the use of direct final rulemaking and that its legality be reevaluated in light of how the procedure is actually used. As it is presently practiced, direct final rulemaking could increase cynicism about government. INTRODUCTION Frustrated with the pace of even the most minor rulemaking, federal agencies have experimented with streamlined regulatory practices over the past several decades. (1) One such innovation, "direct final rulemaking," allows an agency to dispense with some amount of procedure for rules that it expects to be uncontroversial. (2) This paper is the first case study to evaluate the implications of direct final rulemaking in practice--an evaluation of direct final rulemaking by the FDA over the past decade. The FDA example raises real concerns about the value and wisdom of the innovation. The FDA has a remarkably poor record at predicting which of its regulations will truly be noncontroversial, and this study suggests that it has been classifying certain proposed regulations as "noncontroversial" in hopes, most frequently misplaced, that they will go unnoticed. Proponents of DFR argue that even if DFR is producing few efficiency gains, the possibility of such gains make DFR worthwhile because it is, at worst, harmless. (3) The experience of DFR at the FDA belies this view. Failed direct final rulemaking, as the practice at the FDA must be called, may reduce the efficiency of agency rulemaking, can cause confusion about the state of the currently effective law, and erodes public confidence in the rulemaking process. Under the model of American administrative rulemaking predominant since the late twentieth century, (4) the FDA--or any other agency--has a straightforward path for enacting a regulation: it publishes a notice of proposed rulemaking in the Federal Register, solicits comments on the rule for a fixed period of time, and then publishes a final rule in the Federal Register, incorporating responses to all significant comments. (5) Nowhere in notice-and-comment informal rulemaking does the agency make a determination about whether a rule will be controversial or not. Whether or not an agency receives adverse comments in the rulemaking, it may still proceed to publish a final rule, as long as the final rule adequately responds to the comments. (6) However, since 1997 the FDA has conducted abbreviated informal rulemaking, called "direct final rulemaking," which requires the agency to determine at the outset whether a rule is expected to be "noncontroversial" and thus unlikely to generate significant adverse comments. (7) If a rulemaking is expected to be noncontroversial, the FDA issues a proposed rule and a direct final rule on the same day. Both solicit comments, typically for a seventy-five-day comment period. If the FDA receives no significant adverse comments, as would be expected for a truly noncontroversial rule, then the direct final rule becomes effective, typically sixty days after the close of the comment period. If the agency receives even a single significant adverse comment, it withdraws the direct final rule, and--assuming it still wishes to promulgate the rule--issues a new final rule, on the basis of the comments and the proposed rule that was published the same day as the now-withdrawn direct final rule. …

How Far Is Too Far? the Spending Clause, the Tenth Amendment, and the Education State's Battle against Unfunded Mandates

Abstract: On January 8, 2002, President Bush's sweeping education reform act, No Child Left Behind (NCLB), was adopted by Congress with the stated purpose of "[c]losing the achievement gap" between economically and racially advantaged and disadvantaged school children (1) The law requires states to administer yearly math and reading tests to students beginning in the third grade (2) and to ensure a 100% passage rate within twelve years (3) The law further imposes severe consequences for schools that do not meet adequate yearly progress (4) Although NCLB has been praised for the national focus it has brought to many of America's failing school systems, since its enactment the law has seen opposition both from legislators (5) and school districts that have filed suit alleging various violations (6) However, on August 22, 2005, Connecticut became the first and only state in the country to file suit against the federal government over NCLB (7) In its complaint, Connecticut alleged that the federal government violated the unfunded mandates prohibition of NCLB by requiring Connecticut and its school districts to comply fully with the Department of Education's strict interpretation of the law without providing the adequate funds (8) In addition, Connecticut argues that by threatening to cut the $435,946,380 the State receives in federal funds for education every year, (9) the government is violating the United States Constitution's Spending Clause (10) by coercing the State into administering an educational policy which the federal government has no constitutional authority to compel a state to implement (11) The State of Connecticut argues that in order to meet the requirements of NCLB, the State would have to lower the standards of its Mastery Test, which it has been using for over two decades, and revamp its entire assessment program--a program that has consistently placed Connecticut's student scores among the highest in the nation (12) The State has asked Secretary of Education Margaret Spellings for waivers in order to continue testing its students every other year (13) Despite her authority to waive any requirement under the statute, Spellings has routinely denied Connecticut's requests (14) After failing to reach a compromise, the State had no choice but to file suit (15) This Article analyzes the State of Connecticut's decision to bring an action against the United States government for the unfunded mandates associated with NCLB Part I illustrates the realities of the achievement gap in the State of Connecticut and highlights the State's successes with the implementation of its own testing scheme, in effect for over two decades Part II focuses on what NCLB requires, the unfunded mandates portion of the State's claim, and why Connecticut refuses to give up its own method of testing in order to lower the costs associated with the education policies of the state to comply with the law Finally, Part III discusses the issue of federalism and how Connecticut claims that the federal government, through economic coercion, is violating Article I of the Constitution and the Tenth Amendment I THE REALTIES OF THE ACHIEVEMENT GAP IN THE STATE OF CONNECTICUT For the past twenty years, Connecticut has implemented its own assessment and accountability program that has helped to consistently rank its students among the highest achieving in the country (16) The Connecticut Mastery Test (CMT), one of the "most rigorous in the nation," uses a variety of written explanations, essays, and multiple choice questions to test cognitive skills of students throughout the state (17) The test takes place over a three to four week period, (18) measures the mathematics, reading, and writing skills of students in grades four, six, eight, and ten, and has helped identify those students performing below proficiency (19) In response to those test results, the State has funneled resources into new preschools, early reading, and after-school programs, all in an attempt to help the lowest performing students …

Nuremberg’s Legacy Continues: The Nuremberg Trials’ Influence on Human Rights Litigation in U.S. Courts

Abstract: I. INTRODUCTION In March of 2005, four Palestinian families and the parents of Rachel Corrie, (1) an American, filed a lawsuit against Caterpillar, Inc. (2) under the Alien Tort Statute ("ATS") (3) and general federal jurisdiction, (4) for aiding and abetting the Israel Defense Forces' ("IDF") commission of war crimes and other human rights violations by knowingly providing the IDF with bulldozers used to illegally demolish civilian homes, resulting in deaths and injuries. (5) In the Plaintiffs' response to Caterpillar's Motion to Dismiss, (6) and in their appeal to the Ninth Circuit, (7) the Plaintiffs rely heavily on the Nuremberg WWII military tribunals' (8) prosecutions of the German industrialists, (9) many of whom were convicted for aiding and abetting the Nazis in their atrocities. (10) In particular, the Plaintiffs rely on In re Tesch (also known as The Zyklon B Case), where top company officials were convicted for knowingly supplying Zyklon B--the poison gas used to kill Jews--to the Nazi regime for use in concentration camps, (11) and on United States v. Flick, (12) where a civilian industrialist was convicted for contributing money vital to the Nazi's financial existence, while knowing of their crimes. (13) Similarly, in the recent case of In re South African Apartheid Litigation, (14) the plaintiffs relied on the industrialist cases to support their claims of aiding and abetting against several corporate defendants they alleged were complicit with the apartheid regime in South Africa. (15) Specifically, they alleged that certain of the defendants were willing and active collaborators with the apartheid government in creating deplorable labor conditions akin to prison-like conditions and profiting from the cheap labor. (16) The plaintiffs argue, "Like Nazi-era firms that profited from forced labor during World War Two, defendants actively sought cooperation with the regime to secure profits." (17) They continue, "Just as Nazi industrialists faced international tribunals for their complicity in Nazi forced labor regimes, corporations that actively cooperated with the apartheid regime and its discriminatory and repressive practices may be found liable under the ATS." (18) These arguments demonstrate the degree to which plaintiffs in domestic human rights litigation are pointing to the Nuremberg trials, (19) and the industrialist cases in particular, to support their theories of corporate complicit liability. These arguments are having some success. In the last three years, three federal district courts have relied on the Nuremberg trials in finding that corporations can be found liable for aiding and abetting human rights violations abroad, (20) two of them analyzing the industrialist cases in detail to support their holdings. (21) Attempts to hold corporations liable for human rights violations are the most recent examples of the degree to which the Nuremberg trials have significantly affected human rights litigation in the United States under the Alien Tort Statute. (22) It is also the most controversial because corporations were not prosecuted at Nuremberg, and there remains the unresolved question about whether corporations are, or should be, bound by international human rights norms. (23) There have been other criticisms of using the Nuremberg trials as precedent in modern human rights litigation. Some have criticized the Nuremberg trials as "victors' justice," implying that use of any precedent from the Nuremberg trials is inappropriate. (24) Others have suggested that precedent from the trials established to prosecute uniquely horrible crimes should not be used in other human rights litigation where the crimes were not as horrible, especially with regard to complicity standards, such as aiding and abetting. (25) One writer has criticized the use of Nuremberg's legacy to support ATS jurisdiction over conduct occurring abroad, arguing that the Allies had a unique connection to the crimes they were prosecuting, which does not exist in domestic human rights litigation. …

The Law Review Article Selection Process: Results from a National Study

Abstract: I. INTRODUCTION In the mid-1990s, the topic of the student-edited law review was very much on the minds of legal scholars and law review editors. In 1994, the University of Chicago Law Review published a series of essays addressing the role of students in the law review publication process. (1) The following year, the Stanford Law Review conducted a law review conference entitled "Law Review Conference." (2) Although there were many calls for further research into the functioning of the law review, (3) few, if any, studies were undertaken or published as a result. (4) After nearly a decade of relative dormancy, the topic appears to be active again. In December 2004, the Harvard Law Review conducted a survey of nearly 800 law school faculty, almost ninety percent of whom agreed that articles were, in general, too long. (5) Judge Posner, the keynote speaker at the Stanford conference, has returned to the fray, removing his action from the pages of the law reviews themselves to the more generally-circulated Legal Affairs. (6) And once again, student editors have felt the need to defend themselves against the onslaught of criticism. (7) But still there has been little serious study of this important but widely-criticized institution. Though critics complain about the process, their understanding of how legal journals decide what to publish is generally limited to their own experiences, either as editors when they were in law school or as authors. It was against this backdrop that we designed our survey and circulated it to the editors at about 400 (8) student-edited law reviews (9) asking a set of questions designed to peel back the curtain that has shrouded the article selection process. We received 191 responses from 163 different journals. (10) Though, as might be expected from an exploratory survey, the results raise at least as many questions as they answer, we hope that the introduction of significant empirical data into the debate can refocus the conversation about how best to structure the changing world of legal scholarship. Our Article proceeds in four parts. Part II places our survey in its proper context by reviewing some of the criticisms of the student-edited law review, particularly with regard to article selection, that have been raised in the published literature. Part III provides an overview of our methodology, both for the survey itself and for our statistical analysis. Part IV reviews the quantitative results of our analysis and examines what they tell us about the selection process. Part V briefly summarizes the findings we consider to be most salient and discusses their implications. II. THE CRITICISMS OF THE STUDENT-EDITED LAW REVIEW The subject of the student-edited law review has generated far more than its share of published invective. While scholars' discontent with the institution is unsurprising given its importance to the progress of their careers (no doubt there is much grumbling behind closed doors about the activities of tenure and promotion committees as well), it is unusual that so much of the grumbling about law reviews takes place in public and is printed by the law reviews themselves. A few examples will serve to highlight the level of disdain that the institution of the student-edited law review receives from its detractors: * Professor James Lindgren opens his essay on the subject with a section entitled "Crimes Against Humanity" that begins "[o]ur scholarly journals are in the hands of incompetents"; (11) * Professor Bernard Hibbitts complains that "the concept of law students exercising quality control over legal scholarship borders on the oxymoronic"; (12) and * Judge Richard Posner finds that "what is wrong is the law reviews' failure, and perhaps inability, to adapt to the changing nature of American law and American legal scholarship." (13) Although the most vitriolic of the criticism has been directed at the line-editing process and the perceived atrocities of the law review style, (14) it is in the article selection process that student editors wield the greatest power over scholars. …

A Modest Proposal for Advancing Animal Rights

Abstract: I. INTRODUCTION Animal rights activists are often called nut jobs, wackos, and extremists--and that is by our friends and family members. Too often our cause is splintered by polarizing views. Instead of focusing on the positions that divide us, we must pursue matters on which we agree. Few would object to the fact that animals feel pain. It may not be to the same extent as we do, but they feel it. As each new year dawns, the promise of the next year suggests the time may have come to recognize that sentience and finally abolish the continued legal classification of animals as property. The law must change to recognize that companion animals and other animals are sentient creatures deserving of greater protection. In any discussion concerning animal rights, the question often arises as to the need to distinguish companion animals, like dogs and cats, from other animals. Clearly, it is an easier argument to limit animal rights to our companion animals who occupy our homes and are near and dear to us. However, such a distinction is too great a strain on science and compassion for us to promote without exploring the issue a bit deeper. Although it would be easy to give into the distinction between companion animals and other animals, to do so ignores the fact that noncompanion animals, like chimpanzees, have a genetic make-up very similar to ours. (1) They also have the capacity to experience great pain. (2) So to suggest that Rover or Kitty have rights and value beyond property, but a chimp does not, leads to an absurd conclusion: chimps can be seen as mere objects. Chimps can experience a broad array of emotions like joy, grief, and sadness. (3) They are extremely intelligent and often serve as helpers to the disabled. (4) Their genetic make-up is nearly identical to ours. (5) So why should this living, breathing, and thinking being--sometimes thinking even more than we do according to Japanese researchers (6)--be relegated to the equivalent of the chair we sit on? Cruelty and humane treatment of animals aside, tort law, contract law, wills and trusts law, and family law all deal with issues regarding companion animals (with the exception of actions for damages to livestock where the law actually grants more protection to the animals so long as it is part of one's livelihood). (7) While some environmental and constitutional laws (such as the Endangered Species Act (8) and the Marine Mammal Protection Act) (9) do address the rights of noncompanion animals, the continued property classification of animals affects--and hurts-companion animals more than it does our nondomesticated friends. Therefore, while some animal welfare groups have done a good job raising the awareness of the plight of the giant panda and the previously endangered bald eagle, the greatest strides yet to be made involve companion animals and their often horrid treatment in our United States. There are three issues in animal law of which there should be little debate: (1) banning animal fighting as a spectator sport by increasing the penalties for those that attend; (2) providing for bequests for the care of our pets after our death; and (3) prohibiting the hunting of domesticated animals on private game preserves or over the Internet. II. ANIMAL FIGHTING AS A SPECTATOR SPORT Michael Vick was indicted on some of the most egregious, wanton acts of inhumanity toward animals ever reported. (10) The evidence and his resulting plea left most with little doubt about the horrific nature of their offenses. All of us condemn issues that shock us, but actions must follow our words. More often those opposed to animal cruelty and who are in support of animal rights need to speak with a unified voice to reform this country's unacceptable treatment of animals. Dog fighting is illegal in every state in the United States and a felony in forty-eight of them. (11) Nevertheless, some people continue to engage in this cruel and reprehensible practice for gambling and depraved amusement. …

Judicial Activism and Progressive Legislation: A Step towards Decreasing Hate Attacks

Abstract: I INTRODUCTION Over the last several years, the issue of gay and lesbian rights has been a political hot topic The area that has drawn the most attention lately is in the realm of civil unions and marriage Vermont and Connecticut have passed civil union legislation increasing the rights of gays and lesbians (1) Massachusetts went one step further It actually permits gay marriage In 2003 the Massachusetts Supreme Judicial Court (SJC), in Goodridge v Department of Public Health, ruled that the state's constitution does not prevent same-sex couples from marrying (2) In the wake of the SJC's opinion, the Massachusetts legislature introduced possible constitutional amendments defining marriage as between a man and a woman only (3) In the meantime, same-sex couples began to marry starting in May 2004 (4) By December 2005 a total of 7,341 same-sex couples had been married in Massachusetts (5) Other states have done the opposite They have limited the rights of gays and lesbians by passing amendments to their state constitutions, which define marriage as between a man and woman only (6) This makes it virtually impossible for homosexuals to be on equal footing with their heterosexual counterparts This Article focuses on the impact that judicial decisions, such as the Goodridge opinion, and legislative acts increasing the rights of gays and lesbians have on "hate crimes" In determining this impact, the Article will examine the historical treatment of gays and lesbians and anti-gay violence It will also look at heterosexism and the Defense of Marriage Act, hate crime legislation, hate crime statistics, and hate attacks nationally and specifically in Vermont and Massachusetts II HISTORICAL TREATMENT OF GAYS AND LESBIANS Gays and lesbians in the United States, historically, have not been treated well Starting as early as the colonial era, one could be executed by the government for sodomy (7) By the mid-twentieth century, the medical profession began considering homosexuality a mental illness (8) As such, many gays and lesbians were in fear of being institutionalized (9) In the 1940s and 1950s, the federal government started to openly treat homosexuals adversely (10) Congress dealt with homosexuals through the House UnAmerican Activities Committee and the Senate's McCarthy Hearings (11) Homosexuals were considered a national menace, a threat to national security, and a threat to the stability of the country (12) Congress, however, was not the only branch of the federal government that treated homosexuals poorly President Dwight Eisenhower "issued an executive order listing 'sexual perversion' as disqualifying anyone from a federal job" (13) This prompted J Edgar Hoover and the FBI to lead a "national crackdown" on outing homosexuals (14) At that time, the federal government was the nation's largest employer (15) It was believed that homosexuals were easy targets of blackmail and could be coerced into revealing national secrets or joining the communist party (16) As a result of this crackdown, it became open season on homosexuals This overt discrimination by the federal government led to more and more private discrimination Private employers followed Eisenhower's lead and started firing anyone they believed was homosexual (17) In addition, police across the country started to act as if they had been given a '"no-holds-barred' signal to harass, abuse and arrest homosexuals" (18) They would blackmail, entrap, and commit other abuses on them (19) The police traditionally have been violators of gay and lesbian civil rights (20) As such, attacks on gays and lesbians had gone unreported because victims actually experienced or perceived the police to be anti-gay (21) This was the climate and the catalyst for the Stonewall Riots of 1969 (22) During these riots, members of the gay community fought back against the New York City Police who were constantly harassing patrons of gay bars …

National Identification Cards: Powerful Tools for Defining and Identifying Who Belongs in the United States

Abstract: In the wake of the terrorist attacks on September 11, 2001, there have been numerous calls for a federal national identification card system as a means to prevent future terrorist attacks in the United States The proposals range from a comprehensive system involving chips and databases that could be used to track the movements of card holders to "trusted-traveler" cards that would facilitate faster boarding of planes for pre-screened individuals (1) Another type of proposal is for a national identification card that simply identifies the holder as having the right to be in the United States Such cards, it is proposed, would contain some or all of the following information: name, address, social security number, photo, and fingerprint of the holder They would allow the holder to easily pass through security checks at airports, high rise buildings, and federal buildings Some have suggested that such cards be voluntary, in which case those who choose to not show such a card would be choosing to undergo more scrutiny The current impetus for a national identification card system is at least in part due to the fact that some of the 9/11 hijackers obtained United States identification cards The 9/11 Commission reported that "[a]ll but one of the 9/11 hijackers acquired some form of US identification document, some by fraud" (2) Others, in particular Representative Sensenbrenner, have alleged that the hijackers were able to carry out their terrorist acts because they possessed sixty-three drivers licenses (3) A fact sheet issued by the 9/11 Public Discourse Project, a campaign created by ten members of the 9/11 Commission, reports that the hijackers, in fact, had thirteen licenses, two of which were duplicates (4) While all were real licenses, not all were legally obtained (5) For example, some hijackers lied about being residents of a particular state (6) In any case, all the hijackers entered the United States on visas and all but one had legal immigration status when they applied for a license (7) The remaining hijacker used his passport to board the plane (8) It has also been reported that some of the US identification cards mentioned by the 9/11 Commission were, in fact, very official-looking cards that were issued by private companies (9) The Public Disclosure Project Fact Sheet reports that while the Commission made recommendations to catch terrorists, it "did not make any recommendation[s] about licenses for undocumented aliens" (10) Despite these facts, many proponents of national identification card systems lump terrorists with immigrants whose only transgression is their presence in the country without legal permission National identification cards, the argument goes, would help locate terrorists and "illegal aliens" because those without permission to be in the United States would not have a card The cards would identify who has a right to be in the country (11) Thus, the card would reduce the need for racial profiling by quickly identifying those who belong, and thwart terrorism by preventing terrorists from hiding in plain sight Among the people suggesting that a national identification card system be considered is Professor Alan Dershowitz (12) A well-known civil-libertarian, Professor Dershowitz made waves when, in October 2001, he suggested that our recent experiences called for a rebalancing of security and liberty (13) His card would be optional, but would permit the holder to easily pass through security checks at airports and buildings (14) It would contain only the holder's name, address, photo, and a chip containing a fingerprint or retina scan (15) Professor Dershowitz suggests that such a card would actually reduce racial and ethnic profiling (16) He acknowledges that Arab-Americans would likely be asked for their cards more often, but believes that production of their cards would avoid the harassment they currently suffer …

Inside judicial chambers: how federal district court judges select and use their law clerks

Abstract: I. INTRODUCTION In recent decades, United States Supreme Court law clerks have not suffered from a lack of attention. From allegations that the Justices' law clerk hiring practices are riddled with gender and racial bias (1) to debates over the level of influence wielded by clerks, (2) legal scholars and journalists have remained intrigued with these "junior justices." Law clerks on the lower federal and state courts, however, have escaped similar scrutiny. This disinterest is particularly evident when we consider federal district court law clerks. With the exception of a recent flurry of articles debating when federal district court judges should begin the interviewing process, (3) the majority of articles by or about federal district court law clerks in the legal literature are the now-standard "tribute pieces," in which former law clerks extol the virtues of retired or deceased district court judges. (4) Filled with touching or humorous stories about chambers life as well as predictions for their judges' place in the pantheon of great jurists, these articles seldom discuss how the authors were selected or what job responsibilities they were assigned. On one hand it is not terribly surprising to discover that lower court clerks have been largely ignored by legal scholars, social scientists, and journalists. All are interested in the exercise of political power, and no other court in the land issues opinions of such sweeping scope and salience as the Supreme Court. Thus our attention is inexorably drawn to the Supreme Court law clerks who are involved in shaping judicial decisions in such critical areas as free speech, reproductive rights, and federalism--and some would suggest--wield their own independent influence over these decisions. We are not suggesting that Supreme Court law clerks are not worthy of study. In this Article, however, we argue the literature's narrow focus on the Supreme Court law clerk has led to a failure to examine the important role that federal district court law clerks play in the federal judiciary. As recent caseload statistics demonstrate, the federal district court is the court of last resort for most plaintiffs and defendants; in the twelve month period ending September 30, 2006, 259,541 civil cases (5) and 88,216 criminal cases (6) were filed with the United States District Courts. During that same period, only 66,618 appeals were filed with the United States Courts of Appeals, (7) 15,246 of which were criminal appeals. (8) In other words, less than twenty percent of cases filed in federal district court were appealed to the intermediate appellate courts. In 2005, the Supreme Court had only 9,608 cases on the docket and heard argument in ninety cases. (9) Ultimately, less than one percent of all cases originally filed in federal district court were reviewed by the Supreme Court. Admittedly, opinions issued by federal district court judges do not have the scope or impact of opinions written by Supreme Court Justices; lower court law clerks do not have the opportunity to craft legal principles which will govern a nation or resolve critical policy debates. Nevertheless, in helping process thousands of cases a year, an argument can be made that the hundreds of federal district court law clerks potentially have more day-to-day influence over individual litigants and cases than approximately three dozen Supreme Court law clerks. This Article does not propose to determine whether federal district court law clerks wield inappropriate levels of influence. Instead, our goal is to take the important first step of understanding what criteria are used to select federal district court law clerks and what job duties are assigned to those clerks--important descriptive data that has not been previously collected. If we find that federal district court law clerks are given the most mundane of responsibilities (such as cite checking, filing, and coffee making), then the issue of influence need not be reached. …

Slavery in the 21st Century and in New York: What Has the State's Legislature Done?

Abstract: I. INTRODUCTION ** At this very moment, a young Mexican girl, who was promised a job or marriage, could be coming to New York, only to be forced into dehumanizing prostitution. At this very moment, a migrant farm worker could be toiling away in a labor camp in some rural location in New York, forced to work, held against his will, and living on a pittance. At this very moment, a married couple could be bringing a group of Peruvians to New York, promising them a better future, only to confiscate their passports on arrival and force them to endure grueling labor in a sweatshop under inhumane conditions. These stories are real-life examples of horrendous human trafficking acts that have occurred and continue to occur in New York State. (1) These degrading human rights violations are a form of modern day slavery, and they are alive and well in the United States, particularly in New York. (2) Currently, unlike other states, New York does not have an anti-trafficking statute that mandates criminal repercussions for traffickers. Several anti-trafficking bills have been proposed, but most have died on the Assembly or Senate floor. (3) The present anti-trafficking proposal was introduced in January of 2007, and it is currently being examined by both houses of the State's legislature. (4) This Note examines the current proposed anti-trafficking statute and other past statutory proposals that have come from the New York State legislature. It assesses their strengths and weaknesses, particularly in comparison with anti-trafficking laws in other states. It offers ways in which to develop a more effective law which will aid in the rehabilitation of the trafficking victims, as well as ways to develop a more effective law enforcement body which will aid in the capture of the traffickers. Part II of this Note provides an overview of human trafficking with a particular focus on the crisis in New York. Part III considers the anti-trafficking legislation at the federal as well as the state level, and examines the particular importance of specific state-mandated anti-trafficking statutes. Part IV examines the proposed New York State anti-trafficking legislation by analyzing its strengths and weaknesses, while recommending improvements to the proposed legislation. Part V concludes with recommendations for measures that New York State can take with regards to establishing a more comprehensive community approach in combating human trafficking. II. HUMAN TRAFFICKING IN NEW YORK Human trafficking is the criminal commercial exchange of human beings, who are subjected to involuntary acts, such as sexual exploitation or forced labor. (5) Trafficking involves a process of using physical force, fraud, deception, or other forms of coercion or intimidation to obtain, recruit, harbor, and transport people. (6) This involuntary servitude is described as a "form of modern-day slavery." (7) Victims include "young children, teenagers, men and women." (8) The most widespread form of human trafficking involves involuntary sexual servitude, which includes forcing trafficking victims into prostitution. (9) Human trafficking is different from unlawful immigration or smuggling in that it involves physical force, intimidation, fraud, and deception, all of which are used by traffickers to exploit the status of undocumented aliens. (10) Human trafficking is a very profitable form of organized crime. (11) It is the most profitable form of illegal trade worldwide, second to the trafficking of arms and drugs. (12) Criminal groups make more than nine billion dollars in annual revenue globally from the trafficking of human beings. (13) Furthermore, it is estimated that 800,000 to 900,000 people are trafficked each year across international borders. (14) The federal government estimates that nearly 18,000 persons are trafficked annually into the United States. (15) International trafficking victims have been identified in twenty states, with the majority located in Florida, California, and New York. …

Shining the Light on Greyfields: A Wal-Mart Case Study on Preventing Abandonment of Big Box Stores through Land Use Regulations

Abstract: I. INTRODUCTION Shopping trends in the United States have changed dramatically over the last few decades with the introduction of the large-scale discount retailer. Wal-Mart is the forerunner in the retail market and dominates competition through the use of its big box stores. (1) Started by Sam Walton in 1962, (2) there are now over 3,443 WalMart stores in the United States and another 2,757 international locations. (3) These "big boxes" consist of at least 100,000 and up to 235,000 square feet of retail space or more, depending on whether a grocery store is integrated into the building. (4) Wal-Mart chooses to build its stores as large as possible, allowing goods to be purchased from suppliers in bulk; the larger the stores, the greater the savings. (5) Wal-Mart then passes on the savings to its consumers, resulting in its mass popularity among the public and nationwide competition because smaller stores do not have the capacity to purchase in bulk to the same extent that Wal-Mart can. (6) In addition, consumers love the low prices that Wal-Mart provides, which are about eight to twenty percent below other retailers. (7) Despite all the criticism the company endures due to its health insurance policy, (8) low wages, (9) and environmental wastefulness, (10) Wal-Mart can bring a number of benefits to a community. Wal-Mart brings jobs and sales tax revenue along with low prices, including a recently-unveiled low-cost pharmaceutical program. (11) In addition, the company announced a major change in environmental policy through the construction of experimental eco-friendly stores (12) and a goal to conserve energy through the sale of fluorescent light bulbs. (13) The success of Wal-Mart's large stores encourages the company to build more stores, each bigger and better than the last one. Per the Wal-Mart Realty website, "Wal-Mart Stores and Sam's Clubs are often so successful that they outgrow their buildings and relocate to better serve our customers." (14) While the growth of the company is great for Wal-Mart, the costs to the public are plainly visible. As Wal-Mart continues to be profitable, the company wants the stores to be as large as possible. It is common practice for the company to pick up and abandon one store and build in another location down the road that is bigger. For instance, in Phenix City, Alabama, the company built a Super Wal-Mart while abandoning a traditional store just down the road, which remained empty for over six years. (15) Another example is in La Junta, Colorado, where an empty Wal-Mart sits only a quarter mile from a new store. (16) The abundance of big boxes created over the last two decades has caused vacant retail space to exceed the retail market. (17) As a result, abandoned Wal-Mart stores sit empty, creating large concrete and asphalt eyesores in communities. These giant empty retail stores have become prevalent enough to earn the name "greyfields." Greyfields can be defined as "old, obsolete and abandoned retail and commercial sites [with] thousands of square feet of retail space surrounded by seas of gray pavement." (18) These abandoned buildings tend to sit vacant for years and are one of the most visible indicators of urban sprawl. (19) The basic configuration of the big box, with thousands upon thousands of square feet, makes it difficult to find a new use for the building; the number of businesses that can use so much floor space is limited, (20) plus the lack of windows and interior walls deter potential buyers. (21) While communities around the country have found creative ways to reuse empty big boxes, such as for elementary schools, churches, and call centers, (22) Wal-Mart should be held accountable for the abandoned store that it leaves unoccupied. Though many people would like to see Wal-Mart prevented from abandoning smaller stores in order to operate its excessively large stores in their communities, the reality is that the company is not likely to change its company development philosophy. …

Visibility, Accountability and Discourse as Essential to Democracy: The Underlying Theme of Alan Dershowitz's Writing and Teaching

Abstract: I have been writing about the law and justice for half a century. My first published law review piece appeared in 1960 as a student note in the Yale Law Journal. (1) Since that time, I have published nearly thirty books and hundreds of articles covering a wide range of legal, philosophical, historical, psychological, biblical, military, educational, and political issues. Until I listened to the excellent papers presented at this conference on my work, I had never realized--at least on a conscious level--that a single, underlying theme, with multiple variations, runs through nearly all of my writings. As a response to those papers, I will seek to articulate that theme, show how it pervades my writing and teaching, identify some of its roots in the teachings of my own mentors, try to defend its fundamental correctness, and point to several weaknesses and limitations that remain to be considered before I complete my life's work. The theme is not obvious, and no single speaker at the conference identified it fully, though most touched on elements of it. It is not obvious because, on the surface, it is difficult to see one single-colored thread running through a tapestry that appears to weave together so many different subjects. After all, I have written, inter alia, about the crimes of attempt and conspiracy; the commitment of the mentally ill; the defense of insanity and other legal excuses and justifications, such as "necessity," "self-defense," and "provocation"; sentencing and plea bargains; corporate and group crime; legal codification; freedom of speech; pornography; search and seizure; wiretapping; entrapment; coercive interrogation and torture; bail and preventive detention; the causes of terrorism; preemptive and preventive wars and other anticipatory measures; affirmative action; the Israeli-Arab conflict; freedom of and from religion; biblical interpretation; the sources of rights and morality; the Declaration of Independence; Jefferson's views regarding religion, speech, and terrorism; judicial selection; legal ethics; and the appropriate criteria for interpreting the Constitution. I. THE OVERT TEXTUAL MESSAGE OF MOST OF MY WRITING One theme that has been common to many, but not all, of my writings has been the prevention of harmful conduct, as contrasted with the after-the-fact punishment of completed crimes. My first published note began by adumbrating this issue: Legal folklore includes the notions that the criminal process is invoked only against acts which cause demonstrable injury, and that sanctions are applied in rough proportion to the actual harm inflicted upon society. But concern for the safety of society often provokes use of the criminal law to protect its citizens from potentially dangerous behavior patterns. Thus, when some harmful acts indicate a propensity in the actor to cause even greater harm, the criminal law frequently measures the sanction to be imposed, not merely by the actual injury done, but also by the potential injury implicit in the actor's conduct. Simple assault and assault with intent to kill may produce the same quantum of injury, but the sentence prescribed for the latter offense is more severe, probably because it includes consideration of the propensity to kill. This concern for potentially dangerous behavior has led to the imposition of criminal sanctions for certain acts which result in no injury at all--so-called inchoate crimes. The law of "attempts" is one category of such crimes. When a person attempts to commit a crime such as murder, but fails for some reason to achieve his intended result, he may be guilty of an attempt. Because injury is not an essential element of a criminal attempt, the only rational function of the law of attempts must be the identification of individuals whose overt behavior manifests dangerous criminal propensities. …

Concurrence, Posner-Style: Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner

Abstract: I. Introduction II. The Nature of Concurring Opinions A. Background B. Some Traditional Views on Concurring Opinions C. Recent Takes on Concurring Opinions III. Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner A. Statistics B. Different Ways to Look at Posner's Concurrences 1. Posner as Congressional Adviser: Reflections of His Far-Reaching Intellect and Energy 2. Posner as Advocate of Law and Economics: His Leitmotif 3. Posner the Institutional Critic: His Concern with Core Competencies, Boundaries, and Purposes 4. Posner as Nitpicker: Two Views a. Posner is a Nitpicker b. Posner is Not a Nitpicker 5. Posner as Weaver of Hypotheticals and Wordplay: The Law Professor as Judge 6. Posner the Great: Of Finding and Cutting Judicial Gordian Knots 7. Posner as Reader and Interpreter of Statutes: Searching for Pragmatic Construction 8. Posner's Concerns About Standards of Appellate Review: Judging Lower-Level Decision-Makers 9. Posner Speaking Frankly: Bracing Directness as a Stylistic Technique 10. En Banc Posner: Adding His Two-Cents IV. Some General Observations and Insights A. Judge Posner's Evolving Style: The Strategic Inspiration of Consubstantiality B. The Aesthetics of Judicial Concurring Style V. Conclusion I. INTRODUCTION While a significant body of legal scholarship has emerged on appellate judicial opinion style, (1) little systemic study has been given to examining the nature of modern American concurring opinion style. Style is an ambiguous and eclectic concept, and the opinion style of Judge Richard A. Posner, former Chief Judge of the United States Court of Appeals for the Seventh Circuit, and oft-mentioned candidate to become a Justice of the Supreme Court of the United States, is worth trying to delineate and to understand. (2) In a series of three previous articles, I analyzed Judge Posner's general opinion style during his "rookie season" as a federal appellate court judge, (3) Posner's inchoate dissenting opinion style over the course of his first decade on the court of appeals, (4) and his maturing dissenting opinion style in his later years on the bench. (5) In this Article, I turn to Judge Posner's concurring opinion style during his first quarter century of appellate judging. The structure of the remainder of this Article, before my conclusion, is as follows. First, in Part II, before taking up Judge Posner's concurring opinions, I probe for a working description of the nature and motivations for modern American concurring judicial opinions by looking at previous legal scholarship and exemplars of judicial concurrence. (6) In Part III, I analyze the published concurring opinions written by Judge Posner during 1981-2006--his lifetime tenure to date on the federal appellate bench. (7) Finally, in Part IV, I offer some general observations about Judge Posner's concurring opinion style, and consider some implications of my study for better understanding the form and function of American concurring judicial opinions. (8) II. THE NATURE OF CONCURRING OPINIONS A. Background Interestingly, and ironically, the etymology of the word concur starts in the fifteenth century as meaning "to run together, assemble, meet, rush together in hostility" and "[t]o run together violently or with a shock; to come into collision; to collide." (9) Over the ensuing centuries concur softened in meaning to also encompass "flow[ing] together, as streams (material or immaterial)," "[t]o converge and meet," "[t]o combine in action, to co-operate," and "[t]o agree in opinion." (10) The cognate word concurrence developed a few centuries after the first English usage of the word concur. …

Regionalism Revisited: The Effort to Streamline Governance in Buffalo and Erie County, New York

Abstract: I. INTRODUCTION During the first half of the twentieth century, burgeoning grain transshipment trade and heavy manufacturing spurred the bustling economy of Buffalo, the eastern-most port on the shores of Lake Erie and the second-largest city in the State of New York. (1) With the jobs that these industries provided came residents to occupy them. In the 1900 census, Buffalo ranked as the eighth-largest city in the United States, with a population of over 350,000. (2) By 1950, Buffalo could claim over 580,000 residents--the most ever in its 118-year history to that time. (3) Buffalo had become overwhelmingly dominant among the many municipalities in the County of Erie. However, the 1959 opening of the St. Lawrence Seaway, which encouraged large oceangoing vessels to bypass Buffalo via Ontario's Welland Canal, severely damaged Buffalo's grain trade in the decades that followed. (4) Meanwhile, numerous manufacturing concerns, most notably Bethlehem Steel in 1982, transferred their operations to southern states and foreign countries in search of lower taxes, less stringent environmental regulations, and a workforce that demanded lower wages. These changes have sapped the City of Buffalo of much of the industrial core that drove its economy through the 1950s. Just as residents arrived with the advent of new jobs, they have left in the wake of those jobs' departure. Although approximately 950,000 people still call Erie County home, (5) the United States Census Bureau estimated Buffalo's population, as of July 2004, at just 282,864--a decline of nearly 10,000 from the Bureau's official count in 2000. (6) Recognizing this precipitous drop in population and the exodus of industry, a handful of politicians and community leaders in the mid-1990s publicly recommended merging the City of Buffalo into Erie County as an elixir. (7) Such a merger would enable Buffalo to claim the residents of surrounding towns, and thereby vault ahead in the rankings of America's most populous cities. Perhaps more important, proponents of the merger sought to assign successful suburban communities responsibility for returning Erie County's urban center of Buffalo to its former prominence. (8) The parlance of Buffalonians has termed this effort to transform the governmental structure of Buffalo and Erie County as "regionalism." Support for regionalism gathered steam with the 1999 election of Republican County Executive Joel Giambra, a staunch advocate of consolidation to promote, in the words of a campaign slogan, "better, smarter and cheaper" service delivery. (9) By 2004, having earned re-election with nearly fifty-five percent of the vote against a regionalism opponent in solidly Democratic Erie County, (10) Giambra charged a commission of citizens, led by former State University of New York at Buffalo President William Greiner, to devise a plan for city-county merger that he could present to the voters in a referendum that he optimistically scheduled for November 2005. (11) Soon thereafter, however, the winds of political change suddenly shifted course. Although the commission released a plan of merger in January 2005, it abruptly suspended its work indefinitely later that month, in the wake of a multimillion dollar county budget deficit that voters blamed on the previously popular County Executive. (12) With nearly 80% of Erie County residents believing that Giambra should resign as County Executive, (13) and with Giambra's "favorable[]" poll rating in the single digits, (14) the regionalism effort that seemed plausible to succeed in 2004 has now stalled, as citizens continue to leave the City of Buffalo for suburban Erie County and beyond. As a new Erie County Executive takes office on January 1, 2008, this Paper seeks to examine the etiology of this current state of inertia, and to consider those provisions of New York law which may offer an electorally palatable alternative to formal consolidation of municipalities, which may nonetheless spur renewed investment to grow the property tax base in the City of Buffalo. …

Torture Warrants and the Rule of Law

Abstract: On November 8, 2001, Alan Dershowitz published an opinion piece in the Los Angeles Times under the title, "Is There a Torturous Road to Justice?" (1) The column responded to news reports that federal officials were exploring their authority to use coercive methods to obtain information from people who might have knowledge about the 9/11 attacks or other past or planned "terrorist" incidents. (2) After discussing the ways in which the privilege against self-incrimination and other constitutional rights fail to provide clear protection against coercive interrogation, Dershowitz asked whether a judge could issue a warrant that would authorize investigators to use torture. Using the due process "shocks the conscience" test, (3) he suggested that a "torture warrant" could issue in "the rare 'ticking bomb' case," but he also stressed that this conclusion was "very troubling." The last part of the column gave reasons why U.S. officials might nonetheless opt for warrants. The primary reason, he suggested, was that they will use torture in such a situation anyway, and that "[i]f we are to have torture, it should be authorized by the law." (4) The torture warrant proposal generated immediate reaction in the legal community, most of it negative. Dershowitz stood by his proposal in later writings, most notably in his book Why Terrorism Works. (5) He also took care to stress on numerous occasions--most recently in a March 25, 2007 letter to the New York Times--that he opposes torture and believes a warrant regime would result in less torture than the often ad hoc, off-the-books approach of the Bush administration. (6) As revelations began to pile up about abuse of prisoners at Abu Ghraib, Guantanamo Bay, and other places--abuse that at least sometimes amounted to torture--his prediction became harder to deny. My goal in this Essay is not to evaluate the merits of Dershowitz's proposal. (7) I agree with him that the U.S. Constitution provides much less protection against torture and other abusive practices than people likely would expect. (8) I am also already on record in favor of an ex post approach to the problem of interrogational torture--meaning that I believe that after-the-fact application of doctrines such as the necessity defense provides the best way to address the very rare instances in which torture could be justified. (9) Among other things, I worry that an ex ante approach such as a torture warrant could encourage abuse and dilute the fragile force of the ban on torture both in national and international law and practice. (10) By contrast, I think that the inherent uncertainty of the ex post approach (what Dan Kahan calls "prudent obfuscation") would deter officials considering torture and allow rare exceptions at the same time that it maintained the general rule of no torture. (11) That said, and despite my disagreement with it, the fact remains that the torture warrant version of the ex ante approach is plainly logical. (12) One arguable advantage is that the warrant puts additional and different layers between the interrogator and the prisoner. Under a warrant regime, interrogators or their commanding officers cannot simply decide to use coercion. Instead, investigators must convince government attorneys that there is a basis for using coercion, and the attorneys may have to convince their colleagues or supervisors. Further, the attorneys must then apply for a warrant and convince a judge that signing the warrant would be appropriate. These additional layers of process and the involvement of two branches of the federal government might result in less abuse, as Dershowitz claims. That result would be particularly likely if judges were to treat the request for a torture warrant as requiring closer examination than an ordinary search or arrest warrant. The warrant version of the ex ante approach also includes an element of the prudent obfuscation that I just championed. …