Showing papers in "Fordham Urban Law Journal in 2007"

Military voting and the law: procedural and technological solutions to the ballot transit problem

Abstract: I. INTRODUCTION It is axiomatic that members of the military, particularly those involved in conflict overseas, should be provided with the opportunity to exercise their franchise. Unfortunately, throughout history military personnel have been prevented from doing so due to both procedural and logistic hurdles, resulting in their franchise being effectively "hollow." These difficulties came to the forefront of public awareness during the 2000 presidential election controversy in Florida when the ballots submitted by individuals living overseas--especially military voters--were seen as crucial to the election outcome as the margin of potential victory was so small that these ballots could turn the election from one candidate to the other. (1) Headlines at the time included: "Odds Against Gore Absentee Gains; Republican-Leaning Counties Appear to Have More Uncounted Overseas Ballots," (2) "Bush's Lead Swells with Overseas Votes," (3) "Military Ballot Review Is Urged," (4) and "Examining the Vote; How Bush Took Florida: Mining the Overseas Absentee Vote." (5) For many Americans, however, the controversy surrounding the votes of military personnel and overseas voters, despite its importance, may have seemed both bewildering and esoteric. The debate centered not on the rather uncontroversial proposition that military members living overseas should have the right to vote, but on minute details: whether certain overseas absentee ballots were valid, and could therefore be counted, if they lacked postmarks; whether ballots were properly received within statutorily defined time periods; and whether ballots were legitimate if missing a signature or lacking other statutorily defined characteristics. (6) Such matters are likely beyond the interest of the typical American. Despite the apparent focus on minutia, these legal skirmishes fought within the broader context of the recount battle impacted substantive issues concerning whether military absentee ballots could be counted, the resolution of which swayed the outcome of the 2000 presidential election. (7) Issues of equal protection, federalism, and statutory interpretation played important roles in this litigation and highlighted not only the plight of military voters in exercising their right to vote but also the delicate, and often times difficult, balance between federal and state election laws. (8) The tension between allowing overseas votes to be counted, as required by federal law, and ensuring a fair election that complied with state law was at the heart of the debate and related litigation. (9) This tension is not new and, as it relates to military voting, has centered for years on the laws and procedures that individuals are required to follow before they can vote. (10) The often competing federal and state statutory frameworks put in place to govern voting are critically important because they ultimately determine who can vote, in what manner they can vote, and the requirements that such votes must meet in order to be counted. (11) In the past, many states used hurdles, such as poll taxes, reading tests, and flat-out intimidation to systematically exclude minorities and the poor from voting. (12) Such "procedural limitations" were implemented to make it more difficult, if not impossible, for targeted populations to vote even when they were serving their country in the military. (13) Allowing more military personnel to vote and attempts at governing the mechanisms for doing so at the federal level came into conflict with the right of states to determine how elections were conducted in the states. (14) More recently, however, the effective expansion of voting rights in America overall, and granting the right to vote to those eighteen years and older in particular, have removed many of these improper procedural limitations and significantly broadened the pool of potential voters, particularly among those in the military. (15) One difficultly in expanding the pool of potential voters is the added burden of dealing with a voting population that is spread across the globe in highly inaccessible areas. …

Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed

Abstract: Housing provides a necessary foundation for physical and social life. It provides shelter, security, recreation, and wealth. It plays a central role in the health and well-being of its occupants and also supports their employment and educational endeavors. Among the poor, there is a severe shortage of adequate, affordable housing. Because housing is central to the social and economic needs of all people, it is not surprising that national policy has long proclaimed the goal of a “decent home and a suitable living environment for every American family.” Indeed, although in recent decades government spending for relief of poverty has been curtailed, in part because of doubt about the efficacy of transfer programs, spending in support of housing subsidies for low-income persons has persisted. Even though federal funding for affordable housing has shrunk, many state and local governments seem firmly committed to increasing the availability of affordable housing through a variety of innovative subsidy programs, many of which involve partnerships with private non-profit and for-profit entities.

Appointing judges the european way

Abstract: I. INTRODUCTION American politicians deride an undefined "judicial activism," but political scientists study a more precise phenomenon that reflects the growing expansion of judicial power, the "judicialization of politics." (1) Judicialization occurs in either of two fashions: the judiciary expands its power into new arenas, at the expense of politicians and administrators, or progressively more political activities outside the judicial realm assume judicial-like qualities. (2) Either strand of judicialization conflicts with notions that courts and judges should be apolitical, but as Hans Kelsen pointed out in 1926, judges can never simply declare the law or enunciate the legislators' will; every judicial decision is a choice among competing values. (3) Judges exercise political power not just in the annulment of a legislative act, but also in every courtroom where a criminal case is heard, a divorce granted, a piece of property seized, custody awarded, a written treatise protected, or damages ordered. In every case some societal value is favored over another, and the essence of politics consists in authoritatively allocating values for society. (4) Who are these judges and how did they attain their powerful positions? That question is asked, not only in the United States, but also in democracies around the world. To fully understand the process for selecting judges, one needs to look beyond the simple act of appointment and consider a larger phenomenon that is referred to by political scientists as recruitment. Recruitment flows in three stages: certification, selection, and assignment. The first phase, certification, derives from a person's status in the structure of political opportunity, his opportunity costs, and political socialization. The second phase, selection, involves the interaction among aspirants, candidates, sponsors, and the selecting body. The final phase, role assignment, chooses the candidate and legitimizes his assumption of the office. (5) The process operates like a funnel; more and more people are excluded from consideration at each stage until one is named. Thus, judicial selection encompasses more than just the point of selection and involves consideration of who was able to meet the minimum eligibility requirements and ultimately win out over others in competition. Obstacles to achieving the legal degree, obtaining the right experiences, or meeting the best political power brokers are all elements of judicial recruitment, as well as how the final selection is made. If one falters at any of the steps preceding the final point of selection, there is no possibility of obtaining the office. The many configurations of judicial selection systems in the United States and elsewhere all aim to put the best people in the courtroom, but how do we know who would make the "best" judge? Characteristics that most would name are "personal integrity, intelligence, legal ability and judicial temperament," (6) but all are difficult to recognize and even harder to measure and compare. Hence, a variety of mechanisms have been developed in the quest to find a way to recruit and appoint the "best" judges. (7) Different goals drive various selection systems. All seek to name meritorious judges or, at the very least, legally competent and honest ones. The decision as to whether the meritorious judges should be accountable or independent determines, therefore, the choice of selection method, and neither value compromises the quest for meritorious judges, at least theoretically. Of course, recognizing meritorious judges when we see them poses the same dilemma as attempting to find and define the best judges. The American states have devised a variety of mechanisms that attempt to achieve all three goals, even though reconciling independence with accountability may be akin to squaring a circle. Europeans seem to know which value trumps the other, and that value is judicial independence. …

Urban Revitalization in the Post-Kelo Era

Abstract: An ongoing urban revitalization project arrested by legislative reponses to the Kelo decision is likely to play out in many cities and towns across the country in the next few years. Since Kelo was decided, thirty-four states have adopted some responsive legislation or constitutional amendment. These new laws, to varying degrees and using various mechanisms, limit the power of state and local governments to use eminent domain to faciliate economic redevlopment projects. This Article explores the reach of these statutes and their likely consequences for ongoing and future urban revitalization project. ∗The author would like to thank Tad Duree, Eliot Turner, and Eric Willis for their extremely helpful research assitance on this project. \\server05\productn\F\FUJ\34-2\FUJ203.txt unknown Seq: 1 31-MAY-07 9:39 URBAN REVITALIZATION IN THE POST-KELO ERA

Judicial performance review: a balance between judicial independence and public accountability

Abstract: Judicial performance review in Colorado is the most sophisticated method in the nation for providing information to voters in judicial retention elections. (1) Colorado has had a commission-based appointive system for judges--with the judges subject to periodic non-contested retention elections--for forty years. In the mid-1980s, some in Colorado thought that retention elections did not provide voters with enough information to hold judges accountable, and they sought to return the selection of judges to contested partisan elections. The performance review concept was a response to the call for more public accountability. But public accountability in Colorado--advanced by a commission without partisan balance--may encroach on judicial independence. (2) This Article focuses on the role of judicial performance commissions that provide information to voters before non-contested retention elections for appointed judges. A performance commission might serve as a substitute for retention elections, But given the political climate in Colorado, where judges are subject to frequent public criticism, it is highly unlikely that retention elections, enshrined in the state constitution, will be replaced with periodic commission review. Questions that this Article will address include the following: 1. Who appoints the members of a judicial performance commission and should partisan balance be required? 2. What should commission members' qualifications be? 3. What are the appropriate criteria for evaluation of a judge's performance? 4. How does a commission obtain information about a judge? 5. What is done with the information obtained by the commission? 6. Should performance review include retired judges or magistrates who serve as-needed? 7. What kind of staffing and training is available for commissioners and who pays for it? 8. Does a performance review get rid of bad judges and assist voters in retaining good judges? 9. Should judges be subject to term limits? 10. To what degree does any performance evaluation limit judicial independence? I. AN OVERVIEW OF THE COMMISSION-BASED JUDICIAL SELECTION PROCESS IN COLORADO Before discussing the role of judicial performance commissions, this Article describes the initial selection process for most judges in Colorado. (3) In 1966, Colorado voters adopted an amendment to the state constitution that provides an appointive process to select state court judges, replacing their direct election. (4) The appointive process (called a "modified Missouri Plan" (5)) consists of a statewide appellate judicial nominating commission ("the supreme court nominating commission") and nominating commissions for county and district court trial judges in each judicial district ("the district nominating comissions"). (6) For each judicial vacancy, a nominating commission sends two or three names selected from those who have applied for the position to the governor, who makes the final selection. (7) The supreme court nominating commission consists of a lawyer and a lay person from each congressional district (8) and an additional lay person, (9) with the chief justice as the ex officio chair. (10) The district nominating commissions each have three attorney members and four lay members, all of whom reside in the judicial district, with one of the six justices of the state supreme court acting as the ex officio chair. (11) The governor, the attorney general, and the chief justice select the lawyer members of each commission by majority vote, and the governor selects the lay members. (12) No more than one-half of the commission members plus one can be members of the same political party (13) and all commission members serve a term of six years. (14) The commissions rely on staffing from the supreme court and the state court administrator's office, and receive some training provided by the state court administrator. …

Winding Toward the Heart of the Takings Muddle: Kelo, Lingle, and Public Discourse About the Private Property

Abstract: People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government’s power under the Takings Clause to take title to, or significantly affect the value of, their property. Kelo v. City of New London has been seen as controversial while Lingle v. Chevron USA Inc. has received far less public attention. This Article argues that the significance of Kelo and of Lingle lies in the extent to which the two cases engage with, or fail to engage with, the cultural debate over the function of property in contemporary society. ∗Thanks to the editors of the Fordham Urban Law Journal for inviting me to contribute to this issue. Thanks also to Craig Green, Richard Greenstein, and Carol Rose who provided enormously useful comments on earlier drafts. Finally, thanks to Shira Helstrom for excellent research assistance. \\server05\productn\F\FUJ\34-2\FUJ202.txt unknown Seq: 1 31-MAY-07 9:25 WINDING TOWARD THE HEART OF THE TAKINGS MUDDLE: KELO, LINGLE, AND PUBLIC DISCOURSE ABOUT PRIVATE PROPERTY

Brownfields at 20: A Critical Reevaluation

Abstract: This Articles looks at brownfields policies in one state, New Jersey, and suggests how to make the approach of brownfields revitalization more development-centered and less developercentered. Following a basic description of the New Jersey Program, this Article discusses two specific developments, the BDA initiative and the recent “Grace Period Rule,” that changed some aspects of the program. ∗The author wishes to thank Ron Rosenberg for his insights on brownfields law and policy, Bill Wolfe of the New Jersey chapter of Public Employees for Environmental Responsibility (”PEER”) for information about New Jersey’s brownfields programs, and Clay Burns for invaluable research

Undermining Individual and Collective Citizenship: The Impact of Exclusion Laws on the African-American Community

Abstract: I. Introduction II. Conceptualizing Citizenship A. The Process of Citizenship B. The Practice of Citizenship C. The Parts of Citizenship III. Impact of Felon Exclusion Laws A. The Exclusion Laws i. Denying the Vote ii. Barred from Serving in a Representative Capacity iii. Striking Potential Jurors iv. Public and Private Employment and Occupational Licensing Restrictions B. Impact of the Exclusions on the Individual C. Impact on the African-American Community i. Silencing the Collective Voice and Diminishing Representative Choice ii. A Priori Jury Pool Bias iii. No Employment, No Capital--Social or Financial IV. "Sweet Home Alabama," But Not for Ex-Felons V. Automatic Restoration of Rights for Ex-Felons A. Exclusion Laws Violate the Fourteenth Amendment B. Legislative Action Needed for Automatic Restoration of Ex-Felon's Rights VI. Conclusion The most heartrending deprivation o fall is the inequality of status that excludes people from full membership in the community, degrading them by labeling them as outsiders, denying them their very selves. (1) I. INTRODUCTION Felon exclusion laws (2) are jurisdiction-specific, post-conviction statutory restrictions that prohibit convicted felons from exercising a host of legal rights, most notably the right to vote. (3) The professed intent of these laws is to punish convicted felons equally without regard for the demographic characteristics of each individual, including race, class, or gender. (4) Felon exclusion laws, however, have a disproportionate impact on African-American males and, by extension, on the residential communities from which many convicted felons come. Thus, felon exclusion laws not only relegate African-American convicted felons to a position of second-class citizenship, but the laws also diminish the collective citizenship (5) of many African-American communities. Upon conviction of a felony, generally defined as "a serious crime ... punishable by imprisonment for more than one year or death," (6) the individual becomes a member of the convicted felon status group. While all persons convicted of a felony are members of this status group, (7) not all convicted felons have the same relationship to the criminal justice system, thus I have created the following typology to characterize those relationships. The convicted felon status group can be divided into the following two categories--felons and ex-felons--where the status of the former is predicated on some type of control and the latter is not. Specifically, felons have not satisfied the requirements associated with their sentences and thus remain under the auspices of the criminal justice system. The felon category can be further divided into those persons that are incarcerated, (8) on probation, (9) or on parole. (10) By contrast, ex-felons have completed their entire sentences, and are no longer under the direction and control of the criminal justice system. Membership in the convicted felon status group comes with many disabilities, not least of which is the infringement upon the right to vote. A felony conviction, however, can also be used to deny additional rights or serve as a basis to terminate existing relationships, (11) For example, depending upon the jurisdiction, a convicted felon can be prohibited from serving on a jury, obtaining public employment, holding public office, or owning a firearm, (12) Moreover, a felony conviction can be cited as a reason to terminate a convicted felon's marriage or parental rights, and can require a convicted felon to register with local law enforcement officials. (13) Felon exclusion laws undermine a convicted felon's full citizenship. Within the convicted felon status group, ex-felons possess the strongest legal and moral claim for having their rights restored automatically upon the completion of their sentences. …

A comparison of the criminal appellate decisions of appointed state supreme courts: insights, questions, and implications for judicial independence

Abstract: Of all the systems used to select judges in the United States, appointment systems are the most widely used. (1) An appointment system is one in which the state's governor, with or without the input of a nominating commission, chooses candidates to fill initial and interim vacancies on a court. (2) Today, a majority of the states use appointment systems to select their supreme court judges. (3) There are many important differences in the institutional arrangements and procedures that these appointment systems use, however, and no research has been done to see if these differences affect the outcome of cases. This Article presents the results of a study conducted to see whether state supreme courts selected in states with dissimilar appointment systems differ in the way they decide criminal appeals. Comparing the criminal decisions of courts selected with different appointment systems may also suggest something about how different appointment systems impact judicial independence. I. APPOINTMENT: THE FALL AND RISE OF A JUDICIAL SELECTION SYSTEM As of 1846, appointment was second the most common way of selecting justices of the states' highest courts. (4) Of the twenty-nine states that entered the union prior to that date, fourteen used appointment systems to select supreme court justices. (5) Over the course of the nineteenth century, however, the proportion of states that used appointment systems for their highest courts dropped sharply as many new states entered the union with different selection systems (typically partisan elections) and as states already in the union switched to different selection methods. (6) The change away from appointment toward partisan election of justices was, among other things, prompted by the belief that elected judges would exercise their duties more independently than judges who owed their appointments to the governor or to the legislature. (7) The change was also spurred by the belief that elections would prevent the judiciary from being filled with judges who owed their appointments to political connections rather than to personal qualifications. (8) Defenders of judicial selection systems that combined appointment and life tenure retorted that elections would undermine judicial independence by subjecting judges to the will of the people and to manipulation by political party leaders; but these arguments did not prevent the adoption of judicial elections in most states during the period. (9) By 1909, thirty-five of the forty-six states in the union used partisan elections to select supreme court justices. Partisan elections, which some viewed as a means of assuring judicial independence from the other branches of government, came under renewed criticism for being detrimental to judicial independence. Critics claimed that elected judges were indebted to the political parties upon whom the judges depended for electoral support and that party leaders could use their patronage powers to influence the judiciary. (10) Critics also pointed out that elected judges frequently heard cases involving attorneys and litigants who had contributed to their campaigns, which further undermined public confidence in the courts' independence. (11) Interest in appointment as a judicial selection method enjoyed a revival during the 1910s in response to the previously-mentioned problems. (12) Prominent proponents of a return to appointment during this period included Roscoe Pound, John Wigmore, and Albert Kales. (13) Furthermore, the effort to encourage judicial selection reform provided one of the driving forces behind the creation of the American Judicature Society in 1913. (14) In 1914, Kales proposed an appointment plan eventually known as merit selection, which many reformers of the era supported. (15) Kales's idea sparked the revival of interest in appointment as a judicial selection system. Although various states considered several versions of Kales's proposal throughout the 1930s, Missouri was the first state to adopt a merit selection plan in 1940. …

A Tale of Two Greenways: A Comparative Study of Greenway Projects

Abstract: INTRODUCTION In a recently developed smart growth (1) community located outside Portland, Oregon, the residents live in tall, narrow sculptured glass buildings, will travel via tram and the light rail system currently under construction, and socialize at restaurants and shops lining the waterfront. (2) Despite the modern impression, the community remains green by preserving open space and creating visual access to the natural surroundings. In addition, the community maintains a 1.2 mile river walk with different habitat regions to support wildlife and utilizes ecoroofs, which filter rain water before returning it to the ground. (3) This high-density community interspersed with green space reflects a recent trend in urban planning and is currently in high demand. (4) Smart growth communities provide a middle ground between the suburbs and a "gritty downtown." (5) This smart growth community offers a number of highly desirable amenities including a greenway. The term "greenway" encompasses a broad range of green space including: 1. A linear open space established along either a natural corridor, such as a riverfront, stream valley, or ridgeline, or overland along a railroad right-of-way converted to recreational use, a canal, a scenic road, or other route. 2. Any natural or landscaped course for pedestrian or bicycle passage. 3. An open-space connector linking parks, nature reserves, cultural features, or historic sites with each other and with populated areas. 4. Locally, certain strip or linear parks designated as a parkway or greenbelt. (6) The desire for greenways, however, is not limited to smart growth communities. (7) Despite this increasing interest, many communities have not been successful in building greenways. (8) This Comment identifies aspects of greenway projects that are keys to their success based on a comparative study of two greenway projects, one flourishing and one struggling. Part One discusses the environmental, economic, and health benefits of greenways. Part Two discusses common challenges when building a greenway, mainly community support and land acquisition. Parts Three and Four respectively outline the processes Chattanooga, Tennessee and Rockford, Illinois used in their greenway projects. Part Five compares the Chattanooga greenway project with the Rockford greenway project to ascertain important differences in Chattanooga's process that generated a thriving greenway. I. BENEFITS OF GREENWAYS Greenways provide environmental, economic, and health benefits to individuals and the community as a whole. A. Environmental Benefits of Greenways There is currently a global trend towards urbanization: the population density at the core of cities is increasing, and at the same time, metropolitan areas expand through outward migration to suburbs. (9) Expanding cities and development cause open space to disappear, (10) but greenways mitigate or prevent environmental harm caused by development. (11) As development expands, open space is replaced with impervious surfaces, including streets, parking lots, and sidewalks. (12) Impervious surfaces negatively impact the environment because they contaminate source water. (13) Pollutants, such as motor oil, engine coolant, pesticides, and fertilizers, collect on impervious surfaces. (14) Storm water washes these pollutants off roads and into nearby natural water sources. (15) Normally, vegetation and soil filter out pollutants from storm water before it reaches natural water sources. (16) Impervious surfaces, however, prevent this natural filtration; (17) therefore, greenways located between impervious surfaces and source water improve water quality. (18) Greenways also protect biodiversity by preserving naturally linear habitats, such as riparian habitats. (19) They even preserve habitats for wildlife species that require more space than the greenway itself provides by connecting smaller, fragmented habitat areas. …

English Reforms to Judicial Selection: Comparative Lessons for American States?

Abstract: I. INTRODUCTION It is often said that Britain (1) and America are two nations divided by a common language. (2) Although the American common law system was derived from England, many fundamental differences exist between the American and English legal systems and governmental frameworks. In contrast to the American-style legislative process, extensive formal consultations take place in Britain before government submits a bill for action to Parliament. Historically, no clear separation of powers existed in the complex relationships between Parliament and Government (the elected executive branch) headed by the Prime Minister, and the judiciary, until quite recently headed by the Lord Chancellor, a Prime Minister appointee. (3) For the last 700 years, the power to appoint judges was vested in the Lord Chancellor. (4) While the discourse continues, monumental changes are underway as part of constitutional reform. In time, these pending reforms will likely produce a greater symmetry between Britain, America, and other modern democracies. (5) On June 12, 2003, without prior public consultation, Prime Minister Tony Blair shocked the legal community by announcing plans to implement sweeping reforms to the British legal system, creating a new Department for Constitutional Affairs ("DCA"), headed by Secretary of State Lord Falconer, and also naming Falconer as interim Lord Chancellor until that position could be abolished. (6) Government introduced the Constitutional Reform Bill to the House of Lords in February 2004. (7) Following extensive debate and revisions, the bill was adopted by both houses of Parliament and received the Royal Assent on March 24, 2005. (8) Transfer of judicial appointments to an independent, non-governmental entity began on April 3, 2006. (9) Effective July 4, 2006, an elected speaker of the house took office in place of the Lord Chancellor. (10) The Lord Chief Justice has assumed the head of the judiciary. (11) In barely three years, Britain reformed its long-standing legal structure, providing for clearer separation of powers between the judiciary, Parliament, and the elected government's executive branch (12)--truly, a remarkable achievement. Historically, British judges were selected by the powerful Lord Chancellor, using stringent (but sometimes unstated) eligibility criteria and "secret soundings"--a process of anonymous consultation with unnamed sitting judges. (13) Once a person was appointed a full-time judge, rules prohibited return to private practice. (14) As a practical matter, these forces produced an English judiciary consisting almost exclusively of older white males drawn from the highest ranks of senior barristers--the most elite branch of the English legal profession. (15) Many in the public perceived the judiciary as socially biased and out-of-touch. (16) Some scholars suggest that "[t]he absence of elected judges lends a consistency to the English judiciary which does not exist in the United States, where the selection practice varies from one state to another, and even within a particular state with respect to different levels of the judiciary." (17) Judges were drawn only from the ranks of barristers, who until recently had exclusive rights of audience to participate in courts as advocates. Solicitors and other legal professionals have incrementally been granted rights of audience, starting with the lowest level of courts. Upon establishing proper qualifications, individual solicitors can serve as advocates in the highest courts. Although the most rigid distinctions between the two branches have diminished, formal distinctions relating to advocacy stature and court dress remain. (18) The Constitutional Reform Act 2005 ("the Act") may be the "single most fundamental and radical change ... in over three hundred years." (19) The Act transferred the Lord Chancellor's judicial functions to the Lord Chief Justice, who serves as the President of the Courts of England and Wales; reaffirms the principle of judicial independence; and establishes a Supreme Court of the United Kingdom. …

Poverty, Inequality, and Class in the Structural Constitutional Law Course

Abstract: I. INTRODUCTION Poverty, economic inequality, class, and distributional justice are issues embedded in our constitutional history. They have animated important developments in our constitutional understandings and hold deep, though frequently unacknowledged, significance for constitutional theory and doctrine. Historically, considerations of poverty, inequality, and class played a substantial role in the framing of the 1787 Constitution and the adoption of the Reconstruction Amendments following the Civil War. (1) During the Great Depression and the New Deal, they sparked the constitutional transformation that accompanied the radical re-conceptualization of national power and public responsibility for the material security of citizens; (2) a generation later, they figured prominently in the "due process revolution" of the 1960s and 1970s. (3) Conceptually, the continued existence of an impoverished class of citizens, politically marginalized, physically segregated, and socially isolated, stands in sharp tension with the core principle of equal citizenship and poses a direct challenge to basic assumptions underlying important areas of constitutional theory and doctrine. (4) The relevance of poverty, economic inequality, and class to a constitutional law course dealing with individual rights ought to be readily apparent. Due process, equal protection, and the First Amendment--to take three prominent examples--provide fertile ground for exploring the significance of poverty to constitutional theory and doctrine. Less obvious, though, is how and whether these issues might be taught through a constitutional course on structure, separation of powers, and federalism. This Article explores some opportunities for integrating poverty-law issues into a structural constitutional law course and offers an argument for why such integration is desirable. Part II canvasses various understandings of the term "poverty law," briefly recounts the apparent disappearance of poverty-law issues from the law-school constitutional canon--as well as from the agenda of liberal constitutional theorists--and argues for renewed attention and re-integration. Part III discusses the overarching significance of poverty and economic inequality to constitutional theory and doctrine and recommends specific topics and cases from the standard structural constitutional law curriculum that offer opportunities for raising and developing poverty-law issues. The Article closes with a brief conclusion. II. As the Symposium (5) asks us to address the role of "poverty law" in the law school curriculum, it seems appropriate to reflect for a moment on the provenance and meaning of that term. Though efforts to address the distinct legal needs of poor people date back to the nineteenth century, (6) it was only in the 1960s that the phrase "poverty law" came into widespread use. The term now carries an array of overlapping meanings. In a fundamental sense, poverty law refers to the new form of legal practice that emerged during the "War on Poverty" of the 1960s, (7) a form of practice that transcended the traditional legal-aid model of providing individual representation in unconnected and usually private-law matters, and instead sought to enlist the law in a systemic effort to achieve social and structural changes that might alleviate poverty itself. (8) In a related sense, poverty law might be understood as a reference to the substantive areas in which lawyers for the poor have carried on this new kind of practice, areas as diverse as welfare law, family law, housing law, consumer law, employment law, and education law (9)--frequently intermixed with innovative theories of constitutional law and administrative law--and the distinctive approaches to those areas dictated by the needs and goals of economically distressed communities and individuals. (10) As a form of practice with transformative aspirations, poverty law might also be taken to mean one or more of the alternative models of lawyering pursued by some poverty lawyers that generally reject the hierarchies of the conventional lawyer-client relationship, favor work in alliance with social change movements, community organizations, and client groups, and envision a more facilitative and collaborative role for the attorney. …

Race and Wealth Disparity: The Role of Law and the Legal "System

Abstract: Many authors in the forthcoming book Race and Wealth Disparities: A Multidisciplinary Discourse assume that law plays some role in the creation and maintenance of wealth disparities based upon race. (1) Yet some lawyers, judges, legislators, professors, and law students would strongly dispute that view. Many legal workers, like other Americans, believe in a legal system that aspires to, and often achieves, neutrality in matters of class and equality in matters of race. (2) They do not view law and the legal system as one way that American society polices race and wealth disparities. Because American law seems removed from race and wealth concerns, legal workers see no place for such considerations in their education or practice. In response to the prevalent view that American law and legal institutions are class and color blind, this Article provides examples of how legal institutions sometimes do create and maintain racialized wealth disparities. The Article offers examples of this phenomenon by examining a sequence of federal judicial decisions, the federal taxing statutes, the role of legal education, and access to legal services. These examples are instructive because they cut across a broad spectrum of components of the American legal system. By revisiting issues of race and wealth in different legal settings from the Constitution to federal cases, the tax system, and legal education and practice, this Article confirms that race and wealth are both involved in legal outcomes and ignored by legal actors and institutions in a systematic way. Legal actors and citizens of all vocations need to look more critically at the American legal landscape and critique the influence of race and wealth. America's foundational aspirations toward equality and neutrality allow legal actors to ignore the effect that race and wealth disparities have upon law and the legal system, even when those actors acknowledge how often law fails to achieve these ideals. Legal realists, (3) critical legal theorists, (4) critical race theorists, (5) feminist theorists, (6) and others have noted the contradiction between legal doctrines and legal realities. Yet, despite its contradictions and failures, the urge towards equality and neutrality creates opportunities for change. As E.P. Thompson observed, "people are not as stupid as some ... suppose them to be. They will not be mystified by the first man who puts on a wig." (7) For Thompson, neutrality and equality provide opportunities to redress an unequal class system even while these concepts also protect ruling class interests. Thompson reasons that a "partial and unjust" law cannot gain popular support and so is not useful in maintaining class hierarchy. (8) Thus, the aspiration for universality and equity can sometimes force law to follow its "own logic and criteria of equity." (9) THE AMERICAN CONFLICT BETWEEN EQUALITY, NEUTRALITY, AND ASSIGNED RACE ROLES From its beginnings, the American legal system has articulated two distinct, yet contradictory, views of human relations. The Declaration of Independence aspired to equality among people and neutral application of law. (10) Yet at the same time, Article I, section 2 of the United States Constitution provided that the census shall count "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." (11) This constitutional provision allocated roles by race for the construction of political rights: Indians outside American society; black slaves; and white male full citizens, whether free or bound for a term of years. Ironically, neutrality and equality can support subordination and hierarchy. Anatole France illustrated this point when he sarcastically applauded the majestic equalitarianism of the law, which "forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. …

Rethinking judicial selection: a critical appraisal of appointive selection for state court judges

Abstract: KEYNOTE ADDRESS FORDHAM UNIVERSITY SCHOOL OF LAW FRIDAY, APRIL 7, 2006 I appreciate very much the opportunity to speak at this program on what makes for a good appointive system. My involvement with the subject of judicial selection comes from two roles. From 1987 to 1990, I chaired a New York State Commission on Government Integrity, (1) which Peter Bienstock was the executive director of. (2) Richard Emery, who is here, was a distinguished member of that commission, (3) which, when it concluded its work, recommended the abolition of the elective system for selecting New York State trial judges. (4) The ideas put forward did not prevail at the time, certainly, in terms of political change. (5) I am certainly happy that the views of that commission, Norman tells me, have contributed to his own thinking on the subject, and perhaps that of others. (6) More recently, I have been chairing a commission appointed by Chief Judge Kaye with a mandate of promoting and enhancing confidence in judicial elections in this state. (7) When she asked me to chair this commission in the fall of 2002, she said, "Don't get hung up with appointive systems and changing the elective system and the idea of amending the New York State Constitution, because you know there's no support for that." Finding out what we could do to promote confidence in judicial elections was the task and assignment of our commission, a commission of twenty-nine citizens and judges--a lot of different backgrounds, from every part of the state. (8) We made a number of recommendations, (9) some of which have been adopted by administrative rule and by the Court of Appeals, through its rulemaking authority and supervisory functions, with respect to the court system. (10) But many recommendations that we made can only be implemented by the Legislature, and the Legislature has so far been reluctant to embrace any change in the elective process, with one exception having to do with campaign filings being sent to a central office rather than having to search throughout fifty-seven counties for information as to what is going on in the elective process in the state. (11) When Norman invited me to participate in today's program, I responded by email as follows (I'm not sure what was on my mind when I gave him this response, but this is what I said): "What would you think of a philosophical reflection by me on the role of a judge in our society and why it is important to always look at and try to improve the way we select our judges, notwithstanding the enormous resistance to any change from public leaders, political party officials, the bar, and the people themselves, who do not vote in elective systems or get much involved in appointive systems, except for the various special-interest groups? Everyone seems to have his own idea of reform, as I have discovered, leading to no consensus or even any real attempt at consensus, thereby keeping in place a failed system." I concluded my email by saying, "Are we tilting at windmills?" Norman called me immediately and asked me to explain my email. I now do so. I start with a personal reflection. I have been a member of the bar for forty-five years (and I suspect that I am joined by at least a few of you) and have spent time in almost all those years on the subject of government reform--ethics reform, campaign finance reforms, voter participation reforms, judicial selection reforms, and the like. These are not subjects for the short-winded or for the faint of heart. I have noticed in all of those efforts the different points of view that manifest themselves, the difficulty of groups compromising deeply felt positions, the intense resistance by those with political power to change the status quo and give up the advantages they believe they have under the present system, and, most noticeably, the absence of a public groundswell in support of specific changes. …

Expressive Merchandise and the First Amendment in Public Fora

Abstract: INTRODUCTION People create expressive materials all the time, in endless variety. These materials may express political or ideological affiliation, aspirations, attempts at persuasion, social or cultural commentary, religious devotion or righteousness, or even private assertions of identity, passion, and dread. "Expression," commonly defined as "an act, process, or instance of representing in a medium," (1) is broad enough to include both a boisterous parade of thousands (2) and an individual's secret diary. (3) Some expressions are and always remain private, but those that enter the public sphere may come into contact with--and conflict with--the expressions of others, and the rules and regulations of social intercourse. (4) The desire to make public expressions is not limited to individuals or groups with a persuasive or proselytizing purpose; expressions may be aired in public simply as an assertion of self or to create awareness or confrontation. (5) Public expressions can take many forms, such as parading, rallying, distributing leaflets, (6) hanging posters, (7) giving soapbox speeches, (8) public musical performance, (9) and selling ex materials, (10) some of which have found protection under the "free speech" clause of the First Amendment of the United States Constitution. (11) Cities, municipalities, and other kinds of local governments have the responsibility for allocating and maintaining public space so that it can be used by the citizenry that pays for it, without trampling the individual rights of the citizens who want to make such use. (12) Since two parades may not occur at the same time in the same place, cities must necessarily regulate the use of public space in such a way that at times inconveniences, delays, or mutes some public expression. (13) From this fact of civic responsibility, a judicial doctrine has developed to permit regulations on the time, place, and manner of public speech protected by the First Amendment. (14) The test, which will be discussed in greater detail below, generally permits cities to create reasonable restrictions on the time, place, and manner of public expression, so long as the restrictions do not touch the content of the expression, and are "reasonable." (15) What is reasonable depends in part on the forum at issue; (16) this Comment will focus on contentions over what are known as "traditional public fora" such as streets and sidewalks. (17) Time, place, and manner restrictions on the use of traditional public fora are subject to intermediate scrutiny (18) by the courts, which requires a determination as to whether the regulation is narrowly tailored to promote a city's legitimate interests, and whether there are adequate alternatives for people affected by the regulation to conduct their expressive activity. (19) Cities have an interest in limiting the number of people expressing themselves in public areas because unrestrained expressive activity could lead to uncontrollable conflict between individuals or groups over space, volume, aesthetics, equal access, viewpoint, and other points of contention. (20) Thus, there is conflict between those who want access to public spaces in which to conduct expressive activities, like sidewalks, and the cities in charge of maintaining those sidewalks that wish to exercise control and restraint on that expressive activity--not necessarily because of the substance of the expression, but merely because the expression exists. Courts have struggled to strike a balance between the interests of individuals and cities with the application of intermediate scrutiny to content-neutral time, place, and manner restrictions, and several variations have emerged. (21) This Comment will examine the breadth of those approaches as they affect the determination of what expression triggers First Amendment protection. This issue is timely in light of a recent decision handed down from the Second Circuit Court of Appeals, Mastrovincenzo v. …

A view from the ground: a reform group’s perspective on the ongoing effort to achieve merit selection of judges

Abstract: INTRODUCTION "[J]udicial reform is no sport for the short-winded," (1) has always been a catch phrase used to demonstrate that those seeking judicial election reform must be patient and must persevere This description captures not only the lengthy constitutional amendment process required to institute judicial selection reform, but also the challenges that arise during the course of efforts to reform a fundamental governmental structure This Essay explores some of these challenges as well as some of the solutions the nonprofit, court reform organization Pennsylvanians for Modern Courts ("PMC") has developed to meet them The composition and appointment of members to the nominating commission responsible for screening, evaluating, and recommending candidates for nomination to judicial office presents the most challenging area This Essay, therefore, focuses mostly on this area, although it also identifies challenges arising in relation to other areas of a merit selection system (2) It describes what has succeeded and what has not, in an effort to share some of the lessons PMC has learned with others who seek judicial selection reform Section I of this Essay addresses briefly the history of judicial selection in Pennsylvania Section II describes the judicial selection reform movement and the background and growth of PMC, the leading agent for judicial selection reform in Pennsylvania Section III describes the merit selection system that PMC has been trying to achieve for Pennsylvania's appellate courts and, more recently, for the trial courts in Philadelphia County Sections IV and V enumerate the challenges PMC has faced along the way, as well as the measures it has taken to meet those challenges The Essay concludes with some advice for others seeking to achieve judicial selection reform in their own jurisdictions I THE HISTORY OF JUDICIAL SELECTION IN PENNSYLVANIA The Pennsylvania Constitution provides for the method of judicial selection in article V, section 13 of the state constitution: "Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve" (3) Two consecutive sessions of the Senate and the House must pass any proposed constitutional amendment to change the manner of judicial selection; each session lasts two years, and the identical amendment must pass each time by a majority vote (4) Following each passage by the legislature, notice of the proposed amendment must be published across the state (5) Once this has occurred, the electorate must approve the amendment in a statewide referendum vote (6) After considerable debate, Pennsylvania's first state constitution in 1776 provided for a judiciary with seven-year terms--subject to removal by the General Assembly for "misbehavior" or "maladministration"--appointed by a twelve-member Executive Council, whose members were elected by voters of the state's twelve counties (7) In the Constitution of 1790, most notable for creating the position of Governor to replace the Executive Council, the new chief executive was given the power to appoint judges who were to serve "during good behavior" (8) The judicial appointive system came under attack during the administration of President Andrew Jackson (1829-1837), amid the growing sentiment that all governmental office holders should be accountable to the voters and, therefore, elected (9) During Pennsylvania's 1837 Constitutional Convention, efforts to move towards an elected judiciary were unsuccessful (10) Nevertheless, the 1838 Constitution approved by the voters reduced the tenure of supreme court justices from life to fifteen years (11) The critics of judicial appointments were not deterred and brought their demands for election to the chambers of the state Senate and House …

How the pickers pick: finding a set of best practices for judicial nominating commissions

Abstract: States and municipalities still seek to build upon and improve the judicial selection methods used by prior generations. Like most institutional arrangements that are responsive to the needs of society, judicial selection demands an on-going process that borrows and profits from the past, meets the needs of the present and remains flexible to permit future adaptation. (1) At the core of any system of justice is the judge, the arbiter of society's conflicts. While good judges cannot ensure a just society, arguing that the quality of the judiciary is unrelated to the quality of justice proves difficult. (2) Unqualified or unsuitable judges will lead to capricious justice, where inconsistency, inequality, and arbitrariness undermine the force of law. Arbitrary decisions degrade the meaning and purpose of democratic government and are anathema to the rule of law. (3) The debate over methods of judicial selection reflects, at its heart, a debate about the value of law as a governing force. The goal is to produce a judiciary worthy of the respect and obedience of the community, thereby promoting consistency, stability, and fairness. There is a continuing need to reevaluate and assess methods of judicial selection to ensure a qualified bench and advance the cause of justice. Traditionally, the debate over methods of judicial selection has centered primarily on the competing ideals of judicial independence and judicial accountability. An independent judiciary, free from political constraints that impede fair and impartial decision-making, ensures that judges' decisions will reflect the case facts and the law. Every citizen benefits from a judicial system that accurately and effectively addresses conflicts in a neutral forum. Unlike officials in the legislative and executive branches, who are meant to be the representatives of the people, judges occupy a unique position in that they are responsible to the law. A purely independent judiciary, subject to no limits or checks on its authority, however, may run afoul of the law without any serious consequences. (4) Therefore, judicial accountability is both necessary and desirable to provide checks on the powers of the judge. (5) Finding an appropriate balance is (for obvious reasons) difficult. Judges need decisional independence if they are to be faithful to the law, yet constitutional government demands institutional accountability. (6) Constitutional government depends on a judiciary populated with judges who not only understand the law, but will apply the law fairly and faithfully. These conflicting goals form the backdrop for the ongoing debate over how to best select judges. Since the American Revolutionary War, there have been heated debates about the best methods for state judicial selection. In the early 20th century, the "merit selection" plan was proposed. (7) This method was thought to balance the competing ideals of independence and accountability by combining features of appointment and popular election. (8) From 1940 until 2000, the "merit selection" plan was adopted in some form by thirty-two states and the District of Columbia, (9) the most prominent judicial reform movement since the Jacksonian era. "Merit selection" systems use a bipartisan nominating commission made up of lawyers and laypersons that makes recommendations to the appointing authority. (10) Today, as we reassess appointive methods of selection, a closer examination of existing judicial nominating commissions can provide vital insights to advance our discussion. To that end, the Article proceeds in five parts. Part I provides a brief history of judicial selection in the states, with particular attention to the development and adoption of appointive methods (including the so-called "merit selection" method). Part II examines the reaction to these merit selection plans and addresses common questions about the role and function of judicial nominating commissions. …

On the Validity and Vitality of Arizona's Judicial Merit Selection System: Past, Present and Future

Abstract: This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to "traditional elections." (1) Part I of this Article sketches the history of Arizona's merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona's merit selection system, Part III describes the current status of merit selection in Arizona and offers some fresh perspectives on the value of merit selection, with suggestions to assure its preservation in Arizona and its implementation elsewhere. The Article concludes that merit selection, while not a perfect system, is operating commendably and has significant advantages over a system of traditional, partisan or non-partisan elections. I. BRIEF HISTORY OF JUDICIAL ELECTION AND SELECTION IN ARIZONA A. Judicial Appointments and Elections Before Merit Selection Before the implementation of the merit selection system, (2) voters elected judges for limited terms. Vacancies in office prior to election--whether by death, retirement, or the creation of new judgeships--were temporarily filled until the next general election by gubernatorial appointment. (3) In practice, however, vacancies were filled far more often by these appointments than by popular election. In 1973, sixty-two percent of the sitting Superior Court (4) judges were first appointed--twelve of the previous thirteen judges appointed in Maricopa County were appointed by the governor. (5) Gubernatorial appointments were not subject to senate confirmation or any other checks and balances. (6) Nevertheless, an overwhelming majority of all judges were gubernatorial appointees who remained on the bench. From 1958 to 1972, over one-half of the candidates had no challenger on the ballot, and two-thirds of those who did won their contest. (7) Of the six defeated judges during that same period, three gained reappointment and a fourth was subsequently reelected to an appellate court. (8) Superior Court judges were elected for terms of four years. Appellate court judges (9) were elected for terms of six years. (10) Although judicial elections were statutorily declared "non-partisan" because political party affiliation was not indicated on the ballot, candidates' names usually reached the ballot through party primaries. (11) While ethical restraints generally prevented judicial candidates from campaigning with respect to specific issues, many nonetheless ran on platforms supporting longer sentences and harsher treatment of criminal offenders; this despite the fact that most or all of their post-election judicial service would be devoted to non-criminal matters. (12) The reality of judicial politics forced most observers to acknowledge that typical voters were unaware of the candidates, the issues, or even the existence of contested judicial races. (13) Campaigning proved cost-prohibitive for judges who made meager salaries. In metropolitan areas, challenged incumbent judges were assigned newsworthy cases in order to increase their exposure in the news media. (14) Incumbent judges had additional practical advantages over challengers: incumbents were identified in campaign advertising as "Judge," and voters often had a tendency to vote to maintain the status quo. (15) While political parties were permitted to support various judges, the Republican party reportedly provided more help to judicial candidates than the Democratic party provided. (16) From 1958 to 1972, the incumbent was defeated in only 10 out of 215 judicial elections. (17) In other words, over ninety-five percent of the time, the election did not change the composition of the bench. …

A cancer on the republic: the assault upon impartiality of state courts and the challenge to judicial selection

Abstract: The story is a familiar one. On September 17, 1787, in Philadelphia, citizens gathered outside Independence Hall as word spread that the deliberations of the Constitutional Convention had concluded. Seeing Benjamin Franklin emerge from the building, a woman in the crowd asked him: "[W]hat have we got--a republic or a monarchy?" (1) Without hesitation, Franklin responded, "A republic ... if you can keep it." (2) Today, we are not keeping the republic envisioned by the framers; we are losing it. The framers created a distinctive republic--a constitutional republic--in which representative government was combined with the constraint of a written charter. Power was dispersed among three separate, but connected, branches of the government, and fundamental rights of individuals and minorities were protected against usurpation by majorities. For more than two centuries, this republic has in all respects depended for its vitality upon the impartiality of an independent judiciary. At national and state levels, however, the concept of judicial impartiality is now under assault. Disregarding or dismissing the differences between the judiciary and the other, more partisan branches of government, powerful economic and political forces across the spectrum are now competing to control the composition of the courts, in order to create a judiciary aligned with their special interests. This assault upon judicial impartiality is a growing cancer upon our constitutional republic. The well-publicized battles between the President and the Senate over Supreme Court nominations and other federal appointments have, until recently, diverted attention from the spread of this cancer among the state courts. Similarly, at both federal and state levels, much literature has explored and counterpoised the "independence" and the "accountability" of the judiciary, rather than focusing on a more fundamental, unique, and essential feature of the third branch of government: impartiality. This Article examines judicial impartiality in the context of the state courts. Section I endeavors to show how impartial state courts are essential to fulfilling the constitutional guarantees of a republican form of government and of due process and equal protection of the law. Section II describes the current assault upon the impartiality of state courts, and Section III suggests several ways in which this cancer on the republic can be slowed or reversed--by specific actions within, or related to, the judicial selection process. I. THE IMPARTIALITY IMPERATIVE The genius of the constitutional republic created at Philadelphia lay in its establishment of a representative democracy, coupled with mechanisms for combating two historic forms of tyranny: the oppression of the many by the few, and the oppression of the few by the many. To prevent the oppression of the many by the few, the framers created a structural separation of powers. In THE FEDERALIST PAPERS, where Alexander Hamilton, James Madison, and (to a lesser degree) John Jay advocated successfully for ratification of the Philadelphia document, the dispersion of power received detailed attention. (3) In THE FEDERALIST NO. 9, (4) for example, Hamilton argued that the "science of politics" has advanced, revealing that a "distribution of power into distinct departments" can provide the "means ... by which the excellencies of republican government may be retained and its imperfections lessened or avoided." (5) Thus, the legislative, executive, and judicial functions of government would be performed separately. Failure to maintain this separation, wrote Madison in THE FEDERALIST NO. 47, (6) would result in an "accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, [that] may justly be pronounced the very definition of tyranny." (7) Focusing on the judicial branch in THE FEDERALIST NO. …

A Price on Volunteerism:The Public Has a Higher Duty to Accommodate Volunteers

Abstract: [N]o matter how big and powerful government gets and the many services it provides, it can never take the place of volunteers. --Ronald Reagan (1) A volunteer is a person who can see what others cannot see, who can feel what most do not feel. Often, such gifted persons do not think of themselves as volunteers, but as citizens in the fullest sense, partners in civilization. --George H. Bush (2) Volunteers are essential to the proper functioning of America. Non-profit organizations normally do not have enough resources to retain the requisite number and quality of paid staff members. (3) More important than increasing the size of the workforce, however, are the special skills and interests that volunteers often bring to an organization. The personal attachment, perspective, and dedication that these volunteers offer are very distinct from the services of a typical employee. (4) Volunteers often have personal experience in the non-profit organization's cause and are successful in other aspects of their lives. In fact, business executives and celebrities often volunteer many hours in support of their favorite causes. (5) Instead of paying their volunteers, organizations often compensate volunteers by providing them with benefits. The benefits can range from perks such as access to facilities to the "warm, fuzzy feeling" that comes from spending time working with the beneficiaries of the organization. Both parties normally see the relationship as an equal exchange of services: the volunteers provide their time and energy in exchange for access to the organization's people and facilities. One such organization that utilizes the services of volunteers is the Muscular Dystrophy Association ("MDA"). The MDA, funded only by private donations, provides research services, various forms of educational outreach, and community services including summer camps for children with muscular dystrophy. (6) Of the two million volunteers that help the MDA annually, the MDA's famous chairman, comedian Jerry Lewis, is its "number-one volunteer." (7) Despite the vital position many volunteers occupy, the United States Court of Appeals for the Tenth Circuit decided that the Americans with Disabilities Act ("ADA") does not protect these volunteers from discrimination. In Bauer v. Muscular Dystrophy Ass'n, the court ruled that an MDA summer camp is not required to accommodate volunteers with disabilities--even volunteers with muscular dystrophy. (8) According to the court, the MDA's requirement that all volunteers, including administrative volunteers, have the ability to lift and care for a camper is not discriminatory. (9) People with disabilities have been protected from discrimination since the enactment of the ADA in 1990. (10) The drafters of the ADA intended it to "provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." (11) To achieve this goal, the ADA protects against, among other things, discrimination in places of public accommodation under Title III (12) and discrimination against employees under Title I. (13) Places of public accommodation include private entities such as "a place of recreation," "a place of education," and a "social service center establishment." (14) Title III, for example, would protect a child with disabilities who attends a summer camp. Under Title I, a protected employee is defined as "an individual employed by an employer," and an employer is a "person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks ... and any agent of such person." (15) Title I, therefore, would protect an employee working at a summer camp. The ADA, however, does not clearly address where volunteers fit into this structure, and this omission has led to the failure to accommodate volunteers as exemplified by the Bauer decision. …

Choice of Law and Predictability of Decisions in Products Liability Cases

Abstract: The tale of American choice of law principles has become the story of a thousand and one inconsistent tort cases. (1) --Alan Reed INTRODUCTION The unique political landscape of the United States, where each state is a sovereign over its territory and can enact its laws within broad limits of the federal Constitution, leads to the lack of "uniformity in rules of law from state to state." (2) In cases that implicate the legal systems of two or more states, courts have to decide which law will govern the case, but the choice of law rules, as well as their application by different courts, are all but uniform. (3) Choice of law questions often arise in products liability cases because the product in question was produced in one state, purchased in another state, and caused an injury in yet another state. (4) This presents a significant challenge to courts, especially in mass tort actions arising from a long-term exposure to harmful substances in many different states. (5) Before a court can proceed on adjudicating the merits, it needs to decide which law to apply, and in many cases the court's choice of law decision may mean the difference between dismissing the case on a certain motion and allowing the plaintiff to proceed with discovery and trial. (6) It is not surprising that in such cases parties vigorously litigate choice of law questions, and the appeals process often reaches the state high courts or even the Supreme Court of the United States. (7) Lack of uniformity in the choice of law methodologies that American courts use, combined with differences in the rules of law among states, lead to highly inconsistent and often unpredictable decisions. (8) Even within a single state, courts often lack a coherent approach to choice of law issues because the state's choice of law methodology provides inadequate guidance to the courts. (9) While the certainty, predictability, and uniformity of results are generally less important in tort cases, in the products liability context, predictability of judicial decisions is an important factor in evaluating business risks associated with the marketing of a particular product. (10) A profusion of laws applicable to mass-produced and mass-marketed undifferentiated products generates substantial costs of compliance and may lead to uncertainty and economic inefficiency. (11) The uncertainty may force manufacturers to forgo development, production, and marketing of otherwise valuable products that might expose them to unpredictable risk. (12) This risk, in turn, may negatively affect the variety of products available to consumers. (13) The utility of products, however, has to be balanced with the need to make products reasonably safe, which prevents manufacturers from externalizing their costs at the expense of consumers. (14) This Comment proposes that it is unrealistic to expect a comprehensive solution to the consistency and predictability of court decisions in the products liability area. Value judgments and policy considerations that underlie court decisions, combined with the wide discretion that modern choice of law methodologies provide, make the uniformity of decisions practically impossible. (15) Part I analyzes the relevant historical background and development of the two prevailing choice of law methodologies for tort cases--the traditional rule of lex loci delicti of the First Restatement of Conflict of Laws (16) and the "most significant relationship" rule of the Second Restatement of Conflict of Laws. (17) It shows how the evolution of American society led to changes in choice of law methodologies that sacrificed the need for consistent and predictable choice of law decisions in favor of flexibility and fairness. Part II closely examines the two leading choice of law methodologies and shows how courts in New Jersey and Indiana apply them in tort cases. While New Jersey adopted the Second Restatement approach, Indiana courts still adhere to the lex loci delicti rule. …

Achieving Better Outcomes for Litigants in the New York State Courts

Abstract: Remarks at the Inaguargal Fordham Dispute Reolution Society Symposium “ADR as a Tool for Achieving Social Justice.” \\server05\productn\F\FUJ\34-2\FUJ209.txt unknown Seq: 1 31-MAY-07 10:07 ACHIEVING BETTER OUTCOMES FOR LITIGANTS IN THE NEW YORK STATE COURTS Chief Administrative Judge Jonathan Lippman*

Rethinking Judicial Nominating Commissions: Independence, Accountability, and Public Support

Abstract: Of all the difficult choices confronting societies when they go about designing their legal systems, among the most controversial are those pertaining to judicial selection and retention. (1) I. INTRODUCTION There is no one best way to select judges. (2) Any judicial selection system has both strengths and weaknesses. In order to create the best judicial selection process possible, society must be willing to design and create selection paradigms that result in the best-available individuals taking the bench even though, in the process, some well-entrenched aspects of existing schemes must fall by the wayside. Judges usually take the bench via election or appointment. (3) Regardless of the judicial selection method employed in a given jurisdiction, most judges, even those in states utilizing judicial elections, initially take the bench through appointment. (4) Therefore, it be comes imperative to examine appointive procedures when evaluating the effectiveness of a judicial selection process. This Article focuses on one of the pillars of the appointive process, the judicial nominating commission, although it warrants noting both that some jurisdictions that use judicial elections also use nominating commissions to fill vacancies, and that not all appointive systems utilize nominating commissions. (5) Although this Article eschews any analysis or discussion per se of the election alternative, (6) it suggests that all jurisdictions should have judicial nominating commissions. Naturally, a judicial nominating commission exists to screen and select nominees for judgeships. In discussing nominating commissions, the self-assigned purpose of this Article is to envision and describe a system that more likely will result in selecting the right person for the bench. (7) The task in a good judicial selection system is not simply to fill vacancies, but to select the best candidates for judicial positions. Short of this goal, perhaps at the very least, a well-devised system can eliminate "seriously underqualified" candidates. (8) To accomplish this purpose through the use of a nominating commission scheme, we should strive to develop the ideal judicial nominating commission system. (9) That system should possess (at least) three principal features: it should adhere to democratic ideals; it should maintain as much independence as reasonably possible; and it should enjoy public acceptance and support. Additionally, local conditions and requirements must be considered in designing any commission scheme. Obviously, the needs of the various states and locales differ. (10) Selecting the appropriate judicial nominating commission scheme can be challenging, but effective judicial nomination commissions will greatly aid in the effort to obtain the best judges possible. Almost needless to say, these features and considerations conflict to some extent. Because of the tension between them, they greatly complicate efforts to design an ideal commission. Despite these difficulties, we should not compromise on the principal features of an ideal scheme any more than necessary to reach the best possible balance. (11) A delicate balancing of democratic ideals and independence will garner public support for a judicial nominating commission without over-compromising any of these core principles. This Article consists of five Parts. Part I introduces the topic, briefly explains how I was introduced to the issues being aired, (12) and provides an overview of the three fundamental, principal concerns discussed, namely democratic ideals, independence, and public support. In Part II, the Article explores the process of properly designing a commission system. The first section of Part II identifies the goals for the appointment process and introduces the concept of commission capture. The second section of Part II focuses on the makeup of commissions. It examines potential sources of authority (i. …

Judge Marilyn Hall Patel: A Dedication

Abstract: This introduction dedicates this edition of the Urban Law Journal to the memory of Judge Marilyn Hall Patel. Judge Patel is known as a judge of the greatest independence and integrity, and her opinions reflect both her concern with the judicial craft and her inspiring commitment to justice and fairness.

From Ashcroft to Larios: Recent Redistricting Lessons from Georgia

Abstract: Redistricting is the most nakedly partisan activity in American politics. The decennial activity of allocating political power results in conflict among regional, partisan, racial, and ethnic communities of interest. (1) Political science research generally acknowledges that when one party completely controls the redistricting process it will perpetuate its majority even if doing so unfairly disadvantages the minority party. (2) Tendencies toward political excess are most likely to be deterred when redistricting is done by (1) a non-partisan commission; (2) a divided government, forcing bipartisan cooperation; or (3) the judiciary, working with third-party, neutral mapmakers to check majority excesses. (3) The 2001 Georgia redistricting was a blatant exercise of power by a political majority bent on self-perpetuation. (4) By the mid-1990s, Democrats had ceased to attract a majority of the votes for state legislators, yet they continued to win a majority of seats in both chambers. (5) When confronted with the need to redistrict, Democrats sought not simply to hold their own but to increase their share of the seats. The redistricting led to two judicial challenges, two trips to the U.S. Supreme Court, (6) a modification of the non-retrogression standard of Section 5 of the Voting Rights Act by the United States Supreme Court, (7) and, ultimately, invalidation of the districts for violating the one-person, one-vote principle. (8) In Larios v. Cox, the court implemented a replacement map crafted by a special master named by the three-judge panel. (9) The court largely ignored political factors in deference to traditional redistricting principles and on April 14, 2004, produced a map with population deviations of less than +/-1%. (10) After the implementation of this politically-neutral plan, the Democratic party lost control of the Georgia House of Representatives for the first time since Reconstruction. (11) Statistical patterns present in the 2002 legislative elections, when applied to the demographic and structural changes in the new districts, projected a Republican majority with a shift in the expected partisan majority between ten and thirteen districts. (12) In actuality Republicans gained far more seats, and only about half of the seats changing hands can be attributed to the remap. (13) The remap demonstrates the potential consequences of undoing a partisan gerrymander and helps define the limitations enunciated by the courts regarding their ability to recognize and undo partisan gerrymanders. In this Article, we explore the impact of a court-ordered and implemented re-crafting of state legislative districts in the state of Georgia. First, we explore the notion of "fairness" in legislative redistricting and identify the factors associated with a "fair" map. We then describe the partisan nature of the 2001 Georgia state legislative redistricting and the political consequences of this most effective gerrymander. We also describe the two legal challenges to the Georgia maps--Georgia v. Ashcroft and Larios v. Cox--and discuss the path of both cases to the U.S. Supreme Court. We then explore the expected and observed consequences of the Court-ordered and implemented redistricting that undid the unconstitutional Georgia gerrymander, and draw conclusions regarding the prospect for how court remedies can affect partisan bias in redistricting plans. WHAT ARE "FAIR" LEGISLATIVE MAPS? The controversies arising in redistricting relate to a pair of primary questions: what are the motives of the map-maker, and how do these motives affect the "fairness" of a map? These questions are difficult to address because the notion of fairness is arbitrary and relative. (14) The term "gerrymander" means to craft legislative boundaries for political advantage. (15) In popular parlance, contorted, oddly-shaped districts resembling mythical beasts, windshield-splattered bugs, or elongated barbells are considered to indicate something facially "unfair. …

Poverty Law And Civil Procedure: Rethinking The First-Year Course

Abstract: The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons. (1) This Essay explores whether and how to integrate issues of poverty and inequality into the standard first-year course on civil procedure. I do not write on an empty slate: conferences and journals have devoted time to this question, which implicates some of the foundational issues of procedural justice. (2) At least one commentator posits that civil procedure, unlike constitutional law, "is not seen as a natural hotbed of ideological controversy," and so offers a neutral territory for the exploration of social justice concerns. (3) My view is somewhat different. Precisely because civil procedure connotes a neutral framework for dispute resolution, some colleagues might see efforts to integrate a poverty perspective into the first-year course as an example of special pleading in a system that ought to value impersonality, impartiality, and the separation of law from politics. (4) The proposed approach therefore demands some justification--quite apart from social justice concerns that might motivate fellow travelers. (5) Support for the project can be drawn from both the goals of legal education and the role of lawyers in a democratic society. First, asking students to assess the current civil justice system from the perspective of poverty and inequality comports with the basic aims of the first-year curriculum: to learn to think critically about legal arrangements and to assess dispassionately whether existing rules promote the stated goals of fairness and efficiency for all litigants. Second, placing procedural rules in a social context helps students recognize that procedural rules, like all legal rules, result from political choices that cannot be separated from social values. (6) Finally, at a time when dissatisfaction with the justice system runs high, (7) training our students to think about possible improvement is a worthy and even essential component of a law school's mission. As Liam B. Murphy explains, "the responsibility that people have in respect of justice must be to support and bring about just institutions .... Since institutions are not agents and don't actually have any responsibilities at all, it is only people who can ensure that institutions satisfy principles of justice." (8) Part I of the Essay sets out a thematic framework for a "standard" civil procedure first-year course that connects constitutional and non-constitutional principles to concerns of poverty and inequality. Part II offers a repertoire of doctrines, cases, and statutes, largely taken from a traditional civil procedure casebook ("the Casebook"), (9) which can be used to illustrate these themes. One might legitimately question whether the formal rules of civil procedure hold any significance for the poor, given the trend toward "consensual" procedural rules, alternative dispute resolution, and a general inability of under-resourced litigants to adjudicate meritorious claims. (10) However salient this criticism, the first-year curriculum emphasizes adjudication as a public process subject to procedural rules, and I draw my examples from the traditional set of materials. Part III briefly concludes by linking the justification for the proposed approach with the broader mission of legal education. I. USING ISSUES OF CLASS AND POVERTY LAW TO EXAMINE PROCEDURE'S CORE CONCEPTS Kevin R. Johnson observes, "[f]or many students, Civil Procedure is the first--and thus a very important--exposure to constitutional law in law school." (11) The civil justice system is one of the major public arenas in which constitutional questions are raised, litigated, and resolved. It is also an arena defined and framed by constitutional understandings. …

Re-Conceptualizing Poverty Law Clinical Curriculum and Legal Services Practice: the Need for Generalists

Abstract: --legal education sharpens the mind by narrowing it. (1) Introduction The Specialization of Poverty Law How Specialization Cheats Impoverished Clients Community-Based, Client-Centered, and Holistic Legal Services Require Generalists Providing General Legal Services--One Clinic's Experience Advantages and Criticisms of a "Generalist" Clinical Model Conclusion INTRODUCTION We are all familiar with the now romantic-seeming, "Lincolnesque" vision of the generalist lawyer, the trusted counselor who knows you and your family, who drafts your will, defends your teenager in criminal court, and files and tries your breach of contract case. (2) We are also conditioned to believe that the existence of such a lawyer is relegated to the past and that any lawyer whose practice conforms to this model is inefficient, ignorant, and likely guilty of malpractice. (3) There are many reasons for the prevailing view. The trend toward specialization has been well-documented, and is pervasive. (4) Many of us live and work in an environment that is always electronically connected. As a result our clients and we expect instantaneous answers and advice on complex legal matters. Many of us live in large metropolitan areas with correspondingly large national and international law firms whose personnel and even firm identities are in constant flux. There is no trusted solo practitioner down the street or around the corner in this environment, nor could such a lawyer provide us with the immediate answers or information on a specialized topic that we have come to expect. (5) This change has not only affected lawyers and clients in a business setting; it also has infiltrated the provision of legal services to the poor, and our ideas about clinical legal education. (6) This Essay discusses how the legal profession and clinical legal education became so specialized. The Essay argues that specialization hurts impoverished clients, and argues for greater recognition of the value of poverty law "generalists." Finally, this Essay identifies several models for the provision of more general poverty law services and discusses the use of an exemplary model in a law school clinic. THE SPECIALIZATION OF POVERTY LAW Poverty law is not a specialized field. Rather, as described by Antoinette Sedillo Lopez, it is a "shorthand for the myriad areas of law that affect poor people." (7) Excluding the criminal justice system, those myriad legal fields include the areas of public benefits, housing, estate and guardianships, family, bankruptcy, consumer, employment, small business, and in increasingly larger parts of the nation, immigration. (8) Each of these broad categories can have multiple potential areas for sub-specialization. For example, the category of family law for poverty lawyers often includes domestic violence, child guardianships, child support, adoption, divorce, child abuse and neglect, foster care, and the termination of parental rights. (9) A daunting list, even for experienced lawyers? Absolutely. And that is why lawyers and legal offices serving poor clients have increasingly specialized and narrowed the scope of the legal services they provide. (10) In some instances, entire organizations providing legal services to impoverished clients specialize in only one area of law. (11) Other large legal services organizations have compartmentalized their services, dividing themselves into specialized practice groups that resemble those of large law firms. (12) The Legal Aid Foundation of Los Angeles, California's largest and oldest legal services provider, boasts eight specialized "units" of practicing attorneys and staff. (13) Wisconsin's largest low income legal services provider, Legal Action of Wisconsin, Inc., has five separate specialized units. (14) Greater Boston Legal Services' website states, "Our staff of 68 attorneys and 27 paralegals is divided into areas of legal expertise to best address the problems faced by people living in poverty. …

Wyoming’s judicial selection process: is it getting the job done?

Abstract: INTRODUCTION The rights guaranteed by the United States Constitution to the citizens of our country mean little without an independent judiciary to enforce those rights. As Alexander Hamilton commented in THE FEDERALIST PAPERS, the method by which judges are selected unavoidably impacts their ability to function independent from political influence. (1) In general, the goals of a judicial selection system should be to encourage judicial independence, recruit the highest quality judiciary, provide for accountability, create a representative judiciary, and maintain public confidence in the fairness and integrity of the judicial system. (2) Any time politics are inserted into the judicial selection process, judicial independence is compromised. (3) Public perception of political influence on the judiciary, whether through money or political affiliation, undermines the citizenry's confidence in the integrity of the system. In the words of the primary author of Wyoming's judicial selection system, R. Stanley Lowe, an orderly society needs a judiciary that commands respect. (4) In discussing the uniquely American concept of separation of powers, James Madison noted that for each branch of government to have a "will of its own," the members of each branch should have "as little agency as possible in the appointment of the members of the others," ideally requiring the people to select the members of each branch. (5) Madison recognized that selection of the judiciary in that manner would be "inexpedient," however, in part because the primary concern in the selection of the members of that branch of government should be qualification. (6) The rejection of public election of the judiciary left appointment as the only viable method of selection. Appointment was deemed sufficiently compatible with the concept of separation of powers because, as the founders noted, life tenure for federal judges "must soon destroy all sense of dependence on the authority conferring them." (7) Thus, although federal judges are inherently affected by the political process at the outset of their judicial careers because they are appointed by the chief executive and confirmed by the Senate, lifetime appointments minimize political influence over time. (8) Many state constitutions did not, however, follow the federal model. (9) Thousands of state judicial positions are filled every year across our country by varying methods of selection, including appointments by the chief executive, partisan elections, non-partisan elections, and, as in Wyoming, gubernatorial appointments from lists of nominees chosen by judicial nominating commissions, usually followed by retention elections. (10) Without life tenure, how can states select judges who are independent? The answer lies in the judicial nominating commission form of judicial selection. The advantage of the judicial nominating commission system, as opposed to politically-based systems such as elections or pure executive appointment, is that it focuses on the qualifications of the judicial candidate, rather than his or her political or personal connections. (11) The commission-based system is designed to emphasize the factors which should be relevant in choosing a judge, including judicial temperament, intellect, training, integrity, and experience. (12) The purpose of this Article is to explain Wyoming's commission-based judicial selection process, study how it has performed over the years, see what lessons we can learn from that history, and consider how it can be improved. Throughout this Article, the focus will be on what attributes of a judicial selection system best result in an independent, accountable, and vibrant judiciary. A HISTORY OF WYOMING'S JUDICIAL SELECTION PROCESS Prior to 1972, judges in Wyoming were elected in non-partisan elections. (13) Elected judges, like all political officials, were chosen by popular vote and not, necessarily, on qualifications or merit. …

Restorative Justice: How Law Schools Can Help Heal Their Communities

Abstract: I. INTRODUCTION--THE LIMITATIONS OF THE CRIMINAL JUSTICE PARADIGM A. Azim Khamisa's Story (1) On Saturday night, January 21, 1995, nineteen-year-old Tariq Khamisa was delivering pizzas at DeMille's Italian Restaurant in San Diego, California. His pizza-delivery job helped pay some of his college expenses at San Diego State University. He was getting ready to leave for the evening when his boss asked him to make one last delivery. Reluctantly, Tariq agreed. Before doing so, he stopped by his girlfriend's house to bring her a soda. (2) Tariq drove to the address, a large housing project on Louisiana Street in San Diego's working-class North Park neighborhood. He searched in vain for Unit D. After knocking on several doors, he realized there was no Unit D--the order had been a hoax. As he walked back to his Volkswagen, a boy pointed a gun at him and said, "Pizza man, give me those pizzas." Tariq ignored him and kept walking back to his car. He tossed the pizzas inside and started to drive away. The boy fired. The nine-millimeter slug shattered the car window, ripping through Tariq's arms and chest, killing him immediately. (3) The police easily located the assailant, Tony Hicks, who was already in custody for stealing his grandfather's gun. Tariq's father, Azim, was devastated by his son's senseless murder. The case quickly became high-profile and political because Tony was the first fourteen-year-old to be prosecuted as an adult under California's new, tougher laws enabling juveniles to be prosecuted in the adult criminal justice system. (4) The case engendered much debate--some supported the law while others opposed it. (5) Azim did not take part in the debate, which to him seemed irrelevant. No matter what happened to Tony, it would not bring his son back. My thoughts and emotions began to return the day after we buried Tariq. One of the first emotions I felt was anger. However, it was not directed at Tariq's assailants. The entire society was the object of my rage. I wondered how it was that in our great country children too young to have a driver's license are not too young to carry a gun. Why do we spend billions on wars on foreign soil or conquering space, when every day, in our own backyard, our defenseless children are wiped out in a frenzy of bizarre violence? Why couldn't our intelligent nation, the world's only superpower, get its priorities right? How many more children would have to be sacrificed? When did we start accepting these killings? And why did we allow them to continue? (6) Tony was sentenced to twenty-five years to life in prison, but the harsh punishment did nothing to ease Azim's pain: Sentencing Tony to prison did not make me feel whole. It did nothing to bring Tariq back. We need a justice system that is more holistic. We have to look at where violence comes from. Parents are not only responsible. All of society is responsible. I was starting to think more about the concept of restorative justice, especially for juveniles. Our system is based on retributive justice, which punishes the offender and ends there. Restorative justice seeks to make both parties whole. We need to be realistic that if we do not change offenders, we as a society will continue to suffer. (7) B. The Families Make Contact With the help of the district attorney, Azim contacted Tony's grandfather and guardian, Plex Ferguson, a very unusual thing to do. Through Plex, he began corresponding with Tony in prison, and eventually chose to meet Tony in person. Azim believed that Tony's ability to change was dependant on Azim's ability to forgive him: Unabated anger directed at the perpetrator harms us, however, because anger is a very strong emotion and can become an all consuming passion within us. It fills us with hatred and tension and blocks out love and joy. …

Election Fraud and the Initiative Process: A Study of the 2006 Michigan Civil Rights Initiative

Abstract: TABLE OF CONTENTS Introduction I. The Michigan Civil Rights Initiative: Getting on the Ballot A. Signature-Gathering for the Michigan Civil Rights Initiative B. State Review of the Signatures Gathered for the MCRI C. Federal Court Intervention II. Fraud in Signature-Gathering: Cause for Concern? A. Election Fraud in the Initiative Process and Its Threat to the Health of Our Electoral System III. Responding to Signature-Gathering Fraud on the State Level A. Evaluating the Signatures: An Inference of Fraud? B. Collecting the Signatures: Reducing Fraud by Eliminating Fee-Per-Signature Policies IV. Responding to Signature-Gathering Fraud on the Federal Level Conclusion INTRODUCTION As Ruthie Stevenson, President of Michigan's Macomb County chapter of the NAACP,(1) exited her neighborhood post office, an individual approached her and asked her to sign a petition about affirmative action that would "'make civil rights fairer for everybody.'" (2) The petition circulator informed her that Ruthie Stevenson supported the infamous petition. (3) Ms. Stevenson was taken aback, knowing that she opposed the petition, which sought to limit affirmative action policies in Michigan. Ms. Stevenson informed the circulator that she was Ruthie Stevenson and that she did not support the ban of affirmative action. (4) The petitioner walked away without responding to Ms. Stevenson's request that they "stop using [her] name to garner signatures." (5) Subsequent testimony before a federal court revealed similar events occurring throughout Michigan in 2004 and 2005. In Detroit, a few miles south of Macomb County, another circulator approached Lawrence Fears and asked him to sign the same petition. (6) Mr. Fears attempted to read the petition but was unable to do so because, in his words, "the language was ... obscured by padding and tape attached to the clipboard." (7) Mr. Fears asked the circulator what the petition concerned. The canvasser responded that she was collecting signatures to place an initiative "to keep affirmative action" (8) on the ballot in the November 2006 elections. Mr. Fears had heard about a ballot initiative that was being circulated to do away with affirmative action, an effort that Ward Connerly led and identical to efforts Connerly waged in California (9) and Washington. (10) Mr. Fears asked the circulator if the petition "had anything to do" with Connerly. (11) The circulator told him "that it did not and that she was 'not trying to do that.'" (12) Mr. Fears, still unable to decipher the unclear language of the initiative, relied on the circulator's representation of the initiative and offered, with his signature, what he thought was his support for affirmative action. (13) Fears later found out, much to his dismay, that he had instead signed Connerly's petition supporting a ballot initiative to do away with affirmative action. (14) During that same time period, roughly one hundred miles away in Lansing, a company hired by Connerly's campaign to support the anti-affirmative action proposal, known as the Michigan Civil Rights Initiative ("MCRI"), allegedly instructed Reverend Nathanial Smith (15) and about thirty-five other individuals to collect signatures for a "ballot proposal [that] was about keeping and maintaining civil rights." (16) Rev. Smith testified that petitioners were collectively instructed to approach registered voters and inform them that the proposal was "pro-civil rights and pro-affirmative action." (17) Rev. Smith claimed he obtained approximately five hundred signatures before a voter he approached while circulating the petition informed him that the actual language of the petition would do away with all race-based and gender-based affirmative action policies in Michigan. (18) Smith was confused by the language of the petition, (19) but then "checked into it and realized" its "true meaning. …