Showing papers in "Washington Law Review in 2010"

Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time

Abstract: The climate justice movement seeks to provide relief to vulnerable communities that have been disproportionately affected by climate change impacts. Public nuisance litigation for climate change impacts is a new and growing field that could provide the legal and policy underpinnings to help secure a viable foundation for climate justice in the United States and internationally. By securing victories in the court system, these suits may succeed where the domestic environmental justice movement failed in seeking to merge environmental protection and human rights concerns into an actionable legal theory. This Article first examines the nature and scope of the climate change impacts that are affecting vulnerable populations throughout the world. It then traces the evolution of public nuisance claims for climate change impacts, discusses the Native Village ofKivalina v. Exxon Mobil Corp. case as a turning point in the evolution of these claims, and considers what obstacles remain on the path toward success for Kivalina and similar suits in the United States and abroad. The Kivalina case involves the right set of facts and legal theories to afford a remedy to victims who are disproportionately affected by climate change. Ultimately, the Kivalina litigation could help to institutionalize climate justice claims as part of the post-Kyoto Protocol framework by recognizing a private right to be free from climate change impacts that threaten the sustainability of vulnerable communities. INTRODUCTION Climate change is here to stay. The questions of whether climate change is happening and what the international community can do to respond to it are no longer the predominant focus of domestic and international climate change law and policy discussions. The international community made significant progress in addressing the global climate change problem with the Kyoto Protocol,1 which responded to the causes of global climate change with ambitious targets and timetables for the parties' reduction of greenhouse gas emissions.2 However, ratifying the Kyoto Protocol, a controversial and multifaceted instrument, was only the first step in tackling this daunting and omnipresent global crisis. The international community is now confronting an indefinite "period of consequences"3 from climate change impacts. Accordingly, the new question at the forefront of the climate change policy debate in the post-Kyoto era4 is what legal remedies will be most effective to mitigate and adapt to these impacts.5 In the context of climate change adaptation, the climate justice movement has emerged as a mechanism to address the rights of the victims of climate change impacts.6 Climate justice embraces a human rights approach to advocating for rights and remedies for climate change.7 Rather than focusing on the climate change phenomenon itself, climate justice focuses on the rights of those disproportionately affected by the impacts of climate change.8 The challenge in seeking to implement a human rights-based response to this problem is that such an approach is notoriously difficult to enforce, both domestically and internationally. The climate justice movement stands to gain a great deal if it could use common-law enforcement mechanisms as a bootstrap to lay a foundation for a codified framework of climate justice rights and remedies in domestic and international law instruments. Legislative responses at the national and regional levels that implement cooperative international solutions to the climate change problem are best, but such solutions take time and leave gaps. For example, the negotiations for the post-Kyoto regime will likely address climate justice concerns at some level, but will inevitably leave gaps regarding how victims of climate change impacts may seek recourse to protect their rights to selfdetermination.9 At least in the near future, common law mechanisms will continue to be the most viable options to ensure adequate forms of relief for the victims of climate change impacts in the United States and elsewhere. …

The Terrorist Informant

Abstract: A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant's services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions. INTRODUCTION 688 I. ENTRAPMENT: OPERATIVE LEGAL STANDARDS 692 A. History 692 B. Jacobson v. United States 694 C. Predisposition 696 II. ATTENDANT ASSUMPTIONS IN EVALUATING THE TERRORIST THREAT 698 A. Academic Commentary: The Terrorism Context 699 B. Attendant Assumptions: Who Is a Terrorist? 704 C. Law Enforcement's Cultivation and Utilization of Informants 707 1. FBI Guidelines 708 2. FBI Tactics 709 III. INFORMANT USE IN TERRORISM PROSECUTIONS 712 A. History of Use in the Pre-9/11 Terrorism Prosecution ......... 712 1 . Before the First World Trade Center Bombing in 1993 712 2. The First World Trade Center Bombing and Beyond.... 713 B. Post-9/11 and the Preventive Focus 715 1. United States v. Siraj 715 2. United States v. Hayat 718 3. United States v. Lakhani 720 4. The Fort Dix Prosecution 722 5. Seas of David Prosecution 725 6. Yassin Aref and Mohammed Hossain 726 7. The New York Synagogue Plot 728 8. United States v. Al-Moayad: A Cautionary Tale 729 IV. CREATING THE TERRORIST ACCORDING TO A CONSTRUCT 732 CONCLUSION 738 INTRODUCTION Terrorism-related offenses often involve individuals operating in close secrecy, a predicament that requires law enforcement officials to think creatively about the means of extracting information about a particular terrorist plot or group. …

Finding the Least Restrictive Environment for Preschoolers under the Idea: An Analysis and Proposed Framework

Abstract: Under the Individuals with Disabilities Education Act, both school- and preschool-age children who qualify for special education services are entitled to education in the least restrictive environments appropriate to their needs. For school-age children, the presumptive least restrictive environment is the regular class where their nondisabled peers participate. By contrast, defining an analogous environment for preschool children is difficult, because public schools rarely provide preschool for children without disabilities. This Comment argues that the Act's language, principles, purposes, and implementing regulations suggest that the settings where a preschool child's nondisabled peers learn should be identified as that child's presumptive least restrictive environment. Examples of such settings may include the home, community, and regular preschool. This Comment then provides an analytical framework that courts can use when determining the least restrictive environment for a preschool child. INTRODUCTION Nate is an adorable three-year-old whose favorite activities at preschool include singing at circle time, digging in the sand table, and playing restaurant in the pretend kitchen.1 Though a casual observer might not immediately notice, Nate displays the classic symptoms of autism, including repetitive behaviors, restricted interests, impaired social skills, and disordered communication. Despite his significant impairments, Nate has been successfully participating in regular2 preschool with the help of a trained aide who prompts him to respond appropriately to his teacher and peers. Having heard that preschoolers with disabilities are entitled to educational services under federal law, Nate's parents approach the local school district. After conducting an evaluation, the district tells Nate's parents that he qualifies for services and may attend the district's autism preschool program for two hours per day. The classroom consists of six children, all diagnosed with autism, taught by one teacher and two aides. Nate's parents urge the school district to consider keeping Nate in a preschool where he could participate with nondisabled children. The school district administration informs the parents that they only fund public programs. Because the district does not provide regular preschools for nondisabled children, Nate's parents are told they will either need to accept the autism preschool program or continue to fund the private program themselves. The Individuals with Disabilities Education Act (IDEA) entitles children with disabilities, including preschool children such as Nate, to individualized educations in the least restrictive environment (LRE) appropriate to their needs.3 Despite this requirement, parents of preschool children sometimes face obstacles with its implementation and find themselves torn between educating their child in a regular preschool or community setting at their own expense or foregoing a placement alongside nondisabled peers in order to secure free special education services.4 The IDEA presumes that children will be educated in regular educational environments, unless their individual needs dictate that a special class or school is required.5 Therefore, this Comment will refer to regular educational settings as the "presumptive" least restrictive environment. The presumptive least restrictive environment for schoolage children is the regular class where nondisabled children are educated, and moving a child to a special setting requires justification based on the child's needs.6 However, schools are often uncertain which environment constitutes the presumptive least restrictive environment for preschoolers - in part because there are often no generally available public education settings for nondisabled preschool children.7 This uncertainty about how the LRE provisions apply to preschoolers is ripe for clarification, and the critical importance of early intervention for disabled children8 makes the LRE issue particularly high-stakes for this population. …

When Your Body Is Your Business

Abstract: Surrogacy in the United States is a multi-million dollar industry in which well paid professionals seek out specially qualified women to fill the difficult job of being a surrogate. Surrogates enter lengthy contracts in which they agree, in intricate and intimate detail, to provide a service for significant compensation-as a group, surrogates in the United States are paid well over $22 million per year. This Article argues that surrogates are professionals in this for-profit industry and are required to report surrogacy compensation as income. As a corollary, surrogates may deduct most of their surrogacy-related expenses as business deductions. Being a surrogate is a highly personal service and the expenses the surrogate incurs-such as for maternity clothes or medical care-are typically treated as nondeductible personal expenses, but when your body is your business, the personal is business. INTRODUCTION 648 I. THE SURROGACY INDUSTRY 650 A. Surrogates Are at the Center of a Multi-Million Dollar Industry 651 B. Surrogacy Is a Profession 652 1. Surrogacy Demands Sacrifice and Skill 652 2. A Good Surrogate Is Hard to Find 655 C. Surrogates Enter into Complex Contracts 656 II. WHEN YOUR BODY IS YOUR BUSINESS, YOU HAVE TAXABLE INCOME 659 A. Surrogacy Payments Are Not Gifts 661 B. Surrogacy Payments Are Not for Pain and Suffering ......... 664 C. Surrogacy Payments Are Not Pre-Birth Child Support ...... 666 D. Only Some Surrogacy Payments Are Nontaxable Reimbursements 668 III. PAYING TAXES WHEN YOUR BODY IS YOUR BUSINESS 670 A. Surrogates Have Tax Responsibilities as Employees or Independent Contractors 670 B. As Professionals, Surrogates Should Consider a Variety of Tax Benefits 674 1. Some Surrogates Are Eligible for the Earned Income Tax Credit 675 2. Surrogates Are Professionals Who May Deduct Business Expenses Under Various Code Provisions ... 675 a. Surrogacy Is a "Trade or Business" Under the Code 677 b. Surrogates' Expenses Are "Ordinary and Necessary" 680 c. In Surrogacy, Personal Expenses Are Often Business Expenses 681 CONCLUSION 685 INTRODUCTION "Death, taxes, and childbirth! There's never any convenient time for any of them . . ." - Margaret Mitchell1 Surrogacy first gained national attention in 1987 when surrogate Mary Beth Whitehead entered a very public custody dispute with intended parents2 William and Elizabeth Stern.3 Since then, surrogacy has become a multi-million dollar industry in the United States.4 Lawyers, doctors, agency directors, gamete donors, and surrogates5 work together to meet the needs of intended parents. A typical surrogacy costs the intended parents between $75,000 and $150,000, which includes payment to a surrogate of roughly $20,000 plus expenses.6 Academic discussion of the cost of surrogacy, and of Assisted Reproductive Technology (ART)7 in general, has focused primarily on the intended parents. …

Allocating the costs of the climate crisis: efficiency versus justice

Abstract: In the international negotiations aimed at reaching an agreement to reduce the greenhouse-gas emissions that are driving global warming, the developed and developing countries are talking past each other. The developed world is speaking the language of efficiency, while the developing world speaks the language of justice. Economic theory and the concept of efficiency are fine for answering the question of who should reduce, but that is not the contentious issue. When it comes to the hotly contested issue of who should pay, economic theory offers no guidance, and the developing world is right to insist that we look to principles of justice. This Article considers three kinds of approaches to the who-should- pay question: 1) those that take status quo emissions levels as their starting point; 2) those that allocate emissions rights on a per capita basis; and 3) those that allocate the costs of emissions reductions on the basis of ability to pay. The Article then considers three possible models for conceptualizing the who-should-pay question in light of widely shared principles of justice: 1) the property model views it as a problem of dividing and allocating a commonly held property right—the capacity of the atmosphere to absorb greenhouse gases; 2) the tort model views it as a question of how to allocate costs when one party causes injury to another; and 3) the tax model views it as a situation in which a group of persons or entities are all engaged in a common enterprise to promote the common good and must allocate the costs of that enterprise. The Article evaluates each of the three approaches to the who-should-pay question under each of these three models of justice, and concludes that the per capita approach is the clear winner. It comports best with the property and tort models of justice, and with respect to the tax model, it comes in a close second. A rough calculation reveals that, if a per capita approach is indeed the most just, then the recent proposals by developing countries that the developed countries each contribute 1% of their gross domestic product to adaptation and mitigation efforts in the developing world is quite reasonable, perhaps even a bargain. Finally, the Article considers and responds to several counterarguments against the per capita approach.

The Racial Geography of the Federal Death Penalty

Abstract: Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers - a discussion begun well before the founding of our Constitution - continues to have relevance today. This Article documents the historical and racial relationships between place and the ability to seat an impartial jury. We then discuss the unique impact demographic shifts in the jury pool have on death penalty decision making. Finally, we propose three possible solutions: (I) a simple, democracyenhancing fix through a return to the historical conception of the county as the place of vicinage in federal capital trials; (2) a Batson-type three-step process for rooting out the influence of race on the decision to prosecute federally; and/or (3) voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of a fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court. INTRODUCTION "I can't help but be both personally and professionally disturbed by the numbers that we discuss today .... [N]o one reading this [Department of Justice] report [on race and the federal death penalty] can help but be disturbed, troubled, by this [racial and ethnic] disparity." - [Deputy] Attorney General Eric Holder1 "The truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours." - Blackstone2 "And, behold, a certain lawyer stood up, and tempted him, saying, Master, what shall I do to inherit eternal life? He said unto him, What is written in the law? how readest thou? And he answering said, Thou shalt love . . . thy neighbour as thyself. And he said unto him, Thou hast answered right: this do, and thou shalt live. But he, willing to justify himself, said unto Jesus, And who is my neighbour?" - Luke 10:25-29(3) The United States Supreme Court's elaborate capital punishment jurisprudence is designed to ensure that capital trials are endowed with legitimacy,4 that only the most culpable murderers with the least mitigation receive a death sentence,5 and that the sentence is not bestowed upon the innocent.6 But the jurisprudence - or at least its collective goal of avoiding the imposition of arbitrary death sentences - has not been altogether satisfactory. …

Global Warming: A Second Coming for International Law?

Abstract: Currently, there are no adequate mechanisms under international law to balance the competing tensions climate change presents to state sovereignty. On one hand, climate change threatens state sovereignty because the catastrophic loss of life and property of millions of people would deprive states of control over their domestic territories. Yet, other states rely on claims of their sovereignty to reject international legal obligations to mitigate climate change. This Article attributes the inadequacy of international law in the climate context to the evolution of the international community into an economic union that has historically privileged material interests over legal rights. It argues that given the high improbability of supplanting this economic union with a legal union that protects sovereign rights while also checking sovereign powers, an entirely innovative approach is necessary to redress climate change-related rights violations. It further argues that the focus of law and policy makers should shift away from inadequate explanations of the relevance of international law provided by current international legal theories toward normative-based solutions to address violations of both sovereignty and human rights. "It makes out that both sides have the Greater Good of the Nation in mind-but merely disagree about the means by which to achieve it." "Go on, Government, quibble. Bargain. Beat it down. Say something." - Arundhati Roy1 INTRODUCTION Of the 190-plus nations in the international community, only about twenty core nations effectively control climate-change action2 - even though climate change threatens the lives and property of millions of people. Current legal scholarship focuses on why, how, and to what extent these twenty countries must share the burdens of mitigation and adaptation, based on their historical levels of carbon emissions and their proportionately higher economic wealth.3 Most of these analyses emphasize international legal and policy responses that would maintain the economic status quo of core countries while simultaneously reducing carbon emissions. Indeed, the thrust of international climate change negotiations has been on allocating varying costs to core nations.4 This Article examines a different issue: why international law does not provide adequate redress to about eighty percent of the world's population whose lives and property are threatened by climate change, and whose governments may thus effectively be denied sovereign control over their domestic affairs. It argues that state behavior in the context of climate change is currently consistent with historic international legal responses to rights violations generally, and thus, mitigating violations of sovereignty will require new approaches in international law. This Article proceeds in four parts. Part I presents a case for treating climate change as a threat to sovereignty because it compromises a state's ability to protect its citizens' rights to life and property. This Part also contends that an absence of judicial mechanisms, notwithstanding the principle of the sovereign equality of nations, leads to differences in the abilities of nations to fully exercise and safeguard their sovereign interests. Part II argues that international law is limited in addressing threats to rights associated with climate change because the community of nations is an economic/trade/material union whose material needs take precedence over other rights. In making this argument, this Part provides a brief historical review of trade relations and international law, emphasizing the role and influence of empires. This Part also argues that this economic union permeates international law's response to climate change and concludes that the insufficiency of international institutional responses to climate change is an expected outgrowth of the prominence given to economic interests. Part III demonstrates that establishing a legal union of sovereign states can overcome the limitations posed by the current economic union of sovereign states. …

Tribute to Judge Betty Binns Fletcher

Abstract: Thank you very much for the invitation to introduce this wonderful symposium honoring my mother, Judge Betty Binns Fletcher. Let me begin by thanking my mother. Without her I would not be here. I realize that everyone can, and should, thank their mother for being here - that is, for their very existence. But I mean my thanks not only in that way. I mean also that without her I really would not be here - at this podium, speaking to you as a judge on the Ninth Circuit. Many of you know the outlines of the story. When President Clinton nominated me to the Ninth Circuit in the spring of 1995, we all thought it would be a wonderful thing to have a mother and a son on the same court. We did not dream that having two members of the same family as judicial colleagues would pose a problem. After all, Morris Arnold, nominated by the first President Bush, had just joined his brother, Richard, as a judge on the Eighth Circuit. And the Hand cousins, Learned and Augustus, had sat together for years on the Second Circuit. Which reminds me of a saying about the Hands. You first have to know that Learned's nickname was "B." The saying went: "Quote 'B'" - that is, Learned - "but follow Gus." If you wonder how that should be applied on the Ninth Circuit, it is "Quote ?'"- that is, Betty- "and follow her, too." But the Republicans were not to be easily shamed into doing the right thing. They had celebrated the fact that Morris Arnold had joined his brother on the bench. But now, claiming that an ancient anti-nepotism statute (which predated the Hands on the Second Circuit) forbade family members sitting on the same court, they stalled my nomination. This went on for several years. I said "years." Mom - I hope you don't mind me calling her "Mom" - broke the stalemate. In return for my confirmation, she agreed to take senior status, thereby freeing up her seat for a new appointment to be filled by President Clinton, but with a person acceptable to the Republican then-Senator from Washington. The Republicans got themselves a deal, but it was not quite as good a deal as they thought. Most judges who take senior status relax a little. They sit part time, they don't do capital cases, they don't sit outside their home city, they don't do screening or motions, or some combination of the above. In other words, they are less than full-time judges. Mom, as I do not need to tell you - and if the Republicans had asked, as someone might have told them - was not likely to follow that path. Mom has now been on senior status for ten years. For all of those years, she has carried a full load of argued cases, she has done capital cases, she has traveled to hear cases in other cities, and she has done screening and motions. Further, Mom calls cases en banc (and gets her cases called en banc) with some regularity. She would hardly be doing her job if she did not decide cases that get called en banc. And, as if doing her job in the Ninth Circuit is not enough, she has sat by designation on other circuits, taking her sense of justice to other parts of the country that may be in need of same. Finally, and there will be more on this point in a moment, she has had a distinguished record of reversals by the United States Supreme Court. If I could come close to fooling myself when I was confirmed, I have no illusions now. Left to her own devices, Mom would not have taken senior status ten years ago. She would not have taken senior status last week. She would be an active status judge today, junior only to the Chief Judge and one other judge. I am the beneficiary of her sacrifice, and I want to say here, "Thank you." As most of you know, Mom is a proud graduate of the University of Washington School of Law. She started law school at Stanford, where she was an undergraduate, during the War. For some of you in the authence, I mean the Second World War. Stanford's law school had emptied out as its young men went off to war. …

[85WashLRev0045] Accountability for Mitigation Through Procedural Review: The NEPA Jurisprudence of Judge Betty B. Fletcher, a Trustee of the Environment and Woman of Substance

Abstract: In the past thirty years, as judges who first required compliance with the mandates of the National Environmental Policy Act of 1969 retired or died, the First and Ninth Circuits became the most stalwart keepers of NEPA's flame. This article explores how, despite the procedural characterization of NEPA, Judge Betty B. Fletcher of the Ninth Circuit has been able to focus attention on NEPA's substantive goal of achieving productive harmony between people and nature, while respecting the limits of judicial review of executive action. Judge Fletcher insists public officials answer a simple question: If you are not well-informed about whether environmental harm will occur, how can you have given the proposal a "hard look"? Judge Fletcher holds United States government officials accountable when making decisions affecting people and nature - accountable to prepare and fully disclose the required studies, so the democratic process of civic and civil debate can occur; accountable to search for better alternatives; and perhaps most important, accountable to any promises they make that their actions will not harm environmental quality for present and future generations. This is the jurisprudence Judge Fletcher has bequeathed to the United States, and to those around the world who look to the United States and NEPA for leadership on environmental stewardship. INTRODUCTION The National Environmental Policy Act of 19691 (NEPA) has often been called our nation's environmental Magna Carta. NEPA's structure and language are constitutional in character. Widely recognized as the world's first comprehensive statement of environmental policy, NEPA became a model for environmental policy and law around the globe. NEPA has and may continue to have as much "impact" as any environmental statute in history, even as we move into the twenty-first century challenge to confront global climate change.2 Ninth Circuit Court of Appeals Judge Betty Binns Fletcher has profoundly understood and has steadfastly defended NEPA as our nation's fundamental dempcratic response to respecting the earth and all the inhabitants thereof. For thirty years, she has strictly interpreted the law in accordance with its stated purpose: to achieve harmony between people and nature. As the judges who first required compliance with NEPA's mandates retired or died - such as William O. Douglas and Thurgood Marshall on the Supreme Court, and Skelly Wright and Harold Leventhal on the D.C. Circuit Court of Appeals - the First and Ninth Circuits became the most stalwart keepers of NEPA's flame. As we enter the new millennium, one judge stands out as the leading judicial interpreter of our nation's environmental charter and its relevance to current issues: Judge Fletcher of the Ninth Circuit. While some federal agencies and courts seek to relegate NEPA to the dustbin (perhaps recycling box) of a paperwork exercise, Judge Fletcher has thoughtfully developed a NEPA jurisprudence that points the way to focus on the statute's substantive goals, while respecting the procedural review role of the courts. As might be expected by her fans and critics alike, she has applied a rigorous analysis whose logic does not readily leave room for dissent. Even when Judge Fletcher's decisions are reversed or when she is writing a minority opinion, those with whom she disagrees often use or borrow heavily from her legal analysis and differ instead on the interpretation of the facts. NEPA was passed by Congress in 1969, and we commemorate its fortieth anniversary this year.3 Judge Fletcher was confirmed a decade later in 1979, and we honor her thirtieth anniversary on the bench this year. These milestones represent remarkable longevity for a statute and a judge. Despite this passage of time, in 2008 alone Judge Fletcher authored two landmark decisions on NEPA's role on our society's response to climate change and to the plight of our oceans and their species. …

No Direction Home: Constitutional Limitations on Washington's Homeless Encampment Ordinances

Abstract: The Washington State Constitution protects the free exercise of religion. It also vests strong police power in local governments. When these two constitutional provisions conflict, the Washington State Supreme Court must draw the line between valid police power action and impermissible burden on free exercise. In City of Woodinville v. Northshore United Church of Christ, a municipal government crossed that line. The City of Woodinville, Washington refused to consider a church's application to host a homeless encampment. The Court held this outright refusal to be an unjustified infringement on the church's free exercise of religion. The Court did not, however, articulate permissible steps a municipality could take to regulate homeless encampments on church property. Absent further guidance on the appropriate reach of homeless encampment ordinances, religious organizations and municipalities lack clarity in hosting and regulating these sites. More than a dozen municipalities in Washington have taken action to regulate temporary homeless encampments, and legal challenges surrounding these encampments are likely to persist. This Comment applies the Washington State Supreme Court's strict scrutiny test to municipal homeless encampment regulations, distinguishing valid exercises of police power from undue restrictions on religious free exercise. INTRODUCTION As homelessness continues to plague cities across the United States,3 advocacy groups have implemented numerous strategies to address the unfortunate consequences. One such effort has been the organization and erection of temporary homeless encampments or "tent cities," several of which have been located in Washington State.4 Religious organizations - claiming a mandate to aid the homeless5 - often host temporary encampments on their property.6 Cities and municipalities typically subject these religious organizations and the encampments they host to specific regulations as conditions for approval.7 In regulating homeless encampments, municipalities exercise the inherent police power of all local governments.8 This municipal police power is expressly authorized by article Xl of the Washington State Constitution, allowing "[a]ny county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."9 The Washington State Supreme Court has interpreted this provision broadly,10 upholding municipal regulations that have a direct bearing on public health or safety." The Court has affirmed municipal police power actions regulating sewage treatment, clean water, waste disposal, fire safety, and weapon possession, as well as aesthetic regulations aimed at mitigating specific threats to public health or safety.12 Most municipal homeless encampment ordinances include similar regulations,13 and Washington courts are likely to uphold these measures as applied to secular actors.14 As applied to religious organizations, however, homeless encampment regulations implicate the Washington State Constitution's "absolute" protection of religious freedom.15 To maintain this strong protection, Washington courts analyze all government actions affecting a party's religious exercise under "strict scrutiny."16 Under the strict scrutiny standard, the reviewing court conducts three distinct analyses of the government action in question. First, the court decides whether the government action actually burdens the free exercise of religion.17 Second, the court decides whether a compelling state interest justifies the government's burden on free exercise.18 Third, the court decides whether the government's action is the least restrictive means of achieving its compelling interest.19 This Comment applies the strict scrutiny test to municipal homeless encampment regulations in Washington. Part I reviews the Washington State Supreme Court's police power jurisprudence, demonstrating the Court's willingness to uphold measures designed to protect public health and safety. …

Arrested Development: Arizona V. Gant and Article I, Section 7 of the Washington State Constitution

Abstract: In Arizona v. Gant,' the United States Supreme Court held that the search of a vehicle incident to arrest is permissible in only two situations: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment; or (2) when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle. Because Gant expressed a standard more protective than that established by the Washington State Supreme Court, Gant induced a state of confusion in Washington, where it has long been maintained that article I, section 7 of the Washington State Constitution offers broader protections than those available under the Fourth Amendment. Since Gant, the Court has twice attempted to redefine the search of a vehicle incident to arrest under article I, section 7. In State v. Patton,2 and subsequently in State v. Valdez? the Washington State Supreme Court adopted a standard closely resembling the first Gant prong. However, neither decision expressly adopted or rejected the second. Because the second prong is supported by historical Washington case law, the Washington State Supreme Court should adopt a modified version of the Gant rule, with an added proscription on the opening of any locked containers located during the search. Such a modification would satisfy the heightened privacy protections of article I, section 7. INTRODUCTION For more than eighty years, Washington courts have struggled to define the constitutionally authorized preconditions of the search of a vehicle incident to arrest. Following a peripatetic path between the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution, Washington jurisprudence regarding the search of a vehicle incident to arrest reveals little in the way of constancy or predictability.4 Never has this been more apparent than in the wake of the United States Supreme Court's imposition of new guidelines for the search of a vehicle incident to arrest as announced in Arizona v. Gant.5 Because Washington courts have long provided that article I, section 7 of the Washington State Constitution offers broader protections than those available under the Fourth Amendment,6 Gant has left judges and lawyers in Washington scrambling to redetermine this already contentious issue.7 A recent oral argument before the Washington Court of Appeals is particularly illustrative - hardly had the deputy prosecutor taken the podium before a perhaps playfully exasperated judge implored, "I hope you can clear this up!"8 The lack of clarity lamented by the court of appeals results from the interaction between article I, section 7, and the new standard contained in Gant. At the time of Ganfs announcement, the prevailing understanding among federal courts was that New York v. Belton9 provided a bright-line standard, authorizing an officer to search the passenger compartment of a vehicle incident to a recent occupant's arrest irrespective of any concerns for the officer's safety or the preservation of evidence.10 Washington State courts adhered to a similar bright-line standard under State v. Stroud,11 with the added protection, as required by article I, section 7, that an officer could not open any locked containers during the search.12 The Gant Court rejected a broad, bright-line reading of Belton, and reduced the applicability of the search incident to arrest exception to two situations. First, reasserting concerns expressed earlier in Chimel v. California,^ the Court held that an officer may search a vehicle incident to arrest when the arrestee is unsecured and within reaching distance of the passenger compartment.14 Second, deriving from Justice Scalia' s concurring opinion in Thornton v. United States, , an officer may search a vehicle incident to arrest when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the passenger compartment.16 The Gant Court therefore established a rule under the Fourth Amendment that was more protective than the bright-line standard previously held permissible under Stroud and article I, section 7 of the Washington State Constitution. …

All Rise! Standing in Judge Betty Fletcher’s Court

Abstract: In this essay, based on a talk given at the Washington Law Review's March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce's 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges' votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to supposedly governing doctrine. Based on the findings reported in Pierce's article, one might expect to find Ninth Circuit judges splitting along predictable ideological lines. In this brief survey, I find that some Ninth Circuit panels on which Judge Fletcher has sat do split along ideological lines, but that most are unanimous in their justiciability rulings even when the panels are ideologically mixed - and one finds variations, such as splits among judges appointed by Democratic Presidents and generally regarded as "liberal." Another possible tendency would be for judges to find justiciability when they might be expected to be favorably disposed to the substantive claim on the merits, and to avoid reaching the merits of what might be unappealing claims. Similarly, in some cases on which Judge Fletcher has sat, some judges' votes could be viewed as fitting such patterns, but counterexamples abound. This essay, which focuses on the work of one judge and does not systematically compare votes of judges from different parts of the political spectrum, cannot claim to disprove the political view; but that view finds little if any support in Judge Fletcher's cases. INTRODUCTION Sometimes you think of a title that may be too cute, or is at least catchy enough that you have to come up with an article to go with it. My title, All Rise! Standing in Judge Betty Fletcher's Court, may be nifty but could also be somewhat misleading, because I've tried to look at all the cases heard by Senior Ninth Circuit Judge Betty Binns Fletcher that deal with constitutional and prudential justiciability issues.1 Thus, the coverage here of this significant and interesting area includes not only standing but also political questions, ripeness, and mootness.2 Nonetheless, the majority of cases deal with standing. I concentrate on decisions in which she has written for the court or separately, while also looking at some in which she has just joined others' opinions. Since Judge Fletcher has been on the Ninth Circuit for three decades, coverage is necessarily selective; I have tried to pick out her most important justiciability cases and to identify patterns about which some generalization may be possible, and also areas in which it does not appear that her decisions fit with what might have been a predicted pattern. Justiciability is not a field in which one might expect a federal appellate judge to develop in a major way her own distinctive jurisprudence. In contrast to some other areas, such as environmental law,3 the Supreme Court has left few if any broad justiciability questions of first impression unaddressed. Thus to a considerable extent this essay looks not at Judge Fletcher's contributions to the field but rather, through the work of one experienced and distinguished intermediatecourt judge, at how the Supreme Court's justiciability doctrines work in application. I have taught these doctrines on a top-down basis in Federal Courts class for decades, and so this essay in part reflects a testing of my own impressions and key points that I have been teaching. It discusses not so much what Judge Fletcher has done, but rather what one experienced Federal Courts teacher has learned on the subject through surveying her justiciability cases. Part I develops as a point of departure the well-argued thesis from a significant article on standing (which might apply also to other justiciability doctrines): that case outcomes seem to be more determined by judges' apparent political leanings than by articulated doctrines. …

Procedural Rules under Washington's Public Records Act: The Case for Agency Discretion

Abstract: Voters adopted Washington's Public Records Act (PRA) in 1972 as part of a broader ballot measure to enhance openness in state government. The PRA requires state government agencies, including statewide agencies and municipalities, to establish procedures so that the public can request copies of records agencies generate. The PRA exempts certain records from disclosure, and other statutes and case law supply additional exemptions. When an agency refuses to disclose records, the requester may ask a court to determine whether an exemption applies. If no exemption applies, the court may compel disclosure of the records and impose monetary penalties against the non-compliant agency, including attorney fees. Under the PRA. courts review denials de novo and in light of legislative intent, erring on the side of broad public access. In addition to reviewing denials, courts have recently been asked to consider whether an agency's procedural rules under the PRA are reasonable. In analyzing procedural rules, some courts have applied the same broad interpretation used for substantive PRA questions, refusing to presume that an agency's procedural regulations are valid despite administrative law and municipal law doctrines requiring such a presumption. As a result, courts have imposed heavy penalties on public agencies at great taxpayer expense. This Comment argues that courts should presume an agency's procedural rules adopted for purposes of the PRA are valid as long as they are consistent with the statute's mandate. INTRODUCTION Washington's Public Records Act (PRA)1 is a "strongly worded mandate for broad disclosure of public records." Adopted in 1972, the PRA gives interested members of the public the opportunity to access documents reflecting the inner workings of state and municipal agencies. The PRA requires agencies to make certain records available for inspection and copying, subject to limitations in the PRA itself and rules adopted by the agencies themselves.4 When an agency denies access to a record based on one of the PRA's disclosure exemptions, the requester may seek judicial review ofthat decision.5 In reviewing agency denials, courts have generally been mindful of the Washington Legislature's declared intent to ensure broad access to public records.6 As a result, courts construe the PRA's disclosure provisions broadly and its exemptions narrowly. Historically, courts focused primarily on interpreting the PRA's disclosure and exemption provisions.7 Only recently have litigants asked courts to consider the reasonableness of agency procedural rules and policies adopted to protect agency functions.8 Faced with difficult facts and lacking clear guidance, state courts have taken different approaches to interpreting agency rules. As a result, some courts have imposed large awards against agencies, including attorney fees and daily statutory penalties. Taxpayers, in turn, ultimately pay these penalties through increased burdens on agency budgets.9 This Comment argues that, unlike the courts' approach to interpreting the substantive disclosure and exemption provisions of the PRA, courts should defer to an agency's own determination that its PRA procedures are reasonable. Part I discusses the PRA's history and relevant operative provisions. Part II examines the statutory mandate the PRA imposes on agencies, including a duty to adopt procedural rules as well as the duty to disclose records. Part III looks at agency procedural rules under the PRA in the broader context of administrative and municipal law. Part IV examines Washington courts' contradictory approaches to interpreting agencies' procedural rules under state administrative procedure law. Part V argues that, although the voters and the Legislature created a broad mandate for disclosure of public records, the breadth of that mandate should not overcome the rule of judicial deference to an agency's interpretation of its own procedural rules. …

The Three Degrees Conference: One Year Later

Abstract: Increasing drought, the spread of tropical disease, storm surges with rising duration and severity, and unprecedented human dislocation will reduce food security and access to fresh water, promote the spread of disease beyond normative ranges, and uproot millions of people who inhabit coastal regions. It is certain that the survival ability of many of the world's indigenous and most disadvantaged peoples is at stake. And yet, the law is inadequately prepared to deal with these human impacts of climate change. The application of both codified and customary international and domestic law will be critical in addressing the massive human and humanitarian crises ignored by technical market solutions to climate change, moderate political reforms, and stalled treaty efforts. The legal community is in a unique position to spearhead innovative adaptations to climate change to account for the basic protection of fundamental human rights. Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and yet others debate its utility in the climate context. To provide a forum for debate, the University of Washington School of Law hosted the Three Degrees Conference on the Law of Climate Change and Human Rights in May 2009. The conference gathered an international cross-section of key stakeholders including corporate CEOs, World Bank consultants, former heads of state, legal scholars, physicians, atmospheric scientists, ethicists, international relief organizations, disaster relief agents, native peoples, and political strategists to examine the strengths of legal institutions to provide redress for the human rights impacts of climate change. Keynote speakers included Mary Robinson, the first woman president of Ireland and former United Nations High Commissioner for Human Rights; Henry Shue, Senior Research Fellow at Oxford University's Centre for International Studies; and Kim Taylor Thompson, Chief Executive Officer of Duke Corporate Education and former moderator for PBS 's Fred Friendly Seminar series. This edition of the Washington Law Review features scholarship emanating from the 2009 Three Degrees Conference,1 and is a testament to the University of Washington School of Law's continuing exploration of the connection between climate change and human rights through its larger Three Degrees project. Three Degrees is building on an agenda that began to take shape in late 2007 with the Male Declaration on the Human Dimension of Global Climate Change,2 an initiative of the Association of Small Island States. It was the Male Declaration that led to a call for the Office of the High Commissioner for Human Rights (OHCHR) of the United Nations to undertake an analytical study of the relationship between human rights protections and climate change. The resulting report,3 promulgated in January 2009, affirmed the impact of climate change on a wide array of recognized human rights, articulated the foundations of arguments for legal duties to threatened and injured people, and advocated international cooperation among states to address human rights impacts of climate change. And yet, reasonable commentators argue that the linkage between the existing structure of international human rights obligations and the ability to use that structure to address climate injuries seems insecure as a formal legal matter, and the framing of climate injuries as human rights harms strikes others as impolitic. Thus, while the OHCHR Report has sharpened awareness that discussion of climate change cannot be complete without consideration of issues of justice to the vulnerable peoples of the world, the work of making that justice a necessary element of our global climate response remains incomplete. The Three Degrees Conference engaged the question of the relative power of law, the international legal order, and extra-legal public policy mechanisms to address human rights injuries caused or exacerbated by climate change. …

[85WashLRev0603] Distinguishing Carcieri v. Salazar: Why the Supreme Court Got It Wrong and How Congress and Courts Should Respond to Preserve Tribal and Federal Interests in the IRA’s Trust-Land Provisions

Abstract: Section 5 of the Indian Reorganization Act (IRA)1 authorizes the Secretary of the Interior to acquire and hold land in trust for the purpose of providing land for Indians. In 2009. the Supreme Court held in Carcieri v. Salazar2 that to qualify for the benefits of Section 5, tribes must show they were under federal jurisdiction at the time the IRA was enacted in 1934.' The Carcieri Court then determined that the Narragansett tribe, which obtained federal recognition in 1983 under the 25 C. F. R. Part 83 recognition process, had not proven that it was under federal jurisdiction in 1934.4 Carcieri was the first case in which the Court decoupled jurisdiction from recognition for purposes of the IRA. It could be read to suggest that federal recognition on its own is not enough to prove federal jurisdiction for purposes of the IRA and thus threatens the interests of all tribes; especially at risk are tribes that obtained federal recognition after Congress enacted the IRA. Many of those tribes were simply overlooked and excluded from a list of recognized tribes compiled upon enactment of the IRA, and all of them have demonstrable historical relationships with the federal government. While the Carcieri Court limited its holding to the timing question - that the phrase "now under federal jurisdiction" in the IRA means that a tribe must prove federal jurisdiction existed in 1934 - it did not consider how tribes might prove such jurisdiction existed. This Comment argues that tribes recognized after the enactment of the IRA, through either traditional recognition processes or the recognition procedures set forth in 25 C. F. R. Part 83, were necessarily under federal jurisdiction in 1934 and should therefore qualify under the IRA's Section 5 trust-land provisions. It argues that Congress should respond to Carcieri with legislation clarifying that all federally recognized tribes were necessarily under federal jurisdiction in 1934. It further argues that until Congress acts, courts should allow tribes recognized after 1934 to prove through additional evidence that such jurisdiction existed. INTRODUCTION The Cheyenne River Sioux tribe's documented history stretches back to the mid-seventeenth century, when European explorers encountered the tribe's Sioux ancestors living in central Minnesota and northwestern Wisconsin.5 After the American Revolution, the tribe experienced rocky relations with the United States government until the Treaty of Fort Laramie established the Great Sioux Reservation.6 In 1 935, the tribe was approved as an organized, recognized tribe7 under the Indian Reorganization Act (IRA).8 The documented history of the Narragansett tribe dates back to 1614. That tribe achieved federal recognition under the 25 C.F.R. Part 83 procedures in 1983,9 which means that, among other things, the tribe demonstrated it had been "identified as an American Indian entity on a substantially continuous basis since 1900" and "existed as a community from historical times until the present."10 Both tribes have extensive documented histories confirming their status as American Indian entities. However, under the 2009 Supreme Court decision in Carcieri v. Solazar, the Cheyenne River Sioux tribe can have land held in trust under Section 5 of the IRA, but the Narragansett tribe cannot. Carcieri held that to qualify for the IRA's trust-land provisions, a tribe had to have been under federal jurisdiction in 1934 - the year Congress enacted the IRA.12 While the Court did not consider what evidence might prove that a particular tribe was subject to such jurisdiction, it did conclude that the Narragansett tribe had not proved it was under federal jurisdiction in 1934. 13 As a result, courts may be tempted to rely on the 1934 list of tribes organized and recognized under the IRA to determine which tribes satisfy Carcieri,'4 but such a response would create a dividing line that excludes tribes recognized after 1934 from the IRA's trust land benefits. …

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims against Religious Organizations

Abstract: The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, but these claims typically implicate First Amendment religious freedom concerns. A short series of Washington appellate cases affirming grants of summary judgment to religious organization defendants on First Amendment grounds has made it more difficult for plaintiffs to assert negligent supervision claims against religious entities. This Comment argues that Washington courts have granted religious organizations an impermissibly broad level of First Amendment protection from claims of negligent supervision, and suggests a more deliberate analytical framework for evaluating the constitutionality of such claims. INTRODUCTION Despite increased public awareness following the child molestation scandals that plagued the Catholic Church during the 1990s, incidence of sexual misconduct by religious leaders is still shockingly widespread.' This misconduct is a prominent problem in American society, and the tort of negligent supervision is an essential mechanism both for preventing it and for remedying the harm it causes. When individuals file negligent supervision suits against religious organizations, state courts are forced to navigate a distinct pair of directives: the dual mandates of the First Amendment's religion clauses and the general right of the aggrieved to seek recourse through the court system.2 What are courts to do if the elements of a plaintiffs claim require them to make sensitive interpretive judgments about a religion's doctrine or practice? In the 1979 case Jones v. Wolf? the Supreme Court articulated a framework for courts to use when analyzing whether they can adjudicate common-law claims against religious organizations without violating the First Amendment.4 State courts have applied this framework in a variety of ways, including a categorical bar against such claims, a categorical allowance of such claims, and a case-by-case inquiry into whether the elements of the claims would require interpretation of the relevant religious doctrine.5 In the context of common-law negligent supervision claims, the Washington State Supreme Court has expressed approval of the latter case-by-case inquiry.6 Several recent Washington State Court of Appeals decisions, however, have employed broad language in rejecting negligent supervision suits on First Amendment grounds, creating strong precedent against such claims.7 This Comment begins in Part I by examining the tort of negligent supervision under Washington law. Part II contains a general exposition of recent First Amendment jurisprudence, giving special attention to the landmark Supreme Court case oi Jones v. Wolf. Part III examines the various approaches state courts employ in analyzing whether tort claims against religious organizations can be permissibly adjudicated within the constraints of the First Amendment. Part IV discusses how Washington courts have previously handled this issue, and examines in detail two recent appellate cases rejecting negligent supervision suits against religious organizations on First Amendment grounds. Finally, in Part V, this Comment argues that Washington courts should read this line of cases narrowly and apply the neutral principles approach articulated in Jones v. Wolf when analyzing tort claims against religious organizations. …

[85WashLRev0547] State v. Grier and the Erroneous Adoption of the “Punishment-Based” Standard of Review for Ineffective Assistance of Counsel Claims Based on All-Or-Nothing Strategies

Abstract: In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier's second-degree murder conviction in State v. Grier.1 The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-ornothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts' approaches to questions of ineffective assistance of counsel involving all-ornothing strategies and argues that, when the Washington State Supreme Court resolves State v. Grier, it should review attorneys' strategic decisions under a highly deferential standard. This standard would align with state precedent and federal practice and would preserve trial attorneys' discretion, provide defendants with a true adversarial process, and repair the split State v. Grier created. INTRODUCTION The lesser-included-offense doctrine has existed since the 1600s, when common law authorized juries to convict a defendant charged with murder of the "lesser offense" of manslaughter if the evidence supported the lesser charge.2 The lesser-included-offense doctrine "provides that a criminal defendant may be convicted at trial of any crime supported by the evidence which is less than, but included within, the offense charged by the prosecution."3 The doctrine, originally created to aid the prosecution where it could not prove all elements of the crime charged, is now recognized as being potentially beneficial to both parties.4 A defendant has the right to request that the jury receive lesserincluded-offense instructions where evidence suggests the defendant might have committed a less serious offense than the crime charged.5 For example, a defendant charged with second-degree murder has the right to request a jury instruction for any lesser-included offenses of which the evidence suggests the defendant may instead be guilty, such as first- and second-degree manslaughter.6 Providing lesser-includedoffense instructions provides the jury with more options because "[w]hen a charged offense involves one or more lesser included offenses . . . a jury not only has the options of acquittal or conviction of the charged offense, but also the options of acquittal or conviction of each lesser included offense."7 This approach can benefit the defendant who would face a lower penalty if found guilty of a lesser offense.8 However, while defendants have the right to such instructions, some - for instance, those charged with commission of a noncapital crime9 - might not want them. In a noncapital murder trial, for example, "[o]ne legitimate trial strategy for the defendant ... is an 'all-or-nothing' one in which the defendant seeks acquittal while realizing that the jury might instead convict of murder."10 Under this strategy, the defendant chooses to limit the jury's options and thereby risk the greater conviction in the hope that the jury will acquit. Defendants who take this gamble usually do so because they fear that, if presented with intermediate options, the jury will reach a compromise verdict, finding the defendant guilty of the lesser offense.11 If the gamble fails, a defendant may challenge an attorney's use of an all-or-nothing strategy through a claim of ineffective assistance of counsel.12 Defendants often raise this issue on appeal, hoping the courts will overturn their convictions and allow them new trials. Courts examining such claims look to the particular facts of each case to determine the tactical decision's reasonability.13 Like any trial strategy, the all-or-nothing approach "has both potential risks and potential rewards," and parties deciding on tactics "must weigh these risks and rewards. …

Freedom of Speech in School and Prison

Abstract: Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary's belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules is turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy. INTRODUCTION It is the rare public school student who has not at least once complained that her school is like a prison, with the principal as warden and the teachers as guards. The trope of school-as-prison appears regularly in popular culture, most often voiced in a tone of rueful irony. For example, in an obituary for actor Patrick McGoohan, a critic wrote that McGoohan' s 1968 production The Prisoner was "the most important television series of my life" because "I was just then working out that my own junior high school was a kind of jail."1 Andy Singer's cartoon succeeds as satire because most people believe that school is not supposed to be like prison. Figure 1. School is supposed to be a site of uplift and optimism, providing students with the mental and social tools to thrive as free citizens. Prison, by contrast, is the antithesis of freedom, a place to quarantine a deviant population for whom our best efforts at education, uplift, and optimism have failed. With these expectations, identifying similarities between the two institutions amounts to an implicit call for change. By contrast, judicial opinions about freedom of speech compare schools and prisons without irony, and indeed without hesitation. Courts litter their decisions about prisoner speech with citations to decisions about student speech and vice versa. Many judges treat the analogy as if it were innately persuasive, requiring no special justification or explanation. Michel Foucault would say the judges are onto something. In Discipline and Punish, Foucault traced the historical progression from medieval forms of punishment that exacted retribution on the body of the accused (think torture or public execution) to the modern practice of incarceration.2 The shift was not, Foucault argued, evidence of evolving standards of decency. Rather, a well-developed prison system could simply be a more effective deterrent to wrongdoing by inculcating in prisoners the mental habits of discipline and subservience. Internalizing discipline in young minds is also, he believed, the essential function of the public school. Hence, it is no accident that the prison resembles the school, even down to its architecture: "Is it surprising," Foucault asked, "that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?"3 This Article explores the analogy between school and prison in constitutional free speech cases. Is the analogy best understood as a mordant punch line or as evidence that the two institutions share a joint mission? In answering this question, I draw on a body of recent First Amendment scholarship debating the degree to which speech rules should operate differently within government-run institutions than they do in society at large.4 The literature often addresses the trio of schools, prisons, and military bases together as prototypical institutions where speakers enjoy less constitutional protection. …

Finality, Habeas, Innocence, and the Death Penalty: Can Justice Be Done?

Abstract: In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate's claim on the merits could lead to the execution of an innocent person. This Article argues that the Supreme Court's 2009 response to a petition for an original writ of habeas corpus in In re Davis1 shows that courts have gone too far. Rather than merely weeding out frivolous claims or showing deference to reasoned state court decisions, federal courts have allowed arcane procedural rules to prevent even meritorious claims from being heard. The Supreme Court's rare intervention should encourage courts to interpret procedural rules less stringently in an effort to make sure justice is done. INTRODUCTION In the August 2009 case of In re Davis,2 the Supreme Court of the United States took the unusual step of directing a district court in Georgia to conduct an evidentiary hearing on the possible innocence of a death row inmate.3 After seeking relief from the Georgia Supreme Court4 and the U.S. Court of Appeals for the Eleventh Circuit5 without success, the inmate petitioned the Supreme Court for an original writ of habeas corpus.6 The Court had not granted such a writ in nearly fifty years.7 Surprisingly, the Court directed the district court to hold an evidentiary hearing on the claim.8 As Justice John Paul Stevens wrote in a concurring opinion, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."9 The procedural rarity of the case, however, quickly fell under the shadow of Justice Antonin Scalia' s proclamation in a dissent. "This Court," Justice Scalia wrote, has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.10 The Supreme Court's dramatic action in Davis highlights the failures of the existing system of appellate and habeas review. Davis, unable to achieve relief through the usual state and federal channels, had to rely on an unlikely action of the Supreme Court to avoid a potentially unconstitutional execution. Given the rarity of such relief, the specter of executing condemned inmates innocent of death penalty crimes looms. Indeed, innocent defendants have been sentenced to death" and evidence suggests some of them have been executed.12 The Davis case highlights a question that most often falls on the shoulders of lower court judges: In the context of the death penalty, can justice be done? Judge Fletcher posed this question in 1995 while giving the Madison Lecture at New York University School of Law.13 In her lecture, Judge Fletcher highlighted the responsibility of federal district and appellate judges in ensuring justice for defendants sentenced to death: "While some may view the courts as obstructions when appeals drag on for years, the federal courts are surely not doing their duty if they fail to protect the constitutional rights of capital defendants and if they tolerate execution of innocent people."14 Judge Fletcher and her fellow judges on the U.S. Court of Appeals for the Ninth Circuit shouldered that responsibility under intense public scrutiny in 1992. …