Showing papers in "William and Mary law review in 1997"

Muddle or Muddle Through? Taking Jurisprudence Meets the Endangered Species Act

Abstract: TABLE OF CONTENTS I. INTRODUCTION A. Two Sides to a Controversy B. Slippery Slopes C. The Thesis of This Article II. INTRUSIVE, COUNTERPRODUCTIVE, AND INEQUITABLE A. A Nation of Zoo-Keepers B. Politics as Usual C. Do Supreme Court Decisions Matter in Environment Policy III. THE POINTLESSNESS OF THEORY A. The Search for a Theoretical Fix B. Is Law Deducible C. A Collision of Views, Not a Conflict of Interests IV. THE END OF THE ECOSYSTEM A. What is Bad for the Marsh Is Bad for Mankind B. Ecology as a Comprehensive View C. The Historization of Nature D. The Problem of Classification E. The Problem of the Baseline F. The redundancy of Species V. LOGOS AND TELOS IN THE NATURAL ENVIRONMENT A. Everything Is Connected to Everything Else B. Ecology as a Normative Science C. The Non-Equilibrium Paradigm D. The Keystone Species E. Does Nature Know Best? F. Theory in Ecology G. Theory Against History H. Everything Can Connect with Everything Else I. Design in Ecology J. The "Rivet-Popping" Analogy VI. THE WARS OF RELIGION A. The Gospel of Efficiency B. Preference Satisfaction as the True and Only Heaven C. Why Protect Species? VII. CONCLUSION "When landowners find an endangered animal on their property, Chuck Cushman says, the best solution under current law is to `shoot, shovel and shut up'."(1) So the Arizona Republic newspaper reported the response of one landowner to the decision of the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon.(2) At issue in Sweet Home was section 9 of the Endangered Species Act (ESA), which makes it a crime to "take" an endangered or threatened species.(3) The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."(4) Interior Department regulations extended the definition of "harm" to include "significant habitat modification or degradation [that] actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(5) In Sweet Home, the Supreme Court by a six to three majority upheld this extension of the meaning of "harm" in section 9 of the ESA.(6) Cushman, executive director of the American Land Rights Association, based in Battle Ground, Washington, identified civil disobedience as a rational response to the Court's decision. He explained, "[a] private-property owner is thinking to himself, `I find a spotted owl on my property, I'm going to lose everything I've worked for all my life.'"(7) A property owner may find immediate recourse in shooting and burying the bird before federal agents discover it.(8) A more general political remedy, Cushman observed, must be sought from Congress.(9) "I think you're going to see an eruption in Congress. It's obvious to everyone now that the Endangered Species Act is broke [sic] and it's gotta be fixed."(10) Newspaper editorials condemned the Sweet Home decision as a confiscation of property rights. "The U.S. Supreme Court in a 6-3 decision yesterday trampled property rights in granting federal regulators broad control of private land to protect endangered species," declared the Detroit News.(11) "No worse environmental decision has come from the high court in two decades. The harm can only be undone by Congress, which must overhaul the Endangered Species Act."(12) In a syndicated editorial, James J. Kilpatrick wrote that the small landowners who brought suit in Sweet Home rely on logging for their livelihoods, which is the only economically viable way that they can use their land.(13) "Now comes the government saying that timber may not be cut in forests supporting the owl and the woodpecker--not if the cutting involves significant habitat modification that actually kills or injures wildlife. …

What's Guilt (or Deterrence) Got To Do with It?: The Death Penalty, Ritual, and Mimetic Violence

Abstract: INTRODUCTION For decades, the death penalty has been one of the most passionately debated topics in American law. Lawyers, social scientists, philosophers, theologians, the mass media, and ordinary citizens have argued over its wisdom and legitimacy. Remarkably, though, when the principal arguments for and against the death penalty are examined closely, they seem inadequate to the task of either justifying the death penalty or proving convincingly that it must be abolished. As a question of constitutional law, the death penalty debate unsurprisingly has focused on whether executions are "cruel and unusual" within the meaning of the Eighth Amendment.(1) Beyond questions of how to give specific content to those general terms, the government's choice of criminal punishments must meet a more fundamental requirement. At the very least, due process of law requires that there be a rational basis for government action that deprives one of life or liberty.(2) Thus, rational argument must support the choice of punishment. Of course, the choice of punishment never has been subject to strict scrutiny, which would impose a requirement that the punishment go no further than necessary to achieve the government's interest.(3) Still, the choice by government to impose a severe punishment may not be arbitrary; rational grounds for the choice are required. The search for a rational basis for the death penalty has led to two primary, alternate justifications, both of which abolitionists contest.(4) The first of these is the consequentialist argument that imposition of the death penalty furthers clearly defined purposes, usually deterrence, better than do less severe punishments.(5) Abolitionists seem most comfortable contesting this line of argument.(6) Although proponents of the death penalty by no means concede an inability to demonstrate the validity of their consequentialist arguments,(7) the weight of evidence seems to refute proponents' claims of deterrence.(8) When faced with the weaknesses of deterrence-based consequentialist arguments, death penalty proponents gravitate toward arguments based on retributive theory.(9) According to this line of thought, desert and individual responsibility justify, if not demand, the symmetry of capital punishment as a response to murder, irrespective of the existence or nonexistence of any deterrence.(10) Though some abolitionists have tried to frame their case upon retributivist thought, this line of argument is used primarily by death penalty advocates.(11) Recent Supreme Court cases seem to take the position that the state need not win the consequentialist debate in order to defend the death penalty.(12) Retribution, it would appear, provides a sufficient foundation. Analysis of the Court's death penalty jurisprudence, however, shows a surprising lack of sympathy for arguments that seem to go directly to the core concerns of retributivism, the assessment of personal responsibility, and even the question of guilt itself.(13) Perhaps these cases indicate that something else is going on here, something of which the Justices themselves may be largely unaware, something neither retributivist nor consequentialist, and perhaps somewhat beyond the limits of traditional rational argument. Rene Girard, a theorist whose work attempts to connect literary criticism, anthropology, and theology, contends that religion, law, and indeed many of the bonds of civilization and culture, rely on ritualized violence in order to break and tame the cycle of imitative, or mimetic, violence that inevitably arises within society.(14) Girard's theories evoke controversy, but if they are even partially correct, they may shed a great deal of light on the role played by the death penalty in American society. They may explain much that recourse to either consequentialism or retributivist theory leaves unexplained. If Girard's theories do help explain the persistence of the death penalty, they also may require those who debate the issue to confront new questions. …

Addressing the Cloud Over Employee References: A Survey of Recently Enacted State Legislation

Abstract: A recent survey by the Society for Human Resource Management found that sixty-three percent of personnel managers refused to provide reference information about former employees to prospective employers.(1) Prompted by fear of lawsuits from disgruntled employees, many employers have adopted a "name, rank and serial number" approach to references, confirming only employees' dates of employment and job titles.(2) Several problems are inherent in this approach. Without complete references, prospective employers are forced either to hire prospective employees without the information necessary to make informed selections or reject employees and select other, potentially less desirable candidates. In the process, good candidates may be unable to secure jobs as a result of their past employers' reference policies. This problem has not gone unnoticed by state legislatures. The threat of increased legal action and the current inability of employers to obtain references on prospective employees prompted employer groups and human resource professionals to call on state legislatures to "lift the cloud that hangs over reference-checking."(3) In an effort to increase the free exchange of references, at least twenty-six states now provide some type of statutory immunity for employers when they provide a reference.(4) Prior to 1995, only five states had such laws.(5) This Note examines the nationwide trend towards employer immunity. Numerous factors influence employers' decisions to provide references. Traditionally, employers were concerned about defamation suits.(6) The common law affords employers a conditional privilege for the disclosure of information concerning employees;(7) however, many employers view this protection as inadequate.(8) Negligent hiring suits, whereby employers can be held liable for damages resulting from their failure to adequately investigate employees' backgrounds,(9) combined with increasing concern over negligent referral or negligent misrepresentation claims, have compounded employers' legal concerns in recent years.(10) Under this latter cause of action, employers can be held liable for not disclosing potentially dangerous characteristics of former employees or for misrepresenting the actual reasons for an employee's termination.(11) The legal relationship between employers and employees also has changed in recent years. Statutory measures, such as Title VII of the Civil Rights Act of 1964,(12) have created additional remedies for employees suffering defamatory references.(13) Perhaps the greatest single cause of the current reference gridlock is employers' apparent misconception concerning the likelihood of a lawsuit based on a reference. According to a group representing employers' interests, many companies have adopted a "no comment" policy toward requests for references, despite the fact that their fear of lawsuits outweighs the actual number of such suits.(14) The recent statutory reforms are an attempt by state legislatures to address some of these concerns. The first section of this Note briefly examines the causes of action that can stem from employee references. The second section discusses the current environment employers face as they weigh the potential costs and benefits of providing references. The Note also addresses the policy concerns that are inherent in any attempt to encourage the exchange of references. The next section surveys the various laws state legislatures have passed recently in an effort to address these problems. It analyzes the different approaches utilized by the states, how they alter common law doctrines, and, most importantly, how effective they are likely to be in promoting the exchange of employee references. This Note proposes a model statute that incorporates some of the features of these new statutes as well as some of the proposed reforms offered by academics. Specifically, the proposed statute would require that in safety sensitive employment settings, employers should be required by statute to disclose relevant information about potentially dangerous employees. …

Guns, Words, And Constitutional Interpretation

Abstract: In the aftermath of the Oklahoma City bombings, Linda Thompson, the self-appointed Acting Adjutant General of the Unorganized Militia of the United States, proclaimed that the Second Amendment "isn't about hunting ducks; it's about hunting politicians."(1) She might as well have added that we ought to shoot a few politicians right now as a message to the rest to wake up and stop stealing our rights.(2) Thompson's statement represents the interesting, and not infrequent, constitutional blend of a First Amendment exercise to promote Second Amendment rights. She readily can be distinguished from mainstream constitutional law scholars both by profession and by example. Civil libertarians with strong First Amendment affinities traditionally have had even less use for the Second Amendment than gun advocates have had for the civil liberties of others.(3) In general, First Amendment scholars view the rights protected by the Second Amendment as deserving less protection than does thought.(4) They agree with the prevailing constitutional interpretation, which holds that the First Amendment guarantees strong individual rights to freedom of expression while the Second Amendment guarantees no individual rights at all, only a collective right to have a very well regulated militia.(5) In the words of the American Civil Liberties Union (ACLU), "[e]xcept for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."(6) A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual right to possess guns.(7) Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their articles.(8) Their "conversion" rate, however, is incremental and slow-one person at a time every so often. In the meantime, most scholars reject the individual rights claim without seriously considering the merits of the scholarship on both sides of the issue. One reason is that the Supreme Court supposedly settled the issue, rejecting an individual rights claim, more than fifty years ago.(9) Another reason may be that the new Second Amendment scholarship conflicts with the hoped-for converts' political views.(10) Yet another reason may be that it analyzes the amendment in terms of text and history.(11) The former is unconvincing (save for those who wish to be convinced), while the latter rests on a claim that the dead hand of the past should rule the present. The debate, on its present terms, seems stagnant because it has become repetitious and stylized. Neither First Amendment nor Second Amendment scholars, nor any other constitutional law experts, have ever suggested that it might be enlightening to combine the two amendments and explore their interpretation not as a pair, but jointly nevertheless.(12) Putting the two amendments through the various modes of constitutional interpretation yields some interesting insights about both constitutional interpretation and preferences for certain rights. This Article explores these insights, after first placing Thompson's comments in the context of modern constitutional doctrine. I. THE ISSUE If both Linda Thompson's comments and my hypothetical extension of them were placed on a Constitutional Law exam, professors would have no difficulty flunking any student who did not recognize that Thompson's speech was protected fully by the current positive law of the First Amendment. Most professors probably would approve of this result. In the first place, she was at most advocating assassination, and generalized advocacy of violence receives full protection.(13) Only when advocacy merges into incitement would the speaker lose constitutional protection.(14) Second, "right now" is ambiguous as to time. Brandenburg v. Ohio(15) as well as Hess v. Indiana" mandate an immediacy of action that Thompson's words, issued over broadcast television, lack. …

From Fear to Rage: Black Rage as a Natural Progression From and Functional Equivalent of Battered Woman Syndrome

Abstract: Between 1993 and 1995, Americans witnessed a series of notable, highly publicized criminal trials.(1) The most recent notable trial, that of O.J. Simpson,(2) resulted in a not guilty verdict that proved difficult for some to accept.(3) The criminal verdict also was accompanied by a decrease in the level of faith in the criminal justice system.(4) For many, however, doubts about the ability of the current criminal justice system to punish wrongdoers and by extension, to protect society at large, likely predated the Simpson verdict. From the much publicized Menendez trial, to the much discussed Bobbitt trial, Americans have questioned judicial acceptance of "abuse excuses."(5) When evaluating the guilt or innocence of the accused, jurors were urged to consider battered child syndrome in the Menendez trial and battered woman syndrome in the Bobbitt trial.(6) Both battered child syndrome and battered woman syndrome are commonly asserted abuse excuses.(7) Although some people may not accept them as valid defenses to criminal behavior, defense attorneys expect to use abuse excuses whenever the opportunity should present itself.(8) Few people, however, anticipated the black rage defense claimed by Colin Ferguson, the assailant in the Long Island Railroad shooting,(9) and even fewer people were willing to accept the black rage defense.(10) Some commentators argue that as long as the excuses are legitimate, they should be allowed.(11) Others, including some defense attorneys, warn that accepting an expanding number of abuse excuses as defenses eventually will undermine the functioning of our criminal justice system.(12) This Note addresses the link between battered woman syndrome, battered child syndrome, and black rage in homicide cases. The first section presents a brief overview of traditional defenses to homicide such as self-defense and insanity and addresses the admissibility of psychological expert testimony in general. The second section defines battered woman syndrome, battered child syndrome, and black rage and analyzes the method by which courts accept and employ each defense. The third section argues for admissibility of expert testimony regarding black rage in order to establish a defendant's insanity. This section also asserts that battered woman syndrome and black rage should receive equivalent treatment. Finally, the fourth section cautions that although black rage theoretically is viable, in practical application the consequences of accepting black rage may prove too enormous for it to become a successful defense. HISTORICAL OVERVIEW Traditional Defenses to Homicide Black rage as a defense to homicide has a foundation in criminal jurisprudence. To accurately understand and assess black rage as a defense to homicide, it is necessary to recognize the nuances of traditional, widely accepted defenses to homicide. Self-Defense Self-defense is one of the oldest justifications for homicide in American jurisprudence.(13) Self-defense requires that the use of deadly force be limited to cases involving protection "against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."(14) A defendant asserting self-defense through use of deadly force must demonstrate a reasonable belief in the necessity of the force, a lack of initiation of the altercation on the part of the defendant, and an inability on the part of the defendant to retreat without the use of deadly force.(15) The legal effect of accepting a claim of self-defense in homicide cases is an acknowledgement that the accused caused the decedent's death but that such action was justified given the circumstances and therefore, no crime was committed.(16) When the self-defense theory prevails, the accused is neither convicted nor punished. "Imperfect" Self-Defense Imperfect self-defense invokes a slightly more subjective view of traditional self-defense theory. …

Legislative Heart and Phase Transitions: An Exploratory Study of Congress and Minority Interests

Abstract: TABLE OF CONTENTS I. INTRODUCTION: DOES RACE MATTER? II. LEGISLATIVE HEART AND REPRESENTATION OF MINORITY INTERESTS A. Direct Versus Representative Legislative Voice B. Members' Policy Responsiveness: Existing Studies C. Legislative Heart as a Measure of Legislative Voice 1. The Quantitative/Qualitative Research Debate 2. Chaos Theory's Contribution 3. A New Approach to the Study of Legislative Voice III. AN EXPLORATORY STUDY: CONGRESS AND FAIR LENDING A. The Congress: Policy Responsiveness of the Majority 1. Actions Taken 2. The Legislative Details 3. Actions Refused 4. The Reasons Given and Perceived a. The Initial Enactment: 1968 b. The First Period of Turbulence: 1974-1977 c. The Second Period of Turbulence: 1988-1991 5. Feedback and the Legislative Environment B. Individual Members: Comparative Policy Responsiveness of White and Minority Members 1. Proposals for Action 2. Advocacy Efforts in Committee and on the Floor a. The Initial Enactment: 1968 b. The First Period of Turbulence: 1974-1977 c. The Second Period of Turbulence: 1988-1991 3. Voting Records Generally C. Phase Transitions: Nonlinearity and Critical Mass 1. Critical Mass: Committee Viewpoint 2. Critical Mass: Individual Advocacy IV. CONCLUSION APPENDIX: VOTING RECORD RATINGS OF HOUSE SOUTHERN DEMOCRATS I. INTRODUCTION: DOES RACE MATTER? Racial gerrymandering . . . threatens to carry us further from the goal of a political system in which race no longer matters--a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.(1) The goal of racial blindness convinced Justice O'Connor and a majority of the United States Supreme Court to subject race-based congressional reapportionment schemes to strict scrutiny analysis under the Equal Protection Clause.(2) Such an analysis caused the Court to invalidate, most recently in 1996,(3) certain congressional districts created to ensure that minority voters held a majority position in those districts--so called "majority-minority" districts. Despite the Court's lofty goals, however, the question remains whether race continues to matter in the political process. The answer to this question should influence the Court's view of the applicability of the Equal Protection Clause as well as the manner in which it may be applied in political districting decisions. This Article does not focus on election results. It focuses, instead, on the issue of representation of minority interests in the Congress--representation that takes the form of policy responsiveness. Only a decade ago, an opinion of the United States Supreme Court led to legislative redistricting aimed at maximizing the number of elected officials from minority groups.(4) Subsequent Congresses reflected the results of this redistricting. After the 1992 election, the number of black members of the House of Representatives rose to thirty-nine, from only seventeen in 1981.(5) District maps drawn specifically to elect additional minority members made it possible for thirteen new blacks and six new Hispanics to win election to the House in 1992.(6) Thirty-six of the thirty-nine black members elected in 1992 were elected from majority-minority districts, whereas only three were elected from majority-white districts.(7) A decade after the Thornburg decision, however, the Court views race-based districting differently.(8) Yet the Court's view of the equal protection challenge still is evolving.(9) This Article addresses that evolution. Depending in part on future federal and state court equal protection decisions, gains achieved through race-based redistricting may be eliminated. …

The Armstrong Principle, the Narratives of Takings, and Compensation Statutes

Abstract: INTRODUCTION The Takings Clause of the Fifth Amendment(1) is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit.(2) Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required.(3) Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question.(4) The newest field of controversy involves compensation statutes.(5) In a few short years, the property rights movement's demand that both state and national legislatures provide compensation when government regulations diminish property value has won widespread support, which, since 1994, has begun to translate into legislative success.(6) The Contract with America provides that "property owners [are] to receive compensation . . . for any reduction in the value of their property" greater than ten percent.(7) Shortly after the 104th Session of the House of Representatives began, its members passed an act requiring compensation when certain regulations decreased the value of land by more than twenty percent.(8) Five state legislatures have passed statutes directing that property owners be paid for losses that they suffer as the result of governmental regulations.(9) The success of the property rights movement, however, has provoked a powerful response. Academic criticism has been sharp,(10) and political opposition has been intense.(11) Property rights legislation already has been repealed by referendum in Washington state(12) and rejected in an Arizona referendum.(13) President Clinton has threatened to veto any federal property rights bill.(14) Opponents of compensation statutes accurately have seen in both the proposed and enacted statutes a direct threat to the continued existence of the regulatory state: by requiring compensation for regulations these statutes will make the imposition of many regulations too costly. Given the extraordinary diversity of opinion about when compensation is owed, it would be only natural to expect that an equal lack of agreement would exist about what purpose the Takings Clause serves. The reality, however, directly contradicts that expectation. Justice Black crisply stated his view of the purpose of the Takings Clause in Armstrong v. United States:(15) The Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."(16) Justice Black's view has received a remarkable degree of assent across the spectrum of opinion.(17) The Armstrong principle has become, according to Professor Glynn Lunney, a part of the "ritual litany" employed in takings decisions.(18) The principle has been embraced repeatedly by Chief Justice Rehnquist and by Justice Scalia, the judicial champions of a broad reading of the Takings Clause,(19) as well as Florida's compensation statute.(20) It is contained specifically in the text of, and invoked in support of, various property rights proposals recently introduced in the Senate.(21) The champions of a narrow reading of the clause, Justices Brennan, Blackmun, Marshall, and Stevens have espoused the Armstrong principle with equal fervor.(22) At one level, this striking unanimity results from Justice Black's broad language. His language avoids confrontation of the hard question: What do fairness and justice require? People with very different ideas about fairness can accept the Armstrong principle while diverging sharply as to what it means. Nonetheless, cultural conventions exist to give the principle meaning. Bruce Ackerman has offered the leading scholarly treatment of cultural conventions concerning the Takings Clause in his book Private Property and the Constitution. …

On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited

Abstract: [T]he Constitution, at least as a per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time.(1) More than any other separation of powers/delegation doctrine decisions, Mistretta v. United States(2) and Morrison v. Olson(3) broadly endorsed the functionalist vision(4) of the modern administrative state. In both Mistretta and Morrison, the Supreme Court assumed that the service of federal judges in quasi-legislative (Mistretta)(5) and quasi-executive (Morrison)(6) roles would not undermine the integrity of the Article III courts. Subsequent developments suggest that the Supreme Court significantly underestimated the corrosive impact of permitting federal judges to discharge consecutively (if not concurrently) judicial, legislative, and executive functions. Operational difficulties associated with the independent counsel provisions of the Ethics in Government Act(7) and the Sentencing Reform Act (SRA)(8) have disproved crucial assumptions that underlie the Court's decisions in Mistretta and Morrison. In the case of the United States Sentencing Commission ("Sentencing Commission"), federal judges serving as Sentencing Commissioners have refused to recuse themselves both in cases challenging the legality of particular guidelines and in cases challenging the entire system of sentencing guidelines.(9) John Locke observed that nothing is more fundamentally unfair than a person serving as a judge in his own case.(10) Wearing the hat of "Sentencing Commissioner," federal judges serve as legislators, drafting sentencing rules.(11) Afterwards, wearing the hat of "Article III judge," they pass upon the legality of their own work product.(12) In reality, judges who serve as Sentencing Commissioners are refusing to recuse themselves in cases involving their own work product(13)--Locke's objection notwithstanding. Although it is doubtful that the Mistretta decision anticipated such a state of affairs, its real-world effects are to the contrary. Similarly, recent events have cast serious doubts on the validity of Morrison's assumption that federal judges could appoint independent counsels without compromising the political independence--and hence credibility--of the Article III courts. Judges serving on the Special Division, which is charged with appointing independent counsels, have become deeply embroiled in what are essentially political disputes.(14) This is an incredible turn of events, given the bulwark Article III erects to protect federal judges from such influences.(15) Indeed, most federal judges abandon all partisan activity upon being named to the bench.(16) Against this backdrop, the decision made by a judge of the United States Court of Appeals for the District of Columbia to meet with two highly partisan Republican senators, apparently to discuss (among other things) the appointment of an independent counsel in the Whitewater affair,(17) simply is inappropriate. When outraged members of the public filed formal ethics complaints protesting the judge's behavior, however, the Chief Judge of the D.C. Circuit not only defended his colleague's behavior, but embraced it openly.(18) The Chief Judge's decision later was affirmed by the Judicial Council of the District of Columbia Circuit by a vote of eight to two.(19) If service on the Special Division means that Article III judges must participate in essentially political disputes, then, Morrison notwithstanding, the independent counsel provisions of the Ethics in Government Act cannot be constitutional. The Supreme Court has failed to appreciate the fragility of the Article III courts in our system of democratic government by rushing to show its openness to the new administrative state, in which the blending of executive, legislative, and judicial functions is to be appreciated as a necessary, if not tasty, constitutional jambalaya.(20) A fundamental difference exists between congressional schemes that redistribute the division of political power between the politically-accountable executive and legislative branches and programs that attempt to place such power in the hands of electorally unaccountable federal judges. …

Rolling the "Barrel" a Little Further: Allowing Res Ipsa Loquitur to Assist in Proving Strict Liability in Tort Manufacturing Defects

Abstract: In England in 1863, a barrel of flour rolled out of the second floor of a barn, struck a passerby walking underneath, and, as William Prosser said, rolled "into the lives of all tort lawyers."(1) Faced with this wayward barrel, the English court crafted the now-famous tort doctrine of res ipsa loquitur.(2) The court held that the peculiar circumstances of the accident generated a presumption of negligence, allowing recovery even though the plaintiff could not prove negligence directly.(3) One hundred years later, Chief Justice Traynor of the California Supreme Court ushered in a new liability scheme, holding a manufacturer of a power tool strictly liable in tort for a defective product without requiring any showing of fault on the part of the manufacturer.(4) Res ipsa loquitur and strict liability in tort for defective products may appear to be distinct legal constructs, yet both spring from the same doctrinal foundation in that they assist plaintiffs in establishing liability when direct proof is beyond their reach.(5) Res ipsa loquitur, as embraced by modern American courts, allows the court to infer a defendant's negligence absent clear proof of negligent conduct.(6) Strict liability abandons a conduct-based approach, instead allowing a plaintiff to recover by showing that a product was defective and unreasonably dangerous when it left the manufacturer.(7) An early products liability case decided by the California Supreme Court highlighted the similarities that exist between these two important tort doctrines.(8) In the early 1940s, Gladys Escola, a waitress, was transferring Coca-Cola bottles from a shipping carton into the refrigerator when one of the bottles exploded, cutting her hand severely.(9) She sued the bottling company for negligence and, relying on the doctrine of res ipsa loquitur, prevailed before the trial court and the California Court of Appeals.(10) Chief Justice Gibson, writing for the California Supreme Court, affirmed the lower courts' decisions.(11) More importantly, the language of his opinion highlighted the similarities that exist between res ipsa loquitur and strict products liability. Chief Justice Gibson engaged in a two-part analysis.(12) He first determined that because the bottle was not damaged "after delivery to the restaurant by the defendant ... it follow[ed] ... that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled."(13) He then noted that the defendant could have been negligent in two different ways: either the defendant overcharged a safe bottle or failed to discover a properly charged but defectively made bottle.(14) The Chief Justice concluded that sufficient evidence existed for a jury to infer that a defect existed in the bottle and to infer further that the defendant's conduct was negligent.(15) Then-justice Traynor concurred in the judgment.(16) Traynor argued that strict liability, not res ipsa loquitur, should be used to establish negligence for any injury caused by a product defect.(17) He noted that negligence approached strict liability because, procedurally, the jury was left with the ultimate power to determine whether the defendant had refuted the inference of negligence.(18) Traynor's concurrence suggested that both doctrines, res ipsa loquitur and the strict liability system that he envisioned, should be available to aid the plaintiff in establishing the cause of the injury.(19) He favored a strict liability system because some causes of accidents cannot be attributed to negligence "even by the device of res ipsa loquitur,"(20) and the ability to determine the cause of the defect should not control whether a plaintiff could recover.(21) Justice Traynor's espousal of a strict liability system, therefore, rested at least in part on the same premise as the English court's decision one hundred years earlier to create the doctrine of res ipsa loquitur; namely, a legal recovery on account of injury should not be barred by lack of proof when the defendant has better knowledge or access to knowledge regarding the cause of the accident. …

Inserting The Last Remaining Pieces into the Takings Puzzle

Abstract: I have previously opined that the Supreme Court has effectively solved the takings puzzle,(1) and it has. Like 1000-piece puzzles in the game room of a large family, however, near the end, a few pieces are missing. In truth, the problem is not so much missing as ill-fitting pieces left over from other puzzles long ago forgotten and now deserving abandonment. The ill-fitting takings pieces are Agins v. City of Tiburon,(2) and the "ad hockly"-edged Penn Central Transportation Co. v. New York City.(3) These cases perpetuate an overly deferential standard of review and proof burdens that undermine the goal of fairly balancing the reciprocally defined concepts of property and police power. Worse, these decisions mask a virtually insurmountable presumption of constitutionality that has too often been a presumption in favor of exclusion, felt most disturbingly by the least affluent.(4) Troubling also is that the Agins/Penn Central presumption of the regulation's validity is a presumption against freedom of ownership, responsibly defined as encompassing both individual right and duty.(5) The effects of this presumption could not be understood while the takings puzzle remained unsolved because property scholarship and its sub-area of takings were traveling simply in contesting camps, lobbing aphorisms of libertarian autonomy against benign statist redistribution.(6) Some of this still goes on, of course, but with more subtle and prudent insight, rather than simple partisanship, discerning property to be a device mixing "independence and cooperation" by which we form community.(7) What follows is a brief recapitulation of the Supreme Court's analytical resolution of the takings problem and a case-specific examination of some areas where out-of-date Agins and Penn Central-generated pieces do not fit into the carefully arranged precedental framework of Lucas v. South Carolina Coastal Council,(8) Nollan v. California Coastal Commission,(9) and Dolan v. City of Tigard.(10) I. THE SOLUTION The straightforward purpose of the Takings Clause is to avoid the disproportionate placement of public burdens upon a single property owner.(11) Yet, litigation over the clause has been difficult because it pits two indeterminate concepts-property and police power-against each other. Knowing where private rights end and public power begins is the essence of the quandary. Until recently, the difficulty revealed no sign of abating. Arguably, Lochner v. New York(12) blocked the path. Lochner, of course, is the talismanic name for the proposition that federal judges ought not legislate from the bench.(13) Judicial restraint is a commendable principle born of separation of powers doctrine and, in the land-use context, of federalism. Yet, misplaced restraint in the face of government overreaching defeats constitutional purpose and is about as helpful as misplacing the explanatory picture on a puzzle box cover. A. The Natural Law--Objective Reality of Property The resolution of the takings puzzle depends upon realizing that the judicial protection of legitimate private property rights is not tantamount to inappropriate judicial theorizing about social policy. Why are these situations different? In Lochner, the majority had no objective standard by which to say that a legislative specification of the maximum number of hours to be worked by a baker was right or wrong.(14) Reasonable minds could differ as to whether working more than sixty hours per week should be allowed, and the Court had no superior institutional resources or textual constitutional basis to say otherwise. In such case, what is right and wrong is mostly a matter of positive law.(15) By contrast, in takings cases, what is right or wrong in terms of acceptable levels of regulation is governed more overtly by the objective, natural law(16) basis of common law property rights. American constitutional history declares Jeremy Bentham to be mistaken: property and law are not "born together," and they do not die together either. …

Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases

Abstract: The regulatory takings issue is notoriously muddled.(1) Dramatically opposing views regarding the proper relationship between private property and government regulation consistently have polarized scholarly debate.(2) The Supreme Court today seems no less splintered on the issue's proper resolution than it was when it first embarked down the regulatory takings path with Justice Holmes's opinion for the Court in Pennsylvania Coal Co. v. Mahon,(3) from which Justice Brandeis sharply dissented. The Court's regulatory takings decisions are among its most contentious. Many are decided by closely divided votes.(4) Individual Justices seem to waver with regularity on the issues, prompting majorities in one case to become dissents in another, and vice versa, thereby further deepening the precedental confusion.(5) This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely.(6) This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic discourse. These additional reasons are best revealed by piercing the popular fiction that the Court is a monolithic institution. The Court's decisions should instead be read keeping in mind the fact that the Court is simply nine individual Justices who speak through the voice of shifting coalitions of at least five Justices. Such a piercing of the Court's judicial veil offers three lessons about regulatory takings. First, it suggests the propriety of discounting the import of the Court's precedent in individual cases and the futility of reconciling what may be, at bottom, irreconcilable rulings. Advocates and legal academics who ignore this lesson routinely conflate the significance of the Court's precedent in takings cases. Second, by identifying the underlying reasons for the Court's splintering and shifting majorities, students of the regulatory takings issue, as well as members of the regulatory and regulated communities, can appreciate better the full dimensions of the issue. By examining the votes of individual Justices in each of the cases, the questions asked at oral argument, and the arguments made in the briefs, one discovers the full panoply of factors that have influenced the Justices in takings cases. These factors extend beyond the traditional debate between prepolitical and civic conceptions of property. By tugging in an oppositional fashion at the Justices, these factors implicate a host of crosscutting issues that make maintaining the development of a stable majority on regulatory takings issues especially difficult. Finally, a more focused examination of the individual Justices suggests the kinds of arguments that a new majority coalition of Justices now on the Court might find acceptable. Justice Kennedy will be the decisive vote in the establishment of this new majority, and pragmatism will need to replace adherence to purist principles in any advocacy designed to promote an analytical framework capable of being embraced by a new majority led by Justice Kennedy. This Essay consists of three parts, followed by a brief conclusion. The three parts roughly mirror the three lessons to be learned in undertaking a closer examination of the reasons why the Court's regulatory takings precedent exhibits such conflict and doctrinal instability. First, the Essay describes the general benefit gained from thinking of the Court as nine distinct Justices in analyzing the Court's precedent, with illustrations from the Court's takings precedent. …

Multiemployer Bargaining, Antitrust Law, and Team Sports: The Contingent Choice of a Broad Exemption

Abstract: I. INTRODUCTION Twenty-four years after pronouncing that "Congress[,] . . . not . . . this Court[, must remedy] any inconsistency or illogic" in the long standing exemption of baseball, but not other sports from the reach of the antitrust laws,(1) the Supreme Court last term reduced substantially the uniqueness of Major League Baseball's control over its labor market. The Court did so not by exposing baseball to antitrust attack, but rather by clarifying that restrictions on player labor mobility and freedom of contact imposed by all North American leagues of professional sports teams(2) also enjoy an exemption from antitrust scrutiny as long as their labor markets are subject to collective bargaining.(3) In Brown v. Pro Football, Inc.,(4) the Court held that employers could conspire and agree to take actions to impose controls on a labor market, if those actions "grew out of" and were "directly related to" a multiemployer bargaining process, did not offend the federal labor laws that sanction and regulate the process, affected terms of employment subject to compulsory bargaining, and concerned only parties to the collective bargaining relationship.(5) All major professional team sports clubs have joined with other league clubs to bargain in multiemployer units with unions representing the athletes that they employ. As long as a multiemployer bargaining relationship exists, league-imposed restraints on player labor markets should easily meet the Court's other conditions. The Brown holding, therefore, effectively enables leagues in every sport to be as free of antitrust constraints in order to control player mobility and salaries as Major League Baseball has been under its special, long standing antitrust exemption.(6) How one greets Brown inevitably will depend in part on how one views the antitrust challenges that players have made against such league-imposed labor market restraints as restrictions on mobility between teams,(7) rookie drafts,(8) and salary caps.(9) Those individuals who think that the antitrust laws should be concerned only with restraints on product markets, and not with restraints on input markets in general or with labor markets in particular, may welcome Brown's exemption of labor market restraints.(10) Those individuals who think that the labor market restraints typically imposed by sports leagues are reasonable under an antitrust analysis that weighs heavily the contributions of such restraints to maintaining athletic balance that enhances the league's competitiveness with other forms of entertainment also may welcome the decision.(11) Others who believe that the antitrust laws should protect a player's negotiation of a free-market wage for any extraordinary services the player provides should give Brown a cold reception. This should be true for those concerned with the ultimate impact on the sports product of restraints discouraging talent development(12) and for those concerned with insuring the extraction of a "just" wage for labor from a cartel of employers.(13) Regardless of their inclinations on these ultimate issues of antitrust law, however, both sports fans and lawyers (including those who are both), have reason to lament the result in Brown. For reasons elucidated in the final section of this Article,(14) sports fans interested primarily in uninterrupted presentations of athletic competition are likely to be disappointed by more work stoppages in professional sports as a result of Brown. For lawyers, whether sports fans or not, the Brown decision should be most troubling because it failed to provide a proper clarification of how antitrust law should accommodate federal labor law. The accommodation that Brown did articulate sacrificed antitrust goals to a degree unnecessary to the service of labor law goals. As explained more fully below, in order to protect established and legally approved multiemployer collective bargaining in myriad industries other than sports, the Court properly rejected the players' lawyers' formulation of a limited antitrust exemption that would not have protected the concerted employer action challenged in Brown. …

The Politics of Takings: Choosing the Appropriate Decisionmaker

Abstract: Deciding who should define takings, especially regulatory takings,(1) is a daunting task. It is daunting because years of effort by all three branches of the federal government have failed to produce an effective solution. For very different reasons, each branch has failed to develop a sound approach to regulatory takings.(2) It is also daunting because the definition of a regulatory taking is so fundamentally important to the future of our economic, legal, political, and natural systems(3) that it may require the wisdom of Solomon to resolve. Which branch, then, should define when a taking occurs because of regulatory conduct? The response will depend on the values and purposes that an individual attaches to the Takings Clause(4) and on the expectations that an individual has for the takings decision-making process.(5) The response of Professor Peter Byrne and others is that the regulatory takings doctrine raises utilitarian issues best handled by the democratically accountable legislative branch.(6) My response is that the branch best able to provide principled decision making should handle the regulatory takings problem. As used in this Article, the phrase "principled decision making" refers to decision making that is principled in the sense of process, and not necessarily in the sense of providing a unified or coherent set of substantive principles--that is, decision making that is objective and neutral and not controlled by the personal interests or beliefs of the decisionmaker or the parties directly affected by the decision.(7) What explains the inherently different approaches to solving the regulatory takings problem? Perhaps fundamentally different expectations about what a solution can or should accomplish explain the differences. In any event, my suggestion to focus on the branch best able to engage in principled decision making results in part from previous unsuccessful attempts by all three branches of the federal government to address the regulatory takings problem.(8) Those unsuccessful attempts have convinced me that the problem is far too complex to yield a single substantive solution or a coherent set of principles. I am therefore much more willing to focus on the takings decision-making process and on a branch's capacity for principled decision making in determining which branch should have primary responsibility for defining regulatory takings. This Article focuses on the problem of choosing the appropriate decisionmaker for regulatory takings issues. To support my conclusion that the judicial branch should be the primary takings decisionmaker, Part I of the Article reiterates the constitutional dimensions of the regulatory takings problem. In addition to discussing why government action that excessively regulates property poses a constitutional takings issue even though the action is otherwise a valid exercise of the police power, Part I examines the potential for political process unfairness to property owners, a central concern of the Takings Clause.(9) Then, in Part II, the Article addresses each branch's role in defining regulatory takings--a topic of much debate in this Symposium issue.(10) This Part first makes the case for judicial branch resolution of regulatory takings issues and then examines the case against choosing the legislative or executive branch as the primary regulatory takings decisionmaker.(11) Each discussion explains why the judiciary is the branch best able to engage in principled decision making and to avoid the politics of takings. Finally, Part III summarizes the conclusions of the Article and introduces the main themes of this Symposium issue. I. THE CONSTITUTIONAL DIMENSION OF THE REGULATORY TAKINGS PROBLEM In his 1995 article in Ecology Law Quarterly, Professor Peter Byrne argued that the regulatory takings doctrine should be abolished and that the legislative process should instead be used to resolve the essentially utilitarian issues raised by the doctrine. …

Modern Discrimination Theory and the National Labor Relations Act

Abstract: INTRODUCTION On-the-job discrimination is prohibited, on various grounds, by an ever increasing number of federal laws The National Labor Relations Act (NLRA),(1) however, which protects employees' rights to form, join, and assist unions, to collectively bargain with their employers, to engage in other forms of concerted activity for mutual aid or protection, and to refrain from all or any of these activities, pioneered the way(2) The NLRA makes it unlawful for an employer to encourage or discourage union membership by discrimination(3) It also prohibits interference, restraint, or coercion by employers,(4) which the United States Supreme Court tells us occurs when an employer "discriminates" against concerted activity(5) For forty years, the Court studied the question of employment discrimination almost exclusively through the lens of the NLRA It struggled with the proper role that antiunion motive or animus should play in resolving disputes under the statute and with when and how to balance employees' statutory rights against an employer's interest in managing his business(6) In the mid-1960s, things changed Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment because of an employee's race, color, religion, sex, or national origin(7) In the thirty years since the enactment of Title VII, the Supreme Court has honed the meaning of unlawful discrimination primarily under that statute(8) Today, for many lawyers, and certainly for most judges, federal employment discrimination cases comprise the bulk of "labor" cases handled, with NLRA cases a relatively small part of the employment law workload(9) The labor bar's and the judiciary's increased--if not frequently greater--familiarity with employment discrimination doctrine would seem to make inevitable some importation into the NLRA of the discrimination concepts developed under Title VII(10) After all, both statutes wrestle with how to protect employees' statutory rights, while at the same time permitting employers the managerial freedom necessary to run their businesses What is surprising is when this borrowing has, and has not, occurred Although the courts have not adopted a fully unified analytical model of prohibited discrimination under these statutes, they have, at times, considered discrimination under the NLRA in distinctly Title VII-like terms This trend has occurred most recently in cases arising under section 8(a)(1) of the NLRA(11) The lower courts in these recent cases have refused to find unfair labor practices to exist absent disparate treatment of union activity(12) At the same time, questions of group-based discrimination under section 8(a)(3) of the NLRA continue to be resolved under the animus-based analysis developed by the Supreme Court in the 1950s and 1960s(13) This is so even though several of the Court's section 8(a)(3) decisions today may be seen as a primitive groping toward disparate impact analysis,(14) a theory that finds discrimination actionable in the absence of unlawful motive This theory of discrimination, adopted by the Court under Title VII in its 1971 decision in Griggs v Duke Power,(15) has not yet made its way fully into section 8(a)(3)(16) This Article explores the concept of discrimination under the NLRA(17) Specifically, it examines discrimination under that statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA This analysis focuses on three specific areas First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination has occurred …

CERCLA's Mistakes

Abstract: Judge Dowd was far too modest. Three years after Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),(1) he wrote that CERCLA was rushed through a lame-duck session of Congress, and therefore, might not have received adequate drafting."(2) Courts struggling to interpret CERCLA since then have abandoned such understatement. Judges now hope that "if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain."(3) The usual explanation for CERCLA's poor drafting blames the hurry with which the lame-duck Ninety-sixth Congress passed the hazardous waste law in December 1980 before President-elect Reagan and a Republican Senate majority assumed office.(4) The circumstances of CERCLA's enactment present formidable challenges to any theory of statutory interpretation. You favor a textualist theory that examines the statutory language alone? "CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage."(5) You rely on canons of construction from which to glean statutory meaning? "Because of the inartful crafting of CERCLA ... reliance solely upon general canons of statutory construction must be more tempered than usual."(6) You prefer to rely on the legislative history of a statute's enactment? "[T]he legislative history of CERCLA gives more insight into the `Alice-in-Wonderland'-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature."(7) You seek to implement congressional intent? "[C]ongressional intent may be particularly difficult to discern with precision in CERCLA."(8) You try to interpret statutes to promote good public policy? "CERCLA `can be terribly unfair in certain instances in which parties may be required to pay huge amounts for damages to which their acts did not contribute'."(9) You consider the current attitude toward a statute? "CERCLA is now viewed nearly universally as a failure."(10) Those who emphasize the purpose of a statute have found CERCLA more to their liking,(11) but there is an increasing awareness that purpose alone cannot solve all of CERCLA's riddles.(12) Congress did not foresee this confusion in 1980. Alarmed by Love Canal," but perhaps even more alarmed by the prospect of a transfer of political power in the presidency and in the Senate, Congress rushed to pass a federal hazardous waste law."(14) Earlier in 1980, Congress had considered several different bills addressing the problem of hazardous wastes, and the Senate and House had approved strikingly different proposals.(15) The November election of Ronald Reagan and a Republican majority in the Senate created a new sense of urgency for members of Congress and the Carter Administration who feared that all of their work would go for naught once the new Senate and President assumed office on January 20, 1981.(16) Congress acted immediately after the election: The bill which became law was hurriedly put together by a bipartisan leadership group of senators (with some assistance from their House counterparts), introduced, and passed by the Senate in lieu of all other pending measures on the subject.... It was considered [by the House] on December 3, 1980, in the closing days of the lame duck session of an outgoing Congress. It was considered and passed, after very limited debate, under a suspension of the rules, in a situation which allowed for no amendments. Faced with a complicated bill on a take it-or-leave it basis, the House took it, groaning all the way.(17) The result, not surprisingly, was a statute that left many questions unanswered and that did not answer clearly even those questions that it addressed. Time has failed to remedy the mistakes resulting from Congress's haste. …

The Takings-Puzzle Puzzle

Abstract: Regulatory takings are widely regarded as a puzzle. Whether from the standpoint of merely trying to describe judicial doctrine, or from the more ambitious standpoint of trying to normalize the doctrine in some way--finding the theory that can "rationalize the cases," or the theory that should--the opening cliche in most of the scholarly commentary is that the law in this area is a bewildering mess. We can go back thirty years, more-or-less, and find statements to that effect in classic articles by Joe Sax and Frank Michelman.(1) We can skip forward to recent work and observe the same.(2) We can also take it on faith (trust me) that most of the scholarly literature in between shares the sentiment.(3) My aim here is to unpack the regulatory takings problem in a way that suggests why it is intractable. The idea is to reveal some of the different types of ambiguity necessarily entailed in takings cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a "takings puzzle." To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the "takings-puzzle puzzle." It seems to me that takings cases routinely give rise to at least three different kinds, and different levels, of ambiguity and uncertainty. The first and most superficial kind was suggested in an article by Douglas Kmiec.(4) Professor Kmiec claimed that the Supreme Court, thanks to several of its recent decisions, "largely has solved the takings puzzle."(5) He didn't mean by this that all of the uncertainties about regulatory takings doctrine have suddenly vanished; what he meant, instead, is that the Court has, in his view, settled on general principles. Kmiec acknowledged, however, that the uncertainty of applying those principles remains intact. "The takings puzzle has been solved," he said, but "especific applications always will remain contentious."(6) I don't believe that the takings puzzle has been solved in the sense that Kmiec meant, but put that aside. The point remains that even very clearly settled principles commonly will give rise to uncertainty, and thus to some degree of unpredictability, about how to apply the principles. For example, standard takings doctrine plainly holds that government regulations resulting in permanent physical occupations are always takings.(7) But when is an occupation "permanent"? Indeed, when does a government regulation even work an occupation or invasion that is cognizable for takings purposes? The answers to these questions are not at all obvious, so the questions themselves present something of a puzzle.(8) To cite another example of the same problem, it is clear that government regulations are takings if they effectively wipe out the value of regulated land, unless the land uses targeted by the regulations amount to nuisances under the terms of a state's common law.(9) As Kmiec noted, however, "[n]uisance law is imprecise,"(10) so substantial uncertainty arises even in the course of applying settled doctrine. We need not belabor the obvious. Takings doctrine simply cannot escape this first kind of uncertainty and confusion that I have been discussing, even when takings principles are settled and clear. Consider now a second kind and level of ambiguity and uncertainty, one having to do with arguments about what our general principles of law in this area should be. Here, uncertainties arise that are more fundamental than those found in the first kind of ambiguity that I identified, more fundamental in the sense that one initially needs to settle on the frame within which to ponder the more mundane issues of applying the general to the particular. Carol Rose has discussed this problem in the context of regulatory takings: In takings doctrine, the tradition of property's civic responsibility is embodied in a test that balances public benefits against private losses from a particular measure. …

Divorce and Domicile: Time to Sever the Knot

Abstract: [T]he law of migratory divorce inhabits a looking-glass world in which the usual conflicts principles are distorted beyond recognition. Jurisdiction over the defendant seems to be neither necessary nor sufficient to empower a court to hear a divorce case.(1) INTRODUCTION The jurisdictional rules that apply in divorce cases are the precise opposite of those that apply in all other cases. In virtually all cases, a state court judgment rendered without jurisdiction over the defendant is void in the rendering state under the Due Process Clause(2) and not entitled to full faith and credit else where.(3) In divorce cases, however, as long as the petitioning spouse is domiciled in the rendering state, the decree is valid there and enforceable elsewhere, even if the court lacked in personam jurisdiction over the defending spouse.(4) According to the status exception for divorce cases, jurisdiction over the defending spouse is not necessary. Nor is jurisdiction over the defending spouse sufficient in divorce cases. In all other cases, as long as the rendering court has in personam jurisdiction over the defendant and provides adequate notice, the court acts consistently with the Due Process Clause, and its judgment is enforceable elsewhere under the Full Faith and Credit Clause.(5) In divorce cases, however, even if the court has in personam jurisdiction over both spouses, the decree violates due process(6) and is not entitled to full faith and credit unless one of the spouses is domiciled in the rendering state.(7) The domicile rule thus means that jurisdiction over the defending spouse is not sufficient either. Not only are the jurisdictional rules that apply in divorce cases inverted, but the choice-of-law approach taken in these cases is unusual too. In all other interstate cases, the forum state applies its own choice-of-law law to determine which state's substantive law should govern the controversy. In divorce cases, however, the courts eschew choice-of-law analysis and instead always apply their own divorce law. The choice-of-law corollary to the domicile rule thus ensures application of the divorce law of one of the spouses' domiciliary state. A case decided by the Alaska Supreme Court in 1988, Perito v. Perito,(8) illustrates the bizarre consequences of the unique conflicts principles that presently govern divorce cases. The Peritos' marriage lasted for approximately twenty-five years.(9) They lived in New York for their entire married life.(10) A New York court denied Ruth Perito's first petition for divorce because she did not prove the requisite grounds for divorce.(11) After this denial, Ruth contacted lawyers in Nevada and Alaska to inquire into the requirements for divorce in those states. Following those conversations, Ruth flew to Alaska with a friend, knowing no one there except the lawyer with whom she had spoken.(12) Within a few hours of her arrival, Ruth told the friend "`that she felt sure this was the place she wanted to be.'"(13) The next day, she filed for divorce in the Superior Court of Alaska.(14) Her husband, Tom Perito, who never had been to Alaska, moved to dismiss for lack of jurisdiction, claiming that Ruth was not an Alaska domiciliary.(15) The court denied the motion and granted a divorce. On appeal, the Alaska Supreme Court affirmed. Because Ruth was domiciled in Alaska at the time she filed her petition--she was physically present and intended to remain permanently in Alaska--the court had jurisdiction to grant a divorce.(16) Tom's lack of contacts with Alaska was irrelevant. The couple's twenty-five years in New York were irrelevant. The New York court's previous denial of a divorce was irrelevant. What was relevant--indeed controlling--was that one of the spouses was domiciled in Alaska.(17) All three of the conflicts doctrines at play in divorce cases--the status exception, the domicile rule, and the choice-of-law corollary--are subject to substantial criticism. …

A Would-Be Tiger: Assessing Vietnam's Prospects for Gaining Most Favored Nation Status from the United States

Abstract: The United States did not remove its trade embargo against the Socialist Republic of Vietnam(1) until February 1994;(2) nevertheless, foreign investors have labeled Vietnam as "the next Asian Tiger."(3) Optimism among Vietnamese and foreign investors has increased since the lifting of the embargo, particularly in light of the 8.2% annual growth in Vietnam's Gross Domestic Product (GDP) that has occurred over the past five years.(4) In addition, exports jumped 200% between 1990 and 1995, from $1.73 billion to $5.3 billion,(5) and, during the first half of 1995, foreign investment more than doubled compared to the same period in 1994, reaching $3.6 billion.(6) Despite this good news, it would be premature for investors to put all of their capital in Vietnam; many problems plaguing the country since the imposition of the trade embargo continue. Vietnam remains among the poorest nations in the world, with a per capita GDP of approximately $290 per year.(7) In addition, Vietnam's trade deficit soared to $3.6 billion over the first ten and a half months of 1996, up from a deficit of $2.3 billion for all of 1995.(8) Finally, Vietnam's legal system continues to befuddle potential investors because its opaqueness and lack of consistency make it difficult for investors to assess properly the potential costs and risks of doing business in Vietnam.(9) In an effort to correct these problems, the Vietnamese government has embarked on an ambitious program to transform its former state-run economy into a market-based system.(10) Critical to Vietnam's attempts to reform its economy will be its ability to integrate itself into the international trading system. Both Vietnam's newly acquired membership in the Association of Southeast Asian Nations (ASEAN)(11) and its recent signing of a trade cooperation agreement with the European Union in July 1995(12) are viewed-by Vietnam's Communist-controlled government as stepping stones to its ultimate objective: the granting of Most Favored Nation (MFN) status by the United States.(13) Obtaining MFN trading access to the U.S. market is critical to establishing successful trade relations between the United States and Vietnam.(14) MFN status would allow Vietnam to export its products into the United States at the lowest available tariff rates and compete with similar products from other countries on an even playing field.(15) The purpose of this Note is to assess Vietnam's prospects of gaining MFN status from the United States. This Note begins by looking at Vietnam's history since the end of the Vietnam War to familiarize the reader with the events leading to Vietnam's current situation. Next, this Note describes the primary barriers to Vietnam's realization of MFN status. In particular, this Note examines the procedural and political steps involved in attaining MFN status, which culminate in a bilateral trade agreement.(16) Finally, this Note reviews the potential obstacles, in particular Communist ideology and poor infrastructure, which may threaten Vietnam's reform program and, by extension, future MFN status. Ultimately, this Note concludes that although the attainment of MFN status certainly is within Vietnam's grasp in the near future, Vietnamese leaders cannot afford to slow Vietnam's current rate of reform, even if such reform comes at the expense of state control. BACKGROUND Immediate Postwar Period After the fall of Saigon to the Communist forces of North Vietnam on April 30, 1975,(17) the United States imposed a comprehensive trade embargo against Vietnam under the authority of the Trading with the Enemy Act of 1917 (TWEA).(18) The period immediately following the imposition of the trade embargo resulted in tense relations between the two nations, particularly after President Gerald Ford denied Vietnam's request for aid from the United States pursuant to the Paris Peace Agreements of 1973.(19) President Ford cited Vietnam's untruthfulness and unfair wartime practices as the basis for his denial(20) and declared that the two countries would have no trade relationship until Vietnam fully accounted for the fates of the thousands of American soldiers lost either as prisoners of war (POWs) or missing in action (MIAs) during the war. …

Chadris, Inc. v. Latsis and the Test for Seaman Status: The Supreme Court Muddies the Waters Again

Abstract: On June 14, 1995, the Supreme Court issued its decision in Chandris, Inc. v. Latsis,(1) revising for the second time in four years the much-contested standard for Jones Act(2) seaman status. A worker seeking Jones Act coverage now must show that, in addition to doing the ship's work,(3) he has a connection to a vessel or fleet that is substantial, both in nature and in duration.(4) By leaving some traditional seamen vulnerable to the perils of the sea, the Latsis test is inconsistent with the policy of the Jones Act. The Jones Act provides remedies for injured seamen, allowing them to sue their employers for negligence.(5) Seamen are not covered by state compensation systems; instead, activities on the water are covered by admiralty.(6) Traditionally, maritime law has sought to foster commerce by protecting investors and shipowners, often at the expense of seamen.(7) Until this century, maritime law had precluded seamen's recovery beyond maintenance and cure.(8) The Jones Act, enacted in 1920, was an attempt to help seamen by providing them with legal remedies for injuries caused by the negligence of their employers.(9) Debate over who should receive those remedies, however, has created nearly as many problems as the Jones Act has served.(10) Although some workers clearly qualify as seamen, the courts have had difficulty distinguishing other seamen from land-based workers.(11) The Jones Act's generous remedies(12) have made seaman status a hotly contested and frequently litigated issue for injured workers and their employers.(13) The Supreme Court, in 1991, attempted to define seaman status in McDermott International, Inc. v. Wilander.(14) Wilander resolved the conflict between two popular approaches to the issue,(15) one from the Fifth Circuit(16) and the other from the Seventh.(17) The Court left many questions unanswered and confusion continued in the lower courts.(18) In Latsis, the Court amended the Wilander definition of seaman status, further restricting the scope of the Jones Act.(19) By shifting the boundaries of seaman status, the Court has reduced potential liability for maritime employers and closed remedies to injured seamen. The Latsis opinion will have far-reaching effect. In applying the Jones Act, Justice Cardozo wrote in Warner v. Goltra(20) that "the purpose of [the] statute must be read in the light of the mischief to be corrected and the end to be attained."(21) In Latsis, the Court has purported to do just that. This Note assesses the judiciary's success in explaining the purpose of the Jones Act and in correcting the mischief that it was designed to remedy. By reviewing the background of the Jones Act and the case law leading up to the Wilander decision, this Note analyzes judicial interpretation of the Act's purpose. Through a critical discussion and comparison of Wilander and Latsis, this Note demonstrates the Court's mistakes in crafting its new definition of seaman. Finally, drawing on the history of Jones Act jurisprudence, this Note suggests a more appropriate approach to seaman status. The Supreme Court needs to enunciate a more complete test for seaman status rooted firmly in the policy considerations of the Jones Act. This test should distinguish between land-based and sea-based employees by granting seaman status to those attached to a vessel at sea, without further consideration. The test should direct application of the factors identified in Latsis and Wilander to more ambiguous situations. Background of the Jones Act In 1896, Patrick Shea, a crew member aboard the propeller Osceola, was struck and injured by a falling derrick.(23) This accident began nearly a century of litigation over legal remedies for seamen and the eligibility of workers to receive these remedies. Shea sued the Osceola's owners for the master's negligence in ordering the use of the derrick at open sea.(24) In denying Shea's claims, the Supreme Court severely limited a seaman's ability to recover for his injuries. …

The Free Exercise Thereof

Abstract: This Essay is about the freedom of religion, which raises the possibility that it is also about the existence of God. Ever since the Supreme Court's first classroom prayer decisions, back in the early 1960s, constitutional scholars and judges alike have premised their analysis of religious freedom questions on assumptions about the existence of God that may fairly be described as skeptical--including, most emphatically, the stance that is usually, but inaccurately, referred to as "neutral." For example, in Lyng v. Northwest Indian Cemetery Protective Ass'n,(1) when the Court allowed the Forest Service to open to logging and roadbuilding lands that three Indian tribes held sacred, the Justices explained, with evident sincerity, that this result was neutral toward the religion of the tribes. But the effect of the logging, as even the Court conceded, was to devastate the tribes' religious traditions, which would hardly seem neutral from the point of view of the Native American believer. A member of one of the tribes surely would find the Lyng decision a horrific interference with religious freedom; and the fact on which the Court relied, that the destruction of the tribes' religion was accidental rather than intentional, would be scant comfort. Beginning in the mid-1980s, a Court majority led by Justice Antonin Scalia has followed the same "neutrality" principle in over half a dozen cases, ruling for the state on subjects ranging from forbidding the wearing of a yarmulke while in military uniform(2) to being forced, in contravention of religious principles, to obtain a Social Security number for a child.(3) The lower federal courts and, lately, the state courts have been caught up in the same trend, ruling for the state in one case after the other,(4) with the unsettling result that only religions possessing sufficient political clout to protect themselves are able to operate relatively free from state interference. So pronounced has the trend become that some scholars have pessimistically declared the death of free exercise of religion.(5) More cautious critics have argued that the Justices are undervaluing the benefits that flow from genuine religious diversity and that, far from being neutral, the courts treat the religions that lose these cases--usually, but not always, the powerless--as presumptively false.(6) Implicit in this last criticism is the notion that the Justices likely would treat their own religions as being at least potentially true. Conduct of the sort demanded by the Western tradition--especially the Protestant tradition--is immediately recognized as religious; conduct of other kinds is seen as marginal to religious life. Thus, the Native Americans involved in Lyng cannot really need the forests; worship is basically how one prays (so the Justices must have reasoned), and nobody is interfering with that. Beyond that, we are free to follow the teachings of our religions up to the edge of the law but no further--even though the laws are drafted with some religions, and not others, in mind. (Nobody proposes to build a road through the Cathedral of St. John the Divine.) Applied in this manner, the neutrality rule itself becomes a kind of establishment of religion: establishing freedom for religions that look and operate like the denominations of the American Protestant tradition. One need not accept the accuracy of this increasingly common polemical stance to recognize the seed of an important question. Some scholars have defended religious freedom on the ground that because the state does not know any facts about God, official skepticism (which carries an implicit official invitation to private pluralism) is the only sensible stand. But consider the matter the other way around: Over the years, any number of scholars--Stanley Fish is perhaps the most recent--have questioned whether a deeply religious individual can possibly be committed to the liberal values of pluralism and dialogue. The religiously devout, Fish argues, are less interested in participating in the marketplace of ideas than in shutting it down. …

How Takings Legislation Could Improve Environmental Regulation

Abstract: The conventional wisdom is wrong: Takings law and environmental regulation are not necessarily mortal adversaries. Clarifying and expanding the rights to compensation for property owners could actually improve environmental regulation, not "gut" it, as many commentators assume.(1) Strengthening rights of financial compensation for owners of property adversely affected by environmental regulation can improve the quality of environmental regulation by "regulating the regulators"--essentially creating incentives for government to design rules more carefully and maximize the environmental benefits of regulatory investments.(2) The second thesis is even more striking and counterintuitive: Stronger protection for property rights also may result in stronger environmental laws and regulations. By spreading the costs of environmental regulation over a larger segment of the population, takings legislation not only could increase distributional fairness but also may reduce political opposition to stronger environmental protection measures.(3) The conclusion that greater attention and sensitivity to the effects of environmental regulation on the rights of property owners could improve environmental protection efforts is based not only on theory(4) and preliminary findings in the empirical literature(5) but also on my experience as General Counsel of the United States Environmental Protection Agency (EPA) from 1989 to 1991.(6) During that period, an Executive Order(7) and the rising political power of the property rights movement(8) forced the EPA to pay more attention to takings considerations. Greater sensitivity to avoiding regulatory takings of private property, however, did not prevent us from pursuing any regulatory targets; rather, greater sensitivity to the effect that our regulations might have on property owners probably improved those regulations, both from an environmental standpoint and in terms of minimizing unnecessary burdens on property owners. Of course, much depends on how particular takings legislation is drafted; I would not support everything in the bills introduced in the 105th Congress.(9) Conceptually, however, legislation would be useful: (1) to require agencies to assess the consequences of their proposed regulatory actions on private property, (2) to clarify the "trigger" for what constitutes a compensable regulatory burden, and (3) to provide at least partial compensation for property owners burdened disproportionately by government regulation, even if the government action falls short of a constitutional taking.(10) The central issue in takings law is distributive justice: To what extent should society impose disproportionate burdens on particular members?(11) The resolution of this issue depends fundamentally on the level of burden that society expects others to bear, but that inquiry is a matter of legislative rather than adjudicative fact;(12) a central reason that the "takings muddle"(13) has proved so intractable in regulatory takings cases is that such questions of comprehensive social accounting cannot be answered well in the context of a single adjudication.(14) It is impossible, for example, for a court to determine as a matter of adjudicative fact whether the burden imposed by prohibiting farming in order to preserve a wetland is disproportionate to that imposed by drafting an eighteen year old into the army. The only immediate way out of the "takings muddle" is for the legislature to establish a compensation "trigger" that defines, at least implicitly, the level of burden that society expects its members to bear without being compensated.(15) Although legislation obviously would not bind the courts in constitutional adjudication, legislative findings as to what level of social burden is expected to be borne without compensation would be relevant to the constitutional inquiry, particularly if the legislative determination were grounded in empirical evidence of the burdens assumed routinely by other members of the community without compensation. …