Notes

Making natural resource management decisions in roadless areas of our national forests has long been a contentious issue. The Forest Service, under President Bush, recently passed a rule allowing states to petition the administration regarding how they wish these roadless areas to be managed. The rule envisions that states will collaborate with all concerned parties in formulating these petitions, but sets no standards ensuring such a process. Given the difficulty of achieving collaboration, the lack of standards makes this purported goal less likely and suggests that the rule may have been an attempt to open roadless areas to development. Nonetheless, this Note urges states and stakeholders to undertake collaboration and argues that the administration should use its oversight to encourage this process rather than unwanted development. In this way, the new rule has the potential to facilitate broadly acceptable management policies and provide valuable experience in the field of collaborative environmental management.

In the wake of several high profile school shootings at the end of the 1990s, school administrators struggled with the question of how to predict and prevent future attacks. They were not alone. Case law reveals that judges, too, have been moved by these events, and they are trying to do their part to curb school violence, often by punishing threats of violence made by student speakers. The Supreme Court has held that “true threats” are not protected by the First Amendment based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. In this Note, the author challenges the application of the true threat doctrine to student threats on three grounds. First, the doctrine is excessively vague and does not provide judges with sufficient standards, which leads to disparate enforcement across cases. Second, recent evidence suggests that punishing threats as a proxy for punishing or preventing future violence—which is explicitly endorsed by the Court’s true threat jurisprudence—is ineffective in the context of student speech. Third, the author identifies a serious policy concern implicated by any punitive response to student threats. To address these shortcomings, Stanner concludes with a series of recommendations for different courts that are designed to improve both the formulation and the implementation of the true threat doctrine.

What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that true? This Note contends that it need not be. Taken at face value, textualism serves neither conservative nor liberal ends. However, those most closely identified with textualism—namely, Justice Antonin Scalia and Judge Frank Easterbrook—practice a form of textualism that creates institutional dynamics that tend to reconcile with a preference for limited government. Their textualism, which this Note dubs “clarity-driven textualism,” constrains the functioning of Congress, executive agencies, and judges in ways that make government hard to do: Statutes are hard to write, agencies have tightly circumscribed authority, and judges have few opportunities to exercise discretion. This Note argues that textualism alone will not necessarily produce these outcomes. By identifying how clarity-driven textualism departs from the bare requirements of textualism itself, this Note seeks to rescue textualism’s powerful interpretive approach from its current political entanglements.

In constitutional challenges to juvenile curfews, the “tiers of scrutiny” framework usually relied upon to resolve Equal Protection cases has failed to constrain courts’ analyses. Courts have applied all three tiers of scrutiny, have reached opposite results under each tier, and have explicitly modified various tiers. This result arises from a discord between the problem presented by juvenile curfew laws and the tiers of scrutiny framework itself: Curfew laws impact neither a fully fundamental right nor a fully suspect classification, but nevertheless affect a substantial liberty interest and a vulnerable class of people. This Note argues that courts should bypass the abstract discussion of “tiers” and “fundamental rights” and focus directly on what role courts should play, if any, in shielding juveniles from a democratically enacted curfew. The Note proposes an aggressive form of intermediate balancing similar to the Second Circuit’s approach in Ramos v. Town of Vernon.

State laws regulating aliens are increasing in number and scope. Yet the current doctrinal approaches to assessing the constitutionality of these laws fail to provide a predictable or desirable framework for distinguishing between permissible and impermissible state regulation of aliens. This Note, by analogizing to the Dormant Commerce Clause doctrine, aims to offer another approach to reviewing state laws regulating aliens—one that takes into consideration the state-to-state dimension of the national interests at stake in immigration law and policy, and that may provide a better means of addressing animus-based state laws.

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.

The most intractable questions in takings law involve determinations as to when compensation must be paid for government regulation of private property. Scholars and judges have looked to the history of takings law in the search for guiding principles that can inform, if not resolve, such questions. The 1851 opinion of Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Alger has figured prominently in these investigations.

This Note argues that such efforts have overlooked other relevant cases Shaw decided, and therefore do not fully appreciate the extent to which Shaw’s jurisprudence was informed by a flexible and instrumental view of how certain principles in takings law should be applied to decide cases. Accordingly, this new perspective on Shaw raises doubts about the extent to which a resort to history can provide effective guidance in resolving the current takings muddle.

In recent years, several states have used initiatives to enact statewide mandates requiring children to learn English by being taught only in English, without instruction in their native language. Using Massachusetts as a case study, this Note argues that this way of deciding the issue—a voter initiative that mandates a uniform method of instruction—is not an appropriate way to make language education policy. Language education is not the type of issue that should be decided via direct democracy because (1) direct democracy does not give adequate protection to minorities, (2) it exacerbates the tendency to make decisions about sensitive immigration issues on the basis of rhetoric, emotional reactions, and campaign politics, and (3) it gives uninformed drafters and voters the power to make complex policy decisions implementing particular educational methods about which they know very little. Further, mandating a uniform method of instruction is undesirable because the empirical literature on which methods of language education are most effective is so divided and confused that it is illogical to mandate the use of only one method. Local education administrators should instead be left free to experiment within the spectrum of language education programs. Also, by mandating a uniform method of instruction for all children in all communities, the initiative does not have the flexibility to recognize and accommodate the many legitimate interests at stake, including individual children and their families, minority groups, local communities, and the democratic interest of the general public. Finally, the Note examines a better way to decide this question, with a system that gives schools freedom to experiment and respond to the needs of particular communities, and that gives parents more input and choice.

In Wirzburger v. Galvin, Massachusetts citizens challenged the Massachusetts Constitution’s Excluded Matters provision, which is a type of subject matter restriction that prohibits popularly initiated amendment of enumerated portions of the state constitution. Because plaintiffs could not show a suspect class, discriminatory intent, or a direct impact on speech, the First Circuit applied deferential forms of First Amendment and Equal Protection Clause review and the challenge failed.

This Note argues that the current framework used to evaluate subject matter restrictions, exemplified by Wirzburger, provides insufficient protection against the serious harms such restrictions create. Subject matter restrictions create differential amendability, which makes it harder for citizens to change some aspects of a constitution than to change others. Differential amendability is a serious harm that distorts the design of well-functioning constitutional amendment procedures and threatens longstanding principles of popular sovereignty. Furthermore, this distortion creates a significant risk that barriers to amendment are being employed, intentionally or otherwise, to entrench temporary political supermajorities against future constitutional change.

This Note explores these risks and the possibility of controlling them through a federal constitutional analysis that draws on history, functional considerations, and existing voting rights case law. All three factors weigh in favor of engaging in a fundamental rights inquiry into subject matter restrictions. That inquiry might invalidate most subject matter restrictions, but its most significant contribution would be the cultivation of an interinstitutional dialogue over the possibilities and dangers of substantive restrictions on constitutional change at the state level.

In late 2006, the Department of Justice (DOJ) overhauled its internal policy regarding the prosecution of corporate entities. The new policy—expressed in the “McNulty Memo”—was issued as a direct response to charges that the DOJ had abused its leverage over the companies it targeted for criminal prosecution, specifically with regard to compelled cooperation. The McNulty Memo addressed these charges, in part, by restricting the discretion of individual prosecutors and requiring approval by the Deputy Attorney General on significant prosecutorial decisions.

While the changes ushered in by the McNulty Memo are a promising first step, they will not remedy all of the potentially abusive practices that mar the prosecution of corporate entities—particularly in regard to the use of deferred and non-prosecution agreements. At first blush, deferred and non-prosecution agreements appear to present a win-win situation: They offer the benefits of criminal punishment without the negative collateral consequences that flow from criminal charges. Their increased use, however, has revealed a different picture. By removing the threat of collateral consequences, deferred and non-prosecution agreements allow individual prosecutors to take full advantage of the unique weaknesses of corporations in the criminal justice system. These weaknesses provide prosecutors with a dangerous amount of leverage over the corporations they target, creating a bargaining imbalance and a new threat of abuse.

The potential for abuse that flows from the use of deferred and non-prosecution agreements should be addressed by restricting the discretion of individual prosecutors. This Note argues that the DOJ should look to the solution offered in the McNulty Memo and require that individual prosecutors receive permission from the Deputy Attorney General before entering into any deferred or non-prosecution agreement.