Notes

In deciding First Amendment cases, courts generally attempt to find distinctions between speech and nonspeech (or between speech and conduct) in order to determine whether government limitations on speech are appropriate. This analysis, however, is misguided, because whether such limitations are or are not upheld nearly always depends upon whether the conduct does or does not do harm. Recognizing this—and the inherent arbitrariness of speech-nonspeech line-drawing—this Note proposes that attempts at making such distinctions be abandoned. This Note addresses the impact of adopting the harm principle for the criminal law system, and further contends—given the principles underlying our system of civil law—that including so-called moral harms in the list of legitimate bases for state action is untenable.

Damages litigation against public officials implicates social costs that ordinary civil litigation between private parties does not. Litigation against public officials costs taxpayers money, may inhibit officials in the performance of their duties, and has the potential to reveal privileged information and decisionmaking processes. The doctrine of qualified immunity—that public officials are generally immune from civil liability for their official actions unless they have unreasonably violated a clearly established federal right—is designed to address these risks. The doctrine, however, demands an application of law to facts that, as a practical matter, requires substantial pretrial discovery. Federal courts have responded with a variety of novel procedural devices. This Note critiques those devices and suggests that courts confronted with a claim of qualified immunity should view their principal task as narrowing the universe of the plaintiff’s claims, thus facilitating a discovery process structured around dispositive legal issues.

In recent years, a number of states have passed comprehensive land use reform bills.1 Many of these statutes have appeared in response to the phenomenon of urban sprawl—a pattern of haphazard, automobile-dependent development on the fringes of existing cities. With rising personal incomes and persistent consumer demand for single-family homes on large lots in ethnically and physically homogeneous jurisdictions, urban sprawl has boomed. Fearful of the myriad costs of sprawl—which many commentators have chronicled—some states have acted to prevent it altogether. The most egregious costs of sprawl include the abandonment of urban centers, severe air and water pollution, and the loss of open green spaces. In economic terms, sprawl also vastly increases transportation costs for residents and workers who must travel greater distances to reach their homes, their jobs, and other destinations. Without statewide coordination, sprawl is difficult to prevent. For example, if one county prohibits the subdivision of its farmland into low-density residential lots, a neighboring county will not necessarily do the same. In fact, precisely because the restrictive county has stifled consumer demand, its neighbor may have greater incentives (in the form of spillover demand) to permit sprawling development. In addition, neither county is likely to be particularly well attuned to the negative effects of sprawl, which are often geographically and temporally dispersed and thus less salient for many local politicians. To combat these structural and political problems, some states have addressed sprawl as a matter of statewide, rather than local, concern.

This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elections. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators’ statements to determine that the appearance of voting fraud exists—and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state’s only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corruption interest is considered.

This Note identifies ethical issues raised when criminal defense lawyers write non- fiction books about their clients, and it proposes new ethical rules that shift the balance of interests to weigh more heavily in favor of the client. Two principal ethical considerations arise for lawyers who write books about their clients. First, lawyer-authored publications may cause the attorney-client privilege to be waived and may result in adverse legal consequences for the client. Even where legal consequences do not inure, however, publication may violate the lawyer’s duty of confidentiality, principles of client dignity and autonomy, or both. Second, the lawyer- author’s interest in the commercial viability of the client’s story may conflict with the defendant-client’s interests. This Note offers revisions to the American Bar Association (ABA) Model Rules of Professional Conduct that would impose a substantial waiting period before defense counsel may publish stories about their clients. The revisions strike a balance between the client’s interest in effective representation, the lawyer’s interest in self-promotion, and the public’s interest in a transparent criminal justice system.

Green building—the construction of buildings designed to minimize environmental impact and resource use—has become significantly more common in the past decade. Many local and state governments have enacted policies designed to stimulate green building. These policies generally include information provision, subsidies for private green development, and outright greenness requirements for all government buildings. Despite this growing commitment from government, as well as substantial evidence that green buildings are financially beneficial for private owners, the private sector has been slow to embrace green building. This Note argues that barriers to innovation in the real estate industry have rendered ineffective these local government attempts to stimulate green building and suggests that impact fees—fees imposed by local governments on land use development—will be more successful in pushing private real estate developers to build green. Although the use of these fees is subject to both state and federal constitutional constraints, an appropriately designed fee can maximize the effectiveness and efficiency of this proposal while also ensuring that the fees are constitutional.

The American Bar Association’s widely adopted Model Rule 1.8(g) requires that attorneys handling aggregate settlements obtain the consent of each client before the settlement is finalized. This method is well suited to cases involving small-scale tort litigation with few parties, but Rule 1.8(g) does not meet the complex demands of mass torts, which can involve thousands of plaintiffs represented by a handful of law firms. Rule 1.8(g) creates a procedural obstacle to the efficient settlement of mass torts while obfuscating the ethical role of plaintiffs’ counsel in these settlements. This Note proposes a modified Rule 1.8(g), drawing upon a successful procedure used in asbestos bankruptcies. By incorporating these mechanisms from the Bankruptcy Code into the Model Rules of Professional Conduct, an alternative Rule 1.8(g) would reduce the costs of mass tort settlement, improve the clarity of the aggregate settlement rule, and protect clients from ethical misconduct by their attorneys.

The indefinite detention of prisoners at Guanta ́namo Bay Naval Base raises serious concerns about what rights those detainees are entitled to and whether detainees will have the power to exercise them. How, for instance, could a detainee pursue a meaningful appeal of a decision of the Combatant Status Review Tribunal without effective assistance of counsel? How could a detainee challenge his detention when the U.S. government renders that detainee to foreign custody? The All Writs Act, a broad and historic statute originally codified in the Judiciary Act of 1789, provides that “courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act grants the courts equitable power to issue injunctions that ensure that litigants’ substantive rights are not frustrated by interstices in the applicable law. It is in this Act that district courts exercising habeas corpus jurisdiction found detainees’ rights to effective assistance of counsel and thirty days’ notice prior to transfer to foreign custody. While the Military Commissions Act stripped the courts of habeas jurisdiction with respect to alien enemy combatants, the equitable power granted by the All Writs Act can attach to any jurisdiction, including the appellate power given to the D.C. Circuit Court of Appeals to review determinations made at Guanta ́namo Bay. This Note provides a roadmap that courts should apply when considering whether to issue an All Writs Act injunction, and concludes that such injunctions are not only permissible but also an appropriate and important exercise of the courts’ power.

There is widespread confusion both in policy circles and in the academic literature about how to measure the progressivity of a tax change. The confusion is particularly vexing because policymakers and analysts often rely on progressivity as a guidepost in constructing and analyzing policy, but do little to justify the particular progressivity measures that they employ. Progressivity measures—which can differ considerably from one another—tend to be picked haphazardly or chosen based on arguments that have rhetorical flair but lack normative substance. Thus, policy is being constructed and evaluated based on distributional measures that may not be meaningful and, in fact, may be misleading. This Note proposes a framework for analyzing measures of progressivity. In particular, if the measures are to gauge accurately changes in tax fairness, progressivity measures must be rooted in whatever theory of distributive justice motivates our concern for distribution. This Note applies this approach and draws connections between particular measures of progressivity and individual theories of distributive justice.

The Earned Income Tax Credit (EITC) provides financial assistance to low-income workers through a refundable tax credit. The EITC, which has received strong bipartisan support since its introduction in 1975, now represents the nation’s largest anti-poverty program for non-elderly individuals. In this Note, I contend that the EITC’s historical development failed to account for (and prior scholarly analysis of its impact on labor supply decisions have ignored) the important role of informal employment in the lives of the working poor. This Note presents the first analysis of the financial impact of government transfer and tax programs on the decision to report informal income—income that, were it reported, would be otherwise legal. As the Note’s analysis reveals, while drastic changes in both tax and transfer programs may be necessary to provide financial incentives for many households with children to report informal income, more targeted changes to the EITC could pro- vide strong incentives for childless informal workers to report. The Note argues that the benefits to both individuals and society, financial and otherwise, of tax reporting by low-income individuals engaged in informal work merits reconsideration of the EITC’s overall structure and administration. Administrative and policy innovations described in the Note are also necessary to maximize reporting compliance.