Volume 71, Number 5

Long perceived as acting in splendid isolation,the legislative and judicial branches have become increasingly intertwined. The judiciary is becoming more involved in the legislative province of statutory reform, and Congress has inserted itself more frequently into the judicial territory of procedural rulemaking. In this Article, Professor Geyh observes that a new, interactive paradigm has replaced the perceived model of separation and delegation between the branches. As the judiciary and Congress have grown more enmeshed, the judiciary’s reputation has suffered, both from a Watergate-vintage mistrust of all things governmental and from a perception that judicial activism is born of self-interest. Rather than seeking to untie the Gordian knot created by increasing judicial-legislative interaction, Professor Geyh advocates taking this interplay to a higher, more systematized level. He proposes the creation of an Interbranch Commission on Law Reform and the Judiciary. Composed primarily of representatives from the judicial, legislative, and executive branches, the Interbranch Commission would review statutory proposals affecting the judiciary as well as procedural rule reforms. Professor Geyh acknowledges that there are no “one-trick pony” solutions to the problems caused by interbranch interaction, but he offers the Interbranch Commission as a novel way of dealing with the new paradigm.

In June 1994, the United States Supreme Court handed down a decision which, for all its real or imagined inventiveness, followed tradition in at least one important respect. Dolan v. City of Tigard, the eagerly awaited addition to the Rehnquist Court’s already controversial takings jurisprudence, said a mouthful about the constitutional status of the Takings Clause and the shape of the regulatory takings doctrine. Along the way, and almost matter-of-factly, the Court announced a shift in the burden of proof to the government. However, while it devoted a great deal of effort to its discussion of constitutional issues and state takings cases, the Dolan Court chose to make this burden shift without extended comment and confined its remarks to the space of a short footnote and a few lines of text. That a burden of proof shift occurred so quietly, yet coincided with considerable advancement in the substantive law, represents a familiar judicial tactic.

The American legal system views the relationship between parent and child as sacrosanct, only to be severed through a knowing, voluntary relinquishment by the parent or through a formal court proceeding known as a termination of parental rights (TPR). Termination of parental rights fundamentally affects the relationship between parent and child. For the parent, termination means the irretrievable loss of “the companionship, care, custody, and management of his or her children.”‘ For the child, termination raises the specter of total loss of the parent as well as loss of “‘the right of support… ; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period…, but forever.”‘

Once a court finds that a teacher has sexually harassed a student, it must decide whether the school should bear liability for the teacher’s harassment. While most agree that the teacher should be held liable for his actions, many courts disagree as to the liability of the institution that employs the teacher. When should a school district be held accountable for a teacher’s misconduct? Title IX of the Education Amendments of 1971 “[u]nquestionably … place[s] on [educational institutions] the duty not to discriminate on the basis of sex.” Sex-based discrimination resulting from sexually harassing conduct by a teacher may manifest itself in various forms: For example, a teacher may make sexual comments, leer, or inappropriately touch a student; he may make offensive sexual advances toward a student; he may solicit or coerce sexual acts from a student by promising to grade the student highly if the student complies or by threatening to fail the student if she does not; and he may rape a student. Although Title IX allows a student to bring a claim against a school for such abusive misconduct by a teacher, no definitive legal standard for assessing liability currently exists. In addition, the standards that are applied today by most courts are inadequate: They fail to provide schools with sufficient incentives to create effective preventive and monitoring measures against harassment, and they fail to provide students who have been sexually harassed with appropriate relief under Title IX. A superior standard is needed.

LoCal, a local electric utility company, plans to expand its service into the newly developed outskirts of Anytown. To effectuate this plan, it must build new electric transmission and distribution lines through several existing neighborhoods. Despite vigorous opposition from homeowners groups, the public utility commission approves the placement and construction of the new power lines. Within a few months, LoCal acquires the necessary property through eminent domain, and condemnation proceedings begin.

We are honored to publish this keynote address delivered by Justice Breyer in a ceremony held at the Capital Rotunda, Washington, D.C., to mark Yom Hashoah, the Day of Remembrance, on April 16, 1996.