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Campaign finance law presents quite a puzzle: It is an area of federal policy closely tied to the interests of incumbents in the political branches, and yet, it is controlled to a great extent by unelected federal court judges. While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law. Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law?
This Article examines the role political leaders played in judicializing campaign finance policy. In a survey of nearly a century of law, and in a close analysis of the legislative record, I make a number of surprising findings. I discover that there has been great variation in judicial review over this history and that it correlates directly with the choices activists and political leaders have made to mobilize legal institutions in the making of campaign finance policy. Moreover, I find that political leaders have maintained the upper hand in this: Where the efforts of independent policy activists ran counter to their interests—as they did for a brief period prior to Watergate—legislators quickly changed jurisdictional rules to foreclose activists’ access to federal courts. But, even as they restricted public interest litigation in the field, legislators actually moved to judicialize the policy still more, and continued to do so even after the Supreme Court substantially altered the law with its Buckley v. Valeo ruling. In fact, from 1974 onward, Congress deliberately delegated to the judiciary the power to interpret, enforce, and ultimately remake policy. This history reveals that campaign finance reform has long been a process of making law with lawsuits, where courts enjoy significant discretion to revise policy not primarily because of their own activism, but because political leaders have given them the job. . .
At the time of writing, the academic discipline of legal writing has just celebrated its twenty-fifth birthday in the United States. This is a significant milestone and the discipline enters its second quarter century in impressively robust health: It has three professional organizations dedicated to it, three specialist journals, an ever-expanding bibliography of articles published in other journals and law reviews, two listservs and at least one blog, and a library full of books devoted to its study and teaching. Most law schools in the country employ faculty dedicated to teaching legal writing, many of them adjuncts, to be sure, but many more as full-time teachers. Indeed, because the recognized best-practices model of teaching legal writing involves relatively small classes, it is likely that there are more teachers of legal writing in the current American legal academy than there are for any doctrinal subject. There are, of course, numerous challenges still to be faced by those teaching in the area, but it would be difficult not to view the rapid growth and integration of legal writing into the American legal curriculum as an almost complete success story. . .
A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child. A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live. The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war. Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults. Similar inconsistencies still remain regarding minors’ abilities to choose with whom they wish to live.
The United States Supreme Court decided Meyer v. Nebraska in 1923 and established the fundamental rights to marry, to establish a home, and to raise children. By 1944, the Supreme Court limited these rights for minors in Prince v. Massachusetts. Since the Prince decision, a patchwork of federal and state laws has impacted a minor’s right to determine his or her living situation. The time has come to make sense of the patchwork and provide consistent results for minors in the family-law system. . .
The Supreme Court has long stressed the importance of providing equal education opportunities to children. Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct “absent fundamentally fair procedures to determine whether the misconduct has occurred.” The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades.
Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws. The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA). Over time, amendments improving the EHA were made, and it is now better known as the Individuals with Disabilities Education Act (IDEA). . .
In the wake of the Great Depression, Congress enacted the Securities Act of 1933 (1933 Act) and the Securities Exchange Act of 1934 (1934 Act). Together, the Acts provide the Securities and Exchange Commission (SEC) with broad authority over the securities industry, and institute methods for holding those who commit securities fraud liable. Section 15 of the 1933 Act and section 20(a) of the 1934 Act establish controlling person liability, a mechanism for establishing secondary liability against corporate directors and officers for securities fraud committed by their subordinates. Section 15 of the 1933 Act merely permits controlling person liability to be pursued if very limited types of securities fraud have been committed. As a result, pursuing a controlling person liability claim under section 20(a) of the 1934 Act has historically been both the SEC and private litigants’ preferred course of action as it broadly allows for secondary liability to be attached to any underlying security claim within the Act.
While drafting both Acts, Congress consciously refrained from defining the term “control” because it believed that courts could effectively apply the term depending on the given facts of a case. Therefore, varying standards of controlling person liability have evolved throughout the judicial system, including within federal circuit and district courts. Recently, in continuing efforts to protect investors, Congress has enacted a substantial piece of legislation that may help shed light on the inconsistent application of controlling person liability: the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). . .
Wind power is now the fastest growing source of alternative energy in the United States, due in part to desires to increase utilization of cleaner energy and to withdraw from dependence on foreign energy. Studies have shown that if properly harnessed, the United States has enough wind-energy potential to provide well over the amount of electricity currently consumed nationally. Capitalizing on this potential, thirty-eight states currently maintain utility-scale wind projects, with fourteen states amassing over one thousand megawatts (mW) of energy from these projects. Although all current wind power generated in the United States is produced through land-based operations, the country is pursuing offshore projects—specifically the perpetually delayed Cape Wind project located off the coast of Massachusetts. If the United States wants to continue expansion of wind power both efficiently and lucratively, it must develop a regulatory scheme designed, updated, and maintained specifically for this growing market.
The United States does not have any centralized regulatory, statutory, or administrative authority designed specifically to address wind energy. Potential wind projects—often-called wind farms—must traipse through a mire of local, state, and federal regulations, few of which provide regularity or guidance from project to project. On the federal level, an amalgamation of statutes governs various facets of a wind project’s evolution: permitting, development, decommission, taxation, and rights to opposition are all governed by many different laws. In addition, states generally have their own radically different approaches to handling wind power. Many states even allow cities and towns to pass their own ordinances for handling wind power, which often result in moratoriums or competition between neighbors for lucrative turbine leases. Without any national voice or approach to the development of wind technology, the United States is at a dramatic disadvantage to countries that have taken a proactive approach to wind technology’s introduction. . .
Zoning laws in the United States came into existence at the turn of the twentieth century and were deemed constitutional under state police power. Since zoning’s inception, states have delegated the bulk of zoning authority to local municipalities, and accordingly, this area of the law is quite diverse. The manifold nature of zoning is strikingly evident at the judicial-review level, where courts grapple with upholding zoning’s legal underpinnings, while at the same time maintaining deference to local decision-making. The interplay between state and local authorities results in a body of law that can be, at times, contradictory and unpredictable.
To have standing to oppose an act of a local zoning board, Massachusetts law requires a person to be “aggrieved”; however, courts’ attempts to define aggrievement have yielded inconsistent results. Recently, in Kenner v. Zoning Board of Appeals, the Massachusetts Supreme Judicial Court (SJC) attempted to clarify the standard, but only managed to further shroud standing laws in confusion and ambiguity. In essence, the SJC raised the bar for threshold standing determinations, and in doing so, utilized vague and imprecise language in defining aggrievement. In addition, the SJC created potential disruption in the well-settled area of the law of particularized harm. . .
On January 14, 2010, Phoebe Prince, a fifteen-year-old Irish immigrant and student at South Hadley High School, took her own life. While the reasons for Phoebe’s suicide remain unknown, what emerged in the broader media coverage of her death was an allegedly systemic pattern of bullying throughout her high school, a pattern ignored by administrators, faculty, and parents. Phoebe’s enemies attacked her with verbal insults, both in school and electronically outside of school, via Facebook.
Massachusetts officials sprang quickly into action after the media onslaught following Phoebe’s death. Northwestern County District Attorney Elizabeth Scheibel charged five of Phoebe’s classmates with a multitude of crimes stemming from their reported bullying of her, including civil-rights violations with bodily injury, criminal harassment, and stalking. The Massachusetts General Court also acted swiftly, passing what many experts deem the most sweeping and powerful antibullying statute in the nation. The statute creates a broad scope of illegal activities for which students can face punishment, including incidents of cyberbullying that occur outside school walls. Because the statute grants school administrators unique authority, Massachusetts now stands as a model testing ground for the national movement to curb bullying incidents in public schools. . .
Next time you go shopping, look at the sales price of an item you want to buy. Compare that price with the somewhat higher price you actually end up paying. That difference is what we all know as a sales tax. Now, sign on to amazon.com (Amazon) and look up the exact same item. You will likely notice that the online price is lower than it would otherwise be in a brick-and-mortar store. You will also notice that unless you are in one of the nine states in which Amazon must charge a sales tax, the final sale price is the same as the ticket price.
Although seemingly unfair, this difference in price between the local brick-and-mortar store and the pure-play online retailer is consistent with the 1992 Supreme Court holding in Quill Corp. v. North Dakota. In Quill Corp., the Court held that a state has taxing authority over an out-of-state retailer only when that retailer has a “physical presence” within the taxing state. Despite the immense expansion of both the Internet and electronic commerce (e-commerce), the 1992 case continues to control today. Consequently, cash-strapped states have become more invested in seeking alternatives that would require out-of-state retailers to charge their in-state consumers a sales tax at the time of purchase. . .
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a public trial. This right, although fundamental, is not absolute. The Supreme Court has held that a criminal defendant’s public-trial right extends to pretrial proceedings including suppression motions and voir dire of potential jurors. Moreover, several circuit courts considering the matter have concluded that the right to a public trial also includes jury-selection proceedings and omnibus hearings. State courts, especially Massachusetts courts, have followed suit in finding structural error when the courtroom is closed during voir dire, jury selection, or trial.
The Sixth Amendment also guarantees a defendant’s right to be tried by an impartial jury. An impartial jury comprised of the defendant’s peers aims to prevent overzealous prosecution and biased judges. Jury-selection proceedings protect criminal defendants by finding an impartial cross section of the community. This cross section is derived from a panel of prospective jurors, called a venire. . .