Caution in the Classroom: K-12 Teacher In-Class Speech,The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.     

Judicial Review of Local Land-Use Decisions in California

The California courts have a reputation for sustaining local land-use controls where no other state court would do so. The reputation was certainly deserved prior to 1966, when courts still presumed that necessary findings to support a variance had been made and that the findings were properly supported. Prior to that time no appellate court had ever reversed the grant of a variance. This was changed, however, by Cow Hollow Improvement Club v. Dibene, 245 Cal. App. 2d 160;53 Cal Rptr. 610 (1966) and Broadway, Laguna, Vallejo Assoc. v. Board of Permit Appeals, 66 Cal.2d 767, 59 Cal. Rptr. 146,427 P.2d 810 (1967). Thereafter, where the ordinance required specific findings, findings on each of the standards for a variance had to be made and each had to be supported by substantial evidence. This standard was extended to the granting of conditional use permits and other major work of the zoning board of appeals in Stoddard v. Edelman, 4 Cal. App. 3d 544, 84 Cal. Rptr. 443 (1970). Cautious attorneys who recommended that such standards be applied even if not specified in the ordinance were also vindicated recently by Topanga Assoc. for a Scenic Community v. Los Angeles, 113 Cal.Rptr. 836 (1974).     

Diversity and Discontent: The Relationship Between School Desegregation and Perceptions of Racial Justice

A number of recent studies have explored the consequences ofinterracial peer effects on the academic and social performanceof minority students. This article contributes to that discussion,focusing, however, on perceptions rather than behaviors. Theanalysis suggests that exposure to white peers is associatedwith declining perceptions of racial justice among black andLatino high school students. While cautioning against causalinterpretations of this finding, the article suggests that theintegrationist aims of Brown v. Board of Education will notbe satisfied without more thoughtful and vigorous desegregationefforts.     

Evaluating the Role of Brown v. Board of Education in School Equalization, Desegregation, and the Income of African Americans

The public profile of the Brown v. Board of Education decisiontends to overshadow the well-established fact that racial disparitiesin school resources in the South began narrowing 20 years beforethe Brown decision and that school desegregation did not beginon a large scale in the Deep South until ten years after theBrown decision. We instead view Brown as a highly visible markerof public policy’s mid-century reversal on matters ofrace. When we examine the labor market outcomes of male workersin 1990, we find that southern-born blacks who would have finishedtheir schooling just before effective desegregation occurredin the South fared poorly compared to southern-born blacks whofollowed behind them in school by just a few years, relativeto northern-born blacks in same age cohorts.     

What's So Special about Specialized Courts? The State and Social Change in Salt Lake City's Domestic Violence Court

The nationwide growth in specialized or problem‐solving courts, including drug courts, community courts, mental health courts, and domestic violence courts, among others, raises questions about the role of the state with respect to social change. According to social control theories of the state, especially theories of technocratic or rationalized justice, law is increasingly about efficiency, speed, and effectiveness. Specialized courts, however, take on a social problem approach to crime, seeking to address crime's “root causes” within the individual, the society, and the larger culture in ways more characteristic of social movements. Are specialized courts about social control or social change? This study examines state action in a specialized court in domestic violence in order to examine this question. I focus on a domestic violence court that arose in February 1997 and four years later employed full‐time judges, prosecuting and defense attorneys, and numerous other staff to handle all misdemeanor domestic violence cases in Salt Lake County, Utah. I ask how legal, political, and community officials justify the court and its operation in order to examine some important issues about the role of the state and social change. Ultimately, I suggest that my findings about the complementary roles of social control and social change within domestic violence courts have implications not only for critical theories of technocratic justice and for the battered women's movement but also for democratic theories of the state.     

Once more with ‘sympathy’ but no resolution for intended mothers: the EU,Ireland and the surrogacy dilemma

This article examines the decision of the Court of Justice of the European Union (CJEU) in Z v A Government Department and the Board of Management of a Community School and the court’s interpretation of existing EU legislation on whether commissioning or intended mothers are entitled to paid leave equivalent to maternity benefit. It highlights the failure of the CJEU in this case to call for specific EU legislation on the issue of surrogacy. The Irish Courts have been more proactive in this regard. The Supreme Court has acknowledged that ‘pending the introduction … of legislation dealing with this field, it is … not for the courts to attempt to resolve the complex questions that need to be addressed’. This article compares recent decisions of the Irish Courts to that of the CJEU as they struggle to keep abreast with modern society in the absence of legislation at national and EU level.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Tarasoff in Missouri: The jurisprudence of a mental health provider's duty to warn and protect non-patients of potential risks from patients

In 1976, the Supreme Court of California issued its well-known Tarasoff Principle. From this principle, other courts found a duty to warn, and some found more than just a duty to warn, a duty to protect. As courts in other states adopted a version of the Tarasoff Principle, they issued a wide variety of third-party liability rules. In light of the dynamic, everchanging Tarasoff jurisprudence in the United States and recent relevant appellate court opinion in Missouri, a timely updated summary and update of Tarasoff-related jurisprudence in Missouri is warranted. In the present analysis, we compiled the four appellate court decisions that pertained to the questions of Tarasoff-like third-party liability in the State of Missouri: Sherrill v. Wilson (1983), Matt v. Burrell (1995), Bradley v. Ray (1995), and Virgin v. Hopewell (2001). We reviewed all legal measures for clinicians to protect nonpatients in Missouri, not just those that relate to protecting nonpatients from violence as in a Tarasof-like scenario. Thus, this paper concisely provides a compendium of such options and allows for a meaningful comparison of which legal, protective measures are mandatory and which are permissive, thereby evoking the question of whether measures of protecting nonpatients from a patient's violent acts ought to be mandatory duties or permissive application of professional judgment.     

On the Choice of Remedies

At a time when misuse of the power to zone seems to be increasing—some say rampant—when such misuse is frequently ignored even sanctioned by the courts, e.g.; Belle Terre v. Boraas, Steelhill v. Sanbornton, U.S. v. Black Jack (lower federal court), it is heartening to find a powerful court unite behind an articulate and powerfully worded opinion which strikes down an exercise of the police power (zoning) which legislates local biases and unreasonably excludes low income housing. There is an appropriateness too in that it is Justice Hall, some 12 years after his classic dissent in the Vickers case, who rationalizes a long line of often misunderstood New Jersey cases and the case law of other jurisdictions and concludes: “that every … municipality must, by its land use regulations, … make realistically possible an appropriate variety and choice of housing.” A strong concurring opinion further notes; “the use of the zoning power by municipalities to maintain themselves as enclaves of affluence or of social homogeneity … [is] improper and to be strongly condemned.”     

Preserving the Law’s Coherence: Citizens United v. FEC and Stare Decisis

In addition to striking down the portions of the Bipartisan Campaign Reform Act that limited the amount of money corporations and unions could spend on independent expenditures, Citizens United v. FEC overturned two decisions of the Supreme Court of the United States, an action that stands in contrast to the principle of stare decisis. This article analyzes the discussions of stare decisis in the various Citizens United opinions and compares these discussions to existing scholarly debate on the proper role of stare decisis in constitutional law. It also examines citations and discussions of Citizens United in state supreme court and federal circuit court of appeals cases to analyze how the justices’ discussions of stare decisis in Citizens United have influenced lower courts. The article concludes that the Citizens United opinions that discussed stare decisis — particularly Justice Anthony Kennedy's majority opinion and Chief Justice John Roberts’ concurrence — are highly problematic for a number of reasons. The applications of stare decisis in the opinions were also flawed. Citizens United has thus made it even easier for lower courts to abandon stare decisis and overturn precedent.     

SOME MISLEADING CONCEPTIONS IN SENTENCING RESEARCH

Most studies of sentencing practices in both adult and juvenile courts have compared the relative power to predict dispositions of “legal” variables, such as the seriousness of offense and previous arrest record, and “extralegal” variables, such as race and social class. It is suggested that this is a misleading model for research on the decision-making process in juvenile courts. Instead, results presented here indicate that the juvenile court uses a model of substantive decision-making oriented toward the character and social environment of offenders. Social background variables are found to be more important determinants of disposition than either “legal” or “extralegal” variables.     

Beyond Therapy: Problem‐Solving Courts and the Deliberative Democratic State

Problem‐solving courts (drug courts, community courts, domestic violence courts, and mental health courts), unlike traditional courts, attempt to get at the root of the individual and social problems that motivate criminal behavior. Theoretical understandings of problem‐solving courts are mostly Foucauldian; proponents argue that these new institutions employ therapeutic techniques that encourage individuals to self‐engineer in ways that subtly increase state power. The Foucauldian approach captures only some elements of problem‐solving courts and does not fully theorize the revolution in justice that these courts present. Problem‐solving courts, domestic violence courts in particular, orient not just around individual change but also around social change and cultural transformation. Combining the Foucauldian idea of a therapeutic state (as developed by James Nolan) with an understanding of the deliberative democratic mechanisms of larger‐scale structural transformation (found in Habermas and others) leads to a more balanced and empirically open orientation to the actual motivations, goals, and achievements of problem‐solving courts.     

Sex Matters

Abstract

Male and female inmates have different profiles and needs, and adapt to prison in different ways. When policy is made and implemented, however, the male model of imprisonment sets the standard. This article argues that courts and prison administrators should consider the differences between men and women in prison, particularly in the context of cross-gender searches, which brings those differences to the fore. The case of Jordan v. Gardner, in which the court recognized women inmates' specific histories of abuse in evaluating the potential psychological harm of cross-gender searches, is presented as an exemplary use of a gender-specific standard. It is recommended that a gender-specific standard be used by both courts and prison administrators in order to measure more appropriately and accurately the impact of cross-gender searches on women inmates.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

Stone v. Powell: The impact on state appellate court judges' perceptions

This study addresses the question of whether the United States Supreme Court decision of Stone v. Powell, 428 U.S. 465 (1976), has had a significant impact on the highest level state appellate courts. The study centered around a survey sent to every member of the highest appellate court hearing criminal appeals in each of the fifty states. The major finding of the research was that Stone v. Powell can be viewed along two dimensions: a narrow, substantive dimension applying the case as a Fourth Amendment exclusionary rule decision, or a broader, policy dimension of judicial federalism. It appears that, for the most part, state supreme courts have chosen to apply Stone v. Powell along the narrow, substantive dimension. Thus, state supreme courts have not assumed the position of equal partners with the federal courts in assuring adequate and appropriate disposition of federal claims.     

Arkansas Legislative Reforms Provide Framework for Change While Supporting Parens Patriae Philosophy of Juvenile Court

Changes in Arkansas's juvenile laws resulting from the school shootings in Jonesboro impacted two separate issues of the juvenile court process. The first law changed aspects of transfer provisions for processing juveniles as adults. Secondly, the law created new provisions allowing blended sentencing for juveniles who commit certain enumerated offenses. Both provisions are examined in this article. The authors examine the impact those changes had on the types and numbers of cases handled by the court and argue that the framework provided by Arkansas's Extended Juvenile Jurisdiction law illustrates a legislative response to juvenile violence that supports the concept of parens patriae and promotes the original purpose for which juvenile courts were created while balancing concerns for public safety.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Crawford v. Washington One Year Later: Its Practical Effects in Child Abuse and Domestic Violence Cases

A year after the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), the maelstrom that many legal scholars anticipated has failed to materialize. Crawford's abrogation of Ohio v. Roberts, 448 U.S. 56 (1980), and its articulation of the new standard for determining when the Sixth Amendment's Confrontation Clause applies to out‐of‐court statements, has had less effect than some predicted, regarding which statements are admissible and which are excluded. This article explores Crawford's practical effect as courts around the country have applied it, particularly in the context of child abuse and domestic violence cases.     

Lessons Learned from Developing a Trauma Consultation Protocol for Juvenile and Family Courts

Juvenile and family courts hold a unique position among the many stakeholders that comprise a healing community for persons experiencing adversity or trauma. Specifically, judges and other court leaders can promote the implementation of screening for trauma, the alignment of appropriate and effective treatment for trauma when indicated, and the accountability of systems for coordination and support of such services. To that end, the National Council of Juvenile and Family Court Judges undertook a field‐based project — consisting of multiple semi‐structured court surveys — to elucidate the key features of a trauma‐informed court and how to assist courts in becoming more trauma‐responsive for both consumers and staff. With the assistance of courts in 11 pilot sites across the nation, the project has led to the development of a protocol called trauma consultation or trauma audit, which is outlined here. Our work in developing the consultation protocol highlighted the need to better understand (1) the prevalence and impact of secondary traumatic stress in court staff, (2) the potential for environment to contribute to traumatic stress reactions, and (3) the importance of consistent trauma screenings and subsequent use of findings. Practical suggestions for courts to become more trauma‐informed are also provided.