Dillon's Rule Under the Burger Court: The Municipal Liability Cases

Under the Burger Court, the constitutional relationship betweenstates and their municipalities has been examined primarilyin cases involving private suits initiated against municipalitiesunder federal antitrust and civil rights statutes. Since theCourt's 1943 Parker v. Brown decision, it had been presumedthat municipalities as political subdivisions of states wereas immune as their states from tort liability under the ShermanAntitrust Act. The Burger Court, however, ruled that municipalitiesare not automatically immunized from tort liability simply becauseof their status as political subdivisions unless they can demonstratethat their actions were undertaken pursuant to an expressedstate policy. After 1980, the Court continued to uphold thevulnerability of municipalities to private suits authorizedby federal statutes, but moved to narrow the types of remedyappropriate under common law. The Burger Court did not, therefore,address the more fundamental question of whether municipalitiesas public actors should be liable to private damages in thecourse of their public functions.     

The Limits of Judicial Desegregation Remedies after Missouri v. Jenkins

How far can federal courts go to remedy unconstitutional segregation?In Missouri v. Jenkins in 1990, the U. S. Supreme Court appearedto add new taxing powers to the existing tools already availableto the judiciary. By a 5–4 vote, the Court affirmed court-orderedtaxation to fund an elaborate and expensive desegregation planfor the Kansas City, Missouri, School District. This articleexamines that decision, how it developed, what it said, howit was received, and, most important, what its long-term significancemay be. We argue that the "new" judicial taxing authority sanctionedin the decision may not prove nearly as important as at firstanticipated In the long run, Missouri v. Jenkins may prove mostsignificant for the questions about desegregation remedies raisedby Justice Anthony Kennedy in a dissenting opinion. Those questionscould presage a more skeptical Court outlook on substantiveschool desegregation remedies, at least where those remediescall for additional public funding, as well as greater Courtdeference to the outcomes of state-local political processes.     

Constitutional Law and the Protection of Subnational Governments in the United States and West Germany

In Garcia v. San Antonio Metropolitan Transit Authority (1985),the U.S. Supreme Court concluded in a 5–4 decision thatthe Tenth Amendment does not protect state and local governmentsfrom federal intervention into their "traditional governmentfunctions." The Court majority insisted instead that the protectionof state and local functions lies in the political process and,thus, reversed the previous majority decision in National Leagueof Cities v. Usery (1976). Constitutional provisions in WestGermany grant the states a general protection rather comparableto the Tenth Amendment. These provisions also give explicitprotection to local governments. In spite of the apparent differencesthat suggest greater legal protection for their autonomy, Germanstates and local governments are now sharing most of their protectedfunctions with the federal government in a complex system ofintergovernmental relations. The Federal Constitutional Courthas allowed numerous federal and/or state incursions in localgovernment decisionmaking based on considerations of the commongood.     

Federal Judicial Remedial Power: The Yonkers Case

The United States District Court in 1985 determined that Yonkers,New York intentionally segregated public housing and publicschools by locating nearly all of its public and subsidizedhousing in one section of the city. Although the city initiatedactions to promote school integration in compliance with a courtorder, the city council refused to implement the housing remedyorder. Failure of the council to implement a consent order in1988 led to the U.S. District Court holding the city and fourcouncil members in contempt of court and imposing fines. Thedesegregation decision was upheld by the U.S. Circuit Courtof Appeals and by the U.S. Supreme Court. The court of appealsupheld the contempt rulings against the city and the four councilmembers, and the Supreme Court granted the council members'petition for issuance of a writ of certiorari. The council membersraised procedural objections, charged the district court withabuse of discretion, maintained that the remedial ordinancecould not be adopted by the specified date without violatingthe state's notice and hearing requirements, and claimed legislativeimmunity and protection under the First Amendment. The SupremeCourt in 1990 held that the district court's contempt sanctionswere "an abuse of discretion" and that the district court shouldhave limited its contempt sanctions to the city of Yonkers andnot to the councilmen. The Court did not address the questionof whether local legislators possess legislative immunity.     

Should the High Court Consider Policy Implications in Deciding Cases?

If the High Court is to consider policy implications when making judicial decisions, a number of preliminary matters require examination. First, what parliaments, executive governments and other instrumentalities will be affected? Next, may the High Court validly exercise this function? And last, is it likely to do so? I shall discuss these preliminary matters in the order stated and thereafter express my view on the question raised by the editors for discussion. In the course of discussion, I shall mention some incidental matters related to the High Court and its functions.     

Tocqueville on Mores and the Preservation of Republics

The chapter Tocqueville originally intended as a conclusion for the Democracy in America of 1835 is devoted to the causes that maintain a democratic republic. His main findings concern the political role of "mores." Conducting an implicit dialogue with Montesquieu and working from evidence available to no previous student of democracy, Tocqueville finds commercialism less supportive of democracy and mores (especially those connected with religion) more useful to democracy than his great predecessor had believed. Moreover, he draws attention to a "practical" form of "enlightenment" seen in the broad public internalization of democratic practice and norms. These discoveries did not lead to confident predictions about the republic's future, largely because much of what is useful in mores seems beyond direct political control. They did inspire his argument that modern democrats are best advised to make use of, rather than repudiate, the inherited mores. These mores, if adapted to new conditions, may help to support effective democratic practice.     

Outcome,Process and the Rule of Law

In this address, marking the 30th anniversary of the establishment of the Administrative Appeals Tribunal, Chief Justice Gleeson of the High Court speaks about several matters bearing upon decision‐making in administration and the role of administrative review. These include the impact of policy in individual decisions, and the relationship of merits review tribunals to courts. He notes that ‘one of the characteristic features of the context in which modern administrative law functions is a change in emphasis from the duties of public officials to the rights of citizens.     

Debating Same-Sex Marriage: Lessons from <Emphasis Type="Italic">Loving</Emphasis>, <Emphasis Type="Italic">Roe</Emphasis>, and <Emphasis Type="Italic">Reynolds</Emphasis>

The United States Supreme Court, in its 2015 Obergefell v. Hodges decision, declared a constitutional right to same-sex marriage (SSM). With Republicans now controlling the Congress and presidency, and with value-traditionalists and ‘strict’ constitutionalists influencing the party’s legislative agenda and judicial nominees, Obergefell’s future and the contours of SSM rights are uncertain. Proponents assume the decision will delegitimate opponents, just as Loving v. Virginia (1967) accelerated the delegitimation of racial segregationists. SSM opponents counter with the Court’s 1973 Roe v. Wade ruling and argue that, like Roe, Obergefell undermines the democratic process, which is better suited to resolve a highly-charged moral dispute. Like Roe, Obergefell will not resolve the debate but, instead, trigger a durable opposition. We add a third possible path, drawing on the evolving public discourse on polygamy since the Supreme Court upheld prohibitions in Reynolds v. United States (1878). The politics of polygamy shows that, if SSM opponents are delegitimated, they may reemerge as legitimate participants in the public sphere. These paths offer insights into uncertainties, contingencies, and predictions regarding the durability of SSM resistance and other oppositional movements. They also lead to revisionist interpretations of the effect on public discourse flowing from these three seminal court decisions. The politics of interracial marriage (after Loving) shunned the losing political faction from the public forum, while those of abortion (after Roe), and, recently, polygamy, illustrate a more vibrant, pluralist model of deliberation. Whether SSM opponents will mimic a Roe model, or follow the trajectory of Loving or Reynolds, is now the question.     

Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions

This article examines the mass public's perceptions of the factors that actually influence Supreme Court decisions as well those that ought to influence such decisions. We expect significant discrepancies between what the public believes ought to be the case and what it perceives to actually be the case with regard to Supreme Court decision making and that these discrepancies have a significant negative impact on the public's assessment of the Court. More specifically, we hypothesize that the public believes that political factors have more influence on the Court than ought to be the case and that the public perceives traditional legal factors to be less influential than they should be. We find that the expected discrepancies do exist and significantly detract from popular regard for the Court.     

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Federalism jurisprudence shapes the powers that public administrators have to achieve policy priorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding of the environment in which public administrators work rests on a careful analysis of U.S. Supreme Court decisions. The authors review claims that a 2005 decision, Gonzales v. Raich, terminated a federalism revolution that had been ushered in a decade earlier. Does Raich in fact mark the end of the Supreme Court's federalism doctrine? Analysis of this question clarifies whether the past and current Court has articulated any direction touching on administrators' powers at both the national and state levels. The authors argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of jurisprudence for what is says about the foundations of federalism such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment, spending clause, and statutory interpretation issues.     

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy‐conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy‐conferring function, is perhaps overstated.     

New State Equality: The Ambiguous History of a Constitutional Principle

In Coyle v. Smith (1911), the U.S. Supreme Court ruled thatCongress could not impose admissions conditions on new statesthat detracted from their equal standing in the union. Previously,the Court had deferred to Congress' authority over federal territoryand over its own membership. Before the Civil War, federal interestsin new states—particularly with respect to public lands—weresecured through admissions conditions. Later, however, admissions"compacts" became increasingly redundant; the Court groundedfederal property claims in the new states on the "rules andregulations" provision of the Constitution. Meanwhile, in aseries of decisions, the Court began to uphold the "municipalsovereignty" of the territories against congressional interference.Congress' authority in the territories was progressively limitedto that of acting as "trustee" for future states. These doctrinaldevelopments culminated in Coyle. The Court challenged Congress'right to set invidious admission conditions and asserted itsown jurisdiction over the state-making process. The new stateequality principle thus became "constitutional" as the Courtextended its authority. I wish to thank Herman Belz, University of Maryland, for helpfulcriticism.     

Privacy as Autonomy vs. Privacy as Familial Attachment: A Conceptual Approach to Right to Privacy Cases

This article explains why the Supreme Court's privacy jurisprudence has become deeply problematic for addressing emerging reproductive and sexual choice issues, focusing on abortion funding, minors seeking abortions, adults engaging in consenting homosexual sex, and pregnant women accused of abusing their fetuses. The article makes two arguments. First, it contends that what is private about the rights asserted in cases like Eisenstadt v. Baird and Roe v. Wade has never been fully articulated nor defended, leaving these central decisions conceptually unpersuasive. Second, the article shows that "privacy" is used in two very different senses in Supreme Court constitutional right-to-privacy decisions: one rooted in respect for marriage and the family, the other in notions of personal autonomy. Although both senses deserve to be protected, the court has tended to prefer the familial sense of privacy to the autonomy one, with serious consequences for privacy concerns that are not connected to family relationships or that are perceived as undercutting "family values."     

Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation

What has been the impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to disparate‐impact liability if it fails to the take the race‐conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.     

Is Federalism a Political Question? An Application of the Marshallian Framework to Garcia

In Garcia v. San Antonio Metropolitan Transit Authority (1985)the Supreme Court relegated the matter of the wages and hoursof local government employees to the national political processas though the issue were a political question. More importantly,the Court left the determination of whether the issue requirednational political resolution up to Congress. This article appliessome of the writings of John Marshall to the Garcia case inorder to ascertain whether national political resolution ofthe issue was appropriate. Under Marshall's framework, matterswhich involve the enumerated powers of Congress or the impliedpowers of Congress are political issues. However, in contrastto the holding in Garcia, the question of whether a particularissue involves an enumerated or an implied power is a matterappropriate for judicial scrutiny.     

Presidents,Supreme Court justices,and racial equality cases: 1954–1984

This research assesses the policy success of presidents since Eisenhower in their appointments to the U.S. Supreme Court in racial equality cases from 1954–1984. The research examines presidential preferences in a much more detailed and sensitive manner than previous research. While past research has used presidential party as a measure of the policy preferences of presidents, we examine policy preferences in a very direct manner. Specifically, the preferences of presidents on racial equality issues are gauged by their public policy statements. These statements serve to tap the degree of liberalness, the level of attention, and the level of concern with judicial actions in racial equality matters. The results demonstrate that presidents have been much more successful in appointing like-minded justices than is suggested by the existing literature. In addition, it is shown that prior judicial experience is not related to presidential success. This is discussed in terms of the perennial debate over the political control of the Supreme Court and the congruence of Court policy making with majoritarian values.     

The economic impact of state restrictions on abortion: parental consent and notification laws and Medicaid funding restrictions.

State-legislative support for liberalized abortion policies, the availability of abortion providers, and actual abortion rates vary widely across states. This article uses national data to examine the impact of the following three major, enforceable state abortion restrictions as of 1988 on the access to and use of abortion services: state restrictions on Medicaid financing of abortions for low-income women (36 states), state requirements for parental consent or parental notification for minors to obtain abortions (11 states), and state restrictions on insurance coverage of abortion for public employees (8 states). The impact of state abortion restrictions is becoming an increasingly important policy issue as the number and types of restrictions which can be enforced in the US increase rapidly. The Supreme Court in Webster v. Reproductive Health Services (1989) upheld a Missouri law banning abortions in public hospitals and the involvement of public employees in the performance of abortions; states via this ruling may also enforce mandatory testing for viability after a specified point in the pregnancy. The Supreme Court then in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) effectively ruled that states can enforce a 24-hour waiting period and a state-prescribed talk on abortion for women seeking abortion. Analysis of the data found that there are significantly fewer hospitals, clinics, and private physicians' offices providing abortions in states with parental consent or notification laws. Moreover the rate of minors' abortions per 1000 teen pregnancies is 16% lower, and the rate of minors' abortions per 1000 women aged 15-19 is 25% lower in states with such laws compared to states without the laws. Data from abortion clinics and referral services in Massachusetts, Minnesota, and Rhode Island suggest that 20-55% of minors are going to court instead of informing their parents. 35% of minors who contacted a clinic in Massachusetts and 49% in Rhode Island went out of state for abortions. As for Medicaid restrictions, there are significantly fewer hospitals, clinics, and private physicians' offices providing abortions in states which restrict funding of abortions as compared to states which do not. State restrictions on insurance coverage of abortion for public employees do not appear to be associated with statistically significant differences in abortion rates or abortion availability.     

Sector Switching from a Business to a Government Job: Fast‐Track Career or Fast Track to Nowhere?

This paper examines the career consequences for public managers of having had full-time private sector work experience. We find positive career outcomes for public managers with private sector experience: Individuals with such experience are more likely to have been recently promoted relative to peers and to supervise somewhat greater number of employees, especially if their most recent job was in the private sector. While experience in the private sector enhances such career outcomes, the length of such experience diminishes them. The authors conclude by identifying three career scenarios emerging from the models and discussing the managerial and theoretical implications of "sector-switching careers."     

International Comparison of Public and Private Employees’ Work Motives,Attitudes, and Perceived Rewards

This article presents a conceptual perspective on the distinctive characteristics of public organizations and their personnel. This perspective leads to hypotheses that public organizations deliver distinctive goods and services that influence the motives and rewards for their employees. These hypotheses are tested with evidence from the International Social Survey Programme in order to compare public and private employees in 30 nations. Public employees in 28 of the 30 nations expressed higher levels of public‐service‐oriented motives. In all of the countries, public employees were more likely to say they receive rewards in the form of perceived social impact. In most of the countries, public employees placed less importance on high income as a reward and expressed higher levels of organizational commitment.

Practitioner Points

• The findings presented here add to previous evidence that public employees seek and attain more altruistic and public‐service‐oriented rewards than private sector employees. In particular, we add evidence that these differences hold in many different nations and cultural contexts.
• Compensation and incentive system reforms in many governments have often concentrated on financial incentives and streamlining procedures for discipline and removal. Such matters are important but should not drive out concerns with showing public employees the impact of their work on the well‐being of others and on the community and society. Leaders and managers should invest in incentive systems that emphasize such motives and rewards.
• Leaders and managers should invest in the use of altruistic and socially beneficial motives and rewards in recruiting systems.

     

Not Seeing Eye to Eye on Frontline Work: Manager‐Employee Disagreement and Its Effects on Employees

The author uses nationally representative data on matched pairs of public school principals and teachers to test whether principal–teacher disagreement about the severity of school problems is associated with teacher turnover. More specifically, the author tests a managerial efficacy hypothesis that proposes that employees will be less likely to leave their jobs when their managers perceive problems to be severe, holding employees’ perceptions of the same problems constant. The author also tests a managerial buffering hypothesis that proposes that employees’ perceptions of problem severity will be more weakly related to their turnover probability when managers perceive problems to be severe. Little evidence is found for either hypothesis, raising questions about public school principals’ ability to translate problem recognition into problem remediation. More generally, the findings suggest a reexamination of the generic claim that “management matters,” which implies that public managers have the power to do things that can help employees perform their jobs well.