SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Incumbent Landscapes, Disruptive Uses: Perspectives on Marijuana-Related Land Use Control
No full textThe story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with the fact that many jurisdictions are embracing a type of “legality innovation” regarding marijuana. I define “legality innovation” as that effect which begins with the change in law that leads to the development of the lawful relevance of, lawful business regarding, and legal use for a newly-legal product, the successful deployment of which depends on the relative acceptance of the general public which must provide a venue for its operations along with the relative change in the consuming public’s attitudes as a result of the introduction of legality.Marijuana-related land uses are and will be controversial. Regulatory responses, neighborhood disputes, permit battles, and opposition coalitions are all predictable both as a matter of logical analysis in light of legal standards but also, very importantly, due to the lessons of history with similarly-situated, precursor land uses like liquor stores, adult entertainment, bars, nightclubs, massage parlors, and the like leading the way. The Article also discusses the role of incumbent interests groups in shaping the new marijuana-related regulatory structure, including revealing Baptist and bootlegger coalitions that exist to oppose relaxation of marijuana laws and thwart land use successes of the marijuana industry in order to maintain their incumbent value or profit position. Finally, the Article engages with the growing literature in the social sciences on place and space, examining how the spaces and places we inhabit and in which we conduct our business and social affairs are necessarily impacted whenever legality innovations like we are seeing with marijuana work to disrupt the incumbent landscape
Vertical Federalism, the New States’ Rights, and the Wisdom of Crowds
No full textThe framers were concerned that the rights found in the Constitution were mere statements—“parchment barriers”—that would not be enough to protect the people from the abuse of power. Thus, they sought to control power by separating it. This separation of powers within the federal government is not the only method the framers designed to preserve liberty. They also embraced another form of Newtonian mechanics to balance power and thus preserve liberty—what we may call vertical separation—using the states to check the power of the federal government. The states, no less than the three branches on the federal level, protect the liberty of the people by dividing power between the federal and the state governments. Vertical federalism protects our liberties and makes us the envy of the world, first, because the states are an important counterbalance to the federal government. The framers used power to limit power. Second, because when the independent states go their independent ways they implement what the economists call the “wisdom of crowds.
Applying the Revised ABA Model Rules in the Age of the Internet: The Problem of Metadata
No full textWhen lawyers receive a document — whether hard copy or an electronic document — that they know the adversary sent them inadvertently (for example, a fax or email mistakenly sent to an adversary lawyer instead of to co-counsel), the black letter rule in Rule 4.4 requires the lawyer to notify the other side. However, this Rule does not require the receiving lawyer to return the document unread. Whether the receiving lawyer can use that document depends, in essence, on the law of evidence. If the court decides that the document lost its privileged status (perhaps because the sending lawyer acted unreasonably), the receiving lawyer can use the document.In some cases, the sending lawyer sends a document advertently (for example, in response to a discovery request). In that situation as well, the lawyer should be able to use the document, unless some other law, such as the law of evidence, says otherwise. For example, the sending lawyer advertently sent over a large group of documents, one of which is a privileged document that the sending lawyer did not intend to disclose. In many cases, courts will hold that the document in question remains privileged if the sending lawyer acted reasonably. Hence, the receiving lawyer should not use that document in that particular circumstance. As stated in Formal Opinion 05-437, “Rule 4.4(b) thus only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. The rule does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer.”The Restatement (Third) of the Law Governing Lawyers also concludes, it “is not a violation [of legal ethics] to accept the advantage of inadvertent, and even negligent, disclosure of confidential information by the other lawyer, if the effect of the other lawyer’s action is to waive the right of that lawyer’s client to assert confidentiality.” Moreover, if the receiving lawyer may use the document, the receiving lawyer should be able to examine and use all of the information within the document, including information embedded within the document. That information may be embedded in a hard copy document (such as fingerprints, the age or type of the paper), or it may be embedded in a digital document (metadata). If the sending lawyer does not want the receiving lawyer to look at metadata, he or she should not send it. As ABA Formal Opinion 06-442 advised, the Model Rules do not prohibit lawyers from discovering and using metadata found in documents that other lawyers transmit to them, even though the other lawyer may not know that the electronic version of the document contains metadata.However, in 2012, the ABA added a new Comment to Rule 4.4, which provides that Rule 4.4 creates an obligation on the receiving lawyer “to promptly notify the sender” only when “the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.” The concept of sending metadata inadvertently is peculiar when applied to a lawyer who advertently intends to turn over the particular document that contains the metadata. One wonders how the receiving lawyer should know that the sending lawyer sent the document advertently but sent the metadata “inadvertently,” when the sending lawyer turns over the digital document pursuant to discovery and does not claim that the document itself (as opposed to the metadata within it) was sent by accident. After all, no ethics Rule requires the receiving lawyer “to promptly notify” the sending lawyer that an analogue document has other data embedded within it — such as fingerprints, the age of the paper, and the age of the ink on the paper.In the midst of these Opinions, language in the Comments to ABA Model Rule 4.4, which the ABA House of Delegates added in 2012, confuses the matter. The Comments suggest that metadata in a digital document has an exalted position, in contrast to analogue data in a hard copy. The Report to the ABA House of Delegates did not make clear that it is exalting metadata or intending to overrule any ABA Formal Opinion. Yet, the changes in the Comments to Rule 4.4 treat metadata differently. There is no justification for treating metadata differently, as this paper explains.Given past history, many courts will simply refuse to follow the ABA’s lead on this issue, just as they have refused to follow the ABA’s efforts to ban non-misleading lawyer participation in internet chat rooms. Other courts may adopt these Comments, but may interpret them to mean very little by always concluding that the sending lawyers always meant to include the metadata on electronic documents that they voluntarily turned over to the other side
Local Home Rule in the Time of Globalization
No full textCities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature, and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised for confronting are, almost by definition, the very sort of matters that home rule doctrine prohibits them from addressing.This article has three goals: first, it aims to show why home rule has persisted in its present form despite its incompatibility with globalization; second, it explains some of the implications of our adherence to an outmoded conception of home rule; and third, the article draws on these observations to craft a new approach to home rule. I argue that the extant home rule doctrine is part of an ideology that the judiciary finds attractive, called liberalism. Liberalism seeks to disaggregate various aspects of human life – the state, the market, and the family, particularly – and assign them to distinct spheres. The dichotomy between statewide and local affairs is a means of preserving the boundaries among the state, the market and the family by tasking the state to regulate the marketplace and local governments to regulate the family. In light of globalization, however, it is clear that the liberal separation of spheres has had a different result. Following Karl Marx, scholars have argued that the separation of spheres has masked the dominance of capitalism, or, alternatively, the state, in all the putatively autonomous realms. Home rule has had precisely this effect. The idea that regulation of the family is local disguises the hegemonic role of the state in family matters, while the idea that commercial regulation is statewide has enabled capitalism to overwhelm regulatory constraints. I propose a new model of home rule that is not married to obsolete notions of separate spheres, and thus enables the local to serve as a vital counterweight to capital and the state
