SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The Emerging First Amendment Law of Managerial Prerogative
No full textIn Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.
This article rejects the scholarly consensus on Garcetti. The critics’ claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney’s office to the public; therefore his speech could not have advanced the public’s understanding and evaluation of the district attorney’s performance. Moreover, although the Court’s opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment’s commitment to free speech as a means of achieving political accountability – an understanding with powerful roots in First Amendment jurisprudence. The Court’s opinion contains a sketch – concededly partial and somewhat obscure – of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.
The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court’s prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices – and therefore are fairly held politically accountable for the operations of those offices. This concern for maintaining political accountability is anchored in fundamental First Amendment principles. There is no constitutional value, however, in preserving political accountability for functions of public offices that the Constitution places beyond the control of the political process. It follows that managerial prerogative extends only to constitutionally permissible managerial objectives. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.
Part II considers the implications of this new law of managerial prerogative in another employment-related context – laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.
In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom – an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives
Training the Parents of Juvenile Offenders: State of the Art and Recommendations for Service Delivery
No full textParent training is consistently highlighted as one of the most effective means of preventing delinquency and treating young children with conduct problems, and it has proven to be one of the most cost-effective interventions for doing so. There is, however, far less evidence supporting the efficacy of parent-training programs with adolescents and juvenile offenders. Nonetheless, it still seems to be one of the more promising methods for treating the behavior problems of adolescent delinquents, especially when used in conjunction with other carefully selected program components. We begin with an overview of parent training, highlighting the key components of successful programs. Research on the efficacy of parent training in the treatment of behavior problems among children and adolescents is discussed, particularly the differential impact of parental-training programs with specific groups of youths and families. We then discuss the ways in which parent training has been combined with other interventions in the treatment of delinquency. We conclude with a discussion of the problems encountered in implementing parent training, including recommendations for meeting the unique challenges of effective program implementation
Outgrowing Copyright: The Effect of Market Size on Copyright Policy
No full textDoes copyright protection offer the best means of stimulating the production of expressive works? Perhaps, at the moment, it does. If so, however, copyright protection will probably become inefficiently over-protective as the market for expressive works grows. With such growth, copyright holders will find it increasingly remunerative to focus on customers willing to pay a premium for particular expressive works. In a larger, more finely segmented market, copyright holders will find that their statutory rights generate larger monopoly rents. Yet copyright holders will suffer no corresponding increase in production or distribution costs; thanks to technological advances, we can expect those costs to continue to decline. The private benefits of copyright protection will rise. So, too, will its social costs. Holding all else equal, therefore, growth in the market for expressive works will make copyright policy inefficient. This paper explains that effect and discusses how policymakers should respond
The Emerging First Amendment Law of Managerial Prerogative
No full textIn Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.
This article rejects the scholarly consensus on Garcetti. The critics’ claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney’s office to the public; therefore his speech could not have advanced the public’s understanding and evaluation of the district attorney’s performance. Moreover, although the Court’s opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment’s commitment to free speech as a means of achieving political accountability – an understanding with powerful roots in First Amendment jurisprudence. The Court’s opinion contains a sketch – concededly partial and somewhat obscure – of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions.
This article endeavors to fill out the sketch. It argues that Garcetti recognized a prerogative of public employers to regulate duty-related speech of public employees in order to ensure that these officials are accountable for the manner in which the offices that they hold discharge their public duties. After all, if the First Amendment were understood to require that all speech-related disputes between public employees and their superiors be referred to binding arbitration overseen by the judiciary, then politically accountable officials would be denied effective control over public institutions, a result that would seriously compromise the First Amendment’s commitment to ensure that the functioning of public institutions be subject to effective political accountability. Precisely because the electorate is ordinarily entitled to judge the performance of public institutions, effective accountability demands that responsibility for that performance not become fragmented between politically accountable management and judicial overseers.
The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court’s prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices – and therefore are fairly held politically accountable for the operations of those offices. This concern for maintaining political accountability is anchored in fundamental First Amendment principles. There is no constitutional value, however, in preserving political accountability for functions of public offices that the Constitution places beyond the control of the political process. It follows that managerial prerogative extends only to constitutionally permissible managerial objectives. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.
Part II considers the implications of this new law of managerial prerogative in another employment-related context – laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.
In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom – an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives
The Rhetoric of Self Defense
No full textThe rhetoric of self-defense is a powerful instrument in the hands of legal actors to shape our understanding of justified violence in society. This rhetoric is based not in the legal definition of self-defense but rather in the paradigmatic situation of deadly response to deadly attack, which offers useful guidance in interpreting the law\u27s required elements. However, the paradigm also tends to embrace claims of morality and right that threaten to expand self-defense beyond recognition to consider inappropriate values such as vengeance and punishment. In this Article, the author argues that self-defense should be viewed not only as a moral but also as a core political concept - one that inspires the formation of civil society and the state under social contract theory. According to this view, self-defense and the criminal law share a common aim: to prevent harm and preserve life for peaceable coexistence. This common aim, which is more particularly expressed through political theory rather than moral philosophy, forms the substantive justification for self-defense in the criminal law
Born in the U.S.A.? Re-assessing Birthright Citizenship in the Wake of 9/11
No full textTestimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship
A SLAPP in the Face: Why Principles of Federalism Suggest that Federal District Courts Should Stop Turning the Other Cheek
No full textThis article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer