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Gubernatorial Influence in Merit-Based Judicial Selection: Kansas, Missouri, and Colorado, 2012–2021
Get PDFMany states use systems of merit-based judicial selection for supreme court appointments. Under “merit selection,” an independent commission screens judicial candidates before the governor makes a final appointment. Proponents of these systems claim that by limiting gubernatorial influence over the selection process, merit selection protects judicial independence from partisan intrusion. This study evaluates such claims by comparing the recent ideological voting behavior of judges appointed by Republican and Democratic governors in three states. Those states, Kansas, Missouri, and Colorado, use three different types of merit selection—bar-controlled, hybrid, and governor-controlled, respectively—that grant the governor varying degrees of influence over the judicial selection process. This study finds the largest gap between the voting behavior of Republican- and Democratic-appointed judges in Colorado and the smallest gap in Kansas, with Missouri falling in between. These results show how increased gubernatorial influence over the judicial selection process translates into a judiciary that is more ideologically polarized. This ideological polarization limits judicial independence but is indicative of greater democratic control, as exercised by the popularly elected governor, over the state judiciary. In relative terms, Colorado maximizes political accountability, Kansas maximizes political independence, and Missouri strikes a balance between the two goals
The NCAA\u27s Punts on Transgender Student-Athlete Participation
Get PDFThe National Collegiate Athletic Association (“NCAA”), which serves as college athletics’s national governing body, states that its basic purposes include supporting and promoting healthy and safe college athletics. It accomplishes this through its stated principles, which include conducting athletics designed to protect, support, and enhance student-athletes’ physical and mental health and its commitment to diversity, equity, and inclusion. These are tall tasks, as half a million student-athletes compete in NCAA-sponsored sports. The NCAA also enjoys a history of taking strong stances on perceived discrimination. More specifically, the NCAA has used its economic influence to effect changes to state legislation or practices that it finds discriminatory. Recent examples include North Carolina’s so-called “bathroom bill” and Mississippi’s inclusion of the Confederate battle symbol on its state flag
The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws
Get PDFTo what extent can states enact legislation that frustrates federal regulation of firearms—in an effort to maximize protections of the Second Amendment and related state constitutional provisions—without running afoul of the Supremacy Clause? The answer to that question lies within the intergovernmental immunity doctrine, a virtually obscure legal doctrine with origins in the Supremacy Clause and Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland. For many years, the United States Supreme Court was reluctant to clarify the contours of intergovernmental immunity. This did not stop the federal government from asserting the doctrine in various actions to strike down state laws frustrating federal schemes—most notably to challenge California laws frustrating the federal government’s immigration framework. The federal government’s assertion of the doctrine achieved mixed results, with both district courts and the circuit courts applying the doctrine in a haphazard manner. However, the United States Supreme Court’s recent clarification of intergovernmental immunity in United States v. Washington breathed new life into the doctrine and cemented its importance in future disputes between the federal government and the states. In response to President Biden’s election and vow to increase federal regulation of firearms, many state legislatures passed what this Article calls Second Amendment sanctuary laws. The general purpose of these laws is to resist increasing federal regulation of firearms. Recently, the federal government has brought declaratory judgment actions seeking to declare some Second Amendment sanctuary laws unconstitutional, asserting intergovernmental immunity as a basis for declaring these state laws invalid. This Article recounts the history of intergovernmental immunity (and its doctrinal brethren), argues why the doctrine is important to Second Amendment sanctuary litigation, and applies it to various Second Amendment sanctuary laws in order to provide an applicable framework for future practitioners, legislators, and courts tackling intergovernmental immunity issues
“Troll! Troll in the Living Room! Thought You Ought To Know.”: Opening the Door for Extensive Copyright Litigation Under 17 U.S.C. § 120
Get PDFFor many, the day of a real estate closing is filled with excitement and relief. The process of finding a family home or a building to begin a business is often arduous. On average, the search for a home lasts at least six months. There are long days of showings, stressful negotiations with loan officers, and difficult decisions when purchasing a piece of property. Most buyers and sellers look forward to the day when the paperwork is signed and title, along with all the rights and privileges it affords, passes to the new owners. After closing, the new owners typically assume they are free to enjoy their new property as they see fit. They take pictures of and remodel their home, hire builders or real estate agents to assess or view the land, or even make plans to eventually sell the property. Many of these actions may require sketches of rudimental floor plans or drawings of a home’s layout. However, the Eighth Circuit recently created a barrier for homeowners to use these plans by opening them up to potential copyright infringement lawsuits. In doing so, the Eighth Circuit infringed upon the general ability to enjoy one’s property and made many common uses of private property vulnerable to legal challenges
All the Rumors are True: Verification, Actual Malice, and Celebrity Gossip
Get PDFMore than half of Americans get their news from social media. These spaces – social media platforms, video and audio recommender systems, social news and gossip boards – have their own fact-checking and editorial cultures that, although not the exact same as those found in newsrooms, offer similar controls for the distribution of information. While imperfect, just like the controls of traditional media, these fact-checking cultures may offer a response to recent US judicial rejection of actual malice and provide a route of inquiry for courts examining evidence to determine if a defamation plaintiff has met the heightened standard. This brief essay considers these cultures of fact-checking with a focus on the cultures of celebrity gossip using the recent ruling in Almanzar v. Kebe, the Cardi B vs Tasha K defamation case, as a point of departure
Tort Reform & the Takings Clause
No full textThe United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment\u27s Takings Clause. This Article advocates that judicial reduction of a jury\u27s noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment.
A Takings Clause violation requires a government taking of private property for public use without just compensation. A noneconomic damage award of which an injured plaintiff has been informed is a vested property interest; a trial judge
reduces that award based on a statute; this is a regulatory, rather than a physical, taking under the Penn Central ad-hoc, three-factor standard; the taking is uncompensated because the plaintiff does not receive an equivalent of the full noneconomic damage verdict; and the taking is for public use because it is intended to reduce liability insurance premiums for the general public and encourage business investment. Finding enforcement of noneconomic damage caps to be an impermissible regulatory taking is supported by the Fifth Amendment\u27s historical roots and the Supreme Court\u27s Takings cases since the Founding. Moreover, ensuring that the most injured members of society, who are damaged because of a tortfeasor\u27s actions, are adequately compensated and are not required by states to carry the burden of lower insurance costs and business investment for a whole jurisdiction is sound public policy
Writing It Right: Advice About Written Advocacy from the Washington Court of Appeals
No full textThis article concerns “Briefly Speaking: Brief Writing—Best Practices,” a collection of sound advice that appears on the website of the Washington Court of Appeals, the state’s intermediate appellate court. The court’s judges explore strategies of appellate practice, but that is not all. In this article, I select five of the court’s insights about effective written expression, insights that can enhance the quality not only of brief writing, but also of much other legal writing
Player Discipline in the NFL: Arbitration or Arbitrary?
Get PDFSince the Houston Texans drafted him in 2017, Deshaun Watson has statistically been one of the best quarterbacks in the National Football League (“NFL”). Watson led the Texans to the playoffs in both the 2018 and 2019 seasons before internal organizational issues led to Watson requesting a trade after the 2020 season. By the end of March 2021, twenty-one women had filed civil lawsuits alleging Watson of sexual assault and sexual misconduct. Watson did not immediately face any discipline from the NFL, but the Texans made Watson inactive for every week of the 2021 season in light of the accusations and the rift between the organization and the quarterback. In June 2022, a twenty-fourth woman filed a lawsuit against Watson. By August 2022, Watson has settled twenty-three of the twenty-four lawsuits, and a Texas grand jury declined to criminally indict Watson