April, 2007

Articles

The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine

New communication technologies often have been accompanied by utopian dreams of a society unencumbered by ignorance, inequality, and poverty. However, the American Post Office—a medium of communication that, like the Internet, developed through a substantial amount of governmental policy—served as a very real vehicle for a transformation in American constitutional law. Early American policymakers gave the Post Office specific attributes that helped established the Post Office as a "First Amendment institution," an institution whose role judges recognized as furthering First Amendment values in unique ways.

In a refreshingly clear and comprehensive decision, the Supreme Court explained in Lingle v. Chevron that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a differential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, two regulatory takings decisions that reviewed "exactions," regulatory conditions placed on proposals to develop land. These decisions required courts to review not only a challenged condition's effects but also its validity and means, through their "nexus" and "proportionality" tests. In Lingle, the Court characterized its exactions decisions narrowly, as a limited effort to protect owners from extortionate measures. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

This Article attempts to resolve important matters left open for debate by Lingle's description of the Court's exactions jurisprudence. First, Lingle's narrow characterization of the exactions decisions is not dicta, because Lingle aimed to provide a comprehensive, unifying explication of the Court's takings jurisprudence. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader, institutionalist approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions for the 2004 term, San Remo Hotel v. City and County of San Francisco and Kelo v. City of New London. Within this institutionalist framework, Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. Thus, the powerful constitutional protection that "nexus" and "proportionality" provide may be limited. But, in their shadow, public and private actors at the state and local levels offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than do the formal rules established in Nollan and Dolan.

Trade secret defendants sometimes raise First Amendment defenses to trade secret misappropriation claims. Some commentators believe that the First Amendment defenses should never be given credence in trade secret cases because trade secrets are property rights and there is no First Amendment right to violate property rights, a theory which the California Supreme Court arguably adopted in DVD Copy Control Association v. Bunner. Other commentators assert that preliminary injunctions in informational trade secret cases should be considered prior restraints on speech, which bear a heavy presumption of unconstitutionality.

This Article asserts that preliminary injunctions in ordinary trade secret cases generally do not raise First Amendment concerns. The prior restraints doctrine ought, however, to be applied in cases in which third parties obtain non-public information without participating in any wrongdoing and decide to disclose it to the public to enhance public discourse. Insofar as the California Supreme Court decision in Bunner seemed to hold otherwise, its reasoning is flawed. The Article also discusses rare cases in which even direct misappropriators of trade secrets might succeed with First Amendment defenses in trade secret cases. It also considers a number of other First Amendment due process issues, such as whether the burden of proof in third party disclosure cases should be higher than in normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. The Article offers a set of consistent principles that should be applied in trade secret cases involving informational trade secrets.

Essay

This Article discusses the significance of the Consumer Class Action Bill of Rights, found in section 3 of the 2005 Class Action Fairness Act. The author argues that this section is the most significant provision of the law. In addition to expounding upon the notice provision of the Bill of Rights Section, the Article explores the possible responses that public officials could make. Additionally, the author predicts a strong degree of public participation in class action settlements, especially by the Attorneys General of the states. The Article also considers the Act's substantive regulation of settlement terms, including "coupon settlements," as well as general prohibitions on negative settlements and geographic discrimination. The author examines the public and private enforcement models and discusses the comparative efficiency of public versus private enforcement. Lastly, the Article considers the jurisdictional provisions found in sections 4 and 5 of the Class Action Fairness Act, particularly the changes to minimal diversity and the facilitation of removal to federal court.

Using a comparative study of class actions in federal and state court, the author predicts that jurisdictional provisions will result in the litigation of most major class actions in federal court, but with little impact on the outcome of these cases. The author finds that the Bill of Rights view toward public enforcement is a costly policy and political mistake, and a better solution would have been found in providing for more robust private enforcement.

Notes

The presence of an effective judicial bypass mechanism for minors seeking an abortion is fundamental to the validity of parental consent statutes. Following the United States Supreme Court's decision in Bellotti v. Baird II, states now have the flexibility to restrict minors' access to abortion by requiring parental consent for the procedure, provided an effective judicial bypass mechanism exists to handle situations where the minor does not want to involve her parents. Under Bellotti II, the minor must have the opportunity to petition the court for a waiver of the relevant parental consent law, which if granted, would allow her the right to make her own decision about abortion without having to consult her parents.

With this increased flexibility under Bellotti II, many states passed legislation restricting minors' access to abortion by requiring either parental notification or consent for the procedure or judicial waiver of the law. However, in states as varied as Tennessee, Minnesota, Pennsylvania, and Alabama, increasing numbers of judges are recusing themselves on moral grounds from cases where minors petition the court for the right to make their own decisions about abortion. This Note surveys the potential problems that may arise if these recusals become more widespread. Specifically, this Note studies the issues resulting from judicial recusals from bypass petitions focusing on whether the recusals create an undue burden on the minor's right to choose, the responsibility of the states to provide minors with an effective judicial bypass procedure, and potential solutions to the problem.