Archives for April 2011

 Anthony Kammer

On Monday of this week, Justice Elena Kagan handed down her first dissent since joining the Court. It’s persuasive (pdf). A number of commenters arealready speculating that there might, at last, be a liberal voice on the Court able to trade rhetorical punches with the stylistically adept Antonin Scalia. While it might be a little wishful or premature to start drawing such conclusions, the dissent shows that Kagan has a definitive voice that can be both humorous and persuasive. This isn’t much of a surprise based on her previous statements.

The dissent came in Arizona Christian School Tuition Organization v. Winn, which involved an Establishment Clause challenge to an Arizona tax program that allowed taxpayers to designate a portion of their tax dollars for private schools, including qualifying religious schools. The claim was that this indirectly accomplished what the state is prohibited from doing outright—using tax dollars to support religious organizations. But the conservative majority on the Court never reached this issue because it dismissed the suit for lack of standing.

[Read more…] about Kagan’s First Dissent

Michael Stephan

The Ninth Circuit certified an interesting question to the California Supreme Court on Monday: Are parties to a plea agreement bound by the law in effect at the time of the agreement, or can the terms of the plea agreement be affected by subsequent changes in the law?  In other words, can a new law change the terms of an old plea agreement?  The answer, in California at least, is unclear.

This question arose in Doe v. Harris, a case involving a man who in 1991 pleaded guilty to one count of committing a lewd and lascivious act upon a child.  In exchange for Doe’s guilty plea, the State dropped five additional counts of the same offense, which allowed Doe to avoid serving jail time.  Doe was sentenced to probation and, inter alia, required to register as a sex offender under the existing state registration law.

The state’s 1991 sex offender registration law provided that a registrant’s status as a sex offender would be kept confidential and would not be publicly available information.  Per the 1991 law, the sex offender registry would be available only to law enforcement officers.  But like many other states, California has since passed a “Megan’s Law,” which allows the general public to access the state’s sex offender registry.  California’s Megan’s Law applies retroactively to sex offenders, like Doe, who committed their crimes before the law was passed.

[Read more…] about Case to Follow: Can a New Law Affect an Old Plea Agreement?

Rachel Lauter 

Wisconsin held an election yesterday for a state supreme court judgeship, which is has been viewed by pretty much everyone as a proxy battle between Republican Governor Scott Walker and the pro-labor community. As of the writing of this post, Democrat JoAnne Kloppenburg, the candidate of the pro-labor community, had a small lead– about 200 votes– over the sitting judge, David Prosser.

There will likely be a recount and a long legal battle going forward, and the results of the election will obviously have a long-lasting impact on the Wisconsin judiciary. But one additional lasting impact this election might have is to mobilize advocacy organizations around judicial elections throughout the country. The Wisconsin election is reminiscent of what happened to Iowa’s supreme court this past fall around the issue of same-sex marriage.

[Read more…] about Judicial Elections, in Wisconsin and Beyond

 Jake Laperruque

At a time when campaign finance law is at risk of being abolished, how can we ensure that our elections continue to be free and fair for all Americans?  The Obama campaign’s fundraising strategy presents one possible option.

On Monday, President Obama officially launched his reelection campaign.  Rather than make the announcement through a high-profile speech, Obama went to new media, putting up a sleek, simple website that features a YouTube video of supporters and encourages visitors to post the link on their friends’ Facebook wall.  The style of the announcement was a reflection of both the campaign’s grassroots focus, and the growing influence of Internet technologies on elections.

[Read more…] about One Person, One Vote, One Donation, Part 1: Can Campaign Finance Be Democratic?

Yevgeny Shrago 

First time visitors to Detroit are struck by a sense of awe at the sheer scale of abandoned buildings. Very few of them consider the practical implications that residents deal with every day: Detroit’s infrastructure is designed to support at least 2 million people, but the population has dwindled to 700,000. Maintaining services over such a sprawling area puts a tremendous drain on police, fire and transportation budgets. Realizing that things had gone too far for mainstream urban renewal solutions, Detroit’s mayor, Dave Bing, put forth a radical proposal after his election in 2009: shrink the city.

Having the city acquire land is out of the question; it needs to stay out of state receivership. Rather, Bing suggested a creative, potentially profitable use for abandoned land: urban farming. Detroit’s non-profits have already pioneered this green form of urban renewal, and a large scale increase would not only provide a buyer for entire blocks but could provide a solution to the malnutrition that is closely associated with urban poverty.

Given Detroit’s deficit, the inevitable opposition by the few remaining neighborhood residents and Detroit’s utterly dysfunctional political culture, Bing’s initiative promises to be an uphill battle (especially for a Republican businessman with no previous political experience). Eighteen months later, a major sticking point has come in the form of those pesky little regulations that visionaries ignore at their peril. Under Detroit’s zoning code, urban farming remains illegal. Although restrictions remain unenforced against the various community groups running urban farms, larger, for-profit buyers are understandably leery of investing their money in a technically illegal venture.

Bing has delayed because he wishes to roll out a single, comprehensive plan under the banner of the Detroit Works Project. Such long-term vision from a city leader is commendable, but Detroit is sacrificing desperately needed tax base to protect a zoning program that ideally will allow the farms to pop up wherever there is space. Creating an expedited process for receiving a zoning variance could allow interested landowners to get a jump on farming and contribute to Detroit’s tax rolls today.

The other obstacle is the state of Michigan. Governor Rick Snyder seems to have little patience for the renewal plans of his fellow Republican, preparing to cut city revenue sharing by as much as 40%. In addition to the usual Republican fiscal irresponsibility, there are legal barriers to the farming initiative as well. The Michigan Right to Farm Act has left Bing’s office leery of permitting urban farming. The Act bars public or private nuisance litigation against farms that meet generally accepted agricultural management practices. The bar on litigation remains even if the farm expands in size or changes to a new technology that changes the type of nuisance created. This means that the farms that could drive urban renewal in Detroit today could also choke it in 20 years when the city wishes to expand again.

Although Bing’s concerns are reasonable and would support delay in almost any other American city, Detroit’s choices remain limited. Not amending the Act will incentivize larger investments in the city by reassuring potential farmers that their investment will not become a victim of its own success.  Battles with the state legislature and governor could add months or years before we achieve a smaller, greener Detroit, or cripple that vision altogether. If this plan works, in ten years a once-again vibrant Detroit can wield its growing political influence to amend the Right to Farm Act and buckle down on the zoning codes. Today, Bing should not let zoning minutiae and nuisance fears get in the way of a potentially brilliant vision.

Image: The abandoned Michigan Central Station. Courtesy of Albert Duce under a Creative Commons Share Alike 3.0 Unported license

Brian C. Kalt 

The Constitution directs the President and the Senate to work together to hire federal judges and top executive officials. Unfortunately, the “PAS” process (presidential appointment and Senate confirmation) falls well short of this constitutional ideal. This essay will identify some problems with the process, and then discuss the important role of politics in it. This will lead to a counterintuitive conclusion: the main problem with the current appointments climate is that the President and the Senate are not being confrontational and combative enough.

[Read more…] about Politics and the Federal Appointments Process