VOLUME 161, ISSUE 4 March 2013


The average citizen’s point of contact with the judicial system as a litigant is, most likely, in the nation’s municipal, county, or local courts. Whether she is contesting a traffic infraction, being charged with a misdemeanor, being cited for a violation of a local ordinance, or in a dispute with a neighbor or landlord, the average citizen is probably more likely to find herself in what might be called a “local court” than in a federal or high-level state court. Setting aside the controversy surrounding staffing village and town courts (which too often have nonlawyers with almost no legal training or knowledge serving as adjudicators), legal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts. Much like the drunk man who looks under the lamppost for his lost keys at night because it is the only place he has the light to see, so too the legal scholar often studies published cases because they are available from databases at her fingertips. It is also likely that the sheer diversity of local courts, the limitations on their subject matter jurisdiction, and the complexity of their organization nationwide render it hard to study these courts as a unitary class. The diversity and the lack of easily accessible decisions, however, cannot justify the lack of attention to how local judges should behave when faced with statutory questions, a task that comprises the day-to-day work of our local courts. These public officials are the face of law and justice to citizens in our democracy. What they do in their courtrooms when applying statutes is probably more relevant to citizens’ sense of the legitimacy of our legal system and the rule of law than the vast majority of the Supreme Court’s business at One First Street.

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Part I of this Article defines the category of local courts for analysis, as well as the types of cases those courts typically hear. Part II then explores what it could mean for such local courts to pursue a “localist” agenda and analyzes its desirability under certain conditions. This analysis considers the kinds of elections that routinely place local judges into their offices and the manner in which local courts are embedded within state and local institutional structures. I conclude by asserting that the (concededly modest) accountability available for local judicial performance, combined with the possibility for careful state supervision of “localist” judicial action, supports giving local courts more discretion in interpreting both local ordinances and state statutes. On the whole, the argument aims to reveal the benefits of a type of “intrastate judicial federalism” that promotes dialogue and experimentation in the development of statewide policy. My conclusion draws from the perspectives of both “pro-localism” views as well as those more enamored of state power, highlighting some ways to settle that debate in at least this one understudied context.

In any given metropolitan region, scores of municipalities are locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to benefit small, homogeneous suburbs that can directly enact the uniform will of the electorate over large, diverse cities that are often ensnarled in conflict between competing interest groups. Cities can level the playing field with suburbs, however, by devolving municipal power to smaller, more homogeneous subgroups, such as neighborhoods. Indeed, many commentators have identified one such effort at neighborhood empowerment, the “business improvement district” (BID), as a key factor in the recent revitalization of many cities. The BID and the related “special assessment district” devolve the financing of infrastructure and services to landowners within a territorially designated area. Courts have widely upheld BIDs and special assessment districts against constitutional challenges.

Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).

This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.

The Supreme Court has set forth in detail the standards that govern convicted prisoners' Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law articulated by the lower courts is unclear and inconsistent, but on the whole shows a trend toward assimilating pretrial detainees' claims to those of convicted prisoners. Based on a review of Supreme Court case law concerning related questions, this Article argues that, for claims arising after a judicial determination of probable cause, the tests now prevailing in the lower courts should be replaced by a substantive due process framework that requires a plaintiff to show, at most, either punitive intent or objective deliberate indifference by the defendant. For claims arising after a warrantless arrest and before a judicial determination of probable cause, the Fourth Amendment's objective reasonableness standard should govern. The Article further notes a strong argument that this objective reasonableness standard should govern prior to arraignment, even when the arrest took place upon a warrant.


On June 6, 2011, a judge in a small Pennsylvania county courthouse issued a custody order and started a firestorm. The order, citing the children’s best interests, required a father embroiled in a custody battle to take down his critical blog “The Psycho Ex-Wife” and refrain from mentioning either his wife or his children “on any public media.” It immediately garnered national media attention, outraged divorced-parent Internet support groups around the country, and was even deemed blog-worthy by a renowned constitutional expert. All of these observers posed the same question: how could this restriction on speech be consistent with the demands of the First Amendment? Expressing concern about the judge’s order, Professor Eugene Volokh mused, “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

These types of orders, however, are actually quite common in family court proceedings. Under the amorphous “best interests of the child” standard, judges have ordered parents to bring their children to church, avoid criticizing ex-spouses or their religious beliefs, refrain from bringing intimate partners near the children, and even communicate feelings of love toward their ex-spouses. Although some scholarship has addressed judges’ consideration of parents’ religious beliefs or sexual preferences in granting custody, the constitutionality of family court orders structuring family interaction and crafting rules of parental behavior, like the custody order issued by Judge Diane Gibbons in Bucks County, “has largely escaped the notice of all but a few First Amendment scholars” and “survives partly because of the little attention paid to family law proceedings.” Thus, family law courtrooms have the potential to become constitutional “twilight zones” in which judges adjudicating the responsibilities and obligations of the most basic unit of American society illegitimately violate parents’ constitutional rights in the name of children’s best interests. In this framework, are children’s best interests compelling enough to override parental claims to free speech? Is it time for a radical normative rethinking of the role and function of the family law judge to more accurately correspond to reality? Or is there another legal standard that could be imported for use in this context?

This Comment examines the role that the First Amendment currently plays in family court proceedings and highlights the constitutional tensions inherent in speech restrictions issued under the best interests standard. As the adage goes, marriage is a “contract between three parties—the husband, the wife, and the State.” Yet it is unclear how the State is or should be constrained in adjudicating the parties’ responsibilities once the marital relationship is dissolved, particularly when there are children involved whose interests must be weighed against parental rights. Cases such as Pierce v. Society of Sisters and Yoder v. Wisconsin have affirmed a parent’s fundamental right to control the upbringing of his or her children, but when families dissolve during divorce and parents fundamentally disagree about how to raise their children, judges—governed only by the vague and easily manipulated best interests standard—inject themselves into the proceedings and suddenly wield immense power over parental decisionmaking, relationships, and essential liberties. Due to the weight of the liberties at stake, greater attention to this area of law is vital to ensure both that parental rights are not trampled and that children’s interests are protected. This Comment provides such attention by examining contemporary court practices in issuing custody orders restricting speech, analyzing the advantages and shortcomings of three potential jurisprudential frameworks, and identifying the best standard of analysis that better protect both parents’ rights and children’s interests.

While it is easy for us to recognize a tangible object as property, we are less comfortable recognizing an intangible thing, such as trade secrets, news, advanced degrees, or our time, as property. The same goes for objects that, though tangible, lie too close to the boundaries of ethics and bodily autonomy when identified as property. We find it unconscionable to think of organs, limbs, sperm, DNA, or bone marrow as property, for instance. We also experience discomfort when asked to determine whether what I call “semitangibles” enjoy property-law protection. These semitangibles might include an email server or information traveling between computers and Internet service providers.

Because of these ambiguities, I propose an analytical tool (which I call the “property matrix”) to aid scholars, legislators, and lawyers in tackling the question, “Is this property?” I argue that we can create guidelines to answer this question even before we have academic consensus on a comprehensive definition of property, so that we may respond to pressing concerns about whether a given thing should be so labeled. Instead of defining what property is, my aim with the property matrix is more impressionistic; it is, to borrow a concept from Justice Stewart, an “I know it when I see it” understanding of property.

In Part I, I provide an overview of our current understanding of property. I then describe a two-part test—the property matrix—to determine whether a given thing should be considered property. In Part II, I identify six contexts in which courts have struggled with defining and applying principles of property. I then compare these six “case studies” against the property matrix. In my conclusion, I posit that there may be varying degrees of property rights—weak, medium, and strong—and I suggest that each level gives rise to different groupings of obligations and privileges.

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