Volume 25, Issue 2

Table of Contents

SYMPOSIUM

CITIES ON THE CUTTING EDGE:
A SYMPOSIUM ON EMERGING MUNICIPAL LEGAL ISSUES

 
Foreword
By David J. Jung

California and Dillon: The Times They Are a-Changing
  By Manuela Albuquerque

The development of the law regarding California local governments and their relationship to the state reflects a dichotomy between views of local governments as vehicles of self-determination on the one hand, and as obstacles to personal freedom on the other. The author argues that Dillon’s rule, which provides that a local government is a creature of the legislature and has only those powers specifically conferred upon it by the state, has been specifically abrogated in the California Constitution as to both general law and charter cities. Through an analysis of cases interpreting California Constitution Article 11 Section 7, the author asserts that, in the absence of preemptive state law, both general law cities and charter cities have broad powers, coextensive with that of the state itself, to promote the public welfare and to raise revenue to support their operations.

The Impact of Fiscal Limits on Governance
  By John J. Kirlin

Beyond limiting governmental revenues or expenditures, fiscal limits affect governance capacity, the ability to make and effectuate collective choices for a geographically bounded grouping of humans, sustained over time. These effects are visible in California’s experience with Proposition 13 and other fiscal limits. Reductions in growth rates of revenues, a political culture constraining governmental action, and tighter constraints on fiscal choices combine to make governments less useful instruments of collective action.

Professor Kirlin argues that the indirect impacts of fiscal limits include diminished intelligibility, reduced visibility, and reduced accountability of governmental activities, yielding increased transaction costs for governments, citizens and private interests and feeding suspicion of government.

Cities on the Cutting Edge: A Symposium on Emerging Municipal Legal Issues, September 1997
By Kathleen M. Sullivan

Cities are sometimes caught in a pincer movement between the First Amendment’s twin requirements: if they restrict too much speech in public places, they may violate its requirement that some minimum distribution of speech be secured, but if they try to expand opportunities for speech by exempting particular speech or speakers from general laws, they may run afoul of the ban on content discrimination. The most prudent approach to speech regulation, therefore, would appear to be flat but narrow prohibitions. For example, sales of message-bearing merchandise are better regulated by a flat peddling ban in specified areas than by one that permits but regulates sales by "nonprofit" or "political or ideological" speakers. Similarly, abortion clinic access is better protected by fixed buffer zones than by delegating to persons entering or exiting the clinics the roving power to order protesters to cease and desist. While it might seem ironic that cities may fare better against First Amendment challenge by banning more speech rather than less, there is good reason to think that content-based exceptions to content-neutral laws are a cure worse than the disease.

LECTURE

The Burdens and Benefits of Race in America
By Charles J. Ogletree, Jr.

Beginning with the ideals expressed in the Declaration of Independence, America has promised its citizens "equality." The underlying assumption implicit in such ideals is that equal treatment is to be applied regardless of the race of individual citizens. Such an ambitious goal of color-blindness, however, ignores the reality of dual-Americas—one for the majority, and one for the rest— and consequently fails in its attempt at fulfilling the promise. This Article, based on the author’s lecture at the 1996 Matthew O. Tobriner Memorial Lecture, examines ways in which the problems of race have been and should be addressed in legal discourse.

The benefit of race is that minorities are often in a position to see more clearly where America fails in its promise to protect the weak and the powerless. The burden of race is that the responsibility often falls on minorities to hold America to that promise, often at considerable cost to themselves. This Article provides a critical look at the benefits and burdens of race from historical, philosophical and legal perspectives and demonstrates the current problems of race by focusing on the treatment of African-Americans in the criminal justice system. In its analysis, the Article rejects the traditional liberal and conservative articulations with respect to remedying the problems of race disparity. It proposes a modified perspective that encompasses both liberal and conservative veins of thought in developing a new approach to remedying the problems of race in the civil and criminal justice systems. Problems of race implicates every member of the society regardless of his or her race. This Article concludes that the complexity of race invites the solution which involves observing the problems of race through the prism of race instead of ignoring race.

ESSAY

The Political Price of Independent Counsel Law
By Joshua M. Perttula

"The Political Price of the Independent Counsel Law" is a comprehensive study of Title VI of the Ethics in Government Act of 1978, commonly known as the independent counsel law.

The essay begins by detailing Kenneth Starr’s current investigation into President Clinton’s dealings with the Whitewater Development Company. The author includes the Whitewater example to illustrate the flaws in the current system. Next, the essay discusses the political climate that led to the creation of the Act, the procedural initiation requirements, and the constitutionality of the Act. After giving the reader a working background in the law, the author sets forth three areas, that if reformed, will help the independent counsel law fulfill its original purpose. The author asserts that by adjusting the scope, initiation procedures, and compensation provisions, the adverse effects illustrated in the Whitewater example could be eliminated.