Volume 74, Number 2

May 1999

Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain

Yochai Benkler

Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner’s exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles.


Sheff, Segregation, and School Finance Litigation

James E. Ryan

In this Essay, Professor Ryan uses a recent decision by the Connecticut Supreme Court, Sheff v. O’Neill, to explore both the limits and the possibilities of school finance litigation, and to begin an examination of the relationship between school finance and desegregation. Using Sheff as his starting point, Professor Ryan contends that school “finance” litigation need not, and perhaps should not, be solely about money. He suggests that Sheff and the experience of the Hartford schools provide strong evidence of the limited efficacy of increased expenditures in racially and socioeconomically isolated schools. Professor Ryan then explains how the underlying right recognized in school finance cases–the right to an adequate or equal education–can support alternative claims for relief. Specifically, he suggests that these rights can support such nonmonetary remedies as racial and socioeconomic integration and school choice.


The Anatomy of an Execution: Fairness vs. “Process”

The Honorable Stephen Reinhardt

Madison Lecture

In this Madison Lecture, Judge Stephen Reinhardt tells the story of the case of Thomas Thompson, a man without a prior criminal record who was executed in California in July of 1998 despite substantial doubt about his guilt of capital murder and an unrefuted decision by the en banc court of the Ninth Circuit that his trial was blatantly unconstitutional. The Ninth Circuit’s decision was based on egregious conduct of the prosecution and ineffective assistance of Thompson’s counsel. The district judge previously had reversed Thompson’s capital sentence on the latter ground.

Judge Reinhardt provides a firsthand account of the unusual events that took place within the Ninth Circuit, including the passing of the deadline within which a judge could request an en banc rehearing; the extraordinary rejection by three judges of a request by colleagues for an extension of time within which to vote on rehearing; a good faith effort, that backfired, by a majority of the Ninth Circuit to comply with the Supreme Court’s arcane procedural rules; and, ultimately, a dramatic en banc rehearing in which the Ninth Circuit ruled in Thompson’s favor. The story then turns to the United States Supreme Court, which, in a wholly unprecedented action, held that the Ninth Circuit’s en banc hearing was invalid because it came too late and offended purported principles of comity and finality, abstract concerns that increasingly predominate over substantive rights in the jurisprudence of the Rehnquist Court.

By telling the story from start to finish, including a report on the factual errors made by the Supreme Court, Judge Reinhardt illustrates the dramatic consequences of the current Court’s elevation of procedural rules over substantive justice and the dictates of the Constitution, particularly in death penalty cases. In Judge Reinhardt’s opinion, the Court’s philosophy in this instance cost Thomas Thompson his life and in its general application seriously tarnishes the integrity and reputation of the American justice system.


How Sheff Revives Brown: Reconsidering Desegregation’s Role in Creating Equal Opportunity Education

Mary Jane Lee

This Note examines Sheff and its implications for Brown’s desegregation strategy. It contends that efforts to dismantle school segregation can indeed coexist with the aim of improving educational quality. An analysis of Sheff, the leading state case in this area, reveals two reasons why desegregating schools remains an important goal. First, desegregation is needed because racial isolation makes possible the institutionalization and entrenchment of ongoing racial discrimination. In the context of public education, this discrimination manifests itself through the stigmatization of students attending predominantly minority schools and through the devaluation of minority children and the lack of priority given to their life opportunities. Second, school districts should desegregate because race intersects with poverty such that the burdens of second-class school systems fall disproportionately on minority students. Accordingly, the problems of segregated schools require legislative action that will reduce racial isolation and counteract the extensive correlation between race and poverty. The state can accomplish this goal by initiating structural changes across the dividing line between Hartford and its suburbs.

Belle Terre and Single-Family Home Ordinances: Judicial Perceptions of Local Government and the Presumption of Validity

Katia Brener

Zoning ordinances began as a way for cities to control the negative externalities associated with urban land uses, as well as a means of protecting property values. By separating residential districts from factories and retail areas, early city planners hoped to stabilize neighborhoods and preserve the value of the homes in a given residential area. As a suburban ideal of the private family home emerged, however, local governments began to use zoning laws to regulate the characteristics and lifestyles of people living in certain neighborhoods. By zoning districts for single-family use and defining “family” narrowly, localities began to zone for direct social control, allowing communities to exclude groups of people deemed “undesirable” as neighbors. Because single-family home ordinances with narrow definitions of family tend to zone out low-income individuals who cannot afford to live without roommates or extended family, and because historically, America’s poor have been disproportionately ethnic minorities, these ordinances tend to perpetuate class and racial segregation.