The Morality of Law Practice

Geoffrey C. Hazard, Jr.

Volume 66, Issue 2, 359-81

This is an inquiry about the morality of lawyers and law practice. Some modern academic critiques hold law practice to be immoral or unjust as compared to the standard of “common morality” or of the sense of “justice” shared in the community. This Essay advances a different standard of reference, one that takes into account the pervasive conflicts within society and the limitations on the government’s ability to get at the truth. These limitations generate a role for lawyers as empowered figures who employ government authority as partisans and confidantes for their clients. That role is comparable to other roles that involve exercise of authority, particularly the roles of government officials and business managers.

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Instrumental Music and the First Amendment

Alan K. Chen

Volume 66, Issue 2, 381-443

This Article critically examines what would seem to be, but is not, an easy free speech question: whether instrumental music falls within the scope of the First Amendment. The Supreme Court has long recognized that musical expression is “speech,” but has never analyzed why this is the case. Similarly, scholarly literature is surprisingly bereft of any comprehensive examination of whether there are sound theoretical or doctrinal foundations for treating purely instrumental music as a form of constitutionally protected expression. This Article engages this question comprehensively, and argues that there are two strong claims for the coverage of instrumental music under the First Amendment. First, instrumental music can be understood as speech because of its central role in expressing cultural, religious, nationalist, and other social values that might otherwise be at risk of government control and orthodoxy. Second, music serves a unique communicative function as a facilitator of emotional expression, experience, and autonomy.

In examining these claims, the Article first surveys existing judicial and scholarly treatments of music as speech to illustrate how our understanding of the expressive value of instrumental music has been undertheorized. It then briefly catalogues historical and contemporary instances of instrumental music censorship by governments and other powerful institutions both within the United States and in other nations. First Amendment theory does not offer an obvious explanation for why instrumental music should be protected. Thus, the Article next considers the three dominant theoretical justifications for protection of expression—promotion of democratic self-governance; facilitation of the search for truth; and protection of autonomy through self-realization—and explores the possibilities for and limits of employing any of these three theories to justify protection of instrumental music.

To truly understand how these speech theories might apply, however, one must first comprehend the nature of instrumental musical expression. Accordingly, this Article next discusses exactly what it is that instrumental music expresses and how it does so, and examines how those conceptualizations fit within the frameworks of the three dominant speech theories. This Part concludes with an elaboration of the claim that music is like speech because of its unique power to convey cultural and other social values and promote emotional expression and experience in its composers, performers, and listeners. Music, then, falls within both the truth-seeking and self-realization justifications for the First Amendment. In contrast, theoretical explanations for free speech grounded in democracy do not map well onto non-lyrical musical expression.

Finally, this Article argues that a better understanding of the relationship between instrumental music and the First Amendment may illuminate free speech theory more broadly. First, it moves the recent discourse on First Amendment “coverage” forward by examining a context that requires consideration of nonrepresentational expression in its purest form. Second, clarification about the valid justifications for coverage of instrumental music has important ramifications for how we think about the regulation of other artistic expression as well as other types of nonverbal expression, such as non-obscene pornography and subliminal advertising.

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The Evidence of Things Not Seen: Divining Balancing Factors from Kiobel’s “Touch and Concern” Test

Ursula Tracy Doyle

Volume 66, Issue 2, 443-84

The long awaited Supreme Court decision in Kiobel v. Royal Dutch Petroleum raised the bar for human rights plaintiffs seeking redress under the Alien Tort Statute (“ATS”), a statute which provides jurisdiction in U.S. district courts for foreign nationals alleging a tort in violation of customary international law. Prior to Kiobel, the typical ATS case alleged atrocities against corporate actors based upon events that occurred largely, if not entirely, outside of the United States. In Kiobel, however, the Supreme Court held that the presumption against extraterritoriality applied to the ATS and that this presumption precludes claims brought pursuant to the statute unless they “touch and concern” the United States sufficiently to overcome the presumption. The Court, though, did not define “touch and concern,” implicitly inviting lower courts to do so.

This Article suggests that courts determine that a claim touches and concerns the United States pursuant to a multifactor balancing test drawn from inferences in the Kiobel majority opinion, stated preferences in Justice Breyer’s concurring opinion, and international jurisdictional norms more broadly. Despite Kiobel’s arrival, judges, advocates, and litigants now await clarification on the meaning of its “touch and concern” test. This Article endeavors to provide a cogent and practical interpretation.

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Constitutional Limits on Evidentiary Forfeiture by Wrongdoing Among Conspirators

Christopher Petroni

Volume 66, Issue 2, 485-513

Four recent decisions in the federal courts of appeals have combined the evidentiary doctrine of forfeiture by wrongdoing with imputed substantive criminal liability among conspirators under Pinkerton v. United States. According to this augmented rule—called the “Cherry rule” after the Tenth Circuit opinion that first enunciated it—a witness’s out-of-court statement is admissible against a defendant if a co-conspirator wrongfully silenced the witness in a manner that was within the scope and in furtherance of the conspiracy, and was reasonably foreseeable. This expansion of the forfeiture by wrongdoing doctrine is inconsistent with the Sixth Amendment’s Confrontation Clause for two reasons: it was not contemplated at early common law and it leads to forfeiture of the confrontation right based only on a pretrial determination of guilt. In addition, even if the Cherry rule were compatible with the Confrontation Clause, due process constrains its application short of Pinkerton’s logical extent. Courts should reject or limit the Cherry rule accordingly.

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Notes Introduction: Changing Law for a Changing Climate

David Takacs

Volume 66, Issue 2, 513-18

The Intergovernmental Panel on Climate Change’s 2014 definitive statement portends numerous, widespread, severe (and possibly catastrophic) risks climate change poses to human and nonhuman communities. Temperatures will rise, storms will intensify, droughts will persist, pests will spread, pollinators will go extinct or lose synchronicity with the crops and wild plants they pollinate, and sea levels will rise. Meanwhile, human populations expand and move, exploiting more of the ecosystems upon which all human life depends. Climate change has already disrupted Earth’s functioning ecosystems and the human communities that depend on those ecosystems (that is, all of us), with further growth in greenhouse gas (“GHG”) emissions increasing the likelihood of “severe, pervasive, and irreversible impacts” sooner rather than later.

All of us—including practicing and aspiring lawyers—ignore these threats at our own peril. In this issue of the Hastings Law Journal, three students pose creative yet pragmatic legal solutions, which, if realized, would help mitigate the buildup of greenhouse gases, or help adapt to the inevitable changes that climate change will bring.

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How Buildings Will Save the World: Using Building Energy Regulation and Energy Use Disclosure Requirements to Target Greenhouse Gas Emissions

Rob Taboada

Volume 66, Issue 2, 519-56

There is a legal, ethical, and pragmatic case for regulation aimed at reducing greenhouse gas emissions in the United States. An essential part of that scheme is the regulation of energy use in the building sector, which accounts for a third of American green house gas emissions. Some regulation in this area is already in place. But largely local efforts have resulted in inconsistent rules that vary in effectiveness and compromise not only the staggering potential for emission reduction, but also the commercial opportunity and prospective consumer cost savings available. This Note examines the current strategy of state building energy codes along with the feasibility of universal adoption. It also looks at the potential of a new market-based approach of mandated building energy use disclosures that could represent an attractive accompanying or alternate solution to the current codes.

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What Happens When Species Move but Reserves Do Not? Creating Climate Adaptive Solutions to Climate Change

Nicholas Whipps

Volume 66, Issue 2, 557-89

Most U.S. laws and regulations are not well-suited to respond to the effects of climate change, and the Endangered Species Act—the central federal law meant to protect threatened and endangered species at all costs—is no different. Conservation banking, an Endangered Species Act policy, is a market-based conservation strategy that incentivizes landowners to conserve species on their land. However, fee simple conservation strategies are ill-suited to protecting species on the move due to climate change. This Note first highlights the inadequacies of the current conservation banking system, then suggests how policy makers can transfer the market-based credit system used in conservation banking to a more climate-adaptive system that protects species on the move, which would better meet the goal of the Endangered Species Act to restore populations of listed species. This market-driven climate-adaptive strategy is a more effective means of protecting species that will be moving, while also helping to decrease the traditional conflict between species protection and use of private land.

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Revisiting Divestment

Nancy Schneider

Volume 66, Issue 2, 589-617

This Note explores whether state and local legislation passed during the anti-apartheid divestment campaign can serve as a model for trustees of public pension funds to divest their holdings in fossil fuels consistent with their fiduciary duties of loyalty and prudence. The primary case to emerge from the anti-apartheid divestment campaign, Board of Trustees of the Employees Retirement System of the City of Baltimore v. Mayor and City Council of Baltimore City gives some (albeit insufficient) guidance as to whether divestment by trustees of public pension plans of investments in fossil fuels would be a breach of their fiduciary duties. While the duty of loyalty allows for consideration of moral and ethical factors under certain circumstances, the duty of prudence more strictly requires that investors make no sacrifice in plan performance in favor of other considerations. However, the Baltimore analysis does not answer the question of whether it is consistent with the fiduciary duties of trustees to consider the risk that investments in fossil fuel companies will become “stranded assets” or that stigmatization will likely affect the share value of fossil fuel companies. This Note concludes that as the risks of climate change become clearer, fiduciary duties do not prohibit divestment.

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