In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states... more In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might legitimately warrant private deliberation at early stages. Such laws are surprisingly common and broad, and stand in stark contrast to the lack of such restrictions applicable to most state legislators and all federal legislators. Drawing on a novel Fifth Circuit case criticizing such laws, Prof. Mulroy’s prior Tennessee Law Review Article had argued that such laws are overbroad speech restrictions. This new Article draws on a new Fifth Circuit case upholding such laws, and analyzes two relatively new arguments in the defense of such laws. First, this Article argues that such strict “sunshine” laws cannot be defended by analogizing them to campaign finance disclosure laws upheld in the Supreme Court’s Citizens United case and its progeny, because the government interests justifying such disclosure laws do not apply with equal force to strict sunshine rules. In so doing, it discusses the 2014 Supreme Court decision in McCutcheon v. Federal Election Commission. Second, it argues that such laws are properly analyzed as “content-based” speech restrictions triggering “strict scrutiny” constitutional review. In so doing, the Article discusses the 2014 Supreme Court decision in McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme Court guidance on when to analyze a speech restriction as content-based, criticizes part of the current doctrine on this question, and argues for a straightforward “purely facial” approach which always treats a law as content-based if the law’s application turns on the content of the speech involved. Along the way, it explains many of the counterintuitive, harmful effects of overbroad sunshine laws, including their tendency to chill discussion, hinder compromise, force inappropriate disclosure of sensitive information, breed widespread noncompliance and contempt for the law, and transfer power from legislators to unelected staff and lobbyists.
ABSTRACT This article explores the legal and policy issues involving the definition of “scope of ... more ABSTRACT This article explores the legal and policy issues involving the definition of “scope of public office,” “official capacity,” and similar phrases in bribery, extortion, and similar laws, with particular emphasis on Tennessee law. These laws require corrupt conduct relating to a public official’s “official capacity,” but a spate of recent cases has tested the outer bounds of this concept. The article also examines the related but distinct issue of the jurisdictional reach of noncriminal public ethics codes applicable to government officials. It argues that the majority view ties such terms narrowly to the scope of duties which the public servant is obligated to perform as part of his office, and that considerations of notice, vagueness, and general fairness support this majority view. The article makes a similar argument with respect to noncriminal ethics codes, although a broader scope of application may reasonably apply to the disclosure requirements of such codes. Finally, it advises that Tennessee local governments, ethics commissions, and courts keep such considerations in mind as they begin to interpret their newly enacted ethics codes.After a brief introduction, Part II sets out the background for a high-profile Tennessee case raising this issue. Part III provides a general grounding in the law of bribery and extortion. Part IV explores the definition of “official capacity” for purposes of the Tennessee bribery statute and similar statutes. It argues for a narrower definition based on considerations of notice, vagueness, and fairness. Part V examines the separate issue of defendants “wearing two hats” – i.e., part-time public officials who, as part of their “day jobs,” engage in transactions related to the subject matter of their official conduct. It applies the article's analysis to another high-profile Tennessee case raising this issue. Part VI extends the analysis to state and local ethics codes, and emphasizes their usefulness in these situations. Part VII offers some concluding thoughts.
Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas court co... more Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas court could only grant relief if it found the state courts' decisions were "contrary to, or involved an unreasonable application of, clearly established law," or based on "an unreasonable determination of the facts." 28
The current consensus among commentators is that the flood of cases challenging the 2020 presiden... more The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts' treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area). Moreover, many courts confused standing doctrine with the merits. All this threatens to create * Bredesen Professor of Law, University of Memphis. The author thanks Prof.
... 9 See, eg, Dillard v. Baldwin County Bd. Of Educ., 686 F. Supp. ... 1994). See Shawna MacLeod... more ... 9 See, eg, Dillard v. Baldwin County Bd. Of Educ., 686 F. Supp. ... 1994). See Shawna MacLeod, One Man, Six Votes, and Unanswered Questions: Cumulative Voting as a Remedial measure for Section 2 Violations in Port Chester and Beyond, 76 BROOK. L. REV. ...
ABSTRACT The Article discusses the much-overlooked “butterfly ballot” litigation challenging the ... more ABSTRACT The Article discusses the much-overlooked “butterfly ballot” litigation challenging the 2000 presidential election results in Palm Beach County, Florida, arguing that it was by far the more viable legal vehicle for challenging the election than the distinct legal claims which rose to the Supreme Court in Bush v. Gore. It argues that the ballot design violated state law in a number of ways, and, contrary to the state courts’ holding, rose to the level of “substantial noncompliance” with election law necessary for invalidation of the election results. It responds to other arguments against liability, such as waiver and estoppel, and ultimately concludes that the state courts reached the wrong result.
In this article, Prof. Mulroy discusses the controversy raised by the Supreme Court decision in E... more In this article, Prof. Mulroy discusses the controversy raised by the Supreme Court decision in Evenwel v. Abbott over the use of total population versus voter population in measuring “one person, one vote” claims. The issue can affect various analogous questions concerning the use of total population, voting age population (VAP), and citizen voting age population (CVAP) in minority vote dilution suits under the Voting Rights Act. Generally, total population is preferable for one person, one vote claims, as well as evaluating “proportionality” under the Voting Rights Act, while VAP should be used for establishing a prima facie case of minority vote dilution, and CVAP in the remedial phase of Voting Rights Act litigation. More fundamentally, though, these controversies underscore the inherent arbitrariness of districting: whenever we carve up a jurisdiction into districts, tensions are unavoidable between representational fairness based on total population versus various measure of eligible voters. These tradeoffs are avoided through the use of nondistrict election systems like limited voting, cumulative voting, and rank choice voting, which tend to elect candidates in rough proportion to their share of the electorate, enhance minority and gender diversity of elected officials, and promote turnout, among numerous other advantages. The recent controversy sparked by the Evenwel litigation thus serves as a reminder of yet another reason to consider these alternative electoral systems, either through voluntary adoption or as potential remedies in voting rights litigation.
ABSTRACT This article explores two issues of first impression in the federal courts raised by a r... more ABSTRACT This article explores two issues of first impression in the federal courts raised by a recent Sixth Circuit case: the applicability of the duress defense to felony murder, and whether the mental retardation of the defendant is relevant to such a defense. No federal court has ruled on the applicability of duress to felony murder. A few state courts have so ruled, with mixed results. Prior to the August 2005 Sixth Circuit ruling, no federal court has ruled on the relevance (if any) of mental retardation in meeting the elements of duress. A few federal courts have ruled in the analogous area of “battered women's syndrome,” with mixed results. Some attention has been given to the general question of whether there should be a duress defense to intentional murder, but none to the distinct question of whether it should be a defense to (non-intentional) felony murder, let alone the question of the relevance of mental retardation to the defense. Scholarship on the issue includes some discussion of cases involving the background of war, and the special type of duress that war provides. These cases raise the question of the relevance of coercion when military personnel follow orders – a question of increasing salience amid the recent controversies concerning the mistreatment of prisoners by U.S. military personnel. Part II of the article provides general background on the defense, and distinguishes it from the related common-law defense of “necessity.” Part III argues for a reversal of the common-law rule categorically barring assertion of the defense to the crime of murder. It explains that while a threat to a defendant's life may never justify the act of killing an innocent person, it may excuse a defendant from responsibility for that wrongful act. Part IV argues that even if the law bars the use of duress as a defense to murder, that rule should not apply to a charge of felony murder, especially where the coerced defendant played no direct part in the killing. Among other things, such a result follows from the basic rule that duress can excuse the predicate felony, and liability for the predicate felony is a prerequisite to felony murder liability. Part V argues that duress allows for reasonable mistakes regarding the presence of a threat and the absence of lawful alternatives. It also argues that evidence of mental retardation and other cognizable physical and mental disabilities should be relevant, even under the duress defense's objective, “reasonable person” standard.
ABSTRACT The article discusses the use of “proportional”-type electoral systems, such as limited ... more ABSTRACT The article discusses the use of “proportional”-type electoral systems, such as limited voting, cumulative voting, and preference (or choice) voting, as remedies for minority vote dilution under the Voting Rights Act. It argues that such systems are available as alternatives to the usual remedy of drawing single-member electoral districts with significant minority populations. Although applicable law requires that plaintiffs establish that a compact majority-minority district can be drawn to establish liability, the article suggests replacing that prong of the liability test with a showing that the minority group meets the “threshold of exclusion,” a well-established political science formula designed to test whether a cohesive political minority can elect a single candidate of choice under such an alternative electoral system.
ABSTRACT This Article focuses on the minority of death penalty states which have sentencing jurie... more ABSTRACT This Article focuses on the minority of death penalty states which have sentencing juries choose between death and life in prison with possibility of parole, excluding the “middle option” of life without parole (LWOP). A growing body of empirical evidence shows that the absence of an LWOP option causes juries to opt for a death sentence even where death is not otherwise called for, simply to avoid the chance that the defendant may someday “walk the streets.” The Article argues that such sentencing procedures violate the constitutional principles established by the Supreme Court's 1980 decision in Beck v. Alabama and its 2002 decision in Atkins v. Virginia. Beck established the principle that, in the guilt or innocence phase, where the defendant's life was at stake, the state could not eliminate an intermediate “third option” of a lesser-included, noncapital offense because of the risk that jurors would improperly choose to convict (and thus make the defendant death-eligible) rather than reach a too lenient result. The Article urges that the Beck analysis be applied to the capital-sentencing phase to require the “third option” of LWOP. Atkins demonstrated that a consistent and substantial pattern of state legislative enactment of a death penalty reform could establish “evolving standards of decency” under the Court's Eighth Amendment jurisprudence, requiring the reform as a constitutional matter. Because only two out of thirty-eight death penalty states decline to provide an LWOP option, Atkins establishes that non-LWOP schemes violate such evolving standards of decency.
ABSTRACT The article examines a question raised by the “butterfly ballot” regarding the allegedly... more ABSTRACT The article examines a question raised by the “butterfly ballot” regarding the allegedly misleading ballot used in Palm Beach County, Florida during the 2000 presidential election controversy: can a court ever order a “revote,” in whole or in part, of a presidential election? After providing the factual and legal background of the case, the article examines statutory and case law authority to rebut the conventional wisdom that federal law establishing a uniform date for the presidential election bars any court-ordered revote. It also responds to arguments that a revote of the presidential election in Palm Beach County (or anywhere) would be unworkable and unfair, specifically addressing the special problems caused by “partial” revotes. By analogy, it concludes that as court-filed election challenges become more common, courts should consider seriously the advantages of “revote” remedies.
In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states... more In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might legitimately warrant private deliberation at early stages. Such laws are surprisingly common and broad, and stand in stark contrast to the lack of such restrictions applicable to most state legislators and all federal legislators. Drawing on a novel Fifth Circuit case criticizing such laws, Prof. Mulroy’s prior Tennessee Law Review Article had argued that such laws are overbroad speech restrictions. This new Article draws on a new Fifth Circuit case upholding such laws, and analyzes two relatively new arguments in the defense of such laws. First, this Article argues that such strict “sunshine” laws cannot be defended by analogizing them to campaign finance disclosure laws upheld in the Supreme Court’s Citizens United case and its progeny, because the government interests justifying such disclosure laws do not apply with equal force to strict sunshine rules. In so doing, it discusses the 2014 Supreme Court decision in McCutcheon v. Federal Election Commission. Second, it argues that such laws are properly analyzed as “content-based” speech restrictions triggering “strict scrutiny” constitutional review. In so doing, the Article discusses the 2014 Supreme Court decision in McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme Court guidance on when to analyze a speech restriction as content-based, criticizes part of the current doctrine on this question, and argues for a straightforward “purely facial” approach which always treats a law as content-based if the law’s application turns on the content of the speech involved. Along the way, it explains many of the counterintuitive, harmful effects of overbroad sunshine laws, including their tendency to chill discussion, hinder compromise, force inappropriate disclosure of sensitive information, breed widespread noncompliance and contempt for the law, and transfer power from legislators to unelected staff and lobbyists.
ABSTRACT This article explores the legal and policy issues involving the definition of “scope of ... more ABSTRACT This article explores the legal and policy issues involving the definition of “scope of public office,” “official capacity,” and similar phrases in bribery, extortion, and similar laws, with particular emphasis on Tennessee law. These laws require corrupt conduct relating to a public official’s “official capacity,” but a spate of recent cases has tested the outer bounds of this concept. The article also examines the related but distinct issue of the jurisdictional reach of noncriminal public ethics codes applicable to government officials. It argues that the majority view ties such terms narrowly to the scope of duties which the public servant is obligated to perform as part of his office, and that considerations of notice, vagueness, and general fairness support this majority view. The article makes a similar argument with respect to noncriminal ethics codes, although a broader scope of application may reasonably apply to the disclosure requirements of such codes. Finally, it advises that Tennessee local governments, ethics commissions, and courts keep such considerations in mind as they begin to interpret their newly enacted ethics codes.After a brief introduction, Part II sets out the background for a high-profile Tennessee case raising this issue. Part III provides a general grounding in the law of bribery and extortion. Part IV explores the definition of “official capacity” for purposes of the Tennessee bribery statute and similar statutes. It argues for a narrower definition based on considerations of notice, vagueness, and fairness. Part V examines the separate issue of defendants “wearing two hats” – i.e., part-time public officials who, as part of their “day jobs,” engage in transactions related to the subject matter of their official conduct. It applies the article's analysis to another high-profile Tennessee case raising this issue. Part VI extends the analysis to state and local ethics codes, and emphasizes their usefulness in these situations. Part VII offers some concluding thoughts.
Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas court co... more Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas court could only grant relief if it found the state courts' decisions were "contrary to, or involved an unreasonable application of, clearly established law," or based on "an unreasonable determination of the facts." 28
The current consensus among commentators is that the flood of cases challenging the 2020 presiden... more The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts' treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area). Moreover, many courts confused standing doctrine with the merits. All this threatens to create * Bredesen Professor of Law, University of Memphis. The author thanks Prof.
... 9 See, eg, Dillard v. Baldwin County Bd. Of Educ., 686 F. Supp. ... 1994). See Shawna MacLeod... more ... 9 See, eg, Dillard v. Baldwin County Bd. Of Educ., 686 F. Supp. ... 1994). See Shawna MacLeod, One Man, Six Votes, and Unanswered Questions: Cumulative Voting as a Remedial measure for Section 2 Violations in Port Chester and Beyond, 76 BROOK. L. REV. ...
ABSTRACT The Article discusses the much-overlooked “butterfly ballot” litigation challenging the ... more ABSTRACT The Article discusses the much-overlooked “butterfly ballot” litigation challenging the 2000 presidential election results in Palm Beach County, Florida, arguing that it was by far the more viable legal vehicle for challenging the election than the distinct legal claims which rose to the Supreme Court in Bush v. Gore. It argues that the ballot design violated state law in a number of ways, and, contrary to the state courts’ holding, rose to the level of “substantial noncompliance” with election law necessary for invalidation of the election results. It responds to other arguments against liability, such as waiver and estoppel, and ultimately concludes that the state courts reached the wrong result.
In this article, Prof. Mulroy discusses the controversy raised by the Supreme Court decision in E... more In this article, Prof. Mulroy discusses the controversy raised by the Supreme Court decision in Evenwel v. Abbott over the use of total population versus voter population in measuring “one person, one vote” claims. The issue can affect various analogous questions concerning the use of total population, voting age population (VAP), and citizen voting age population (CVAP) in minority vote dilution suits under the Voting Rights Act. Generally, total population is preferable for one person, one vote claims, as well as evaluating “proportionality” under the Voting Rights Act, while VAP should be used for establishing a prima facie case of minority vote dilution, and CVAP in the remedial phase of Voting Rights Act litigation. More fundamentally, though, these controversies underscore the inherent arbitrariness of districting: whenever we carve up a jurisdiction into districts, tensions are unavoidable between representational fairness based on total population versus various measure of eligible voters. These tradeoffs are avoided through the use of nondistrict election systems like limited voting, cumulative voting, and rank choice voting, which tend to elect candidates in rough proportion to their share of the electorate, enhance minority and gender diversity of elected officials, and promote turnout, among numerous other advantages. The recent controversy sparked by the Evenwel litigation thus serves as a reminder of yet another reason to consider these alternative electoral systems, either through voluntary adoption or as potential remedies in voting rights litigation.
ABSTRACT This article explores two issues of first impression in the federal courts raised by a r... more ABSTRACT This article explores two issues of first impression in the federal courts raised by a recent Sixth Circuit case: the applicability of the duress defense to felony murder, and whether the mental retardation of the defendant is relevant to such a defense. No federal court has ruled on the applicability of duress to felony murder. A few state courts have so ruled, with mixed results. Prior to the August 2005 Sixth Circuit ruling, no federal court has ruled on the relevance (if any) of mental retardation in meeting the elements of duress. A few federal courts have ruled in the analogous area of “battered women's syndrome,” with mixed results. Some attention has been given to the general question of whether there should be a duress defense to intentional murder, but none to the distinct question of whether it should be a defense to (non-intentional) felony murder, let alone the question of the relevance of mental retardation to the defense. Scholarship on the issue includes some discussion of cases involving the background of war, and the special type of duress that war provides. These cases raise the question of the relevance of coercion when military personnel follow orders – a question of increasing salience amid the recent controversies concerning the mistreatment of prisoners by U.S. military personnel. Part II of the article provides general background on the defense, and distinguishes it from the related common-law defense of “necessity.” Part III argues for a reversal of the common-law rule categorically barring assertion of the defense to the crime of murder. It explains that while a threat to a defendant's life may never justify the act of killing an innocent person, it may excuse a defendant from responsibility for that wrongful act. Part IV argues that even if the law bars the use of duress as a defense to murder, that rule should not apply to a charge of felony murder, especially where the coerced defendant played no direct part in the killing. Among other things, such a result follows from the basic rule that duress can excuse the predicate felony, and liability for the predicate felony is a prerequisite to felony murder liability. Part V argues that duress allows for reasonable mistakes regarding the presence of a threat and the absence of lawful alternatives. It also argues that evidence of mental retardation and other cognizable physical and mental disabilities should be relevant, even under the duress defense's objective, “reasonable person” standard.
ABSTRACT The article discusses the use of “proportional”-type electoral systems, such as limited ... more ABSTRACT The article discusses the use of “proportional”-type electoral systems, such as limited voting, cumulative voting, and preference (or choice) voting, as remedies for minority vote dilution under the Voting Rights Act. It argues that such systems are available as alternatives to the usual remedy of drawing single-member electoral districts with significant minority populations. Although applicable law requires that plaintiffs establish that a compact majority-minority district can be drawn to establish liability, the article suggests replacing that prong of the liability test with a showing that the minority group meets the “threshold of exclusion,” a well-established political science formula designed to test whether a cohesive political minority can elect a single candidate of choice under such an alternative electoral system.
ABSTRACT This Article focuses on the minority of death penalty states which have sentencing jurie... more ABSTRACT This Article focuses on the minority of death penalty states which have sentencing juries choose between death and life in prison with possibility of parole, excluding the “middle option” of life without parole (LWOP). A growing body of empirical evidence shows that the absence of an LWOP option causes juries to opt for a death sentence even where death is not otherwise called for, simply to avoid the chance that the defendant may someday “walk the streets.” The Article argues that such sentencing procedures violate the constitutional principles established by the Supreme Court's 1980 decision in Beck v. Alabama and its 2002 decision in Atkins v. Virginia. Beck established the principle that, in the guilt or innocence phase, where the defendant's life was at stake, the state could not eliminate an intermediate “third option” of a lesser-included, noncapital offense because of the risk that jurors would improperly choose to convict (and thus make the defendant death-eligible) rather than reach a too lenient result. The Article urges that the Beck analysis be applied to the capital-sentencing phase to require the “third option” of LWOP. Atkins demonstrated that a consistent and substantial pattern of state legislative enactment of a death penalty reform could establish “evolving standards of decency” under the Court's Eighth Amendment jurisprudence, requiring the reform as a constitutional matter. Because only two out of thirty-eight death penalty states decline to provide an LWOP option, Atkins establishes that non-LWOP schemes violate such evolving standards of decency.
ABSTRACT The article examines a question raised by the “butterfly ballot” regarding the allegedly... more ABSTRACT The article examines a question raised by the “butterfly ballot” regarding the allegedly misleading ballot used in Palm Beach County, Florida during the 2000 presidential election controversy: can a court ever order a “revote,” in whole or in part, of a presidential election? After providing the factual and legal background of the case, the article examines statutory and case law authority to rebut the conventional wisdom that federal law establishing a uniform date for the presidential election bars any court-ordered revote. It also responds to arguments that a revote of the presidential election in Palm Beach County (or anywhere) would be unworkable and unfair, specifically addressing the special problems caused by “partial” revotes. By analogy, it concludes that as court-filed election challenges become more common, courts should consider seriously the advantages of “revote” remedies.
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