November 21, 2007
Local Governments and the Global Environment
Professor Victor Flatt has an excellent new article, "Act Locally, Affect Globally: How the Structure of Local Government Makes it the Best Arena for Engagement and Work with the Private Sector to Control Environmental Harms." He argues that more attention needs to be given to the role of local governments in addressing large-scale environmental harms, not only because of substantial local activity relating to climate change, but also because of local governments' capacity to develop social norms that can be internalized by decision makers situated locally yet responsible for activities of private corporations that operate well beyond local boundaries.
Public Records and Football Skirmishes
A divided Pennsylvania Supreme Court this week issued its opinion in a dispute regarding public access to salary and related information about Penn State University employees including football coach Joe Paterno.
See Penn State Univ., et al, Aplts v. State Employees Retirement Board - No. 107 MAP 2006.
The case arose in 2002, when a Harrisburg newspaper sought disclosure of data regarding Paterno's salary level insofar as that information is evident in state employees retirement board records. The litigation led the court to interpret key aspects of Pennsylvania’s Right to Know Act (RTKA), 65 P.S. §§ 66.1-66.9, specifically the definition of "public record" as including "any account, voucher or contract dealing with the receipt or disbursement of funds by an agency."
A four-judge majority concluded that the information about Paterno's salary held by the Retirement Board was covered by this definition, even though the information had not been created by the Retirement Board (but was held by the Board and used to determine a future guaranteed payment to Paterno). Nor was the information exempt from disclosure based on the status of the Retirement Board, common law or statutory fiduciary duties, or federal statutes regulating the financial services industry. The majority also rejected a claim that the information was exempt from disclosure under a statutory provision stating that public records do not include "any record, document, material, exhibit, pleading, report, memorandum or other
paper, . . . which would operate to the prejudice or impairment of a person's reputation or
In dissent, Chief Justice Cappy contended that the majority had erred in its threshold analysis, since in his judgment prior case law required that salary information not be deemed to all within the definition of public record until "retirement benefits are computed and paid."
Federal Role in Supporting Public Education
Professor Goodwin Liu has published important recent articles offering fresh thoughts on why the federal government should provide more substantial support for public education. In Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006), he argues that "the most significant component of educational inequality across the nation is not within states but between states," and contends that the "citizenship clause" and section 5 of the Fourteenth Amendment "authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation." In his view, "the citizenship clause guarantee does more than designate a legal status....it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community." For additional writing on this topic by Professor Liu, see Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044 (2006). For responses to Professor Liu's Yale article by Robin West and Carl Kaestle, see the Yale Law Journal Pocket Part Archive.
Sovereigns and Servants: Yale Symposium
The Yale Law Journal has an excellent symposium that considers the interplay of local government law and the separation of powers. Professor Heather Gerken's overview essay "Of Sovereigns and Servants" is available from SSRN or at 115 Yale L. J. 2633 (2006). The essay highlights a common issue (correcting imbalance of power between government branches), through differing lenses. At the national level in recent days scholars have often focused on how to tame the overly energetic national executive, while at the local level some have argued for stronger local executives as a means to strengthen weak cities.
Other essays on particular interest that are included in the symposium include Richard Schragger's "Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System," 115 Yale L.J. 2542 (2006) and David Barron's Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218 (2006)