DOCSLIB.ORG

Claremont II As an Opinion

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Claremont II As an Opinion The University of New Hampshire Law Review Volume 14 Number 1 University of New Hampshire Law Article 3 Review February 2016 Claremont I and II - Were They Rightly Decided, and Where Have They Left Us? John M. Lewis Associate Justice of the New Hampshire Superior Court from 2001-2013; Chair of New Hampshire's State Board of Education from 1997 to 2001 Stephen E. Borofsky Managing Director of the law firm of Borofsky, Amodeo-Vickery & Bandazian P.A. Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the Education Economics Commons, Education Law Commons, and the Taxation-State and Local Commons Repository Citation John M. Lewis & Stephen E. Borofsky, Claremont I and II - Were They Rightly Decided, and Where Have They Left Us?, 14 U.N.H. L. REV. 1 (2016), available at http://scholars.unh.edu/unh_lr/vol14/iss1/3 This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. Claremont I and II-Were They Rightly Decided, and Where Have They Left Us? JOHN M. LEWIS AND STEPHEN E. BOROFSKY* CONTENTS INTRODUCTION ............................................. 2 2...... I. CLAREMONT I AND CLAREMONTI ............. ..................... 7 1. Background ........................................ 7 a. In New Hampshire: The History Leading Up to the Filing of the Litigation ....................... ............. 77..... b. Elsewhere ...................................... 13 2. The Early Proceedings ....................... ......... 16 a. The Issues and Relief Sought ................. ........ 16 b. Motion to Dismiss and Superior Court Order ...... ........ 17 c. The ClaremontI Decision. ................. .......... 20 3. The Superior Court Trial and Decision ........... ......... 24 a. The Claims .......................................... 24 b. The Trial ............................................ 26 c. The Superior Court Decision ........ ................. 32 i. The Education Equity/Adequacy Count........................ 32 ii. The Equity/Adequacy Funding Count ............ ..... 37 iii. The Equal Protection Count....................... 39 iv. The Tax Count ..................................... 41 v. The Superior Court Concluding Remarks ...... ......... 43 4. ClaremontII...................................... 43 a. The Arguments ................................... 43 b. The Majority Decision .............................. 44 c. The Dissent. ............................ ......... 50 II. DEFENSIBILITY ......................................... ....... 52 1. ClaremontI ............................. .......... 53 a. The Meaning of Article 83 .................. ......... 53 b. Separation of Powers Concerns. .......... ............. 62 2. ClaremontII...................................... 75 a. The Defensibility of the Tax Ruling ........... ......... 75 b. The Defensibility of its Major Education Pronouncements.......... 79 c. Its Other Difficulties.......................... 81 III. WHERE WE ARE WITH THE CLAREMONT MANDATES . ............... 84 1. Definition ........................................ 84 2. Accountability/Assessment ............................ 85 a. Accountability Mechanisms .................. ........ 85 b. Assessment Results............................. 91 2 UNIVERSITY OFNEW HAMPSHIRE LAWREVIEW Vol. 14, No. 1 3. Funding ......................................... 94 CONCLUSION ............................................. ....... 101 INTRODUCTION Our children embody the enduring wonder of life. They hold our hopes for the future. We want them to be happy, to succeed in whatever they do both in work and in play. We want them to contribute to our country and the world in constructive ways. But for these hopes to be realized our children must be educated-they must possess the requisite skills and knowledge to function well in this ever- changing world. Yet, are we, as a society, meeting our responsibility to educate our children? What do we expect of our public schools? How important are these schools to us? Is a public education fit for the times guaranteed as a constitutional matter? These questions loomed large in the New Hampshire Supreme Court's decisions in Claremont I and Claremont II, issued respectively in 1993 and 1997.1 Constituting New Hampshire's core education rulings, they are among the Court's most controversial exercises of constitutional jurisprudence.2 *John M. Lewis served as an Associate Justice of the New Hampshire Superior Court from 2001 to 2013, and also served as Chair of New Hampshire's State Board of Education from 1997 to 2001. Stephen E. Borofsky is the managing director of the law firm of Borofsky, Amodeo-Vickery & Bandazian P.A. He grew up and went to school in Claremont, New Hampshire. Both authors attended Dartmouth College and Columbia Law School, and they worked together as partners in the law from 1982 to 2001. Today, they continue to work together. The authors wish to particularly thank Sandra Cabrera, Esq. for her research and editing assistance. Special thanks goes also to Mary S. Searles, Law Librarian of the John W. King New Hampshire Law Library, the Clerk's Office of the New Hampshire Supreme Court, and Alma Alvarado, Esq. 1 Claremont Sch. Dist. v. Governor (Claremont 1), 635 A.2d 1375 (N.H. 1993); Claremont Sch. Dist. v. Governor (ClaremontIl), 703 A.2d 1353 (N.H. 1997). 2 Claremont I and Claremont II were followed by a number of other decisions going into 2008, though many of these were not directly related to the actual Claremont litigation. See, e.g., Claremont Sch. Dist. v. Governor (ClaremontIll), 712 A.2d 612 (N.H. 1998) (dismissing challenge to Justice Batchelder's participation in Claremont II); Opinion of the Justices (School Financing) (Claremont I), 712 A.2d 1080 (N.H. 1998) (declaring that the proffered "ABC" funding plan did not pass constitutional muster); Claremont Sch. Dist. v. Governor (Claremont V), 725 A.2d 648 (N.H. 1998) (denying the State's request for an extension of time to enact a constitutional funding scheme); Opinion of the Justices (Tax Plan Referendum) (Claremont VI), 725 A.2d 1082 (N.H. 1999) (declaring a proposed tax plan referendum to be inappropriate); Claremont Sch. Dist. v. Governor (Claremont VII), 744 A.2d 1107 (N.H. 1999) (declining to sustain a "phase-in" for a state property tax scheme); Claremont Sch. Dist. v. Governor, (Claremont VIll), 761 A.2d 389 (N.H. 1999) (granting attorney's fees to 2015 CLAREMONT IAND II Instituted in 1991 in the Merrimack County New Hampshire Superior Court by five "property poor" school districts, five students, and eight taxpayers and parents, the Claremont litigation broadly challenged, on several state constitutional grounds, New Hampshire's funding of public education.3 The Superior Court (Manias, J.) initially dismissed the litigation, holding that it failed to present claims for which relief could be granted under State constitutional law. In Claremont I, however, the New Hampshire Supreme Court unanimously reversed this dismissal.5 It construed Part II, Article 83 (Article 83) of the State Constitution as reposing duties upon the State, enforceable in court, to provide "a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding." 6 Article 83, the education provision of the State Constitution, provides in pertinent part: Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools.7 The Supreme Court declined in Claremont I to define the specifics of a constitutionally adequate education or the means to provide for it, deferring petitioners); Opinion of the Justices (Reformed Public School Financing System) (Claremont IX), 765 A.2d 673 (N.H. 2000) (declaring that a proposed targeted aid plan did not pass constitutional muster); Sirrell v. State (Claremont X), 780 A.2d 494 (N.H. 2001) (rejecting challenge to 1999 state property tax); Claremont Sch. Dist. v. Governor (ClaremontXI), 794 A.2d 744 (N.H. 2002) (declaring accountability to be a component of the State's duty to provide a constitutionally adequate education); Londonderry Sch. Dist. SAU No. 12 v. State (Claremont XII), 907 A.2d 988 (N.H. 2006) (declaring that the State still had not developed "distinct substantive content" to what constitutes "adequacy" so cost thereof may be isolated; retaining jurisdiction; and threatening to impose remedies if "the political branches" fail, per a deadline, to "define with specificity the components of a constitutionally adequate education"); Londonderry Sch. Dist. SAU No. 12 v. State (ClaremontXIll), 958 A2d 930 (N.H. 2008) (dismissing case as moot). 3 Claremontl, 635 A.2d at 1377. 4 Id. at 1376-77. 5 Id. at 1382. 6 Id. at 1376. 7 N.H. CONST. pt. 2, art. LXXXIII. 4 UNIVERSITY OFNEW HAMPSHIRE LAW REVIEW Vol. 14, No. 1 "in the first instance" to the Legislature and Governor, though it declared that a free
Load more

Recommended publications
  • The Law of Infants' Marriages
    Vanderbilt Law Review Volume 9 Issue 4 Issue 4 - October 1956 Article 1 6-1956 The Law of Infants' Marriages Robert Kingsley Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Common Law Commons, Criminal Law Commons, and the Family Law Commons Recommended Citation Robert Kingsley, The Law of Infants' Marriages, 9 Vanderbilt Law Review 593 (1956) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol9/iss4/1 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 9 JUNE, 1956 NuivBFa 4 THE LAW OF INFANTS' MARRIAGES ROBERT KINGSLEY* I. INFANcy DEFINED Just as the law requires, for ordinary contracts, that a party thereto must have reached an age sufficient to give him reasonable discretion,1 so, in connection with the contract of marriage, the law has required that the parties be not too immature. It must be remembered, how- ever, that the word "infant" is not one of fixed meaning: when used with reference to ordinary contracts, and without further qualification, it usually means a person under twenty-one years of age;2 but in the field of criminal law the dividing line between "infancy" and "adult" responsibility is fixed at a lesser age (14 at common law) .3 In the present connection, also, the law, recognizing that physical attributes and various social pressures may be as important as chronological ex- perience,4 has commonly fixed at less than twenty-one years the age at which completely valid marriages could be contracted.
    [Show full text]
  • The Rise and Fall of Buckeye V. Buckeye, 1931
    TIE RISE AND FALL OF BUCKEYE v. BUCKEYE, 1931-1959: MARITAL IMMUNITY FOR TORTS IN CONFLICT OF LAWS MOFA-r HAMMC t No w is we &ffxd than dte art of goodgvemnm and at the fown&- fim of pmaewm good govermwnt wst be lid the wscvoidab& affic dt md iwite science of the law. Lf those who realize this are to lead, it is nem that they clear the minds of befoggim suenrtions, mvst#yi dogw, amd dwtreadmi s of isadeqmategeneralitis and sopkhtical reason- JosE, W. BwA,"osL' I. TBE ftoaL-m: Dlvi3tGEnr RruLE oF MARTAL IMba I irrWiSCONSIN AND ILLNOS I1 1959, the Supreme Court of W'isconsin overruled its much discussed and often cited precedent, Buckeye v. Buckeye,2 which, ever since it was decided in 1931, had been regarded as one of the leading cases in the field. The Bucke-e case involved a suit against the driver of a car brought by a lady passenger for personal injuries sustained while they had been driving in Illinois. After the commencement of the action the plaintiff married the defcolant. They were both domiciled in Wisonsin Under iEinois law (so it was thought) the marriage would have had the effect of extinguishing the cause of action; Wisconsin law, on the other hand, permitted wives to sue their husbands for personal torts committed before and after marriage. The Wisconsin court held that the Illinois rule should control and dismissed the complainL Although criticized by commentators, 3 the decision was followed 4 in five other states. As late as 1955, the Supreme Court of Connecticut added t Professor of Law, Stanford University.
    [Show full text]
  • Renvoi in New York and Elsewhere
    Vanderbilt Law Review Volume 6 Issue 3 Issue 3 - April 1953 Article 12 4-1953 Renvoi in New York and Elsewhere John D. Falconbridge Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Conflict of Laws Commons Recommended Citation John D. Falconbridge, Renvoi in New York and Elsewhere, 6 Vanderbilt Law Review 708 (1953) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol6/iss3/12 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. RENVOI IN NEW YORK AND ELSEWHERE JOHN D. PALCONBRIDGE* I. Introduction: Two New York Cases In re Tallmadge1 related to the mode of distribution of the residuary estate of one Chadwick. The report of Winthrop, referee, which was confirmed by the Surrogate's Court of New York County, found that "the 'renvoi' is no part of New York law,"2 whereas thirty-one years later in In re Schneider's Estate it was held by Frankenthaler, Sur- rogate, also in the Surrogate's Court of New York County, that the "broad assertion in Matter of Tallmadge, supra, that the renvoi prin- ciple is not applicable in New York is not in accord with the earlier or later cases. The precise limits of its applicability are as yet un- defined." 3 The mutually irreconcilable, general expressions of opinion by two different judges of the Surrogate's Court of New York County in cases separated widely in point of time and differing widely in their circumstances have at least the merit of directing attention again to the perennially troublesome problem of the renvoi in the conflict of laws.
    [Show full text]
  • The 2021-2022 Guide to State Court Judicial Clerkship Procedures
    The 2021-2022 Guide to State Court Judicial Clerkship Procedures The Vermont Public Interest Action Project Office of Career Services Vermont Law School Copyright © 2021 Vermont Law School Acknowledgement The 2021-2022 Guide to State Court Judicial Clerkship Procedures represents the contributions of several individuals and we would like to take this opportunity to thank them for their ideas and energy. We would like to acknowledge and thank the state court administrators, clerks, and other personnel for continuing to provide the information necessary to compile this volume. Likewise, the assistance of career services offices in several jurisdictions is also very much appreciated. Lastly, thank you to Elijah Gleason in our office for gathering and updating the information in this year’s Guide. Quite simply, the 2021-2022 Guide exists because of their efforts, and we are very appreciative of their work on this project. We have made every effort to verify the information that is contained herein, but judges and courts can, and do, alter application deadlines and materials. As a result, if you have any questions about the information listed, please confirm it directly with the individual court involved. It is likely that additional changes will occur in the coming months, which we will monitor and update in the Guide accordingly. We believe The 2021-2022 Guide represents a necessary tool for both career services professionals and law students considering judicial clerkships. We hope that it will prove useful and encourage other efforts to share information of use to all of us in the law school career services community.
    [Show full text]
  • Verizon Political Contributions January – December 2012
    VERIZON POLITICAL CONTRIBUTIONS JANUARY – DECEMBER 2012 1 Verizon Political Contributions January – December 2012 A Message from Craig Silliman Verizon is affected by a wide variety of government policies ‐‐ from telecommunications regulation to taxation to health care and more ‐‐ that have an enormous impact on the business climate in which we operate. We owe it to our shareowners, employees and customers to advocate public policies that will enable us to compete fairly and freely in the marketplace. Political contributions are one way we support the democratic electoral process and participate in the policy dialogue. Our employees have established political action committees at the federal level and in 20 states. These political action committees (PACs) allow employees to pool their resources to support candidates for office who generally support the public policies our employees advocate. This report lists all PAC contributions, corporate political contributions, support for ballot initiatives and independent expenditures made by Verizon in 2012. The contribution process is overseen by the Corporate Governance and Policy Committee of our Board of Directors, which receives a comprehensive report and briefing on these activities at least annually. We intend to update this voluntary disclosure twice a year and publish it on our corporate website. We believe this transparency with respect to our political spending is in keeping with our commitment to good corporate governance and a further sign of our responsiveness to the interests of our shareowners. Craig L. Silliman Senior Vice President, Public Policy 2 Verizon Political Contributions January – December 2012 Political Contributions Policy: Our Voice in the Political Process What are the Verizon Good Government Clubs? and the government agencies administering the federal and individual state election laws.
    [Show full text]
  • October 9, 1992
    This document is from the collections at the Dole Archives, University of Kansas http://dolearchives.ku.edu October 9, 1992 MEMORANDUM TO THE LEADER FROM: JOHN DIAMANTAKIOU SUBJECT: POLITICAL BRIEFINGS Below is an outline of your briefing materials for your appearances in New England and New York. Enclosed for your perusal are: 1. Campaign briefing: • overview of race • biographical materials • Bills introduced in 102nd Congress 2. National Republican Senatorial Briefing 3. City Stop/District race overview 4. Governor's race brief (NH, VT) 5. Redistricting map/Congressional representation 6. NAFTA Brief 7. Republican National Committee Briefing 8. State Statistical Summary 9. State Committee/DFP supporter contact list 10. Clips (courtesy of the campaigns) 11. Political Media Recommendations (Clarkson also has a copy) Thank you. Page 1 of 46 This document is from the collections at the Dole Archives, University of Kansas P. 2/ 9 OCT 02 '92 10 : 07 http://dolearchives.ku.edu OVERVIEW OF NEW HAMPSHIRE U. S. SENATE RACE Defense Cuts Governor Gregg maintains that defense cuts are necessary but at a careful and cautious rate. The cuts he supports are at a level slightly higher than those proposed by the President, but lower than Bill Clinton1s defense cut proposal. The Governor's Democratic opponent, John Rauht wants a 50% defense cut over five years. None of the savings would be applied to the budget deficit but would instead go wholly to retraining programs. Governor Gregg believes that this drastic cut is irresponsible, would wreak economic havoc on New Hampshire's defense dependent industry1 would force the closing of the Portsmouth Naval Shipyard, and would cripple the nation's ability to respond to military threats.
    [Show full text]
  • Couple Is Mainstay of Republican Politics in NH
    Couple is mainstay of Republican politics in N.H. By Shira Schoenberg Globe Correspondent/ September 1, 2011 AMHERST, N.H. - When Susan Duprey travels with Ann Romney, the wife of presidential candidate Mitt Romney, Duprey carries the Sharpie pens, hand sanitizer, sewing kit, and camera phone. When Duprey’s husband, Steve Duprey, traveled with 2008 presidential nominee John McCain, he had the pirate bandannas and eye patches, tropical hats in Florida, and cheesehead hats in Wisconsin. To Ann Romney, Susan Duprey has become a “close confidante’’ with a reputation as a problem solver, according to one top campaign aide. Traveling with McCain, Steve Duprey earned the title “morale officer’’ for the way he would joke around and hand out McCain-Palin hockey pucks or shot glasses - in addition to being a trusted adviser. The Dupreys carry to an extreme the type of citizen involvement that New Hampshire presidential campaigns rely on. They emphatically deny any aspirations for higher office, though he ran unsuccessfully for Congress in 1992. Between them, the two have worked on more than 30 national and state Republican campaigns since the 1970s. “For any campaign at a state or federal level, you would have both of them on a short list of activists you want helping,’’ said Charlie Arlinghaus, who was executive director of the state Republican Party when Steve Duprey was chairman. “They’re low maintenance and they do a lot of work.’’ Susan Duprey is the former president of the Devine Millimet law firm; her husband developed some of the biggest real estate projects in Concord, their hometown.
    [Show full text]
  • MUR#160O Dear Committee Members
    OFFICIOS GENERAL COUNSEL Baboucar Taal September 10,2018 SFP 17 AM 9- 28 Bedford, NH03110 Office of General Counsel, Federal Election Commission, 999 E Street, N.W., Washington, D.C. 20463. MUR#160O Dear Committee Members: Herein is a Complaint against a (state chartered) Credit Union: St Mary's Bank, it's top Management and Board of an ongoing Campaign Finance Violations within the FEC jurisdiction per Federal Election Campaign Act of 1971 as amended. l.St Mary's Bank and it's management engaged illegal campaign contributions and in these specific cases grants prospective candidates for Public (state and federal) offices, a 20 or 30 yrs mortgage loan and then turn around and "discharge" said loan obligation within 21 to 31 days of taking out the firaudulent loan. 2. In numy instance said scheme would take place 6 months to a year prior to the "candidate" registering to run for Public Office and in others during the campaign making it look like a "candidate" is injecting his/her own money into the campaign by taking out a "Mortgage" Not an Equity Line of Credit, and Not a Refinancing. Mortgage! denoting said property was owned 'free and clear'even as the 'value' is Not there??? 3. Again in instances of the later said scheme would then involve grant said fi^udulent loan/mortgage with a quick "discharge" to reimburse, funnel/launder money [evade taxes], back to the "prospective" candidate(s) who may have succeeded or and in a specific instance of who failed to win, a "mortgage" was granted on June 16 2016 for $255,850.00 and "discharged" on July 5,2016.
    [Show full text]
  • British Statutes in American Jurisdictions 197
    December, 1929 BRITISH STATUITES IN AMERICAN JURISDICTIONS FREDERICKI G. MCKEAN, JR. The abstraction called the Law is a magic mirror wherein we see reflected not only our own lives, but the lives of all men that have been.-Attributed to Mr. Jus- tice Holmes. It has been said that man differs from other animals chiefly in this: that he retains in each generation that which has been handed down by its predecessor,, and, after applying the touchstone of experience, passes it to his successors. This commonplace has been phrased in the folk saying, "Experience is the best teacher", and in the legal aphorism that "the life of the law has been-experi- ence". An outstanding characteristic of the founding of this re- public was the tenacity with which our forefathers clung to their inheritance of the laws which their immigrant ancestors brought into the New World and adapted to the requirements of changed environment. John Adams is credited with the statement that he would not have taken the stand that he did in the War for Inde- pendence, if such action had involved the loss of the common law. Chief Justice Taft says, "We embodied in the Bill of Rights in our Constitution the principles of the British Constitution as they had. been established at the Common Law."' At the threshold of the Revolution the American Continental Congress of 1774, under the presidency of George Washington, adopted this resolution: "Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more espe- cially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
    [Show full text]
  • In the United States District Court for the District of Kansas
    Case 2:06-cv-02137-EFM-KMH Document 53 Filed 07/27/06 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MILDRED SPIRES, as next of kin and Administrator of the Estate of JOSEPH SPIRES, deceased plaintiff; THERESA A. ADAMS as Administrator of the Estate of LEON E. ADAMS, deceased plaintiff, individually and on behalf of all others similarly situated, Plaintiffs, vs. Case No. 06-2137-JTM HOSPITAL CORPORATION OF AMERICA, Defendant. MEMORANDUM AND ORDER This is an action by the two named plaintiffs seeking recovery on the part of their decedents who were allegedly killed by nurse staffing policies which were imposed by defendant Hospital Corporation of America (HCA) on its member hospitals, as well as recovery for a proposed class which would include all individuals who have been admitted to or has attempted to be admitted to or will attempt or will be admitted to an HCA owned hospital located in the United States and subjected to the staffing practices of the defendant since January 1, 1996. Amended Complaint, at ¶ 49. The plaintiffs raise claims for consumer protection violations, negligence, unjust enrichment, and for injunctive and declaratory relief. Five motions are now before the court. Only one of these motions has been fully briefed, but this motion –– defendant HCA’s Motion to Dismiss (Dkt. No. 26) –– renders moot the remaining Case 2:06-cv-02137-EFM-KMH Document 53 Filed 07/27/06 Page 2 of 11 motions and is dispositive of the issues raised therein. The remaining motions are motions by the plaintiffs seeking leave to amend (Dkt.
    [Show full text]
  • Choice of Law in the United States Gregory E
    Hastings Law Journal Volume 38 | Issue 6 Article 1 1-1987 Choice of Law in the United States Gregory E. Smith Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987). Available at: https://repository.uchastings.edu/hastings_law_journal/vol38/iss6/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Choice of Law in the United States by GREGORY E. SMITH* Perhaps no legal subject has caused more consternation and confu- sion among the bench and bar than choice of law.1 Much of the bewil- derment is attributable to the fact that the modern choice of law era did not begin until approximately 1963.2 Since then, courts have struggled mightily to come to grips with various modern choice of law theories put forth by conflicts scholars. The decisions in any given jurisdiction are often decidedly, perhaps wildly, inconsistent. Added to this is the fact that published conflicts decisions are quite rare. Although conflicts cases arise at the trial level fairly often, many years may pass before a court of 3 last resort is called upon to resolve a difficult choice of law problem. Thus, confounded judges are left to grapple with a smattering of irrecon- cilable and sometimes incomprehensive precedents. It is no small won- der that many judges have dreaded seeing choice of law cases on their dockets.
    [Show full text]
  • The Employer and the Law of Privacy in the Workplace - the U.S
    NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 9 Number 1 Article 7 Winter 1983 The Employer and the Law of Privacy in the Workplace - The U.S. Model to Date Arthur P. Menard Anne K. Morrill Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Part of the Commercial Law Commons, and the International Law Commons Recommended Citation Arthur P. Menard & Anne K. Morrill, The Employer and the Law of Privacy in the Workplace - The U.S. Model to Date, 9 N.C. J. INT'L L. 93 (1983). Available at: https://scholarship.law.unc.edu/ncilj/vol9/iss1/7 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. The Employer and the Law of Privacy in the Workplace-The U.S. Model to Date by Arthur P. Menard* and Anne K. Morrill** "An American has no sense of privacy. He does not know what it means." Shaw. If George Bernard Shaw could see America fifty years later, he would have to publish an immediate retraction. Indeed, in the last two decades, employers have been beset by a bewildering plethora of laws pertaining to privacy rights of employees. These laws relate to personnel files, medical records, arrest records, eavesdropping, employment appli- cations, blacklisting, and even fingerprinting. The laws also concern the acquisition, retention and dissemination of employee information. Al- though it is basically state laws which affect private employers, federal law cannot be wholly ignored, particularly the Fair Credit and Report- ing Act.
    [Show full text]