The Boundary Waters Canoe Area Wilderness Act of 1978: Regulating Nonfederal Property under the Property Clause

In an effort to resolve the nagging controversy over the management of more than one million acres of public forests, lakes, and streams in northeastern Minnesota, Congress enacted the Boundary Waters Canoe Area Wilderness Act of 1978 (BWCA Act). Despite its objective, the Act has engendered further controversy. Particularly troublesome are several provisions that regulate the use of motorboats on lakes within and partly within the area. Those provisions test the scope of congressional power over nonfederal property under the property clause of article IV of the United States Constitution. This Article examines the aged Supreme Court cases under which the constitutionality of those provisions must be judged. Based on the Court\u27s decision in Camfield v. United States, the Article argues that the property clause empowers Congress to regulate conduct on nonfederal property if that conduct frustrates a congressional policy applicable to federal property. It concludes that even though the lakes within and partly within the Boundary Waters Canoe Area are not federally owned, the BWCA Act\u27s regulation of motorboats is a valid exercise of the property clause power

Expecting Too Much and Too Little of Lawyers

The regulation of lawyers\u27 behavior remains a controversial topic. Over the past hundred years, the organized bar has engaged in a number of efforts to generate rules governing lawyers\u27 conduct. Still, prominent lawyers and jurists, the public media, and legal scholars perceive an ongoing decline in the profession\u27s ethics. Bar leaders tend to respond to the problem by calling for greater professionalism among practicing lawyers. Drawing on professional images from earlier times, they urge lawyers to look beyond the rules and to be more virtuous, selfless, independent of clients, and dedicated to justice. A number of commentators go further. These critics maintain that the profession\u27s reliance on statute-like rules and codes deters broader ethical deliberation by lawyers and encourages the zealous pursuit of the narrow interests of clients, thus causing lawyers to act unethically and diminishing the collective professional image of the bar. To address this concern, some writers urge the bar to reduce its current dependence on legalistic rules and codes in addressing professional misconduct. Neither the bar\u27s focus on notions of professionalism nor the critics\u27 proposed retreat from rules of legal ethics, however, offers much promise for improving the ethical behavior of lawyers. These approaches posit that lawyers will respond to moralistic appeals or react to the reduction or elimination of legalistic rules and codes by disregarding their legal duties to, and personal relationships with, their clients in order to behave more ethically. In doing so, these approaches expect too much of lawyers. At the same time, they neglect or eschew entirely the use of sound rulemaking, the primary and perhaps only workable mechanism for defining and demanding a higher level of professional behavior from lawyers. Thus, the approaches expect too little of lawyers. Rules play an important part in determining the profession\u27s values and the level of ethics and professionalism within the bar. The primary problem with the present rules, however, is not the failure of lawyers to embrace voluntarily a higher sense of professionalism nor the rules\u27 legalistic tone and mandatory effect. The present rules fail to fulfill their task because they fall short of setting standards of behavior for lawyers that are consistent with what the public should demand of the profession and what the profession should expect of itself

Separation of Powers, Legislative Vetoes, and the Public Lands

The Supreme Court\u27s decision in Immigration and Naturalization Service v. Chadha struck a serious, if not fatal, blow to the constitutional acceptability of the legislative veto. In Chadha the Court held that a provision of the Immigration and Naturalization Act, which permitted one House of Congress to reverse a decision by the Attorney General not to deport an alien, was a violation of the doctrine of separation of powers since it did not comply with the requirements of passage by both Houses of Congress and presentment to the President. In light of that decision, the constitutionality of nearly 200 statutes utilizing some form of the legislative veto is questionable. The effect this decision may have on the balance of powers between Congress and the executive branch is of obvious significance. For those interested in the power of Congress over the public lands, the implications of the Chadha decision are of particular importance. Under that portion of article IV of the Constitution known as the property clause, Congress is given the power “to dispose of and make all needful Rules and Regulations respecting” the public lands. Utilizing this authority, Congress has frequently reserved the power to review and reject decisions made by agencies delegated the authority to manage the public lands. These reservations of power are often stated in the terms of a legislative veto. That device has thus become a prominent feature of public lands legislation. If the Court\u27s decision in Chadha renders unconstitutional such reservations of power under the property clause, considerable statutory revision will be necessary to preserve congressional control over public lands management. This Article explores the question of whether legislative vetoes enacted under the article IV property clause power of Congress are subject to the same objections made by the Court to the legislation reviewed in Chadha. In Part I, this Article will briefly examine the Chadha decision and the Court\u27s objections to the legislation involved in that case. Part II of the Article looks at case law that supports an argument that legislative veto provisions found in property clause legislation are not subject to the objections made by the Court in Chadha. In Part III, the Article measures the use of legislative vetoes in the property clause context against the purposes underlying the doctrine of separation of powers and concludes that such legislative vetoes may well be constitutional under Chadha. Finally, in Part IV, this Article suggests a limitation on that conclusion necessitated by the breadth of the property clause power

Kentucky\u27s New Rules of Professional Conduct for Lawyers

On July 12, 1989, the Kentucky Supreme Court adopted its own version of the American Bar Association\u27s 1983 Model Rules of Professional Conduct as the body of disciplinary law applicable to lawyers practicing in the state. These new rules constitute a major improvement in the state\u27s law of legal ethics. Their adoption should be considered a victory for Kentucky lawyers and, more importantly, a victory for the people of the state, the ultimate beneficiaries of the regulation of the legal profession. As with most victories, the adoption of the new rules was not unequivocally positive. Kentucky\u27s version of the Model Rules deviates in several substantial and detracting ways from the ABA\u27s version. Worse, the Kentucky court deleted certain duties of lawyers that for the better part of this century have been widely accepted as fundamental components of legal ethics. The new Kentucky rules take a large step forward in improving the law regulating lawyers in the state. At the same time, they take several significant steps backward. While the adoption of the new rules should be applauded, their shortcomings need to be remedied

Why Kentucky Should Adopt the ABA\u27s Model Rules of Professional Conduct

In 1983, after six years of drafting and lively debate, the American Bar Association adopted the Model Rules of Professional Conduct as its most recent statement of the ethical norms of the legal profession. Shortly thereafter the ABA forwarded the rules to the states for consideration and possible adoption as binding ethical principles. As of this writing, a number of states have adopted the Model Rules, in full or in substantial form, and several more have proposals for such adoption pending before their supreme courts The Kentucky Supreme Court presently awaits the state bar association\u27s recommendation regarding the Model Rules\u27 adoption. Meanwhile, the currently applicable body of law regarding legal ethics in Kentucky is the ABA\u27s earlier statement of professional norms, the Code of Professional Responsibility. The issues that the state bar association currently faces and that the Kentucky Supreme Court ultimately must decide are whether the present Code warrants revision or abandonment and, if the latter, whether the Model Rules or some variant of them should be the replacement. It is, therefore, an opportune time to assess what is to be gained by adopting the Model Rules and what is to be lost in failing to do so. This Article attempts that assessment. The Author believes that the adoption of the Model Rules in Kentucky is critical. Those rules constitute a considerable substantive improvement over the Code. Furthermore, certain peculiarities of the regulation of professional conduct in Kentucky cause the people and lawyers of the state to stand to benefit more than those of most other states by the adoption of the Model Rules. In fact, the Author believes that the Model Rules\u27 adoption in Kentucky would constitute one large step in a much needed reform of the state\u27s present lawyer disciplinary process

Lessons in Legal Ethics from Reading About the Life of Lincoln

Abraham Lincoln is an icon of American history. He is prominently named in various opinion polls as among the best Presidents in the history of the United States. His stature as a great President is perhaps best reflected currently in the stream of events constituting a national two-year celebration of his 1809 birth. Even before that, however, scholarly and popular interest and Lincoln’s life and Presidency continued unabated, as indicated by the steady publication and success of books about him. Notable among these works is David Herbert Donald’s best-selling biography of our sixteenth President titled Lincoln. Although Mr. Donald’s compelling book offers readers knowledge and insight into all aspects of Lincoln’s life and Presidency, as a recent reader I was struck by how often the work caused me to think about the subject of contemporary legal ethics. This is not entirely surprising. In addition to his revered position as a preeminent leader of our nation at a critical time in history, Lincoln is also regarded by a number of legal scholars as an icon of American lawyering. He has been described as a model of the sort of lawyer who once embodied the true values of the legal profession, as a standard against which to judge how far today’s profession has fallen in its ethics, and as an ideal toward which lawyers should again strive in order to recapture the proper focus and emphasis on professionalism. It is also not too surprising that I, as a long-time teacher of legal ethics, would tend to reflect upon the biography of a leading lawyer from the perspective of that subject. Still, in choosing to inform myself through Mr. Donald’s book I had not anticipated that my reactions would so frequently involve digressions into the subject of legal ethics. In this Article, I offer these insights. Let me clarify that I do not purport, nor am I competent, to review Mr. Donald’s book or to provide a broader look into or comment on Lincoln’s life, law practice, or role in history. Instead, I intend merely to describe here what lessons I learned or had reinforced about lawyers’ ethics by my reading of Mr. Donald’s account of Lincoln’s life

Renewed Introspection and the Legal Profession

As the twentieth century draws to a close, the legal profession again immersed in a process of self-assessment, reflection, and reform. Operating on several fronts, various constituent elements of the bar have recently completed or have underway significant projects relating to the law of lawyering. Two efforts stand out in particular. For more than a decade, the American Law Institute has labored in the production of a new Restatement of the Law Governing Lawyers, and the organization stands now on the brink of that monumental work\u27s publication. Equally significant, the American Bar Association has again undertaken a comprehensive review of the prevailing codification of legal ethics through the efforts of its Ethics 2000 Commission, which is gathering comments on the continued adequacy of the ABA\u27s current Model Rules of Professional Conduct. This foreword to a symposium on professional responsibility explores the renewed introspection within the legal community