Monthly Archives: January 2014

Controversy Continues For Marissa Alexander With Motion To Revoke Bail

Coastal Law Professor Rod Sullivan joins WJCT to talk about the latest with Marissa Alexander.

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Challenging Chapter VII: The Next Step in the Law of War?

By Brian J. Foley
Professor of Law
Florida Coastal School of Law

The thing that’s amazed me the most for the longest time in law is that the most horrific, destructive action a government can undertake is governed by so little legal process. A Presidentor Prime Minister wants to wage a war? There’s less required testing of evidence and rationale than when a person faces a misdemeanor conviction, or even when a restaurant wants a liquor license.

Generally, the level of process required to test a government decision roughly equates with the gravity of the decision. Decisions involving the deprivation of life and liberty get more process than those involving a deprivation of property. Compare a death penalty case with the procedure for a parking ticket.

fcsl-cover-03-13 Cpull1War’s an anomaly. I’m not sure why. Maybe it’s because war is too horrible to think about. Maybe because war has traditionally been left to the whim of absolute monarchs. Maybe because we’re used to the government having more access to information and to be in control of the flow of information; we’re used to deferring. Or maybe we think that wars, like natural disasters, are a common, tragic part of life that just happen now and then like hurricanes and tornados.

But there is law regarding war. Most people are at least vaguely familiar with the laws that govern how hostilities must be carried out, laws known collectively as the jus in bello (law in war). The Geneva Conventions, which address how soldiers must treat enemy soldiers, prisoners, and civilians, are the best known. Most people are familiar with various bans on certain types of weapons, such as poison gas.

We are far less familiar, however, with the laws governing when nations may legitimately go to war, laws known as the jus ad bellum (right to war), such as the venerable Just War Standard dating back to St. Augustine, the Kellogg-Briand Pact, which outlawed war in 1928, and the UN Charter, a treaty that requires Member Nations to turn over their decision-making power on whether to wage war to the Security Council, except if immediate self-defense is required. Even then, a nation must turn over the matter to the Security Council as soon as possible.

The Just War standard and UN Charter set out rules, but what’s missing is any way to enforce them. The last time the world has seen leaders of developed nations put on trial for starting wars (and committing crimes during the wars) were the Nuremberg and Tokyo Trials, which were ad hoc tribunals set up to prosecute Axis leaders after World War II. The crime of “aggression,” which was what Nazi leaders were charged with, was only recently codified in international law, after several years of work.

As for the jus ad bellum, it seems that the UN Charter has been reduced to something that international leaders, jurists, and public intellectuals sometimes refer to before and/or after wars, but only in a rigid, j’accuse fashion. Now and then, defenders of wars might deign to argue that their military action didn’t violate the Charter; usually, however, they seem not to mention these laws, perhaps fearing that doing so would give them legitimacy – leaders don’t want their ability to wage war limited by law. And, unfortunately, the Security Council rarely makes any pronouncement, one way or the other. For example, it never made a clear pronouncement regarding the legality of the U.S.-led invasion of Iraq.

Much of my scholarly work and public commentary has been to argue that the Security Council should test claims for war before the first shots are fired, to guide nations in what’s legal and what’s not. My idea is that the jus ad bellum can be used dynamically to help us prevent unnecessary wars and limit the harms of necessary ones. If leaders were forced to lay out their claims and evidence, other nations, and their publics, would get to see these claims tested. Good claims would lead to popular support. Bad claims would lead to the opposite – which might prevent a war.

Law as a Guide to Good Thinking

One of my views of law is that it’s not just a set of rules to tell us what we can or cannot do, what’s right or wrong, etc. Rather, at its best, lawcan serve as a guide for decision-making. Opposing arguments are fully ventilated, the accuracy of evidence is tested, and reasoning for the decision is set forth. It’s a transparent process, a requirement that reason will govern the decision-making, rather than an authority figure’s “Because I said so!” (That’s one of the things that attracted me to law in the first place. Maybe that’s the case with you, too?)

As lawyers, we can envision processes we’re familiar with as rough analogies. After a war that violated the UN Charter, a leader could be tried, in a manner akin to a criminal trial. Leading up to a war, a leader’s case for war could be tried in a process akin to a motion for preliminary injunction.

Even without formal process, we can envision what “common sense,” or rudimentary problem-solving, about whether to wage war would entail. First, we’d determine the goal for which using military force is proposed. Next, we’ d weigh the costs and benefits. We’d also continue vigorously to find or devise less-costly alternatives to war. If no alternatives existed, then we’d look for ways to eliminate or at least minimize the costs.

Another analogy: A shopping mall is proposed in a town or city. The planning and zoning boards test the developer’s case.“Impact studies” are often required. Again, big decisions require big process, for high scrutiny.

Why not legally require deliberation for such an important undertaking, an undertakingthat will result in irreparable harm? The sense running through my work on this issue is that this isn’t too much to ask!

One might counter that we don’t have the luxury to deliberate: This is war! True, if a nation is attacked, its leaders and citizens are unlikely to assemble a debating society. But that’s not the model anymore for U.S. wars. Even after the 9/11 attacks, the U.S. didn’t strike back until almost three weeks later, October 7, when it invaded Afghanistan. But the Bush Administration explicitly adopted an aggressive strategy that focused on preemptive war, a strategy of striking any enemy early, while that enemy is plotting and planning attacks. (President Obama appears to still follow this strategy, given his threats to Iran and his use of drone strikes.) The challenge with such a regime is that the evidence of such plotting and planning might not be clear. There might be different interpretations of another nation’s intentions. The ongoing U.S. confrontation with Iran is a good example. Is Iran_really_ building an atomic bomb? If so, will it actually use it against the United States or Israel? If not, then there are needless costs to going to war. But if the U.S. were to remain passive in the face of an actual threat, there would be needless costs as well. (“Costs,” of course, is a euphemism for deaths of civilians and soldiers; physical injuries; psychic injuries; people being made refugees; property destruction; environmental destruction; financial costs; etc.)

With a policy of early intervention, the U.S. has the ability, and, I would argue, the responsibility, to be deliberative about avoiding or limiting these costs.

The Process in Action

The process would be fairly straightforward, with at least four basic steps. First, determine whether the military force would be required to prevent a serious irreparable harm. For example, force can’t be used simply to take over a country for its resources. Force can’t be used simply to punish a nation or its leaders (as innocents will surely be killed). The sorts of serious irreparable harm I am thinking of would involve dangers to human life. Things such as a rogue nation’s acquiring a nuclear bomb with the intent to use it, or a nation’s harboring terrorists bent on attacking other countries, or ongoing or a threat of genocide, could be included. There would be a sort of Federal Rule of Civil Procedure 12(b)(6) approach: Assuming arguendo that the claims made by nation seeking to use military force are true, is the situation one of serious irreparable harm? If not, game over. If so, then there would have to be an actual testing of the evidence that such irreparable harm is occurring or likely to occur.

If there is evidence, then the next step would be a search for alternatives. I have argued that this search is required by the language in the UN Charter and Just War standard that force should only be used if “necessary.” Otherwise, the word “necessity” is meaningless. So some “forced creativity” would be required. A nation seeking to wage war would have to show that it had tried alternatives to military force and they failed, or that it is clear they would be likely to fail if tried. Ienvision the Security Council brainstorming or engaging in other ways to enhance creativity. Perhaps they could do this behind closed doors, if they’re afraid of not looking“dignified.” But that seems a small price to pay if it could avoid the serious costs of war! Moreover, brainstorming and similar activities are becoming more and more common in businesses. They work. In the future, we might all be used to seeing higher-ups brainstorming and engaging in other creativity exercises. This “step” would actually be ongoing. Efforts to come up with solutions, and tenacious diplomacy to broker a war-avoiding deal, shouldn’t stop, even after war has begun.

The next step would be to lay out clearly the likely harms,and to seek ways to limit them. Creativity would be required here, too. Military strategies can be shaped in various ways to avoid particular harms.For example, what would be the relative costs to all involved of troops on the ground vs. high altitude bombing? (Of course, high altitude bombing is safer for the attacking nation, but it’s less safe for the innocents on the ground.)

The next step would be balance the irreparable harm that military force is proposed to prevent against the likely harms of using the force. It’s afamiliar cost-benefit analysis.

Throughout the process, the burden of proof should be at least the legal standard“clear and convincing evidence.” Better yet, with preemptive wars and other wars of choice, the highest legal standard, “beyond a reasonable doubt,” the familiar standard used in criminal cases, should be applied. After all, anyone proposing to unleash the destruction and havoc of war should be forced to meet the highest standard to show that war is justified and that no reasonable alternatives exist.

This isn’t rocket science; indeed, it’s familiar to us lawyers. The beauty of this process is that it could be used by the UN Security Council or byCongress. It could also be carried out by any of the world’s almost 200 nations, especially those asked to join a coalition. A nation could invite the leaders of a nation proposing to use military force to come lay out their claims. If governments fail to provide such a forum, an NGO or civil society organization could step up and hold hearings and televise them or put them on the Internet for the world to see. If leaders of a nation proposing war don’t show up, outstanding lawyers could be tasked to argue the case for war. The incentive to do a vigorous job on all sides and avoid the sense that the inquiry is a “kangaroo court” would be high: the world would be watching, and legitimacy of the process would be scrutinized.

What next?

The benefits: a proposed war that is justified will garner wide support, and damages from it would be limited. A proposed war that isn’t justified won’t garner sufficient support and might end up being avoided altogether. That is, there’s more likelihood that the right decision will be made. One of our core beliefs as lawyers is that process enhances the accuracy of decision-making. Why not apply it to this most deadly decision? It comes down to this:Do we have the will to create and mandate such a process?

Then we can move on to other projects: Requiring withering cross-examination in Presidential debates, or hearings to get to the bottom of claims about global warming, etc. Let’s keep applying the critical thinking we lawyers are trained in to create a better world.

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New school leadership emphasizes innovation

Chidi Ogene (left) and Dennis Stone (right)

Chidi Ogene (left) and Dennis Stone (right)

Florida Coastal School of Law’s new president and interim dean have dramatically different backgrounds, but what they have in common is a remarkably similar view on how best to prepare students for the opportunities and challenges of the 21st century legal profession.

Dennis Stone, appointed the school’s president in May, is a long-time Jacksonville resident and was both a founding executive of Coastal Law and of the InfiLaw System, the consortium of independent law schools of which Coastal Law is affiliated.

Chidi Ogene, Coastal Law’s interim dean since June, grew up in Nigeria, graduated from universities there and in the U.S., and practiced corporate and commercial law before joining InfiLaw as general counsel.

Despite their disparate backgrounds and paths to Coastal Law, both men’s careers gave them opportunities to observe several models of legal education. Those included the more traditional programs, as well as others that were taking more innovative and radical approaches to achieving desired outcomes. Stone and Ogene agree the latter more contemporary approach is better positioned to more swiftly adapt to the realities of today and tomorrow’s legal marketplace.

The road to practice-readiness

“One of our top priorities is to graduate attorneys who can more immediately add value to their respective organizations because they will have right knowledge and training to do so. The more traditional model of legal education is more likely to graduate law students who expect their first employers to train them after they’re hired,” said Stone. “For instance, our JD Plus program is already one of the most innovative in the country in terms of preparing students for the demands of practice, and we are continuing to introduce other programs rarely found at other law schools.”

This spring Stone said Coastal Law will launch the Center for Law Practice Technology, a unit within the school focused on preparing students for a legal marketplace that demands knowledge and skills related to technology and innovation. He said feedback on the CLPT has been overwhelmingly positive from the legal community in Jacksonville and beyond. (See more on the CLPT on the opposite page.)

“We also just launched the country’s first LL.M. in Transportation and Logistics,” he said. “That’s in addition to our LL.M. for foreign lawyers that has proven to be very popular since its launch a few years ago.

Stoned added Coastal Law will continue to add dual degree programs to its portfolio of offerings that also currently includes a JD/Masters of Business and a JD/Masters of Public Policy.

Don’t _tell me_; _show me_

Dean Ogene shares President Stone’s interest in curriculum innovation, but adds that an enhanced emphasis on graduating attorneys with demonstrable skills will also be critical if Coastal Law hopes to deliver on its promise for modern-day legal education.

“If you look where higher education and professional development are headed,” said Ogene, “you’ll see we’re beginning to shift away from traditional measures of excellence, which were defined on_inputs_—how many credit hours in what subjects—to better measures, which are predicated upon outputs—what competencies do you have?”

Ogene said, “While many law schools will likely remain committed to the more traditional model of legal education, administrators and faculty Coastal Law anticipate ever fortifying their focus on skills development in the years ahead.

“What it means to be professionally prepared for the legal profession is changing dramatically as a result of pressures clients are bringing to bear on law firms and other purveyors of legal services. We have to prepare our students to compete in that environment.

“Don’t tell me you took a class in securities regulation; show me you can draft an offering statement for an IPO. Don’t tell me that you took a class in family law; show me that you can prosecute, from start to finish, a no-contest or even a contested divorce.”

Revamped externship program

In order to increase opportunities for students, both President Stone and Dean Ogene have focused attention on the school’s internship and externship programs.

“In the past few months we have revamped the way we manage the development of externships,” said Stone, “how we place students in them, and how we manage the placements over time to ensure they are win-win situations—great learning experiences for the students and productive opportunities for the agencies or law firms employing them.”

“Internships and externships are absolutely critical,” adds Ogene. “Medical students can’t graduate as doctors without dealing with real patients. There is no substitute for training in a live environment. Our internship and externship programs, which we are in the process of expanding, provide that real-life experience.”

Will these innovations differentiate Coastal Law? Stone and Ogene are confident they will.

“If we execute them as well as I know that we can,” Ogene said. “If we construct all of our systems in that outcome-centered way—the curriculum, the pedagogy, the supporting systems, the competency measures, all of that—there is no question that our graduates will be much better positioned to enter the job market than their peers at other law schools.”

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New center prepares students for tomorrow’s law jobs

Coastal Law has created the Center for Law Practice Technology (CLPT), a focused unit within the school that will offer certificates in legal technology and law practice management. The CLPT is designed to prepare students for a new and evolving legal marketplace that increasingly demands knowledge and skills related to technology and innovation.

Richard Granat and Stephanie Kimbro, acknowledged leaders in the online legal technology movement, have been appointed as Co-Directors of the CLPT. They will also serve as affiliate professors at Coastal Law.

“At its core, the certificate offered through the center will ensure students graduate with the technological competence all lawyers need in light of the demands of the profession, namely how to leverage technology to serve clients more effectively and efficiently,” Granat said. “However, we also understand it is perhaps even more important to prepare students for new positions in the burgeoning market of companies offering technology solutions for legal services, including electronic discovery, legal process outsourcing, law practice management software, and more.”

For those interested in pursuing more traditional career paths, Coastal Law Vice President of Strategy and General Counsel Terri Davlantes said students earning certificates through the CLPT will know how to create a virtual law firm that provides 24/7 access for clients, how to automate frequently used legal documents, how to leverage social media to develop a law practice brand, and the legal ethics surrounding the delivery of online legal services.

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New scholarship connects alums and prospects

Pictured left, Wendy Belanger. Pictured right, Chuck Malloy.

Pictured left, Wendy Belanger. Pictured right, Chuck Malloy.

Earlier this year, the Coastal Law Offices of Admissions and Alumni Relations collaborated to create The Alumni Admissions Referral Scholarship – a one-time $2,000 award that both rewards prospective students and allows alumni to help shape the incoming class.

The scholarship program officially began in fall 2013 with 39 students, including part-time first-year student Wendy Belanger. Belanger currently works for the Naval Station Mayport who said and first heard about Coastal Law from colleague Chuck Malloy, a 2013 Coastal Law alum.

“[Attending law school] is something that was always a pipe dream that other people did,” said Belanger, who was enlisted in the Navy for six years before attending the University of Florida. “But when I saw that Chuck had done it, I figured I really had no excuse. I could see that it was doable.”

Belanger said Malloy’s assistance, support, and expertise have been invaluable. Both Belanger and Malloy emphasize the benefit of having someone who understands both the legal terminology as well as the stress many students bear during law school.

“He will wander by my office and I’ll say ‘Oh, wait a minute, this thing in contracts …’ and he’ll stop and talk through it with me or I’ll come chase him down and say ‘I have no idea what I just read …’,” she said. “People at work see us together and they just kind of roll their eyes and keep going because no one else can understand what we’re saying.”

Malloy recommended Coastal Law to Belanger after discovering her long-standing interest in the law. He passed along old Barbri books and discussed early doctrinal course work where he noticed how quickly she took to the material.

“When I started law school, somebody was there to help me when I needed it,” said Malloy, who now serves as the Boatswain’s mate (BMC) for the Naval Station Mayport. “To me, it just kind of feels like I’m paying back a debt.”

If you are interested in nominating a student for the Alumni Admissions Referral Scholarship complete a nomination form at http://alumni.fcsl.edu/

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Yellow Ribbon Program Helps Air Force Veteran Pursue Degree

Garrison, at the Berlin Airlift Monument at Frankfurt International Airport, during her first re-enlistment.

Garrison, at the Berlin Airlift Monument at Frankfurt International Airport, during her first re-enlistment.

Bobbie Garrison, a third-year student in Coastal Law’s Family Law Certificate Program, knows a lot about stress. She sees it in the faces of her fellow students as they prepare for classes and exams, but when those same students ask her why she’s unfazed by the pressure, her answer is simple: “Because I don’t have a gun pointed at me.”

A retired U.S. Air Force master sergeant who has been deployed in the likes of Afghanistan and Saudi Arabia, Garrison has certainly weathered more stressful situations.

“I don’t think I’ve ever been so scared,” Garrison says about her six-month deployment in Kabul. But as the only military paralegal in an office with 14 attorneys from every branch of the U.S. services, plus a representative of the Canadian armed forces and three civilians, she said she was too busy to focus on the danger. Instead, she says the deployment was “a good experience for me. I learned a lot, and I was glad to be able to be part of something I believed in,” helping to establish legal systems for Afghanistan’s government and military.

Now Garrison is applying herself toward something else she believes in: Family Law and the pursuit of justice for the victims of abuse. Making that possible is Coastal Law’sYellow Ribbon Program. When Garrison entered the Program in August 2011, the school provided a $3,000 discount on tuition to qualified veterans and the Department of Veterans Affairs matched that amount from the veteran’s GI Bill Benefits.

Thanks in part to Garrison, Coastal Law’s Yellow Ribbon Program benefit has now been increased. She petitioned the school to change the benefit to one-half of the cost of tuition and the petition was accepted. Now, when matched by the VA, the school’s Yellow Ribbon Program can ensure that veterans, or their transferees, will be able to attend the school tuition-free.

Garrison recommends Coastal Law for interested veterans and thinks that individuals with military experience have the tools to make good students.

“Veterans have supervised others, they’ve demonstrated leadership, and they’ve made critical decisions,” she says. “Even if they don’t have paralegal experience, the military is good preparation for law school.”

Graduating in December 2013 has participated in an internship at the Pentagon, where she worked in the office the General Counsel of the Secretary of Defense, and is currently working in an externship with the U.S. Attorney’s office in Jacksonville.

After graduation, she hopes to work for the U.S. Department of Justice or for the Florida Department of Children and Families. While she would prefer to stay in Florida, she says she would be willing to move to Washington, DC for the right position: her first as a civilian after more than 23 years of service.

“The military is very structured,” she say, “and I was often recalled to work in the middle of the night when emergencies occurred. Now, in a civilian setting, that doesn’t happen.”

“On the other hand,” she adds, “I do have to beef up my wardrobe.”

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The Crossroads: Roadside Memorials, Free Speech & The Establishment Clause

By Amanda Reid*
Assistant Professor of Law

“It seems good to mark and to remember for a little while the place where a man died.”[1]

To “make sense of senseless deaths” along the public roadways, private roadside memorials are part of a growing trend among the bereaved.[2] These memorials often feature a Latin cross and are part of deeply meaningful bereavement practices, which support the grieving process. They are created to fulfill a human need during a time of crisis and are, therefore, largely constructed without regard to the legality of erecting such markers.[3] Courts have yet to provide clear guidance on the constitutionality of erecting and maintaining these private memorials on public spaces.

Roadside memorials are intensely personal, idiosyncratic expressions motivated by a seemingly senseless death.[4] Senseless deaths along the roadways are surprising and shocking because modern technological advances lull us into thinking we have some measure of control over death.[5] Roadside memorials are most often created by friends and family members of teenagers who die in car crashes.[6] Scholars confirm that public opinions about roadside memorials are mixed: “Some claim never to see them, some are angered by them, some place them by the side of the road and never go back, others tend them regularly.”[7] Public officials are often concerned about the visual distraction and traffic hazard these memorials can create.[8]

Two instances, one from Massachusetts and the other from Australia, illustrate some of the tension between the needs of the bereaved and the interests of the public. In Shutesbury, Massachusetts, a 17-year-old died in a one-car accident, and the teen’s father constructed a roadside cross to commemorate his “last alive” place.[9] Two homeowners who live near the accident site want the cross removed. The cross has commemorated the site at the end of one of the homeowner’s driveway for over six years. The homeowners say it serves as a constant, painful reminder of the night they and other neighbors went to aid the dying teen.[10]

6259046323_3d3eac9443_oIn Ormeau, Australia, a 19-year-old was struck and killed by a vehicle as he walked home. His memorial was thrice vandalized when the teen’s laminated photograph was taken down and the flowers were removed. A note was left on the memorial site explaining the removal: “The community of Ormeau ha[s] endured this memorial site for one year and two months and we feel that is, by far, long enough.”[11] The note also admonished the teen’s parents that the roadside was not a gravesite and that the family should be thoughtful of the community. In response, the teen’s parents claimed the right to grieve for as long as necessary: “We never put the cross there to offend anyone. This has absolutely gutted our family. It’s not always going to be there, but it should be up to us to take it down when we’re ready.”[12]

Understanding the phenomenon is an important first step in analyzing the Free Speech and Establishment Clause issues that are raised by the presence of these private memorials on public spaces. The Supreme Court has emphasized that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”[13]

Private religious speech in a designated or traditional public forum is generally free from Establishment Clause concerns.[14] However, private religious speech may lose its “purely private” nature by its placement in a public space.[15] The public roadways have not been treated as traditional public fora where individuals may express themselves without government restraint or limitation. And by not removing the private religious displays, it is unclear if a government risks appearing to tacitly adopt the religious message.[16] The Supreme Court in Pleasant Grove City, Utah v. Summum reflected this position when it explained, “It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated.”[17] Therefore, according to the Court, “because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf.”[18]

Monuments and symbols are subject to more than one interpretation. And these monuments and symbols can communicate a message on behalf of more than one speaker. The roadside crosses undoubtedly speak on behalf of the private individuals who were motivated to erect them. But, by allowing the roadside crosses to remain on public property, the government may also passively adopt the message of the memorial cross.

The proliferation of roadside memorials poses a problem for public officials, who are in an ongoing quandary concerning how to balance traffic safety and the aesthetic interests of the community with the grieving process of the bereaved.[19] Balancing the interests of road safety and maintenance, visual blight, and Establishment Clause concerns with the needs of the grieving is “a public relations minefield.”[20] Roadside memorials have been a source of controversy and debate in both the United States[21] and in other countries around the world.[22]

Roadside memorials serve as a powerful signifier of death and space. While these symbols do not lend themselves to a single message or meaning, they undoubtedly serve an important expressive function for the loved ones of the deceased. [23] The memorial speaks as much for the memorial maker as it does the loved one who is memorialized by reflecting the maker’s image of the loved one. [24]

For memorial makers the place of the memorial is inextricably intertwined with the message of the memorial that moving the memorial to another place would not be an ample and adequate alternative.[25] A cemetery or other memorial site is not an adequate substitute for a roadside memorial because the “last alive” place is deeply important to memorial makers. The site is of supreme importance because it is sanctified by the spilled blood of the loved one.[26] These roadside memorials leave visible and poignant reminders of death on public space.[27] Justice John Paul Stevens has acknowledged that sometimes “the location of the sign is a significant component of the message it conveys.”[28] By removing these memorials from the site of death, the message of the memorial is altered. Thus, the location of the speech is part of the expressive message.

But the expressive right to memorialize a loved one is not unbounded. The Supreme Court has noted that “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”[29] And while roadside memorials can be deeply meaningful and healing for the mourners, some observers object to the sanctification of public roadsides.

Those who voice criticism suggest that the roadside memorials are “disingenuous” or “personal propaganda,” the makers are “faking it for attention,” or the memorial is a “pious form of littering.”[30] Memorials on public spaces are situated to draw in strangers to share in the grieving process.[31] Some memorials are clearly visible and are intended to be seen, while others are more personal and private. [32] Participating in a stranger’s roadside memorial can promote a sense of group solidarity, “a symbolic coming together of the community in mourning.”[33] Yet, sometimes strangers do not welcome being drawn into the grieving process because it brings unwanted reminders of death. [34] For some, memorials are an unwelcome testament to the fragile and fleeting nature of life.

These memorials serve as powerful reminders of the inherent dangers of driving. And viewers receive unsolicited reminded of these dangers while driving down the same roadway where someone else died.[35] According to Doug Tindall, a maintenance engineer for the Oregon Department of Transportation (DOT), his department “regularly receives calls regarding roadside memorials. Most callers want displays removed because they don’t want continual reminders of someone’s death in a traffic accident.”[36] Memorial-making can be productive and healing for the maker, but the memorial can also bring unwanted, “vicarious trauma” to other drivers who are forced to experience it.[37]

In addition to viewing a memorial as an unwanted reminder of tragic loss, some individuals see a memorial as a “macabre eyesore.”[38] Journalist Stephanie Warsmith observed, “The teddy bears turn soggy and gray. Flowers wilt. Handwritten tributes become illegible. Rather than serving as a tribute to someone who died, they become an eyesore.”[39]

More than just an issue of aesthetics, roadside memorials raise concerns about road maintenance and road safety. These memorials can interfere with road maintenance and mowing operations.[40] Mementos left at roadside memorials can become hazardous projectiles when tall grass is mowed.[41] Roadside memorials can also pose a safety hazard to other drivers.[42] Professors of Sociology George Dickinson and Heath Hoffmann, who surveyed state DOT officials, found that 70% of officials said roadside memorials were considered a safety hazard in their state.[43] An Arizona DOT spokesperson reported that of the 4,000 rear-end collisions that occurred in a year, “a troubling number involved drivers who stopped to view roadside memorials.”[44] In Wyoming, the DOT considers roadside memorials dangerous and cited an accident where the death of a child was attributed to a driver who was distracted by a memorial for two young pedestrians killed earlier at the same site.[45] And in Texas, a young woman was struck and killed by a car while she was visiting the roadside memorial of her cousin following the cousin’s funeral.[46]

In light of experiences like these, some state officials have concerns about the safety hazards posed by roadside memorials.[47] However, the traffic safety researchers who have examined the hazards posed by these memorials have found them to be generally safety-neutral. Two studies report no statistically significant effect from roadside memorials.[48] And one study found that, while drivers were less likely to run through red lights at intersections with roadside memorials,[49] the researcher, Professor Richard Tay, warned that such memorials could raise “other safety concerns, including potential hazards to pedestrians, cyclists and maintenance workers.”[50] Professor Tay also cautioned that leaving roadside memorials completely unregulated could raise safety concerns because “[w]ithout some forms of restrictions in place, some memorials erected may become a potential hazard due to their size and materials used.”[51]

State and local governments across the country have adopted a patchwork of policies and regulations for roadside memorials.[52] Policymakers struggle to balance the needs of the bereaved and the needs of the community. Many governments are considering appropriate limits on roadside displays as a way to balance these needs.[53] Nearly half of the states have adopted some policy regarding the placement of roadside memorials.[54] Policies vary widely with some states expressly permitting private markers,[55] some allowing only state-sponsored markers,[56] some having no express policy, [57] and some expressly prohibiting all private roadside markers—albeit with lax enforcement. Roadside memorials are prohibited as an obstruction or encroachment of a highway in states like Indiana,[58] Iowa,[59] Montana,[60] and North Dakota.[61] But these laws are often not enforced.[62] In states where erecting a roadside memorial is prohibited, public officials often turn a blind eye to memorials out of respect.[63]

Scholars have found a common theme of deference among DOT officials, who try to balance safety concerns while simultaneously respecting a family’s need to grieve for the loved one.[64] State officials are generally sensitive to the grief of the loved ones and grant a certain “grace” to these memorials, notwithstanding any official policy. [65] In states where roadside memorials are illegal, authorities often leave the memorials in place unless a complaint is lodged. These local agencies take the unofficial stance of acknowledging the need for individuals to grieve and leave most memorials undisturbed.[66]

If policymakers either ignore or expressly permit roadside crosses, it remains unresolved whether governments open themselves up to an Establishment Clause challenge by tacitly or expressly permitting crosses to remain on public lands. The Establishment Clause has often been employed as the basis to challenge the display of religious symbols on public property. For some in the community, the endorsement of religion through displays of religious symbols on public lands undermines respect for diversity of faith traditions and moral philosophies, whereas others view the invalidation of public displays of religious symbols as evidence of hostility toward religion. This is a hotly contested area of the law, and the Supreme Court’s jurisprudence on the constitutionality of religious symbols on public property continues to evolve.[67]

In this evolving jurisprudence, the Court has held that sometimes a government may erect a crèche, or nativity scene,[68] on public property, but sometimes it may not.[69] Sometimes a city may display the Ten Commandments on public property, but sometimes it may not.[70] And sometimes religious displays on public property are government speech, which is immune from Free Speech challenges, but sometimes it is private speech on public property.[71] Current justices have noted the lack of clarity in the current Establishment Clause jurisprudence.[72]

Governments must be careful not to appear to endorse religion by adopting the message of the memorial cross on public land. As Justice David Souter observed, “[W]henever a government maintains a monument [that] has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flatout establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.”[73] To assess Establishment Clause concerns created by roadside crosses on public roadways, it is important to identify both the speaker and the message.

Yet is may be unclear who the speaker is, or what the message is, when a roadside cross is displayed on public property. In Pleasant Grove City, Utah v. Summum, the Court recognized that “it frequently is not possible to identify a single ‘message’ that is conveyed by an object or structure” displayed on public property. [74] While the Court concluded that a permanent monument displayed in a public park is “best viewed as a form of government speech,”[75] the donee government and memorial donor may not share a singular, unified message. The Court acknowledged “the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.”[76] Thus, the message of the original creator of the display may differ from the message of the entity that expressly or tacitly accepts the display.[77]

In addition to the uncertainty about the speaker, there is uncertainty about the message communicated by roadside crosses on public property. The Supreme Court’s Establishment Clause jurisprudence contemplates that a display can have multiple meanings and messages. Justice Stephen Breyer, concurring in Van Orden v. Perry, concluded the “religious aspect” of the Decalogue display did not predominate.[78] And the Court in McCreary County v. ACLU of Kentucky concluded, after examining the iterations of the Decalogue displays, that the displays failed the secular purpose prong of the Lemon test because the dominant religious nature of the displays was unmistakable.[79] The notion that a religious aspect or a religious nature can predominate implies there are other aspects or messages that do not predominate, yet still exist. This suggests a multiplicity of meanings or messages can exist within a display. This multiplicity of meaning was also reflected in Summum: “[T]he monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways.”[80] The Summum Court also suggested a certain indefiniteness of meaning because the message of a display may not be static: “The message that a government entity conveys by allowing a monument to remain on its property may also be altered by the subsequent addition of other monuments in the same vicinity.”[81]

Roadside memorials are indeed multivocal; they can simultaneously communicate more than one message, on behalf of more than one speaker. Individually, the roadside memorial communicates a multilayered message of remembrance of the deceased and warning to other drivers.[82] Collectively, the phenomenon communicates a critique against modernity—modern transportation, modern culture, modern death practices, and modern religion.[83] Identifying a single, predominant message can sometimes be difficult, and such messages may change over time. A single, festooned memorial placed by a roadway sends a different message than a mass of memorials along a stretch of highway.

Memorial makers are avoiding readily available alternative avenues for ventilating their expression. For some bereaved, these roadside memorials meet a human need that interment in a cemetery cannot.[84] By avoiding or supplementing the cemetery memorial, these bereaved are communicating that the cemetery is an inadequate avenue for their expression. The growing popularity of this mode of expression raises traffic safety, aesthetics, and religious neutrality concerns. The roadside memorial phenomenon thus lies at the crossroads of cultural, social, religious, and legal forces.[85]

 

* Assistant Professor, Florida Coastal School of Law. Ph.D., University of Florida, College of Journalism and Communications, 2004; J.D., University of Florida, Levin College of Law, 2004; M.A., Florida State University, Speech Communication, 1999; B.A., Florida State University, Communication and Philosophy, 1998.

[1] John Steinbeck, The Log From the Sea of Cortez 70 (1941).

[2] Robert M. Bednar, Denying Denial: Trauma, Memory, and Automobility at Roadside Car Crash Shrines, in Rhetoric, Remembrance and Visual Form 128, 129, 134 (Anne Teresa Demo & Bradford Vivian eds., 2012); Charles O. Collins & Charles D. Rhine, Roadside Memorials, 47 Omega 221, 221 (2003).

[3] Holly Everett, Roadside Crosses and Memorial Complexes in Texas, 111 Folklore 91, 96 (2000); Jon K. Reid & Cynthia L. Reid, A Cross Marks the Spot: A Study of Roadside Death Memorials in Texas and Oklahoma, 25 Death Stud. 341, 349, 352 (2001).

[4] Jennifer Clark & Majella Franzmann, Authority from Grief, Presence and Place in the Making of Roadside Memorials, 30 Death Stud. 579, 584 (2006); C. Allen Haney et al., Spontaneous Memorialization: Violent Death and Emerging Mourning Ritual, 35 Omega 159, 162 (1997).

[5] Haney et al., supra note 4, at 161.

[6] Collins & Rhine, supra note 2, at 226 (“Among the 18 deaths documented in the survey, the average victim was 17, with a range from 7 months to 34 years.”); Reid & Reid, supra note 3, at 347 (“The modal age was 17, with 11 [of 78] of the deceased being of this age. The next closest age in frequency was 19, with 4 decedents.”).

[7] Reid & Reid, supra note 3, at 341.

[8] See, e.g., Arizona Removing Roadside Memorials: Families Upset Over State Policy; Officials Point to Safety Concerns, The Arizona Republic, Oct. 6, 2007, at A1, available at 2007 WLNR 27636278 (“The roadside memorials, [the Arizona Department of Transportation] says, are too much of a safety hazard and can be too distracting for motorists.”).

[9] Nick Grabbe, Leverett Neighborhood Wrestles with Weight of Cross, Amherst Bull. (June 27, 2008), http://www.amherstbulletin.com/story/id/98909/, cited in George E. Dickinson & Heath C. Hoffmann, Roadside Memorial Policies in the United States, 15 Mortality 154, 163–64 (2010).

[10] Grabbe, supra note 9; cf. Residents Condemn Roadside Gravestone, Plymouth Evening Herald, Aug. 30, 2008, at 5, available at 2008 WLNR 16446088 (“Since the appearance of the inscribed headstone we [government officials] have received many complaints from local residents who find it very distressing to be reminded of this young man’s tragic death when they pass every day.”).

[11] Selina Steele, Hard Road – Vandals Target Memorials, Sunday Mail (Queensland, Australia), Feb. 11, 2001, at 7, cited in Clark & Franzmann, supra note 4, at 587; see also Vandals Target Roadside Memorial, The Mississauga News, Oct. 4, 2012, at 1, available at 2012 WLNR 21153366 (“A Mississauga man [in Canada] is heartbroken that items are continually being removed from his son’s roadside memorial in Georgetown.”).

[12] Steele, supra note 11, cited in Clark & Franzmann, supra note 4, at 587.

[13] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (emphasis in original) (quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990)).

[14] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 767, 770 (1995) (plurality opinion) (“By its terms [the Establishment] Clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech connected to the State only through its occurrence in a public forum.”).

[15] See Claudia E. Haupt, Mixed Public-Private Speech and the Establishment Clause, 85 TUL. L. REV. 571, 588 (2011).

[16] See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009); see also Capitol Square, 515 U.S. at 800 (Stevens, J., dissenting) (“[S]igns and symbols are generally understood to express the [property] owner’s views.”).

[17] Summum, 555 U.S. at 471.

[18] Id. at 471. A government that speaks through a religious display is making a dangerous gamble. Chief Justice John Roberts’ first question at Summum oral argument reflected this danger:

[Y]ou’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech to get out of the . . . Free Speech Clause, the more it seems to me you’re walking

into a trap under the Establishment Clause. If it’s Government speech, [declining to display Summum’s

“Seven Aphorisms” stone monument in a public park] may not present a free speech problem, but what

is the Government doing speaking – supporting the Ten Commandments?

Transcript of Oral Argument at 4, Summum, 555 U.S. 460 (2009) (No. 07-665). This tension has not escaped scholarly attention. See, e.g., Lisa Shaw Roy, Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause, 104 Nw. U. L. Rev. Colloquy 280 (2010).

[19] Collins & Rhine, supra note 2, at 222.

[20] Id. at 226. “[E]nforcement efforts become a public relations disaster, especially if memorial builders choose to take their plight to the public via the media.” Id. at 241.

[21] See, e.g., Dickinson & Hoffmann, supra note 9, at 156 (“[T]he placement of crosses on public property has been controversial in a number of American states.”); Robert Tiernan et al., Should Roadside Memorials Be Banned?, Room for Debate, The Opinion Pages, N.Y. Times (July 12, 2009, 7:00 PM), http://roomfordebate.blogs.nytimes.com/2009/07/12/should-roadside-memorials-be-banned/.

[22] Jennifer Clark, Challenging Motoring Functionalism: Roadside Memorials, Heritage & History in Australia & New Zealand, 29 J. Transport Hist. 23, 38 (2008).

[23] See Janet L. Dolgin, Symbolic Anthropology: A Reader in the Study of Symbols and Meanings 185 (Janet L. Dolgin et al. eds., 1977).

[24] Deborah L. Wagner, Death, Memory, and Space: A Rural Community Response to Roadside Memorials 84-85 (August 2008) (unpublished M.A. thesis, University of Texas at San Antonio) (on file with author).

[25] The Supreme Court has struck down regulations that afford satisfactory alternative channels. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (ample alternative channels not available); Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (alternatives unsatisfactory).

[26] See Kenneth E. Foote, Shadowed Ground: America’s Landscapes of Violence and Tragedy 8 (Univ. of Tex. Press rev. ed. 2003) (“Sanctification involves the creation of what geographers term a ‘sacred’ place—a site set apart from its surroundings and dedicated to the memory of an event, person, or group.”); Collins & Rhine, supra note 2, at 239.

[27] Gibson, supra note 33, at 152.

[28] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 800 (1995) (plurality opinion) (Stevens, J., dissenting).

[29] Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

[30] Rebecca M. Kennerly, Getting Messy: In the Field and at the Crossroads with Roadside Shrines, 22 Text & Performance Q. 229, 245 (2002).

[31] Clark, supra note 22, at 38 (“[T]he public nature of these memorials allows a wider range of people to participate in the grieving process.”).

[32] Margaret Gibson, Death and Grief in the Landscape: Private Memorials in Public Space, 17 Cultural Stud. Rev. 146, 156-57 (2011).

[33] George Monger, Modern Wayside Shrines, 108 Folklore 113, 114 (1997).

[34] Reid & Reid, supra note 3, at 353 (“Some prefer that others’ mourning behavior not intrude on them as they travel the roadway.”).

[35] Bednar, supra note 2, at 133; id. at 140 (noting “their location on the roadside presupposes that people in automobiles will see them in roadspace . . .”); Clark & Franzmann, supra note 4, at 587 (“The non-grieving can see memorials as an intrusion upon their space.”).

[36] Karen Schmidt, Roadside Memorials Spark Religious Freedom Dispute, CHRISTIANITY TODAY, Apr. 3, 2000, at 20.

[37] Bednar, supra note 2, at 134 (“As individual shrine builders heal through repeating their encounter with the affective memory embodied in the shrine site, they bring the trauma to the rest of us, giving us an intrusive traumatic memory for us to work through in a different way.”).

[38] Dickinson & Hoffmann, supra note 9, at 156 (citations omitted).

[39] Stephanie Warsmith, Tattered Memorials To Dead Taking Toll In Neighborhoods, Akron Beacon J., Oct. 9, 2011, at A1, available at 2011 WLNR 20751801.

[40] Holly J. Everett, Crossroads: Roadside Accident Memorials in and Around Austin, Texas 57 (June 30, 1998) (unpublished M.A. thesis, Memorial University of Newfoundland)(“The [roadside memorial] assemblages have become so numerous as to render routine roadway maintenance difficult.”).

[41] Collins & Rhine, supra note 2, at 236 (“Plainly, any structure placed on the margins of a road hinder or complicate its maintenance. This is especially true of mowing operations along highways. Wood or metal crosses, stones, bits of decorative fencing, even votive candles and teddy bears interfere with normal procedures. Likewise, on private lands, especially in fields, memorials obstruct normal crop cultivation and harvesting.”).

[42] See, e.g., Friends Upset WSDOT Removed Roadside Memorial (KING 5 News Broadcast Apr. 2, 2012, available at http://www.king5.com/news/local/Friends-upset-WSDOT-removed-roadside-memorial-145784275.html) (“WSDOT said it was becoming a hazard because other drivers were slowing down to look at it [the memorial cross] along Interstate 405.”).

[43] Dickinson & Hoffman, supra note 9, at 161.

[44] Collins & Rhine, supra note 2, at 238.

[45] Chris Ross, Roadside Memorials: Public Policy vs. Private Expression, Am. City & County, May 1998, at 50, 52. Cf. Daniella Miletic, Roadside Tributes Blamed for Fatal Crash, The Age (Australia), July 11, 2009, at 3, available at 2009 WLNR 27592896 (“Police believe the two-week-old shrine made for the teenagers killed at the intersection . . . distracted 21-year-old Melissa I’Anson, who died when her car was hit by a B-double truck . . . [as she] slowed down to look at the messages as she turned right at the intersection.”).

[46] Reid & Reid, supra note 3, at 352–53; see also Everett, supra note 42 (thesis at 57) (“Additionally, TxDOT [Texas Department of Transportation] officials fear they are dangerously distracting to drivers.”).

[47] See Anthony Edward Churchill, Roadside Memorials and Traffic Safety 43 (August 2007) (unpublished M.S. thesis, University of Calgary) (on file with author) (“Municipalities’ chief concerns are distraction [of drivers] and the perception that roadside memorials are safety hazards.”).

[48] Richard Tay et al., Effects of Roadside Memorials on Traffic Flow, 43 Accident Analysis & Prevention 483, 484-86 (2011) (finding roadside memorials did not have any significant effect on speeding and following too closely, however, no positive effects on safety were found either); Churchill, supra note 49 (thesis at 92) (“The effects of memorials on traffic behaviour [sic] in both the study of short and long term effects have been shown to be statistically insignificant.”). Moreover, personal roadside memorials are unlikely to provide an effective cautionary or salutary effect on drivers: “The finding that roadside memorials do not affect driver speed or following distance suggests that use of conventional roadside memorials as a safety countermeasure for speed or following distance issues is unlikely to be effective.” Id. at 93.

[49] Richard Tay, Drivers’ Perceptions and Reactions to Roadside Memorials, 41 Accident Analysis & Prevention 663, 669 (2009) (“The number of red light violations in a 6-week period at selected intersections after the installation of the roadside memorials was found to be significantly lower (16.7%) than the violation rates in the 6-week period before the installation of the roadside memorials.”).

[50] Id.

[51] Id.

[52] Michael Risinit, Displays Help With Grief; Some Call Them Depressing, Unsafe, The (Westchester, NY) Journal News, June 2, 2004, A1, available at 2004 WLNR 23055889 (noting “regulations nationwide are a hodgepodge of do’s and don’ts”).

[53] Hannah Dreier, East Contra Costa Agency to Crack Down on Roadside Memorials, Contra Costa Times, Apr. 15, 2011, available at 2011 WLNR 7458502 (“Nationwide, states and cities are grappling with roadside memorials as they become more common. Though some local agencies have placed restrictions on memorials, it’s unusual to ban them outright.”). See also Cara Hogan, Hampstead Proposes Roadside Memorial Ordinance, Eagle-Tribune, Dec. 27, 2010, available at 2010 WLNR 25455635; Jo Ann Hustis, Lasting Memories, Morris Daily Herald, Aug. 25, 2011, available at 2011 WLNR 16829809; Neil Johnson, Roadside Memorial for Man Sparks Controversy, Janesville Gazette, Jan. 16, 2012, available at 2012 WLNR 1024690;

Memorials Create Dilemma for Cities, Sun Sentinel, Feb. 25, 2012, at 1A, available

at 2012 WLNR 4080769; Warsmith, supra note 41, at A1; Sam Wheeler, Signs of Remembrance, Ashland Daily Tidings, Aug. 21, 2011, available at 2011 WLNR 17417056.

[54] Dickinson & Hoffmann, supra note 9, at 158 (identifying that 23 states, or 46%, have adopted a policy).

[55] See, e.g., Alaska Stat. § 19.25.260 (2010); Dep’t of Transp. & Pub. Facilities, State of Alaska, A Primer for Roadside Memorials (n.d.), available at http://www.dot.alaska.gov/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf.

[56] See, e.g., Fla. Dep’t of transp., Welcome to the Highway Safety Memorial Marker Program, available at http://www.dot.state.fl.us/statemaintenanceoffice/memorial%20markers.shtm

[57] States, such as Pennsylvania, Ohio, New York, Rhode Island, and Nebraska do not have an official policy for roadside memorials but will remove any marker that poses a safety hazard. JoAnne Klimovich Harrop, Roadside Shrines Help Loved Ones Deal With Tragedy, Pittsburgh Tribune Review, July 4, 2010, available at 2010 WLNR 13421675 (“While there is no law against erecting roadside memorials, PennDOT District 11 spokesman Jim Struzzi says there is kind of an unwritten procedure. ‘PennDOT is certainly sympathetic to the needs of the family and friends when it comes to roadside memorials,’ he says. ‘We would prefer not to see them, but conversely, we appreciate what they mean to people. We would say, if they want to erect them, that they keep in mind where they are erecting the roadside memorial so as not to be distracting to drivers.’”); Perry Brothers, Crosses Relay Messages, Cincinnati Enquirer, June 8, 1999, at A1, available at 1999 WLNR 8445925; Warsmith, supra note 41, at A1 (“The Ohio Department of Transportation doesn’t permit memorials, but allows them to remain as long as they don’t pose a hazard or draw away drivers’ attention. When the state does maintenance work, such as mowing, memorials in the way are removed, said Justin Chesnic, a spokesman for the department’s District 4.”).

[58] Ind. Code Ann. § 9-21-4-6 (West 2012).

[59] Iowa Code Ann. § 318.3(7) (West 2012).

[60] Mont. Code Ann. § 60-6-101 (2011) (prohibiting encroachments on the right of way for state highways); Mont. Dep’t of Transp., Mont. Right of Way Operations Manual ch. 7 (2007) (defining encroachments), available at http://www.mdt.mt.gov/other/rw/external/manual/chapter_7.pdf.

[61] N.D. Cent. Code § 24-03-23 (2002).

[62] Robert Medley, Heaven Begins at Roadside Crosses, Oklahoman, April 29, 2012, at 21A, available at 2012 WLNR 9136664; Seth Seymour, Roadside Memorials Against Law; However, State Is Sympathetic, Virginian-Pilot & Ledger Star, July 12, 2005, at 8, available at 2005 WLNR 12830393.

[63] Dreier, supra note 55 (“Roadside memorials technically violate the law because they are on public property, but they are often untouched because of their sensitive nature.”); Memorials Create Dilemma for Cities, supra note 55, at 1A (“Cities across Florida have rules for regulating the erection or duration of roadside memorial markers. But some don’t follow them, to avoid the delicate and emotional issue of taking down a marker in memory of somebody who was killed.”).

[64] Dickinson & Hoffmann, supra note 9, at 161; Kennerly, supra note 30, at 244 (“Despite federal and state laws, local government agencies responsible for safety and maintenance of public roads often indicate a reluctance to remove roadside shrines.”). Accord Craig Schneider, DOT: Makeshift Tributes Must Go, Atlanta Journal-Constitution, Feb. 10, 2011, at A1, available at 2011 WLNR 2626628 (“They are already prohibited under state law, and many are removed as workers cut the grass and pick up litter along the roadways. But workers often leave the memorials for a time in deference to family and friends.”).

[65] Kennerly, supra note 30, at 251. This “grace” is also reflected in the policy statement from various state agencies. For example, Arizona’s Historic Preservation Specialists acknowledge that while “Roadside Memorials are not considered historic properties,” Arizona DOT treats these memorials “with respect for the families that install and maintain the memorials.” Envtl. Planning Group., Ariz. Dep’t of Transp., Historic Preservation Handbook 69–70 (2008), available at www.azdot.gov/highways/EPG/EPG_Common/Docs/Technical/Cultural_HPT_Handbook.doc. And Alaska’s “Primer for Roadside Memorials” starts with the caption “We respect your feelings.” Dep’t of Transp. & Pub. Facilities, State of Alaska, A Primer for Roadside Memorials (n.d.), available at http://www.dot.state.ak.us/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf. Dickinson & Hoffmann, supra note 9, at 161; Collins & Rhine, supra note 2, at 237.

[66] Kennerly, supra note 30, at 244.

[67] This evolution has not escaped criticism. See, e.g., Douglas G. Smith, The Constitutionality of Religious Symbolism After McCreary and Van Orden, 12 Tex. Rev. L. & Pol. 93, 94 (2007) (characterizing the Court’s efforts in McCreary and Van Orden as “[doing] little to clarify the law” and “leaving lower courts to sort out the principles that resulted in such disparate results regarding substantially similar displays”).

[68] A crèche is “a visual representation of the scene in the manger in Bethlehem shortly after the birth of Jesus, as described in the Gospels of Luke and Matthew.” Cnty. of Allegheny v. ACLU, 492 U.S. 573, 580 n.4 (1989).

[69] Compare Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding display of a crèche in the city’s shopping district), with Cnty. of Allegheny, 492 U.S. 573 (striking down display of a crèche on the grand staircase of the county courthouse).

[70] Compare Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion) (holding the Establishment Clause was not violated by a long-standing public display of the Ten Commandments on the grounds of a state capitol), with McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) (holding the Establishment Clause was violated by the display of the Ten Commandments in two Kentucky courthouses).

[71] Compare Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (rejecting Summum’s Free Speech challenge on the grounds the city accepted and displayed a Ten Commandments monument, yet denied the Seven Aphorisms monument), with Salazar v. Buono, 559 U.S. 700, 718-19 (2010) (plurality) (noting in dicta that the government need not eradicate all religious symbols in the public realm to avoid governmental endorsement of religion: “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”).

[72] “This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity . . . .” Mount Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535, 2535 (Nos. 11-998 & 11-1115) (June 25, 2012) (Alito, J., respecting denial of certiorari). In his dissent from the denial of a writ of certiorari in a case examining whether a cross on the public roadway to commemorate the “last alive” place of a fallen state trooper is an Establishment Clause violation, Justice Clarence Thomas said, “Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.” Am. Atheists, Inc. v. Davenport, 132 S. Ct. 12, 13 (Nos. 10-1276 & 10-1297) (Oct. 31, 2011) (Thomas, J., dissenting).

[73] Summum, 555 U.S. at 486 (Souter, J., concurring in the judgment).

[74] Id. at 476 (majority opinion).

[75] Id. at 464.

[76] Id. at 476.

[77] Id. at 477.

[78] Van Orden v. Perry, 545 U.S. 677, 701–02 (2005) (Breyer, J., concurring).

[79] McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 872 (2005). Under the Lemon test, a governmental activity or law is constitutional if the following three criteria are satisfied: (1) it has a secular purpose; (2) the principal

or primary effect of which must neither advance nor inhibit religion; and (3) it must not foster an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

[80] Summum, 555 U.S. at 474. In light of this multiplicity of meaning it is unclear if a display’s meaning is entirely subjective. However, it is unlikely the Supreme Court’s jurisprudence will go this route.

[81] Id. at 477.

[82] Everett, supra note 42 (thesis at 178); Monger, supra note 35, at 114.

[83] Bronna D. Romanoff & Marion Terenzio, Rituals and the Grieving Process, 22 Death Stud. 697, 698-707 (1998); Collins & Rhine, supra note 2, at 228-35; Clark & Franzmann, supra note 4, at 583-95.

[84] See Haney et al., supra note 4, at 169; Émile Durkheim, The Elementary Forms Of Religious Life 4 (Mark S. Cladis ed., Carol Cosman trans., Oxford University Press, World Classics 2001) (1912) (“[W]e must reach beneath the symbol to the reality it embodies and which gives it its true meaning. The most barbarous or bizarre rituals and the strangest myths translate some human need, some aspect of life, whether individual or social.”).

[85] For an analysis of the Free Speech and Establishment Clause concerns raised by roadside crosses, please click here. [link to full text of article]

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43,731 miles to Coastal Law

Ashleigh Barnes & Jonathan Burton-Macleod

Ashleigh Barnes & Jonathan Burton-Macleod

For Jonathan Burton-Macleod and Ashleigh Barnes, perspective is everything. Collectively, their scholarship has led them through diverse international opportunities including faculty positions in India and Australia, as well as study abroad programs in Russia, Tanzania and, perhaps most endearingly, Cape Town, South Africa, where the couple first met.

“In any area of law you benefit from comparative perspectives,” said Barnes, who earned a Ph.D. from the Australian National University earlier this year, “I think you can sit at a desk and read about it, but actually going and taking European human rights in Europe, for example, changes the focus completely. That absolutely infuses your scholarship and your teaching – it brings so many insights into the substance of what you’re teaching.”

A Florida native and graduate of the University of Florida’s Levin College of Law, Barnes’ research draws upon interdisciplinary scholarship, particularly historical and sociological approaches to childhood, as well as international law’s approaches to children in order to propose new ways of examining children’s lives and interests within U.S. law.

Like Barnes, Burton-Macleod’s expertise and familiarity with comparative law is immediately apparent. His curiosity in the subject first stemmed from his time working at the Center for Disease Control in Atlanta, Ga. While there, he developed an interest in social policy through witnessing how social and economic factors can affect disease. Law, not medicine, suddenly seemed the more appropriate route to explore these interests.

“In the implementation of law – context matters and political culture matters,” said Burton- Macleod, who served as Assistant Dean for Research and International Collaborations at the O.P. Jindal Global University in Delhi, India. “I highlight that to my class and I want to highlight that as a benefit to studying overseas. What we call legal positivism – the idea that text and internal interpretation is all that matters – is not something that I hope to be true. In my experience, context matters a great deal for how law is understood and implemented. Comparative law is an extended lesson in understanding that context matters a great deal for how law is interpreted and implemented.”

Currently, Burton-Macleod’s research focuses on identifying and explaining the influence of public discourse on formal law and policy-making processes within the areas of constitutional law and law and development.

“Legal pedagogy and the law school experience are increasingly reliant on a sense of globalization, a sense of internationalized networks, transnational networks, and exchange opportunities,” said Burton-Macleod.

“Not just in terms of market share or in gaining international students but in terms of strategically buying into a global outlook. That is something that I have seen and was attracted to in coming to Coastal Law and in conversations with others at the school. The idea that we have to be very aware of what we’re doing as a law school and the ways in which we can strategically optimize transnational opportunities for our students.

“Recently, in reintegrating into the American context as a teacher, I have really drawn on my mentorship contacts in the U.S. There have been a few key people who have really stuck with me, given me advice, and have been strong advocates for me. I enjoy thinking about being able to pass that on – whether with students at Coastal or students that we’ve previously had in India or Australia.”

As they begin their work at Coastal Law, Burton-Macleod and Barnes plan to contribute their knowledge and international experience to Coastal Law’s curriculum and programming. Barnes said what she finds most gratifying about teaching are the experiences she’s had with students who enter law school overwhelmed and faced with tremendous disadvantages yet utilize their available resources to overcome difficulties and succeed.

“This is part of the reason why we really appreciated Coastal – this notion of serving the underserved,” said Barnes. “We’ve found in our classes at Coastal, students are exceptionally motivated and come to class prepared and willing to participate. As a professor you can’t ask for more than that; that’s the ideal I think.”

For now, the world-traveling couple has settled in St. Augustine, Fla. where they are raising their young daughter, Thea.

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… And they’re off!

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Shamauria Walton (left) and Winnifred Staats (right).

On Monday, May 20, 2013, the inaugural class of Coastal Law’s JD Fast Track program began their expedited course of study. Consisting of the same number of credit hours as a traditional three-year degree, this program offers a unique opportunity for students to enter the legal community after only two years.

“This is for students who are prepared to really buckle down and devote the time necessary,” said JD Fast Track student Winifred Staats, who earned a master’s degree in Criminal Justice from Marshall University.

Made possible by maximizing course loads and summer semesters, this rigorous program provides substantial financial benefits including the reduction of living expenses by one third. JD Fast Track students who started the program in May 2013 will receive a total legal education savings of approximately $50,000.

“Yes, it’s a challenge,” said JD Fast Track student and Florida State University graduate Shamauria Walton. “But I think it will create top lawyers who are dedicated to their work and prepared to handle the pressure.”

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Alumna empowers others — one class at a time

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Sarah Spear Sands (center). – Photo by Jack Conroy

For evidence on the versatility of a jurisdoctor degree, look no further than Sarah Spear Sands. A former legislative affairs senior director for the Association for Advanced Life Underwriting (AALU) on Capitol Hill, Sands now focuses her talents on what many may consider an unlikely venue – fitness.

Sands, a Coastal Law Class of 2006 alumna, is the owner of Dance Trance DC, a franchise of the dance fitness program that mashes aerobics and choreography to Top 40 hits. A near-instant success, Sands said that in only one year she outgrew her first studio and now manages two full-time employees and six instructors.

“It has really been an incredible experience and even though I was nervous and maybe even embarrassed to try something new, my education and experience ultimately gave me the confidence to try,” she said.

“Trust me. Studying for the bar is definitely a confidence booster.”

Though a success today and poised for growth, Sands said her decision to leave behind what was once her dream job was both difficult and deeply personal.

“So many people on the Hill work themselves to death trying to reach unattainable goals and, for a while, I was no different,” she said. “Then I got married and my priorities shifted. I realized I wasn’t being honest with myself and I needed to make a change.”

Sands said her husband Ben was instrumental in helping her arrive at that conclusion. Three months before their wedding he left his consulting job to start Regret Free Life, a company that empowers professionals to form and achieve goals.

“He let me know it was ok to admit that I wasn’t doing what I loved and that I needed to look for other opportunities,” Sands said. “I was his first client, actually.”

Dance Trance isn’t new to Sands. She began taking classes her first year at Coastal Law and stayed with it all along. She said it was not just a way to “turn off and not think about work,” it also allowed her to develop a healthier lifestyle.

“That’s one of the things that I enjoy passing on to others,” she said. “I empower people, including my former colleagues to live better lives. At first I didn’t know how people would react when they found out what I’m doing now, but it’s completely the opposite. They say, ‘I admire your strength. You left the desk behind to do what you love.’

“I really do.”

How does a former Capitol Hill attorney use her law degree to transition from one successful career to another on the opposite end of the spectrum? Here’s how:

  1. In the beginning: “What I learned in my business law classes was incredibly helpful – things like incorporating an S Corp and an LLC. It helped having the background I have.”
  2. When negotiating: “As a business owner I have a lot of difficult decisions to make – how I price, who I work with. I decide all of that.”
  3. When it comes to confidentiality: “When I work with clients, I exercise the same discretion I did in my past jobs. Often, I work with people who are going through life transitions of their own – divorce, emotional issues, etc. It’s really important to keep all of that in confidence.”
  4. In public speaking: “In law school you learn a lot about communicating clearly and about logic and rationale. That kind of training continues to serve me well.”
  5. When it comes to being diplomatic: “In this job, I come across people from all different backgrounds. As it is in the law, it’s important to treat everyone fairly and with respect. I’m reminded of that every day.”

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