Winter 2008, Vol. 24, No. 2

Public Employee Speech in Remedial Perspective
by George Rutherglen
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Part I of this article offers a summary of existing law and the limited protection it affords to employees. Part II examines the interests invoked in protecting speech, beginning with the individual interests of public employees and the doubtful role that speech on matters of "public concern" plays in identifying those interests.

Part III turns from the easy cases to the hard ones, those that could legitimately be of "public concern," returning to the exact nature of the speech in question in Pickering and Garcetti. This part also examines the transformation of the balancing test from Pickering into the categorical approach taken in Garcetti. Part IV offers more definite standards that could be used to clarify the analysis of public employee speech cases.

Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes
by Logan Sawyer
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Section I of this paper describes what the author calls the classical nondelegation doctrine. Section II explains how the classical nondelegation doctrine interacted with a variety of political and practical circumstances to make judicial approval of administrative crimes necessary to the effective regulation of grazing in the national forests and to frustrate the Department of the Interior's attempts to get that approval.

Section III discusses what circumstances changed to permit the Forest Service to successfully establish the constitutionality of administrative crimes and thereby effectively control grazing in the national forests. Section IV briefly explains why the classical nondelegation doctrine and its effects on administrative crimes were almost completely forgotten. The article ends with a discussion of what this history means for our understanding of the autonomy of legal doctrine and the process of doctrinal change.