Showing papers in "Harvard Law Review in 1987"

Why the State

Abstract: We're back where we began. One hundred years ago the issue of the day was the scope of state power. America was becoming increasingly urbanized and industrialized and, to curb the excesses of industrial capitalism, various political forces turned to the state. 1 The Interstate Commerce Commission was established in i887, as part of a larger program to regulate the railroads that was to include the Elkins Act of I903, the Hepburn Act of I906, and many state statutes; the Sherman Act was enacted in I890, and the first peacetime income tax in I894; statutes were also passed regulating the sale and distribution of liquor and lotteries; and a wide variety of federal and state statutes were then enacted to control various facets of the employment relationship, including the maximum number of hours worked, safety, child labor, and union membership. These advances in the use of state power did not come easily. They were fought at almost every turn, and the forces of resistance found a sympathetic ear on the Supreme Court. Many of the measures were invalidated, while others were cabined by narrow constructions. Liberty was reduced to limited government. During the early part of the twentieth century, however, the balance of power began to shift and, by the time of the New Deal and World War II, state intervention in social and economic matters became a pervasive feature of national life. In our own day, the victory of the activist state was given dramatic expression in the civil rights movement of the early i960s the so-called Second Reconstruction and in Lyndon Johnson's Great Society. State power then became the principal instrument for achieving a true and substantive equality. In the late sixties, as our attention shifted to the Vietnam War and we began to feel the pressure of a spiraling inflation, things changed. An attack on "big government" became the organizing theme of our politics. It was voiced by both Democrats and Republicans, and over the next twenty years, a myriad of programs were proposed and sometimes instituted to limit domestic governmental activities, particularly those of the federal government. These programs went by the name of "the new federalism," "revenue sharing," "deregulation," "pri-

The AIDS insurance crisis: underwriting or overreaching?

Abstract: As of February I987, over 30,000 Americans have been diagnosed with Acquired Immune Deficiency Syndrome (AIDS).1 An even larger number of people perhaps five to ten times the number with AIDS2 suffer from a related illness called AIDS-related complex (ARC). Like people with AIDS but unlike the majority of people only exposed to HIV,3 the virus believed to cause AIDS people with ARC also experience medical problems. Although these symptoms are often virtually unnoticeable, ARC can sometimes lead to severe disability and even death.4 Frighteningly, these numbers pale in comparison to future projections. The United States Public Health Service (PHS) estimates that 270,000 Americans will develop AIDS by I99I.5 Yet the actual numbers will likely be far higher: the PHS projections are based solely upon the number of people already infected with HIV and do not take into account the millions likely to be infected in the future.

"There Is a Book out...": An Analysis of Judicial Absorption of Legislative Facts

Abstract: Professor Davis examines a national set of judicial reliance on psychological parent theory to expose risks related to undisciplined judicial notice of legislative facts.

Is Gender Justice a Completed Agenda? Review of the Feminization of America: How Women's Values are Changing our Public and Private Lives by Elinor Lenz and Barbara Meyerhoff. Los Angeles, CA: Jeremy P. Tarcher, Inc., 1985.

Abstract: The central argument of The Feminization of America is somewhat surprising and strangely compelling. Lenz and Myerhoff argue that women largely have won their struggle to enter the public sphere of American life and that, in the process, they have transformed both public and private spheres in ways that have produced more egalitarian relationships and greater human happiness. Because this transformation is nearing completion, the authors argue, we should put aside the feminist injunction to put women first; we should get, in their phrase, "beyond feminism" (p. 226). If their argument is correct, it has significant legal and political consequences. For example, if it is true that women are no longer disadvantaged, then courts might be justified in scrutinizing claims of gender discrimination less carefully and legislatures in concluding that policy choices favoring women are unnecessary and undesirable.

The need for a new national court

Abstract: By any measure, the Supreme Court is tremendously overburdened. Statistics speak clearly on this point; sometimes they shout. After the caseload relief provided by the Judges' Bill,4 which was passed in I925 and took effect during the I928 Term, the Supreme Court caseload grew slowly for thirty years. Beginning in the I96os, growth sharply accelerated, and during the I970S and I98os, the numbers exploded. Each week during the I928 Term, fifteen new cases were filed; during the I958 Term, thirty-five; the I970 Term, sixty-six; and the I985 Term, eighty-five.5 In this last term, the

How to Build a Separate Sphere: Federal Courts and State Power

Abstract: States are not inviolable spheres of sovereignty. In our federal system, state courts can and must interpret federal law and are consequently subject to Supreme Court review, state legislatures enact laws that may find their way into lawsuits brought in federal court, and state-run institutions are bound by requirements of federal statutory and consitutional law. Interaction between the federal and state systems is thus inherent in the constitutional structure. Yet the federal courts base numerous doctrines of federal jurisdiction on a supposed need to respect the separateness of the states. What is the place for “separate spheres” in the analysis of jurisdictional doctrine? If the states cannot claim an entitlement to separateness, what determines when federal courts will respect their separateness nonetheless? *1486