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Showing papers in "William and Mary Bill of Rights Journal in 2006"


Journal Article
TL;DR: Ball and Katyal as discussed by the authors argue that despite the current backlash, same-sex marriage advocates have won more than they have lost, and they encourage gay and lesbian advocates to move the struggle from the courts to the culture, in order to persuade straight Americans that prohibitions on samesex marriage are unacceptable restrictions on equality.
Abstract: INTRODUCTION In their articles,1 Carlos Ball and Sonia Katyal step back from the heat of the moment to place two recent United States court cases concerning the rights of sexual minorities - Goodridge v. Department of Public Health2 and Lawrence v. Texas3 - into a broader perspective. Ball takes up the dimension of time. Comparing the Massachusetts Supreme Court's decision in Goodridge to the U.S. Supreme Court's decision in Brown v. Board of Education,4 he examines the phenomenon of social and legal backlash against controversial judicial opinions in the arena of civil rights, and reminds us that backlash is foreseeable, for civil rights struggle in the United States typically consists of "moments of heartening progress followed by instances of discouraging setbacks."5 Katyal takes up the dimension of space, examining possible implications of the U.S. Supreme Court's decision in Lawrence for the civil rights struggles of sexual minorities in post-colonial nations, India in particular. Both Ball and Katyal are cautiously optimistic. Ball wants gay rights advocates not to despair over the recent state and federal legislative backlash against same-sex marriage, but to move the struggle from the courts to the culture, in order to persuade straight Americans that prohibitions on same-sex marriage are unacceptable restrictions on equality.6 Taking the long view, Ball argues that despite the current backlash, same-sex marriage advocates have won more than they have lost.7 Adopting the intonations of the civil rights movement, he exhorts gay and lesbian activists to win the "hearts and minds of straight Americans,"8 and, in the last line of his article, insists "that the backlash can be "overcome."9 Katyal, too, speaks with hope. She points out that the Lawrence Court did not grant protection to a "minority," but rather spoke in terms of privacy and liberty, principles that are broadly applicable to all persons.10 For Katyal, the Court in Lawrence quietly moved away from the equality-based, analogical identity reasoning that gay and lesbian activists have often been pressured into - "We are just like black people! Just like straight people!" - and toward a substantive vision of sexual self-determination, which Katyal names "sexual sovereignty."11 Though Katyal acknowledges the flaws of Lawrence - above all its connection of sexual sovereignty to the home, a site that many feminist/queer activists and theorists view as a place of danger rather than security12 - she nonetheless wishes to celebrate Lawrence as an anti-essentialist "triumph."13 Both articles are rich and thought-provoking, and there is much to praise in them. I think Ball and Katyal are right to place these court decisions in a larger context of civil rights struggle across both time and space. It is appropriate, for instance, to discuss these decisions as inseparable from questions of racial subordination and postcolonial struggle.14 It is also always appropriate to identify and celebrate openings of possibility and moments of hope. Commentary necessitates critique, however, and, in my role as commentator on these papers, I mean to offer a caution - not as a substitute but as a supplement to the posture of hope and celebration. I argue that a usefully corrective lens through which to see Brown, Lawrence, and Goodridge is the lens of political economy. This lens enables us to see different stories with different lessons than the ones Ball and Katyal extract. From a political economy perspective, Brown tells a story of the role law plays in accomplishing, to use Re va Siegel' s apt phrase, "preservation-throughtransformation."15 Through this lens, both Goodridge and Lawrence maybe seen as beacons of hope (as they surely are), but they can also be seen as invitations to what Andrew Sullivan calls (though to him it's a good, if slightly bittersweet, thing) "the end of gay culture":16 the end, that is to say, of a queer movement that means anything other than the reconsolidation of preexisting relations of privilege and subordination. …

27 citations


Journal Article
TL;DR: In 2003, the United States Supreme Court gave gay and lesbian rights advocates a stunning victory in the decision of Lawrence v Texas, which summarily overruled Bowers v Hardwick as discussed by the authors, finding that Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the US Constitution.
Abstract: INTRODUCTION In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v Texas,1 which summarily overruled Bowers v Hardwick2 At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the US Constitution In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention3 Volumes can be written about the decision; it represents a culmination of nearly a century's worth of work in dismantling prejudicial views on gays and lesbians in American law and, indeed, the rest of the world4 For a moment, civil rights activists took in an unusual turn of events: the Supreme Court, largely regarded as conservative, unwittingly unleashed a firestorm of controversy by refusing to differentiate between the intimacy enjoyed by same-sex and opposite-sex couples, and by attaching a protective cover of liberty to each5 This very act of equivocation was edifying, profoundly courageous, and, for some legal scholars, ultimately reminiscent of the era just after Brown v Board of Education6 At the same time that the decision corrected a grave injustice, it gave rise to a curious host of criticism and discomfort from parts of the American public, the majority of which had previously, and quietly, favored decriminalizing same-sex sexual activity While supporters of gay and lesbian rights rejoiced in a stunning triumph of corrective justice, antigay advocates seemed to discover a new battle cry, vocally warning the American public that Lawrence had suddenly, unwittingly, opened the door to a cavalcade of undesirable outcomes7 In a scathing dissent, Justice Scalia vociferously complained that the majority "ha[d] largely signed on to the so-called homosexual agenda,"8 and observed: Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children' s schools, or as boarders in their home They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive9 Republican Senator Rick Santorum further predicted that if sodomy was legalized, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the [right to anything]"10 Elsewhere over the globe, Lawrence was met with a comparable mixture of trepidation and satisfaction11 While some gay rights advocates rejoiced in the United States' decision to join a growing cadre of nations that had decriminalized laws against sodomy (and in particular, cited the Court's willingness to draw on international human rights jurisprudence to that effect), other governments took a different route and used the opinion to signify a growing distaste with Western decadence One of Egypt's religious leaders proclaimed a newfound commitment to fighting the "plague" of gay visibility, declaring his opposition to the appointment of gay clergy and same-sex marriage12 The Vatican, just weeks after Lawrence, issued a sweeping declaration repudiating same-sex unions as '"gravely immoral,'" urging Catholics to join in combating them13 And, in perhaps the most powerful example of this trend, the Indian government offered a resounding defense of its own sodomy laws, claiming in a recent brief that despite recent signs of tolerance in the West, "'Indian society is intolerant to the practice of homosexuality/ lesbianism,'" pointing out that such "disapproval of homosexuality was 'strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private'"14 The government, notably, reached this conclusion even in light of the ironic fact that India's sodomy laws were enacted by British colonial regimes in the 1800s, not by Indians themselves …

10 citations


Journal Article
TL;DR: For example, the authors pointed out that, under certain circumstances, utilitarian gains "trump" libertarian commitments and argued that the state is essential to the protection of property rights but its viability depends upon both cooperation and coercion.
Abstract: A widespread, though often unspoken, fear among law professors is that we spend months writing one-hundred-page law review articles that, we suspect, are all too often read closely by a handful of second-year law review editors and colleagues only to disappear into the library stacks, never to emerge again. One good measure of a scholar's impact, then, apart from the frequency with which her ideas become enshrined in Supreme Court holdings or in legislative enactments, is the extent to which his ideas are read, considered, and debated. It follows from this that one of the greatest compliments a scholar can pay to a colleague is to engage his or her arguments, to take them seriously enough to disagree. By this measure, Richard Epstein's property writings are easily among the most significant bodies of property scholarship produced in the last half century. In any number of areas, from takings law to the law of covenants and nuisance, a work of scholarship is not complete until its author has carefully read and considered what Professor Epstein has to say about the matter. Before discussing the substance of some of Professor Epstein's views on property, I want to offer him a word of thanks. I am in the habit of sending unsolicited drafts of my articles to people whose work I discuss, a practice recommended to me in my first year of teaching by several of my senior colleagues. I have never met Richard Epstein in person before this conference, but I have on a number of occasions sent him drafts of work in which I engaged his ideas, typically from a perspective that diverged in fairly dramatic ways from his own. In every instance, Professor Epstein has responded to me, often (amazingly) within hours, with helpful comments and suggestions for further reading. The more time I spend teaching and the busier my schedule becomes, the more impressed I am by the intellectual generosity reflected in this willingness to engage and assist a junior professor just embarking on an academic career. It is in this spirit of gratitude that I attempt to repay some of my debt by briefly engaging, and respectfully disagreeing with, some of Professor Epstein's ideas about property. I would like to focus in particular on the most distinctive and, for many, the most problematic aspect of his property thought: his unique mixture of individualistic rights discourse with the aggregative methodology of utilitarian economic analysis. This mixture of perspectives is rooted deeply in Professor Epstein's work. One of his many important articles, for example, is a 1979 piece entitled Nuisance Law: Corrective Justice and Its Utilitarian Constraints} In a way, the title of that article puts into relief the broad contours of Professor Epstein's approach to property: he views property by and large as a system designed to embody and protect a robust libertarian conception of individual rights but also as a system that is at the same time bounded by utilitarian constraints. In a way, he is the conceptual mirror image of Ronald Dworkin, who views individual rights as constraining what otherwise appears to be a broadly utilitarian understanding of the common good.2 For Professor Epstein, under certain circumstances, utilitarian gains "trump" libertarian commitments.3 Professor Epstein's willingness to limit the reach of individual rights makes his theory of property substantially more plausible and durable than purer libertarian accounts, which are far too brittle to attract serious support among legal scholars. Nowhere is this clearer than in Professor Epstein's version of the "state of nature" story.4 Libertarian contractarians, like Robert Nozick, struggle with the transition from a state of nature characterized by self-interested individuals to a stable state community. The formation of the state is essential to the protection of property rights but its viability depends upon both cooperation and coercion. The former diverges from classical Uberai assumptions about human nature. …

9 citations


Journal Article
TL;DR: Fernández et al. as discussed by the authors argued that the broad American public is not polarized on the specifics of the abortion issue and pointed out that there has been remarkably little change in the median position on abortion over the last twenty years.
Abstract: America, the punditocracy has declared, is at war with itself. Intense political polarization - rooted in deep religious differences - has brought us a culture war, whose troops are recruited from the red and blue states. Upon digging deeper into data on Americans' political attitudes, however, social scientists are more equivocal. Perhaps, some have suggested, we hear only "rumors of wars."1 This debate over whether America is engaged in a culture war is a strange one, if only because the term itself is odd. It is a metaphor and, as such, is open to interpretation - even more so than most terms employed in social science. Whether we are in the midst of a culture war depends entirely on what one means by the term. Most often, the term is simply used to describe the fact that American politics is polarized - a proposition, we shall see, that is also a matter of interpretation. However, when we strip away the hyperbole and return to what the term was originally meant to convey, it describes a tremendously significant development in American religion, society, and politics. This is a case where the term itself has served as a distraction from the important insight it was meant to communicate. I. POLARIZATION? YES AND NO The term "culture war" was first popularized when Pat Buchanan used it in his primetime address to the 1992 Republican National Convention.2 Buchanan, who had been a thorn in the side of incumbent George H. W. Bush during the primaries, delivered a fiery speech in which he stoked the Republican delegates with his inimitable blend of economic populism and social conservatism.3 In the speech, he declared that [T]his election is about much more than who gets what. It is about who we are. It is about what we believe. It is about what we stand for as Americans. There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.4 The declaration of a religious and cultural war is evocative, as the martial imagery suggests two sharply opposed camps of opinion. In a very important sense, Buchanan was wrong. And, likewise, so are the many pundits who also use the term "culture war" to mean intense polarization. While there is admittedly some debate over the degree to which Americans are polarized,5 the fairest reading ofthe evidence suggests that, across the issue spectrum, Americans are not as far apart as the pundits would have you believe. To be polarized in the sense of two opposing extremes requires a "bimodal" distribution of opinion - that is, when Americans' attitudes are arrayed along a continuum, we should expect to see two peaks on the left and right respectively, with little convergence in the middle.6 By this standard, Americans are clearly not polarized. The recent book Culture War? The Myth of a Polarized America by Stanford political scientist Morris Fiorina demonstrates convincingly that even on the most hot-button issues, American public opinion gravitates toward the moderate middle.7 Take the paradigmatic issue of abortion. In Fiorina's words: [T]he evidence is clear that the broad American public is not polarized on the specifics of the abortion issue. They believe that abortion should be legal but that it is reasonable to regulate it in various ways. They are "pro-choice, buts."8 Furthermore, there has been remarkably little change in the median position on abortion over the last twenty years.9 Similarly, Fiorina finds that on any of the most contentious issues facing the public, Americans' opinions cluster in the moderate middle.10 Given the frequency with which the term "polarization" is used to describe American politics, it probably seems counterintuitive to claim that Americans are not really polarized after all. While Fiorina's evidence is convincing that Americans are not polarized in one sense, this does not rule out polarization in quite another. …

8 citations


Journal Article
TL;DR: The notion of "best-interest parentage" was introduced by as mentioned in this paper, where the goal is to assign parentage to a non-marital child to maximize the welfare of the child.
Abstract: INTRODUCTION The premise of this Symposium is unabashedly radical: to imagine a new law of parentage focused exclusively on the needs and interests of children. Participants were invited to set aside questions of political feasibility and the constraints of settled law in asking how the law should assign parentage if its only goal were to maximize the welfare of children. The notion is radical because, traditionally, parentage law has been driven significantly by the needs and interests of adults - a sense of the natural entitlement of genetic parents, for instance, or society's desire to protect marriage or enable the orderly transfer of wealth between generations. One need only recall parentage law's historical treatment of non-marital children - classifying them asfilius nullius, or the child of no one - to appreciate the point.1 Even more strikingly, perhaps, the invitation expressly assumes a governmental control over the question of parentage that would strike many as alien. In its foundational case recognizing constitutional protection for family privacy, after all, the Supreme Court described the idea that government might reassign parentage in order to advance its own vision of child welfare as resting on "ideas touching the relation between individual and State . . . wholly different from" our own.2 And, yet, the invitation to think creatively and expansively about the meaning of legal parentage is extremely timely. Judges and legislators around the country are wrestling with the question as never before.3 The easy certainty of DNA testing and the fluidity of modern childrearing arrangements have combined to test fundamental assumptions about the meaning of kinship between adults and children.4 And, in responding to the challenge, some courts have opened the door to the idea of assigning parentage based directly on a judicial determination of a child's best interests.5 Accordingly, the work of crafting an explicitly "child-centered" parentage law is not solely a matter of academic interest; it is already the real- world occupation of at least some judges and lawyers. The question that I take up in this article is whether the toe-hold that "best interests" parentage has established in American law can be sustained against objections that it violates the fundamental constitutional rights of traditional parents. In other words, is it constitutional to premise legal parentage on a governmental finding of a child's "best interests"? The answer that I come to is that, perhaps not surprisingly, it depends. Part I of the Article sketches the context in which the question now arises: the breakdown of traditional parentage law - in which legal parentage was tied closely to clear markers relating to blood, marriage, and adoption - and the emergence of judicial interest in mediating conflicts among competing parental figures by resort to a child's best interests. Part ? considers whether substantive due process protection for family privacy limits the state's power to pick and choose among the competing claimants. It concludes that, notwithstanding recent suggestions of an essentially plenary state power to redefine parental status, the Constitution likely does confer a privacy right to parental identity on at least some individuals. Finally, in Part G?, I consider whether the privacy right to parental identity might be overcome based solely on a governmental assessment of a child's best interests. In my view, the answer is to be derived not from a rigid application of strict constitutional scrutiny, but from a more nuanced evaluation of the competing public and private interests at stake. Such an evaluation, I conclude, suggests that states enjoy considerable latitude to reorient parentage law in a child-centered direction. At the same time, any law that would defy widely shared social expectations in withholding parentage must be justified by something more compelling than a bare "best interests" showing. …

6 citations


Journal Article
TL;DR: For example, the authors argued that despite the harmful backlash experienced by the gay rights movement following marriage cases such as Goodridge, lesbians and gay men are nonetheless better off as a result of those cases.
Abstract: INTRODUCTION The last three years have been like no other time in the history of the gay rights movement. During that period, the U.S . Supreme Court held that states cannot criminalize gay sexual conduct,1 Massachusetts recognized same-sex marriages,2 and Connecticut created the institution of civil unions for lesbian and gay couples.3 In that same period, the President and many members of Congress endorsed a proposed federal constitutional amendment that would prohibit states from recognizing samesex marriages.4 In addition, fifteen states amended their constitutions to prohibit same-sex marriages, and most of those provisions also ban alternative forms of legal recognition (such as civil unions and domestic partnerships) of same-sex relationships.5 From a gay rights perspective, in other words, it seems as if lately every encouraging victory is soon followed by a troubling defeat. This article attempts to make sense of the current period in the struggle for gay rights by putting it in a broader historical context. The article focuses in particular on an earlier period in American history when a judicial opinion, that of Brown v. Board of Education,6 prompted a severe political and legal backlash.7 There are interesting similarities between the backlash that followed Brown and that which has followed the Massachusetts Supreme Judicial Court's same-sex marriage opinion in Goodridge v. Department of Public Health.8 In fact, the gay rights movement can learn important lessons from these similarities. One lesson is that political and legal backlashes are a foreseeable consequence of controversial judicial victories that require majority groups to reassess in fundamental ways the manner in which they have in the past treated and understood certain minority groups. A second related lesson is that civil rights struggles in this country have traditionally consisted of moments of heartening progress followed by instances of discouraging setbacks. The current backlash has created considerable anxiety within the gay rights movement as many have questioned whether the same-sex marriage litigation has backfired by, in effect, encouraging social conservatives to flex their political muscles to the detriment of lesbians and gay men.9 I argue in this article that despite the harmful backlash experienced by the gay rights movement following marriage cases such as Goodridge, lesbians and gay men are nonetheless better off as a result of those cases. The gains from the litigation, in other words, have so far outweighed the losses. The article will proceed as follows. In Part I, I compare the period immediately after Brown with the one immediately after Goodridge to explore how the plaintiffs in both cases were faced with similarly crucial decisions about whether to moderate their demands for judicial relief in the face of growing political opposition.10 In Part II, I examine the similarities in the backlash that followed each opinion.1 1 Both opinions politically galvanized conservatives, leading to many changes in state laws, including the approval of several constitutional amendments.12 In Part III, I discuss what has become known as the Brown backlash thesis.13 That thesis holds that Brown did not, at least in the short run, contribute meaningfully to the undermining of segregation in the South because ofthe massive resistance that the opinion provoked among white southerners.14 I note in Part III that some have made similar arguments in the aftermath of Goodridge by contending that the opinion has been, at least in the short run, largely unhelpful to the attainment of gay rights goals because of the backlash that it has provoked among conservatives.15 In Part IV, I disagree with gay rights supporters who have criticized same-sex marriage cases such as Goodridge by arguing that the benefits arising from the lawsuits have so far outweighed the backlash-related costs.16 I finish Part IV, however, by suggesting that the gains from the marriage litigation are unlikely to continue at the same pace in the future and that the same-sex marriage movement must begin to pay greater attention to the legislative and political arenas and (proportionally) less attention to the courts. …

6 citations


Journal Article
TL;DR: For example, the paternity establishment rate for non-marital births is now nearly seventy percent as mentioned in this paper and the number of children born outside of marriage has significantly increased and now constitutes onethird of all births.
Abstract: INTRODUCTION Deciding who should be a child's legal parents at birth seems a simple task. Instinctively, the answer is the child's biological mother and father. Historically, the answer would have been different depending on whether the child was born within a marriage or not; marriage trumped biology, at least with respect to fathers.1 A husband was generally presumed to be the father of a child born to his wife, even if there was no genetic connection.2 Because the line between legitimacy and illegitimacy was jealously guarded, children born outside of marriage could not rely on genetic connection to identify their father or their mother, illegitimate children were viewed as the "children of no one," although legal responsibility for their care was placed on biological mothers.3 Fathers, other than husbands, could generally choose whether to be parents, rather than be assumed to have that responsibility.4 In addition, traditional gender roles dictated that fathers nurtured their children very little; their responsibilities were breadwinning, discipline, and managing the family as the patriarchal head of the household.5 Adoption was a mechanism to shift children from one set of parents to another, either voluntarily or involuntarily, when connected to state power to terminate parental rights, but adoption still presumed the existence of initial parents.6 A number of changes have moved parentage away from the marital/genetic/ patriarchal model that valued the marital family above genes or social fatherhood. First, the stigma attached to non-marital parenthood has eroded. The number of children born outside of marriage has significantly increased and now constitutes onethird of all births.7 The rate of cohabitation, whether temporarily before marriage or as a permanent relationship in lieu of marriage, increased tenfold between 1960 and 2000 to eleven million couples in 2000.8 Strong social and constitutional arguments have also eroded the harsh traditional distinctions between legitimate and illegitimate children. Second, fathers have asserted a new, more engaged model of fatherhood. Nurture is valued rather than simple biological or marital ties, or actions limited to economic breadwinning.9 Egalitarian norms have replaced the patriarchal model, so parenthood in a heterosexual family is seen as a partnership rather than as a hierarchy, and as genderneutral rather than gender-defined.10 Heterosexual norms also have been challenged by gay and lesbian families, suggesting fatherhood without motherhood and vice versa.11 Third, non-marital fathers have gained rights and responsibilities. Concern about the fair treatment of non-marital fathers, especially in adoption, has refocused the definition of parentage to support paternal rights. 12 Concern over the economic wellbeing of non-marital children has energized child support enforcement, generating stronger efforts at paternity establishment.13 From abysmal numbers thirty years ago, the paternity establishment rate for non-marital births is now nearly seventy percent. 14 The combination of imposing greater economic responsibility and linking child support to custodial rights has resulted in non-marital fathers having legal status parallel to divorced fathers. In theory, marital status now has little to do with custody or child support obligations.15 This erasure or minimization of marital status in the definition of fatherhood implicitly challenges the justifications for the marital presumption that traditionally trumped genetics. All of these changes pale, however, when compared with the technological change that has occurred with respect to establishing biological parentage.16 DNA testing now makes it possible to identify the biological parents of every child.17 It is possible to imagine establishing biological identity for every child in the not-too-distant future. DNA testing erases the historic distinction between fathers and mothers: mothers can be known because they give birth, while fathers have to be established. …

4 citations


Journal Article
TL;DR: For example, the authors argues that the fact of reasonable pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of "public legal reason," which is best realized in constitutional practice through a formalist approach to constitutional interpretation - one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good.
Abstract: INTRODUCTION: DIVISION, RELIGION, AND THE CONSTITUTION What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism - liberty of conscience, toleration, limited government, and the rule of law? This Article explores these questions from the perspective of contemporary political philosophy and constitutional theory. The thesis of the Article is that pluralism - the diversity of religious and secular conceptions of the good - can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in five parts. After this introduction, Part I, "The Fact of Pluralism in the Context of Contemporary Religious Division," explores the idea of religious division in light of an important notion in political philosophy - the idea that John Rawls calls "the fact of reasonable pluralism." Part II, "Public Legal Reason," argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of "public legal reason." Part LU, "Legal Formalism," contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation - one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part IV, "Feasibility and Positive Theory," discusses the question of whether this ideal of public legal reason and the corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part V, "Religious Division Revisited: From Pluralism to Formalism," brings the discussion to a close. I. THE FACT OF PLURALISM IN THE CONTEXT OF CONTEMPORARY RELIGIOUS DIVISION The idea that religion may play a divisive role is a familiar one. Looking outward, we see violent conflicts between Sunni and Shia, Moslem and Jew, Protestant and Catholic. Looking inward, the idea of culture wars is associated with the division between liberal and conservative religious traditions and between theist and secular conceptions of the good.1 Looking backward in our own tradition, there is a long history of division along religious lines. There are many different routes by which the phenomenon of religious division can be approached. One route is via the idea that John Rawls, the eminent political philosopher, called "the fact of pluralism" - the fact that there is a "plurality of conflicting, and indeed incommensurable, conceptions of the meaning, value and purpose of human life."2 The fact of pluralism has been an enduring feature of Western culture since the wars of religion of the sixteenth century.3 During the modern period, no society that permits liberty of conscience and freedom of expression has unified on a single comprehensive conception of the good.4 Instead, modernity is characterized by disagreements about ultimate questions of value - and hence by religious division. Thus, the United States in the early twenty-first century includes adherents of a variety of doctrines - Catholics, Protestants, Jews, Moslems, Buddhists, and many others - and there are further divisions between theists and atheists and among a variety of secular concepts of the good and the right. This fact of pluralism is not just a bare fact, not just an accident of history. It is, Rawls argues, the likely (or even perhaps inevitable) result of freedom of conscience and expression in an open society.5 The reason for its inevitability is that even fully reasonable and rational persons are subject to what Rawls calls "the burdens of judgment. …

4 citations


Journal Article
TL;DR: In this paper, the authors argue that Congress should supply the President, and by extension, the military, authority to engage in domestic law enforcement when circumstances dictate rapid action to prevent widespread loss of life and property, such as in the case of Hurricane Katrina.
Abstract: INTRODUCTION The massive devastation wrought by Hurricane Katrina in Louisiana and Mississippi in August 2005(1) left behind shattered communities that will be left to pick up the pieces for months and years to come.2 The alarming number of hurricanes to strike the United States coastline in 2004 and 20053 suggests that history can, and likely will, repeat itself. Significant breakdowns in communication and confused emergency and law enforcement responses from local, state, and federal officials in the hours and days after Hurricane Katrina led to chaos and panic in the affected areas, endangering citizens' property and lives.4 The delayed reaction to this crisis suggests the need for an expansion of existing presidential authority to use active military forces to rapidly secure the disaster area and rescue survivors.5 This Note will argue that Congress should supply the President, and by extension, the military, authority to engage in domestic law enforcement when circumstances dictate rapid action to prevent widespread loss of life and property, such as in the case of Hurricane Katrina. Part I examines the failure ofthe local, state, and federal response in the aftermath of Hurricane Katrina. Part II explores the history and legality of presidential authority to deploy federal troops in domestic theaters. Part III examines previous instances in which the President has used existing statutory authority to use federal troops in domestic emergencies. Part IV examines the arguments made against weakening the posse comitatus doctrine, and how they translate to modern American policy and values. Finally, Part V concludes with recommendations to modify the federal structure to give the President more flexibility in ordering federal troops into active duty in times of extreme emergency. I. LOCAL, STATE, AND FEDERAL RESPONSE TO THE KATRINA DISASTER Hurricane Katrina crashed ashore near the border of Louisiana and Mississippi on August 29, 20056 with 145-mile-per-hour winds7 and a twenty- to thirty-foot storm surge.8 The wind and rain from the hurricane caused the levees protecting the city of New Orleans from Lake Pontchartrain's waters to fail,9 engulfing over eighty percent of the city in up to twenty feet of water.10 The flooding stranded 20,000 New Orleans residents at the Louisiana Superdome, which was intended only to be a "shelter of last resort."11 Thousands more were stranded on building rooftops for over two days without food or water, trying desperately to stay out of the flood- water.12 Local and state authorities struggled to respond to the overwhelmingly massive rescue and relief effort brought on by the breach of New Orleans' levees.13 Louisiana National Guard troops evacuated their headquarters to the Superdome, and communications were nonexistent among the troops leading the rescue effort.14 Governor Bill Richardson of New Mexico stated that 200 National Guard troops were packed and ready to go to New Orleans, but two days passed before state officials responded to Richardson's offer of assistance.15 More than 250 members ofthe New Orleans Police Department abandoned their duties in the days following the flooding, and reports indicated that some officers even looted homes and businesses.16 In the absence of law enforcement in the city, many stranded residents looted local stores, carrying away electronics, clothing, shoes, and firearms.17 Property owners defended themselves on their own using shotguns and small firearms.18 By August 3 1 , two days after the storm's landfall, the Mayor of New Orleans had ordered the city's police to abandon search and rescue efforts and return to their traditional duties of law enforcement.19 Supply trucks were delayed entering the city because drivers refused to proceed without a police escort, and Baton Rouge abandoned its offer to send riot-trained officers to New Orleans after its chief administrative officer decided he did not want to place so many of his officers in harm's way. …

4 citations


Journal Article
TL;DR: In this paper, the authors argue that children would be best served by placement with married parents and, barring this, that they should be placed with a single parent; as a final resort, a child should be put with an unmarried, cohabiting couple for adoption by both of them.
Abstract: INTRODUCTION Who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under the proposals considered in this journal as to who the first (and hopefully last) legal parents will be for newborn children. Some of these proposals would potentially place droves of children in the state' s care for placement with better, more ideal parents. This paper asks who these parents should be. We will argue that children would be best served by placement with married parents and, barring this, that they should be placed with a single parent; as a final resort, a child should be placed with an unmarried, cohabiting couple for adoption by both of them. As we have been charged to do, we have taken an exclusively childcentered approach, drawing on an enormous body of social science on family structure and child well-being. The social science is clear: on average, children do best in a married home, compared to the alternatives, and for this reason adoption laws and regulations should clearly favor married parents. The social science is less clear on the advantage that a single parent might have compared to cohabiting parents; here, we think the science suggests that a single parent might offer more stability and safety to a child than a cohabiting couple. So we also argue for a weak preference for a single parent over a cohabiting couple when it comes to placing children in an adoptive home. This paper first examines the current legal climate surrounding adoption and demonstrates that the question of optimal placement is an important one, not only to the proposals considered here, but to current adoption schemes in the United States. A significant number of states bar consideration of a prospective adopter's marital or non-marital status, laws that we believe miss an important opportunity to maximize the best interests of each child being placed. Part II then demonstrates that children are significantly more likely to thrive if they are raised in a home headed by two married parents. After presenting the results of an extensive literature review, we take a critical look at the quality of these studies and the extent to which they can assist us in isolating the impact of living in a marital home on a child's well-being. These studies confirm that marriage matters to how children flourish and to the extent to which their parents are willing to invest in them; they also suggest that living in a cohabiting household is fraught with risk for children. Part ?? then proposes model legislation to institute these preferences. We endorse a strong preference that gives first consideration to married couples and a weak preference for single parents compared to cohabiting couples. Part IV considers and ultimately rejects a number of concerns that may be raised by legislating a preference for placement with married couples. I. MODERN ADOPTION LAW Currently, 127,000 children are adopted every year,1 a number we would expect to surge if proposals explored in this symposium are adopted and instituted. Roughly 2.5 percent of children under eighteen, or 1.6 million children, live with adoptive parents.2 78 percent of these, or 1.24 million children, are living with two married adoptive parents; 15.2 percent, or 243,000 children, live in single-mother households, while 3.2 percent, or 51,200 children, live in single-father households; and 3.6 percent, or 57,600 children, live with a single parent and the parent's live-in partner.3 Among those children adopted through foster care, one-third are adopted by a single parent.4 Additionally, single parents "[a]s a group . . . tend[] to adopt 'special needs' children who were older, minority, and/or handicapped children."5 States are entrusted with the care and safe placement of children for adoption.6 Licensing rules, regulations, and standards all emphasize that the state's paramount duty is to the child rather than to prospective parents. …

3 citations


Journal Article
TL;DR: In particular, the question of whether government can take private property for whatever ends it deems to be justified has galvanized the opposition of citizens and political actors as mentioned in this paper, leading to the now-famous KeIo2 case, decided in June 2005, the United States Supreme Court upheld the taking of modest private homes for the purpose of commercial and residential economic redevelopment.
Abstract: INTRODUCTION Today we are celebrating the work of Frank Michelman, a towering figure in the American legal academy. Many scholars have written important works in the fields of constitutional law and constitutional theory. However, even in this august company, Frank Michelman stands out. He is, by anyone' s calculation, one of the most influential constitutional scholars of the twentieth and twenty-first centuries. In these remarks, I will explore the intersection of Frank Michelman' s work and "takings" law or the question of constitutional restraints on the taking of private property by government.1 Of all fields of contemporary constitutional law, this is one of the most contested. In particular, the question of whether government can take private property for whatever ends it deems to be justified has galvanized the opposition of citizens and political actors. In the now-famous KeIo2 case, decided in June 2005, the United States Supreme Court upheld the taking of modest private homes for the purpose of commercial and residential economic redevelopment. Although the issue of government condemnation powers had smoldered for years, this very high-profile and decisive opinion by the Court ignited a firestorm of controversy.3 Some of the reaction to the KeIo decision might be discounted as unjustified popular hysteria, fueled by politicians and interest groups with agendas that have little to do with the merits of the question. However, the breadth and depth of the visceral public reaction - from groups as diverse as property-rights activists, populists, advocates for racial minorities and the poor, and small-business organizations - cannot be so easily or expethently discounted. Something about this decision tapped a universally raw nerve, beyond the usual concerns about winners and losers in politics and government. Much ink has been expended in the search for different doctrinal or policy tests that might address the KeIo problem.4 As worthy and necessary as these efforts are, I will argue in these remarks that we must look elsewhere for the heart of the matter. Rather, as Michelman' s work so powerfully suggests, KeIo' s continuing aftermath is the result of a deeper, substantive concern about structural inequalities that are inherent in this and other exercises of law's coercive powers. In other words, the challenge presented by KeIo is not simply a problem of public policy run amok; it is the question of the legitimacy of government power when used against dissenters. I. THE FOUNDATIONAL ISSUE In a recent article that explores what we might call the social paradox of law, Michelman begins with the following observation. In any land where government prevails, "people wake up each day to find in place effectively compulsory regulations of social life - we call them 'laws' - with which the publicly supported authorities in the land predictably will demand everyone' s compliance."5 This is true even though "[n]o one who thus is subject to the laws of a country has chosen these laws for himself .'^ Whatever the precise history of how a law came to be, of one thing we can be certain: because of the processes of negotiation, compromise, and majority rule, no law will be "effectively . . . chosen by the actions of any single one of the individuals who are called upon to abide by it."7 Thus, Michelman writes, "arises ... the question of political justification or legitimacy."8 We must "supply a moral warrant for the application of collective force in support of laws produced by nonconsensual means, against individual members of a population of presumptively free and equal persons."9 We are presumptively committed, through the idea of self-government, to "the freedom, the dignity - of persons."10 If we are to honor this commitment, we must "find a form of political association, a set of arrangements for lawmaking, in which each individual human being remains or becomes his or her own governor, providing from within his or her own will and judgment the direction and regulation of his or her own [destiny]. …

Journal Article
TL;DR: In the context of the recent Parentage Roundtable at the William & Mary School of Law, this article reviewed the six published papers by the participants and provided three comments about the positions asserted (endorsing the child-centered approach, critiquing "mother-controls" proposals, and criticizing the weakening of the marital presumption of parentage).
Abstract: INTRODUCTION: INVITATION TO REFORM PARENTAGE LAW The Institute of Bill of Rights Law at the William & Mary School of Law, which convened a roundtable on reforming parentage laws ('Parentage Roundtable"), has graciously invited me to respond to a set of academic papers presented at the Parentage Roundtable and published by the William & Mary Bill of Rights Journal ("Parentage Symposium"), to add my own recommendation regarding "[w]hat would be an ideal set of rules for assigning newborn children to parents?"1 The convener of the Parentage Roundtable, James G. Dwyer, Cabell Research Professor of Law at the William & Mary School of Law, asked the distinguished participants in the Parentage Roundtable to consider how law regulating the establishment of parentage for the newborn child would look if (1) only the best interests of the newborn child were considered, and (2) assuming that social conditions as they now exist (as unpleasant as they are in some situations) continue (thus precluding change-me-facts-by-assuming-miraculousnew-governmental-programs-or-socio-economic-improvements fantasy-solutions).2 Professor Dwyer also explicitly asked that contributors engage in a free-thinking "thought experiment"3 to pursue a purely intellectual exercise in hopes of "triggering] stimulating debate among family law scholars and among many other scholars and professionals."4 This article addresses the subject of establishing legal parentage at the time of childbirth within the context of the broader debate over the relationship of form and substance in family law. The article also proposes some reforms to parentage principles and doctrines in the spirit of stimulating debate and encouraging family law scholars to explore approaches that break through the popular ideological barriers that often tend to dominate and constrain contemporary thinking and discourse about family law. Part I of this article reviews the six published papers by seven professors that resulted from the Parentage Roundtable, and provides three comments about the positions asserted (endorsing the child-centered approach, critiquing "mother-controls" proposals, and criticizing the weakening of the marital presumption of parentage) . Part Hof this Article examines whether the form or structure of parenting really matters for children, and, if so, how it should matter for the law governing the establishment of parentage at birth.5 It emphasizes that because children generally do best when raised by their mother and father who are married, the law should strongly encourage and prefer marital dualgender parenting. Part ITJ of this article suggests some core principles that should underlie parentage law applicable to the newborn child and offers, for brainstorming discussion, some possible reform positions, with the caveat that pragmatic considerations must temper and shape how those principles and any reform proposals are applied in any given case. The Article concludes by endorsing the importance of fostering marital, biological, dual-gendered parenting in parentage law. I. REVIEW AND CRITIQUE OF THE WILLIAM & MARY PARENTAGE ROUNDTABLE A. Review of the Papers Presented Articles published in the William & Mary Bill of Rights Journal Parentage Symposium provide a fairly representative selection of what knowledgeable and highlyrespected American legal scholars think of the law regulating parentage today and of what it should be. Professor Karen Czapanskiy proposes to give birth mothers virtually unilateral control of legal parentage.6 Under her proposal, the birth mother would be the only presumed legal parent.7 She would be empowered to decide whether she will be the child's sole legal parent or whether she will designate another as her parental partner. If she decides to designate a partner, she can designate whomever she wants; she is not constrained by presumptions in favor of her spouse or the child's biological father. …

Journal Article
TL;DR: In 2005, the Washington Post revealed that the Central Intelligence Agency (CIA) maintains a series of secret prisons in foreign countries where terrorist suspects are held and interrogated, and members of Congress and the CIA called for an investigation into the identity of the source or sources for the story as mentioned in this paper.
Abstract: INTRODUCTION After the Washington Post revealed in November 2005 that the Central Intelligence Agency (CIA) maintains a series of secret prisons in foreign countries where terrorist suspects are held and interrogated,1 members of Congress and the CIA called for an investigation into the identity of the source or sources for the story.2 Post media critic Howard Kurtz wondered in a subsequent column whether the uproar over the prison story would culminate in the reporter and/or the newspaper being subpoenaed and threatened with heavy fines or imprisonment if they did not identify the sources.3 Kurtz's concern was not merely speculative. Shortly before the Post story appeared, New York Times reporter Judith Miller left a Virginia jail after serving more than twelve weeks for civil contempt of court.4 Time Magazine reporter Matthew Cooper narrowly escaped the same fate when he agreed to cooperate with a grand jury investigation into who might have identified an undercover CIA operative to Miller, Cooper, and other reporters.5 Cooper said his source released him from his promise to keep the source's identity confidential shortly before the hearing at which Miller was sentenced.6 The dramatic events of July 6, 2005, followed months of legal wrangling over whether journalists have a constitutional or common law privilege protecting them from being forced to disclose confidential information.7 Meanwhile, four reporters from various news organizations were considering their next moves after the U.S. Court of Appeals for the District of Columbia ruled against them in another privilege case.8 The reporters were held in civil contempt of court after they refused to name their sources for stories linking Wen Ho Lee, a scientist who worked at the United States' Los Alamos nuclear weapons laboratory, to the alleged sale of nuclear secrets to China.9 Lee was suing the United States Departments of Justice and Energy for violating the Privacy Act10 by leaking information about the investigation to the press.11 A fifth reporter, Walter Pincus of the Washington Post, was found in civil contempt in November 2005 for refusing to cooperate with Lee.12 His appeals were still pending at this writing. A few months before Miller was sent to jail and the D.C. Circuit first ruled in the Lee case, a television reporter in Providence, Rhode Island, was released early for good behavior from a six-month home confinement sentence for criminal contempt. 13 Reporter James Taricani defied an order to tell a special prosecutor the name of his source for an FBI surveillance tape showing a city official allegedly taking a bribe, which his station aired while the official's corruption trial was pending in 2001. 14 The special counsel's investigation focused on whether the source violated a judge's gag order by giving the tape to Taricani.15 From the summer of 2004 to the summer of 2005, two reporters, Miller and Taricani, entered federal custody, and one narrowly escaped joining them.16 By the end of 2005, five other reporters were facing the same fate in the Lee case unless they obeyed orders to answer deposition questions or prevailed in their dwindling appeal options.17 Meanwhile, eight journalists and news organizations subpoenaed in regard to another civil suit against the government were spared, at least temporarily, from being forced to comply when the plaintiff withdrew the subpoenas.18 Although the press won a rare victory during that time period when a federal judge ruled that the government could not subpoena the phone records of Judith Miller and fellow Times reporter Philip Shenon in another investigation,19 the prosecutor seeking the records filed notice that he planned to appeal that decision to the U.S. Court of Appeals for the Second Circuit.20 In response to the apparently unprecedented21 number of journalist's privilege cases in such a short time, two United States senators and a representative introduced bills in Congress to create a federal shield law. …

Journal Article
TL;DR: For example, this article argued that a judge's religious orientation can influence his or her decision-making in the United States Supreme Court and pointed out that religious orientation often influences an individual's political values or preferences.
Abstract: Most people would acknowledge that religious orientation often influences an individual' s political values or preferences. Members of evangelical Protestant denominations, for example, are more likely to be conservative Republicans than liberal Democrats. Empirical studies in political science reinforce this common sense view.1 But what about judicial decision-making? Do judges' religious orientations influence their votes or decisions when resolving judicial disputes? To me, the answer to this question is obvious: yes. To me, this is common sense. But for many, this assertion is controversial. It challenges basic assumptions about the rule of law and the independence of the judiciary.2 Many lawyers, judges, and law professors would insist that neither a judge's political preferences, in general, nor a judge's religious affiliation, more specifically, should affect decision-making. Any such influence would corrupt the judicial process. Judging should be neutral and apolitical. In other words, judges, including United States Supreme Court Justices, should decide cases in accordance with judicial precedents and legal doctrines, not because of political or religious values. Most political scientists, of course, scoff at this internal view of adjudication. They subscribe instead to an external view: at least at the Supreme Court, Justices vote their political preferences. In the words of Jeffrey A. Segal and Harold J. Spaeth, the leading proponents ofthe so-called attitudinal model: "Simply put, [William] Rehnquist votes the way he does because he is extremely conservative; [Thurgood] Marshall voted the way he did because he is extremely liberal."3 Recently, an incongruous clash between the legal (internal) and the political science (external) views of judicial decision-making shadowed the ill-fated Supreme Court nomination of Harriet Miers. On the one hand, the Bush administration trumpeted Miers' s commitment to judicial restraint, to interpreting the Constitution faithfully, and to following the rule of law. Of course, every Supreme Court nominee must be depicted similarly. When would any administration nominate an individual and then declare, "She will ignore the law and impose her personal preferences on the rest of the country!"? Yet, President Bush also emphasized Miers' s religious affiliation, as if it were a credential qualifying her to be a Supreme Court Justice. Indeed, many conservatives applauded Miers' s religiosity - and her more specific religious commitments-while many liberals worried about the same.4 But why would Miers' s religious orientation matter at all if Supreme Court decision-making were neutral and apolitical? Didn't conservatives and liberals both stress Miers's religiosity exactly because they hoped, or feared, that her religious views would influence her interpretations of legal texts, particularly the Constitution? In this Essay, I will prioritize neither the external nor internal understandings of judicial decision-making. Indeed, I have elsewhere argued that, particularly at the Supreme Court level, both approaches are valid and can be harmonized. They are not necessarily antithetical.5 Nonetheless, I will argue that law professors should pay more attention to empirical studies showing that a judge's religious orientation influences decision-making. To be sure, then, I argue from one side of the law-political-sciencedivide in this particular Essay, but not because the other side is wrong. Rather, I argue from the political science side exactly because law professors so often seem to disregard it. Of course, this disregard can be partly explained by disciplinary boundaries: law professors primarily read legal scholarship, while political scientists primarily read political science scholarship. Even so, each side - the law professors and the political scientists - would profit from listening to what the other is saying. Given the context of this Essay - addressed to an authence mostly of law professors - I do not need to advocate for the acceptance of the internal or legal view of judicial decision-making. …

Journal Article
TL;DR: The use of pavulon in the lethal injection cocktail of a prisoner's death sentence has been challenged by death row inmates who claim that the anesthetic used in most lethal injection cocktails wears off before the prisoner dies, leaving him with full sensory perception as a lethal drug is pumped into his veins.
Abstract: INTRODUCTION The standard methods of execution used by American states have changed over time as technological and medical advances have revealed more "humane" ways of executing death row inmates At various times in the history of this country, states have authorized the use of hanging, firing squad, electrocution, the gas chamber, and lethal injection1 Lethal injection is, by far, the most prevalent method used by the thirtyeight states that permit capital punishment today, as well as the federal government and the United States military2 As has happened with every method of execution used in recent American history, however, prisoners have begun to challenge the constitutionality of lethal injection under the Eighth Amendment's ban on cruel and unusual punishments3 One of the most disturbing claims being made is that the anesthetic used in most lethal injection cocktails wears off before the prisoner dies, leaving him with full sensory perception as a lethal drug is pumped into his veins4 According to this theory, the prisoner's outward appearance remains calm because he has been injected with a drug, usually pancuronium bromide (commonly known as pavulon), that paralyzes his body5 These claims raise substantial questions about whether lethal injection is, in fact, more "humane" than other methods of execution (and whether a truly humane method of execution is even possible) Section I of this Note explores the history of the death penalty in this country, including the crimes and categories of offenders that have been exempted from capital punishment, while Section II reviews the evolution of different methods of execution throughout history Section HI describes the relevant statutes and policies of each jurisdiction that permits lethal injection, including the drugs used in each jurisdiction's lethal injection "cocktail," as well as the requirements for technicians involved in administering lethal injections Section IV explores medical research on the drug pavulon, including its effectiveness as a paralytic agent Section V focuses on the use of pavulon in the lethal injection cocktail, describing the arguments of death penalty opponents and proponents, legal challenges made by death row inmates, and legislative responses to claims that pavulon makes lethal injection a cruel and unusual punishment Section VI details possible alternatives to pavulon Lastly, Section VU evaluates the merits of death row inmates' challenges to pavulon and explores possible solutions to the lethal injection problem, as well as the question of whether it is even possible to have a truly "humane" method of execution I A BRIEF HISTORY OF THE DEATH PENALTY IN THE UNITED STATES A Death Penalty Jurisprudence of the Supreme Court While it has gradually whittled away the crimes and categories of offenders eligible for capital punishment, the Supreme Court of the United States has never held that the death penalty is, per se, unconstitutional under the Eighth Amendment6 In Trop v Dulles,1 the Supreme Court held that "the words of the [Eighth] Amendment are not precise, and their scope is not static The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"8 Using that standard of review, the Court held in 1972 that all of the states' death penalty statutes violated the Eighth Amendment because "this unique penalty [was] so wantonly and so freakishly imposed"9 In 1976, the Court upheld some of the states' new death penalty statutes because they gave guidance to sentencing juries and included "safeguard[s] against arbitrariness and caprice"10 B Categories of Offenders Exempted from the Death Penalty Since its decision in Gregg, the Court has held that states may not make the rape of an adult woman a capital crime" Likewise, it has exempted the mentally insane,12 the mentally retarded,13 and juveniles14 from eligibility for capital punishment …

Journal Article
TL;DR: In this paper, the authors examine the different versions and the current status of sentencing entrapment, and evaluate the advantages and disadvantages of each version of sentence-enforcement defense.
Abstract: INTRODUCTION While American military and intelligence forces continue to wage,1 and the American media continues to incessantly cover,2 the global war on terrorism, popular attention has shifted away from a war closer to home - the war on drugs.3 Nevertheless, the war on drugs, as well as the war on other crimes, is waged on a daily basis. In fact, the United States government spends over $40 billion per year on the drug war, yet drugs continue to threaten American society and carry both human and monetary costs.4 Law enforcement targeted at suppliers remains "the dominant [policy] lever in the United States,"5 and government officials continually adopt new and creative strategies for catching offenders and protecting American citizens. One of the more common means of investigating and detecting criminal behavior has been through the use of sting operations.6 Whether posing as drug dealers and purchasers on the streets7 or as innocent and vulnerable children on the Internet,8 government officials frequently work undercover to root out and prosecute criminals in a variety of settings. Such police methods have not gone unchallenged, however, particularly when used in the context of rigid, if not mandatory, sentencing laws.9 In North Carolina, for example, Michael Washington, a ten-year veteran of the police force and threeyear veteran of the narcotics unit, arranged, with the assistance of a confidential informant, the sale of one ounce of cocaine for $800.00,10 a "trafficking amount" of the substance.11 The target of the reverse sting and the ultimate purchaser was Alvin Terrill Foster, Jr.12 According to testimony at trial, Washington and the confidential informant planned to sell the ounce of cocaine for $800.00, receiving $500.00 at the time of the exchange and "fronting" the remaining $300.00 until a later date.13 At the predetermined location, the defendant got in the car with the undercover agent and confidential informant, was handed a plastic bag containing cocaine, and was shown a scale that he could use to weigh the drugs.14 Because the plastic bag that the defendant had purchased contained 32.2 grams of powder cocaine, he was arrested and convicted for trafficking cocaine instead of simple possession. 15 The defendant contended that he had never purchased more than five grams from the informant before, that he was a user and not a dealer, and that in the transaction for which he was arrested, he thought he was only purchasing five grams.16 While the defendant did not raise the claim at trial, the appellate court sua sponte addressed the issue of sentencing entrapment17 and concluded that the defendant was entitled to a new trial at which he could present the defense.18 Between 1996 and 1998, academia produced a number of articles addressing the quagmire of "sentencing entrapment" or "sentencing manipulation."19 A plethora of definitions have been employed to describe this controversial defense.20 Many courts have struggled with this doctrine, including the Supreme Court of North Carolina, which was unable to come to a definitive decision in reviewing the Court of Appeals' decision in State v. Foster21 and, consequently, left the controversy surrounding the doctrine unresolved in North Carolina.22 Because of the continuing confusion regarding the contours and viability of sentencing entrapment, it is necessary to revisit this troubling issue. This Note will examine the different versions and the current status of sentencing entrapment. Part ? of this Note will provide a brief background necessary for an understanding of sentencing entrapment. Particularly, the section will discuss the historical development of the traditional entrapment defense and federal sentencing laws, including the Federal Sentencing Guidelines and mandatory minimum sentences. Part ?? will evaluate the current status of sentencing entrapment in the federal circuits as well as various state courts. Part IY will examine the advantages and disadvantages of each version of sentencing entrapment. …

Journal Article
TL;DR: The second Brigham-Kanner prize was given to the Takings Clause as discussed by the authors, which was the first time a book has been considered for the prize in twenty-five years.
Abstract: I. TAKINGS A GENERATION LATER It is my very great pleasure to write a short response to these presentations given at the conference held in connection with the decision of the faculty of the William & Mary School of Law to designate me as the recipient of the second Brigham-Kanner prize. I am especially grateful that the prize was awarded for my book Takings,1 which seems after twenty years to have weathered at least some of the scathing criticisms sent in its direction on the occasion of its publication.2 Before commenting briefly on the three papers in this symposium, let me express my continued puzzlement as to why the book has attracted such fierce criticism. The obvious reason is that my extended analysis of the Takings Clause ended with the "modest" conclusion that the vast redistributive programs of the New Deal were in fact unconstitutional if the Takings Clause was given its proper interpretation, one that properly combined its specific language with its larger intellectual structure.3 Everyone knows that the clause itself says, "[N]or shall private property be taken for public use, without just compensation."4 As Eric Claeys points out, an aggressive reading of this clause cannot be blithely dismissed as suffering from the oxymoronic features of substantive due process.5 Clearly, the text of the clause contains no internal contradiction. The key interpretive question asks what weight should be given to each of its constituent terms. To start with the first key term, private property is one of our most comprehensive social institutions, so it seems odd to give it a narrow construction that bears scant resemblance to the term "private property" as it is used in the private law. Land and chattels are obviously part of the overall picture. And more importantly all interests in land - leases, mortgages, life estates, reversions - are part of it as well. When John Locke wrote that property embraced our "Lives, Liberties and Estates,"6 he gave private property a broader definition than the standard account, by including the personal freedoms that in practice seem to be better located in the constitutional protections for speech, contract and religion. But even if these interests are excised, the Takings Clause still covers a lot of turf, and it is not a sensible construction of the phrase to try to limit it to, for example, the protection of the right to exclude only when the conception from Roman times forward has always included the rights of use and disposition as well.7 So perhaps then we could narrow the meaning of the clause by putting tough emphasis on the term "taken" which could be limited only to the outright physical dispossession of property. But it would be odd in the extreme to hold that the state has not taken property when it strips a mortgagee of his lien, when it denies the holder of a future interest the right to enter his land on the termination of a life estate, when it prohibits the holder of a patent from practicing his art, or when it requires the owner of a trade secret to share it with the rest of the world. Clearly a sensible reading has to accept that the meaning of the term "private property" covers liens, future interests, and intangible forms of property. The full range of private law interests are implicated by the clause, and any removal of rights from the standard bundle of rights - a phrase which will be addressed more later - subjects the government action to examination under the Takings Clause. Thus if a party lets a friend into his house for a day, and that person refuses to leave when the invitation has expired, it is just word play to insist that property has not been taken because the entrance was lawful even though the tenant's holdover was not. Yet the constant effort to situate rent control statutes outside the law of takings rests on the odd conceit that the holdover tenant has not displaced the original owner.8 The clause's coverage, moreover, does not stop with this individual taking. …

Journal Article
TL;DR: In the first decade of a new century, "Where do we find ourselves?" as mentioned in this paper examined what Ronald Dworkin has called the "some overall freedom of the press of the judge" s sense of abstract freedom of speech and its philosophy of openness in the access-to-court cases.
Abstract: INTRODUCTION What divides the justices of the Supreme Court in a number of contemporary cases involving speech at the core of the First Amendment? The near uniformity of vision that sparked the Court's renovation of libel law in New York Times Co. v. Sullivan1 in the 1960s, its barricade against prior restraint in the 1970s,2 and its philosophy of openness in the access-to-court cases of the 1980s and 1990s3 has fragmented dramatically, yet the sources ofthe Court's intellectual divisions over free speech are strangely elusive. A debate is in full force, but it is barely audible - or composed in a hidden language. So the question is: Halfway through the first decade of a new century, "Where do we find ourselves?"4 What accounts for the 7-2 split in Mclntyre v. Ohio Elections Commission,5 where a citizen successfully invoked the First Amendment to avoid penalties for distributing anonymous handbills in violation of state law? And what differences prompted the Court's 6-3 split in Bartnicki v. Vopper,6 where a radio host escaped liability for broadcasting an intercepted cell phone conversation? Why did the Court divide 5-4 in Republican Party of Minnesota v. White,1 where the majority upheld a judicial candidate's claim that state limitations on campaign comments violated his freedom of speech? And did the differences in these cases have any bearing on those in McConnell v. Federal Election Commission,8 where another 5-4 configuration upheld limitations on issue advocacy in federal campaigns? Some might shrug off the questions, attributing disagreements on the Court to ideology and isolating a "liberal" understanding of free speech and a "conservative" rejoinder. But political tags are not necessarily illuminating in speech cases. Consider, for example, Hurley v. Irish- American Gay, Lesbian & Bisexual Group of Boston, Inc.9 where the Court ruled without dissent that a St. Patrick's Day parade is a "form of expression"10 and that private organizers have a First Amendment right to exclude would-be participants who wish to convey a message (in that case, a message about sexual orientation) different from the organizers' own.11 Ideology, sexual or otherwise, seemed a non-factor. Still, even if Hurley confounds explanation-by-ideology, what are we to make of the groupings of justices in the four cases before us - Mclntyre, Bartnicki, White, and McConnell! Justices considered left-of-center tended to vote together in those cases, as did justices considered right-of-center, but the significance of the groupings is murky at best. Neither bloc aligned consistently with pro- or anti-speech results: Justices in the left-of-center bloc voted against the speech-based challenges in McConnell and White, but for speech-based challenges in Bartnicki and Mclntyre, and justices in the other bloc followed the opposite course (although Justice Thomas deserted his bloc in Mclntyre). Moreover, even within blocs, justices often filed separate opinions. For example, Iustice Breyer concurred with the left-of-center justices in Bartnicki but on far narrower grounds, and Justice Kennedy concurred with the right-of-center justices in White, but on far broader grounds. And Justice O'Connor, after joining Justice Breyer's rationale in Bartnicki, filed a concurrence with the right-of-center bloc in White before migrating to the left-of-center bloc in McConnell. Can doctrine explain what ideology cannot? Each of the four cases was a battle over the meaning of precedent and the choice and application of legal tests, perhaps illustrating Justice Scalia' s point that an abundance of doctrinal categories in First Amendment jurisprudence has led to "disuniformity" of analysis, even to "ineffable" calculations in individual cases.12 But is doctrinal haggling the best explanation we can venture for divisions in these cases? Surely that question points to the further problem of what drives a justice's choice of frameworks. For this, we must examine what Ronald Dworkin has called the judge' s sense of "some overall point purpose to the Amendment's abstract guarantee of 'freedom of speech or of the press. …

Journal Article
TL;DR: In a follow-up article as mentioned in this paper, the same authors pointed out that congressional efforts to limit federal court jurisdiction have always been fitful and the fits are usually induced by strong pressures imposed by particular events or by powerful constituencies that seek to influence results in particular causes that concern them.
Abstract: INTRODUCTION [L]egal scholars and commentators . . . have rendered a near-unanimous judgment . . . [that proposals to make exceptions to Supreme Court jurisdiction] are ill-conceived and unconstitutional. But that consensus judgment has failed to deter or dampen political support for proposals [to divest Article III federal courts and the Supreme Court of jurisdiction]. Such proposals continue to be made periodically, in seeming correlation to corresponding denouncements of some perceived instance of excessive "activism" by the Court.1 Written nearly twenty years ago as part of an impassioned plea to stop politically motivated jurisdiction-stripping measures, the situation described above is still on point, with one exception. In the past, congressional proposals to limit federal court jurisdiction have "reflected] a substantive disagreement with the way the Supreme Court, the lower federal courts, or both have resolved particular issues."2 However, the trickle of court-curbing bills before the 108th Congress was somewhat unique3 in that it was simply the mere possibility of action that prompted a congressional response.4 This Note does not focus on the various judicial ends Congress can hope to achieve through jurisdiction-stripping bills, such as freezing existing federal decisions in time or safeguarding against a potentially disagreeable decision. Rather, in light of the 108th Congress's preemptive attacks on federal court jurisdiction, it attempts to answer the question of why, despite eternal failure,5 the 108th Congress proposed and considered two jurisdiction-stripping bills, the Marriage Protection and Pledge Protection Acts.6 Unlike other academic musings on the jurisdiction-stripping topic, this Note does not presume success for either the Marriage Protection Act of 2004 or the Pledge Protection Act of 2003; failure of these bills is a central premise of the analysis, comfortably assumed given the past track record of congressional efforts to curtail federal court jurisdiction.7 This Note will reconsider the idea that "congressional reaction to issues of federal jurisdiction has always been fitful and ... the fits are usually induced by strong pressures imposed by particular events or by powerful constituencies that seek to influence results in particular causes that concern them."8 A three-part analysis will present a political model of congressional behavior and then apply that model to make sense of the seemingly futile congressional efforts supporting these two jurisdiction-stripping bills. Part I lays out the theoretical underpinnings of the Political Systems Theory, an undercurrent to this Note's discussion of congressional persistence in proposing jurisdiction-stripping bills. Part II discusses the regime rules associated with jurisdiction stripping. Part DT. A presents the views other legal scholars have on congressional attempts to limit jurisdiction. Part II.B develops the proposal that Congress is more likely to propose jurisdiction-stripping bills because they are destined for failure. This Note then concludes with the proposition that the 108th Congress's jurisdiction-stripping bills were proposed to create low-cost opportunities for members with staunch positions on same-sex marriage or the role of deity in the Pledge of Allegiance to continue to assign their values when all other alternative forums had been defeated. I. CONGRESS AS A SYSTEM This Note adopts David Easton' s Political Systems Theory framework.9 "Political Systems," like the United States government, have "basic unit interactions [which] are highly dependent upon and interrelated with one another and which as a set exhibit boundary-maintaining characteristics . . .[,] striving] to maintain the system's integrity and cohesion."10 The crux of the theory asserts that: Every political system exists within and is affected by the physical, biological, social, economic, and cultural environments ___ |l]ts interactions deal with the authoritative allocation of values for a society; . …

Journal Article
TL;DR: In this article, the birth mother is empowered to decide whether she will be the child's sole legal parent or not, and she is not constrained by presumptions in favor of her spouse or the child' s biological father.
Abstract: INTRODUCTION Professor Dwyer asked participants in this symposium to imagine a new way to identify parents at the birth of a child. His particular request to me was to imagine a system that puts the interests of the child first in the context of the many children who are born into poverty. As embarrassing as it must be to this very wealthy country, millions of children live in poverty,1 so Professor Dwyer' s question is a serious one. My effort here is to give it a serious answer. My proposal centers on the birth mother because, in my view, doing what is good for young children usually means doing what seems best to the child's key caretaker. In the case of infants, the key caretaker is almost always the birth mother. Under my proposal, she is empowered to decide whether she will be the child's sole legal parent or whether she will designate another as her parental partner. If she decides to designate a partner, she can designate whomever she wants; she is not constrained by presumptions in favor of her spouse or the child' s biological father. If she decides not to designate a partner, or if someone not designated wants to be designated, a court can overrule her decision only in narrow circumstances designed to protect her capacity to act in the child's best interests. Over the next few pages, I attempt to explain how my proposal would affect current rules in regard to child support, illegitimacy, adoption, co-parenting grandparents, stepparents, and same-sex couples. I argue that the changes work to the benefit of most of the children who are born to low-income mothers. The solution I propose may seem reasonable to some and absurd to others; fortunately, the conventions of academic discourse allow that to happen. What is important is that we use our imaginations to make new solutions possible and that we all keep talking until we come to a solution upon which we can begin to agree. I. PROPOSED STATUTORY LANGUAGE 1. Definitions a. "Parent" includes the woman who gives birth to the child and the designated parental partner. i. If the child is adopted, the child's adoptive parent or parents are the child's sole parent or parents. ii. Each parent is the natural guardian of the child and bears all the responsibilities of a parent. b. "Eligible person" includes: i. the mother's partner through marriage or civil union; ii. the child's biological father [except in the case of a sperm provider who has no claim to parenthood under applicable state law]; or, iii. any other natural person who has provided the mother with significant material and non-material support during the pregnancy and after the birth of the child. 2. A child is the child of: a. the woman who gives birth to the child; and b. the person designated by the woman as her parental partner, if any. c. The designation may occur before or after the birth of the child. d. To make a designation, the woman must: i. identify the partner on the form created for that purpose by the bureau of vital statistics of the state in which the child's birth is recorded and file the form with the bureau; and ii. inform the designated partner of the designation by mailing a copy of the form to the last known address of the designated partner. e. A woman may not be required to designate a parental partner. f. A designation may be revoked if the woman i. revokes the designation within thirty days after the birth of the child; and ii. informs the designated partner and the bureau of vital statistics of her decision to revoke the designation within thirty-five days after the birth of the child. iii. Notice of the decision to revoke must be mailed to the designated partner by mail to the last known address of the designated partner. 3. Person Not Designated as Parental Partner a. After the child is born, but no more than sixty days after the birth of the child, eligible persons not designated as the parental partner by the child's mother may petition to be named parental partner. …

Journal Article
TL;DR: The landscape of nineteenth-century civil rights law would seem alien to someone steeped in the concepts of our own time as mentioned in this paper, and this sort of environment may seem quaint at best, slightly barbaric at worst.
Abstract: INTRODUCTION The landscape of nineteenth-century civil rights law would seem alien to someone steeped in the concepts of our own time. Bible readings were commonplace in the public schools; Sunday laws prohibited labor and commerce on the Lord's day; blasphemy prosecutions curbed the tongues of those who spoke against religion; and many of the period's most august lawyers believed that it was the job of the state to promote Christian morality. From a twenty-first-century perspective, this sort of environment may seem quaint at best, slightly barbaric at worst. Our age has done much to separate religion from public institutions, and we now treat as "rights" conduct that the nineteenth century would never have dreamed of protecting, such as homosexual relations, abortion, and contraception. We debate "new" rights, such as the right to die and the right to same-sex marriage, that would have been unthinkable in an earlier time. We live in a society in which constitutional rights are ever-expanding, and in which law is a tool to guard not only our physical freedoms, but also our more spiritual imperatives - what the Supreme Court has taken to calling our "concepts] of existence, of meaning, of the universe, and of the mystery of human life."1 For these reasons, it is tempting to think of modern rights law as an evolution, in the course of which we have made gains in human dignity and cast off the constraints of an earlier period. This view is reflected in the judgment of some scholars that nineteenth-century jurists were unconcerned with individual rights or too preoccupied with economic matters to worry about personal liberty.2 It is true that the nineteenth-century courts were not nearly as active as those of the twentieth in defining and expanding civil rights. But this was not the result of neglect. Rather, it was a product of very different expectations of individuals and of the law itself, heavily influenced by Protestant individualism and a resultant distinction between belief and behavior. This article is an attempt to recover the legal and cultural context of individual liberties in nineteenth-century America and to explain how it was that the Americans of one age, living under the same set of constitutional principles as we, could differ so dramatically from us in how they honored those principles. In exploring these questions, I will emphasize three major themes of this era: Protestant Christianity, majoritarianism, and personal autonomy, which together gave rise to a distinctive vision of the nature of civil rights and the role of law in their exercise and enforcement. The nineteenth century inherited a powerful Protestant tradition. The Puritans, for instance, had spent generations governing a large portion of America on expressly Christian principles. Even outside New England, state-established churches were the rule, not the exception, for most of the eighteenth century. By the nineteenth century, church and state had been officially separated through constitutional guarantees of freedom of conscience and the formal disestablishment of the state churches. But Christianity by no means disappeared from public life. Americans remained overwhelmingly Protestant, and they expressed their religious culture through laws enforcing Protestant standards of behavior. Sunday laws, prayer in schools, and religious qualifications for public office, to name a few, were manifestations of the Protestant influence. Laws enforcing religious norms were generally upheld by the courts because to strike down such laws would be to interfere with the majority's religious freedoms. Thus, while government could not dictate belief, it could dictate behavior in the name of the dominant culture, even to those who did not themselves believe. The tension between this majoritarianism and the religious freedom of minorities was resolved by a belief in individual moral autonomy. The Protestant tradition had long emphasized the importance of individual effort in seeking salvation. …

Journal Article
TL;DR: Takings: Private Property and the Power of Eminent Domain this article is a seminal work in the history of the theory of private property and the power of eminent domain in the United States.
Abstract: I. WHY TAKINGS In these short remarks, I hope to assess Richard Epstein's scholarly legacy by evaluating the legacy of his book Takings: Private Property and the Power of Eminent Domain} I do so for a few reasons. One relates to my own interests. While I am honored to contribute to this tribute to Professor Epstein, I am exceedingly conscious of how little I know of the many areas on which he has written. In most of those areas, I can highlight my own ignorance more easily than I can identify any shortcomings in Professor Epstein's work. Since I have written considerably about takings, I prefer to focus there and discreetly distract attention away from my ignorance elsewhere. My other reason for focusing on Takings relates to Professor Epstein. If he is going to be judged by any single work, Takings is probably that book. Takings is now twenty years old. Professor Epstein once told me that nine books out of ten are not cited within a decade of their publication. Since Takings is still getting cited (or, if you like, vilified) two decades after its publication, it seems fair to survey the influence it has had (or, if you like, the damage it has wrought). II. TAKINGS' S CONTROVERSIAL LEGACY If you think I jest when I use terms like "vilified" and "damage wrought," consider the reaction that Takings provoked immediately after its publication. In prominent reviews, by respectable and otherwise quite thoughtful scholars, Takings was called "a disturbing book,"2 a "patent and howling failure,"3 and an "intellectual wasteland."4 Peg Radin described its style of argument as "philosophical camel-swallowing."5 Frank Michelman dismissed the kind of property theorizing associated with Epstein' s project as "obtuseness."6 And those criticisms are the quick dismissals, not the jeremiads. "The book's only useful contribution," Mark Kelman decried, "may be to expose more fully the moral venality and intellectual vacuity of formal, legalized libertarianism."7 Kelman' s hostility paled in comparison to that of leading property theorists, who intuited that Takings unsettled how legal scholars have talked about property for generations. Joseph Sax sputtered that Epstein is a "prisoner of an intellectual style so confining and of a philosophy so rigid that he has disabled himself from seeing problems as beyond the grasp of mere formalism."8 And, for my personal favorite, Thomas Grey fulminated that "Takings belongs with the output of the constitutional lunatic fringe, the effusions of gold bugs, tax protestors, and gun-toting survivalists."9 III. TAKINGS AND TAKINGS DOCTRINE BETWEEN 1985 AND 2002 If two or three critics dismiss a book as a polemical screed, the book probably is a screed. But if many leading academics make such accusations, and continue to do so long after the book has been released, the book probably has struck a raw and important nerve. Takings struck such a nerve. I doubt I can give a comprehensive explanation of all the reasons why Takings was so controversial. In this Essay, let me focus on two reasons that seem to me in hindsight particularly important. One reason is doctrinal. While Takings was primarily a theoretical work,10 Epstein illustrated his theory by applying its lessons to constitutional takings doctrine. In doing so, Epstein made a surprisingly persuasive case that federal takings doctrine could support most of the principles that informed preNew Deal "Lochnerism."11 Lochnensm refers to Lochner v. New York12 and the collection of substantive due process doctrines by which pre- 1937 federal courts declared invalid laws that unreasonably interfered with natural-law-based individual property and liberty rights. 13 Of course, when I call Epstein' s case "persuasive," I do not mean that he convinced all readers. But many lawyers and the U.S. Supreme Court have invested a great deal of intellectual capital in the principle that Lochnerism was discredited in 1937, then and forevermore. …

Journal Article
TL;DR: In the case of Wisconsin v. Yoder as discussed by the authors, the parents were members of conservative Amish denominations (the Old Order Amish and the Conservative Amish Mennonite Church) and they insisted that education beyond the eighth grade was contrary to their religion and way of life.
Abstract: INTRODUCTION In 1 968, Jonas Yoder, Wallace Miller, and Adin Yutzy refused to enroll their children in high school. The parents were tried and convicted of violating Wisconsin' s compulsory attendance law, which required schooling until age sixteen, and they were fined five dollars each.1 They appealed on the grounds that the compulsory attendance law, as applied, violated their right to the free exercise of their religion. The parents were members of conservative Amish denominations (the Old Order Amish and the Conservative Amish Mennonite Church2), and they insisted that education beyond the eighth grade was contrary to their religion and way of life. The Wisconsin Supreme Court found this infringement impermissible and overturned their conviction.3 On appeal, the United States Supreme Court affirmed.4 The Court, per Chief Justice Burger, found that "Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith."5 The Court balanced this belief against the state's interest in secondary education6 and concluded that the educational interests of the state were outweighed by the religious beliefs of the parents. It thus held that "the First and Fourteenth Amendments prevent the State from compelling [the parents] to cause their children to attend formal high school to age 16."7 Wisconsin v. Y oder presented the Court with a sharp clash between the state's interest in social reproduction through education - that is, society' s interest in using the educational system to perpetuate its collective way of life among the next generation - and the parents' interest in religious reproduction - that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge ofthat clash. I shall refer throughout to the question of when, if ever, parents have a religious freedom-based claim to exempt their children from part or all of a state-mandated educational requirement as "the Yoder question," but the inquiry is not focused on the facts of the case itself. Rather, I shall engage with the competing theories put forward by scholars and judges who believe in a broad right of religious reproduction, trumping the state's interest in social reproduction ("Yoder supporters") and scholars and judges who believe that the interest in social reproduction should tramp contrary claims by insular religious groups ("Yoder opponents"). I will suggest that each of the major competing theories is fundamentally flawed, and I will offer an alternative analysis based on communitarian and democratic values. It is especially important that we continue to think through these issues because Yoder by no means settled the Yoder question. As debates continue to rage about issues like the teaching of evolution, creationism, or intelligent design in public schools,8 it remains clear that our society continues to struggle with the proper line between societal and parental control over education. It should also be noted that this is an area of constitutional law in which originalist methodologies give scant guidance-education was not seen as a state function in the early republic.9 Prior to the passage of the Fourteenth Amendment, the reUgion clauses of the First Amendment applied only to the federal government,10 and education was certainly not seen as a federal function. Our analysis wiU thus have to rely on other interpretive methodologies, including a consideration of the poUtical values underlying our conceptions of reUgious freedom and education. The democratic-communitarian analysis of the Y oder problem offered in this Article begins with the communitarian intuition that social subjects are constituted by multiple sources of value - everything from low-level value sources Uke families and churches to higher-level sources like political parties and nations - and that a rich diversity of value sources is important and worth fostering. …

Journal Article
TL;DR: Forfeiture by wrongdoings has been studied extensively in the legal community since the Crawford decision as discussed by the authors, which holds that an unavailable witness's out-of-court "testimonial" statements do not satisfy the Sixth Amendment unless the defendant has the opportunity to cross-examine the declarant.
Abstract: INTRODUCTION A. Crawford and "Forfeiture " by Wrongdoing Crawford v. Washington1 redefined the Supreme Court's Confrontation Clause jurisprudence and has given unexpected prominence to the rule now known as "forfeiture" by wrongdoing. That doctrine holds that a criminal defendant responsible for a witness's unavailability at trial cannot object to the admission of the absent witness' s hearsay testimony.2 The "forfeiture" doctrine is the only broad exception to Crawford's holding that an unavailable witness's out-of-court "testimonial" statements do not satisfy the Sixth Amendment unless the defendant has the opportunity to cross-examine the declarant.3 Many excited utterances or statements against penal interest or for purposes of medical treatment that were admissible under Ohio v. Roberts4 now are inadmissible because the declarant was not subject to cross-examination. Prosecutions for domestic violence, child abuse, and criminal conspiracies often rely on the hearsay statements of absent and unavailable witnesses. These cases are particularly affected by Crawford because the victims often are unavailable, reluctant to testify, prone to recant prior statements, or, by reason of tender age, may be unlikely to testify.5 The full ramifications of Crawford depend on how the courts ultimately define two key terms in the opinion. The most critical issue is the definition of "testimonial," because only those statements must be subject to cross-examination at some point in order to be admissible.6 Justice Scalia cited three possible and overlapping definitions. The first was "'ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to beusedprosecutorially.'"7 The second includes '"extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'"8 The third definition is '"statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'"9 The courts are now grappling with how to define "testimonial" and how to apply it in many interactions with the police - from 9 1 1 calls to police inquiries upon arriving at the scene. Significantly, the first post-Crawford cases heard by the Supreme Court involve those issues.10 This issue is beyond the scope of the Article. However defined, Crawford establishes a categorical rule: testimonial statements must be subject to cross-examination at some point to be admissible, even though they might satisfy an exception to the rule against hearsay or otherwise be found reliable.1 1 Prosecutors are seeking a narrow, and defense counsel a broader, definition of "testimonial." A similar process, with the roles reversed, is occurring with defining the forfeiture concept because it may override Crawford's prohibition on the admission of testimonial statements by unavailable witnesses, however testimonial is defined. The lower federal courts have articulated a narrower version of the rule over the last thirty years. As embodied in case law, and as an evidentiary principle in Federal Rule of Evidence 804(b)(6), the loss of constitutional and evidence-based objections under the waiver doctrine requires proof that the defendant intended to prevent the witness from testifying.12 After Crawford, a broader version of the rule is gaining currency in the courts. That version relies on a forfeiture rationale. The defendant loses any confrontation rights if he is responsible in any way for the absence of the witness at trial, regardless of his intent.13 The Supreme Court has not faced the issue yet, and the discussion in Crawford is scant. Iustice Scalia mentioned "forfeiture" by wrongdoing only to differentiate Crawford' s reasoning from the reliability analysis of Ohio v. …

Journal Article
TL;DR: A number of legal standards have been proposed for the appropriate legal standards in cases involving competing claims of parenthood as discussed by the authors, where two or more adults seek to assume the emotional, financial, and caretaking role in a child's life.
Abstract: INTRODUCTION Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier, or other bases.1 Paternity cases, while a more established segment of the court docket, have also become more complex. The weakening of the marital presumption, increased accessibility and reliability of genetic testing, and the rise in children born outside of marriage have made court intervention in paternity establishment more common.2 Cases involving the law's role in resolving parentage issues arise in a variety of contexts. Much has been written about the appropriate legal standards in cases involving competing claims of parenthood.3 In these "competing claims" cases, courts or legislatures are called upon to confer rights and responsibilities among two or more adults seeking to assume the emotional, financial, and care-taking role in a child's life.4 Some of these cases involve garden-variety adultery in which a father discovers he is not the biological father of a child born during his marriage to the child' s mother.5 Increasingly, however, competing claims cases involve parental relationships created from artificial reproductive technology (ART), or adoption, or both.6 These cases occur in a variety of family structures: families with heterosexual married parents, same sex couples, and single parents. What they all have in common is that, given the costs of the legal or medical interventions involved, there are, among the claimants, at least one or two potential parents with substantial resources.7 The debate about the best choice for children when adults are competing for parental status is ongoing, lively, and filled with many voices. There are a variety of options presented to judges or lawmakers in these situations. They can take an all-ornothing approach and assign exclusive parenthood to one adult based upon a range of factors, including marital status,8 biology,9 contractual intent,10 history of caretaking,11 and emotional attachment with the child.12 Or the law can allow more than one adult to share the rights and responsibilities of being a father or mother.13 While courts have taken a variety of approaches in resolving these cases, decisions usually turn on interpretations of contracts, custody, adoption, or parentage law.14 Increasingly, the principles in the Uniform Parentage Act (UPA)15 or state variants of the UPA16 are being adapted to address these cases. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to serve as the legal mother or father. For fathers, these cases frequently arise in the context of establishing (or, in some cases, disestablishing) the paternity of children of unmarried parents.17 For mothers, these cases most often arise in the context of determining their legal status as biological mothers when the state has identified them as being at risk for abusing or neglecting their children.18 These cases almost always involve mothers or fathers who are poor, often members of minority groups, and usually without legal representation in parentage establishment and/or disestablishment proceedings.19 In these "orphan" cases, the governing rules or legal standards chosen by the legislature or courts will not be used to choose among potential parents; rather, the issue is whether anyone will serve as a child's parent. The law' s response in both categories of cases will have an impact on the welfare of the children involved. In competing claims cases, the best interests of children seem to be served by policies that preserve relationships between children and the fit, loving adults in their lives rather than policies that rely on narrow definitions of parenthood based on marriage or biology alone. …

Journal Article
TL;DR: The legal foundations of the commissions themselves and questions whether their creation was constitutionally permissible under the separation of powers doctrine have been analyzed by as mentioned in this paper, who argued that military commissions are not a violation of the separation-of-powers doctrine.
Abstract: INTRODUCTION Many recent nonfiction writings contemplate recent history with one watershed event: the catastrophic terrorist attacks of September 11, 2001. Whether in social commentary, political discourse, or even economic calculation, the attacks have generated debate on not only the appropriateness of the resulting Global War on Terror ("GWOT"), but also future ramifications of any newly-set precedent. Not surprisingly, the law and the legal profession have played prominent roles in these debates. Recently, many legal scholars have focused their attention on the ongoing' military commissions trying enemy combatants captured in the GWOT and held in Guantanamo Bay, Cuba. President George W. Bush authorized the creation of military commissions in the "Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."2 In section 1(e) of this order, the President stipulated that "individuals subject to this order ... be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals."3 Less than two months after this declaration, the first detainees captured in the GWOT were transferred to Guantanamo Bay.4 This Note analyzes the legal foundations of the commissions themselves and questions whether their creation was constitutionally permissible under the separation of powers doctrine. Those who argue in the affirmative contend historical precedent and a series of United States Supreme Court decisions have crystallized the President's ability to create the commissions.5 Conversely, those who argue in the negative contend that the President has overstepped his bounds and that the detainees are entitled to process in traditional U.S. courts.6 Following a deeper consideration of these differing viewpoints, this Note proposes that military commissions are not a violation of the separation of powers doctrine for three reasons: (1) the President was acting pursuant to powers historically afforded to the Commander-inChief; (2) Congress has traditionally deferred to the Commander-in-Chief in this regard; and (3) the courts have crystallized the ability of the President to create military tribunals in cases such as Ex Pane Quirin, which is applicable to the detainees in Guantanamo Bay. I. A BRIEF LEGAL HISTORY OF THE GLOBAL WAR ON TERROR The Global War on Terror formally began in September 200 1,7 but the American government had been fighting skirmishes against terrorism for at least a decade prior.8 While it is beyond the scope of this Note to consider each of these encounters specifically, it is important to consider the general legal methods used by the United States to address past acts by terrorist groups, particularly Al Qaeda. The United States has been legally dealing with Al Qaeda, and persons associated with Al Qaeda, for over seventeen years.9 Initially, the government's preferred legal tactic against these individuals was criminal law:10 through long-arm maneuvering, the government filed federal statute-based charges in federal district court.11 Indeed, "[detention of an Al Qaeda member as an enemy combatant was not contemplated. Rather, restraint on Al Qaeda' s freedom of action was sought only where intelligence reports could be fleshed out .... no one contemplated that we could hold him as a combatant in an ongoing conflict .... "12 In short, because the acts of terrorism in the previous decade13 occurred outside the mantle of war, declared or undeclared, conventional wisdom prescribed that any perpetrators should be handled by courts in the same manner as other peacetime criminals. This paradigm of domestic judicial intervention shifted following the terrorist attacks of September 11, 2001 .14 Within months of this incident, President Bush, in his response to the terrorist attacks, took many legal steps which laid the foundation for taking the legal fight against newly captured Al Qaeda terrorists out ofthe haven of U. …

Journal Article
TL;DR: The notion of political division along religious lines has been used by many scholars, such as as mentioned in this paper, to argue that the First Amendment authorizes, but not necessarily requires, political divisiveness on religious lines.
Abstract: Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive [Iy]" - and, therefore, unconstitutionally - "entangle" government and religion,1 not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential."2 He worried that government actions burdened with this "potential" pose a "threat to the normal political process"3 and "divert attention from the myriad issues and problems that confront every level of government."4 And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."5 Accordingly, he concluded that the parochial-school-funding programs under review in Lemon were unconstitutional, not only because they "foster[ed] an impermissible degree of entanglement" between government and religion,6 but also because they were likely to "intensify]" "[pjolitical fragmentation and divisiveness on religious lines."7 As I have described in detail elsewhere,8 Chief Justice Burger's view that the First Amendment not only authorizes, but also invites, judges to look to their observations and predictions of political division along religious lines for the enforceable content of the Establishment Clause has, since Lemon, been endorsed and employed by many scholars, judges, commentators, and citizens, in many cases and contexts. More generally, the claims that America is divided and religion is divisive are unavoidable in - indeed, they animate and shape - much of what is said and written today about law, politics, religion, and culture. We have all seen the maps and survey results that are said to reveal - or, maybe, to construct - our 'Two Americas"9: Red and Blue, Metro and Retro,10 "United States of Canada" and "Jesusland."11 And, we have all heard, time and again, about the "culture wars"12 pitting - in the words of one of our more clear-eyed social observers - "racist fascist knuckle-dragging NASCAR-obsessed cousin-marrying roadkill-eating tobacco-juice-dribbling gun-fondling religious fanatic rednecks" against "godless unpatriotic pierced-nose Volvo-driving Franceloving left-wing communist latte-sucking tofu-chomping holistic-wacko neurotic vegan weenie perverts."13 True, many social scientists have questioned the post-Bush v. Gore "Red v. Blue" thesis, and suggested that, in fact, our country and communities come in a wide range of purple shades.14 Still, the "religion is divisive" meme continues to spread through and to shape both litigation and public conversations. For example, Justice David Souter observed not long ago that "[w]e are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable."15 Indeed, according to a prominent philosopher, Richard Dawkins, "[o]nly the willfully blind could fail to implicate the divisive force of religion in most, if not all, of the violent enmities in the world today."16 Former Senator and Ambassador John Danforth (who is also an Episcopal priest), is not quite so harsh, but still warns that while, "[a]t its best, religion can be a uniting influence, ... in practice, nothing is more divisive."17 In addition, prominent jurists and scholars continue to urge that the asserted tendency of a particular policy to cause, or to reflect, religion-related divisiveness may and should be taken into account by judges asked to evaluate its constitutional validity. Indeed, the argument that what Chief Justice Burger called "political division along religious lines"18 is constitutionally significant, as well as politically, culturally, or aesthetically troubling, appears to be enjoying something of a comeback after a time on the doctrinal back burner.19 Justice Breyer, for example, in his crucial concurring opinion in one of the recent Ten Commandments cases, identified "avoiding] that divisiveness based upon religion that promotes social conflict" as one of the "basic purposes of [the Religion] Clauses. …