The law needs music, a truth revealed by revisiting the United States Supreme Court’s opinion in NAACP v. Button through the songs of Bob Dylan and Sandra Seaton’s play Music History. The Court decided Button in 1963, just a few months before the debut of Dylan’s acclaimed album, The Freewheelin’ Bob Dylan. In Button, the Court held that the First Amendment protected the NAACP’s legal assistance to individuals for the enforcement of constitutional and civil rights. The decision was a victory for the NAACP, yet success in the courtroom did not translate entirely to success on the ground. Indeed, in the same year, NAACP Mississippi Field Secretary Medgar Evers was assassinated, and the Birmingham Sixteenth Street Baptist Church was bombed. These events serve as reminders of law’s inadequacies, in that the constitutional protection of legal services in Button did little to stop the needless loss of life and violence that was characteristic of racial desegregation efforts. Not only did tragedy persist, but the NAACP’s long-term vision for racial equality has never been completely realized. Playwright Sandra Seaton focuses on the law’s inadequacies in her drama Music History, also set in the turbulence of 1963. Her characters endure the law’s failings firsthand when a University of Illinois student, Walter, the beloved of Etta, is killed during his work on the voter rights campaign in Mississippi. Music of the 1960s captured the struggle inherent in attempts to achieve equality when the law proved impotent, particularly as evidenced by Bob Dylan’s work in 1963. This Essay, written for the Fordham University School of Law Bob Dylan and the Law Symposium, offers three connections between the law and music using the works of Dylan and Seaton as illustrations. First, music criticizes the existing cultural and legal regime in a manner that empowers social change in the wake of the law’s failure. Second, while the Button legal opinion memorialized the history of the civil rights era, music (and Seaton’s Music History) continue to influence modern culture in a more pervasive way. Third, Button, Dylan, and Seaton remind us about the importance of exercising our free speech rights, whether the speech involves offering legal assistance to minorities shut out from the political process at the ballot box, singing a song silenced by record and television network executives, or recreating history through drama. In short, we see why the law needs Bob Dylan and Music History.
{"title":"Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan","authors":"Renee Newman Knake","doi":"10.2139/SSRN.1965501","DOIUrl":"https://doi.org/10.2139/SSRN.1965501","url":null,"abstract":"The law needs music, a truth revealed by revisiting the United States Supreme Court’s opinion in NAACP v. Button through the songs of Bob Dylan and Sandra Seaton’s play Music History. The Court decided Button in 1963, just a few months before the debut of Dylan’s acclaimed album, The Freewheelin’ Bob Dylan. In Button, the Court held that the First Amendment protected the NAACP’s legal assistance to individuals for the enforcement of constitutional and civil rights. The decision was a victory for the NAACP, yet success in the courtroom did not translate entirely to success on the ground. Indeed, in the same year, NAACP Mississippi Field Secretary Medgar Evers was assassinated, and the Birmingham Sixteenth Street Baptist Church was bombed. These events serve as reminders of law’s inadequacies, in that the constitutional protection of legal services in Button did little to stop the needless loss of life and violence that was characteristic of racial desegregation efforts. Not only did tragedy persist, but the NAACP’s long-term vision for racial equality has never been completely realized. Playwright Sandra Seaton focuses on the law’s inadequacies in her drama Music History, also set in the turbulence of 1963. Her characters endure the law’s failings firsthand when a University of Illinois student, Walter, the beloved of Etta, is killed during his work on the voter rights campaign in Mississippi. Music of the 1960s captured the struggle inherent in attempts to achieve equality when the law proved impotent, particularly as evidenced by Bob Dylan’s work in 1963. This Essay, written for the Fordham University School of Law Bob Dylan and the Law Symposium, offers three connections between the law and music using the works of Dylan and Seaton as illustrations. First, music criticizes the existing cultural and legal regime in a manner that empowers social change in the wake of the law’s failure. Second, while the Button legal opinion memorialized the history of the civil rights era, music (and Seaton’s Music History) continue to influence modern culture in a more pervasive way. Third, Button, Dylan, and Seaton remind us about the importance of exercising our free speech rights, whether the speech involves offering legal assistance to minorities shut out from the political process at the ballot box, singing a song silenced by record and television network executives, or recreating history through drama. In short, we see why the law needs Bob Dylan and Music History.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"42 1","pages":"1303"},"PeriodicalIF":0.0,"publicationDate":"2011-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75571666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):• Civil rights• Inequality of the criminal justice system• Institutions• Governmental/judicial corruption• Equality and emancipation (political and economic) • Poverty, the environment, and Inequality of the civil justice system, and• The role of lawyers and the legal process.
{"title":"Tangled Up in Law: The Jurisprudence of Bob Dylan","authors":"M. Perlin","doi":"10.2139/SSRN.1908898","DOIUrl":"https://doi.org/10.2139/SSRN.1908898","url":null,"abstract":"A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):• Civil rights• Inequality of the criminal justice system• Institutions• Governmental/judicial corruption• Equality and emancipation (political and economic) • Poverty, the environment, and Inequality of the civil justice system, and• The role of lawyers and the legal process.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"60 1","pages":"1395"},"PeriodicalIF":0.0,"publicationDate":"2011-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84625811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.
{"title":"The Freewheelin' Judiciary: A Bob Dylan Anthology","authors":"Alex Long","doi":"10.2139/SSRN.1837683","DOIUrl":"https://doi.org/10.2139/SSRN.1837683","url":null,"abstract":"This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"12 1","pages":"1363"},"PeriodicalIF":0.0,"publicationDate":"2011-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75187212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In U.S. asylum, there are significant differences among the federal circuit courts' approaches to defining "particular social group". These differences come from the circuit courts' use of different legal tests to define "particular social group". The different approaches to defining PSG have led to a circuit split between the Seventh Circuit, the Ninth Circuit, and the circuit courts that follow the Board of Immigration Appeals. This Note analyzes the definition of PSG in asylum law, and examines the various tests that different circuit courts use to define PSG.
{"title":"Do I Need to Pin a Target to My Back?: The Definition of 'Particular Social Group' in U.S. Asylum Law","authors":"Nitzan Sternberg","doi":"10.2139/ssrn.1797265","DOIUrl":"https://doi.org/10.2139/ssrn.1797265","url":null,"abstract":"In U.S. asylum, there are significant differences among the federal circuit courts' approaches to defining \"particular social group\". These differences come from the circuit courts' use of different legal tests to define \"particular social group\". The different approaches to defining PSG have led to a circuit split between the Seventh Circuit, the Ninth Circuit, and the circuit courts that follow the Board of Immigration Appeals. This Note analyzes the definition of PSG in asylum law, and examines the various tests that different circuit courts use to define PSG.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"45 10 1","pages":"246"},"PeriodicalIF":0.0,"publicationDate":"2011-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83108701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Some recommendations from the National Research Council's 2009 Report on forensic science are relatively clear and easy to endorse, such as the need for validation research, accreditation, certification, and standardization of reporting. This paper takes on a more difficult question, the Report's call for forensic science to adopt a "scientific culture." The paper rejects the notion that there is any unitary "culture" that applies to all activities labeled "scientific" any more than there is a unitary thing called "science" or a unitary "scientific method." Nonetheless, there is still a utility to thinking about how a broader notion of "scientific culture" might apply to forensic science. The paper endeavors to do so by conceptualizing what is conventionally labeled "forensic science" into a series of tasks. The paper argues that we should desire different skills, virtues, and norms of behavior from individuals who perform different forensic tasks. The paper concludes by positing an analogy between forensic science and medicine. The paper suggests that the relationship between medical researchers, clinicians, and technicians offers a reasonable model for forensic science in conceptualizing the differentiation of tasks and the relationship between individuals playing different task-roles.
{"title":"ACCULTURATING FORENSIC SCIENCE: WHAT IS ‘SCIENTIFIC CULTURE’, AND HOW CAN FORENSIC SCIENCE ADOPT IT?","authors":"S. Cole","doi":"10.2139/SSRN.1788414","DOIUrl":"https://doi.org/10.2139/SSRN.1788414","url":null,"abstract":"Some recommendations from the National Research Council's 2009 Report on forensic science are relatively clear and easy to endorse, such as the need for validation research, accreditation, certification, and standardization of reporting. This paper takes on a more difficult question, the Report's call for forensic science to adopt a \"scientific culture.\" The paper rejects the notion that there is any unitary \"culture\" that applies to all activities labeled \"scientific\" any more than there is a unitary thing called \"science\" or a unitary \"scientific method.\" Nonetheless, there is still a utility to thinking about how a broader notion of \"scientific culture\" might apply to forensic science. The paper endeavors to do so by conceptualizing what is conventionally labeled \"forensic science\" into a series of tasks. The paper argues that we should desire different skills, virtues, and norms of behavior from individuals who perform different forensic tasks. The paper concludes by positing an analogy between forensic science and medicine. The paper suggests that the relationship between medical researchers, clinicians, and technicians offers a reasonable model for forensic science in conceptualizing the differentiation of tasks and the relationship between individuals playing different task-roles.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"2 1","pages":"435"},"PeriodicalIF":0.0,"publicationDate":"2010-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85787967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We examine several aspects of the more guns, more murder hypothesis. We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives. Societies without guns are not typically peaceful and safe. Historically, more guns are associated with less murder. Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations. In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.
{"title":"Heller, McDonald, and Murder: Testing the More Guns = More Murder Thesis","authors":"Don B. Kates, C. Moody","doi":"10.2139/SSRN.1585869","DOIUrl":"https://doi.org/10.2139/SSRN.1585869","url":null,"abstract":"We examine several aspects of the more guns, more murder hypothesis. We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives. Societies without guns are not typically peaceful and safe. Historically, more guns are associated with less murder. Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations. In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"48 1","pages":"1421"},"PeriodicalIF":0.0,"publicationDate":"2010-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78246394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court's cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent's more majestic view of the exclusionary rule, because the dissent's approach (1) cannot account for the law's response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages o
最高法院的法官们就排他规则划定了新的战线。在Hudson v. Michigan, 547 U.S. 586(2006)一案中，五名大法官以压倒性多数否决了强烈的反对意见，再次对该规则提出了熟悉的批评。就在今年一月，在赫林诉美国案中，129 s.c.。695(2009)，法官们再次以5比4的票数投票。这一次，持不同意见的人提出了更高的要求，他们辩称，法院在适用该规则时采用的成本效益方法是错误的。自布伦南法官离开最高法院以来，一些法官首次提出了更广泛的排除理由，包括对司法廉正、司法审查以及对官方行为的长期和间接影响的担忧。这篇文章挑战了哈德逊和赫林的大多数观点，因为它们在规范上是错误的，在经验上也没有得到支持。从规范上讲，罪犯的逃脱是第四修正案的代价，而不是任何执行该修正案的补救措施的代价。排除的唯一合理成本是可能的过度威慑，以谨慎的方式定义:在合法性不确定的一堆案件中阻碍合法行为。然后，文章针对报告不同类型搜查和扣押的命中率的经验证据测试了过度威慑假设。目前的第四修正案救济组合似乎没有过度威慑，实际上似乎对某些类型的低成本违反第四修正案的行为威慑不足。这篇文章还批评了赫林案异议者对排除规则的更为庄严的观点，因为异议者的方法(1)不能解释法律对非法搜查和扣押的无辜受害者的反应;(2)未考虑其他补救措施，包括基于威慑的排除规则;(3)与针对警察侵权行为的善意豁免抗辩相冲突，构成过度威慑的威胁;而且，最根本的是，(4)错误地认为第四修正案权利的性质胜过其他有效的刑法对私人行为的适用，即作为秘密犯罪的权利。最后，本文提出了对现行排除规则实践的改进，即虚拟威慑方法。根据这种方法，在压制证据(或在例外情况下承认有污染的证据)之前，法院应要求说明司法部采取了哪些具体的补救措施，通过培训、纪律或记录保存等方式防止违规行为再次发生。在典型情况下，提案可能不值得额外增加一层程序复杂性。然而，当被指控的罪行特别严重时，或者当政府利用例外来排除法院认定违宪的行为成果时，虚拟威慑可能会增加警察对宪法要求的遵守，并减少罪犯逃脱的机会和歪曲事实和法律以避免此类司法不公的诱惑。政府可以选择拒绝采取补救措施，从而默许压制令，这为防止过度威慑提供了强有力的保障。
{"title":"The 'New' Exclusionary Rule Debate: From 'Still Preoccupied with 1985' to 'Virtual Deterrence'","authors":"Donald A. Dripps","doi":"10.2139/SSRN.1376480","DOIUrl":"https://doi.org/10.2139/SSRN.1376480","url":null,"abstract":"The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court's cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent's more majestic view of the exclusionary rule, because the dissent's approach (1) cannot account for the law's response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages o","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"2 1","pages":"743"},"PeriodicalIF":0.0,"publicationDate":"2009-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75366602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One recurring theme of the early Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to describe the contours of as-applied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of as-applied claims litigants can bring. This essay for a symposium on the future of public rights litigation assesses the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional rights litigation. I argue that the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence-with respect both to the Court's understanding of what constitutes an as-applied challenge, the scope of the Court's remedial authority to carve away a measure's unconstitutional dimensions, and strategic use of the facial versus as-applied distinction. In particular, despite some language to the contrary, the Court dos not appear to be excluding pre-enforcement as-applied challenges or require that specific applications of a measure be challenged one at a time, requirements that would mark a notable deviation from existing precedent and raise substantial impediments to asserting constitutional rights in federal court. What does set the Roberts Court apart is its understanding of the substantive scope of particular constitutional rights. Not surprisingly, that substantive understanding plays a major role in determining the Court's rejection (and acceptance) of facial challenges in different contexts. As a result, to the extent these decisions signal greater obstacles to assertion of certain constitutional rights in the federal courts, those obstacles likely result as much, if not more, from retraction in the substantive scope of those rights as from general jurisdictional rules regarding the appropriate form of constitutional adjudication.
{"title":"Facial and As-Applied Challenges Under the Roberts Court","authors":"Gillian E. Metzger","doi":"10.2139/SSRN.1338895","DOIUrl":"https://doi.org/10.2139/SSRN.1338895","url":null,"abstract":"One recurring theme of the early Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to describe the contours of as-applied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of as-applied claims litigants can bring. This essay for a symposium on the future of public rights litigation assesses the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional rights litigation. I argue that the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence-with respect both to the Court's understanding of what constitutes an as-applied challenge, the scope of the Court's remedial authority to carve away a measure's unconstitutional dimensions, and strategic use of the facial versus as-applied distinction. In particular, despite some language to the contrary, the Court dos not appear to be excluding pre-enforcement as-applied challenges or require that specific applications of a measure be challenged one at a time, requirements that would mark a notable deviation from existing precedent and raise substantial impediments to asserting constitutional rights in federal court. What does set the Roberts Court apart is its understanding of the substantive scope of particular constitutional rights. Not surprisingly, that substantive understanding plays a major role in determining the Court's rejection (and acceptance) of facial challenges in different contexts. As a result, to the extent these decisions signal greater obstacles to assertion of certain constitutional rights in the federal courts, those obstacles likely result as much, if not more, from retraction in the substantive scope of those rights as from general jurisdictional rules regarding the appropriate form of constitutional adjudication.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"198 1","pages":"773"},"PeriodicalIF":0.0,"publicationDate":"2009-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78754804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behavior are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combinations of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey, analogous to the National Crime Victimization Survey.
{"title":"The Need for a National Civil Justice Survey of Incidence and Claiming Behavior","authors":"T. Eisenberg","doi":"10.2139/SSRN.1305385","DOIUrl":"https://doi.org/10.2139/SSRN.1305385","url":null,"abstract":"Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behavior are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combinations of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey, analogous to the National Crime Victimization Survey.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"6 1","pages":"17"},"PeriodicalIF":0.0,"publicationDate":"2008-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73241361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As Pauline Nyiramasuhuko stood trial before the International Criminal Tribunal for Rwanda, the media seemed more focused on her gender than on the significance of her prosecution for crimes against humanity and genocide. As the first woman brought to trial for her role as a high-level organizer of the Rwandan genocide, Pauline was accused of ordering the rapes and murders of countless women and men. The press remarked on her appearance – that of “school teacher” or someone’s “dear great aunt.” Underneath these remarks was an assumption that women are purer, weaker, more subservient than men and therefore less capable of committing the kind of atrocities for which she stands accused. Those who view Pauline’s actions during the genocide as somehow inexplicable because of her gender ignore history and engage in the stereotypical thinking that perpetuates the special victimization of women. Women are subjected to especially heinous violence during conflict because of their otherness, their difference from the patriarchy that perpetuates conflict. Women and girls are violated to denigrate the men of another racial or ethnic group, to attack their perceived purity or the purity of their ethnic group, or used as a warrior’s reward. Pauline’s case shatters the myth that women, by their very nature, are incapable of being warriors. Perhaps her case can also shatter the myths about women that have left them especially susceptible to the kinds of violence carried out against women in the Rwandan genocide.
{"title":"Mother of Atrocities: Pauline Nyiramasuhuko’s Role in the Rwandan Genocide","authors":"C. Sperling","doi":"10.2139/SSRN.1662710","DOIUrl":"https://doi.org/10.2139/SSRN.1662710","url":null,"abstract":"As Pauline Nyiramasuhuko stood trial before the International Criminal Tribunal for Rwanda, the media seemed more focused on her gender than on the significance of her prosecution for crimes against humanity and genocide. As the first woman brought to trial for her role as a high-level organizer of the Rwandan genocide, Pauline was accused of ordering the rapes and murders of countless women and men. The press remarked on her appearance – that of “school teacher” or someone’s “dear great aunt.” Underneath these remarks was an assumption that women are purer, weaker, more subservient than men and therefore less capable of committing the kind of atrocities for which she stands accused. Those who view Pauline’s actions during the genocide as somehow inexplicable because of her gender ignore history and engage in the stereotypical thinking that perpetuates the special victimization of women. Women are subjected to especially heinous violence during conflict because of their otherness, their difference from the patriarchy that perpetuates conflict. Women and girls are violated to denigrate the men of another racial or ethnic group, to attack their perceived purity or the purity of their ethnic group, or used as a warrior’s reward. Pauline’s case shatters the myth that women, by their very nature, are incapable of being warriors. Perhaps her case can also shatter the myths about women that have left them especially susceptible to the kinds of violence carried out against women in the Rwandan genocide.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"1 1","pages":"637"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83180372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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