Ashar, Sameer M. and Opoku, Lisa F. "Justice O’Connor’s Blind Rationalization of Affirmative Action Jurisprudence-Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995)," 31 Harvard Civil Rights-Civil Liberties Review 223-40 (No. 1, 1996).

Argues that by imposing the strict scrutiny standard of review on all remedial affirmative action programs, the U.S. Supreme Court tears constitutional reasoning from history and context. The Court is taken thus to have preserved the current distribution of power through which racial and ethnic discrimination and socio-economic inequality are considered to persist.

Beschle, Donald L. "What’s Guilt (Or Deterrence) Got to Do with It?: The Death Penalty, Ritual, and Mimetic Violence," 38 William and Mary Law Review 487-538 (No. 2, January, 1997).

The article reviews the history of the U.S. Supreme Court’s jurisprudence on the constitutionality of the death penalty, and the reasons why standard arguments of both a retributivist and a consequentialist kind fail to justify it. The article then turns to the work of Reneé Girard, Professor of French at Stanford, and his theory of culture. Girard asserts a universal tendency to imitate others, which evolves into rivalry and then violence. The goal of cultural institutions is to stop this cycle before violence occurs. Specifically, Girard claims that violence can only be finally stopped by an officially sanctioned violent act, a highly ritualized killing. Only thus can the community be made whole. The article claims that recent U.S. social attitudes and practices concerning the death penalty fit Girard’s explanatory theoretical models. Girard’s work is said to present a difficult challenge to abolitionists-to find an equally powerful source of social cohesion, to take the place of the death penalty.

Bhagwat, Ashutosh. "Purpose Scrutiny in Constitutional Analysis," 85 California Law Review 297-369 (No. 2, March, 1997).

Bhagwat identifies a trend within recent Supreme Court cases toward an increased focus on the purposes that government seeks to advance through a piece of contested legislation. This is a departure from previous practice, which concentrated mainly on scrutiny of government means and on balancing the strength of government interests against individual rights. Bhagwat believes that this development is to be applauded, but holds that the Court needs to develop a constitutionally-grounded framework for scrutinizing govern-ment purposes to replace the ad hoc approach that it now employs. A jurisprudence of government interests and purposes may increase-Bhagwat believes-the coherence of constitutional doctrine and decisions.

Calhoun, Cheshire. "Sexuality Injustice," 9 Notre Dame Journal of Law, Ethics, and Public Policy 241-74 (1995).

Starting with the observation that standard liberal and Marxist analyses of gender and racial injustice rely heavily on the fact that targeted groups (women and people of color) are readily identifiable, Calhoun offers an alternative account of the kind of injustice to which lesbians and gay men are subject. The "place and number" approach under which injustice can be defined in terms of the disproportionate number of members of a targeted group who occupy relatively undesirable places in the socio-economic spectrum will not work for members of a group whose identity is not publicly visible. Instead of focusing on the direct disadvantaging effects of being treated as lesbian or gay, which can be applied only when the victim, in effect, first "announces" her or his sexual orientation, Calhoun focuses instead on the secondary effects felt as a consequence of our society’s practice of displacing homosexuality to outlaw status. She explores three dimensions of this form of injustice: the requirement that all citizens at least adopt a pseudonymous heterosexual identity as a condition of access to the public sphere (harms contingent upon being forced to stay in the closet); the development of social practices designed to reproduce heterosexual society by discouraging the "conception" of future generations of lesbian and gay people (the nature vs. nurture debate and consequent legal restrictions on gay parenting, employment in elementary education); and the legitimation of heterosexual society by developing criminalizing stereotypes as social constructs of gay and lesbian identity, which then serve to undermine the perception that gays and lesbians have a legitimate claim to full civic status.

Chambers, David L. "What If? The Legal Conse-quences of Marriage and the Legal Needs of Lesbian and Gay Male Couples," 95 Michigan Law Review 447-91 (1996).

A number of legal theorists advocating greater civil rights for homosexuals have contended that efforts to secure the right of same-sex marriage are misguided, either because the social institution of marriage has historically been engineered to reinforce patterns of patriarchal dominance which these theorists find abhorrent, or because many of the legal advantages currently associated with marriage discriminate unfairly against single people (e.g., with respect to tax liability, health care, adoption laws, etc.), and thus should not be condoned. Acknowledging this fact, Chambers undertakes the project of evaluating the prospective legal consequences of same-sex marriage from the perspective of lesbians and gays.

Chambers is not interested in exploring the obvious symbolic advantage which such "social ratification" would contribute to the ultimate goal of acceptance of lesbians and gays as equal citizens, which he concedes at the outset, and which he recognizes as the chief motivation for advocates of same-sex marriage. He argues that the emphasis on this symbolic significance has distracted us from attending to actual legal consequences. On this score however, Chambers concludes that, on balance, the legal benefits of marriage far outweigh the legal burdens. This is especially true, and arguably appropriate, in the areas of spousal guardianship (e.g., making emergency medical decisions on behalf of an incapacitated partner), intestate succession, employee family health insurance and retirement plans (including applications of the federal Family Leave Act), child custody and adoption issues, regulation of property distribution during divorce proceedings. The tax code and welfare policies are more of a mixed bag on this score, partly because of policies which are equally dubious when applied to heterosexual couples. But even in those areas it remains unclear whether gay and lesbian partners would be made worse off by opting for marriage.

Chambers concludes by comparing the option of lobbying for recognition of registered domestic partnerships instead of marriage, and comes down on the side of marriage, arguing that domestic partnerships would be politically unlikely to secure as broad a range of benefits as marriage. Finally, addressing the critics of the practice of privileging the institution of marriage, in whatever form, Chambers suggests that we ought to consider the possibility that extension of marriage to same-sex couples may be a first step towards making society more receptive to the idea of other kinds of partnership units. Regardless of whether you agree with Chambers’ conclusions, he does an excellent job of surveying the actual legal consequences of marriage in the U.S. today, in itself a valuable contribution to a debate which often makes reference to those consequences without actually examining them.

Duff, Antony & von Hirsch, Andrew. "Responsibility, Retributivism, and the >Voluntary’; A Response to Williams," 56 Cambridge Law Journal 103-113 (No. 1, March, 1997).

Four points are made against Bernard Williams’ critique of >moral responsibility’ [same issue of CLJ; see below]. (1) The argument from political freedom does not explain other important aspects of punishment, especially requirements of proportionality. (2) Williams fails to consider communicative versions of retributivism. For these, a voluntariness requirement is internal to the notion of punishment itself; no external political argument is needed. (3) Voluntariness as a condition of criminal liability rightly includes recklessness, and even so-called >objective’ recklessness, as well as intention. (4) Williams’ >political’ argument is best represented as a demand of morality-it is an argument about how the state ought to implement >private’ moral values.

Gedicks, Frederick Mark. "Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation." 50 Vanderbilt Law Review 614-646 (No. 3, April 1997).

Originalism as a theory of constitutional interpretation in the form defended by Robert Bork, or the modified non-conservative version presented recently by Michael Perry, is squarely in the tradition of Romantic hermeneutics, a tradition which sought to overcome the uncertainty and imprecision of textual interpretation. Hans-Georg Gadamer’s Truth and Method, however, demonstrates the futility of the search for epistemological certainty in interpretation. Even though Perry’s originalism is less objective than Bork’s, it still falls to Gadamer’s critique. It remains to be seen whether any form of originalism can successfully overcome the proven limitations of its Romantic foundation.

George, Robert P. "A Defense of the New Natural Law Theory," 41 American Journal of Jurisprudence 47-61 (1996).

George defends Grisez, Finnis and Boyle (GFB) against a critique by Jeffrey Goldsworthy [same issue of AJJ; see below]. George emphasizes the extent to which GFB’s view depends on rejecting as psychologically too simplistic the fact-value/reason-desire distinction which underlies Goldsworthy’s critique. He also reiterates and defends GFB’s so-called "conflation" of >good’ and >good for’. George argues that there is one coherent normative concept here, and that it, rather than non-cognitivism, provides the best explanation of our moral experience and practices.

George, Robert P. "Public Reason and Political Conflict: Abortion and Homosexuality," 106 Yale Law Journal 2475-2504 (1997).

George’s essay is the most philosophical among several articles comprising a very interesting symposium on racial, sexual, and religious group conflicts. (See Recent Law Review Symposium Issues of Interest section.) George tackles two of the most persistently intractable problems in American society. The chief question of the essay is this: "Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?" George considers and rejects recent attempts by John Rawls, Judith Jarvis Thomson, and Stephen Macedo to answer the question by reference to an antiperfectionist liberalism. Along the way, George indicates that he is a strong believer in natural law theory. He holds that a human life begins at conception, and that marriage has intrinsic good only when it is aimed at reproduction. Nonetheless, George argues that a proper respect for the principles of deliberative democracy will allow for reasonable disagreements even on such highly charged issues. What he denies is that liberals can adjudicate these disputes by adopting non-moral criteria of deliberation. The very criteria of deliberation are themselves morally infused. Most everyone will find something in this essay to disagree with; but throughout George provides a model for the kind of civil debate he hopes we can all have on these deeply divisive moral issues.

Goldsworthy, Jeffrey. "Fact and Value in the New Natural Law Theory," 41 American Journal of Jurisprudence 21-46 (1996).

The article discusses the natural law ethics of Germain Grisez, John Finnis and Joseph Boyle (GFB). GFB intend their theory both to oppose neo-scholastic natural law theory, which deduces normative claims from natural facts, and non-cognitivism, which rejects ethical objectivity. GFB rest their ethics on principles concerning human well-being which they believe to be both rational and normative. Goldsworthy accepts the validity of the Humean argument against deriving >ought’ from >is’, and thus agrees with GFB’s critique of neo-scholasticism. But he defends non-cognitivism against GFB. He argues that GFB conflate >good’ and >good for’. >Good’ is impersonal and provides a reason for action, but it is not objective; it reflects widespread human attitudes. >Good for’ is objective, in that it is independent of the person(s) for whom there is the good; but it is not a reason for action since it is related to particular people only. Goldsworthy also argues that GFB are committed to reason being able to generate desires from scratch, which is a very implausible theory of motivation, and far more implausible than a Humean account.

Harding, Sarah. "Justifying Repatriation of Native American Cultural Property," 72 Indiana Law Journal 722-774 (1997).

As Harding points out quite lucidly at the beginning of her essay, repatriation of Native American property now held in American museums is not as easy to justify as it might first appear. There are a few cases of cultural artifacts that were stolen or seized from a particular individual or tribe, and repatriation of these artifacts can easily be shown to be justified on simple principles of restitution. But most of the artifacts are so old that ownership lines are blurred. Nonetheless, these artifacts are often quite important to a particular tribe. To justify repatriation in such cases will require more than simple restitution. Harding considers and rejects various common law bases for thinking that Native Americans are owed the return of this property because of past wrongs committed against them. Instead she focuses on the fact that these cultural artifacts are constitutive of tribal identity. She then argues that such a basis for repatriation is also grounded in common law doctrines concerning property rights. She then considers, at the end, a curious argument to show that cultural artifacts are not properly owned by anyone, and that the proper question is who would be the best custodian for them. She contends that common law arguments can be advanced to support repatriation even in cases of contested lineage.

Harrison, Jeffrey L. "Piercing Pareto Superiority: Real People and the Obligations of Legal Theory," 39 Arizona Law Review 1-14 (No. 1, Spring, 1997).

Economists survey contracts and trading through the lenses of mutual assent and Pareto superiority. These are weak bases for the legal enforcement of agreements. There is no meaningful normative theory available for when an exchange leaves a party >better off’. The psychological dynamics of agreement imply that most cases do not conform to the idealized profile of free mutual assent. Social psychologists have examined, for example, the extensive effects of relative deprivation on decision-making. Legal theory needs to make more use of the empirical findings of psychology and sociology.

Joslin, Courtney J. "Equal Protection and Anti-Gay Legislation: Dismantling the Legacy of Bowers v. Hardwick-Romer v. Evans, S. Ct. 1620 (1996)," 32 Harvard Civil Rights-Civil Liberties Law Review, 225-47 (No. 1, 1997).

Analyzes the U.S. Supreme Court decision in Romer v. Evans invalidating Colorado’s Amendment 2 that sought to repeal all legislation in Colorado prohibiting discrimination on the basis of sexual orientation. Examines the Romer Court’s opinions in light of Bowers v. Hardwick which lower courts have read to uphold the constitutionality of state-endorsed discrimination against homosexuals; and assesses the potential impact of Romer on other areas of lesbian and gay litigation.

Kotler, Martin A. "Reconceptualizing Strict Liability in Tort: An Overview," 50 Vanderbilt Law Review 555-611 (No. 3, April, 1997).

Two alternatives are traditionally presented as the basis of tort law: a fault-based negligence standard, and an instrumentalist strict liability standard. Kotler proposes instead three categories: the assessment of behavior by the standards of the group of which the person assessed is a member; >behavioral strict liability’, the assessment of behavior by the standards of the group of which the person assessed is not a member; >non-behavioral strict liability’, the assessment of behavior by the standards of an instrumental cost allocation process. In view of the abandonment of the last category by the courts, Kotler argues that it is important to realize that the second category is available as an alternative to the first. The important step is the formulation of principles for the second mode of assessment. This process should be carried out as an exercise in majoritarian politics.

Kramer, Larry. "Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception," 106 Yale Law Journal 1965-2008 (1997).

An examination of the "Defense of Marriage Act" (DOMA) which, in response to the prospect of legal recognition of same-sex marriages in the state of Hawaii, Congress passed last year in order to grant other states a right to refuse recognition of such marriages. Kramer argues first that such a right has already been exercised by all states throughout this century under a "public policy" exception, according to which a state may decline to recognize the law of another jurisdiction if it significantly violates local notions of justice or good social policy. In that sense, therefore, DOMA was unnecessary legislative sabre rattling. But Kramer goes on to argue that both the existing practice of the states and DOMA are in clear violation of Article IV, Section 1 of the U.S. Constitution. To this end, he examines both of the clauses which comprise IV.1: the "Full Faith and Credit Clause", which requires the several States to recognize and honor each other’s laws, and the "Effects Clause", which ostensibly gives Congress the authority to determine (by legislating) the proper means by which one State must effectuate adequate recognition of another State’s laws. In the course of this discussion Kramer reviews a variety of ways of doing choice-of-law analysis, including the "better law" method popular in several States for resolving these kinds of jurisdictional conflicts. The better law approach basically recommends recognition of another State’s law when that State’s law is substantively preferable to the practice of the forum State. (This is usually an evaluative measure of last resort, employed only when other more jurisdictionally neutral weighting factors have failed to resolve the choice.) Kramer argues that this method of conducting choice-of-law analysis is patently unconstitutional, but that other, less controversial methods are equally violative of the spirit of the Full Faith and Credit Clause.

Mishra, Devjani. "The Road to Concord: Resolving the Conflict of Law over Adoption by Gays and Lesbians," 30 Columbia Journal of Law and Social Problems 91-136 (1996).

An interesting contrast to Kramer’s article (see above), in that Mishra argues that the "better law" method of resolving interjurisdictional conflicts would actually be a good way to resolve conflicting levels of tolerance for the practice of permitting gays and lesbians to adopt children. After first reviewing available empirical evidence concerning the comparative success of heterosexual and homosexual parents in childrearing, and discussing occasional judicial tolerance of "second parent adoption" by non-marital (homosexual) partners (and the implications of this practice for "stranger" adoption), Mishra contends that a proper application of the public policy exception to choice-of-law rules entails that jurisdictions like Florida and New Hampshire, which have recently enacted statutory prohibitions against adoption by gays or lesbians, would be obliged to recognize such adoptions originating in out-of-state forums. I.e., where Kramer wants to reject the public policy exception entirely (as a violation of the Full Faith and Credit Clause), Mishra wants to put that same principle to use in aid of homosexual rights.

Soper, Philip. "Another Look at the Crito," 41 American Journal of Jurisprudence 103-132 (1996).

The Crito is found puzzling to modern readers because the arguments advanced by the Laws of Athens, which Socrates seems to accept as cogent, are almost universally recognized now to be poor arguments. In fact the trend among modern theorists is to deny any general obligation to obey the law. There is however an alternative line of scholarly interpretation of the Crito called >the rhetorical interpretation’, contending that the dialogue is best understood by distinguishing the views expressed by the Laws of Athens from those of Socrates. Soper defends a version of that interpretation. The central claim of his argument is that Socrates acknowledges he must obey the law, not because the Laws are correct in what they urge, but because they sincerely believe they are correct. Thus Socrates is acknowledging a duty to respect the sincere beliefs of law-makers. Soper argues both that there is sufficient textual authority for such an interpretation, and that this is a sound substantive view of legal obligation.

Williams, Bernard "Moral Responsibility and Political Freedom," 56 Cambridge Law Journal 96-102 (No. 1 March 1997).

• From the Editor
• Introduction
  • Legal Aspects of Gay and Lesbian Rights, Richard Nunan
• Articles
  • Thick and Thin Arguments for Gay Constitutional Rights, Toni M. Massaro
  • Same-Sex Marriage and Sex Discrimination, David Benatar
  • Gays in the Military and the Excuse of Constitutional Deference, Richard Nunan
• Bibliography
• Recent Law Review Articles of Interest- Abstracts
• Symposia
• Recent Books of Interest