Kamisar, Yale. "Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case," 88 Journal of Criminal Law& Criminology 1121-46 (1998).

The text of the lead lecture of the seventh Pope & John lecture series on Professionalism (convened annually at Northwestern University School of Law), in which Kamisar (Clarence Darrow Distinguished University Professor at the University of Michigan) argues that questions about the wisdom of passing laws permitting physician-assisted suicide (PAS) under certain circumstances should not be contingent on our answer to the question: what would you want done if you were a dying patient enduring unavoidable pain? Kamisar begins by endorsing John Arras’s division of PAS opponents into three camps: those who regard any form of active voluntary euthanasia as inherently immoral, those who think that involvement of physicians in this business compromises the physician/patient relationship, and those who worry about the social consequences of endorsing PAS, even though it might be morally legitimate in some special cases. Arras and Kamisar both find themselves in this third camp, and so Kamisar proposes to examine the "heartwrenching cases" which create the case for moral legitimacy of PAS, over against his concerns about the social consequences of legal endorsement, or at least tolerance, of PAS within limited confines.

Kamisar argues that it is a mistake to defend the prohibition against PAS by means of an appeal to which most members of the third camp resort: that the prohibition is not really an exceptionless ban where the heartwrenching cases are concerned; for those cases we can rely on prosecutorial discretion or jury nullification to circumvent application of the law. Kamisar contends that we should be uneasy about establishing or preserving criminal laws that "we could not ourselves satisfy", and spends the bulk of the article reviewing various compromise proposals to establish procedures for carving out exceptions. He concludes that none of these are likely to prove satisfactory, and that we may just have to bite the bullet on the exceptionless prohibition, even in the heartwrenching cases.

Litowitz, Douglas E. "Some Critical Thoughts on Critical Race Theory," 72 Notre Dame Law Review 503-29 (1997).

Litowitz examines some of the main CRT themes through the vehicle of an essay review of Richard Delgado, Critical Race Theory: The Cutting Edge. In particular, he examines two of the selections at length (Thomas Ross’s analysis of Richmond v. Croson, the case in which the Supreme Court ruled unconstitutional a set-aside program which advantaged minority-owned businesses in local public works projects, and Patricia Williams’ well-known 1987 paper "Alchemical Notes", one of the early contributions to the CRT narrative style of scholarship). After some brief remarks sketching the basic themes of the CRT movement, Litowitz raises several problems for CRT research. The main ones concern CRT’s repudiation of liberalism, Litowitz’s critique of narrative writing, and his doubts about the empirical validity of CRT interest convergence claims. Concerning the first of these, Litowitz finds himself mystified by the attack on liberalism, because the attack is not directed at what he regards as the central tenets of liberalism: the thesis that the right should precede the good, Mill’s harm principle as the only legitimate exercise of government coercion, which should otherwise leave citizens free to pursue their varied conceptions of the good life. With respect to narrative approaches to scholarship, Litowitz argues that there is nothing distinctive about CRT autobiographical narratives, pointing out that he could construct one of his own about what it was like to grow up Jewish, but that this hardly means that he and other Jews have a unique ability to write about how the law affects Jews. Concerning the third issue, CRT claims that white elites allow civil rights advances for minorities only when such largesse serves the interests of those elites, Litowitz offers a Popperian argument to suggest that this thesis is pseudoscientific. CRT sympathizers will not be persuaded by Litowitz’s arguments , but his article is a good illustration of the liberal reaction against CRT claims.

McMunigal, Kevin. "Desert, Utility, and Minimum Contacts: Toward a Mixed Theory of Personal Jurisdiction," 108 Yale Law Journal 189-235 (September, 1998).

The rules of civil procedure governing how suits get started and in which courts they are tried are both fascinating and arcane. Indeed, it often seems that there is no logic to this important part of law at all. One of the key components of these rules is the idea that a given legal forum must have had "minimum contacts" with a defendant for that defendant to be hauled into court and forced to defend himself or herself against the complaint of a plaintiff. In this essay, Kevin McMunigal, from Case Western Reserve Law School, attempts to provide a theoretical framework for understanding how conceptions of desert and utility compete for the attention of courts in this domain. McMunigal surveys the major cases in this area and then shows that there is a consistent thread of analysis here, moving back and forth between retrospective (desert) considerations, prospective (utility) considerations, and considerations of proportionality (roughly, fairness considerations). What will be especially interesting to philosophers is how McMunigal manages to weave all of this into a reasonably consistent framework, what he calls a "mixed theory of personal jurisdiction." As with recent work in pragmatism, McMunigal finds that the big normative theories provide only parts of the picture, and that they can sometimes be combined together in surprising and quite productive ways. In addition, those who know nothing about the area of personal jurisdiction in civil procedure will learn an enormous amount, quite painlessly, about this very technical area of law.

Michelman, Frank I. "Protecting People from Themselves," or How Direct Can Democracy Be?" 45 UCLA Law Review 1717-34 (1998).

In "Judicial Review of Direct Democracy," a 1990 Yale Law Journal article, Julian Eule argued that laws created through direct democracy rather than representative democracy--i.e., by means of citizen-initiated popular referenda (the nouvelle California mode of lawmaking)--should be subject to a higher level of judicial scrutiny than laws enacted by representative assemblies. In light of the counter-majoritarian inspiration behind the Federalist philosophy informing the U.S. Constitution, Eule argued that, especially in cases of plebiscitary laws which have a racially or ethnically disparate impact, that direct democratic legislation is presumptively suspect rather than presumptively virtuous. His core argument is this. The Supreme Court is the one decision-making body that is not subject to checks and balances via a requirement of majority concurrence of another chamber of government. Therefore the Court has a special duty to restrain itself when reviewing the administrative or legislative decisions of elected officials. But the same argument does not apply when the Court reviews laws of plebiscitary origin. For the popular refendum is not otherwise subject to any system of checks and balances.

In this article, Michelman proposes to expand Eule’s insights beyond the arena of judicial review, arguing that the democratic ideal itself is not fully realizable through direct democracy. In developing this thesis, Michelmen does not confine himself only to the republican ideals of our limited democracy, the Federalist system of representative government coupled with separation of powers. He contends that his argument covers even the ideal of democracy, simpliciter. His purpose is to defuse a subtext of Eule’s article: the implication that we Americans [perhaps like Plato?] are not really so hot on democracy after all. We repudiate it not for practical reasons (e.g., the size of the electorate precluding our ability to meet in regular political assembly), but because we are suspicious of the motives and the level of civic education of our fellow-citizens. Michelman wants to argue that Eule is wrong about this; it is precisely because we are such firm advocates of democracy that we regard plebiscitary lawmaking as suspect. According to Michelman, respect for the democratic ideal of the people themselves making laws does not simply mean acquiescence to a majority vote of those who get themselves to the polls on election day. ‘Democracy’ is not conceptually equivalent to ‘majority rule’, because there is a conceptual gap between the idea that it is the will of the ‘common people’ (not their "betters" or somebody’s idea of their "better selves") that should rule, on the one hand—the ideal of democracy—and the particular opinion rendered by a particular majority of those voting on a given occasion (which is typically just a plurality of eligible voters, anyway). Michelman devotes the concluding sections of his paper to a discussion of this point, enlarging on the idea of democracy as the affirmation of human dignity and freedom, as realized through the positive liberty of "the people themselves" having charge over their own lives, and what this means for direct democracy.

Murphy, Kathryn. "Can the Budweiser Frogs be Forced to Sing a New Tune?: Compelled Commercial Counter-Speech and the First Amendment," 84 Virginia Law Review 1195-1224 (1998).

For several decades the distilled liquor industry in this country has adhered to a voluntary ban on broadcast advertising. But a couple of years ago Seagrams and the Distilled Spirits Council of the United States announced a decision to rescind the ban. This move, coming at a time when tobacco advertising is under more scrutiny than ever, and now generating civil litigation by state governments and individual smokers, has galvanized public-interest groups into action against the liquor industry, on the theory that alcohol consumption can be just as harmful as tobacco consumption. One measure advocated by such groups would require broadcasters (and also the print media), to provide anti-drinking PSAs if they choose to benefit from the revenues of alcohol advertising. The theory behind this approach is that it will not run afoul of First Amendment free speech law (unlike a compulsory government ban on alcohol advertising). Requiring broadcasters to inform the public about the evils of drink does not restrict speech; it simply provides consumers with additional information.

In her article Murphy argues that, given current Supreme Court interpretation of the status of commercial speech under the First Amendment, such compelled commercial counter-speech does indeed violate First Amendment protections. To date the Supreme Court has not dealt specifically with the issue of compelled commercial speech, but Murphy argues that the Court’s entrenched hostility to laws which seek to regulate a message based on content will come into play here. Given the heightened scrutiny the Court now applies in commercial speech cases, a speaker’s First Amendment interest in the freedom to promote a lawful product without penalty, and in not being forced to advance a government-sponsored viewpoint which he may dispute, are together likely to outweigh the government’s interest in protecting minors and public health. In the course of developing her argument, Murphy offers a succinct review of the Supreme Court’s treatment of commercial speech, beginning with its declaration back in Valentine v. Chrestensen (1942) that commercial speech was afforded no First Amendment protection—a view from which the Court has been backing away ever since.