Marriage & Family
Regulating Internet Pornography Aimed at Children: A Comparative Constitutional Perspective on Passing the Camel through the Needle’s Eye
Mark S. Kende, 2007 B.Y.U. L. Rev. 1623 (2007)
In this paper, I recommend that the Court stop the formalism and the inconsistencies. Actually, I go a step further and recommend that the Court borrow a page from the way foreign courts, such as the South African Constitutional Court, have engaged in an explicit balancing of interests and values while also being minimalist when possible. South Africa provides an excellent comparative lens for several reasons. Its constitutional drafters examined the best provisions from countries like Canada, Germany, Namibia, and the United States and then tried to improve upon them. Moreover, its Constitutional Court’s decisions are highly regarded internationally, it has a racial history that parallels the United States, and the Court’s opinions are stylistically accessible.
There has recently been controversy over the U.S. Supreme Court’s increasing use of foreign constitutional law. Chief Justice Roberts, Justice Scalia, and various conservative scholars have said that foreign law is used selectively in order to promote the agendas of particular members of the Court. The implication is that this agenda is liberal. Yet this paper shows that foreign law can support a speech restriction that would cause discomfort to some liberals. Perhaps foreign law does not have to be ideological after all if courts survey foreign sources more comprehensively.
This paper has six parts. Part II discusses key U.S. Supreme Court cases establishing the speech categories and the rule against content discrimination. Part III shows how these principles play out in the Court’s Internet free speech decisions. Part IV demonstrates how the Supreme Court has been inconsistent in its treatment of unprotected speech and in its treatment of content discrimination. Part V shows how the most important American Internet speech case would have been resolved if the Supreme Court openly adopted the proportionality analysis used in South Africa, which is derived from Germany and Canada. Part V also addresses some possible criticisms. Part VI offers a brief conclusion.
Bachelor Parties Beware: The Third Circuit Grapples With Alcohol, Strip Clubs and the Constitutionality of Morality Legislation
52 Vill. L. Rev. 1095 (2007)
This Casebrief will show that the Third Circuit’s recent approach to the regulation of exotic dance establishments is incomplete, in that (1) it is arguably discordant with the Supreme Court precedent and (2) it impractically rejects the application of an “implied narrowing construction.” Part II of this Casebrief discusses the Supreme Court’s fractured and contentious jurisprudential approach to sex industry regulations, and describes the approaches other circuit courts apply when confronting similar statutory challenges. Part III focuses on the analytical structure of the Third Circuit’s recent decisions. It also discusses suggested amendments to the Pennsylvania statute and proposes a synthesized analytical guide for practitioners who may challenge similar statutes in the future. Finally, Part IV places the recent Third Circuit cases into the larger societal context–the battle over whether morality legislation has its place in current state statutory frameworks.
Sanctity of Life
Surveying the Foundations of Medical Law: A Reassessment of Glanville Williams’s The Sanctity of Life and Criminal Law
John Keown and David Jones, 16 Med. L. Rev. 85 (2008)
Medical law is now an established and thriving academic discipline. Fifty years ago what is widely regarded as its foundation stone – The Sanctity of Life and the Criminal Law – was laid by the late Professor Glanville Williams. The book dealt mainly with abortion, infanticide, suicide and euthanasia, but also with contraception, sterilisation and artificial insemination. Its central theme was ‘the extent to which human life, actual or potential, is or ought to be protected under the criminal law of the English-speaking peoples’. To the extent that the criminal law reflected the opposition to the above practices in Western medical ethics (the ‘inviolability of life’ or IOL ethic), Williams subjected it to a wholesale assault.
The book was based on the Carpentier lectures that Dr. Williams (as he then was) delivered in 1956 at Columbia Law School. His lectures sparked a debate within Anglo-American legal circles on abortion law reform, and their publication in book form also had a marked influence. The book prompted the American Law Institute to address abortion in its Model Penal Code. Williams served as a consultant to the project and the Code followed his proposals. In 1967, the American Medical Association adopted the Code’s approach and only six years later the Supreme Court went even further by creating a constitutional right to abortion. Justice Blackmun, in his judgment for the majority, cited Williams’s book. In England Williams also influenced, as President of the Abortion Law Reform Association, the enactment of the Abortion Act 1967. His book’s continuing significance was reflected in its citation by Brooke L.J. in Re A, the conjoined twins’ case.
Abortion Rights
Michael C. Dorf, 23 Touro L. Rev. 815 (2008)
There was an important development between Casey and Stenberg–the three-justice plurality from the Casey decision split. Justices O’Connor, Kennedy, and Souter jointly wrote the Casey decision. In Stenberg, Justices O’Connor and Souter joined Justice Breyer’s opinion holding that the Nebraska Act was a violation of the Casey standard. Justice Kennedy, however, dissented. According to his understanding of Casey, so long as the state did not completely ban abortion pre-viability, most regulations would be upheld. Although the Nebraska law prohibited a method of abortion, other methods remained legal, and so in Justice Kennedy’s view, it was valid.
Thereafter, Congress enacted the federal Partial-Birth Abortion Ban Act, which was at issue in Gonzales v. Carhart. The Federal Act differs from the Nebraska Act invalidated in Stenberg in one important respect: the Federal Act contains a clearer definition of what constitutes partial-birth abortion. It refers to anatomical landmarks of the delivered fetus beyond which one has a partial-birth abortion and before which one does not, so it provides greater notice to a doctor than did the Nebraska law. That distinction is important in addressing the plaintiffs’ vagueness objection but in one important respect the federal law mirrored the Nebraska law: it does not contain an exception for circumstances in which a partial-birth abortion is necessary for a pregnant woman’s health.
Bench & Bar
In Search of Judicial Activism: Dangers in Quantifying the Qualitative
Caprice L. Roberts, 74 Tenn. L. Rev. 567 (2007)
In sum, this Article seeks to shed light on the meaning of “judicial activism,” caution against efforts to quantify the qualitative, and provide a framework for navigating through the morass of the judicial activism debate. Ultimately, this Article serves as a reminder that we still need active debate on the ideal judiciary, the ideal judge, and ideal judging.
More specifically, Part II of this Article explores the varied uses of the phrase “judicial activism” by scholars, the media, judges, and others. Part II canvasses the myriad definitions and critiques raised by academics and proposes a working diagram of judicial power and restraint. As shown in the Appendix, this diagram categorizes into the following realms the tensions that judges encounter: (A) institutional external, (B) institutional internal, and (C) decision-making process. Part II also demonstrates the complexity of any categorization effort. Specifically, some uses of “judicial activism” may not fit in these categories at all (e.g., use of the term as an empty political epithet), or they may fit into multiple categories (i.e., multidimensional and internally contradictory uses). Within this framework, jurists’ uses of the phrase “judicial activism” are explored to glean relevant lessons.
Part III of this Article highlights recent empirical efforts to clarify the judicial activism debate, particularly as a means of countering vacuous political rhetoric. It questions the methodology used and the conclusions drawn. Part IV approaches these questions from the opposite direction, critically exploring whether empirical endeavors to resolve the judicial activism controversy are likely to succeed and emphasizing the subjective nature of judging our judges. This part also discusses related critiques by other scholars. After this healthy dose of skepticism, Part V refocus the discussion, exploring jurisprudential notions regarding the proper role of judges as a reintroduction to the crucial, normative debate. In the conclusion, Part VI reiterates that (1) “judicial activism” has myriad meanings, (2) empirical efforts to provide certainty and resolve this complex issue risk skewing the debate, (3) the battle must be waged in the qualitative realm, and (4) the normative issues regarding the proper role of the judge must be addressed vigilantly.
