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Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin L. West

Chicago-Kent Law Review

This Article examines the impact of the twenty-year-old "turn" toward interpretation in legal and constitutional scholarship. In part, because of the impact of Hans-Georg Gadamer's work, scores of critical legal scholars, including some of those writing for this Symposium, now think of adjudication and legal discourse generally as primarily interpretive, rather than economic or political or distinctively legal enterprises. This turn toward interpretation has opened the way for new insights and ways of thinking, but it has also come with costs. It has, for example, diverted attention from the ways in which constitutional law might be appropriately criticized by reference …

Farmworkers, Nonimmigration Policy, Involuntary Servitude, And A Look At The Sheepherding Industry, Kimi Jackson

Chicago-Kent Law Review

Congress should abolish the nonimmigrant visa for farmworkers because of its inherently abusive and unjust nature. The visa allows abuse of farmworkers to flourish because guest workers, who live in the United States only for a short period of time, have no hope of becoming permanent residents. The workers constantly fear deportation and are unlikely to assert their rights in court. Because guest workers, by nature of their visas, may only work for one employer and the consequence for quitting is deportation, the workers may be forced to endure abusive treatment. Legal coercion prevents agricultural guest workers from leaving their …

So What? The Individual Right To The Ownership Of Firearms Under The Ninth Amendment, Robert E. Bodine

Chicago-Kent Law Review

This Note argues that the Second Amendment to the United States Constitution fails to resolve the debate over the existence of a fundamental, individual right to keep and bear arms because the Ninth Amendment is in fact the proper source for that right. This Note performs a historical analysis of the creation of the Constitution, reviews the little Supreme Court precedent regarding the right, and then demonstrates how the Supreme Court has applied the Ninth Amendment in cases dealing with other issues. Bodine concludes that applying the Ninth Amendment in that same manner necessarily leads to an inference of a …

Disarmed By Time: The Second Amendment And The Failure Of Originalism, Daniel A. Farber

Chicago-Kent Law Review

Originalism provides the core arguments for an individual right "to keep and bear Arms." The appropriate role of original intent in constitutional law, however, has been debated for the past two decades. In this Article, Farber illustrates how the Second Amendment exemplifies the classic, well-known criticisms of originalism. This does not prove, of course, that the conventional understanding of the Second Amendment should be retained. But, Farber concludes, advocates for a drastic expansion of Second Amendment rights will need something beyond the ambiguous historical record if they wish to show why, in today's world, gun rights warrant constitutional protection.

The History And Politics Of Second Amendment Scholarship: A Primer, Carl T. Bogus

Chicago-Kent Law Review

The introductory Article to this Symposium reviews the history and politics of Second Amendment scholarship, beginning in 1960, when the first article endorsing the individual right model was published, challenging what had previously been the accepted view that the Second Amendment grants only a collective right to keep and bear arms within the government-organized militia. Bogus describes how gun rights organizations embarked on a bootstrap campaign to develop a large body of writing supporting the individual right model, much of it by lawyers directly employed by or representing gun rights organizations, and then argued that the sheer mass of this …

Why Should Gang Membership Be A Status Symbol? Status Crimes And City Of Chicago V. Youkhana, Mark D. Brookstein

Chicago-Kent Law Review

In City of Chicago v. Morales, the Supreme Court struck down Chicago's anti-gang loitering ordinance on void-for-vagueness grounds. As a result, the Court did not answer the question left open by the Illinois Court of Appeals in City of Chicago v. Youkhana of whether the ordinance criminalized the status of being a gang member in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. This Comment considers the question by examining the historical backdrop of status offenses as it relates to both constitutional and common law precedent. In order to determine whether an otherwise constitutional reenactment of …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

"A Well Regulated Militia": The Second Amendment In Historical Perspective, Paul Finkelman

Chicago-Kent Law Review

In this Article, Finkelman argues that the purpose of the Second Amendment was to protect the right of the states to maintain militias and arm them if the national government refused to do so. This Article, based on the debates over ratification and over the Bill of Rights, shows that some extreme Antifederalists wanted the national government to guarantee a personal right to own weapons. But, as the evolution of the Amendment and the final text of the Amendment make clear, Madison and the other Federalists who totally dominated Congress at the time thoroughly rejected these demands for the protection …

Rice V. Paladin Enterprises: Why Hit Man Is Beyond The Pale, Beth A. Fagan

Chicago-Kent Law Review

This Comment examines the Fourth Circuit Court of Appeals decision in Rice v. Paladin Enterprises, Inc., which held that the publisher of a criminal instruction manual could be held liable for civil aiding and abetting without running afoul of the First Amendment. Fagan analyzes the traditional rationales for protecting free speech to determine the appropriate level of protection for criminal instruction manuals and focuses on Hit Man: A Technical Manual for Independent Contractors, the book that facilitated the murders at issue in Rice. She assesses the First Amendment value of Hit Man and balances that value against …

Murder Media—Does Media Incite Violence And Lose First Amendment Protection?, Christopher E. Campbell

Chicago-Kent Law Review

Society is increasingly inclined to hold publishers and producers responsible for the violent acts of their readers or viewers. This Note, however, argues that First Amendment protections should not be reduced to the lowest common denominator just because some sociopaths read the same books or view the same movies as the rest of society does. Instead, this Note contends that citizens should be encouraged to take responsibility for their actions and to know that they alone will be held accountable for their antisocial behavior. This Note reviews recent lawsuits against publishers and producers. It then discusses First Amendment theories as …

The Second Amendment In Context: The Case Of The Vanishing Predicate, H. Richard Uviller, William G. Merkel

Chicago-Kent Law Review

Uviller and Merkel argue that the Second Amendment right to keep and bear arms was intended by the framers (and, perhaps more importantly, understood by the ratifiers) to be intimately bound up in the ideal of service in the lawfully established militia-for many eighteenth-century Americans, the preferred alternative to that "bane of liberty," the standing army. But as Uviller and Merkel set out to show, the historic common militia celebrated in the republican ideology of eighteenth-century Whigs was already on the road to obsolescence when the Second Amendment became law. By the middle of the nineteenth century, few citizens mustered …

Lost And Found: Researching The Second Amendment, Robert J. Spitzer

Chicago-Kent Law Review

The recent proliferation of writings on the Second Amendment makes numerous claims including: (1) there has been little or no legal scholarship on the Second Amendment until recent times; (2) the "individualist" view of the Second Amendment is the dominant or mainstream paradigm; (3) the courts have committed a "dereliction of duty" insofar as they have been silent on, or indifferent to, interpretation of the Second Amendment; and (4) since three of the four Supreme Court cases concerning the Second Amendment were decided in the nineteenth century, the court doctrine is somehow defective, irrelevant, outdated, unclear, or "embarrassing." In this …

Natural Rights And The Second Amendment, Steven J. Heyman

Chicago-Kent Law Review

A growing body of scholarship claims that the Second Amendment was intended to enable individuals to exercise their natural right to self-defense against violence. In this Article, Heyman shows that this view is based on a misunderstanding of the natural rights tradition, as reflected in the works of Locke and Blackstone, the post-Revolutionary state declarations of rights, and the debates over the Constitution and the Bill of Rights. Natural rights theory held that, when individuals entered society, they largely gave up their right to use force against others in return for the protection that they received under the law. And …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Points Against Postmodernism, Catharine A. Mackinnon

Chicago-Kent Law Review

In this Essay, MacKinnon pointedly contends with a central tropism in much postmodernism to "de-realize" reality, contrasting it with feminism's epistemic and legal accomplishments and potential in remaking the world for women.

Reviving The Public/Private Distinction In Feminist Theorizing, Tracy E. Higgins

Chicago-Kent Law Review

In this Essay, Higgins explores the various uses of the public/private distinction in feminist theorizing. She suggests that feminist attacks on the public/private line tend to overstate the threat that the concept poses to women's equality and to understate the potential value of the distinction in feminist theory. Acknowledging that, despite thoroughgoing theoretical critiques, the public/private line persists in practice, Higgins offers a qualified revival of the distinction in feminist theory and suggests ways of refocusing and refining it to respond to existing critiques.

The "Normal" Successes And Failures Of Feminism And The Criminal Law, Victoria Nourse

Chicago-Kent Law Review

Feminist reforms have brought both success and failure to the criminal law in the past several decades. Nourse examines this simultaneous success and failure in three different areas: rape reform, marital rape immunities, and self-defense law. Her analysis urges that the criminal law has not been able to shake itself free of social norms governing intimate relationships-social norms that tend to perpetuate the very sexism feminists aimed to extinguish. Relational norms are upwardly mobile and easily nurtured by the "deliberate ambiguities" necessary to forge legislative and judicial change. Nourse argues that, in this sense, the failures of feminist reform should …

Foreword: Still Unfinished, Ever Unfinished, Anita Bernstein

Chicago-Kent Law Review

No abstract provided.

Fact's Fantasies And Feminism's Future: An Analysis Of The Fact Brief's Treatment Of Pornography Victims, Lila Lee

Chicago-Kent Law Review

In 1985, a group of women called the Feminist Anti-Censorship Taskforce ("FACT") filed a brief that was influential in the Seventh Circuit's decision-subsequently summarily affirmed by the United States Supreme Court-to invalidate Indianapolis' antipornography civil rights ordinance. The brief callously discounted the very existence, and the substance, of extensive victim testimony given by women at the public hearings held in support of the proposed ordinance. Apparently, the writers of the brief existed in a fantasy world, far removed from the lives of women who testified publicly that pornography harmed them.

While victim testimony established that women harmed by pornography wanted …

Biology For Feminists, Katharine K. Baker

Chicago-Kent Law Review

Feminists and sociobiologists have more in common than many people realize. In this Essay, Baker argues that feminists can use insights from sociobiology to validate feminist theories about patriarchy and to bolster claims for a greater legal commitment to feminist normative agendas. Paying particular attention to the laws regarding rape, marriage, and parenthood, Baker shows how biology helps confirm what feminists have long argued about the law's inadequate protection of women. Moreover, she shows how biology helps demonstrate the keen need for feminist social norms that help alleviate the harms caused by nature's inequities.

Analyzing Women's Use Of The Internet Through The Rights Debate, Reem Bahdi

Chicago-Kent Law Review

Women's use of the Internet has received very little attention from feminist legal commentators. While they increasingly turn to it as a source of information and as an advocacy tool, feminist legal scholars and advocates have failed to analyze the Internet in terms of its significance to women. In this Essay, Bahdi argues that feminists must be concerned that access to the Internet is often limited to relatively privileged women in relatively privileged countries. Yet, we can harness the Internet in the promotion of women's rights and recognize it as an important feminist medium, as long as we understand its …

Pretrial Mediation Of Complex Scientific Cases: A Proposal To Reduce Jury And Judicial Confusion, Susan E. Cowell

Chicago-Kent Law Review

This Note proposes pretrial mediation using scientist-mediators for complex scientific disputes. Complex scientific disputes reflect the inherent tension between law and science. This tension results in dissatisfaction among judges, juries, and scientists because of the uncertainties embraced by science, but eschewed by law. Pretrial mediation would address some of these uncertainties before they are introduced into the courtroom. In short, the proposed pretrial mediation should reduce jury confusion and provide judges with guidance to assess the admissibility of scientific evidence and expert opinions by eliminating and clarifying scientific issues.

Feminist Law And Film: Imagining Judges And Justice, Orit Kamir

Chicago-Kent Law Review

This Essay offers a model for systematic application of "feminist law and film" methodology to investigating the imagery of law and justice; to reexamining the relationship between feminist theory that focuses on an ethics of care and feminist theory that focuses on dominance, oppression, and resistance; and to reviewing the relationship between legal feminism and postmodernity. More specifically, employing interdisciplinary methodology, the Essay explores the imagery of a newly developing legal feminist concept, "caring justice," by focusing on popular cultural images of the judiciary as presented by the film industry. Offering a close reading of a contemporary film, Pedro Almodovar's …

Reasking The Woman Question At Divorce, Penelope E. Bryan

Chicago-Kent Law Review

Bryan first explores the disconnect between the feminist goal of equality for women and women's experience at divorce. Divorce continues to devastate women's economic prospects, frequently deprives them of their children, and sometimes compromises their physical safety. Many feminists have proposed changes to existing law and procedure that offer to protect women's interests in their children, in marital assets, and in their physical safety. Yet theoretical and strategical rifts between feminists continue to compromise their political ability to promote women's interests in divorce. Bryan urges feminists to abandon these differences and return to the basic "woman question" by supporting legal …

The Constitution Of Civil Society, Mark Tushnet

Chicago-Kent Law Review

This Article explores the relationship between the institutions of civil society and our government. Although it is said that the institutions of civil society can act as a check on government power, this Article explores the paradox implicit in that notion: the boundaries of these institutions are defined by the government directly or indirectly. After analyzing the question "How can civil society's institutions be an appropriate check on government when the government itself exercises significant influence on these institutions?," Tushnet illustrates how free expression, freedom of religion and substantive due process have been interpreted with respect to the institutions of …

Primus Inter Pares: Political Parties And Civil Society, Nancy L. Rosenblum

Chicago-Kent Law Review

Primus Inter Pares observes that civil society theorists have left political parties out of their accounts of intermediate associations, and explores the reasons for this omission. Rosenblum argues that the distinctive characteristics of American political parties as membership groups and the internal nomos of parties are keys to their capacity to cultivate the dispositions and practices required by representative democracy.

Will The Real Civil Society Advocates Please Stand Up?, Jean Bethke Elshtain

Chicago-Kent Law Review

Some critics have charged the Council on Civil Society with longing for a society that excludes entire categories of persons from membership, with being blind to "abuse and violence" within marriage, and being blasé about growing social and economic inequalities. This Article responds to these and other critiques from McClain and Fleming, Fineman, and Roberts by arguing that A Call to Civil Society clearly demonstrates not only a commitment to the morality and dignity of all human persons, but also a prohibition against any institution that promotes "invidious distinctions between men and women." The remainder of this Article argues that …

The Moral Exclusivity Of The New Civil Society, Dorothy E. Roberts

Chicago-Kent Law Review

While commending civil society revivalists' commitment to freedom and equality, this Article argues that the revivalists' moral vision is marred by exclusivity. Roberts locates this moral exclusivity in a flawed account of the relationship between social inequality and moral decline. By discounting the importance of social justice for creating civic faith, involvement, and solidarity, the revivalists' proposals tend to benefit society's most privileged families.

Law In Civil Society, Good Society, And The Prescriptive State, Amitai Etzioni

Chicago-Kent Law Review

A distinction must be made between the civil and good society. The social philosophies, laws, and social formations applying to both differ, although the two terms have been increasingly collapsed into that of the "civil society." However, such a synthesis precludes sound analysis of both concepts.