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

Chicago-Kent Law Review

No abstract provided.

To Hold And Bear Arms: The English Perspective, Lois G. Schwoerer

Chicago-Kent Law Review

This Article discusses the English background to the Second Amendment of the Constitution of the United States and undertakes to contest the prevailing opinion that the old medieval English duty of service in the militia, imposed theoretically on all males between the age of sixteen and sixty, was transformed at the time of England's Glorious Revolution in 1688–89 into the right of the individual to keep and bear arms. The author of that thesis, Professor Joyce Malcolm of Bentley College in Massachusetts, maintains that Article VII of the Declaration of Rights, 1689 (better known as the Bill of Rights, its …

The Second Amendment In Action, Michael A. Bellesiles

Chicago-Kent Law Review

There are those who argue that the Second Amendment guarantees an unrestricted individual right to gun ownership. If the original intention of the framers of the Constitution and Bill of Rights is to inform contemporary debates, then we must know more about the historical context in which these documents were written. This Article explores the nature and extent of gun laws at the time the Second Amendment was ratified by the states, as well as those laws passed in the shadow of this Amendment. The continuing efforts of states to control access to and use of guns once the Second …

"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 …

What Does The Second Amendment Mean Today?, Michael C. Dorf

Chicago-Kent Law Review

Proponents of the "individual right" interpretation of the Second Amendment frequently contend that those who disagree with this view apply a double standard, dismissing robust protection for individual firearms ownership and possession, while recognizing rights with less support. However, the Second Amendment has not been unfairly orphaned. The courts and commentators that reject the individual right scholars' claims are justified in doing so by the application of the same criteria commonly applied to other constitutional provisions, namely: doctrine; text; original understanding; structural inference; post adoption history; and normative considerations.

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 …

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 …

Vol. 17, No. 3, Lisa Salkovitz Kohn

The Illinois Public Employee Relations Report

Contents:

Employment Disputes after Sutton and Murphy: Are the Courts Losing Sight of the Purposes of the ADA?, by Lisa Salkovitz Kohn

Recent Developments, by the Student Editorial Board

Further References, compiled by Margaret A. Chaplan

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

Chicago-Kent Law Review

No abstract provided.

What Is To Be Done, Kate Millett

Chicago-Kent Law Review

Since its existence, the feminist movement has fought for equal rights for women, and, in so doing, it has challenged the oldest and most fundamental social scheme in history-patriarchy. Patriarchy is the rule of males over females in all departments of human life, and it is based on custom, belief, law, and ultimately on force. Although the American feminist movement made significant progress in its early years, it has struggled in recent years to accomplish many of its goals. Millett notes that the American feminist movement now stands stalemated, on the defensive, and trying desperately to hold on to the …

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.

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 …

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.

Constructing Families In A Democracy: Courts, Legislatures And Second-Parent Adoption, Jane S. Schacter

Chicago-Kent Law Review

In this Essay, Schacter examines recent judicial decisions on so-called "second parent adoption," in which one partner in a gay or lesbian relationship seeks to adopt the other partner's child without terminating that partner's legal relationship with the child. With the recent boom of lesbian families in particular, the availability of such adoptions has been litigated in several states. Although the results have been uneven, this has been an area of significant progress for same-sex families, with courts in at least twenty-one states having authorized such adoptions. The appellate rulings in this area have been decisions involving statutory interpretation and …

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.

Drag = Blackface, Kelly Kleiman

Chicago-Kent Law Review

Performance in drag is indistinguishable conceptually from performance in blackface, yet the former is embraced while the latter is shunned. This Essay argues that the analogy is powerful enough to justify making drag performance anathema. It outlines the parallel features of the two modes of performance and then rebuts the com- mon defenses of drag performance-that drag subverts gender stereotypes, that it is a matter of private sexual compulsion, that it is a privileged activity of gay men, and that it's just a joke.

Extending The Progress Of The Feminist Movement To Encompass The Rights Of Migrant Farmworker Women, Richard Kamm

Chicago-Kent Law Review

Migrant farmworker women are among the poorest of the working poor. Historically marginalized and disenfranchised by feminists and the legal community, as well as by male farmworker activists, migrant farmworker women continue to be plagued by problems of employment discrimination, workplace sexual harassment, and domestic violence. While some feminist legal scholars have argued that the solution to such problems is to make the feminist movement more inclusive and to move away from taking the experiences of white middle-class women as representative of the experiences of all women, Kamm argues that a better alternative would be to provide migrant farmworker women …

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.

Apostasy?, Jennifer Gerarda Brown

Chicago-Kent Law Review

In this Essay, Brown revisits the issue of single-sex education, questioning the wisdom of her own earlier proposal that a women's law school could remedy the alienation, underachievement, and silencing that women are said to experience in law school. The Essay addresses two questions. First, as a growing body of empiricism in some ways supports but in other ways undermines earlier claims that sex is the characteristic most determinative of law school experience, the Essay considers whether a remedy based on sex is viable. Second, and perhaps more importantly, the Essay draws upon Vivian Paley's work with very young children, …

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 …

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 …

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.

Vol. 17, No. 2, William C. Kling

The Illinois Public Employee Relations Report

Contents:

Coming Together to Address Student Aggression and School Safety, by William C. Kling

Recent Developments, by the Student Editorial Board

Further References, compiled by Margaret A. Chaplan

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 …

Civil Society And Multiple Repositories Of Power, Abner S. Greene

Chicago-Kent Law Review

Securing plural mechanisms for human flourishing is at the core of the civil society project. Greene advances this claim first by arguing that it is impossible to disentangle the public from the private in our everyday lives, and thus it is no slight on the civil society project that private, civil society institutions are not exogenous from the public institutions with which they interact. Second, Greene defends the traditional public/private line at least insofar as it reflects plural modes of achieving legal and social change. Third, the Article buttresses the case for civil society even if such institutions foster non-democratic, …

The Family In Civil Society, Martha Albertson Fineman

Chicago-Kent Law Review

Civic societarians view deviance from the traditional two-parent family as the root of all social problems in the United States. Growing income inequality is central to understanding social decline as many families with young children are struggling financially to provide for their families. The real problem, then, is not with family form, but with the lack of support for dependency relationships.