Volume 71, Number 3

June 1996

Last Writes? Reassessing the Law Review in the Age of Cyberspace

Bernard J. Hibbitts

Professor Hibbitts reassesses the history and future of the law review in light of changing technological and academic conditions. He analyzes why law reviews developed in the late nineteenth and early twentieth centuries and shows how three different waves of criticism have reflected shifting professorial, professional, and pedagogical concerns about the genre. Recent editorial reforms and the inauguration of on-line services and electronic law journals appear to solve some of the law review’s traditional problems, but Professor Hibbitts suggests that these procedural and technological modifications leave the basic criticisms of the law review system unmet. In this context, Professor Hibbitts proposes that legal writers self-publish on the World Wide Web, as he did in a previous version of this Article. This strategy, Professor Hibbitts argues, would give legal writers more control over the substance and form of their scholarship, would create more opportunities for spontaneity and creativity, and would promote more direct dialogue among legal thinkers. It would also sound the death knell for law reviews in their present form.


The Art of Judging

The Honorable Justice Stewart G. Pollock

William J. Brennan, Jr. Lecture

In the second annual William J. Brennan, Jr. Lecture New Jersey Supreme Court Justice Stewart G. Pollock explores the relationship between art and adjudication. The separation of powers, the federalist system, and the inherent constraints of the common law confine state courts. Notwithstanding those constraints, state courts have demonstrated creativity when interpreting state statutes and constitutions and when adapting the common law to changing conditions. Thus, Justice Pollock finds artistry in the work of state courts. He begins by exploring creativity in statutory interpretation. Then, Justice Pollock examines two areas of substantive law of great public concern: public-school-finance litigation under state constitutions and the common-law redefinition of the modem family. Justice Pollock demonstrates how state appellate courts, through public-school-finance litigation, have shaped the constitutional right to a public-school education. Justice Pollock then discusses how state courts have reacted to the changing composition of the American family. By recognizing these changes, state courts have redefined the family in areas as diverse as zoning ordinances, surrogacy agreements, and same-sex marriages. Common to all these endeavors is protection of the inherent dignity of the individual. Justice Pollock concludes that an appreciation of the similarities between art and judging may lead to a better understanding of the judicial process.


Title VII’s Antiretaliation Provision: Are Employees Protected After the Employment Relationship Has Ended?

Sandra Tafuri

This Note will demonstrate that Title VII’s antiretaliation provision must be interpreted broadly to achieve Title VII’s basic purposeā€”the elimination of employment discrimination. Part I discusses the rationale supporting those decisions that have argued for a narrow interpretation. Part II argues for a broad interpretation of the provision by responding to the arguments discussed in Part I and offering a normative argument that reflects the general purpose of Title VII and section 704(a)’s role in Title VII’s framework. Part III concludes with an argument for expanding retaliatory protection to include not only postemployment retaliation that is employment-related, but also postemployment retaliation that is personal in nature.

Minors and the Fourth Amendment: How Juvenile Status Should Invoke Different Standards for Searches and Seizures on the Street

Lourdes M. Rosado

This Note argues that standards for seizures and consent searches that do not capture the different level of cognitive and emotional development of minors as compared to adults fail to adequately protect juveniles’ Fourth Amendment rights. The Note proposes a new framework for assessing the legality of consent searches and seizures of juveniles on the street. The framework builds on, first, Supreme Court cases in other areas of the law that recognize minors as “different” and, second, scholarship on juveniles’ cognitive, emotional, and social development.

Reading Death Sentences: The Narrative Construction of Capital Punishment

Christopher J. Meade

What is it about the death penalty that causes so many Americans to express support, despite the contradictions underlying this support? And since utilitarian and moral arguments have proven to be ineffective, how can those who oppose capital punishment most effectively fight against it?

This Note addresses these questions by analyzing narratives about the death penalty, focusing on films that are based on true-life stories. Since these true-life narratives recount actual occurrences, they provide examples of how reality is shaped into narratives. Narrative is one of the primary ways in which people make sense of the world, and as Robert Cover notes, “[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” As such, these popular culture narratives help illuminate the role that the death penalty plays in America. In addition, they offer insights into how death penalty opponents can use narrative to erode capital punishment’s high but unstable support. Analyzing how a particular narrative tells the story of an actual defendant may therefore provide insight for those who tell real-life stories to juries, to commutation boards, and to the media.

Antitrust Law and Nonprofit Organizations: The Law School Accreditation Case

Peter James Kolovos

This Note has argued that a proper understanding of the market-correcting nature of nonprofit activity is necessary to the enforcement of the antitrust laws. As long as the competition-enhancing virtues of nonprofit activity are recognized, the flexible rule of reason can be used to implement the objectives of the Sherman Act by insuring the proper functioning of our markets. However, an antitrust jurisprudence that is blind to the imperfect nature of the markets in which nonprofit organizations operate and chooses instead to rely on an unyielding faith that “all elements of a bargain . . . are favorably affected by the free opportunity to select among alternative offers” can only reinforce market failures and thus frustrate the various policy objectives of the Sherman Act.

The Impact of Liberty on Stare Decisis: The Rehnquist Court from Casey to Lawrence

Drew C. Ensign

Although stare decisis is a firmly established doctrine tracing its roots to fifteenthcentury English common law, the Rehnquist Court developed it in remarkable ways. The Court’s decisions effectively made liberty considerations an important stare decisis factor in constitutional cases. Where prior decisions took an expansive view of the liberty protections of the Constitution, they were more likely to be upheld, and vice versa. This Note analyzes this development, perhaps best exemplified by the differing outcomes in Casey and Lawrence, as well as its implications for the future jurisprudence of the Supreme Court.