Volume 73, Number 3

June 1998

The Commonplace Second Amendment

Eugene Volokh

The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often—and for good reason—be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.

The Inadequate Search for “Adequacy” in Class Actions: A Critique of Epstein v. MCA, Inc.

Marcel Kahan, Linda Silberman

Professors Kahan and Silberman offer a doctrinal and policy critique of the Ninth Circuit’s 1997 remand decision in Epstein v. MCA, Inc. (Matsushita II), which held that class counsel in a state court class action failed to adequately represent the class, and thus the class was not bound by the global settlement approved by the state court. As a result of the Matsushita II decision, absent class members have an unfettered ability to collaterally attack the “adequacy” of their representation by class counsel. The authors argue that this holding, premised on a misreading of the Supreme Court’s decision in Phillips Petroleum Co. v. Shutts, threatens to impede both state and federal class action settlements, create the potential for multiple and wasteful litigation of the issue of “adequacy of representation,” and motivate a new kind of forum shopping in the class action context. Although multi-jurisdictional class actions give rise to potential “plaintiff shopping” and “forum shopping” abuses, the authors contend that a broad right to collateral attack created by Matsushita II is not a good way to deal with these problems. In place of the Ninth Circuit rule, Professors Kahan and Silberman propose providing incentives to all parties to participate in the settlement action coupled with a narrower, process-based standard for collateral attack.

Constructing a Jury That Is Both Impartial and Representative: Utilizing Cumulative Voting in Jury Selection

Edward S. Adams, Christian J. Lane

One of the main and ongoing problems plaguing the American jury system has been ensuring that juries in civil and criminal trials are truly representative of the communities in which they serve. Historically, minorities have been disproportionately excluded from jury service. This shortfall results from a combination of factors at each stage of the juror identification process. At the jury pool stage, juror notification methods often fail to identify or reach minorities for tie simple reason that minorities generally are poorer and more transient. At the venire stage, those minorities who actually receive notification report to the courthouse at a lower rate than the majority because they ignore the summons and claim hardship more often. Finally, at the petit jury stage, prosecutors and other litigants typically eliminate most if not all, minority venirepersons through the use of both peremptory and for cause strikes. Authors Edward Adams and Christian Lane take on this problem of underrepresentation on juries by focusing on tie latter stage of jury selection—the use of peremptory strikes. They argue that prosecutors often use peremptories in a discriminatory manner to eliminate potential jurors based on their race. The authors argue that although it intended to remedy tie striking of minority venirepersons for racial reasons, the Supreme Court in Batson v. Kentucky failed to deter the practice effectively. Batson prohibits the striking of jurors based on race, but allows the use of peremptory challenges with a “race neutral” explanation. Dean Adams and Mr. Lane propose a new method of jury selection which dispenses with peremptory challenges and which, they assert, will rid the jury selection process of discrimination. Borrowing a concept front corporate law, they propose a new method based on a cumulative voting model The authors contend that this new method for impaneling juries is free of the pitfalls that plague the current system and other alternative proposals. They argue that adopting their method will result in more representative juries.


“Hey! There’s Ladies Here!!”

Sarah Berger, Angela Olivia Burton, Peggy Cooper Davis, Elizabeth Ehrenfest Steinglass, Robert Levy

Many have wondered in print about the characteristics and experiences of the women who now seem destined to assume a proportionate share of lawyering responsibilities. How have they experienced law school and legal practice? Have they been welcomed or abused? Have they enjoyed or endured the rigors of qualification for the bar and the challenges of practice? How, if at all, have women affected law schools and legal practice? Do large numbers of women in the profession bring different sensibilities? Differently developed strengths? Different approaches to legal work? If women express dissatisfaction with law school, is it because they are unsuited or ill-prepared for it? Or are they simply more likely to question shortcomings of legal education that inhibit learning for all students?


No Longer Your Piece of the Rock: The Silent Reorganization of Mutual Life Insurance Firms

Gregory N. Racz

Ever since Ben Franklin started a mutual insurance company, policyholders generally have enjoyed a basic level of ownership rights. Within the past few years, however, and with little debate, many states have passed mutual holding company laws. The new laws make it easier for mutuals to convert to stock companies and sell stock to the public, but in the process they radically alter policyholders’ rights. Industry proponents praise the new laws as tickets to financial strength. Critics demonize the laws as a corporate shell game that will strip policyholders of long-standing protections and work a wealth transfer from policyholders to managers. Some opponents of the new laws even argue that the laws may be unconstitutional. Despite these concerns, more and more states are bowing to industry lobbying and are considering passing such laws.

Should the Exemption from the Robinson-Patman Act Apply to Pharmaceutical Purchases by Nonprofit HMOs?

Aimee M.W. Pollak

This Note criticizes the conclusion reached in Prescription Drugs and argues that the interpretation of section 13c offered by the court misconstrued the statute, inappropriately expanding both the group of purchasers and the products to which the statute should apply. This Note also criticizes previous interpretations of the statute, arguing that courts subtly have changed and updated the statute with each successive reading. Finally, this Note argues that the misinterpretation of section 13c is simply one example of a broader problem—the lack of an interpretative theory to guide the reading of obsolete statutes. In response, this Note proposes a novel theory of interpretation: the changed circumstances theory.

Choose or Lose: Embracing Theories of Choice in Gay Rights Litigation Strategies

Jonathan Pickhardt

The decision of gay rights litigators to adopt choice-denying constitutional arguments reflects both the exigencies of litigating after Bowers and the broader social acceptance of the belief that gay people do not choose to be gay. However, choice-denying arguments have proven ineffective in the legal realm. In addition, they threaten to undermine the broader gay rights movement by implicitly suggesting that being gay is undesirable, by leading gay rights advocates to make claims that are untenable and short sighted, and by misrepresenting segments of the gay community.

Curing “Constitutional Amnesia”: Criminal Procedure Under State Constitutions

Nina Morrison

Part I of this Note summarizes the Supreme Court’s decisions in five cases and locates them within the emergence of state constitutional law generally. In Parts II, III, and IV, this Note analyzes the state court opinions that have diverged from these federal cases, and considers them in light of state judges’ other reflections on New Federalism. Specifically, it identifies three common principles that undergird state court rulings in these areas. Part II highlights the courts’ desire to preserve established rules of criminal procedure—ones that were overruled or modified by the U.S. Supreme Court, yet had been applied and relied upon previously within each state. Part III discusses the state courts’ preference for clarity in legal standards, and their concern that untested federal rules might unduly burden the lower state courts’ work. This Note thus rebuts critics’ charges that New Federalism is an inherently “activist” endeavor, since both a desire to preserve established rules and a preference for clarity are principles rooted in “conservative” values of reliance, stability, and effective law enforcement.

The Defense of Marriage Act: Congress’s Use of Narrative in the Debate over Same-Sex Marriage

Charles J. Butler

This Note addresses that question by examining Congress’s use of narratives in the debates over DOMA. Narratives are stories circulated within communities and institutions that both shape and reveal society’s attitudes toward issues, particularly polemic questions. In enacting DOMA, members of Congress used narratives to respond to what they perceived and portrayed as a menace posed by same-sex marriage. Because stories about gays and lesbians in relationships resembling heterosexual marriage have been gaining widespread attention in recent years, anxieties regarding homosexuality and traditional marriage notions have sharpened in certain segments of society, creating a breach in the prevailing social order. Members of Congress used narratives to mend this breach. In deliberations over DOMA, they related stories about gays and lesbians that countered the increasingly common story of same-sex marriage; by reinforcing apprehensions surrounding gays and lesbians and reasserting the familiar heterosexual version of the marriage narrative, Congress attempted to quell the threat posed by stories of same-sex marriage.


The Amazing Vanishing Second Amendment

Eugene Volokh

I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” A part of the Bill of Rights has mysteriously vanished. This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”‘


The Unitary Second Amendment

David C. Williams

In The Commonplace Second Amendment, Professor Eugene Volokh argues that in interpreting the Second Amendment we should give primacy to the operative clause over the purpose clause: While the latter may refer to a “well-regulated militia,” the former baldly proclaims, “the right of the people [not the militia] to keep and bear arms shall not be infringed.”‘ As a result, we should read the provision to guarantee a right of all private individuals to arms. Despite my considerable admiration for Professor Volokh’s article, I wish to disagree on two points. First, even if we accord primacy to the operative clause, that clause itself implicitly refers to a semi-collective entity—the “Body of the People”—rather than to private individuals. Second, while I agree with Professor Volokh that we should not read the purpose clause to “trump” the operative language, we also should not read the operative language to depart from the purpose clause. Instead, the best interpretive strategy is to read the two clauses together to produce a single consistent meaning, with neither clause taking primacy. We should, in other words, read the amendment as a unitary provision.


Bernard Schwartz

John Sexton

Bernie was a prolific scholar; he is the author of dozens of books that have been translated into dozens of languages, works that can be seen on the bookshelves of the Supreme Courts of China, Japan, Germany, and Argentina to name just a few. Last year we celebrated his 50th year of teaching at NYU Law School. The legal community has lost an outstanding teacher, a consummate scholar, and a great friend. Bernie Schwartz will be missed by all.