Volume 74, Number 4

October 1999

Stopping the Usual Suspects: Race and the Fourth Amendment

Anthony C. Thompson

In this Article, Professor Thompson addresses the constitutional and policy implications of racially motivated searches and seizures. He begins by showing that the Supreme Court’s most recent pronouncement on the subject, Whren v. United States, which has been treated by scholars as a new direction in the Court’s Fourth Amendment jurisprudence, is actually a natural and inevitable consequence of jurisprudential, rhetorical, and narrative choices the Court made thirty years ago in Terry v. Ohio. Analyzing the language of Terry, Professor Thompson demonstrates the way in which the Court removed race from the case and explains that the Court was forced, as a result, to create an alternative narrative to explain its judgment. He then traces the effects that Terry has had on the Court’s treatment of race in subsequent decisions. In Part II of the Article, Professor Thompson challenges the assumptions that underlie the Court’s analysis of racially motivated searches and seizures in Terry and subsequent decisions. First, he uses social science data to demonstrate that the Court’s conception of “racially neutral” searches and seizures overlooks compelling evidence of the hidden effects of race on individuals’ perceptions and judgment. He then draws upon the history of the Fourth Amendment to demonstrate that the Court’s treatment of racially motivated searches and seizures runs counter to the intentions of the framers of the Amendment. Professor Thompson argues that the framers of the Fourth Amendment specifically intended to protect disfavored minority segments of the population from selective governmental use of search and seizure powers. Finally, in Part III, Professor Thompson proposes a variety of doctrinal and nonjudicial remedies designed to effectuate the original intent of the Fourth Amendment by deterring racially motivated searches and seizures.


State Courts and Democracy: The Role of State Courts in the Battle for Inclusive Participation in the Electoral Process

The Honorable George Bundy Smith

Brennan Lecture

As recently as 1962, the United States Supreme Court declined to rule on challenges to legislative apportionment schemes that created grossly disproportionate electoral districts. When, in the seminal decision Baker v. Carr, the Supreme Court held such challenges to be justiciable, the federal courts in this country took on a new and important role. In this Brennan Lecture, Judge Smith explores the context in which this reapportionment “revolution” emerged and developed, in particular highlighting the symbiotic relationship between the reapportionment struggle and the struggle for African American civil rights.

Smith turns his attention to the role state courts have played in these twin revolutions. He begins by noting that the federal reapportionment decisions had important state court antecedents. He then argues that contemporary judges–both state and federal–play two crucial roles in the struggle for inclusive participation in the electoral process. First, judges are required to maintain constant vigilance to ensure that the level playing field promised by Justice Brennan in Baker v. Carr becomes and remains a reality. Second, judges must ensure that the Federal Constitution, state constitutions, and the Voting Rights Act are enforced to prevent discrimination against African Americans and other minorities. As Judge Smith concludes, successful performance of each of these two functions is necessary to ensure that African Americans and other historically oppressed minorities become a meaningful part of American democracy.


Subsidized Speech and the Legal Services Corporation: The Constitutionality of Defunding Constitutional Challenges to the Welfare System

Megan Elizabeth Lewis

In 1996, Congress passed legislation restricting lawyers receiving federal finds through the Legal Services Corporation from undertaking litigation challenging the constitutionality of welfare laws. Two circuits of the court of appeals have since rendered conflicting decisions on the constitutionality of this restriction. In this Note, Megan Lewis argues that this constraint on Legal Services grantees constitutes impermissible viewpoint discrimination under the First Amendment. Lewis’s argument is grounded on the principle that the Constitution limits the government’s power to restrict speech that it subsidizes. She suggests that the public forum doctrine, when analyzed in light of the Supreme Court’s decisions in Rosenberger v. Rector & Visitors of the University of Virginia and Rust v. Sullivan, provides a framework for distinguishing between permissible and impermissible restrictions on Legal Services grantees. Building on the terminology of Professor Robert Post, Lewis asserts that Legal Services lawyers act independently when they serve their clients, rather than as instrumentalities of the state, and hence do not fall within the government’s managerial control. Moreover, the restriction infringes on their clients’ First Amendment right to participate in litigation, itself a protected public forum. Lewis concludes that the restriction impermissibly interferes with protected speech and skews the debate within the public forum created by the subsidy for Legal Services.

Hanging Out the No Vacancy Sign: Eliminating the Blight of Vacant Buildings from Urban Areas

David T. Kraut

Despite recent aggressive efforts to revitalize distressed urban communities, city governments have been unable to find an effective solution for the problem of vacant buildings. Such properties adversely affect the surrounding community, increasing crime and the risk of fire while posing health hazards to nearby residents. Because many owners continue to pay taxes on vacant buildings with the speculative hope of future profit from sale or condemnation, city governments have a particularly difficult time seizing the properties without paying exorbitant amounts of just compensation. In this Note, David Kraut suggests a new way for city governments to eliminate these properties. First, Kraut argues that municipal governments should have the power they currently lack to seize vacant buildings with a substantial number of local housing code violations or that have been vacant for a significant amount of time. Kraut then suggests lowering the amount of just compensation paid for these buildings by discounting the property based on how much it would cost to bring the property up to code standards. He concludes by discussing some of the potential constitutional issues that could be raised by disgruntled property owners.

Valuing Honest Services: The Common Law Evolution of Section 1346

Alex Hortis

In this Note, Alex Hortis analyzes the application of the mail fraud statute, as codified at 18 U.S.C. § 1346, to enforce citizens’ intangible right to the “honest services” of public officials. Reviewing the evolution of § 1346, Hortis finds that, although it has been perceived as statutorily vague and intrusive into state and local affairs, § 1346 has not been used in an unnecessary or overly broad manner, does not violate defendants’ constitutional rights, and does not result in a significant number of federal prosecutions of state and local officials. Rather, viewed from an economic perspective, Hortis argues that § 1346’s broad malleability, as a form of federal common law, is one of its greatest assets as it is more efficient to let the courts define crimes on a case-by-case basis than to redraft statutes to address new forms of corruption. Hortis further argues that centralizing enforcement at the federal level takes advantage of economies of scale and prosecutorial experience. Hortis concludes that § 1346’s broad applicability benefits the public by reducing prosecution costs with its lower evidentiary requirements, creating marginal deterrence against corruption, and reinforcing a desirable standard of conduct for public officers.

Liquid Honesty: The First Amendment Right To Market the Health Benefits of Moderate Alcohol Consumption

Erik Bierbauer

For several years, wine makers have sought to advertise and otherwise promote scientific research showing that moderate drinking can have beneficial health effects. The federal govermnent, however, has largely blocked the wine makers’ efforts, contending that advertisements or labels referring to alcohol’s potential health benefits would almost invariably mislead consumers into discounting alcohol’s numerous dangers. In this Note, Erik Bierbauer argues that wine makers and other alcohol producers have a First Amendment right to market the health benefits of moderate drinking, as long as they do so accurately and include certain limited disclaimers in their promotional materials

Bar Baron at the Gate: An Argument for Expanding the Liability of Securities Clearing Brokers for the Fraud of Introducing Brokers

John M. Bellwoar

The securities brokerage industry is divided into those brokers who process their own trades and those brokers who use other firms to process their trades. The latter group, called “introducing brokers,” send their customers’ trade orders to “clearing brokers,” who then make the actual trades. Recent highly publicized cases of fraud by introducing brokers have led to closer scrutiny of the introducing broker-clearing broker relationship, and in particular, speculation over whether clearing brokers should be liable when they clear the trades of introducing brokers who are committing fraud. As the law now stands, clearing brokers are effectively immune from this type of liability, and the clearing broker industry has argued that any expansion of their liability would lead to clearing brokers abandoning the market. This Note uses the analytical structure of gatekeeping liability to argue for expanding clearing brokers’ liability for introducing brokers’ fraud.