Volume 74, Number 5

November 1999

A Matter of Prostitution: Becoming Respesctable

Beverly Balos, Mary Louise Fellows

Feminists have achieved significant antiviolence legal reforms in the areas of domestic abuse, sexual harassment, and rape over the past three decades. These reforms, however, have reinforced old borders between the traditional categories of violence and prostitution and have constructed new borders by maintaining the distinction between worthy and unworthy women. Despite these flaws, the law reform efforts have the capacity to transform the legal and social meaning of prostitution. By adopting an approach that transcends consent or coercion and private or public, Professors Fellows and Balos use the concept of respectability to introduce an analytically powerful framework for rethinking prostitution as a paradigm of degradation and as a practice of inequality. First, the authors explain the role these dichotomies play in maintaining social hierarchies through the discourse of respectability. Next, the authors situate the relationship among prostitution, racial and gendered cultural practices, and rights of citizenship within the degradation/respectability framework. The authors use the concept of respectability to critique previous reform efforts and to propose a possible civil rights remedy that is not dependent on the traditional concepts of consent and coercion and individual liberty. In this way, they avoid polarizing the debate and create a genuine opportunity for significant legal reform in the area of prostitution. Ultimately, the authors elaborate a theory of citizenship that undermines the degeneracy/respectability dichotomy and that does not depend on an idea of worthiness.


Realism About Federalism

Frank B. Cross

In this Essay, Professor Cross responds to recent academic efforts to develop a robust judicial federalism doctrine, which advocate increased judicial review of legislative activities and suggest that an expanded federalism doctrine would have significant, negative consequences. Professor Cross challenges the assumption that courts would apply a principled, neutral doctrine of federalism, using empirical evidence to demonstrate that courts consistently have invoked federalism for political or ideological reasons. He suggests that the flexibility of the proposed federalism doctrines would allow judges to manipulate results to achieve ideological ends and that the resulting intrusive judicial review would implicate separation of powers concerns and impair legislative functioning. He argues further that institutional realities-the susceptibility of judges to the concerns and influence of the other branches of government-would prevent such federalism from being a meaningful restriction on the powers of the federal government in any event. Professor Cross concludes that proponents of expanded federalism should focus their efforts on creating a practicable doctrine that is not as vulnerable to ready manipulation and high systemic costs.


Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws

Jane A. Small

All fifty states have enacted sex offender registration acts (SORAs). In addition to requiring registration with the state, these laws usually provide for the notification of an individual’s status as a sex offender-along with the dissemination of personal information-to law enforcement officials and members of the community. In this Note, Jane Small argues for enhanced due process protections for offenders when they are required to register. Since SORAs are not aimed at punishment but rather community protection, they are civil, not criminal, statutes and the due process standard for civil proceedings, as announced in Mathews v. Eldridge, ought to be applied. That standard requires a court to weigh the risk of depriving an individual of a protected interest against the governmental interest embodied in a particular procedure. Small surveys SORAs’ problems, including the inappropriately generalized categorization of sex offenders and the danger notification poses to individual offenders, and outlines recent cases applying the Mathews standard to assess the constitutionality of SORAs. She then evaluates available procedural protections and current notification mechanisms for their compliance with the requirements of Mathews. She concludes that an individualized, fact-specific assessment must be made in every case and that the proceedings must be narrowly geared to the legitimate aim of SORAs-community protection-in order not to infringe on the individual’s interests any more than is necessary to achieve that aim.

A Birthright Rearticulated: The Politics of Bilingual Education

Nirej Sekhon

This Note addresses Proposition 227, California’s recently enacted voter initiative banning bilingual education in public schools. Nirej Sekhon argues that the proposition functions rhetorically as a racially inflected exhortation to nonwhite peoples in the United States. The proposition equates American identity with white identity by claiming English as the birthright privilege of white Americans. As such, the proposition is continuous with the history of language and education politics in the United States. The author concludes by sketching the broad challenge that his analysis poses to current legal mechanisms.

Can Courts Confer Citizenship? Plenary Power and Equal Protection

Derek Ludwin

In this Note, Derek Ludwin applies principles of equity to the jurisprudence of nationalization law. In a recent case, Miller v. Albright, the Supreme Court failed to provide a remedy for the victim of an unconstitutional naturalization statute that favors foreign-born illegitimate children of citizen mothers over those born to citizen fathers. Ludwin highlights the Court’s unnecessary impotence due to its strict adherence to the plenary power doctrine and unquestioning deference to Congress. He traces the history of the application of the plenary power doctrine in naturalization law, noting that the Court has never overturned a naturalization statute on equal protection grounds. Ludwin finds, however, that Miller, in which a majority of the justices deemed a naturalization statute to be unconstitutional, marks an important jurisprudential shift toward applying the plenary power doctrine in conjunction with other interests, such as equal protection. Ludwin further argues that the Miller Court’s unwillingness to address the tension between plenary power and equal protection has left the lower courts without guidance in this area and that without an effective remedy-the power to grant citizenship directly-the Court’s finding of unconstitutionality is too weak to afford any real protection. The answer, he states, lies in principles of modem equity. Ludwin concludes that direct conferral of citizenship is in accordance with the Court’s generous post-Brown exercise of equity power in equal protection cases.

Decertification of Statewide Tobacco Class Actions

Susan E. Kearns

Tobacco litigation splintered into statewide class actions after the Fifth Circuit decertified a nationwide class of “nicotine-dependent persons” in Castano v. American Tobacco Co. In this Note, Susan Kearns analyzes “son of Castano” class actions as a vehicle for adjudicating individual tobacco claims. Reviewing two recent tobacco class actions, she argues that statewide class actions confront the same obstacles that required decertification of the nationwide Castano class. She contends that litigant autonomy, judicial efficiency, and due process considerations should preclude the certification of a “son of Castano” class action in state or federal court.


Tribute to Stewart G. Pollock

Judith S. Kaye, Reginald Stanton, Howard M. Erichson

Justice Stewart G. Pollock retired from the New Jersey Supreme Court on September 1, 1999, after twenty years of service. The editors of the New York University Law Review dedicate this issue to Justice Pollock in tribute to his distinguished career on the bench. Chief Judge Judith Kaye, Judge Reginald Stanton, and Professor Howard Erichson provide insights into Justice Pollock’s jurisprudence and character.