Volume 76, Number 5

November 2001

A Revolution Too Soon: Woman Suffragists and the “Living Constitution”

Adam Winkler

From 1869 to 1875, activists associated with the National Woman Suffrage Association, including Susan B. Anthony and Elizabeth Cady Stanton, argued that the United States Constitution guaranteed women’s right to vote. Adam Winkler argues that this movement–which the suffragists termed the “New Departure”–rested on an innovative theory of constitutional interpretation that would become the dominant mode of constitutional construction in the twentieth century. Now recognizable as “living constitutionalism,” the suffragists’ approach to constitutional interpretation was harshly critical of originalism–the dominant mode of nineteenth-century interpretation–and proposed to construe textual language to keep up with changing societal needs. This Article analyzes the intellectual currents that made plausible the suffragists’ embrace of an evolutionary interpretive methodology, traces the development of the suffragists’ approach as they fought for the franchise in Congress and in the courts, and reveals how radical suffragists encountered the obstacles of originalism at every turn. Correcting the error of constitutional historians who assert that living constitutionalism first emerged in the Progressive Era, this Article stakes a claim for recognizing woman suffragists as important innovators at the forefront of modern constitutional thought.

The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

Barry Friedman

For nearly a century, the conventional wisdom has been that during the Lochner era, Supreme Court Justices failed to adhere to constitutional norms requiring deference to majoritarian decisions and inappropriately struck down laws by substituting their own views for those of legislative bodies. Recently, however, revisionist scholars have endeavored to rehabilitate Lochner-era judicial decisionmaking by demonstrating that those decisions were based soundly on established legal principles. In this Article–the third in a five-part series–Professor Barry Friedman calls into question both revisionist and conventional accounts of the Lochner era. After outlining the revisionist agenda and its effort to bestow “legal legitimacy” upon Lochner-era decisions, Friedman presents extensive historical evidence showing that popular opinion throughout the era saw judges as deciding controversial cases in illegitimate ways, creating novel constitutional rights, and acting on class biases. Revisionists also claim that Justice Holmes’s famous Lochner dissent was novel, and that his arguments regarding deference to majority will were adopted only after the fact by Progressive critics of the courts. But Friedman establishes that there was nothing novel to Holmes’s dissent; Justice Harlan said much the same in his, and both were part of a wide movement that criticized courts for interfering with the popular will. By juxtaposing the hue and cry over Lochner-era decisions with revisionist claims of doctrinal fidelity, Friedman concludes that the true test of whether controversial decisions such as Lochner will be accepted as legitimate is not simply whether such decisions are legally precedential, but whether the wider public perceives them to be “socially legitimate,” i.e., appropriate as a matter of policy given the necessities of the time.

Compelled Statements from Police Officers and Garrity Immunity

Steven D. Clymer

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators’ questions or face job termination. Relying on the Supreme Court’s decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs investigators decide whether to take and disseminate compelled statements from police officers, prosecutors are powerless to prevent the problem. Yet, as Professor Clymer shows, the Garrity doctrine as applied by lower courts, has an uncertain foundation. The Supreme Court never has addressed the full range of protections that courts often bestow on compelled statements, such as prohibitions on nonevidentiary and indirect evidentiary use. Furthermore, these stringent use restrictions are difficult to square with the less robust protection that courts afford coerced confessions and with the need to address police criminality effectively. While rejecting the proposition that the Court should overrule Garrity, Clymer argues that courts should relax prohibitions on collateral uses of compelled statements. Clymer also suggests that policymakers require police departments to use sanctions less severe than job termination to prompt police officers to answer questions during administrative investigations. Threats of lesser sanctions often will be sufficient to encourage police officers to answer and will do so without triggering Garrity immunity. This approach fairly balances the competing interests of police departments, police officers, and prosecutors in cases of alleged police criminality.


Professor Lawrence P. King

Daniel G. Collins

Professor Lawrence P. King, who died on April 1 of this year at the age of seventy-two, gave more than a half-century of remarkable service to New York University School of Law. He entered the Law School in September, 1950. Larry, as he was known to all, was both the Articles Editor and the Book Review Editor of the Law Review, a prodigious feat given that it produced eight issues per year. Larry received his LL.B. in 1953, worked for two years as an attorney at Paramount Pictures, and then earned an LL.M. at the University of Michigan. In 1957, Larry took his first teaching position as an Assistant Professor at Wayne State University Law School in Detroit. He returned to New York University School of Law in 1959 as an Associate Professor and became a full Professor in 1993. In later years, Larry was a visiting professor at Berkeley, Temple, and Houston, and at three Israeli universities: Hebrew, Tel Aviv, and Haifa.

The Practical Scholar

David G. Epstein

Larry King was “the practical scholar” for bankruptcy. In 1992, Harry Edwards, a District of Columbia Court of Appeals judge who has been a lecturer at New York University Law School since 1989, provided a definition of “practical scholarship” that defines Larry’s scholarship: “[I]t analyzes the law and the legal system with an aim to instruct attorneys in their consideration of legal problems; to guide judges and other decisionmakers in their resolution of legal disputes; and to advise legislators and other policymakers on law reform.”‘

Master Teacher Remembered

Michael L. Cook

We lost a gifted teacher when Larry King died on April 1. Many constituencies rightfully can claim this loss, including New York University School of Law, where he was the Charles Seligson Professor of Law and where he taught for forty years (he called it the “Law School”); and the world’s legal community: courts, practitioners, and scholars that regularly relied on his clear, practical writings such as the authoritative Collier bankruptcy treatise.


Domestic Violence and U.S. Asylum Law: Eliminating the “Cultural Hook” for Claims Involving Gender-Related Persecution

Anita Sinha

In this Note, Anita Sinha examines the treatment of asylum claims involving gender-related persecution. Analyzing the three most recent decisions published by the Board of Immigration Appeals, Sinha illustrates that these cases have turned on whether the gender-related violence can be linked to practices attributable to non-Western, “foreign” cultures. Sinha argues that cases involving gender-related persecution can be given full consideration of asylum law only when their adjudication is based on an understanding of the political and institutional character of violence against women, rather than on “cultural” culpability. In making this argument, Sinha examines recent amendments to the regulations governing asylum law that have been proposed to improve the adjudication of gender-related claims. Identifying their shortcomings, Sinha offers suggestions to improve the proposed regulations so that they would truly mandate equal treatment of asylum claims involving gender-related persecution vis-à-vis more traditional asylum claims.

Expert Witness Discovery for Medical Malpractice Cases in the Courts of New York: Is It Time to Take Off the Blindfolds?

Richard S. Basuk

In this Note, Richard Basuk explores the current application of the Federal Rules of Civil Procedure (FRCP) and the New York Civil Practice Law and Rules (CPLR) regarding expert witness discovery in medical malpractice cases. Basuk finds that, while both the FRCP and the CPLR claim to value principles of broad discovery, the federal rules surpass the CPLR in actually advancing those principles. The expert discovery provisions of the FRCP, as they apply to medical malpractice cases, successfully balance and incorporate the advantages of liberal expert disclosure. Their mandatory pretrial exchange of information allows parties to evaluate the strength of their cases, to achieve early and just settlements, and to prepare effectively for cross-examination so that trials proceed on cases’ merits. In contrast, the New York rules severely limit the exchange of expert witness information during discovery and thereby frequently prevent parties and the courts from reaching any of these goals. Basuk concludes that New York should more fully embrace the principles of the FRCP and adopt the federal language for expert witness discovery in medical malpractice cases.