Volume 78, Number 3

June 2003

Speech, Death, and Double Effect

Seana Valentine Shiffrin

In this Article, Professor Seana Shiffrin identifies and explores a tension between the Supreme Court’s recognition of First Amendment protection for incendiary speech and the Court’s argument for rejecting the claim to a right to assisted suicide. Constitutionally, speakers may not be held liable for the illegal actions they inspire in audience members, unless the very high Brandenburg standard is met. By contrast, it is constitutional to prevent those who would seek assisted suicide from doing so, on the ground that a culture in which some elect suicide will encourage a higher incidence of involuntary deaths. Here, those who would voluntarily seek to exercise an important liberty interest are restricted in light of the projected illegal action of others. Shiffrin argues that this same tension is replicated in the contrast between the Court’s approach to incendiary speech and its approach to the regulation of secondary effects. Shiffrin contends that this tension holds special interest because the asymmetry it represents privileges intended harm over merely foreseen or foreseeable harm, inverting the traditional priority associated with the doctrine of double effect. Shiffrin argues that, surprisingly, this inversion may be defensible in legal contexts, even if it is not sustainable in interpersonal moral theory. In fact, the inversion can result from the use of double-effect-style reasoning at the level of rule formation. Although this inversion may seem counterintuitive, the justifications for the legal protections for freedom of speech and for self-determination may provide a plausible explanation. We may understand the doctrinal difference by examining the structure of the values at which each regulation is aimed. The value of freedom of speech can only be realized if speakers are insulated from responsibility for the persuasive impact of their speech; by contrast, the liberty interest valued in the context of assisted suicide does not encompass the side effects of that action. This justification may also have implications for the future interpretation of the secondary effects doctrine.

The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?

Arthur R. Miller

Although there are demands for procedural “reform” in the face of a perceived “litigation explosion” and “liability crisis,” little empirical research has been done to determine if those fears are legitimate even though a multitude of solutions are being proposed and some have been promulgated. This Article examines the use of summary judgment and the motion to dismiss in light of these increasing concerns about the efficiency of the federal judicial system. Professor Miller analyzes the 1986 Supreme Court summary judgment trilogy and its effect in transforming the procedural device into a method frequently used to dispose of litigation before trial. He studies decisionmaking in the federal courts with regard to the trilogy and expresses concern that courts have extended the use of summary judgment and the motion to dismiss to resolve disputes that are better left to trial and the jury. Courts, Professor Miller argues, too often appear to be placing their interests in the efficient resolution of disputes, concerns about jury capability, and other matters above litigants’ rights to a day in court and jury trial, and he suggests that judicial restraint as well as further Supreme Court guidance is needed to prevent trial courts’ discretion from eclipsing these fundamental rights of litigants.

Legal Indeterminacy and Institutional Design

Michael C. Dorf

For over a generation, constitutional theory and academic jurisprudence have attempted to reconcile, on the one hand, the rule of law and the Constitution’s fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the tyranny of the majority and the counter-majoritarian difficulty. Academic jurisprudence faces a parallel dilemma. Under close scrutiny, both positivism and its principal alternative—Dworkin’s “law as integrity”—turn out to adopt the same strategy for coping with legal indeterminacy: Each claims that the law’s areas of ambiguity are small; yet neither theory nor any of the leading approaches to constitutionalism proposes concrete measures to minimize the impact of legal indeterminacy.

Drawing inspiration from the Legal Process approach of Hart and Sacks, this Article proposes that instead of devising justifications for judicial review or explanations of the task of judges, theorists would do better to design institutions that reduce the domain of legal indeterminacy. Where Hart and Sacks proposed deference to politically accountable actors, however, this Article advocates deep collaboration with the other institutions of government. Departing from the Legal Process assumption that courts must defer to one of a fixed menu of institutions, this Article develops a model of “experimentalist” courts and agencies that are always in transition. This model is based in part on the explosive emergence of “problem-solving courts,” nominally judicial bodies that are more akin to decentralized administrative agencies than to conventional adjudicators. The model is also based on some hints in Supreme Court doctrine that suggest a role for appellate courts in using the opportunity of legal indeterminacy to create the preconditions for local deliberation about the content of legal norms.


Citizen-Soldier-Parent: An Analysis of Virginia Military Institute’s Parenting Policy

Adina H. Rosenbaum

After discovering for the first time that one of its female cadets was pregnant, Virginia Military Institute (VMI) rewrote its parenting policy to provide for the expulsion of any student who becomes pregnant or who impregnates someone else. In this Note, Adina H. Rosenbaum argues that this new policy violates both Title IX—the federal statute banning sex discrimination in education—and the United States Constitution. Rosenbaum demonstrates that it is a violation of the pregnancy regulations promulgated pursuant to Title IX to expel women for being pregnant and that, in analyzing whether they have been discriminated against, the treatment of pregnant women should be compared to the treatment of similarly able nonpregnant men and women. Thus, the VMI rule, which expels pregnant cadets while allowing similarly qualified cadets to remain in the Corps, fails to meet the requirements of Title IX, even though it also calls for the expulsion of men who have impregnated women. Rosenbaum argues that the policy further violates Title IX because it will have a disproportionate impact, leading to the expulsion of all female cadets who become pregnant but not of all male cadets who impregnate someone. Finally, she explains how, through the policy, the State of Virginia infringes on VMI cadets’ constitutionally protected right of privacy, particularly their right to make procreative choices without state interference.

Indigenous Peoples as Stakeholders: Influencing Resource-Management Decisions Affecting Indigenous Community Interests in Latin America

Gerald P. Neugebauer III

Multinational corporations and national governments who extract petroleum and other natural resources in Latin America often ignore the disastrous consequences resource development has on indigenous peoples, their habitats, and their traditional way of life. In order to reverse this trend, an indigenous peoples’ rights movement has emerged recently, seeking to equip indigenous groups with legal guarantees to safeguard their welfare. Although progress on the legal front has been promising, Gerald Neugebauer concludes that it has not yet accomplished enough, as there are numerous obstacles to effectuating strong human rights protections. He thus advocates adopting an alternative approach based on the stakeholder theory of corporate management—an approach that should result in greater participation and influence in resource management decisions for indigenous groups. In short, whereas human rights are articulated in abstract terms and rely on often ineffective government institutions for their enforcement, stakeholder arguments employ corporate terminology to inform petroleum companies directly as to why protecting indigenous interests is necessary to achieve conventional business objectives.

The Authorial Parent: An Intellectual Property Model of Parental Rights

Merry Jean Chan

The United States Supreme Court currently understands parenting as a constitutionally protected, substantive due process right. Yet the divisive nature of the doctrine of substantive due process has resulted in a confusing cacophony of pluralities, concurrences, and dissents that offer little guidance to lower courts. In this Note, Merry Jean Chan offers a new model with which to understand the Court’s parental rights jurisprudence. Identifying the expressive aspects of both procreation and childrearing, she argues that the constitutional foundation for the protection of parental rights lies in the First Amendment. The First Amendment, however, is only part of the story. The democratic state has a valid interest in children and the continuing production of functioning, diverse citizens. This interest may conflict with parental prerogative. Chan observes that intellectual property law mediates a similar tension between state interests and expressive rights. She proposes the “authorial parent paradigm, ” conceiving exclusive parental rights as an incentive for and reward to those who meaningfully and responsibly contribute to the perpetuation of democracy through reproduction and childrearing. The interplay between the intellectual property analogy and the protections of the First Amendment serves to recognize both the rights of parents and the interests of the state.