Volume 79, Number 2

May 2004

Eroding Confidentiality in Delinquency Proceedings

Kristin Henning

While scholars have engaged in considerable debate about the continued viability of confidentiality in delinquency proceedings, much of that debate has focused on the media’s First Amendment right to access those proceedings. Now, with crime prevention at the forefront of many political agendas, policymakers are reframing the confidentiality debate as a question of public safety and accountability, and juvenile records are being disseminated, both lawfully and unlawfully, to agencies and institutions responsible for the protection, supervision, and care of children. Most state legislatures have rewritten confidentiality statutes to grant multiple exceptions to general rules protecting confidentiality; some states even require law enforcement officials to notify schools when students have been arrested.

In this Article, Professor Henning examines how schools and public housing authorities obtain juvenile records and explains how these institutions may use the records to exclude children and their families from the basic benefits of education and housing. Drawing on recent research in the field of developmental psychology, Professor Henning reevaluates early assumptions about adolescents’ amenability to treatment and the impact of stigma on children and explores the practical implications of sharing records with schools and public housing authorities, questioning whether new confidentiality exceptions actually will yield the expected benefits of improved public safety. She concludes that legislators should deny public housing authorities access to juvenile records but allow schools limited access to records through a series of school liaisons. These liaisons should attempt to accommodate, on a case-by-case basis, the often competing values of preserving safety in schools while enabling the rehabilitation of children in the juvenile justice system.

Modeling Standing

Nancy Staudt

Standing doctrine serves the important function of ensuring that plaintiffs are the proper parties to bring suits in federal courts, but it has long been the subject of criticism. Scholars have labeled it an incoherent and unstable area of the law and declared that standing decisions are primarily influenced by the political ideologies of judges. Several existing empirical studies have analyzed standing in the federal courts and supported the claim that standing decisions are rooted primarily in individual politics and not legal doctrine. Spurred by this widespread criticism as well as the empirical support, several well-known scholars have proposed reforms of the standing doctrine in an effort to hinder political decisionmaking or at least to bring more candor to the decisionmaking process.

In this Article, Professor Nancy Staudt undertakes rigorous empirical analyses to test the underlying claim that all standing decisions are politically motivated. Improving upon the prior standing studies that have a range of limitations and possible flaws, Professor Staudt’s study focuses on standing decisions in one area of the law-taxpayer challenges to government spending-and analyzes the results up and down the federal judicial hierarchy. Using statistical models, she finds that judges render law-abiding and predictable decisions where clear precedent and effective judicial oversight exist; where these variables are absent, however, standing decisions are more likely to be based on judges’ personal ideologies. Professor Staudt then applies her findings to the proposed standing reforms and determines that they address some of the problems in the standing doctrine but ignore the importance of the judicial hierarchy. The reform proposals, she argues, are destined to fail unless they consider institutional factors such as the level of oversight and monitoring in the judicial hierarchy.


From Exclusivism to Accomodation

Abdulaziz H. Al-Fahad

Doctrinal and Legal Evolution of Wahhabism

On August 2, 1990, Iraq attacked Kuwait. For several days thereafter, the Saudi Arabian media was not allowed to report the invasion and occupation of Kuwait. When the Saudi government was satisfied with the U.S. commitment to defend the country, it lifted the gag on the Saudi press as American and other soldiers poured into Saudi Arabia. In retrospect, it seems obvious that the Saudis, aware of their vulnerabilities and fearful of provoking the Iraqis, were reluctant to take any public position on the invasion until it was ascertained whether the United States was willing to commit its forces to the defense of the Kingdom and eventually the liberation of Kuwait.


Balancing Acts

Catherine A. Hardee

In the postcolonial world, many developing nations struggle to manage significant populations of different ethnic groups, religions, and nationalities within their borders. There has been a concentrated effort on the part of many nations to provide protection for cultural groups, even to the extent of allowing cultural and religious groups to define the personal law that will govern their members. Often, however, the effort to provide freedom for cultural groups to practice their beliefs conflicts with the ideals of equality and choice for women that are central to the liberal feminist movement. In this Note, Catherine Hardee surveys the theoretical literature surrounding the debate between multiculturalism and feminism and advocates for the use of a middle-ground approach that balances the rights both of cultural groups and women-giving minority groups protection from the law of the majority if and only if, their practices do not interfere with the rights of individuals within that culture to fully participate in society. Hardee then examines Kenyan marital law to see how that balance is struck. She finds that the multiple types of marriages available to Kenyan women create something of a market in marriage with the potential to amplify women’s voices through choice. Practical problems, however, lead to inefficiencies in the market that threaten women’s rights. To adequately protect women’s interests these inefficiencies must be addressed to ensure that market outcomes accurately reflect the preferences of women within the cultural group.

Two Wrongs Make a Right

Ming Hsu Chen

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion,┬ábring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II‘s hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.