Robert J. Reinstein *
Let’s fast-forward to a point in the near future. The President has given up on unsuccessful American mediation attempts to secure a peace treaty between Israel and the Palestinians. To resolve this longstanding impasse, the President offers his own peace plan for the Middle East, which includes the creation of the State of Palestine with defined borders, including the partition of Jerusalem, and the settlement of other outstanding issues that have divided the parties. The plan is accepted by the Palestinian Authority but not by Israel. The Palestinian Authority then declares the independent State of Palestine that has the borders and other conditions prescribed in the President’s proposal. The President quickly announces that the United States recognizes the State of Palestine with those borders and conditions. Does he have the constitutional power to so bind the United States? And suppose that Congress passes legislation to override the President’s decision. Is that legislation constitutional?
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* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. My thanks to my colleagues Jeffrey Dunoff, David Hoffman, and Gregory Mandel for their helpful suggestions, and to Michael Connett and Matthew Adler for their extraordinary research assistance.
Luke M. Milligan *
For over a century law professors and political scientists have shared a commitment to the study of how judges decide cases. Today the subject of judicial decisionmaking continues to hold the focus of some of the most influential scholars in law schools and political science departments. Despite their common point of study, legal scholars and political scientists have traditionally held deep suspicions about the other‘s models, data, and ideas. Their mutual distrust is a function of contending assumptions about judicial values and goals. Within political science, scholars of “judicial politics” have tended to assume that judges use their office to maximize the implementation of a broad platform of individual policy preferences. This assumption has been resisted, and in most cases flatly rejected, by the constitutional theorists of the legal academy.
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* Assistant Professor of Law, University of Louisville School of Law. The author is grateful for comments received at the Criminal Procedure Discussion Forum at Emory University School of Law and the Faculty Workshop Series at Florida State University College of Law.
Benjamin Barros*
When (if ever) a judicial action can be an unconstitutional taking of private property has long been an open question in American constitutional law. Nested within this larger question are a host of detailed issues concerning both substance and procedure. Despite passing references in some cases, and a more direct discussion in one concurring opinion, the Supreme Court of the United States—until recently—had never squarely addressed the question of judicial takings or the detailed issues that a judicial takings doctrine would present.
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* Associate Professor of Law, Widener University School of Law, Harrisburg Campus. Thanks to Nestor Davidson, John Dernbach, and David Spohr, and to participants in faculty workshops at Widener University School of Law and Lewis & Clark Law School, for helpful comments.
J. Amy Dillard *
Shortly after the Supreme Court of the United States handed down its opinion in Atkins v. Virginia, exempting mentally retarded capital defendants from execution, the American Bar Association (“ABA”) issued two legislative options for states to adopt in order to comply with the directive of Atkins. Alternative A recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the trial judge should conduct a pretrial hearing to determine if the defendant is mentally retarded and, thus, not death-eligible. Alternative B recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the judge should empanel a jury for the sole purpose of determining if the defendant is mentally retarded and, thus, not death-eligible. By adopting either option, the mental retardation assessment would be kept away from the death-qualified juror, who might be inclined to ignore the core values of the criminal justice system and, more narrowly, the rationale in Atkins. With either ABA-suggested procedure, the trial court could assure due process for the mentally retarded capital defendant.
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* Assistant Professor of Law, University of Baltimore School of Law. J.D., Washington and Lee University Law School; B.A., Wellesley College.
David Frisch *
First, the old news. In 1998, the American Law Institute (“ALI”) and the Uniform Law Commission (“ULC”)—as sponsors of the Uniform Commercial Code (“UCC” or “Code”)—gave their approval to the final text of the newest version of Article 9 (“Revised Article 9”) after eight years of studying, drafting, and the inevitable wrangling between consumer and credit representatives. In an effort to reduce the likelihood of national non-uniformity during the transition stage as each state moved from the old version to the new at its own legislative pace, the drafters included a provision making July 1, 2001 the effective date of Revised Article 9. The drafters hoped that on this date Revised Article 9 would become effective nationwide. That hope was, as a practical matter, realized as all but four states adopted the date.
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* Professor of Law, University of Richmond School of Law. LL.M., Yale Law School; J.D., University of Miami School of Law; B.S., University of Pennsylvania. I would like to thank Blake Y. Boyette and the staff of the University of Richmond Law Review for their research and input.
Donald J. Kochan *
Equality —it is a concept that pervades political and social discourse throughout the country, and has done so for centuries. The Declaration of Independence provides, “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . . .” Consider the inscription on the façade of the Supreme Court of the United States—“Equal Justice Under Law”—as an indelible monument to equality in the foundation of our legal system. As Karst describes in his influential article, “[t]he ideal of equality is one of the great themes in the culture of American public life. From the Declaration of Independence to the Pledge of Allegiance, the rhetoric of equality permeates our symbols of nationhood.” Karst may or may not concur with this essay’s ultimate conclusion, but his sentiment frames the debate—defining equality and defining its ideal in light of governing principles.
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* Associate Professor of Law, Chapman University School of Law. J.D., 1998, Cornell Law School; B.A., 1995, Western Michigan University. I thank Ryan O’Dea for valuable research assistance.
