Volume 22, Issue 1
Volume 22, Number 1 Fall 1994
Mapping and Matching DNA: Several Legal Complications of "Accurate" Classifications (page 1)
By Aviam Soifer and Miriam Wugmeister
Classifications are a boon and bane and a basic bone of contention in law. With the advent of DNA matching and new knowledge of the human genome, significant problems that exist in other areas of law are exacerbated. The use of even accurate classifications may generate substantial discrimination in the realms of privacy an personal freedom.
Endorsement as "Adoptive Action:" a Suggested Definition Of, and an Argument for, Justice O'Connor's Establishment Clause Test (Page 29)
By Joel S. Jacobs
In recent years, the line between acceptable and unacceptable government activity in the religious sphere has been blurred. Three separate tests--the Lemon v. Kurtzman Test, the Endorsement Test, and the Coercion Test--all are currently vying for adoption by a majority of the Supreme Court. This Article examines the Court' Establishment Clause jurisprudence in an attempt to formulate a workable standard which best represents the value of the Clause.
The Endorsement Test, as currently applied, shows the most promise. However the focus on "real people" and the use of the "objective observer" standard pose severe logistical problems. This article redefines endorsement as "adoptive action" action which expresses approval or disapproval of religion in general, a particular religion, or a "distinctively religious" element of a religion. If the approval or disapproval is not explicit, any special benefit or burden assigned to religion may also be improper adoption unless the action was motivated by purely secular concerns.
Toward a New Vision of Informants: A History of Abuses and Suggestions for Reform (page 81)
By Clifford S. Zimmerman
Informants have long been used in American criminal law enforcement. Informants are often the best, if not the only, way to discover and thwart certain crimes particularly crimes in which the victim is unknown or reluctant to cooperate. Because of informants' usefulness, law enforcement personnel, from prosecutors to prison guards, are tempted to abuse the informant system. No government can be suppose to have expressly instructed its spies to instigate the perpetration of crime. Nevertheless, to remain unsuspected, every spy must be zealous in the cause which he pretend to have espoused. That zeal directly encourages crime. In short, our government is incidentally advancing crime while trying to curtail it, and it is doing so without bearing any responsibility.
This article argues that the key to stopping the abuses of the informant relationship is to apply a rebuttable presumption that informant conduct is state action and action under color of law. This presumption will instill responsibility in law enforcement agencies for their decision to use informants. The closer informant-handler relationship will have a significant impact upon how courts view informants in both criminal and civil litigation. In both contexts, the presumption creates a linkage between the government and the informant that will force law enforcement to take responsibility for the use of informants.
NOTES
The Gun-Free School Zones Act: The Shootout Over Legislative Findings, the Commerce Clause, and Federalism (page 179)
By David S. Gehrig
The Fifth Circuit, in United States v. Lopez, struck down the Gun-Free School Zones Act as unconstitutional based on a new procedural requirement: prior to enacting a statute under the Commerce Clause, Congress must make findings which link the regulated activity to interstate commerce. The Supreme Court has granted certiorari to Lopez apparently in an effort to reconcile a split among the circuits regarding the constitutionality of the Act, and will issue its opinion in early 1995. While the constitutionality of the Act hinges on the necessity of legislative findings, it also raises Commerce Clause and Tenth Amendment issues.
This Note argues that the Supreme Court should uphold the Act as constitutional. Congress has never been required to make legislative findings in order to legislate, and such a requirement would serve no useful purpose. The relevant Commerce Clause and Tenth Amendment precedent also support the Act. In addition, the rising tide of gun violence in schools is a national problem which requires a federal remedy like the Gun-Free School Zones Act.
Racism in Our Courts: The Underfunding of Public Defenders and its Disproportionate Impact Upon Racial Minorities (page 219)
By Rebecca Marcus
The severe underfunding of the nation's Public Defender System has jeopardized the criminal defendant's right to adequate assistance of counsel. The denial of this right has a disproportionate impact upon racial minorities because they are disproportionately represented by public defenders. The result is a violation of minorities' Sixth Amendment right to counsel and Fourteenth Amendment right to equal protection.
This Note examines the causes of underfunding and its effects on racial minorities. To remedy this discrimination, this Note offers several proposals, including a burden-shifting scheme, the use of the disparate impact standard to show discrimination (as opposed to the discriminatory purpose standard), and the application of strict scrutiny to statutes which fail to provide adequate funding to Public Defender offices.