Volume 23, Issue 3

Volume 23, Number 3                                                                                                      Spring 1996

FORUM

RHETORICAL CRITICISM OF LEGAL TEXTS: FOUR RHETORICIANS ON LOCHNER V. NEW YORK (page 621)
By Eileen A. Scallen
William E. Wiethoff
Warren Sandmann
James Arnt Aune

This Forum consists of four Essays which explore and analyze the rhetoric used in the Lochner opinions authored by Justices Peckham, Harlan, and Holmes. These Essays were inspired in part by Judge Richard Posner's Law and Literature: A Misunderstood Relation, and are offered to facilitate interdisciplinary dialogue between legal and rhetoric scholars on the ways legal rhetoric shapes our political and legal institutions.

THE "HAMLET" FALLACY: COMPUTER NETWORKS AND THE GEOGRAPHIC ROOTS OF OBSCENITY REGULATION (page 671)
By Randolph Stuart Sergent

Juries currently can find sexually oriented material to be obscene based on the community standards of the locality in which they reside. To determine whether sexual material that is transmitted over an international computer network is criminally obscene, one must comprehend the local community standards of every locality in the United States. The Supreme Court's use of this "local community standards" rule reflects a view of the local community as a relatively homogenous society in a distinct, geographically defined locality. When applied to international communications networks, this standard will excessively "chill" speech that is otherwise protected by the First Amendment. Exposure to such networks will alter local communities by making geographic distinctions less important and reducing the homogeneity of even the most remote locality, making the assumptions underlying the "local community standards" rule untenable.

REFLECTIONS ON THE PROPOSED UNITED STATES RESERVATIONS TO CEDAW: SHOULD THE CONSTITUTION BE AN OBSTACLE TO HUMAN RIGHTS? (page 727)
By Ann Elizabeth Mayer

The United States Constitution enjoys a special, sacred status that encourages the United States to treat its constitutional rights standards as definitive and therefore entitled to override conflicting standards in human rights treaties. When ratifying human rights treaties, the United States has entered reservations that are designed to ensure that constitutional rights standards will remain in force, even when they are less protective of rights than their international counterparts. Where women's rights are concerned, the United States has effectively rejected the international standard of equality for women, upholding instead the intermediate- tier standard developed under the Equal Protection Clause. Reluctant to draw attention to its non-conforming domestic standard on women's rights, the United States has been less than candid in official statements to the international community. So far, the United States has failed to ratify the Women's Convention (CEDAW). If it ever does ratify CEDAW, it will be subject to a set of proposed reservations that will ensure that U.S. women can claim nothing more than the rights currently afforded under the Equal Protection Clause. This Article calls for a critical assessment of such constitutional reservations to human rights treaties.

NOTES

THE CASEY UNDUE BURDEN STANDARD: PROBLEMS PREDICTED AND ENCOUNTERED, AND THE SPLIT OVER THE SALERNO TEST (page 825)
By Ruth Burdick

In June 1992, the United States Supreme Court in Planned Parenthood v. Casey struck down the trimester framework of Roe v. Wade and replaced it with an undue burden standard to test the constitutionality of state abortion regulations. Several commentators predicted that the lower court application of the undue burden standard would be troublesome, and criticism of the standard became widespread. Since the Casey decision, the undue burden standard has now been utilized in a total of thirteen cases, and has been reviewed by four circuit courts.

This Note analyzes the Casey undue burden standard as implemented by the lower courts in abortion law cases, reviews the accuracy of the commentators' predictions, and examines the circuit court split that has developed over the application of the undue burden standard and the Salerno test. After placing the Casey undue burden standard in the framework of developing constitutional law regarding a woman's right to choose, and reviewing the scholarly predictions of problems anticipated to arise during application, the Note surveys the lower court decisions applying Casey's undue burden standard to state abortion laws, and evaluates the analyses used by these lower courts. Following this survey, the Note evaluates which of the scholarly predictions have in fact manifested, discusses the circuit court split over whether to disregard Casey and instead apply the Salerno test, and concludes that the current trend against applying Salerno will continue.

OF KIRPANS, SCHOOLS, AND THE FREE EXERCISE CLAUSE: CHEEMA V. THOMPSON CUTS THROUGH RFRA's INADEQUACIES (page 877)
By Dipanwita Deb

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these amendments in the context of two other recent cases brought under the Act.