This debate-style reader is designed to introduce students to controversies in the law. The readings, which represent the arguments of leading legal scholars, judges, and legal commentators, reflect a variety of viewpoints and are staged as "pro" and "con" debates. Issues debated include the operation of legal institutions; law and social values; and law and crime.
PART 1. Law and the Individual
ISSUE 1. Is Abortion Protected by the Constitution?
YES: Sandra Day O'Connor, from Majority Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court
NO: William H. Rehnquist, from Dissenting Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court
Supreme Court justice Sandra Day O'Connor upholds a woman's constitutional right to abortion under most circumstances and reaffirms the central holding of Roe v. Wade. Supreme Court chief justice William H. Rehnquist argues that Pennsylvania regulations on abortion should be upheld and that it is appropriate to overrule Roe v. Wade.
ISSUE 2. Are Restrictions on Physician-Assisted Suicide Constitutional?
YES: William H. Rehnquist, from Majority Opinion, Washington et al. v. Glucksberg et al., U.S. Supreme Court
NO: Stephen Reinhardt, from Majority Opinion, Compassion in Dying v. State of Washington, U.S. Court of Appeals for the Ninth Circuit
Supreme Court chief justice William H. Rehnquist rules that although patients have the right to refuse life-sustaining treatment, physician-assisted suicide is not constitutionally protected. Judge Stephen Reinhardt argues that forbidding physician-assisted suicide in the cases of competent, terminally ill patients violates the due process clause of the Constitution.
ISSUE 3. Do People Have a Legal Right to Clone Themselves?
YES: Cass Sunstein, from "The Constitution and the Clone," in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning
NO: Cass Sunstein, from "The Constitution and the Clone," in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning
Professor of law and political science Cass Sunstein, writing as fictional Supreme Court justice Monroe, argues that the right to cloning is analogous to established rights of reproductive privacy and autonomy and is therefore constitutionally protected. Sunstein, writing as fictional Supreme Court justice Winston, argues that the constitutional protection of "reproductive choice" does not extend to the decision to replicate oneself.
ISSUE 4. Should Lawyers Be Prohibited from Presenting a False Case?
YES: Harry I. Subin, from "The Criminal Lawyer's `Different Mission': Reflections on the `Right' to Present a False Case," Georgetown Journal of Legal Ethics
NO: John B. Mitchell, from "Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's `Different Mission,'" Georgetown Journal of Legal Ethics
Professor of law Harry I. Subin examines the ethical responsibilities of criminal defense lawyers and argues that greater responsibility should be placed on lawyers not to pervert the truth to help their clients. Attorney John B. Mitchell disputes the contention that the goal of the criminal justice process is to seek the truth and argues that it is essential that there be independent defense attorneys to provide protection against government oppression.
ISSUE 5. Should the Insanity Defense Be Abolished?
YES: Jonathan Rowe, from "Why Liberals Should Hate the Insanity Defense," The Washington Monthly
NO: Richard Bonnie, from Statement Before the Committee on the Judiciary, U.S. Senate
Editor Jonathan Rowe examines the insanity defense as it is now administered and finds that it is most likely to be used by white middle- or upper-class defendants and that its application is unfair and leads to unjust results. Professor of law Richard Bonnie argues that the abolition of the insanity defense would be immoral and would leave no alternative for those who are not responsible for their actions.
ISSUE 6. Are Pretextual Stops by the Police Constitutional?
YES: Antonin Scalia, from Majority Opinion, Whren et al. v. United States, U.S. Supreme Court
NO: David A. Harris, from "`Driving While Black' and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops," Journal of Criminal Law and Criminology
Supreme Court justice Antonin Scalia holds that pretextual traffic stops do not violate an individual's Fourth Amendment rights. He argues that the constitutionality of such stops does not depend on the actual motivations of the police officer who makes the stop but on an objective determination of the reasonableness of the stop. David A. Harris, a professor of criminal law and criminal procedure, contends that Scalia's opinion ignores the potential for abuse by the police of general and all-encompassing traffic codes.
PART 2. Law and the State
ISSUE 7. Is Flag Burning Protected by the First Amendment?
YES: William J. Brennan, Jr., from Majority Opinion, Texas v. Johnson, U.S. Supreme Court
NO: William H. Rehnquist, from Dissenting Opinion, Texas v. Johnson, U.S. Supreme Court
Supreme Court justice William J. Brennan, Jr., representing the majority opinion, argues that burning the American flag to express displeasure at the government is behavior that is protected by the First Amendment. Supreme Court chief justice William H. Rehnquist argues that the American flag has become such a historically significant symbol of the United States that a congressional prohibition against flag burning is justified.
ISSUE 8. Does Suspicionless Drug Testing of High School Students Violate the Fourth Amendment?
YES: Richard D. Cudahy, from Majority Opinion, Willis v. Anderson Community School Corporation, U.S. Court of Appeals for the Seventh Circuit
NO: Walter Cummings, from Majority Opinion, Todd et al. v. Rush County Schools et al., U.S. Court of Appeals for the Seventh Circuit
Federal Court of Appeals judge Richard D. Cudahy holds that suspicionless drug testing of a student who had been disciplined for fighting in school violated Fourth Amendment guarantees against unreasonable searches and seizures. Federal Court of Appeals judge Walter Cummings finds it reasonable to extend the Supreme Court's Vernonia v. Acton decision--which upheld the constitutionality of suspicionless drug testing of high school athletes--to include any student who is involved in extracurricular activities.
ISSUE 9. Is It Constitutional for Public Libraries to Restrict Access to Some Sites on the Internet?
YES: Jay A. Sekulow, from Statement Before the Committee on Commerce, Science, and Transportation, U.S. Senate
NO: Jerry Berman, from Statement Before the Committee on Commerce, Science, and Transportation, U.S. Senate
Jay A. Sekulow, counsel to the American Center for Law and Justice, argues that libraries have a duty to protect children from pornography and that regulating Internet access is consistent with a library's traditional responsibilities. Jerry Berman, executive director of the Center for Democracy and Technology, asserts that there are less restrictive means for protecting children who use the Internet than mandatory content restriction policies.
ISSUE 10. Should the Death Penalty Be Abolished?
YES: Harry A. Blackmun, from Dissenting Opinion, Callins v. Collins, U.S. Supreme Court
NO: James C. Anders, from Statement Before the Committee on the Judiciary, U.S. Senate
Supreme Court justice Harry A. Blackmun argues that the application of the death penalty has been arbitrary and discriminatory. Attorney James C. Anders argues that the death penalty is the appropriate punishment for some crimes and that it should not be abolished even if it is not an effective deterrent.
ISSUE 11. Is It Constitutionally Permissible to Detain "Sexually Dangerous" Individuals After They Have Served Their Prison Sentences?
YES: Clarence Thomas, from Majority Opinion, Kansas v. Hendricks, U.S. Supreme Court
NO: Stephen G. Breyer, from Dissenting Opinion, Kansas v. Hendricks, U.S. Supreme Court
Supreme Court justice Clarence Thomas finds that a Kansas law that allows civil commitment of "mentally abnormal" persons is constitutional and does not violate the Constitution's double jeopardy prohibition or its ban on ex post facto lawmaking. Justice Stephen G. Breyer finds that the Kansas law was an effort to inflict further punishment upon Leroy Hendricks and that the ex post facto clause should apply since Hendricks committed his crimes prior to its enactment.
ISSUE 12. Should Drug Use Be Legalized?
YES: Steven B. Duke, from "Drug Prohibition: An Unnatural Disaster," Connecticut Law Review
NO: Gregory A. Loken, from "The Importance of Being More Than Earnest: Why the Case for Drug Legalization Remains Unproven," Connecticut Law Review
Steven B. Duke, a professor of law of science and technology, contends that the war on drugs has led to an increase in criminal behavior, including robberies, assaults with guns, and police corruption, and that the financial, health, and civil rights costs of drug prohibition are enormous. Therefore, he recommends decriminalization and government regulation of drugs. Associate professor of law Gregory A. Loken, directly responding to Duke, asserts that the war on drugs has successfully reduced crime and that legalization would have devastating consequences, particularly for children.
PART 3. Law and the Community
ISSUE 13. Should Law Enforcement Officials Notify the Community When a Convicted Sex Offender Moves In?
YES: Simeon S...
