Volume 33, Issues 1 & 2
Fall 1999 and Winter 2000

Articles

When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials
Wayne A. Logan
go to abstract

Financing Plaintiffs’ Lawsuits: An Increasingly Popular (and Legal) Business
Susan Lorde Martin
go to abstract

Life After Adarand: What Happened to the Metro Broadcasting Diversity Rationale for Affirmative Action in Telecommunications Ownership?
Leonard M. Baynes
go to abstract

Notes

Increasing Consumer Power in the Grievance and Appeal Process for Medicare HMO Enrollees
Kenneth J. Pippin
go to abstract

What Money Cannot Buy: A Legislative Response to C.R.A.C.K.
Adam B. Wolf
go to abstract


Volume 33, Issue 3
Spring 2000

Introduction

Expanding Directions, Exploding Parameters: Culture and Nation in LatCrit Coalitional Imagination
Elizabeth M. Iglesias
Francisco Valdes

go to abstract

Foreword

Culture, Nationhood, and the Human Rights Ideal
Berta Esperanza Hernández-Truyol
Sharon Elizabeth Rush
go to abstract

Article

Silence and Silencing: Their Centripetal and Centrifugal Forces in Legal Communication, Pedagogy and Discourse
Margaret E. Montoya
go to abstract

Commentaries

Silencing Culture and Culturing Silence: A Comparative Experience of Centrifugal Forces in the Ethnic Studies Curriculum
Steven W. Bender
go to abstract

The Paradox of Silence: Some Questions About Silence as Resistance
Dorothy E. Roberts
go to abstract

Articles

Franco’s Spain, Queer Nation?
Gema Pérez-Sánchez
go to abstract

Commentaries

Querying a Queer Spain Under Franco
Peter Kwan

Hegemony, Coercion, and Their Teeth-Gritting Harmony: A Commentary on Power, Culture, and Sexuality in Franco’s Spain
Ratna Kapur
Tayyab Mahmud

Afterword

Legal Language in the Age of Globalization: Prospects and Dilemmas
Patricia Fernández-Kelly


Volume 33, Issue 4
Summer 2000

Articles

Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory
Harry G. Hutchison

go to abstract

The United Kingdom Bill of Rights 1998: The Modernisation of Rights in the Old World
Clive Walker
Russell L. Weaver

go to abstract

Before It’s Too Late: Neuropsychological Consequences of Child Neglect and Their Implications for Law and Social Policy
Janet Weinstein
Ricardo Weinstein

go to abstract

Note

The United Mall of America: Free Speech, State Constitutions, and the Growing Fortress of Private Property
Jennifer Niles Coffin
go to abstract


Abstracts


Volume 33, Issues 1 & 2
Fall 1999 and Winter 2000

When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials
Wayne A. Logan

     A central precept of death penalty jurisprudence is that only the “death worthy” should be condemned, based on a “reasoned moral response” by the sentencing authority. Over the past decade, however, the Supreme Court has distanced itself from its painstaking efforts in the 1970s to calibrate death decision making in the name of fairness. Compelling proof of this shift is manifest in the Court’s decisions to permit victim impact evidence in capital trials, and to allow jurors to be instructed that sympathy for capital defendants is not to influence capital decisions. This Article examines a novel strategy now being employed by capital defendants in response: the proffer of “execution impact evidence,” intended to inform the sentencer of the manifold consequences of the defendant’s possible execution. Professor Logan advances several arguments in favor of its admission, based most prominently on a defendant's constitutional right to have consideration given to mitigating evidence, and the need for such evidence to restore a semblance of the evenhandedness historically sought in capital trials.


Financing Plaintiffs’ Lawsuits: An Increasingly Popular (and Legal) Business
Susan Lorde Martin

     In the late eighties and early nineties there were a few publicized cases in which the plaintiffs invited investors to finance their litigation in exchange for a share of the awards if the plaintiffs won. This kind of arrangement provides access to the justice system which might otherwise be denied impecunious plaintiffs with meritorious claims. The problem with this kind of arrangement is that it is champerty, which is prohibited in most states. This Article discusses Massachusetts’ recent rejection of the champerty prohibition, the expansion of exceptions to the prohibition in this country and others, and the emergence of firms whose business is investing in litigation. The Article concludes that any potential evils associated with champerty are addressed in a variety of other laws and, therefore, champertous agreements should be enforceable.


Life After Adarand: What Happened to the Metro Broadcasting Diversity Rationale for Affirmative Action in Telecommunications Ownership?
Leonard M. Baynes

     The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

     Adarand raised issues concerning the validity of the Federal Communications Commission’s affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court specifically overruled the use of intermediate scrutiny in Metro Broadcasting, casting into doubt the FCC’s affirmative action policies. Adarand suggests that past discrimination may be the only constitutionally viable basis for affirmative action programs. Because many FCC affirmative action programs are based on diversity, this ruling calls those programs into question.

     Many constitutional law scholars, civil rights advocates, and industry leaders have speculated about what, if anything, the FCC can do to deal with this complicated legal issue. This Article suggests a doctrinal and policy solution to this affirmative action dilemma. The Article identifies and describes the current status of each of the FCC’s affirmative action programs; summarizes the current status of affirmative action law and how it generally applies to the FCC programs; and then suggests that the FCC conduct studies identifying instances of past (or present) discrimination that will help the FCC establish a compelling governmental interest, which may satisfy the first prong of the Supreme Court’s currant affirmative action test.


Increasing Consumer Power in the Grievance and Appeal Process for Medicare HMO Enrollees
Kenneth J. Pippin

     Federal law requires that Health Maintenance Organizations (HMOs) and Managed Care Organizations (MCOs) provide Medicare beneficiaries with specific grievance and appeal rights for challenging adverse decisions of these organizations. The Health Care Financing Administration (HCFA) is charged with enforcing these regulations. Currently, however, HCFA contracts with HMOs, allowing them to enroll Medicare beneficiaries despite the fact that many of the statutory and regulatory requirements are ignored by the Medicare HMOs. This is problematic because the elderly Medicare population may not be able to independently and adequately challenge the HMO’s denial of care or reimbursement. Because HCFA has been reluctant and ineffective in ensuring that Medicare enrollees are guaranteed grievance and appeal rights, other alternatives should be explored. This Note argues that private accreditation, for those Medicare HMOs that choose to be subjected to the process, should be allowed as an alternative to regulation under HCFA.


What Money Cannot Buy: A Legislative Response to C.R.A.C.K.
Adam B. Wolf

     Children Requiring a Caring Kommunity (C.R.A.C.K.) is an organization that pays current or former drug addicts $200 to be sterilized. While generating great public controversy, C.R.A.C.K. Is expanding rapidly throughout the country. Its clients are disproportionately poor women of color, who are coerced by the offer of money into permanently relinquishing their reproductive rights. This Note argues that C.R.A.C.K. Is a program of eugenical sterilization that cannot be tolerated. Moreover, C.R.A.C.K. further violates settled national public policy by offensively commodifying the ill-commodifiable, by demeaning women, and by starting down a slippery slope with devastating consequences. This Note proposes legislation that would prohibit paid sterilizations.


Volume 33, Issue 3
Spring 2000

Introduction

Expanding Directions, Exploding Parameters: Culture and Nation in Latcrit Coalitional Imagination
Elizabeth M. Iglesias
Francisco Valdes

     We have to believe in the power of imagination because it is all we have, and ours is stronger than theirs.

     The real war is between our imagination and theirs, what we can see and what they are blinded to. Do not despair. None of them can see far enough, and so long as we do not let them violate our imagination we will survive.


Foreword

Culture, Nationhood, and the Human Rights Ideal
Berta Esperanza Hernández-Truyol
Sharon Elizabeth Rush

     This Symposium on Culture, Nation, and LatCrit Theory continues the exciting work of a very young but productive branch of critical movements. LatCrit is a theoretical movement initiated as a distinct discourse within critical legal theory. Its origins are traceable to the first colloquium organized with the purpose of having Latina/o law professors and their friends critically explore the position of Latinas/os within the Academy and society. It precipitated an inquiry concerning what the politics of identity mean through a Latina/o lens, which, by necessity, is a panethnic prism. This first colloquium took place during the 1995 Annual Meeting of the Hispanic National Bar Association in Dorado, Puerto Rico. That gathering started the momentum for the regular planning of reuniones that promote the interrogation of what it means to be Latina/o in our diverse world, which necessarily promotes the relating of the Latina/o condition to other groups’ locations, interests, and issues. Indeed, a central goal and foundational premise of LatCrit is to be diverse and inclusive.

     Although LatCrit theory has concerned itself with the location of Latinas/Os in society, as this Symposium evidences, it comprises many scholars from various and diverse disciplines and perspectives. Its interrogations do not stop within chartered geographies but rather traverse national, linguistic, racial, ethnic, sexual, cultural, historical, religious, and class borders and their multiple intersections. Thus, while LatCrit theory does not speak with one voice, it does have a unified purpose: to explore the boundaries of law, sociology, psychology, economics, history, anthropology, education, and other fields in a non-essentialist, anti-subordination posture that aims to liberate the human spirit so that all, from North and South, East and West alike, can share and enjoy full personhood around the global supper table. Because of these common goals, as Professor Francisco Valdes has articulated, “the multiple diverse critical legal scholars who have coalesced around the collective effort to articulate LatCrit theory have exhibited . . . [a] sense of shared groupness.”

     This Symposium on nation and culture illustrates these LatCrit goals and advances them. The two main works and the commentaries on them are rich explorations and representations of the voice and concerns of LatCrit theory. This Foreword engages all the works by focusing on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a progressive methodology to analyze and detect the exclusion or silencing of myriad voices. This Part develops a LatCritical Human Rights paradigm that, by internationalizing voice, serves as a useful tool to explore power-based silencing. Finally, in Part III, the authors illustrate how the proposed paradigm can focus the issues of culture and nation in a way that allows us to promote a non-essentialist, anti-subordination, inclusive person-hood ideal.


Silence and Silencing: Their Centripetal and Centrifugal Forces in Legal Communication, Pedagogy and Discourse
Margaret E. Montoya

     Language and voice have been subjects of great interest to scholars working in the areas of Critical Race Theory and Latina/o Critical Legal Theory. Silence, a counterpart of voice, has not, however, been well theorized. This Article is an invitation to attend to silence and silencing. The first part of the Article argues that one’s use of silence is an aspect of communication that, like accents, is related to one’s culture and may correlate with one’s racial identity. The second part of the Article posits that silence can be a force that disrupts the dominant discourse within the law school classroom, creating learning spaces where deeper dialogue from different points of view can occur. The third part of the Article focuses on the silencing of racial issues within legal discourse and public policy debates, a silencing that is a mechanism for racial control and hegemony. The Article uses the work and imagery of Mikhail Bakhtin, a Russian literary critic, to analyze how silence can have centering and de-centering linguistic force, offering performative and communicative choices that affect racial identities.


Silencing Culture and Culturing Silence: A Comparative Experience of Centrifugal Forces in the Ethnic Studies Curriculum
Steven W. Bender

Introduction

     Using the metaphor of silencing, Professor Margaret Montoya documents the irrelevance of race, gender, and socio-historical perspectives both in legal education and, more broadly, in legal discourse. Although others have invoked this metaphor, Professor Montoya’s charting of the physical, rather than merely metaphorical, space of silence moves beyond this legal literature in several respects. Viewing silence not just as dead space, Professor Montoya enlivens and colors silence and other nonverbal aspects of communication as positive cultural traits. She demonstrates how silence can be used as a pedagogical tool (a centrifugal force) in the classroom and in client interviews to bring out the voices of women and of men of color. Moreover, Professor Montoya documents how silence and nonverbal communication, rich with cultural meaning, are misread to the legal detriment of the (non)speaker and others dependent on cross-cultural understanding. My own experience in the classroom, an Ethnic Studies classroom filled with students intent on the study and progressive practice of law, validate many of Professor Montoya's experiences and observations.

     In Part I, I discuss my own experiences with respect to silence and race in an Ethnic Studies classroom. In Part II, I address the challenges my undergraduate students face in their journey to become progressive lawyers. In Part III, I examine some of the doctrinal pitfalls encountered by new lawyers aspiring to use the law as a mechanism for achieving social justice. Finally, I conclude by discussing the apparent irrelevance of Latino/a perspectives in legal education.


The Paradox of Silence: Some Questions About Silence as Resistance
Dorothy E. Roberts

Introduction

     Professor Margaret Montoya’s article Silence and Silencing: Their Centripetal and Centrifugal Forces in Legal Communication, Pedagogy and Discourse is a fascinating exploration of the many possible interpretations of silence in legal arenas and discourse. Tapping a rich literature on silence, Professor Montoya demonstrates that silence has many meanings. It signifies different things in different cultures, and it is used in a multitude of ways by women of color. Moreover, the meaning of silence changes depending on the context. Silence is not just the absence of voice; silence is “an interactive process” that responds to the conduct of other human beings. Because dominant groups are often ignorant about silence’s multiple meanings, they tend to misinterpret the silences of subordinated people. A central theme of Professor Montoya’s article is that both dominant and subordinated groups use language in their interests: traditional legal discourse “produce a centripetal force that constantly centralizes power and privilege within the hands of those dedicated to maintaining the status quo,” while outsiders use language to “produce centrifugal forces that decentralize and destabilize that power and privilege.” Professor Montoya asserts that one of the subordinating uses of language by dominant groups is to silence outsiders. She also argues that one of outsiders’ tools of resistance is silence. Silence, Professor Montoya suggests, can be deployed as an anti-subordination tool for communication. Thus, silence on the part of women of color contains a paradox: our silence may be a product of oppression or it may be a means of resistance against oppression.

     I find Professor Montoya’s claim that silence can be a resistance strategy extremely enlightening and provocative. The project of listening to the voices of outsiders and examining deviance from dominant norms from their standpoint is one of the most important tasks of critical scholars. We often discover that what the dominant society labels deviance constitutes an act of resistance. Resistance theorists restore the critical notion of human agency, while recognizing the constraints of structure and hegemony; they “have attempted to demonstrate that the mechanisms of social and cultural reproduction are never complete and always meet with partially realized elements of opposition.” Yet this scholarly pursuit is fraught with complications and pitfalls. I have many questions about the notion of silence as resistance.

     In Part I, I note the difficulty in distinguishing between silencing and silence as resistance. This difficulty has often led people in power to misinterpret the silence of people of color. Part II further explores the complications of incorporating the study of silence into resistance scholarship. I illustrate this complexity by discussing the silencing of welfare mothers and the use of language by women of color to challenge dominant medical discourse. Part III considers Professor Montoya’s proposal to use silence as a pedagogical tool. Continuing my examination of silence as both liberating and accommodating, I distinguish between silence in the classroom as a method for subverting the dominant style of speech and silence as reinforcement of students’ reluctance to express their opinions in class. Finally, using Professor Montoya’s story about racist graffiti, Part IV emphasizes that silence may constitute complicity in mar marginalizing discourse rather than resistance to that discourse. In short, silence provides a fruitful yet complicated arena of study for resistance scholars.


Franco’s Spain, Queer Nation?
Gema Pérez-Sánchez

     This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism’s homophobic law against homosexuality.


Volume 33, Issue 4
Summer 2000

Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory
Harry G. Hutchison

     The National Labor Relations Board’s (NLRB) seeming powerlessness to process dues objector cases has led to a proliferation of state sponsored “paycheck protection” laws and popular referenda devised to ensure that workers will not be obliged to pay dues for non-germane purposes. Recently, California captured national attention as the site of a richly contested paycheck protection referendum. Such proposals have electrified union advocates and have enlivened the debate over the proper use of union dues. In addition, recent attempts to reform campaign finance have run aground on the thorny issue of union political contributions (both in-kind and in cash). Concurrently, private sector unions continue to decline in significance as agents of change within the workplace. On the other hand, union influence within the political sector may be ascendant.

     This Article inspects attempts to reclaim the labor movement and to enhance worker solidarity through expansive interpretations of the social and political meaning of union dues. By investigating whether the interests and identities of individuals or subgroups of workers are necessarily congruent with those of either the union majority or union leadership and by disputing dominant free rider assumptions embedded in the Taft-Hartley Act, this approach delegitimizes coerced transfers from union members and dues payers for political and other purposes. Methodologically, the Article deploys postmodern insights, group cooperation theory, and public choice theory to contest the prevailing view that individuals and identifiable subgroups of workers must sacrifice their particular interests and identities to the “greater totalizing goals of the working class.” While postmodernism has its critics, the author argues that an expansive deployment of union dues to revitalize the union movement is inconsistent with the notion that the individual has the right to decide the proper ends of her life. Accordingly, the application of union dues to a variety of union efforts that are unrelated to collective bargaining must inescapably be seen as promoting a form of subservience to authoritarian unionist values, which would in turn submerge individual, ethnic, and gender identity, and ideological diversity in support of hierarchical aims.


The United Kingdom Bill of Rights 1998: The Modernisation of Rights in the Old World
Clive Walker
Russell L. Weaver

     Into a steadfastly conservative constitutional landscape, the United Kingdom Parliament has now introduced a Bill of Rights, the Human Rights Act of 1998, which takes effect in October 2000. The Act provides for a full catalogue of civil and political rights which are enforceable by the courts. This development raises two questions in evaluating the future of English law. First, does this signify the dawn of a new British radicalism? And second, why has it happened now? In answering these questions in relation to England and Wales, Part I of this Article provides an introduction to the traditional treatment of rights within the English legal system through an examination of the background context provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, including its impact on U.K. law to date. Part II analyzes the current substance and future role of the Human Rights Act of 1998. This Part explores the desirability of incorporating the European Convention, the content of rights under the Act, the degree of entrenchment of those rights, and the imposition of duties. Part III then explores the role of the judiciary and its procedures and various remedies for vindicating these rights. Finally, the Article concludes by gauging the potential impact of the new Bill of Rights, finding that although the changes to be brought about by the Human Rights Act of 1998 are certainly an important development in English law, they will not be as revolutionary in application as they might first appear.


Before It’s Too Late: Neuropsychological Consequences of Child Neglect and Their Implications for Law and Social Policy
Janet Weinstein
Ricardo Weinstein

     Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger of physical injury, yet such harm will affect a child throughout life.

     Current understanding of brain development demonstrates the need for proper nutrition and stimulation during the first three years of life in order for the brain to develop the crucial neurological networks that are foundational to the functioning of an individual. The inadequacy of early brain development has permanent and irreversible consequences, leading to problems in physical, cognitive, emotional, and social domains. Costs to individuals and society as a result of these consequences are generally overlooked.

     Public policy should be based on current knowledge of brain development and its significant impact on adult functioning. Major preventive efforts must be applied and made available to every child. The focus of these efforts must be child-centered and seen as a basic form of education.


The United Mall of America: Free Speech, State Constitutions, and the Growing Fortress of Private Property
Jennifer Niles Coffin

     Scholars have called the shopping mall the modern replacement for the traditional town square, a claim that is supported by both public investment in infrastructure through municipal and state bond issues and by the presence of public services and events in many malls. Mall owners and tenants have exploited this quasi public character by inviting government agencies to become tenants in the malls (“City Hall at the Mall”) despite claiming that malls are private property where constitutionally protected freedoms do not apply. After an initial and short-lived ruling that mall visitors do indeed have free speech rights, the Supreme Court has held that the standard constitutional protection for political speech does not apply to malls and shopping centers because no state action is involved. Many, though not all, state courts have agreed with the Supreme Court’s ruling. This Note addresses two kinds of evolution: the legal evolution of free speech law as it relates to shopping malls, with particular attention to the Minnesota Supreme Court’s recent rejection of free speech protection in State v. Wicklund; and the cultural evolution in which our public spaces have become private fortresses, “protected” from political speech in the interests of providing “safe” and unmolested shopping experiences for consumers. The Note then discusses the common rationale underlying the decisions in a handful of state courts that have extended free speech protection to those who wish to protest, leaflet, or picket at malls. Based on these decisions, the author argues that state courts should be more flexible in their balancing of free speech rights and property rights if we are to stem an evolutionary process in which our public space becomes a vast emporium where citizens are encouraged to buy but forbidden to speak.