Journals
Volume 37, No. 1, Winter 2007
The Constitutional Imbalance
Richard Albert
The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power," the judiciary today wields much greater influence than the Federalists originally envisioned. Quite simply, the Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.
The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it.
Informed Consent for All! No Exceptions.
Douglas Andrew Grimm
This Article discusses the doctrine of informed consent in two contexts: treatment and research. While the doctrine of informed consent has been discussed exhaustively in the past, this Article takes the new approach of comparing and contrasting the two contexts and exceptions to the doctrine in the modern day while calling for a somewhat unusual change in the manner in which the doctrine is administered. This Article ultimately concludes that the exceptions to the doctrine of informed consent should be entirely abolished.
Banishment as Cultural Justice in Contemporary Tribal Legal Systems
Patrice H. Kunesh
Banishment is an extraordinary sanction applied in many forms since ancient times as a means of social control and punishment. Integrally entwined in their tribal customs and traditions, American Indian tribes historically used banishment to protect their lands, maintain peace and harmony among their people, and render justice upon the offender. Recently, Indian tribes have reinstated the use of banishment to address a host of problems including safeguarding their communities from the ravages of methamphetamines and sexual predators, quelling internal political dissension, and controlling membership. Tribal authority to impose banishment sanctions, however, is being challenged under the Indian Civil Rights Act as violating basic notions of fairness and due process.
The stakes are high for all parties in these cases. For tribes, it is about their sovereign right to define themselves culturally and legally. For tribal members, it is about their right to a political and cultural identity, to participate in their tribal government, and to partake in its wealth and resources. For federal courts, it is about defining the applicable contours of due process in tribal actions that protect individuals from unjust tribal actions while safeguarding the right of tribal self-determination.
A new judicial construct is needed to address the increasing number of cases seeking federal review of tribal banishment actions. Courts and practitioners too frequently endorse wholesale judicial intervention and federal legislation that would appreciably diminish tribal authority in such matters. This Article proposes a new judicial construct based on comity of nations principles that establish ascertainable yet culturally sensitive standards and procedures to assess due process in tribal decision making and judicial processes. This construct maintains tribal sovereignty and adheres to historical Supreme Court principles of federal Indian law, thus preserving the rights and privileges of both the tribes and tribal members.
If It Walks Like a Duck and Quacks Like a Duck, Shouldn’t It Be a Duck?: How a "Functional" Approach Ameliorates the Discontinuity Between the "Primary Significance" Tests for Genericness and Secondary Meaning
Vanessa Bowman Pierce
A prior designation that a term is generic for certain goods virtually forecloses any analysis concerning that term’s present ability to function as a trademark for those goods. This is due in large part to a discontinuity that exists between the tests for determining the primary significance of a term when it has been designated as generic versus when it has been designated as merely descriptive. The Article proposes a functional approach that harmonizes this discontinuity. If there are no functional reasons to prohibit exclusive rights and the term otherwise functions as a trademark, then its designation as generic or merely descriptive becomes irrelevant.
Criminal Performances: Film, Autobiography, and Confession
Jessica Silbey
This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. The Article suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law’s reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions alongside an examination of the history of autobiographical writing and film, this Article shows how filmed confessions do not reveal the truthfulness or honesty of the defendant’s statement. To the contrary, close examination of filmed confessions evidences the performative aspect of all confessional acts.
Like autobiographical film subjects, filmed defendants perform their criminality or enact their legal identity as guilty on film. Framing the confession through a film camera (as increasingly police and detectives do) stresses the qualities of confessional speech as always in the process of forming an identity, and therefore as inherently unstable and manifold. Building on an earlier article that criticizes the nationwide trend that requires the filming of criminal confessions by comparing filmed confessions to a form of documentary filmmaking, this article engages the same critique by examining filmed confessions as a form of autobiographical film. Doing so relocates the analysis of the filmed confessions from one of truthfulness and voluntariness of the spoken confession to one of advocacy and persuasion by the speaking subject. Analysis of several filmed confessions shows how filmed confessions are more akin to filmed autobiographies: performances of identity in relation to the constraints of the discursive medium (the interrogation). What we learn from the filmed confession is the limits of film and of law to reveal the truth of the crime. This critical perspective undermines the state’s assertion that filmed confessions unambiguously denote the defendant’s voluntary recitation of his criminal act.
