Volume 33 Number 2 -- January 2000

TABLE OF CONTENTS

ARTICLES

STATUTORY INTERPRETATION AND THE LESSONS OF LLEWELLYN

by John M. Breen

Should courts look to statutory history and legislative intent to determine the true meaning of statutes? In this Article, Professor John M. Breen discusses Karl M. Llewellyn, primary drafter of the UCC, and his views on this matter. Professor Breen considers Llewellyn’s dialectic views on contracts and statutes. Llewellyn believed that contracts should be interpreted in light of their surrounding context, yet he hoped to write a code so clear and plain in its meaning that people would understand it simply by reading the text. Professor Breen concludes that Llewellyn was wrong trying to prohibit the use of statutory history since it is always relevant, even if not always conclusory, in the process of statutory interpretation.

LIES BETWEEN MOMMY AND DADDY: THE CASE FOR RECOGNIZING SPOUSAL EMOTIONAL DISTRESS CLAIMS BASED ON DOMESTIC DECEIT THAT INTERFERES WITH PARENT-CHILD RELATIONSHIPS

by Linda L. Berger

Professor Linda L. Berger discusses whether courts should recognize spousal intentional infliction of emotional distress causes of action based on lies told by one spouse to interfere with the continuation of the other spouse’s parent-child relationship. This Article reviews the current family and tort laws that converge in domestic tort actions. It then examines the evolution of emotional distress claims from spousal emotional distress to emotional distress claims based on interference with parent-child relationships. Professor Berger concludes that one spouse’s intentional and unjustified interference with a parent-child relationship should lead to the other spouse’s liability for any resulting emotional distress.

THE DEATH PENALTY AND THE WAY WE THINK NOW

by R. George Wright

Professor R. George Wright offers several philosophical and moral arguments to support the conclusion that society should no longer implement the death penalty as a form of punishment. He posits the ideological basis for the death penalty and argues that it is no longer morally justifiable given the alternatives of other severe forms of punishment, such as life imprisonment. Professor Wright also argues that moral considerations override the retributive aspect of the death penalty, and discusses at length how the inherent value of the universally shared attributes of human consciousness mandates the adoption of other alternative forms of punishment.

SYMPOSIUM ON TRIALS OF THE CENTURY CASES OF THE CENTURY

by Laurie L. Levenson

What is the impact of “trials of the century” on legal doctrine? In this Article, Professor Laurie L. Levenson argues that such trials are not as significant in changing the legal landscape as the general public believes. Professor Levenson demonstrates how the trials that have grabbed the nation’s attention and the media’s spotlight, in general, have had a very small impact on legal doctrine. Rather, it is usually a case that was a mere blip on the radar screen that eventually finds its way to the United States Supreme Court and leads to a dramatic change in the law. Professor Levenson concludes that trials of the century do, however, provide social commentary on issues facing the community and sometimes an impetus for change.

WHO IS THE LAWYER OF THE CENTURY?

by Gerald F. Uelmen

Professor Gerald F. Uelmen weighs the claims of several candidates to the title of “lawyer of the century.” In order to separate the contenders from the pretenders, he examines the criteria of professional reputation, participation in high-profile trials, public recognition, current accessibility of information, and adherence to ethical standards. In addition to these standards, Professor Uelmen surveys the surviving contenders for the title to discover whom they would select as the lawyer of the century. He concludes that Clarence Darrow deserves to be recognized as the lawyer of the century and as a role model for lawyers of this century and the next.

TRANSFORMATIVE JUSTICE AND THE ETHOS OF NUREMBERG

by Jonathan Turley

Professor Jonathan Turley proposes Nuremberg as the “trial of the century” in light of three positive criteria: (1) trial advocacy and practice, (2) the significance of the trial itself, and (3) the transformative value of the trial. This Article discusses defenses, resources and counsel available to the defense, procedural protections, the use of filmic evidence, medical ethics and experimentation, informed consent, and the birth of the human rights movement and international tribunals all in light of Nuremberg. Ultimately, Professor Turley concludes that Nuremberg is the trial of the century because it represents the triumph of reason over power.

REVISITING THE “MCCARTHY ERA”: LOOKING AT WILKINSON V. UNITED STATES IN LIGHT OF WILKINSON V. FEDERAL BUREAU OF INVESTIGATION

by Frank Wilkinson

Frank Wilkinson, 1999 recipient of the American Civil Liberties Union Roger Baldwin Medal of Liberty, was the last man convicted of contempt of Congress for refusing to respond to the question of the House Committee on Un-American Affairs (HUAC) as to his associations with the Communist Party. In an unprecedented move, Mr. Wilkinson refused to answer this question on the ground that it violated his First Amendment right to freedom of association. In this Article, Mr. Wilkinson explores the context and circumstances surrounding his initial conviction. He further explores his lengthy battle to overturn that conviction where he learned of the FBI’s efforts to convict and harass him as he fought against the constitutionality of HUAC.

UNITED STATES V. JOHN W. HINCKLEY JR. (1982)

by Vincent J. Fuller

In 1982, a federal jury in Washington, D.C., found John W. Hinckley Jr. not guilty by reason of insanity for his assassination attempt of President Ronald Reagan in March of 1981. Vincent J. Fuller, who was Hinckley’s trial counsel, discusses how the acquittal of the President’s would-be assassin sparked a heated debate in Washington about the viability of the insanity defense. The President’s administration contended that the defense should be eliminated altogether, while scholars noted that flaws in the insanity defense were merely the tip of the iceberg of problems already existing in the criminal justice system. Mr. Fuller discusses the legal strategies, questions, and ramifications of the use of the insanity defense in that case.

THE HILLSIDE STRANGLER TRIAL

by Justice Roger W. Boren Foreword by Chief Justice Ronald M. George

In this Article, California Court of Appeals Presiding Justice Roger W. Boren describes his experience as the prosecuting attorney in the longest trial in United States history. In the late 1970s, young women in the Los Angeles area feared for their lives as the Hillside Strangler went on a killing rampage. Later, evidence showed that the Hillside Strangler was actually two men, Kenneth Bianchi and Angelo Buono. Although there were two men responsible, only one man would stand trial for the murders. Justice Boren gives his perspective on the extraordinary trial of Angelo Buono.

“THIS CASE IS BROUGHT TO YOU BY...”: HOW HIGH-PROFILE MEDIA TRIALS AFFECT JURIES

by Richard Gabriel

Among other things, jurors are supposed to decide a case based solely on the evidence presented in court, abide by the judge’s instructions, and put aside their personal biases. But what happens when the case upon which jurors are sitting has had a tremendous amount of pre-trial publicity, is receiving gavel-to-gavel media coverage, and is being closely followed by millions of people worldwide? Richard Gabriel, a jury consultant in the highly publicized O.J. Simpson and Heidi Fleiss cases, examines the effects of heavy media coverage of trials upon juries as well as the public.

WHAT I LEARNED COVERING THE TRIALS OF THE CENTURY

by David Dow

CBS News Correspondent David Dow has seen the entertaining and often enlightening world of trials as both a journalist and a juror. Through the “trials of the century,” Americans became more familiar with the basics of the legal system than ever before. However, the outlandish drama and unlikely cast of high-profile trials distort what really happens in the daily business of the justice system. Mr. Dow also shares his experiences as a juror who saw firsthand the flaws in our legal system.

TRIALS OF THE CENTURY

by Linda Deutsch

Journalist Linda Deutsch has been covering “trials of the century” for thirty years. Within these trials, she has seen morality plays mirroring each era. Ms. Deutsch provides an overview of the cases that forced American society to face its own troubling issues, and concludes that while the last one hundred years have brought about some positive changes in our system of justice, the fundamental notion of a trial—a reflection of the good and evil of people—has not changed.

SPEECH

CREATING FREEDOM: BIRMINGHAM, 1963, A LEGAL SERMON IN CELEBRATION OF MARTIN LUTHER KING JR.’S BIRTHDAY, JANUARY 15, 1999

by Samuel H. Pillsbury

In a January 1999 speech given in celebration of Martin Luther King Jr.’s birthday, Professor Samuel H. Pillsbury reminisces about his childhood impressions of the civil rights movement and how it would come to shape the work that he does today. To show how the nation was divided on issues of freedom and race, Professor Pillsbury examines the beliefs of three men who advocated different visions of freedom in America: John F. Kennedy, George C. Wallace, and Martin Luther King Jr. King’s civil rights campaign reached its climax in May of 1963 in Birmingham, Alabama, shifting the national consensus on race and prompting major civil rights legislation. Professor Pillsbury notes that the events that occurred in Birmingham show how non-legal actions can influence not only a nation’s sentiment, but also its laws.

NOTE

PROTECTING FEDERALISM OR ASSAULTING SEPARATION OF POWERS? THE PROPOSED TENTH AMENDMENT ENFORCEMENT ACT

by Allyson T. Oshidari

In 1998, Senator Paul Coverdell introduced a bill entitled the “Tenth Amendment Enforcement Act of 1998” to restore meaning to the Tenth Amendment guarantees to the states. Although the Bill never made it out of committee hearings, it is worth examining for the constitutional questions it poses. This Note analyzes whether Congress, while seeking to protect principles of federalism, would exceed its power by keeping too much control over judicial interpretation and executive enforcement. The author concludes that the Bill could withstand a constitutional challenge except for the section where Congress strips preemption power from executive agencies, thereby violating fundamental notions of the separation of powers doctrine.