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and on-line partners, please submit to us your top THREE choices from
among the potential issues listed below. Please submit your choices, noting
numbers and bold titles, by no later than Tuesday, September 10th.
Email Dr. Cates
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1. ORDERED LIBERTY.
Over the course of this semester, we will be considering the tension that exists
between social order, on the one hand and individual liberty, on
the other. More than 60 years ago, Benjamin Cardozo coined the phrase "ordered
liberty," seemingly combining these two contradictory concepts. Your task is
to define, analyze, and assess the notion of "ordered liberty." What did Justice
Cardozo mean when he used the term? In what context did he use it? How, if at
all, has it been used subsequently? Is it a useful way of thinking about and
carrying out the role of law in maintaining both liberty and order?
2. LAW & THE
FRIGHTENED MOB. It has long been recognized that fear is the great enemy
of civilized society. This is particularly true when fear grips the majority of
society. As Franklin Roosevelt realized ("The only thing we have to fear is fear
itself."), a frightened majority may threaten social organization. And, as Louis
Brandeis appreciated ("Men feared witches and burned women.") a frightened
majority may threaten individual freedom. Thus, fear wreaks havoc both on order
and liberty. Of course, as you well know, the Constitutional Framers developed
legal structures designed specifically to discourage the dangers of panicked
mobs. But as the words of President Roosevelt and Justice Brandeis indicate, for
all the legal safeguards, the threat of the frightened majority remains. Your
paper will be an examination of the role of law in mitigating and/or
exacerbating fear. You will probably want to begin by examining the legal
structures designed to control frightened majorities. Then, choose one (or
several) instance(s) in American history where fear clearly gripped the majority
(we can help with ideas). How did this play itself out? And, most important, did
the law act to deflect these fears from their harmful purpose? Or, did it, in
fact, abet the worst instincts of the mob?
3. INALIENABLE RIGHTS. The
Declaration of Independence argues that "life, liberty, and the pursuit of
happiness" are "inalienable" rights, and our Constitution reinforces this
notion. Explore the definition of "inalienable." Can the state, under our
system, abrogate such rights?
4a. Variation 1: Given that our Constitutional scheme guarantees life
as an inalienable right to all citizens, how can the state justify capital
punishment? Explain the order versus liberty conflict involved here.
4b. Variation 2: Does our system guarantee any particular "quality" of
life, or merely life, itself? In particular, if the quality of a person’s life
deteriorates to extremely uncomfortable conditions, can she legally make a
choice to end it? Why would the state intervene in her decision? In other words,
does the right to life include the right to die? If not, explain. If so, explore
the qualitative conditions that this would encompass, and explain the order
versus liberty conflict.
4. MY BODY, MYSELF. Do we have a property interest in our bodies? Often, but
not always, an egg or sperm donor actually sells her/his sample to a privately
run company. In any case, it is perfectly legal to sell a part of yourself on
the open market. Similarly, it is possible to sell one’s hair, nails, and blood.
Is it legal to sell organs and other genetic materials extracted from one’s own
body? Having answered this question, explain the rationale underlying the law.
Is there a conflict between individual liberty and order embedded in such
issues?
5. The Posse Comitatus Act, 18 U.S.C. § 1385, which
prohibits the use of the military in civilian law enforcement, was passed by
Congress in 1878. In essence, the Act codifies and reinforces the traditional
American principle of separating civilian and military authority.
This summer, the Bush Administration directed lawyers in the Departments of
Justice and Defense to review Posse Comitatus. Following,
September 11, 2001, many in the administration, including Homeland Security
Director Tom Ridge, increasingly feel that it should be easier to call up the
military in times of civil disaster.
Keeping in mind our theme of liberty v. order, in general, why is separation
of military and civilian functions a good thing? Specifically, what was the
rationale of the Congress in 1878 for enacting Posse Comitatus?
Finally, you’ll want to thoroughly examine the pros and cons on enlarging the
military role today. What is the Administration’s rationale? Why do critics
think it’s such a bad thing? And, what do you think?
6. ELECTRONIC VOTING. During the 2000 presidential primaries, the
Arizona Democratic Party conducted the world’s first-ever Internet election.
Voting was allowed by traditional paper ballot at one of 50 specified locations
around the state or electronically from any remote site. Prior to the election,
the Voting Integrity Project ("VIP"), a non-profit, non-partisan public interest
organization, filed suit in U.S. District Court seeking to prevent the Arizona
Democratic Party from carrying through with its plans. VIP argued, among other
things, that the system creates voting advantages for the resource rich and
disadvantages for the resource poor and that Internet voting maximizes white
electoral participation at the expense of African-Americans, Native Americans,
Hispanics, and other minority groups. The arguments were rejected by the court
and the election allowed to proceed with the blessing of the court and the U.S.
Department of Justice. Although Arizona’s Internet election was the first, it
will certainly not be the last proposed binding election conducted
electronically. Explore the legal questions involved with this procedure and
predict which ones will be the most difficult for courts to decide.
7. MEDICAL EXPERIMENTATION. Beginning in 1932, the federal government
sponsored a study to examine the impact of syphilis. The research went on until
1972. Throughout the 40 year course of the so-called Tuskegee Experiment,
hundreds of poor, African-American men with syphilis, who believed that their
various ailments were being dealt with, in fact went untreated. Without their
knowledge, they were being used as human guinea pigs so that researchers could
chart the natural progress of the disease. In 1994, the government finally
responded to a lawsuit by settling with survivors. And in 1997, President
Clinton, on behalf of the government, apologized to the study "volunteers" and
their families. Story closed. But is it? Recently, an experimental gene therapy
program at the University of Pennsylvania was closed after the death of one of
its patients. And, healthy volunteers have died at Johns Hopkins and Case
Western Reserve Universities in just the past year. Under current law what legal
cause of action would plaintiffs have?
8. HATE GROUP WEBSITES.
In January 2000, Ryan Wilson and the group he runs, ALPHA HQ, were charged by
federal authorities with civil rights violations for running a Web site that
threatened a housing activist, and suggested acts of domestic terrorism against
her organization. The target was Bonnie Jouhari, who chaired the Hate Crimes
Task Force for a county in Pennsylvania. The ALPHA HQ Web site carried an
animated picture of Jouhari's office being blown up by explosives and a picture
of Jouhari, who is white, labeling her a "race traitor." It said: "Traitors like
this should beware, for in our day, they will be hung from the neck from the
nearest tree or lamp post." This is certainly not the first such incident
involving websites and threatening messages. In exploring this problem, be sure
to identify the liberty-order conflict and indicate how you think the conflict
will ultimately be resolved.
9.
WITH LIBERTY AND JUSTICE FOR ALL.
Imagine the following courtroom scene: A non-human great ape (in addition
to humans, the great ape family includes chimpanzees, bonobos, gorillas, and
orangutans) appears in the courtroom. A lawsuit, perhaps protesting the ape's
life behind bars in a zoo, circus, or research facility, has been filed in the
animal's name. The ape then testifies using sign language or a voice synthesizer
to support the claim that she or he is deserving of a fundamental right to
liberty.
Believe it or not, increasing numbers of animal rights lawyers say that such
a scenario will likely be staged in the not-too-distant future. With this
scenario as your starting point, you’ll want to explore the following questions:
1) Do animals, including the great apes, currently have any legal rights or
liberties? 2) What would be the implications of affording animals legal rights
and liberties? 3) How likely is the possibility of the above scenario actually
occurring?
10. A BRAVE NEW WORLD (1). Ok, by now, everybody knows this sheep. And
everybody also knows that the procedure used to make her (and numerous other
animals since) is simple enough that it can be applied to humans in the very
near future. This means that the genetic material from a person could be easily
obtained and inserted into an ovum from which the genetic material has been
removed and that ovum now would behave like a fertilized egg and could develop,
when implanted into a womb, into a person with the exact genetic makeup of the
person from which the material was obtained--a clone. No fertilization by a male
with different genetic makeup would be necessary. Exciting, aint it? How, if at
all, has the law reacted to the possibility of cloning humans? Should law weigh
in one way or another or should the decision to clone be a purely private
matter?
11. BRAVE NEW WORLD (2). A married couple wish to have a child, but
both are infertile. Through a series of procedures they obtain an egg and sperm
from donors, conception occurs in a laboratory, and their next door neighbor
agrees to serve as a surrogate mother who will carry the baby to term.
11a. Variation 1: Once born, their child has no biological link to the
new parents. Can any of the biologically connected parties make a parental
rights claim?
11b. Variation 2: However, before implantation can occur, the male
donor reneges on the deal and wants his sperm destroyed because he has decided
that he does not want to become a "father." He files a claim on the fertilized
zygote, which has been placed in frozen suspension pending the outcome of the
conflict. Is the zygote a form of property, or is it a form of human life?
12. YOU AND YOUR GENES.
Two years ago, the U.S. Human Genome Project (DOE & NIH) and the private
research group Celera announced the completion of a "working draft" reference
DNA sequence of the human genome. The achievement provides scientists worldwide
with a road map to an estimated 90% of genes on every chromosome. The Genome
Project hopes to have identified all of the approximately 30,000 genes in human
DNA by early 2003. Already, the growing field of genetic diagnostics allows
clinicians to detect some genes that may cause disease and early death.
Obviously this is a wonderful thing! But, does it come at a cost to liberty?
Might your genetic diagnosis be available to insurers who could deny you
coverage based on a "pre-existing condition"? How about to employers who could
deny you a job or fire you because you are a "bad risk"? Has the law dealt with
these problems? What, if anything, should be done?
13. 
LIBERTY OR
PIRACY? Music has been at the heart of a great deal of modern intellectual
property litigation. And, a good bit of the battle here has revolved around an
issue near-and-dear to the hearts of many college students, downloading music
off the Internet -- a practice put in the less flattering terms of "online
piracy" by the music industry and its recording artists. Music companies, many
song writers, singers, and musicians contend that the practice is costing them a
fortune – literally robbing them of property. In any event, we have here a
classic conflict pitting one group’s liberty interests against another’s. You
should explore the current legal terrain, including recent and ongoing
litigation and congressional actions. What do you think the end result will be?
14.
THE RIGHT TO BE LET ALONE.
Consider the following statement made by Justice Louis Brandeis in 1928:
“The makers of our Constitution undertook to secure conditions favorable
to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of his feelings and of
his intellect. They knew that only
part of the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect
Americans in their beliefs, their thoughts, their emotions and their sensations.
They conferred against the Government, the right to be let alone __
the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the
Government upon the privacy of the individual, whatever the means employed, must
be deemed a violation of the [Constitution]. . . .”Olmstead v. United
States, 277 U.S.438, 478-79
(1928) (Brandeis, J., dissenting).
(Emphasis added).
Of course,
Brandeis was writing almost a quarter of a century ago – certainly, long before
the technological revolution that has characterized the past two decades.
At the same time, however, Americans continue to speak jealously in terms of
their “rights to privacy” and, increasingly, to fear privacy invasions.
But, while we persist in valuing Brandeis’ “right to be let alone,” is
our main problem still “unjustifiable instrusion[s] by the Government?”
Or, do corporations pose a larger threat to this essential liberty?
And, if they do, what can be done about it?
15. LIBERTY v. ORDER IN CYBER-SPACE. Although the Internet is an
enormous source of knowledge and legitimate commerce, it is also an enormous
source of smut. By some accounts, it is also a large breeding ground for
pedophiles and child molesters. In order to avert harms to children caused by
such perversions, Congress has, over the past several years, tried several times
to regulate Internet pornography. First, in 1996, Congress enacted and President
Clinton signed into law The Communications Decency Act (CDA), designed to
discourage and punish Internet pornographers. That law quickly made its way to
the Supreme Court where the Justices decided that key provisions of the Act
abridged "the freedom of speech" protected by the First Amendment. (Reno v.
American Civil Liberties Union, 521 U.S. 844. 1997).
Subsequently, Congress passed two additional laws designed also to protect
children, but supposedly without the constitutional failings of CDA. One, the
Child Pornography Prevention Act of 1996 (CPPA) expanded the existing
federal prohibition on child pornography to include not only pornographic images
made using actual children, but also so-called "virtual child pornography," that
appears to depict minors using young looking adults or computer simulations.
However, earlier this year, the Supreme Court struck that law down as overbroad
and unconstitutional. (Ashcroft v. Free Speech Coalition). A second law,
the Child Online Protection Act (COPA), specifically addressing the
defects in CDA, applied sanctions for indecent Internet transmissions "only to
material displayed on the World Wide Web, cover[ing] only communications made
for commercial purposes, and restrict[ing] only ‘material that is harmful to
minors’." That Act was challenged by the ACLU and thereafter, a district court
issued an injunction barring the enforcement of COPA. That injunction was upheld
by the Third Circuit Court of Appeals. In May, the Supreme Court remanded the
case for further consideration by the Circuit Court, leaving the injunction in
place for the time being (Ashcroft v. Free Speech Coalition)
Obviously, it’s not easy to regulate porn! Your task is a full examination of
the issues pitting liberty against morality. What has Congress’ response been to
the current Court decisions? What are the arguments on both sides of the issue
(e.g., the ACLU as opposed to the National Coalition for the Protection of
Children and Families or Focus on the Family)? Why have the courts been so hard
on the laws already passed?
16. Patriotism v. Liberty? In response to 9/11
Congress hurriedly passed and President Bush quickly signed into law the USA
Patriot Act. The law gives sweeping new powers to both domestic law
enforcement and international intelligence agencies. Top among the chief
concerns expressed by civil liberties groups are the government’s expanded
surveillance powers under the Act. Your tasks are the following: 1) Examine the
history of government surveillance in the United States. Have there been abuses
of this function in the past? 2) Examine the Patriot Act. Which among its
provisions might be of concern to civil libertarians? 3) Familiarize yourselves
with both sides of the debate. 4) Come to a conclusion: is the Act
constitutional?
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Last Modified
08/13/02