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LAW REVIEW ARTICLES COMPILED BY PATRICK MANSHARDT
(from The Defender May/June 1996 Volume II, Number 6 published by the Individual Rights Foundation, a division of The Center for the Study of Popular Culture. The center is a 501(c )(3) organization. Membership is $25 a year. Send check or money order to the editorial office. Visa and MasterCard accepted. Publisher David Horowitz,
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While there are intelligent ways of dealing with subjects from a liberal point of view, many times the treatment of these subjects in many of the national Law Journals is just plain silly. Here's a list of what attempts to pass for thoughtful legal scholarship:
Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995). Obviously responding to recent criticism of the preferential treatment by some black jurors of obviously guilty black defendants, the author, a former Assistant U.S. attorney, suggests race is an appropriate factor to consider in criminal trials and that some non-violent black defendants (i.e., Washington D.C. Mayor Marion Barry) should be found not guilty despite their obvious guilt for the good of the black community. African-Americans are better qualified to determine what crimes they will (or will not) punish than are white law makers. The author also writes;
My goal is the subversion of American criminal justice, at least as it now exists. Through jury nullification, I want to dismantle the master's house with the master's tools. My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain non-criminal ways of addressing antisocial conduct. Criminal conduct -among African-Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a mason-able response to the racial and economic subordination every African-American faces every day. Punishing black people for the fruits of racism is wrong ff the punishment is premised on the idea that it is the black criminals "just desserts." Hence, the new paradigm of justice that I suggest ... rejects punishment for the sake of retribution, and endorses it, with qualifications, for the ends of deterrence and incapacitation.
This essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all-you, me, and the black criminal. I wish that black people had the power to end racial oppression right now. African-Americans can pre-. vent the application of one: particularly destructive instrument of white supremacy--American criminal justice--to some African-American people, and this they can do immediately. (As if it were "the fruits of racism" that led Marion Barry to smoke crack while in the "trappings of oppression"--the mayorship of this nation's capital city.--eds.)
We Have Nothing to Fear but 'Gender Stereotypes: Of Katie and Amy and "Babe Feminism," (Reviewing The Morning After: Sex, Fear, and Feminism on Campus, by Katie Roiphe). 80 CORNELL L. Rev. ú 612 (1995) This article is the type of scorn that traditional feminists save for those who, dating to call themselves feminists, criticize the "victim culture" of traditional feminism. These critics, or "babe feminists" as they are (probably pejoratively) called, contend that it is the victim culture that poses the real danger to women, and it is this victim culture propagated by the traditional feminists that reinforces stereotypes of women as weak, passive victims. "Babe feminists" also lament that the traditional feminists have fostered an exaggerated fear of sex by focusing on date rape and pornography, and by so doing, have taken all the fun out of sex. Some passages of the review read:
Roiphe's attack on feminist views of date rape and sexual harassment implicitly rejects a concept central to cultural [traditional] feminism: the belief that significant cultural and psychological differences exists between men and women. Additionally, her fears about gender stereotyping echo current critiques of cultural feminism. Roiphe's "careless and irresponsible" work provides a concrete example of the dangers of these criticisms carried to their ultimate extremes.
...Roiphe provides examples of the "evils" of contemporary feminism. Her targets include Take Back the Night Demonstrations, pamphlets about campus dating and sex, the anti pornography movement, and, most significantly, the concepts of date rape and sexual harassment [Roiphe contends that much of what is report as "date rape" is either imagined, or just descriptions of "bad sex."] ...........
...All...of these arguments can have concrete, real world results that are highly detrimental to women. Roiphe's goal may have been a theoretical critique of feminist discussion of sex. However, her work will contribute to further trivialization and underreporting of sex crimes against women.
The author finally concludes: ...Katie Roiphe is the woman that the liberal feminism of the seventies taught me to want to be. I admire her toughness and independence, but I am suspicious of her. I see these new "do-me" feminists with their feelings of invulnerability, and I feel sad. They are so confident, so sure, and ultimately, so vulnerable. Whether they understand this or not, they are also the women the dominant gender ideology wants us to be. Not the gender ideology of Jesse Helms, but the gender ideology of Hugh Hefner. Roiphe's "babe" feminist, who revels in fun sex; is exactly the stereotype that Playboy has promoted for so long. Validating objectification of women and patriarchal models of sex should not be the ultimate goal of feminism.
Due Process and Equal Protection Challenges to the Inadequate Response of the Police in Domestic Violence Situations, 68 S. Cal. L Rev. 1295 (1995). This article contemplates yet more creative causes of action against the government due process and/or equal protection lawsuits should be used against city police officers who, due to inadequate response, fail to protect victims of domestic violence. Even more fanciful, the author simplistically, and conclusorily, suggests that a lack of response by police, instead of being the product of an overburdened police force, or the refusal of women to participate in the prosecution of domestic violence cases, is the result of intentional discrimination against women. The author writes:
Discriminatory intent on part of the police can be established in three ways. First, the enforcement of a facially neutral policy that severely discriminates against a particular class of people can imply discriminatory purpose. Police policies affording battered women less protection than other battery victims result in extreme discriminatory effects to women because women comprise the entire dream of people who are harmed. The result is that domestic violence is very common and severe, and often results in death. Second, discriminatory intent can be proven by analyzing the archaic, stereotypical notions behind police policies of providing police protection to battered women. Such police policies are based on outdated patriarchal notions. They are derogatory and condescending towards women and establish the basis for discriminatory purpose. Third, discriminatory purpose can be established by examining unconscious sexism and the "cultural meaning" behind police policies.
Federal Environmental Citizen Protections: Obstacles and Incentives on the Road to Environmental Justice, 22 ECOLOGY L.Q. 1 (1995). The author suggests that U.S. environmental laws and regulations have resulted in "environmental racism." This term is used to describe the alleged fact that "communities of color" are left with "more environmental hazards," and "less rigorous environmental enforcement," than are "predominantly White communities." Furthermore, the initiation of private enforcement suits, by white plaintiffs, causes an even more disproportionate environmental burden on communities of color. To remedy this situation, the author suggests: One method of reform is to create mechanisms that will give community groups greater access to court. It is the leverage accorded by enhanced access to courts, rather than actual litigation, that will serve to correct environmental inequities by removing the economic and political incentives that drive environmental hazards to these communities. Enhanced court access can be accomplished in a controlled and targeted way by a standardized lodestar adjustment to the attorney's fee calculation to give attorneys a sustained incentive to represent low income communities and communities of color.
Racism in Our Courts: The Underfunding of Public Defenders and its Disproportionate Impact Upon Racial Minorities, 22 HASTINGS CONST. L.Q. 219 (1994). This is another simplistic and conclusory treatment of the problem of race in the criminal justice system. The author points out her main premise in one introductory paragraph:
In the United States, racial minorities are disproportionately poor and, as a result, disproportionately require public defenders when charged with crimes. Therefore, the ineffective assistance that public defenders often provide due to inadequate resources particularly disadvantages people of color. This is a clear denial of Fourteenth Amendment equal protection to racial minorities.
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