I thought it would be both interesting and useful in this fourth installment in the continuing Three Ring Circus saga to explore in some depth four subjects that have never been totally clear to me. I do so in the hope that, in addition to improving my understanding, this effort will be helpful to others who also find these subjects somewhat of a puzzle. Therefore, this Article will evaluate the origins of the balancing of interests test, revisit the Commerce Clause in its dormant state and the balancing of competing interests, reexamine the intermediate scrutiny of gender-based classifications, and return to the idea of similiarity of situation.
Page 2 of 6
It is a thrill to celebrate with you as you complete your law school career and begin what I believe is the most rewarding professional career available. In the short span of three years, you have gone from being students to graduates, and shortly, when you have passed the bar examination, as I am sure you will, to being lawyers. I like lawyers. They are my heroes and heroines. There is not a day that goes by that I am not deeply proud to be a lawyer.
My name is John Loftus. It is probably kind of silly to have an Irish-Catholic as president of the Holocaust Museum. A lot of us wonder why we even have a Holocaust Museum for Jews. Every ethnic group has genocide. What was the largest number of people killed? During the middle passage of slavery, tens of millions of Africans died during the slave trade. What ethnic group had the highest percentage of their people killed? It was not the Jews; it was the Armenians. One out of every three Armenians in the world died in Turkish deportations in World War I.
The goals recited above are certainly laudable, but when these goals clash, who is the proper party to decide which goal carries more weight with respect to our Nation’s public policy? The first quote comes from the Americans with Disabilities Act (ADA) and provides the rationale behind Congress’s enactment of a broad sweeping statutory scheme meant to eradicate discrimination against the disabled and ensure that disabled individuals have equal opportunities and access to public accommodations. The second quote is from the Indian Gaming Regulatory Act (IGRA). Congress recognized that tribal gaming provides a much needed source of income to Native American tribes and sought, through the IGRA, to enact a statutory scheme that would provide for economic self-sufficiency and protect tribal gaming from corruption so that the tribes could reap the economic benefits of such gaming enterprises.
“A year after the restoration of Louis XVIII, a visit was made by the inspector-general of prisons.” In 1998 a Florida appellate court considered the post-conviction relief request of a prisoner named Wilton Dedge in Dedge v. State. “‘I do not know what reason government can assign for these useless visits; when you see one prisoner you see all—always the same thing—ill-fed and innocent.’” Two of three appellate judges on the Dedge court affirmed the trial court’s denial of Dedge’s request. The court did not issue a majority opinion. Dedge contends he is innocent of the crimes for which he was convicted in 1984. “‘I must conscientiously perform my duty.’ . . . ‘Let us visit this one first.’” The lone dissenter in Dedge, Judge Winifred J. Sharp, wrote a three-page opinion that revisited the trial, explored a new scientific test, Polymerase Chain Reaction Deoxyribonucleic Acid (PCR DNA) analysis, considered the applicability of the new test to Dedge’s case, and criticized the majority’s application of a ticking two-year- time-bomb lurking within Florida’s post-conviction relief statute. “[T]urning to the prisoner, ‘What do you demand? ’. . . . ‘[I]f innocent, I may be set at liberty.’” Since no DNA tests were available at the time of his 1984 trial, Dedge asks for DNA tests, now available, which could exonerate him.
Little scholarship focuses on the actual experience of creating a dynamic law review or journal. What little that has been printed about journals focuses specifically on over-editing and has been written by professors who may have their own best interests in mind.1 This Article offers concrete advice for new journal editors and begins what I hope is a series of articles educating students who are eager to learn a new craft. Law students who are ambitious enough to join a journal staff do not always have an editorial background or training; that is, the majority were not professional editors or publishers before attending law school. Nevertheless, the institution of law school expects these inexperienced new staff members and editors to know what articles to choose immediately, which authors to solicit, and how to add to an article’s validity through cite checks and line editing. Some student editors handle the implied standards of excellence by pretending that they know what to do, while others repeat the previous year’s editorial techniques and mistakes. In the end, most spend an enormous amount of time reading, editing, and then re-editing and worrying about their work.
Editor. The very word conjures up images of an older man with a starched white shirt hunched over a manuscript, a permanent scowl on his face. Or perhaps a strait-laced woman, again older, hair pulled back tight in a bun, her red pen mercilessly lining out words and correcting mistakes. Editing. That word may bring similar images to mind, but it is more likely to be associated with one’s own late night efforts to give a painfully extracted draft a final hard look, hoping to catch the extra “e” in “judgement” that spell check misses, trying to spot spacing errors in citations, and double-checking page numbers for quotations.
Working with citations is a fact of life on law journals. Because citation work is detail-oriented, requires great concentration, and is sometimes perceived as “drudge work,” it often generates a high level of frustration among law review staff, editors, and authors. This Article will address the primary frustrations suffered by each group and will propose solutions for alleviating those frustrations.
I am pleased to have been asked to speak to all of you tonight. Law review dinners are very special occasions for me. I was editor in chief of the University of Chicago Law Review when we planned the first law review dinner in our history. As toastmaster of the event, I likened our humble organization to a corporation, with our law review alumni as the equivalent of stockholders. One guest immediately shouted out that the dividends were lousy. Then I introduced Robert Maynard Hutchins, the president of the University of Chicago and former boy-wonder of Yale Law School, whose dean he had been at the age of thirty and where he had been a law review editor. He advised all of us that no one ever knows as much or is as certain of that knowledge as a law review editor. Fortunately, he told us, the disease lasts only a year and returns only when you become a judge. Then I called on our law school dean, Edward Levi, and he read a promotional form letter from Harvard Law School, addressed to Dean Levi as the dean of one of those law schools who did not have a law review of their own. Because of our deprived state, Harvard offered to let the students and faculty of the University of Chicago subscribe to the Harvard Law Review at a greatly reduced subscription price.
Those of you who are connected with the National Conference of Law Reviews deserve hearty congratulations. As we mark the turn of the century, Americans can celebrate, among other things, the stability and advances of the United States legal system, an achievement that speaks loudly to the successes of legal institutions, the enduring, yet flexible, nature of our laws, and the soundness of legal education. You—the leading students of our law schools—now carry the heavy mantle and must perpetuate and improve our legal system during the twenty-first century.