Gates, Leon and the Compromise of Adjudicatory Fairness: (Part I)-A Dialogue on Prejudicial Concurrences

On July 5, 1984, the Supreme Court in Leon v. United States held that where law enforcement officials execute a search warrant issued in violation of the dictates of the fourth amendment but act in the good faith, objectively-reasonable belief that the warrant was constitutionally valid, the fruits of the search should not (with a few exceptions) be excluded from evidence under the exclusionary rule. On June 8, 1983, in Illinois v. Gates, the Supreme Court, after calling for and receiving briefs and arguments on the same issue of whether the exclusionary rule should be modified, concluded, for reasons of jurisdiction and prudence, that it could not reach that question in that case. This two-part Article is about certain qualities of fairness--those qualities that although subtle, are central to the idea and spirit of justice in adjudication. This Article is about how those qualities were subverted in the process by which the doctrine of United States v. Leon became law

Accommodating the Law and Economics of Price Cutting: The Vice or Virtue of Low Prices

Although the interpretation and application of the federal antitrust laws are replete with paradoxes, inconsistencies, and seemingly conflicting premises, few situations illustrate the contradictory nature of federal policy toward industrial structure and business behavior as dramatically as the Justice Department\u27s rejection of General Electric\u27s proposed decree. For example, one primary objective of the Sherman Act is to prevent practices that tend to restrict output and raise prices, and price-fixing agreements are illegal per se because it is unreasonable to believe that they have any beneficial results. Many industries exhibit a high degree of concentration that enables a few firms to operate through a structure of quasi-agreements and spontaneous coordination, from which comes an implicit understanding that they will enhance their individual profits by refraining from engaging in price competition. A major current concern of antitrust administration and industrial economics is to find ways of rendering these oligopolies more competitive, yet the crux of the government\u27s allegations against General Electric and its executives was that they participated in a scheme designed to reduce prices in an oligopolistic industry. In view of the widespread concern over inflexible, unnaturally high prices, the rationale of the Justice Department\u27s attempts in similar situations to prohibit unreasonably low prices with neither a showing that the alleged violator had an intent to suppress competition nor an examination of the effect that the lowering of prices had on the competitive process warrants critical examination. This Article will first survey the development and present status of legal limitations upon low or lowered prices. Following sections will examine the applicable legal doctrines within a framework of economic analysis, and the final section will propose an approach to the law of price cutting that attempts to bring it in line with the broader objectives of antitrust policy

Introduction to Keynote Speaker Randall Bovbjerg

There is probably no constitutional duty on the government to provide medical care; for the Court recently reaffirmed, in Deshaney, the current Court\u27s view of our Constitution as prohibiting governmental wrongs rather than granting entitlements from the government. We say there is a moral duty to provide medical care to those who cannot afford such care. Where does the moral right to receive basic medical care come from

Gay and Lesbian Applicants to the Bar: Even Lord Devlin Could Not Defend Exclusion

In 1957, the publication of a report to Parliament, the Wolfenden Report, which recommended the repeal of laws criminalizing private homosexual conduct between consenting adults, sparked an intensely debated controversy in political philosophy and jurisprudence. The issue: is society justified in criminalizing behavior which, although causing no secular harm, transgresses widely held moral values? The principal proponent of morals legislation was Lord Patrick Devlin, who responded to the Wolfenden recommendation with a paper disputing the report\u27s premises--that criminal law had no proper business punishing private immorality.Oxford Professor of Jurisprudence H.L.A. Hart, a philosophical successor to the libertarianism of John Stuart Mill, vigorously opposed Devlin\u27s views. In this country, the most distinguished proponent of the Mill-Hart philosophical position is Professor Ronald Dworkin. Hart, Dworkin, and those of a similar persuasion, and Lord Devlin and those of his persuasion, produced a prodigious body of legal, moral, and political philosophy. While I am of the Mill-Hart-Dworkin persuasion, the Devlin-Hart disagreement will not be pursued herein, for one thesis of this Article is that in the present moral climate, even supporters of Lord Devlin\u27s philosophy could not justify criminalizing private sexual conduct between consenting adults. I look at this specifically in the context of admission to the Bar. At the outset, let me state my reasons for the subtitle of this article--i.e., Even Lord Devlin Could Not Defend Exclusion, in the moral climate of the year 2000. Devlin, in his major work on this subject, conceded that his thesis was subject to certain important exceptions or qualifications. The most significant of these, for present purposes, is that when, over time, the limits of tolerance shift as to particular behavior, society would not be required or even justified in continuing to criminalize that conduct. Critical to Devlin\u27s thesis defending the enforcement of morality was the presence of a strong and pervasive public demand for enforcement, a demand generated by almost universal disgust and abhorrence, such that the very idea of legal tolerance was itself intolerable. As I examine, in Part I, the developments since the mid-1960s with respect to the legal, constitutional, social, and reputational status of homosexuals, it becomes abundantly clear that the conditions for even the debatable Devlinian justification for prohibiting consensual same-sex intimacies are simply not present. Rather, there have been major shifts in the limits of tolerance away from condemnation and outrage, and toward toleration and acceptance

Brief Against Homophobia at the Bar: To Law School Dean-Mid 1960s

In the mid-1960s, the author addressed the following brief to the Dean of a major law school on behalf of a law student, successfully urging that the Dean not report the student\u27s homosexual activities to the state Bar committee which screened applicants for good moral character. My own view, to be presently elaborated, is that to deprive a law student of the well-earned fruits of his labor on the basis of psychiatric findings that he might, at some future time commit a homosexual act that might become public and might merely embarrass a client, employer or associate, would manifest gross infidelity to a faculty\u27s obligations to its students, implicitly adopt and perpetuate a form of bigotry at least as insidious, irrational and pernicious as racial discrimination, and inflict a grave, and perhaps permanently crippling injustice

Introduction to Debate (between N. Morris and R. Bonnie): Should the Insanity Defense be Abolished?

The author introduces a debate between Professor Norval Morris and Professor Richard Bonnie on the insanity defense

Introduction to Keynote Speaker Randall Bovbjerg, Symposium: Ohioans Without Health Insurance

The author introduces keynote speaker Randall R. Bovbjerg at the Inaugural Conference of the Law and Public Policy Program

Gates, Leon and the Compromise of Adjudicatory Fairness: (Part II)-Aggressive Majoritarianism, Willful Deafness, and the New Exception to the Exclusionary Rule

This Article will offer an elaboration of the idea of judicial aggressiveness (which Professor Stone, by and large, leaves undefined) through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard. It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness--willful deafness

Should the Insanity Defense be Abolished - An Introduction to the Debate

As the plans for the debate began to unfold I was concerned about the possibility that the subject matter might already be jaded, or in any event no longer would be a hot topic for our potential audience. Being quite familiar with the writings of our Advocates and therefore particularly susceptible to the reader-listener rehash syndrome, I was nonetheless hopeful that what had the potential for being old-hat would instead be new and interesting to those members of the audience not professionally committed to intimate familiarity with the subject matter. While I had expected that these issues, aired in the setting of a debate, would be more exciting and immediate than even the extraordinary written scholarship of both erudite visitors, I hadn\u27t expected the remarkable level of intensity, originality and profundity to which all of us were treated

Should the Insanity Defense be Abolished - An Introduction to the Debate

As the plans for the debate began to unfold I was concerned about the possibility that the subject matter might already be jaded, or in any event no longer would be a hot topic for our potential audience. Being quite familiar with the writings of our Advocates and therefore particularly susceptible to the reader-listener rehash syndrome, I was nonetheless hopeful that what had the potential for being old-hat would instead be new and interesting to those members of the audience not professionally committed to intimate familiarity with the subject matter. While I had expected that these issues, aired in the setting of a debate, would be more exciting and immediate than even the extraordinary written scholarship of both erudite visitors, I hadn\u27t expected the remarkable level of intensity, originality and profundity to which all of us were treated