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University of Chicago Law School Chicago Unbound The nivU ersity of Chicago Law School Record Law School Publications Fall 9-1-1987 Law School Record, vol. 33, no. 2 (Fall 1987) Law School Record Editors Follow this and additional works at: http://chicagounbound.uchicago.edu/lawschoolrecord Recommended Citation Law School Record Editors, "Law School Record, vol. 33, no. 2 (Fall 1987)" (1987). The University of Chicago Law School Record. Book 70. http://chicagounbound.uchicago.edu/lawschoolrecord/70 This Book is brought to you for free and open access by the Law School Publications at Chicago Unbound. It has been accepted for inclusion in The University of Chicago Law School Record by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Law School Record The University of Chicago Law School Volume 33, Fall 1987 Editor ARTICLES Jill M. Fosse Dean's ... .... .. ..... ... .. ... ..... .. ... .. .. 3 Assistant Dean for Alumni Relations Page Holly C. Davis The Constitution: Into the Next Century Reliability Concerns in Criminal Procedure. .... ... .... .. ... .... .. ..... ..... .. 4 Larry Kramer Making Peace between the Religion Clauses 6 Michael W. McConnell Checks and Balances in the Twenty- . .. .. .. .. .. .. ... .. .. 7 Cover First Century. David Joel Geoffrey P. Miller Illustrations Equal Protection, Colorblindness, and David 11. Rosenzweig, pages 5, 6, 8, the "Real Differences" among Groups 9 David A. Strauss Photo Credits Library of Congress, page 2. Keith Redistributing Speech 10 Swinden, pages 3, 64, 66 (right), 69. Cass R. Sunstein Jim Wright, pages 8, 14, 60-61, 62 (top), 63 (bottom). German Mejia, page 11. Richard Conner, page 23. William Winslow Crosskey and the Constitution 13 David Joel, pages 20, 60-61, 65, 66 Abe Krash (left). Stuart Rodgers Studios, pages 21, 22 (top). Stuart Smith, page 54. The Fund for the Law School 19 Joe Barabe, page 71. David Fosse, 76 80. pages 73, (reunions), 77, 79, Dedication of the D'Angelo Law Library 60 DEPARTMENTS The Law School Record is published twice a year, in spring and fall, for graduates, 62 students, and friends of the University of Memoranda Chicago Law School, 1111 East 60th Street, Chicago, Illinois 60637. Copyright Alumni Notes 71 ©1987 by the University of Chicago Law School. Changes of address should be sent to the Office of Alumni Relations at the Law School. Telephone (312) 702-9628. Cop­ ies of The Law School Record are available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209, to whom inquiries should be addressed. Cur­ rent issues are also available on subscrip­ tion from William S. Hein & Co. VOLUME 33/FALL 1987 1 The University of Chicago Law Dean'sPag� School's Law and Government Pro­ gram will focus on the institutional arrangements of government. Its in is to advance Program objective understanding of the purposes and performance of Law and existing legal structures and processes and to evaluate their adequacy in our Government ever more complex society. The pro­ gram will redress a serious deficiency in legal education and scholarship, which have traditionally emphasized the judicial process and neglected the many other ways in which law shapes the exercise of governmental powers. The Law and Government Program will draw on a wide range of disci­ plines, including law, political theory, am proud to report that on July 1, philosophy, political science, public 1987, the University of Chicago choice, economics, organization the­ I Law School, in commemoration ory, history, and comparative law and Director of the program. Professor of the Bicentennial of the Constitu­ politics. It will utilize the resources of Casper will chair a faculty advisory tion, formally established a new pro­ a law faculty with strong interests and committee consisting of Professors gram designed to explore the expertise in many of these fields, and Paul Bator, Geoffrey Miller, David relationship between Law and Gov­ of a University with distinguished Strauss, Cass Sunstein, and myself. ernment in the United States. This schools and departments that special­ Initial funding for the Law and Gov­ program, which was the inspiration of ize in these areas of study. ernment Program was provided by Gerhard Casper, will join the Law In the 1987-88 academic year, the restricted and unrestricted gifts to the School's Center for Criminal Justice Law and Government Program will Campaign for the Law School. We Studies, the Law and Economics Pro­ conduct a two-quarter workshop for' will seek future funding for the pro­ gram, and the Program in Legal His­ interested faculty and students from gram from the friends and alumni tory to provide a critical focal point the Law School and other parts of the of the University of Chicago Law for research, teaching, and scholar­ University. This workshop will invite School. ship as the Law School moves into the both scholars and government offi­ William Rainey Harper, the first twenty-first century. cials to the Law School to present President of the University and the The Constitution of the United their views and debate the issues in an founder of our Law School, explained States established a new government open and lively manner. The work­ at the turn of the century that the to overcome the weaknesses of the shop will focus on three controversial motto for "the true university, the uni­ Articles of Confederation. The Fra­ issues: the role of domestic laws in the versity of the future," will be "service mers sought to create a government conduct of foreign and defense policy; for mankind" both "within scholastic sufficiently powerful to deal with the the control of budget and spending walls" and "in the world at large." exigencies of the time, but sufficiently decisions; and the choice, design, and Harper added that many "will deny limited-through an elaborate system implementation of regulatory policies. that democracy has a religion; but no of checks and balance, including the In future years, the Law and Gov­ one will deny that democracy has a Bill of Rights-to guard against the ernment Program will invite scholars philosopher; and the university is the dangers of factionalism and majoritar­ and government officials from the philosopher of democracy." Over the ian abuse. During the second century United States and other nations to years, the University of Chicago and of the Constitution, the emergence of serve as fellows-in-residence at the its Law School have remained true to the administrative state produced a Law School, where they will teach this vision. The Law and Government multiplication of decisionmakers in all and study for periods ranging from Program-an exciting addition to a three branches of government, with a one to three quarters. The program vibrant intellectual and scholarly tra­ concomitant complexity in the system will also promote joint faculty dition-will enable the Law School to of checks and balances. As we enter appointments between the Law School continue to meet its most profound the third century of the Constitution, and other schools and departments responsibility of serving mankind we confront a maze of competing gov­ within the University, such as the both "within the walls" and "in the ernmental institutions which operate Graduate School of Public Policy Stu­ world at large." without any clear or coordinated lines dies, the School of Social Service of responsibility. This state of affairs Administration, and the Departments has generated uncertainty, conflict, of History, Political Science, Eco­ /�4tZ deadlock, and growing distrust of gov­ nomics, and Philosophy. Geoffrey R. Stone ernment's capacity wisely and respon­ Gerhard Casper, William B. Gra­ Harry Kalven, Jr. Professor of Law sibly to meet the tasks demanded of it. ham Professor of Law, will serve as Dean of the Law School VOLUME 33/FALL 1987 3 The Constitution: Into the Next Century In celebrating the Bicentennial of the Constitution, we were curious about what would be seen as the major constitutional issues in the coming years. u-e asked five constitutional experts from the faculty of the Law School for their thoughts on how major issues in constitutional law might evolve in the next twenty-five years. Reliability Concerns in But Brown was an easy case. As post-Gideon decisions focused on dig­ Criminal Procedure Chief Justice Hughes noted, "It would nitary concerns rather than reliability. be difficult to conceive of methods The Court stressed the powerlessness more revolting to the sense of justice of individuals confronted by the vast Larry Kramer than those taken to procure [these] resources of the state and emphasized " was outrage that initially awak­ confessions .... Perhaps because the role of procedure in preserving ened the Supreme Court to its Brown was easy, the Court failed to individual dignity. Miranda v. Ari­ Itresponsibility to apply the Consti­ distinguish two strands of its analysis: zona,' for example, was premised on tution to regulate abusive police that confessions obtained in such a the Court's perception that "the con­ practices. The case was Brown v. Mis­ manner might lead to the conviction of stitutional foundation underlying the sissippi,' an especially ugly example innocent persons (a "reliability" privilege [against self-incrimination] of racist brutality. Three blacks were rationale); that government must pro­ is the respect a government ... must convicted of murdering a local white, vide certain protections out of respect accord to the dignity and integrity of solely on the basis of confessions for the individual whether or not those its citizens." Similarly, United States 4 obtained by beating them-a practice protections yield more reliable results v. Wade, perhaps the apogee of the that testimony from involved police (a "dignity" rationale). The Court left Warren Court's work in criminal pro­ officers suggested was not merely to later decisions the task of working cedure, held that criminal defendants approved but routine.
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