1994-1995 Supreme Court Preview: Contents Institute of Bill of Rights Law at the William & Mary Law School

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1994 1994-1995 Supreme Court Preview: Contents Institute of Bill of Rights Law at the William & Mary Law School

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...... Tei s i ue a ...... -.... 1994-95 Supreme Court Preview SUMMARY OF CONTENTS

CONFERENCE SCHEDULE

INSTITUTE INFORMATION

PANELISTS

ACKNOWLEDGEMENTS

COURTROOM 21

TABLE OF CONTENTS

1 1994-95 Supreme Court Preview CONFERENCE SCHEDULE Friday, October 21 Marshall-Wythe School of Law

5:45 - 6:30 p.m. Registration Lobby

6:15 - 6:30 p.m. Introduction to Court Room 21 McGlothlin Moot Court Room Demonstration,for early arrivals, of the most technologically advanced courtroom in the world

6:30 p.m. Welcome to the Preview McGlothlin Moot Court Room Tom Krattenmaker, Dean

6:35 p.m. MOOT COURT Bryant v. Hill, 93-1828 Introduction of the Case: Steve Wermiel Advocates: Tracey Maclin Mike Gerhardt "Supreme Court" Justices: Aaron Epstein (Chief Justice) Neal Devins Lyle Denniston Linda Greenhouse Kathryn Urbonya Paul Barrett David Savage Tony Mauro Joan Biskupic

7:45 p.m. Break

8:00 - 9:00 p.m. A COURT IN SEARCH OF ITSELF McGlothlin Moot Court Room Panel Discussion and "Town Meeting" Moderator: Richard Carelli Panel: David Garrow Tom Krattenmaker Linda Greenhouse Lyle Denniston David Savage Bill Banks Daan Braveman Jim Gardner

ii Saturday, October 22

8:15 a.m. MW Student Lounge Coffee

8:30 a.m. PROPERTY AND ECONOMIC RIGHTS MW 119 Moderator/Panelist: Steve Wermiel Panel: Paul Barrett James Gardner Joan Biskupic Mike Gerhardt Daan Braveman

9:30 a.m. Break

9:45 a.m. PRIVACY MW 119 Moderator/Panelist: Neal Devins Panel: David Garrow Lyle Denniston Joan Biskupic Aaron Epstein Richard Carelli Bill Banks

10:45 a.m. Break

11:00 a.m. CIVIL RIGHTS MW 119 Moderator/Panelist: Mike Gerhardt Panel: Linda Greenhouse Kathy Urbonya Tracy Maclin David Savage Neal Devins David Garrow Daan Braveman

12:00 p.m Lunch Break (on your own) Speakers' Meeting in Room 239

1:30 p.m. CRIMINAL LAW MW 119 Moderator/Panelist: Dave Douglas Panel: Tracy Maclin Richard Carelli Joan Biskupic Tom Krattenmaker Paul Barrett Kathy Urbonya

iii 2:30 p.m. Break

2:45 p.m. SMALL GROUP DISCUSSIONS Leaders: MW 119 Steve Wermiel Last names A-E MW 120 Paul Barrett Last names F-J MW 239 Richard Carelli Last names K-O MW 124 Dave Douglas Last names Q-S MW 127 Mike Gerhardt Last names T-Z MW G-5 Neal Devins Rosenberg's students MW Employers' Lounge Tony Mauro Bicouvaris' students MW Moot Court Room Court Room 21 Demonstration

3:45 p.m. THE FIRST AMENDMENT MW 119 Moderator/Panelist: Lyle Denniston Panel: Tom Krattenmaker Tony Mauro Linda Greenhouse Steve Wermiel Aaron Epstein Bill Banks Jim Gardner

4:45 p.m. Concluding Remarks MW 119 Kay P. Kindred, Deputy Director and Assistant Professor of Law

iv 1994-95 Supreme Court Preview THE INSTITUTE

The Institute of Bill of Rights Law was established at William and Mary in 1982 to support research and education on the Constitution and Bill of Rights. One of the principal missions of the Institute is to facilitate interaction between the professions of law and journalism. Through a discussion of key cases on the Supreme Court's docket at the start of each term, the annual Supreme Court Preview provides in-depth education for journalists on the underlying constitutional issues in order to enhance press coverage of the decisions.

The Institute wishes to thank the National Conference of Editorial Writers for its assistance with publicity.

STAFF

Rodney A. Smolla, Director and Arthur B. Hanson Professor of Law Kay P. Kindred, Deputy Director and Assistant Professor of Law Mildred A. Arthur, Administrative Assistant Eileen McNeil, Pamela Kuttgen, Cynthia Greene, Editorial Consultants, 1994-95 Supreme Court Preview

THE INSTITUTE OF BILL OF RIGHTS LAW THE COLLEGE OF WILLIAM & MARY, MARSHALL-WYTHE SCHOOL OF LAW WILLIAMSBURG, VIRGINIA 23185 0 (804) 221-3810 * FAX (804) 221-3775

V 1994-95 Supreme Court Preview PANELISTS

WILLIAM BANKS is a professor of law at Syracuse University. He has been a member of the Syracuse faculty since 1978. He is a scholar and commentator on U.S. and comparative constitutional and national security law issues. He lectures extensively throughout the United States as well as in South and Central America, the Caribbean and Europe. He is the author of numerous articles and book chapters on constitutional and national security law topics and co-author of ConstitutionalLaw: Structure and Rights in our Federal System (2d ed. 1991), National Security Law (1990) and National Security Law and the Power of the Purse (1994).

PAUL BARRETT covers the Supreme Court and legal issues for The Wall Street Journal. He has been with the Journal since 1987. Before joining the Journal, he was editor and writer for The Washington Monthly. He received his J.D. from Harvard.

JOAN BISKUPIC is the Supreme Court reporter for The Washington Post. Before joining the Post, she was legal affairs writer for Congressional Quarterly Weekly Report. In 1991, Ms. Biskupic won the Everett McKinley Dirksen award for distinguished reporting of Congress for her coverage of the Clarence Thomas nomination. She received her B.A. in journalism from Marquette University, her M.A. in English from the University of Oklahoma and her J.D. from Georgetown University Law Center. She is the author of The Supreme Court Yearbook 1989-1990, Supreme Court Yearbook 1990-1991, and the Supreme Court Yearbook 1991-1992.

DAAN BRAVEMAN is Dean and professor of law at Syracuse University. He teaches constitutional law, civil rights, civil procedure, and federal courts. Mr. Braveman has published numerous articles on constitutional law, civil rights, and procedure. He is also the author of Protecting Constitutional Freedoms: A Role for Federal Courts (1989) and co-author of ConstitutionalLaw: Structure and Rights in Our Federal System (2d ed. 1991) and a soon to be published Civil Rights Reader.

RICHARD CARELLI has worked for The Associated Press since 1969 and has covered the Supreme Court since 1976. Prior to joining the Associated Press, he worked as a journalist in New York, West Virginia, Ohio, Florida, and Washington, D.C. He received his B.S. from Ohio University and his J.D. from George Washington University.

LYLE DENNISTON, a reporter for The Baltimore Sun, Washington Bureau, is considered the dean of American journalists who cover the Supreme Court. He is a regular columnist for the Washington JournalismReview and a contributor to the MacNeil-Lehrer News Hour. Mr. Denniston is also an adjunct professor of law and lecturer at Georgetown. He received his B.A. from the University of Nebraska and his M.A. in American History and Political Science from Georgetown. Mr. Denniston is the author of The Reporter and the Law: Techniques of Covering the Courts (1980).

NEAL DEVINS is a law professor and lecturer in government at the College of William and Mary. He received his A.B. from Georgetown and his J.D. from Vanderbilt. He was Assistant General Counsel with an the United States Commission on Civil Rights, and Project Director at the Vanderbilt Institute for Public Policy Studies. Professor Devins is co-author of ConstitutionalLaw.- Readings in Institutional Dynamics (1992), and editor and contributor for Public Values, Private Schools in the Stanford Series on Education and Public Policy (1989).

DAVISON DOUGLAS is a law professor and lecturer at the College of William and Mary. He received his A.B. from Princeton University, his M.A., M.Phil. and Ph.D. in American Legal History from Yale University. He also has an M.A.R. from Yale University Divinity School. Prior to joining the William

vi and Mary faculty in 1990, he was a partner with Smith, Patterson, Follin, Curtis, James and Harkavy in Raleigh, North Carolina, specializing in labor and employment law and civil rights law. He also clerked for the Honorable Walter R. Mansfield, United States Court of Appeals for the Second Circuit. Professor Douglas is the author of The Desegregation of the Charlotte Schools, 1954-1975 (1993) and of School Busing in the Garland Press Series, Controversies in Constitutional Law (1993).

AARON EPSTEIN is a national correspondent for Knight-Ridder Newspapers covering the Supreme Court, the Justice Department and related matters. He received his B.A. from Dartmouth and his J.D. from the McGeorge College of Law, University of the Pacific and attended the University of Missouri School of Journalism. He was a member of the PhiladelphiaInquirer staff that won the 1980 Pulitzer Prize for Local Reporting for coverage of the Three Mile Island nuclear accident, and of the Knight- Ridder team that won a 1988 Polk Award for coverage of the Iran-Contra affair.

JAMES GARDNER is a law professor at Western New England College School of Law, where he teaches constitutional law, election law, federal litigation, administrative law, First Amendment rights and legal argument. He received his B.A. from Yale University and his J.D. from the University of Chicago School of Law. He is the author of Legal Argument: The Structure and Language of Effective Advocacy (1993) and Election Law in the American Political System (in progress). He is currently a visiting professor at the Marshall-Wythe School of Law, College of William and Mary.

DAVID GARROW is the author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), a comprehensive history of the American reproductive rights struggle. His previous book, Bearing the Cross: Martin Luther King, Jr. and the Southern ChristianLeadership Conference (1986), won the 1987 Pulitzer Prize in Biography, the seventh annual Robert F. Kennedy Book Award, and two other book prizes. He is also author of The FBI and Martin Luther King, Jr. (1981); and Protest at Selma (1978); editor of The Montgomery Bus Boycott and the Women Who Started It: The Memoir of Jo Ann Gibson Robinson (1987); and co-editor of The Eyes on the Prize Civil Rights Reader (1987, 1991). Professor Garrow served as a senior advisor for "Eyes on the Prize," the award-winning PBS television history of the American Black freedom struggle. He is currently the James Pinckney Harrison Visiting Professor of History at the College of William and Mary. He graduated from Wesleyan University in 1975, and earned his Ph.D. at Duke University in 1981.

MICHAEL GERHARDT is a law professor at the College of William and Mary and a Special Consultant to the National Commission on Judicial Discipline and Removal. He was a professor at the Wake Forest University School of Law prior to joining the William and Mary faculty in 1991. He received his B.A. from Yale, his M.Sc. in Political Philosophy from the London School of Economics and his J.D. from the University of Chicago Law School. He is the author of Constitutional Theory: Arguments and Perspectives (with Tom Rowe) and numerous articles on constitutional law. This year Professor Gerhardt is a visiting law professor at Cornell.

LINDA GREENHOUSE has been on the staff of The New York Times since 1968. She has covered politics, the New York State Legislature, the United States Congress and, since 1978, the Supreme Court. She received her B.A. from Radcliffe and earned a Masters of Studies in Law from Yale. She has honorary degrees from Brown and Colgate Universities and is a fellow of the American Academy of Arts and Sciences.

KAY KINDRED is the Deputy Director of the Institute of Bill of Rights Law and a professor of law at the College of William and Mary, Marshall-Wythe School of Law. She received her A.B. in political science and sociology from Duke University and her J.D. from Columbia University Law School. She practiced law in Connecticut and was a member of the Office of General Counsel at Old Dominion University, before coming to William and Mary in 1989. Professor Kindred is responsible for the administration of the Institute. Her article "When First Amendment Values and Competition Policy Collide: Resolving the Dilemma of Mixed-Motive Boycotts" appeared in 1992 in theArizonaLaw Review.

vii THOMAS KRATTENMAKER is Dean and Professor of Law at the College of William and Mary, Marshall-Wythe School of Law. He was previously a professor and Associate Dean for Graduate Studies at Georgetown University Law Center. He is the co-author of Supreme Court Politics: The Institution and Its Procedures (1994), Mergers in the New Antitrust Era (1985), and Misregulating Television: Network Dominance and the FCC (1984). He received his B.A. form Swarthmore College and his J.D. from Columbia University School of Law. He was a law clerk to Justice John M. Harlan of the Supreme Court of the United States.

TRACEY MACLIN is a law professor at Boston University. He received his B.A. from Tufts University and his J.D. from Columbia University. Prior to joining the faculty at Boston University in 1987, Professor Maclin clerked for Judge Boyce F. Martin, Jr. of the United States Court of Appeals for the Sixth Circuit and practiced law with the firm of Cahill, Gordon and Reindel in New York. He also served on the law faculty of the University of Kentucky.

TONY MAURO has covered the Supreme Court since 1980 for the Gannett News Service and also for USA TODAY since its creation in 1982. Since 1987, he has also written a column on the Supreme Court for Legal Times and The American Lawyer newspapers. He is on the executive committee of the Reporters Committee for Freedom of the Press and serves on the Conference of Lawyers and Representatives of the Media, and the Freedom of Information Committee of the Society of Professional Journalists. He received his B.A. from Rutgers University and his M.A. in journalism from Columbia University. Before coming to Washington, he worked for newspapers in Massachusetts and New Jersey.

DAVID SAVAGE has been the Supreme Court correspondent in Washington for the Los Angeles Times since 1986. Prior to that assignment, he was an education writer for the imes in Los Angeles. He has also covered Congress and the Supreme Court for a Washington weekly newspaper. He earned his B.A. in political science from the University of North Carolina at Chapel Hill and his M.S. from Northwestern University. He is the author of Turning Right: The Making of the Rehnquist Court (1992).

KATHRYN R. URBONYA has extensively written, studied, and lectured throughout the nation on the use of excessive force by governmental officials under the Fourth, Eighth, and Fourteenth Amendments. As a professor at Georgia State University, she teaches constitutional law, criminal procedure, and civil rights. In addition, she was appointed by Mayor Andrew Young of Atlanta to serve on the Civilian Review Board, which investigated claims of police misconduct by suspects and detainees. Prior to teaching, she was a law clerk for Justice Gerald W. VandeWalle of the North Dakota Supreme Court and Federal District Judge G. Ernest Tidwell in Atlanta. She is currently a visiting professor at the College of William and Mary, Marshall-Wythe School of Law.

STEPHEN WERMIEL joined the faculty of Georgia State University Law School in August 1992 after completing a year as the Lee Distinguished Visiting Professor of Law at the College of William and Mary. For twelve years, Professor Wermiel was the Supreme Court correspondent for The Wall Street Journal. He covered more than 1300 Supreme Court decisions and analyzed trends on a broad array of legal issues. He received his B.A. in political science from Tufts University and his J.D. from American University. He is currently working on the authorized biography of retired Supreme Court Justice William Brennan and has authored an article on Supreme Court Justice Sandra Day O'Connor's first decade on the Supreme Court. Other articles have appeared in the inaugural issue of the William and Mary Bill of Rights Law Journaland Northwestern University Law Review.

Viii 1994-95 Supreme Court Preview ACKNOWLEDGMENTS

The Institute of Bill of Rights Law wishes to acknowledge and thank Eileen McNeil, Pamela Kuttgen, Cynthia Green, J.D. 1996 for editing this 1994-95 Supreme Court Preview Conference Notebook. The Institute of Bill of Rights Law wishes to acknowledge the following for granting permission to reprint copyrighted materials contained in this notebook.

Paul M. Barrett, If There Is Blood In an Opinion, We Know Who Wrote It, THE WALL ST. J., Monday, October 4, 1993, at Al . Reprinted by permission THE WALL STREET JOURNAL o 1994 Dow Jones & Co., Inc. All rights reserved.

Steven Barshov & Mark A. Chertok, The New Nexus in the Regulatory Taking Arena, N.Y. LAW J., July 12, 1994, at 1. Copyright c 1994 The New York Law Publishing Co. Reprinted with permission.

Joan Biskupic, 1991 Civil Rights Law Not Retroactive, Court Rules, THE WASH. POST, April 27, 1994, at A8. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, Breyer Gives View of How He 'Judges';Justice Requires 'Heartand a Head', THE WASH. POST, July 14, 1994, at A6. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, Court to Decide Where Air Travelers May Sue, THE WASH. POST, April 5, 1994, at A4. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, Death Row's Lawyer-Less Get Help From Justices; Prisoners' Right to Counselfor Appeals Upheld, THE WASH. POST, July 1, 1994, at A22. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, A Different Sort of Court Awaits Blackmun Successor; Recent Terms Marked by Aversion to Change, THE WASH. POST, April 17, 1994, at Al. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, A Gentler Court Confirmation Process Emerges; Low-Key Hearingsfor Clinton Nominees Could Change Public Attitude, Scholars Suggest, THE WASH. POST, July 18, 1994, at A7. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, An Ideological Odyssey Nears End; Jurist Says He Was Not Transformed: 'The Court Has Changed', THE WASH. POST, April 7, 1994, at Al. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, Justices Follow a Mostly Conservative Course; Kennedy Assuming Pivotal Role on a Supreme Court That Continues to Redefine Itself, THE WASH. POST, July 4, 1994, at Al. o 1994. The Washington Post. Reprinted with permission.

Joan Biskupic, Justices Unite For Expression Via a Yard Sign, THE WASH. POST, June 14, 1994, at A7. 0 1994. The Washington Post. Reprinted with permission.

ix Joan Biskupic, Supreme Court Connects Cable TV to Free Speech Protections of Press, THE WASH. POST, June 28, 1994, at Al.

David Burnham, FBI Says 12,000 Faulty Reports on Suspects Are Issued Each Day, N.Y. TIMES, August 25, 1985, at 1. Copyright 01985 by The New York Times Company. Reprinted by permission.

Richard Carelli, Court Upholds Buffer Zones Around Clinics; Abortion Foes Must Keep Distance, THE LEGAL INTELLIGENCER, July 1, 1994, at 1. Reprinted by permission of The Legal Intelligencer.

Richard Carelli, Group Contends Breyer Invented Privacy Right; Did Nominee Pave Way for Abortion?, THE LEGAL INTELLIGENCER, June 16, 1994, at 3. Reprinted by permission of The Legal Intelligencer.

James Dao, Albany in Accord on School District for Hasidic Group, N.Y. TIMES, July 2, 1994, at Al. Copyright c 1994 by The New York Times Company. Reprinted by permission.

Lyle Denniston, 'Little People' Lose a Voice; Blackmnun Put People Over Precedents, CHICAGO SUN- TIMES, April 10, 1994, at 30. This article used courtesy of The Baltimore Sun Company, Copyright 1994, The Baltimore Sun.

Aaron Epstein, Court: Tell Juries When 'Life' Means No Parole, PHILADELPHIA INQUIRER, June 18, 1994, at A03. Reprinted by permission of Tribune Media Services.

Aaron Epstein, CongressionalEligibility Tested; High Court to Rule on Term Limits, THE RECORD, June 21, 1994, at Al0. Reprinted by permission of Tribune Media Services.

Bruce Fein, Attacking Religious Accommodation, THE WASH. TIMES, June 30, 1994, at A20. Reprinted from The Washington Times.

Bruce Fein, Judicial Sabotage of Child Porn Law, THE WASH. TIMES, March 9, 1994, at A17. Reprinted from The Washington Times.

Andrew Ferguson, Trust Us, WASHINGTONIAN, February, 1994. Reprinted with the permission of The Washingtonian.

Susan B. Glasser, Term Limits Face Day of Reckoning, ROLL CALL, June 23, 1994. Reprinted by permission of Roll Call.

Linda Greenhouse, High Court to Rule on Amtrak Ban on Political Sign, N.Y. TIMES, May 24, 1994, at B3. Copyright 0 1994 by The New York Times Company. Reprinted by permission.

Linda Greenhouse, High Court to Rule on Bank Annuities Issue, THE N.Y. TIMES, June 7, 1994, at Dl. Copyright c 1994 by The New York Times Company. Reprinted by permission.

Linda Greenhouse, Fierce Combat on Fewer Battlefields, N.Y. TIMES, July 3, 1994, at D1. Copyright a 1994 by The New York Times Company. Reprinted by permission.

Linda Greenhouse, How a Ruling on Abortion Took On a Life of Its Own, N.Y. TIMES, April 10, 1994, at E3. Copyright c 1994 by The New York Times Company. Reprinted by permission.

Linda Greenhouse, Plaudits Drown Out Critics as Senate Confirms Breyer, N.Y. TIMES, July 30, 1994, at A6. Copyright 0 1994 by The New York Times Company. Reprinted by permission.

Linda Greenhouse, Portrait of a Pragmatist; Confirmation Hearing for Breyer Elicits His Emphasis on Rulings'Lasting Effects, N.Y. TIMES, July 14, 1994, at Al. Copyright c 1994 by The New York Times Company. Reprinted by permission.

x Linda Greenhouse, Justices Rule Repeat Offenders Can't Challenge 'Career-Criminal' Sentences, N.Y. TIMES, May 24, 1994, at A15. Copyright a 1994 by The New York Times Company. Reprinted by permission.

Guns and Commerce and Courts, THE WASH. TIMES, April 24, 1994, at B2. Reprinted from The Washington Times.

High Court Declines Free Speech Challenge, N.Y. LAW J., June 1, 1994, at 1. Copyright c 1994 The New York Law Publishing Co. Reprinted with permission.

Justices Say Farewell, L.A. TIMES (Associated Press), April 7, 1994, at A14. Reprinted with the permission of The Associated Press.

Douglas W. Kmiec, Clarifying the Supreme Court's Taking Cases - An Irreverentbut Otherwise Unassailable Draft Opinion in Dolan v. City of Tigard, 71 DENV. U. L. REV. 325 (1994). Reprinted with the permission of The Denver Law Review.

Anne Krueger, Gay Scout Leader Wins Court Ruling Against Dismissal, THE SAN DIEGO UNION- TRIBUNE, July 8, 1994, at Al. Reprinted with permission.

Michael Kirkland, Court to Take on Malt Liquor Case, United Press International, June 13, 1994. Reprinted with the permission of United Press International, Inc.

Marianne Kyriakos, Losing Their Land to the Government; Eminent Domain Cases Spark Disputes Over Fair Pricesfor Property Compensation, THE WASH. POST, March 19, 1994, at El. o 1994. The Washington Post. Reprinted with permission.

Sue Lindsay, Amendment 2 Gets Another Day in Court, ROCKY MOUNTAIN NEWS, July 1, 1994, at 4A. Reprinted with permission of the Rocky Mountain News.

Nothing Perfunctory in this Review, THE PHOENIX GAZETTE, June 6, 1994, at B6. Reprinted with permission.

Ross D. Petty, Advertising and the First Amendment: A PracticalTest for Distinguishing Commercial Speech from Fully Protected Speech, 12 J. PUB. POL'Y & MARKETING 2, 170 (1993). Reprinted by permission of the American Marketing Association.

Timothy M. Phelps, Independent Spirit; Justice Ginsburg Steers Middle Course in 1st Year, NEWSDAY, July 5, 1994, at A17. Reprinted by permission, Newsday, Inc., Copyright, 1994.

PoliticalAds in Transit Stations to be Decided by Supreme Court, URBAN TRANSP. NEWS, June 9, 1994, at 92. Reprinted with the express permission of Business Publishers, Inc., 951 Pershing Drive, Silver Spring, MD 20910, (301) 587-6300 from Urban Transport News, Vol. 22, No. 12, June 9, 1994, pp. 92-93.

Susan Ritz, Peering Into an Employee's Past; After-Acquired Evidence Can Scuttle Bias Suits, N.Y. LAW J., July 18, 1994, at 9. Copyright c 1994 The New York Law Publishing Co. Reprinted with permission.

Milagros Rivera-Sanchez & Paul H. Gates, Jr., Abortion on the Air: Broadcasters and Indecent Political Advertising, 46 FED. COM. L.J. 267 (1994). Reprinted with the permission of The Federal Communications Law Journal.

xi Gilbert M. Roman, Supreme Court to Decide if 2 Wrongs Make a Right, ROCKY MOUNTAIN NEWS, June 19, 1994, at 2C. Reprinted with permission of the author and The Rocky Mountain News.

Nancy E. Roman, Souter's Decisions Show Liberal Trend; Bush Appointee Dismays Conservatives, THE WASH. TIMES, July 4, 1994, at A4. Reprinted from The Washington Times.

Martin A. Schwartz, Supreme Court Defines Deliberate Indifference, N.Y. LAW J., July 19, 1994, at 3. Copyright a 1994 The New York Law Publishing Co. Reprinted with permission.

Richard Sincere, Time for Term Limits Arrives in Virginia, THE WASH. TIMES, June 24, 1994, at C2. Reprinted from The Washington Times.

Cass R. Sunstein, Half-Truths of the First Amendment, 1993 U. CHI. LEGAL F. 25 (1993).

Supreme Court to Rule on Suits Over Frequent-FlierPrograms, LIABILITY WEEK, April 11, 1994, at No. 15, Vol. 9. P.O. Box 6654, McLean, VA 22106. Reprinted with permission of the publisher. Copyright 1994, JR Publishing, Inc.

Ronald A. Taylor, Landowners Fight Green Laws That Put Them in Red, THE WASH. TIMES, July 12, 1994, at Al. Reprinted from The Washington Times.

Martin Walker, Taking Responsibilityfor Uncle Sam, THE GUARDIAN, April 9, 1994, at 24. The Guardian

Bruce Vento, The 'Taking' of the Constitution, ROLL CALL, July 25, 1994. Reprinted by permission of the author and Roll Call.

xii Courtroom 21 The courtroom of the 21st century today!

Located in the Marshall-Wythe School of Law's McGlothlin Moot Courtroom, Courtroom 21 is the most technologically advanced courtroom in the world. Courtroom 21 was developed by the College of William & Mary in conjunction with the National Center for State Courts and is affiliated with the Center's Court Technology Laboratory. Courtroom 21 is an international demonstration and experimental site, as well as an actual instructional facility for William & Mary law students and visiting judges and court administrators. Courtroom 21 uses only commercially available, reasonably priced, technology and is a powerful model for our nation's courts. Instant access to LEXIS and creative use of FolioViews permits more accurate resolution of unforeseen legal matters. Meanwhile, real-time Stenograph transcription coupled with the easy ability to display video and computer images should improve speed and accuracy while jury computer monitors may increase juror comprehension of documentary and graphical evidence. Experimentation with two-way live audio-video witness testimony may decrease litigation costs while improving speed and efficiency. Perhaps the most important aspect of the Courtroom is the integrated nature of its technology. The sum of the various different technologies is both greater than and difference from the individual products and services incorporated. The combination of traditional written transcript with a multiple frame video record, for example, may suggest reexamination of appellate review standards. Traditionally, appellate courts have deferred to trial judges on issues of witness credibility because only they, and not appellate judges, were able to observe trial witness demeanor.

Courtroom Capabilities * Remote two way television arraignment and witness examination. * Lexis and Westlaw legal research at bench and counsel tables with West CD-Rom and JuriSoft software support. * Information storage and presentation via FolioViews. * Concurrent (real-time) stenograph court reporter transcription, including the ability for each lawyer to mark an individual computerized copy for later use. * Recorded or real-time televised evidence display with analog optical disk storage using the Doar Presenter and Disk Partner system and, the Litigation Sciences bar code indexed light-pen controlled CD- Rom system. * Built-in video deposition playback facilities. * Automatic Court Technologies micro-ship controlled, multi-camera, multi-frame, video recording of proceedings using ceiling mounted cameras and Shure Microphone voice initiated switching; optional synchronization to the real time transcript. * Text, graphics, and TV capable jury computers and monitors used to display floppy disk, videotape, or real-time live data and images, including multi-media computer animations and graphics, as well as more mundane documents. * Concurrent computer displayed stenograph transcription for hearing-impaired witnesses, jurors, lawyers, and judges. * Consecutive translation of up to 140 languages using AT&T's LanguageLine. * ConferenceMate assisted listening infra-red private headphones. * Executone automated court scheduling announcements and law firm voicemail system (pending installation). Courtroom 21's equipment is made available to the Law School for demonstration and experimentation by the participating private sector companies. Those companies have committed themselves to periodic upgrading of their hardware and software, ensuring that the courtroom will remain technologically current.

xiii 1994-95 Supreme Court Preview TABLE OF CONTENTS

SECTION I: OVERVIEW

Last Term

Fierce Combat on Fewer Battlefields, Linda Greenhouse ...... 1

Court Moves Back to Legal Middle, Tony Mauro ...... 6

A Different Sort of Court Awaits Blackinun Successor: Recent Terms Marked by Aversion to Change, Joan Biskupic ...... 7

Taking Responsibility for Uncle Sam, Martin Walker ...... 9

Trust Us, Andrew Ferguson ...... 11

If There's Blood in an Opinion, We Know Who Wrote It, Paul Barrett ...... 17

Individuals' Profiles

Justices Follow a Mostly Conservative Course: Kennedy Assuming Pivotal Role on a Supreme Court That Continues to Redefine Itself, Joan Biskupic ...... 19

Emerging As a Liberal Leader: The Call's in Souter's Court, David Savage ...... 21

Souter's Decisions Show Liberal Trend: Bush Appointee Dismays Conservatives, Nancy E. Roman ...... 23

Thomas: The High Court's Contrarian,Tony Mauro ...... 25

Independent Spirit: Justice Ginsburg Steers Middle Course in 1st Year, Timothy M. Phelps ...... 27

The Newest Justice - Stephen G. Breyer

A Gentler Court Confirmation Process Emerges: Low-Key Hearingsfor Clinton Nominees Could Change Public Attitudes, Scholars Suggest, Joan Biskupic ...... 29

Portraitof a Pragmatist:Confirmation Hearingfor Breyer Elicits his Emphasis on Rulings' Lasting Effects, Linda Greenhouse ...... 31

Breyer Gives View of How He 'Judges':Justice Requires 'Heart and a Head', Joan Biskupic ...... 33

Group Contends Breyer Invented Privacy Right: Did Nominee Pave Way for Abortion?, Richard Carelli ...... 35

Plaudits Drown Out Critics as Senate Confirms Breyer, Linda Greenhouse ...... 37

xv Farewells

'Little People' Lose a Voice: Blackmun Put People Over Precedents, Lyle Denniston ...... 39

An Ideological Odyssey Nears End. Jurist Says He Was Not Transformed: 'The Court Has Changed. ' Joan Biskupic ...... 41

Justices Say Farewell, Associated Press ...... 44

SECTION II: MOOT COURT: BRYANT v. HILL 93-1828

Synopsis and Question Presented ...... 45

Lower Court Opinion -- U. S. Term Limits, Inc. v. Hill 316 Ark 251 ...... 46 General Articles

Term Limits Face Day of Reckoning, Susan B. Glasser ...... 64

CongressionalEligibility Tested: High Court to Rule on Term Limits, Aaron Epstein . 67

Government Ltd.: High Court Takes a Look at Term Limits, Vincent J. Schodolski . . 69

Time For Term Limits Arrives in Virginia, Richard Sincere ...... 71

SECTION IH: PROPERTY AND ECONOMIC RIGHTS

Property Rights

General Articles

The 'Taking' of the Constitution, Representative Bruce Vento ...... 73

Landowners Fight Green Laws That Put Them in Red, Ronald A. Taylor ...... 76

Articles on Recent Decisions

The New Nexus in the Regulatory Taking Arena, Steven Barshov and M ark A . Chertok ...... 79

Clarifying the Supreme Court's Taking Cases: An Irreverent but Otherwise Unassailable Draft Opinion in Dolan v. City of Tigard, Douglas W. Kmiec ...... 84

Supreme Court Decision on Landmark Property Case

Dolan v. City of Tigard, 129 L.Ed. 2d 304 ...... 90

Article on New Case

Losing Their Land to the Government, Marianne Kyriakos ...... 106

xvi New Cases

Hunkins v. Minneapolis, MN, 93-1849 Synopsis and Question Presented ...... 108 Lower Court Opinion -- Hunkins v. City of Minneapolis ...... 109

Altinus v. Oregon, 93-1915 Synopsis and Question Presented ...... 112

[See Also Holmberg v. Ramsey Minn. this notebook p. 288]

Economic Rights

General Article

What This High Court Did For Business, Paul M. Barrett ...... 113

Articles on New Cases

Supreme Court to Rule on Suits Over Frequent-FlierPrograms, Liability Week . . . . 115

Court to Decide Where Air Travelers May Sue, Joan Biskupic ...... 116

High Court to Rule on Banks Annuities Issue, Linda Greenhouse ...... 117

New Cases

Nationsbank of North Carolina N.A. v. Variable Annuity Life Insurance Co. 93-1612 Synopsis and Question Presented ...... 118

American Airlines Inc. v. Wolens 93-1286 Synopsis and Question Presented ...... 118 Lower Court Opinion -- Wolens v. American Airlines, Inc...... 119

SECTION IV: PRIVACY

Articles on Recent Decisions

How a Ruling on Abortion Took on a Life of its Own, Linda Greenhouse ...... 127

Court Upholds Buffer Zone Around Clinic, Richard Carelli ...... 129

New Cases

Sejpal v. Corson, Mitchell, Tomhave & McKinley M.D.S., Inc. 93-1820 Synopsis and Question Presented ...... 131

Sheppard v. Beerman 93-1943 Synopsis and Question Presented ...... 131 Lower Court Opinion -- Sheppard v. Beerman ...... 132

xvii SECTION V: CIVIL RIGHTS

General Articles

Gay Scout Leader Wins Court Ruling Against Dismissal, Anne Krueger ...... 137

Amendment 2 Gets Another Day in Court, Sue Lindsay ...... 139

Article on Recent Decision

1991 Civil Rights Law Not Retroactive, Court Rules, Joan Biskupic ...... 140

Articles on New Cases

Peering into an Employee's Past: After-Acquired Evidence Can Scuttle Bias Suits, Susan Ritz ...... 142

Supreme Court to Decide if 2 Wrongs Make a Right, Gilbert M. Roman ...... 147

New Cases

McKennon v. Nashville Banner 93-1543 Synopsis and Question Presented ...... 148 Lower Court Opinion -- McKennon v. Nashville Banner Publishing Company ...... 149

Giddens v. Shell Oil Co. 93-1758 Synopsis and Question Presented ...... 153

Stock v. Universal Foods Corp. 93-1877 Synopsis and Question Presented ...... 153

Adarand Constructors v. Pena 93-1841 Synopsis and Question Presented ...... 153

SECTION VI: CRIMINAL LAW

General Articles

FBI Says 12,000 Faulty Reports on Supects Are Issued Each Day, David Burnham . . 155

Articles on Recent Decisions

Justices Rule Repeat Offenders Can't Challenge 'Career-Criminal', Linda Greenhouse ...... 158

Supreme Court Defines DeliberateIndifference, Martin A. Schwartz ...... 159

Death Row's Lawyer-Less Get Help From Justices: Prisoner'sRight to Counselfor Appeals Upheld, Joan Biskupic ...... 163

Court: Tell Juries When 'Life' Means No Parole, Aaron Epstein ...... 164

xviii Article on New Case

Nothing Perfunctory in this Review, Phoenix Gazette ...... 165

Guns and Commerce and Courts, The Washington Times ...... 166

New Cases

Arizona v. Evans 93-1660 Synopsis and Question Presented ...... 167 Lower Court Opinion -- Arizona v. Evans ...... 168

Pugh v. Illinois 93-1736 Synopsis and Question Presented ...... 172 Lower Court Opinion -- People v. Pugh ...... 173

Britenbach v. U.S. 93-1679 Synopsis and Question Presented ...... 183 Lower Court Opinion -- United States v. He im ...... 184

Stephens v. Miller 93-1734 Synopsis and Question Presented ...... 187 ..

Swan v. Peterson 93-1633 Synopsis and Question Presented ...... 187 Lower Court Opinion -- Swan v. Peterson ...... 188

Harris v. Alabama 93-7659 Synopsis and Question Presented ...... 196 Lower Court Opinion -- Ex parte Harris ...... 197

United States v. Lopez 93-1260 Synopsis and Question Presented ...... 20 1 Lower Court Opinion -- United States v. Lolpez ...... 202

SECTION VII: FIRST AMENDMENT

General Articles

Half-Truths of the FirstAmendment, Cass R. Sunstein ...... 223

Abortion on the Air: Broadcastersand Indecent Political Advertising, Milagros Rivera- Sanchez and Paul H. Gates, Jr...... 233

High Court Declines Free Speech Challenge, New York Law Journal ...... 243

Articles on Recent Religion Decisions

Albany in Accord on School Districtfor Hasidic Group, James Dao ...... 244

Attacking Religious Accommodation, Bruce Fein ...... 246

xix Articles on Recent Free Speech and Press Decisions

Justices Unite for Expression Via a Yard Sign, Joan Biskupic...... 248

Supreme Court Connects Cable TV to Free Speech Protections of Press, Joan Biskupic 250

Articles on New First Amendment Cases

Advertising and the First Amendment: A PracticalTest for Distinguishing Commercial Speech from Fully Protected Speech, Ross D. Petty...... 252

Judicial Sabotage of Child Porn Law, Bruce Fein...... 260

Court to Take on Malt Liquor Case, Michael Kirkland ...... 262

PoliticalAds in Transit Stations to be Decided by Supreme Court, Urban Transport News ...... 263

High Court to Rule on Amtrak Ban on Political Sign, Linda Greenhouse ...... 264

New First Amendment Cases

Adolph Coors Co. v. Bentsen 93-1631 Synopsis and Question Presented ...... 265 Lower Court Opinion -- Adolph Coors Co. v. Bentsen ...... 266

Lebron v. NationalRailroad Passenger 93-1525 Synopsis and Question Presented ...... 270 Lower Court Opinion -- Lebron v. Amtrak ...... 271

U.S. v. X-Citement Video Inc. 93-723 Synopsis and Question Presented ...... 277 Lower Court Opinion -- United States v. X-Citement Video, Inc...... 278

Holmberg v. Ramsey, Minn., 93-1796 Synopsis and Question Presented ...... 288 Lower Court Opinion -- Holmberg v. City of Ramsey ...... 289