Law review article

Justice O’Connor’s Pragmatic View of Coerced Self-Incrimination

Law review article / By

Justice O’Connor’s Pragmatic View Of Coerced Self-Incrimination

by

GEORGE C. THOMAS III

Almost no one acknowledges it, but the Self incrimination Clause is empty of meaning. By that I mean that the clause generates no under standing of how it should operate beyond the very narrow understanding derived from its historical origins (and thus from outside the language of the clause itself). The Self-incrimination Clause can not generate meaning because its central con cept-

Law review article

Justice O’Connor’s Intellectual Property Opinions: Currents and Crosscurrents

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Justice O’Connor’s Intellectual Property Opinions: Currents and Crosscurrents*

by

MARCI A. HAMILTON**

On this tenth anniversary of Justice Sandra Day O’Connor’s tenure on the United States Supreme Court, it is fitting, though arguably pre mature, for us to ask the question: how will we remember Justice O’Connor’s contribution to the Court years from now? Justice O’Connor undeni ably has made important and interesting contri butions to the Court’s ongoing debate over issues involving the First Amendment, abortion, and federalism. She has developed a distinctive juris prudence in her Establishment Clause opinions and a striking voice in her affirmative action opinions.1 Probably few realize, however, that in the last several years she also has become a force in the intellectual property area, especially the copy right arena. Justice O’Connor has authored the Court’s major intellectual property opinion for each of the last three terms. Since 1985, she has authored four of the Court’s intellectual property opinions. Given that the Court only grants certi orari for one to two such cases each year, her con tribution accounts for a substantial percentage of the Court’s recent intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers, Inc. v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend4, and

Law review article

Justice O’Connor and Children and the Law

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Justice O’Connor and Children and the Law

by

TWILA L. PERRY*

Legal disputes involving children often center around the issues of rights, protection and supervision. Most people probably agree that chil dren do and should have some rights; we all know that children need both protection and supervi sion. The difficulty arises in defining what these terms should mean in particular contexts. There is no consensus as to what rights children should have, or what rights should be accorded to them at particular ages.1 Nor is there consensus as to how we should balance children’s rights with the rights of others, or how we should balance chil dren’s need for supervision with their need to gradually experience the independence they will have as adults. Finally, we do not agree on how much protection children need, who they need to be protected from, or how we should deal with children who have committed serious crimes.

During Justice O’Connor’s tenure, the Supreme Court has decided a number of cases that bear on these issues. Decisions have been ren dered in cases involving students’ rights, juvenile justice, child abuse, children as witnesses in sex ual abuse cases, abortion, education and child support. Professors Sheppard and Roberts have already touched on a few of these areas in their presentations on family law and reproductive rights.2 My discussion, which focuses more specif ically on children’s rights, will address the contri butions of Justice O’Connor in four areas:

Law review article

Affirmative Action: Will Justice O’Connor Author Its End?

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AFFIRMATIVE ACTION: WILL JUSTICE O’CONNOR AUTHOR ITS END?

INTRODUCTION

WHEN faced with the issue of whether a governmentally employed race based affirmative action program violates the equal protection clause of the Constitution, the Supreme Court has been sharply divided. This sharp division was illustrated by the fact that the Court did not reach its first majority decision until May 1989, nearly eleven years after the first major decision dealing with a racial affirmative action program.1 Prior to 1989, the Court addressed three major cases dealing with the constitutionality of governmentally imposed affirmative action programs. In two cases, the Court invalidated the programs, and in the other the Court upheld the program.2 Failing to reach a majority, the Court delivered plurality opinions in each case.3 The failure to reach a majority opinion in those cases resulted from the justices’ disagreement on the appropriate judicial standard of review to be applied. 4

The Court reached a majority opinion in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the first majority on the issue since first addressing it in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (invalidating the provision); Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding the provision); Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (invalidating the special admissions program). See also United States v. Par

Law review article

Foreword: First Women: The Contribution of American Women to the Law

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FOREWORD

FIRST WOMEN: THE CONTRIBUTION OF AMERICAN WOMEN TO THE LAW

SANDRA DAY O’CONNOR*

This issue of the Valparaiso University Law Review is devoted to the contributions of some “firsts” among women in the law. Each of these women was the first to engage in a wide variety of activities previously thought to be impossible or improper for women to do. All of us owe a great debt of gratitude to our determined predecessors who, despite daunting obstacles, made possible the professional and other opportunities women lawyers enjoy today. As another woman who was the first to serve in a position formerly held only by men, I can appreciate with particular sensitivity the strength of character and the determination these adventurous women demonstrated in pursuing their career goals against far more formidable barriers.

These earlier legal pioneers faced a profession and a society that espoused what has been called “the cult of domesticity,” a view that women were by nature different from men, suited only for motherhood and homelife- compassionate, selfless, gentle, moral, and pure. Their minds were attuned to art and religion, not logic. Men, on the other hand, were thought to be fitted by nature for competition and intellectual discovery in the world-battle hardened, shrewd, authoritative, and tough-minded. A male attorney of the period commented, “[A] woman can’t keep a secret, and for that reason if no other, I doubt if anybody will ever consult a woman lawyer.”1

The four women

Interview, TV appearance

Interview with Bill Moyers – “In Search of the Constitution”

Interview, TV appearance / By

Bill Moyers
Justice O’Connor will not discuss the controversial issues that keep coming to the court. abortion. Above all, she says as do other justices, that it would be improper for her to do so. But one of her major opinions on the court has caused alarm amongst supporters of abortion, about how she might rule on future cases. During her confirmation hearings in 1981, she had this to say,

Sandra Day O’Connor
I do not believe that as a nominee, I can tell you how I might vote on a particular issue, which may come before the court or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the court again,

Bill Moyers
triggered a stormy controversy with the decision on Roe vs wade in 1973. ruling that a woman has the fundamental right to an abortion during the first three months of pregnancy, the first trimester, the state could only outlaw abortion altogether in the third trimester when the fetus is considered viable when it can live outside the womb. In 1983, in a case from Akron, Ohio, the court reaffirmed Roe versus Wade, it struck down regulations passed by the City Council that would make abortions more difficult to obtain. The court has never said that you may not regulate abortion in the interest of the life or the health of the unborn child has just never faced that question. Feminists leaders claimed another victory for women.

Sandra Day O’Connor
And I think what they were hoping to that as a precedent for

Law review article

Foreword (to Commemorative Edition: 75th Anniversary of New England School of Law)

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FOREWORD

Justice Sandra Day O’Connor*

This year the New England School of Law will commemorate its 75th anniversary. Appropriately, the New England Law Review will publish in this issue articles addressing law school education today, and the history of women in the law.

The development of the New England School of Law reflects the dra matic expansion of employment opportunities for women over the last half century. The Law School was founded in 1908 as the Portia Law School, which was the only school in the United States established exclusively for the legal education of women. Although the School became coeducational in 1934, it has continued to demonstrate an admirable sensitivity to those groups under-represented in the legal profession. The Law School may justifiably credit itself with anticipating and responding to the educational needs of mi norities, and with leading the struggle to ensure a truly equal opportunity to obtain a legal education. The results of these efforts are only now beginning to be recognized. Over the next twenty-five years there is no doubt that court room benches, law facilities, and law firm partnerships will reflect the in creased percentage of women and other minority groups who are now being admitted to practice.

The role of the law school should encompass preparation of its students for both professional competence and ethical responsibility. For too many years law schools have neglected practical skills in favor of training in legal method

Law review article

Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge

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TRENDS IN THE RELATIONSHIP BETWEEN THE FEDERAL AND STATE COURTS FROM THE PERSPECTIVE OF A STATE COURT JUDGE

SANDRA D. O’CONNOR*

We live in an imperfect world. Most people would agree our court system suffers from some of that imperfection. We appear to be the only major country with two parallel court systems. Among other things, such an arrangement affords most convicted criminal defendants opportunities for multiple post-conviction appellate court reviews. The labyrinth of judicial reviews of the various stages of a state criminal felony case would appear strange, indeed, to a rational person charged with devising an ideal criminal justice system. Changes and improvements come very slowly, if at all, and, more often than not, incrementally, in small case by case adjustments.

State courts, which annually process the great majority of all civil and criminal cases filed in this country, handle their workload for the most part without a great deal of concern about the federal court system which exists alongside them. Trial Judges in both systems are busy hearing cases. Most state court trial judges do not have time to think about what jurisdiction the federal courts should have; they simply take each case assigned and do the best they can with it, whether or not it involves a federal legal question. On the other hand, state appellate court Judges occasionally be come so frustrated with the extent of federal court intervention that they simply abdicate in favor of the federal

Law review article

Thurgood Marshall: The Influence of a Raconteur

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Thurgood Marshall:

The Influence of a Raconteur

Sandra Day O’Connor*

I was fresh out of Stanford Law School, working as a civilian attorney in the Quartermaster Market Center, the day Thurgood Marshall changed the nation. He had been chipping away at the building blocks of a separatist society long before 1954, of course, but it was through Brown v. Board of Education1 that he compelled us, as a nation, to come to grips with some of the contradictions within ourselves.

Like most of my counterparts who grew up in the Southwest in the 1930s and 1940s, I had not been personally exposed to racial tensions before Brown; Arizona did not have a large African American population then, and unlike southern States, it never adopted a de jure system of segregation. Although I had spent a year as an eighth grader in a predominately Latino public school in New Mexico, I had no personal sense, as the plaintiff chil dren of Topeka School District did, of being a minority in a society that cared primarily for the majority.

But as I listened that day to Justice Marshall talk eloquently to the me dia about the social stigmas and lost opportunities suffered by African American children in state-imposed segregated school, my awareness of race-based disparities deepened. I did not, could not, know it then, but the man who would, as a lawyer and jurist, captivate the nation would also, as colleague and friend, profoundly influence me.

Although all of us come to the Court with our own personal