Ken Strutin focuses on the impact of the Supreme Court’s decisions in Missouri v. Frye and Lafler v. Cooper, and the upcoming appeal in Burt v. Titlow in regard to placing plea bargaining front and center on the national stage. As a result, they have divided practitioners and scholars into two camps: (1) those who consider the rulings to be a new statement in the law of plea bargaining and right to effective assistance of counsel; and (2) those who believe they are only a restatement of established principles. These cases have generated interest in the centrality and regulation of plea bargaining, the ethics and effectiveness of defense counsel as negotiator, the oversight of prosecutors regarding charging decisions, sentence recommendations and pre-trial discovery, and the scope of federal habeas corpus review and remedies. Ken’s article is a comprehensive annotated guide to high court opinions, scholarship and commentary regarding the themes addressed by the Supreme Court in Lafler and Frye as well as their implications for the administration of criminal justice.
Frank S. Ravitch, Masters of Illusion: The Supreme Court and the Religion Clauses. (New York University Press, 2007) ISBN 978-0814775851
The issue of neutrality is one that Ravitch takes issue with. In fact, his second chapter baldly proclaims that “Neutrality, whether formal or substantive, does not exist in the religion clause context,”. He goes on to observe that “Claims of neutrality cannot be proven. There is no independent neutral truth to baseline to which they can be tethered. This is important because it means that any baseline to which we attach neutrality is not neutral, and claims of neutrality built on these baselines are by their nature not neutral.” Ravitch is similarly suspicious of hard originalism, finding that originalist analysis often ends up in a “battle of the framers”. Observing that, “short of inventing a time machine and bringing a cadre of pollsters from Gallup back in time, it is unlikely that we will ever know what the framers intended about the wide array of specific issues confronting courts in the religious clause context”.
Taken together, the ideals of neutrality and originalism are two major bulwarks of religious clause interpretation in modern federal jurisprudence. Examining contemporary issues such as the display of crosses on public grounds, the display of the Ten Commandments and school prayer, Ravitch illustrates their weaknesses, noting that, “the current approach of relying on often unsubstantiated interpretive devices … has not led to great clarity or a better understanding of religion clause interpretation. Claiming that original intent or neutrality supports a position is not the same as proving it, and when one’s evidence for these approaches can be easily countered by judges or commentators who hold a different perspective, the likelihood of confusion is greater.”
Contending that “multiple, narrow principles of interpretation can lead to more clarity, consistency, and coherence in religious clause interpretation”, Ravitch draws upon the work of Philip Bobbitt in advancing the use of what Ravitch terms the “modal approach” in order to find a more equitable and just approach to the interpretation of the religion clauses. Ravitch advances the use of principles such as separationism, accommodationism, liberty, equality, “soft” originalism (defined as the broad intent of the framers) and pragmatism as narrow, cooperative principals rather than broad, exclusionary ones in order to lead to ” better, or at least more realistic, legal reasoning”.
In contrast to Slack’s approachable, journalistic style, Ravitch writes in a manner more characteristic of legal scholarship. His prose is dense, closely reasoned and in places difficult. However, this book will undoubtedly find a place in a specialist collection, particularly in a law school collection that focuses on religion clause jurisprudence. Slack’s more accessible style and clear manner of writing makes this book suitable for both the specialist and the general audience.
Writing Justice Blackmun
American Association of Law Libraries, St. Louis, July 9, 2006
by Linda Greenhouse
Short Takes: Book Review – Absolute Convictions: My Father, a City, and the Conflict That Divided America
Beth Wellington reviews and recommends a recently published book that provides perspective on both sides of the contentious social, political and ethical debate surrounding abortion in America.
Kathy Biehl is the food writer for Diversion magazine and the former longtime dining critic for the Houston Business Journal. She has reviewed restaurants as well for the Houston Press, Time Out New York, My Table and the TONY Guide Eating & Drinking 2000. Her food writing has received awards from the Association of Food Journalists and the Houston Press Club. She is also the author of the LLRX.com Research RoundUp and Web Critic columns, co-author of The Lawyer’s Guide to Internet Research , and an attorney admitted to practice in Texas and New Jersey.
Web Guide to U.S. Supreme Court Research
By Gail Partin