Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women – Note by Lindsey E. Blenkhorn

From Volume 76, Number 1 (November 2002)
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In 1958 in Pakistan, Parveen Chaudry’s parents introduced her to Hanif Chaudry, the man they had chosen to be her husband. In accordance with Islamic tradition, Parveen’s parents negotiated the terms of her marriage contract with Hanif, consenting to and even signing the contract on Parveen’s behalf. According to Islamic law, Parveen’s marriage contract included a mahr provision, or dower, in the amount of 15,000 rupees (approximately $1,500), to protect Parveen if Hanif suddenly divorced her. Islamic law provides that couples retain their assets before, during, and after marriage, and because Parveen would likely not be permitted to work outside the marriage home without her husband’s permission, the mahr was a nest-egg in case the marriage soured.

One year after their marriage, Hanif moved to London to pursue a career in medicine, leaving Parveen behind in her native Pakistan with her parents and one-year-old child until her parents were able to pay for plane tickets to London. Once Parveen joined Hanif in London, he moved his family to New Jersey, where Parveen gave birth to their second child. Five years later, Hanif sent his wife and children back to Pakistan with the understanding that he would join them shortly. During the next five years, Parveen, who by now had three young children, attempted to rejoin Hanif in New Jersey, while Hanif took affirmative action to prevent her return and ultimately responded with divorce proceedings.

 

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Walker v. Cheney: Politics, Posturing, and Executive Privilege – Note by Jeffrey P. Carlin

From Volume 76, Number 1 (November 2002)
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On February 22, 2002 the General Accounting Office (“GAO”) filed an unprecedented lawsuit against Vice President Richard Cheney, seeking an injunction requiring him to produce certain records relating to the National Energy Policy Development Group (“NEPDG”), which he chaired at the behest of President George W. Bush. For the first time in its eighty-one year history, the GAO has filed suit against a federal official in relation to records access.

The suit is the result of a GAO inquiry begun at the request of Representatives Henry Waxman and John Dingell, who were concerned about the potential influence Enron and other special interest groups had over the NEPDG’s activities. The Vice President has so far refused to meaningfully acquiesce to any of the GAO’s information requests or attempts at accommodation, and has argued that the GAO does not have the statutory authority to obtain the records requested. More significantly, he has hinted at—though not formally asserted—executive privilege, setting the stage for a legal showdown that could make its way to the Supreme Court.

 

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Volume 75, Number 6 (September 2002)

Volume 75, Number 6 (September 2002)

The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review – Article by Dan T. Coenen

From Volume 75, Number 6 (September 2002)DOWNLOAD PDF

In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause? Anticipating a flurry of recent scholarship, Justice Linde took particular interest in whether the absence of legislative findings offered in support of an otherwise duly enacted law should bear upon that law’s constitutionality.

Drawing in part on Justice Linde’s work, Professor Laurence Tribe began in the same time frame to advocate a style of judicial review that combines both process-centered and substance-centered components. In doing so, he documented the pre-Rehnquist Court’s use of this technique in high-profile cases—such as New York Times Co. v. United States, Hampton v. Mow Sun Wong, and Mississippi University for Women v. Hogan—to invalidate statutes and rules. Professor Tribe also gave this approach to constitutional decisionmaking a name, calling it “structural due process.” For a variety of reasons, I prefer the more encompassing term “semisubstantive review.”

 

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Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law – Article by Laura A. Dickinson

From Volume 75, Number 6 (September 2002)
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In response to the September 11, 2001 terrorist attacks, the chorus of those arguing that international law cannot serve as an effective tool in the fight against terrorism has grown. In fact, one might say that September 11 has swelled the ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite. According to this view, for the United States to comply with the letter of international law would be to don a straight-jacket that would hamper efforts to protect national and international security. Instead, because of the serious nature of the threat, ordinary rules should be bent, if acknowledged at all. This type of thinking has even spilled over into domestic law. Anyone who harps too much on the need for law at best is naive and at worst aids and abets terrorists.

This resurgent realism with respect to international law has taken several forms. Some have argued that the United States need not pay overly precise attention to international law in its military response to the attacks. Others have suggested that the detention of captured terrorism suspects is not, or should not be, governed by international law. And still others have suggested that the United States need not comply with the principles established under international law in prosecuting individual terrorists. I will focus here on the latter two arguments.

 

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A Haven for Hate: The Foreign and Domestic Implications of Protecting Internet Hate Speech Under the First Amendment – Note by Peter J. Breckheimer

From Volume 75, Number 6 (September 2002)
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The U.S. Constitution is unique even among democratic nations for the guarantees it grants to U.S. citizens. The interpretation of the Constitution further distinguishes American notions of freedom and liberty from every other country in the world. The Internet Age, however, has ushered in a period where national boundaries and guarantees are blurred among the many intersections of the World Wide Web. This uncertainty has raised serious questions relating to the fundamental rights and liberties established by our forefathers: Can the United States maintain its guarantee of freedom of speech for the Internet? Who profits from such a guarantee? What are the implications for other nations if the United States ignores their pleas to rein in such guarantees?

Given the nearly unanimous international institution of regulations restricting online hate speech, the United States stands alone in its support of free speech—including Internet hate speech. Because of such a stance, however, the United States may become a beacon of hope for hate-mongers around the world whose views are stifled by the restrictions on speech in their homelands. Will the United States become a haven for online hate speech by continuing to guarantee such speech near-absolute protection? This Note attempts to answer the above questions and examines the desirability of U.S. protection of hate speech on the Internet.

 

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Equality in the Workplace: Why Family Leave Does Not Work – Note by Erin Gielow

From Volume 75, Number 6 (September 2002)
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In 2001, more than thirty years after the passage of Title VII of the Civil Rights Act, women still have not achieved equality in the workplace. Many statistics emphasize the divide: Last year, 95% of all venture capital went to men; of the top 2,500 corporate executives in America, only sixty-three are women; only three Fortune 500 companies are headed by women; and Congress is 90% male.

While many factors undoubtedly contribute to this disparity, one factor in particular stands out: Women are more likely to take family leave after the birth or adoption of a child, and are far more likely to serve as the primary caregiver for children. The American Bar Association (“ABA”) commented in its 1998 study, Facts About Women and the Law, that, “in reality women bear the greater burden of balancing career and family.” The number of fathers staying home to raise children is relatively small, fluctuating between 2 and 5%.

Powerful societal assumptions about gender roles are still alive and well today. Men are presumed to be the family’s main source of income, and women the primary child care providers. Scholars agree: “Women shoulder the primary responsibility for family,” whereas “[t]raditional culture mandates insist that men act as the primary breadwinner of the family.”

 

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