Taking Sides: Clashing Views on Legal Issues by Katsh, M. Ethan; Rose, William;

Long description:

This twelfth edition of TAKING SIDES: LEGAL ISSUES presents current controversial issues in a debate-style format designed to stimulate student interest and develop critical thinking skills. Each issue is thoughtfully framed with an issue summary, an issue introduction, and a postscript. An instructor?s manual with testing material is available for each volume. USING TAKING SIDES IN THE CLASSROOM is also an excellent instructor resource with practical suggestions on incorporating this effective approach in the classroom. Each TAKING SIDES reader features an annotated listing of selected World Wide Web sites and is supported by our student website, www.dushkin.com/online.

Table of Contents:

PART 1. Law and the Individual

ISSUE 1. Should Persons Who Are Declared to Be "Enemy Combatants" Be Able to Contest Their Detention Before a Judge?

YES: Sandra Day O’Connor, from Majority Opinion, Hamdi, et. al. v. Rumsfeld, U.S. Supreme Court (June 28, 2004)

NO: Clarence Thomas, from Minority Opinion, Hamdi, et al. v. Rumsfeld, U.S. Supreme Court (June 28, 2004)

Supreme Court Justice Sandra Day O’Connor finds that the Authorization for Use of Military Force passed by Congress does not authorize the indefinite detainment of a person found to be an "enemy combatant." Justice Clarence Thomas believes that the detention of an "enemy combatant" is permitted under the federal government’s war powers.

ISSUE 2. Is Abortion Protected by the Constitution?

YES: Sandra Day O’Connor, from Majority Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court (1992)

NO: William H. Rehnquist, from Dissenting Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court (1992)

Supreme Court Justice Sandra Day O’Connor upholds a woman’s constitutional right to abortion under most circumstances and reaffirms the
central holding of Roe v. Wade. Supreme Court Chief Justice William H. Rehnquist argues that Pennsylvania regulations on abortion should be upheld and that it is
appropriate to overrule Roe v. Wade.

ISSUE 3. Are Restrictions on Physician-Assisted Suicide Constitutional?

YES: William H. Rehnquist, from Majority Opinion, Washington et al. v. Glucksberg et al., U.S. Supreme Court (June 26, 1997)

NO: Stephen Reinhardt, from Majority Opinion, Compassion in Dying v. State of Washington, U.S. Court of Appeals for the Ninth Circuit (1996)

Supreme Court Chief Justice William H. Rehnquist rules that although patients have the right to refuse life-sustaining treatment,
physician-assisted suicide is not constitutionally protected. Judge Stephen Reinhardt argues that forbidding physician-assisted suicide in the cases of competent, terminally ill patients violates the
due process clause of the Constitution.

ISSUE 4. Do People Have a Legal Right to Clone Themselves?

YES: Cass Sunstein, from “The Constitution and the Clone,” in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning (W. W. Norton, 1998)

NO: Cass Sunstein, from “The Constitution and the Clone,” in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning (W. W. Norton, 1998)

Professor of law and political science Cass Sunstein, writing as fictional Supreme Court Justice Monroe, argues that the right to cloning is
analogous to established rights of reproductive privacy and autonomy and is therefore constitutionally protected. Professor of law and political science Cass Sunstein, writing as fictional Supreme Court Justice Winston, argues that the constitutional
protection of “reproductive choice” does not extend to the decision to replicate oneself.

ISSUE 5. Does the Sharing of Music Files Through the Internet Violate Copyright Laws?

YES: Ruth Bader Ginsburg, from Concurring Opinion, Metro-Goldwyn-Mayer Studios v. Grokster, U.S. Supreme Court (June 27, 2005)

NO: Stephen Breyer, from Concurring Opinion, Metro-Goldwyn-Mayer Studios v. Grokster, U.S. Supreme Court (June 27, 2005)

Justice Ginsburg believes that the copyright laws are violated by a company when its software is used primarily for illegal file sharing, and lawful uses in the future are unlikely. Justice Breyer does not want the copyright laws to hinder technological innovation and is more willing to take into account the potential use of the software for lawful file sharing.

ISSUE 6. Should the Insanity Defense Be Abolished?

YES: Jonathan Rowe, from “Why Liberals Should Hate the Insanity Defense,” The Washington Monthly (May 1984)

NO: Richard Bonnie, from Statement Before the Committee on the Judiciary, U.S. Senate (August 2, 1982)

Editor Jonathan Rowe examines the insanity defense as it is now administered and finds that it is most likely to be used by white middle- or
upper-class defendants and that its application is unfair and leads to unjust results. Professor of law Richard Bonnie argues that the abolition of the insanity defense would be immoral and would leave no alternative for those
who are not responsible for their actions.

ISSUE 7. Can the Police Require Individuals to Identify Themselves?

YES: Anthony Kennedy, from Majority Opinion, Larry D. Hiibel v. Sixth Judicial District Court (June 21, 2004)

NO: James P. Logan et al., from A Brief for the Petitioner Hiibel v. Sixth Judicial District Court (2004)

Supreme Court Justice Anthony Kennedy holds that requiring an individual to identify himself does not violate the right to remain silent and does not infringe rights guaranteed by the Fourth and Fifth Amendments.
In a brief filed by the Office of the Nevada State Public Defender, the argument is put forward that when persons are detained on less than probable cause, it is unconstitutional for police to demand that such persons identify themselves and provide the police with their names.

PART 2. Law and the State

ISSUE 8. Do Religious Groups Have a Right to Use Public School Facilities After Hours?

YES: Clarence Thomas, from Majority Opinion, Good News Club et al. v. Milford Central School, U.S. Supreme Court (June 11, 2001)

NO: David Souter, from Dissenting Opinion, Good News Club et al. v. Milford Central School, U.S. Supreme Court (June 11, 2001)

Supreme Court Justice Clarence Thomas affirms the right of religious groups to use school facilities after the school day ends, maintaining
that restricting such use is a violation of free speech rights. Supreme Court Justice David Souter, dissenting from the Court’s opinion, contends that the use of school facilities by religious groups
blurs the line between public classroom instruction and private religious indoctrination and therefore violates the establishment clause of the
Constitution.

ISSUE 9. Does the Use of High-Technology Thermal Imaging Devices Violate the Fourth Amendment Search and Seizure Guarantee?

YES: Antonin Scalia, from Majority Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

NO: John Paul Stevens, from Dissenting Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

Supreme Court Justice Antonin Scalia maintains that thermal imaging devices reveal information “that would previously have been unknowable
without physical intrusion” and that using such devices for surveillance without a warrant constitutes a violation of the Fourth
Amendment. Supreme Court Justice John Paul Stevens asserts that the Court’s application of search and seizure rules to new technology is too broad and
that collecting thermal imaging data from outside the home is not a violation of privacy rights.

ISSUE 10. Are Laws Requiring Schools and Public Libraries to Filter Internet Access Constitutional?

YES: William H. Rehnquist, from Majority Opinion, United States et al. v. American Library Association, Inc. et al., U.S. Supreme Court (June 23, 2003)

NO: John Paul Stevens, from Dissenting Opinion, United States et al. v. American Library Association, Inc. et al., U.S. Supreme Court (June 23, 2003)

Supreme Court Chief Justice William H. Rehnquist rules that a federal law withholding funds from public libraries that fail to install filters on computers that are connected to the Internet does not violate the First Amendment. Supreme Court Justice John Paul Stevens argues that filters on computers that are connected to the Internet are flawed and that the Children’s Internet Protection Act violates the First Amendment.

ISSUE 11. Does the "Cruel and Unusual Punishment" Clause of the Eighth Amendment Bar the Imposition of the Death Penalty on Juveniles?

YES: Anthony Kennedy, from Majority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons, U.S. Supreme Court (March 1, 2005)

NO: Antonin Scalia, from Minority Opinon, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons, U.S. Supreme Court (March 1, 2005)

Supreme Court Justice Anthony Kennedy holds that the Constitution prohibits the execution of a person who was under the age of eighteen at the time of the offense. Supreme Court Justice Antonin Scalia believes that the Constitution does not preclude the execution of a juvenile.

ISSUE 12. Is a Sentence of Life in Prison for Stealing $150 Worth of Videotapes Constitutional?

YES: Sandra Day O’Connor, from Majority Opinion, Bill Lockyer, Attorney General of California, v. Leandro Andrade, U.S. Supreme Court (March 5, 2003)

NO: David Souter, from Dissenting Opinion, Bill Lockyer, Attorney General of California, v. Leandro Andrade, U.S. Supreme Court (Mar
ch 5, 2003)

Supreme Court Justice Sandra Day O’Connor rules that a decision in a case involving the theft of $150 worth of merchandise that resulted in two consecutive terms of 25 years to life in prison for a "third strike" conviction was not "grossly disproportional" to the crime nor "contrary to, or an unreasonable application of, clearly established federal law." Supreme Court Justice David Souter argues that, under several prior Supreme Court decisions, the "third strike" punishment in this case was grossly disproportional to the crime committed.

ISSUE 13. Is Drug Use Testing of Students Who Participate in Extracurricular Activities Permitted Under the Fourth Amendment?

YES: Clarence Thomas, from Majority Opinion, Board of Education of Independent School District No. 92 of Pottawatomie County et al. v. Lindsay Earls et al., U.S. Supreme Court (June 27, 2002)

NO: Ruth Bader Ginsburg, from Dissenting Opinion, Board of Education of Independent School District No. 92 of Pottawatomie County et al. v. Lindsay Earls et al., U.S. Supreme Court (June 27, 2002)

Supreme Court Justice Clarence Thomas finds that a school policy requiring all middle and high school students to consent to drug testing in order to participate in any extracurricular activity does not violate the Fourth Amendment. Supreme Court Justice Ruth Bader Ginsburg dissents, arguing that while testing student athletes may be justifiable, there is no justification for invading the privacy of students who participate in other extracurricular activities.

PART 3. Law and the Community

ISSUE 14. Can Companies That Lie About Their Business Practices Be Punished Without Having Their First Amendment Rights Violated?

YES: Joyce L. Kennard, from Majority Opinion, Marc Kasky v. Nike, Inc. et al., California Supreme Court (May 2, 2002)

NO: Janice Brown, from Dissenting Opinion, Marc Kasky v. Nike, Inc. et al., California Supreme Court (May 2, 2002)

California Supreme Court Justice Joyce L. Kennard argues that false claims about a company’s business practices fall under the category of commercial speech, which the U.S. Supreme Court previously held is not constitutionally protected. California Supreme Court Justice Janice Brown argues that it is unconstitutional to extend commercial speech laws to encompass potentially false claims about a company’s labor practices.

ISSUE 15. Are Blanket Prohibitions on Cross Burnings Unconstitutional?

YES: Sandra Day O’Connor, from Majority Opinion, Virginia v. Barry Elton Black, Richard J. Elliott, and Jonathan O’Mara, U.S. Supreme Court (April 7, 2003)

NO: Clarence Thomas, from Dissenting Opinion, Virginia v. Barry Elton Black, Richard J. Elliott, and Jonathan O’Mara, U.S. Supreme Court (April 7, 2003)

Supreme Court Justice Sandra Day O’Connor argues that a Virginia statute proscribing all forms of cross burning is unconstitutional because symbolic speech can only be prohibited when done with the intent to intimidate, and such an intent cannot be inferred solely from the type of symbolic speech used. Supreme Court Justice Clarence Thomas argues that the history and nature of cross burning in the United States inextricably links the act to threatening and menacing violence and that the intent to intimidate can therefore be inferred solely from the act of cross burning itself.

ISSUE 16. Should Same-Sex Couples Be Allowed to Marry?

YES: Margaret Marshall, from Majority Opinion, Goodridge et al. v. Department of Public Health, Massachusetts Supreme Court (2003)

NO: Robert Cordy, from Minority Opinion, Goodridge et al. v. Department of Public Health, Massachusetts Supreme Court (2003)

Massachusetts Supreme Court Justice Margaret Marshall rules that banning marriage to same-sex couples causes hardship to a segment of the population for no rational reason. Massachusetts Supreme Court Justice Robert Cordy, in dissent, holds that a statute banning same-sex marriage is a valid exercise of the state’s police power.

ISSUE 17. Are Public School Officials Liable for Damages in Cases of Student-on-Student Sexual Harassment?

YES: Sandra Day O’Connor, from Majority Opinion, Davis v. Monroe County Board of Education et al., U.S. Supreme Court (May 24, 1999)

NO: Anthony Kennedy, from Dissenting Opinion, Davis v. Monroe County Board of Education et al., U.S. Supreme Court (May 24, 1999)

Supreme Court Justice Sandra Day O’Connor holds that under Title IX of the Education Amendments of 1972, actions for private damages may be brought against school board officials in cases of student-on-student sexual harassment. Supreme Court Justice Anthony Kennedy argues that Title IX cannot be read to provide such a cause of action and that to do so opens the gate
for the federal government to intrude into state and local educational decision making.

ISSUE 18. Should Children With Disabilities Be Provided With Extraordinary Care in Order to Attend Regular Classes in Public Schools?

YES: John Paul Stevens, from Majority Opinion, Cedar Rapids Community School District v. Garret F., U.S. Supreme Court (March 3, 1999)

NO: Clarence Thomas, from Dissenting Opinion, Cedar Rapids Community School District v. Garret F., U.S. Supreme Court (March 3, 1999)

Supreme Court Justice John Paul Stevens interprets the Individuals with Disabilities Education Act as requiring public school districts to
provide students who have severe physical disabilities with individualized and continuous nursing services during school hours. Supreme Court Justice Clarence Thomas argues that such an interpretation will impose serious and unanticipated financial obligations on the
states.

ISSUE 19. Do Race-Conscious Programs in Public University Admissions Policies Violate the Fourteenth Amendment’s Guarantee of Equal Protection Under the Law?

YES: Clarence Thomas, from Dissenting Opinion, Barbara Grutter v. Lee Bollinger et al., U.S. Supreme Court (June 23, 2003)

NO: Sandra Day O’Connor, from Majority Opinion, Barbara Grutter v. Lee Bollinger et al., U.S. Supreme Court (June 23, 2003)

Supreme Court Justice Clarence Thomas argues that the University of Michigan Law School’s admissions policy discriminates on the basis of race and is therefore in violation of the Fourteenth Amendment’s equal protection clause. Supreme Court Justice Sandra Day O’Connor holds that the admissions policy of the University of Michigan Law School, which makes race one factor among many in the process of creating a diverse student body, does not violate the Constitution’s guarantee of equal protection under the law.