D'Angelo Law Library Blog

Chicago Celebrates Dr. Martin Luther King, Jr. and His Legacy

"We are tied in a single garment of destiny." - Martin Luther King, Jr.

Monday, January 17, 2011, is the 25th anniversary of the first Martin Luther King, Jr. Holiday.  The University commemorated Dr. King's work with programs listed in the MLK Week schedule.  Judith Jamison, the Artistic Director of the Alvin Ailey American Dance Theater, delivered the keynote speech.  The University designated today as a day of community service to acknowledge the important role of civic engagement in Reverend King's message.  Sunday, the University will host a musical and liturgical celebration of Dr. King's legacy at Rockefeller Chapel.  

The Chicago Sinfonietta is also holding its annual MLK, Jr. tribute concert, A Dream Unfolds (Jan. 15-17).  Other tributes to the legacy of Martin Luther King, Jr. are taking place elsewhere in Chicago and nationwide.

Martin Luther King, Jr. worked for peace and justice throughout the world.  As he said, "Injustice anywhere, is a threat to justice everywhere."  He influenced international legal reforms, and popular movements for peace, civil rights, and human rights worldwide.  The following bibliographies list works that focus on Dr. King's continuing legacy.

• The Legal Legacy of Dr. Martin Luther King, Jr.:  Selected International Resources (2008).
• The Legal Legacy of Dr. Martin Luther King, Jr.:  Selected Resources (2007).
• Martin Luther King, Jr., Civil Rights Activists & the Law: Selected D’Angelo Law Library Resources (2007).
• The Legal Legacy of Dr. Martin Luther King, Jr.:  Selected Resources (2005).

 

The following list supplements the bibliographies:

Great Legal Thinkers: Part 1 (Answer)

 
Who is this Great Legal Thinker?  He is Benjamin Nathan Cardozo.  His bust is located on the 2d floor reading room of the D'Angelo Law Library, behind the glass-partitioned consultation area, near the Bloomberg Law terminal.  He is number 5 on Brian Leiter's list of The Most Important Legal Thinkers in American Law of the Past Century.  Judge Richard A. Posner wrote a biography about him in 1990, Cardozo: A Study in Reputation.  Yeshiva University named its law school the Benjamin N. Cardozo School of Law in his honor.  He wrote Palko v. Connecticut, 302 U.S. 319 (1937), in which he explained the extent to which the Fourteenth Amendment incorporates the Bill of Rights as a constraint upon the powers of State governments.  He also wrote the majority opinions in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928), Helvering v. Davis, 301 U.S. 619 (1937) and MacPherson v. Buick Motor Co., 217 N.Y. 382, 11 N.E. 1050 (N.Y. App. 1916). He believed in judicial restraint and helped uphold significant New Deal legislation.   Cardozo served on the New York Court of Appeals from 1914 until 1932 when President Herbert Hoover nominated him to fill the seat vacated on the U.S. Supreme Court when Justice Oliver Wendell Holmes resigned.  Cardozo served on the Supreme Court from 1932 until his death in 1938.

Cardozo was born a twin (with sister, Emily) on May 24, 1870, to Jewish parents in New York City.  His family had teachers come to the home for his education. He reputedly lived almost as a hermit.  He never married.  He did not practice his religion, but took pride in his Sephardic Jewish heritage.  He loved to read.  After Cardozo's death, his friend, Irving Lehman, arranged to have his private papers destroyed.  A bit of Cardozo survives in his letters to friends and colleagues in collections such as the Karl Llewellyn Papers.

Benjamin Cardozo was a founder and vice president of the American Law Institute (ALI).  He lectured at Yale and Columbia law schools.  He authored The Nature of the Judicial Process (1921), The Growth of the Law (1924), The Paradoxes of Legal Science (1928), and Law and Literature (1931), among other works.

Thought-Provoking Quotes:

Per John Knox, Justice Cardozo wrote:  "I wake up often at night with nerves on edge as the result of worry about cases...I am tortured. I could not sleep last night. Tomorrow we have a decision to make. This majority rule! This majority rule! A single vote may turn the scales. The responsibility is awful!"

“We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” - Richard A. Posner, How Judges Think 68 (2008)(quoting Benjamin N. Cardozo, The Nature of the Judicial Process 13 (1921)).

“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Berkey v. Third Avenue Railway Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926)

"The timorous may stay at home."  Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483 (1929).

“[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934).

“Law never is, but is always about to be. It is realized only when embodied in a judgment, and in being realized, expires. There are no such things as rules or principles: there are only isolated dooms.”  The Nature of The Judicial Process 126 (1921).

“[Some judges'] notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.” The Nature of the Judicial Process, at 20-21. 

Selected biographical resources:

• Michael Ariens, Supreme Court Justices:  Benjamin N. Cardozo (1870-1938)
• Cardozo, Benjamin Nathan (American National Biography Online)
• Judith S. Kaye, "Benjamin Cardozo" in Lawyers of the Century (American Lawyer Media, 1999)
• John Knox, "Recollections of Justice Cardozo," 21 Chi. B. Rec. 9 (1939-1940)(full text via HeinOnline)
• Joseph P. Pollard, Mr. Justice Cardozo:  A Liberal Mind in Action (Yorktown Press, 1935)(with foreword by Roscoe Pound)(full text via HeinOnline Legal Classics Library)
• Stanley Charles Brubaker, Benjamin Nathan Cardozo:  An Intellectual Biography (Ph. d. dissertation, University of Virginia, 1979)(ProQuest Digital Dissertations Online)
• Cardozo Is Dead; New Heart Attack Fatal to Justice/Justice Cardozo Dead at Age 68 (ProQuest News, The Historical New York Times, July 10, 1938, at 1, 30, PDF)
• Broad Philosophy of the Law Made Cardozo Influential in Supreme Court (ProQuest News, The Historical New York Times, July 10, 1938, at 30, PDF)(especially "Justice Cardozo, A Noted Liberal: He Identified Himself More Precisely as a 'Judicial Evolutionist'...")
• Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of Benjamin Nathan Cardozo, November 26, 1938 (full text via the HathiTrust Digital Library)
• George S. Hellman, Benjamin N. Cardozo,  American Judge (McGraw-Hill, 1940)
• Andrew L. Kaufman, Cardozo (Harvard University Press, 1998)
• Richard Polenberg, The World of Benjamin Cardozo:  Personal Values and the Judicial Process (Harvard University Press, 1997)

Decriminalizing Prostitution - A Comparative Law Look

Nevada is not alone.  Non-U.S. jurisdictions have decriminalized or legalized prostitution.  A recent Canadian case clarified the current status worldwide. In Bedford v. Canada, 2010 ONSC 4264 (CanLII, Sept. 28, 2010) the Ontario Superior Court of Justice ruled that three criminal code sections violated the Canadian Charter of Rights and Freedoms. While prostitution is legal in Canada, these penal provisions prevent sex workers from working in the safety of their homes, paying people to help protect them, and finding out about their customers before they decide whether to take the risk of accepting them as customers.

Justice Susan Himel summarized the legitimate reasons for the three statutory provisions thusly in Paragraph 418:

The communicating provision is aimed at curbing the social nuisance associated with public solicitation for the purposes of prostitution, including traffic congestion, noise, harrasment of persons in the area, and the harmful effect of the open display of prostitution on bystanders, including children.  Similarly, the bawdy-house provisions seek to prevent harm to the community by protecting community health and safety, and preventing neighbourhood disruption.  The living on the avails provision is aimed at preventing the exploitation of prostitutes and profiting from prostitution by pimps. 

In Paragraph 421, she found as follows:

1.      Prostitutes, particularly those who work on the street, are at a high risk of being the victims of physical violence.

2.      The risk that a prostitute will experience violence can be reduced in the following ways:

a.      Working indoors is generally safer than working on the streets;

b.      Working in close proximity to others, including paid security staff, can increase safety;

c.      Taking the time to screen clients for intoxication or propensity to violence can increase safety;

d.      Having a regular clientele can increase safety;

e.      When a prostitute’s client is aware that the sexual acts will occur in a location that is pre-determined, known to others, or monitored in some way, safety can be increased;

f.         The use of drivers, receptionists and bodyguards can increase safety; and

g.      Indoor safeguards including closed-circuit television monitoring, call buttons, audio room monitoring; financial negotiations done in advance can increase safety.

3.      The bawdy-house provisions can place prostitutes in danger by preventing them from working in-call in a regular indoor location and gaining the safety benefits of proximity to others, security staff, closed-circuit television and other monitoring.

4.      The living on the avails of prostitution provision can make prostitutes more susceptible to violence by preventing them from legally hiring bodyguards or drivers while working.  Without these supports, prostitutes may proceed to unknown locations and be left alone with clients who have the benefit of complete anonymity with no one nearby to hear and interrupt a violent act, and no one but the prostitute able to identify the aggressor.

5.      The communicating provision can increase the vulnerability of street prostitutes by forcing them to forego screening customers at an early and crucial stage of the transaction.

Yosie Saint-Cyr has a great blog post about the decision at Slaw.ca: Decriminalising the Oldest Profession in the World (Sept. 30, 2010).

The court referenced several reports and studies about the experiences of prostitutes in Australia, Germany, The Netherlands, New Zealand, Sweden, and Nevada, U.S.A.

Additional resources for more information about legalization of prostitution around the world include: 

• Elaine Mossman, International Approaches to Decriminalising or Legalising Prostitution (New Zealand Ministry of Justice, October 2007)(includes lists of countries that have legalized prostitution or decriminalized, but heavily regulate, with citations)
• 100 Countries and their Prostitution Policies (ProCon.org)
• Jo Bindman & Jo Doezema, Redefining Prostitution as Sex Work on the International Agenda (Anti-Slavery International, 1997)
• Update:  Report on the United States of America (November 2010)(submitted by the Best Practices Policy Project, Desiree Alliance, and Sexual Rights Initiative for the 9th session of the UN Universal Periodic Review; focuses on violations of civil and human rights of those engaged in sexual trade and sex work in the U.S.; summary) 

Organizations

• Pivot Legal Society (sex work law reform, Canada)
• Prostitution Research & Education(PRE):  Laws
• NSWP (global network of sex works projects; @GlobalSexWork for international news on Twitter)
• The Sex Workers Project (SWP; legal and social advocacy)
• Sex Workers Outreach Project USA (SWOP)(established December 17th as the International Day to End Violence Against Sex Workers)
• International Committee on the Rights of Sex Workers in Europe (ICRSE)

Banned: Hiding Your Face in a French Public Place

The French Senate passed a bill (no. 161), 246-1, banning concealed faces from public spaces on September 14, 2010 - Projet de loi interdisant la dissimulation du visage dans l'espace public.  Violators face fines of up to 150 euros (about $190) and they may be required to complete a French citizenship course (Penal code, article 131-16). The law also prohibits forcing someone to hide his or her face in public on the basis of gender, with an added penalty for forcing minors to conceal their faces.  Those who force others to hide their faces encounter harsh penalties, including fines of up to 60,000 euros, and up to two years of jail time.  The French National Assembly approved the bill 336-1 on July 13, 2010.

The ban does not apply to facial attire prescribed or authorized by law, or for such attire required for health or professional purposes.  Nor does the ban apply to attire that conceals faces in sports, during holidays, or at artistic performances or traditional events.  More information about the bill is available via its legislative dossier (in French). 

The Constitutional Council has a month to review the bill for constitutionality. Should the bill bridge unconstitutionality and implementation hurdles, who could be affected?  Official statements indicate the the new law targets Muslim women wearing burqas, niqabs, or other full face veils, but the bill does not expressly mention the Islamic veil.  Are there other types of face coverings banned?  And what must a woman feel like when a police officer orders her to unveil in public?

There are varying reactions to the ban (see To Ban the Burqa, Or Not?), including a pro-ban idea of a basic norm that face-to-face interactions are necessary in public spaces.  To participate in public life, "we need to be able to recognize others and be recognizable in turn (and not just by way of biometric scanners".  On the anti-ban side, the bill could violate Muslim women's human rights to freedom of religion and freedom of expression.

There are no official translations yet, but there is an unofficial translation of the bill from a "French burka ban is fine by me" blogger, Glomarization, Esq.

Muslim Headscarves (BBC News) 

The Burqa - "Mobile Prison" Or A Woman's Right?

Photo by Dirk Haas

Several recent blog posts discuss the Islamic veil controversy in Europe.  

University of Chicago law professor Martha Nussbaum, in her New York Times Opinionator Blog post, "Veiled Threats," argues that proposed bans on the burqa are discriminatory and "utterly unacceptable in a society committed to equal liberty."  She notes an inconsistency in the security argument that people must show their faces in public spaces:

"It gets very cold in Chicago – as, indeed, in many parts of Europe. Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths.  No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.  Moreover, many beloved and trusted professionals cover their faces all year round: surgeons, dentists,     (American) football players, skiers and skaters. What inspires fear and mistrust in Europe, clearly, is not covering per se, but Muslim covering."

In her response to reader comments, “Beyond the Veil,” Professor Nussbaum expands on the meaning of equal respect for persons in this context:

From the time when Quakers and Mennonites refused to doff their hats, and when both Mennonites and Amish adopted “pre-modern” dress, we Americans are pretty comfortable with weird clothes, and used to the idea that people’s conscientious observances frequently require them to dress in ways that seem strange or unpleasant to the majority…I think one should listen to what women who wear the burqa say they think it means before opining... In any case, what business is it of government to intervene, if there is no clear public interest in burdening liberty of conscience in this way?...What respect for persons requires, then, is that people have equal space to exercise their conscientious commitments, not that others like or even respect what they do in that space.  Furthermore, equal respect for persons is compatible, as I said, with limiting religious freedom in the case of a “compelling state interest”…

 

 

Photo by Jay Galvin

The Peace Palace Library, in its "The Islamic Veil, Secularism and Freedom of Religion" blog post, provides an overview of the arguments for and against proposed bans on public use of full-faced veils in Europe, with a number of useful links.

Arguments for banning Islamic veils include that they threaten security, secularism, and European and national identity. The veils, according to those who would ban them, discriminate against women, violate their rights, and symbolize sexual inequality and male dominance.  And according to the European Parliament's Silvana Koch-Merin:  "The burqa is a massive attack on the rights of women. It is a mobile prison."

 

Photo by kamshots

Commentators who oppose banning the Islamic veil argue that legislating against the veil violates women's rights to freedom of expression and religion, and women's rights to choose how they express their identity and beliefs.  

Sara Silvestri, in “Europe’s Muslims:  Burqa Laws and Women’s Lives”, notes  France’s Assemblée nationale’s July 13, 2010 vote to ban the wearing of the Islamic veil in public with the passage of the projet de loi interdisant la dissimulation du visage dans l’espace public.

Drawing from her research on Muslim dress and Muslim integration in Europe, Silvestri breaks down the burqa debate into conflicts between law and politics, religion and fashion, rejection and respect, and the state and the individual.  She concludes that the debate about the Islamic veil should focus on education about respecting individual Muslim women.

Finally, on June 23, 2010, the Council of Europe Parliamentary Assembly adopted Recommendation 1927 on “Islam, Islamism and Islamophobia in Europe”, which calls on member states:

“not to establish a general ban of the full veiling or other religious or special clothing, but to protect women from all physical and psychological duress as well as their free choice to wear religious or special clothing and ensure equal opportunities for Muslim women to participate in public life and pursue education and professional activities; legal restrictions on this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen.” (emphasis added)

Photo by Lyonette Louis-Jacques