June 2011 Vol. 109 No. 8 THE REVIEW
ARTICLES

Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate

Jane S. Schacter

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, recent trial in federal court on the constitutionality of California's Proposition 8, which featured extended testimony by opposing political scientists on gay and lesbian political power. The Article argues that the marriage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinal and conceptual terms. It calls for a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process.

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After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law

David M. Uhlmann
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Williams v. Lee and the Debate over Indian Equality

Bethany R. Berger
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NOTES

A New Approach to Section 363(f)(3)

Evan F. Rosen

Section 363(f) of the Bankruptcy Code provides five circumstances in which a debtor may be permitted to sell property free of all claims and interests, outside of the ordinary course of business, and prior to plan confirmation. One of those five circumstances is contained in § 363(f)(3), which permits such a sale where the "interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property." While it is far from certain whether § 363(f)(3) requires a price "greater than the aggregate [face value] of all liens on the property"-the face value approach-or a price that is "greater than aggregate [economic value] of all liens on the property"-the economic value approach, this Note argues that, properly understood, both approaches should lead to the same result. More specifically, under this Note's strict textual approach, the choice between these two meanings of "value" in § 363(f)(3) is irrelevant; neither interpretation of § 363(f)(3) permits courts to authorize the sale of property securing underwater liens-that is, liens whose face value exceeds the fair market value of the property securing it.

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Infusing Due Process and the Principle of Legality into Contempt Proceedings Before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda

Gwendolyn Stamper
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