Effects of Psychopathology on Adolescent Medical Decision-Making

The legal status of juveniles has undergone dramatic changes in the last three decades, most notably with Supreme Court rulings that extended constitutional rights to minors charged with criminal acts and those seeking abortions. The original intent of these cases was to protect juveniles from "excesses of paternalism" in the juvenile justice system, and to promote the best interests of pregnant minors. For example, Bellotti v. Baird established the necessity of adolescent access to abortion without parental consent. In so doing, the Court predicated the validity of the adolescent's consent on the minor's maturity, as assessed by judicial review. "Maturity" was equated with the competence attributed to adults in a similar position, who are presumed competent by virtue of their age of majority, unless proven otherwise. Thus, inherent to the decisional rights granted by Bellotti and other cases is the assumption that adolescent competence is equivalent to adult competence. The judicial system presumes that adults are competent to function autonomously unless proven incompetent. Proof of incompetence in adults derives from the informed consent model of medical decision-making: adults cannot give valid consent if they are incapable of the minimal abilities of indicating a choice, understanding and appreciating their condition or situation, or demonstrating rational cognitive processes.

The inverse standard of competence generally applies to adolescents. Persons under the age of majority are presumed incompetent to function autonomously. Establishing adolescent competence requires disproving incompetence. However, some judicial rulings regarding adolescent competence, discussed in this Article, have accepted the proposition that an underage person who can meet the minimal criteria of choice, understanding, and appreciation used to disprove adult incompetence is as functionally autonomous as a competent adult. But within the realm of empirical research, this is a questionable assumption, because relatively little is presently known about the nature of adolescent functioning and how it compares to adult functioning. Judicial rulings have not sufficiently considered the extent to which the abilities of adolescents to make "mature" decisions are indeed qualitatively different from those of adults, thus ignoring the possibility that using adult criteria to establish adolescent competence may result in a misrepresentation of adolescent functioning and competence.

Nonetheless, in the wake of Bellotti and Gault, the judicial system began imposing greater responsibilities on adolescents for their behaviors. As juvenile crime rates began to rise exponentially in the 1980s, legislators made community safety a priority in determining punishment for and other deterrent responses to juvenile crime. Concurrently, political action groups opposed to abortion for adults identified adolescent abortion rights as the most vulnerable target for inroads to overturning Roe v. Wade. Thus, the definition of a "mature minor" has become controversial, and describing adolescents' abilities has been made difficult by issues only obliquely related to empirical research.

Much of the early psychological research supporting the initial policy changes in adolescent legal and medical competence arose from advocacy promoting respect for the individual needs, rights, and autonomy of children. The methodology of these studies was often grounded in outdated theories of cognitive stage development and resulted in overly broad assertions that there are no differences in the decision-making capacities of older adolescents and adults. However, careful consideration of relevant judicial rulings and evidence from research on adolescent development poses a challenge to this approach. At stake is the societal tradition of patens patriae towards adolescents, the historical desire to protect the young from poor medical and legal decisions that can leave lifelong consequences for the youths themselves and for society.

This Article reviews one of the major threats to competent medical decision-making, psychopathology, as it occurs in adolescents. Psychopathology in adults is one of two major threats to adult competence, the second being mental retardation. Assuming that competence arises through developmental processes, the disruption to development caused by psychopathology may pose an even greater threat to adolescents than to adults. The first Section of this Article considers legal developments in adolescent medical decision-making. The second Section describes the general effects of adolescent psychopathology, especially as they relate to treatment and decision-making considerations. The third and concluding Section discusses the implications of adolescent psychopathology for adolescent medical rights and responsibilities and suggests directions for future research.

How Common-Sense Psychology Can Inform Law and Psycholegal Research

Over the last twenty years, the legal system has seen a variety of psycholegal research studies and advocacy efforts aimed at informing the law about legally relevant psychological issues. Cognitive psychologists have examined the accuracy of eyewitness testimony, social psychologists have studied jury decision-making, forensic psychologists have examined predictions of dangerousness and competency to stand trial, and developmental psychologists have examined children's competency and the accuracy of children's testimony. Psycholegal researchers have been involved in public interest litigation, legislative decision-making, criminal justice interventions, and United States Supreme Court advocacy. The American Psychological Association ("APA") has submitted amicus curiae briefs on a wide variety of issues, including adolescent competence to consent to abortion and special procedural protections for child witnesses testifying against their alleged abuser. The APA has also been an advocate in state trial and appellate courts, as have professional organizations like the American Academy of Child and Adolescent Psychiatry and the National Association of Social Workers.

While the impact of social science on law at times is substantial and occasionally even decisive, relevant research often is ignored or dismissed as irrelevant to the legal question. One example is research and a book by the Society for Research in Child Development on children's competence in legal contexts. The need to determine a child's psychological competence to provide legally valid consent provides an ideal opportunity for social science to shape legal policy. Nevertheless, the book's impact on law was "less than overwhelming" as measured by its frequency of citation in legal opinions.

Other examples are found in recent court cases in which "a great deal of expert testimony and scientific data was presented to counter myths about homosexuality, [and] courts still have found reasons to doubt the credibility of this evidence." Finally, examples of disregarded social science research abound in the 92 trial procedure cases decided by the Supreme Court between 1977 and 1988 in which directly relevant social science research was brought to the Court's attention. Despite over 70 studies of mock juror behavior and over 120 books and articles on the psychology of trial practice, only one majority opinion relied on the research. In 12 recent cases where there was strong scientific evidence on trial procedure, the Court decided 10 cases directly contrary to that evidence and indicated in the other two that it was not relying on the research in its holding.

Thus, efforts to influence law by presenting research findings to courts have not been widely successful, at least not as successful as social scientists had hoped. Though social science has had a significant impact on legal scholarship, "scholars have noticed that courts seem particularly averse to social science, displaying hostility toward it . . . and rejecting science as no more reliable than intuition." When research findings are cited in court opinions, they may only serve as a makeweight for the desired result. Although it has been written that "judicial decision-making represents social science in action," that decision-making often seems somewhat impervious to psychological research. This Article outlines specific research, methodological, and legal advocacy implications of a "common-sense psychology" approach to psycholegal research and advocacy. Advocates of an empirically grounded jurisprudence call for "social science in law," but the thesis of this Article is that psycholegal researchers must also use "law in social science," by considering the common-sense psychology ("CS-psychology") – the lay knowledge of human behavior-inherent in law. Much of law is a codification of various CS-psychologies, and social science research typically will be ignored when it fails to take into account the CS-psychology already embodied in law. The use of CS-psychology in psycholegal research and advocacy should improve the prospects for psycholegal research to influence law. As discussed in this Article, CS-psychology is a valid source of empirical data that provides fertile ground for conceptualizing, evaluating, and using psycholegal research. First, it is instructive to review briefly the troubled relationship between law and psycholegal research.

Articles

The Specially Investigated President

For the past decade a series of long-term investigations by Independent Counsels occurred in parallel with those of special congressional committees. These investigations have resulted in the imposition of a new legal status for the president. This new status re-orients the long-standing tension that exists between the bounds of presidential power and the president's vulnerability to legal suit. The parallel special inquiries into the subjects of Iran-Contra, Whitewater, and the Monica Lewinsky matter, among others, successively bedeviled Presidents Reagan, Bush, and Clinton. For all the marked differences among the investigations by Lawrence Walsh, Kenneth Starr, and the special congressional committees, collectively, these investigations have taken the past three presidents down a new path with deep, fundamental significance for which the existing legal literature lacks an analytic framework.

Under this new system each president has experienced a formal initiation of parallel special investigations that precipitated him into a changed legal status. Having been targeted by a formal accusatory process, each president has traded charges and countercharges with investigators under the full glare of national attention; endured extensive evidence-taking, including personal questioning of a kind that historically was largely unknown to the Presidency; and received significant interim partial condemnations in the form of denunciatory congressional reports and verdicts in Independent Counsel trials of close associates. The whole nation has watched as these parallel special investigations built potential criminal cases against these presidents.

Yet none of these presidents ultimately faced a probability of indictment, trial or impeachment. Using presidential powers to resist the investigations (e.g., by raising objections that, while proper, tend to delay document or testimony production) and, often more importantly, to limit their damage, each president maintained and rebuilt his presidential political status, through innovative and legitimate means. Moreover, through this lengthy parry-and-thrust between the investigations and the presidents, the new system itself evolved, with constitutional precedents, statutory rewrites, and the rise of major legal institutions like the White House Counsel's office. Each president thus experienced a novel cycle of legal and political struggle over the charges without indictment. Each passed through the new status of the specially investigated president.

This Article argues that this new legal status experienced by recent presidents plays out today in a process that has evolved in an unprecedented direction within just a few years. This process reflects a modern version of the age-old constitutional tension regarding the balance between two poles in disputes involving the president: his amenability to legal accusation and prosecution as an individual and his unique power as president to defend the office of the presidency against legal accusation and prosecution. Past legal struggles involving the president presented many elements similar to those recurring in the new system, such as executive privilege, limited presidential amenability to suit, congressional powers of inquiry including witness immunity, and defensive executive powers like pardons or state secrets invocation.

Such struggles take place along an overall polarity. On the one hand, the Constitution keeps the president open to the legally accusatory processes, representing the "rule of law" and does not let him rise "above the law." This amenability is symbolized by the piercing of executive privilege in United States v. Nixon. Moreover, the decision in Morrison v. Olson, upholding the constitutionality of the Independent Counsel statute, decisively crushed the traditional constitutional defense available to the president, namely that his "unitary Executive" power entitled him to control legal investigations unleashed against him. Morrison essentially rendered much of the prior debate on this issue outmoded.

Still the separation of powers tension created by special investigations of the president and the defenses available to him has changed, not ended. This tension stems from the fact that while the president as an individual is not above the law, the office of the presidency is so vital to the political process, a number of safeguards exist to prevent it from succumbing to the legal accusatory process. The office of the president has been equipped with a number of tools designed to protect the office from attack. To articulate the new defenses being used by the president, and to analyze them then, is the challenge. The presidential prong of the separation of powers tension now operates more subtly than the old claims of formal and absolute Executive immunity or control. Now, the reformulated presidential defense position draws more directly upon the primacy of political processes in a democracy. A president can no longer fight back in the name of Executive immunity as the supreme embodiment of sovereignty. Rather it is in the name of the political processes that he actually resolves his fate during the long years of a special investigation. The president still possesses, by virtue of election, a constitutional position strong enough to defend himself and to limit the damage a special investigation and the threats of indictment or impeachment can do to his presidency as much or more through political as through legal means.

Specially investigated presidents and vice presidents have deployed their political ability to blunt, to parry, and to outlast the accusations against them. Vice President George Bush successfully asserted an interim legal-political defense in 1987-88 and again in 1992. The Clinton administration thus far has successfully defended itself against accusations throughout President Clinton's tenure in office. The presidential side of the separation of powers tension not only describes these efforts as effective, it also justifies them normatively. Each defense asserted by these recent presidents serves not the former goal of maintaining the head of state in commanding position, but a new goal. They keep the legally accusatory processes from wholly displacing combative political processes for most, if not the entire time the nation focuses on the investigations in the scandal-centered Washington climate-political processes by which a healthy democracy lives.

Undertaking the challenge of devising an analytic framework for this new presidential status takes on importance for two reasons. Any follower of national news will recognize that this new presidential status seems to have become one of the cynosures of federal legal affairs. Second, for all the criticisms of its slow operation, the system in which the new presidential status plays out appears to be here to stay. If the system continues to operate as it does currently, the balance between the legal accusations and the White House's subsequent political resistance will continue as the main dynamic aspect of the president's relation to the law in our time.

This Article seeks to develop an analytic framework to explain, as a coherent whole, the diverse issues surrounding the current legal state of the presidency and to advance some principles to guide reform of the system. The analytic framework consists essentially of a contrast between two opposing perspectives on the half-dozen or so chief legal elements of the president's new legal status. One perspective corresponds to the traditional position, but today draws on the heightened sensitivity to ethics in current public affairs: the notion that the president must not be a king standing above the law. Under this perspective, the president must have no special immunity, privilege, or control power to block the operation of legally accusatory processes. Instead he must serve as the proper subject of multiple potent investigative efforts by prosecutors and congressional committees. This "President as Investigative Subject" perspective sees presidents as tempted to abuse power with the help of the loyal White House staff and the presidentially appointed Attorney General. As such, strict policing of the legal separation between the president's personal and official capacities must occur, as reinforced by Clinton v. Jones. White House perjury and obstruction of justice by the proactively self-shielding president and his staff are seen as particularly dangerous problems, necessitating what will be called "secondary investigations."

The opposing viewpoint argues that, in the constitutional interest of the primacy of democratic processes, the president has a political right to manage the impact of the investigations. This viewpoint opposes the lack of accountability inherent in the expansion of investigations by Independent Counsels" and by some of the special congressional committees. This second viewpoint calls the White House task, "management of the inquisition" whereby the president, with his official legal arm, the White House Counsel's office coordinating the president's multiple capacities, wields legitimate powers of resistance and damage limitation. This perspective denounces investigations that inappropriately threaten much more injury to the president's constitutional role than the mere lawsuits barred in Nixon v. Fitzgerald, and end-run the constraints that have made rare the actual prospect of impeachment trials or indictments of presidents.

From the "management of inquisition" view, the late-stage "secondary investigation" phases embraced by Independent Counsels and special commit- tees pose a particular separation of powers danger. They make presidential self-defense a separate late-ripening offense and prolong the anomalous legal status imposed upon the president for entire presidential terms. This perspective finds its vindication in the survival and even thriving of the White House Counsel's office amidst all recent controversy over its activity and reflects the felt necessity for the president to wield effective defensive power.

Part II of this Article details the past decade of the specially investigated president. It sketches this new status chronologically, from Iran-Contra to President Bush's 1992 pardoning of the Iran-Contra defendants through the various Clinton Administration investigations in Clinton's first and second terms. I have had an opportunity to study this sequence of investigations and the evolution of the specially investigated president from the sides of both the investigator and the investigated.

Part III of this Article describes two prevailing analytical perspectives and the new politico-legal status of the specially investigated president as a whole, highlighting the importance of the use of presidential power in his self-defense. In Parts IV and V, six distinguishable elements are separated and analyzed from the two opposing viewpoints of president as mere "investigative subject" and president as legitimate manager of the inquisition. Part IV deals with the three basic elements of initiation and enlargement of parallel investigations.

These three basic elements are: the initiation of each new, long-running special investigation of the president; the complex, partly constitutional system that now decides the boundary questions of enlargement, especially durational extensions, of the special investigations; and, the significance of the Congress and the Independent Counsels conducting parallel investigations.

Part V continues with three advanced elements: the probing of multiple presidential capacities, late-stage secondary investigations, and privileged official representation. Part VI, the conclusion, advances from this analytic framework to explore principles for refining the new system surrounding the specially investigated president. Each of these perspectives can point to the controversy surrounding the legal institutions--the Independent Counsels and the special committees on one side, and the White House Counsel on the other--lauding the continuation of the institutions on its side and criticizing the institutions on the other. From the "President as investigative subject" viewpoint, the investigating institutions draw vindication from Morrison v. Olson, the re-authorizations of the Independent Counsel statute, and the reestablishment of special congressional investigating committees. From the other viewpoint, the special investigations have run amok, while the White House Counsel's office has established and legitimated itself as a linchpin in the president's relation to the law.

The proposed principles follow from recognizing that this remarkable system balancing roughly the legally accusatory and the political processes will not only pose the constitutional and other issues noted in the analysis, but, assuming it is here to stay, will also require certain reforms. I propose that among the most vital of reforms, above everything else stands the desirability of a process for sanctioned, gradual return of an Independent Counsel investigation back to the Justice Department--not just a release, partially, of the president from the specially investigated status, but, more important, a release of national political affairs from preoccupation with the president's never-ending "trial." Additionally, these sections propose recognition of the president's right to orchestrate a legitimate defense, including clarification of the role of the White House Counsel, and of the degree of budgetary accountability in the special investigations. Overall, this analysis points to a future of conscious balancing of the legally accusatory and the legitimate political aspects of the specially investigated president.

Jurisdiction Over Persons Abducted in Violation of International Law in the Aftermath of United States v. Alvarez-Machain

On June 15, 1992, the United States Supreme Court rendered a landmark decision that affected not only American jurisprudence, but international law as well. Besides resolving an immediate dispute about a defendant abducted from abroad, United States v. Alvarez-Macbain also initiated a worldwide change in international law. Although the decision was narrowly written, it has become the template courts use to analyze a range of similar events, which continue to surface.

The international effects of Alvarez-Machain are important not only for understanding the issues and for predicting outcomes for subsequent cases, but also for studying the evolution of international law. Alvarez-Machain served as the impetus for the United States' decision to sign an agreement with Mexico, the Treaty to Prohibit Transborder Abductions of November 23, 1994, that expressly provides for the prompt return of an abductee and strips domestic courts of jurisdiction to try such an abductee. In so doing, the agreement effectively overrules the outcome of the Supreme Court's decision in Alvarez-Machain. Even more interesting is the influence of Alvarez-Machain on the evolution of a contrary rule of customary international law. This evolution was largely provoked by strong opposition from foreign states and international bodies to the U.S. Supreme Court's reasoning. The rule of customary international law has been established even faster than the U.S.-Mexican treaty amendment, which has not yet entered into force. The boundaries of such a new rule of customary international law (the existence of which is established in this Article) will surely be tested as cases of international abductions continue to arise; the Yugoslav War Crimes Tribunal may well provide the forum for such a test.

In Alvarez-Machain, the Supreme Court held that federal courts have jurisdiction over a defendant abducted from abroad under the auspices of governmental authority, despite the existence of an extradition treaty with the state from which he was abducted.

The following analysis of state practice in matters of international state-sponsored kidnapping updates former studies. The first section provides an outline of sources and evidence of customary international law, and examines the scant practice of international organizations. The second part concentrates on recent decisions by foreign courts. The third section analyzes reactions by individual governments in the aftermath of Alvarez-Machain which might constitute opinio juris. This general evaluation of state practice attempts to show that customary international law precludes a state from exercising jurisdiction over persons whom its agents have abducted in violation of international law. Furthermore, such a rule does not depend upon the existence of an extradition treaty between the abducting state and the state whose territorial sovereignty is violated.

For purposes of this Article, an abduction in violation of international law will be defined as a seizure of a person by force against the will of the territorial sovereign without justification under international law. The seizure has to be performed by persons whose actions can be attributed to a state. Thus, seizures by private parties without participation of the state are not a subject of this Article.

Comment: From Baking Bread to Making Dough: Legal and Societal Restrictions on the Employment of First Ladies

This Comment argues that society should allow First Ladies to maintain outside employment during their husbands' presidencies. First Ladies do not currently face any legal restrictions preventing them from taking either a government job or outside employment, though the laws restricting government jobs may well change in the future, and negative public opinion regarding First Ladies who interfere with government policy may prove prohibitively restrictive. Regardless, the public and press should not only tolerate but support a First Lady's career outside the White House. Such a career may present the appearance of a conflict of interest to the voting public, but professional political wives have shown such adeptness at avoiding and diffusing conflicts that this problem should not prevent a First Lady from continuing with her outside employment.

This Comment consists of five Parts. Part I explores the traditional role of the First Lady, and suggests that the increase in the numbers of women in the workforce may make that traditional role less desirable for some First Ladies. Part II sets forth the legal and societal restrictions that might impede a First Lady's employment options, whether she aspires to take a government job or seek private employment. Part III considers four potential careers--government employment, nonprofit employment, corporate board member, and attorney--that the First Lady might pursue and illustrates the legal and societal restrictions involved in each. This Part goes on to discuss the experiences of prominent political wives in each of these professions. Part IV argues that legal and societal restrictions should not prohibit a First Lady’s outside employment if she wishes to continue in her career, because the First Lady’s traditional duties are not logistically indispensable, whereas her outside employment may be good for the country. Part V looks to the future – the presidential election in the year 2000 – and shows that the transition from traditional First Ladies to working First Ladies has not yet been negotiated fully.

Comment: Political Realism and the Judicial Imposition of International Secondary Sanctions: Possibilities from John Doe v. Unocal and the Alien Tort Claims Act

On March 25, 1997, U.S. District Court judge Richard A. Paez of the Central District of California in John Doe I v. Unocal Corp. ruled that American and foreign companies doing business abroad can be held liable in U.S. courts for human rights violations committed solely by a foreign partner, even when that foreign partner is a sovereign state, thus enabling plaintiffs to seek a verdict on the merits in their suit against Unocal. Although the law under which this suit was brought – the 1789 Alien Tort Claims Act ("ATCA") – putatively grants foreigners relief in U.S. courts for harms in violation of international law, the conditions of Unocal leave open a much broader use of the ATCA than a limited application to human rights cases. Because one of the defendants named in the suit is a French company with limited U.S. contacts, Judge Paez may plunge the judiciary into a foreign policy debate over the secondary sanctions that his holding seems to permit. By establishing American jurisdiction over these types of activities, the ATCA and the application of joint and vicarious tort liability may provide human rights activists, American labor organizations, and, conceivably, the U.S. government with a powerful tool against foreign "rogue" states.

Secondary sanctions have recently come into vogue among American congressional leaders as a coercive economic foreign policy weapon against foreign governments perceived to be hostile to American strategic or humanitarian interests. In terms of the degree of coercion, sanctions in general fall somewhere between diplomatic protests on one end of the spectrum, and military force on the other. Yet unlike traditional economic sanctions that forbid domestic firms from conducting business with the "rogue" state, secondary sanctions such as the Helms-Burton Act, the Iran-Libya Sanctions Act and various recent state and municipal procurement restrictions impose penalties on foreign companies conducting business with that state as well. As such, secondary sanctions are more aggressive than traditional economic sanctions.

This Comment investigates the use of the ATCA as a potential form of secondary sanction in pursuit of broader foreign policy goals. Using the ATCA and common law principles of joint tortfeasor liability as a foreign policy tool inevitably raises international jurisdictional issues as well as domestic legal and jurisdictional questions. Already, substantial research has been conducted on the legality of secondary sanctions in the Helms-Burton Act. However, that issue remains unresolved. Yet, are secondary sanctions sound from a policy (as opposed to a strictly international legal) perspective? More interesting, perhaps, is the question of why secondary sanctions of this nature have suddenly increased in popularity among the executive, legislative, and (possibly) judicial branches of the U.S. government, and what impact they may have on the international economic and political system.

Part I of this Comment describes the background of Unocal and discusses its implications for U.S. foreign policy and foreign investment in so-called "rogue" nations. Part II discusses the theory behind Unocal's expansion of the ATCA to include vicarious and joint tort liability, including the possible international jurisdictional and domestic separation of powers problems inherent in the issue. Part III reviews the concept of secondary sanctions or boycotts and the reasons behind their sudden popularity as a foreign policy tool. This Part discusses the concept of secondary sanctions using a political realist/neorealist perspective, arguing that such sanctions can be anticipated as a response to the growing fears of "system free-riding" and "relative gains" strategies by a precariously placed global hegemon. Part IV of this Comment, in turn, suggests that Unocal itself is a direct result of the concerns voiced in Part III and that the use of such lawsuits will likely increase, despite tenuous foundations in customary and treaty-based international law. Finally, this Comment argues that, despite the political questions such lawsuits will necessarily pose for the courts, an expanded joint tort liability for human rights abuses using the ATCA will likely complement, rather than conflict with, executive branch diplomatic efforts (whatever they may be).

Comment: Dissent and the Militant Democracy: The German Constitution and the Banning of the Free German Workers Party

. . .

After introducing the constitutional structure of the militant democracy, this Comment focuses on the case from which that judicial clarification arose, the banning of the right-wing extremist Free German Workers Party (Freibeitlicbe Arbeiter Partei, or "FAP"), using its details as a starting point to illustrate broader themes regarding the political context of party bannings. I will argue that the constitutional structure of the militant democracy, which was based on immediate postwar political sensibilities, sets up a dichotomy between political parties and associations which has now outlived its utility in achieving the drafters' intent. This effect can be seen in postwar political changes, specific aspects of the neofascism crisis, and the strained and problematic findings underlying the Constitutional Court announcement. To challenge the party-association dichotomy is not a small matter, given the importance of political parties to the postwar Germany democratic order, which is conceived as a party-based democracy (Parteienstaat). The challenge is nonetheless empirically supportable.

In the first half of the Comment, I introduce the militant democracy theoretically and historically and describe its constitutional moorings. I address the specific provisions for the banning of political parties, linking these with the conception of the postwar party-based state. Turning to the case of the FAP, I describe the organization, the political crisis in which the executive branch requested its banning, and the press announcement issued by the Constitutional Court in response.

In the second half of the Comment, I examine the consequences of the ban and question the relevance of the Constitutional Court's response to the neofascist crisis. I first consider intrinsic problems with the test set forth in the press announcement, questioning whether the party-association distinction stressed by the Constitutional Court corresponds any longer with the realities of the neofascist movement. I then move beyond the party-association distinction to a broader discussion of the wisdom of bannings. In this light, I examine the particular structure of the neofascist movement, the state's nonbanning enforcement repertoire and its use, and some potential adverse effects of bannings.

I conclude by asking what relation bannings have to democracy. I propose an alternative to what I call the static models of democracy, suggesting that a dynamic, discursive evaluation of militant democracy would render a more complete, more complex, and therefore more fruitful portrait of the democratic worth of the militant democracy. The continuing relevance of these issues is unfortunately underscored by the resurgence of extreme right electoral and extraparliamentary activity in Germany after a period of remission. The extreme right German People's Union took 13 percent of the vote in recent elections in Saxony-Anhalt. Alongside this news came a warning from the Verfassungsschutz that acts of far right violence were rising dramatically (up 27 percent in the last year) and could soon threaten the public order.

Book Review

Evaluating the Insanity Defense: Identifying Empirical and Moral Questions

The Mad, the Bad, and the Innocent: The Criminal Mind on Trial. Barbara R. Kirwin. Little, Brown, 1997. 306 pp.