Law Commons^™

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

The Trauma Of Awakening To Racism: Did The Tragic Killing Of George Floyd Result In Cultural Trauma For Whites?, Angela Onwuachi-Willig

Faculty Scholarship

The act of witnessing the killing of George Floyd, a forty-six-year-old, African-American father, brother, partner, and son, at the hands of the police caused many white individuals to experience an epiphany about racism, specifically structural racism, in the United States. Following the horrific killing of George Floyd, many white people began to shift their thinking about the existence and prevalence of racialized police brutality, reconsidering the manner in which they had always viewed the world around them. Indeed, many white individuals began to recognize and acknowledge the varied ways in which whiteness worked to privilege them in our society, even …

Can Sandel Dethrone Meritocracy?, Robert L. Tsai

Faculty Scholarship

This is an invited review essay of Michael Sandel, The Tyranny of Merit: What's Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy's winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country.

I respond …

Making America A Better Place For All: Sustainable Development Recommendations For The Biden Administration, John C. Dernbach, Scott E. Schang, Robert W. Adler, Karol Boudreaux, John Bouman, Claire Babineaux-Fontenot, Kimberly Brown, Mikhail Chester, Michael B. Gerrard, Stephen Herzenberg, Samuel Markolf, Corey Malone-Smolla, Jane Nelson, Uma Outka, Tony Pipa, Alexandra Phelan, Leroy Paddock, Jonathan D. Rosenbloom, William Snape, Anastasia Telesetsky, Gerald Torres, Elizabeth Ann Kronk Warner, Audra Wilson

Faculty Scholarship

In 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of …

Memoriam: Justice John Paul Stevens, John G. Roberts Jr., David Barron, Alison J. Nathan, Christopher L. Eisgruber, Olatunde C.A. Johnson, Eduardo M. Peñalver

Faculty Scholarship

When Justice John Paul Stevens passed away on July 16, 2019, I was flooded with personal memories of my year clerking for him. The standard words of comfort when someone dies are that they will live on through the individuals that knew and loved them. Justice Stevens sat on the Supreme Court for more than three decades; his loss would be felt beyond those who knew him personally. I wondered how history would remember him.

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, Jonel Newman

Faculty Scholarship

A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.” …

Moneys' Legal Hierarchy, Katharina Pistor

Faculty Scholarship

This chapter discusses the way in which money is legally constructed and hierarchically structured. In financial markets, participants trade different forms of money, some of which is state-issued and some privately issued. A form of money is closer to the “apex” of the system the closer it is to entities that can issue liquid means or determine acceptable forms of payment, such as central banks and governments. During financial crises, market participants close to the “apex” are systematically advantaged. Various legal devices, e.g. property rights, collateral rights, or trust law, contribute to hierarchically structuring the financial system, by granting preferential …

Truth And Legitimacy (In Courts), Kenneth S. Klein

Faculty Scholarship

This Article draws upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as Supreme Court decisions, to develop an articulation of the meaning, role, and importance of truth in courts. It is frequently articulated that trials are a search for truth. But as insiders to the judicial system know, if this is so then it is a meaning of truth that differs what truth means in any other context. And exposing this definitional dissonance in turn exposes that the legitimacy of the courts rests on …

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan

Faculty Scholarship

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven Arrigg Koh

Faculty Scholarship

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.

This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:

(1) U.S. procedural provisions governing prison designation;

(2) international procedural provisions governing prison designation; and

(3) the relationship between imprisonment and broader theories of criminal punishment.

Through comparison of …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Representing Injustice: Justice As An Icon Of Woman Suffrage, Kristin Collins

Faculty Scholarship

In this Essay, written as part of a symposium on Judith Resnik’s and Dennis Curtis's sumptuously illustrated volume Representing Justice, I offer a historically sensitive interpretation of the figure of Justice in woman suffrage spectacle and propaganda. American suffragists were drawn to Justice as a symbol of women's claim to political and legal rights. Why? Surely one reason is that, as Resnik and Curtis demonstrate, by the early twentieth century Justice had ascended as a distinctively resonant symbol of law and law's legitimacy in a democratic polity. Precisely because Justice was a legible symbol of law's legitimacy, she was ripe …

Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …

Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.

Response, David B. Lyons

Faculty Scholarship

How can one reply to the presentations and discussion of this conference? I think in the same spirit. The paper that took issue most substantially with some writing of mine was Aaron Garrett’s, Courage, Political Resistance, and Self-Deceit. What I have called political resistance has proved difficult for philosophers to theorize about. Aaron helps us to understand it much better. I am truly grateful for that and I am delighted to have provided the occasion for his paper. The same goes for the other contributions to this conference, which address issues more deeply than I have found it possible to …

Justice And Elegance For Hedgehogs - In Life, Law, And Literature, Linda C. Mcclain

Faculty Scholarship

At a time when value pluralism and even value polarization seem to be undeniable facts of contemporary life, Ronald Dworkin unrepentantly defends the unity of value. His point of departure is the Greek poet Archilochus’s saying, “The fox knows many things, but the hedgehog knows one big thing,” made famous in liberal philosopher Isaiah Berlin’s essay, The Hedgehog and the Fox. In his forthcoming book, Justice for Hedgehogs, Dworkin argues for the integration of ethics, personal morality, and political morality and contends that law is a branch of political morality that in turn is a branch of morality, broadly understood. …

Uncertainty And The Advantage Of Collective Settlement Symposium: The Limits Of Predictability And The Value Of Uncertainty: Sixteenth Annual Clifford Symposium On Tort Law And Social Policy, Howard M. Erichson

Faculty Scholarship

Judgments are printed in black and white; reality comes in shades of gray. The settlement palette available to negotiating parties, unlike the adjudication palette available to judges and juries, offers a range of grays to suit the realities of uncertain liability, uncertain causation, and uncertain damages. Settlement thus offers certain advantages over adjudication. I am not referring to process advantages, such as speed, economy, privacy, and relationship preservation. Rather, I am referring to the idea that settlements may offer outcomes that more accurately comport with justice under the relevant facts and law. There is, of course, a long-running debate over …

Book Review, Jennifer L. Behrens

Faculty Scholarship

reviewing, Charles J. Ogletree, Jr. & Austin Sarat eds., When Law Fails: Making Sense of Miscarriages of Justice, (2009)

Narratives Of Oppression, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Knowing Law’S Limits: Comments On ‘Forgiveness: Integral To Close Relationships And Inimical To Justice?’, Kathryn Webb Bradley

Faculty Scholarship

No abstract provided.

Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain

Faculty Scholarship

Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting …

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Faculty Scholarship

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …

From Free Riders To Fairness: A Cooperative System For Organ Transplantation, Christopher Robertson

Faculty Scholarship

In America alone almost 100,000 people are suffering while waiting for organ transplants, and more than 7,300 of these patients will die waiting. Given that tens of thousands of useable cadaveric organs are buried or incinerated every year, the organ shortage is a social, political and legal problem, one that is inherent in the conceptual design of the current organ system. While the system is supposed to turn on individuals’ autonomous choices, it instead depends on default outcomes and the decisions of next of kin. While we tend to think about the organ choice as one of altruism (viz. -- …

A System Of Wholesale Denial Of Rights, Michael E. Tigar

Faculty Scholarship

No abstract provided.

"Respectful Consideration" After Sanchez-Llamas V. Oregon: Why The Supreme Court Owes More To The International Court Of Justice, Steven Arrigg Koh

Faculty Scholarship

This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default …

An Excuse-Centered Approach To Transitional Justice, David C. Gray

Faculty Scholarship

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Laugh Track, Jay D. Wexler

Faculty Scholarship

The Supreme Court may have its own police force, its own museum curator, and even its own basketball court, but unlike the courts of yore it has no Jester. As a result, the responsibility of delivering humor within the hallowed halls of One First Street falls squarely on the backs of the nine Justices themselves. But which Justice provides the best comic entertainment for the court watchers, lawyers, and staff that make up the Court’s audience on any given argument day? Surely many believe that Justice Scalia, with his acerbic wit and quick tongue, has provided the most laughs from …

Corrective Justice, Equal Opportunity, And The Legacy Of Slavery And Jim Crow, David B. Lyons

Faculty Scholarship

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims …