Law Commons^™

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Martha T. McCluskey

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Stages Of Constitutional Grief: Democratic Constitutionalism And The Marriage Revolution, Anthony Michael Kreis

Anthony Michael Kreis

Malleable Law: The (Mis)Use Of Legal Tools In The Pursuit Of A Political Agenda, Manuel A. Gomez

Manuel A. Gómez

This paper explores the manipulative use of the law for political gain. It describes instances in which law is distorted and camouflaged under an apparent goal of pursuing justice, social change or development, but its real function is to facilitate the attainment of self-interested political gains or other ends. The malleability of law is illustrated in this article with a description of the social programs known as “Misiones Bolivarianas” implemented in Venezuela since 2004. The Misiones were ostensibly portrayed as effective government measures launched to reduce poverty and fight inequality in areas where traditional state institutions had failed.

Restorative Justice From The Margins To The Center- The Emergence Of A New Norm In School Discipline.Pdf, Thalia Gonzalez

Thalia Gonzalez

Legal Change, The Eighty-Third Cleveland-Marshall Fund Visiting Scholar Lecture , Gerald Torres

Gerald Torres

This Essay will proceed in the following steps. First, I want to propose a preliminary definition of legal change. As I hope to make clear, there are technical and non-technical dimensions to the definition. Second, I want to offer a preliminary definition of social change and social movements. Third, I want to build on the analysis of the late Professor Thomas Stoddard in which he sketched out a relationship between what he calls "rule shifting" and "culture shifting."' Finally, I want to describe what Professor Lani Guinier and I have come to call "demosprudence." I appreciate that it is not …

Synecdoche, Gerald Torres

Gerald Torres

This article suggests that the ideas of synecdoche and metonymy are not just figures of speech in which the part stands in for the whole. They are potentially useful metaphoric devices to understand the politics of institutional change through the inclusion of the formerly excluded. Capture: here the hazard is that those who find themselves in a position to use institutional power may find themselves subject to pressure to conform to the norms and values of those who have traditionally benefitted from the conventional use of that institution's authority. This will often be subtle and it may merely be a …

Exporting The Legal Incubator: A Conversation With Fred Rooney, Fred Rooney, Justin Steele

Fred Rooney

A legal conversion between Justin Steele, Executive Articles Editor of the UMass Law Review and Fred Rooney, Director of the International Justice Center for Post-Graduate Development at Touro Law Center.

Ghosts Of The Past And Hopes For The Future: Article 466 And Societal Expectations, Elizabeth Carter

Elizabeth R. Carter

This paper traces the history of the law governing component parts Louisiana Civil Code article 466 and its predecessor articles. It notes that civilian methods of interpretation do little to solve the ambiguity inherent in component parts and that stare decisis and jurisprudence constante only confuse the situation. The societal expectations test has been designed to account for these problems and has successfully resolved the ambiguities when it is correctly applied.

Vulnerable Populations And Transformative Law Teaching: A Critical Reader, Chapter 6 - Vulnerability In Contracting: Teaching First-Year Law Students About Inequality And Its Consequences, Deborah Post, Deborah Zalesne

Deborah W. Post

Traditional legal pedagogy fails to demonstrate the relationship of contract to the subordination of vulnerable populations. As a result, students rarely see the complex web of interrelationships where economic activity takes place or the legal regime that maintains it. Students are not taught how to interrogate the discourse or dismantle the systems and structures that oppress subordinated communities. This Essay describes a technique that we have developed to help students learn the meaning of law and its cultural, social, and structural significance. The traditional framing of the study of contract doctrine as one that is objective, neutral, and fair avoids …

Theorizing Agency, Susan Carle

Susan D. Carle

Progressive legal scholars today exhibit contrasting views on the scope of legal actors' agency in making "choices" about how to lead their lives. Feminist legal scholar Joan C. Williams, for example, challenges claims that women who leave the paid workforce to stay home with children have made a voluntary choice to take this path. Critical race scholar Ian Haney López, on the other hand, argues that the social construction of racial identity occurs precisely through the many voluntary choices members of both subordinated and dominant racial groups make about matters that implicate racial meanings. Williams contests the idea of voluntary …

To Forge New Hammers Of Justice: Deep-Six The Doing-Teaching Dichotomy And Embrace The Dialectic Of "Doing Theory", Barbara L. Bezdek

Barbara L Bezdek

This essay argues that the teaching-doing tightrope bemoaned among clinicians, while posing real tensions, is overdrawn. The asserted dichotomy is between the demands of teaching legal theory and of doing daily law practice for clients enmeshed in poverty. The dichotomy is misleading because the development of transformative legal theory arises repeatedly on the front lines of client work, and interdependently with the works of attentive scholars. Two bellwether cases, Goldberg v. Kelly and Javins v. First National Realty, illustrate the vital interdependence of justice-seeking scholarship and justice-serving representation of clients in challenging the reigning structure of legal rules and constraining …

Putting The S Back In Corporate Social Responsibility: A Multi-Level Theory Of Social Change In Organizations, Ruth V. Aguilera, Cynthia A. Williams, Deborah Rupp, Jyoti Ganapathi

Cynthia A. Williams