Law Commons^™

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

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 …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

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.

Review Of Joel Richard Paul, Without Precedent: Chief Justice John Marshall And His Times, Pat Newcombe

Faculty Scholarship

This Article reviews Joel Richard Paul's book, Without Precedent: Chief Justice John Marshall and His Times. The Author found this scholarly work to be very readable. Paul relies on ample and deep primary sources, yet manages to present John Marshall in a very human and accessible way. This narrative would be an excellent selection for any academic or public library, especially those that collect in the American history area, and it is highly recommended.

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Protecting The Liberty Of Pregnant Patients, George J. Annas

Faculty Scholarship

We are seeing the beginning of an alliance between physicians and the state to force pregnant women to follow medical advice for the sake of their fetuses. No irreversible commitments to such an alliance have yet been made, but only a principled discussion of the issues is likely to prevent forced treatment from becoming standard medical practice.

In her futuristic novel The Handmaid's Tale, Margaret Atwood envisions a world in which physicians and the state combine to strip fertile women of all human rights. These women come to view themselves as "two-legged wombs, that's all; sacred vessels, ambulatory chalices." …