Law Commons^™

Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum

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Iowa held its 2010 judicial retention elections in the shadow of Varnum v. Brien, the 2009 Supreme Court opinion recognizing same sex marriage. As the result of highly politicized campaign, three talented jurists lost their seats on the Court.

This commentary examines that election and offers a structural solution that might better protect constitutional rights against majoritarian intimidation.

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

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John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that "the principles and policies they advocate and vote for can be supported by the political values of public reason." This so-called "duty of civility" obligates us to cast our votes on "constitutional questions and matters of basic justice" for reasons that we can explain in terms of the public good and the "ideals and principles expressed by society's conception of political justice." Rawls contrasts these public reasons with "nonpublic reasons" - such as "comprehensive religious and philosophical doctrines" - which he claims cannot …

Thoughts On The Divergence Of Promise And Contract, Ian C. Bartrum

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This essay offers some brief thoughts on Seana Shiffrin‘s recent work regarding the divergence of contractual and promissory norms. The author conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. The author suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

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This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court's recent decision in Salazar v. Buono.

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

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The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

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Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

The Lady, Or The Tiger? A Field Guide To Metaphor & Narrative, Linda L. Berger

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Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate - with images and stories when possible - how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion.

The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, …

From Whether To How: The Challenge Of Implementing A Full Public Performance Right In Sound Recordings, Mary Lafrance

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The policy debate surrounding a public performance right in sound recordings has been well rehearsed for over 40 years. Despite increasingly strong arguments favoring the right, the political will has materialized slowly. The proposed Performance Rights Act (PRA) is the next incremental step. However, because it is limited to broadcast performances, it does not address performances in dispersed public venues (clubs, stores, bars, restaurants, noncommercial settings, and other venues where recorded music is played) as well as unique situations such as ringtones (which may or may not be public performances, pending further legislation or litigation).

Because it falls short of …

Getting Real About Legal Realism, New Legal Realism And Clinical Legal Education, Katherine R. Kruse

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Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes …

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

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This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

When Courts Collide: Integrated Domestic Violence Courts And Court Pluralism, Elizabeth L. Macdowell

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This Article proposes court pluralism as a new theory for analyzing the role of the justice system in addressing domestic violence. It argues that a systemic view of the justice system is essential to developing coherent reform strategies, and lays out the foundation for taking into account the unique functions of civil and criminal justice in domestic violence cases. In doing so, the Article challenges the one-dimensional characterization of a fragmented court system as bad for victims of domestic violence that dominates legal scholarship, and shows that court fragmentation can be an opportunity and potential source of protection from systemic …

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

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Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Reforming State Mental Health Parity Law, Stacey A. Tovino

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This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive …

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

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In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

Smith And Women's Equality, Leslie C. Griffin

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No abstract provided.

Can They Do That To Me - Does The Eighth Amendment Protect Children's Best Interests?, Maryam Ahranjani

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No abstract provided.

Social Reconstruction Of Race & Ethnicity Of The Nation's Law Students: A Request To The Aba, Aals, And Lsac For Changes In Reporting Requirements, Kevin Brown, Tom I. Romero Ii

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No abstract provided.

The Ip Law Book Review, Leah Chan Grinvald

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No abstract provided.

Shaming Trademark Bullies, Leah Chan Grinvald

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In September 2009, Hansen Beverage Company sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer. Hansen is a multi-million dollar beverage corporation and Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Hansen’s gravamen was that Rock Art’s “VERMONSTER” beer allegedly infringed on Hansen’s “MONSTER ENGERY” trademarks. Instead of capitulating, Rock Art Brewery fought back, taking to the virtual streets of the internet and galvanized public sentiment against Hansen’s. The end result was an amicable settlement agreement that allowed Rock …

Experiential Learning In The First Year Curriculum: The Public Interest Partnership, Nantiya Ruan

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The newest learning initiatives in legal education focus much attention on the necessity for teachers to support students' development of professional identity, including "civic professionalism,"which" link[s] the interests of educators with the needs of practitioners and with the public the profession is pledged to serve." See William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007). With that movement in mind, for the past five years in my legal research and writing (LRW) class, my students have partnered with non-profit organizations to provide them with legal research and advocacy documents to further the organization's public interest …

Procuring Meaningful Land Rights For The Women Of Rwanda, Aparna Polavarapu

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Land reform and gender equality are important development issues in post-Genocide Rwanda. Beginning in 1999, the government of Rwanda passed and implemented reforms which granted women rights to own and use land on an equal status with men. However, as is expected with widespread social reform, obstacles continue to inhibit widespread gender equality in practice. In Rwanda, major social obstacles manifest in the form of (1) resistance to allowing daughters to inherit land from their parents, (2) adherence to assumptions of female inferiority, and (3) the persistence of informal marriages, in which wives remain unprotected by the new laws. Interested …

"Flexible Citizenship" In Wena Poon's Short Stories: Writing At The Interstices Of Asia And America, Stewart Chang

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Professor Stewart Chang discusses the themes and interpretations of United States-based Singaporean author Wena Poon's short stories through the lens of "flexible citizenship."

Hyper-Incarceration As A Multidimensional Attack: Replying To Angela Harris Through The Wire, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper responds to a symposium article by Angela Harris, arguing "mass incarceration" should be understood as "hyper-incarceration" because it is targeted based on multiple dimensions of identities. He extends Harris's analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

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In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. …

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

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When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

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The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.

The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley

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Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …

Constitutional Challenges To The Health Care Mandate: Based In Politics, Not Law, David Orentlicher

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No abstract provided.

Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between The Morally Right And The Socially Feasible, David Orentlicher

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No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

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No abstract provided.