Law Commons^™

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Augustine, Lawyers & The Lost Virtue Of Humility, Bruce P. Frohnen

Catholic University Law Review

The leading edge of legal scholarship and practice in recent decades has evinced a commitment to progressive politics at the expense of constitutional governance, the rule of law, and justice understood as vindication of the reasonable expectations of both the public and the parties to any given case or controversy. This article argues that renewed understanding of the virtue of humility, rooted in a genuine concern to do good according to one’s abilities, rights, and duties, is essential to the maintenance of decency in the legal profession and society as a whole. Such virtue is allowed, if not required, by …

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Equality's Understudies, Aziz Z. Huq

Michigan Law Review

Review of Robert L. Tsai's Practical Equality: Forging Justice in a Divided Nation.

Lying And Cheating, Or Self-Help And Civil Disobedience?, Aditi Bagchi

Brooklyn Law Review

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

Dismantling The Master’S House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

University of Michigan Journal of Law Reform

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding …

The City And The Soul: Character And Thriving In Law And Politics, Sherman J. Clark

University of Michigan Journal of Law Reform

This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live?

Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and …

Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk

Northwestern Journal of Law & Social Policy

Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Abraham Lincoln And The Cardinal Virtue Of Practical Reason, Brett G. Scharffs

Pepperdine Law Review

Practical wisdom is an elusive concept. This Article focuses on a case in which Abraham Lincoln, prior to his election as President, participated (or more accurately did not participate) to frame a discussion of what practical wisdom means and how it makes a difference for lawyers.

The Right To Access To Justice: Its Conceptual Architecture, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The aim of this article is descriptive and analytical, rather than normative. This article aims to contribute to the current understanding of the ways in which modern legal consciousness builds, and is built by, the concept of access to justice. This concept, as part of the web of meanings that structures modern legal culture, provides the context in which modern subjects make sense of who they are and how they should interact with the world around them. This article examines the subjectivities, conceptual geographies, and interpretations of history created by the right to access to justice. It also examines a …

Introduction, Colin Crawford, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend …

Public Law, Precarity, And Access To Justice, Amnon Lev

Indiana Journal of Global Legal Studies

In the first part, I examine Thomas Hobbes' theory of commonwealth to see how it situates subjects in relation to justice. Hobbes famously founds his commonwealth on the equal subjection of all to the Leviathan, which is the equal subjection of all to law. We need to understand why he nevertheless needs to accommodate the diversity of society-the basic fact that some are weak while others are not-into the operation of the public law machine. As we shall see, the accommodation of social diversity is tied to a proto-liberal distinction between social spheres that relegates much of human life to …

Access To Justice For Collective And Diffuse Rights: Theoretical Challenges And Opportunities For Social Contract Theory, Colin Crawford

Indiana Journal of Global Legal Studies

This analysis consists of three principal parts. First, it briefly reviews the classical contract account that explains how and why individuals enter civil society, found in the writings of both Hobbes and Locke. The analysis then examines the limited extent to which classical contract theory treats questions of rights vindication or, in more modern terms, with questions of access to justice. Second, the analysis examines the nature of collective and diffuse rights claims and will make a case for their importance in the modern world. Third, the analysis seeks to identify arguments from the classical account that might be useful …

Cause Lawyering And Compassionate Lawyering In Clinical Legal Education: The Case Of Chile, Fernando Munoz L.

Indiana Journal of Global Legal Studies

In order to contribute from a situated perspective to a global narrative of access to justice, in the next sections I will trace the origins of compassionate and cause lawyering in the history of Chilean legal aid and training. Part II will explain how legal assistance to the poor was codified as a duty of legal professionals during the Middle Ages, in both canon law and in Castilian legislation. Part III will show that practical legal training, both in Spain and in Chile, began much later as the result of the ambition among prominent members of the legal profession to …

Public Defenders' Offices In Brazil: Access To Justice, Courts, And Public Defenders, Alexandre Dos Santos Cunha

Indiana Journal of Global Legal Studies

This essay discusses the impact of public defenders' offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts.

Part I presents the Brazilian public defenders' offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is …

Reporting Certainty, James A. Macleod

BYU Law Review

Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.

Yet the rhetoric of certainty persists. …

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

William & Mary Journal of Race, Gender, and Social Justice

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …

Mercy Otis Warren: Republican Scribe And Defender Of Liberties, Mary Kathryn Mueller

Bound Away: The Liberty Journal of History

An active proponent of republican government, Mercy Otis Warren had a significant role in the revolutionary period. She was a woman who was close to the action, well-acquainted with the central figures, and instrumental in bringing about the monumental changes in America in the late 1700s. Referred to as the “muse of the revolution,”[1] Mercy Otis Warren used her pen to significantly broaden the colonial understanding of a republican form of government and passionately promote it. From a collection of early poems and political satires written in the years preceding the war to her epic history of the revolution published …

A Case For Unforgiveness As A Legitimate Moral Response To Historical Wrongs, Hollman Lozano

Journal of Educational Controversy

Abstract:

The emergence of forgiveness as the preferred mechanism through which historical wrongs are addressed within reconciliation discourses has meant that for the people who cannot forgive or will not forgive, there are no alternatives other than insisting on forgiveness until it hopefully one day arrives. As such, the point of unforgiveness is to constitute an agentic space where the people who cannot forgive can articulate their stance in ways that not only allow them to articulate their resistance to the injunction to forgive, but also constitute alternative spaces whereby they can articulate their stance in inclusive ways. If we …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

Experiments With Suppression: The Evolution Of Repressive Legality In Britain In The Revolutionary Period, Christopher M. Roberts

Loyola of Los Angeles International and Comparative Law Review

This article is concerned with the structure of repressive governance, and how it has evolved historically. It examines this theme through an exploration of the manner which repressive laws and institutions evolved in Britain over the course of the late eighteenth century. In particular, it reviews the various measures that British authorities utilized and relied upon in order to confront a growing wave of calls for social and political reforms. These included a policy of aggressive prosecutions of dissidents; the creation of new institutions such as the Home Office designed to enhance the powers of the central authorities; extralegal measures …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Autonomous Doctrine: Operationalizing The Law Of Armed Conflict In The Employment Of Lethal Autonomous Weapons Systems, Peter C. Combe Ii

St. Mary's Law Journal

Abstract forthcoming