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Debunking Common Misconceptions About Professional Identity Formation and Our Take on How to Incorporate it into the 1L Skills Classroom
No full textDue to the American Bar Association’s (ABA) recent adoption of Standard 303(b)(3), the term “professional identity formation” is now used in a more widespread manner throughout law schools. But what, exactly, is it? And how, exactly, should it be introduced into the 1L curriculum? Further, why do law schools tend to downgrade the importance – or rigorousness – of professional identity formation? When they do so, they risk missing a critical opportunity to develop whole, purpose-driven, mindful future lawyers. We seek here to explain our unique take on professional identity formation, debunk some common misconceptions, and combat the relative institutional diminishment of the importance of 303(b)(3)
Constructing a Liberal/Progressive “Constitution in Exile”: An Appreciation of Jack Balkin’s Memory and Authority
Get PDFBalkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not reckoning with this history, they are unmoved by the criticisms.8 For another, he demonstrates that conservative originalists—like everyone else who makes originalist arguments—are “cafeteria originalists.”9 Thus, conservative originalists selectively use originalism and in fact avail themselves of the full menu of forms of constitutional argument in justifying decisions, just as their critics do.
The best rebuttal would offer more than just the common criticisms of conservative originalism. More importantly and constructively, it also would provide liberal/progressive counternarratives that use history, in the ways Balkin’s book proposes and illustrates, in making normative arguments about the best interpretations of our constitutional commitments. Indeed, Balkin’s book can serve as a manifesto and prescription for a form of liberal/progressive popular constitutionalism: demonstrating how best to use history in making arguments to build and maintain a liberal/progressive “Constitution in exile” over the next generation.
Here is a roadmap of this essay. First, I outline a typology of forms of popular constitutionalism, suggesting where Balkin’s Memory and Authority fits into this discourse. Second, I give five compelling reasons to appreciate and build upon Balkin’s project. Finally, I sketch briefly how Balkin’s book might inform Linda C. McClain’s and my current book project, “What Shall Be Orthodox” in Polarized Times. His book illuminates how our book might most effectively counter conservatives’ overextension of West Virginia State Board of Education v. Barnette’s11 famous warning—that government may not prescribe “what shall be orthodox”—in their challenges to liberal/progressive programs that seek to secure the status of equal citizenship for all
History and Authority: The Uses of History in Constitutional Interpretation
No full texthttps://scholarship.law.bu.edu/clark_speakers/1112/thumbnail.jp
Even a Trump Judge Agrees that Anti-CRT Laws are Pro-CRT
No full textIn a surprising turn of events, a federal judge recently upheld most of Oklahoma’s HB 1775, a law widely perceived as banning Critical Race Theory (CRT) in the state. However, the ruling delivered an ironic twist: Judge Charles Goodwin—a Trump appointee—clarified that the law does not prohibit teaching about race, racism, or related concepts like implicit bias. Instead, it compels such instruction, exposing a significant gap between the law\u27s text and the partisan rhetoric and public understanding surrounding it.
This ruling has broad implications for similar anti-CRT laws across the country, challenging the narrative that laws like Florida’s Stop WOKE Act silence discussions about racism in education. As stakeholders fight back and courts continue to weigh in, this decision could signal a major shift in the fight against discriminatory censorship in American classrooms
Counseling Oppression
Get PDFCritical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back the veil of the legal system and demystify it to allow clients and movements to address the system’s inner workings.This paper focuses on how counseling reinforces oppression, but also on what can happen when defenders and clients hold out this tension, examine it, and bring it into the counseling relationship. This more robust counseling already naturally occurs, and should be expanded in a principled and intentional manner. When defenders and clients embrace the contradictions at the heart of counsel and lay it bare, they can help transform the counseling site into a location where epistemes interact. Defenders and clients can collaborate, pool their knowledge, and trace back their constraints to the mechanisms that replicate systems of oppression. They can then go forth from the counseling site together, or separately, or with other partners entirely to forums where varied tactics can disrupt those underlying mechanisms
Opening Brief for Plaintiff-Appellant Rocky Freeman
Get PDFFor nearly two decades, while Rocky Freeman was in federal prison, the United States treated him like a contract killer who murdered two victims even though the U.S. Probation Office knew that this information was false, and the Bureau of Prisons (BOP) knew or should have known the same merely by looking at Freeman’s pre-sentence report (PSR). As a result, Freeman spent years subject to harsh conditions of confinement that he would not have experienced had probation or BOP officers acted with reasonable care. Since learning about this negligence, Freeman has sought repeatedly to remedy the various harms he suffered, including erroneous assignment to an institution with a reputation as the most dangerous BOP facility in the U.S. (where he was physically attacked by another inmate and could not see visitors), an unlawfully long stay in solitary confinement, and especially harsh restraints on escorted-medical trips.
Throughout this litigation, the government has sought procedural escape hatches. Most recently, after failing to raise the point in its first two dispositive motions, the government convinced the district court that Freeman had not presented his Federal Tort Claim Act (FTCA) claim and that FTCA presentment is a jurisdictional requirement. Both conclusions are wrong. FTCA presentment is a claims-processing rule, and the United States forfeited the defense by not raising it for nearly six years. Moreover, Freeman met any FTCA presentment requirement by submitting his claim to the Probation Office, which failed to either transfer it to the appropriate agency (the Administrative Office of the U.S. Courts) or return the claim to Freeman. With these technical traps out of the way, the government must confront Freeman’s negligence claim on its merits. And while the government has so far succeeded in thwarting Freeman’s legitimate discovery requests, its position on the merits still hinges entirely on disputed facts that must be resolved by a jury.
The district court erected another spurious procedural roadblock in the way of Freeman’s due-process claims against three now-retired probation officers, who failed to provide accurate records to BOP, proximately causing injuries relating to Freeman’s conditions of confinement. Acting without a lawyer, in forma pauperis (IFP), and still incarcerated, Freeman provided these defendants’ last-known addresses to the U.S. Marshal. When Freeman learned that they had not been served because they had retired, he consistently asked for help identifying their current addresses. Eventually, the district court ordered the United States to help, but when the government failed to comply, the court dismissed the individual defendants for lack of service, holding, despite 28 U.S.C. § 1915(d)’s mandate to the contrary, that Freeman was solely responsible for effectuating service.
This Court should reverse and remand so that Freeman can have his day in court on his FTCA and due-process claims
Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It
Get PDFThe nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.
America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.
As payors disvalue the bodies of those needing gynecological care, the medical profession has organized accordingly. Surgical training for Obstetrician Gynecologists (OBGYNs) is truncated as compared to other surgical disciplines. They are incentivized to pursue a mix of better-paid work, rather than pursue the advanced training and specialized experience necessary to perform surgery consistently. Instead, most OBGYNs may perform particular surgeries only a few times per year, a context shown to magnify the risk of preventable injuries.
Traditional approaches, under informed consent and medical malpractice laws, take for granted the fundamental economic structure that sets aggregate levels of risk. A range of laws, including a provision in the Affordable Care Act, do promise equal treatment. Close analysis, however, reveals a range of barriers to redress. Congress has made federal payment rates unreviewable by courts, even if illegal. Notwithstanding the federal government’s ironic immunity from its own laws, this Article suggests that private health insurers may be held liable for going along with the federal government’s discrimination, but it is difficult for individual patients to assert their interests in reorganizing the medical profession.
There are narrow and uncertain paths for legal accountability, but the political economy of this problem is no less daunting. Presently, overall Medicare payments are conceived as a zero-sum game, pitting patients against each other. Nonetheless, Constitutional litigation under the Equal Protection Clause may give voice to those working for the health of women in America
Limits to Asset Manager Adaptation
Get PDFIn Our Lives in Their Portfolios, Brett Christophers provides an account of the rise of ‘asset manager society’ – a world in which the infrastructures of public life are converted from public to private ownership. Here I use Christophers’ analysis to comment on growing calls for asset manager investment in climate adaptation. The asset manager business model requires ever-escalating returns, a poor fit with the now unavoidable losses that climate change promises to bring
Resistance Proceduralism: A Prologue to Theorizing Procedural Subordination
No full textSeveral legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.
Engaging in this practice—marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy—is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors’ freedom suits—lawsuits fighting for their freedom from slavery—to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism
Haitian Revolution and French Translations of American Constitutions in the 1790s and/or A History of Campus Speech and Institutional Neutrality in the 1960s
No full texthttps://scholarship.law.bu.edu/clark_speakers/1101/thumbnail.jp