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Judges in Their Own Cases: Biblical Kings and Supreme Court Justices
Full text linkAllegations that the justices of the United States Supreme Court are judges in their own cases and that they judge themselves leniently are common. These allegations are often accompanied by an association with kings, queens, and monarchies, accountable to no one but their own divine authority. This Article took this association seriously and used the biblical story of prophet Nathan\u27s rebuke of King David for his sin towards Bathsheba and Uriah to explain the problems, tensions, and conflicting considerations of the contemporary recusal doctrine of the United States Supreme Court. This biblical judicial tale has two possible conclusions, depending on two possible different interpretations. The first interpretation appeals to Nathan’s status as court prophet and the caution it necessitates. A court prophet is a member of the royal court who is dependent on the king and is in his service. This interpretation illustrates the need for institutional arrangements that secure judicial independence and impartiality by guaranteeing the judge’s term of office or by drawing a line to separate proper judicial interactions and relations from inappropriate judicial ties to politicians, interest groups, wealthy benefactors, and other potential litigants. According to the second interpretation, the poor man’s ewe lamb parable is a juridical parable meant to induce David to judge himself by the same yardstick that he applies to others. This interpretation suggests an utmost need to install a neutral third-party review, stipulate discovery, provide a full explanation, and adhere to precedents. Despite the striking similarities between the legal conditions of biblical kings and Supreme Court justices, the Article concludes, after careful consideration, that the practices of Supreme Court justices are not like those of biblical kings. They are worse, much worse. The problem is not that the justices judge themselves but rather that, contrary to biblical kings, the rules and principles that are meant to regulate their self-judgment are almost nonexisten
Channeling a Federal Commitment to Education Through State Constitutions and Courts
Full text linkThis article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation of state education clauses, ensuring a minimum standard of adequacy and equity in educational guarantees, in alignment with Professor Black’s vision for a federal right to education
IDEA Manifestation Determination Review as Restorative Practice
Full text linkThis article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent implementation across states and schools, and discusses the limitations of the process in ensuring equal educational treatment for all students with disabilities
Imminence Should Not Be a Controlling Factor in the Duress Defense in the Context of Battered Women
Full text linkDomestic violence is a silent killer that attacks quickly. This Note specifically discusses the Battered Woman Syndrome and the need to explore the current laws that “protect” this group. Current laws in a majority of states create a barrier that blocks battered women from obtaining the justice that should be given to all citizens. When the abused woman is at an impasse in her relationship, she may be forced to make a life-or-death decision. More likely than not, the result becomes the worst possible outcome. Domestic violence continues to be higher amongst women than men, where women are emotionally, as well as physically, withdrawn due to the abuse. This Note considers the various possibilities that may be taken by the different levels of government. More importantly, each state legislature can ensure safety by removing the cruel measures that battered women face. This would therefore change the assessment of who the true victim is in self-defense scenarios. New York is one of the leading examples of states moving with a sense of urgency while maintaining the other aspects of criminal laws. This Note does not ask for battered women to not pay for the crimes they commit. Rather, this Note brings awareness to the issues that occur in the courtroom and a solution by allowing this vulnerable group to rehabilitate while getting a fair trial. The fair trial begins with a change in our policies to lessen the strict scrutiny that duress or self-defense claims require. Put simply, imminence should no longer be a controlling factor
“Improve Your Privileges While They Stay”: A Guide to Improve the Privileges of U.S. Citizenship for Everybody
Full text linkIn 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men to improve: “Caress, redeem each moment, which with haste / Bears on its rapid wing Eternal bliss.” Years later, Wheatley showed white Bostonians how to improve their privileges by her own example, when she secured her place as the John Milton of the American Revolution. In order to improve her privileges in this way, she had to print her books in England and import them into America for sale. After Wheatley’s revolutionary successes, the framers of the Patent & Copyright Clause, James Madison and James Wilson, seemed to take preexisting author owned copyrights in America for granted. But without Wheatley’s specific fashion of improving her own privileges internationally, there really was no such thing as preexisting common law (i.e., author owned) copyrights in England. Phillis Wheatley was the first to redeem Milton’s poetry by claiming it for the side of heaven in the United States. The lords and judges of England guessed at the basis for common law in the attestation of an author’s name, but their common law theories were all desolated by the House of Lords in 1774. Also, the printers of Boston likely would not have invited Wheatley to print as the owner of her own works so she sought an international deal. Luckily for all, Wheatley managed to print and export her books from London to America before 1774. Eventually, the privileges of the arts and sciences were opened to women and Black people respectively throughout the United States under the auspices of Wheatley’s original copyright. Many gradually inherited the privileges of the few, and Wheatley intende
Negotiation Map for Teaching and Practice
Full text linkNegotiations can move at lightning speed in unpredictable directions, leaving you seconds to instinctively act. Your instinct can be informed by first-hand experiences, formal education, and mistakes. You can boost your instinct by using the negotiation map in this article for tracking where you are and guiding where you and others should go to reach a resolution. This three-part map solves a puzzle that has confounded me for a couple decades. It offers a succinct and practical schematic that has the capacity to incorporate much of the exponential growth in literature and learning since Getting to Yes was published in 1981. I first became acquainted with this schematic six years ago, and have been employing a version ever since for teaching and practice. The map’s first part focuses on preparation—an obvious imperative that can be sacrificed in the rush to reach the second part to negotiate. The final part covers the conclusion of the negotiation. Bruce Patton, co-author of Getting to Yes, elegantly configured the negotiation process around a circle that he calls the circle of value. From a bird’s eye view, the center of the map consists of a negotiation circle with one preparation pathway for entry and two pathways for exiting toward conclusion.
In this article, I illustrate how the map with its seven stops weaves together five essential concepts from the widely used negotiation book Getting to Yes, concepts that are familiar to anyone who has studied negotiations. Negotiators should focus separately on the relationship; advocate for interests, not positions; invent options before selecting them; and use objective standards as a basis for selecting options. Negotiators should also know what is their best alternative to an agreement. The authors introduce a now widely adopted acronym, the BATNA (Best Alternative to a Negotiated Agreement), as the benchmark for when it may be better to leave the negotiation room. These five negotiation concepts, along with two others, are incorporated into the negotiation map to complete a unified negotiation model with seven stops. Each stop has the capacity to accommodate a broad range of negotiation choices and techniques that are commonly taught and practiced. The underlying three-part structure with its multiple choices furnishes a handy, stable and expansive map for teaching negotiations and approaching the inevitably unexpected in any negotiation
Externships for Equity
Full text linkThis article examines the crucial role of externships in improving employment outcomes for marginalized law students, who often face systemic barriers to success in the legal field. Despite advancements, these students continue to have lower employment rates after graduation, largely due to institutional failures. Externships offer a low-cost, high-impact opportunity for students to gain the competencies employers seek, thus significantly enhancing their chances of securing employment. By analyzing data, the essay highlights the positive effect of externships on marginalized students\u27 hiring outcomes. It also addresses broader questions on how legal employers evaluate candidates and proposes that expanding and supporting externship programs can help close achievement gaps, ensuring more equitable access to career opportunities for all law students
John Marshall and Felix Frankfurter: An Icon and a Disappointment?
Full text linkThis article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served
Courting Citation Consistency: Justice Frankfurter and West Coast Hotel Co. v. Parrish
Full text linkThis Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. First, they are classic statements of the jurisprudential principles for which, thanks in large part to Brad Snyder’s biography, Felix Frankfurter (FF) will be principally remembered. Second, each of the three citations of Parrish is true to that 1937 decision, thereby demonstrating FF’s unwavering commitment (as both a lawyer and a jurist) to the progressive belief in the societal value of minimum wage and maximum hours laws. In other words, with regards to West Coast Hotel Co. v. Parrish, FF was the very model of a citation-consistent Democratic Justice
Pandemics of Limitation of Rights
Full text linkThis Article discusses the limitation of rights due to pandemics. It analyzes from a constitutional standpoint the holding of the German Federal Constitutional Court (Das BUNDESVERFASSUNGSGERICHT) from April 2022 as a symptom of moral panic disguised through an analytical process. Though it focuses on this case, it sheds light on the moral panic that characterized many countries’ approaches during the COVID-19 pandemic. On April 27, 2022, the German Federal Constitutional Court held that a provision to provide proof of vaccination against COVID-19, recovery from COVID-19, or a medical exemption to COVID-19 vaccination as a condition of employment in the health and care sectors was constitutional. In the name of the necessity to protect life—which is undoubtedly the supreme value—the German Federal Constitutional Court was dragged after the global moral panic and has given a hand to disproportionately trampling human rights. It refused to recognize an alternative means of submitting negative COVID-19 tests as a condition of working with vulnerable people and as a less restrictive means of reaching the goal of protecting vulnerable people. It did not give weight to the autonomy of the individual, including vulnerable people, to take risks. It did not accord the due weight to the injury to livelihoods, career losses, the interruption of academic studies, and the breach of bodily integrity. It needed to adequately address the
legitimacy of the sacrifice of the individual for the collective good. The failure to satisfy the requirement of proportionality could indicate the underlying intention of the ruling—putting pressure on people to get vaccinated. The COVID-19 pandemic crisis illustrates the great potential of coercive public health powers to infringe on civil liberties and the fragility of human rights when faced with danger to health. This Article advances the case for demonstrating greater respect for peoples’ autonomy to take health risks before establishing coercive measures— which curtail fundamental rights—to prevent or reduce the spread of infectious diseases. The Article sets forth principles the state should consider before limiting constitutional rights and claims that people around the world should not be deprived of their choices