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Adaptive Clinical Teaching
Get PDFLegal education has a clear mission–to develop competent and committed members of the legal profession–but this goal can be an elusive one to meet. This is because legal educators often develop their most effective approaches to teaching through trial and error and instinct. A microcosm of this struggle for effective legal teaching is clinical legal education’s distinct set of commitments, pedagogy and teaching methodologies. Building on the trials, errors, and instincts of clinical teachers, this article offers a more intentional approach for designing, teaching, and supervising in a clinic: “adaptive clinical teaching” (ACT). ACT is a structured method of guided analysis and reflection that applies to any clinical teaching situation, allowing a clinician to make her teaching choices based on as much knowledge and with as much intentionality as possible. One of the advantages of this method is that it provides clinicians with an approach for new issues as they arise and builds a base of knowledge so that each clinical choice is not experienced anew. This article offers clinicians–and ultimately all legal educators–a systematic framework to apply ACT to their own teaching and an example of the application of ACT to demonstrate how the method encourages replacing instinct with deliberate strategies for teaching and supervising. It is the authors’ hope that clinical teachers will use the ACT model to create collections of knowledge for themselves and their colleagues, to challenge and broaden their teaching instincts, and to maximize learning for clinic students. It is the authors’ belief that these insights and the collected knowledge that results will translate to legal education more broadly
Realizing the Right to Health Through a Framework Convention on Global Health?
Get PDFThis article introduces a special issue of Health and Human Rights (volume 15, issue 1) that features articles exploring potential elements of and key questions and issues surrounding the Framework Convention on Global Health (FCGH). The FCGH is a proposed global health treaty that would be grounded in the right to health, with the aim of closing domestic and global health inequities. It would set standards and ensure financing for health care and public health services, while also addressing social determinants of health. The FCGH would raise the priority of health in other sectors, ensure effective private sector regulation, and incorporate community engagement and special measures to support the needs and rights of marginalized populations. It would include a robust regime of monitoring and enforcement, one that balances global standards with national ownership and initiative.
Articles in this special issue can be clustered around three topics. First, several address accountability for realizing the right to health, including through a proposed judicial mechanism based on the Latin American experience, utilizing human rights bodies and responding to the interdependent nature of all human rights, clarifying right to health responsibilities of pharmaceutical companies with respect to access to medicines, and addressing traditional medicines. Second, two articles address global health funding and governance. One proposes an umbrella mechanism to develop common standards for all financing mechanisms, and the other proposes right to health-based standards for global health organizations, including addressing for their interactions with other sectors and potential for right to health capacity building. And third, several articles explore the role of the FCGH in social mobilization, including its potential to support HIV/AIDS advocates and several specific ways the treaty could mitigate threats to continue progress of the HIV movement. Another of these articles emphasizes the importance of the process towards an FCGH being one that facilities popular mobilization around the right to health. In addition, an opening editorial to the special issue highlights the value of a treaty with an all-encompassing goal of the right to health and health equity, while a final article offers several risks to the FCGH that must be considered.
Finally, we emphasize that the critical thinking and robust debates about the FCGH and how it can best ensure the right to health must continue. The process of developing the treaty must give voice above all to marginalized populations, who suffer most from the health inequities that the FCGH is intended to redress
Stochastic Constraint
Get PDFThis essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012).
With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush\u27s tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though the modern wartime Executive may disregard traditional limits on presidential power and attempt to act unilaterally, new checks from an aggressive press, a watchful and technologically enabled public, and the legalization of warfare combine to constrain the executive branch. Goldsmith argues that this system is the type of reciprocal restraint of which our Founders would have approved (p. 243).
Goldsmith\u27s claim ultimately boils down to one about how presidential constraint arises from a stochastic melange produced by these newly empowered actors. But in his analysis of the constraint imposed on the modern Executive by this new system of checks and balances, Goldsmith fails to account for the values served by good process. Just as with a student\u27s four-page exam (which might reach a correct result but probably will not), the path by which the Executive is constrained matters, because it will significantly affect the substantive quality and sustainability of that end result. Goldsmith\u27s new system of accountability relies on a combination of government leaks and self-checking out of fear of reprisal, whereas the traditional system trusts [a]mbition ... to counteract ambition. The latter system--the one envisioned by the Founders--has significantly fewer side effects attached to the process of checking the Executive.
In this Review, the author argues that the particular process employed to constrain the Executive has consequences beyond the mere fact of achieving some level of constraint, and the new system of checks and balances has more costs associated with it than the traditional, constitutionally envisioned system, which primarily relies on government officials. In the end, many different methods might be used to achieve constraint, broadly conceived, but the process chosen to reach that constraint has substantive implications. Part I discusses the relationship between the process used to check the Executive and the substance of the constraints imposed. It contends that, just as the Coase Theorem predicts, the initial set of entitlements will strongly influence the eventual result, and that Coasean analysis provides a helpful frame through which to assess Goldsmith\u27s claim that the new constraints he identifies can substitute for Madisonian checks and balances. Part II analyzes Goldsmith\u27s speculation that the modern cycle of permission and constraint is likely to continue, and suggests that future inquiry should examine whether particular policy solutions could be developed, in advance of the next crisis, that might break this cycle
Political and Constitutional Obligation
Get PDFIn his provocative, courageous, and original new book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, On Constitutional Disobedience, I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to me to be important ambiguities in and problems with Professor Greene’s argument. Second, I defend my own stance against criticisms advanced by Greene and others. Third, I explore the relationship between his claims and mine
Originalism and the Unwritten Constitution
Get PDFIn his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). The author concludes by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction
Originalism and Constitutional Construction
Get PDFConstitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous. Construction occurs in every constitutional case. The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law—we might call this strict construction. But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy the construction zone. The second claim is that the construction zone is ineliminable: the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction that goes beyond the meaning of the text for their application to concrete constitutional cases.Part I of this article situates the idea of constitutional construction in the context of contemporary debates about originalism and among originalists. Part II argues that the interpretation-construction distinction provides conceptual clarity and answers a variety of objections to the distinction itself and the use of the terms “interpretation” and “construction” to express the distinction. Part III advances the claim that construction is ubiquitous; Part IV makes the case for the ineliminability of the construction zone. Part V discusses the relationship between constitutional construction and debates about originalism and living constitutionalism. A conclusion follows
The Rebirth of the Neighborhood
Get PDFThis essay argues that new urban residents primarily seek a type of community properly called a neighborhood. “Neighborhood” refers to a legible, pedestrian-scale area that has an identity apart from the corporate and bureaucratic structures that dominate the larger society. Such a neighborhood fosters repeated, casual contacts with neighbors and merchants, such as while one pursues Saturday errands or takes children to activities. Dealing with independent local merchants and artisans face-to-face provides a sense of liberation from large power structures, where most such residents work. Having easy access to places of sociability like coffee shops and bars permits spontaneous “meet-ups,” contrasting with the discipline of professional life. Such a neighborhood conveys an indigenous identity created by the efforts of diverse people over time, rather than marketing an image deliberatively contrived to control the perceptions of customers. At its best, a neighborhood provides a refuge from the ennui of the workplace and the idiocy of consumer culture, substituting for churches (or synagogues), labor unions, and ethnic clubs that structured earlier urban social life.
What changes in land use law have contributed to or supported this transformation to neighborhood-based living? Several legal developments outside land use seem very important. Perhaps the most central legal development has been local government legal protections for gays, who often have been in the vanguard of the revival of urban neighborhoods. Crime reduction has significantly enhanced urban living since the 1970s, but which laws have contributed what to that reduction is a matter of intense debate. Civil rights laws and immigration reform have arguably nurtured a comfort with multi-ethnic urban neighborhoods that has turned discrimination and resentment to a comfort with and even celebration of diversity.
But changes in land use law, broadly understood, also helped provide the context for the revival of neighborhoods. This brief essay highlights those aspects of land use law that have supported this new urbanization since the founding of the Fordham Urban Law Journal. The claim is not that legal reforms caused the revival, but that they contributed to a broader social trend. These reforms have supported neighborhood revival primarily by securing the physical environments people want to live in. The three chief legal tools for neighborhoods have been zoning for urban form, historic district preservation, and environmental protection
How \u3ci\u3eNFIB v. Sebelius\u3c/i\u3e Affects the Constitutional Gestalt
Get PDFThe thesis of this essay is that the most important legal effects of the Supreme Court\u27s decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).
After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement.
This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author
Liberal Responsibilities
Get PDFThis essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).
In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society or democratic processes or both. But they too have some sympathy for the criticism, and their defense is likewise quite different from the traditional. Unlike most defenders of liberal constitutionalism, they insist that constitutional liberalism should be explicitly committed to promoting the responsibility of citizens for formulating their own conception of the good and their own theories of justice, which in turn will jointly contribute to responsible democratic and personal self-government. Constitutional liberalism does not undermine civic responsibilities, but it can and should make the grounds of its support of them far more explicit. Accordingly, for Fleming and McClain, various substantive due process rights, such as the right to abortion, the right to marry and to sexual expression, and to educate one’s children, cannot be faulted for creating virtue-free zones of reckless license, so long as it is understood, as the Court has sometimes—but fitfully—tried to do in the dozens of cases it canvases; that those rights are justified, largely or in part, by their tendency not only to protect liberty, but also to form the basis for the development of responsible citizens. These citizens, by virtue of their rights, are more capable of occupying a space in the political order in an informed and responsible way and of formulating and following through on a conception of the good that will guide their own life paths
Lessons for International Law from the Arab Spring
Get PDFNot all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress and turmoil, and its long-term impact remains uncertain.
For international law, the import of the Arab Spring is similarly ambiguous. On the one hand, as Juan Mendez and others have argued, the Arab Spring can be viewed as the world’s first true human rights revolution: the young protesters of the Arab street spoke the language of democracy and human rights, and the international community responded in the same lexicon, with references to human rights law and international criminal law, and referrals to the institutions that help sustain them (such as the UN Human Rights Council and the International Criminal Court (ICC)). Many human rights advocates rejoiced when the UN Security Council referred the situation in Libya to the ICC, and when the Libya intervention was justified in terms of the international “responsibility to protect.” To the optimist, these developments reflect the renewed vitality of international legal institutions, and will further speed the development of human rights-related international legal norms.
On the other hand, the Arab Spring demonstrated equally the limits and dangers of these same institutions and norms. At the outset, it’s probably worth noting the early irrelevance of international law and institutions to the Arab Spring. For most of the last few decades, international law and institutions did little or nothing to improve conditions in the Arab World. Indeed, the repressive regimes of the Middle East were always asterisks to the global trend towards democratization: even as autocratic regimes in Latin America, Russia and Eastern Europe tumbled, oil-rich Arab political leaders clung to power, with little protest from the United States or other powerful nations. As long as the oil flowed, few wealthy states were inclined to push too hard for reform. It’s unsurprising, then, that change ultimately came from within, not from without. The starring roles in the Arab Spring have been played not by international actors but by the citizens of the Arab World themselves—by street vendors, students, tech entrepreneurs and other ordinary people. International institutions—and certainly powerful nations such as the United States—have been followers, not leaders