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Could Specialized Criminal Courts Help Contain the Crises of Overcriminalization and Overincarceration?
Get PDFIn contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:
(1) a therapeutic jurisprudence model,
(2) a judicial monitoring model,
(3) an order maintenance model, and
(4) a decarceration model.
Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the courts’ promotional materials, ongoing empirical monitoring of the courts, and the legal academic and sociological literature on the courts, the author demonstrates how specialized criminal courts, adopting features associated with what she calls a decarceration model, may enable significant transformative change in U.S. criminal law. But if configured primarily in accord with the first three models above, these courts threaten to produce a set of undesirable outcomes—expanding criminal surveillance and possibly even increasing incarceration—despite opposite intended effects
The Federal Rules of Civil Settlement
Get PDFThe Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement
This Article begins by providing a systemic analysis of why the Federal Rules inadequately prevent settlement outcomes from being distorted relative to the underlying merits — as defined by reference to substantive law — of a given dispute. It then explains how the Federal Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs in the “shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. However, these insights have not been considered together and combined with a systemic focus on the ways in which the influence of these factors on settlement outcomes is actually a product of the basic structural features of the Federal Rules.
This Article takes these next steps to explain that the “shadow of the law” that is cast on settlements is fading. Further, this Article discusses a new phenomenon in the current litigation environment — namely, that litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself.
This Article then traces these problems to three foundational assumptions underlying the Federal Rules of Civil Procedure, all of which have become outmoded in a world of settlement. In rethinking these assumptions, it provides a new conceptual account that contextualizes previously isolated procedural reform proposals as challenges to these foundational assumptions. It also explains how these reform efforts ought to be refined and extended with a specific view toward systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. Lastly, it sets forth new proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims.
What emerges is a new vision of procedure — one in which the application of pretrial procedural rules do not merely facilitate trial but are designed to provide litigants with guidance regarding the merits of claims and are used to align settlement outcomes more meaningfully with the dictates of the substantive law. In describing this vision, this Article lays the groundwork for the design of a new Federal Rules of Civil Settlement
Money and Meaning: The Moral Economy of Law Firm Compensation
Get PDFThis article, part of an ongoing qualitative research project on law firm culture, analyzes the role of compensation in the modern law firm. At first blush, the significance of the compensation process may seem obvious: it represents an economy in which the firm distributes material rewards to its partners. From this perspective, disputes and dissatisfaction regarding compensation are simply attempts by partners to improve their financial well-being.
Our research suggests, however, that compensation serves to distribute not just money, but also respect. Compensation thus represents the operation of both a material and a moral economy within a firm. As a moral economy, the dynamics of partner compensation serve to both establish and express criteria of value—to define what it means to be a good lawyer in a given firm. The relative weight of these criteria has been changing in most firms over the past three decades or so. While traditional professional competencies and qualities remain important, greater competitive pressures have led firms to place increasing emphasis on business generation and client development. This means that the bases for conveying respect for partners through the compensation process are undergoing substantial change in many law firms.
Archetype theory provides some insight into the significance of this process. This theory suggests that professional service firms are constituted by organizational structures and policies, as well as by interpretive schemes that give those features meaning. Scholars in this vein suggest that as firms move from classical professional partnerships to “managed professional businesses,” their leaders must offer interpretive schemes that provide persuasive accounts of how such changes are consistent with a meaningful professional life. We argue that disagreements over compensation in law firms represent contests between competing interpretive schemes that represent different “orders of worth.” From this perspective, negotiation over compensation involves the question of how a firm should balance its identity both as a major business enterprise and an organization of professionals in an era of tumultuous competitive change
Confucian Virtue Jurisprudence
Get PDFVirtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.
This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of (1) the ends of law, (2) legislation and the judiciary, (3) the nature of law. We shall argue that the highest value of Confucian ethical, political theory is the virtue of citizens and the harmony of society and individuals. From the perspective of the use of evaluative language, the Confucian doctrine of Correcting Names gives us an explanation of the mechanism of internalization of legal rules in terms of the relationship among social norms, law and thick evaluative concepts. This might throw light on our normative understanding of legislation and the judiciary,and it also provides a functional account of the nature of law
Who Owns the Soul of the Child?: An Essay on Religious Parenting Rights and the Enfranchisement of the Child
Get PDFAt common law, and (for most of the nation\u27s history) under state statutory regimes, the authority of the parent to direct the child\u27s upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a sacred right to the custody of his or her child, that the parent\u27s right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation\u27s history—and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear—is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the empire of the father. If by fundamental we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them.
The Supreme Court\u27s seminal cases establishing a parent\u27s right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child\u27s education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. The idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes.
Courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program—whether the program is imposed by the parent or by the state—that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person\u27s education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of protection, ensuring that children receive a truly public education.
Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority—and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under a perpetual childhood of prescription, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. A public education is the engine by which children are exposed to the great sphere that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.
The Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. Judicial non-intervention amounts to little more than a way of not dealing with such cases—or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny
Configuring the Networked Citizen
Get PDFAmong legal scholars of technology, it has become commonplace to acknowledge that the design of networked information technologies has regulatory effects. For the most part, that discussion has been structured by the taxonomy developed by Lawrence Lessig, which classifies code as one of four principal regulatory modalities, alongside law, markets, and norms. As a result of that framing, questions about the applicability of constitutional protections to technical decisions have taken center stage in legal and policy debates. Some scholars have pondered whether digital architectures unacceptably constrain fundamental liberties, and what public design obligations might follow from such a conclusion. Others have argued that code belongs firmly on the private side of the public/private divide because it originates in the innovative activity of private actors.
In a forthcoming book, the author argues that the project of situating code within one or another part of the familiar constitutional landscape too often distracts legal scholars from more important questions about the quality of the regulation that networked digital architectures produce. The gradual, inexorable embedding of networked information technologies has the potential to alter, in largely invisible ways, the interrelated processes of subject formation and culture formation. Within legal scholarship, the prevailing conceptions of subjectivity tend to be highly individualistic, oriented around the activities of speech and voluntary affiliation. Subjectivity also tends to be understood as definitionally independent of culture. Yet subjectivity is importantly collective, formed by the substrate within which individuality emerges. People form their conceptions of the good in part by reading, listening, and watching—by engaging with the products of a common culture—and by interacting with one another. Those activities are socially and culturally mediated, shaped by the preexisting communities into which individuals are born and within which they develop. They are also technically mediated, shaped by the artifacts that individuals encounter in common use.
The social and cultural patterns that mediate the activities of self-constitution are being reconfigured by the pervasive adoption of technical protocols and services that manage the activities of content delivery, search, and social interaction. In developed countries, a broad cross-section of the population routinely uses networked information technologies and communications devices in hundreds of mundane, unremarkable ways. We search for information, communicate with each other, and gain access to networked resources and services. For the most part, as long as our devices and technologies work as expected, we give little thought to how they work; those questions are understood to be technical questions. Such questions are better characterized as sociotechnical. As networked digital architectures increasingly mediate the ordinary processes of everyday life, they catalyze gradual yet fundamental social and cultural change.
This chapter—originally published in Imagining New Legalities: Privacy and Its Possibilities in the 21st Century, edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (2012)—considers two interrelated questions that flow from understanding sociotechnical change as (re)configuring networked subjects. First, it revisits the way that legal and policy debates locate networked information technologies with respect to the public/private divide. The design of networked information technologies and communications devices is conventionally treated as a private matter; indeed, that designation has been the principal stumbling block encountered by constitutional theorists of technology. The classification of code as presumptively private has effects that reach beyond debates about the scope of constitutional guarantees, shaping views about the extent to which regulation of technical design decisions is normatively desirable. This chapter reexamines that discursive process, using lenses supplied by literatures on third-party liability and governance. Second, this chapter considers the relationship between sociotechnical change and understandings of citizenship. The ways that people think, form beliefs, and interact with one another are centrally relevant to the sorts of citizens that they become. The gradual embedding of networked information technologies into the practice of everyday life therefore has important implications for both the meaning and the practice of citizenship in the emerging networked information society. If design decisions are neither merely technical nor presumptively private, then they should be subject to more careful scrutiny with regard to the kind of citizen they produce. In particular, policy-makers cannot avoid engaging with the particular values that are encoded
Supreme Court Institute Annual Report, 2011-2012
Get PDFDuring the 2011-2012 academic year--corresponding to the U.S. Supreme Court’s October Term (OT) 2011--the Supreme Court Institute (SCI) provided moot courts for advocates in over 94% of the cases heard by the Court this Term and offered over a dozen programs related to the Supreme Court. All SCI moot courts held in OT 2011, listed by sitting and date of moot, and including the name and affiliation of each advocate and the number of student observers, follows the narrative portion of this report
Bridging International Law and Rights-Based Litigation: Mapping Health-Related Rights Through the Development of the Global Health and Human Rights Database
Get PDFThe O\u27Neill Institute for National and Global Health Law at Georgetown University, the World Health Organization, and the Lawyers Collective have come together to develop a searchable Global Health and Human Rights Database that maps the intersection of health and human rights in judgments, international and regional instruments, and national constitutions. Where states long remained unaccountable for violations of health-related human rights, litigation has arisen as a central mechanism in an expanding movement to create rights-based accountability. Facilitated by the incorporation of international human rights standards in national law, this judicial enforcement has supported the implementation of rights-based claims, giving meaning to states\u27 longstanding obligations to realize the highest attainable standard of health. Yet despite these advancements, there has been insufficient awareness of the international and domestic legal instruments enshrining health-related rights and little understanding of the scope and content of litigation upholding these rights. As this accountability movement evolves, the Global Health and Human Rights Database seeks to chart this burgeoning landscape of international instruments, national constitutions, and judgments for health-related rights. Employing international legal research to document and catalogue these three interconnected aspects of human rights for the public\u27s health, the Database\u27s categorization by human rights, health topics, and regional scope provides a comprehensive means of understanding health and human rights law. Through these categorizations, the Global Health and Human Rights Database serves as a basis for analogous legal reasoning across states to serve as precedents for future cases, for comparative legal analysis of similar health claims in different country contexts, and for empirical research to clarify the impact of human rights judgments on public health outcomes
Of Wife and the Domestic Servant in the Arab World
Get PDFThe author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained in state-run judiciary institutions with specific instruction on the state-based modern understanding of what Sharia is and d) the code, rather than Quran, the prophetic traditions, or the school of Islamic jurisprudence, is the primary source of the law. The latter constitute secondary sources
Developing Attorneys for the Future: What Can We Learn From the Fast Trackers?
Get PDFLeaders in law firms tend to be those attorneys who thrive in a law firm environment from the beginning—successful associates who become successful partners. Later, they are asked to be the leaders of practice areas, committees and, ultimately, part of senior management. While high-performing associates may not be formally promoted to leadership positions for some time, it is important to understand what makes them—as young associates—stand out from their peers. Who are these future leaders, and what qualities predict their advancement in a law firm environment? These are the questions we set out to explore.
To date, little empirical work exists on the characteristics and behaviors of high-potential associates—how to recognize them from the beginning and how to develop them. Instead, law students continue to be hired most commonly based on the law school they attended and their GPA, under the assumption that law school and GPA are related to future performance as an attorney. Transcript and resume review are typically accompanied by a series of 30-minute interviews consisting of questions that vary from candidate to candidate. Consequently, hiring decisions result from a combination of the reputation of the law school attended, GPA, and the interviewing partners’ gut feeling