18512 research outputs found
Sort by
National Security Lawyering in the Post-War Era: Can Law Constrain Power?
No full textDo we face a rule of law crisis in U.S. national security law? The rule of law requires that people and institutions are subject and accountable to law that is fairly applied and enforced. Among other things, this requires that those bound by the law not be the judges in their own case. Does national security lawyering meet this standard? And if not, what should be done about that? This Article seeks to answer these questions. It begins by demonstrating a key source of the problem: There are almost no external constraints on national security lawyering. Congress and the courts have mostly opted out of making decisions in cases involving national security, our international partners find it difficult to discipline a hegemon, and the press and advocacy organizations are
constrained by the fact that the matters on which they seek transparency are, generally speaking, classified, and thus revealing them is a crime. In short, the ordinary checks do not apply. The absence of any real oversight means that those interpreting the law are almost exclusively the lawyers for the very same actors regulated by that law-members of the U.S. executive branch. Drawing on historical research and interviews with former national security lawyers from the last four presidential administrations, this Article describes the group of lawyers most centrally involved in addressing national security law questions, now known as "the Lawyers Group." Even at its best, the Lawyers Group process was insufficient to adequately protect the rule of law. The Trump administration, in apparently ignoring many of the legal constraints on the President's national security authority, has laid bare problems that existed all along. In doing so, it has created an opportunity to strengthen the rule of law in national security lawyering as we move into a new presidential administration. It is up to us to seize it
The Incoherence of Prison Law
No full textIn recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America's prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less about the law that governs penal institutions. Yet prisons are filled with law, and prison doctrine is in a state of disarray.
This Article centers prison law in debates about the failures of American criminal justice. Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law's emergence as a discrete field - a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure. We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners' rights, and the purpose of penal institutions. To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation. We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.
Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons. This Article explains how outdated tropes have narrowed prisoners' rights and promoted the country's dependence on penal institutions. It links prison myths to the field's central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment. And it argues that courts must abandon that doctrine - and attend to the realities of prison - to
develop a more coherent theory of prisoners' constitutional rights
The Schlegelians v. the Langdellians on Legal Education
No full textIn great dramas there's a moment when a character shows up who makes such an impression that, whatever else
may be going on, you just wait for that character to reappear. Sir John Falstaff makes his entrance in the second scene of
Henry IV, Part I, and from that point on has the audience wanting to skip over all the ponderous high statecraft of
kings and nobles so we can all get back to Jack Falstaff. Jack Schlegel, in my recollection, made his entrance in my second year at Buffalo in the Fall of 1973. Once you hear that voice, with its almost-whispered, shockingly original and penetrating apergus, followed by the cackling laugh that tells you that you and he, and anyone else who may be around, are just having the grandest possible time together, you want more. A year later Schlegel and I, along with Al Katz and Janet Lindgren, formed "Section 3," an experimental section of the first-year that combined Torts and Contracts, made Procedure auxiliary to both, and set the class to practical tasks like drafting pleadings, arguing motions, taking depositions, negotiating contracts. The enterprise took a
good deal of planning, most of which took place in one another's homes, accompanied by many bottles of wine and, when we were lucky, Joanne playing the piano. Our students, surprisingly (for law students) open to unorthodox experiments, indulged us with amazing good humor. I think this may have been the most intense and exciting intellectual experience of my professional life; and Schlegel was essential to it
Abortion in the Time of COVID-19: Telemedicine Restrictions and the Undue Burden Test
No full textDuring the COVID-19 pandemic, even while many traditional restrictions on telemedicine have been relaxed, few states have suspended existing regulatory restrictions on the remote provision of medication abortions (teleabortions). Simultaneously, an overlapping subset of states have cited the public health emergency as a reason to curtail access to surgical abortion. This Comment suggests that under the Fourteenth Amendment and Supreme Court precedent, these two actions, taken together, have the effect of posing an undue burden to abortion access, especially for women from disadvantaged backgrounds. It first describes the politicized regulatory landscape surrounding teleabortions and argues that expanded teleabortion is a safe alternative when states restrict access to surgical abortions due to a public health emergency. In light of the unique burdens of the pandemic, a failure to provide access to either constitutes an undue burden. Last, the results of select states’ experimentation with teleabortion during the pandemic could provide additional data points in favor of integrating teleabortion into reproductive healthcare, even after the COVID-19 pandemic lapses
THE SUPREME COURT 2020 TERM FOREWORD: REGIME CHANGE
No full textIn the article, the author discusses the need to use power to implement regime change in governance, particularly in the U.S. Supreme Court. Topics include the importance of legal innovations to establish a new political order, the need for extended engagement with the relationship between law and politics, and the role of executive governance in achieving the goals of democratic politics
Janus and the Movement Dissent
No full textJudge William E. Miller Prize
R. Post, J. Balkin, O. Hathaway
For the best paper concerning the Bill of Rights.This paper examines Justice Kagan’s 2018 dissent in Janus v. AFSCME to illustrate how incisive, bold, and creative dissents can bolster ordinary citizens seeking constitutional change. Using the tools of intellectual history, the paper shows that the dissent created a dialogic relationship between the Supreme Court and labor activists and liberal academics. It then explores how progressive commentators, union leaders, politicians, and workers deployed the Janus dissent in political and discursive organizing that resisted the Court’s constitutional and economic visions. The paper concludes by reflecting on the promise of movement dissents in channeling constitutional cynicism and alienation into constitutional construction
The Partisan Transformation of American Public Health Law, 1918 to 2020.
No full textIn “Politics, Pushback, and Pandemics: Challenges to Public Health Orders in the 1918 Influenza Pandemic” (p. 416), Navarro and Markel clear away an influential but incorrect impression about epidemic policy in US history. Figures like Associate Justice Samuel Alito of the US Supreme Court have asserted that the pandemic regulations of 2020 and 2021 are like nothing the country has seen before. Navarro and Markel, however, identify powerful continuities between state governments’ efforts to contain infection today and such efforts in 1918. The authors document, moreover, parallel cultures of protest a century ago and today against mask mandates, business closures, and school closures. The article particularly focuses on a distinctive new element in our 21st-century pandemic: the rise of novel partisan dimensions in the opposition to regulatory interventions.
Navarro and Markel, however, mostly omit a vital new part of the story that supports and extends their basic argument. In the 21st-century epidemic, the United States is witnessing almost entirely unprecedented partisan pushback against public health measures by the courts. The partisan transformation of the courts is indispensable for anyone aiming to understand the similarities and differences between 1918 and 2020. The influenza pandemic of 1918 produced an outpouring of regulations designed to slow the spread of infection—and protest followed. Crowds inveighed against business closures. Local politicians spluttered against costly closure orders. Lawsuits followed, as they have today.
But there is a crucial difference between the lawsuits of 1918 and those of 2020. A century ago, such challengers sued to force officials to carry out their authority appropriately. Today, legal challengers sue to assert that officials have no authority at all. Plaintiffs in the courts during the 1918 influenza contended that regulations were unfair, that they violated public health law, or that they otherwise exceeded the authority of the actor making the regulation. Sometimes they won. The Supreme Court of New Jersey set aside the conviction of a saloonkeeper in Paterson on the ground that the violation charged was not actually a violation of the relevant statute against public nuisances (Board of Health v. Clayton, 106 A. 813, N.J., 1919). Such victories sent public health officials back to the drawing board to come up with regulatory interventions anew. But mostly courts rebuffed such challenges (e.g., Globe School Dist. No. 1 v. Board of Health, 179, Ariz., 1919, p. 55). Courts were loath to override public health measures when their own expertise was lacking. As the Supreme Court of Kansas put it in 1919, it was “indispensable to preservation of the public health that some administrative officer or board should be clothed with authority to make adequate rules which have the force of law” (Ex
Parte McGee, 185, Kan., 1919, p. 14)
Remembering Ralph
No full textThe late Chief Justice of the Massachusetts Supreme Judicial Court, Ralph D. Gants, was many things: a brilliant judge, a devoted criminal justice reformer, and a staunch leader on access to justice issues. But beyond these roles, Ralph was also a great friend to many, including to the three of us, his college and law school classmates. Our shared memories of his friendship remind us of Ralph's qualities, contributions, and legacy as a friend. At the Boston College Law School Symposium in Ralph's honor, we collectively presented our memories, incorporating pictures of those days, which the Law Review has kindly reprinted here and in the supplement to his remembrance. Of special meaning to us is the repeated image of us as a foursome, which we ceremonially took at each important reunion, here in our 20s, 40s, and 60s. Just weeks ago, we gathered again, but as a trio, to lift our glasses to Ralph, wishing so much that he could have been there. This is what we remember
The Specter of Eurocentrism in International Legal History
No full textThe honeymoon period of the “turn to history” in international law did not last long. On the surface everyone agreed that the past of the discipline remained under-examined and under-theorized. Additionally, few (if any) international legal scholars still believed in the most extreme versions of linear, progressivist narratives that imagined (international) law to be part and parcel of “the long march of mankind from the cave to the computer.” Nevertheless, important methodological differences persisted. These disagreements include the nature of historical time and, correspondingly, the relationship between the present and the past, the appropriate and permissible sources, the relationship between contingency and necessity, agency and structure, and aesthetic and theoretical choices between “thick description” and explanation. These deep theoretical divisions and the increasingly sour tone of the debate make the apparent consensus over the question of Eurocentrism worthy of closer examination. Simply put, scholars who agree on little else nonetheless acknowledge that the history of international law has been profoundly Eurocentric and that correcting this bias should be one of the main preoccupations of contemporary historical efforts. In fact, it is not uncommon that battles over other methodological questions are fought on the terrain of Eurocentrism, a point to which I will return shortly
Proximate Cause Explained: An Essay in Experimental Jurisprudence
No full textOne of the oldest debates in American jurisprudence concerns the concept of "proximate cause." According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of "cause." The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called "responsible cause." Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law--one which combines the attractive features of both formalism and realism without accepting their implausible consequences. In addition to providing a model for interpreting the case law of proximate cause, this Article also introduces a new way of doing legal theory--a method we call "experimental jurisprudence." Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question