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The Toll of American Exceptionalism on American Justice
No full textEarly in his presidency, Barak Obama observed that the fact that I am very proud of my country and I think that we\u27ve got a whole lot to offer the world does not lessen my interest in recognizing the value and wonderful qualities of other countries, or recognizing that we\u27re not always going to be right, or that other people may have good ideas. The American exceptionalism police were quick to charge him with heresy. Then Louisiana Governor Bobby Jindal lamented, for example, that [t]his is a president who won\u27t proudly proclaim American exceptionalism, maybe the first president ever who truly doesn\u27t believe in that. The presumption that whatever America does or creates is invariably right and better has hardened into a pervasive ideology. Naturally, it includes our system of justice. And so we are able to conclude with little or no familiarity with the more popular inquisitorial model, that our adversarial model is superior in garnering truth, protecting the rights of the accused, and meting out justice. The result of this, however, is not harmless error. It ultimately renders any assessment of our present system unnecessary, blinds us to the potential insights of a comparative perspective on the various models of justice, ultimately stands in the way of reforming aspects of our own system, and impedes the wholesale infusion of morality into our nation\u27s law and legal procedure. And as if to buttress this thread of American exceptionalism and ensure a set of handy talking points to slap down any seditious talk about the merits of continental justice, a variety of misconceptions about the latter model have, over time, evolved and hardened into standard retorts
Prosecutorial Indiscretion
No full textIn honor of John and June Mary Makdisi, this volume\u27s general theme is about the importance of morality to law. They will be missed, having impacted students in a wide array of courses, stretching from Torts, Remedies, and Property to Evidence, Natural Law, and Family Law. Although my remarks strictly relate to my principal area of expertise and interest (i.e., environmental law), they are no less imbued with some of the moral concerns that have marked the academic lives of the Makdisis. As a professor working in the environmental field, moreover, considering the relationship of morality to law can be quite an interesting chore. In general, environmental law is an arena of strict-if not absolute-liability, and mens rea has little to do with liability except, occasionally, for criminal liability. Even there, the Department of Justice has been successful in watering down knowledge requirements. A criminal defendant need only know what he was doing and not that his activity violated the law, in order to be liable. So environmental lawyers generally think about science and engineering, not moral responsibility. We think about the law of nature, not natural law. To the extent that we think about moral or ethical responsibility, it is about making our legal analysis reflect the realities of science, say, of climate change. It is well known that criminal prosecutors wield enormous power, with virtually unfettered discretion in deciding who to charge with a crime, what charges to file, when to drop them, whether or not to plea bargain, and how to allocate prosecutorial resources. In death penalty jurisdictions, the prosecutor literally decides who should live and who should die by virtue of the charging discretion. This does make one uncomfortable. It can be dispositive in the immigration context as well. Immigration and Customs Enforcement ( ICE ) can influence an immigration judge to administratively close a case. Administrative closure means that ICE will stop prosecuting a case and will not attempt to deport an alien. ICE may still attempt to deport them in the future, but if they do, they must give them notice and the opportunity to challenge the deportation
Front Matter
No full textFront Matter includes Masthead, advisors, Table of Contents, Preface by Keith Rizzardi, Congratulatory letter from The Vatican, and selected excerpts from The Second International Conference on Climate, Nature, and Society for St. Thomas Law Review Volume 32, Issue 1, Fall 2019
Family Law: Above and Beyond the Call of Duty
No full textFamily law practitioners play a delicate and important role in the lives of clients and their families. As lawyers, we have a duty and an obligation to listen to and understand the client\u27s legal needs, while competently advocating to meet their goals and expectations. But how often do we really pay attention to the mental and spiritual needs of our clients to achieve their goal? Chances are we generally do not, since our own emotional baggage has been left unchecked. We have mastered the skill of tuning out the red herrings by trimming the excess, non-essential emotional noise that not only clouds our ability to properly frame the issues, but impedes our ability to have lunch before dinner time. We take diligent notes so we do not forget the important facts of the case, and create to-do lists of pleadings to file, issues to research, and items we want discovered. Our minds and fingers work quickly to conspire in one-upping our opposition as we aggressively purge our client\u27s emotions on paper, and play the victim role at trial. But what if we paused for a moment to really know and understand our client\u27s true needs beyond the scope of our duties as lawyers? This article invites family law practitioners to quiet our own souls by incorporating spirituality or mindful tactics into our own lives first. To go beyond the hourly rate, automated advice and performance, and dig deep inside ourselves to heal and increase our own level of awareness in order to extend consciousness to others. In doing so, we will plant a seed of long-term success and rewards for our clients, while nurturing and maturing the soul of the lawyer in the process
The Moral Imperative to Change Unjust Laws and The New Haven School
No full textThe theme of this issue of the Intercultural Human Rights Law Review involves profound issues of law and morality. Professors John and June Mary Makdisi chose this theme as one close to their hearts. Throughout their professional and personal lives, both Professors Makdisi have been teachers, mentors, and examples of how law and morality fit together. This essay is dedicated to them
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 14 (2019)
Ethical Leadership
No full textOur world is in desperate need of Ethical Leaders. In turmoil, it tumbles toward the abyss of hatred, violence, and anarchy. The cry for leaders with an authentic ethical agenda dedicated to the common good rises, and it assumes increasing urgency. This contribution is meant to honor John and June Mary Makdisi, intellectual and moral leaders of the academy. Their upcoming retirement provides the welcome occasion to reflect on responsible leadership in the necessarily joint universe of law and morality. This essay undertakes to delimit the proper understanding of ethical leadership, provides historical examples, and explores the question as to whether ethical leadership can be taught
Human Dignity: The Clandestine Factor in Prosecutorial Discretion
No full textJustice and human dignity have an organic and symbiotic relationship. The American Bar Association\u27s Functions and Duties of the Prosecutor Standard 3-1.2(a) outlines that [t]he prosecutor is an administrator of justice . . . [and] should exercise sound discretion and independent judgement in the performance of the prosecution function. The ABA standards further prohibit improper bias2 and proscribe a duty to report and respond to prosecutorial misconduct.3 ABA Standard 3-1.2(b) states: The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. 4 Although rarely openly discussed, I ask now, is it possible to do justice while still addressing the human dignity of the criminally accused, the alleged victim, as well as the community? This essay will query whether human dignity plays a role in the prosecutor\u27s daily decisions about justice, and more specifically in the prosecutor\u27s most significant function-the decision to charge or not to charge. Further, if it does play a role, in what manner and in which cases does it operate? Should concerns of human dignity ultimately determine the outcome
Nature\u27s Law and the Nature of the Cosmos: Ancient Human Stories About Perennial Moral Concerns
No full textWhen I was twelve years old, I was a guest at an unknown installation managed by the U.S. Air Force. The installation harbored a precious instrument: a solar telescope. I stood in front of the telescope while looking into outer space, and I was both excited from my visit and anxiously hoping for a better future for humanity. This experience opened up for me a world of new perceptions about the cosmos. I had wondered before about the mysteries of the universe. Since that time, new technologies have been developed and the achievements of human ingenuity have been fascinating, but remain of limited value, when one considers what would be required for our successful journey into neighboring galaxies. In a way, any human endeavor requires-first of all-an understanding of our existence as a species. Our sense of being alive, for example, permeates our perceptions of reality and our behavior in life. When I was a little older, I attended a presentation by my esteemed colleague, John Makdisi. His lecture was about natural law and how it permeated our understanding of human interactions. I was deeply fascinated, and I became enchanted by what the legal thought of philosophers such as St. Thomas Aquinas had to offer. Listening to John was like searching for new planets and his lecture was like my childhood telescope. One way or another, thoughts about humanity always bring me back to technology. The peaceful exploration of outer space, for example, promises to take human beings to more than one thousand discovered exoplanets. There awaits an opportunity to further develop the human race, beginning possibly with the mining of helium-3, which would meet our global energy needs for hundreds of years. Plato noted that astronomy compels the soul to look upward, and leads us from this world to another. The immeasurable expanse challenges our notions of time and space. If Thomas Hobbes had attended John\u27s lecture, he would have added that it is challenging to conceptualize infinite time or space. This is clearly more than a cosmological matter. It is a view of the human person against the background of outer space\u27s distant horizons. For Hobbes, these perceptions challenged our notions of knowledge. He nevertheless insisted that humanity should not renounce its senses, reason, or experience, in any spiritual flight, since these are the tools of justice and peace. Reason and experience continue to challenge our understanding of the universe
Law as a Means to Human Flourishing: Law, Morality, and Natural Law in Policy-Oriented Perspective
No full textFriendships can be uneasy without ceasing to be friendships. Because the pie of law and morality\u27s relationship can be sliced in many ways and to different yields, in what follows, I consider the simultaneously unexplored, uneasy, and yet promising relationship between the Natural Law tradition and Policy-Oriented Jurisprudence (or New Haven ), hoping that doing so will partially illuminate aspects of the relationship between morality and the law more generally. My aim is to describe what and how New Haven School founders Myres McDougal and Harold Lasswell thought about Natural Law. As it will become clearer below, despite their critical appraisal of Natural Law, there is a sufficient overlap of interests and commitments between the two Schools, so as to regard them as natural allies. Odd as the pairing of Natural Law and a form of Legal Realism may seem, a number of reasons make the choice quite relevant. First, although most accounts of New Haven\u27s debut as a legal theory trace it back to McDougal\u27s and Lasswell\u27s joint work on legal education reform reacting to Positivism, and to McDougal\u27s work on the relationship between law and power, reacting to Realpolitik, McDougal\u27s earliest published work on legal theory seems to have actually been his public diatribe against Natural Law philosopher Lon Fuller, sometimes even omitted in his bibliographies. It was a debate that impacted Policy-Oriented Jurisprudence in ways that set it apart from other post-realist movements. Second, the revival of Natural Law in the Twentieth Century coincided with the ascendency of legal Realism and the decline of Positivism after the Second World War, and produced a continuous exchange between the two movements at times critical, at times constructive, informing McDougal\u27s theoretical understanding and sparking interest to this day. Third, both New Haven and Natural Law see law as necessarily embodying an overlap of power and morality to some extent. Lastly, the very theme of this volume highlights the academic and personal legacies of professors John and June Mary Makdisi. Recognizing their intelligent defense of moral reasoning in law, especially in the form of Natural Law, this volume honors them by fostering the exercise of such reasoning. In what follows, I first introduce what I take to be the two foundational insights of Policy-Oriented Jurisprudence, to wit: that law is a means that should be defined and studied from the perspective of the political superior or sovereign as inherently a type of decision made in social context that is ideally someone\u27s creative and rational choice. Second, I introduce New Haven\u27s distinction between theories of law and theories about law as framing its assessment of alternative legal theories, including Natural Law. Third, I explore Lasswell\u27s and McDougal\u27s attitude toward Natural Law, as well as the sources from which they derived their understanding of the tradition. Fourth, I describe New Haven\u27s critical assessment of Natural Law. In doing so, I consider Lasswell\u27s and McDougal\u27s determination that Natural Law lacks the intellectual tasks necessary for a rational jurisprudence, as well as engage with some of the challenges posed by the latter to New Haven. Lastly, I offer some concluding observations on the most salient areas of agreement between the two Schools of jurisprudence