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Five Modern Notions in Search of an Author: The Ideology of the Intimate Society in Constitutional Speech Law
Full text linkIn this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant speech has no place in public life, as obscenity doctrine comes close to claiming; that public figures are acceptably viewed as icons of a “cult of personality,” as the “public figure” jurisprudence in libel law suggests; and that public speech is often simply a form of narcissism, as harassment speech law can potentially imply. The author asks how the Court’s opinions can speak in a way that underscores that public space is valuable for public interaction among strangers, and that speech is a critical part of creating a public community rather than just a tool of individual self-fulfillment in the future
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Five Modern Notions in Search of an Author: The Ideology of the Intimate Society in Constitutional Speech Law
No full textIn this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant speech has no place in public life, as obscenity doctrine comes close to claiming; that public figures are acceptably viewed as icons of a “cult of personality,” as the “public figure” jurisprudence in libel law suggests; and that public speech is often simply a form of narcissism, as harassment speech law can potentially imply. The author asks how the Court’s opinions can speak in a way that underscores that public space is valuable for public interaction among strangers, and that speech is a critical part of creating a public community rather than just a tool of individual self-fulfillment in the future
Twenty-Five Years of Law and Religion Scholarship: Some Reflections
Full text linkIn this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions
LESSONS UNLEARNED: WOMEN OFFENDERS, THE ETHICS OF CARE, AND THE PROMISE OF RESTORATIVE JUSTICE
Full text linkThis article focuses on the reality that women\u27s relationality, and particularly their relationships with men in their lives, profoundly affects the behavior that lands them in the criminal justice system. The author argues that restorative justice, which is essentially grounded on an ethical understanding of crime and treats the offender an as interacting subject/agent, is a necessary avenue of response to most women offenders\u27 crimes, and that corrections must go beyond a psychological approach that treats crimes as a form of illness, or a systematic model which attempts primarily to rectify deficits in women\u27s social situation
An Offer She Can\u27t Refuse: When Fundamental Rights and Conditions on Government Benefits Collide
Full text linkThis article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework for adjudicating the role of government when it acts as intervenor among citizens through public benefits choices
Is Tom Shaffer a Covenantal Lawyer
Full text linkIn this festschrift article in honor of Tom Shaffer, the author considers what Shaffer’s work may share with “covenantal” ethics, a form of ethical argument that is not interchangeable with other traditions familiar from Shaffer’s body of work, such as the ethics of friendship or care or the ethics of virtue. Describing the ancient understanding of covenants, the article explores a few of the complexities arising from covenantal ethics in a professional context, themes such as the creation of obligation by historical decision, which has implications for the treatment of strangers; the ambivalence of covenantal ethics on the value of equality as it meets difference, critical to interaction with the vulnerable and the wicked; the covenantal relational dynamic of giftedness and entrustment rather than obligation and desert; and the way that covenantal ethics looks at loyalty and accountability
Face-ing the Other: An Ethics of Encounter and Solidarity in Legal Services Practice
Full text linkIn this article, the author proposes that those who work in any capacity with impoverished clients and embattled minority communities imagine practice from within Levinas\u27 key images. First, that ethics is first philosophy - that knowledge of the self, the Other and the context in which ethical action is possible does not precede ethical understanding, decision-making and action, but that rather that we become human in the ethical encounter with the incommensurable Other. Second, that representing a client is in each moment an encounter with the face of the Other. We look up into the face of the Other calling to us, looming over us, vulnerable. In this ambivalent moment, we face both the draw of the Other and the temptation to encapsulate, reduce, diminish, totalize the Other, to erase the chasms of incommensurability that threaten our control of our worl
Equality Versus the Right to Choose Associates: A Critique of Hannah Arendt\u27s View of the Supreme Court\u27s Dilemma
No full textThe Supreme Court has difficulty framing a rationale for preferring the right to equality over the right of freedom of association when these values clash in cases such as school desegregation. The controversial philosopher, Hannah Arendt, attempted to reconcile the tensions between these rights in an article concerning the famous school desegregation episode in Little Rock, Arkansas. The author here explores Arendt’s analysis of school desegregation in order to probe the Supreme Court’s justifications in right to association/equality cases. This article first discusses the Supreme Court’s view of association as a fundamental right and criticizes the Court’s assumptions and justifications for protecting that right. Next, the author probes Arendt’s analysis of the right of association and explains the parallels between Arendt’s and the Court’s reasoning in the right to association/equality cases presuming the ultimate goal to be diversity. Finally, the author describes Arendt’s theory of equality in an attempt to explain why Arendt prefers associational rights over the equality principle. The author concludes that if the ultimate constitutional commitment is to societal diversity, discrimination by groups must proceed from “political” speech and action and must be based on the distinguishing actions and speech of the outsider before they can be entitled to constitutional preference
Equality Versus the Right to Choose Associates: A Critique of Hannah Arendt\u27s View of the Supreme Court\u27s Dilemma
No full textThe Supreme Court has difficulty framing a rationale for preferring the right to equality over the right of freedom of association when these values clash in cases such as school desegregation. The controversial philosopher, Hannah Arendt, attempted to reconcile the tensions between these rights in an article concerning the famous school desegregation episode in Little Rock, Arkansas. The author here explores Arendt’s analysis of school desegregation in order to probe the Supreme Court’s justifications in right to association/equality cases. This article first discusses the Supreme Court’s view of association as a fundamental right and criticizes the Court’s assumptions and justifications for protecting that right. Next, the author probes Arendt’s analysis of the right of association and explains the parallels between Arendt’s and the Court’s reasoning in the right to association/equality cases presuming the ultimate goal to be diversity. Finally, the author describes Arendt’s theory of equality in an attempt to explain why Arendt prefers associational rights over the equality principle. The author concludes that if the ultimate constitutional commitment is to societal diversity, discrimination by groups must proceed from “political” speech and action and must be based on the distinguishing actions and speech of the outsider before they can be entitled to constitutional preference
Pilgrimage or Exodus?: Responding to Faculty Faith Diversity at Religious Law Schools
Full text linkReligiously affiliated law schools have, for the most part, given little thought to the integration of faculty members who are from faith communities other than their own. The article will consider the question of how religiously affiliated law schools truly include faculty members of all religious faiths in the development of mission and community in such law schools, using the lens of the religious metaphors of pilgrimage and Exodus. After presenting this typology for critiquing law school practices, the author deconstructs the very premises of the question through the metaphors of pilgrimage and Exodus. The author argues that a proper understanding of the “integration” question requires religiously affiliated schools to acknowledge the true host for their work, which is not – as is commonly assumed – those faculty and staff members whose faith tradition is the same as the law school’s religious affiliation
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