• Selected
• Entire List

Abstract:
In celebrating Judge Jon 0. Newman's three decades on the federal bench, and in reflecting particularly on the past and future of federal court jurisdiction, this symposium reminds us of elements of character, time, and skill required to perform with the "special competence normally expected of federal judges."' We do so in honor of an exceptional federal judge, however, whose special qualities as a judge, author, and teacher palpably exceed normal expectations. By focusing briefly on what Judge Newman has said and done about federal jurisdiction, we can begin to discern a model for principled legal realism. This model contrasts sharply with the incurious and overly binary approach of the current Court to such matters. Yet it has important implications-specific and general-for what we ought to expect from federal judges, even if they will not approach Newman's extraordinary blending of analytic vigor, clarity, and a balanced, keenly practical sense of the implications of any judicial decision, or of no decision at all.

Abstract:
What should be special about our federal judges? By focusing on several federal courts opinions by Second Circuit Judge Jon O. Newman, as well as discussing some of Newman's extrajudicial writing, this article identifies and discusses key aspects of judicial craftsmanship and independence. The article then builds upon Judge Newman's innovative proposals for far-reaching federal court reform necessary to protect and even to enhance the admirable qualities we can identify in some of our best judges.

Abstract:
The term "accommodate" originally meant "suited," "adapted," or "fitting" and, in 1769, one Sir J. Reynolds wrote: "The regular progress of cultivated life is from necessaries to accommodations, from accommodations to ornaments."24' In contrast to the Court's recent practice, I will not claim that a dictionary definition should be the basis for deciding vital public issues. But nondiscrimination and the new accommodations specifically recognized and guaranteed by the ADA constitute precisely the kinds of changes that are "fitting" and "suitable." They remain necessaries that can and should be worked out step-by-step over time.

Abstract:
The Americans with Disabilities Act (ADA) was to be "a clear and comprehensive prohibition of discrimination on the basis of disability." Yet the Supreme Court continues to deconstruct the ADA, disabling its protections and rendering the statute incoherent. This Article focuses on a major failure of craftsmanship in the Court's constitutional law analysis in its Garrett (2001) decision, and on the Court's only slightly less dubious reasoning in four statutory ADA decisions in 2002. It also analyzes PGA Tour, Inc v. Martin (2001) and related lower court opinions. If Martin successfully plays through a strong headwind, that peculiar decision's contrasting approach underscores the Court's crabbed views of "accommodation," in both the "public" and "reasonable" meanings of the term.

In the course of proclaiming essences of federalism, disability definitions, and market norms, the Justices seem to relish the role of contemporary Platonic Guardians. They also construe the ADA in ways almost the antithesis of the Court's initial interpretations of the 1964 Civil Rights Act. The Article concludes with a proposed alternative approach, much more in keeping with the ADA's guarantee of "full and equal rights" for people discriminated against because of disabilities.

Abstract:
After World War I, the Supreme Court was poised to join or even to lead the country in its quest for a return to normalcy. Had the Justices paused to assess the status of paternalism when Taft joined them in 1921, they might have seen that earlier constitutional efforts to confine and control the threat were inconsistent and largely unavailing. The federal judiciary had not succeeded in its effort, as Brooks Adams put it, 'to dislocate any comprehensive body of legislation whose effect would be to change the social status'. But protecting individuals and the nation from the dangers of debilitating legislative protection was not a cause to be abandoned lightly and the Taft Court tried to stem the tide.

Abstract:
This Article focuses initially on the six decisions in which the Supreme Court dealt directly with disability law issues during the 1998 Term. It offers a critical overview of the Court's performance and places these decisions in the larger context of full and equal protection. The Article compares and contrasts examples of the Justices' evident unconcern for personal dignity-notwithstanding congressional language-with the majority's enthusiasm for the dignity of the states in the context of the New Federalism. Through careful scrutiny of judicial craftsmanship as well as problematic examples of equal treatment drawn from sources outside law, the Article suggests that "negative capability" may be a more fruitful approach for judging obligations to persons who are different.

Abstract:
This Article focuses initially on the six decisions in which the United States Supreme Court dealt directly with disability law issues during the 1998 Term. It offers a critical overview of the Court's performance and places these decisions in the larger context of full and equal protection. The Article compares and contrasts examples of the Justices' evident unconcern for personal dignity - notwithstanding congressional language - with the majority's enthusiasm for the dignity of the states in the context of the New Federalism. Through careful scrutiny of judicial craftsmanship as well as problematic examples of equal treatment drawn from sources outside law, the Article suggests that "negative capability" may be a more fruitful approach for judging obligations to persons who are different.

Abstract:
Connecticut has a history of unsuccessful attempts to intervene in private family decisions. The state fought determinedly to prevent birth control. 237 It was the Supreme Court to keep indigent married couples from divorce. 238 It sought to assure that a pregnant mother would not have the option to have an abortion. 239 The common thread in all these efforts was a purported benevolent motivation: to protect individuals from themselves and to enhance family life.

Abstract:
Bob Cover often returned to the moral complexity of rules, his magnificent obsession. In Justice Accused, for example, Bob brought extraordinary historical knowledge and insight to his study of judges who personally abhorred slavery but who nevertheless upheld the law and returned fugitive slaves to their masters. It is a book that teaches beautifully and rewards each rereading.

Abstract:
Logic, law, and perhaps even life would be neater if the text and history of the United States Constitution would hold still. Our constitutional past surely would be more usable if we could rely on history for answers to the kind of binary questions the adversary system tends to pose. In constitutional law, however, even constitutional truisms almost never will be true. The farrago of our federalism provides a prime example of how textual and historical ingredients, added intermittently to appeal to different tastes, have become difficult to penetrate and virtually impossible to swallow.

Abstract:
Consider this book the next time you are staring at your melting sherbet at the end of a Law Day speech about the majesty of the law and the glory of the Founding Fathers' vision. Judge Higginbotham's important study of law and race relations is a useful antidote for self-congratulation, an occupational hazard of lawyers. In the Matter of Color is the first volume of Judge Higginbotham's projected three-volume study of the progress of racial justice in America. He has assembled cases and statutes into a lucid and convincing demonstration of the lamentable role of law as an instrument of oppression in our colonial period. His work contains several serious limitations, but Judge Higginbotham makes a powerful case for his central point that "the American legal process was able to set its conscience aside and, by pragmatic toadying to economic 'needs,' rationalize a regression of human rights for blacks." His study of six colonies - Virginia, Massachusetts, New York, South Carolina, Georgia, and Pennsylvania - makes clear the inhumanity behind the law pertaining to race from the arrival of white settlers until the Revolutionary period. As the horrors multiply, Judge Higginbotham manages both to control his own passion and to avoid numbering the reader's conscience. This is a consciousness-raising book, in the best tradition of the Brandeis brief. Fact is piled on painful fact; the law emerges as the increasingly harsh controller of slaves even, on occasion, the controller of masters.

Abstract:
Sandy Levinson's highly original consideration of attachment, and of various leaps of faith-secular as well as religious-repeatedly has illuminated matters about which few of us feel neutral. His scholarship directly engages core issues that tend to be hard fought-fraught with the danger of encountering and perhaps even becoming true believers. Sandy's impressive work is even deeply provocative regarding what may be contemporary forms of idolatry.

Abstract:
Dalia Tsuk's article substantially enriches our understanding of the multiple forms and complexities of pluralism.' She achieves this admirably through her focus on Felix Solomon Cohen and the Indian New Deal. Her cogent elaboration of Cohen's changing notions underscores how entangled ideas about pluralism remain today. Succinctly placing Cohen's evolving ideas within the context of his own times and his personal life, Tsuk wisely reminds us of how scholars of the first half of the last century both anticipated and could not resolve the most basic issues within the continuing debate about pluralism.

Abstract:
It is well known that James Willard Hurst's The Growth of American Law "represented something new" and that it "dissolved constraints" and helped start Hurst's successful effort to expose "the hitherto invisible ways in which the apparently most commonplace incidents of a legal order illuminate social values." In the early 1950s, reviewers recognized the book as a pioneering effort. Time has enhanced Hurst's achievement. He is the legal historian who broke out of the limits of traditional legal history. His work made him "the leading exponent and practitioner of an external historiography." Although the legal process approach began to supersede legal realism in American law schools in the wake of World War II, Hurst's book actually was the first sustained example of legal realist history.

Abstract:
The issues of too much generalization and overly intrusive particularization cannot be put to rest. The tragic history of eugenics also casts a long shadow over contemporary claims regarding new knowledge about human genetics, to say nothing of the tragic relevance to the current beginnings of our ability to manipulate human genetics directly.

Abstract:
Henry Schwarzschild was not much concerned with his own place in history, though he was neither a shrinking violet nor someone who lacked a healthy ego. Henry's scathing skepticism often focused on how sobering history actually turns out to be. On the other hand, he viewed historical accuracy as a necessary platform from which to launch the search for justice.

Abstract:
To appreciate how much warmth and light were generated when law, humanities, and spring marched into Georgia together last March, you really had to be there. We pondered James Boyd White's question, "What should be the erotics of legal criticism?," and wondered how such a question might conceivably relate to Robert Cover's jeremiad," It is a plain and nasty thought that death and pain are at the center of constitutional interpretation." Milner Ball's excellent work on law and metaphor provided crucial connectives; his call to batter the bulwarks and work toward organic and utopian possibilities helped rally the skeptics and even responded to the cynics. But that glorious early spring turned into Georgia's worst drought in a century, and the sudden death of Bob Cover intruded to change us all.

Abstract:
We yearn for blind and disembodied Justice. Yet we also expect and quietly hope that in the end, in a vital case, a great Justice will let the mask slip just a bit. We expect the Court to be tough and neutral and above the fray-but we also want it to come through in the crunch. In other words, we assign to the court the Bogart role in "Casablanca."

Abstract:
This essay attempts both a first step and a paradigmatic leap, a yank and a dodge. In it, I refuse to give lip service to the belief that nice guys finish last, but I also challenge the assumption that last guys finish nice. We cannot escape our own empowerment; we must decide for ourselves if we should share glory and at what price. Can we halve our cake and eat it too? After all, even strikes are matters of intersubjective perception. To choose whether to swing and what to take may be the only way to reach the big time.

Abstract:
Milner Ball may be the most active, intense, quiet, careful listener in the entire world. In hearing and writing about varied voices and the voiceless, he undoubtedly is foremost within the realm of American law-and far beyond law and the United States as well. Yet Milner is no mere passive, tolerant listener. He hears with his heart. With masterful artistry, he gleans the meanings that others convey, no matter how halting or varied the means used. Then Milner's own eccentric, punctilious, and proper passion creates anew through words and wonder-and the world is better for it.

Abstract:
With brilliance, Carol Weisbrod demonstrates throughout her prolific scholarship that legal materials afford an important source for revealing how people define myriad community values. Law in its many manifestations is indeed an appealing depository for society's moral residues.39 Yet close scrutiny even of formal judicial opinions tends to be frustrating because attention must be paid not only to the context but also to the dynamics of who is not heard and what is not said within the adversarial process. Indeed, by regularly funneling issues into binary categories, the adversarial process in the United States obscures the extent to which law is indeed a 'moving classification system.'

Abstract:
How could Allan do it? Even those of us blessed to have known Allan over many years cannot fully grasp the answer. We could not and still do not believe his tenacity and courage, abiding curiosity, sparkling ability to make connections, and profound and provocative insights. He gracefully and lovingly sprinkled these qualities throughout his significant articles, engaging and often path-breaking teaching, administrative acuity, and gift for both deep friendship and casual conversation-to say nothing of the key role he played in the belated yet marked success of the Red Sox. And, oh - was Allan ever funny!

Abstract:
There can be no denying that the entire country has witnessed loud, frequent, and riveting fireworks following the United States Supreme Court's decision in the Kelo v. City of New London. 1 Much of the reaction may have been orchestrated by well-organized critics of the decision, but the stark and vehement differences among the Justices surely helped to trigger a striking reaction full of public outcry, many legislative responses, substantial commentary, and an unusual number of learned symposia -- such as this one.

Abstract:
What are we to make of a Court that shows so little regard for the rules of the game? How can we make sense of a series of decisions that seem so blatantly incoherent? This is, after all, a Court that calls Congress names in the process of invalidating perceived congressional insults to the dignity of the states and then turns around and insults the states and their judicial systems. As we have seen, the current Court bounces back and forth, for example, between reliance on ordinary language and insistence that language must be defined in terms of legal art, and between interpreting a Commerce Clause whose meaning has changed through judicial interpretation over time and a static Commerce Clause that always must be read to reflect "the very principle of separate state sovereignty."

Abstract:
Invoking Wallace Stevens in remembrance of Betsy Clark initially seems incongruous. Stevens was notoriously detached and dispassionate; Betsy seemed to be fully involved in everything. She also had an amazing ability to detect pomposity and wrongdoing, and she followed wherever her cat-in-the-dark keen perception might lead her. Betsy and I never discussed Stevens. I suspect that she found him too intellectual, too lacking in the juices of everyday life in which she reveled. If Stevens delighted to use the incongruous metaphor, Betsy lived an exuberantly incongruous life.

Abstract:
The Federal Constitution clearly guarantees the right "to petition the Government for a redress of grievances."' Yet, judicial decisions construing this guarantee are strikingly rare and there is little doctrinal or scholarly exploration of what, if anything, such a right ought to entail. To be sure, virtually any legal claim premised on denial of the right to petition for redress of grievances seems merely to overlap with more familiar, "cognate" First Amendment rights such as freedom of expression and assembly. Moreover, the citizenry in the United States have been comparatively free to seek redress throughout most of our history. And the constitutional guarantee is phrased in terms of seeking redress; it certainly does not seem to guarantee actually obtaining redress. In our highly legalistic culture, however, it is appropriately difficult to ignore the basic claim that clear legal wrongs ought to have remedies.

Abstract:
To contemporary readers, the book's ending seems rushed, unsatisfactory, and quite brutal. Some critics, in fact, emphasize the ending as they portray Hank Morgan as a fascist precursor-or perhaps worse. Justin Kaplan, who argues that Twain generally was "capable of sustaining two moods of belief at the same time," views Connecticut Yankee as opposite to Twain's customary secular religion and his general faith in progress. To Kaplan, this book "as far as it preaches anything, preaches irreverence, the guillotine, a reign of terror, and a kind of generalized despair. . .Though his good friend William Dean Howells praised Connecticut Yankee for its charm and moral soundness, Clemens bitterly complained as he finally "let it go" because of things he had left out that could never again be said and that would in any event require "a pen warmed up in hell." Is this Twain's final, bleak word about leadership? Is the somber message that east is east, and west is west, and the twain is an hour late?

Abstract:
Lawrence Friedman is a rare and remarkable phenomenon. He is a counter who thinks and a thinker who counts. He is aware of paradoxes such as the fact that "Everybody is an individual; everybody is also a conformist" (1985b: 102). More specifically, Friedman is particularly knowledgeable about the limitations and unpredictable consequences of efforts at legal reform. Yet, surprisingly, he seems somehow to be able to escape transforming his healthy skepticism into cynicism.

Abstract:
You truly do me a great honor by inviting me to give the Sobeloff Lecture. I am particularly pleased to give this lecture because of who my predecessors have been and, even more, because of what kind of lawyer, judge, and mensch Judge Sobeloff was. It is no exaggeration to say that to speak of Judge Simon E. Sobeloff today, nearly fifteen years after his death, is to speak of a legendary figure. Lawyers I admire tell and retell the tale of Solicitor General Sobeloff's refusal to sign the government's brief in Peters v. Hobby,' a case challenging the harassing application of a "Red scare" government loyalty program. Professor Peters of the Yale Medical School already had passed several loyalty tests without incident, and Judge Sobeloff believed that the government should confess error and be done with a bad business.

Abstract:
No creative work has a single source, an isolated origin. This truism about humankind is, if anything, even more true of great works of art. From the start of any inquiry into the origins of a famous book or poem or painting, it is appropriate to be humbled by the complexity, indeed the impossibility, of entirely capturing influences, sources, and context.

Abstract:
Arthur S. Miller was a scholarly friend of mine. We never met, however, and I do not remember that we ever talked by phone. Arthur befriended me and taught me through his written words. He wrote an amazing array of books, articles, op-ed pieces, and the like, but he still found time to write letters-charming, vigorous, challenging letters. He corresponded with me faithfully over a decade or so. Regretfully, my side of the correspondence was much less regular. Nevertheless, Arthur sent a stream of reprints and drafts; I occasionally sent along something I'd finally finished. If there is such a thing as a scholar's scholar, Arthur Miller served as a worthy example of that threatened genus.

Abstract:
Tragic history cannot be trump in every legal contest. But the quest for a single level on which everyone is similarly situated sacrifices the diverse history of groups for abstractions about deracinated individuals who float equally above reality. Yet we have not reached once upon a time. Even when judges declare it, they cannot so easily purge the past.

Abstract:
Tom Emerson published his famous article, Toward a General Theory of the First Amendment1 twenty-five years ago. That article, and its subsequent elaboration in The System of Freedom of Expression, solidified Tom Emerson's position as the leading legal scholar of the first amendment in the post World War II period, perhaps of all time. This well-known story surely merits celebration.

Abstract:
Professor Robert Abrams is a serious and successful scholar. He is also an unusually nice and candid fellow, and he presents a workable, efficient, and carefully crafted plan for producing legal scholarship. If you follow his scheme, you will probably get tenure. This is the case even though it is now painfully obvious that the law school boom has gone bust. Nevertheless, I urge you to think about scholarship differently.

Abstract:
Anyone who heard Professor Mooney present his article on Matthew Deady knows of Mooney's unusual success in combining erudition with clarity, and close textual analysis with the development of broad contextual themes. It was probably less obvious at first hearing that this study of federal judge Deady, and his responses to anti-Chinese activity in the early years of Oregon's tatehood, is pathbreaking in several respects. The chance to read Mooney's study in its entirety and to reflect upon it confirms and enhances my initial impression of Mooney's success in crafting a significant contribution to legal history.

Abstract:
To be invited to Mississippi to listen to such fine papers and good conversation is a rare treat. Listening, I am afraid, is not usually part of the daily regimen of the law professor. But listening, talking and reading with care and skill is what most impresses me about the participants in this conference.

Abstract:
William Wiecek provides a lucid history of the central constitutional arguments concerning slavery and western expansion from 1760 through 1848. This itself is an accomplishment and sufficient reason to recommend his book to all interested in the development of the meaning of the Constitution. The more important theme of the book, however, is that changes in the meaning of the Constitution have occurred outside judicial chambers and congressional cloakrooms. Wiecek argues that from its inception the Constitution "was, and is, whatever the American people are pleased to make it." Indeed, it is "Everyman's Constitution." The new wave of strict textualists, emanating primarily from the four corners of Boston, will not like Wiecek's illustration of the ways the meaning of the Constitution frequently was altered outside the amendment process.

Abstract:
The constant refrain of a governmental duty to protect, sounded throughout the debates on the Civil Rights Act of 1866, had different meaning for different legislators. To many it meant federal assurance of a remedy if the states failed - through either action or inaction - to protect the freedmen equally in the basic rights listed in the Act. Berger is probably right in keying this protection to the law in the states in the first instance. He is wrong in limiting it to discriminatory state legislation, however. Many legislators were concerned about racial discrimination in the law as applied; and many wished to reach discrimination occasioned by state inaction. Berger neglects the point - made by several speakers he quotes - that Congress already anticipated state failures to protect governmental rights. The "full and equal benefit of all laws and proceedings" definition of civil rights, therefore, was open-ended. It was tied to the changeable actuality of protections states would grant their own citizens.

Abstract:
Before the 1974 Term, it was still barely plausible to declare that "in first amendment cases Younger should be discarded. The sooner the better." Such a statement now would be tantamount to complaining about gravity or the second law of thermodynamics. By the end of the 1974 Term, the Court had gone so far in attempting to pump the principles of Younger into every cranny of the dual-court structure that, however unfortunate the policy or inept its implementation, the process was more likely to continue than to abate. The Court has gone still further since - too far to pull back without having to be candid and conscious, not only of what it has done, but of what it would then be doing. It has not been able to declare itself openly as it has advanced, and no issue relating to Younger has been joined to date with the requisite equipoise of votes that would require or even enable it to do so in retreat.

Abstract:
The careless, perhaps even cynical manipulation of foundational words and past deeds in these three contemporary opinions contrasts starkly with the power of words and the great weight of the past articulated in Native American cultures. That tradition emphasizes "the rich complexity of meanings" in traditional American Indian narratives. Karl Kroeber and other authors in his compilation convincingly make the case that "lilt is our scholarship, not Indian literature, which is 'primitive' or undeveloped."

Abstract:
The core problem in the constitutional jurisprudence of law and religion may be that in the United States there is not now, nor has there ever been, a clear way to identify or to cabin the essential autonomy of religious life. It is uncommonly easy in the realm of religion, in fact, to identify exceptions and limitations. Thus there is a tendency to argue from extreme examples of one slippery slope or another. 100 Perhaps for this very reason, it would be wise to heed the nuances of historical context, rather than to seek a simply originalist key to unlock some purported Framers' intent.

Abstract:
Top-of-the-charts citation counts hardly capture John Hart Ely's formidable role in American constitutional law. John's impeccable Establishment credentials as a student, teacher, and dean - at schools including Princeton, Yale, Harvard, and Stanford - misleadingly suggest that he was influential because he was an insider.' John's uncanny ability to be present (and directly involved) at the creation of such significant matters as Gideon v. Wainwright, the Warren Commission, and the 1964 Term of the Warren Court might underscore such a misperception. In fact, John delighted to cross the usual lines and to elude classification. Perhaps it was his strong ego that allowed him to be generous to the unfamous and to those in need of protection.

Abstract:
What more can there be to learn about John Marshall?

We have been blessed recently with a flood of fine books about Marshall and the Supreme Court over which he presided from 1801 until 1835.1 We also now have readily available an impressive collection of documents concerning the Court before Marshall, as well as a fine series collecting, introducing, and annotating Marshall's papers. With recent bicentennial celebrations marking the beginning of Marshall's career as Chief Justice and the anniversary of Marbury v. Madison,3 an outpouring of law review articles and scholarly symposia have offered learned exchanges about the great Chief Justice and his most famous decision.'

Abstract:
Bob Cover defined integrity quite cryptically as "the act of maintaining the vision that it is only that which redeems which is law." Law, to be law, must be redemptive. And Cover felt and shared an obligation to focus that vision, to keep justice and righteousness in mind no matter what the formal legal rules might seem to say. Head, heart, and soul combine to share an obligation to pursue justice in each and every context. Or, as Rabbi Abraham Joshua Heschel put it, "The opposite of freedom is not determinism, but hardness of heart." And what is needed "is not only to respect justice in the sense of abstaining from doing injustice, but also to strive for it, to pursue it.". Like Heschel, Bob understood that "The law must not be idolized."