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Abstract:
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers about 188 law reviews. The document was fully updated on June 9, 2009.

law reviews, law journals, Articles, Submissions, law schools, law

Abstract:
Too often, professors offer exemplar edits of student papers providing a single edit or identifying one or two instances of a problem. The expectation is that the students will respond to the general principle and use it themselves in editing the remainder of their own pieces. Independent learning theory suggests that students learn best if they learn the tools of self-assessment.

Editing checklists abound. Grammar dos and don'ts are not difficult to obtain; indeed, virtually every legal writing text has some variation. Students who take the time to review these lists find them quite helpful. Independent learners only need access to the information. Not all students, however, are independent learners. Many need more than a nudge to use information that is provided to them. Requiring self-editing certification enables the student to develop editing skills by focusing on discrete tasks rather than the often overwhelming instruction to proofread carefully. Although this same information is available in a myriad of sources, the certification directs the student to manageable tasks.

The following is a checklist for students to use in editing their own papers. It lists many of the most basic principles of good, clear writing and many of the most common flaws in students' papers. It requires the student to certify, by signing and noting the date and time, that the student has checked the paper for each of the points listed.

Law school paper, Notes, Comments, Editing, Self-editing, Checklist, Legal writing, Scholarly writing, Student papers, Grammar, Plagiarism, Law students, Students

Abstract:
The article suggests that the legal academy is in a time of transition between promotion and tenure rules based on traditional methods of publication and contemporary electronic and interdisciplinary possibilities for publication. While a number of articles contain recommendations for newer law professors about the process of scholarship, most of those articles are between five and twenty years old and do not address publishing in the age of blogs, expedited reviews, electronic submissions, and open-access databases.

The substance and length of what law professors write, the formats in which they do so, and the fora in which they publish are evolving. This article breaks new ground in offering advice for those who have recently joined the academy on how to comply with promotion and tenure guidelines while taking advantage of publishing opportunities in the electronic age. Although it gives special emphasis to newer faculty and to issues raised by modern technology, the article is not limited to those sorts of issue. Professors who have been writing for years may find some useful nuggets about citation practices regarding blogs, the impact of recent law review limits on article length, electronic methods of browsing journals and articles in other disciplines, access to government documents, and posting on open-access archives.

Scholarship, Legal scholarship, Blogs, Legal academy, Open-access databases, Expedited reviews, Electronic submissions, Promotion and tenure, Law professors, Writing, Articles, Research agenda

Abstract:
This article draws on research into the science of happiness and asks a series of interrelated questions: Whether law schools can make law students happier? Whether making happier law students will translate into making them happier lawyers, and the accompanying question of whether making law students happier would create better lawyers? After covering the limitations of genetic determinants of happiness and happiness set-points, the article addresses those qualities that happiness research indicates are paramount in creating satisfaction: control, connections, creative challenge (or flow), and comparisons (preferably downward). Those qualities are then applied to legal education, while addressing the larger philosophical question, What if happiness were a goal of law schools?

The authors believe that making law students happier does translate, at least in part, into making them both happier and better lawyers because there is an interplay among happiness, collaboration and professionalism. As just one example: The people who are happier in life are those who give back. There is a distinction between feeling good, the pursuit of pleasure, and doing good, which can lead to more lasting happiness, and a life with meaning. People who have a richer sense of happiness aren't those who work on their narcissistic personal needs, but those who embrace a larger sense of civic engagement. Happily, that dovetails with pro bono obligations in law. A recent ABA survey reported that only 46% of lawyers met the ABA's goal of 50 hours of free pro bono services. Those who did meet the aspirational goal reported a direct correlation between that form of giving back and their own satisfaction.

The article concludes with some concrete suggestions about maximizing student happiness, through addressing some of the career reasons why law students become unhappy lawyers. One of these is, as Daniel Gilbert observed in his book Stumbling on Happiness, that people are bad at forecasting what will make their future selves happy. If law schools address this phenomenon of poor prediction by offering better information on not only paths of career decision-making, salary expectations, and non-practice options but also decision theory and psychological constraints on decision making, this will increase the likelihood that students will more accurately choose how to make their future selves happy.

science of happiness, happy lawyers, attorneys, law students, positive psychology, career decisions, professionalism, pro bono, attrition, optimism, control, humanizing legal education, legal education.

Abstract:
This article concentrates on the theory of narrative or storytelling and addresses the reasons it is vital to encourage in law schools in non-clinical or primarily doctrinal courses. Section I traces the advent of storytelling in legal theory and practice: while lawyers have long recognized that part of their job is to tell their clients' stories, the legal academy was, for many years, resistant to narrative methodologies. Section II examines the current applications of Writing Across the Curriculum in law schools. Most exploratory writing tasks in law school come in clinical courses, although a few adventurous professors are adding reflective and narrative assignments in doctrinal classes. This section explores the value of narrative writing in encouraging students to sharpen their legal analysis and to reflect on their ethical responsibilities. Section III considers three interrelated advantages of teaching students to encode legal information in story form. First, emerging evidence from neuroscience indicates that people remember stories much better than they recall snippets of fact. Second, narratives pay attention to humans - and this emphasis on identity, voice, perspectives, and lived experiences offers more accurate representations of human conditions than legal doctrines can capture. Third, narrative writing is a particular type of advocacy that appears in legal briefs and opinions. Use of storytelling as a persuasive technique may encourage courts and academics to probe more deeply for criteria of narrative truths. Finally, Section IV concludes by urging attention to the stories told in legal practice and at law firms.

Storytelling, Stories, Narrative, Writing Across the Curriculum, Legal writing, Exploratory writing, Clinical, Doctrinal, Legal information, Memory, Advocacy, Persuasive, Practice, Pedagogy, Legal theory, Reflective writing, neuroscience

Abstract:
Employment discrimination class action suits are part of a new wave of structural reform litigation. Like their predecessors - the school desegregation cases in the 1950s, the housing and voting inequalities cases in the 1960s, prison conditions suits in the 1970s, and environmental lawsuits since then - these are systemic challenges to major institutions affecting large segments of the public. This article explores the effectiveness of various employment discrimination remedies in reforming workplace cultures, promoting corporate accountability, and implementing real diversity.

Reviewing the architecture and aftermath of consent decrees in five major employment discrimination cases - the cases against Shoney's, Texaco, Home Depot, Mitsubishi, and Coca-Cola - the article evaluates the ways in which consent decrees have changed over time and the lessons learned from the implementation of these settlements. Mega-Cases identifies several hallmarks of more promising settlements and then compares the features of consent decrees in those landmark cases with recent social science literature on remedies that do - and do not - make a difference in workplace inclusivity. Emerging research in organizational sociology has found that, strikingly, diversity training has a negligible effect on the admission of women and minorities to the ranks of corporate management, but that structures requiring accountability (such as affirmative action plans, diversity managers and financial incentives) are effective in increasing diversity.

The final part of the article addresses resistance to change. Unsurprisingly, in those situations in which corporations seemed most committed to changing their cultures regarding equity and diversity, the consent decrees seemed to work most effectively. The question is what to do about corporations and executives who seem unwilling to change - especially if they don't have the resources of a mega-corporation and particularly if diversity training doesn't seem to produce results. An answer may be to develop an understanding that diversity is good for business. The socio-economic literature makes a strong case that employee diversity creates very favorable economic consequences for corporations. While most major corporations seem aware of the economic benefits of having their workforces resemble the demographics of the nation, smaller companies are less responsive to the need for diversity.

One danger of promoting the market support for diversity is that exclusively economic arguments can overshadow the moral or philosophical case for gender and racial justice. A very legitimate question is whether one of the more promising methods of promoting diversity is effective only at the risk of losing the soul of the anti-discrimination principle?

employment, discrimination, employment discrimination, class actions, diversity; settlement, Title VII, consent decrees, diversity training, accountability

Abstract:
The thesis of The Heuristics Problem is that the societal problems about which identity theorists are most concerned often spring from and are reinforced by thinking riddled with heuristic errors. This article first investigates the ways heuristic errors influence popular perceptions of feminist issues. Feminists and critical race theorists have explored the cognitive bias of stereotyping, but have not examined the ways probabilistic errors can have gendered consequences. Second, The Heuristics Problem traces some of the ways cognitive errors have influenced the development of laws relating to gender issues. It explores instances in judicial decisions in which courts commit heuristic errors that have gendered effects. The third part of the article examines the cognitive literature on "debiasing" - techniques of educating decision-makers to reduce heuristic biases. This section asks whether it is possible to educate legal decision-makers to avoid heuristic errors. It is my hope that the explorations in this article can both strengthen the foundations of feminist legal theory and nudge feminist legal theorists away from narrow issue-based analyses toward broader ways of thinking about rationality. If feminists begin to assess problems not only as "gender issues," but also as empirically poorly reasoned, they may be in both stronger analytic and political positions. Hopefully, this examination will lead to greater understanding of the cognitive processes of discrimination and to the development of tools to combat subconscious cognitive errors. After all, much of the history of the civil rights movement has been a process of obtaining conscious control over subjective and damaging biases.

heuristics, heuristic errors, feminist legal theory, cognitive bias, cognition, cognitive illusions, cognitive psychology, judgment under uncertainty, gender, bias, probability assessment, representativeness, framing, anchoring, debiasing, discrimination, identity theory

Abstract:
The thesis of Keeping Feminism in Its Place is that women are being "domesticated" in the legal academy. This occurs in two ways, one theoretical and one very practical: denigration of feminism on the theoretical level and sex segregation of men and women on the experiential level intertwine to disadvantage women in academia in complex and subtle ways.

The article examines occupational sex segregation and role differentiation between male and female law professors, demonstrating statistically that in legal academia, women are congregated in lower-ranking, lower-paying, lower-prestige positions. It also traces how segregation by sex persists in substantive course teaching assignments. Female law professors are much more likely than male law professors to teach substantive courses addressing familial issues, as well as skills courses that demand intensive labor and student nurturing. In addition, female law professors are performing a disproportionate share of domestic chores within the law school relative to their numbers on faculties - they are doing more of the occupational equivalent of the "housework" and the "childcare" than their male counterparts. The article looks at the ways both women and men are disadvantaged by importing traditional domestic behaviors into the workplace.

This occupational segregation is coupled with a second pattern. Some feminists who espouse more radical or provocative theories suffer a different kind of domestication: a taming of the individuals through promotion and tenure processes and castigations in print of their more radical theorizing. Third, a number of traditional theorists have accused some feminists and other critical scholars of attacking reason because they urge acceptance of atypical points of view. These separate threads - concerning the roles of female academics, the career jeopardy for particularly radical feminists, and the assault on feminist theory as work lacking in reason - unite to keep feminism in its place.

Occupational segregation by sex, Sex segregation, Domestic roles, Feminist theory, Radical feminism, Law professors, Gender and law, Gendered division of labor, Committee work, Attacks on feminism

Abstract:
This article discusses empiricism and narrative as the heirs of Legal Realism. It addresses both the legal academy's increasing emphasis on empirical research and the ways in which stories and storytelling are sifting into litigation and legal academic literature.

The article also questions whether there are indicators of narrative truth by looking through the lenses of several recent cases, including Gonzales v. Carhart and Parents Involved in Community Schools v. Seattle School District No. 1.

Stories, storytelling, empiricism, narrative, Gonzales v. Carhart, Parents Involved in Community Schools v. Seattle School District No. 1, Brown v. Board of Education, Karl Llewellyn, narrative, social science, racial segregation

Abstract:
Fifty years after Brown v. Board of Education, segregation based on race and sex is sweeping the nation's educational systems. Courts are rapidly dismantling desegregation orders, and when those desegregation orders end, school districts racially resegregate. At precisely the same time this end to racial desegregation is occurring, the government is beginning to sponsor sex segregation in schools as well. The No Child Left Behind Act provides over $400 million in federal funds for experiments in education, such as single-sex schools and classes. Embracing Segregation draws connections between the end of racial desegregation and the beginning of government-sponsored sex segregation in schools. The article examine the parallels between official sponsorship of segregation in education across various dimensions of identity.

Proponents of both single-sex and neighborhood schools urge tolerance of segregation as a matter of individual student and parent choice. For supporters of single-sex schools, this choice provides a diversity of educational options; for opponents of desegregation, this choice revives parents' unfettered autonomy with respect to their children's schooling. This article critiques the conflation of diversity with choice. The separatist educational movement mistakenly advances an option play concept of choice that masquerades as the constitutionally endorsed concept of diversity. Supporters of separatism try to divorce diversity from its origins as an integrative principle that brought together different types of people within an institution. The segregationist concept of diversity argues for differences among institutions, but within those institutions, demands homogeneity along the only dimension of identity that is being measured - race or sex.

The article returns to the message of Brown that separate educational facilities are inherently unequal - that official endorsement of segregation based on identity characteristics creates inequality. The article presents empirical evidence from the social sciences, as well as international experiences with gender and racial apartheid, about stigmatization from government sponsorship of separation, even under conditions of relative equality. Embracing Segregation also examines the ways contemporary separatism is usually presented without history or context. The article concludes that this country has insufficient distance from its segregative past and the ravages of those practices to vest separatism with new meaning. If the nation's past offers any lesson, surely it is that government separation of equals will recreate the very inequality that so many have fought so hard to overcome.

Single-sex schools, School choice, Brown v. Board of Education, No Child Left Behind Act, Desegragation, Sex segregation, RAce segregation, Diversity, Associational rights, Apartheid, Resegregation, Coeducation

Abstract:
Theorizing the Connections Among Systems of Subordination introduces a symposium that addresses issues on the leading edge of identity theory, race theory, and critical social theory. It explains the concepts of anti-essentialism, intersectionality, multiple consciousness, multi-dimensionality, and post-intersectionality. It investigates the ways specific types of oppression - such as racism, sexism, classism, and homophobia - support and feed off of one another. It explores the dynamics of subordination that make different forms of subordination connected to each other - the mechanisms by which subordinating systems buttress each other. Where one sees sexism, one frequently can find racism; where classism exists, sexism often surfaces; and where there is patriarchy, there is often heterosexism. Theorizing the Connections Among Systems of Subordination recognizes the difficulties of forging political coalitions among groups whose interests are seemingly opposed.

The Symposium itself brings together noted critical theorists, centering on the work of Nancy Ehrenreich, who argues that various systems of subordination "are connected and mutually reinforcing." Sherene Razack, Frank Cooper, and Robert Westley build on Ehrenreich's hypothesis by applying it to specific contexts - respectively, brutality during peacekeeping missions in Somalia, the practice of "depolicing," and the slavery reparations movement. Frank Valdes ties Ehrenreich's institutional model to the workings of the capitalist marketplace. Sumi Cho challenges the political implications of the model by questioning inter-group unity among minority groups. Darren Lenard Hutchinson wants to resist the ways dominating structures reinforce each other so fluidly and effortlessly; he concentrates on applying theory to doctrine to suggest ways of revisiting equal protection analysis. Elvia Arriola, Sam Marcosson, Robert Chang, and Jerome McCristal Culp, Jr., focus on the prospects for political coalitions among subordinated groups. Joan Williams urges critical theorists to move beyond identity analysis to examine the ways major fields of social power shape . . . human interactions.

critical race theory, identity theory, intersectionality, multiple consciousness, essentialism, anti-essentialism, racism, sexism, homophobia, subordination

Abstract:
The article imports into the legal literature for the first time the full range of single sex education research, from this country and others, and examines sociological research that has been omitted from the debate. Rarely do proponents consider what educational and social effects sex-exclusive schooling will have on boys. Rarer still is any consideration of the effect of educational segregation in a society that is already relentlessly segregated by sex.

While the educational research regarding the efficacy of single sex schools is mixed at best, the sociological research is absolutely clear that separation on the basis of identity characteristics creates feelings of individual inadequacy and instills beliefs about group hierarchy. Government separation of equals sends the message that something is contaminatory about the presence of the other (or, as we often say, "opposite") sex.

Separating Equals analyzes whether, in light of this sociological and educational evidence, government sponsored sex segregation is constitutional. Proponents argue that equally equipped and funded sex exclusive schools offer a diversity of educational choices. This article examines what is meant by "diversity" in this context. Single sex education adds to diversity only in the sense that it increases the educational options in a school system. But then diversity simply means something other than coeducation within the classroom—in other words, sameness on the basis of sex. Proponents also argue that sex segregated education is a temporary remedy for educational inequities visited on girls. Separating Equals asks how we will make the transition from training students toward sex-exclusivity to preparing students for coeducational lives?

single-sex schools, single-sex classes, constitutionality of sex segregation in education, United States v. Virginia, school choice, public school education, coeducation

Abstract:
Storytelling is a fundamental part of legal practice, teaching, and thought. Telling stories as a method of practicing law reaches back to the days of the classical Greek orators. Before legal education became an academic matter, the apprenticeship system for training lawyers consisted of mentoring and telling war stories. As the law and literature movement evolved, it sorted itself into three strands: law in literature, law as literature, and storytelling. The storytelling branch blossomed.

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.

Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

The UMKC Law Review plans to devote a section of one issue each year to stories. The Law Review is interested in publishing stories about personal experiences or lessons learned in legal practice, unique clients or enlightening client interactions, or enlightening episodes in legal education. In this introductory issue of the UMKC Law Review's stories section, we have been fortunate to collect stories from some of the founding parents of the storytelling movement and some of its best contemporary practitioners.

Stories, Storytelling, Legal Education, Legal Scholarship, Narrative, Analysis, Criticism, Critical theorists, Cognitive psychology, Cognition, Literature, Understanding, Empathy

Abstract:
This article explores various methods of grade normalization used by law schools. Based on a survey of 116 responding ABA accredited law schools, 84% have some form of grade normalization policy, and the trend is toward adoption of grade normalization. The survey assessed the types of normalization plans (distributional requirements, required means, required medians, set standard deviations, and informal policies), as well as the reasons schools have adopted such plans. It also inquired about methods for ensuring faculty compliance as well as justifications for departures from grade norms.

The article considers and responds to the arguments against grade normalization and makes the case for normalization on a broader regional or national level rather than just within schools.

law school grading policies, grade normalization, grading normalization plans

Abstract:
Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual minorities are perceived as different from straights, while the outsider model feeds perceptions of difference.

In A Different Kind of Sameness, Professor Nancy Levit explores the development of tolerance for sexual minorities, looking at both cultural signifiers and law. The grudging acceptance that is developing, both culturally and legally, is one of the hallmarks of the formation of an underclass group. The article suggests that the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context.

Professor Levit proposes changing the rhetoric and doctrine of equality theory by developing a theory of respect for the common humanity of all people. Unlike antisubordination theory, shared humanity seeks assimilation into the dominant culture, while still resisting many of the culture's traditional institutions and interpretations. Unlike formal equality, a theory of shared humanity does not rest on the heterosexual norm. Instead, it draws on knowledge in anthropology, sociology, philosophy and psychology in the search for those qualities, characteristics, needs, and desires that make us - all of us - the same as people.

Constitutional Law, Formal Equality, Antisubordination, Homosexuals, LGBT, Gays, Lesbians, Bisexuals, Transsexuals, Sexual Minorities, Tolerance, Queer Theory, Heteronormativity, Homophobia, Assimilation, Defense of Marriage Act, Romer v. Evans

Abstract:
In American tort law, one has historically been allowed to do nothing and not be held liable for injuries to others resulting from that inactivity. Viewed perhaps more charitably, tort law does not punish citizens for minding their own business. People generally have no affirmative duties to aid or protect others -- you can watch blind people walk into traffic and not be sued for failing to stop them. It's not nice, but it's not tortious. This essay examines the no duty to act rule in torts and the policy reasons typically offered in support of its enduring presence. It then explores state Good Samaritan statutes that provide immunity from liability in negligence if people decide to offer emergency assistance, and questions whether law should go further to enact Bad Samaritan statutes to compel citizens to assist strangers in emergency situations when they can reasonably do so. The essay analyzes feminist critiques of the no duty to act concept, but proposes instead a much different basis for criticizing the no duty rule. Drawing on works in anthropology, education, ecology, sociology, and social psychology, this essay makes the interdisciplinary case for a duty to act to assist strangers in peril.

Duty to act, Tort, Torts, Affirmative duty, Good Samaritan, Strangers, Emergency assistance, Omission, Commission, Assistance to strangers

Abstract:
It may seem a little odd to suggest that feminist theory has overlooked men. Yet, in several important respects, apart from the role of culprit, men have been largely omitted from feminism. Feminist legal theorists have paid mild attention to the "Can men be feminists?" question but this issue is usually relegated to footnotes. The negative effect gender role stereotypes have on men is typically subsidiary to the main focus of feminist legal literature, which has concentrated on documenting the patterns of subordination of women and on questions of feminist ideology.

The primary purpose of this article is to suggest that feminist legal theory needs to turn its attention to issues of relational justice: avoiding gender role stereotyping in both directions. To this end, the article evaluates how the different strands of feminist legal theory treat men. Over the course of the development of feminism, men have been treated as objects of analysis, as oppressors, or have simply been omitted. In significant part, the inattention to the situations of men was understandable. Perhaps to come into being, feminist theory had to carve out its own space. On the theoretical level, feminism is ready to take the next step and invite men into the discourse.

The second objective of this article is to explore the ways in which men are harmed by gender stereotypes. The article applies insights from feminist thought to situations in which gender role stereotypes operate to the detriment of men. Thus, the article considers the ways in which legal constructs and analysis have shaped masculinity. Maleness has been constructed in a number of ways by statutes, judicial decisions, and legal reasoning. One component of male aggression has been legal doctrines that dictate who society's criminals and warriors are. The image of masculinity is also formed by legal responses when men suffer injuries. Laws preventing male plaintiffs from suing for same-sex sexual harassment, and the lack of interest in male rape and spousal battery of men contribute to a climate in which men are taught to suffer in silence. In the areas of parental leave and child custody, men are socially and legally excluded from caring and nurturing roles. Various legal doctrines send distinct messages about what it means to be male. This cumulative legal ideology of masculinity is under-explored.

Finally, this article suggests ways that men and women can reconstruct a social world in which traditional gender roles diminish in importance. The point here is that for feminist objectives to succeed, they must become more all-encompassing. This article argues that feminism has stalled in an important way by not reaching far enough and it is not only possible for men to become feminists, but imperative that they do. By demonstrating some of the ways patriarchy harms men, I hope to encourage men to care about, and to work toward, the dismantling of patriarchy.

Feminism, Feminists, Men, Male, Maleness, Feminist theory, Gender roles, Gender stereotypes, Feminist legal theory, Masculinity, Equal treatment, Patriarchy, Men's studies

Abstract:
Tort litigation has extended liability over time and space, through toxic tort cases as well as unknown and perhaps unknowable risks in products liability cases. Different types of mass tort litigation have spawned different permutations of claims and theories. The movement toward multiple causation and accountability encompasses complex notions of responsibility among multiple parties to an occurrence. Modern torts have particularized mental-state requirements, and there has been a refinement in the approach to mental state generally. Finally, the judiciary's development of common law liability has been accompanied by an upheaval in the theoretical bases for tort liability: commentators have explored the courts' movement from individual to collective notions of responsibility, and have varied widely in advancing the rationales of deterrence, corrective and distributive justice, and compensation underpinning the imposition of liability.

This Article focuses on one aspect of the increasing uncertainty in tort law, termed "ethereal" or "ephemeral" substantive torts: causes of action for intangible or emotional injuries or deprivations of expectancy or reliance interests, the privacy torts, infliction of emotional distress, breach of confidence, breach of good faith, interference with economic expectancies, loss of a chance, or loss of choice. It traces the increasing "etherealization" of tort law over the past several hundred years: the movement of tort law historically from compensating only direct and tangible personal injury and property harms to the relatively modern compensation of emotional and expectancy interests.

It also discusses how advances in science, technology, and epistemology created many of the hazards giving rise to ethereal injuries and made possible the evaluation of their impacts. Jurisprudential influences from multiple divergent areas emphasized the importance of acknowledging probabilistic and relational injuries. Several barriers remain, however, that prohibit the full compensation of ethereal torts.

The principal impediment to recognition of emotional and probabilistic injuries is the devaluation of those types of injuries by society and courts. A number of institutional forces keep ethereal injuries from being fully recompensed. As new interests become legally cognizable claims, the tensions of the common law adjudication process-between the individualized goal of compensatory justice and the systemic goal of predictability in law-result in the dismissal of many meritorious claims. Although there is an attempt to confer predictability and legitimacy on new torts with the specification of particular elements, often the elements are inelegantly or too restrictively framed to capture the essence of the tort.

On the institutional level, the judicial forum has been particularly unreceptive to tort claims established by evidence from the sciences and social sciences. Part of the unwillingness to accept fully social science evidence supporting ethereal torts relates to the structure of the trial court decision-making process. More fundamental, however, a comparison of the scientific evidence that is accepted in parallel contexts with that which is rejected in ethereal torts cases suggests that the injuries at the heart of ethereal torts are both undervalued and ignored.

The article argues that ethereal torts should be taken seriously and explores a growing body of evidence from other disciplines about the biological, psychological, and psychosocial importance of disrupted expectations, lost chances, and unrepaired emotional injuries. The obligation to recognize and compensate intangible injuries is heightened because of the reconstructive nature of tort law: the messages that tort law sends about what "reasonable people" ought to feel and how they ought to behave. The individual expectancy, dignity, and autonomy interests that ethereal torts protect are intrinsically valuable. Further, recognition of these interests is promising on a collective level. Acknowledgement of these values will foster a more rational, pluralistic, and communitarian society.

Uncertainty, Tort, Torts, Liability, Responsibility, Personal injury, Injuries, Harm, Product liability, Mental state, Intangible, Emotional, Privacy, Distress, Compensation, Compensatory, Predictability, Legitimacy, Scientific evidence, Expectations

Abstract:
Jurisprudence is confronting a familiar crisis: the political authenticity of judges dispensing decisions. Much of jurisprudence in the past half century is a series of projects designed to confer legitimacy on judicial decisionmaking. The legitimacy projects exhibit a defensive reductionism: moving from structural justifications for the political system to systemic justifications of decisionmaking, and now to methodological justifications on the decisional level.

In the 1980s, the critical legal studies (CLS) movement attacked the joined notions that any principles were neutral and that legitimacy could be achieved by a majoritarian consensus. If accepted, the CLS challenge meant that the rule of law was in serious doubt: law could not rule, let alone rule fairly, because laws were ultimately manipulable. The CLS challenge went to the heart of the rule of law, and has evoked a strong response from legitimacy theorists who want to make judicial decisionmaking politically authentic. It is this project which drives the practical reason movement.

While the current wave of practical reason has various incarnations, the parent concept is Aristotle's idea of phronesis or practical wisdom. For Aristotle, the exercise of good judgment comprised qualities of character and methods of deliberation. Thus, Aristotle's answer to the problem of judicial legitimacy was to select judges who possessed a constellation of appropriate character traits. With the judicial selection process remaining relatively unalterable, however, practical reason theorists have turned their attention to justifying methods of judicial decisionmaking.

The practical reason school has a powerful spokesperson in Judge Richard Posner. In The Problems of Jurisprudence, Posner proclaims: Jurisprudence needs to become more pragmatic. As the title of the final chapter - A Pragmatist Manifesto - implies, Posner's project is to help jurisprudence get there.

This review of The Problems of Jurisprudence focuses on the scientific unreasonableness of Posner's version of practical reason. It suggests that while Posner verbally champions inquiry and critical thinking, his methods move in the opposite direction. Posner's version of practical reason relies on untutored and nonreflective techniques of reasoning, a visceral appeal to common sense as good judgment, and the unjustified supposition that values are shared by the judiciary and the populace.

This review summarizes Posner's book and delineates his version of practical reason. It then takes a position against common sense - as a method of thinking, and particularly as the bedrock for a theory of judging. I submit that the adoption of intuitive and common sense ways of thinking as a judging philosophy will lead to a lack of openness and testability of juristic methods, reductionist instead of systematic thinking about legal issues, and a diminished impetus for both self-reflective and externally exploratory behavior on the part of judges.

Practical Reason, Aristotle, Jurisprudence, Legitimacy, Judicial decisionmaking, Critical Legal Studies, Rule of Law, Phronesis, Practical wisdom, Judicial legitimacy, Pragmatism, Pragmatist, Common sense, Richard Posner

Abstract:
As kids we called it having to use the old noodle: needing to think real hard about something that was real hard to think about. It was the kind of thinking that would cause your face to get all scrunched up, and if you didn't stop or if someone didn't stop you - it would eventually make your head hurt. The expression came from our families when we figured something out: that's using your old noodle, they'd tell us. The noodle we eventually understood to be our brains, which, we reckon, do look something like noodles, though we were quite unaware of that fact. At the time, using your noodle was just one of those things our folks would say, and we could make sense of in a practical sort of way.

There is no rule that only kids can use the old noodle: you don't have to stop when you grow up, even if you do call it something more distinguished, like problem solving or critical thinking. The authors of this article are grown-up law teachers, which means that, whatever they call it, they are pretty much professional noodle users. This brings us to our problem. Explaining his opposition to even the mildest form of affirmative action Supreme Court Justice Clarence Thomas offered the anti-egalitarian maxim for the new millennium: Government cannot make us equal. Some folks see something quite appealing in this pithy little quote. Its attraction, however is superficial. In fact, we are fairly certain that the proposition is quite wrong. Government can make us equal, and, under current circumstances, it should. But demonstrating the errors in the proposition is no easy matter. It will take, we think, some serious use of the old noodle.

Fortunately, on this score, we have had good role models: our folks, our families, our friends. And Rodrigo.

Professor Richard Delgado is one of the founders of Critical Race Theory. He offers a template for critical thinking in two senses - not just the radicalism associated with Critical Legal Studies (CLS) and Critical Race Theory (CRT) of questioning received wisdom, but more importantly, critical thinking in the most basic philosophical sense. He is concerned with the criteria by which we test notions of justice, fairness, and equality - in short, the criteria of knowledge and reasoning. In this article, we develop the idea of critical thinking as a concept of basic philosophy and race reform. By critical thinking, we mean both the criteria of good reasoning and propositions that, if widely understood, would make a large percentage of the populace revise its background beliefs and world views. To operationalize this concept of critical thinking, we apply it to test Justice Thomas's assertion that Government cannot make us equal.

Equality, Equal, Critical thinking, Affirmative action, Critical Legal Studies, Critical Race Theory, Criteria of knowledge, Reasoning, Justice, Fairness, Equality, Neutral legal rules, Prejudice, Neutrality, Racism, Racial injustice, Formalism, Race Theory, Clarence Thomas

Abstract:
Much of jurisprudence is storytelling, recounting tales of what has gone before; improvising and crafting new stories of legal theory from old ones. Useful kernels are passed from one generation of legal thinkers to the next. Like tribal legends, the messages in many stories of jurisprudence can be understood only by a select audience. Legends often come with morals; theories of jurisprudence often impart prescription for living within the law. Jurisprudence, like legends, concerns fundamental issues, confronts cosmic questions and weaves in magic. Sometimes both possess humor as well.

Unfortunately, some modern versions of jurisprudential theories have become anecdotal. The legal storytellers engage in revisionist tales of history and the listeners selectively perceive. In many ways, we are not listening to our tribal legends. One of the stories of jurisprudence is of law and science. It is the tale of two tribes, each with its own legends, prescriptions and imagery. Different schools of jurisprudence have treated science in legal theory in varied ways. There have been scattered attempts to apply scientific frameworks to law to explain or predict outcomes, analyze data or support propositions relating to substantive issues. Some discuss ways in which the scientific model can operate on the decisional level. There has been no systematic attempt, however, to define the modern scientific method in the context of law or to analyze its application to jurisprudence. Recent jurisprudential theories contrast science with practical reason. Consequently, there is significant controversy over the use of the scientific method in jurisprudence.

This Article observes that the use of science in law has been limited by the assumption that principles of scientific inquiry must be abandoned when law faces value choices. It posits that the scientific method's criteria of validation can apply to decision about values as well as facts. It makes the claim that the principles of scientific inquiry are essentially criteria of rationality. To the extent that the goal of law is rationality, legal theory should follow the criteria contained in and adopt the values implied by the scientific method. This Article does not attempt to articulate a comprehensive theory of science, law or the intersection of the two; nor does it offer a positive program of scientific adjudications for decisionmakers. Its goal is to entice both jurists and theorists to think more systematically and self-analytically about their theories, reasoning, conclusions and areas of ignorance. This Article suggests that attention to the principles of scientific inquiry is one method of improving the rationality of legal decisions and theories.

Legends, Law, Science, Scientific Method, Reason, Inquiry, Values, Jurisprudence, Storytelling, Legal theory

Abstract:
A hazard lurks in any but the most careful representation of another's viewpoint. Call it "slippage" or the "essentialist error," the point is that communication rarely does complete justice to its object. The problem is compounded when the communication is mediated. We all know that between a story and its retelling, something will get lost in translation. Consider feminism, gay legal theory, and critical race theory, and their depictions in academic journals and the popular media. Newspapers and news magazines have recently published a spate of academic trash talk accusing critical race theorists of "playing the race card" and indulging in "a vulgar racial essentialism." Judge Richard Posner labeled critical race theorists and postmodernists the "lunatic core" of "radical legal egalitarianism." Posner is less harsh on critical legal studies and radical feminist scholars, who simply "have plenty of goofy ideas and irresponsible dicta."

This highly charged language is also sifting into respectable academic texts. Daniel Farber and Suzanna Sherry's book, Beyond All Reason, argues that the Enlightenment foundations of the legal academy are under attack from "the radical multiculturalists" including feminist, gay and lesbian, and critical race scholars who attack traditional concepts of objective truth, reason, merit, and the rule of law. According to Farber and Sherry, these "extremists" believe that reality is socially constructed, condemn reason and truth "as components of white male domination," and prefer storytelling over rigorous analytic scholarship. What this "motley group" of diverse legal theorists has in common "is an abandonment of moderation and a dearth of common sense." These critiques of critical theories span the continua of reason and civility; what they share, however, is a tendency to caricature feminist, gay, and critical race theory, and to preempt the possibility of public dialogue. These critiques suggest a breakdown in the civility of academic discourse and an extraordinary tolerance of intolerance.

This essay sets up the basic debate between traditionalists and critical theorists and explores the ways in which traditionalist critics of feminism, gay legal theory, and particularly critical race theory (collectively "critical theories"), adopt the armor of the Enlightenment--professing truth, reason, and moral certainties-- while accusing critical theorists of abandoning reason. It assesses the epistemological treatment of critical theorists by focusing on a leading academic example, Daniel Farber and Suzanna Sherry's Beyond All Reason. This essay questions how the traditionalist critique of critical theory fares according to its own criteria.

Using principles of reason--scientific method and logical or evidential evaluation-the essay examines whether "radical multiculturalists" engage in unreason when they urge a social constructionist or perspectival critique of systems of merit. The essay then explores the increasing intolerance critical theorists, particularly critical race theorists, face in response to their call for inclusion in society's collective decisionmaking. It concludes with a discussion of whether attention to reason and the process of academic discourse can promote more fruitful discussions between traditionalists and critical theorists.

Feminism, Gay legal theory, Critical race theory, Postmodern, Postmodernists, Critical race scholars, Essentialist, Essentialism, Reason, Multiculturalist, Critical theorists, Scientific method, Richard Posner, Practical Reason

Abstract:
The quantity of litigation in the federal courts has reached unprecedented heights. While this 'crisis of volume' has attracted the attention of legislators and scholars, the judiciary has been left to divine self-help measures to reduce litigants' use of the federal courts. The federal bench that must manage this caseload explosion includes a cadre of recently appointed federal judges. Many of these judges embrace the New Federalism, an initiative to shift governmental power and responsibility back to the states.

This article posits that the combination of judicial overload and injudicious federalism is operating to shunt certain classes of litigants away from federal courts. New procedural and substantive theories are being created to restrict federal jurisdiction. Federal courts are increasingly using the doctrines of preclusion, preemption, abstention and remand to shuttle cases or decision-making authority back to state courts. Complementing this procedural routing of cases is an expansion of summary procedures and a dramatic reduction in the scope of substantive constitutional rights.

This article questions the propriety of the judiciary's use of administrability concerns in the formulation of jurisdictional theories. While court efficiency appears to be a deserving goal, the current method of its implementation is through a reduction of court access to particular classes of litigants. The article analyzes the concept of administrability and posits that administrative efficiency is actually a value-laden argument for selecting which litigants should be permitted access to federal courts.

This article also critically examines whether the adjustment of jurisdictional theories by the judiciary is either an effective docket-clearing mechanism or a desirable institutional practice. Analysis of the assumptions underlying jurisdictional manipulation and the implications of judicial molding of Article III jurisdiction raises serious separation of powers and fairness concerns regarding the quest for administrative efficiency.

Finally, the article offers a new, access-expansive approach to jurisdiction. The proposed ratchet theory of jurisdiction creates a guiding principle of jurisdictional analysis. If the Constitution operates substantively like a one-way wrench - rights may be expanded but not contracted - a jurisdictional analog is imperative. Federal courts should adopt jurisdictional rules that offer the greatest chance of merits determinations.

Litigation, Federal courts, Judiciary, Jurisdiction, Federalism, Federal jurisdiction, Restraint, Judicial overload, Docket-clearing, Access, Caseload

Abstract:
One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights of sexual minorities. The article addresses the ways that portrayals of love and relationships have led to some LGBT litigation successes. It explores the tensions in building rights arguments on a foundation of heteronormativity. The suggestion I make here is to broaden the storytelling. Even if an equal protection challenge depends on substantial similarity to a benefitted group, and even if lawyers want to architect the best possible case, there may be ways to weave in compelling stories of more members of the community than simply the "white picket fence" plaintiffs.

The article then explores the role of science in litigating LGBT rights. Sexual minorities have had an awkward relationship with science because of the medicalization of homosexuality and the continued conception of transsexualism as pathology. What I urge here is a particular approach to the idea of scientific proof. LGBT rights litigators should push for courts to adopt a deeper and more thorough approach to scientific inquiry that insists on evaluating cumulative, comprehensive, and converging evidence. The arguments that have been most workable for the LGBT civil rights movement have been those premised on sameness, but those arguments do not work where courts perceive differences. Litigators should move beyond the heteronormative ideal by emphasizing the common features of personhood: those qualities of dignity and respect for the common humanity of all people. This emphasis would be on a different kind of sameness - shared humanity - and more robust versions of both love and science can help with these litigation efforts.

Lesbian, Gay, Bisexual, Transgendered, LGBT, Sexual minorities, Litigation, Tactics, Scientific proof, Scientific inquiry, Sameness, Equal protection, Pathology, Homosexuality

Abstract:
Black America, some people said, was dying. And they wondered what they would hear in the souls of white folk when white America heard the news.

Part of the story was told in June 1995, by the Supreme Court. The session of the Court had not been convened explicitly or exclusively to determine the fate of black America. Still, it was clearly on the agenda, with no less than three major race-related disputes on the High Court's docket.

And what the Court had to say on such matters did matter. As the highest tribunal in the land, it possessed the power to shape the law, and, the power to shape the larger society. This last point was the focus of academic debate--some questioned the societal impact of the Court's decisions--but this much remained certain: the law would play some role in shaping the development of societal conventions, and on matters of law, the words of the Supreme Court tended to be the final ones.

More importantly, the Court helped establish the parameters of cultural discourse. It was a major participant in the national political dialogue, and its voice carried an authority not often accorded its elected counterparts. Ironically, the paradigms it helped shape were not only legal ones: some were epistemological, some quite political, some downright moral. In reinforcing popular attitudes and beliefs, or in challenging them through new perspectives and dissonant information, the Court helped establish a national mood. It confirmed or denied the citizenry's sense of what is real and what is right. Over time, it transformed their sense of both the possible and probable, and forever changed the way the people saw one another and saw themselves. Yes, the Court's words mattered.

And what the Justices had to say on this occasion, in the closing weeks of their judicial term, might have mattered more than usual. Their words were addressed to the most intractable of national problems: the enduring dilemma of racial inequality. For a waiting nation--for judges, lawyers, lawmakers and their constituents, for teachers and students, parents and children, for the American people of every station, and every hue-- the Court would do no less than newly define the meaning of racial equality. It would be a progress report of sorts: how equal was America? But more importantly, it would set the agenda for the millennium. In this struggle for racial equality, what could be achieved, and how? Whose struggle was it, and when could it end? There were nine of them, one was black and eight were white, and they would need to explain what their souls had to say when they pondered the fate of black America.

They had chosen three specific issues to address: the racial desegregation of America's public schools; the national government's use of preferences or presumptions to benefit racial minorities; and the explicit reliance on race in the creation of electoral districts as a device to ensure minority representation in the federal legislature.

Doctrine, Narrative, Chronicles, Story, Stories, Race, Racial equality, Racial inequality, Segregation, Desegregation, Minorities, Minority, Preferences, Public schools, Racial imbalance, Affirmative action, Economically disadvantaged, Minority contractors, Discrimination, Redistricting

Abstract:
The legitimacy of capital punishment has long been intertwined with the integrity of the procedures for its imposition including opportunities for review on appeal and in collateral hearings. Proposed legislation would dramatically abbreviate the habeas process in capital cases. The proposed bills which would accelerate the imposition of death sentences are matched by an increased willingness by courts to employ summary proceedings to expedite habeas procedures. This acceleration in the imposition of death sentences is part of the larger picture in which capital cases receive different and less favorable constitutional treatment than other criminal or civil cases.

This article draws upon Herbert Marcuse's theories to suggest that capital punishment is founded on repressive legal doctrines and has been made tolerable to the American public by the judicial and media crafting of perceptions. The current system of execution exists only because the courts and the public are willing to tolerate conviction-prone juries, certain levels of geographic and racial arbitrariness in the imposition of the penalty, and a measure of pain in its infliction. The modest amount of post-conviction procedural protection afforded to the condemned has also been accepted with little question. A common perception is that death row inmates delay their executions by quibbling about procedural niceties and other errors - that they are accorded too much justice before they are killed, rather than not enough.

The focus of this article is on the rules and procedures that have been created in capital cases to expedite death. It suggests that the rules and methods of expedition - ranging from state statutes and federal court rules to ad hoc judicial decisions that order accelerated briefing - are far from simple procedural adjustments. Collapsing the time for adjudication of capital habeas cases has a powerful impact. Death row inmates, who have no right to counsel, who are generally uneducated, and who must psychologically prepare to die, are forced to comprehend several supremely complex areas of law, all within an accelerated time frame.

While the article submits that the only sensible solution to the defects of the capital conviction, sentencing and post-conviction process is abolition of the death penalty, it recognizes that this remedy is currently unreachable. Alternatively, the article suggests procedural due process challenges to expedited procedures in capital cases which may assist death row inmates and their counsel in playing for time when they are playing for keeps.

Capital punishment, Due process, Post-conviction, Habeas, Death sentence, Death penalty, Repressive tolerance, Oppression, Herbert Marcuse

Abstract:
The goal of this Article is to assess two Supreme Court desegregation decisions. It is our view that Board of Education v. Dowell and Freeman v. Pitts are, by almost every measure, seriously flawed decisions. The opinions of the Court rest on epistemic premises - reductionist views of race and racism, and an absurdly formalistic conception of equality - that are by turns either anachronistic, cramped and inauthentic, or demonstrably wrong. Worse, they promote a vision of American society - fragmented, hierarchical, and shamelessly individualistic - that is fundamentally inconsistent both with the egalitarian norms embodied in the Fourteenth Amendment and with the moral mandate that the Court once assumed on behalf of all Americans. And if our own jurisprudential leanings do not permit us to declare that these decisions are in error, they do not preclude us from insisting that Freeman and Dowell are, in human terms, utterly tragic. In the end, what Freeman and Dowell achieve may be nothing less than the virtual death of desegregation. The project is torn from its constitutional moorings; stripped of its history; isolated from its cultural contexts; and divorced, finally, from its moral underpinnings. What is left is an empty shell: a jurisprudence that is isolated, marginalized, and vacant. Consigned, perhaps, to irrelevance, the law of desegregation survives, for now, in a constitutional ghetto: an insular doctrinal realm where comprehension is impoverished and compassion subordinated. It is a place where human initiative seems futile, a place fast running out of hope.

Desegregation, Race, Racism, Racial, Equality, Inequality, Fourteenth Amendment, Equal Protection, Race neutrality, Segregation, Public schools, School system, School district, Constitutional law

Abstract:
All too often, attempts to define or evaluate good scholarship develop criteria of meritocracy that reinforce existing hierarchies. Some of the efforts are quantitative. They involve cataloguing articles as measured by overall citation rates, ranking law reviews by citation counts, or classifying articles on a "greatest hits" list. Or they may count citations to construct a list of articles most-often-cited in fancy publications. Other efforts to describe quality scholarship involve the construction of criteria of merit, often for purposes of pronouncing what sorts of scholarship qualify for tenure, and for disqualifying nontraditional ideas and forms of writing as unworthy. The concern has been too much with the mechanics, numbers, and creditworthiness of scholarship and too little with its foundational qualities.

This essay explores some defining characteristic traits or properties of jurisprudential scholarship that has been pathbreaking. The purpose is to elucidate what ways of thinking and writing are cutting edge. The essay draws significantly on modern critical theories, particularly feminist legal theory, and on historically developing criteria of rationality, to sketch the features that characterize promising work in legal theory. This essay proposes that theory-acceptance in law be evaluated instead by the criteria of rationality, which include the scientific method and theory development. The argument is that good scholarship may or may not be popular, but it will be theoretically sound. The essay then looks through the lens of these criteria at feminist legal scholarship, demonstrating how much of feminist legal theory, in comporting with these criteria, has been at the cutting edge of theoretically solid innovation in jurisprudence. Finally, it urges scholars to generate a new discussion regarding the criteria of theory-acceptance toward the end of creating innovative sparks that lead to better theory-building.

Scholarship, Legal scholarship, Evaluation, Criteria, Feminism, Feminist legal scholarship, Cutting edge, Critical theory, Rationality, Theory-acceptance, Quantitative analysis, Foundational, Empirical, Law review ranking, Principles of scientific method