Journal of Legal Education 

About: Journal of Legal Education is an academic journal. The journal publishes majorly in the area(s): Higher education & Legal education. It has an ISSN identifier of 0022-2208. Over the lifetime, 964 publications have been published receiving 4897 citations.

Freedom and Constraint in Adjudication: A Critical Phenomenology.

Abstract: ly than appeals to the raw equities immanent in \"the facts.\" Policy argument is \"second order\" in relation to rule application or argument from precedent. It presupposes conscious choice about how the structure of the field should look, as opposed to simple subsumption of the facts to a norm that I grasp non-reflectively as part of a gestalt. The arguer can pick and choose from a truly enormous repertoire of typical policy arguments and modify what he finds to fit the case at hand. The arguments come in matched contrary pairs, like certainty vs. flexibility, security vs. freedom of action, property as incentive to labor vs. property as incipient monopoly, no liability without fault vs. as between two innocents he who caused the damage should pay, the supremacy clause vs. local initiative, and so on. A policy is not invalidated just because I ignore it in a case where it arguably applies. Our rough notion is that the two sides of the matched pair \"differ in strength\" from case to case. We might see the property-as-incentive-to-labor argument as very strong if the issue is whether there should be any private rights at all in mechanisms of interstate commerce, but as quite weak if the question is whether there should be a right to prevent peaceful individual picketing of an interstate bus company involved in a labor dispute. The moment when I switch from one of the matched pairs to the other in response to a change in the fact-situation can be quite dramatic. In this case, I might firmly believe that the interests in security and peaceful access to public spaces strongly support state law criminal sanctions against the lie-in. I might then turn around and argue against a federal injunction of the lie-in, on the ground that people should have a right to nonviolent civil disobedient protest, even if it inconveniences the public and the employer, and that repressive measures will make violence more rather than less likely. In a typical legal argument, policies are elaborated and strongly asserted without regard to their matched pairs. When I argue for state law criminal penalties, I don't have to explain, either as judge or as advocate, the rational basis of my endorsement of \"nip it in the bud\" here, and my contrary endorsement of \"repression breeds violence\" when we get to the injunction. In a sense, then, the practice of legal arguers (lawyers, judges, treatise writers) is endlessly contradictory. I assert my policy as \"valid\" and as \"requiring\" an outcome, and then blithely reject it, and, in the next case, endorse its exactly matching opposite, without giving any meta-level explanation of what keys me into one side or the other. From the inside, however, I know from the beginning that this is just \"the way we do\" legal argument. I don't take the surface claim that the policy is \"valid\" and \"requires\" the outcome seriously at all. I work with a model of the opposing policies as forces or vectors, each of which has some \"pull on any given fact-situation. They seem logically contradictory (how can I believe, at the same time. that \"there should be no liability without fault,\" and that \"as between two innocents he who caused the damage should pay\") or so indeterminate that they can serve only as after-the-fact rationalizations of decisions reached on other grounds (who knows whether the injunction will \"nip violence in the bud\" or \"just drive it underground and make it Critical Legal Studies ______________________________________________________________________________ 62 Critical Phenomenology of Judging 535 worse”?). But there is a sense in which both policies are valid at the same time, in every case. The question is which one turns out to be \"stronger,\" or to weigh more in a \"balancing test\" applied to these particular facts, rather than which is correct in the abstract. We can represent the process of arranging cases in a field, and the process of fixing a boundary between permitted and forbidden acts, in terms of this imagery of vectors and balancing. For example, the imaginary mass picketing and individual picketing cases discussed earlier had fact situations and holdings, but they also \"involved\" or \"implicated\" various policies. The mass picketing case implicated the general social policy in favor of political association and the general social policy against the use of force to resolve disputes. (Each case implicates as many policies as I can plausibly think up. Those mentioned here are illustrative, not exhaustive.) Suppose we see the lie-in, in relation to mass picketing, as a \"better\" First Amendment case, and as a less serious interference with the employer's use of the m.o.p. during a strike. The \"second order\" interpretation of this intuitive ordering is that pro-speech policies apply more strongly, and pro-property policies less strongly, than in the mass picketing case. As we move from fact-situation to fact-situation across the field, the speech policy gets weaker, and the property policy stronger, until at the boundary they are in equilibrium. At this point a very small change in the relative forces of the policies produces a dramatic change in result. We \"draw the line\" and treat cases beyond the line repressively. What this means is that we have to add to our model of the field of law the notion that, at every point in the field, contradictory policies exert different levels of force. Boundary lines in the field represent points of equilibrium of opposing forces. At points not on boundaries, one or another set of policies predominates. The policies are to be understood as gradients; they are strongest in the \"core,\" where a given general rule seems utterly obvious in its application and also utterly \"appropriate as a matter of social policy.\" The argument set supporting the general rule diminishes in force as we move from the core outward toward the periphery, and ultimately to a boundary with another general rule. The boundary appears to me as \"there\" in three quite different ways. First, it is a line, a rule that was implicit in the statement of the general rule. For example, I may see the idea that there shall be no laws against \"free speech\" as implicitly including nonverbal expression. Second, the boundary is a line running through all the limiting cases. Suppose that individual but not mass picketing is all right; that threats of non-association with substitute workers but not threats to call demand notes are all right. The boundary \"connects the dots.\" Third, as we have just seen, the boundary is like the line in a magnetic field formed by iron filings exactly balanced between two distant magnets. State law criminal penalties against a lie-in are desirable and don't violate the first amendment, but the addition of a federal injunction is undesirable and would be unconstitutional, say, because the injunction is just a little bit \"too much.\" Critical Legal Studies ______________________________________________________________________________ 63 536 Journal of Legal Education We have already discussed legal argument as the restatement of general rules and the re-selection of facts so that a case that initially appeared \"covered\" by rule A turns out to be covered by rule B. And we have discussed the manipulation of the facts and holdings of precedents to redefine the boundary. My goal in policy argument is analogous. First, I develop a potential holding for my lie-in case, such as that there shall be no federal injunction of nonviolent civil disobedient protests in labor disputes. Then I develop some policy arguments as to why this rule is preferable to an alternative (usually a straw man) or to the rule proposed by the employer. For example, I argue that if the workers feel strongly enough to undergo arrest and criminal charges, they almost certainly feel strongly enough to do something violent if they are not permitted their symbolic protest. It follows that, far from \"nipping violence in the bud,\" an injunction will likely lead to unorganized individual acts of violence, such as shooting out bus tires on the open highway. But this argument is unlikely to be enough. Once I have taken the step into the \"second order,\" forsaking the strategy of mere rule application, I evoke in the mind of my audience the whole force field of this area of law. I will now have to take steps to preserve the coherence of the overall policy \"picture.\" This means restating policy arguments in other decided cases. For example, suppose that in the mass picketing case the court justified a prohibitory rule on the ground that unless you nip violence in the bud it develops until it is unstoppable. My problem is that in the lie-in case I am arguing that worker anger makes it important to tolerate civil disobedience, and this position seems inconsistent with a \"nipping in the bud\" strategy against mass picketing. In order to restore order to the field, I will \"distinguish\" the mass picketing case as follows. Mass picketing is essentially uncontrollable and naturally tends to escalate toward violence. In the civil disobedience case, by contrast, the police exercise detailed and intense control. Though the initial emotion may be greater in the lie-in, the setting allows the release of emotion without escalation. Since the situation is already under control but still serving to release emotion, an injunction is likely to be counterproductive overkill. [Let me remind the patient reader that I have no idea whether the preceding policy arguments and distinctions are \"any good,\" that is, whether they would be persuasive to a person a little knowledgeable in the field. One begins the work of legal argument enveloped in ignorance of what the law \"is\" and with little sense of what may be the conventional wisdom about how the law works in practice. I will find out about these matters by doing research and by asking people. In consequence, I'll flatly abandon some arguments while I develop others. What I am trying to do here is d

A Lawyer's Primer on Feminist Theory and Tort.

Abstract: Feminism is a dirty word.1 I never fail to be amazed at the strength of the hostility the word generates. Misconceptions abound. Feminists are portrayed as bra-burners, man-haters, sexists, and castrators. Our sexual preferences are presumed. We are characterized as bitchy, demanding, aggressive, confrontational, and uncooperative, as well as overly sensitive and humorless. No wonder many women, particularly many career women, struggle to distance themselves from the opprobrium appended to the label. "I am not a feminist; I'm safe; I'm ok," is the message they seek to convey. And for every woman that cowers from the word, even more men recoil and raise defenses that cloud their vision and deafen their ears.