Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes does not mean that therapeutic concerns ‘trump’ civil rights and civil liberties. TJ’s aim is to use the law to empower individuals, enhance rights, and promote well-being, And one of TJ’s central principles is a commitment to dignity. We know that, in many cases, law students’ desire to engage in pressing social issues fades as they become both disillusioned and passive over the course of their law school experience, and this disillusionment is often abetted by the attitudes of their professors and the way that law school is traditionally taught. We believe that the adoption of TJ principles is a way to end this disillusionment and help return students to a focus on social justice, as a way of better insuring more personally enriching and rewarding careers. In this paper, we consider this issue through the prism of teaching (and learning about) the intersection between sexuality and disability. In other articles, the authors have argued that the way society both (often simultaneously) demonizes and infantilizes persons with disability when questions of sexuality are raised reflects the level of sanism and pretextuality that permeates all of mental disability law. In these articles, we have argued further that a therapeutic jurisprudence perspective can best insure that the persons in question have voice, and are treated with dignity. In this paper, we discuss these issues, as well as examine the ways in which intersectionality — expanding our view to include factors such as race, sex, gender and sexual orientation — can compound the difficulty of discussing this topic. We seek to lay out a blueprint for other faculty members — senior, junior and future — to employ in teaching about marginalized populations, especially in substantive areas (such as this) that often evoke wildly negative reactions, even among classically “left/progressive” faculty and students.
{"title":"How Teaching About Therapeutic Jurisprudence Can Be a Tool of Social Justice, and Lead Law Students to Personally and Socially Rewarding Careers: Sexuality and Disability as a Case Example","authors":"M. Perlin, Alison J. Lynch","doi":"10.2139/SSRN.2564586","DOIUrl":"https://doi.org/10.2139/SSRN.2564586","url":null,"abstract":"Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes does not mean that therapeutic concerns ‘trump’ civil rights and civil liberties. TJ’s aim is to use the law to empower individuals, enhance rights, and promote well-being, And one of TJ’s central principles is a commitment to dignity. We know that, in many cases, law students’ desire to engage in pressing social issues fades as they become both disillusioned and passive over the course of their law school experience, and this disillusionment is often abetted by the attitudes of their professors and the way that law school is traditionally taught. We believe that the adoption of TJ principles is a way to end this disillusionment and help return students to a focus on social justice, as a way of better insuring more personally enriching and rewarding careers. In this paper, we consider this issue through the prism of teaching (and learning about) the intersection between sexuality and disability. In other articles, the authors have argued that the way society both (often simultaneously) demonizes and infantilizes persons with disability when questions of sexuality are raised reflects the level of sanism and pretextuality that permeates all of mental disability law. In these articles, we have argued further that a therapeutic jurisprudence perspective can best insure that the persons in question have voice, and are treated with dignity. In this paper, we discuss these issues, as well as examine the ways in which intersectionality — expanding our view to include factors such as race, sex, gender and sexual orientation — can compound the difficulty of discussing this topic. We seek to lay out a blueprint for other faculty members — senior, junior and future — to employ in teaching about marginalized populations, especially in substantive areas (such as this) that often evoke wildly negative reactions, even among classically “left/progressive” faculty and students.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123595223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Lawyers have a powerful voice in the American legal system, government, and news and entertainment businesses. But do they make their contributions to society while impaired? Lawyers suffer from higher levels of anxiety and depression than the rest of the population, but most do not start law school with these mental health issues. Lawyers rank fourth in professions with the most suicides, which may be linked to stress, anxiety, depression, and/or substance abuse. Law students, lawyers, and judges are vulnerable to substance abuse because drugs of abuse can make a lawyer feel less stressed. Disciplinary actions against attorneys involve substance abuse 50-75 percent of the time. These problems may start in law school where school events may teach students to “drink like lawyers.” Legal educators need a better understanding of what aspects or characteristics of legal education contribute to the decline in mental health of law students, lawyers, and judges, and neuroscience developments may provide this insight. Law students, lawyers, judges, and law professors will benefit from the knowledge of how stress and substance use effect the lawyer brain. This article describes the neurobiology of learning; explains the brain’s reward system; examines the neural impact of stress; details the transformational conditions of neuroplasticity, neurogenesis, and epigenetics; discusses lawyer addiction; and illustrates how medications such as antidepressants, and substances such as alcohol, nicotine, marijuana, caffeine, cocaine, study drugs, and opiates impact brain function. The article concludes with neuroscience-based recommendations for law students, lawyers, judges, law schools, and law firms to optimize brain health and lawyer wellness.
{"title":"Drink Like a Lawyer: The Neuroscience of Substance Use and Its Impact on Cognitive Wellness","authors":"Debra Austin","doi":"10.2139/SSRN.2503021","DOIUrl":"https://doi.org/10.2139/SSRN.2503021","url":null,"abstract":"Lawyers have a powerful voice in the American legal system, government, and news and entertainment businesses. But do they make their contributions to society while impaired? Lawyers suffer from higher levels of anxiety and depression than the rest of the population, but most do not start law school with these mental health issues. Lawyers rank fourth in professions with the most suicides, which may be linked to stress, anxiety, depression, and/or substance abuse. Law students, lawyers, and judges are vulnerable to substance abuse because drugs of abuse can make a lawyer feel less stressed. Disciplinary actions against attorneys involve substance abuse 50-75 percent of the time. These problems may start in law school where school events may teach students to “drink like lawyers.” Legal educators need a better understanding of what aspects or characteristics of legal education contribute to the decline in mental health of law students, lawyers, and judges, and neuroscience developments may provide this insight. Law students, lawyers, judges, and law professors will benefit from the knowledge of how stress and substance use effect the lawyer brain. This article describes the neurobiology of learning; explains the brain’s reward system; examines the neural impact of stress; details the transformational conditions of neuroplasticity, neurogenesis, and epigenetics; discusses lawyer addiction; and illustrates how medications such as antidepressants, and substances such as alcohol, nicotine, marijuana, caffeine, cocaine, study drugs, and opiates impact brain function. The article concludes with neuroscience-based recommendations for law students, lawyers, judges, law schools, and law firms to optimize brain health and lawyer wellness.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129403918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.
{"title":"Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, and the Forms","authors":"Brooke D. Coleman","doi":"10.2139/SSRN.2375042","DOIUrl":"https://doi.org/10.2139/SSRN.2375042","url":null,"abstract":"The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115794307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Rape and sexual violence against men in war remains largely invisible, yet pervasive across time and place. The silence around male rape raises critical questions about male bodies, gender, and power that have been largely ignored by legal scholars and international courts. While feminist and human rights scholars have theorized rape of women as a weapon of war, they have largely ignored sexual violence against men. Following the mass rape of women in former Yugoslavia and Rwanda, international tribunals recognized that sexual violence against women can constitute a weapon of war and a crime against humanity. In both conflicts, men were also raped, castrated, and sexually assaulted; yet male bodies are virtually absent from the international jurisprudence of gender violence during war. Drawing upon masculinities theory, this Article seeks to enrich feminist and human rights accounts of gender violence. Sexual violence against men and women during war are not separate phenomena, but rather are inter-related and mutually constitutive. Both function as gendered tools to empower particular male groups within specific social spaces. Further, sexual violence against men is best understood as part of a continuum of violence against men in society, from bullying of boys, to the rape of men in prison, and the sexual humiliation of Muslim Arab men in Abu Ghraib. Within these settings, sexual violence against men tends to be normalized, shaming its male victims and rendering the violence invisible. By illuminating male-on-male sexual violence, this Article seeks to enrich feminist accounts of gender violence to better explain both violence against men and women.
{"title":"SEXUAL VIOLENCE AGAINST MEN AND WOMEN IN WAR: A MASCULINITIES APPROACH","authors":"Valorie K. Vojdik","doi":"10.2139/SSRN.2271222","DOIUrl":"https://doi.org/10.2139/SSRN.2271222","url":null,"abstract":"Rape and sexual violence against men in war remains largely invisible, yet pervasive across time and place. The silence around male rape raises critical questions about male bodies, gender, and power that have been largely ignored by legal scholars and international courts. While feminist and human rights scholars have theorized rape of women as a weapon of war, they have largely ignored sexual violence against men. Following the mass rape of women in former Yugoslavia and Rwanda, international tribunals recognized that sexual violence against women can constitute a weapon of war and a crime against humanity. In both conflicts, men were also raped, castrated, and sexually assaulted; yet male bodies are virtually absent from the international jurisprudence of gender violence during war. Drawing upon masculinities theory, this Article seeks to enrich feminist and human rights accounts of gender violence. Sexual violence against men and women during war are not separate phenomena, but rather are inter-related and mutually constitutive. Both function as gendered tools to empower particular male groups within specific social spaces. Further, sexual violence against men is best understood as part of a continuum of violence against men in society, from bullying of boys, to the rape of men in prison, and the sexual humiliation of Muslim Arab men in Abu Ghraib. Within these settings, sexual violence against men tends to be normalized, shaming its male victims and rendering the violence invisible. By illuminating male-on-male sexual violence, this Article seeks to enrich feminist accounts of gender violence to better explain both violence against men and women.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"177 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133979329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In February of 2011, an Iowa high school boy captured national attention when he refused to wrestle a girl at the state championship meet. The media shaped the story into a tale that honored the boy for sacrificing personal gain out of a moral imperative to “never hurt a girl.” Unpacking this incident reveals several “fault lines” in U.S. culture that often derail gender equality projects: (1) religion/morality is interposed as an oppositional and equally weighty social value that neutralizes an equality claim; (2) the agency of persons supporting traditional gender norms is assumed, while the agency of persons contesting them is questioned; (3) opting out or “leveling down” is employed to reinforce status hierarchies while maintaining a semblance of formal equality (neither boy nor girl wrestles); and (4) de-contextualized strands of feminist theory are appropriated and co-opted in service of the existing gender order. This paper asks, what happens when sex equality law is interjected into this narrative? After examining the anatomy of the backlash to the threat to the gender order posed by the entry of girls into wrestling, this paper constructs an argument that Title IX obligates schools and athletic associations to take measures designed to deter gender-based forfeitures that deprive girls of athletic opportunity. It then explores a tougher question: does the introduction of a sex equality claim disrupt the conventional understandings of gender that emerged from this narrative? I ultimately contend that law has a potentially useful role to play in subverting the gender order, but that to do so it must engage the crucial dynamic at the heart of forfeiture incident: the construction of masculinity, both for the boy who forfeited and for the sport of wrestling itself. Feminist legal strategies must contend with how masculinity is constructed and valued for the boys and men who play sports in order to further advance the cause of girls’ and women’s equality in sports.
{"title":"Wrestling with Gender: Constructing Masculinity by Refusing to Wrestle Women","authors":"Deborah L. Brake","doi":"10.31228/osf.io/7vmy8","DOIUrl":"https://doi.org/10.31228/osf.io/7vmy8","url":null,"abstract":"In February of 2011, an Iowa high school boy captured national attention when he refused to wrestle a girl at the state championship meet. The media shaped the story into a tale that honored the boy for sacrificing personal gain out of a moral imperative to “never hurt a girl.” Unpacking this incident reveals several “fault lines” in U.S. culture that often derail gender equality projects: (1) religion/morality is interposed as an oppositional and equally weighty social value that neutralizes an equality claim; (2) the agency of persons supporting traditional gender norms is assumed, while the agency of persons contesting them is questioned; (3) opting out or “leveling down” is employed to reinforce status hierarchies while maintaining a semblance of formal equality (neither boy nor girl wrestles); and (4) de-contextualized strands of feminist theory are appropriated and co-opted in service of the existing gender order. This paper asks, what happens when sex equality law is interjected into this narrative? After examining the anatomy of the backlash to the threat to the gender order posed by the entry of girls into wrestling, this paper constructs an argument that Title IX obligates schools and athletic associations to take measures designed to deter gender-based forfeitures that deprive girls of athletic opportunity. It then explores a tougher question: does the introduction of a sex equality claim disrupt the conventional understandings of gender that emerged from this narrative? I ultimately contend that law has a potentially useful role to play in subverting the gender order, but that to do so it must engage the crucial dynamic at the heart of forfeiture incident: the construction of masculinity, both for the boy who forfeited and for the sport of wrestling itself. Feminist legal strategies must contend with how masculinity is constructed and valued for the boys and men who play sports in order to further advance the cause of girls’ and women’s equality in sports.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130140775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 Term.Building on the contributions of others, but with the addition of new insights, this Essay contains a point-by-point refutation of the arguments made by Justice Scalia in Harmelin. It demonstrates that the original understanding of the Cruel and Unusual Punishments Clause is not nearly as clear as the Harmelin plurality opinion pretends. To the extent that there was any consensus in 1791, it appears that the framers and ratifiers of the Clause contemplated that it encompassed some requirement of proportionality. The notion that the Clause was clearly understood as forbidding only certain methods of punishment is demonstrably false. Indeed, the use of the term “cruel or unusual” to constrain Congress’ power to punish violators of confederal customs laws under the Articles of Confederation strongly suggests that the term encompassed a proportionality component.
{"title":"Harmelin's Faulty Originalism","authors":"M. Mannheimer","doi":"10.2139/SSRN.2127660","DOIUrl":"https://doi.org/10.2139/SSRN.2127660","url":null,"abstract":"In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 Term.Building on the contributions of others, but with the addition of new insights, this Essay contains a point-by-point refutation of the arguments made by Justice Scalia in Harmelin. It demonstrates that the original understanding of the Cruel and Unusual Punishments Clause is not nearly as clear as the Harmelin plurality opinion pretends. To the extent that there was any consensus in 1791, it appears that the framers and ratifiers of the Clause contemplated that it encompassed some requirement of proportionality. The notion that the Clause was clearly understood as forbidding only certain methods of punishment is demonstrably false. Indeed, the use of the term “cruel or unusual” to constrain Congress’ power to punish violators of confederal customs laws under the Articles of Confederation strongly suggests that the term encompassed a proportionality component.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127811779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Information Technology (IT) surrounds us every day. IT products and services from smart phones and search engines to online banking and stock trading have been transformative. However, IT has made only modest and less than disruptive inroads into healthcare. This article explores the economic and technological relationships between healthcare and healthcare information technologies (HIT), asks (leveraging the work of Clayton Christensen) whether current conceptions of HIT are disruptive or merely sustaining, and canvasses various explanations for HIT’s failure to disrupt healthcare. The conclusion is that contemporary HIT is only a sustaining rather than disruptive technology. Notwithstanding that we live in a world of disruption, healthcare is more akin to the stubborn television domain, where similarly complex relationships and market concentrations have impeded the forces of disruption. There are three potential exceptions to this pessimistic conclusion. First, because advanced HIT is not a good fit for episodic healthcare delivery, we may be experiencing a holding pattern while healthcare rights itself with the introduction of process-centric care models. Second, the 2010 PCAST report was correct, the healthcare data model is broken. If Stage 3 of the MU subsidy program or some other initiative can fundamentally rethink interoperability (and we can fix the privacy issues) investment and innovation will migrate to data services built on top of shareable data. The final and potentially most interesting exception may be Mobile Medical Apps; products that are built on hugely disruptive platforms and championed by some of our most disruptive companies. Leveraging the growing computing power of smartphones and linkable biometric sensors, these apps hold the promise for “healthcare everywhere” and may be where the real disruption of healthcare will begin.
{"title":"Information Technology’s Failure to Disrupt Healthcare","authors":"N. Terry","doi":"10.2139/SSRN.2118653","DOIUrl":"https://doi.org/10.2139/SSRN.2118653","url":null,"abstract":"Information Technology (IT) surrounds us every day. IT products and services from smart phones and search engines to online banking and stock trading have been transformative. However, IT has made only modest and less than disruptive inroads into healthcare. This article explores the economic and technological relationships between healthcare and healthcare information technologies (HIT), asks (leveraging the work of Clayton Christensen) whether current conceptions of HIT are disruptive or merely sustaining, and canvasses various explanations for HIT’s failure to disrupt healthcare. The conclusion is that contemporary HIT is only a sustaining rather than disruptive technology. Notwithstanding that we live in a world of disruption, healthcare is more akin to the stubborn television domain, where similarly complex relationships and market concentrations have impeded the forces of disruption. There are three potential exceptions to this pessimistic conclusion. First, because advanced HIT is not a good fit for episodic healthcare delivery, we may be experiencing a holding pattern while healthcare rights itself with the introduction of process-centric care models. Second, the 2010 PCAST report was correct, the healthcare data model is broken. If Stage 3 of the MU subsidy program or some other initiative can fundamentally rethink interoperability (and we can fix the privacy issues) investment and innovation will migrate to data services built on top of shareable data. The final and potentially most interesting exception may be Mobile Medical Apps; products that are built on hugely disruptive platforms and championed by some of our most disruptive companies. Leveraging the growing computing power of smartphones and linkable biometric sensors, these apps hold the promise for “healthcare everywhere” and may be where the real disruption of healthcare will begin.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114582694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay was written for a symposium on the worst Supreme Court decisions. Globe Refining Co. v. Landa Cotton Oil Co. is not one of the more obvious choices for such a symposium. But it typifies a class of bad decision that pops up again and again.Globe Refining is the decision in which the Court set forth the "tacit agreement" test for consequential damages that do not come about in the ordinary course of events. That test requires not only that the promisor know of the potential source of damages, but that it "fairly be presumed he would have assented to [assume liability] if [the terms] had been presented to his mind."The test had no real roots in American law and few in English law. Nor could the Court reach the merits without taking a most peculiar approach to jurisdiction. Nevertheless, the Court mangled the law of jurisdiction in its eagerness to mangle the law of consequential damages.Globe Refining has been repudiated by an overwhelming majority of commentators and jurisdictions, though a few adhere to it still, and treatises and casebooks still take it into account if only to heap obloquy upon it. So why has so dubious a decision retained such effect? Because it was written by Oliver Wendell Holmes, apparently for reasons going well outside the record on appeal. Had the opinion been written by a lesser justice, it would long since have joined the mass of disused authority. But because it was written by the great Holmes, Globe Refining continues to get wildly inordinate attention. Hence the dark side of reputation. Holmes's justified stature gives even his loopier decisions undeserved authority, a phenomenon very much still with us. The challenge is to give due respect to ability while remaining skeptical about its exercise.
{"title":"Globe Refining Co. v. Landa Cotton Oil Co. and the Dark Side of Reputation","authors":"Larry T. Garvin","doi":"10.2139/SSRN.1969001","DOIUrl":"https://doi.org/10.2139/SSRN.1969001","url":null,"abstract":"This essay was written for a symposium on the worst Supreme Court decisions. Globe Refining Co. v. Landa Cotton Oil Co. is not one of the more obvious choices for such a symposium. But it typifies a class of bad decision that pops up again and again.Globe Refining is the decision in which the Court set forth the \"tacit agreement\" test for consequential damages that do not come about in the ordinary course of events. That test requires not only that the promisor know of the potential source of damages, but that it \"fairly be presumed he would have assented to [assume liability] if [the terms] had been presented to his mind.\"The test had no real roots in American law and few in English law. Nor could the Court reach the merits without taking a most peculiar approach to jurisdiction. Nevertheless, the Court mangled the law of jurisdiction in its eagerness to mangle the law of consequential damages.Globe Refining has been repudiated by an overwhelming majority of commentators and jurisdictions, though a few adhere to it still, and treatises and casebooks still take it into account if only to heap obloquy upon it. So why has so dubious a decision retained such effect? Because it was written by Oliver Wendell Holmes, apparently for reasons going well outside the record on appeal. Had the opinion been written by a lesser justice, it would long since have joined the mass of disused authority. But because it was written by the great Holmes, Globe Refining continues to get wildly inordinate attention. Hence the dark side of reputation. Holmes's justified stature gives even his loopier decisions undeserved authority, a phenomenon very much still with us. The challenge is to give due respect to ability while remaining skeptical about its exercise.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133435856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam - to think through the exam approach. The second, more subtle, purpose is to demonstrate that the law school exam can serve as a case study in the effectiveness of certain thinking tools that have much broader application. For that reason, this Article is not your typical “how-to” guide, but instead provides guidance critically and generally applicable to the thinking enterprise itself.
{"title":"'Thinking' in a Deweyan Perspective: The Law School Exam as a Case Study for Thinking in Lawyering","authors":"Donald J. Kochan","doi":"10.2139/SSRN.1954291","DOIUrl":"https://doi.org/10.2139/SSRN.1954291","url":null,"abstract":"As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam - to think through the exam approach. The second, more subtle, purpose is to demonstrate that the law school exam can serve as a case study in the effectiveness of certain thinking tools that have much broader application. For that reason, this Article is not your typical “how-to” guide, but instead provides guidance critically and generally applicable to the thinking enterprise itself.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"09 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127312526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While circuit courts are bound to follow circuit precedent under “law of the circuit”, the practice among federal district courts is more varied and uncertain, and routinely involves little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a “law of the district” similar to that of circuit courts. Through this narrow proposal, I explore the historical practices and policies of stare decisis in federal courts that are not Supreme.
{"title":"Stare Decisis in the Inferior Courts of the United States","authors":"Joseph Mead","doi":"10.2139/SSRN.1765145","DOIUrl":"https://doi.org/10.2139/SSRN.1765145","url":null,"abstract":"While circuit courts are bound to follow circuit precedent under “law of the circuit”, the practice among federal district courts is more varied and uncertain, and routinely involves little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a “law of the district” similar to that of circuit courts. Through this narrow proposal, I explore the historical practices and policies of stare decisis in federal courts that are not Supreme.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129383090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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