Whose Loyalties?

It is disconcerting to open a book subtitled An Essay on the Morality of Relationships and find that the two case studies that most interest the author are reciting the Pledge of Allegiance in public schools and the criminalization of flag burning. Although George Fletcher begins to make his case for giving moral priority to loyalties by referring to the impulse to save one\u27s mother from a burning house (p. 12), he is more concerned with the ties that bind individuals to groups than with the ethics of relationships between individuals. The loyalties to which Fletcher would give moral importance (p. ix) are those among people who share a common culture (p. xi). Yet, as is apparent in his opening reference to the imperiled mother, Fletcher wishes to ground those more far-reaching loyalties in the feelings inspired by family intimacy. The organization of the book assumes that the emotions felt in these two quite different contexts are analogous. In drawing out that analogy, Fletcher assumes that his own rather idiosyncratic views about family and state are widely shared. This results in a very confusing book, one that often leaves its conclusions obscure because it proceeds by assertion and assumption more than argument

Looking Back on Planned Parenthood v. Casey

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar\u27s articles on coerced confessions, Terry Sandalow\u27s essay on affirmative action, Joe Sax and Phillip Hiestand\u27s description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber\u27s demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most relevant to my project, Don Regan\u27s article on abortion and Martha Mahoney\u27s on separation assault. Civil rights doctrine is thin and vulnerable when it develops without any genuine effort to understand and articulate the significance of the right claimed to the protected class. The Supreme Court\u27s abortion law is an important example of this phenomenon. A woman\u27s right to choose to have an abortion free from state coercion was defined, developed, and constricted without any sustained effort on the part of the Court to articulate why such a right actually is important to women. The right has survived almost three decades but is now barely alive, apparently settled into a minimal existence, protected only against the most overwhelming of state incursions. In this Essay, I explore the implications of this failure. Part I discusses the compromise reached by the Supreme Court a decade ago in its last major abortion case, Planned Parenthood v. Casey. Part II argues that the undue burden test adopted in Casey protects women only against total prohibitions on their right to choose to have a safe abortion. Like traditional rules regarding rape, it requires women to resist to the utmost in order to preserve their liberty. Less serious burdens are classified as mere inconveniences. Part III points to two fine articles published in the Michigan Law Review as examples of scholarship informed by attention to women\u27s lives that should have expanded the Court\u27s perspective. Part IV contends that the choice to have an abortion is, for some women, both an unavoidable and an ethical decision. It argues that more attention to what abortion means to women ought to lead all the Justices to see the question as a true moral conflict, rather than a choice between morality on one side and convenience or amorality on the other

For Terry Sandalow - Challenger and Creator

In the popular imagination, legal education is the experience of sitting in a classroom and being pushed to think deeply by a brilliant and demanding teacher. Some law schools are lucky enough to have a faculty member who actually fulfills this expectation - one professor in particular whose courses are the testing ground for the very best and most engaged students. When I was a student at Michigan in the 1970s, and until his retirement last year at the end of the century, that teacher was Terry Sandalow. For many Michigan graduates, taking Federal Courts or Fourteenth Amendment from Professor Sandalow was the most stimulating and unsettling portion of our law school education. It is not hyperbole to say that Terry was a legendary law professor. He taught us the skeptical, uncompromising craft of legal analysis as a means of serious engagement with public issues

Individual and Community: An Appreciation of Mr. Justice Powell

When the nomination of Lewis F. Powell, Jr., to the Supreme Court of the United States was submitted to the Senate Judiciary Committee ten years ago, much was made of his extraordinary record of service to his city, his state, and his profession.1 Justice Powell\u27s career has been a model of individual responsibility to society. His belief in the value of civic life, and in the desirability of making such a life available to everyone, has been a dominant influence in his work on the Supreme Court. In what follows, I shall attempt to define some of the assumptions with which Powell appears to approach the problems-largely constitutional-that have come before him as a Justice. A theme can be discerned: Powell\u27s jurisprudence emphasizes the individual, but not the individual in isolation. Rather, it emphasizes the communal aspects of individual life, the expression of human variety through community. Justice Powell does not define the individual only, or even primarily, in terms of rights against other people or against government. Rather, he is concerned at least as much with the public life of a person, with responsibilities to institutions, to family, and to neighbors. These themes emerge most clearly in Justice Powell\u27s views of federal-state relations, where he takes pains to preserve the more accessible forms of government, and in his conception of the proper role of a judge. A judge, he believes, has a proper place only as a protector of individual rights, not as an expounder of broad principles or a general overseer of the quality of official conduct. And those rights with which judges properly are concerned should be defined with particularity and with sensitivity to opposing interests, including the interests of other individuals. The variety of human social organizations and the importance of these organizations to a rich and complete human life mean that judges must step cautiously even within their sphere of authority. Caution is important not only because these organizations are worth preserving, but also because judges are limited in their ability to understand and affect particular institutions through rules of general application. Justice Powell introduced his concern for community autonomy and its importance to the individual in one of the first opinions he authored as a Supreme Court Justice.2 In subsequent opinions, this theme is played out in Justice Powell\u27s concern with federal-state relations and with the proper role of a judge

The Reluctant Justice: Lewis F. Powell Jr. Personifies the \u27Quality of Attentiveness\u27

Lewis F. Powell Jr. came to the U.S. Supreme Court in 1972 reluctantly and at an age when many professionals are anticipating retirement rather than a career change. But the Court suited him. He grew to love the work, although he often found it agonizing, and he thrived on the role he played in the history of the Constitution

The Reluctant Justice: Lewis F. Powell Jr. Personifies the \u27Quality of Attentiveness\u27

Lewis F. Powell, Jr., came to the U.S. Supreme Court in 1972 reluctantly and at an age when many professionals are anticipating retirement rather than a career change. But the Court suited him. He grew to love the work, although he often found it agonizing, and he thrived on the role he played in the history of the Constitution. By the time he retired in 1987, after more than 15 years on the Court, Powell had come to represent a kind of ideal justice -- moderate, flexible, careful. In a sense, his entire life had been preparing him for this final, unexpected role

Looking Back on Planned Parenthood v. Casey

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar\u27s articles on coerced confessions, Terry Sandalow\u27s essay on affirmative action, Joe Sax and Phillip Hiestand\u27s description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber\u27s demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most relevant to my project, Don Regan\u27s article on abortion and Martha Mahoney\u27s on separation assault. Civil rights doctrine is thin and vulnerable when it develops without any genuine effort to understand and articulate the significance of the right claimed to the protected class. The Supreme Court\u27s abortion law is an important example of this phenomenon. A woman\u27s right to choose to have an abortion free from state coercion was defined, developed, and constricted without any sustained effort on the part of the Court to articulate why such a right actually is important to women. The right has survived almost three decades but is now barely alive, apparently settled into a minimal existence, protected only against the most overwhelming of state incursions. In this Essay, I explore the implications of this failure. Part I discusses the compromise reached by the Supreme Court a decade ago in its last major abortion case, Planned Parenthood v. Casey. Part II argues that the undue burden test adopted in Casey protects women only against total prohibitions on their right to choose to have a safe abortion. Like traditional rules regarding rape, it requires women to resist to the utmost in order to preserve their liberty. Less serious burdens are classified as mere inconveniences. Part III points to two fine articles published in the Michigan Law Review as examples of scholarship informed by attention to women\u27s lives that should have expanded the Court\u27s perspective. Part IV contends that the choice to have an abortion is, for some women, both an unavoidable and an ethical decision. It argues that more attention to what abortion means to women ought to lead all the Justices to see the question as a true moral conflict, rather than a choice between morality on one side and convenience or amorality on the other

Televising the Court: A Category Mistake (Symposium on Televising the Supreme Court)

The idea of televising Supreme Court oral arguments is undeniably appealing. Consequently, it is not surprising that reporters and politicians have been pressuring the Court to take this step. The other branches have been media-friendly for years, and Supreme Court arguments are already open to the public. Why should those of us who neither reside in Washington, D.C. nor have the time to attend Court proceedings be asked to depend on reporters for descriptions of the event? Even lower courts permit cameras. There is an understandable hunger for anything that will help us understand these nine individuals who have so much power—who can even choose a President, or at least hasten his anointment. Are the Justices refusing to reveal themselves because they prefer mystery, because they do not want the public to realize that the Court is a human institution after all? Whatever the Justices’ motives, televising the Court’s arguments is a terrible idea. It is both misleading and unnecessary. Misleading because it would only randomly tell us something useful about the Court, and unnecessary because the Court is already more open than the other branches

A Humanitarian Approach to Individual Injury

Individual injury law was once an important arena for the definition of shared values. It has increasingly become the domain of various species of systems analysts who measure legal results against external norms defined by such disciplines as economics. Although legal scholars continue to use the expectations and beliefs of ordinary men and women in fashioning rules for the redress of constitutional injuries, common-law scholars have become less willing to ground legal principles in moral consensus. There are notable exceptions. Among these is Professor Marshall Shapo, who, in two recent works, attempts to develop a legal analysis of injury that requires a substantial component of moral judgment (Duty, p. xiii), an analysis centered on humanitarian elements and considerations of fairness (Duty, p. xv)

An Essay on Texas v. Lesage

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus that section 1983 plaintiffs can recover nominal damages and, when actual injury can be established, damages for mental and emotional distress