Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention. The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use

Advocacy as an Exercise in Virtue: Lawyering, Bad Facts, and Furman\u27s High-Stakes Dilemma

Two of the conversations benefitting most from Jack Sammons\u27s scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, that is, a person who possesses an integrated set of virtues enabling her to live and act morally well. In the spirit of virtue ethics, this paper uses the primary defense brief in the consolidated cases known as Furman v. Georgia as an example of how good advocacy can help a lawyer practice virtue, particularly in what may be the most difficult brief-writing dilemma of all: dealing with bad facts

Legal Writing: A Doctrinal Course

Legal writing instruction in American law schools has come a long way. Although scattered experiential courses and co-curricular activities have existed since legal education moved into a university setting, the modern era of skills education began in the 1950s and 1960s, with the creation of live-client clinics at many law schools. Early legal writing programs soon followed, moving into the main stream of curricular reform during the 1980s and 1990s. As these new courses and new instructors moved into the academy, the language of legal education naturally changed. Law faculties found themselves wanting to describe these new additions to the curriculum and the new teachers hired to teach them. For law faculties, the need for new language arose from the presumed need to distinguish their own “traditional” courses from these new offerings and to distinguish themselves from these new teachers. To refer to courses like legal writing, clinics, client counseling, negotiations, externships, and trial practice, law faculties used terms like “skills” courses, “experiential” courses, “lawyering” courses, or “practice” courses. Sometimes courses in the other category – that is, courses like contracts, torts, tax, wills, and civil procedure – were described as “traditional” or “regular,” but before long, the most commonly used term was “substantive.” As the years went by, however, some law faculties learned more about the content of skills courses and came to a greater respect for both the courses and the teachers. Today the term “substantive” is heard less often in discussions of law school curricula, largely because describing non-skills courses as “substantive” incorrectly implies that skills courses have little substance. A number of newer terms have arisen to replace the word “substantive,” but perhaps the most common is “doctrinal.” Is “doctrinal” a better option? This paper explores the meaning of the term and finds that legal writing does, indeed, have its own doctrine. The paper therefore suggests avoiding the term “doctrinal” when it is used to distinguish legal writing from other courses. It also explores how the story of legal writing’s creation has limited early views of legal writing’s doctrine and makes some suggestions for addressing those limitations as the discipline matures

The Humanities in the Law School Curriculum: Courtship and Consummation

Today the humanities occupy a small corner of the law school curriculum. Might they instead become a more vibrant partner in legal education? Might law and humanities scholarship escape the pages of law reviews and teach us something important about how to read and understand the law? Despite the long theoretical dominance of legal realism in scholarly circles, much of legal education as we know it has remained mired in Langdell\u27s formalist vision of the law—a vision of a narrow, abstract, impersonal system bereft of human meaning and value. But we can do better. We can approach law, and teach our students to approach law, not as a set of rules but as a form of life. If we decide to take up this life-giving journey, it is the humanities that can show us the way

Speaking of Stories and Law

A recurring question in narrative scholarship has been the relationship of narrative to law. Most narrative scholars agree that stories are central to law. As Stephen Paskey recently pointed out, stories are more than a tool for persuasion. They are embedded in law’s very structure. But how does that work? Are rules just stories articulated in a different form? We have barely begun to explore narrative’s roles, but it is already clear that, in the words of Meryl Streep, “it’s complicated.” A conceptual map of what we’ve learned so far can help us unpack the complexity. Otherwise we may run into two problems: We may be less likely to understand and appreciate each other’s work, and we may have trouble thinking clearly about how law and narrative relate. This article takes a first run at a conceptual map, one that honors the work of narrative scholars of various stripes and explains how the strands in this rich body of work interrelate. With that proposed structure in mind, the article then offers some thoughts about how stories relate to rules. It argues that rules are not the opposite of stories, nor are they just stories in a different form. Rather, at every level of their creation, justification, interpretation, and application, rules are constructed from multiple narrative influences. Understanding these influences will produce judges better able to make good decisions and lawyers better able to perfect their craft. Much work remains to be done, but as the map demonstrates, we are well on our way

The Trouble with Categories: What Theory Can Teach Us about the Doctrine-Skills Divide

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction. This article does not exactly take sides in the typical skills debate. In fact, neither side will be entirely happy with the ideas presented here. But if we are to respond thoughtfully and effectively to calls for reform, everyone—“doctrinal” and “skills” faculty alike—will need to venture outside comfortable territory. To address the crisis in legal education, we need partners, not winners and losers. This article calls on history and metaphor theory to explain why it is so hard to work together across the doctrine/skills divide and why Carnegie’s promise has not been realized. Taking Carnegie’s diagnosis seriously, the article proposes a strategy for building new bridges instead of maintaining old walls

Hearing Voices: Non-Party Stories in Abortion and Gay Rights Advocacy

During the twelve years after Roe v. Wade, the Supreme Court considered a number of abortion issues, but Thornburgh v. American College of Obstetricians & Gynecologists was the first case to raise a direct call for Roe’s demise. The issues galvanized interests on all sides. Among the welter of amicus briefs was a remarkable brief destined to create a new, controversial, and potentially powerful form of appellate advocacy. Primarily authored by Lynn M. Paltrow, the brief was submitted on behalf of the National Abortion Rights Action League (NARAL). Like a Brandeis Brief, the NARAL brief relies on sources outside the trial court record. Unlike a Brandeis Brief, however, the NARAL brief does not treat women as the objects of social science research. It does not treat women as “other”—that is, using the distancing third-person pronoun “they.” Instead, living, breathing women, speaking with the first-person pronoun “I,” tell their own abortion stories. Never before had non-parties been able to speak directly to the Court in a proceeding that would profoundly affect their own lives and those of others like them. This is the story of that first “voices” brief, its young author, and its amazing civil rights legacy

Book Review: “The Good Lawyer: Seeking Quality in the Practice of Law”

In their first collaboration, The Happy Lawyer, the writing team of Nancy Levit and Doug Linder tackled a crucially important subject: how to have a happy life in the law. As part of that project, they interviewed more than two hundred lawyers about what makes them happy in their jobs. Levit and Linder noticed that happy lawyers nearly always talked about doing good work. Curious about the connection, the authors turned to recent research in neuroscience and learned, not to their surprise, that a key to a happy life is, indeed, the sense of doing good work. It is our good fortune that in their second collaboration, The Good Lawyer, Linder and Levit have turned their attention to unpacking what it means to “do good work” in the law. The Good Lawyer has many uses. It would be an excellent supplemental text for any law school course teaching professionalism, such as Professional Responsibility, Clinic, Legal Writing, or Externship. As part of the externship experience, students could use the text in their reflective writing requirement. Parts of it could be assigned as reading in typical doctrinal courses where the professor is consciously integrating skills and values, as recommended by the Carnegie Report. It would be an excellent basis for a CLE on lawyering & professionalism. It could be a useful part of a law firm’s orientation for its newer associates. Finally, it makes for stimulating reading for individual lawyers seeking to improve their own practice

Hearing Voices: Non-Party Stories in Abortion and Gay Rights Advocacy

Article published in the Michigan State Law Review

Watson v. Ft. Worth Bank and Trust: The Changing Face of Disparate Impact

Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in large part, on the vitality of the disparate impact proof model and its application to subjective employment criteria. This article, written 25 years after Title VII was passed, identifies the battleground and analyzes the United States Supreme Court’s struggle to define an impact proof model applicable to subjective criteria