Is the Supreme Court Disabling the Enabling Act, or is \u3cem\u3eShady Grove\u3c/em\u3e Just Another Bad Opera?

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, or legal rule, and must pay their lawyers to argue for or against all three possibilities. The Court’s most recent pronouncement on the issue, in the Shady Grove case, may have made the debate permanent, by turning it into one of constitutional principle as much as dueling theories of statutory interpretation, effectively disabling the Enabling Act as a rule of law. When something is broken beyond repair it is time to buy a new one, and when a judicial doctrine is confused beyond clarification it is time to start over. Or, at least that is what I shall argue

The Nature of Legal Dispute Bargaining

The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break the logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance can be difficult to appreciate, resist, and control, but it is something all dispute bargaining theory, adversarial and communitarian alike, must take into account. Theories that ignore it are limited to telling only part of the dispute bargaining story

Clinical Education in the Seventies: An Appraisal of the Decade

Presentation to the Clinical Section of the Association of American Law Schools

Assessing Experiential Learning, Jobs and All: A Response to the Three Professors

Does clinical practice experience improve a law student’s chances of getting a legal job? If not, would it, if employers were given better information about that experience? And if not, are there other reasons to justify a law school’s decision to fund a clinical program? The answer to the first two questions is almost certainly no. For many reasons—the uneven and situation-driven nature of clinical practice experience, the Delphic quality of practice evaluations, the availability of more effective in-house training options, and the like—most private law firms prefer to trust conventional academic credentials more than practice experience in deciding whom to hire. But the answer to the third question is just as certainly yes. What law delivers is as important as what it promises, and clinical education, at its best, teaches students how to deliver on law’s promises. The case for clinical education needs more substantive arguments, however, not pedagogical ones, if it is to silence the doubters. What new skills, bodies of knowledge, values, perspectives on the world, theories of justice, and the like, do students learn in clinical practice that they do not (or cannot) learn in conventional law school courses? Attempts to answer these questions are out there, and the questions themselves seem manageable, but more work needs to be done