The Laws of War in the Pre-Dawn Light: Institutions and Obligations in Thucydides' Peloponnesian War

This Essay in honor of Oscar Schachter criticizes both ahistorical renderings of the law of war and realist depictions of Peloponnesian War by asking whether Thucydides describes the conditions of a law of war. Examining the history in detail, Sheppard considers whether Thucydides described a sufficient institutional structure to recognize and enforce an intermunicipal law during war, as well as concepts of jus ad bellum and jus in bello. Despite the tradition of reading Thucydides as a realist, this Essay concludes that a more accurate reading would be that Thucidydes not only describes a form of a law of war but provided ample evidence of the benefits of its acceptance and the dangers of its breach

Teach Justice

To his fresh, young law students, Karl Llewellyn admitted that law schools, at least in the first year, aim “to get you ‘thinking like a lawyer.’” This moral power was intended to revive in the second year, when law students bring their “ethics out from under ether” but in a form “no longer at war with law or preventing you from seeing the legal question, but informing law, helping you solve and criticize . . . .” Nonetheless, law students’ ethics are hardly revived after the second year. Llewellyn and his followers so thoroughly purged most discussion of genuine ethics from the initial curriculum that law students and lawyers are now taught a process and not a purpose for the law. The thin ethics of professional responsibility and the cabined moral clash of constitutional law can hardly be said to develop a sense of right and wrong, or to enhance students’ skills in moral judgment. The result is an art wholly of technique and no aesthetic

The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State

In the hands of an honest merchant, the balance is an implement for fine comparisons of honest value. Used by a corrupt merchant, however, the balance is a tool for deceit, a scale in which truth is weighed against gold or pudding against praise. With this tension in mind, we consider the rhetoric of balance, and other modes of interpretation, in comparing the arguments of governments against those of citizens in constitutional adjudication

Caperton, Due Process, and Judicial Duty: Recusal Oversight In Patrons’ Cases

Two reasons may support the result in Caperton v. A.T. Massey Coal Co. First, though Caperton may indeed interject greater federal oversight of state judges as well as new oversight of the judges of courts of last resort, Caperton does not add a new review for most judges. Second, the due process of law must protect litigants from apparent corruption, or it cannot protect them from real corruption. Caperton arose in a messy lawsuit between two West Virginia energy companies—Harman Mining, headed by Hugh Caperton, and the A.T. Massey Coal Company, headed by Don Blankenship—which had gone to trial in 2002, resulting in a $50 million jury verdict for Caperton’s Harman Mining. Massey appealed the verdict. While the appeal moved up, Don Blankenship created a nonprofit entity that supported Brent Benjamin, a candidate challenging the state chief justice for reelection. When Blankenship’s case reached the state supreme court of appeals, Justice Benjamin, who had since been seated, refused to recuse himself, claiming that he would be unbiased in Massey’s case. Benjamin cast one of the deciding votes in a 3-2 decision to overturn the verdict. Caperton took the case to the United States Supreme Court, claiming that Harmon Mining, which was now defunct, had been denied due process of law by Benjamin’s vote. Justice Kennedy and a majority agreed. Due process of law forbids a judge to sit on a case involving a party who has just paid for that judge’s election to the bench. More to the point, every litigant in a court in the United States has a right to a judge who has not just been placed on the bench by that litigant’s opponent

The American Legal Profession in the Twenty-First Century

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic pressure and technological enhancement are changing the profession: some jobs once in firms are now in-house, and some basic tasks are outsourced. Persistent critics of law practice and law schools suggest the profession will shrink. But the evidence suggests that U.S. lawyers will continue to influence large global firms, as they will influence U.S. life, and likely in even greater numbers