The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics

Ethicists, historians and sociologists have generally accepted the premise that the legal profession did not offer strong, public defenses of the adversary ethic (ethically neutral service of clients) until after 1870 when professional elites sought to rationalize their role in the rise of corporate capitalism. Prior to 1870, it has been argued, the legal profession was dominated by a civic republican ideology in which lawyers conceived their role as a form of public service dedicated to vindicating the interests of justice and morality even if that meant refusing to seek a client's lawful ends.This paper challenges both claims. Surveying antebellum law periodicals, the article reveals a robust debate on the definition and justifiability of the lawyer's role. In particular, the article examines defenses of the adversary ethic that were both more vigorous and far less apologetic than defenses offered today. Moreover, the article shows that the defenses came from legal elites, not simply Jacksonian levelers, and the defenses were couched in the discourse of civic republicanism - suggesting that morally activist lawyering was not the only conception of the role thought to be consistent with civic republican principles

The Ideal and the Actual in Procedural Due Process

The law proceduralists write about and teach is nothing like what most ordinary Americans experience when they step into court. Indeed, the evidence shows that most Americans who have legal problems do not ever get to court, nor do they receive a meaningful alternative hearing. In this way both judicial and academic discourse on procedure, even among those who see glaring problems of access to justice, is idealized, abstract, and ossified—unconnected to the actual. This Essay describes the ideal/actual divide in procedure—the cognitive, doctrinal and ideological effects of lingering on the ideal side of it, and the forms of subordination perpetuated on the actual side. The Essay begins by turning away from the federal courts, which decide less than two percent of all cases in the United States, in order to examine a series of recent cases and reports on the actual administration of justice in state courts, in state and federal administrative agencies, and in private arbitration. These, after all, are the forums in which ordinary people experience the administration of justice. The examples to which the Essay points draw into relief the extent of the ideal/actual divide, the scope of procedural failure in these settings, and the profound consequences for vulnerable and marginal populations. The Essay closes by calling for a reconceptualization of both pedagogy and procedural doctrine from the perspective of the actual. First and foremost, the reality of how procedure works for ordinary people, including how it fails them, must be studied more closely, taught more frequently, and incorporated into debates about procedural reform

Perfectionism and Maximum Consciousness in Anti-Discrimination Law: A Tribute to Judge Betty B. Fletcher

What follows is a speech on the significance of Judge Betty Binns Fletcher’s opinions in the area of race and anti-discrimination law delivered at the University of Washington School of Law’s symposium, A Tribute to the Honorable Betty Binns Fletcher, honoring Judge Fletcher’s thirtieth year on the bench. I argue that, in an era when the Supreme Court has increasingly refused to recognize anti-discrimination claims, Judge Fletcher’s intensely fact-sensitive method of deciding such cases is as important as the results she has reached. Against the Supreme Court’s perfectionist jurisprudence, predicated on the assumption that by excising race from law, one can eliminate discrimination in society, Judge Fletcher has developed a jurisprudence of maximum consciousness, predicated on the assumption that judicial officers are obliged by the Fourteenth Amendment and our history to remain acutely aware of the risk of slippage between seemingly rational, neutral social action and irrational stereotype, cognitive bias, and animus

Pulsed Photonuclear Assessment (PPA) Technique: CY-05 Project Summary Report

Idaho National Laboratory, along with Idaho State University’s Idaho Accelerator Center and Los Alamos National Laboratory, is developing an electron accelerator-based, photonuclear inspection technology, called the Pulsed Photonuclear Assessment (PPA) system, for the detection of nuclear material concealed within air-, rail-, and, primarily, maritime-cargo transportation containers. This report summarizes the advances and progress of the system’s development in 2005. The contents of this report include an overview of the prototype inspection system, selected Receiver-Operator-Characteristic curves for system detection performance characterization, a description of the approach used to integrate the three major detection components of the PPA inspection system, highlights of the gray-scale density mapping technique being used for significant shield material detection, and higher electron beam energy detection results to support an evaluation for an optimal interrogating beam energy. This project is supported by the Department of Homeland Security Office of Research and Development and, more recently, the Domestic Nuclear Detection Office