Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?

The legal storytelling theme that is the focus of this symposium is part of a larger, ongoing intellectual movement. American legal scholarship of the past several decades has revealed deep dissatisfaction with the abstract and collective focus of law and legal discourse. The rebellion against abstraction has, of late, been characterized by a call to context. One strand of this complex body of thought argues that law should concern itself more with the concrete lives of persons affected by it. One key word in the dialogue is the term empathy, which appears frequently in the work of critical legal studies, feminist, and law and literature writers. The terms empathy, rule of law, and legal storytelling require closer scrutiny. Defining these terms is not easy, because many writers use the terms without clarifying their intended meaning, or define the terms differently from other writers. Moreover, the words often are used less as precise descriptions than as symbols of much broader concepts

Some Realism About Constitutional Liberalism

Book review: Ordered liberty: rights, responsibilities, and virtues. By James E. Fleming and Linda C. McClain, 2013. Cambridge, Mass.: Harvard University Press. 371 pages. Reviewed by Toni M. Massar

History Unbecoming, Becoming History

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation of gaylaw to American legal history. Eskridge builds his chapters around three discrete definitions of gay law: • Gaylaw is the ongoing history of state rules relating to gender and sexual non-conformity (p. 1). • Gaylaw is, also, reconceiving law from a more gay-friendly or gayneutral perspective (p. 2; emphasis added). • Gaylaw is, finally, derived from insights of the gay experience in America and its theoretical sibling \u27queer theory\u27 (p. 2; emphasis added). Under the first two definitions, he offers an excellent synthesis of the historical backdrop to modern laws and a cogent analysis of legal doctrine that addresses antigay policies. He makes a convincing case against these policies as well, given their frequently unpredictable, untoward consequences. Leaving behind the historical and pragmatic arguments, however, Eskridge plunges into a theoretical thicket in forging his third definition of gaylaw. He makes internally contradictory appeals to liberalism and to various postliberal models that undermine his doctrinal arguments, many of which depend heavily on liberal premises

Chilling Rights

A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to judicial review actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice. This Article proposes a new path forward. It first describes the constitutional and normative puzzle presented by the conventional account of the overbreadth doctrine of the First Amendment and synthesizes the leading works that address this puzzle. It also identifies emerging doctrinal trends that may compel the Court to square its rhetoric with its doctrinal reality and to align both with constitutional dictates. This Article then sets forth a straightforward test, under which facial challenges of overbroad laws that chill fundamental rights are treated uniformly. Free speech overbreadth doctrine illustrates the proper approach to analyzing all facial challenges to unconstitutionally overbroad laws. Moreover, this approach is grounded in due process principles that would govern in federal and state courts alike. The proposed test would not trigger a cascade of successful facial challenges, but would provide a constitutionally sound, rigorous, and intellectually accessible tool for courts to uproot patently and egregiously overbroad laws that threaten to ice fundamental rights