Tribe

I met Larry Tribe in 1997 at a dinner party in Cambridge, Massachusetts. Tointroduce me to her colleagues, Harvard Professor Martha Minow asked me which of the University\u27s scholars I would like to invite to my ideal dinner. As a newly minted professor, it took me a moment to realize this was not an interview question, but her characteristically generous attempt to construct a guest list. I asked for Larry Tribe and Helen Vendler. I had been lucky enough to take a seminar on modem poetry with Vendler as an undergraduate at Harvard. But neither Vendler nor I had met Tribe before.At one point in the evening, someone mentioned Vendler\u27s book on the odes ofJohn Keats.1 Tribe mused aloud about who John Keats might have grown up to be if he had lived past the age of twenty-six. (This off-hand reference to how old Keats was when he died was my first experience of Tribe\u27s intellectual range and photographic memory.) I think he would have grown up to be James Merrill, Vendler replied. I saw Tribe look up at her as she issued this extraordinary pronouncement. James Merrill, after all, was still alive. I thought each recognized a kindred spirit. She was forging the literary canon as he was forging the legal one. I felt I was in the presence of greatness

The Eclectic Model of Censorship

Censorship used to be a very dull subject. Aligned alongpredictable and venerable divisions separating liberals fromconservatives, oriented toward ancient and well-rehearsedchestnuts such as obscenity and national security, the topicpromised little of analytic interest.In recent years, however, the landscape of censorship hasaltered dramatically. Now feminists in Indianapolis join withfundamentalist Christians to seek the regulation of pornography.Critical race theorists join with Jesse Helms to regulate hatespeech. Advocates of abortion rights seek to restrict politicaldemonstrations while conservative pro-life groups defend thefreedom to picket (p. 1)

Assimiliationist Bias in Equal Protection: The Visibility Presumption and the Case of Don\u27t Ask, Don\u27t Tell

Equal protection heightened scrutiny jurisprudence currently privilegesthe talismanic classifications of race and, to a lesser extent, sex. Inconsidering arguments that other classifications be accorded heightenedscrutiny, the courts have required claimants to demonstrate the similaritiesthese classifications share with race and sex. Commonalities between thetwo paradigm classifications thus play a powerful gatekeeping role.Two commonalities emphasized by the courts are that race and sexostensibly mark individuals with immutable and visible traits. Aclassification will therefore be less likely to receive heightened scrutiny ifits defining traits can be altered or concealed. By withholding protectionfrom these classifications, the judiciary is subtly encouraging groupscomprised by such classifications to assimilate by changing or hiding theirdefining characteristic. This is an assimilationist bias in equal protection,which I will critique in this Article

\u3cem\u3eMiranda\u3c/em\u3e\u27s Fall?

If one wishes to revisit a classic, Albert Crunus\u27s The Fall is a riskier choice than Harper Lee\u27s To Kill a Mockingbird, which Steven Lubet eloquently discussed last year in these pages. It is not only that Camus\u27s work will be less familiar to legal audiences than Lee\u27s, despite the fact that The Fall is becoming recognized through critical revisitation as perhaps Crunus\u27s greatest novel. It is also that the legal protagonist of The Fall, Jean-Baptiste Clamence, does not have Atticus Finch\u27s immediate appeal. Finch is idealistic, Clamence is existential; Finch is pious, Clamence is debauched; Finch is hopeful, Clamence is mordant; Finch is American, Clamence is French; Finch is a lawyer, Clamence is an ex-lawyer who is now a judge-penitent. Indeed, the fall of the title describes Clrunence\u27s fall from being an idealistic attorney much in the mold of Finch to being the urbane, dissolute, and strangely knowing expatriate he is at the time he tells his story. At least regarding the question of whether it is possible to live greatly in the law, The Fall is a much darker and more disturbing work than To Kill a Mockingbird. It is a less charismatic classic - a song of experience rather than one of innocence. Yet like many songs of experience, Camus\u27s novel has a polyphony that simpler stock narratives about the law - or the simpler stock narratives that are the law- do not possess. Clamence is too urbane (to repeat the adjective that best describes him) to be a lawyer. He has seen too far into the world, and too deeply into himself, to believe, or even to pretend to believe, in the particularized determinations of guilt or innocence that the law requires. His urbanity causes him to leave his Finch-like career to adopt a hermit-like existence. He shifts from going to court (p. 17) to holding court in seedy bars (p. 3), from having many possessions (p. 120) to having little more than stewardship over a stolen van Eyck painting (p. 128), from arguing other people\u27s cases (p. 3) to ritually confessing his own sins (p. 139). So what can we learn from Clamence\u27s urbanity? In my view, it most starkly illuminates the nature of confessions. Among literary characters, Clamence is perhaps unsurpassed in his grasp of what confessions mean and how they work. To see this, we might begin by noting that the entire novel appears to be a monologic confession on Clamence\u27s part. At the novel\u27s inception, Clamence strikes up a conversation with a stranger in an Amsterdam bar. That conversation leads to a series of others over five days, in which Clamence reveals more and more about himself. While we discern Clamence responding to (and sometimes repeating) the stranger\u27s questions, we never hear any voice in the novel other than Clamence\u27s own. At the end of the novel, Clamence tells his interlocutor that he is engaged in ritual confession (p. 139) - like Coleridge\u27s Ancient Mariner, he finds listener after listener to whom to tell his life story