Tradition as Past and Present in Substantive Due Process Analysis

Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an oppositional view of past and present, and permit little opportunity for deeper, searching inquiry into what liberty interests are so deeply embedded in this Nation\u27s identity that they should be protected by the U.S. Constitution. The Essay presents a richer, interactive understanding of tradition as a continuity between past and present. Tradition represents what elements of our evolving past we wish to own in the present. The Essay explores this alternative view of tradition using as exemplars some judicial opinions in the substantive due process area, largely from the Court\u27s center. It argues that tradition does not deserve a place in substantive due process analysis simply because it represents a fixed truth from some distant past, nor should tradition be entirely rejected as a source of substantive due process rights simply because of its connection to the past. Understood as a source of our identity that is both inherited and changing, tradition can serve as a constructive focal point for determining substantive due process rights

Feminist Legal Scholarship: A History Through the Lens of the California Law Review

This Essay describes the evolution of feminist legal scholarship, using six articles published by the California Law Review as exemplars. This short history provides a window on the most important contributions of feminist scholarship to understandings about gender and law. It explores alternative formulations of equality, and the competing assumptions, ideals, and implications of these formulations. It describes frameworks of thought intended to compensate for the limitations of equality doctrine, including critical legal feminism, different voice theory, and nonsubordination theory, and the relationships between these frameworks. Finally, it identifies feminist legal scholarship that has crossed the disciplinary bound-aries of law. Among its conclusions, the Essay points out that as feminist scholarship has become more mainstream, its assumptions and methods are less distinct. It observes that even as feminist legal scholarship has generated important, insightful critiques of equality doctrine, it remains committed to the concept of equality, as continually revised and refined. The Essay also highlights the importance of feminist activism and practice in sharpening and refining feminist legal scholarship

Comparing Race and Sex Discrimination in Custody Cases

In her article Prof. Bartlett focuses on race and sex, not where they cross, but what they look like side by side using child custody as a starting point for a more detailed assessment of the similarities and differences between sex and race discrimination. The author focuses on the operation of, and attempts to eliminate, race and sex discrimination in child custody law, using a methodology of moving back and forth between examples of race discrimination and sex discrimination, showing how looking at one in relation to the other contributes to a better understanding of both

Reply: Good Intentions Matter

While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter crimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. In arguing that we should take people’s good intentions not to discriminate as a useful starting point for better workplace policies, rather than as the cynical exhibition of people’s self-delusion, I anticipated that the article would be dismissed as a fanciful and naïve denial of the existence of race and gender bias. In arguing that well-intentioned people can overcome their natural tendencies to discriminate, I was concerned about appearing to claim that good intentions are sufficient to end discrimination. In the case of the responses by Professor Mitchell and Professor Bielby, these fears were unwarranted. Article discussed: Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893 (2009

Storytelling

Review of: Abortion and Divorce in Western Law: American Failures, European Challenges. By Mary Ann Glendon. Harvard University Press, Cambridge, Massachussetts and London, England, 198