In the annual IJA Brennan Lecture, Justice Melissa Hart of the Colorado Supreme Court and Doctor Kirsten Winek explore how American legal institutions could better prepare law students to meet the shortage of legal services available to many communities.
For nearly a century, the American Bar Association (ABA) has overseen the standards governing accredited law schools, which in turn constitute the primary pathway to the practice of law in the United States. ABA Standard 503 requires that all such schools use a “valid and reliable” examination to assess candidates for admission. Currently, the Law School Admission Test (LSAT) is the only examination that the ABA has officially recognized as satisfying the standard. However, the LSAT—now approaching its eightieth year—has strayed far from the purposes it was originally designed to serve. Once a simple tool to aid in the assessment of diverse applicants, it has in recent decades become a significant barrier to entry with disparate negative impacts on women, racial minorities, individuals of low socioeconomic status, and, perhaps most egregiously, those with disabilities. This Note argues that Standard 503 should be rescinded. Such a step is necessary both to stimulate innovation in law school admissions and to fulfill the ABA’s mandate of promoting diversity in the legal profession and serving the larger public good.
This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.
In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.
New technologies such as the VCR and Google Book Search can change the way copyrighted works are used, thereby making their innovators rich. Copyright owners are aware of these riches and often strategically sue the technology companies with the aim of gaining a share of the money. This dynamic—an innovator investing to create a new technology and a creator of a copyrighted work then suing for her share of the profits—creates an investment incentive problem. The dual goal of promoting the efficient creation of both new copyrighted works and new technologies that augment those works requires us to choose a legal rule that divides the gains from these new technologies between authors and innovators. The fair use doctrine—the statutory rule that allows some types of copyright infringement—is the legal rule that is used to do this dividing. However, economic theories of copyright law do not contain an analysis of investment incentives. This Note analyzes the effects fair use has on the incentives to create copyrighted works and to invest in technologies that affect those works.
This Note seeks to demonstrate the ripeness of early American legal periodicals as a subject of further inquiry by reading the American Law Journal (1808–1817), the first American law review, as a reflection of the changing nature of the legal profession at a crucial time in American history. Close analysis of the content and editorial choices of the journal suggests that the journal both reflects and addresses three early nineteenth century professional needs: the need to practice in a variety of jurisdictions and areas of law; the need to give voice and content to the emerging idea of a professional self-consciousness, which some scholars suggest developed only later in the century; and the need to respond to the internationalization of American legal and political affairs, which undercuts the arguments of many legal historians that the period marked an increasing tendency in American jurisprudence to look inward. The few scholars who have attempted to paint a picture of legal affairs in this transformative period have typically focused on the dockets of particular jurisdictions while overlooking legal periodicals. However, such sources can more accurately portray the state of the national legal profession given that a journal editor, unconstrained by state or regional boundaries, can incorporate cases and sources from a wide range of jurisdictions and on a varied array of topics. Furthermore, the fact that periodicals are necessarily dependent on a subscriber base suggests that such editors had to touch on issues of interest to subscribers from all across the country in order to stay afloat.
Brennan Lecture
In the Seventeenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Paul J. De Muniz, Chief Justice of the Oregon Supreme Court, discusses the challenges confronting state judiciaries in the face of economic crises and corresponding state budget cuts. Chief Justice De Muniz urges state court leaders to adopt the concept of reengineering to overhaul antiquated court management processes in favor of more efficient alternatives. Drawing from the Oregon state judiciary’s own efforts, Chief Justice De Muniz identifies court governance structures, case administration, essential court functions, and leadership as key targets in any successful reengineering endeavor.
The legal community has long recognized that indigent citizens often lack access to the judicial system. Pro bono programs and legal aid organizations have attempted to address this issue. In the Nineteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Wallace B. Jefferson, former Chief Justice of the Supreme Court of Texas, argues that there are barriers to justice not only for the indigent but also for middle-class Americans. He explores how our most valuable rights are often the least protected. Tenants subject to eviction rarely have counsel, veterans wait years to receive earned benefits, and juveniles cannot invoke the Sixth Amendment to challenge civil fines. Chief Justice Jefferson explores reforms and alternatives that are available when traditional paths to justice are blocked, and he highlights some of the obstacles faced in creating these alternatives.
New Approaches to Ensure Meaningful Participation
This Lecture discusses innovative approaches that courts are employing and developing to ensure that all participants in court proceedings have meaningful access to justice. Approaches include making the most of technological advancements to provide electronic access to information and to promote an understanding of the legal process, working with the legal community to provide representation to self-represented parties, and examining the legal process in order to simplify procedures, better manage cases, control costs, and provide workable alternatives to traditional methods for resolving disputes.
