2 results
12 - Language
- Edited by Austin Sarat, Amherst College, Massachusetts, Matthew Anderson, University of New England, Maine, Cathrine O. Frank, University of New England, Maine
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- Book:
- Law and the Humanities
- Published online:
- 20 January 2010
- Print publication:
- 30 October 2009, pp 315-338
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- Chapter
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Summary
As I began to write this chapter, the intersections of law and language, more or less insistently visible in my quotidian scholarly and teaching praxis, were brought sharply into focus. I had for a semester been working collaboratively with a faculty colleague and two students on a clinical legal education project, my first direct involvement in live client clinical rather than simulation-based skills training.
As the spring semester began, the event to which our work had been directed, an asylum application hearing, took place in an ICE “family shelter” in rural Pennsylvania, where the clients had been detained for some months. They were able to see each other, it is true, and the shelter was evidently preferable to the jails in which they could well have been held, but although they could spend their days together, they were housed at night in separate cells (or rooms or dormitories) for men on the one hand, and women and children on the other. This situation complicated what “family” might be thought to signify in context – the enabling of what I will call familial, if not domestic or sexual, intimacy. So too the term “shelter” was complicated by its rendering, in context, euphemistic: “[t]he Berks County facility, a former nursing home in Leesport, Pa., about 50 miles northwest of Philadelphia, is ‘less jail-like,’ [than the notorious Hutto family shelter in Texas].…[However, i]t is part of a larger juvenile facility housing U.S. citizens charged with or convicted of crimes.
9 - Reviving the Subject of Law
- Edited by Francis J. Mootz III
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- Book:
- On Philosophy in American Law
- Published online:
- 31 July 2009
- Print publication:
- 23 March 2009, pp 73-80
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Summary
Legal realism seems to appear much in the recent (U.S.) news. The constitutional law scholar Carl Tobias (quoted in Doyle 2007) recently opined that the high level of 5–4 decisions by the Roberts Court signals that we – or at least they – are all (naive) realists now. Appropriating the realist thesis that judicial decisions are the product of judicial ideology, which in turn informed the critical legal studies perception that “law is politics,” to characterize the emergent jurisprudence of the current iteration of the nation's Constitutional Court, he suggested that the following conclusion is unexceptionable: the Justices do not behave as if law exists; rather, they vote their guts or their prejudices, their political or ideological commitments.
If he is right, the nation's Constitutional Court of final jurisdiction presently manifests an attitude toward making law that has come to characterize the decision making of the federal courts in the half century from Brown v. Board of Education to the post–September 11 constitutional jurisprudence of emergency. Confronted in the early 1960s by burgeoning appeals from prisoners and civil rights plaintiffs, the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, the heart of “massive resistance” to desegregation, developed a response to appeals it considered peculiarly burdensome. I have called this practice, now institutionalized nationally in federal and state appellate courts and in federal trial courts, the institutionalized unpublication of judicial opinions.