DENVER UNIVERSITY LA W REVIEW production argument." 5 At least as important, however, is the "qua... more DENVER UNIVERSITY LA W REVIEW production argument." 5 At least as important, however, is the "quality argument." '6 The quality argument, in the words of one federal judge, stems from the premise that "the absolute result of a trial is not as high a quality of justice as the freely negotiated, give a little, take a little settlement." 7 It is not just that ADR programs are supposed to be cheaper, faster, and provide more access-it is that ADR is supposed to yield better justice. As Richard Abel summarizes proponents' claims, informal justice "expresses certain fundamental values; rapid and thorough airing of controversies, participation by the disputants in resolving their own conflicts, reduction of dependence on professionals, and greater involvement of citizens in an essential aspect of democratic government." The present essay, originally composed as a workshop report, is intended as a self-standing comment. My aim is to explore the quality argument in light of contemporary work on the theory ofjustice, utilizing the workshop discussions as a reservoir of themes, arguments, and illustrative material. Some of what I say synthesizes related points made by several workshop participants, or extrapolates from their stated views. Imitating Thucydides, "my method has been, while keeping as closely as possible to the general sense of the words that were actually used, to make the speakers say what, in my opinion, was called for by each situation." 9 The essay is in three principal sections, each with subsections. The first section draws some distinctions among theories ofjustice. The second section addresses the very important question of whether ADR should measure itself against the baseline of adjudication or the baseline of unmediated negotiation. The third section surveys contending accounts of what constitutes the quality ofjustice in ADR. I. THE FORMS OF JUSTICE All Generalizations are Loose and Imperfect At the outset, we must remind ourselves of Montaigne's self-referential warning that "all generalizations are loose and imperfect." As Howard Bellman stresses, ADR is far too broad a category to say anything sensible about. ADR includes, after all, mediators and arbitrators, but also "med-arbs," "reg-negs" (regulatory negotiators), ombudsmen, judges engineering settlements in conference or conducting summary jury trials, special masters, conciliators, purveyors of mini-trials, and
Lawfare e o uso do Direito como arma de guerra contra um adversario militar. Os criticos dessa te... more Lawfare e o uso do Direito como arma de guerra contra um adversario militar. Os criticos dessa tecnica reclamam que os autoproclamados “humanitarios” estao verdadeiramente engajados no abuso politico e partidario do Direito, ou seja, praticam o lawfare. Este artigo volta o espelho aos proprios criticos do lawfare e argumenta que sua critica nao e menos abusiva ou politica que o seu suposto alvo. Esses criticos enxergam o direito humanitario com desconfianca, como nada mais do que um instrumento utilizado por adversarios fracos contra fortes poderes militares. Ao desconfiarem do direito humanitario, atacando a motivacao dos advogados humanitarios, eles enfraquecem o argumento desinteressado e a validade de sua propria critica. Este artigo explora as visoes politica e juridica fundamentais a critica do lawfare por meio de uma leitura do estudioso mais significativo que defende essa visao, o jurista alemao Carl Schmitt. Atraves da leitura e critica de Schimitt, o artigo examina tanto ...
The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as f... more The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as fiduciary" may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversar...
The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White surv... more The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid-1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Supreme Court in American history, but arguably the only liberal Supreme Court in American history. Is there any reason, beyond a nostalgia that is by no means universally shared, to continue discussing the Warren Court? It seems that nearly everyone now agrees that judicial activism is pernicious and judicial restraint desirable. And everyone seems to believe that this opinion, if true, requires one to discard the Warren Court's jurisprudence. I will argue that these conclusions are mistaken, for the hackneyed contrast between activism and restraint misses the true significance of the Warren Court, the real reason that its jurisprudence merits continued discussion. That significance lies not in the Warren Court's transformation of the judicial role, but in its transformation of the concept of a legal right. The problem with focusing on judicial role is this: "Judicial activism" and "judicial restraint" originated as obscure lawyers' terms for concepts that had a fairly precise meaning, or rather, a handful of fairly precise meanings. To Holmes's law partner and Brandeis's teacher James Bradley Thayer, who wrote the first major article on the subject, the doc-"
Enemy of all humanity' captures both points, with the intense word 'enemy' signifying the heinous... more Enemy of all humanity' captures both points, with the intense word 'enemy' signifying the heinousness factor and '… of all humanity' indicating universal concern. There is a third point as well: 3. The word 'humanity' matters. 'Humanity' is not merely shorthand for the set of all human beings, for the perpetrators, their henchmen, and their supporters may number in the millions, and in their eyes the perpetrator is no enemy. Thus, if 'humanity' is used only descriptively, propositions like Hannah Arendt's claimed discovery of a 'new type of
Should a prosecutor throw a case to avoid keeping men he thinks are innocent in prison? The start... more Should a prosecutor throw a case to avoid keeping men he thinks are innocent in prison? The startling case of justice gone awry in the Palladium nightclub murder raises new questions about the role that conscience should play in lawyers ethics, when conscience presses one way but professional rules press the other.
tackle an important but underdiscussed problem in legal ethics: the problem of connecting normati... more tackle an important but underdiscussed problem in legal ethics: the problem of connecting normative theories about professional duties with a plausible psychology of action. As they felicitously put it, legal ethics must answer not only questions about what a lawyer must do, but also questions about how a lawyer must be-their shorthand, I take it, for "how a lawyer must be in order to do what (according to the theory) a lawyer must do." They plausibly suggest that ethical theories offer not only maxims of obligation and moral reasoning, but also idealized portraits of the moral agent. Actions that come easily to one personality type may be excruciatingly painful or embarrassing to another. Once we notice this crucial connection between actions and personality, we open up a new dimension for evaluating the theories: evaluating the portrait of the moral agent implicit in the theory. Viewed in this light (they argue), theories of legal ethics that might otherwise seem plausible can fail if they turn out to require lawyers to be an implausible kind of person, in one or more of the following ways: someone who is a misfit in the professional settings in which lawyers ordinarily work; someone who must possess cognitive capacities and moral virtues at an unrealistically high level; or someone whose overall personality turns out to be morally undesirable. Here I am paraphrasing the three criteria Woolley and Wendel specify for evaluating conceptions of how a lawyer must be: "whether that conception is functional, realistic or desirable." 1 Using these criteria, they raise doubts about the theories of William Simon, Charles Fried, and me. According to Woolley and Wendel, Simon's theory requires lawyers who are mavericks, and my theory requires lawyers who are (excessively?) moralistic; both are highly individualist to an extent that might make the legal profession impossible to regulate, and both require lawyers who are unusually smart and itive biases. Fried's theory, on the other unrealistically free from cogn
This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progress... more This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progressive public-interest lawyers to bring cases. It asks a simple-sounding question: how just is the adversary system if one side is not adequately represented in it? And it defends a simple-sounding answer: It is not just at all. As we shall see, however, neither the question nor the answer is quite as simple as it sounds. Like most issues implicating distributive justice, the question of who has access to lawyers and who does not has become a political football. Political partisans do not care about impartial justice. They care about rewarding their friends and defeating their enemies, and that means ensuring that their enemies receive as little money as possible, including money to pay for legal advocacy. Advocacy, after all, might be used to turn the tables. In the last few years, a disturbing pattern of legal attacks on publicinterest lawyers has emerged, targeting every one of the principal sources of support for progressive public-interest law: the Legal Services Corporation ("LSC"), state Interest on Lawyers Trust Account ("IOLTA")
I owe a special debt of gratitude to Thomas Grey, who has corresponded with me about Holmes for y... more I owe a special debt of gratitude to Thomas Grey, who has corresponded with me about Holmes for years. While disagreeing forcefully with some of the basic points of my interpretation, Grey has unfailingly encouraged me. His is an attitude that Holmes would have appreciated. ple legitimate meanings of the term is RICHARD A.
Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym ... more Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym for honesty, but the word means much more than honesty alone. It means wholeness or unity of person, an inner consistency between deed and principle. "Integrity" shares etymology with other unity-words-integer, integral, integrate, integration. All derive from the Latin integrare, to make whole. And the person of integrity is the person whose conduct and principles operate in happy harmony. Our psyches always seek that happy harmony. When our conduct and principles clash with each other, the result, social psychology teaches us, is cognitive dissonance. And dissonance theory hypothesizes that one of our fundamental psychic mechanisms is the drive to reduce dissonance. You can reduce dissonance between conduct and principles in two
The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfil... more The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC's job is not to rubber-stamp administration policies, and it is not to provide
This volume brings together the most important writing on torture and the 'war on terror by o... more This volume brings together the most important writing on torture and the 'war on terror by one of the leading US voices in the torture debate. Philosopher and legal ethicist David Luban reflects on this contentious topic in a powerful sequence of essays including two new and previously unpublished pieces. He analyzes the trade-offs between security and human rights, as well as the connection between torture, humiliation, and human dignity, the fallacy of using ticking bomb scenarios in debates about torture, and the ethics of government lawyers. The book develops an illuminating and novel conception of torture as the use of pain and suffering to communicate absolute dominance over the victim. Factually stimulating and legally informed, this volume provides the clearest analysis to date of the torture debate. It brings the story up to date by discussing the Obama administration's failure to hold torturers accountable.
What are the roots of Critical Legal Studies? "The immediate intellectual background. .. is the. ... more What are the roots of Critical Legal Studies? "The immediate intellectual background. .. is the. .. achievement of early twentieth century modernism ... ," 1 writes Roberto Unger in his CLS manifesto; he elaborates this modernist connection in his deep and subtle book Passion. 2 Other CLS members also draw parallels between their endeavor and artistic modernism. J Obviously, CLS is first and foremost a movement of left-leaning legal scholars; it is also associated with distinctive theoretical claims about law. But it should be equally obvious that CLS involves sensibilities and affinities that are strikingly similar to those of an artistic avant-garde. Moreover, CLS lives in a complicated relationship to its past and to its institutional setting-it simultaneously rejects and builds upon mainstream legal theory, simultaneously reviles and depends upon the legal academy. These ambivalences are strikingly similar to the relationships of artistic modernists to premodern art (on the one hand) and to the commercial art world (on the other). Social facts like these are never merely superficial; thus, they provide ample reason to consider carefully CLS' connection with artistic modernism. That is my purpose in this essay. The thesis that I want to explore here is roughly this: CLS is to legal theory as modernist art was to traditional art. CLS is legal modernism.
sonal instrument of governance, it is, quite simply, identical to death. "Death is integral to Am... more sonal instrument of governance, it is, quite simply, identical to death. "Death is integral to American law," he writes (p. 136). Expanding on this theme, he castigates Felix Frankfurter's insistence that law is "not the application of merely personal standards but the impersonal standards of society which alone judges, as the organs of Law, are empowered to enforce," 3 responding: "In that statement, or so I ask you to consider, in that tum of mind, death takes textual form" (p. 137). The field of social action that we call law is an arena in which God's Word may or may not be enacted; only law animated by the Word can be anything other than death. Ball's theology of law is, second, an essential step preparatory to thinking about ethics in law-"the kind of description that is necessary to ethics and precedes it" (p. 100). As Ball explains this point: A book on ethics would be composed of an elaboration of ... stories and examples ... that are types of specific, episodic service of the neighbor, including service of the neighbor ... by remaking dehumanizing institutions. These would be stories and examples of the Word taking formaction that is the responsibility and choice of humans, but action that is responsive to and engendered by the Word .... In this book, I am attempting a description of the environment of decision in a given field of activity: the Word active and present in the practice oflaw. [pp. 99-100]
Modern human rights instruments ground human rights in the concept of human dignity, without prov... more Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.
DENVER UNIVERSITY LA W REVIEW production argument." 5 At least as important, however, is the "qua... more DENVER UNIVERSITY LA W REVIEW production argument." 5 At least as important, however, is the "quality argument." '6 The quality argument, in the words of one federal judge, stems from the premise that "the absolute result of a trial is not as high a quality of justice as the freely negotiated, give a little, take a little settlement." 7 It is not just that ADR programs are supposed to be cheaper, faster, and provide more access-it is that ADR is supposed to yield better justice. As Richard Abel summarizes proponents' claims, informal justice "expresses certain fundamental values; rapid and thorough airing of controversies, participation by the disputants in resolving their own conflicts, reduction of dependence on professionals, and greater involvement of citizens in an essential aspect of democratic government." The present essay, originally composed as a workshop report, is intended as a self-standing comment. My aim is to explore the quality argument in light of contemporary work on the theory ofjustice, utilizing the workshop discussions as a reservoir of themes, arguments, and illustrative material. Some of what I say synthesizes related points made by several workshop participants, or extrapolates from their stated views. Imitating Thucydides, "my method has been, while keeping as closely as possible to the general sense of the words that were actually used, to make the speakers say what, in my opinion, was called for by each situation." 9 The essay is in three principal sections, each with subsections. The first section draws some distinctions among theories ofjustice. The second section addresses the very important question of whether ADR should measure itself against the baseline of adjudication or the baseline of unmediated negotiation. The third section surveys contending accounts of what constitutes the quality ofjustice in ADR. I. THE FORMS OF JUSTICE All Generalizations are Loose and Imperfect At the outset, we must remind ourselves of Montaigne's self-referential warning that "all generalizations are loose and imperfect." As Howard Bellman stresses, ADR is far too broad a category to say anything sensible about. ADR includes, after all, mediators and arbitrators, but also "med-arbs," "reg-negs" (regulatory negotiators), ombudsmen, judges engineering settlements in conference or conducting summary jury trials, special masters, conciliators, purveyors of mini-trials, and
Lawfare e o uso do Direito como arma de guerra contra um adversario militar. Os criticos dessa te... more Lawfare e o uso do Direito como arma de guerra contra um adversario militar. Os criticos dessa tecnica reclamam que os autoproclamados “humanitarios” estao verdadeiramente engajados no abuso politico e partidario do Direito, ou seja, praticam o lawfare. Este artigo volta o espelho aos proprios criticos do lawfare e argumenta que sua critica nao e menos abusiva ou politica que o seu suposto alvo. Esses criticos enxergam o direito humanitario com desconfianca, como nada mais do que um instrumento utilizado por adversarios fracos contra fortes poderes militares. Ao desconfiarem do direito humanitario, atacando a motivacao dos advogados humanitarios, eles enfraquecem o argumento desinteressado e a validade de sua propria critica. Este artigo explora as visoes politica e juridica fundamentais a critica do lawfare por meio de uma leitura do estudioso mais significativo que defende essa visao, o jurista alemao Carl Schmitt. Atraves da leitura e critica de Schimitt, o artigo examina tanto ...
The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as f... more The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as fiduciary" may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversar...
The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White surv... more The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid-1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Supreme Court in American history, but arguably the only liberal Supreme Court in American history. Is there any reason, beyond a nostalgia that is by no means universally shared, to continue discussing the Warren Court? It seems that nearly everyone now agrees that judicial activism is pernicious and judicial restraint desirable. And everyone seems to believe that this opinion, if true, requires one to discard the Warren Court's jurisprudence. I will argue that these conclusions are mistaken, for the hackneyed contrast between activism and restraint misses the true significance of the Warren Court, the real reason that its jurisprudence merits continued discussion. That significance lies not in the Warren Court's transformation of the judicial role, but in its transformation of the concept of a legal right. The problem with focusing on judicial role is this: "Judicial activism" and "judicial restraint" originated as obscure lawyers' terms for concepts that had a fairly precise meaning, or rather, a handful of fairly precise meanings. To Holmes's law partner and Brandeis's teacher James Bradley Thayer, who wrote the first major article on the subject, the doc-"
Enemy of all humanity' captures both points, with the intense word 'enemy' signifying the heinous... more Enemy of all humanity' captures both points, with the intense word 'enemy' signifying the heinousness factor and '… of all humanity' indicating universal concern. There is a third point as well: 3. The word 'humanity' matters. 'Humanity' is not merely shorthand for the set of all human beings, for the perpetrators, their henchmen, and their supporters may number in the millions, and in their eyes the perpetrator is no enemy. Thus, if 'humanity' is used only descriptively, propositions like Hannah Arendt's claimed discovery of a 'new type of
Should a prosecutor throw a case to avoid keeping men he thinks are innocent in prison? The start... more Should a prosecutor throw a case to avoid keeping men he thinks are innocent in prison? The startling case of justice gone awry in the Palladium nightclub murder raises new questions about the role that conscience should play in lawyers ethics, when conscience presses one way but professional rules press the other.
tackle an important but underdiscussed problem in legal ethics: the problem of connecting normati... more tackle an important but underdiscussed problem in legal ethics: the problem of connecting normative theories about professional duties with a plausible psychology of action. As they felicitously put it, legal ethics must answer not only questions about what a lawyer must do, but also questions about how a lawyer must be-their shorthand, I take it, for "how a lawyer must be in order to do what (according to the theory) a lawyer must do." They plausibly suggest that ethical theories offer not only maxims of obligation and moral reasoning, but also idealized portraits of the moral agent. Actions that come easily to one personality type may be excruciatingly painful or embarrassing to another. Once we notice this crucial connection between actions and personality, we open up a new dimension for evaluating the theories: evaluating the portrait of the moral agent implicit in the theory. Viewed in this light (they argue), theories of legal ethics that might otherwise seem plausible can fail if they turn out to require lawyers to be an implausible kind of person, in one or more of the following ways: someone who is a misfit in the professional settings in which lawyers ordinarily work; someone who must possess cognitive capacities and moral virtues at an unrealistically high level; or someone whose overall personality turns out to be morally undesirable. Here I am paraphrasing the three criteria Woolley and Wendel specify for evaluating conceptions of how a lawyer must be: "whether that conception is functional, realistic or desirable." 1 Using these criteria, they raise doubts about the theories of William Simon, Charles Fried, and me. According to Woolley and Wendel, Simon's theory requires lawyers who are mavericks, and my theory requires lawyers who are (excessively?) moralistic; both are highly individualist to an extent that might make the legal profession impossible to regulate, and both require lawyers who are unusually smart and itive biases. Fried's theory, on the other unrealistically free from cogn
This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progress... more This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progressive public-interest lawyers to bring cases. It asks a simple-sounding question: how just is the adversary system if one side is not adequately represented in it? And it defends a simple-sounding answer: It is not just at all. As we shall see, however, neither the question nor the answer is quite as simple as it sounds. Like most issues implicating distributive justice, the question of who has access to lawyers and who does not has become a political football. Political partisans do not care about impartial justice. They care about rewarding their friends and defeating their enemies, and that means ensuring that their enemies receive as little money as possible, including money to pay for legal advocacy. Advocacy, after all, might be used to turn the tables. In the last few years, a disturbing pattern of legal attacks on publicinterest lawyers has emerged, targeting every one of the principal sources of support for progressive public-interest law: the Legal Services Corporation ("LSC"), state Interest on Lawyers Trust Account ("IOLTA")
I owe a special debt of gratitude to Thomas Grey, who has corresponded with me about Holmes for y... more I owe a special debt of gratitude to Thomas Grey, who has corresponded with me about Holmes for years. While disagreeing forcefully with some of the basic points of my interpretation, Grey has unfailingly encouraged me. His is an attitude that Holmes would have appreciated. ple legitimate meanings of the term is RICHARD A.
Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym ... more Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym for honesty, but the word means much more than honesty alone. It means wholeness or unity of person, an inner consistency between deed and principle. "Integrity" shares etymology with other unity-words-integer, integral, integrate, integration. All derive from the Latin integrare, to make whole. And the person of integrity is the person whose conduct and principles operate in happy harmony. Our psyches always seek that happy harmony. When our conduct and principles clash with each other, the result, social psychology teaches us, is cognitive dissonance. And dissonance theory hypothesizes that one of our fundamental psychic mechanisms is the drive to reduce dissonance. You can reduce dissonance between conduct and principles in two
The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfil... more The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC's job is not to rubber-stamp administration policies, and it is not to provide
This volume brings together the most important writing on torture and the 'war on terror by o... more This volume brings together the most important writing on torture and the 'war on terror by one of the leading US voices in the torture debate. Philosopher and legal ethicist David Luban reflects on this contentious topic in a powerful sequence of essays including two new and previously unpublished pieces. He analyzes the trade-offs between security and human rights, as well as the connection between torture, humiliation, and human dignity, the fallacy of using ticking bomb scenarios in debates about torture, and the ethics of government lawyers. The book develops an illuminating and novel conception of torture as the use of pain and suffering to communicate absolute dominance over the victim. Factually stimulating and legally informed, this volume provides the clearest analysis to date of the torture debate. It brings the story up to date by discussing the Obama administration's failure to hold torturers accountable.
What are the roots of Critical Legal Studies? "The immediate intellectual background. .. is the. ... more What are the roots of Critical Legal Studies? "The immediate intellectual background. .. is the. .. achievement of early twentieth century modernism ... ," 1 writes Roberto Unger in his CLS manifesto; he elaborates this modernist connection in his deep and subtle book Passion. 2 Other CLS members also draw parallels between their endeavor and artistic modernism. J Obviously, CLS is first and foremost a movement of left-leaning legal scholars; it is also associated with distinctive theoretical claims about law. But it should be equally obvious that CLS involves sensibilities and affinities that are strikingly similar to those of an artistic avant-garde. Moreover, CLS lives in a complicated relationship to its past and to its institutional setting-it simultaneously rejects and builds upon mainstream legal theory, simultaneously reviles and depends upon the legal academy. These ambivalences are strikingly similar to the relationships of artistic modernists to premodern art (on the one hand) and to the commercial art world (on the other). Social facts like these are never merely superficial; thus, they provide ample reason to consider carefully CLS' connection with artistic modernism. That is my purpose in this essay. The thesis that I want to explore here is roughly this: CLS is to legal theory as modernist art was to traditional art. CLS is legal modernism.
sonal instrument of governance, it is, quite simply, identical to death. "Death is integral to Am... more sonal instrument of governance, it is, quite simply, identical to death. "Death is integral to American law," he writes (p. 136). Expanding on this theme, he castigates Felix Frankfurter's insistence that law is "not the application of merely personal standards but the impersonal standards of society which alone judges, as the organs of Law, are empowered to enforce," 3 responding: "In that statement, or so I ask you to consider, in that tum of mind, death takes textual form" (p. 137). The field of social action that we call law is an arena in which God's Word may or may not be enacted; only law animated by the Word can be anything other than death. Ball's theology of law is, second, an essential step preparatory to thinking about ethics in law-"the kind of description that is necessary to ethics and precedes it" (p. 100). As Ball explains this point: A book on ethics would be composed of an elaboration of ... stories and examples ... that are types of specific, episodic service of the neighbor, including service of the neighbor ... by remaking dehumanizing institutions. These would be stories and examples of the Word taking formaction that is the responsibility and choice of humans, but action that is responsive to and engendered by the Word .... In this book, I am attempting a description of the environment of decision in a given field of activity: the Word active and present in the practice oflaw. [pp. 99-100]
Modern human rights instruments ground human rights in the concept of human dignity, without prov... more Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.
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