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ClassNotes31Jan08 4 - 06 Feb 2008 - Main.IanSullivan
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Our first papers will be assigned soon. We need to learn how to edit and to be more concise. Disagreeing with someone’s point is easy. Actually understanding their argument is the real task – Creative thinking is going past something: “it’s an end, not a but.” | | | We should not look at a judicial decision but rather at the social forces leading up to it (its determinants), and those resulting from it (its consequences). The meaning of a decision and indeed the law can only be understood in its social context. Social forces give the decision both “momentum and direction.” Social determinants and social consequences are what the law is.
Consider two examples:
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< | 1) O'Connor v. Donaldson, 422 U.S. 563 (1975) held that involuntary commitment without due process is a violation of constitutional law. In order to understand what the decision means, one must examine the social consequences that followed in its wake. Homelessness increased and became more obvious to the public – people learned to ignore the plight of others, just as cities learned to buy the homeless one way bus tickets to the next town. | >
> | 1) O'Connor v. Donaldson [wikipedia], 422 U.S. 563 (1975) held that involuntary commitment without due process is a violation of constitutional law. In order to understand what the decision means, one must examine the social consequences that followed in its wake. Homelessness increased and became more obvious to the public – people learned to ignore the plight of others, just as cities learned to buy the homeless one way bus tickets to the next town. | | | | |
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< | 2) Marbury v Madison: Constitutional Law classes ignore the actual facts of the case. They teach it as establishing judicial review and as a case in which the judiciary did not have the political power to stand up to the executive. Eben notes that Marshall considered President Jefferson (his cousin) to be a coward and had no qualms about standing up to him, as evidenced by his handling of Burr’s treason trial. | >
> | 2) Marbury v Madison: Constitutional Law classes ignore the actual facts of the case. They teach it as establishing judicial review and as a case in which the judiciary did not have the political power to stand up to the executive. Eben notes that Marshall considered President Jefferson (his cousin) to be a coward and had no qualms about standing up to him, as evidenced by his handling of Burr’s treason trial. | | | How to Effect Change as Lawyers
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< | Powerful forces are hard to overcome in a head on attack. Instead, look for places where non-linear consequences occur: where a small amount of effort can yield disproportionately large results. For instance, a single line inserted into a committee report can have significant impact in shaping a statute’s future interpretation. Similarly, by affirming rent control in FCC v. Florida Power Corp., 480 U.S. 245 (1987), a case dealing with utility poles that generated little controversy with the Court, Eben was able to preempt a later attempt to hold rent control laws unconstitutional (Pennell v. San Jose, 485 U.S. 1 (1988)). This is creative thinking as a lawyer. | >
> | Powerful forces are hard to overcome in a head on attack. Instead, look for places where non-linear consequences occur: where a small amount of effort can yield disproportionately large results. For instance, a single line inserted into a committee report can have significant impact in shaping a statute’s future interpretation. Similarly, by affirming rent control in FCC v. Florida Power Corp., 480 U.S. 245 (1987), a case dealing with utility poles that generated little controversy with the Court, Eben was able to preempt a later attempt to hold rent control laws unconstitutional (Pennell v. San Jose, 485 U.S. 1 (1988)). This is creative thinking as a lawyer. | | | | | | -- DanielHarris - 05 Feb 2008 | |
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> | Added case links
-- IanSullivan - 06 Feb 2008 | | |
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