In his article, Scott Cummings proposes that there existed an “old canon” concerning how to be a lawyer for progressive social justice causes, which has been replaced by a different “new canon” that envisions the role of movement lawyers quite differently. According to Cummings, old canon lawyering places courts “at the heart of the canonical stories.” New canon lawyering, on the other hand, involves using legal institutions other than courts and focuses on the intersection between law and politics. Cummings gives examples of the old and new ways of lawyering and also draws conclusions about what causes the momentum of social movements to slow. One of Cummings’ central arguments is that the critique of what he calls old canon lawyering is in many respects misplaced.
I wholeheartedly agree with Cummings’ thesis that much of the critique of the “old” way of engaging in social movement lawyering is misplaced; here I offer some additional or alternative reasons why. To sum up my argument, I do not believe there is much of a difference between old versus new perspectives on the range of appropriate strategies for social movement lawyering. Historically as today, social movement lawyers understood that sometimes courts are useful but sometimes they are not. Looking in the long view, so-called “old canon” lawyers have understood this just as “new canon” lawyers do. Instead, the most significant difference between the lawyering styles Cummings labels “old” versus “new” canon involves lawyers’ heightened sensitivity to the ethical problems that arise in social movement lawyering. I briefly develop these arguments below.
Not to pile on, but for a high visibility organization, the National Collegiate Athletic Association (NCAA) is truly unique in what it continues to get away with. The Association is so bold that it has normalized behavior that was deemed anachronistic centuries ago. 2 As March Madness fades from memory and the NFL draft looms on the horizon, it seems as good a time as any to remind ourselves of the many ways in which the NCAA is based on deeply troubling foundations. Sometimes by focusing on the low hanging fruit we miss some of the more bothersome and egregious injustices of the college system that disproportionately disfavors those who are most talented, poor, and of color.
This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place.
I begin with great thanks to the Wisconsin Law Review for the opportunity to be a part of this timely and important conversation about executive power and administrative governance. I have been invited here to share my work on negotiated federalism, which explores the way that good multiscalar governance is often the product of intergovernmental bargaining among decision makers at various levels of government. As I have described in this work, negotiations are sometimes conducted purposefully, in statutorily prescribed ways, and elsewhere more serendipitously or even inadvertently, as a byproduct of the wider political process. The privileged constitutional status of the federal and state governments brings special attention to the negotiations that take place among state and federal actors, but similar dynamics apply in negotiations involving local, regional, national, and international actors. And while all three branches of government participate in different forms of negotiated governance (some more and less obvious), the executive branch features especially prominently in these efforts.
For this symposium, I would like to distill a few important points from my research about the need for negotiated governance and the options for accomplishing it.
Mary H. Hansel
In a matter of weeks, the International Criminal Court (ICC) is expected to open a full-fledged investigation into the “war crimes of torture and related ill-treatment, by United States military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency.” Pursuant to the principle of complementarity, the ICC cannot take the case if the United States has conducted its own investigation and decided against prosecution “unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”Read more...
This article examines the potential criminal liability under international law of the government attorneys who authorized the use of “enhanced interrogation” techniques amounting to torture in the “war on terror.” For, as one scholar has observed, “[n]ot since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war.” This analysis may be used to correct the widespread assumption that government attorneys are somehow immunized from criminal liability and refute opponents of prosecution who argue that holding lawyers criminally liable for giving opinions on violations of international law has no precedent.
Michael D. Ramsey
In his essay, The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism, Professor Saul Cornell uses the debate over the Constitution’s natural born citizen clause to illustrate what he regards as the shortcomings of originalist methodology. He makes three main points: (1) that historians’ methodology is different from and superior to the approach of originalist legal scholars; (2) that originalist scholars have reached an erroneously broad reading of the 1790 Naturalization Act; and (3) that, as a result, originalist scholars have misread the natural born citizen clause. I believe each of these points is mistaken. This response addresses them in turn.