Category: Spotlight

Powell Archives in The National Law Journal

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Tony Mauro of The National Law Journal called earlier in this week to talk about our observance of the anniversary of twenty years of research at the Powell Archives.  He summarized our discussion in an article published yesterday in the Journal’s newsletter, Supreme Court Insider.  As a subscription is required to view this, I have reproduced the article below with permission.

Justice Powell’s papers, now online: a treasure trove for academics

Tony Mauro

The National Law Journal

12-05-2012

 

Twenty years after they first became available to the public, the papers of the late Supreme Court Justice Lewis Powell Jr. are still yielding interesting nuggets. And you don’t necessarily have to travel to Washington and Lee University School of Law in Lexington, Va. to find them.

The Powell archives at Washington and Lee, more than other repositories of justices’ papers, is putting material online – including more than 200 complete case files from Powell’s tenure on the court from 1972 to 1987.

Archivist John Jacob, who has been helping scholars, biographers and journalists sort through the papers since the beginning, has marked the anniversary by opening digital access to more and more documents.

The latest: a typewritten list from 1987 of all of Powell’s opinions – annotated by Powell himself, who put check marks next to his favorite, or most important, cases. Yes, the affirmative action landmark Regents of the University of California v. Bakke, was checked, as was First National Bank v. Bellotti, a key 1978 campaign finance decision. But not Booth v. Maryland, one of Powell’s final rulings, on the admissibility of victim impact statements in capital cases.

The list, by the way, was compiled by one of his clerks that term, Ronald Mann – now a Columbia Law School professor who argued a case before the Supreme Court on December 3. In a handwritten addendum to the list, Powell described Mann as “one of my exceptional able clerks.”

The Powell archive’s online openness contrasts somewhat with its early days, said Jacob. The archive was opening its files at about the same time that the controversy over Thurgood Marshall’s papers erupted. Marshall’s papers opened the day after he died in 1993, far earlier than some of his colleagues would have preferred. “We flew under the radar for awhile,” Jacob said, so as not to offend the court.

Powell abided by an informal agreement among some justices, restricting access to case files until after all the justices with whom he served left the court. Any request for files had to be approved by Powell – or Jacob, since Powell’s death in 1998. The last sitting justice with whom Powell served is Antonin Scalia.

Jacob said Powell never denied a request for access. Jacob’s policy now is to post online any case file that has been requested and approved for disclosure.

Jacob met Powell several times in his later years and has fond memories of their encounters. While circumspect in some ways, Powell had a “strong sense of history” and of the need to make his papers accessible for historical research, Jacob said.

But Powell may not have anticipated that the single most requested document from his files would be the so-called “Powell memorandum” – the 1971 memo he wrote to the U.S. Chamber of Commerce, urging the business community to aggressively defend the free enterprise system in the courts and in the public from the “broad attack” then being made by liberals in academia and the media.

Powell wrote it before becoming a justice, but it has taken on more and more significance ever since, as a “seminal document” in the rise of the conservative movement in America, said Jacob.

“I’ve gotten requests for the memorandum from academics and from an irate bus driver in Milwaukee,” said Jacob. “It has taken on the status of Ayn Rand, it sometimes seems.”

Tony Mauro can be contacted at tmauro@alm.com.

Here is a W&L Law news release about the story: http://news.blogs.wlu.edu/2012/12/07/wl-law-powell-papers-online-collection-a-treasure-trove-for-academics/

 

Johanna Bond Profile

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For most, our self-concept is a complex creation, mingling together different aspects of our life experiences and personal traits. Too often, however, in academia and in the law, this inherent complexity is glossed over in favor of essentialism—the idea that the human “self” can be reduced to a singular essential characteristic such as race or gender. Professor Johanna Bond has spent her career fighting this notion, particularly on behalf of African women and others in the Global South who both reject discrimination based on their gender and yet hold tightly to the positive aspects of their culture.

Professor Bond’s engagement with these issues began early in her legal life. As a law student at the University of Minnesota, she worked with the International Women’s Rights Action Watch, (IWRAW) which gathered information about the violation of women’s human rights to assist U.N. committees. Through these efforts she met a number of pioneering African feminists, such as Sarah Longwe from Zambia, who brought suit against the Intercontinental Hotel for gender discrimination after it prohibited her from attending a children’s party because she lacked a male escort. Unity Dow from Botswana, the first female justice on the High Court of Botswana, similarly brought suit for gender discrimination and won her case against steep odds. Reflecting back, Professor Bond describes these associations as being, “truly inspirational.”

Through these personal contacts and her own evaluations of critical race and feminist theories, she began to focus on the plight of those who face discrimination from their culture yet do not wish to completely reject their culture. In a seminal 2003 piece, International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s International Human Rights Violations (52 Emory L.J. 71), Bond criticizes the prevailing framework of women’s human rights for not adequately reflecting the experience…”[of] women who may experience discrimination or human rights violations as a result of both gender and another ground.” She further argues that the U.N. and other international legal organizations such as NGO’s have compounded this theoretical shortcoming by structuring responsibility for human rights along rigid lines of race, gender, and sexual orientation.

In a series of subsequent articles, Bond has applied these insights and explored attempts in particular situations to accommodate both culture and gender rights.
Gender, Discourse, and Customary Law in Africa (83 S. Cal. L. Rev. 509 (2010)), Pluralism in Ghana: The Perils and Promise of Parallel Law, (10 Or. Rev. Int’l L. 391, 418 (2008)), and Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law, (14 Yale Hum. Rts. & Dev. L.J. 1 (2011)) all discuss the effects on women’s rights when the state cedes legal jurisdiction over particular matters, mainly family law, to minority groups. In some cases that has resulted in discrimination against women because it removes them from the protective influence of equality laws; even if those laws are too often ignored by the regular judiciary.

Professor Bond recently broke new ground with a 2012 article, Honor As Property, (23 Colum. J. Gender & L. 202). It surveys the topic of honor-related violence, where women or girls who commit or are alleged to commit sexual improprieties are beaten or killed by their own family members to “cleanse” or repair the family honor. She argues that this stated justification for violence parallels in many ways justifications for violence in protection of real or personal property in jurisdictions, worldwide. This understanding of family honor as a form of non-tangible property owned collectively by the family and controlled primarily by males opens up new possibilities for innovative, grass roots driven reform. She suggests that while stiffer criminal penalties would help at the margin, the biggest advances will require cultural change where women gain the ability to share control of the honor property and the family’s honor is not tied so closely to the behavior of the female members.

Looking ahead, Bond envisions her work continuing to tackle the hard questions of gender intersecting with other identities. In her view, real change will not come from either government enforced laws and edicts, or imperialist pronouncements from Western human rights advocates. Real change, she believes, can only come as discursive space is carved out for dissenting voices within each culture and tradition.

Missed a 5 in 5 session? They are coming to YouTube!

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If you missed any of the 5 in 5 sessions so far, no need to worry.  The presentations are being recorded for our  YouTube channel and the first is available now.   Librarian Ron Fuller has added his 5 in 5 session on researching with digests.  Check out the preview below and see more on the law library’s channel here:  http://www.youtube.com/WLLawLib

 

Samuel Calhoun Profile

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What is the proper role of religion in public discourse? Can explicitly religious values inform public discussion on questions such as health care, abortion, and stem cells, or should these questions be addressed in purely secular terms? What duty does a personally religious scholar owe to his students when discussing such topics? As a believing Christian and a law professor, these questions define Professor Samuel Calhoun’s scholarship.

In Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, but Incomplete, Sez Who Critique, 20 J. L. & Religion 31 (2004-2005)), Calhoun explains his view that belief in God is fundamental to the moral foundations of law. The article is a response to Yale scholar Arthur Leff, who argued in Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, that attempts to ground secular, universal norms are doomed to fail. Through rigorous logic, Leff demonstrates how even obvious statements such as “babies should not be napalmed,” can be countered by questioning the authority of the asserter; or “the Grand ‘Sez Who?’” Calhoun concurs with Leff that no moral statement can be definitively shown to be true in a universe without a Supreme Being. If God is introduced, however, normative assumptions can be securely grounded, although Calhoun acknowledges that looking to God for moral truth has many challenges.

Prof. Calhoun’s first engagement with the issue of religion in the legal and public spheres came earlier, in an article entitled, Conviction Without Imposition: A Response to Professor Greenawalt (9 J. L. & Religion 289 (1991-1992)). Greenawalt’s article was an attempt to define when good citizens of a democracy can rely on their religious convictions. Calhoun expands on this premise by articulating a strict principle of not imposing religious beliefs on others in society. For both the practical reason that not everyone is religious and the theological reason that Christians should not force their beliefs on non-believers, Calhoun argues that civil discourse is best served by religious people carefully self-monitoring the influence of these values on their arguments and decision-making. While not requiring a Christian to forgo all involvement in politics, this “non-imposition principle” would “disable the Christian from seeking laws which for him have no independently-compelling secular justification.”

By 2003, Calhoun reconsidered the non-imposition principle for Christians. In a book review of Elizabeth Mensch and Alan Freeman, The Politics of Virtue: Is Abortion Debatable? (16 J.L. & Religion 405 (2001)), Calhoun discusses his earlier article and concludes that he no longer believes these strictures are appropriate to impose on religious believers. Instead, he posits that beliefs based on religion have the same right to contend in the political arena as beliefs based on anything else, and that it is “abhorrent” to require believers to check their values at the door as the price of entry to political conversation. Christians, though, should exercise prudent political judgment in deciding when to seek laws that implement Christian values.

This revised approach was exemplified in a 2008 article, May the President Appropriately Invoke God? Evaluating the Embryonic Stem Cell Vetoes (10 Rutgers J. Of L. & Relig. 1 (Fall 2008). After President Bush invoked his religious values to explain why he was limiting federal funding for stem-cell research, he was severely criticized in many corners of the media and academia for improperly combining religion and government. Professor Calhoun, however, defends President Bush’s reliance on religion as appropriate under both historical precedent and because religious believers have the same right to apply their values in politics as agnostic or atheistic citizens. In fact, he concludes, outraged secularists were merely attempting to privilege their own values over religious values.

In his scholarly writings, Professor Calhoun leaves no doubt about his stance on many controversial issues. For example, he has published several articles strongly defending the pro-life side of the abortion debate. As a teacher, though, he takes very seriously his role of respecting and encouraging student discussion from all points of view. In his abortion seminar, he confronts this conflict head on. Impartiality in the Classroom: A Personal Account of a Struggle to Be Evenhanded in Teaching about Abortion (45 J. Legal Educ. 99 (1995)), is his account of the first time he conducted the seminar and the difficulties he experienced in attempting to present both sides of the issue fairly when his own pro-life beliefs were so well-known by the students. With his practical approach and inner turmoil candidly chronicled, this piece provides a useful model for partisans of any stripe who are called on to provide a balanced presentation.

Questions about religion, society, and the law are not going away; if anything, they are becoming more and more prominent. In his scholarship, Professor Calhoun defends the importance of including religious values in the discussion. And in his teaching on controversial subjects, he works to make sure that all points of view are represented.

Law Library 5 in 5

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Join the law library staff in the magazine lounge for short and sweet presentations on a variety of research topics.   Give us five minutes and we’ll give you 5 tips to save you time and energy in your legal research.  Topics include using a digest, court jurisdictions, using codes, HeinOnline, Google Scholar and tips for exam prep.  Follow us on Twitter @wllawlib and check the sign in the magazine lounge for dates and times.

Robin Fretwell Wilson

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The law cannot function properly without an intense grounding in empirical reality. Through dozens of books, scholarly articles, speeches, opinion pieces, and legislative testimonies, Professor Robin Fretwell Wilson keeps returning to this bedrock principle.

Professor Wilson’s scholarship focuses on health law and family law. She has touched on a wide variety of topics over the years, including: children at risk of sexual abuse, informed consent for medical training procedures, nano-sized cosmetics and sunscreens, and most recently, the need for broad religious exceptions to same-sex marriage laws, and the problems caused by rules allowing religious norms to govern marriage and divorce.

Her initial academic efforts were focused on the impact of incest and abuse and how to best help those at risk. In The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to a Victim’s Siblings, (51 Emory Law Journal 241, 2002), Professor Wilson delved deeply into statistics to show that it is better to remove the perpetrator of incest from a home rather than the victim, because the victim’s siblings have high risk of being victimized. This insight is intuitive, but without the empirical data, judges, too often, were leaving prospective victims with sexual predators.

In Nanotechnology: The Challenge of Regulating Known Unknowns, (34 Journal of Law, Medicine, & Ethics 704, 2006), Professor Wilson turned her analytical lens on the growing field of nanotechnology and cosmetics. Traditionally, the FDA has not regulated this market because the skin was believed to be an impermeable barrier to harmful substances contained in makeup and skincare products. An exploration of the science behind the new generation of cosmetics demonstrated that nanotech compounds penetrated the epidermis and lower layers of the skin, thus introducing foreign bodies directly into a user’s system. In April 2012 in response to the work of Professor Wilson and other scholars, the FDA issued draft guidance addressing these issues for the first time.

Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent, (8 Journal of Health Care Law & Policy 240, 2005) generated a large and still growing legislative response to an often common feature of medical students’ education. The conventional method for teaching students how to conduct a gynecological exam was to practice on women under anesthesia. These women were commonly unaware of this practice and rarely had given specific consent. The defenders of this teaching tool argue this hands-on experience is critical for new doctors, and requesting consent would cause a drastic decrease in these opportunities. Through a close look at surveys and statistics of consent given in similar contexts, Professor Wilson showed that in fact most people would give consent if asked. Today five states have enacted statutes to require informed consent from patients before performing pelvic examinations for medical or training purposes.

In Virginia, Professor Wilson, together with a team of Washington and Lee students provided legislative testimony resulting in Virginia’s law requiring specific consent before performing intimate exams for teaching purposes. Most recently Hawaii also enacted a measure after hearing testimony from both Professor Wilson and recent W&L graduate Anthony Kreis.

Professor Wilson’s latest work addresses the intersection of religion and family law, in two different contexts. As same-sex marriage is legalized in a growing number of jurisdictions, a common concern of religious objectors who believe in traditional heterosexual marriage is they will be forced to facilitate marriages in violation of their religious belief — or face severe civil penalties. While every proposed same-sex marriage bill has contained an exception for clergy, Professor Wilson, together with two groups of religious liberty scholars around the country, has argued for broader exemptions that include religiously affiliated non-profit institutions, small businesses and even government employees such as county clerks.

In her view, the dueling principles of equality and freedom of religious beliefs should not be forced to clash unnecessarily. In most cases, the data suggests that same-sex couples’ right to marry can be readily accommodated by, for example, county clerks who do not object to gay marriage—and when a willing provider is not immediately available, a carefully tailored exemption can and should preference marriage equality over religious liberty, given the state’s monopoly power over marriage. Using studies and surveys she illuminates the plight of those whose livelihoods may be lost due to shifting mores of the law and argues that exemptions qualified by hardship to same-sex couples can affirm two values worthy of respect: religious liberty and marriage equality. (The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State, forthcoming, 2012)

On the other hand, Professor Wilson has also explored the problems that may occur when religious groups are allowed to apply religious precepts instead of civil family law to questions of inheritance or divorce in Western nations. These exceptions to the general law are permitted by countries out of a desire to protect the values and unique culture of the group. In practice however, this deference to religious norms about marriages, divorces, and child custody tends to disadvantage the women and children, compared to the outcomes that would result from a judgment using civil law. Professor Wilson has attempted to shed much needed empirical light on these widely divergent outcomes as a way to evaluate the wisdom of such schemes of deference

What is next for this prolific and deeply engaged scholar? “I tend to choose my topics based on what I am interested in and where the law can be improved with a push,” she says. Wherever her interests lead, a keen appreciation for the facts on the ground will continue to light the way.

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The Library staff is organizing a Student Library Advisory Council in an effort to better meet the needs of our students. We propose to invite four members of each class to serve on the council and to meet three times a semester. Our goal will be to discuss services, space, our web presence, and other topics brought to us by the council members. If you are interested in serving please contact Judy Stinson, Head Information Services, 458-8544 or stinsonj@wlu.edu.