Volume 32 Number 3 -- April 1999

TABLE OF CONTENTS

SYMPOSIA

THE BRENNAN LEGACY: THE ART OF JUDGING

INTRODUCTION

by David W. Burcham

WHAT JUSTICE BRENNAN GAVE US TO KEEP

by Honorable Abner Mikva

MR. JUSTICE BRENNAN AND THE LITTLE CASE

by Judge Richard Arnold

THE BRENNAN LEGACY: THE ART OF JUDGING

by Judge Ruggero J. Aldisert

JUSTICE BRENNAN AND THE HUMAN SIDE OF JUDGING

by Larry Kramer

POWER, PEDAGOGY, & PRAXIS: MOVING THE CLASSROOM TO ACTION

INTRODUCTION TO THE SALT CONFERENCE

by Sumi Cho

OPENING REMARKS FROM THE SALT TEACHING CONFERENCE

by Karen Czapanskiy

REFLECTIONS ON THE PRACTICE OF A THEORY: LAW, TEACHING, AND SOCIAL CHANGE

by Barbara L. Bezdek

Ten years ago the University of Maryland recruited Professor Barbara Bezdek and others to develop what became known as the Legal Theory and Practice (LTP) courses. The goal of the courses has been to construct a vision of social change predicated on lawyers’ responsibilities to the poor. To facilitate this undertaking, the courses integrate the study of law with students’ practice of it. Certain dilemmas, however, complicate implementation of the LTP courses. These dilemmas range from teachers’ competing responsibilities, to students’ reactions, to competing visions of social change. The LTP courses remain an effective tool of social change despite these dilemmas because they aid students to identify constraining social visions embedded in much of private law doctrine and provide students with an early opportunity to use law to ameliorate injustices of poverty.

PRAXIS AND PEDAGOGY: DOMESTIC VIOLENCE

by Cynthia Grant Bowman and Eden Kusmiersky

In this Article Professor Cynthia Grant Bowman and former student Eden Kusmiersky discuss their experiences in a course on domestic violence taught by Professor Bowman at Northwestern University School of Law in the fall of 1993. During the course students brought clemency petitions on behalf of women in Illinois who were in prison for having killed their abusers. Professor Bowman discusses how she approached teaching the class and Ms. Kusmiersky discusses her participation, thoughts, and feelings regarding the clemency petition of her client.

PRAXIS-ORIENTED PEDAGOGY: THE E-BOOK ON INTERNATIONAL FINANCE AND DEVELOPMENT

by Enrique R. Carrasco and Kristen J. Berg

This Essay captures the essence of a demonstration of the E-Book on International Finance and Development, a website intended to empower individuals and communities via global education. The Article demonstrates how we can engage students in praxis-oriented discussions towards community-based social justice. The E-Book is an integrated suite of Internet features that contains different types of information in different modes of presentation. It uses technology to pursue community- based social justice on a global scale.

WITNESSING THE PROCESS: REFLECTIONS ON CIVIL PROCEDURE, POWER, PEDAGOGY, AND PRAXIS

by Deseriee A. Kennedy

Professor Kennedy participated in the Society of American Law Teachers (SALT) Conference which focused on integrating “action pedagogy” into law school courses. In this Article she reports on the discussions conducted at the conference. She argues that first year law school courses must incorporate activism to empower students to become a positive force in social change. Professor Kennedy believes that students from all backgrounds would then better identify with the participants in the legal process.

RADICAL SOCIAL MOVEMENTS AND THE RESPONSIBILITY OF PROGRESSIVE INTELLECTUALS

by Eric Mann

In his speech, Eric Mann encourages law professors to challenge the ideology of the law itself, and to ally themselves with radical social movements of the oppressed -- especially low-income and working class people of color in the urban core. He offers strategic advice and observations from his thirty-five years experience in anti-imperialist, antiracist organizing, and his direct involvement in factories, workplaces, and communities of color. He urges everyone, in this case law faculty, to find organizational affiliations, and encourages greater organizational connections between the Society of American Law Teachers and the Labor/Community Strategy Center. In addition, Mann discusses the Strategy Center’s recent victories, focusing particularly on the achievements of the Los Angeles based Bus Riders Union.

TEACHING FOR SOCIAL CHANGE: LEARNING HOW TO AFFLICT THE COMFORTABLE AND COMFORT THE AFFLICTED

by Glenn Omatsu

Professor Glenn Omatsu reflects on personal experiences that have shaped his teaching philosophy. Through his participation in social movements, teaching at different institutions, and his quest to learn about good teaching practices, he has discovered effective ways to teach and learn. By emphasizing learning by doing and having students teach others in socially interactive situations, students aid in society’s struggle to develop a critical pedagogy. This struggle is at the heart of the mission of education: To provide all people with the tools to fight for justice and expand democracy.

NOTES AND COMMENTS

A.C. AUKERMAN AND THE FEDERAL CIRCUIT: WHAT IS THE STANDARD OF REVIEW FOR A SUMMARY JUDGMENT RULING ON LACHES OR EQUITABLE ESTOPPEL?

by Laura M. Burson

In 1992 the Court of Appeals for the Federal Circuit -- the sole appellate court for patent cases -- defined the standard of review for a summary judgment ruling on laches or equitable estoppel in A.C. Aukerman Co. v. R.L. Chaides Construction Co. This standard of review is a twopronged test, first employing de novo review and then abuse of discretion review. This Comment analyzes how the Federal Circuit has applied the abuse of discretion prong in the summary judgment context. The author concludes that the Federal Circuit engages in some form of plenary review even under this abuse of discretion prong. The author further posits that not only is this lack of true deference in keeping with Supreme Court precedent, but it also is desirable given the role of the Federal Circuit and the consequences of these equitable defenses.

TASINI V. NEW YORK TIMES: WRONG ISSUE, WRONG PRESUMPTION

by Kia L. Freeman

Does a freelance author who publishes in a major periodical inevitably lose the right to receive compensation for additional access to his writing? This question has grown increasingly important with the emergence of the content-hungry Internet. In Tasini v. New York Times, freelance authors asked a federal district court to resolve the issue. This Note analyzes the court’s answer and finds it lacking. The author presents alternative arguments on the issues of contract interpretation, statutory construction, and application of precedent. The author concludes that courts should be reluctant to find presumptions in the copyright law and should choose instead to allow interested parties the opportunity to work out their own solutions.

ARBITRARY CIVIL RIGHTS?: THE CASE OF DUFFIELD V. ROBERTSON STEPHENS

by Robert S. McArthur

In Duffield v. Robertson Stephens & Co. the Ninth Circuit held that an employee could bring a harassment and discrimination suit against her employer in federal court despite a mandatory arbitration agreement to the contrary. This Comment analyzes the decision in light of conflicting Supreme Court precedent and subsequent civil rights legislation. The author proposes that statutory and policy considerations endorse the result the Ninth Circuit reached and that Duffield marks a new turning point in equality in employment.

WHAT HAVE YOU DONE WITH MY LAWYER?: THE GRAND JURY WITNESS’S RIGHT TO CONSULT WITH COUNSEL

by Kathryn E. White

In this Comment the author discusses whether a witness testifying before the grand jury has the right to consult with counsel. She discusses the history of the grand jury, how grand juries operate today, and how an attorney is crucial in preserving a witness’s privileges during grand jury proceedings. The author concludes that a grand jury witness should have the right to consult with counsel during an appearance, and that three current grand jury models recognize and support that right.