Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional (...) "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

Volume 24, Issue 11, November 2024, Page 78-80.

Legal positivists typically describe law as ‘thinly’ normative to distinguish it from the ‘thick’ normative force moral norms have; which legal norms may lack. One popular account of thin normativity is social normativity. But a number of scholars have offered accounts of what it is to be a thin norm that are distinct from social normativity. This paper addresses these alternative accounts of what it is to be a thin norm. It also explores whether law counts as necessarily ‘thinly normative’ (...) on these accounts. I argue that some accounts of thin normativity are so generic (‘super-thin’) that they are unable to distinguish between (thin) norms and nonnormative facts and thus collapse into triviality. I also consider more metaphysically demanding accounts of thin normativity, such as the view that everything is a norm that is essentially represented by deontic modals. However, law might fail to meet the demands of these slightly thicker accounts. I thus propose a view of law as consisting in nonnormative facts (diagnostic categories) and suggest sketching accounts of thin normativity as contingent, rather than necessary, features of laws and legal systems. (shrink)

Volume 25, Issue 2, February 2025, Page 149-150.

Each of us is embodied. Our relationships are reinforced and swayed by physiological processes. States that impose unwanted childbirth on women also force them into unwanted bonds of care. While most people who have given birth understand this because they experienced it, this formative experience is alien to cisgender men. Yet the physiological changes that birthing people undergo are points that few commentators on abortion raise. There are several possible reasons for this, including concerns about reifying biological processes that have (...) been used to assert alleged truths about the “natural” role of women in society and culture. I discuss the physiological underpinnings of maternal/neonate bonds, the importance of this issue in the abortion debate, and the role it ought to play, while keeping in mind the valid critiques of historical and current appeals to biology as a means of subjugating women socially and culturally. (shrink)

Volume 24, Issue 7, July 2024, Page 132-134.

Critical realism has a reputation for requiring substantial intellectual commitment and time to gain understanding, and being difficult to operationalize as an empirical research methodology. Our paper employs the theoretical framework of ‘threshold concepts’ to explore these issues. We illustrate the five qualities of ‘threshold concepts’ using existing literature by scholars describing their journey of engagement with critical realism. We then apply the framework from three viewpoints. First, we offer the perspective of a budding critical realist scholar who transforms their (...) understanding through reflexivity. Second, we consider the role of critical realist communities of practice, peer-to-peer and social learning. Finally, we look from the standpoint of a more experienced critical realist academic advisor or supervisor working with a student. The paper concludes by asking: what kind of learning and teaching frameworks of engagement can the critical realist community build to better support apprentice critical realists? (shrink)

Standards of professional legal education are developed by different organizations: in some countries these are governmental bodies, in others these are professional associations. Apart from a country these standards include Learning Outcomes which shape law schools’ curricula. Both American and European standards mention, to different extent, written and oral communication in the legal context, but a number and contents of subjects directed at developing and mastering professional communicative competency differ a lot. There are disciplines totally devoted to the competency named (...) as well as courses in which communicative skills are an integral constituent for their successful completion. The article goal is to find a place and role of a Legal English course in achieving learning outcomes connected with professional communicative competence. The methodology incorporated desk and field studies. The literature review is aimed at identifying current state of affairs in American law schools, as they provide first-class legal education recognized all over the world, and in Russian law schools, as the author works in this system and is interested in its development. A questionnaire was designed to explore Russian law school graduates’ assessment of practicality of subjects they had studied for their professional activities. The analysis of literature and Internet sources allowed to specify the ways of teaching written and oral communication in American law schools and to highlight the situation in Russian legal education. It shows that the Russian system is characterized by predominance of teaching theory of substantive and procedural rules of law and lack of curriculum disciplines aimed at cultivating skills and competencies. A survey of Russian law schools’ recent graduates indicates that most of communicative, in a broad sense, skills, which they use in their everyday work, were obtained within their LE classes. So, complementing a LE course with modules devoted to different aspects of legal writing and specific patterns of lawyer-client, lawyer-lawyer, lawyer-judge communication will definitely contribute to achieving learning outcomes which are put forward by legal education standards. (shrink)

In the empirical literature on legal education, law schools are often portrayed as rather elitist and competitive environments, dominated by authoritative law teachers, that promote a dogmatic approach to the law in which the moral and other contextual aspects of legal problems are being marginalised. We refer to legal socialisation that is marked by such characteristics as adaptive law school socialisation. This type of socialisation demands a great deal of adaptation from students whose identities do not fit well in (...) the traditional mould of the legal profession. In this article, we argue that law school socialisation may take a different form. Reflective law school socialisation, as we term this alternative type of law school socialisation, fosters a collaborative learning environment with supportive teachers that promote contextual reflection on law and its ethical and social ramifications. We use a case study of socialisation in a law school in the Netherlands to show how various elements of reflective law school socialisation can be identified in reality, and to demonstrate the analytical function of the distinction between adaptive and reflective law school socialisation. (shrink)

In the empirical literature on legal education, law schools are often portrayed as rather elitist and competitive environments, dominated by authoritative law teachers, that promote a dogmatic approach to the law in which the moral and other contextual aspects of legal problems are being marginalised. We refer to legal socialisation that is marked by such characteristics as adaptive law school socialisation. This type of socialisation demands a great deal of adaptation from students whose identities do not fit well in (...) the traditional mould of the legal profession. In this article, we argue that law school socialisation may take a different form. Reflective law school socialisation, as we term this alternative type of law school socialisation, fosters a collaborative learning environment with supportive teachers that promote contextual reflection on law and its ethical and social ramifications. We use a case study of socialisation in a law school in the Netherlands to show how various elements of reflective law school socialisation can be identified in reality, and to demonstrate the analytical function of the distinction between adaptive and reflective law school socialisation. (shrink)

Law schools are failing both their staff and students by requiring them to prize reason and rationality and to suppress or ignore emotions. Despite innovations in terms of both content and teaching techniques, there is little evidence that emotions are effectively acknowledged or utilised within legal education. Instead law schools are clinging to an out-dated and erroneous perception of emotions as, at best, irrational, and at worst dangerous. In contrast to this, educational and scientific developments have demonstrated that emotions are (...) a fundamental, inescapable part of learning, teaching and skills development. Harnessing these emotions will therefore have a transformative effect on legal education and enable it to adapt to the needs and demands of the 21st century. This book provides a theoretical overview of the role played by emotions in all aspects of the life of the law school. It explores the relationship between emotions and key traditional and contemporary approaches to legal education, the ways in which emotions can be conceptualised, their interaction with the politics and policies of legal education and their role within teaching and learning. The book also considers the importance of emotional wellbeing for both law students and legal academics Overall, this book argues for a more holistic form of legal education in which emotions play a valuable (and valued) role. This requires a new vision for law schools, in which emotions are acknowledged and embedded at all levels, institutional and personal. (shrink)

Law Schools are now required to provide education to law students on bias, cross-cultural competency, and racism under ABA Standard 303(c). Law clinics, with their social justice orientation, have long taught about structural causes of bias and oppression and ways to intervene at system levels to prevent problems. Medical legal partnership (MLP) clinics have done so by employing concepts from social work and health science programs on structural competency. This article examines MLP and related curriculum to meet the ABA mandate.

In our article, we share the lessons we have learned after creating and running a successful legal laboratory over the past seven years at Yale Law School. Our legal laboratory, which focuses on the intersection of law and severe brain injury, represents a unique pedagogical model for legal academia, and is closely influenced by the biomedical laboratory.

Given the original founders, texts, and location of Critical Legal Studies, its association with the 1960s counterculture is uncontroversial. However, this paper interrogates the assumption that CLS is itself a counterculture by proxy. Drawing from seminal work on subcultures, moral panics, and the emerging field of minor jurisprudence, this paper recategorises Critical Legal Studies as a legal subculture. An argument of clarification underpins this recategorisation, addressing the relationship between CLS and the dominant legal framework, its relationship with the counterculture, and (...) why the reactions CLS received from the legal community were to be expected. (shrink)

Two major regulatory changes are affecting the provision of undergraduate legal education in England and Wales. On the one hand, the Qualifying Law Degree is being deregulated, meaning law schools are free to make significant changes to how and what they teach. On the other hand, higher education in England has seen a significant overhaul through the creation of the Office for Students, which treats students as consumers. Now more than ever, law schools need to ask themselves existential questions which (...) will not only test their continued relevance or indeed viability within the ‘market’ for higher education, but also the status of the discipline of law as a whole. The regulatory landscape may indeed present a significant threat, but it is also an opportunity to reflect on what law schools are for, and consequently what changes could result from the academic freedom that comes with deregulation. Whilst different law schools will interpret their mission differently, they should caution against either generalised inertia or succumbing to an outcomes-oriented provision that simply prepares students for the new Solicitors Qualifying Examination. Instead, law schools will find their proper purpose in critical reflection and academic self-grounding, providing undergraduate students with a ‘question everything’ mentality, and showing them that law is something to be experienced and not merely learnt. (shrink)

Much has been written about the ethics and values of today's business student, but this research has generally been characterized by a variety of methodological shortcomings — the use of convenience samples, a failure to establish the relevance of comparison groups employed, attempts to understand behavior in terms of unidimensional values preselected by the researcher, and the lack of well-designed longitudinal studies. The research reported here addresses many of these concerns by comparing the values and ethical decision making behavior of (...) a large cohort of students entering an M. B. A. program to students entering law school. Using the Rokeach value survey and several ethical decision making vignettes, significant differences were found between the two groups which have important implications for both the business and legal professions and the education of their future leaders. (shrink)

In recent years the issue of wellbeing has moved centre stage across jurisdictions within a wide range of debates relating to economic, cultural and political changes associated with neoliberalism. This is the backdrop against which the legal profession has itself begun to pay increasing attention to the issue of wellbeing in law. This article explores an aspect of this debate that has tended to be neglected thus far, namely the relationship between the neoliberal corporatisation of universities, gender and questions of (...) wellbeing in the legal profession and law schools. It assesses the meaning of wellbeing in the context of law and considers changes in universities that, it is argued, have reshaped understandings of the academic subject and academic labour in ways that have potential implications for this debate around wellbeing in law. Focusing on gendered dimensions of these shifts, the article argues that the growing literature around wellbeing raises significant questions about legal ethics, values and gender equity in law, as well as about legal professionalism and the place and purpose of legal education and research. Arguing against an individualising logic that would depoliticise personal experience, the paper suggests a complex re-gendering of social relations is having contradictory implications for understanding these contemporary debates around wellbeing, equality and diversity in law. (shrink)

Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example. Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the beginning (...) of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article discusses three major educational components, which together signaled the shift to U.S. influence: a student-run law review, curricular reform, and open and lively class discussion. The Article then offers several factors to explain the shift: judicial opinions that began to rely on American decisional law, the adoption of the U.S. model of practice by the legal profession, the privatization of law schools, globalization, and Americanization and foreign affairs. Finally, the Article considers the contribution to Americanization made by active U.S. attempts to export American law to other legal systems. (shrink)

The teaching of critical race, feminist, and queer theory generally, and of LGBT rights specifically, has developed into a discrete, contested, and politicised area of teaching in English law schools and beyond. While there is some academic discussion on the personal and political significance of ‘promoting LGBT rights’ within law schools, less considered is how ‘LGBT rights’ are shaped by the emotions of legal academics and how these emotions circumscribe what we imagine LGBT rights can and/or should mean in law (...) and critical legal study. To illustrate this dynamic, this paper uses critical race, feminist, and queer scholarship alongside work in the emerging field of Law and Emotion to articulate the ‘emotional grammar’ of teaching a Gender, Sexuality and Law unit at an English law school. Turning to autoethnography, I use my emotional experiences as a methodological tool to explore how emotions co-constitute the pedagogical, political, scholarly, and personal registers of LGBT rights as a descriptive, critical, and normative pursuit. In doing so, I use ‘emotional grammar’ as a novel way to map how emotions structure legal pedagogies invested in pursuing LGBT rights. Emotional grammar illustrates how emotions structure: (1) the articulation of LGBT rights as an object of study in law; (2) the pursuit of law to secure the rights of LGBT people; and (3) the shape of legal critique relating to LGBT rights. (shrink)

Over two hundred years ago, Thomas Jefferson suggested the need for a broader legal curriculum. As the twenty-first century begins, the practice of law will increasingly demand interdisciplinary knowledge and collaboration — between those trained in law and a broad range of scientific and technical fields, including engineering, biology, genetics, ethics, and the social sciences. The practice of public health law provides a model for both the substantive integration of law with science, and for the way its practitioners work. In (...) addition, public health law also provides a model for interdisciphuy and integrative teaching. (shrink)

What's the best way to raise good citizens – individuals who will do the right thing even in the most challenging of circumstances? I argue that philosophy has an important role to play.

Empirical legal research is defined in many ways. These differences in definition are important when considering the place of empirical legal studies in the law school curriculum. In this regard, this article reflects on school curricula in law schools in the United States and the United Kingdom. Empirical legal studies are largely absent from law school curricula. One indispensable pre-condition for any law school curriculum is that it must reflect what those teaching it believe to be (...) true. Empirical legal studies can be properly incorporated into the law school curriculum if students not only use and understand such studies but also understand the methods used and the theories upon which they are based. Law schools throughout the world are in a state of flux. Empirical legal research has to compete for the attention of academics in law schools with a number of other areas of research that are becoming more popular. (shrink)

The challenge of calling "balls and strikes": the curious case of Gould v. Roberts -- To flatlaw and beyond : appreciating multiple analytic dimensions -- The traditions of legal reasoning : developing analytical legitimacy despite substantive disagreement -- Rethinking the analytic tradition : text, context, hypertext, and subtext -- The challenge of text : the relationship of "is," "ought," and focal meaning -- The challenge of context : what "is" means in both facts and law -- The challenge of hypertext (...) : the struggle within "ought" of multiple perspectives on fundamental values -- The challenge of subtext : considering the judiciary's role in the "game" of legal life -- The right (or rights?) to privacy (or privacies?) -- The never-ending disagreements over statutory interpretation : the primacy of subtext. (shrink)

This article examines the social development of Hong Kong's cultural and national identity since its return from the UK to the People's Republic of China nearly six years ago, focusing on the extent to which Hong Kong students are now inculcated in traditional Chinese music and express their devotion to the PRC through singing the national anthem. Hong Kong music teachers experience conflicts concerning their roles as music teachers and as purveyors of values education. These observations raise fundamental questions concerning (...) the sociopolitical function of values education in the music classroom. (shrink)

This chapter contains sections titled: A Brief History of Socratic Method and Socratic Teaching Teaching Through Questions The Features of Contemporary Socratic Education Conclusion.

This article is currently available as a free download on ingentaconnect.

The paper aims to analyze the scope of female leadership (deanship) at public and non-public law faculties in selected countries from the region of Central and Eastern Europe: Poland, Hungary, Czechia, Slovakia, Lithuania, Latvia, Estonia, Bulgaria, Romania, Slovenia, Croatia, Serbia, Kosovo, Bosnia and Hercegovina, Montenegro. The paper will explore the engagement of women in the administration of law schools operating within public (and non-public) schools (universities) across the region in the latest years. The paper aims to show the number of (...) female deanships at law faculties in the analyzed states. This analysis will be based on statistical data obtained from the available public sources (including national databases as well as the European Union resources) providing the number of female deans and vice-deans appointed or elected by the academia at all higher education institutions within the country. The initial hypothesis states that gender inequality has been present in the deanship of analyzed law schools and reflects general trends in gender equality in Europe. Comprehensive analysis of the central and eastern European states will allow formulating the key conclusions and answering the following research questions concerning the differences in the numbers of women on the key positions within the law faculties in terms of public versus non-public institutions and in the light of the general gender equality trends in the continent. The research methods used for the analysis include a dogmatic method, statistical method as well as comparative method. (shrink)

This is how Georgia State University College of Law Professor Charity Scott introduced the concept of mindfulness to numerous law students and lawyers. Aware that her skeptical, mind-driven audience needed a clear definition for a practice that seemed curious, at best, and esoteric, at worst, she immediately gave us the very lawyerly task of “pars[ing] each of these phrases to understand their importance and relevance to the legal profession”2 and applying them to our own experience of studying or practicing law. (...) Using scientific evidence, she described the benefits of mindfulness and then invited us to try it and decide for ourselves. Charity was a superb teacher, who knew how to impart knowledge skillfully, and a brilliant lawyer, who could present and defend her case exceptionally well. In fact, “Charity Scott owned the subject matter so deeply that she was able to engage lawyers who otherwise would never have given the concept of mindfulness any credence in a million years. In a way that’s hard to describe, she didn’t brook any resistance on the topic and, as a result, was able to move the needle on well-being for lawyers at a time when, as far as I can tell, she was the only one doing the lifting,” reflects Lynn Garson, health care attorney and mental health advocate. But I believe Charity Scott’s true mastery and impact came from her embodiment of mindfulness itself. In her presence, mindfulness ceased to be a mere concept, but instead became her way of being that illuminated her words and actions, nourished her relationships, and changed lives. (shrink)

The theory of institutional isomorphism has been criticized for overemphasizing organizational convergence and neglecting organizational divergence. Drawing on a range of empirical data, this paper shows that multi-dimensional accounts of isomorphic change are not necessarily incompatible with accounts emphasizing divergence as a typical form of organizational response to environmental uncertainties. The specific case investigated is the proliferation of academic organizational units teaching law at Australian universities over a ten-year period that saw far-reaching structural transformations of the Australian university system. The (...) key heuristic strategy employed in this paper is to scrutinize when isomorphic responses appear to occur, and which specific organizational form they take. In the empirical case examined, scrutiny of each of these dimensions strongly suggests that at least some isomorphic responses of universities were driven by a dual agenda of manifesting not only similarity but also distinction. (shrink)