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Lael Weinberger, Keep Distance Education for Law Schools: Online Education, the Pandemic, and Access to Justice, 53 Loy. U. Chi. L. J. 211 (2021)
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Abstract
While distance education made inroads throughout higher education, law schools kept their distance-until a global pandemic forced them all online for a time. For the first time, the gatekeepers to the profession at the American Bar Association (ABA) and state bars temporarily dropped their limits on distance learning. Now as American law schools prepare to return to normalcy, should distance learning remain an option? This essay argues it should, because it has potential to improve access to justice, in that distance education can reduce the costs of law school, increasing the supply of lawyers who can afford to provide less expensive legal services. Now is the time for legal regulators to make permanent what they allowed temporarily during the pandemic: distance-education friendly accreditation and bar admission standards.
Lael Weinberger, Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures, 87 U. Chi. L. Rev. 1737 (2020)
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction. This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes. The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would be one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
Lael Weinberger, From Appendix to Heart: Tracing the History of the Bill of Rights (Book Review), 34 Const. Comm. 519 (2019)
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
Book review: The heart of the Constitution: how the Bill of Rights became the Bill of Rights. By Gerard N. Magliocca. New York: Oxford University Press, 2018. xii, 235 pages. Reviewed by Lael Weinberger