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September|October 2004
Continental Divide By Jeffrey Rosen
Newtonians and Charlatans By Daniel J. Kevles
The Other Detainees By Serena Hoy


Trial courts get horizontal, lawyers get religion, and other trends from the nation's law reviews.


The typical path of a lawsuit is vertical. Cases move up the pyramid from trial courts to a narrowing number of appellate panels, and the decisions of higher courts travel back to bind all the courts that fall below them. It would seem intuitive, then, that most national-level judicial changes come from the top.

But New York University law professor David Zaring argues that when it comes to certain types of cases, it's the trial courts that have led the way to new national policies. In suits where advocates have sought injunctive relief on behalf of prison inmates, schoolchildren, and public housing recipients, the solutions of one trial court have spread across the country, without a directive from a higher court. For example, when a group of Chicago public housing recipients sued HUD in 1966, the parties ultimately agreed to a detailed checklist of reforms to be overseen by the trial judge. Similar suits in other cities across the country soon followed, with similar results, and HUD eventually adjusted its national policies to reflect the rulings of the trial courts.

Zaring explains that one of the reasons these reforms spread horizontally is that the same advocacy organizations, experts, and federal agencies are usually involved in suits all over the country, and they are inclined to apply the same solutions to similar problems. Another important factor is that trial judges are happy to follow the lead of their colleagues, recognizing the benefits of instituting uniform policy reforms.

The combined effect of the cases Zaring describes has been national institutional reform as sweeping as any legislative scheme. Zaring doesn't condemn or support the phenomenon, though he does take a dig at Congressional politics, suggesting that reform initiated by experts, advocates, and judges may be just as sensible as that made by professional lawmakers. UCLA Law Review, Volume 51, Number 4


The Christian Legal Society is an organization of lawyers, judges, and law students 4,000 strong, with chapters all over the country. Members must sign a statement of faith when they join, affirming their belief in Jesus Christ and "the Bible as the inspired Word of God." The society describes its purpose thusly: "To proclaim Jesus as Lord through all that we do in the field of law and other disciplines." And CLS is not alone. Muslim and Jewish lawyers' associations also exist, promoting and affirming their faiths, and helping their members integrate their spiritual and professional lives.

There have always been religious lawyers, of course, but groups like CLS are a relatively new phenomenon. St. John's University law professor Robert K. Vischer takes a close look at these societies in a paper entitled "Heretics in the Temple of Law." Vischer worries that religious teachings about abortion, the death penalty, divorce, charity, and a host of other topics clash with the teachings of the ABA code of ethics, leaving religious lawyers with competing codes of conduct. A Christian lawyer committed to charity, for instance, may be frustrated by ethics rules against giving money to even the neediest of clients.

Vischer outlines several such scenarios, but ultimately he declares himself an advocate of the religious lawyering movement. He believes that groups like CLS are part of a wider phenomenon called "cause lawyering," in which lawyers set out to achieve particular social justice goals out of a sense of moral obligation (lawyers committed to eradicating the death penalty, for example). Lawyers are far more likely to be galvanized by deeply held moral beliefs, Vischer argues, than by the bland advocacy standards of the ABA. "Reconnecting who a lawyer is with how she practices law brings value to the lawyer herself, as well as the wider profession," he writes.

It's a cheery message, but it is made less convincing by Vischer's failure to answer the big question facing religious lawyers: How can they reconcile their religious doctrine with the doctrine of the separation of church and state? Roy Moore, the "Ten Commandments judge," clearly believes that the Bible is the "inspired Word of God." So fervent was his belief that the former Alabama chief justice forsook the law in favor of his religious convictions. His fight made him a folk hero, but it cost him his job. Law and Religion, Volume 19, Number 2


Last year, the Food and Drug Administration reconsidered its safety standards for the examining gloves worn by health workers. The agency compared the higher cost of more reliable gloves to the savings that would result if fewer workers suffered accidental infections. It also calculated the savings that would come from reducing health workers' anxiety that their gloves were defective: Worried workers order more tests, and have lower productivity. The FDA's report calculated that the "reduced mental lucidity, depression, crying, lack of concentration, or other signs of adverse psychological sequence" that occur when gloves break "may detract as much as 8 percent from overall feelings of well being."

Matthew Adler approves. In his article "Fear Assessment," the University of Pennsylvania law professor argues that because fear and anxiety diminish quality of life, they should be considered along with other health setbacks and costs whenever environmental, health, and safety agencies weigh the risks of a potential project. Government agencies frequently determine the costs of minor health problems, like "headache days." Why should fear be any different?

The answer in part is that according to a 1983 ruling by the Supreme Court, agencies may not be compelled to weigh fear. The court ruled that it would be too easy for opponents of a project to dress up their opposition as anxiety. "Anyone who fears or dislikes a project may find himself suffering from 'anxiety, tension [and] fear,' " the court put it dryly.

But while the court may have rejected one argument for measuring psychological states, it has accepted many others. The tort of emotional distress, for one, presumes that people's psychic injuries can be quantified in dollars. Adler believes there's nothing to fear about giving credence to fear itself. Chicago-Kent Law Review, Volume 79, Number 3

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