Chapters in Books

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  Rights of Incarcerated Parents

  Angélica Cházaro

  This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S. Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the age of eighteen in 2007. There are approximately 1,706,600 children under the age of eighteen who have a parent in prison.

  As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New York state law and describes how the law provides parents in prison with various tools to prevent these things from happening.

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  A Fuzzy-Trace Theory of Risk and Time Preferences in Decision Making: Integrating Cognition and Motivation

  Shahin Rahimi-Golkhandan, David M. N. Garavito, Bertrand B. Reyna-Brainerd, and Valerie F. Reyna

  We provide an overview of fuzzy-trace theory (FTT) and its implications for risk and time preferences, drawing on evidence from behavioral economics, psychology, and neuroscience. FTT’s central construct is mental representation, specifically verbatim (literal surface form) and gist (bottom-line meaning) representations. The differences between these types of representation determine risk and time preferences, in combination with social values as well as developmental and individual differences. In particular, sensitivity to rewards and inhibitory control vary across the life span and across people, but impulsivity and risk taking can be modified by applying principles of FTT. We discuss the origins of FTT in prospect theory and distinguish risk preference, impulsivity versus intuition, temporal discounting (i.e., delay discounting), and delay of gratification, as well as FTT’s approach compared to standard dual-process models of judgment and decision making. As we discuss, there are parallels in FTT’s explanations of people’s willingness to tolerate risk as well as their willingness to wait for future rewards. FTT predicts theoretically crucial effects, such as increasing cognitive biases from childhood to adulthood, greater “rational” analysis among adolescents compared to adults, elimination of gain–loss biases through truncation of zero parts of gambles in risky choice framing, and hidden-zero effects in temporal discounting. We conclude that FTT yields qualitatively different interpretations of risk preference and time preference compared to other theories and that it offers new approaches to understanding and improving problem behaviors.

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  Critical Race Theory

  Mary Romero and Jeremiah Chin

  Numerous sociologists engaged in interdisciplinary critical studies on race have embraced the writings emerging from critical race theory (CRT). These race scholars reject the traditional emphasis on assimilation or separating communities as ethnic or racial but rather recognize race “as a mode of constructing political communities” (Jung 2009: 390) and challenge discourses on a “post-racial” era of “color-blindness” and meritocracy. Critical race scholars focus on power relations and domination central in maintaining boundaries of national belonging and critique scholarship on multiculturalism and diversity, which emphasizes integration and assimilation.

  Legal scholar Derrick Bell forged the path for CRT in his powerful narratives, such as And We Are Not Saved: The Elusive Quest for Racial Justice (Bell 1987) and Faces at the Bottom of the Well: The Permanence of Racism (Bell 1992). Bell's use of personal narrative, critique of white supremacy, and commitment to an activist agenda, were ideal for teaching and researching the way that race is embedded in our social institutions and is reinforced and maintained through everyday practices. Weaving legal scholarship and the struggle for social justice, Bell's writings attracted race scholars in sociology who recognized that the study of race has never been neutral but has always involved issues of power, inequality, and oppression. CRT “rejects the prevailing orthodoxy that scholarship should be or could be ‘neutral’ and ‘objective’” to pursue “engaged, even adversarial, scholarship” (Crenshaw 1995:xiii). In locating CRT in sociology today, we begin with a brief overview of CRT and its key themes. We then discuss the contributions of the founder of the sociology of race, W. E. B. Du Bois, to CRT, sociological perspectives that utilize CRT, and the works of some sociologists who have incorporated CRT into their research.

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  Hidden from View: Disability, Segregation and Work

  Elizabeth Pendo

  A central goal of the disability rights movement is to enable people with disabilities to fully participate in society and to live complete, independent, and engaged lives. Employment is considered central to this vision and has long been intertwined with ideas of equality and citizenship in the disability rights movement. However, too often people with disabilities are unseen, unwelcome, or simply not present in the traditional workplace.

  The employment provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101) (ADA) were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. For example, in 2012, only 32.7 percent of working-age adults with disabilities were employed, as compared with 73.6 percent of working-age adults without disabilities who were (Institute on Disability 2013). While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops.

  Sheltered workshops are commonly defined as supervised, segregated workplaces for disabled adults and primarily for adults with intellectual and developmental disabilities. According to a 2001 report by the U.S. General Accounting Office, more than 400,000 people with disabilities are working in sheltered workshops across the country (GAO 2001). The work activities in sheltered workshops typically consist of simple assembly processes performed by hand. Examples include assembling small parts, hand-packaging items, packing or unpacking items, folding, sorting, and collating (pp. 10–12). Sheltered workshops are relatively small settings, each employing an average of eighty-six workers with disabilities, and primarily populated by people with disabilities (p. 10). Sheltered workshops may also include support services such as close supervision, job coaching, and life skills training (p. 13). Sheltered workshops are often characterized as job training programs, but many of them function as long-term and isolating alternatives to competitive employment. Although the invisibility of people with disabilities because of these sheltered workshops may appear to be a dramatic example, it shares similarities with other ways in which such individuals are unseen or simply not present in the traditional workplace. Indeed, there are several gaps or areas of conflict in ADA implementation that operate to obscure, exclude, or divert workers with disabilities from the traditional workplace.

  This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the ways in which different and conflicting social and legal constructions of disability perpetuate the segregation and invisibility of people with disabilities in the workplace.

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  The Gist is Sophisticated Yet Simple: Fuzzy-Trace Theory’s Developmental Approach to Individual Differences in Judgment and Decision Making

  Rebecca B. Weldon, Jonathan C. Corbin, David M. N. Garavito, and Valerie F. Reyna

  In this chapter, we review fuzzy-trace theory (FTT), a theory of reasoning and decision-making that differs from traditional models and posits that reliance on bottom-line gist processing is the basis for advanced cognition (Reyna, 2012). We discuss gist and verbatim, two distinct forms of mental representation that are encoded and retrieved independently and in parallel. Gist and verbatim representations exist on a hierarchy, from the most general, “fuzziest” representation to the most specific, detailed type of representation. We address individual differences in processing preference. FTT accounts for developmental differences in judgment and decision-making by explaining that both types of processing (bottom-line gist and precise verbatim) improve with age, but that ultimately adults rely mainly on gist processing to make decisions.

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  Cross-Boarder Teaching and Collaboration

  Kimberly D. Ambrose, William H.D. Fernholz, Catherine F. Klein, Dana Raigrodski, Stephen A. Rosenbaum, and Leah Wortham

  Since the publication of Best Practices for Legal Education, the globalization of both legal education and law practice has exploded. Today’s lawyers increasingly serve border-crossing clients or clients who present with transnational legal issues. As law schools expand their international programs, and enroll increasing numbers of non-U.S. law students, law students transcend cultural and legal borders. As a result, they deepen their understanding of—and sharpen their critical perspective on—their own national systems. Similarly, U.S. law teachers are increasingly called to engage in border-crossing teaching and other academic pursuits. Best Practices did not address these issues. The primary aim of this chapter of Building on Best Practices: Transforming Legal Education in a Changing World (Lexis 2015) is to identify best practices for law teachers engaged with non-U.S. or “international” learners who study or train in a U.S.-style learning environment, either in the United States or abroad.

  This chapter also addresses collaboration of U.S. law teachers with their counterparts abroad in such areas as developing innovative teaching and clinical legal education, training and research. It identifies eight guiding principles that cut across types of international learning and then applies these principles to three specific contexts: 1) teaching international students in U.S. law school settings; 2) integrating international students in U.S.-based clinics; and 3) collaborating in legal education and reform efforts with law teachers abroad.

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  A Conscious Institutional Strategy for Expanding Experiential Education

  Lisa Radtke Bliss and Deborah Maranville

  As law schools seek to better prepare students for the profession, they are expanding experiential education in traditional contexts such as theory and practice simulation skills courses, clinics, and externships. At the same time, they are also searching for opportunities to expose students to practical learning opportunities during the entire course of their legal education by incorporating experiential education throughout the curriculum. It is a best practice to develop conscious strategies for pursuing this effort. While Best Practices for Legal Education called for the integration of teaching theory, doctrine, and practice, it did not address strategies for integrating experiential education across the curriculum.

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  Robot-Sized Gaps in Surveillance Law

  Ryan Calo

  The past several years have seen a renewed interest in robotics, including by lawmakers. More than a dozen states have one or more robot-specific laws on the books. One of the issues lawmakers are concerned about is privacy. Thus, several states now limit how public or private entities may use drones for surveillance.

  That robotics would raise privacy concerns is hardly surprising: robots implicate privacy practically by definition. Robots differ from previous and constituent technologies such as laptops precisely in that they proactively explore the physical world. But, owing to the inability of lawmakers and courts to think more broadly about robotics as a technology, emerging law creates or fails to close certain gaps in privacy law.

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  Business and Financial Literacy

  Dwight Drake

  Law practice continues to become more complex and demand a broader range of specialized knowledge. Business and financial literacy skills, once viewed as only important in business school or for law students who intend to become lawyers representing business owners or entities, are being viewed differently by legal educators who desire to ensure that law students are prepared for practice.

  The world is driven by business, and core business and financial issues routinely surface in various types of legal disputes, transactions, and planning challenges. At a minimum, knowledge of basic business and financial concepts will help a lawyer deal with personal consumer, credit, financial, investment, and business challenges and enhance the lawyer’s ability to serve others, even when retained for a non-business matter.

  The importance of understanding core business and financial concepts is heightened for the lawyer who wants to serve business owners or executives at any level. Best Practices for Legal Education did not address the need for business and financial literacy. Given the growing recognition of this as a potential area for curricular development, it is a best practice for schools to identify whether students have opportunities in the curriculum to learn the knowledge, skills, and values of this subject.

  This section explores why such knowledge, skills, and values are important and aims to identify the core elements of business and financial literacy for educators exploring this topic.

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  Library Director as Mentor

  Penny A. Hazelton

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  Ensuring Effective Education in Alternative Clinical Models

  Deborah Maranville

  Best Practices for Legal Education organized its discussion of experiential courses around the “simulation-based courses, in-house clinics, and externships” typology without specifically defining what structures fall within each category or discussing the variations. The discussion of in-house clinics focused on fundamental principles for effective teaching and supervision and the need for appropriate facilities and office support. It only implicitly addressed the range of issues presented by alternative structures for clinics and did not address alternative externship structures or variations that combine features of both.

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  Transfer of Learning

  Deborah Maranville

  A key characteristic of effective education is that students are able to retain and build on the information, skills, and values they learn in their work in later courses and in the world. Doing so is known as transfer of learning. Ultimately, for law students that means they are able to transfer what they learn into the work they do as professionals. Best Practices for Legal Education did not delve deeply into the educational literature on transfer of learning.

  Underlying its preparation for practice theme, however, was an implicit recognition that both individual law teachers and law schools as institutions must educate students in a manner that facilitates transfer. Law teachers know all too well the challenges of achieving transfer: students often deny having encountered a legal doctrine that was unquestionably covered in another class. While this phenomenon raises other important questions, such as to what extent and for how long do students retain information conveyed in the classroom, it also potentially raises the question of transfer of learning. Even if students remember the information in its initial context, can they draw on it in a new one?

  Transfer is a core issue for effective teaching and learning, especially in the context of professional education where students are expected to be able to use their skills–even if the skills in question are solely the analytical ones supposedly taught in the conventional law school classroom–when they encounter new problems. Yet, until recently, how to create conditions that will lead to transfer has been a neglected question in legal education.

  Transfer of learning is critical if law schools intend to educate skilled professionals, but the research suggests that achieving transfer is neither easy nor automatic. Thus, for both the individual teacher and law schools responding to the call to either improve or truncate legal education, it is a best practice to attend to educational strategies to improve transfer of learning, both from individual courses and the curriculum as a whole.

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  Pathways, Integration, and Sequencing the Curriculum

  Deborah Maranville and Cynthia Batt

  Law school course offerings have proliferated in recent decades. This development reflects the addition of specialized doctrinal courses, a growing emphasis on interdisciplinary knowledge, and the incorporation of practice-oriented courses. From the perspective of the individual student, an expanded curriculum may create exciting educational opportunities while posing trade-offs between a generalist education and specialization.

  Law schools face two key challenges. First, they must structure the curriculum so that the experiences of individual law students have some coherence, or, if you will, seem integrated. Second they must incorporate the full range of what the Carnegie Reports referred to as the apprenticeships of formal knowledge, professional skill, and identity and purpose and what the MacCrate Report and Best Practices for Legal Education previously articulated as knowledge, skills, and values.

  This section discusses three approaches–not mutually exclusive–to structuring the law school curriculum. One way to strive for that goal is through course advising with structured pathways through the curriculum and concentrations. A second approach is to integrate the curriculum: connect the individual courses that a student takes, both those taken concurrently and across the years the student is enrolled in law school. The objective is that students have a sense that the learning in the various courses relates to and reinforces the learning in others. A third approach is to engage in a particular type of integration: sequence the curriculum by structuring offerings from introductory to intermediate to advanced, so that later classes build on the concepts and skills learned in earlier ones.

  Although scattered integration and sequencing efforts date back decades, empirical research is not available to definitively confirm their status as best practices. Further experimentation with integration and sequencing is warranted as a best practice.

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  Incorporating Experiential Education Throughout the Curriculum

  Deborah Maranville, Cynthia Batt, Lisa Radtke Bliss, and Carolyn Wilkes Kaas

  In discussing experiential education, Best Practices for Legal Education focused primarily on the three traditional types of separate experiential courses: in-house clinics, externships, and simulations, and treated them in a separate chapter. These courses were defined as those where “experience is a significant or primary method of instruction” rather than a secondary method, and where “students must perform complex skills in order to gain expertise.”

  Arguably, this separate treatment reinforced what has too often been a divide between doctrinally-focused teaching and practice-focused teaching. Best Practices recognized that “experiential education can be employed as an adjunct to traditional methodologies regardless of class size” through methods such as incorporating simulation exercises into doctrinally-focused courses. It did so, however, only as part of its discussion of best practices for legal education generally.

  This section builds on Best Practices by emphasizing the need to incorporate experiential education throughout the curriculum in order to maximize its educational impact. The term “experiential education” is, therefore, used to encompass both separate experiential courses and what will be termed “experiential modules.” Because a key distinction in experiential education is between simulated and real experiences, the term “clinical legal education” will be restricted to separate courses involving real experiences—law clinics, externships and offerings using alternative models, often termed “hybrids.” The term “law clinics” will be used to include both traditional in-house clinics taught by full-time faculty, and other structures that provide a similar level of intensive, integrated teaching and supervision.

  As Best Practices suggested, it is helpful to distinguish “experiential learning” and “experiential education.” Both happen in law school, and in life; both are important. Experiential learning is simply a primary way that people learn on their own, whereas experiential education involves active and purposeful design and teaching. A focus on experiential education directs law schools and individual legal educators to their role in ensuring that maximum learning takes place beyond raw experience. The way in which each teacher integrates experiential education methods will often determine how far the students develop as lawyers in response to those methods. The way in which a law school designs and delivers a coherent array of courses to allow a student to progress from novice to (reasonably) competent professional in three short years will, more and more, define its efficacy, reputation, and leadership as a provider of legal education.

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  Faculty Status and Institutional Effectiveness

  Deborah Maranville, Ruth Anne Robbins, and Kristen K. Tiscione

  Legal education has expanded to incorporate practice-oriented topics and courses over the past several decades, and student academic support services have multiplied in response to changing student populations. As a consequence of these changes, law schools are overdue to address the issue of the status of the individuals they hire to fill the multiple and ever expanding needs and interests of students.

  Should law schools hire new personnel as teachers, staff, or administrators? If hired as teachers, what titles and governance rights should they be given? Should they be eligible for tenure, presumptively renewable long-term contracts, or short-term contracts? What workloads are appropriate and what courses permitted?

  Status and fairness issues for law teachers accompanied the rise of experiential programs, including clinical and legal research and writing programs. More recently, similar issues have arisen with academic support teachers, whose courses may be mandatory for certain students, and have intensified for externship teachers at many schools.

  Best Practices for Legal Education identified as a “best practice to enhance the effectiveness of faculty in experiential courses” that “a school uses qualified faculty, provides professional development opportunities, and assigns reasonable workloads in its experiential education courses.”

  Faculty status is a key dimension of enhancing the effectiveness of faculty, and this section provides an overview of the issues involved in debates over faculty status.

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  The Socratic Method

  Elizabeth G. Porter

  The Socratic method, one of Langdell’s most well-entrenched reforms to legal education, remains the law’s signature pedagogical technique. Although the term means different things to different people, its essence in the law school classroom is student analysis of cases led by a teacher, who calls on students to articulate gradually deeper understandings of a legal doctrine or theory.

  Socratic learning requires students to think on the spot, answer precisely, and take intellectual risks. For over a decade now, the Socratic method has been out of fashion among those who write about legal pedagogy. In addition, the method’s critics describe what they view as the alienation and humiliation of students, an inattention to legal theory and professionalism, and a lack of clear learning outcomes.

  Indeed, both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law criticized or downplayed the value of the Socratic method. Best Practices concluded that the Socratic method should be “used sparingly.”

  These critiques undervalue the Socratic method. As the Carnegie Report acknowledged, the Socratic method is an easily scalable, effective, deeply engaging way to achieve active student learning, particularly but not only in larger doctrinal classes. Similarly, Best Practices recognized that “[t]ailored and applied flexibly, the case method . . . can provide a logical, overall methodology for approaching and thinking about all sorts of situations.” Those positive findings remain true. The Socratic method gives students a strong incentive to prepare well for class every day, and during class it forces both students and the teacher to focus intensely, to listen to others, and to express their ideas in a cogent, persuasive, and professional manner.

  These qualities—thorough preparation, focus, listening skills, cogent analysis, and good judgment—are fundamental to successful lawyering. Finally, contrary to its reputation, the Socratic method is also a wonderful way to create a sense of community and shared learning purpose among students, even in a large class. These attributes of Socratic teaching look even stronger in comparison with the most commonly used alternative—lectures, perhaps punctuated by text-heavy PowerPoint slides.

  Indeed, while the method has fallen from favor in law schools, cutting-edge colleges are now seeking to expand Socratic-type interactive teaching in order to raise the level of engagement among students. In recognition of the continuing centrality and vitality of the Socratic method, this section therefore focuses on best practices for optimizing the effectiveness of this active learning style. The basics of the Socratic method are well described elsewhere (and will have been experienced by almost all readers of this volume).Therefore, this section will not describe the methodology in detail. Instead, it will situate the Socratic method within a framework describing the level of active learning of the most frequently used pedagogical techniques in the non-clinical law school classroom. Then it will focus on three fundamental tools for creating and maintaining a successful course that uses the Socratic method for active learning.

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  Magna Carta and Sovereign Immunity: Strained Bedfellows

  Danieli Evans and Diane P. Wood

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  Post-Racial Proxy Battles over Immigration

  Mary D. Fan

  Amid economic and political turmoil, anti-immigrant legislation has flared again among a handful of fiercely determined states. To justify the intrusion into national immigration enforcement, the dissident states invoke imagery of invading hordes of “illegals”—though the unauthorized population actually fell by nearly two-thirds, decreasing by about a million people, between 2007 and 2009 as the recession reduced the lure of jobs.

  Arizona’s Senate Bill 1070—recently invalidated in part by the U.S. Supreme Court in Arizona v. United States—led the charge. By preelection-year summer 2011, several states enacted laws patterned after Arizona’s controversial Senate Bill 1070, including Alabama’s even more aggressive HB 56. A host of lawsuits are pending against the new laws, which are at least partially invalid after Arizona v. United States. Other controversial proposals circulate, such as eliminating birthright citizenship or branding the birth certificates of alleged “anchor babies” implanted in the United States by foreigners.

  This chapter examines how the spurt of state legislation is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the “Other”—the foreign enemy within—in a time of economic and political turmoil. Despite the ostensibly a-racial construct of the illegal alien used to legitimize the lashing out, it is suffused with racialized perception. Current tactics parallel the overtly racialized hostility of past episodes of states enacting out anti-immigrant legislation. The oft-raised concern in such a fiercely polarized time is racial discrimination. Antidiscrimination law, however, does not offer the remedy for this concern.

  Part 1 analyzes two hot-button forms of resurgent state and local anti-“alien” laws of our times—laws patterned on the Arizona template and the anti–birthright citizenship movement. It explores the dominance of racialized anxieties behind the seemingly race-neutral construct of the vilified alien. Part 2 contrasts the friend-enemy politics and legislation of our contemporary scene with the state and local legislation and furor against the Chinese during the turbulent politics of the last quarter of the nineteenth century. Part 3 examines the polarization-ameliorating bases for decisions to cut back on overreaching state and local laws in order to make shared interests, rather than racial difference, salient while protecting underlying antidiscrimination values. The approach helps build bridges between dissonant worldviews to navigate the profoundly polarized politics and legislation of our times.

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  Cause Lawyering in Japan: Reflections on the Case Studies and Justice Reform

  Daniel H. Foote

  Each of the case studies presented in this volume is an important and fascinating story in its own right. Taken together, the case studies enrich our understanding of cause lawyering and the relationship between law and social change in Japan. Despite their rather disparate subjects, the studies dovetail exceptionally well. They show numerous commonalities in the use of law to further social causes, as well as some important differences. They reveal a truly impressive level of creativity in the use of law, and they disclose several common barriers to successful litigation to promote social causes in Japan. As discussed below, a number of recently introduced reforms seek to ameliorate some of those barriers. As these case studies so eloquently show, however, the goal of socially oriented litigation at times is not victory in the court battle itself, but rather victory in the court of public opinion. In short, although this book is entitled Going to Court to Change Japan, the courts are only one locus in a much broader battle.

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  Aboriginal Title in the Canadian Legal System: The Story of Delgamuukw v. British Columbia

  Robert T. Anderson

  Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States.

  In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly three hundred tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources.

  In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the “extinguishment” of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay. This chapter explores the foundation beneath the current negotiations.

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  Preface

  William H. Rodgers Jr.

  In the 2006-07 term, the U.S. Supreme Court gave us a flood of new thought on the topic of environmental law.

  Too bad.

  [Addresses cases interpreting the Clean Water Act, the Superfund law, the Clean Air Act, and the Endangered Species Act. In the Summer 2008 Pocket Part for Volume 1.]

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  Washington: The Past and Present Populist State

  Hugh D. Spitzer

  Describes the impact of the late-nineteenth century populist movement on the structure and content of Washington’s constitution and the consequential impact on the state’s political and legal life. Suggests that the anti-business attitudes and skepticism about government prevalent among Washington State residents in the 1880s and 1890s, continues to influence that state's constitution, laws and politics today.

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  Configuration of the Law Library of the Future

  Penny Hazelton

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  Banking Law

  Penny A. Hazelton

  • Introduction
  • Federal Law
  • State Law
  • Federal Regulatory Framework
  • Office of the Comptroller of the Currency
  • Office of Thrift Supervision
  • Board of Governors of the Federal Reserve System
  • Federal Deposit Insurance Corporation
  • Resolution Trust Corporation
  • Federal Housing Finance Board
  • Federal Home Loan Bank System
  • State Regulatory Framework
  • Additional Research Sources
  • Appendices

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  Keiken, tayōsei, soshite hō [Experience, Diversity, and the Law]

  Daniel H. Foote

  This essay was published in 2003, in Japanese, as my contribution to a tribute volume honoring Nozaki Ayako, a Ph.D. candidate at The University of Tokyo who passed away suddenly earlier that year. In an article she published in 1999, Nozaki had offered a thoughtful, perceptive critique of an article I had published four years before, dealing with the resolution of traffic accident disputes in Japan. Her article led me to reflect on the reasons for the difference in our views; and that in turn led to this essay. As indicated in the title, two key themes of this essay are experience and diversity. The underlying impetus for both Nozaki’s work and mine was first and foremost our respective life experiences, and those experiences deeply affected the perspectives from which we approached the same basic topic. In turn, the contrasting perspectives presented in our two works reflect the vital importance of diversity – in this case, diversity in life experiences, in backgrounds, and in gender – to legal education and to development of the law. The traffic accident example serves as a testament to the indispensable nature of experience and diversity for the law. Differing perspectives – shaped by many factors, including gender, race and status, as well as work and other life experiences – lead to differing views and new insights into the workings of the legal system, and these insights in turn inform the process of legal development and legal change.

  As raised directly in the final section, this essay also constituted an effort to influence teaching methods at Japan’s new law schools, which began operations in 2004, the year after this essay appeared. In its final set of Recommendations of June 2001, the Justice System Reform Council had listed diversity, along with openness and fairness, as the three central tenets for the new system of legal training. I viewed the heightened attention to diversity as one of the most important aspects of the Japanese reforms; and this essay represented one of my efforts to highlight the value of diversity to legal education and the legal profession. Looking back over fifteen years later, I’m sorry to report that, so far as I can tell, those efforts had virtually no impact.