Interstate Travel and Marriage

As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.

Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?

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“If I’d Wanted to Teach About Feelings, I Wouldn’t Have Become a Law Professor”

That’s the intriguing title of a new paper by Andrea Schneider, Melissa Nelken, and Jamil Nahaud.  The title expresses the authors’ mock horror at the thought of “bringing feelings into the room when teaching negotiation.”  They recognize that legal education is not exactly known for helping students to get in touch with their feelings: “learning ‘to think like a lawyer’ has traditionally favored cognition and ignored the powerful role of emotions in all human undertakings.”  Yet, they are convinced that law students will benefit from studying emotions:

One of the goals of focusing on feelings in a negotiation class is to help students learn that they can be emotionally engaged with clients and, therefore, with their own work as lawyers without becoming identified with them. Lawyers who understand clients at an emotional level are better able to represent the client’s needs.  And a lawyer who is sensitive to the emotional cues of his counterparts in a negotiation is better able to navigate the tricky waters of dispute resolution in a way that satisfies his client’s needs without riding roughshod over the other parties involved.

After laying out the benefits of covering emotions in a negotiation class, the authors then provide several practical examples of how negotiation teachers can effectively incorporate a study of feelings into the classroom experience.

This paper is just one of three new papers by Andrea on various aspects of teaching negotiation, all of which appear as chapters in Venturing Beyond the Classroom (Honeyman et al., eds. 2010).  The abstracts and links for the other two appear after the jump.

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Was Oedipus Culpable?

As I noted in an earlier post on Sophocles’ Oedipus Rex, I am (very slowly) working my way through the ancient Greek tragedies.  I recently finished the sequel to Oedipus Rex, Oedipus at Colonus.  One of the central questions in OC is the extent to which Oedipus was truly culpable for killing his father, King Laius, and sleeping with his mother, Queen Jocasta.  And, indeed, to modern sensibilities (or at least my modern sensibilities), Oedipus suffers far in excess of his blameworthiness.  After all, he did not know that Laius and Jocasta were his father and mother — he was raised by the King and Queen of Corinth, and they never told him that they were not his biological parents.  The whole patricide and incest thing was an accident.  So why should Oedipus suffer blindness, exile, and life as a wandering beggar — how he can deserve such a fate?

To be sure, Oedipus did massacre Laius and his attendants following a dispute over whose chariot had the right of way — what seems to be an ancient instance of road rage.  Even if he did not know that Laius was his father, we might say Oedipus was culpable for a hyper-violent overreaction to a minor slight.  

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