Legal Academics Research Articles

THE NEED FOR A LEGAL-WRITING COURSE IN THE SOUTH AFRICAN LLB CURRICULUM

Students are generally unprepared to study law. Unpreparedness includes language and writing deficiencies. Legal-writing courses at law school only lay the foundation for these skills that have to be developed and improved over many years of practice. Law schools and the organized profession should accept joint responsibility for laying this foundation. A substantial part of most legal-writing courses must include language training. Legal writing is generally not regarded as necessary by many South African law faculties. The main challenge in the area of developing legal-writing courses in South Africa involves the fact that legal academics have not beenformally trained to teach language and writing. It is proposed that a course is introduced for law teachers in and that they undergo training that will enable law lecturers to present these courses themselves.

HOW MERITOCRACY FUELS INEQUALITY—PART II Reply to Critics

HOW MERITOCRACY FUELS INEQUALITY—PART II Reply to Critics

THE TRANSFORMATIVE POTENTIAL OF THE CONSTITUTIONAL ENVIRONMENTAL RIGHT OVERLOOKED IN GROOTBOOM

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter “Grootboom”) remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court’s transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials – rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution.

THE FOUR-YEAR UNDERGRADUATE LLB: WHERE TO FROM HERE?

Fifteen years have passed since the four-year undergraduate Baccalaureus Legum (“LLB”) degree was first introduced in 1998. This degree was introduced by the Qualification of Legal Practitioners Amendment Act 78 of 1997 “as the minimum academic qualification for admission to practice as an advocate or an attorney … [to] ensure a level of equality between all practising lawyers”. The justification for the introduction of the four-year LLB programme was twofold: First, there were too few black South Africans represented in the legal profession and, secondly, the country’s previous apartheid policy had resulted in a distinction between the law degree that could be obtained bywhites and that which could be obtained by non-whites. To address these problems, Government introduced a single law degree, which was intended in one fell-swoop to remedy both the problem of under-representivity as well as provide equal qualifications for all.Despite the noble intentions of the democratic Government, the “symbolic gesture which was intended to herald a transformative shift has been a hollow victory”. On the surface, Government succeeded in remedying the problem with which it was faced: the new LLB did produce more black law graduates. However, the quality of graduates entering the legal profession is poor. In fact, the graduates that have been born from this initiative are not worthy of the qualification that they have obtained as many of them are unable to read, write and count atthe level required by the legal profession. (Here it should be emphasized that we are not talking about “plain old reading and writing”, as Boughey puts it, “rather much more specific kinds of literacy.” She adds that “[u]niversities require students to make inferences and draw conclusions from what they read, and to use reading of other texts and their knowledge of the world to question what they are reading”. This in her opinion does not render “reading at university more difficult, rather that reading at university requires the reader to take up a different position in relation to what he/she reads”. This requires a depth which in my opinion students in the undergraduate LLB degree lack because their knowledge of the world is very limited, despite being in possession of a degree which should indicate the contrary. This is problematic because poorly literate candidate attorneys and lawyers may hinder their clients’ access to justice and ultimately reduce people’s faith in the legal system in the long term if lawyers are less able to perform effectively. This is the legacy that has been left by the four-year undergraduate LLB degree. As a result of the repeated “dissatisfaction regarding the quality of law graduates raised by members of the legal profession, Government and academics”, the question that keeps rearing its head is how to address this problem. Two suggestions have been made: the first is for an extended undergraduate LLB degree to remedy the defects of the four-year degree; and the other for a return to the old post-graduate LLB degree. This note considers the four-year degree, in particular its content and pitfalls, as well as the reasons therefore. It also considers recent developments surrounding the law curriculum, the alternatives proposed and whether these are feasible. Lastly, suggestions are made for the way forward.

Realisme Hukum: Peradilan Adat dalam Perspektif Keadilan Sosial

Aspects of positivism with its normative approach are often taught in various law schools as a single perspective. The study of law can be based on legal realism. Nevertheless, there is still a debate about legal realism's working pattern and contribution to juridical science. This study that introduced legal realism worked with socio-legal method based on the literature review. It aimed to elaborate on the concept of legal-realism as an epistemology of the socio-legal school, which leads to the conception of customary law and legal anthropology. With a naturalistic approach and supported by theories of customary law and legal anthropology. This study showed that legal realism as a school in philosophy and juridical studies based on empirical studies need to be developed. It referred to legal realism conceptualized in Scandinavia and America that was suitable to Indonesia's legal context, especially customary law as the law that lives in society. Therefore, the law that lives in society is strengthened through verdict and law enforcement officers as symbols of the state. It suggested that legal realism is also taught in law schools at universities, so that legal academics have diverse points of view, both in the legal discipline and as a research method.
 KEYWORDS: Customary Law, Socio-Legal, Social Justice, Legal Realism.

Blackstone’s Tower Revisited

The years since the publication of Blackstone’s Tower have witnessed an explosion of international scholarship on university law schools and legal academics. More recently, the UK, as elsewhere, has seen the emergence of a distinct interdisciplinary body of work termed ‘critical university studies’ seeking to explore multifarious dimensions of what has been widely termed the marketization of universities and their law schools; a process well under way by the time Blackstone’s Tower first appeared but which has since gathered pace. This article will explore the nature of these changes and, more specifically, assess their impact on a subject that has itself become the focus of increasing political and policy debate across the higher education sector over the past decade; the wellbeing and mental health of those who inhabit the contemporary university.
 Focusing specifically on legal academics, the subject of a growing body of recent research, the article will chart both changes and continuities that have occurred within understandings of legal academic wellbeing since Blackstone’s Tower was published; and, interweaving a discussion of the impact of the global pandemic of 2020 on wellbeing in university law schools, taking place at the time of writing, consider how Covid-19 is reshaping our understandings both of the ‘private life’ of the law school, as discussed by Fiona Cownie, and of legal academic wellbeing as a focus of socio-legal study.
 Keywords: legal academics; wellbeing; mental health; UK universities; legal profession; marketization; critical university studies.

Just Compensation: An Empirical Examination of the Success of Legal Externships for Pay and Credit

For-credit externships offer law students a much-needed opportunity to experience the “real world” of legal practice, rounding out their legal education in ways not possible through classroom teaching alone. So when the ABA changed its rules to allow students to be compensated for their externships while still earning school credit, some in legal academia were worried. Would highly attractive paid externships come at the cost of diminished interest in unpaid government and non-profit work? Would the work that paid externs would be assigned be of a lesser educational quality than their for-credit only peers? Conjecture and anecdotal evidence abounded. This article aims to inject the debate over paid externships with empirical evidence. Drawing on several years’ worth of student and supervisor semester-end evaluations, the author analyzes enrollment patterns, numerical ratings of student performance, and work assignment descriptions to determine whether students who are paid for their externships fare any better or worse than their unpaid counterparts. The resulting data demonstrate that, first, though there has been a tremendous increase in interest in paid law firm and in-house externships, there has been virtually no decrease in interest in traditional placement types. Moreover, while paying students for their work has had some impact on the type of work performed, it is far less than critics might have predicted. Finally, there are some areas, such as quality of work performed, in which the data show that paid externs are thriving even more than their unpaid peers.

Unequal Profession: Race and Gender in Legal Academia. By Meera Deo. Palo Alto, CA: Stanford University Press, 2019. 256 pp. $25.00 paperback

<i>Unequal Profession: Race and Gender in Legal Academia</i>. By Meera Deo. Palo Alto, CA: Stanford University Press, 2019. 256 pp. $25.00 paperback

4. THEORIZING CONSTITUTIONAL HISTORY

ABSTRACTThe historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser's theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth‐century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America's age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order predicated on racial classifications of whiteness.

Practicing Reflexivity in International Law: Running a Never-Ending Race to Catch Up with the Western International Lawyers

For a long time, the discussions on the diversity of international legal academia and practice have not been properly addressed by various actors of the field. Protagonists from the Global South were not even considered as relevant issue-setters of international law. However, the situation is gradually changing. More and more academics, practitioners, students both from the Global South and Global North raise their voices to address these pressing issues of discrimination, sexism, and racism that we currently observe in the international legal sphere. This paper offers a short glimpse at some of these challenges and draws arguments and conclusions on the author’s experiences. It points at the existing problems of the diversity of international legal institutions, representation in international legal academia, and publishing practices. This essay offers how international lawyers can help each other to overcome existing inequalities and create a better environment for future generations of international lawyers.

“Clocks Must Always Be Turned Back”:Brown v. Board of Educationand the Racial Origins of Constitutional Originalism

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance toBrown v. Board of Educationby conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of alegitimatingrather than anoriginatingrole for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

Tinjauan Hukum Kriminalisasi Berita Hoax: Menjaga Persatuan vs. Kebebasan Berpendapat

The existence of hoaxes in Indonesia has been around for a long time. However, the term hoax was widespread and became part of daily conversations in the media and the public during the 2014 and 2019 Presidential Election. The rapid development of social media use and the ease of information exchange accelerated the spread of hoax. Even in the COVID-19 pandemic, hoax news about the corona virus and matters related to it are widespread in the community. This hoax news, both during the Election and the Covid-19 Outbreak, caused much unrest in the community. Some of the hoax news spreaders were jailed for violations of the ITE Law. Various legal practitioners and academics have also suggested that hoax news creators and spreaders be criminalized. This article reviews normatively whether the criminalization of hoax news is feasible for reasons of maintaining stability or needs to be eliminated to maintain freedom of opinion. The author reviews the normative aspects of criminalizing the creation and dissemination of hoax news by using Habermas' theory of deliberative democracy. Through this theory, the writer finds that hoax news makes aspects of democracy such as dialogue that is full of awareness and accurate information unattainable. This is also in line with what the Indonesian constitution wants. However, it is necessary to ensure that the criminalization of hoaxes is not used as an instrument of abuse of power considering that the circulation of hoaxes is a symptom of a problem rather than the root of the problem itself.Keywords: Fake News, Criminalization, Stability, Freedom of Speech, Deliberative Democracy, Legal Revuew

The Pro-Life Movement and the Fight for the Constitution in Argentina: Between Law and Transcendence

The constitutional history of abortion in Argentina is long and complex. This paper overviews a small part of it: how Catholic legal academia developed, since the early 1980s, constitutional arguments to dispute with the feminist camp the meaning of the Constitution. This process has two dimensions. One is linked to the intellectual history of Catholic ideas over reproduction and how they were adapted to the peculiarities of Argentinean law. The other is related to the way in which these arguments formed the framing of the “pro-life” movement in Argentina. Exploring this normative world reveals the “depth of field” with which social movements seeking constitutional change work (Cover, 1983). It also reveals the stakes involved when the battle is waged in that terrain. This article explores what this means for constitutional theory.

Professor Mom: The Pandemic's Disruption of the Personal-Professional Divide in Legal Academia

Lecturing on the art of oral advocacy while wedged onto my daughter’s bottom bunk, surrounded by her stuffed animals and proudly displayed soccer medals, pretty much epitomizes how the Coronavirus pandemic upended my professional life this spring. And while yes, I did consider using a virtual background to conceal my whereabouts, it seemed too blatant a lie at that point. I was barely holding the pieces of my life together, and I was fairly sure my students could tell. If you can’t relate to this story, you’re probably not a working mom. This personal essay explores the ways the pandemic has disproportionately and negatively impacted working mothers, and suggests the recognition and use of vulnerability as a preliminary path forward.

HIERARCHIES OF ELITISM AND GENDER: THE BLUEBOOK AND THE ALWD GUIDE

Hierarchies persist in legal academia. Some of these, while in plain view, are not so obvious because they manifest in seemingly small, mundane choices. Synecdoche is a rhetorical device used to show how one detail in a story tells the story of the whole.

Legal reasoning: a textual perspective on common law judicial opinions and Chinese judgments

Abstract The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.

Undermining resilience: how the modern UK university manufactures heightened vulnerability in legal academics and what is to be done

ABSTRACT Legal academics are vulnerable and the contemporary law school is eroding their resilience. Using vulnerability theory, as developed by Professor Martha Fineman, this article analyses the reasons for the loss of assets that could provide resilience in the modern university and the modern law school. Audit culture, the economics of resourcing higher education, the growth of mass higher education, the ideology of neoliberalism, and managerialism as a feature of that ideology, are all factors that play a role in degrading the resilience of academics. The growth of precarious labour, overwork, attacks upon educational and disciplinary values, attacks upon academic freedom, and pressure on academic identity are all consequences of these factors. Disengagement, feelings of failure, ill health and low wellbeing are the embodiments of these consequences. Vulnerability theory is used to carry out a synthesis of materials drawn from literatures on education, legal education, higher education, health and safety at work, self-determination theory, and professional vocation. This synthesis highlights value conflicts between neoliberal managerialism and educational values that risk undermining academic existential resources. Vulnerability theory is then used to identify potential means of resistance and potential places for resistance within and beyond the law school.

Imposter Syndrome &amp;amp; The Non-Traditional Law Professor

As members of the lower ranks of the hierarchical law school caste system, professors of legal skills courses are often branded as “others” in legal academia. This status is reinforced through weaker job security, less respect, and lower pay than received by their doctrinal colleagues. Given this inequality, imposter syndrome plays a pervasive role in the lives and careers of these “non-traditional” law professors. Relying on qualitative and associative data obtained from a survey of teaching faculty and staff at ABA accredited and approved law schools nationwide, this article analyzes how the law school hierarchy manifests as imposter syndrome in professors of legal skills courses and detrimentally impacts their relationships with colleagues; teaching; relationships with students; publication and promotion of scholarship; and personal health and wellbeing. Based on these findings, the article argues that the impacts of imposter syndrome on skills professors—many of which have gendered and racial implications—promote a recurring cycle of classism and discrimination within legal academia. Imposter syndrome is an institutionalized, rather than an individualized, problem and therefore must be addressed as such. Thus, this article concludes that the only way to reduce the insidious presence of imposter syndrome in legal academia is to dismantle the law school caste system and work towards equality.

Judging Under Extreme Conditions: A Court's Role During a National Crisis

Debating the role of a court during a national crisis is not a novel scholarly exercise. Several before have done so – and several others will follow. Despite the multitude of opinions on the topic, we are still not one step closer to resolving this issue as we were when these discussions first took place decades ago. The COVID-19 pandemic has given us another occasion to revisit the question. However, unlike the last time when this topic was the focus of discussion in the wake of the attacks of 9/11, the pandemic has taken place in the backdrop of a global decline in the quality of democracy and in an era in which courts have begun assuming a more active role in democratic societies. This allows us an opportunity to rethink some pre-existing notions. To add to it, legal academia has witnessed both a comparative and an interdisciplinary turn which helps reconsider this fundamental question using new insights and reference frames. This article is another addition to the long line of opinions on a court's role during a national crisis. Nonetheless, in contrast to its predecessors, this article addresses this quandary from bottom-up and aims to construct a template for a court to operate in a national crisis that aspires to be applicable across different legal systems and social-political-economic environments.

Suicide by Court? The Role of Advisory Counsel in Assisting Courts to Determine a Defendant’s Competence to Proceed Pro Se

The constitutional right to self-representation before courts (“pro se”) has challenged the US legal system since its inception. Legal scholars have contributed a great deal in resolving many of these challenges. Yet one extremely vexing issue that remains unresolved by both legal academia and the US Supreme Court is how to determine if a defendant is capable to proceed pro se. The US Supreme Court, in Indiana v. Edwards, had granted courts the right to insist upon representation by counsel for those who are incapable of conducting trial proceedings. Nonetheless, the US Supreme Court never laid down a clear applicable standard or a thorough criteria to determine who is capable to conduct trial proceedings and who is not. Although medical experts determine whether a defendant is compromised due to a mental or psychological illness, judges have a wide discretionary power and a final say in allowing a defendant to proceed pro se. This article intends to solve this vexing issue by highlighting the potential role of the advisory counsel in guiding the court to determine a defendant’s capability to proceed pro se under Edwards. Furthermore, this research discusses the potential constitutional and ethical dilemmas that may arise as a result of exercising that potential role. Finally, we contend that courts’ statistical tendency in allowing incapable defendants to proceed pro se even in capital punishment cases is equivalent to suicide assistance. Thus, this article justifies the call for abolishing the right to proceed pro se in capital punishment cases upon constitutional and human rights grounds.