The (Re)Collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice
When a government engages in the mass killing of its own citizens, how can the nation ever recover? These atrocities destroy the moral fabric which binds a nation. To recover, this fabric must be remade. Many social scientists and legal scholars believe that developing collective memory – an enduring and shared memory of the events that help to heal the wounds of a tattered national conscience and prevent the recurrence of mass atrocities – is essential to such reconstruction. However, the preservation of collective memory is in tension with another impulse after mass atrocity: the desire for justice. Because notions of individualism and autonomy heavily influence legal institutions worldwide, they risk the destruction of collective memory. This friction constitutes a central dilemma in facilitating transitional justice.In this article, I urge a fundamental reconceptualization of the law’s preference for individual memory in the context of transitional justice. I argue that the inclusion of collective memory will facilitate a better understanding of the collective harms that characterize mass atrocities and will serve the distinct goals of transitional justice, including reconciliation, the creation of a historical record, nation-building, and legal reform. I further argue that human rights lawyers should act as preservers and promoters of collective memory. In doing so, they may be able to help heal wounds outside traditional justice tribunals – while at the same time providing essential assistance to these tribunals if and when legal proceedings do finally occur.
Conversations on 'Community Lawyering': The Newest (Oldest) Wave in Clinical Legal Education
This Article explores the pedagogical and professional challenges and rewards of community lawyering and clinical legal education. The authors are clinical law faculty who self-identify as community lawyers and teachers of community lawyering clinics. They have gathered in recent years with a larger group of similarly engaged colleagues to discuss what is meant by community lawyering, how it is taught, and how it is practiced. This Article seeks to capture some of those conversations, crystallize some of the ideas that have arisen out of the discussions, and examine the implications of these ruminations for future directions in clinical legal education.
Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth
Our chapter concerns how legal process can lead to efficient policies for fostering innovation and growth. Future innovation will depend at least as much on how laws are made as on a priori analyses of the optimal content of those laws. Of particular importance is whether U.S. choice of law and choice of forum rules promote an efficient market for law. Our analysis supports three suggestions for improving the law to support growth. First, the rules governing the selection of the jurisdiction whose law governs productive activity can significantly affect growth and innovation. Second, any proposal aimed at increasing growth through a change in law or legal institutions should take account of the existence of multiple jurisdictions and parties’ ability to choose the jurisdiction whose law controls their transactions. Third, we suggest harnessing the power of jurisdictional competition among the states through a federal law enforcing contracting parties’ choice of law except to the extent states legislatively override the choice of law and regulate local transactions. We apply this analysis to several areas of the law that are critical to growth and innovation: non-competition clauses, business associations, the legal profession, internet law, insurance, property law, products liability, and franchise regulation.