Suzanna Sherry

Telling Stories out of School: An Essay on Legal Narratives

Once upon a time, the law and literature movement taught us that stories have much to say to lawyers, and Robert Cover taught us that law is itself a story. Instead of living happily ever after with that knowledge, some feminists and critical race theorists have taken the next logical step: telling stories, often about personal experiences, on the pages of the law reviews. By 1989, legal storytelling had risen to such prominence that it warranted a symposium in a major law review.2 Thus far, however, little or no systematic appraisal of this movement has been offered.3 We agree with the storytellers that taking the movement seriously requires engaging its ideas,4 and

The Unmaking of a Precedent

How far can you stretch precedent before it breaks? The 2002 Term suggests that some Justices seem to think that treating precedent like silly putty is preferable to acknowledging that it might be in need of revision. But obvious inconsistencies in the application of precedent are a strong indication of underlying doctrinal problems. In this article, I suggest that the majoritys misuse of precedent in Nevada Department of Human Resources v Hibbs1 should lead us to question the soundness of the Supreme Courts previous cases defining the limits of Congresss authority under Section 5 of the Fourteenth Amendment. But the cloud that Hibbs casts over precedent has a silver lining: the ways in which the Court misused its own precedent point us to a better and more coherent reading of Section 5. Other scholars who have criticized the Court for its Section 5 doctrine have argued that the Courts jurisprudence is fundamentally mistaken because it misallocates authority between Congress and the Court. I propose instead to take as a given that the Court should police the boundaries of Congresss Section 5 power, and that ultimately the Court rather than Congress must decide whether a problem is sufficiently important to justify the congressional response, including the abrogation of state immunity from

Responsible Republicanism: Educating for Citizenship

The United States Supreme Court has long recognized what none of us can doubt: education is vital to citizenship in a democratic republic. Moreover, because the Court has left open the question whether there might be a constitutional right to a minimally adequate education,3 scholarly commentary has speculated for at least the last decade on possible constitutional bases for such a right. No one, however, has much explored the possible content of a right to education. In particular, there has been little examination of the concrete relationship between education and citizenship. What are the appropriate contours of an education for citizenship?

The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana

There is currently a dispute raging about the meaning of the Eleventh Amendment, which protects states from suits in federal court. The language of that amendment appears to deny federal jurisdiction only over suits brought against states by citizens of another state,1 but the Court, since its 1890 decision in Hans v Louisiana, has interpreted the amendment to bar all federal suits against states, including those brought by a states own citizens. 2 Thus, under current doctrine, the Eleventh Amendment bars all suits brought against a state in federal court, regardless of the citizenship of the plaintiff or the basis for jurisdiction.3

Hogs Get Slaughtered at the Supreme Court

Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: ATT they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.