The Socioeconomics of Justice: The Perspective from the Law School Classroom

This essay will address how the features of an upper-level lawyering seminar that I teach at City University of New York School of Law illuminate for social-justice-minded law students the important role of judicial writing in attending to the impact of economic marginality on access to justice. It will consider how a course in judicial writing can and should encompass the relationship between writing and a social-justice judicial philosophy. And it will demonstrate how teaching about choice of precedent can infuse a justice perspective into the development of legal doctrine in the U.S. constitutional law context – a context capacious enough to include comparative law sources, despite a fractious debate on the appropriateness of drawing upon non-U.S. legal sources in American jurisprudence. To contextualize these issues, the essay will recur to the confirmation hearings in the U.S. Senate that considered President Barack Obama’s nomination of then-U.S. Circuit Court Judge Sonia Sotomayor to fill a vacancy on the U.S. Supreme Court. Lauded for her own inspiring justice narrative, a personal history of overcoming obstacles as a member of a fatherless, working-class, Latino family to achieve singular professional success through the law, Judge Sotomayor’s nomination nonetheless generated controversy. Principally, some Senators and other commentators objected to President Obama’s reference to the importance of empathy in selecting a nominee, and to Judge Sotomayor’s remarks in several speeches in which she referred to the particularity of her own experience as a Latina as a potentially positive factor in her approach to the process of judging. The exchanges between the nominee and Senate Judiciary Committee members concerning conceptions of judicial role offer a fascinating window into the limits of what is acceptable for a nominee to claim about judicial philosophy. As discussed in the essay, this discourse has implications for key concerns that we engage in the judicial writing seminar with respect to approaches to judicial decision making, the relationship between applying law and achieving justice, and expectations about how the nature and extent of reasoning in judicial opinions can create a pathway to justice. The essay also considers briefly a first-year lawyering seminar at CUNY that focuses more directly on written and oral client advocacy. Here, I address how such a seminar has afforded opportunities to link students’ learning about advocacy before the courts with theoretical perspectives on poverty and social inequality. The essay examines the potential for using writing in the course to engender empathy with the experiences of socially and economically marginalized litigants in a specific judicial arena, the New York City Family Court. It incorporates students’ voices to illuminate how these students, in written reflections, internalized the socioeconomics of justice. In this public-interest educational context, I hope to show that combining attention to written legal discourse with exposure to the work of courts in confronting economic inequality can contribute to law students’ understanding of the potentially system-transforming impact of writing from, and for, a judicial perspective.