Volume 2021, No. 2 (Symposium)

PDF link Table of Contents


PDF link The Wisconsin Law Review: One Hundred Years of Creativity, Continuity, and Change

by The Honorable Hiram E. Puig-Lugo

This issue explores the intellectual history and traditions of the University of Wisconsin Law School as the Wisconsin Law Review celebrates its 100th anniversary. It represents yet another example of the valuable contributions the Law Review has made to academic discourse and professional development throughout its history. I am extremely grateful and honored for the invitation to explore the path that the Review has trod since its inception and to consider what its future may hold.

PDF link Critical Race Theory: Origins, Permutations, and Current Queries

by Linda S. Greene

Critical Race Theory (CRT) emerged from two movements in legal education. One was the Critical Legal Studies movement, which fostered a power critique about American law and emerged at the University of Wisconsin in 1977 and continued through meetings and scholarship until about 1992. The second movement, which came to be known as Critical Race Theory, was the result of meetings between the late 1960s and the mid-1990s convened by minority law professors to address the apartheid of American law.

PDF link The Need to Reimagine Disability Rights Law Because the Medical Model Fails Us All

by Dr. Angélica Guevara

Disability is not a personal problem, but rather a social reaction to natural human variation and susceptibility to life circumstances. Current disability antidiscrimination law has been ineffective in overcoming this misleading understanding. The COVID-19 pandemic has highlighted that, in particular, disability antidiscrimination law lies within the paradigm known as the “medical model of disability.” The medical model treats disabilities as defects in need of treatment. In doing so, it reinforces the able body as the norm and perpetuates stigma and discrimination against people with disabilities. After experiencing a pandemic in modern times, many of those recovering from COVID-19 have experienced, and will continue to experience, long-term health effects resulting in various disabilities. As young Americans without underlying conditions suffer from this virus, the pandemic has brought this reality to the forefront. Thus, as more and more Americans need to access its protection, disability antidiscrimination law is under greater scrutiny. For the first time on a massive scale, Americans experienced working from home and the reality that anyone—regardless of age, race, class, or gender—could be susceptible to the virus and might require workplace accommodations going forward. Vulnerability is universal and constant. Unfortunately, people of color are at a higher risk of contracting, experiencing complications, and dying from COVID-19. Therefore, this Essay uses a Disability Studies and Critical Race Theory (DisCrit) lens to shed light on the structural issues that perpetuate these disparities. Through this lens, the Essay explains the medical model’s failings embedded in disability antidiscrimination law and the need to instead use the social model of disability in the law so that it recognizes society’s role in constructing disability. The root of the problem is that the medical model essentializes disability and perpetuates “othering,” affecting us all but even further impacting people of color.

PDF link The UW Law School and The Global South: 60 Years of Engagement and Innovative Scholarship

by David M. Trubek

Among the unique aspects of the University of Wisconsin (UW) Law School is a deep engagement with law and legal institutions in the “Global South,” broadly defined to include the former Soviet Union. Few law schools in the U.S., or, indeed, in the world, have invested so heavily in efforts to understand legal developments in Asia, Africa, Latin America, and the former USSR and to communicate their knowledge to students, the academic world, and beyond. This panel, which included presentations on China, Russia, Africa, South Asia, and Latin America by six UW scholars, with mention of similar work by others, reflects the depth of this engagement.

In the early years, this Global South scholarship focused on national economic development and emphasized ways that developing countries could learn from the United States. Development was seen as an internal process controlled by national law and policy; transmission of knowledge was a one-way street from the U.S. to the developing world; and the way to “legal development” was to import U.S. legal institutions.1 Gradually, this changed as scholars began to see that development was affected by exogenous global forces, that transplants of law from advanced countries often failed, and that developing countries could develop innovative solutions of their own.2 This forced UW scholars to broaden their horizons: they began to pay attention to how global forces affected law in developing countries and abandon their early paternalism. While this move started with law and economic issues, it soon broadened out to embrace governance issues like human rights. As Heinz Klug and Alexandra Huneeus pointed out, this led to the creation of the Global Legal Studies Program.

PDF link Do Lawyers Matter in Russia?

by Kathryn Hendley

As the transmission belt between citizens and their government, lawyers are a critical component of civil society. Yet their relevance depends on society’s willingness to call upon them and on the state’s openness to being challenged. In the U.S., we take the political importance of lawyers for granted. Elsewhere, especially in authoritarian countries, lawyers play a more peripheral role. This Essay focuses on Russian lawyers. Although there is a large literature on various types of Russian lawyers, their status in society has not been much explored. The Essay tracks the evolution in societal attitudes towards lawyers in Russia, beginning with the Soviet period (1917–1991) and continuing through the post-Soviet period (1992–present). Drawing on memoirs, public opinion polling, and surveys, the Essay documents lawyers’ low status in the Soviet Union. The introduction of market institutions in post- Soviet Russia opened the door to new types of lawyering, many of which are highly remunerated. The effect has been to increase the attractiveness of the profession to Russian youth and their parents and increase its esteem more generally.

PDF link The Truth Wherever It May Be Found: The Wisconsin School of Contracts (An Introduction)

by Jonathan C. Lipson

Does Wisconsin have a “school” of contract theory or scholarship? If so, for what—and for whom—does it stand? What does it even mean to say that an academic institution has a “school” of anything?

These are not the sorts of polite questions one is supposed to ask in introducing the “Wisconsin School of Contracts,” a panel held as part of the Wisconsin Law Review’s 100th Anniversary Symposium, Wisconsin’s Intellectual History and Impact, and commemorated in this Symposium Issue.

There is, of course, no doubt that there is a “Wisconsin School” of contracts. It is (loosely) subsumed in several other “schools” of legal thought—“law in action,” “law and society,” “new legal realism”—and has a fairly well-known origin story: Stewart Macaulay’s path-breaking 1963 article, Non-Contractual Relations in Business (“Non-Contractual Relations”).

PDF link “Lipstick on a Pig”: Specific Performance Clauses in Action

by Theresa Arnold, Amanda Dixon, Hadar Tanne, Madison Whalen Sherrill & Mitu Gulati

The black letter law in the U.S. is that money damages are the preferred remedy for contract breach and that specific performance is reserved for extraordinary circumstances. Contract theory tells us that default rules generally reflect what a majority of contracting parties would agree to had they considered the matter. But do contracting parties agree with the law’s preference for money damages over specific performance? In a dataset of more than 1,000 M&A contracts, we find that in over 80% of transactions, parties choose specific performance as their preferred remedy. Using interviews with senior M&A lawyers, we seek to unpack the reasons why parties are contracting around the law’s distaste for specific performance and the default rule of money damages.

PDF link A Paradigm Shift in Comparative Institutional Governance: The Role of Contract in Business Relationships and Cost/Benefit Analysis

by Juliet P. Kostritsky

Written while teaching at the University of Wisconsin Law School, Professor Stewart Macaulay’s 1963 article, Non-Contractual Relations in Business: A Preliminary Study, revolutionized contracts scholarship by highlighting that contract was only one variable among others that parties could choose to govern exchange. His work led to a paradigm shift away from a world where contract law was a self-contained, effective, and costless way of regulating exchange to a world where comparative institutional governance determines when parties rely on contract and when they use alternate institutions. Macaulay’s businesspeople relied on the alternate institution of informal adjustment without legal coercion.

PDF link Clinics at Wisconsin: Comprehensive, In-Depth Pedagogy and Bottom- Up Innovation

by Louise G. Trubek & Keith A. Findley

The University of Wisconsin (UW) Law School has been a pioneer in clinical education. Experiential education, involving actual legal advocacy and practice, started at Wisconsin in the 1970s before many U.S. law schools had even thought about what came to be called law school “clinics.”1 These initial efforts developed out of the Law School’s commitment to innovations in criminal justice and its support of public interest law and administrative advocacy.

PDF link LIFT as “The Fourth Moment” in Wisconsin Clinical Legal Education for Social Justice

by Sarah Davis, Marsha Mansfield, Kelsey Mullins, Sachin Gupte & Mitch

The University of Wisconsin (UW) Law School has a rich and vibrant clinical education history. Clinicians from the Law School’s Center for Public Representation (CPR) and the Remington Center were pioneers in clinical education. Their legacy lives on. In 2002, CPR became the Economic Justice Institute (EJI). Also vibrant is the twenty-year-old Center for Patient Partnerships (CPP), an interdisciplinary health advocacy clinic. Recently, Clinical Emerita Professor Louise Trubek, the founder/director of the CPR and chair of this Symposium’s Panel on Clinical Legal Education, wrote a comprehensive history of CPR’s innovations spanning three moments from 1974–2018.

Legal Interventions for Transforming Dane County (LIFT) represents the “fourth moment” for clinical legal education for social justice. LIFT is a collaboration between EJI, CPP, and community organizations to develop a technology application that streamlines legal services, facilitates self-help, and addresses lawyer workload. In concert, the initiative engages in evaluation efforts and system change to transform the civil legal justice system, so people who have been marginalized are able to address legal problems that often are insurmountable. It aspires to prevent civil legal injustice and keeps the education of future leaders core to its mission.

PDF link Early Release Advocacy in the Age of Mass Incarceration

by Renagh O’Leary

For over 50 years, the Legal Assistance to Incarcerated People (LAIP) Clinic at the University of Wisconsin Law School has represented people in prison. The clinic’s advocacy evolved in response to the emergence of mass incarceration. Today, much of the clinic’s work focuses on pursuing early release from prison for clinic clients.

This Essay draws on my experiences as a clinical professor in LAIP to explore early release advocacy strategies and their potential to change front- end sentencing practices. Rehabilitation narratives that highlight the client’s growth and change while incarcerated are a staple of early release advocacy, and for good reason. But early release advocacy need not be limited to this approach. Early release advocacy will often be more effective when it includes arguments based on the client’s experience of incarceration, mitigation investigation, and systemic injustice.

PDF link The University of Wisconsin Law School on Constitutionalism and Democracy

by Heinz Klug

While the University of Wisconsin (UW) Law School and its faculty are recognized as having a long tradition of law and society scholarship, it is only over the last decade that its contributions to debates over both domestic and international constitutionalism and democracy have gained increasing recognition. Whether in democratization, constitution-making, or constitutional jurisprudence, our faculty has been deeply engaged. From working with Native American nations in building tribal constitutions to participating in constitution-making processes and academic meetings around the globe, different members of our faculty have made, and continue to make, important contributions to the advancement of constitutionalism. Most recently, UW Law School has been one of a small group of academic institutions across the United States to hold annual interdisciplinary workshops—informally described as “schmoozes”—to discuss various developments in constitutionalism. Hosting this annual “Wisconsin Discussion Group on Constitutionalism” over the last decade has drawn UW Law School faculty into a community of scholars from various law schools that have been meeting for more than two decades to engage in intensive, but informal, roundtable discussions on a range of timely and provocative constitutional topics. UW Law School has also recently emerged as an important locus of studies on state constitutions and election law, adding a significant dimension to this faculty’s contribution to understanding democratic engagement and practice at both the state and local level.