Copyright (c) 2009 Drexel University Earle Mack School of Law All rights reserved. http://works.bepress.com/drexellaw Recent documents in Drexel University Earle Mack School of Law en-us Tue, 24 Nov 2009 06:32:57 PST 3600 http://works.bepress.com/bret_asbury/2 http://works.bepress.com/bret_asbury/2 Fri, 23 Oct 2009 12:36:04 PDT In recent years, the so-called "Stop Snitching" phenomenon has gained increasing attention in both the national media and legal scholarship. Broadly speaking, Stop Snitching describes a perceived cultural norm whereby members of poor, minority communities refuse to cooperate with law enforcement officers seeking to solve crimes. This refusal to cooperate has been roundly condemned as an aberrant, self-defeating violation of the social contract. Commentators accordingly seem both puzzled and deeply troubled by what motivates these citizens to withhold information that could result in the removal of criminals from their neighborhoods.In this Article, I endeavor to contextualize Stop Snitching in order to show that the refusal to cooperate with law enforcement officers need not be viewed as aberrant or irrational, but rather as a natural extension of the innate human value of loyalty. To do so, I draw first on George Fletcher's Loyalty: An Essay on the Morality of Relationships to show that loyalty has historically been among the most cherished of attributes and that the violation of loyalty - betrayal - has long been consistently and sharply condemned across cultures.I then describe the continuing importance of loyalty in contemporary society. Children are taught not to be a tattletale before they are able to read or write. Police, physicians, and even lawyers work under social norms whereby telling on another member of the profession who has violated his or her duty is deemed worthy of contempt, notwithstanding professional rules of conduct that encourage or require these professionals to do so. And corporate whistle-blowers, though often lauded outside of their organizations, frequently become subject to retaliation and harsh treatment from within. Each of these instances evidences a widespread cultural norm of loyalty and underscores the pervasiveness of its accepted value in contemporary society.Viewed in this context, Stop Snitching begins to look far less puzzling to outside observers. To the extent the criminals sought are considered members of the potential witnesses' community, and the law enforcement officers investigating them are not, the desire not to tell can be viewed as an act of loyalty rather than an act of civil disobedience. My argument is that Stop Snitching is not the sui generis aberration it has been portrayed to be, but rather a predictable, rational mode of behavior given the continuing importance of loyalty in modern society and racial and economic segregation that remains pervasive throughout America.Having thus contextualized Stop Snitching, I explore some of the reasons why it has been singled out for condemnation and offer suggestions for how to diminish its prevalence. Bret D. Asbury http://works.bepress.com/bret_asbury/1 http://works.bepress.com/bret_asbury/1 Fri, 23 Oct 2009 12:32:33 PDT Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use successfully conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis.A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing on a palimpsest never goes away.This Article argues that thinking of judicial opinions as being part of a shared, ever-evolving palimpsest underscores the fact that they are ultimately contingent and serves as a reminder of the multiple levels of interconnectedness between them and the cases they cite. Precedents--like the underlayers of a palimpsest--never go away, and they inform and shape the application of opinions in ways far more significant than simply serving as points of reference. A palimpsestic approach to understanding judicial decisionmaking also helps to explain why even the oldest, most reviled cases remain part of our national psyche--like underlayers of a palimpsest, they can never truly disappear, and their continued presence forces us to grapple with their existence. Finally, considering judicial opinions as part of a shared palimpsest reminds us that even the most troubling opinion is ultimately contingent, its application subject to reexamination and revision by future courts and future generations. Just as such an opinion replaces its precedents, it too will one day be replaced, like each of a palimpsest's layers. Bret D. Asbury http://works.bepress.com/mark_bernstein/11 http://works.bepress.com/mark_bernstein/11 Fri, 23 Oct 2009 11:57:27 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/10 http://works.bepress.com/mark_bernstein/10 Fri, 23 Oct 2009 11:51:47 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/9 http://works.bepress.com/mark_bernstein/9 Fri, 23 Oct 2009 11:48:38 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/8 http://works.bepress.com/mark_bernstein/8 Fri, 23 Oct 2009 11:44:49 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/7 http://works.bepress.com/mark_bernstein/7 Fri, 23 Oct 2009 10:59:16 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/6 http://works.bepress.com/mark_bernstein/6 Fri, 23 Oct 2009 10:55:00 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/5 http://works.bepress.com/mark_bernstein/5 Fri, 23 Oct 2009 10:29:19 PDT Mark P. Bernstein http://works.bepress.com/mark_bernstein/4 http://works.bepress.com/mark_bernstein/4 Fri, 23 Oct 2009 10:24:51 PDT Mark P. Bernstein