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In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case, not an Establishment Clause case. The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well. Most people expected the plaintiffs to lose. And they did, clearly and unanimously. I publicly predicted that Summumwould lose on the day the Supreme Court granted certiorari, and suggested that it might be unanimous a few hours after oral argument. But I do not claim any special powers of foresight. My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb. They were asking for a sweeping change in the law, and it was no surprise that they did not get it. This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case. Summum, again, was decided on Free Speech grounds. It was not an Establishment Clause case. But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis. Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition. But this reaction would miss the partial truth underlying Hatfield’s analysis. The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes. Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it. The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office. At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .” During the recitation, Chief Justice John Roberts (who was administering the oath) prompted Obama with both an incorrect word and several improper word sequences. At the end of their verbal exchange, Obama had uttered an inexact version of the presidential oath, including a pledge to execute “the office of President of the United States faithfully” rather than promising to “faithfully execute” that office. The errors in the oath-taking prompted immediate and widespread speculation and commentary: did problems with the administration and recitation of the presidential oath somehow render it invalid? If so, had Obama failed to become President, perhaps leaving us with some other Chief Executive, or even no President at all?

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently stand), which is the August 1, 2002 memo to Alberto Gonzales signed by Jay Bybee and prepared by John Yoo. Without substantive consideration of counterarguments, that memorandum concluded that torture was not illegal—at least not if the President ordered the torture. To many, it seems undeniable that the memorandum was not written in a good-faith effort to constrain any possibly illegal behavior, but rather as a shield against future prosecution.

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., a case that addresses a deeply contested issue in special education litigation. Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA) entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school. Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue. In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F. Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself, resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove. Currently, the Second, Ninth, and Eleventh Circuits recognize the availability of reimbursement, while in contrast, the First Circuithas refused to do so. Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools. The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA. The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision. More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis. Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice. This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.