Equality and the Forms of Justice

Abstract

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional past. Fiss's work could be understood as an eloquent and indefatigable effort to preserve law's majesty and moral authority as it interacts with the complexity and messiness of flawed institutions. My first exposure to this valiant struggle occurred in his injunction classroom at a time when I was also working for a special master in a Rhode Island prison case. I experienced the joy of engaging in serious debate about fundamental issues with such a formidable yet accessible intellect. Here was someone who had a nose for the big idea of the coming decade, just before the wave of its historical momentum was about to break, and who could frame the broad-brush outlines of that idea with eloquence and brilliance. Of equal importance, Fiss embraced social justice as an integral part of scholarly and lawyerly inquiry – something that I was searching for and found missing from many other law school projects.