Category Archives: Spring 2018


Balance of Legal and Personal Influences on Constitutional Judgments: Reversals and Redefinition of Precedent

In a Tortoiseshell: In her paper, Katja considers the reversal of legal precedent as the result of justices’ personal considerations. She argues that even when Supreme Court justices attempt to separate their judgments from their personal values, personal influence on their decisions is inevitable, for which the reversal of precedent and reconsideration of previous judgments may compensate. The implications of her final product culminate in an exemplary instance of conclusion.

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Excerpt / Katja Stroke-Adolphe

In deciding to reject Adkins, the Court is following what they view to be reasonable. Yet the Court also holds that “[e]ven if the wisdom of the policy be regarded as debatable…still the Legislature is entitled to its judgment,” because the legislative response to a “conviction both as to the presence of the evil and as to the means adapted to check it” cannot be found “arbitrary or capricious.” Hence, that the Legislature might find such a law reasonable, even if the judges did not, is held as evidence for overruling Adkins, following the concept of reasonableness in Holmes’ dissents. Yet this overruling occurs through the union of doctrine and constitutional reasoning. The economic crisis both forced a philosophical rejection of laissez faire and proved the fallacy of Adkins’ and Lochner’s accepting of laissez faire as fact. West Coast Hotel acknowledges the economic crisis as revealing a “compelling consideration”— the impact on the community of the imbalance of power between employer and employee. But the philosophical shift from Adkins, which viewed the minimum wage as an unfair burden on the employer, is evident when the Court states that a minimum wage is justified because “[t]he community is not bound to provide what is in effect a subsidy for unconscionable employers.”

In his dissent, Justice Sutherland’s logic follows Adkins. Furthermore, he contests the reasonableness standard of Holmes and the West Coast Hotel majority, asserting that reasonableness refers only to an individual judge’s mind. Sutherland states: “The check upon the judge is that imposed by his oath of office, by the Constitution, and by his own conscientious and informed convictions.” This conforms to the view of the Supreme Court as representing impersonal supreme law and justice, yet the inclusion of “conscientious and informed convictions” appears contradictory. However, Sutherland rejects the claim that the “only check upon the exercise of the judicial power, when properly invoked, to declare a constitutional right superior to an unconstitutional statute is the judge’s own faculty of self-restraint” as “ill considered,” for he associates self-restraint with “will”, not “judgment”. All the checks upon judges that Sutherland mentions belong to the domain of judgment, thus the convictions he refers to must pertain to a true interpretation of the Constitution, as personal convictions belong to the domain of will. Sutherland’s comment on self-restraint is a criticism of the concept that personal motivations play an inherent role in constitutional decisions. Yet convictions, especially about ambiguous texts, cannot be impersonal. A sign of an exemplary judge may be his capacity to restrain himself from inserting biases and philosophies into judgments, as with Harlan in Plessy.

Sutherland appears to view the majority’s decision as a break with judicial integrity, stating “the meaning of the Constitution does not change with the ebb and flow of economic events.” He implies that the Court’s decision is an “amendment under the guise of interpretation,” remarking that “to miss the difference” between amendment and interpretation is “to miss all that the phrase ‘supreme law of the land’ stands for and to convert what was intended as inescapable and enduring mandates into mere moral reflections.” Moreover, in stating that the three departments of government cannot be agents of each other, he insinuates that the Court, in overruling Adkins, is acting as the agent of the Executive and Congress rather than the Constitution, likely alluding to the growing power of the Executive under Roosevelt. Yet Sutherland’s criticism of the West Coast Hotel majority is parallel to Holmes’ claims in Lochner and Adkins, for both are claiming that the majority was influenced by improper concerns—doctrine, philosophy, or views on what signifies a public good.

The Casey plurality opinion was written by Justices O’Connor, Kennedy, and Souter, all of whom contributed to the overruling of Booth v. Maryland by Payne v. Tennessee, an overruling influenced by the “victim’s rights” movement, with the only significant change since Booth arguably being the membership of the court. Regardless of whether Payne can be justified by the standards in Casey, the Booth line of cases centers on the ambiguous meaning of “cruel and unusual,” focusing on what is necessary for the death penalty to not be “cruel”. Yet some have argued that the death penalty is inherently  “cruel and unusual.” As problematic as are the ambiguities of the Constitution, they are essential. The authors of the Constitution had their own prejudices, and the passages that deal with specifics rather than general principles, such as those dealing with slavery prior to the thirteenth and fourteenth amendments, may prove most problematic to constitutional interpretation, by creating an absolute separation between concepts of morality and law. For as dangerous as the intrusion of doctrine into judgment may be, the separation may be just as harmful, and a rigid constitution would likely lead to many reprehensible judgments, for such a constitution could not adapt to the changes since its adoption. The Constitution was conceived by a certain group at a particular moment in time, but because it is interpreted in a continually shifting manner by precedent, and its meaning redefined, the Constitution becomes the product of the minds of all the justices who made judgments upon what is constitutional.

Author Commentary / Katja Stroke-Adolphe

The concept of my paper originated in reading the cases Booth v. Maryland and Payne v. Tennessee for the course “Crime and Punishment,” taught by Professor Brooks. The course focused on the connections between literature and law, and the overruling of Booth in Payne led me to consider to what extent precedent was a concrete and powerful part of law, only broken under extreme circumstances, or, instead, a narrative tool which could be shifted or dismissed based on the personal views of members of the court. This initial question led Professor Brooks to recommend looking at the case Planned Parenthood v. Casey, which outlines standards for evaluating reversals of precedent. Casey proved the starting point for looking at various reversals of precedent.

Most important in writing this paper was the collection and careful analysis of sources. Not all my analyses ended up in the paper, and the revision process consisted of cutting the paper’s length in half, leaving the most essential points for the paper’s argument. My research eventually focused on two lines of cases: from Lochner v. New York to West Coast Hotel v. Parrish and from Plessy v. Ferguson to Brown v. Board of Education. Reading these lines of cases led me to analyze the influence of personal elements in major reversals of precedent, and thereby see both the value and the threat that such elements may pose. The basic premise of my paper was that new cases, in their use of precedent, or breaking of precedent, redefine constitutional meanings. By tracing the manner in which constitutional meanings were redefined in major reversals of precedent, I hoped to reveal the dichotomy between constitutional elements as supreme law or judgment, as well as gaps in constitutional clarity which enable the intrusion of human moral principles, prejudices, and biases.

The paragraphs preceding this excerpt begin with my analysis of the Lochner line of cases, with Adkins, which followed the precedent of Lochner, and was overruled in West Coast Hotel. I analyze the ways that the opinions and dissents of those cases dealt with precedent cases, personal motivations, philosophies, reasonableness standards, and concepts of supreme law. I conclude that the presence of personal elements is both inherent and essential to constitutional law jurisprudence, despite how damaging the influence of bias or prejudice has often been. In these cases, the worst decisions were driven by personal motives, biases, or philosophies, but the greatest reversals also were driven by changes in what people believed to be right, or moral, and dissents often had a personal quality, too. There have been justices of the Supreme Court who fought to separate their judgments from personal stances, and that is admirable, and a subject I address in the paper outside of this excerpt. But even with the greatest justices, personal influences are to some extent unavoidable, and this is compensated for by constant reinterpretation.

Editor Commentary / Rosamond van Wingerden

In papers that incorporate many different sources and an extensive cast of characters, summarizing your argument in a concise but comprehensive conclusion can be the hardest part. Nonetheless, that’s what Katja accomplishes in this excerpt. Early on in her paper, Katja introduces her reader to multiple court cases within two legal areas to illustrate the establishment and subsequent reversal of legal precedent as the result of the personal and legal considerations of the justices who supported or dissented from each decision. Throughout the essay, she gives a detailed analysis of each example but always maintains the clarity of her paper by orienting each source and highlighting its relevance to her argument. In her conclusion, Katja skillfully draws together all her evidence to make a broader claim with implications beyond the examples of constitutional judgment she has given.

By avoiding excessive summary in her conclusion and focusing on the more general trend she has identified through her sources, Katja is able to look beyond the two cases of the influence of personal beliefs on the reversal of legal precedent that she has considered. She now presents a broader claim that connects her examples of constitutional judgment both to the framing of the Constitution and to possibilities for its future interpretation, making the overarching argument that “as dangerous as the intrusion of doctrine into judgment may be, the separation may be just as harmful, and a rigid constitution would likely lead to many reprehensible judgments, for such a constitution could not adapt to the changes since its adoption.” Katja’s argument for the benefits of allowing personal morals to intrude on legal judgment may seem counterintuitive, but by preparing her conclusion with ample evidence and expert analysis throughout the paper, she makes a compelling case.

Key Terms, Spring 2018

Key Terms

Amid a complicated tangle of lexicon terms — structure, motive, thesis and so on — key terms often get left in the dust. They are overlooked as merely the necessary means to convey information; however, key terms are much more than a linguistic convenience.

Most importantly, key terms signal the subject matter of an argument and the discipline(s) within which it is operating. They represent a microcosm of the relevant scholarly conversation, where an individual term can allude to an entire body of scholarship. When strategically placed throughout the structures of the essay, key terms keep the argument on track and help guide the reader through new points. Motive can rely on key terms in some cases: Why is a certain term important for understanding a particular concept or theory? In what ways do scholars define a term? Is there tension between the definitions of a term or in the arguments revolving around it? One can even think of key terms as algebraic variables: If they are well-defined, then they can be cleverly and clearly manipulated in the thesis like x and y in an equation.

We often conceive of our essays in terms of our theses, but this is just as possible to do so with our key terms. Indeed, paying closer attention to key terms can sometimes lead to innovative arguments or new fields of inquiry altogether. In this “anti-thetical” fashion, the following examples represent the benefits of prioritizing key terms.

Key Terms, Spring 2018

The Language of Monstrosity

In a Tortoiseshell: Madelyn Broome’s “The Language of Monstrosity” argues that in film adaptations of Mary Shelley’s classic Frankenstein, the creature’s lack of language leads to a lack of depth in audiences’ emotional responses to the creature’s misfortunes.  This excerpt highlights the author’s use of her key term “human” not just as a familiar tool with which to support her argument, but as a mechanism for creating motive.

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Spring 2018

Spring 2018: Editor’s Note

Tortoise: A Journal of Writing Pedagogy is an annual journal that publishes excerpts of student scholarship from within the Princeton community. Showcasing writers from all disciplines and levels—both Princeton undergraduate and graduate students—we emphasize the writing process as much as its “finished” product.

Tortoise curates excerpts of exemplary academic writing with reflective commentaries on the research and writing methods underpinning the prose. Tortoise’s ambition is thus not only to share student writing with a wider audience but also to demonstrate how it works and how it was developed.

Our Spring 2018 issue is titled “Anti-thesis”, which may seem like a surprising theme for a publication about writing pedagogy.  As writers, we tend to agonize over articulating our thesis statement. How can we possibly synthesize our entire argument into a sentence or two? Oftentimes, in the process of writing, it can be helpful to focus first on developing and strengthening other aspects of your essay like close reading analysis, orienting, and motive. In the process of developing and refining these parts of the essay, we often clarify our understanding of our own argument. Once we fully understand what we are trying to argue, the thesis will often appear, nearly fully formed and ready to be put on the page, a sum of various other argumentative parts. “Anti-thesis” encapsulates this entire process. We hope it will remind beginning and experienced writers alike that good works of academic writing build interesting and effective arguments not just by crafting a good thesis, but also by fully considering each aspect of the Writing Lexicon: motive, structure, analysis, and even conclusion.

Tortoise’s 2018 issue showcases the ways in which 13 different writers have refined and supported the core argument of their essays using far more than just a perfect thesis statement. This gallery of works covers a diverse number of disciplines and writing tactics. As you read through this issue, you will discover whether or not Asian migrants defy the “immigrant health paradox,” how spirituality and savagery collide in William Faulkner’s Light in August,  and what kind of invasive species vex policymakers in the United States. You will also be introduced to how conclusions work to synthesize essay arguments, how literature reviews frame the scholarly argument that a writer is preparing to enter, and how key terms work to orient and anchor an argument in the scholarly conversation. This issue will show you how each part of the Writing Lexicon connects together, like pieces of a puzzle, to craft beautiful finished works of art. Enjoy!

Close Reading, Spring 2018

Hair as Time in The Comedy of Errors

In a Tortoiseshell: In this paper, Eric uses close-reading to analyze a seemingly throwaway exchange between two characters in Act II of Shakespeare’s Comedy of Errors, revealing an unexpected equivalence between the physical feature of hair and the abstract concept of time. By using his close-reading as a lens through which to read other mentions of hair and baldness across the play, Eric gives us an example of analysis that builds on itself, taking us from hair, to time, to the play’s central claims about agency.

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Feature, Spring 2018

Eden on Earth: An Analysis of Piet Mondrian’s Later Works

In a Tortoiseshell: In this art history paper, Matthew explores the potential factors in Piet Mondrian’s decision, upon entering the United States, to shift his aesthetics towards the naturalism he had previously disavowed. Matthew’s roadmap thesis lays out the topics his paper will explore, without giving us all of his conclusions. By motivating not only his paper as a whole, but also individual arguments, paragraphs, and sentences, Matthew dexterously complicates his arguments; with a prose style that prioritizes rhythm and narrative, he makes sure we stay along for the ride.

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Key Terms, Spring 2018

Rethinking Moral Luck: What Conditions are Necessary for Moral Responsibility?

In a Tortoiseshell: While the entirety of Katie’s “Rethinking Moral Luck: What Conditions are Necessary for Moral Responsibility?” is an excellent showcase of how to navigate key terms, this section is particularly special. Here, not only does Katie introduce her own key term (which skillfully arises from the specific problems she identifies with the key terms that already exist in the scholarly conversation) but she also goes on to give a carefully crafted analysis of the key terms that appear within that overarching key term she proposes!  This section not only allows Katie’s readers to fully understand what her term means but more importantly allows us to really see how her “Revised Control Condition” is in direct conversation with the concerns she addresses in Nagel’s “Strong Control Condition” and Rosen’s “Moderate Control Condition.”

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Motive, Spring 2018

Boys Beyond Binary: An Exploration of the Non-Identitarian Nature of Relationships in Umberto Saba’s “Ernesto” and Luca Guadagnino’s “Call Me By Your Name”

In a Tortoiseshell: In her essay about the relationships of the protagonists in Umberto Saba’s “Ernesto” and the 2017 film Call Me By Your Name, Bes Arnaout navigates the difficulty of arguing for the existence of a relationship paradigm that the theory has not considered. In doing so, Bes creatively extends her motive, that the critics have gotten the relationship wrong, to ground readers as they move through the paper. She is therefore able to motivate close-readings at critical moments to extend her thesis, which would otherwise become amorphous. In doing so, Bes opens up a new avenue for writers who want to argue something but lack the language to categorize it in existing theoretical terms.

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Literature Review, Spring 2018

Student Reflections on Service: Cultural and Socioeconomic Variations in Motivations for and Valuation of Volunteering

In a Tortoiseshell: In her junior paper, Rebecca Kahn explores the influence of socioeconomic status and cultural context on undergraduate students’ conception of service work. One of the primary strengths of this paper is its literature review: by summarizing and pinpointing shortcomings in the research around her topic, Rebecca ultimately solidifies the importance of her contribution to the greater body of scholarship concerning service work.

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Orienting, Spring 2018

Modeling the Model Minority: Does the Immigrant Health Paradox Apply to Asian Migrants’ Mental Health?

In a Tortoiseshell: In her paper about the immigrant health paradox, the notion that foreign born, recent arrivals of a given ethnic group typically have better health than their American born counterparts, Diana Chao positions the reader to appreciate the nuances of her argument, that the immigrant health paradox does not apply to Asian migrants, by effectively orienting the reader. After first providing the reader with concise definitions for key terms which are necessary to understand her thesis, Diana proceeds to give a comprehensive outline of the scholarly conversation surrounding her topic, which feeds directly into her motive.

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