Hauptman-Woodward Medical Research Institute
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‘Safe third countries’ and our obligations to others
Get PDFThe devastating images of chaos and suffering in Afghanistan have left an indelible mark on citizens and policy-makers in the West. They have made the evacuation of those Afghans who served alongside U.S. and European militaries a moral obligation—and raised the question whether that obligation must extend, as well, to any and all Afghans who are imperiled by the return of Taliban rule
Legal Pluralism and Analytical Jurisprudence: An Inapposite Contrast
Get PDFThe intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal theory by relying on definitions and other reductive methodologies long rejected by analytical jurisprudents. My central claim is that this trio of recurrent defects, which has also been incorporated into the reconciliatory project termed “pluralist jurisprudence,” should be laid to rest.
La tradition intellectuelle du pluralisme juridique se caractérise par son contraste avec la tradition du centralisme juridique ou du monisme. Les pluralistes auto-proclamés attribuent habituellement des idées centralistes ou monistes aux principales théories de droit, appelées ici « jurisprudence analytique ». La présente étude démontre que ce contraste fondamental entre pluralisme juridique et jurisprudence analytique souffre de trois lacunes. Tout d’abord, les arguments des pluralistes s’opposant à la jurisprudence analytique confondent des questions conceptuelles avec des réflexions empiriques, doctrinales et politico-morales. Ensuite, les pluralistes commettent l’erreur de considérer que les tenants de la jurisprudence analytique assimilent le droit à la prérogative étatique, alors que ces derniers ne défendent pas, et peuvent aisément rejeter, une telle position. Finalement, les pluralistes traitent les problématiques relatives à la théorie du droit en s’appuyant sur des définitions et des méthodologies réductives qui ont été rejetées par les tenants de la jurisprudence analytique depuis longtemps. La thèse centrale de cette étude est que ce trio de lacunes, qui a également été incorporé au processus de réconciliation nommé « jurisprudence pluraliste », devrait être écarté
If the Music Hadn’t Stopped, or Reflections on the Great Kerfuffle: Historicism’s Continuing Grasp for Truth
Get PDFI was pretty indifferent to my undergraduate education, but I hated law school because it was full of things one couldn’t do. One couldn’t use a statute analogically, couldn’t take into account realpolitik when analyzing cases, couldn’t rethink legal education from the bottom up, and it was pretty much “out there” to count votes when predicting case outcomes. Six years later, when in 1973 I came to teach at Buffalo, I experienced a quite different world; there were all sorts of possibilities. The great intellectual kerfuffle that went by many names—structuralism, post-structuralism, postmodernism, even Marxism and Critical Legal Studies (CLS)—burned brightly in at least some of the law schools and much of the humanities. Everyone knew that knowledge was constructed, whether one got it from fancy French Theory or merely good old American Philosophy. All knowledge was situated and apparently all judgment as well. It need not be epistemologically grounded in either timeless verities or methodological assumptions. My experience of intellectual life was much like Olivier Messiaen’s of hearing music in the cacophony of bird song in spring. All sorts of new things might be thought about in new ways and in many fields
\u3cem\u3eBostock’s\u3c/em\u3e Paradox: Textualism, Legal Justice, and the Constitution
Get PDFThe Supreme Court’s opinion in Bostock v. Clayton County, Georgia—recognizing that anti-gay and anti-trans discrimination are forms of sex discrimination under Title VII of the 1964 Civil Rights Act—has already gained a steady reputation as a textualist statutory interpretation decision. The reality of the ruling is far more complicated than that. Bostock is a textualist decision, but, as the argument here shows, Bostock also offers a construction of Title VII’s sex discrimination rule that sounds in a rule-of-law norm of legal justice about LGBT equality that itself traces roots to the Supreme Court’s constitutional LGBT rights jurisprudence. Bostock’s rule-of-law norm of legal justice, which expands and diffuses constitutional norms of LGBT equality in new ways, does more than shape Bostock’s interpretation of Title VII. Through it, Bostock supplies state actors, including courts, with instruction on how to treat all claims of lesbian, gay, and now trans rights, whether they formally involve constitutional rights claims or, as in Bostock, do not. In Bostock’s wake, state actors must ordinarily treat LGBT persons just the same as their cisheterosexual counterparts,affording them the same benefits of established and new legal protectionsthat cisheterosexuals receive.
The path to this larger picture proceeds through an account that explains Bostock both is—and is not—a textualist decision. The opinion’s textualist self-accounting, tracked in these pages, lacks normative justificatory punch on the central interpretive question raised by theclaims it decides: whether Title VII’s sex discrimination ban covers anti-gay and anti-trans discrimination. A careful reading of Bostock shows the opinion both disparaging and then ultimately embracing “extratextual” reasons for choosing to read Title VII’s sex discrimination rulein the pro-gay and pro-trans directions that it does.
The most telling of these reasons, in a dramatic turn, abandons themajority’s textualist hunt, and reaches for a general, rule-of-law ideal of legal justice—a distinctive understanding of formal equality involvingLGBT persons—that emerges from, and extends to new levels, the legalfoundations of the U.S. Supreme Court’s pro-lesbian and pro-gay constitutional rights jurisprudence, whose pro-trans legal implications are expressly recognized by the Supreme Court in Bostock for the first time. Bostock’s announcement of the operations of legal justice in the case—a stylized extension of operative constitutional norms—has far-reaching implications for the interpretation of other statutes that may benefit LGBT persons, as well as other legal rules that, now or in the future, implicate LGBT rights.
Understanding how Bostock follows a line of justification found inthe Supreme Court’s constitutional promises of equal dignity and respectfor lesbian women, gay men, and trans people frames an account of what is legally misguided about the textualist approaches taken up by the Bostock dissents. These opinions, which indulge both anti-gay and anti-trans sentiments as touchstones for their own preferred choices for howto read Title VII’s sex discrimination ban, flout constitutional values that strip those choices of their own easy claims to legality. Having identified the legal flaws of the dissents’ textualist analytics, discussion turns to themost significant of the likely reasons why the Bostock majority opinion does not expressly avow the constitutional and rule-of-law grounds for its decision. No matter, the recognition of Bostock’s foundations in constitutionalism recasts the pressures the Supreme Court will face in future cases taking up questions that Bostock formally brackets, as well as other wonders about its own text’s meaning. With time, Bostock may prove to be an even bigger breakthrough for LGBT equality and rights under law than at first glance it seems
The Reality of Class-Action Appeals
Get PDFReviewing Bryan Lammon, An Empirical Study of Class-Action Appeals (2020)
Legal Corpus Linguistics and the Half-Empirical Attitude
Get PDFLegal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.
First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates the issues legal interpreters face. Second, legal corpus linguistics also overlooks the relevant institutional context—the way legal language is produced by particular speakers, taken up by particular audiences, and formulated in particular genres. By unrealistically treating language as undifferentiated, legal corpus work imagines a communicative world that is not reflected in its own data.
The underlying problem, I show, is a mismatch of method with goal. Corpus linguistics in linguistics makes an empirical claim: that its analysis illuminates truths about the language in the corpus. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim: that its analysis ought to influence the interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude. Because of it, legal corpus work rests empirical results on fictional foundations. At the same time, I suggest ways that legal corpus linguistics could be useful to legal theory—if it embraces the other half of an empirical attitude
Environmental Justice, Settler Colonialism, and More-than-Humans in the Occupied West Bank: An Introduction
Get PDFOur special issue provides a first-of-its kind attempt to examine environmental injustices in the occupied West Bank through interdisciplinary perspectives, pointing to the broader settler colonial and neoliberal contexts within which they occur and to their more-than-human implications. Specifically, we seek to understand what environmental justice—a movement originating from, and rooted in, the United States—means in the context of Palestine/Israel. Moving beyond the settler-native dialectic, we draw attention to the more-than-human flows that occur in the region—which include water, air, waste, cement, trees, donkeys, watermelons, and insects—to consider the dynamic, and often gradational, meanings of frontier, enclosure, and Indigeneity in the West Bank, challenging the all-too-binary assumptions at the core of settler colonialism. Against the backdrop of the settler colonial project of territorial dispossession and elimination, we illuminate the infrastructural connections and disruptions among lives and matter in the West Bank, interpreting these through the lens of environmental justice. We finally ask what forms of ecological decolonization might emerge from this landscape of accumulating waste, concrete, and ruin. Such alternative visions that move beyond the single axis of settler-native enable the emergence of more nuanced, and even hopeful, ecological imaginaries that focus on sumud, dignity, and recognition
Coralations: Back to the Breath
Get PDFCorals are good to breathe with. Living painfully far from the ocean during the long COVID-19 lockdowns, I have been relegated to daydreaming about being immersed in salty waters again