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Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing
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. . . and Law?
Get PDFPublished as Chapter 18 in Searching for Contemporary Legal Thought, Justin Desautels-Stein & Christopher Tomlins, eds.
The locution “law and . . . (some other discipline)” implicitly asserts the primacy of legal doctrine and institutions narrowly conceived for coming to understand phenomena in which law takes a part. The ordinary story of American legal theory – formalism then realism then contemporary legal thought – can be understood to repeat the triumphalism implicit in “law and . . .” Of course, the story of American legal theory could possibly be read differently -- as a series of responses to the inability of law to dictate the terms of its use and so as evidence law’s subordination to other ways of understanding such phenomena. Such a possibility would dictate a different ordering of important words into “. . . and Law.” This paper attempts to examine the plausibility of the latter locution by examining some of the crucial bodies of knowledge and recurrent actions of putatively non-legal actors that led up to the no longer recent Great Recession.https://digitalcommons.law.buffalo.edu/book_sections/1134/thumbnail.jp
Canadian Federalism in Design and Practice: The Mechanics of a Permanently Provisional Constitution
Get PDFThis paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it ‘permanently provisional.
Solving the Riddle of Rape by Deception
Get PDFIs sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is about something other than sex without consent.
This Article shows that the riddle of rape by deception is based on a misunderstanding of the kind of consent that lies at the heart of modern rape reform statutes. Properly understood, the chief goal of contemporary rape laws is to neutralize the coercion that is inherent in sexual relationships that take place in a male dominated society. Since minimizing deception is only tangentially related to this goal, respect for the kind of autonomy that rape law is primarily designed to protect is compatible with a kind of consent that only selectively prohibits deception. This solution to the riddle of rape by deception not only preserves the conceptual framework that undergirds modern rape statutes, but also sharpens our understanding of the interests that contemporary rape reform is designed to protect
