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Bridges of Law, Ideology, and Commitment
Get PDFLaw has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us to a destination; but sometimes, as when there are no crossings for miles, it can take us very much off course. Ideology is a bridge of that sort: It serves, Václav Havel explains, as a bridge of excuses between the individual and the system.
Law lives in the traffic between these two bridges. Sometimes legal actors take up the burden of law’s ontology in a way that honors law as a social institution. Other times, they engage in artifice to obscure the interpretive decisions that arise from the changes in meaning and circumstance that inevitably occur. Close readings of Bostock v. Clayton County and Brnovich v. Democratic National Committee reveal the pathologies of contemporary textualist and formalist methodologies. Rather than orienting us to a better, more effective future, these approaches serve as rationalizations that mystify and mollify. The opinions in these cases distort law’s delicate ontology in a manner that—irrespective of the decisions on the merits— systematically subvert the functions and operations of law. They are, in a profound sense, jurispathic
Reflections on Nomos: Paideic Communities and Same Sex Weddings
Get PDFRobert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference
When Interpretive Communities Clash on Immigration Law: The Courts’ Mediating Role in Noncitizens’ Rights and Remedies
Get PDFImmigration law gains clarity through the lens of Robert Cover\u27s compelling work on law as a system of meaning. Cover\u27s vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law\u27s contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a mediating device. In immigration law, courts can serve this mediating function by reconciling the values of protection and enforcement. This Article considers the mediating devices that courts can employ on three salient immigration law issues: 1) the availability of habeas corpus in expedited removal, which the Supreme Court rejected in DHS v. Thuraissigiam; 2) judicial review of executive branch action, such as President Trump\u27s ban on immigration from several majority-Muslim countries, which the Court upheld in Trump v. Hawaii, and President Trump\u27s attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program, which the Court invalidated in DHS v. Regents of the University of California; and; 3) procedural and substantive bases for challenges to immigration detention.
In each context, the Article argues that courts should require more tailored government actions and acknowledge the need for workable enforcement. This approach preserves a measure of deference for the political branches while checking arbitrary government actions that put noncitizens at risk
Roadmap to Reconciliation: An Institutional and Conceptual Framework for Jewish-Muslim Engagement
Get PDFThis paper calls for the establishment of a comprehensive academic and theological center to be created and located at a prestigious secular university in the United States. As the first of its kind in North America, it should be affiliated with both American Muslim and Jewish institutions. Modeled on similar Jewish-Christian centers, its mission will be to foster both a neutral ground for dialogue and the development of a theology of Jewish-Muslim coexistence
May It Please the Campus: Lawyers Leading Higher Education
No full textThe book traces the history of lawyer campus presidents from the 1700s to present, exploring dozens of topics such as: where lawyer presidents went to law school; the percentage of lawyer presidents serving at public, private, community, HBCUs, and religiously affiliated institutions; geographic concentrations of campuses led by lawyers, women lawyer presidents, pathways to the presidency for lawyers, commonalities in backgrounds, and more. The author explores reasons for an exponential increase in lawyers serving as campus leaders examining the growth of legal education and myriad legal and regulatory issues confronting higher education
Why Arkansas Act 710 Was Upheld, and Will Be Again
No full textThe recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of their bills
Settling Claims for Reparations
Get PDFThe scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling claims for reparation. The first pursues settlement in a legal or quasi legal sense, seeking to close a matter through discussion, compromise, and bargaining in such a way as to maximize one’s interest while drawing a line under the events in question. The second is grounded not in one’s own interest but in an acknowledgement of the inevitable inadequacy of one’s reparative response. Such an approach to settlement centres the agency of the individuals and groups harmed by past wrongdoing. The article examines the reparations issue with reference to a range of recent cases of alleged settlement, including claims for reparation for torture by the British army in Kenya in the 1950s, for sexual slavery by the Japanese Imperial Army in East Asia in the Second World War, and for genocide by German colonial forces between 1904 and 1908