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Janet Halley and the Art of Status Quo Maintenance
Get PDFOver the past few years, Janet Halley emerged as one of the most avid critics of campus rape feminist activists, activists who push for the reformulation of university investigative rules to shift the burden of proof from the accuser to the accused. Halley contends that Title IX policies, embedded with affirmative consent, are not only procedurally unsound, but bad for boys, bad for sex, and bad for feminism, charging its agenda with “radical feminism” influences. Halley’s stance on campus rape is consistent with her long-held “queer theory” and its anti-feminist deregulatory drive. In this article, I argue that Halley’s “queer theory,” which she developed by polemically critiquing Catharine Mackinnon’s work, in an attempt to extol “sex positivism” in legal academia with the dignity of “fancy” theory, in effect stands Mackinnon on her head. By inverting Mackinnon’s gender/ sex constructions, Halley’s theory fronts as an idealist proposition indicting feminism with the invention of sexual injury and inspiring women to manipulate innocuous facts into scandalous protest.
Flipping Mackinnon’s equality approach when it comes to legal rules takes Halley to the right of “consent” where Mackinnon had gone to its “left.” By mirroring Mackinnon’s critique of “consent,” except from the right, Halley’s theorizing echoes a sexual libertarian agenda without/before feminism. It defends male sexual entitlement avant liberal feminism.
Ideologically, such theoretic formulations, along with the bundle of rules they advocate for, are designed to keep pressure on ruling liberal feminism from departing in its understanding of sex from the “pathology” model whereby all men are good except for those who are “pathologically” violent (classical liberalism) in the direction of understanding sexual entitlement as part of the social construction of maleness. By clamoring from the right of liberal feminism, mainstream liberal feminism is kept in check.
In order to explain the various elements of Halley’s theories on gender/sex and expose their underlying pre-feminist “classical liberal” orientation, I position her comparatively within the gender/sex theories of the non-liberal academic left: Mackinnon (her antagonist), Duncan Kennedy (her ally), and Judith Butler (her theoretical homebody). I analyze the way these theorists used the theoretical traditions of Marxism, post-modernism, and post-structuralism to posit a relationship between gender and sex: sex is gender simpliciter (Mackinnon), gender is sex simpliciter (Halley), and the split difference between gender and sex (Kennedy). This exercise illuminates the doctrinal approaches of each theory, be it to the left or right of consent. I conclude the article with a succinct critique of Halley’s theoretic excursions and argue Halley is guilty of five themes of “misrecognition:” (A) theoretical, oscillating between an antagonism to the very idea of sexual injury and proposing a neutral proceduralist approach to identifying it; (B) political, targeting radical feminism with her critique while smashing liberal feminism on the way; (C) sociological, reading women’s sexual injury through the eyes of an “uninjurable” promiscuous gay man advocating a radical sexual ideology; (D) ideological, attempting to ally her sexual libertarianism with the left when the ideological universe it travels is “classical liberalism,” definitively, the left’s most pronounced critic; and (E )historical, advocating a “sex positive” agenda in radically sex positivist times
The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment
Get PDFThe Privileges or Immunities Clause of the Fourteenth Amendment was virtually eliminated by the Supreme Court in three cases: The Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank. Today, most constitutional scholars agree that this was a terrible mistake, the effects of which continue to reverberate through our constitutional law. But, as evidenced by the Court’s decision in McDonald v. City of Chicago, both the “left” and “right” sides of the Court are reluctant to open the “Pandora’s Box” of uncertainty created by the phrase “privileges or immunities of citizens of the United States.” Scholars have not yet arrived at a consensus about its original meaning—much less about how to implement that meaning in constitutional practice.
In this article, we clear the field of a competing interpretation offered by Professor Kurt Lash. In an impressive series of articles and monograph, Lash avoids the Pandora’s Box by contending that the “privileges or immunities of citizens of the United States” are limited to the rights enumerated in the text of the Constitution, and do not include any unenumerated rights. While we agree with Lash that the enumerated rights are indeed among the “privileges or immunities” of U.S. citizens, we demonstrate his failure to establish that these are the only rights of U.S. citizens that state legislatures may not abridge.
In future work, we will present evidence of a more capacious original meaning of “privileges or immunities” of U.S. citizens, as well as a practical means for judges to identify these rights and apply them to cases and controversies. It suffices for now to say that we side with Michigan Senator Jacob Howard’s explanation of “privileges or immunities” over Lash’s
Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right
Get PDFInterpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is clear and definite. Construction does not supplement interpretation, but compliments it. Second, there exists more than one form of interpretation, and correspondingly more than one type of meaning. The meaning a text or other speech act has depends on the questions one asks of it. Third, which type of meaning is legally relevant depends on the applicable rule of construction. Rules of construction are in this sense conceptually prior to legal rules of interpretation. This priority has important consequences for how legal rules of interpretation are justified. Finally, because there exist multiple types of meaning, when one form of interpretation runs out, another form might step in. Whether that is so again depends on the applicable rule of construction.These four claims apply to legal interpretation and construction generally. This Article supports them with a close examination of the interpretation and construction of contractual agreements. It then argues that this account of interpretation and construction illuminates the shared structure of Joseph Story’s and Thomas Cooley’s theories of constitutional interpretation, and by extension theories of constitutional interpretation generally
“Big” Food, Tobacco, and Alcohol: Reducing Industry Influence on Noncommunicable Disease Prevention Laws and Policies
Get PDFThe food, tobacco and alcohol industries have penetrated markets in low- and middle-income countries (LMICs), with a significant impact on these countries’ burden of noncommunicable diseases (NCDs). Tangcharoensathien and colleagues describe the aggressive marketing of unhealthy food, alcohol and tobacco in LMICs, as well as key tactics used by these industries to resist laws and policies designed to reduce behavioural risk factors for NCDs. This commentary expands on the recommendations made by Tangcharoensathien and colleagues for preventing or managing conflicts of interest and reducing undue industry influence on NCD prevention policies and laws, focusing on the needs of LMICs. A growing body of research proposes ways to design voluntary industry initiatives to make them more effective, transparent and accountable, but governments should also consider whether collaboration with health-harming industries is ever appropriate. More fundamentally, mechanisms for identifying, managing and mitigating conflicts of interest and reducing industry influence must be woven into – and supported by – broader governance and regulatory structures at both national and international levels
The \u3cem\u3eLancet\u3c/em\u3e Commission on Global Health Law: The Transformative Power of Law to Advance the Right to Health
Get PDFA new report by The Lancet-O’Neill-Georgetown University Commission on Global Health and the Law shows how law can fulfill the global pledge of the human right to health, while “leaving no one behind.” I call this “global health with justice.” We need both health and justice. By global health, I mean ever increasing indicators of good health and increased longevity in all countries around the world. By justice I mean that the global “good” of health must be fairly distributed both within and among countries. The Lancet Commission report offers a comprehensive roadmap towards realizing the law’s power to make us healthier and safer, describing how principles – like fairness, participation, and wielding evidence – can shape policies throughout government. It also vividly illustrates how good governance and the rule of law can advance both health and justice.
We tend to think of science and medicine as the major drivers of good health. And, of course, these disciplines are vital to develop, implement, and improve healthcare, including pharmaceuticals, vaccines, and medical supplies. Yet, professional medical and nursing services make only a relatively small contribution to population health. More important are population-based interventions that modify core risks to health, such as diet, smoking, alcohol, and physical activity. These interventions are not the product of medicine or healthcare systems. Rather they are driven by law. In other words, what is the wonder drug that could save millions of lives? It is the law, enacted on the floors of national legislatures
Investing in America\u27s Surface Transportation Infrastructure: The Need for a Multi-Year Reauthorization Bill: Hearing Before the S. Comm. on Env\u27t & Pub. Works, 116th Cong., July 10, 2019
Get PDFThe Fourth National Climate Assessment, released in November 2018, described the serious impacts of climate change already being felt throughout the U.S., and made clear that the risks to communities all across the country are growing rapidly.
These findings, along with those in the 2018 Intergovernmental Panel on Climate Change (IPCC) report should serve as an immediate call to action. Even if we manage to limit planetary warming to just 2 degrees Celsius, the world will still face increased chances of economic and social upheaval from more severe flooding, droughts, heatwaves, and other climate impacts as well as devastating environmental consequences, the IPCC report warns.
The consensus from leading scientific research academies within the United States and internationally is clear: multiple lines of evidence indicate, and have indicated for years, that our atmosphere is warming, sea levels are rising, the magnitude and frequency of certain extreme weather events is increasing, and that human activity is the primary driver of climate change. As described in the IPCC Special Report, the consensus is that countries around the world must rapidly decarbonize their economies, cutting greenhouse gas emissions in half by 2030 and to near zero by 2050. The U.S. Department of Defense, and leaders within the defense and national security communities, have also recognized climate change as a “national security issue” that requires adapting military operations and planning to ensure readiness.
Despite our understanding of the consequences we will face and the urgency to act, U.S. GHG emissions from fossil fuel combustion increased by 2.7 percent in 2018, according the Rhodium Group. Clearly more action is needed.
While we all recognize the importance of transportation in our daily lives and for our economy, it is also important to recognize that the transportation sector is the largest contributor of GHG emissions in the United States, and is already facing significant impacts from climate change.
There is an urgent need, therefore, to transition to a low-carbon and more resilient transportation system. Such a transition would not only reduce emissions and fight climate change, it also would bring additional important benefits, including protecting public health by reducing conventional air pollution, providing more mobility options, and driving innovation and economic growth through policy action and through public and private investment
China’s “New” Silk Road
No full textThe New Silk Road - the Belt and Road Initiative (BRI) - is China\u27s grand idea for the 21st century, promising to transform international development assistance for health. Named after the ancient network of terrestrial and maritime routes, BRI represents a massive USD$1 trillion investment in trade and cultural exchange, stretching through Eurasia and connecting to Africa, the Middle East, and Europe. Flynn Murphy\u27s Feature reveals glaring global tensions about BRIs impact-will China forge a new paradigm for global health or is BRI a modern form of colonialism? What are BRI\u27s promises and perils, and how could China reform BRI to genuinely advance the right to health
The Canon Wars
Get PDFCanons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, Reading Law, and the other by Yale Law Professor William N. Eskridge, Interpreting Law. Both volumes purport to provide ways to use canons to read statutes and the Constitution. In this Review of Interpreting Law, we argue that this contemporary convergence on canons raises some significant interpretive questions about judicial power and the very idea of a canon
The Next Great Challenge: Making Legal Writing Scholarship Count as Legal Scholarship
Get PDFThe Legal Writing Journal published my first article. For that reason alone, it is special to me. As I am sure is true for many legal writing scholars, the Journal helped me find my voice, provided welcome validation, and conferred value on my scholarly effort. I have a copy of each print volume in my office, and like old friends, they are always there when I need them. I miss receiving each new cream and green issue in the mail, devouring it, and adding it to my collection, but the online version is equally pleasing in a different way and admittedly more convenient.
As we celebrate the thirtieth anniversary of the Journal’s founding, I thank those with the requisite foresight, talent, and spirit who founded the Legal Writing Institute and shortly thereafter the Journal. I just missed being a part of this magical time but consider myself a fortunate beneficiary. Since 1991, the Journal has been a consistent witness to and agent of the growth of our discipline. Together with Legal Communication & Rhetoric: JALWD, our second peer-review journal, it has given legal writing scholars a comfortable home and, to build on a phrase from Linda Berger, “a [legitimate] place to stand.”[1]
As teachers, scholars, and publishers of legal writing, we can be proud of our progress over the last thirty years. We acknowledge the efforts of law faculty nationwide, doctrinal and skills-related alike, who have believed in our work, supported our cause, and made mutual respect possible for the benefit of all our students. Yet many of us continue to face significant challenges in terms of title, security of position, salary, governance rights, other academic privileges, and heavy course loads. As a member of LWI’s Professional Status Committee, I am keenly aware of the amount of work yet to be done
The Law of Deception: A Research Agenda
Get PDFThe law of deception is the body of laws that address acts and omissions that wrongfully cause others to hold false beliefs. So defined, the law of deception cuts across traditional doctrinal boundaries. It encompasses the torts of deceit and defamation, false advertising laws, labeling requirements, securities fraud and disclosure regulations, criminal fraud, perjury statutes, and a host of other generic and more targeted laws. This essay suggests that the law of deception constitutes a coherent body of law, and identifies four salient questions about it.
The questions are these: First, within the law of deception one finds several different approaches to interpreting potentially deceptive communications. These include highly contextualist approaches (e.g., the tort of deceit), more restrictive literal-meaning rules (federal perjury law), and occasionally default legal meanings (the FTC’s reasonable basis rule). One set of questions concerns when and why which interpretive approach is appropriate. A second set of questions concerns legally salient harms. Laws of deception can be designed to protect those who might be deceived (e.g., negligent misrepresentation), those about whom a lie is told (defamation), honest competitors (false advertising laws), and credible communication more generally (as the Stolen Valor Act attempted). A theory of the law of deception should disaggregate these distinct purposes and evaluate the justifications for and design implications of each. A third set of questions concerns the relationship between deception and consent. Although deception sometimes vitiates consent (in the torts of battery and trespass, in contract law, in fourth amendment searches, and in rape law), it does not always do so. And the line between vitiating and non-vitiating deception shifts across different laws. This too demands explanation. Finally, sometimes the law permits parties to contract out of liability for deception (e.g., “big boy” letters), effectively consenting to what would otherwise be deceptive behavior. A theory of the law of deception should also provide an account when, why and how parties are able to contract out of laws of deception.
These are not the only interesting questions one might ask about the law of deception. Nor does this essay attempt to answer them. The goal is to make the case for thinking about the law of deception as a whole, and to suggest some directions for further research