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Law, Literature, and The Legal Imagination
No full text35:2Law and literature occupies an unusual place among the interdisciplines
in the legal academy. Various interdisciplinary conjunctions have found a
home on law faculties over the last half-century or so, such as law and
economics, law and sociology, and law and psychology, more recently
supplemented by law and neuroscience.1 Most law professors could
summarize the aims of scholarship fairly accurately in these areas. For
instance, if asked to propose a topic for a new article, even someone who
rarely reads work in law and psychology could probably offer a plausible
example—maybe not an example that scholars in that area would find
compelling, but at least one that they would not reject as inapposite. Law
and literature has had a place in the legal academy for about the same
amount of time, as this symposium attests, and yet those who do not read
current scholarship in this field tend to have a vague or even misinformed
understanding of what the work entails. Having outlasted the many
predictions of its demise, the field nevertheless suffers from a strange kind
of identity crisis—not because of anxieties or doubts among those who
write in this area, but because of confident but misguided accounts that
others would offer when describing the field
Grid Reliability in the Electric Era
No full textVol. 41:164The United States has delegated the responsibility of keeping the lights
on to a self-regulatory organization called the North American Electric
Reliability Corporation (NERC). Although NERC is a crucial example of
industry-led governance—and regulates in an area that is central to our
economy and basic human survival—this unusual institution has received
scant attention from policymakers and scholars. Such attention is overdue.
To decarbonize its economy, the United States must enter a new “electric
era,” transitioning many sectors to run on electricity while also transforming
the electricity system itself to run largely on clean but intermittent renewable
resources. These new resources demand new approaches to electric grid
reliability—approaches that NERC is failing to adequately embrace.
This Article traces NERC’s history, situates NERC in ongoing debates
about climate change and grid reliability, and assesses the viability of
reliability self-regulation in the electric era. A self-regulatory model for
maintaining U.S. electric-grid reliability sufficed in prior decades, when
regulated monopolies managed nearly every segment of electricity
production. But the criteria that NERC once used to justify self-regulation—
’ expertise, clear accountability metrics, and public-private
alignment of interests—no longer hold. The climate crisis creates a need for
expertise beyond NERC’s domain, while the introduction of competition in
the electricity sector blurs lines of accountability for reliability failures.
NERC’s structure also perpetuates an incumbency bias at odds with public
goals for the energy transition.
These shifting conditions have caused to fail to keep pace with the
reliability challenges of the electric era. Worse still, outdated NERC
standards help entrench fossil-fuel interests by justifying electricity-market
rules poorly suited to accommodate renewable resources. We therefore
suggest a suite of reforms that would increase direct government oversight
and accountability in electricity-reliability regulation
Shorting Your Rivals: Negative Ownership as an Antitrust Remedy
No full textThe article proposes a unique antitrust remedy of negative ownership positions in remaining rivals as an alternative to divestiture in mergers. This remedy aims to restore competition levels by counteracting anticompetitive effects of mergers through various implementations like compensation based on relative performance and derivative contracts. The text explores the concept of negative ownership in antitrust enforcement, discussing its benefits in maintaining pre-merger competitive incentives and potentially allowing procompetitive transactions. It also delves into scenarios of asymmetry among firms, impact on innovation, and a detailed model of the JetBlue/Spirit merger to illustrate how negative ownership can influence pricing decisions, offering a versatile tool for antitrust enforcement
Why a Serf is Not a Slave: Humans and Land in the Medieval Scholastic Imagination.
No full textVol. 35:3James Whitman observed more than once that historians of law should boldly set out to formulate 'grand theories,' long-term interpretive hypotheses that draw together the infinite number of details into an overall picture, rather than merely proposing detailed studies of individual sources or particular legal institutions.
While specialists in legal history dwell on the details, these overviews are offered by others: economists, anthropologists, and now even social psychologists, who attribute a key role in the interpretation of the world to the transformations of legal institutions. 1 Some of us acknowledge these and other shortcomings in our own fields, yet we tend to advise others how to go about addressing these issues rather than personally engaging in the work. For more than three decades, however, Whitman has been offering 'grand theories,' ie, interpretations of major historical and social phenomena, demonstrating that the contribution of legal history can still be fundamental to understanding social transformations: on dignity, on the status of persons, on the responsibility of the judge, on the ambiguous relationship between libertarian and capitalist ideologies in twentieth-century America. Now he addresses the immense problem of property rights in Western legal consciousness in his latest book, which is being published as I write this article
We Are All Cafeteria Originalists Now (and We Always Have Been)
No full textAmericans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be
All the Law and the Prophets: The Legal Imagination as Prophetic Imagination
No full text35:2Legal speech and prophetic speech are commonly configured as diametrically opposed to each other. A lawyer stands graceful and impeccably groomed, calmly proffering measured arguments. A prophet stands unkempt and askew, spewing wild denunciations. Prophets hotly condemn the law and the legal system, while lawyers coldly dismiss prophetic accusations as unhinged and impractical.
This view of the respective roles of law and prophetic discourse is entrenched in Anglo-American social criticism. The great nineteenth-century British critic Matthew Arnold distinguished between the rhetorical styles of Hellenism and Hebraism, the language of “sweetness and light” and the language of “fire and strength,” respectively.1 The former is the objective and precise language of rational analysis, the language of the courtroom; the latter is the ardent articulation of protest and resistance, the language of the soapbox
The Coming Crisis of Student Speech
No full textDebates involving free speech on America's college campuses have recently ignited a firestorm of disputation, dominating newspaper headlines in a fashion not witnessed in several decades. The First Amendment's import as appearing in the nation's elementary and secondary schools has, however, received comparatively little public scrutiny. This relative paucity of attention is lamentable, as our public school system is the foremost government entity that shapes Americans' everyday lives. This Essay explores three twenty-first century doctrinal developments that fuse to portend an emerging crisis for student speech. First, it examines Mahanoy Area School District v. B. L ex rel Levy and contends that the opinion unwisely authorizes educators to punish an especially critical form of off-campus speech. Second, the Essay demonstrates how a long-dormant aspect of Tinker v. Des Moines Independent Community School Districtinvolving speech that 'collid[es] with the rights of others"-recently awoke from its slumber and now poses a grave threat to student speech. Third, it contends that the Supreme Court's embrace of adolescent neuroscience in the Eighth Amendment context could spell doom if imported into the student speech setting. This Essay aims to increase awareness of the storm clouds quickly gathering on the First Amendment horizon and encourages jurists to redouble their commitment to protecting student expression. Rather than protecting unpopular statements of students, as judges have long aspired, courts today seem increasingly poised to protect students from unpopular statements
Cooperating to Resist: Society and State during China's COVID Lockdowns
No full textVol. 35:4China's lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese partystate's response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state's exercise of power and, in doing so, challenges conventional wisdom. While the Chinese Communist Party (" CCP") touted its COVID-19 response as a testament to the robustness of its institutions, critics pointed to the widespread infringement of individual rights and the suffering endured during China's pandemic lockdowns. However, one aspect has been largely overlooked: the role of society itself. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state's encroachments on individual rights during the pandemic, a phenomenon I term" cooperating to resist." My research reveals the state's inherent limitations in enforcing neighborhood lockdowns and providing essential services to locked-down communities. Crucially, I demonstrate that the cooperation of citizens, particularly homeowners, was indispensable to the state's ability to maintain its COVID-19 control measures. Yet, this cooperation was not without its implications. When homeowners, who had been willing partners of the government, invoked legal narratives to voice their concerns, the government found itself compelled to respond. This interdependence between the government and homeowners unveils a dynamic where dependence begets power, complicating the prevailing narrative of China's" strong state, weak society." It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. In an authoritarian regime, property law emerges as a sanctuary of resistance for citizens
Multiparenthood
No full textFamily law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life. Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined. This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth. Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time. Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent amily with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental responsibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental relationship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition
The (Still) Unexplored Possibilities of a Poetics of Law
No full text35:2In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is chiefly interested in “how the legal imagination expresses itself in the judicial opinion,” and he frames that interest around a set of provocative questions about the form of the judicial opinion, what it demands, how it tells its story, how it manages its structural tensions, its constraints and possibilities, and the complex expectations that are brought to it