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The Video and the Algorithm: Democracy, Antitheatricality, and Paranoia in the Age of Streaming Media
No full textVol. 35:1As debates about “digital democracy” remind us, democracy is
one of our central political keywords, but its meaning is difficult to pin
down. It can point to any one of a wide variety of political norms, act
rhetorically to buttress a set of contradictory claims, or sometimes merely
gesture vaguely toward the general political good. This essay looks at
democracy not as a set of normative claims but as an idea that takes shape
in the spatial-visual imaginary. Exploring democracy as a set of images, I
argue that two persistent “models” have helped us to envision it, models I
describe as “the performing polis” and “the dispersed demos.” These
models often appear in idealized form, but they also appear as corrupt
Doppelgängers of the idealized versions: in antitheatrical images of the
“evil theatrocracy”; in paranoid renderings of invisible networks of
marauding automatons and invisible agents. I offer a compressed history of
these models, which show up in both their utopian and dystopian forms in
a variety of texts: ancient Greek philosophy, Early Modern and
Enlightenment political treatises, modern and postmodern political and
media theory.
I then turn to two cases recently decided by the Supreme Court: Twitter
v. Taamneh and Gonzalez v. Google. While these cases are formally about
the liability of internet platforms for their users’ incendiary posts, they are
also about democracy in the digital age. I look at how the two models of
democracy I have identified inform them, appearing in the cases in both
their utopian and dystopian forms. At the heart of the visions of democracy
these cases proffer are the figures of the video and the algorithm: vehicles
of democracy and its nightmare antitheses; synecdoches for its promises
and pathologies; the central forces of our digital future
The People of California vs. Juan de Dios Ramírez Villa
No full text35:2James Boyd White’s 1972 book The Legal Imagination announced that
law and literature are disciplines that share imaginative and intellectual
commitments. He also presented them as good, if quarrelsome, partners in
legal education and the development of a humane legal system. Inspired by
White’s vision and audacity, I set forth an extended literary analysis of a
1997 California death penalty case. This exercise contemplates the
relationship between the legal opinion and the essay, considering them not
only cousins but also antagonists whose differences consist in their relative
abilities to wander. The rules that limit the legal opinion do not fetter the
essayist, and here I take that opportunity to more fully imagine the scenes
and arrogations that led to the murder of a seventeen-year-old boy in the
mid-1990s and to contemplate that killing’s presence in a larger political
and ecological landscape. The most pressing and literally questing
inquiries this essay divulges concern the roles that the oil and pesticide
industries played in a young man’s death, another man’s life sentence, and
the criminal justice system generally
Forward
No full text35:2It is my honor to introduce twelve essays, themselves honoring the 50th
anniversary of James Boyd White’s momentous The Legal Imagination:
Studies in the Nature of Legal Thought and Expression.1 The weightiness
of the 1000-page, hardcopy, 45th Anniversary Edition (2018) is matched
only by the wisdom and wittiness of its author.2 In his introduction to the
September 2023 Symposium Fifty Years of the Legal Imagination: A
Symposium in Honor of James Boyd White, White explains the moments,
the questions, the tensions, and the conjunctions that in younger days led
him to his teaching of law and humanities. As both his introduction and the
essays that follow attest, his work is above all a contribution to the learning
of law. I mean that in a double sense: the “learning of law” as how one
comes to know law and also as what law knows. Over and over, White
invites us to recognize the many ways in which knowing and doing law are
matters of language, which one can always learn to do better
The Flowering of Civil Law: Early Italian Statutes in the Yale Law Library
No full textCatalog of an exhibition highlighting the Lillian Goldman Law Library’s outstanding collection of early Italian city statutes, rivaled by few other U.S. libraries and surpassed by none. These municipal codes governed the dozens of Italian city-states that arose in the Middle Ages and persisted until the reunification of Italy in the late 19th century. In their mixing of Roman law, local law, and pragmatic innovations, the Italian municipal statutes became the prototype of European civil law
SEEING "THE COURTS": MANAGERIAL JUDGES, EMPTY COURTROOMS, CHAOTIC COURTHOUSES, AND JUDICIAL LEGITIMACY FROM THE 1980S TO THE 2020S
No full textFrom some perspectives, litigation looks vibrant, with frontpage coverage of the U.S. Supreme Court's reconsideration of its precedents and high-profile civil and criminal lawsuits against government officials. Moreover, since the 1980s, the federal judiciary has had an ambitious building program producing dozens of courthouses designed to exemplify the "solemnity, stability, integrity, rigor, and fairness " of adjudication. Such edifices underscore courts ' place in narrations of the United States. Yet the challenges of legitimating government authority, of which judicial actions are a part, have become all the more acute since Managerial Judges was published forty years ago. The world of ordinary litigation is troubled and shrinking, and the disjuncture between judges ' stated goals and their practices has become vivid. Aside from a few aggregations of tens of thousands of cases in "mega" multidistrict litigations (MDLs), filings in the federal courts have flattened and declined to about 240,000 civil cases per year. At both trial and appellate levels, significant percentages of litigants proceed without lawyers; about one-quarter of civil filings and about half of the appeals come from individuals representing themselves. Most circuits have embraced norms of limiting oral arguments and of issuing eighty-five percent of their decisions as non-precedential rulings. Those practices, rendering their work less visible, parallel the lack of transparency of the many managerial decisions at the trial level, where hours on the bench are down to about 320 per year and fewer than one of 100 civil lawsuits ends with a trial All the while, federal courts remain relatively rich in resources and staff as compared to both state and tribal courts and to agencies. Even as filings likewise have fallen, state courts continue to have tens of millions more cases and larger segments of their dockets in which lawyerless litigants are the norm. Many judges are ill-equipped to respond to disputants with limited resources, often in family conflicts or as debtors and tenants who face resourced adversaries. Further, as the focus shifts to web-based resolution mechanisms, little attention is paid to its privatizing features. Providers of online dispute resolution (ODR) have not seen enabling public access as part of the packet of services to promote. Thus, courtroom-based adjudication is becoming increasingly rare. One possibility is that this form of statecraft is failing and the time has come to abandon its aspirations. Yet, as an heir to a political tradition grounded in the due process ideology of governments obligated to make decisions that are not arbitrary, I am not willing to give up the public service of adjudication and on courts as one of many venues to put into practice commitments of equal treatment. To legitimate decisions, judges need to preside over cases in which litigants are able to provide adequate information. This article analyzes the federal judiciary's function as an adjudicatory institution and as an "agency" with its own programmatic agendas. During the last few decades, the federal judiciary has successfully lobbied Congress to create and finance a host of projects, including authorizing judges to centralize cases through multidistrict litigation, to select and appoint adjunct magistrate and bankruptcy judges, and to oversee the design of dozens of new courthouses. Since the 1990s, the federal judiciary has also gathered statistics on and repeatedly raised concerns about the number of self-represented litigants. Yet the judiciary has not generated structural responses, such as a national database on the many district court "pro se " projects and new mechanisms to enlist lawyering and other resources, to enable judges to make principled decisions in those cases. Likewise, while the docket is heavily dependent on the cross-litigant subsidies generated through class actions and MDLs, judges have not crafted methods to mobilize the lawyering resources in those configurations to support litigants within or to shape a robust method of overseeing implementation of the resolutions reached. To date, the federal judiciary has not instituted a mechanism to buffer against allocating adjudicatory resources largely based on litigants' economic wherewithal. Moreover, the federal judiciary, entwined with state and tribal court adjudication, has not joined its counterparts in pressing Congress to provide new streams of funding for all kinds of courts and the people using them. Navigating the political economy of courts producing a crisis of legitimacy requires reorienting the "process due" by revising statutes, doctrine, practices, and rules to respond to an eclectic set of claimants seeking to be heard. "Management" of the people in court does not suffice
The Bankruptcy Off-Ramp from Complex Civil Litigation: Purdue Pharma, Opioids, and Unorthodox Civil Procedure in Public Harms Cases
No full textThe article examines the use of bankruptcy as a tool to navigate complex civil litigation, with a focus on the Purdue Pharma case and the opioid crisis. It discusses legal structures contributing to the crisis and the role of bankruptcy courts in resolving public harm cases. The text also explores unorthodox civil procedure, such as multi-district litigation, and raises questions about the effectiveness of these procedural innovations in achieving justice and accountability in public harm cases. Additionally, it highlights the challenges and systemic dangers posed by the use of unconventional bankruptcy maneuvers in complex civil litigation
Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794.
No full textOriginalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize
Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause
No full textVol. 35:4The Fourteenth Amendment's Citizenship Clause connected borders,
birth, and egalitarian status to forge a new definition of U.S. citizenship,
freed for the first time from constraints of race and lineage. This Article
locates a forerunner to the Citizenship Clause in antebellum laws enacted
by six northern states under which all persons born within their borders
were deemed free, regardless of their parents' race or enslaved status. In
subsequent freedom suits, courts in these states declared this rule applied
even to children born to fugitive slaves, holding that the child's status
turned solely on location of birth, not the mother's enslavement.
The Article begins by analyzing the development of "birthright
freedom" an antebellum doctrine that was well known at the time to
lawyers, politicians, and at least some enslaved women, who freed their
children by escaping to free states while pregnant. These six states not only
declared the children of slaves born within their borders to be free albeit
required to serve lengthy periods ofindenture to their mother's enslaver
they also mandated that these children be educated, treated as "servants"
(not slaves), and that their births be registered with the state to protect their
free status. The Article then argues that this linkage of location of birth,
legal status, and membership rights provided socio-legal context for the
drafting and ratification of the Citizenship Clause. In conclusion, the
Article describes how the doctrines of birthright freedom and birthright
citizenship have shaped legal rules and social practices around borders,
birth, and status throughout U.S. history
Abortion, Full Faith and Credit, and the" Judicial Power" Under Article III: Does Article IV of the US Constitution Require Sister-State Enforcement of Anti-Abortion Damages Awards?
No full textInterstate judgments enforcement is governed by the Full Faith and Credit Clause of Article IV of the Constitution, together with its implementing statute, 28 U.S.C. 1738. Although a highly technical area of the law, interstate judgments enforcement has important social repercussions for some very modern problems of great cultural significance. One of the currently significant applications is the interstate enforcement of judgments rendered in civil suits based on state anti-abortion laws. For example, Texas statute S.B. 8 gives anyone who wishes to sue a civil cause of action against persons who facilitate abortions. Even complete strangers to the abortion can decide to become a plaintiff in such an action and can sue for money “damages” despite having suffered no injury. Non-experts seem to have the impression that the Full Faith and Credit Clause presents an ironclad requirement that judgments of sister states must always be enforced. If that were the case, states that recognize reproductive freedom would be obliged to enforce judgments entered into in states like Texas, despite their strong public policy against such actions. This Article shows why this impression is mistaken. First, the full faith and credit principle has for centuries been subject to exceptions, several of which are potentially relevant in the reproductive freedom context. These include lack of subject matter jurisdiction, the public policy exception, and the penal law exception. In addition, a uniform law adopted in forty-eight states (the Uniform Enforcement of Foreign Judgments Act) permits the state enforcing the judgment to apply its own judgments law to an interstate enforcement proceeding. The enforcing state will therefore apply to foreign state judgments any exceptions to judgments enforcement law that it has as a general matter for its own domestic judgments. Second, and more importantly, the Clause and statute both contain an important qualification: they apply only to “judicial” actions. This exception prevents a state from requiring sister-state enforcement of decisions that do not meet the usual tests for a judicial “case or controversy” (as defined in Article III of the Constitution). Article III and Article IV both use the word “judicial” to specify the standard necessary for the exercise of federal power. These two neighboring constitutional provisions are supported by a common historical origin (they were drafted at the same time and by some of the same people at the constitutional drafting convention) and fulfill comparable functions. If the two constitutional provisions are treated the same, judgments under statutes like Texas S.B. 8 would not be given mandatory force in other states because such cases would not meet the standing requirement imposed by Article III
The Lawyer's Quandary: Client-Centered Lawyering in the Treatment Paradigm.
No full textClient-centered criminal defense attorneys endeavor to maximize their client's autonomy, using their expertise to counsel their client through the criminal process. Indeed, the criminal system relies on defense counsel to ensure fairness and, in turn, help legitimize the system. What does it mean for the system if the client-centered lawyer can't fulfill their goals?. This Article argues that, because today's criminal system uses a treatment paradigm reliant on mandated treatment for defendants with mental disabilities, defense attorneys must then confront a lawyering quandary. It does so by exploring the challenges client-centered lawyers face in representing clients with mental health conditions categorized as personality "disorders," who are likely to struggle completing mandated treatment programs, in turn complicating their path for lowering imprisonment exposure and accessing care. Through a discussion of the obstacles lawyers face on behalf of clients with personality conditions, this Article illuminates deeper systemic failures in how the criminal system handles mental health issues