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On Trust, Law, and Expecting the Worst
No full textA man says he will marry a woman, while he's secretly involved with someone else, just long enough to get her brother's kidney. The couple sets a date, and the kidney transplant takes place. Riding home from the hospital, the groom-to-be announces the engagement is indefinitely postponed. A year later, he marries the other woman (p. 30).
An American woman meets a Soviet man on a cultural exchange program and, after he professes his love and proposes, she marries him. She spends the next three-and-a-half years working to help him immigrate to the United States, paying 63,000 settlement check from the driver of the car, which she entrusts to her father. Contrary to her mother's report that the money is "being held in an investment account for her benefit,"7 the daughter learns later that her parents had spent
These plaintiffs' accounts populate the pages of Professor Jill Hasday's Intimate Lies and the Law (pp. 30, 80-81, 18o-81).9 And like
most of the plaintiffs discussed by Hasday, they lose in court
Surrogacy, Autonomy, and Equality
No full textThis Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.
As surrogacy becomes widespread, it may call for new forms of judicial response. This Chapter surveys the different ways that surrogacy is practiced across borders, and the different ways the practice has been criticized and valued. After considering some of these debates (does surrogacy exploit and commodify women or empower them to pursue their own autonomous life ends?), the Chapter then turns to critical issues surrounding surrogacy legislation. It examines the ability of individuals, including unmarried and LGBTQ individuals, to access surrogacy for family formation. And it addresses the interests of individuals serving as surrogates, including questions of compensation and decision-making during pregnancy. Finally, the Chapter examines questions of parental recognition, implicating the constitutional interests of the intended parents, the person serving as the surrogate, and the child. By exploring how courts, legislatures, and human rights tribunals have addressed surrogacy transnationally, the Chapter shows that the meanings and implications of surrogacy vary across contexts and depend on how the practice is structured and regulated
Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis
No full textWe live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. "Neoliberal" premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we cal the "Twentieth-Century Synthesis": a pervasive view of law that encases "the market" from claims of justice and conceals it from analyses of power.
This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new "law--and-political-economy approach" to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship
Thinking about the Commons.
No full textThis article explores current developments in theoretical thinking about the commons. It keys off contemporary reconsiderations of Garret Hardin’s “Tragedy of the Commons” and Elinor Ostrom’s response to Hardin in Governing the Commons and later work. Hardin’s idea of a “tragedy” has received much criticism, especially from Ostrom herself; but Ostrom’s own work has also raised some questions in more recent commons literature. The key issue that emerges from this reconsideration revolves around the understanding of commons on the one hand as limited common regimes, central to Ostrom’s work, or on the other hand as open access, as espoused by more recent advocates of widespread access to information and communications networks
Lane Lecture: The Public School as the Preeminent Site of Constitutional Law
No full textThis is my first trip to Nebraska, but it has long been a land of fascination for me. I remember being eight years old and watching
Mike Rozier, the incredible running back for the University of Nebraska, run all over the nation. He was my favorite player when I was a kid and I thought, "Someday I will make my way to Nebraska." That I am doing so today as the Lane lecturer is truly an honor. This is a wonderful, even august institution. I am humbled to join the distinguished collection of scholars who have previously delivered this lecture, and I am grateful to you all for attending.
I thought that I would begin my telling you a little bit about how I got interested in this subject. One of the first questions that people ask about my book is, "How long did it take to write?" Whatever else its virtues, it is not a short book. The answer to that question is that it took me either four years to write or three decades to write, depending upon how you count. After I joined the University of Chicago faculty in 2014, I turned my attention in earnest to writing the book and got away from law review articles for a while. But the roots of the project go back to my being a kid growing up in Washington, D.C. in the 1980s.
I grew up in Southeast Washington, east of the Anacostia River, which is a predominately black neighborhood. Starting at a very
young age, I traveled from far Southeast to upper Northwest Washington to attend fifth grade where the demographics of the city are quite different. Upper Northwest is the most privileged segment of Washington, D.C. That required me to get on a bus and two different subway lines and have a pretty long walk as well. I would think during this daily journey, "Why in the world am I having to wake up so early to get to fifth grade?" Also, "What are the opportunities that I am gaining as a result of this trek?" Conversely, "What are the opportunities that my neighbors are losing out on as a result of attending the neighborhood school?
Defining “Regular Occupation” in Long-Term Disability Insurance Policies
No full textMillions of American workers purchase “regular occupation” disability insurance to protect against disability-related job loss. Unlike general disability insurance policies, which require workers be disabled from doing any job to receive benefit payments, “regular occupation” insurance pays benefits when workers become disabled from doing their specific job. Whether a disabled worker receives benefits under such a plan often turns on how insurers and courts define the worker’s “regular occupation.
Toward a Demosprudence of Poverty
No full textThis Article describes the rift between a due-process-focused jurisprudence on legal-financial obligations-the centerpiece of the
current fight against criminalization of poverty-and the substantive and structural problems of poverty criminalization. It argues that judges can help address this disconnect while still operating within the scope of their authority by engaging in a demosprudence of poverty "a democracy-enhancing jurisprudence" that actively seeks to learn from poor people themselves and movements for economic justice. This Article builds from demosprudential theory to offer guidance for judges in their reason-giving, rulemaking, and courtroom management practices
Building Popular Legitimacy with Reconciliatory Gestures and Participation: A Community-Level Model of Authority
No full textThe research tests a model of reconciliation between authorities and communities. It expands past models of legitimacy to an intergroup dynamic model by identifying two community-level actions that legal authorities can undertake to build their popular legitimacy and promote cooperation. One type of action is a community-level reconciliatory gesture: an initiative that authorities make to communities to build trust by recognizing and trying to move beyond prior negative experiences. A second involves community-level opportunities for participating in decisions about how to manage social order. The results of this study with residents from a large metropolitan city suggest that both types of community-level gestures can make distinct contributions to building trust in and cooperation with the police
Willis Van Devanter: Chancellor of the Taft Court
No full textAlthough William H. Taft was president for only four years, he appointed a remarkable five justices to the Supreme Court. But
only two of these appointments remained on the Court when Taft became chief justice– Mahlon Pitney and Willis Van Devanter. Pitney would be gone within eighteen months, but Van Devanter would remain as “one of the most enduring achievements of the
Taft Administration, and very possibly its greatest.
Charles Reich: Due Process in the Eye of the Receiver
No full textI start and end with the same story: of Charles Reich and his purple chair. It is a tale of personhood and community, and how one
fosters the other.
I came to know and love Charles around 1990, when Yale's greatest and most generous Dean, Guido Calabresi, brought Charles back home to teach at Yale Law School after many years away. On our way back after a remarkably warm introductory lunch, Charles and I stopped by my office, which stood just a few doors down from his. Mid-conversation, Charles suddenly spied in the corner of my office a purple chair, which I had picked up from the hallway trash a few years earlier. "Where. Did. You. Get. That. CHAIR?" he asked in a trembling voice. But before I could answer, he kicked it over, revealing underneath in large capital letters the name "REICH!" "My purple chair!" he howled with childlike joy. "May I have this back?" What could I say? Even while I was nodding yes, he raced from the room carrying the chair back to his own visiting office. He swung the door open and proudly placed the chair next to its exact twin: an identical purple chair!
He turned back to me smiling. "When I left Yale 20 years ago, I asked Burke Marshall to keep these two chairs for me. But when I
returned, there was only one. I felt lost without its companion. But now," Charles beamed, "I'm home and I'm whole." As if to underscore the point, he sat down proudly in the chair, pleased and satisfied, wearing a delighted look of childlike glee