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"Natural Hierarchies"
No full textThis essay examines the socioeconomics of status hierarchies: how they respond to external demands, and how, in terms of institutional structure, they make themselves socially usable and durable. It asks whether there are, in some sense, "natural hierarchies"-hierarchies that will almost always emerge in sophisticated societies, regardless of sociopolitical or economic conditions. It highlights adaptability as the central functional feature that makes status rankings durable, and employs this measure to identify two kinds of "natural hierarchies": wealth and seniority. Between the two, the former has drawn the lion's share of political and intellectual attention, but the latter possesses similar functional advantages, and is likely just as pervasive across human societies, historical and modem. Like wealth hierarchies, seniority hierarchies also serve as generally useful proxies for most attributes that societies commonly value, are also relatively easy to use, and avoid direct normative conflict with most sociopolitical value systems even more adeptly than wealth hierarchies do. The term "natural hierarchy" is employed here in a purely descriptive sense, without any normative connotations whatsoever
Reencountering texts: James Boyd White, legal reading, and bringing back the human
No full text35:2James Boyd White’s work is ultimately about language, in its many forms and multifarious instantiations. Given the breadth of his writing – from Augustine,1 to George Herbert,2 to the power of speech3 and the limits of language4 – his work and its impact extends far beyond the law. As lawyers and legal scholars, however, we should pay homage to his particular contribution to legal education, which is probably the most meaningful to our field, and in many cases to us personally.5 In this paper, I therefore wish to highlight one of White’s most important contributions to legal thought—that learning the language of the law has distinct costs for us—and consider some of its implications. I argue that perhaps the greatest and most significant loss we experience in learning the language of the law is the ability to encounter text simply as a reader. Instead, lawyers learn a reading style that is utilitarian, extractive, narrow, and entirely purpose driven. It is useful in legal argument and practice to read this way, but it is limiting—so limiting, indeed, that it risks us losing touch entirely with the open, curiosity-based, humanistic reading of texts that we did before our lives in the law. I argue that White’s scholarship lets us see and diagnose this problem, and—in its creative, broad, and humanistic engagement with a variety of texts—helps us reengage with text as a reader rather than only as a lawyer. In other words, White brings the human back, and shows us how to live as lawyers who are still deeply connected to the human world we practice in, and that is shaped by our practice
Reconstructing Critical Legal Studies.
No full textIt is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random--in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law--parameters we should reclaim critical legal studies for helping establish--apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today
Italian Statuti: Views from a North American Curator
No full textThis paper was presented at the conference organized by the De Statutis Society, "La libertà di decidere: da Cento a Cento, 1993-2024; Trent'anni di studi sugli statuti," June 1, 2024, in Cento, Italy. It describes the origins and development of the Yale Law Library's Italian Statute Collection, the largest collection outside of Italy. It discusses the need for an English-language guide to the genre, and offers suggestions on the value of Italian city statutes for the history of legal literature and for the growing field of book history
A Political Approach to Legal Evidence
No full textVol. 35:1Legal evidence is often seen as exceptional. Its focus on facts
distinguishes it from legal fields, and the particular legal
setting in which it operates distances it from other fact-finding
endeavors. This article challenges this view. It argues that legal
evidence is closely connected to political theory. The article explains
the similarities between legal and political decisions about facts: both
are practical decisions, made by state institutions, under conditions of
uncertainty, and aimed at determining the factual basis that underpins
substantive judgements. Given these similarities, legal evidence can
learn a lot from theories that govern political decisions, especially
political decisions about facts. One emerging line of scholarship
political epistemology seems particularly useful for this endeavor.
Unfortunately, existing legal evidence scholarship overlooks these
resources.
Drawing on and developing these insights, this article makes three related
arguments. First, legal evidence has close relations with political theory.
Second and following, legal evidence should focus on the legitimacy,
rather than the accuracy, of decisions about facts. Third, political
epistemology can offer guidance on how to achieve this legitimacy.
The article then employs this political approach to legal evidence. It
developing evidence doctrines such as hearsay and the Confrontation
Clause, jury biases, and epistemic injustices of specific rules. Finally, this
approach also invites legal evidence to improve legal decisions about
facts beyond the Federal Rules of Evidence, including decisions by the
Supreme Court and quasi-judicial institutions
Before Law and Literature: Law or Literature
No full textVol. 35:4This article draws attention to an overlooked set of situations and some
responses to them integral to the longer history of law and literature. These
situations I call law-or-literature dilemmas: when a desire to pursue the
humanities meets external pressure to study or practice law, and by all
indications the choice between them is mutually exclusive. Out of
dissatisfaction with the predicament, efforts emerge to outmaneuver the
options, and in certain instances the law-or-literature problem has found a
law-and-literature solution. The source of these syncretic initiatives, a
literary bent confronting a straitened vocational choice, is perhaps so
obvious that we have not entertained it as a primitive impetus for the lawand-
literature enterprise.
It is worthwhile to look at how law-or-literature conflicts get reframed as
complementarities because it can enhance our perspective of the motives
and provenance of law and literature as a field. If we wish to understand
what has brought law and the humanities together, it is essential to see what
has kept them apart. The paper does not proceed chronologically but like a
triptych with each panel based on a different kind of pressure—social,
professional, and institutional—bearing down against the litterateurlawyer
and each illustrating a notable individual effort to resist that
pressure and make literature a part of lawyers’ education, practice, or
edifying leisure
Identifying Youth Sport
No full textVol. 35:1The United States is steeped in the prevailing discourse that youth sport
is part of a “good” childhood. With approximately 60 million children
participating, it would seem that the conventional wisdom is true. Yet
the dominant narrative occurs within a troubling empirical reality.
What is often referred to as the “professionalization” of youth sport,
which emphasizes early sport specialization, over-training to the point
of injury, competition, and the drive to win, leads the majority of
children who enter youth sport to quit by adolescence. Because
professionalized youth sport is also costly, millions more, particularly
children of color and children with disabilities, never have the
opportunity to play. Despite the known harms of the current system,
there has been little legal scholarly attention to youth sport and little
meaningful reform.
This article seeks to lay the foundation for a different approach by
taking a crucial threshold step: fully identifying what, in the U.S.,
youth sport is. While the answer may seem apparent, given our
perceived familiarity with sport, I argue that it is more complex. This
article explains that U.S. youth sport is a particular model infused with
the power of the legal and policy choices, including the choice not to
regulate, that reflect our historical moment. Youth sport occurring in
this environment is not, as commonly thought, just a private family
matter, but a site of significant societal production that supports all
other levels of athletics. It is, in short, much more than simply play.
Operating in this way, I argue that the U.S. youth sport model produces
a surplus value that is distributed across society, from parents and fans
to sports sponsors and state and local governments. By identifying
youth sport by what it is, and not what it purports to be, this article
reveals why the current system is resistant to change and sets the stage
for more meaningful approaches to reform
Dissenting Authority
No full text35:2This essay explicates J.B. White’s rhetorical conception of authority as a
potentially collaborative achievement and contrasts it with the conception
of authority as surrender of judgment prevailing in legal philosophy. On
White’s view, authority is not an instrument held and deployed, but is
conferred, like respect.
This conception of authority illuminates three puzzles concerning the
relationship between dissent and legal authority. First, Legal Positivism’s
purportedly descriptive account of law insists it must claim an authority to
govern independent of justice and assent. Yet law’s language is replete with
justice-based appeals for popular assent. White’s reading of the practice of
legal authority better explains this evidence. Second, liberal moral
philosophers often take value dissensus as evidence that legal authority is
necessarily illegitimate. Yet the language of radical dissenters often makes
an appeal for legal authority rather than anarchy. White’s conception of
legal authority as a practice of public reason better accounts for radical
aspirations to claim authority. Third, a conventional account of precedent
implies dissents are pointless, because they can have no legal authority. Yet
White’s conception of authority as collaborative engagement explains how
dissenting voices contribute authority to law. Law earns our allegiance by
remaining open to contestation, and by inviting rather than repressing our
critical judgment
The Humanities and Law School
No full text35:2I encountered James Boyd White about a year after law school, not
during. It was a late springtime trip down to the Seminary Co-op at the
University of Chicago. There, a new arrival: White’s Heracles’ Bow. I was
hooked. Since then, only my direct mentors have had greater influence over
how I think about, and practice, law. Moreover, one of his later books,
Living Speech, influenced greatly how I think about almost everything
Copyright, Moral Rights, and the Social Self
No full textVol. 35:4Moral rights—non-economic rights that enable authors to control how their
copyrighted work is divulged, attributed, modified, and withdrawn—are
grounded on the Investment Theory: when an author creates a work, she
invests part of her self in it. Because the work is an extension of the author’s
“self,” special rights—not merely economic rights—are needed to protect
it. Although intuitive, the rationale raises two central questions any moral
rights theorist must address: how can an author invest her “self” in a work,
and how might the law protect this investment? Moral rights scholars have
not provided a satisfactory answer to the first question, making the second
one difficult to address. This Article argues that an idea from social
psychology might help answer the first question and shape how we respond
to the second. Rather than some philosophical or abstract conception of the
self, the authorial self the law protects is the social one: the self created and
maintained through social interaction.
On this account, moral rights are tools to present and manage aspects of
this social self. They are limited “rights of impression management.” This
framing enables two analytical moves. First, it precisifies what moral rights
protect (the social self as externalized in the work) and the harm they
protect against (potential inconsistencies in that self). Second, it provides a
framework for discussing how moral rights ought to protect the self from
harm, raising the ultimate questions of whether and to what extent the
Investment Theory is justified