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Race, Space, and Place: Interrogating Whiteness Through a Critical Approach to Place
Get PDFDrawing from George Lipsitz’s notion that whiteness is “not so much a color as a condition,” this Article embarks on the project of framing the manner and methods through which whiteness continues to dominate space and place. Wherever whiteness dominates space, space carries rules and expectations about the identity and characteristics of people who are present—visitors and jaunters, owners and occupiers—and the types of activities and cultural practices that might occur there. Occasionally, spaces are racialized because of intentional practices of discrimination and segregation. In others, less intentional methods produce racialized space. In both, American spaces tell their own histories of exclusion and violence and hate.
This Article proposes understanding how the white space is maintained by looking to the intersection of race, space, and place. Race, a social construct often designed to create and maintain subordination, is an essential lens for understanding the ways that history and power disparities shape the values we attach to land and that come to define our communities. Space in this Article refers to geographical and temporal location, where racially defining moments may occur. Place, often appearing as a community’s sense of place, illustrates the ways that individuals attach to spaces and communities, as well as how spaces and community attach to individuals. This examination reveals that racism produces, and is produced by, the spaces that we inhabit, visit, or even hear about. This examination also reveals that such racialized spaces can become racialized places. Yet, just as place can serve as the consecration of bias, it can also assist in identifying and naming racial subordination.
To understand how the framework of race, space, and place operates, this Article examines the idea of the community’s comprehensive land use plan, the publication of which signifies the moment when a grounded group of people raise their flags and announce to the world, “this is who we are.” The comprehensive plan is the grasp of the past, the path to the future, and the self-assessment of the character of a particular community. It is the statement that sets a community apart from others, and it entails the reasons that residents adore (or suffer) their communities. Although there is a lot of anti-racist work to do in the land use context, the comprehensive plan serves as a good launching point because it is intended as a tool of local strength and cohesion. The comprehensive plan is, in the land use context, the essential community-building moment of local governance.
Part I of this Article introduces the purposes and challenges of the comprehensive plan, followed by an analysis of the racial biases evident in the planning undertaken in the seemingly picturesque Amherst, Massachusetts. Part II examines the framework of race, space, and place, identifying and illustrating the types of coded language and systemic practices that surface in a racial justice audit of local planning documents. Part III then introduces a variety of devices that will make racialized histories more visible and transform the white domination of space into something more just and inclusive.
This abstract has been adapted from the author\u27s introduction
Retconning Heller: Five Takes on New York State Rifle & Pistol Association, Inc. v. Bruen
Get PDFNew York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest.
Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment has been suspect—assign the opinion to Justice Thomas?
Takes Two and Three concern Justice Thomas’s substitution of text, history, and tradition for tiered security, and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered security in favor of a textual, historical, and traditional inquiry. To make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who must rehear cases involving dozens of these laws in light of Bruen’s new standard.
Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heightened by Bruen’s text-history-tradition only approach.
Finally, we look at the reaction of the lower courts post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea change it portends and are attempting to implement it in good faith. Although, as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious, and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen
Implied Organizations and Technological Governance
Get PDFCommon law historically adapted creatively and gracefully to the emergence of new types of organizations. Today, statutory forms of organizations predominate. But statutory organizational forms may be ill-suited to govern the novel, loosely coupled, and rapidly changing organizations that can arise through distributed technological mechanisms. This Article suggests that the common law of implied organizations can be a fertile ground for legal responses to technological organizations and indeed may be important not just for regulating such organizations but for giving them important legal capabilities
On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary
Get PDFThis Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial interpretation techniques—which substance is derived from the strength of the separation of powers in a given system. (3) Though scholars traditionally study these common law doctrines independently from each other, this Article argues that they are all connected. (4) Lastly, courts understand that the content of each of these doctrines is affected by considerations related to the separation of powers. Yet, while developing these common law doctrines, the courts have failed to connect these various doctrines, and to identify the connection between the strength of the separation of powers and the resulting content of common law doctrines that are required to support it. The courts are not alone in their failure to see the connection; scholars of comparative law often apply doctrines from one system to another without being aware of this nexus.
This Article supports its argument by juxtaposing two Supreme Court decisions from two democratic common law countries dealing with similar dilemmas: whether immigration bans based on nationality are constitutional, even though they prevent citizens from uniting with their foreign family members. In both countries, the Courts dealt with a similar dilemma, and reached similar results of non-intervention. Yet, the reasoning of both Courts vastly differed. By analyzing how the United States and Israel—which are located on the opposite sides of the spectrum regarding separation of powers—construct their judicial reasoning to a similar problem, this Article aims to examine the inner workings of both systems’ separation of powers. This Article contends that these different structures lead to vastly different common law doctrines that inform judicial reasoning
Adversarial Election Administration
Get PDFAs Americans, we are conditioned to believe that involving partisans in the administration of elections is inherently problematic. Understandably. The United States is a major outlier; virtually every other developed democracy mandates nonpartisan election administration. Whether on the left or right— especially since the 2020 election—we are barraged with headlines about actual or feared partisanship on the part of those who run our elections. What this narrative misses, however, is a crucial and underrecognized fact: by design, partisans have always played central roles at every level of U.S. election administration. What is more, partisans are baked into the U.S. election process for lofty reasons. Placing rival partisans in the election process increases transparency, enhances accountability, and (in theory) improves public trust in outcomes. Rival partisans populate election administration for the same reason we rely on the adversarial process in court: adversarialism leads to outcomes in which members of the public are more likely to abide. As with the justice system, adversarial election administration is not a perfect formula. But the better we understand the mechanisms of rival partisanship in election administration, the better our chances of improving them. This Article takes on this task, examining the history of adversarial election administration in the United States, describing how adversarial actors function in modern U.S. elections, and suggesting how states might better leverage adversarial election administration to bolster transparency, boost accountability, and secure election outcomes voters can trust
The Fourth Amendment\u27s Constitutional Home
Get PDFThe home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This revelation raises unsettled questions as to why takings is the disjointed outlier. Prior scholarship has addressed this constitutional schism by observing that judicial deference to economic legislation, as opposed to exacting scrutiny to fundamental rights, has constrained the Court from extending the thread to takings. However, there are more unexplained scattered pieces to this constitutional puzzle that deserve further scholarly attention.
This Article unearths another obscure schism in the thread of special protections to the home in the Fourth Amendment. While the Court’s solicitude of home protections remain unassailable in rights involving speech, smut, gods, guns, soldiers, sex and self-incrimination, notwithstanding takings, there has been an inconspicuous rollback—a doctrinal regression—of the home’s zone of special protections under the Court’s search and seizure doctrines. There, the Court has developed a patchwork of exceptions sanctioning greater government intrusions in the home. These exceptions that weaken home protections in the Fourth Amendment stand in stark contrast to the Court’s ironclad consistent homebound doctrines that shield the home in the rest of the Bill of Rights. Why, then, has the Court partially retreated from this special zone of rights and interests under its search and seizure doctrine, but nowhere else in the Bill of Rights?
This Article is the first scholarly project to comprehensively catalogue and systematically survey the entire homebound Bill of Rights to reveal this doctrinal and textual discord presented by the Court’s partial backsliding from home protections in its searches and seizures jurisprudence. The Article excavates a variety of reasons and explanations for the notable discord and concludes by raising some theoretical and conceptual considerations for the doctrinal retrenchment