- Robin West teaches at Georgetown University Law School. She teaches graduate seminars in Jurisprudence and Law and H... moreRobin West teaches at Georgetown University Law School. She teaches graduate seminars in Jurisprudence and Law and Humanities. She writes in Law and Literature, Legal Philosophy, Feminist Legal Theory and Civil Rights Law.edit
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Real Rape. By Susan Estrich. Cambridge: Harvard University Press, 1987. ... "Statutory Rape: A Feminist Critique of Rights Analysis." By Frances Olsen. Texas Law Review 63 (October 1984): 387-432. ...... more
Real Rape. By Susan Estrich. Cambridge: Harvard University Press, 1987. ... "Statutory Rape: A Feminist Critique of Rights Analysis." By Frances Olsen. Texas Law Review 63 (October 1984): 387-432. ... "Jurisprudence and Gender." By Robin West. University of Chicago ...
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In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship... more
In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship and national and international legal advocacy spanning a thirty year career in public life, she has largely succeeded in doing so. Most visibly, from within law\u27s perspective, MacKinnon invented a new plot by fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law\u27s heart. As is now well recognized, she did so in a two step argument: She first exposed the relative emptiness of a formal understanding of the ideal of equality that seeks solely to rationalize the treatment of men and similarly situated women-an approach which, virtually by definition, does little but provide a modest boost for women who are already relatively well-off. She then provided an alternative, substantiv...
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Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified... more
Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The constitutional faithful argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called constitutional sceptics. Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple interpretations, and in the...
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In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned... more
In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practi...
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The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps,... more
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators,...
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First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor... more
First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a mor...
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The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good... more
The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide protection of the laws.” If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach
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Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current... more
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point. Thus, I think Levinson\u27s claim is essentially right, and I would like to make two friendly amend...
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This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some... more
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon\u27s critique of desire, which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women\u27s sexual desires but rather women\u27s sexual choices to engage in sex -- of any description -- that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we desire, or the ...
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The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to... more
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment. The court did so, however, b...
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Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence... more
Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our negative right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory. Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the crimin...
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In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity... more
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understa...
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and... more
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law ...
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Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the... more
Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.
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The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy... more
The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why? The first part of this piece discusses tort law during Gatsby’s decade – the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs – and only partly and fitfully replaced by compensation schemes
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Love and rage, I believe, motivate feminist work in law, both in advocacy and in the academy. Love and rage not only move us to action, but they also inform a feminist sense of justice and of morality. This emotional root alone of... more
Love and rage, I believe, motivate feminist work in law, both in advocacy and in the academy. Love and rage not only move us to action, but they also inform a feminist sense of justice and of morality. This emotional root alone of feminist work in law renders it ...
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we... more
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making - adjudication - that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.
Research Interests: Law, Legal Profession, Law and Society, Political Science, Economic Justice, and 14 moreLegal Ethics, Book Review, Social Science Research Network, Law and Morality, Social Values, Public Interest, Dilemma, Code of Ethics, Adversarial System, Professional Responsibility, Ideal Ethics, Zealous advocacy, Role Morality , and William Simon
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This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three--pronged rights critique--that U.S. constitutional rights politically insulate and... more
This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three--pronged rights critique--that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community - was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development. The rights critique continues to be relevant today, because Obama--era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of rights about which the rights critiques have complained. For one, Obama--era rights are more lethal than the original rights targeted by the rights critique. But most importantly, several Obama--era rights are best described as defensive rights, which allow the holder to withdraw from the...
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Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current... more
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amend...
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Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally... more
Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" assumption: because each one of us is rational, each one of us is not only competent to, but best-equipped to formulate and act on his or her own individually held conception of the good life. We are each capable of deciding for ourselves what to think, believe, and do within the sphere of self-regarding behavior. We all share in this capacity eq...
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The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book - albeit briefly - so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political... more
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book - albeit briefly - so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislator...
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How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward... more
How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of Richard Weisberg, White has very little competition within the movement itself. This article explores and criticizes that vision. Second, it puts forward an alternative account of how we form communities, how we might form better ones, and how law would function within them.
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The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a... more
The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to thwart the democratic outcome and a profound harm to democracy-an element of the crime, namely the act, which in this case has to be misstating the law, cannot be borne out. The indeterminacy thesis, if true, logically precludes the moral or legal condemnation of a certain sort of criminality and venality -- that of the official who intentionally and with harmful consequences violat...
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Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the... more
Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against...
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The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally... more
The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms. So, for example, our freedom to hire whomever we wish to hire, and then our freedom to fire them at will is compromised by our obligation under the Civil Rights Acts of 1964 (2) to not discriminate against candidates for employment or for promotions on impermissible grounds of race, sex, ethnicity, age, or disability, at least...
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Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may... more
Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough. In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it. After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be no...
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The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to... more
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment.The court did so, however...
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I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and... more
I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm's legality implies nothing about its morality. To reverse the classical natural lawyer's formulation of the issue, if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to understand that simple truth, we must understand that the...
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Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various... more
Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts – the adjudicated Constitution – or what I propose to call the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations. My claim in this chapter is that the legislated, rather than the adjudicated, Constitution can more plausibly be read as guaranteeing an equality that is supportive of progressive goals rather than in tension with them. Programmatically, I will ...
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Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul... more
Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we should all engage in constitutional debate. We should stop relying on the courts to shoulder the burden of resolving the constitutional consequences of our political decisions. According to this argument, our methods of resolving moral issues in t...
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Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of "liberal legalism" against a group of modern critics who have only one thing in common: their use of either particular pieces of... more
Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of "liberal legalism" against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the "misunderstood relation" to which the title refers. At times, Posner suggests that this is the major thesis of the book-he simply wants to rescue literature from its misuse by critics of legalism. By the end of the book, however, it is clear that Posner has no real passion for his claim that great literature is never really about law, that it is always about more exalted things, and that its use in legal or political ar...
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The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion... more
The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The essay then explores the possibility of creating a right to legal abort...
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Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from... more
Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from Northrop Frye's "Anatomy of Criticism," Professor West first details four literary myths that combine contrasting world visions and narrative methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential legal theorists within these traditions. Finally, Professor West argues that recognizing the aesthetic dimension of legal debate frees us to realize our moral ideals.
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The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements,... more
The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements, but particularly the latter, scholars have focused on questions regarding the nature of law, culture, and interpretation, and neglected substantive jurisprudential claims regarding law sometimes found in literature and other cultural texts. It argues that this emphasis on theory over substance is unfortunate. To illustrate, the piece examines a false rape claim brought against some university athletes in Durham, North Carolina in the summer of 2006, and a novelistic depiction of sexual exploitation in Tom Wolfe's popular novel, I Am Charlotte Simmons. The novel was repeatedly invoked by commentators and bloggers when the charge was first made and widely believed, to make the case that the Duke campus was drenched in a culture tolerant of rape. ...