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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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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Research Interests: Constitutional Law, Courts, Legal History, Politics, Federalism, and 14 moreJudicial review, Supreme Court, Skepticism, Social Science Research Network, Human nature, Legislation, Constitution, Statutory Interpretation, Judicial Activism, Equal protection clause, Judicial Restraint, Special Interest Group, Commerce Clause, and Due Process clause
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In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is... more
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in impor...
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... Mercer Law Review for "Economic Man and Literary Woman: One Contrast," 39 Mercer Law Review 867. ... New York: St. Martin's, 1981. VJA Dusty Rhodes and Sandra McNeill, eds., Women against Violence against Women. London:... more
... Mercer Law Review for "Economic Man and Literary Woman: One Contrast," 39 Mercer Law Review 867. ... New York: St. Martin's, 1981. VJA Dusty Rhodes and Sandra McNeill, eds., Women against Violence against Women. London: Onlywomen Press, 1985. Page 16. Page 17. ...
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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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In this essay I seek to understand why many of the 2011 Occupy Wall Street protestors embraced Bartleby, the dysfunctional scrivener of Melville’s Story of Wall Street, as a fellow traveler in their movement. I first situate Bartleby the... more
In this essay I seek to understand why many of the 2011 Occupy Wall Street protestors embraced Bartleby, the dysfunctional scrivener of Melville’s Story of Wall Street, as a fellow traveler in their movement. I first situate Bartleby the Scrivener in the context of classical legal thought, expanding on some claims put forward in a seminal article on Bartleby by Brook Thomas in the 1980s. I then argue that Melville’s scrivener suffered from a psychic and political condition I call “consensual dysphoria.” Bartleby suffered from consensual dysphoria in extremis. The OWSers recognized this—thus their otherwise inexplicable empathic bond with him. Consensual dysphoria, as depicted by Melville and as suffered by Bartleby, I will urge, is a part of the debilitating legacy of classical legal thought that persists today, and in an even more developed and exaggerated form.
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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 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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En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment’s Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States1 gave short shrift to one of Congress’s... more
En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment’s Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States1 gave short shrift to one of Congress’s primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose—or function—of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children.2 In other words, DOMA aims to minimize irresponsible heterosexual sex and procreation, thereby limiting the number of children born outside of marriage and minimizing the dependency of single parents and their children on state assistance. As a number of courts—whether state or federal, and whether operating under state or federal constitutional guarantees3—have done in reviewing DOM...
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Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this... more
Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar — perhaps par excellence — of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law — particularly for critical thinking about private law — from that ...
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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's 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's 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's "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's sexual desires but rather women's 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 des...