Topics

The American carceral state has grown exponentially over the last six decades, earning the United States a place of notoriety among the world’s leaders in incarceration. That unprecedented growth has been fueled by a cultural addiction to carceral logic and its tools—police, prosecution, jails, prisons, and punishment—as a one-size-fits- all response to the myriad vectors of socioeconomic disadvantage that drive people into the jaws of the criminal legal system. The system operates in the shadow of endemic racial inequality, feeding on the conflated amalgam of race, criminality, and dangerousness. For those who experience the worst of what the system has to offer, it is little more than a purveyor of harm and injustice, deepening the inequality that characterizes America.

The modern public defender was born before the rise of mass incarceration and criminalization and has evolved ever since, from helpmate to the criminal system to a zealous advocate for the accused. The last major evolutionary turn transformed public defenders into a bulwark against America’s penal impulses, defending people against the state while working holistically to address the range of legal and social needs that drive criminal legal system involvement. Recent years have witnessed a growing willingness to grapple with abolition as a strategy and vision, and with it an increasing recognition that being a bulwark—while an essential feature of public defense—is simply not enough to upend the status quo. In this Article, I contend that public defense can and should embrace an abolitionist ethic. I do so because I believe that an abolitionist ethic orients the work of public defenders more pointedly at the interlocking structural causes that lead people into the clutches of the criminal system, and it directs sustained energy at its oppressive nature, ultimately benefitting the people and the communities that public defenders serve.

What does an abolitionist ethic mean for a public defender? Fundamentally, it is a merger of retail-scale zealous criminal defense with wholesale structural change aimed at dismantling the criminal system. Beyond that, it means building a world in which police, jails, and prisons are obsolete. And it employs frameworks and advocacy tools that are accessible to public defense. A public defender’s abolitionist ethic combines a racial justice lens informed by Critical Race Theory to understand the forces that animate the criminal system; zealous holistic defense of individuals infused with the spirit of resistance lawyering; movement lawyering to support social justice advocacy aimed at reducing the size, scope, and scale of the system on the way to dismantling it; and organized efforts to render the carceral state dispensable.

Shifting the paradigm of public defense and the work of public defenders is no easy task. Indeed, it is laden with challenges. Inadequate funding, the skepticism that travels with abolition, the sheer difficulty of criminal defense work, and the seemingly intractable nature of the criminal system can make the turn to an abolitionist ethic seem like a fruitless pursuit. For the public defender, those challenges cannot be the end of the story. The lessons that flow from the centuries-long struggle for racial justice, where abolition was born, teach us that—as organizer and activist Mariame Kaba says—“hope is a discipline.” By nature, public defense work rests on that discipline. Defenders fight against long odds in an unforgiving system. They do so for a host of reasons, among them the hope that what they do will make a difference in the broader fight for the dignity and humanity of those they represent. Defenders must draw on that same sensibility in pursuit of the world that those whom they defend—and all of us—deserve.

First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.

The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.

Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.

Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.

A specter is haunting The Hague—the specter of American federalism. On July 2, 2019, the Hague Conference on Private International Law finalized the Hague Judgments Convention. The Convention seeks to establish a global floor for judgment recognition and promote seamless recognition and enforcement of judgments between signatories. Although virtually all observers in the United States recognize the value and importance of ratifying the Convention, stakeholders cannot agree on how to implement it: by federal statute or by uniform state law. Proponents of a so-called “cooperative federalism” approach to implementation, principally led by the Uniform Law Commission (ULC), have previously derailed U.S. ratification of the Hague Convention on Choice of Court Agreements (COCA) by insisting that principles of federalism required implementation through uniform state law. This argument is wrong as a matter of doctrine and policy. It is time to put it to rest once and for all.

This Note is the first piece of scholarship to squarely address the “cooperative federalism” argument as applied to the Hague Judgments Convention. It makes two principal arguments. First, it identifies the principles that ought to guide the implementation of a treaty on foreign judgments recognition and concludes that federal implementing legislation optimizes these interests. Implementation primarily by
uniform state law is inferior and poses serious disadvantages. Second, the ULC’s primary legal objection to the implementation proposal for the COCA outlined by the State Department—that the doctrine of Erie Railroad Co. v. Tompkins prohibits federal courts sitting in diversity jurisdiction from applying federal rules of decision prescribed by federal statute—was meritless in 2012, and it is meritless now. If any objections remain to implementing the Judgments Convention by federal statute, they are about turf and ideology. To the extent that the relevant stakeholders want to accommodate those political objections, this Note concludes by briefly outlining areas for compromise.

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt. This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harms. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.

Supreme Court “companion cases” are decisions released on the exact same day that address substantially similar legal or factual matters. The list of consequential Supreme Court decisions that the Justices have resolved as part of a set of companion cases is lengthy: It includes NLRB v. Jones & Laughlin Steel Corp., Korematsu v. United States, Brown v. Board of Education, Terry v. Ohio, Roe v. Wade, Miller v. California, and Gregg v. Georgia. Although it is not surprising that important topics like civil rights and abortion generate significant amounts of litigation, the Supreme Court’s practice of conducting plenary review of multiple similar cases and issuing separate decisions resolving each one should give us pause. The Justices have a number of other procedural tools available for disposing of similar matters for which parties seek review. Options include granting certiorari for only one of the cases, vacating and remanding some of the matters, issuing at least one summary disposition, consolidating the cases, or releasing the decisions at very different times. The Court sidesteps these alternative approaches when it issues companion cases. Yet previous scholars have not devoted adequate attention to this practice as a distinct procedural mechanism, with unique characteristics that may motivate its usage. This Note fills that gap by studying some of the Court’s most famous companion cases and taxonomizing them into four categories—coordinate hedges, contested hedges, extensional reinforcements, and applicative reinforcements—based on factors including the voting behavior of the Justices and the constitutive decisions’ relationships to each other. The Note leverages that taxonomy to frame its analysis of why the Court chose to issue companion cases given all the procedural alternatives. This Note concludes by discussing how the practice of deciding certain sorts of companion cases—in which a majority of the Justices agree that they should resolve similar cases in ostensibly contradictory ways—may improve the Court’s legitimacy by accentuating its responsibility and capacity to collaboratively identify subtle distinctions between comparable cases that compel different outcomes.

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

In the Spring of 2020, a panel of the Sixth Circuit Court of Appeals in Gary B. v. Whitmer penned an opinion recognizing a fundamental right to basic minimum education. While this decision was subsequently vacated pending en banc review and then dismissed as moot following a settlement, it stands as a bellwether of the long-overdue march toward recognition of positive rights under the Constitution. A series of Burger Court opinions attempted to calcify the notion that the Constitution is a “charter of negative liberties,” most famously DeShaney v. Winnebago County Department of Social Services and its progeny. These opinions erected three key doctrinal barriers to recognition of positive rights: 1) that a cognizable due process claim must arise from direct, de jure state deprivation; 2) that separation of powers points towards legislatures, not courts, as the appropriate bodies for curing social and economic ills; and 3) that furnishing equality is not a proper aim of due process.

But substantive due process doctrine has transformed over the past few decades. Most notably in a series of cases protecting the rights of LGBTQ+ individuals—Lawrence v. Texas in 2003, United States v. Windsor in 2013, and Obergfell v. Hodges in 2015—the doctrines of due process and equal protection have fused so intimately as to have revealed a new doctrinal structure, which Laurence Tribe has termed “equal dignity.” The doctrine of equal dignity has profound implications for the recognition of positive rights. Its theoretical tenets undermine the doctrinal elements which have traditionally steered federal courts away from recognizing positive rights. This Note argues that the case of education—considered in light of the post-Obergefell substantive due process doctrine—dismantles each of the traditional pillars of negative-rights constitutionalism, paving the way for recognition of a positive right to a basic minimum education. More broadly, Gary B. demonstrates that courts are now doctrinally equipped to recognize positive rights within the framework of modern substantive due process, a development that has radical implications for Fourteenth Amendment jurisprudence and the project of constitutional equality.

In 2044, the United States is projected to become a “majority-minority” country, with people of color making up more than half of the population. And yet in the public imagination—from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World—the future is usually envisioned as majority white. What might the future look like in year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color—Afrofuturists and Critical Race Theorists—have imagined the future. What can we learn from Afrofuturism, the term given to “speculative fiction that treats African-American themes and addresses African-American concerns [in the context of] techno culture?” And what can we learn from Critical Race Theory and its “father” Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?