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Abstract:
This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to contrast literature, portrayed as textured, nuanced, and emotionally resonant, with law, portrayed as a dessicated, abstract world composed mainly of rules. Rhetorically, this contrast constructs and entrenches a highly contestable definition of law's boundaries even as it purports to describe them. Worse, by assuming that law is an independent space mostly bounded by rules, and that literature is a separate and contrasting space, the strategy suggests a rather impoverished view of interdisciplinarity. In this view, interdisciplinary work is work that crosses borders; if what is inside the realm of literature were already inside law, there would be nothing interdisciplinarity could accomplish.

Although Weisberg inverts the usual rhetoric of opposition, and instead draws parallels between law and literature, his work is nonetheless reminiscent of that part of law/literature rhetoric that associates almost everything worth having - emotions, sensitivity to context, respect for variety and otherness in human nature - outside of law, while associating law itself with abstraction, cerebration, blindness, and moral indifference. Despite this problem, I argue, Weisberg's project exemplifies one of the more admirable ambitions of the law/literature enterprise, the ambition to make lawyers and judges explicitly aware of, and accountable for, the ethical dimensions of their conduct. Whether right or wrong, Weisberg's infamous analysis of Billy Budd suggests that moral values inhere in the law itself and therefore do not have to be hijacked from a separate domain located "outside" of law.

Law and literature, interdisciplinarity, interdisciplinary

Abstract:
This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation no property.

This paper seeks to describe the legal category no property. Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in the hopes of describing no property imaginatively. The novel illustrates the ways in which legal states that deprive persons of the ability to own or to control property - slavery and coverture - render persons susceptible to the power of others. Notwithstanding enactment of Married Women's Property Acts and the end of slavery, many today - such as the homeless and the extremely poor-remain in a position of comparable legal and social vulnerability. For persons so situated, the freedom-enhancing aspects of property are more or less beside the point. What they experience as a legal matter is, to recur to some older terms, duties, no-rights, liabilities and disabilities. These iterative negatives together constitute a status, a status in which it becomes possible for them to be seen as, essentially, objects, not subjects.

Effective regulatory schemes take existing schemes of property rights into account. No property is such a scheme. Because it consists so largely of negatives, of rights and powers that people do not have, it is difficult to recognize it as such. But it is as serious a constraint on regulatory possibility as, say, the ownership rights of those affected by limitations on the cutting of old growth forests or by required reductions in factory emissions. If we want to do something about the poor and the homeless - whether it be banishing them to special zones or targeting services to them - we will need to understand the legal situation in which we find them. For this reason, I argue, we must continue to seek to understand and define the legal category of no property.

Property, law and literature, homelessness, coverture, Married Women's Property Acts

Abstract:
This essay introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth, scope, and the cause of the problem (e.g., is homelessness a product of individual weakness or of structural forces beyond any individual's control?) These questions, it turns out, are both extremely difficult to answer and, more disturbingly, not terribly helpful. Even the strongest case that homelessness is "caused" by institutional forces and not personal failure seems unlikely to lead either local or national government to commit the resources necessary to "solve" the underlying problem if that problem is, say, a failure of the housing market to produce affordable rental units or a failure of the job market to produce entry level jobs that pay decently.

This essay argues that homelessness can be understood another way, as a problem not of poverty but of property - or, more accurately, a problem of "no property." "No property" is, I suggest, a distinct and insufficiently understood legal category. Just as property is not one right or attribute but many - a complex "bundle of sticks," to use some old terminology - "no property" is also a complicated accretion of legal relations (or the lack thereof). As non-owners in a world of owners, the homeless have a multitude of duties to respect the rights of others, and liabilities to the powers of others, without themselves having property that would give rise to duties and liabilities on the part of others toward them. The homeless are thus seriously vulnerable to the effects of owners' actions (and inactions).

It is with these iterative no rights, disabilities, and vulnerabilities that effective public policy must deal. In a world of "no property," to take just one example, an anti-camping ordinance will be flat out ineffective to stop public sleeping if homeless people have no rights to be in private spaces. Effective interventions, either to regulate unwanted behaviors or to improve the conditions under which the homeless live, must take account of the legal disabilities affecting the options open to those who are homeless. For this reason, this essay argues, we should try harder to understand "no property" as a legal category.

Homelessness, property

Abstract:
People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, Kelo v. City of New London and Lingle v. Chevron U.S.A. Inc. This symposium Article argues that the significance of Kelo and of Lingle lies less in what these two cases actually decided than in the extent to which the cases engage, or fail to engage, cultural debates over the function of property in contemporary society. As is developed in Part I, the widely-publicized facts of Kelo raised emotionally and politically charged issues implicating the state's role as a guardian of private property rights. Notwithstanding its controversial political implications, however, Kelo turned out to be a fairly easy legal case from a technical standpoint for, in the majority's view, two hundred years of precedent established law unfavorable to the plaintiffs' claims. By focusing on this law and failing to address directly citizens' expectations about the extent to which the Constitution should protect property rights, the Court evaded involvement in ongoing public dialogue about property and government. For this, it will not be soon forgiven.

Part II argues that the Court was far more effective in Lingle than it was in Kelo in engaging directly with public unease about the relationship between government and private property. Lingle returned takings law to its central question, that of the distribution of the burdens of regulatory interventions. By suggesting that sometimes landowners might be disproportionately burdened by otherwise lawful regulation, the Court acknowledged that takings cases send a message about who matters - and whose property matters - when the government seeks to promote what it regards as the public good. In returning takings jurisprudence to its heart in fairness and justice, without attempting to set forth a definitive test for determining what is fair and just, the Court left open the possibility of a conversation between it and the public about what the Takings Clause will mean in the future. Since the public cares about property, this is an important conversation to enable.

Part III describes the implications of Kelo and Lingle. In likely further litigation testing the scope of local governmental power over property uses, courts will need to confront squarely one influential public understanding of property rights, an understanding that envisions property as a domain of freedom - freedom to act as owners choose, freedom from regulations limiting owners' liberty to so act. While academics have challenged this vision for some time, there is no doubting its rhetorical power or political popularity. What happens next in the takings arena will depend a great deal on the success with which both courts and local legislative bodies engage this understanding of the role of property in American constitutional culture.

takings, takings clause, eminent domain, regulatory takings, Kelo, Lingle, property rights, popular constitutionalism, Fifth Amendment, public use

Abstract:
This book review of anthropologist Kim Hopper's Reckoning with Homelessness takes up the themes in Hopper's book that bear most on how we are likely to confront - or maybe avoid confronting - the existing problem of homelessness. The review first considers how the social science world has studied homelessness - both its generation of facts about homelessness and its framing of the debate over individual as opposed to structural causes of homelessness. While this debate continues to this day to structure much thinking about homelessness, it is not entirely obvious why it remains so powerful. The line between the individual and the structural is extremely unstable, and it is not at all clear that the identification of structural factors such as the failure of the market to produce decent low-cost housing will produce remedial governmental intervention.

After briefly considering how the individual/structural debate has interacted with, or, as Hopper argues, failed importantly to interact with, other important debates about poverty and race, the review takes up Hopper's provocative suggestion, also echoed by legal advocates, that only by studying wealth - and its reaction to homelessness - can we understand poverty. Without dismissing the potential importance of studying the wealthy and their attitudes, the review suggests a slightly different avenue of exploration. I argue that at least part of what confounds understanding of homelessness is that it embodies a difficult-to-fathom state of what might be called no property. Ethnographies focus on who the homeless are, but the defining attribute of homelessness consists of what those people do not have. No property is a distinct legal and social state of being. In this legal state, one can plausibly seek rights to sleep outdoors and panhandle aggressively (rights, that is, to be homeless effectively) but one is not entitled to housing or public welfare benefits (rights, that is, to have property). To understand homelessness, we must at least confront the complexities of this new category.

Property, poverty, homelessness

Abstract:
Legal scholarship has increasingly borrowed from other, non-law, disciplines; as it has done so, legal scholars have taken increasing interest in the possibilities and limits of interdisciplinarity. Tellingly, virtually all discussions of interdisciplinary scholarship call upon two related metaphors. The first is a metaphor of border-guarding. This is an immigrant/emigrant scholarship, employing tropes of insiders and outsiders, residents and aliens; it relies on images of imperialism, scavenging, and parasitism. The second metaphor is one of fidelity. This metaphoric realm employs tropes of seduction, enchantment, betrayal, faithlessness and abandonment, calling on images of marriage, adultery, and divorce. The two metaphors are linked by a common theme, the theme of boundaries that can be respected or crossed.

Border metaphors raise questions about the legitimacy of discipline-traversing scholarship. What does a scholar from one discipline need to know in order to 'employ' another discipline? Can we really learn another discipline (late in life? without formal training?)? And if we cannot, what is it we borrow from the other discipline? Facts? Theories? The formulation of questions or the organization of research problems? What kinds of interdisciplinary work represent 'rigorous' scholarship? Most importantly, what are the underlying ways in which we categorize knowledge?

Curiously, much of the writing on 'law and' ignores these questions and assumes the integrity of 'law,' 'philosophy,' 'history,' 'literature' and the like as separate disciplines. This assumption of separateness underlies some of the more powerful critiques of attempts by legal scholars to enlist other disciplines in the service of legal arguments. Critiques of law-and-history, law-and-philosophy, and law-and-humanities share a common structure. In each area, the non-law discipline is presented as having serious, 'rigorous' standards. Legal scholars are presented as lacking the knowledge, commitment, background, interest, energy, and common decency required to learn those standards, so their work does not conform to them. Indeed, legal scholars are said to 'abuse' the non-law discipline, enlisting it toward ends for which it is not suited. These critiques invoke both the border-guarding and fidelity metaphors; legal scholars are accused of transgressing into foreign domains they do not truly understand, and also of adulterous style couplings serving solely the selfish needs of the lawyer.

These arguments seem to assume that there really are ends to law or legal scholarship and that those ends really are different from those of philosophy or history. In the compare-and-contrast strategy of interdisciplinary critique, law is depicted as a place, a bounded space, filled only with rules. Nowhere is this more true than in the case of law and literature, where 'law' tends to be portrayed in stereotypical terms as wholly technical, analytical, nonemotional and-above all-doctrinal. This picture is so hackneyed, so caricatured, as to suggest an unacknowledged rhetorical investment in keeping law's borders drawn tightly around the domain of rules. Such an investment is of great cultural significance, revealing a curious attachment to a vision of law that ostensibly has been discredited in the U.S. for over fifty years, the Langdellian vision of law as autonomous.

law and literature, law and philosophy, law and history, interdisciplinarity, interdisciplinary

Abstract:
This paper argues that the law and literature movement has failed to generate the excitement it is capable of generating within the American legal academy because it has not been sufficiently interdisciplinary, or - to be more precise - it has not been very thoughtful about interdisciplinarity. At the same time, it has had less influence than it might have had with actual lawyers because it has seemed too interdisciplinary, in the sense of not having a lot to say about the aspect of law with which most lawyers are most concerned: doctrine. There is less of a paradox here than might appear. Law and literature scholarship has not questioned what the category law consists of and has thus tended inadvertently to reinforce the notion of law as autonomous.

Before developing this critique in more detail, I state a separate critique, which may be a helpful backdrop. This background critique is that the law and literature movement has tended to undermine itself from within. If there is a single movement here, it is certainly a very fractured one. The concerns of its humanist, hermeneutic, and narrative strands are quite disparate. This is a movement of many methodologies and conclusions. The multiplicity of approaches and concerns that leads some to see literature as a source of nearly endless possibilities may lead skeptics to dismiss law and literature as an empty vessel, a phrase devoid of content.

While the interdisciplinarity critique and the background critique are not logically connected, the critiques may not be wholly unrelated. Each strand of the law and literature movement seeks to demonstrate that literature has something to offer to law. The less attention is paid to what law is, for purposes of this comparison, the easier it is to make the case for literature; the less law already includes, for example, the more obvious it is that it requires the supplementation of literature. Assessing connections requires understanding what lies on either side of the and bridge, but this is precisely the terrain that is not being carefully mapped. Both critiques, then, point to a single problem: by treating law's boundaries as both necessary and natural, the law and literature movement seems to beg questions it is ostensibly committed to answering, such as whether it makes sense to use the outside discipline of literature as a tool to examine what is or could be inside law and, more importantly, how we define what is internal and external to law as a discipline.

A more fruitful exploration of interdisciplinarity in law and literature does not require the delineation of the true and real boundaries between law and literature. It cannot, for precisely the reason that law and literature are not natural categories describing disciplines that are just there, pre-existing and pre-defined. Our understanding of the categories may be as much a product of our attempts to compare and contrast them as of any quality that they have apart from the context of those contrasts. And the interesting question is not whether any particular definition of the categories is true, but what it might tell us about our aspirations for law, and for the place of law in our culture.

law and literature, interdisciplinarity, interdisciplinary, law and narrative, narrative, hermeneutics

Abstract:
The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, and it seems likely to preoccupy academics (and their students) for at least another generation.

This paper claims that debates between informational and progressive scholars, despite their prominence, are not adequately understood. Such debates currently center on whether the right to exclude is fundamental to property law. This issue plays out doctrinally in arguments over whether trespass is property’s paradigmatic rule, and metaphorically in arguments over whether exclusion rights, as opposed to human relationships, lie at property’s “core.”

By contrast, this paper suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinctive field of study. Rather than pursuing unproductive controversies over what lies at property’s “core” and “periphery,” this paper presents a different metaphorical contest as a more accurate account of the issues in modern property law. Information theorists employ the metaphor of property as a machine - a machine that, with minimal tinkering, has produced a good-enough social ordering and will generally continue to do so. This mechanical metaphor is inconsistent with progressive theorists’ view of property as a conversation. The progressives’ conversation metaphor expresses the view that we need to continually question whether the system is good enough, that we need to openly debate the quality of the human relationships that property produces, and that we must revise property rules that fail to fulfill our underlying value commitments. This metaphorical contest is important doctrinally because it reflects conflicting views about whether we can ever unreflectively trust property rules to express our values. “Machine” and “conversation” suggest very different visions of how much faith we should have in our existing system of property, of whether it is good enough, and of whether we can trust ourselves to improve it.

Property, Exclusion, Right to Exclude, Trespass, Information Theory, Progressive Theory, In rem, Metaphor, Core, Periphery

Abstract:
The role of lawyer is widely understood by law students and practitioners as the entry into a simplified ethical world, one in which ordinary moral principles are cleared away by the hegemony of doctrines unique to the practice of law. This understanding is supported by and may originate in a particular view of lawyers' professional responsibility, a view in which a lawyer's ethical obligations as a professional are defined largely (though not entirely) by specialized legal rules - principally the codes of ethics and other rules that regulate lawyer conduct - and the policies thought to underlie those rules.

There is nothing natural or even intuitive about defining lawyers' ethical obligations primarily in terms of compliance with rules. Indeed, there has long been a debate about whether black letter codifications can possibly serve as an adequate platform for ethical deliberation. But to acknowledge this debate is not to argue that there is some alternative way of thinking about lawyers' professional responsibility that is truly or actually natural. All fields of law must be constructed somehow. What is worth consideration is how a field is constructed in one way rather than another, and the effects of any given construction.

Our thesis embraces two claims. The first claim is that within the traditional law school curriculum, law is constructed as a relatively autonomous discipline distinguished from other disciplines, including philosophical ethics, and that the discipline of law is subdivided into relatively separate fields. Thus, notwithstanding more than a century of developments in legal education and claims of progress in our understanding of law - notwithstanding the academy's apparent absorption of influences ranging from legal realism to critical legal studies to feminist jurisprudence to critical race theory to a host of law and analyses - students continue to be educated into a relatively Langdellian world view. The second claim is that within the traditional law school curriculum, Professional Responsibility is constructed as its own field of law. As a consequence, law students learn to think of law generally, and Professional Responsibility specifically, as disengaged from moral considerations.

Part One of the article takes up the questions how and why the Professional Responsibility field has been traditionally structured in the law school curriculum on a legalistic model, i.e., as but another field of law separated from ordinary moral concerns. In Part Two, we point out that there is nothing about the concept of law that requires its separation from ordinary moral reasoning. We suggest that when law is constructed so as to be saturated with moral considerations, then the professional work of lawyers, and hence their professional responsibilities, can be understood to be similarly saturated. In Part Three, we explore some of what is at stake in our decisions about how to construct Professional Responsibility. We consider both the powerful allure that the traditional construction has for law students and practitioners and the construction's remarkable resiliency in the face of repeated, multidimensional assaults on the legalistic model.

Abstract:
This Essay examines expressive theories of law. In two new books, property theorist Joseph Singer condemns the dominant, absolutist, conception of property for failing to express the full range of our values; he suggests its replacement with a model, epitomized by the generous commitment of Malden Mills owner Aaron Feuerstein to rebuild his plant after a catastrophic fire, that expresses not just the powers but the obligations that flow from ownership. After questioning how we interpret what law says or expresses, the Essay asks how we should understand expressivist projects such as Singer's. Should we characterize expressivists as idealists, throwing one concept (ownership obligates) against another (ownership is freedom) in the naive hope that long-entrenched beliefs and understandings will be displaced by the simple demonstration that other beliefs and understandings are plausible? Or should we see them instead as meaning entrepreneurs, who cleverly trade on intuitively appealing images such as that of Aaron Feuerstein to disrupt conventional associations between, for example, property and selfishness?

property, expressive theory of law, ownership, obligation, entitlement, meaning entrepreneur, transparency

Abstract:
This essay addresses the theme of guilt in law and literature from the law side. It argues that the legal academy's flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. This is a methodological anxiety. It presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The second anxiety is substantive. It presumes law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is "interdisciplinary" about the law and literature enterprise. Developing an honest form of "interdisciplinarity" will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.

law and literature, interdisciplinarity, interdisciplinary