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Abstract:
How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

jurisprudence, legal theory, moral theory, political theory, property, justice, rights, fairness, morality, democracy

Abstract:
Now that same sex marriages have been occurring in Massachusetts for almost a year, the issue of interstate recognition is no longer merely a theoretical issue. Most scholars have either argued that the full faith and credit clause does not mandate recognition of same sex marriages or that it does so for limited purposes or for marriages of Massachusetts residents but not nonresidents seeking to evade their restrictive home state marriage laws. This article argues that the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the "effects thereof" language of the full faith and credit clause. Rather than focusing on the rights of same sex couples to have their valid Massachusetts marriages recognized elsewhere, we should focus on the obligations inherent in the marriage relationship. Both Congress and the majority of states have passed so-called Defense of Marriage Acts (DOMAs). If these laws are constitutional, they effectively authorize partners in same sex marriages to relocate to other states and evade their obligations as spouses and parents under Massachusetts law. Those states have made themselves havens for fleeing debtors. Using traditional and modern choice-of-law analysis, as well as analogies to the law of divorce and corporate governance, this article argues that the full faith and credit clause should be interpreted to require recognition of marriages that are valid where celebrated to avoid inconsistent obligations, to allow free interstate travel and commerce, and to prevent the states from authorizing married partners to walk away from their concededly valid and persisting obligations under Massachusetts law.

same sex marriage, full faith and credit, property, sexual orientation, discrimination, civil rights, feminism

Abstract:
The last three decades have witnessed a remarkable resurgence of the American Indian nations in the United States. The foundation of this resurgence has been the exercise of self-government - sovereignty - by the more than 560 federally-recognized tribes in the U.S. In this study, we explore legal and economic dimensions of current perceptions of and debates over the nature and extent of tribal self-rule in the United States. Our objective is to clarify and illuminate by distinguishing between myth and reality. We address key threads of thought and assumption that pervade, accurately or inaccurately, discussions in the public policy arena. What emerges is a picture in which tribes do exercise substantial, albeit limited, sovereignty. This sovereignty is not a set of "special" rights. Rather, its roots lie in the fact that Indian nations pre-exist the United States and their sovereignty has been diminished, but not terminated. Tribal sovereignty is recognized and protected by the U.S. Constitution, legal precedent, and treaties, as well as applicable principles of human rights.

Intergovernmental Relations, International Development, Law and Legal Institutions

Abstract:
Do corporations have any social responsibilities? Those who have argued both sides of this debate have failed to focus their attention sufficiently on the common law rules governing market relations, especially the law of torts, contracts, and property. This article argues that these three foundational legal institutions are all premised on a fundamental obligation of attentiveness. Actors are obligated to attend to the likely consequences of their actions on others and refrain from actions that impose unreasonable risks of harm or which impose harms that individuals are entitled to be protected against. If this is so, then the argument that corporations cannot reasonably respond to vague duties of social responsibility becomes less powerful, given the pervasive duties of all market actors to consider whether they could justify their harm-producing conduct to an impartial decision maker - in other words, whether they could explain their actions as reasonable. We want clear rules to give us guidelines about what we are and are not allowed to do. But we also want a fuzzy edge of substantive standards to induce us to think before we act - to be attentive to the ways in which our actions affect others. Such fuzzy edges create appropriate incentives to think about the effects of one's actions on others and to consider the judgments that others would make about the justice or appropriateness of our own conduct, given the impact it will have on others who, after all, have equal rights. And we care so much about this that we have enshrined it in the basic law governing the market system.

Abstract:
We live in an age that glorifies the free market, small government and freedom of contract. Regulations are viewed as interferences with liberty and mandatory terms in contracts are derided as paternalistic interferences with autonomy. This free market model fails adequately to describe either our settled social values or our law. If we recognize the truism that there is no liberty without law, we will see that even our most libertarian states have comprehensive networks of regulations that set minimum standards for economic relationships. Rather than asking, Why interfere with freedom of contract? We would do better to recognize that all contracts are subject to minimum standards regulations and ask, What are the minimum standards for transactions of this sort? Some minimum standards merely set rules of the road; others, however, shape the contours of our way of life. We impose minimum standards regulations, not because government officials know better than individuals what is in their own best interest, but because we live in a free and democratic society and such a society promotes social relations of a certain type; this means that certain contract terms are out of line and certain contract demands must be taken off the table. Mandatory contract terms do limit our freedom to agree to contrary terms but we as a society demand those mandatory terms to create the legal framework of a free and democratic society that treats each person with equal concern and respect. We cannot create such a society by deferring to preferences, whatever they happen to be; some preferences cannot be indulged in a free and democratic society. Identifying appropriate minimum standards requires us to go beyond economic and legal theory by using useful aspects of moral and political philosophy, in conjunction with law, to shape the contours of our way of life.

property, freedom of contract, democracy, free market, political theory, moral theory, economics

Abstract:
Is there any difference between a preference and a value? When we say that some course of conduct is wrong, do we have any basis for backing up our claim? Some skeptics insist that statements about right and wrong are merely expressions of preferences - strong preferences, perhaps, but preferences nonetheless. To the contrary, I want to argue that values are not the same as mere preferences.

Efficiency theorists seek to maximize social welfare by satisfying preferences, whatever they happen to be. Postmodernists argue that all values are socially constructed and not founded in any supranatural order. If postmodernists and economists are right, then arguments based on considerations of justice and fairness are nothing more than rationalizations for power relationships. But I argue, in contrast, that no one really believes this. Critical analysis of skeptical arguments shows that we do make strong evaluations of human claims and that we reject certain preferences as illegitimate and not worthy of being considered in any moral calculus.

This article argues that skeptical doubts about the foundation of value claims are based on the value judgment that it is wrong for some individuals to impose their values on others. To the contrary, I argue that deference to others, no matter what they think, is an interpretation of what it means to treat others with equal concern and respect, but it is a faulty interpretation of that moral value. It assumes that we are free to indulge in any preferences we like and that it is no one's business but ourselves what we choose to believe. But this again is false. The assertion of a preference is not a self-regarding act. While it may be true that holding a preference may be a self-regarding act, asserting it against another and demanding that others defer to one's preferences is anything but a self-regarding act. And actions that affect others require justification. Values are different from preferences because they entail claims we make on each other. Critical normativity requires acknowledgment that human beings cannot live without such claims but that we are obligated to be careful about them. What we need is an attitude of restraint and caution combined with a fierce belief in justice.

This article illustrates this stance by telling three parables of justice, focusing on a town in Vichy France that saved thousands of Jews from the Nazis and the predicament of the main character in the movie Stranger than Fiction who sought to come to be the author of his own life.

legal theory, jurisprudence, political theory, moral theory

Abstract:
How should we think about property and property law both descriptively and normatively? This article suggests we consider this question by focusing on justifications for the estates system which limits the bundles of property rights in land that are recognized by the legal system. Thomas Merrill and Henry Smith have usefully argued that what they call the "numerus clausus" principle is justified because it lowers the information costs of property. While there is a lot to this argument, I suggest that if we look, not only at the traditional rules governing future interests but at all the statutes that regulate property and market relationships, as well as the social customs embodied in our property institutions, we can see that our legal system regulates the bundles of property rights that can be created and enforced, not only to improve efficiency, but to shape the contours of social relationships so that they comply with the norms defining a free and democratic society.

Some of those regulations attempt to prevent the negative externalities that flow from unregulated property bundles, such as the current financial crisis which appears to have been caused by the marketing of subprime, variable rate mortgages that were securitized into incomprehensible packages whose real market value hidden from purchasers who took unreasonable risks in buying them. But other laws regulating property bundles are based on norms that define our way of life, such as those that outlaw property relations characterized by feudalism, slavery, indentured servitude, or racial and religious restrictions on land ownership. Still others protect consumers by setting minimum standards for property and other market transactions.

This approach to property differs from the traditional alienability approach, the legal realist bundle of rights approach, the efficiency approach, the libertarian and liberal egalitarian approaches, and the personality, human flourishing, and virtue ethics approaches by framing descriptive and normative inquiries about property and property law by reference to the quasi-constitutional, structural role that property law plays in defining the appropriate contours of human relationships in a free and democratic society.

Abstract:
The relation between property and sovereignty is a contested one. Traditional norms identify the protection of both persons and property as two of the core functions of government. However, these twin goals come into conflict when the existence or exercise of a property right results in harm to others. Yet it can be argued that recognition of any property right necessarily harms others by excluding them from resources they may need for human life. How then do we determine when an exercise of ownership is legitimately viewed as a self-regarding act that does not affect the legitimate interests of others (and thus does not involve any negative externalities) and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests that deserve legal protection. Norms orient us, first, by telling us who is an owner and who is a non-owner with regard to any particular entitlement in a particular resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others and when they are entitled to think of their own interests alone. In so doing, property norms define which externalities we as a society must pay attention to, worry about, and seek (if possible) to prevent.

property, ownership, externalities, self-regarding acts

Abstract:
As part of a symposium celebrating the publication of the 2005 edition of Cohen's Handbook of Federal Indian Law, this article examines the Supreme Court's recent opinion in City of Sherrill v. Oneida Indian Nation of New York, which held that the Oneida Nation is subject to local property taxation when it reacquires land from a non-Indian possessor even though the Oneida Nation had never lost the title to that land. A federal statute passed in 1790 and still in effect today (called the Nonintercourse Act) prohibits the alienation of Indian lands without the consent of the United States. In 1795, the State of New York illegally took lands belonging to the Oneida Indian Nation, and under the Nonintercourse Act, the transfer of title was not valid. When the Oneida Nation repurchased the land, it argued that it had united title and possession, that the land had been Indian country and that Congress had never extinguished the tribal title or diminished the Oneida Reservation, and that the land therefore was subject to tribal sovereignty and immune from local property taxation. The Supreme Court rejected the claim on the ground that the Oneida Nation had waited too long to sue and that reliance interests had developed on the part of non-Indian owners and the state, and these reliance interests must be protected to prevent the piecemeal loss of state sovereignty to the Haudenosaunee nations.

This article criticizes the Supreme Court's ruling by arguing that it is wrong to blame the Oneida Nation for failing to sue to recover its lands until 1970 when more than half a dozen jurisdictional (and other) legal barriers barred suit until 1966 and would even bar the lawsuit today. Further, the Court adds insult to injury by blaming the Oneida Nation for the failure of the United States to act expeditiously to protect its rights under the Nonintercourse Act and under the trust obligation of the United States toward the Oneida Nation. The Supreme Court's ignorance of these jurisdictional barriers (or unwillingness to focus on them) suggests the importance of the publication of the new edition of Cohen's Handbook.

American Indian law, tribal property, tribal sovereignty, City of Sherrill

Abstract:
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Property, Property Theory

Abstract:
This Article examines three models of property that can help us make sense of otherwise intractable takings doctrine. The two best understood models are the "castle" model, which conceptualizes owners as having absolute domain over their property as long as they do not use it to harm others, and the "investment" model, which conceptualizes property as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards. Ultimately rejecting both of these models as incomplete, the author praises the Supreme Court's return in Lingle v. Chevron USA, Inc. to the Penn Central idea that the Takings Clause protects property owners from unjust obligations while rendering them subject to just obligations. The Article argues that the castle and investment models overemphasize individual rights, while the Penn Central test's notion that owners have obligations as well as rights rests on a conception of "citizenship." This citizenship model provides a useful framework for analyzing when property rights are subject to regulation to prevent harm and when investment-backed expectations are justified; it can thus help direct our attention to the core question of "justice and fairness" that is at the heart of the Takings Clause as it has been interpreted by the Supreme Court.

property, takings, public use

Abstract:
This comment responds to Professor Philip Frickey's excellent article, (Native) American Exceptionalism in Federal Public Law, - Harv. L. Rev. - (2005), in which Frickey reacts to the Supreme Court's increasing discomfort with the exceptional character of the federal rules governing Indian nations. He argues that the Court fails to recognize that the anomalous character of the rules governing the relations between Indian Nations and the United States arises out of the need to reconcile the irreconcilable premises of constitutionalism and colonialism. He argues that the Court must learn to live with ambiguity and appreciate that it is not possible to apply all the norms usually applied in federal public law to Indian nations without doing grave injustice.

Although Professor Frickey is correct to argue that the Court must learn to live with inconsistencies and to appreciate the need for special rules associated with the special status of native nations, this comment argues that the Supreme Court also needs to pay better attention to granting Indian nations the same rights as non-Indians when Indian nations are similarly situated to non-Indians. In many ways, the Supreme Court has been denying justice to Indian nations both by denying them the special rights that adhere to their special status and by denying them rights and powers they would be granted if they were non-Indian owners or sovereigns. It is important to recognize when the Court accepts a reason for denying rights to Indian nations that it would reject if the case involved a non-Indian owner; the Court should refrain from doing this unless there is a compelling reason for treating the tribe differently.