Recent Submissions

  • Introduction: Property and Language, or, the Ghost of the Fifth Panel

    Rose, Carol M.
    It is gratifying, hugely flattering, and at the same time somewhat embarrassing to have to open a conference and then a symposium issue on one's own academic work. No doubt understanding this embarrassment, my colleague and good friend Ian Ayres suggested a way out: since the conference was named "The Properties of Carol Rose," I should take the occasion to talk about the various residences I have owned. A great idea, and I did indeed think about it, because as Ian knows, I have had good luck in that dimension, with more than my share of weird and interesting addresses. But as intriguing as Ian's idea would have been, there was really another topic altogether that I thought I should address at the opening of the conference and now this symposium issue. That topic is the Missing Fifth Panel, or as I will sometimes call it in this Introduction, the Ghost Panel.
  • The Rose Theorem?

    Heller, Michael
    Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem - and that we borrowed from economics. Could there be a second, the Rose Theorem? Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent versions. Likewise, Carol Rose writes rich narratives of maypoles and foxes, rivers and roman roads. She offers a theory of human motivation and predictions about our behavior. And we may ask, though she might not, whether the rich alluvial mud of her scholarship crystallizes into a Rose Theorem.
  • Oysters, Ecosystems, and Persuasion

    Rieser, Alison
    In his essay on the commons scholarship of Carol Rose, Michael Heller deploys an epoch-spanning synopsis of Western society's passion for the oyster to make his case for a Rose theorem. Professor Heller posits that the work of Carol Rose sets out a testable theory: law emerges from and is shaped by the interactions of human culture with nature and natural resources. The oyster's survival across the ages, he suggests, is due to this process, a "constantly shifting matrix of strategies, simultaneously public and private, individual and community, and on their constant renegotiation and interpolation." Professor Heller's is indeed an engaging account, and he is certainly correct that the oyster's story challenges the neoclassical economic account of the evolution of property rights. But as an account of what the oyster's story contributes to our ideas about common resources, it is incomplete. And Heller surely has not gone far enough in looking at the scholarship of Carol Rose from the point of view of the oyster. By failing to bring the story into the twenty-first century, Heller misses most of what the oyster's story tells us about human institutions.
  • Re-crafting a Public Domain

    Lessig, Lawrence
    There is a public domain, but it is small, relative to its history, and it is shrinking. Digital technology will only speed its decline. And because most are oblivious to the particular threat that digital technology poses for the public domain, the prospects for reversing this trend are not promising. On the present path, the idea of the public domain will be as familiar to our children as the intergovernmental tax immunity doctrine is to our students. This loss of the public domain, properly understood, will be a profound loss for freedom and culture, or more precisely, free culture. It will also be persistent. For the mechanisms that will effect the elimination of this domain are not merely legal doctrines. The mechanisms are machines protected by the most powerful (if delicate) technologies of control that man has devised. My aim in this essay is to frame a way of talking about this public domain, and to map a strategy for its defense. The defense will come both from rebuilding the public domain, properly understood, and from crafting an "effective" public domain-meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain.
  • Property and the Public Domain

    Dagan, Hanoch
    Friends of the public domain are typically suspicious of property-talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain. This common view is misguided; it is also unfortunate. It is misguided because the cleavage between property discourse and a thriving public domain is largely illusory. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and therefore in the construction of what they deem normal, obvious, and thus clearly justified. For both reasons, friends of the public domain should embrace property, rather than fight it. Lawrence Lessig's work epitomizes the suspicion of public domain advocates towards property. In Re-crafting a Public Domain Lessig laments the expanding rights of copyright holders to preclude others from using cultural artifacts and offers strategies for reversing the tide. Lessig claims that once classified as property, copyright is burdened by "the ordinary view about property" which is "binary at its core." He believes that notwithstanding lawyers' understanding of property as a bundle of rights, the propertization of creative activity facilitates a social ecology in which you must secure permission before your use. This ecology (alongside the powerful interest groups supporting it) accounts for Lessig's pessimism about the possibility of a happy legal reform. It also explains his apologetic response to critics of the attempt to encourage authors to opt into a system where only some of the rights copyright secures are typically reserved. Neither the pessimism nor the apologia is warranted. Nothing in the language of property necessarily invites the agenda of the content industry. Quite the contrary: the form, the substance, and the history of property convey lessons that are rather helpful to the goal, which I share, of re-crafting the public domain. By neglecting these lessons, guardians of the public domain allow copyright expansionists to capture the powerful brand-name of property, thus undermining their very own cause.
  • Thirst: A Short History of Drinking Water

    Salzman, James
    Nestled in the Andes, the Bolivian city of Cochabamba lies in a fertile valley astride the banks of the Rocha River. Bolivia is the poorest country in South America, with two-thirds of its population below the poverty line. As in many developing countries, over forty percent of Cochabamba's 800,000 residents lack access to a water supply network. And even those who do have pipes cannot depend on reliable service. The poor often live in squatter settlements on the outskirts of town, relying for their drinking and domestic water supplies on private vendors. In a cruel irony, the poorest end up paying much more for their water than wealthier citizens connected to the city's water mains. As part of a nationwide project to improve provision of municipal services, the government of Bolivia launched a major privatization reform effort in the late 1990s. Prompted by financial institutions such as the International Monetary Fund and World Bank, the Bolivian government actively sought out private investor management for Cochabamba's water and sewage services. Treating drinking water as a priced good under private management, it was widely argued, would improve the water supply system infrastructure and delivery by injecting much-needed capital, greater efficiencies, and increased attention to customer needs. A forty-year concession for water and wastewater services in Cochabamba was granted to an international private consortium headed by Bechtel and known as Aguas del Tunari. In the national law passed to facilitate this transaction, water was declared the property of the state, available for licensing to private companies for distribution.
  • Let Us Drink Our Fill: The History of Water and Its Impact on Resource and Environmental Management

    Flatt, Victor B.
    Jim Salzman's Thirst. A Short History of Drinking Water tells a remarkable story about how we have managed one of the most important substances in our lives, and through its historical tales, may also point to a way to think not only about water management, but also about the management of all kinds of resources - a management strategy that is not defined by the resource, but instead, the resource's ultimate use. Up until this time, those who study environmental pollution have generally focused on resource management (and in this I include resources that can be despoiled by pollution, such as clean air) based on the resource itself, i.e. how should we best manage water, or air, or animals, or land generally. With many of these natural resources, management strategies have been driven by concerns of common overuse - the tragedy of the commons. Thus, much of the legal analysis of resource use has focused on how to correct the commons problem so that we all get appropriate economic signals to avoid overuse. In the environmental law arena, the market's failure to internalize costs, which results in the tragedy of the commons, is given as the main justification for government intervention into the private marketplace - we have to control how much pollution one can put into the commons because the polluters have no incentive to do so themselves. We have to choose the best management strategy to correct this market problem. Many of us have grappled with theories of which kind of intervention would best correct the overuse of resources. One of the most important contributors to this field is Professor Carol Rose, who has analyzed various methods of pollution-control strategies and drew conclusions about intervention choice based on the overall pressure faced by a resource. Importantly, she focused us not just on the effect a strategy would have on the resource itself, but its costs for the regulated community and costs for the government to enforce the strategy.
  • Crystals and Mud in Nature

    Lazarus, Richard J.
    Professor James Salzman has written a wonderful article, which promises an equally wonderful book. His article intelligently and thoughtfully examines the forces that compete, conflict, and combine in the creation of laws relating to drinking water. These include, of course, the physical characteristics of the resource itself and how the resource relates to essential biological needs of humankind. But as Professor Salzman demonstrates, the biological role is only one of several perspectives on drinking water relevant to the kind of legal rules that apply to it. The article describes drinking water as a cultural resource, a social resource, and an economic resource, contending that one has to consider each of these various "natures" of a natural resource to determine how best to fashion legal rules governing its management. The article readily reminds us how much human history and culture relates to natural resources law. For the purposes of this commentary, however, I would like to expand on two reactions I had to the article. The first is that the article's narrow focus on one use of water undermines some of the article's conclusions by understating water's complexity. And the second is why the article made me think about dirt, and ultimately about mud, and the juxtaposition of water and dirt in natural resources law.
  • Tribute to Carol Rose

    Been, Vicki
    It is a great honor to be asked to pay tribute to Carol Rose, whose work has been critically important to my own scholarship and to that of so many of my peers. Carol has been an inspiration to several generations of scholars, not only because of the many keen insights she has contributed to several different fields of law, but also, perhaps especially, because of her style of thinking, writing, and working with other scholars. Carol's modesty, her incredible ability to cut right to the heart of the matter in the most down-to-earth, but always amazingly well-turned phrase, and her generosity to other scholars are models of what a more engaged, more honest, and more gracious scholarly community could be. Carol likes to organize things in lists-her articles include a dozen propositions on property and takings, seven arguments on property, and so on. I am going to offer, then, a list of the top three reasons that Carol's contributions to the "vastly overwritten" takings literature, to use her phrase, are genuine advances of a very special sort. In the hope of spurring Carol to develop her contributions into a more comprehensive theory about how to ensure that government acts efficiently and fairly when regulating property, I am then going to propose the outline for what I hope will be her book on takings.
  • Visions of Guadalupe: Traces of the Ghost Panel

    Torres, Gerald
    Professor Rose remarked that she wished that a panel on her contributions to narrative theory had been included in this symposium. Since that work is lurking in the background, Professor Rose suggested that it is really a ghost panel. Professor Been did an excellent job of synthesizing Carol's work on takings, ultimately proposing that Professor Rose write a book about takings using her journal articles as feedstock for that book. I have little to add to Professor Been's analysis of Professor Rose's work on takings. Instead, my remarks will look at her contribution to the takings literature through the lens of her contribution to narrative theory. I think that understanding Carol's contribution to narrative theory and law is actually quite important to fully appreciating her contribution to the takings debate. It is the confluence of these two streams of thought in Carol's work that makes her work so significant. I will organize my remarks around a central observation that may be more or less controversial, but which I regard as obvious as a pig in a parlor. About a generation ago it became clear that the macro-social debates over the architecture of our social life would get played out through arguments about property and property rights in a way that those debates were previously played out in the civil rights movement using the equal protection and commerce clause. I am not suggesting that the struggle over the meaning of the civil rights movement is over, but that a new front was opened in an effort to limit legitimate government action. This challenge to governmental action would get articulated through the Takings and Due Process Clauses of the Constitution. The activists in this story identified themselves as defenders of property rights. Their movement has come to frame both the popular and legal debates about the nature of property and the proper role of government in regulating social life.
  • The Just and the Wild

    Underkuffler, Laura S.
    The question of the extent to which previously recognized property rights should continue to be protected has undoubtedly bedeviled every legal system that has attempted to address it. On the one hand, the legal idea of property reflects a broad societal commitment to the continued honoring of historically based entitlements on which individuals depend. On the other hand, every complex society is acutely aware of the inadequacy of the simple idea of the legal protection of existing rights as a response to human poverty, environmental degradation, and other critical problems. This issue of who has what - or who can count on what - is at the heart of the American takings problem. Our feelings and fears about poverty, wealth, preservation, and change fuel legal and political battles over the question of the taking of property by government. Property is seen as a bulwark which protects individual wealth, liberty, and autonomy. Whether government can impair this bulwark - without recognizing that impairment-implicates, on the deepest levels, our fundamental feelings of security. Because of the complexities and extraordinarily high stakes in this field, it presents particular fascinations and minefields for scholars. It is difficult to give useful advice about takings law without oversimplifying the issues or short changing our own, conflicting emotions. In its efforts in this task, the work of Professor Carol Rose is without peer. It is (at the same time) intellectually profound, meticulously balanced, practically useful, and boldly and provocatively passionate.
  • First Amendment Bargains

    Ayres, Ian Ayres
    Before starting formally, let me pause to say that it is quite an honor to participate in this celebration. When I think of the properties of Carol Rose, I think first of her laugh. It is a wonderfully exuberant cackle which, when in full bloom, often causes her head to tilt slightly back. She has a way of laughing after delivering a tangy barb that somehow diffuses the sting. I know it's not possible, but sometimes I hear her laugh when I'm reading her footnotes. This laugh is a great pedagogical gift. When Carol was teaching me property in, I believe, the fall of 1985, she would occasionally cold-call students in the very large class that filled Room 127. One day, Carol looked down at her class roster and called on my classmate Lisa Allred for the first time. Lisa was not prepared, or at least was not prepared to speak, and thought she would try to hide out in the masses and simply not respond, with the hope that Carol would think she wasn't in class that day. But Carol turned and looked at Lisa and said "Isn't that yoooouuu?" There was a scared silence in the class. And then Carol laughed. It was not a mean laugh, it was so full of sincere joy that it was very hard not to be pulled along. I've been lucky to hear this same laugh many times over the yearsoften just after Carol has skewered a speaker with some particularly deflating retort. "Socrates, Shmocrates," she said in response to Robert Frank's Winner-Take-All theory. As Carol moves west, I'm going to miss the chance to hear her laugh.
  • Commodification and the Media

    Banner, Stuart
    I met Carol many years before Carol met me. In the fall of 1986 when I was starting my second year of law school I signed up to work on the law review, and my very first assignment was to check the accuracy of the footnotes in a manuscript called Crystals and Mud in Property Law. I wish I could say that Crystals and Mud changed my life, but that would be putting it too strongly. It did nudge my life in a new direction a little bit, though. I didn't know anything about what law professors wrote. I had been through a year of law school, and I had read lots of those edited opinions in casebooks, so I guess I must have expected scholarship to be the same - kind of boring, in that pugnacious harrumphing lawyerly style. Of course Crystals and Mud turned out to be exactly the opposite. It was fascinating stuff, but for me the main thing wasn't the substance but the style. It was written in the voice of a person you'd actually want to meet, someone who wasn't trying to win an argument at all costs, but rather a person who was clearly amused by the people and the events she was describing but who at the same time retained enough empathy for them and their predicament to want to understand why they did what they did. I wanted to write like this mysterious Carol Rose. And that's what I've been trying to do ever since.
  • The Elasticity of Contract

    Ertman, Martha M.
    It is not surprising that Carol Rose began this conference reflecting that she has spent her career looking at the importance of the language we use to explore property, since she is famous for explicating complexity through wonderfully simple, disarming language. Stuart Banner's observation that Professor Rose is one of the few people who speak two languages fluently and are taken as a native in both cultures nicely captures the way her work also bridges communitarianism and legal economic discourse.
  • Law and the Humanities: An Uneasy Relationship

    Levinson, Sanford; Balkin, Jack M.
    In 1930, Judge Learned Hand, widely regarded as one of the most distinguished judges in our nation's history, spoke to the Juristic Society at the University of Pennsylvania Law School. In his address, "Sources of Tolerance," he told his listeners "I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject." Hand's remarks assume three points that form the central focus of this essay. The first is that the study of law is either part of or is strongly connected to the humanities. The second is that the lawyer or legal scholar called upon to discuss and analyze legal questions cannot do so by looking merely within the confines of traditional legal materials: cases, statutes, and "books which have been specifically written on the subject" of law. Instead, he or she needs assistance and edification from other sources. The third is that those external sources of knowledge are to be found not in the natural sciences or the social sciences, but in subjects that we customarily call "the humanities." Hand is not merely assuming these things. He also presents himself to us as a wise jurist who has been influenced by the "great books" he has selected for our attention. Because he is himself familiar with each of the writers he mentions, he enjoys membership in a "republic of letters," the sort of membership that is necessary for anyone who wishes to "live greatly in the law." There was nothing particularly unusual about these assumptions in the early twentieth century, particularly coming from an elite member of the legal profession like Hand. Moreover, membership in the American republics of law and letters had run both ways. Robert Ferguson's important book, Law and Letters in American Culture, discusses the many late-eighteenth- and early-nineteenth-century American writers who had been trained as lawyers (and in many instances, had actually practiced law), including Charles Brockden Brown, Hugh Henry Brackenridge, Washington Irving, William Bryant, and James Fenimore Cooper. One might also think of Hand's contemporary, the Harvard Law School-educated poet Archibald McLeish, or, closer to our own time, writers ranging from Louis Auchincloss to Scott Turow and John Grisham.
  • The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse

    Mayeri, Serena
    In September 1977, hundreds of African American parents and students picketed the Amite County courthouse in Liberty, Mississippi. Holding banners that read "End Sex Discrimination," they launched a month-long boycott of area public schools. The African American community of Amite County was protesting a regime of sex segregation conceived in the immediate aftermath of Brown v. Board of Education and implemented fifteen years later, when the Supreme Court established school districts' "affirmative duty" to abolish dual school systems for black and white children. When whites in many parts of the South threatened to shut down public schools rather than desegregate, sex segregation had offered a promising antidote to fears of racial "amalgamation." Now, it was African American families fed up with sex separation who kept their children home. Their story, and the legal battles fought in their name, are the focus of this article.
  • Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements

    Ruger, Jennifer Prah
    One would be hard pressed to find a more controversial or nebulous human right than the "right to health"-a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." While activists, nongovernmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation-a theory-for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. International human rights law scholars working in public health and health policy have typically focused on government's binding legal obligations to promote and protect both public health and human rights. They have drawn on human rights to address public health issues, especially the HIV/AIDS pandemic. Although scholars in this field have, in the words of one academic, "developed a sophisticated understanding of civil and political rights," they "have failed systematically to examine the meaning and enforcement of social and economic rights." And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural Rights (CESCR), provides the most reliable report on the right to health, it too, by necessity and purpose, lacks a systematic philosophical grounding for the right to health. The few international relations scholars and practitioners who do focus on health issues have provided primarily three dominant frameworks for international health cooperation: national and security interests; domestic and global economic development; and international human rights. Human rights approaches have filled a "moral gap" in the international global health discourse left primarily by economic and geo-political governance frameworks for international health issues. But the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic and to implement the constitution of the World Health Organization (WHO). Furthermore, international relations as an academic discipline has not focused on providing a theory-based in moral and political philosophy - of a right to health.
  • Revisiting the Question of French and American Difference

    Kessler, Amalia
    Mitchel de S.-O.-L'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy. Oxford: Oxford University Press, 2004. Pp. 382. $99.00 (cloth). Mitchel de S.-O.-L'E. Lasser's Judicial Deliberations is an ambitious, important, and innovative book, which adds greatly to our understanding of particular legal systems, of the ways in which differing configurations of discourse and institutional practice promote core rule-of-law values, and of comparative methodology itself. Beautifully written and wideranging in scope, it is likely to become a classic in the field. Lasser pursues three different, but interrelated goals, which I address, in turn, below. First, he describes judicial discourse in the French and American legal systems (as well as in the European Court of Justice (ECJ)) and does so in a way that significantly challenges and reworks the paradigm long established among American comparative-law scholars. Second, he argues that each system's judicial discourse (along with its ideological and institutional commitments) leads it to pursue (and follows from) its own distinctive solution to fundamental problems in democratic governance, including ensuring judicial accountability and promoting meaningful deliberation. Third, he reflects on the nature of comparative methodology and argues for the need to overcome comparatists' tendency to identify themselves as proponents of either similarity or difference.
  • Narrative Transactions - Does the Law Need a Narratology?

    Brooks, Peter
    I have for some time been puzzled about the status of narrative in the law, and more particularly the status of talk about narrative in the law. On the one hand, there has been plenty of legal scholarship-starting more or less from the "storytelling" issue of Michigan Law Review in 1989 - on the uses (and the virtues) of "outsider" narratives in the law, and even before that there was Robert Cover's foundational Nomos and Narrative. It has become something of a commonplace - too much of one - that legal storytelling has the virtue of presenting the lived experience of marginalized groups or individuals in a way that traditional legal reasoning doesn't. This view has of course been criticized, and some of the more naïve assumptions about the moral benefits of storytelling have been questioned. On the other hand, I am not aware that all this story talk has made any difference to legal actors. Trial advocates tell stories - they have always told stories - and clinical training in advocacy includes some attention to construction of the story you will tell in the courtroom (which of course echoes the training in rhetoric given to lawyers in antiquity, when rhetoric and the law were inextricably interwoven). In particular, it is assumed that juries often decide verdicts on the basis of the more persuasive story presented at trial. Yet you search in vain for any explicit recognition by legal decisionmakers that how a story is told can make a difference in legal outcomes. That is not quite true: there are moments when the law notes that a story has been mis-told, or not told according to the rules (of evidence, for instance), or doesn't make sense as told. Appellate courts are to some degree the enforcers of rule-governed storytelling. Yet they don't talk narrative talk. They are conspicuously lacking in the analytic vocabulary and tools of literary "narratology," for instance. Narratology - which I shall discuss in more detail later on- distinguishes between events in the world and the ways in which they are presented in narratives. It pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that reestablishes order. Narratology also studies perspectives of telling: who sees and who tells, the explicit or implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling. I know of only one instance when the Supreme Court shows an explicit, quasi-narratological awareness of narrative as a category of thought and presentation of reality (I'll come back to it later), and it has not produced a sequel.
  • The Emergence of Public Prosecution in London, 1790-1850

    Smith, Bruce P.
    Historians of English criminal justice administration have long asserted that criminal prosecution in England before the second half of the nineteenth century was overwhelmingly "private" in nature. Before the mid-nineteenth century, so the received wisdom goes, "prosecution was almost invariably the sole responsibility of the victim." As the subject's leading historian has observed, "the typical prosecution" in England in the eighteenth and early nineteenth century was "at the initiative of a private citizen who was the victim of a crime and who conducted the prosecution in almost all cases." Indeed, Parliament did not even establish a public prosecutor's office until 1879, and, thereafter, the office only gradually assumed prosecutorial responsibilities in a small subset of criminal cases. Considered from a comparative perspective, England's apparent disinterest in public prosecution before the second half of the nineteenth century appears strikingly anomalous. By 1800, countries on the European Continent had long come to rely on public officials to investigate and conduct criminal cases. Even within Britain itself, public prosecution existed by the early years of the nineteenth century: in Scotland, by that time, an official known as the "Procurator Fiscal" essentially "monopolized all serious criminal prosecutions." And in the United States, which adopted the principal aspects of English criminal law and procedure, states, counties, and cities routinely relied upon public prosecutors to investigate, manage, and argue a broad range of criminal cases by the early years of the nineteenth century.

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