• Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy

      More, Sagit
      Throughout the last century, the modem welfare state has been widely considered a major source of rescue and relief for people with disabilities. By providing mechanisms of cure and care, so the common view goes, the welfare state has improved the social conditions of disabled people, rescuing them from a life of starvation and severe destitution. In this view, welfare provides a refuge, while the real responsibility for the persistent poverty of disabled people lies primarily with the structure of the market economy, with the existence of negative social attitudes, and with disability's "objective" and inherent limitations. In this Article, I challenge this view, arguing that although welfare has indeed provided some relief to people with disabilities, welfare laws and policies have also had a significant role in developing, furthering, and reinforcing the power hierarchies to which people with disabilities are subjected. Through an investigation of Israeli disability policy, I show how hierarchies of welfare benefits reflect national values and collective imageries but at the same time reinforce and re-constitute those values and modes of imagination. Although the particularities and contexts of these hierarchies differ from one country to another, the result, I contend, is the same: those at the top, usually disabled veterans and disabled workers, enjoy better compensation or social insurance schemes, but in fact suffer from similar patterns of ableism and power as other disabled persons, and these patterns eventually render them equally inferior to and of a lesser value than the non-disabled. This Article uses a critical perspective that I term Disability Legal Studies (DLS) in order to emphasize its commitment to the field of critical legal theory and its close association with disability studies. Disability studies, a relatively new academic field, investigates issues such as the social construction of disability, ableism and the power structure that supports and enhances the privileged status and conditions of non-disabled persons in relation to disabled persons, the genealogy of social categories such as normalcy, and the politics of bodily variations.2 The basic approach that all disability studies scholars share is that disability is not an inherent, immutable trait located in the disabled person, but a result of socio-cultural dynamics that occur in interactions between society and people with disabilities. Although disability studies' critique is not altogether new to some legal scholars, it has not yet gained adequate recognition in legal discourse. I maintain that the time has come to identify, introduce, and label the field of DLS, bring it to light, attend to its premises, and incorporate its lessons into legal theory and practice. I further suggest that attending to DLS would bring a shift in writing on disability and the law from a focus on doctrinal analysis or policy advocacy to a research regarding the constitutive role of law in the production of disability.
    • Beyond Fragmentation: On International Law's Integrationist Forces

      Megiddo, Tamar
      What is a country to do when international law presents it with two conflicting yet binding norms? This question has been haunting international law scholars for the past two decades. It has arisen with particular fervor in the context of the proliferation of international legal regimes and, specifically, international tribunals since the 1990s.
    • Beyond Nudging: Debiasing Consumers Through Mixed Framing

      Godi, Matteo
      The consumer-protection literature can be divided into two camps: laissez-faire libertarianism and paternalism. Paternalism, as advanced by behavioral law and economics, calls for nudging consumers toward their utility-maximizing preference. Laissez-faire libertarianism, instead, calls for relying on rational-choice theory and the free market to allocate consumer goods. Although each camp presents the other as its diametric opponent, this Note shows that this dichotomy is overstated. Neither camp is incompatible with the other, nor infallible on its own. Through an original behavioral study, this Note reveals flaws in the fundamental assumptions of both camps: that no information can be conveyed neutrally (behavioral law and economics) and that consumer-oriented regulation diminishes autonomy (rational-choice theory). It does so by focusing on an understudied form of consumer-protection regulation: mixed framing. Legal scholars and regulators have largely ignored this phenomenon, yet it offers a more robust and actionable regulatory approach than the existing literature and one that is distinct from both paternalism and libertarianism. By examining the case study of food-safety regulations, this Note sketches the analytic and normative case for why regulators should embrace mixed framing. Using a process of debiasing through mixed framing, agencies can promulgate rules that minimize the risk of deceptive advertising tactics and maximize the provision of neutral and complete information—without running afoul of the First Amendment or falling into paternalistic restrictions on autonomy.
    • 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.
    • Copyright and the Holocaust

      Pessach, Guy; Shur-Ofry, Michal
      This article explores the interface between copyright law and the Holocaust. The Holocaust's duration and scope, its occurrence in the midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims' part, many of those items-including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries-manifest an explicit act of real-time historical documentation for future generations. On the perpetrators' side, some materials were produced as a result of organized documentation and others-such as Joseph Goebbels' diaries or Hitler's Mein Kampf--comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored.
    • 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.
    • 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.
    • 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.
    • Empire States: The Coming of Dual Federalism

      Ablavsky, Gregory
      This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns. In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.
    • 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.
    • Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence

      Chachko, Elena
      There are many myths about the role of courts in foreign affairs and national security in Western democracies. Traditionally, courts and scholars in different jurisdictions have taken the view that executive action related to foreign affairs has unique attributes, making it ill-suited for review by unelected judges with limited institutional competence.1 This approach has relied on a combination of functional considerations and concerns about the democratic legitimacy of judicial interference with inherently political foreign and security policies.
    • How to Realize the Value of Stare Decisis: Options for following Precedent

      Varsava, Nina
      When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through---{1) follow the precedent, (2) overrule, or (3) distinguish-without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach-one that is sensitive to the contextual factors that make one method preferable to another.
    • Interpreting the Outer Space Treaty's Non-Appropriation Principle: Customary International Law from 1967 to Today

      Pershing, Abigail D.
      SpaceX plans to have its first astronauts land on Mars by 2026. Blue Origin wants to take tourists to space by April 2019. The European Space Agency points to the possibilities of mining Helium-3 on the moon to provide cleaner energy here on Earth. Space tourism, exploration, and exploitation are very real possibilities in the near future—at least technologically. Legally, however, the way forward is less clear.
    • 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 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.
    • 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.
    • 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.
    • 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.
    • 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.