Salt Blog

Written by Angela Harris When I was in college, there was a button that some of us took to wearing.  It was green (I seem to remember) and the message it bore was "59¢."  It recorded the fact that, on average, for every dollar a man made a woman made fifty-nine cents. I was reminded of that button after attending the AALS Mid-Year Workshop on "'Post-Racial' Civil Rights Law, Politics, and Legal Education: New and Old Colorlines in the Age of Obama," last week in New York City.  There, Professor Florence Roisman called our attention to a report released in May by the Institute on Assets and Social Policy (IASP) at Brandeis University. According to this report, between 1984 and 2007 the racial wealth gap between black households and white households increased fourfold: from $20,000 in 1984 to $95,000. As Thomas Shapiro (who leads IASP) and Melvin Oliver explained in their important book, Black Wealth/White Wealth, this wealth gap is different from the income gap my friends and I protested in college. Income is, for most people, their paycheck; it pays the mortgage or the rent, buys groceries, goes toward the car payment, and disappears by the end of the month. Wealth -- or "assets" in the IASP parlance -- is money that sticks around, gaining in value; it allows people not just to get by but to invest in the future: to "pursue an education, buy a home, start a business, live securely in retirement, and weather economic challenges of unemployment, illness, or disaster."

Written by Tucker Culbertson What specific understandings of -- and interventions against -- forms of subordination inherent to liberal capitalism must be integrated into, or considered along with, work on structural racism? * * * These are further thoughts on the AALS's recent excellent Workshop on "Post Racial" Civil Rights Law, Politics and Legal Education, subtitled New and Old Color Lines in the Age of Obama...  Many thanks to the entire Planning Committee -- Professors Devon Carbado (Chair), Ian Haney Lopez, Audrey McFarlane, Reva Siegel, and Stephanie Wildman --  for their work. During the final event of the conference, Professor Lani Guinier spoke about the misperception of racism as only individual, intentional acts based on racial animosity.  Professor Guinier explained that race is structural. Given: (1) our long history of systemic and violent racial subordination -- from occupation, genocide, removal, and slavery to exclusion, internment, segregation, and profiling; and: (2)  contemporary race-neutral governance which actively ignores continuing disparate racial distributions of opportunity and suffering; we must understand racism not only as a private moral harm but also as a public political problem -- as Professor Kendall Thomas and Professor Ian Haney Lopez, among others, have regularly persuasively argued.

Written by Tucker Culbertson I just returned from what I found to be a remarkable and remarkably productive conference on arrangements of race, privilege, and power.  The conference was especially useful for me when we talked about how we talk about obvious disparities in present distributions of opportunity and suffering which continue to correlate with racial difference. One of the lessons I took from the conference was a much-needed reminder that I need to do more as an antisubornationist advocate in activities unrelated to my vocation.

Written by Katie Porter One of the great lessons of consumer law is the gap between the law on the books and the law of the land. Recent activity around public benefits illustrates this phenomenon. Under federal law, a variety of public benefits, such as social security…

Written by Tucker Culbertson If the Supreme Court ever does rightly decide that race may be considered by government actors trying to solve social problems, which sorts of policies will a postcolorblind Court uphold?  Postcolorblind constitutional law -- as part of a system of racial governance -- may indemnify some of the practices that we opposing colorblindness want to prohibit. These thoughts are from a forthcoming article of mine on civil rights and counterterrorism.  I'm sharing them here, now, because I think they're relevant both to an upcoming conference on civil rights law in the Obama era, and to our discussions about law and racial justice generally. When we consider the present constitutional law of colorblindness, we who argue against colorblind constitutional law ought to also imagine and prepare for the possible jurisprudence of a postcolorblind Court.  If the Supreme Court ever does rightly decide that race may be considered by government actors trying to solve social problems, which sorts of policies will a postcolorblind Court uphold?

Written by Katie Porter Law scholarship has a proud tradition of actually influencing the law. This remains true today, notwithstanding proclaimations of some in the legal academy who make proclamations about how their work is "highly theoretical" to hide shortcomings in translating their ideas in meaningful ways to policymakers and everyday people. Right now pending before Congress is an excellent example of how academic work, published in a law review, can become real law. A few years ago, Elizabeth Warren and Oren Bar-Gill authored an article in the Penn Law Review called Making Credit Safer. It was a "real" law review article in the best and worst sense of our scholarly form: 97 pages, 328 footnotes, exploring every nook and cranny of an idea. The idea, that America needs an agency devoted to protecting consumers from financial products, is about to become law, having been included in both the House and Senate versions of the financial reform bill. For progressive law scholars, this example of how to move an idea from a law review to a law offers some valuable tactical lessons: First, be persistent. Even the best ideas, even under the most opportune circumstances, take time to catch on. Elizabeth Warren first wrote about a Consumer Financial Protection Agency in the summer of 2007. Three years later, it's going to be become law. But I think a decade is a more realistic time frame for advancing ideas, especially those that sharply refute the existing paradigm. Write about your idea, and then write about it again, and then write about it some more.

Written by Jessica Silbey This past semester, while teaching constitutional law, a student (also a male US Marine) asked if I would be interested in hosting a panel with some female marines (his colleagues) to discuss the combat exclusion for women. Of course, I said yes. It was a fantastic panel. Two women -- very different in their experience in the military and in life -- with very similar perspectives on the combat exclusion: it sucks. When faced with the "reasons" for the exclusion, the only one that rang true for these women was that the male marines would be derelict in their duty of fighting smartly and protecting wisely because they would be preoccupied with protecting the women marines. So, we summarized, women are excluded from full service to their country (what I consider a stigma symbolizing less than full citizenship) because of men's shortcomings.

Written by Angela Harris On this Memorial Day, I want to remember someone who is not an American, but who lived and died for ideals that continue to shape the lives of people around the globe. I am thinking about Jan Smuts. In a recent book, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, Mark Mazower notes that for the men who conceived of and built the League of Nations following the First World War, internationalism meant less a world of democratic nation-states, and more an idealized version of the British Empire. The objective of the League of Nations, in Mazower's words, was a "liberal world order that would be compatible with empire and Anglo-American hegemony for decades to come." The League of Nations died, and the United Nations was born. But Mazower identifies important continuities.  Jan Smuts is one. As prime minister of South Africa, Smuts acted as a conduit between Woodrow Wilson and British officials in London when the League was being formed. He also helped draft the preamble to the United Nations charter. That text speaks of "the dignity and worth of the human person," "the equal rights of men and women and of nations large and small,"  and, most importantly, of "fundamental human rights."

Written by Jessica Silbey Although clearly the rash of anti-immigrant laws have material effects on people living in the states in which these laws are being enforced, I am obsessed with the hateful symbolism of the laws more than the anxiety and fear of incarceration and deportation the laws engender. Here in Massachusetts, the state senate just passed a bill that purports to make it even harder for illegal immigrants to be employed or receive any state benefits.  Most commentators agree that the law is nothing new -- illegal immigrants are not eligible for state benefits  -- but the symbolic add-ons to this law (e.g, a hot-line for anonymous tips to turn in illegal immigrants holding jobs and criminalizing higher education funding for illegal immigrants) are despicable. The message sent by laws like this (and those that are the subject of on-going criticism in Arizona) are of exclusion and greed.

Written by Tucker Culbertson In the past eight years, Justice John Paul Stevens has written monumental majority opinions on counterterrorism (Hamdan v. Rumsfeld and Rasul v. Bush) and the Eighth Amendment, which prohibits cruel and unusual punishment (Hope v. Pelzer and Atkins v. Virginia).  Of particular note is that in both areas of law, Justice Stevens and a majority of the Court have referred to, and even applied, international law in rendering constitutional judgments.  As we consider Elena Kagan’s nomination to the Supreme Court (especially her capacity to judge the Obama Administration in matters of national security,) Kagan's regard for these opinions’ precedential force, and her stance on the use of international law in constitutional interpretation, should be closely questioned. 1. Why should we believe that a present Solicitor General can impartially judge claims against the Administration in which she now serves?

Written by Michael Waterstone Amongst other subjects, I teach and write in disability law.  In a disability law class, I will always start with a few exercises to get students to question their own assumptions and prejudices about disability.  The build up is to get…

Written by Angela Harris What might "law and economics" look like if its economics were based on the actually-existing economy? On Monday and Tuesday of this week, the University at Buffalo Law School moved to answer this question with a workshop entitled "Rethinking Economics and Law After the Great Recession." The workshop was organized by the "class-crits," a small group of American legal scholars (I count myself as one) who bring the insights of critical legal scholarship to the study of the interrelationships among market and state institutions. Sponsored by the Baldy Center for Law and Social Policy, an internationally recognized institute at the University at Buffalo that supports the interdisciplinary study of law and social institutions, this year's class-crits meeting brought legal scholars together with "heterodox" economists. The results were inspiring, exciting -- and subversive.

Written By:  Jessica Silbey If you're a Harry Potter fan -- or your kids are -- wouldn't it be fun to participate in (or watch) a play or an opera about Harry Potter and his friends and adventures? Wouldn't you be thrilled to see your kids (or your students) busy at work making a video that brings Harry into the 24th century, combining sorcery with space travel? How about a dramatic reading of Turow's "One L" in your law school's dining hall, as a community event for students studying late night and needing a break? I am regularly encountering creative and community-building and educational performances, adaptations or transformations of original works (such as Harry Potter).  I am also regularly encountering anxiety from the adapters and transformers about the possible illegality of their work. Usually, these folks are right to be worried that they are trespassing. Making a "derivative work" of someone's original work violates the original work owner's copyright, specifically 17 USC 106(2).  Publicly performing someone's original work also violates that person's copyright, see 17 USC 106(4). There are limitations and exceptions to these broad rules, of course, but they are complex and fine-grained. And most people who are remixing or mashing (or simply rehearsing) for fun, are unfamiliar with the complexity or fine-grained nature of copyright laws and instead are worried about allegations of infringement or pirate that has become so common these days. There are lots of folks in the legal academy who are working on proposals for legal reform that would make many non-profit, personal or semi-private, educational or scholarly uses and reuses of original material exempt from copyright infringment. There are also lots of folks in the legal practice world who are litigating cases with an aim toward making headway in the courts toward clearer exemptions, such as EFF and the Stanford Fair Use Project. Also, there are organizations, such as Public Knowledge or Creative Commons, that are working institutionally towards less costly (e.g., fewer transaction costs or less expensive or free) access to such works. This is not only a copyright issue, but a patent issue. Access to medicine or treatment can be blocked because of proprietary claims to methods of treatment and diagnostic tools.

Gypsy, pictured here, has since healed and is happily homed by those who rescued her. Written by: Tucker Culbertson If a picture costs a thousand wounds should that speech be free? If answering “Yes” stokes a market, causing thousands more such wounds, should we answer “Yes”? This is about dog fighting videos. By a vote of 8 to 1, the Supreme Court recently struck down a federal law which criminalized some commercial depictions of cruelty to animals.  Justice Alito’s lone dissent says most of what needs to be said about what’s wrong with the majority opinion.  I’ve written this post only to emphasize that the Court, and most commentary, has buried the real headline.

Written by: Tucker Culbertson April 10 was rough on me.  A certain performer – whose work I find nearly wholly reprehensible – stepped up, spoke out, and seriously represented. Worse still, she represented me. Lady Gaga told London’s Daily Mail:…

Written by:  Angela Harris "Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know." As the oil slick spreading across the Gulf of Mexico reaches, reportedly, the size of Puerto Rico, and BP continues to attempt to take the responsibility but not the blame, we can recall Donald Rumsfeld's words. Bill McKibben would like to add one important fact to our store of known knowns: The planet Earth we used to know is gone.

Written by: Jessica Silbey Angela Onwuachi-Willig, over at Colored Demos, has this to say about the Kagan nomination. I largely agree with Angela and hope, because I believe that Kagan will be confirmed, that Kagan’s record on faculty hires at Harvard is not a blueprint for…

Written by: Jessica Silbey It is that time of year again, a glorious time for professors when classes are over and exams to be graded have not yet stacked up. We plan our summer and the projects we aspire to complete. I have always felt so blessed this time of year for the time the summer affords me to think hard and long about problems I see with the law and about possible solutions in the way we think or act in regards to it. This summer I am taking some time also to think more about teaching. I was at the annual conference of the Association of Law, Culture and the Humanities some time ago and was discussing with folks on a panel about "Law and the Humanities and the State of  Interdisciplinary Scholarship" how to make our scholarship on the subject resonate more in the practice of educating and in the practice of law.

Written by:  Angela Harris There were maybe twenty of them. One or two women beamed encouragingly as I stood up. I love the ones who support you: open faces that track your face, smiles and nods, puzzled looks when they get lost. But the bodies of the ones who drew my attention were rigid and tight. Arms folded over chests. Gazes studiously focused on nothing. I was there with my black face and my assigned readings to talk to this colleague's criminal procedure class about race and space.

Written by:  Jessica Silbey Back in 2006, the first time I (eh hem) tried my hand at blogging, I was all afire about various states' legislatures passing laws to restrict access to abortion services. At the time, South Dakota had just passed a law making it a crime to perform an abortion for any purpose except to save the life of the mother, clearly a violation of Roe v. Wade and Casey v. Planned Parenthood. I called it the "Dare Doctrine," as in "we South Dakota legislators disagree with you Supreme Court of the United States and are calling you into a game of chicken. We know you have explicitly held otherwise, but we are right and Roe and Casey were wrong. We dare you to make us take it back."