"The Pilgrims Were Illegal Immigrants Too"

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… Continue »

Seven Questions for Elena Kagan

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… Continue »

Much better than I could ever do…

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 them to think about disability in different ways.  In particular, my hope is that they will at least understand the social model of disability: the idea that an impairment itself is not necessarily disabling, but it is often society’s response to that impairment which creates (or at least contributes to) disability.  If someone who uses a wheelchair is in front of an inacessible building, is the disabling condition that they may not have use of their legs, or couldn’t it equally be that we have… Continue »

Reality-Based Law and Economics

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… Continue »

IP in the Public Interest

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… Continue »

Eyes Wide Shut

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.

Asexual Orientations

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.

Brave New Eaarth

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.

Kagan Criticized

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 her aspirations or capacity for change as a Supreme Court justice. Being a consensus builder is important on a Court that is divided to promote institutional legitimacy and stability, but it could wreak havoc on principles of substantive justice if consensus means reproducing the status quo. The Court is rarely the institution that leads the nation in social change, but when it does, in those rare cases it is asked to, the Court’s members need to be ready to speak boldly and with inspiration…. Continue »

Teacher First

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 … Continue »