A Return to Classical Law? –Law & Liberty Symposium - re Vermeule's Common good Constitutionalism

A Return to Classical Law? –Law & Liberty Symposium - re Vermeule's Common good Constitutionalism

If there is one thing that conservatives have almost unanimously agreed on, it is that the Constitution’s meaning does not change over time. Few things have unified the right like the long-term battle against a morphing Constitution that adapts to apply justice according to what, in the judgment of the interpreter, the times require.

But even as originalism has gradually become the most widely accepted interpretive approach, some on the right have begun to argue for its abandonment. Adrian Vermeule’s new book, Common Good Constitutionalism, marks the most ambitious attempt yet to convince conservatives to jettison originalism in favor of left-wing constitutional theories. Law & Liberty contributors assess the book’s merits in a variety of contexts, including originalist methods, federalism, the broader postliberal project, and the relationship between formalist institutions and the common good.

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

No emotional loss allowed for Affordable Care act: Cummings v. Premier Rehab Keller (04/28/2022)

20-219 Cummings v. Premier Rehab Keller (04/28/2022)

Many will have no remedy against discrimination. When a dr misgenders a patient but provides care. A hs student suffers sexual harassment. A Black customer is mistreated but ultimately served. The econ harm is likely zero. The dignitary harm is huge. Breyer gets it pic.twitter.com/JeUpV1g0gh

— Liz Sepper (@lsepper) April 29, 2022

Eric Segall: : Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

Dorf on Law: Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

By Eric Segall

A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway. 

I was probably wrong.

I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work. 

Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.

Vermeule's book fails to directly address what courts and legislatures should do on many issues of equality and equity that most people feel strongly about. Moreover, because a significant aspect of Vermeule's critiques of legalisms correctly focuses on the lack of transparency resulting from a focus by judges on procedures not substance, here are ten questions of substance for Vermeule to answer. Given both the rancor about his work, and his statements on Twitter that his book does not support that criticism, I think these questions should be fair game so we know where he stands. I have provided my answers as well (for the record, I’ve invited him to come on my Supreme Myths Podcast and he has politely said neither yes or no). 

One last thing before the questions. I have never met Professor Vermeule but we have communicated often by direct message and I have enjoyed these engagements. This blog post is not meant to put him on the spot but rather to encourage him to engage openly and honestly with his critics. I hope he responds.

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Luttig - former fed judge: The Republican blueprint to steal the 2024 election - CNN

I heard an interview/podcast with Michael Luttig.  He said he and William Barr spoke every day.  They agreed that one of them had to step in to become AG to save Trump.  It was Barr who made the first move.  Barr replaced Sessions, misled on the Mueller report, grandstanded as the vice of civic virtue, got fired and embarrassed by Trump anyway.

Luttig - the former Bush 41 aide, 15 year federal appeals judge, was the guy to whom Mike Pence turned on January 6.  Luttig did the right thing.  Now he warns that the Republicans - his party - -are getting set for a replay with an even more compliant Supreme Court in 2024. GWC

Opinion: The Republican blueprint to steal the 2024 election - CNN

J. Michael Luttig, appointed by President George H. W. Bush, formerly served on the US Court of Appeals for the Fourth Circuit for 15 years. He advised Vice President Mike Pence on January 6. The opinions expressed in this commentary are his own. View more opinion at CNN.

(CNN)Nearly a year and a half later, surprisingly few understand what January 6 was all about.

Fewer still understand why former President Donald Trump and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the "stolen" election of 2020, which even they know was not stolen.

J. Michael Luttig

January 6 was never about a stolen election or even about actual voting fraud. It was always and only about an election that Trump lost fair and square, under legislatively promulgated election rules in a handful of swing states that he and other Republicans contend were unlawfully changed by state election officials and state courts to expand the right and opportunity to vote, largely in response to the Covid pandemic.The Republicans' mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.

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That objective is not somehow to rescind the 2020 election, as they would have us believe. That's constitutionally impossible. Trump's and the Republicans' far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.

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The Integralism of Adrian Vermeule | Commonweal Magazine

The Josias  EDMUND WALDSTEIN, O.CIST.

Integralism in Three Sentences  Catholic Integralism is a tradition of thought that, rejecting the liberal separation of politics from concern with the end of human life, holds that political rule must order man to his final goal. Since, however, man has both a temporal and an eternal end, integralism holds that there are two powers that rule him: a temporal power and a spiritual power. And since man’s temporal end is subordinated to his eternal end, the temporal power must be subordinated to the spiritual power.

The Josias - a group that has welcomed the work of Harvard Law School's Adrian Vermuele - is an anti-modernist Austrian-based Catholic movement that declares its purpose to be to "resist the tides of liberalism, modernism, and ignorance of tradition which have, in the past century, so harmed the Church and tied her hands in the struggle to advance the social reign of Christ."

In the essay below Pepperdine historian Jason Blakely finds Vermeule's anti-liberal rhetoric to be isplaced.

Vermeule has written that for liberalism “yesterday the frontier was divorce, contraception, and abortion; then it became same-sex marriage; today it is transgenderism; tomorrow it may be polygamy, consensual adult incest, or who knows what.”  But according to Blakely Vermeule's view of Catholicism's relationship to the liberal tradition (think Hobbes and John Stuart Mill) istoo narrow:

Vermeule also goes astray when he jettisons those aspects of the liberal tradition that have been affirmed by the Church. The liberal tradition is the most important ideological movement in history to have articulated and defended human rights, and its influence can be found in Catholic social teaching’s affirmation of the infinite dignity and worth of the individual person, which includes the need for “human rights” (a term adopted without reservation by the U.S. bishops). It’s not merely that Catholic social teaching has serendipitously developed to overlap with important aspects of the liberal tradition: the Church’s engagement with the liberal tradition has actually deepened its understanding of what is required to uphold human dignity.

- GWC 

The Integralism of Adrian Vermeule | Commonweal Magazine  October 5, 2020

By Jason Blakely (Pepperdine)

Harvard law professor Adrian Vermeule has lately become an intellectual celebrity among reactionary Catholics in the United States. His reputation is due not only to an unusual talent for polemics and public debate, but also to a willingness, rare in elite academic circles, to passionately identify with the Christian faith. He does not compartmentalize or soft-pedal his Catholicism. Vermeule’s work has especially resonated in recent years because he has compellingly articulated a number of important truths about our current situation. He is critical of unrestrained capitalism and shallow materialism, and appeals instead to a politics of the common good. He’s an active—and frequently provocative—participant in the debates about the fate of “liberalism” that have followed the victories of right-wing populist movements both here and abroad.

Vermeule’s prominence in these debates has earned him his share of critics. It’s not uncommon to hear him described as a sophisticated, sometimes slippery defender of theocracy. If I, too, find myself troubled by Vermeule’s work, it’s not because he brings his Catholic faith to bear on contentious political debates. As someone who converted from an ardent atheism to Roman Catholicism over a decade ago while still a graduate student at Berkeley, I appreciate his attempts to draw from Church tradition while addressing high-level questions of political and legal theory. Even so, some of Vermeule’s work is seriously flawed, and some of his ideas are dangerous. And this is because his thinking is not Catholic enough.

Like many conservative converts to Catholicism, Vermeule seems to have been attracted to the supposed salvific political powers of the Roman Catholic Church. In a 2016 interview in First Things, he recounted abandoning a milquetoast Episcopalian faith after he realized there was “no stable middle ground between Catholicism and atheist materialism. One must always be traveling or slipping unintentionally, in one direction or the other.” If civilization was to be rescued from moral decline and collapse, the Church would lead the way. As he explained in a 2017 essay, the Catholic Church “serves as a kind of ark,” saving society from “the universal deluge of economic-technical decadence, and the eventual self-undermining of the regime.”

It’s not surprising, then, that Vermeule reveres such Catholic critics of liberalism as the philosopher Joseph de Maistre (who rejected the French Revolution in favor of monarchy) and the Nazi jurist Carl Schmitt (who once proclaimed the Roman Church alone was politically capable of overcoming modern individualism). Vermeule seems to enjoy provoking members of the liberal intelligentsia by coyly advancing almost-forbidden ideas.

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Harvard & the Legacy of Slavery | Radcliffe Institute for Advanced Study at Harvard University

Harvard & the Legacy of Slavery | Radcliffe Institute for Advanced Study at Harvard University

On April 26, 2022, Harvard President Larry Bacow released the Report of the Committee on Harvard & the Legacy of Slavery, accepted the committee’s recommendations in full, and announced a historic commitment of $100 million to fund their implementation.

The first phase of the initiative’s work was to uncover the truth of Harvard’s ties to slavery through deep research guided by a committee of distinguished faculty drawn from across the University. This research provides a strong foundation for our next phase: the process of reckoning and repair.

  The Legacy of SlaveryReport and RecommendationsPresident Bacow's Message to the CommunityAbout the InitiativePresidential Committee

Antideference: COVID, Climate, and the Rise of the Major Questions Canon - Virginia Law Review

Antideference: COVID, Climate, and the Rise of the Major Questions Canon - Virginia Law Review

 

Download PDF

By Nathan Richardson (University of South Carolina School of Law)

Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s deference rule or a reanimation of the nondelegation doctrine. Instead, it was formal elevation of the “major questions doctrine” into a substantive canon of construction.

 This new canon significantly curtails not only executive power (via agencies) but Congress’s legislative authority—and, ultimately, democratic control of policy. It adds a new veto point to the American political system, licensing judges to reject any delegation of power they deem economically or politically significant with little regard for statutory text. 

The only remedy is a super-clear statement in legislation, similarly subject to judicial discretion. For such major cases, the Court has shifted from deference to antideference, actively antagonistic to delegated power. By its architects’ own admission, this canon is simply the nondelegation doctrine in disguise. It threatens to cripple the administrative state, particularly in emergencies and in areas of evolving science, such as pandemics and climate change.

Race and Guns, Courts and Democracy by Joseph Blocher, Reva Siegel :: SSRN

Race and Guns, Courts and Democracy by Joseph Blocher, Reva Siegel :: SSRN

Race and Guns, Courts and Democracy

Harvard Law Review Forum, Forthcoming

Yale Law School, Public Law Research Paper Forthcoming

Duke Law School Public Law & Legal Theory Series No. 2022-16

10 Pages Posted: 9 Feb 2022 Last revised: 26 Apr 2022

Joseph Blocher

Duke University School of Law

Reva Siegel

Yale University - Law School

Date Written: February 27, 2022

Abstract

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle and Pistol Association v. Bruen, it is especially prominent in the brief of legal aid attorneys and public defenders who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.

In this Essay we address issues raised by the public defenders and others contesting racial bias in gun regulation. Like the public defenders, we have emphasized the issue of racial bias in the enforcement of gun laws, and we have also objected to courts’ evisceration of equal protection guarantees in the criminal law context. But we part ways with the public defenders when they turn to the courts to expand gun rights in response. The decision in Bruen might provide interim relief from New York’s licensing regime, but it will not address racial bias in the criminal justice system and most importantly, it will secure whatever relief it does at high cost, by restricting the democratic authority of communities to seek freedom from gun violence through law. We favor responses that protect a community’s democratic competence to experiment with the most inclusive approaches to public safety. We argue that, despite their many limitations, democratic actors can do more than federal courts can or will, and that the best current path to advance and coordinate racial justice goals is through democratic politics. We highlight jurisdictions where there is debate about the best toolkit to achieve inclusive forms of public safety in an era of rising crime. None of this is possible if the Court expands Second Amendment rights in ways that deprive communities of the democratic authority they need to coordinate these various compelling public ends.

Keywords: Second Amendment, Equal Protection, race, racial justice, courts, policing, prosecution, public safety, public health, community violence, nondiscrimination, Heller, Bruen, public defender, discriminatory purpose, noncarceral, guns and race, prosecutorial discretion

Suggested Citation:

Blocher, Joseph and Siegel, Reva B., Race and Guns, Courts and Democracy (February 27, 2022). Harvard Law Review Forum, Forthcoming, Yale Law School, Public Law Research Paper Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2022-16, Available at SSRN: https://ssrn.com/abstract=4012146

On Tort Law's Dualisms by Guido Calabresi, Spencer Smith :: SSRN

On Tort Law's Dualisms by Guido Calabresi, Spencer Smith :: SSRN

On Tort Law's Dualisms

135 Harv. L. Rev. F. (2022 Forthcoming)

Yale Law School, Public Law Research Paper Forthcoming

10 Pages Posted: 24 Feb 2022

Guido Calabresi

Yale Law School; U.S. Court of Appeals for the Second Circuit

Spencer Smith

U.S. Department of Justice

Date Written: February 2022

Abstract

We read with interest Professors John Goldberg and Benjamin Zipursky’s new book, Recognizing Wrongs; Professor Catherine Sharkey’s Book Review; and Goldberg and Zipursky’s Response. Their exchange demonstrates that the field of tort law is alive. But is it well?

Goldberg and Zipursky (hereinafter GZ) and Sharkey put forward what are, at first glance, very different theories of tort law. GZ have updated their civil recourse theory to a theory of “wrongs and redress.” And that is good. But Sharkey maintains that there is still something missing from GZ’s theory: a convincing explanation of what constitutes a civil wrong. Sharkey casts the “cheapest cost avoider” theory as “protagonist,” arguing that it and other instrumentalist theories of tort law are “paramount,” at least when it comes to modern torts, such as products liability.

We think both “sides”—if you want to call them that—miss something. At one level, tort law is about wrongs and redress. That is the private side of torts. And it is what courts do much of the time. At another level, tort law is about preventing harms or, if you like, about the regulatory needs of society. That is the public side of torts. And it is what courts do on occasion, and what legislatures and administrative agencies do very often. If you fixate only on one side or the other, you fail to appreciate the whole of tort law.

The exchange between GZ and Sharkey is full of dualisms: ubi jus ibi remedium, “wrongs and redress,” “‘private’ tort and ‘public’ regulation,” Prosser’s “dual instrumentalism,” GZ’s “dual constructivism,” et cetera. At the risk of piling on, we would like to add two of our own: First, tort law operates at dual levels. There is the level of the case. And there is the level of structure. Once you see tort law in this way, GZ’s and Sharkey’s theories fit together. Second, tort law operates in dual directions. What constitutes a civil wrong most often derives from the regulatory needs of society, and hence often from a desire to place liability on the “cheapest cost avoider.” But what is “cheap” and what is “costly” itself derives from the tastes and values of society, which can be influenced by the current set of civil wrongs. This reverse link, which is sometimes missed, may well represent the future of tort law. And this is so precisely because tort law does need to respond to society’s regulatory needs.

Suggested Citation:

Calabresi, Guido and Smith, Spencer, On Tort Law's Dualisms (February 2022). 135 Harv. L. Rev. F. (2022 Forthcoming), Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4037575 or http://dx.doi.org/10.2139/ssrn.4037575

Korematsu as the Tribute that Vice Pays to Virtue by Jack M. Balkin :: SSRN

Kudos to Jack Balkin for candor.  Instead of the sanitized language of the Supreme Court-imposed `strict scrutiny' for racial classifications, Balkin reminds us that justice is the correct measure of court rulings.

By that measure strict scrutiny - a test that Korematsu passed - imprisoning thousands of Japanese Americans utterly without cause - remains an evasion of the basic fact of American life: unremediated racial injustice. - GWC

Korematsu as the Tribute that Vice Pays to Virtue by Jack M. Balkin :: SSRN

Jack M. Balkin

Yale University - Law School

Date Written: May 15, 2021

Abstract

This essay responds to Mark Killenbeck's argument for partially rehabilitating Korematsu v. United States, the infamous Japanese Internment Case. Killenbeck argues that Korematsu deserves credit for announcing the doctrine of strict scrutiny for racial classifications, and that we should criticize the case because of serious defects in the Supreme Court's decisional process, which he details at length.

The quality of the decision making process in a Supreme Court case has very little to do with how a case is viewed by later generations, which are more concerned with what a case did and whether it was just or unjust from the standpoint of the present. The constitutional canon (and anticanon) are constructed by cultural memory, and cultural memory is largely indifferent to, if not ignorant of, the criteria of good professional lawyering that Killenbeck is most concerned with. The central reason why Korematsu is anticanonical today is that the Court reached a deeply unjust result of which later generations are ashamed.

Korematsu also deserves no credit for announcing the doctrine of strict scrutiny in racial classifications. First, as a threshold matter, because the test of strict scrutiny treats classification by the state as both the central vice of White Supremacy and the chief mechanism of contemporary racial injustice, the doctrine's limitations have done as much to ignore or perpetuate racial injustice as to remedy it. Second, Korematsu should get no credit for merely mouthing the words of strict scrutiny but doing nothing to effectuate them. The argument assumes that Korematsu's hypocritical pronouncement somehow caused later courts to adopt the doctrine and apply it in a just fashion. But it is far more likely that courts began to protect racial minorities for different reasons, and simply cribbed convenient language from Korematsu and Hirabayashi v. United States. Courts were making lemonade from lemons, as courts often do. Moreover, there were plenty of other sources of Supreme Court doctrine that would have done just as well.

Good legal decision-making, however desirable, is not the same thing as justice. And, for better and for worse, what we tend to remember years later about the work of courts — if we remember it at all — is not judges’ professional skill, their attention to the factual record of cases, their scrupulousness about procedural niceties, and their devotion to craft. Rather, it is whether, in the eyes of later generations, they did justice in their time.

Keywords: Korematsu, Japanese Internment, Judicial Integrity, Racial Equality, Strict Scrutiny

JEL Classification: K10

Suggested Citation:

Balkin, Jack M., Korematsu as the Tribute that Vice Pays to Virtue (May 15, 2021). Arkansas Law Review, Vol. 74, No. 2, 2021, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3700088

Opinion | Will the End of the Mask Mandate Hobble Our Response to the Next Pandemic? - The New York Times

A  society that lets randomly selected life-tenured judges obstruct the considered decisions of public health authorities - particularly during a pandemic that has killed 1 million of its countrymen- is not serious about representative government. - GWC

Opinion | Will the End of the Mask Mandate Hobble Our Response to the Next Pandemic? - The New York Times

By Lawrence Gostin and Duncan Hosie

Should the federal government have the power to address broad public health emergencies?

Last week, a federal judge effectively answered no.

The judge, Kathryn Kimball Mizelle, who serves on a Federal District Court in Florida and was appointed by former President Donald Trump, issued a nationwide injunction blocking the government’s mask mandate for planes, trains, buses and other forms of public transportation.

No matter how you feel now about masks, you should be alarmed by her decision. Judge Mizelle’s ruling could prevent the federal government from effectively and nimbly responding to future pandemics. And long after this pandemic has faded, her approach and rationale could undermine the federal government’s authority to confront other big problems, from occupational health and safety to climate change.

The Biden administration has appealed the decision to the U.S. Court of Appeals for the 11th Circuit, but that carries its own risks. Six of the 11 active judges on that court are Trump appointees. A loss there by the Justice Department could permanently weaken the government’s authority to respond to health emergencies.

Why It’s So Hard to Rid the Courts of Junk Science // The Intercept

Bitemarks, fingerprints, drug talk, lie detectors.  Junk science invented by cops and prosecutors have sent countless innocents to jail.  But getting it ourt of the courtroom is a long, dififcult figh.

Why It’s So Hard to Rid the Courts of Junk Science

A new book by the Innocence Project’s Chris Fabricant charts the rise and fall of bite-mark evidence and “science” in the service of law enforcement.

Jordan Smith
April 24 2022, 7:00 a.m.



STEVEN MARK CHANEY had nine alibi witnesses. From morning to night, his movements on June 21, 1987, were well documented. Nonetheless, he was convicted and sentenced to life in prison for the murders of John and Sally Sweek, drug dealers Chaney had previously bought cocaine from and to whom he supposedly owed $500 — his alleged motive for brutally murdering them that day in their Dallas, Texas, apartment. There was nothing to tie him to the crime, save for a supposed bite mark found on John’s arm that several forensic dentists said matched Chaney’s dentition.

Bite-mark evidence rests on a deceptively simple foundation: that human dentition is as unique as DNA; that skin is a suitable substrate to record that alleged uniqueness; and that forensic dentists are adept at identifying wounds, usually bruises or abrasions, that have been made by teeth and then determining whose teeth did the biting. As it turns out, none of these claims are supported by any research, and today bite-mark evidence, which has led to at least 35 wrongful convictions and indictments, is considered junk science.

Party leadership and rule of law in the Xi Jinping era: What does an ascendant Chinese Communist Party mean for China's legal development? Jamie Horsley

Party leadership and rule of law in the Xi Jinping era: What does an ascendant Chinese Communist Party mean for China's legal development

By Jamie Horsley (Brookings - 2019)

 

email : Webview : Common Good Constitutionalism

email : Webview : Common Good Constitutionalism

For Every Rat Killed by Etienne C. Toussaint :: SSRN

For Every Rat Killed by Etienne C. Toussaint :: SSRN

For Every Rat Killed

9 Critical Analysis of Law 1 (2022)

20 Pages Posted: 11 Apr 2022 Last revised: 18 Apr 2022

Etienne C. Toussaint

University of South Carolina School of Law

Date Written: March 28, 2022

Abstract

If my grandmother had survived the sickness of old age and were alive to witness the economic injustices wrought by capitalist culture, what would she think? If my grandmother were alive to observe familiar technologies for exterminating household pests—surveil-lance, capture, imprisonment, disposal—being increasingly aimed toward low-income Black communities, what would she believe? If my grandmother were alive to discover, in the palm of her hands, a digital platform for spreading information (and misinformation) to the masses and painting new futures into the minds of lawmakers and politicians, what would she say?

Studies have shown that low-income individuals are more likely to suffer physiological and psychological harms than middle- and high-income individuals due to the substandard conditions of their communities. Yet, such indignities are justified by market opportunities to grasp for better—to take “personal responsibility” and “pull yourself up by the bootstraps”—even when the process of grasping for upward social mobility inflicts its own trauma. Placing Richard Wright's novel "Native Son" and Tara Bett's poem "For Those Who Need A True Story" in conversation with my personal narrative, this Essay explores the trauma of grasping for better in the United States where wealth inequities only seem to be getting worse.

In so doing, it considers whether capitalism’s competitive and individualistic culture—a spirit that thrives on the exploitation of the weak to further the capital accumulation of the strong—not only normalizes violence as a mechanism for social mobility but sews division and strife where alternative futures, perhaps even Afro-futures, might finally set us all free.

Keywords: capitalism, violence, Afrofuturism, critical race theory

Suggested Citation:

Toussaint, Etienne, For Every Rat Killed (March 28, 2022). 9 Critical Analysis of Law 1 (2022), Available at SSRN: https://ssrn.com/abstract=4067825

Adrian Vermeule –The Common Good - A Conversation - Ius & Iustitium

Adrian Vermeule – Ius & Iustitium - selected essays by Prof. Vermeule

PR citizens are of the second class: United States v. Vaello Madero (04/21/2022)

When it comes to public benefit programs subjected to equal protection challenge the Supreme Court turns to rational basis - instead of strict - scrutiny.  The net result?  See Sotomayor, dissenting.  - GWC

20-303 United States v. Vaello Madero (04/21/2022)

JUSTICE SOTOMAYOR, dissenting. 

The Supplemental Security Income (SSI) program provides a guaranteed minimum income to certain vulnerable citizens who lack the means to support themselves. If they meet uniform federal eligibility criteria, recipients are entitled to SSI regardless of their contributions, or their State’s contributions, to the United States Treasury, which funds the program. Despite these broad eligibility criteria, today the Court holds that Congress’ decision to exclude citizen residents of Puerto Rico from this important safety-net program is consistent with the Fifth Amendment’s equal protection guarantee. I disagree. In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I respectfully dissent.

Opinion | With or Without Trump, the MAGA Movement Is the Future of the Republican Party - The New York Times

Opinion | With or Without Trump, the MAGA Movement Is the Future of the Republican Party - The New York Times

By Thomas B. Edsall

Mr. Edsall contributes a weekly column from Washington, D.C., on politics, demographics and inequality.

The fissures in the Democratic Party are on display for all to see, since it is the party in power, but the divisions in the Republican Party and the conservative movement are deeper, wider and far more threatening.

Matthew Continetti, a senior fellow at the American Enterprise Institute, describes the developments that have brought the conservative movement to a boil in his new book, “The Right: The Hundred-Year War for American Conservatism.”

In Continetti’s telling, there was deepening frustration and anger on the right after Republicans took control of the House in 2011 but still could not block the seemingly inexorable move to the left. In 2011, the Department of Education declared that Title IX required universities to investigate charges of sexual harassment with few due-process protections for the accused — to the dismay of many conservatives (and plenty of liberals). In 2012, the Department of Health and Human Services mandated that Obamacare cover the costs of contraception and abortifacients. In 2016, the Department of Education advised schools to allow transgender students to use the bathroom of their choice.

“These administration dictates made many conservatives question the efficacy of controlling Congress,” Continetti writes. “The legislative body seemed unable to prevent the Obama agenda in any fashion.”

Michael Smith's Law Blog: The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

Michael Smith's Law Blog: The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

Advocates of corpus linguistics claim that it can bring a level of empirical rigor to legal interpretation. But as the court's ruling in this case demonstrates, corpus linguistics can backfire and lead to conclusions based on methodology that is impossible to examine or verify. 

Advocates of corpus linguistics will undoubtedly argue that misapplications of the methodology should not count against the method itself. But in a world where attorneys may increasingly seek to use corpus linguistics in a one-sided manner to convince judges that their position is correct, or where judges themselves employ corpus linguistics without the necessary transparency, the costs of this method to judicial transparency may outweigh the benefits. 

A judge or attorney may abuse dictionary definitions by selecting a particular dictionary or one particular definition among alternate, plausible definitions. But these abuses can be identified and critiqued. This is not the case with incomplete corpus linguistics analysis, in which a failure to disclose search terms, coding methods, and percentages of coded results makes it impossible to evaluate the interpretive methods employed. 

The court's decision in Health Freedom Defense Fund illustrates how this opaque, incomplete methodology can impact the lives of millions.