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First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information”As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out. But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty.
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Bordering Legal ParenthoodWhy should borders matter to the legal field of parenthood? The sustained reification of the institution of Family requires borders—spatial, legal, and symbolic—that demand the exclusion of those who fail to adhere to its norms. Yet, as the present article exposes, this institution’s borders can also become a terrain in which new forms of agency and beneficial processes emerge, inviting a reconsideration of the traditional paradigms that sustain that institution. This article examines this dual understanding of the role of borders and assesses the transformative costs and trade-offs of crossing them. To pursue this inquiry, it focuses on the longstanding struggle of gay Israeli men to become parents via surrogacy, and contextualizes the trajectory of this struggle across different geopolitical scales, through the lens of “border-as-process”. This “bordering” lens reveals how borders—in their opening, closing, and transgressing—create new relations and offer new possibilities for legal and institutional change.
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Eliding Original Understanding in Cedar Point Nursery v. HassidCedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they caused economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even a rejection of what made the new nation a land of liberty.
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Caribbean “Credit Nations”: Consignment Economies in the British West IndiesA central tenet of English property law has been the protection of land and the interests of potential interest holders in such land. For centuries, creditors could not reach land to satisfy debts either in the British Isles or in the colonies. Against this background, Claire Priest delineates how the British Parliament, in a series of deeply controversial moves culminating in the Debt Recovery Act of 1732, modernized law in the American colonies so that it privileged creditors. More specifically, the Debt Recovery Act made it possible for creditors of colonial debtors to execute debt judgments on real property as well as on enslaved people for the recovery of debts. Colonial governments in the American colonies, building on this legislative framework, also promoted innovations that would allow creditors to reach both land and slaves more easily. For example, several colonial statutes were passed to make clear that enslaved persons were property that could be utilized as collateral for loans, and also auctioned, in the event that debtors later defaulted.
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Rethinking Property Rights in the Light of Credit NationThe publication of Claire Priest’s new book, Credit Nation: Property Laws and Institutions in Early America, is an occasion well worth marking. Several years ago, when I read her article Creating an American Property Law, the first piece in the project that became this book, I was dumfounded. The subject of that article, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, enacted by the British Parliament in 1732, was a major, unilateral revision of property rights to land in the colonies, though not in Britain. The act not only made it possible for creditors of colonial borrowers to seize land in payment of unsecured debts, but it stripped future generations of property rights that had long been secured to them under English law. How could it be that a redistribution of this importance was so little known until Priest called attention to it? How could it have been so completely ignored in writing on colonial political, legal, and economic history, especially in accounts of the British impositions that led to the Revolution? Much more minor afflictions, such as Virginia Governor Dinwiddie’s attempt in 1752 to levy the fee of one pistole for sealing land patents, have been singled out as precursors to the rebellion: “Liberty & Property and no Pistole!” Priest’s work not only remedies this omission, but by connecting the debt recovery act to later Revolutionary-era events, provides a deeper understanding of the protests over Dinwiddie’s fee, as well as over later, more consequential, levies such as the Stamp Act.
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A Glimpse of Early Modern Governance in Claire Priest’s Credit NationClaire Priest’s remarkable book serves up a whole new view of commercial relations in the colonies that were to become the United States. Her striking revelation of the importance of slavery in colonial commercial innovation will undoubtedly catch the attention of readers and reviewers, coming as it does at a moment when the history of slavery has come under an especially searching spotlight. A second theme that will capture attention runs through the entire book: the countervailing efforts of colonial entrepreneurs to borrow and thus take potentially wealth-producing risks while also leavening risk with now-obsolete property devices like entailed fees. Both these themes necessitate revisions of conventional views. The first revision, among others, concerns the geography of colonial commercial growth, which, as Claire reveals, very much involved trafficking in enslaved persons. The conventional view of colonial entrepreneurship is that the major location was in the north: Yankee clippers plying the seas, Ben Franklin types setting up print shops, Paul Revere producing silver goods, and so on. But in Claire’s book, the major financial innovators were the southern planters, taking on debt to invest in what looks like industrial agriculture—staple crops like indigo and tobacco—and for that purpose pledging not only their land as surety but their slaves as well.
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Property and Credit: A Legal and Economic HistoryMany legal historians engage in various forms of critique of capitalism and Western colonialism. Very few actually study capitalism from the inside, addressing questions related to capital accumulation, financial institutions, entrepreneurs, or business corporations. Fewer still scrutinize, from the inside, the connections between capitalism and colonialism, by studying global trade, capital flows, the City of London, or multinationals. Some of the historians who have been attracted to these internal issues in recent years and identify themselves as new historians of capitalism avoid economic history and economic theory, it would seem, due to ideological hostility, ignorance, or a lack of the specific competencies required in these realms. Few of these historians pay attention to law. But the group of scholars who are involved in what I term legal-economic history—historians who are willing to tackle the details of legal doctrines and institutions, on the one hand, and draw on economic history literature and insights from economic theory, on the other—is markedly small. I can think of fewer than a dozen such active legal-economic historians. Claire Priest is one of these exceptional few. She does legal-economic history of the kind I appreciate and aim to do myself. In Credit Nation, she employs economic history literature and engages with economic historians.
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Property in Land in the Early United StatesClaire Priest’s impressive book emphasizes the lack of legal restrictions on the remedies of creditors in what would become the United States. She stresses Parliament’s passage of the Debt Recovery Act in 1732, a distinctly pro-creditor enactment. An important part of her narrative addresses security interests in slaves. By 1785, South Carolina had established a county system for the voluntary recording of mortgages on slaves. The focus of this essay, by contrast, is entirely on property in land, including mortgages on land. Priest’s book cites Alice Hanson Jones’s finding, based on an examination of probate records at the time of the Revolution, that real estate, not slaves, constituted a solid majority of personal wealth, even in Southern States. Priest asserts that Jones found that “land constituted 81.1% of wealth in New England, 68.5% in the mid-Atlantic region, and 48.6% of wealth in the South, with slaves constituting 35.6%.” There is a small literature on real estate transactions in early America. Standouts include John Frederick Martin’s Profits in the Wilderness (1991), on town formation in seventeenth-century New England, and Elizabeth Blackmar’s Manhattan for Rent, 1785-1850 (1989). Nonetheless, much remains to be done. Land records, rarely explored by historians, provide potential troves of information. In this brief essay, I comment on two topics related to real estate: the role of land speculators in the eighteenth century and the development of Manhattan real estate during the lifetime of John Jacob Astor, who at this death in 1848, was one of the richest men in the world.
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Commentary on Claire Priest’s Credit Nation: Property Laws and Institutions in Early AmericaIt is such an honor to have the opportunity to engage with Claire Priest’s Credit Nation: Property Laws and Institutions in Early America. Priest’s articles have long been on my graduate students’ lists for comprehensive exams, and they are often cited as among the most influential of their readings. This past spring, when a student was asked in her oral exam to come up with turning points in the colonial era, she immediately said 1732. Why, asked the questioner, a bit confused, expecting the usual dates associated with wars or political events or even the dates associated with the development of slavery. In fact, the questioner followed up with one of those dates: Why not 1619? The student replied with remarkable confidence: 1732 was the date of the Debt Recovery Act, which made real estate and enslaved property available to satisfy creditors’ claims. That, in her mind, changed everything. Credit Nation explains how the Debt Recovery Act and a host of other legal measures did just that: changed everything, by building the availability of credit into the legal order and, thereby, fueling capitalist development. The implications upend basic assumptions in the scholarship of early America. They shift the chronology of economic change from the nineteenth century to the eighteenth century. They shift the location of legal innovation, bringing Virginia and its agricultural economy into focus alongside New York and its commercial economy. They shift the means of legal change, from appellate decisions to statutes and from centralized states to local governments, which developed in the way that they did to keep all the necessary records. And they shift the targets of law, from the property usually associated with industrial development to that associated with the agricultural economy, in the form of real estate and enslaved people.
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Credit Nation and the Reconfiguration of Early American and Imperial HistoryClaire Priest’s Credit Nation is a remarkably innovative piece of scholarship. In this book Priest demonstrates that anyone seriously interested in the emergence of “capitalism” in America needs to start by studying the law and its institutions in the colonial era. It was in the colonial era, Priest shows, that a distinctive version of property law emerged, one that in the vast majority of situations prioritized credit and liquidity over the security of property. “The ease of access to credit” established in the colonial era, Priest argues, “was key to the explosive growth of capitalism in nineteenth-century America.” Certainly, as she shows, the passage of the Debt Recovery Act of 1732 was followed by a period “of great colonial economic expansion, driven by credit” in the 1740s. While my colleagues have emphasized Priest’s seminal contributions with respect to legal and economic history, I wanted to draw attention to the profound implications of Priest’s work for colonial and imperial history. In essence, I am suggesting appendixes to Chapter 9 that would interpret the significance of Priest’s findings for still more audiences.
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Confiscation Nation: Settler Postcolonialism and the Property ParadoxCapitalist from the beginning. That is the emerging consensus about early America. Just a generation ago, many historians of law and economy sought instead to locate the moment of transition from community-based economies to market capitalism. The “great transformation” was dated variously, but the American Revolution often provided a key to the shift. Those scholars, in turn, were reacting against the consensus historians of the Cold War era, who tended to find broad agreement in the sources that politics, law, and society worked in tandem to generate economic growth. Now, a version of that consensus is returning. Historians today, however, find more conflict and exploitation in their sources. Perhaps the most striking departure from the old consensus is the prominent place of slavery in the new histories of capitalism. Another notable difference is the role of the Revolution—or its absence. Capitalism appears to have emerged almost fully formed in the colonial period, with changes to its legal structure representing functional adjustments to satisfy the needs or interests of market participants. But was early American politics just a pass-through device for wealth-maximizing private interests? Did politics and especially political ideas matter for the development of American economic institutions? And did the American Revolution have any effect on the structure of the market?
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Foreword: From Ownership to CreditFor much of the previous four decades—decades that saw the rise to prominence of both the New Institutional Economics and Law and Economics movements—the primary intellectual paradigm in property law was one of exclusion and security. The key functional virtue of property law in this paradigm was the security of private investments against outside expropriation, whether vertically from state actors or horizontally from other private entities, and therefore the predictability of returns to investment. Such security was primarily achieved through exclusion rights, exercised both vertically and horizontally: takings law being a major example of the former, and trespass law the central example of the latter. Property rights were therefore, above all, rights of ownership or dominion over things of value, and their primary economic functionality was to facilitate the creation of credible commitments against expropriation or invasion.
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The University in the Mirror of JusticesIn its 1915 Declaration of Principles on Academic Freedom and Tenure, the American Association of University Professors (AAUP) set forth a limited analogy between the professoriate and the judiciary. The purpose of this article is to explore this analogy’s genesis, basis, implications, and limits. Its claim is that the judicial analogy deserves renewed attention and consideration in the contemporary debate over the future of academic freedom.
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Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary OriginalismThe Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make a President stronger than a king.
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Resisting Renoviction and Displacement Through Cultural Land Trusts: Art and Performance Spaces, Pop-Ups, DIYs, and Protest Raves in VancouverThis Article draws on ethnographic fieldwork to explore the use of cultural land trusts as local urban resistance to the displacement of arts and culture spaces in Vancouver. Cultural land trusts shift power back to relationally marginalized and displaced communities whose voices frequently fail to figure equitably within decision-making processes affecting their urban landscape. Cultural land trusts draw on the community land trust and community ownership structure with the goal of preserving affordable access to land and space for arts and culture in the city. As previously marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work spaces for the arts sector are becoming less available. Their absence threatens the economic and cultural potential of art and the physical dimensions necessary for the sustainability of urban art and culture.
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Legal Principles, Law, and TraditionLegal reasoning and legal discourse take place within historical traditions that develop over time. Law is characterized by the authoritative presence of those historical traditions. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. These social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the moral reasoning of legal participants—all of which have been mistakenly left aside by many legal positivists and their usual focus on coercive institutions. I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The Hart-Dworkin debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by le al positivism, is entirely consistent with the existence of legal principles.
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Judicial Solidarity?We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counter- narrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms.
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Interpretation and JudgmentThe major conclusions in Georgia Warnke's illuminating Essay, Law, Hermeneutics, and Public Debate are persuasive, but some that appear almost self-evident instead rest on controversial evaluative judgments. Many of my comments deal with these complexities, drawing from her book on interpretation and political theory as well as her Essay. Other remarks develop subjects Warnke barely touches. My thoughts are, thus, some combination of clarification, supplementation, and disagreement. My initial effort is to refine in just what senses interpretations of texts, social practices, and legal rules must speak to our concerns. I next explore how interpretations of legal texts that are applied in the present and are backed by coercive force differ from portrayals of literature; then I inquire how these differences bear on strategies of interpretation. I endorse Warnke's rejection of a jurisprudence that focuses exclusively on original meaning, but I argue that this rejection cannot be grounded in general hermeneutic theory standing alone. Crucial moral and political judgments have to be made about allocating public functions. I then turn to Professor Warnke's analysis of debate over great constitutional issues. I emphasize the multiple levels of legal analysis of a subject like abortion. The terms of public debate usually connect to the terms of legal analysis, but these forms of discourse are not identical. Relatedly, interpretation of relevant legal texts will not always track broader interpretations of social meaning. I next consider Professor Warnke's account of legitimate constitutional interpretation. I question some of her conclusions about illegitimate interpretations, and raise doubts about how far the two criteria she offers for legitimate interpretation apply to legal interpretation. Finally, I address the theme that there may be something like "the nature of the thing," and offer brief suggestions about how a hermeneutic approach to interpretation like Warnke's may fit with belief in natural law.
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Reply to GreenawaltProfessor Greenawalt's perceptive Essay raises at least four issues: the issue of what he calls modernization, the issue of standards of interpretation, the distinction between discourse within the law and public debate over social values, and the question of the compatibility of hermeneutics and natural law. I would like to look briefly at each of these issues in turn.
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Law, Hermeneutics, and Public DebateFor Hans-Georg Gadamer, the task of any historical hermeneutics is "to consider the tension that exists between the identity of the common object and the changing situation in which it must be understood." With regard to legal hermeneutics this task issues from the circumstance that "[a] law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted .... [T]he text ... if it is to be understood properly - i.e., according to the claim it makes - must be understood at every moment, in every concrete situation, in a new and different way." Gadamer concludes that this combination of identity and change is the sense to be given to Aristotle's conception of natural law. On the one hand, the idea of natural law indicates that "despite all the variety of moral ideas in the most different times and peoples ... there is still something like the nature of the thing." On the other hand, "the nature of the thing" does not determine an unvarying content that is the same as a fire that "burns everywhere in the same way, whether in Greece or in Persia." In this Essay, I want to consider this claim not by considering natural law directly but by looking at certain of our current debates over the meaning of universal principles we think are embedded in the U.S. Constitution. I shall begin by underlining what I take to be relevant aspects of Gadamer's hermeneutics and then turn to disputes, such as those over abortion and affirmative action, that seem to divide Americans' understanding of constitutional principles in increasingly bitter ways.
