Theorizing the More Responsive State: Transcending the National Boundaries of Law

by Laura Spitz

Abstract

“In a recent essay in the Yale Journal of Law & Feminism, Martha Fineman proposed the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. Putting aside the particulars of her theory for a moment, critical to Fineman’s analysis is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires “a more responsive state.” In this paper, I focus on a basic question provoked by her call for a more responsive state, namely: to what does she refer when she invokes the “state”‘ Fineman does not resolve this question, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” but not necessarily the nation-state. If not necessarily, or not only, the nation-state, then where is it (or where might we locate it) for the purposes identified by Fineman. At both a conceptual and organizational level, one answer might be transnational or supranational institutions in North America. Much of the American literature theorizing the state has focused on the nation as the locus of state power and authority. Functional theories, instrumental theories, and critical theories have typically conceived of the state as defined by territorial and/or geopolitical borders. Within legal scholarship, an even narrower focus has been common: the state as adjudicatory apparatus. Yet it may be more productive (and promising) for feminists to shift the conceptual lens so that it embraces a wider and less vertical conception of state power. Thus, this paper takes up Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US to North America, and putting two groups of scholars in conversation with one another: feminist legal theorists, on the one hand; and integration theorists, including governance theorists within that broader category, on the other. Ultimately, my aim is to suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) in order to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities identified by Fineman.”

Read more here.

Spitz, Laura, Theorizing the More Responsive State: Transcending the National Boundaries of Law (September 24, 2009). UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 17/2009, Available at SSRN: https://ssrn.com/abstract=1477922 or http://dx.doi.org/10.2139/ssrn.1477922

Martha Albertson Fineman’s 2022 ABF Outstanding Scholar Award Speech

Below you will find the text of Professor Martha Albertson Fineman’s 2022 ABF Award speech. The award ceremony took place virtually on Tuesday, February 15, 2022.

“Thank you very much Dean Nance for such a lovely introduction.

I was very proud when I first became a fellow of the American bar foundation, an organization comprised of an impressive group of scholars, jurists, and practitioners dedicated to upholding the finest traditions of legal scholarship and practice.

Of particular importance to me over the years has been the Foundation’s commitment to using an interdisciplinary approach to consider the complexities and intricacies of law and their implications for society.

In this regard, the foundation has served a vital role — not only in supporting — but also in validating interdisciplinary research seeking to understand how law both arises from and impacts the societies in which we live.

As many of you are undoubtedly aware, such interdisciplinary studies have not always been well received within the Academy, and today we see attacks on critical theory specifically and academic freedom more generally by politicians and others.

Such threats seem to be destabilizing and undermining the very institutions upon which we depend.

Those of us who believe such critical but constructive research is essential for a thriving democracy and a just society welcome the example and support of organizations like the American Bar Foundation.

Receiving the outstanding scholar award for 2022 is not only a tremendous honor, but validation for my work that will sustain me in the complex and unsettled future we most certainly face. Thank you.”

Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises

by Marc Roark and Lorna Fox O’Mahony

Abstract
“Political and property crises open up vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant ‘shock’ event, with financial, economic, social, cultural and political impacts on a scale not experienced since at least the 1930s. The threat the pandemic posed to human life demanded immediate action in response to an unexpected and unpredictable and urgent threat, delivered under intense public scrutiny. The challenges were ‘wicked’: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic.
In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with ‘private property’ law in ways that were unimaginable before Spring 2020. In this article, we examine the range of ways that governments adapted their approaches to property, housing and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of ‘Resilient Property’. We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction and homelessness, and reflect on the legacies of these actions for property theories and property law.”
I. Property and the Pandemic
Our analysis draws examples from five jurisdictions: the U.S., the U.K., Ireland, Spain and South Africa. Seeking out a middle-ground—between abstract meta-theories or politically polarized binaries, and on-the-ground doctrinalism—Resilient Property is rooted in contextualized, historicized accounts of state action with respect to private property. It focuses on the systems that create property outcomes, seeking to build a realistic understanding of how these are adjusted: through tactics, strategies, advocacy, but also through events and externalities. Our approach aims to develop new insights to how property works, as well as what works, when states respond to property problems.
Eschewing the ab initio philosophical commitments that characterize much liberal property theory, it is focused on developing a new mode of thinking about property, and the methodological and analytical tools to enable this. To this end, our approach echoes neo-pragmatism, in seeking first to understand state responses to property problems in a complex, multi-scalar governance framework. Wood and Smith explained that:

“…one of the central features of pragmatism is that it is a way of thinking that is grounded in anti-foundationalism. Ideas are not transcendent, fixed truths, rather they are outcomes of embodied experiences and instrumental actions that are dynamic, contingent and continually evolving. Decades before the first post-structuralist utterances, the early pragmatists were turning away from metanarratives, objective truths, and unifying theories, preferring instead to develop modes of thinking, which they believed had greater utility for helping people to cope with the messiness of everyday life.”
Resilient Property offers techniques for engaging with—while not eliding or transcending—the ‘messiness’ of property problems, echoing this pragmatic concern for dynamic, contingent and continually evolving modes of thought. Finally, our analysis of state-level and city-level responses to squatting also resonates with the concept of ‘pragmatic localism’—the proposition that ‘high-scale’ ideology (given effect through national policy) can be mediated to deliver ‘what works’ to solve policy problems at the local level; indeed, “not just ‘what works, but what works here’.”
‘Resilient Property’ offers a fresh lens through which to understand the nature and effects of state action with respect to private property in periods of crisis and pressure. In what has become an ‘age of crises’, the coronavirus pandemic exemplifies a compound health/economic/property crisis. Each state’s response can be understood relative to other nation states, as well as in relation to its own background commitments—the pre-pandemic property nomos or ‘normative universe’ of legal texts, decisions, norms and narratives that frames state responses to property challenges in each jurisdiction. We review state responses to eviction, housing and homelessness during the pandemic, reflect on the extraordinary steps that states have taken to shore up occupation—enabling people to ‘shelter in place’—and evaluate the impact of the pandemic through a Resilient Property lens.”

Roark, Marc and Fox O’Mahony, Lorna (2021) ‘Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises.’ Louisiana Law Review, 82. ISSN 0024-6859 (In Press). Available at http://repository.essex.ac.uk/31747/.

Law and Structuring Individual and Institutional Responsibility: Beyond Equality and Freedom

Below you will find working chapter titles for our upcoming collection to be published by Routledge. These papers were presented at a VHC workshop in January titled “Re-Conceiving Equality and Freedom: Vulnerability, Dependency, and the Responsive State.”

Part I centers the vulnerable subject in place of the liberal subject in constitutional law and legal theory. Part II uses vulnerability theory to rethink traditional approaches to law. Part III reconceives state responsibility in the context of health care, including public health emergencies. The chapters that comprise Part IV use vulnerability theory to explore the inadequacies of legal rules that structure our economic lives. The final chapter will explore the potential for vulnerability theory to shift approaches to access to justice.

  • Restructuring the Constitution for Human Resilience | Martha McCluskey (Professor of Law and Magavern Faculty Scholar, University of Buffalo)
  • Everything Old is New Again: The Pandemic and the Vulnerable Subject | Kathryn Abrams (Herma Hill Kay Distinguished Professor of Law, Berkeley Law School)
  • Nondiscrimination as a Property Right| Xiaoqian Hu (Associate Professor of Law, University of Arizona)
  • Housing Trusts and Resilient Cities: Solving Property Problems Through a Vulnerable Lens | Marc Roark (Louisiana Outside Counsel of Health and Ethics Endowed Professor of Law, Southern University Law Center)
  • Using Vulnerability Theory to Reconceive the Relationships Between Indigenous Nations and the United States | Laura Spitz (Professor of Law, University of New Mexico), Nazune Menka (Tribal Cultural Resources Policy Fellow, UC Berkeley School of Law)
  • Market Citizenship and Resilience Allocation | Hila Keren (Associate Dean for Research and Paul E. Treusch Professor of Law, Southwestern Law School)
  • The State’s Role in the Social Contract: Vulnerability Theory and the Workplace | Jonathan Fineman (Associate Dean for Student Learning & Assessment and Professor of Law, Florida Agricultural and Mechanical University)
  • Vulnerability and Health Law after COVID-19: From Entitlement to Obligation| Matthew Lawrence (Associate Professor of Law, Emory University)
  • Vulnerability, Disability, and Public Health Emergencies | Ani Satz (Professor of Law, Emory University)
  • The Elder Catch: Engineering the Future of Caregiving | Jessica Dixon Weaver (Robert G. Storey Distinguished Faculty Fellow, Gerald J. Ford Research Fellow, and Professor of Law, SMU Dedman School of Law)
  • Gender, COVID, and Care | Naomi Cahn ( Justice Anthony M. Kennedy Distinguished Professor of Law, University of Virginia), June Carbone (Robina Chair in Law, Science and Technology and Professor of Law, University of Minnesota)
  • Manufacturing Resilience | Lua Kamál Yuille (Professor of Law, Northeastern University)
  • The State’s Use of Law and Public Policy to Support and Strengthen Unionization and the Labor Movement | Risa Lieberwitz (Professor of Labor and Employment Law, Cornell University)
  • Vulnerability Theory and Access to Justice: Elaborating Possibilities for Legal System Design | Andrew Pilliar (Assistant Professor of Law, Thompson Rivers University)

Animals as Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property

by Ani B. Satz

Image via Pixabay

Human relations with domestic animals—companion, factory farm, and laboratory animals—are based on contradiction. We coddle them, eat them, leave our estates to them, experiment on them, buy them designer collars and clothes, wear them, risk our lives for them, and abandon and kill them. These contradictions are entrenched in a sprawling body of law regulating human use of animals as property.

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Vulnerability and the Organisation of Academic Labour – A Special Issue of The Law Teacher

The Law Teacher, Volume 55, Issue 1 (2021)

This special issue of The Law Teacher was edited by Graham Ferris and Martha Albertson Fineman. Pieces and contributors include:

  • Vulnerability Theory and Higher Education by Risa L. Lieberwitz
  • Undermining Resilience: How the Modern UK University Manufactures Heightened Vulnerability in Legal Academics and What Is to Be Done by Graham Ferris
  • Rethinking the Neoliberal University: Embracing Vulnerability in English Law Schools? by Doug Morrison and Jessica Guth
  • Vulnerability, the Future of the Criminal Defence Profession, and the Implications for Teaching and Learning by Nicola Harris, Roxanna Dehaghani and Daniel Newman
  • Vulnerability Theory as a Tool against a Banking Model of Legal Education by Fabrizia Serafim
  • The Positive and Negative Roles of Grant Funding as Mechanisms for Societal Transformation and the Development of Community Resilience by M. Joan Wilson and W.R. Sexson
  • The University’s Fragile Role in Fostering Societal Resilience by Facilitating the Development of Community-Engaged Professionalism by W.R. Sexson and M.J. Wilson
  • Two Futures for Law Schools by Alastair Hudson
  • Book Review –  Key Directions in Legal Education: National and International Perspectives by Aysha Mazhar
  • Enemies of the People? How Judges Shape Society by Ben Waters
  • Book Review – Law and the Passions: Why Emotion Matters for Justice by Senthorun Raj
  • Book Review – Resisting Disappearance: Military Occupation and Women’s Activism in Kashmir by Gowri Nanayakkara
  • English Legal System by Alexia Zimbler
  • Criminal Law Directions by Kate Astall

A Note from Our Incoming Visiting Scholars from Brazil

Image via Geralt

The below piece is written by our incoming visiting scholars Cecília Pazinato Marcon and Maria Fernanda Marques about the research that they will conduct while they are visiting scholars with the VHC at Emory Law. They will join us virtually from Brazil in 2022.

Our research is about bullying legislation and we understand that all children and teenagers are susceptible to bullying no matter their gender, skin color, ethnicity, religion, or disability. We have noticed that laws and schools usually seem to focus their protection only on a specific group of individuals instead of trying to assure a healthy environment for everybody.

We find vulnerability theory interesting for our research as it begins with the recognition that we are all universally vulnerable because we are all embodied beings, therefore we are all innately dependent on social relationships and institutions.

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Populations, Pandemics, and Politics

by Martha LA Fineman

Image via Pixabay

The pandemic has created a series of practical and policy challenges for the entities and individuals deemed responsible for public health and welfare. The way in which those challenges have been approached reveals the assumptions that underlie the allocation of social welfare responsibility in a society. Of particular interest are the norms or standards and values governing the relationship between the individual and the state and its institutions. These norms historically reflect the distinction between what is considered appropriately of “public” concern and what is deemed primarily a “private” matter. This line between the public and the private serves to allocate responsibility, with private matters often being assign an individual or personal responsibility. Our understanding of the private also enhances the concept of individual rights as constituting necessary bulwarks against perceived inappropriate or invasive state action. At the same time, the construction of the private constrains notions of collective welfare and responsibility.

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Student Reflections on Dr. Mboya’s course

What follows is a series of anonymous class reflections from Dr. Atieno Mboya Samandari’s class on Law, Sustainability, and Development.

Reflection 1

Equality, as a concept, is a wonderful thing. I have always been moved by John Rawls “Original Position” thought experiment where we design our society/institutions from behind a “veil of ignorance” that prevents us from knowing which race, gender, or economic status we would be assigned in our society. From that original position, people would be incentivized to create a more just and fair system. In “The Vulnerable Subject”, Martha Fineman highlights how our current conception of equality fails to account for discrimination/disparities that are less-easily demarcated.

Continue reading Student Reflections on Dr. Mboya’s course