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    Jane Baron

    This Article examines the sometimes-vehement resistance to legal storytelling, a resistance reflected in Daniel Farber and Suzanna Sherry’s oft-cited article, Telling Stories Out of School: An Essay on Legal Narrative. Part I suggests... more
    This Article examines the sometimes-vehement resistance to legal storytelling, a resistance reflected in Daniel Farber and Suzanna Sherry’s oft-cited article, Telling Stories Out of School: An Essay on Legal Narrative. Part I suggests that, rather than focusing on who is telling stories in law, it is more important to ask why. The answer, put simply, is that stories are said to demonstrate how power can inhere invisibly in the most apparently neutral of standards. The focus on power helps explain why story-telling holds strong appeal for scholars especially interested in social change. Storytelling attempts to illustrate the inevitable partiality of all evaluative criteria, and this attempt suggests a counter-critique of Farber and Sherry’s appraisal. For the kinds of standards to which Farber and Sherry would hold storytellers — standards requiring “reason” and “analysis” — are exactly those the storytellers wish to question. Part II explores a dilemma within the storytelling movement. Many of the stories told in law recount in detail real-life experiences, experiences which the law can respect or deny. Yet storytellers often argue that there is no reality that can be uncontroversially known, i.e., that there are no “true” accounts, just many accounts. The article argues that it is this inconsistent, ambivalent attitude toward the truth-claims of stories that opens the movement up to criticism.
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story,"... more
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story," "narrative," and "rhetorical." In this article, we argue that terms such as these, and claims that rely on them, require definition and clarification. Questions such as "is law narrative?" or "is law rhetorical?" implicate the tricky business of how meaning is made in law. If that is the issue, we ought to face it directly. That is the aim of this essay. In Part I we illustrate the narrative character of a traditional law review article. Our point is to show that it is relatively simple to see even the most conventional scholarly writing as containing and comprising a story. In Part II we examine whether our analysis in Part I is "fair" to the article, or whether it distorts in important ways what the article says. Our goal here is to demonstrate the epistemological positions at stake in the controversy over narrative. In Part III, we connect the debates about storytelling to contemporary debates over the possibility of neutrally or objectively discovering and representing facts. These debates have a peculiar valence and poignancy in law, where "finding the facts" has always seemed central to doing justice.
    This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a... more
    This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation no property. This paper seeks to describe the legal category no property. Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in...
    Legal scholarship has increasingly borrowed from other, non-law, disciplines; as it has done so, legal scholars have taken increasing interest in the possibilities and limits of interdisciplinarity. Tellingly, virtually all discussions of... more
    Legal scholarship has increasingly borrowed from other, non-law, disciplines; as it has done so, legal scholars have taken increasing interest in the possibilities and limits of interdisciplinarity. Tellingly, virtually all discussions of interdisciplinary scholarship call upon two related metaphors. The first is a metaphor of border-guarding. This is an immigrant/emigrant scholarship, employing tropes of insiders and outsiders, residents and aliens; it relies on images of imperialism, scavenging, and parasitism. The second metaphor is one of fidelity. This metaphoric realm employs tropes of seduction, enchantment, betrayal, faithlessness and abandonment, calling on images of marriage, adultery, and divorce. The two metaphors are linked by a common theme, the theme of boundaries that can be respected or crossed. Border metaphors raise questions about the legitimacy of discipline-traversing scholarship. What does a scholar from one discipline need to know in order to 'employ'...
    It is a truism of Anglo-American law that there is a difference between gifts and bargains, between donative transfers and contractual exchanges. Donative transfers, it is said, carry out benevolent urges in the context, usually, of the... more
    It is a truism of Anglo-American law that there is a difference between gifts and bargains, between donative transfers and contractual exchanges. Donative transfers, it is said, carry out benevolent urges in the context, usually, of the family, whereas contractual exchanges carry out self-interested aims in the context, usually, of the market. Following this reasoning, gifts and bargains are subject to divergent legal requirements. With respect to gifts, where the primary legal goal is to effectuate donative intent, formalities are said to be required to put that intent beyond question. In contrast, with regard to contracts, where the primary legal goal is protection of expectations and security of transactions, consideration is said to be required to mark off those promises customarily understood, in a market economy, to be binding. There are, however, reasons to question the notion that there is a "fit" between the nature of gifts and bargains and the legal requirements ...
    A set of common themes and concerns runs through three bodies of theory that might otherwise appear unconnected: environmental ethics, civic republicanism, and commodification. In very different contexts, authors in all three areas seem... more
    A set of common themes and concerns runs through three bodies of theory that might otherwise appear unconnected: environmental ethics, civic republicanism, and commodification. In very different contexts, authors in all three areas seem to ask some very similar questions. Collected together, these questions comprise a novel critique of the economic analysis of law - a "moral" critique that is quite different from technical and distributional critiques that have been offered in the past.The argument, in a nutshell, is that the choice whether to submit any "good" to market trading, and the related choice whether to think and speak of that good in cost-benefit terms, presuppose a controversial, and often submerged, moral choice. Markets, these theorists argue, maximize satisfaction of a limited range of the preferences we have - the preferences we have when we think only of, and act only for, ourselves. But we also have a range of preferences (and attributes and qua...
    This essay introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this... more
    This essay introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth, scope, and the cause of the problem (e.g., is homelessness a product of individual weakness or of structural forces beyond any individual's control?) These questions, it turns out, are both extremely difficult to answer and, more disturbingly, not terribly helpful. Even the strongest case that homelessness is "caused" by institutional forces and not personal failure seems unlikely to lead either local or national government to commit the resources necessary to "solve" the underlying problem if that problem is, say, a failure of the housing market to produce affordable rental units or a failure of the job market to produ...
    For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy... more
    For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy or human flourishing, and those who focus on property’s means, i.e., its use of qualities such as modularity and exclusion to manage complexity in a cost-effective way. The bundle-of-rights conceptualization has been swept up into the controversy, becoming the particular target of means-focused theorists, who argue that the bundle conceptualization obscures critical features of the property system, most notably its use of strategies of exclusion, in rem rights, and indirectness. These theorists assert that, twentieth century wisdom notwithstanding, property is not a bundle of rights but rather is a law of things.Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normati...
    Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document,... more
    Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document, and that document can and should be fixed against other outside evidence of intention. Experience with end-of-life health care decision making gives reason to question these premises. In the health care context, intentions have proven to be fluid, and the documents purporting to record individuals’ wishes have often proved unreliable. This paper examines the implications for wills of the literature on end-of-life health care decision making. Advance health care directives and property wills are alike pre-commitments, attempts in the present to bind the future, but studies in the end-of-life health care decision making context show there are serious issues with this process. Individuals simply do not care to decide about post-competency treatment, th...
    Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in... more
    Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume — as does the Wi...
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story,"... more
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story," "narrative," and "rhetorical." In this article, we argue that terms such as these, and claims that rely on them, require definition and clarification. Questions such as "is law narrative?" or "is law rhetorical?" implicate the tricky business of how meaning is made in law. If that is the issue, we ought to face it directly. That is the aim of this essay. In Part I we illustrate the narrative character of a traditional law review article. Our point is to show that it is relatively simple to see even the most conventional scholarly writing as containing and comprising a story. In Part II we examine whether our analysis in Part I is "fair" to the article, or whether it distorts in important ways what the article...
    Research Interests:
    It is a truism of Anglo-American law that there is a difference between gifts and bargains, between donative transfers and contractual exchanges. Donative transfers, it is said, carry out benevolent urges in the context, usually, of the... more
    It is a truism of Anglo-American law that there is a difference between gifts and bargains, between donative transfers and contractual exchanges. Donative transfers, it is said, carry out benevolent urges in the context, usually, of the family, whereas contractual exchanges carry out self-interested aims in the context, usually, of the market. Following this reasoning, gifts and bargains are subject to divergent legal requirements. With respect to gifts, where the primary legal goal is to effectuate donative intent, formalities are said to be required to put that intent beyond question. In contrast, with regard to contracts, where the primary legal goal is protection of expectations and security of transactions, consideration is said to be required to mark off those promises customarily understood, in a market economy, to be binding.

    There are, however, reasons to question the notion that there is a "fit" between the nature of gifts and bargains and the legal requirements applicable to them. First, it rests on assumptions about human behavior in giving and bargaining which are at odds with conventional views of the contexts in which such transfers are ordinarily said to arise. Despite the benevolent motives and family settings usually associated with gifts, the accepted justification of donative formality assumes that, in giving, people are fundamentally unreliable and deceitful. Despite the self-interested alms and arm's length relationships usually associated with bargains, the accepted justification of the consideration doctrine assumes that, in business, people are trusting and trustworthy. These justifications turn the world topsy-turvy. We are to be suspected when we give, relied on when we trade.

    Second, the notion of "fit" requires that gifts and bargains be truly different transactions. The now-accepted legal definition of a gift as a transfer without consideration is designed to assure that any particular transaction can be placed on one and only one side of the gift/bargain line. Yet there is nothing inevitable about this definition, which developed late in the life of the common law and which has never been used in the civil law. Indeed, the definition contrasts sharply with non-lawyers' understandings of gifts. Anthropological, sociological and psychological studies of gifts all suggest that gifts and bargains are alike exchanges, differing only in that bargains involve the exchange of commodities, while gifts may involve the exchange of noncommodities such as status, obligation, "psychic reward" or the like. The "purely" one-sided donative transfer is not part of the "reality" non-legal social scientists have studied.

    This essay argues that that the presumed dichotomy between gifts and bargains is less a reflection of real differences than it is a construct, depicting individuals whose urges to give are sharply differentiated from their urges to trade and a world in which self-interested gain is more important and more frequent than other-oriented beneficence. The essay questions the justifications which have traditionally been offered to explain the formalities of gift-giving, justifications which rely on the ritual, evidentiary, protective and channeling functions of form. It also questions whether it is accurate to define gifts as nonbargains. If gifts and contracts are alike exchanges, then the disparaging discussions of gifts in the contracts context may be read to reflect a view that market exchanges are more significant than other exchanges. This view ignores the possibility that not all wealth consists of commodities. In the end, the use of intent-defeating formalities in an area of law ostensibly committed to the effectuation of intent may express an underlying ambivalence about the true "worth" of gifts in a society organized around commodities markets.
    Research Interests:
    Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a... more
    Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator's death. To respond to this concern, both the error and the testator's true intent must be established by " clear and convincing " evidence. This Article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume—as does the Wills Act itself—a fully formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules further self-determined ends. This conventionally rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not
    Research Interests:
    ... Helping America's Homeless: Emergency Shelter or Affordable Housing (2001) [hereinafter Burt et al., Helping America's Homeless]; Christopher Jencks, The ... see Martha R. Burt, Homelessness: Definitions and Counts,... more
    ... Helping America's Homeless: Emergency Shelter or Affordable Housing (2001) [hereinafter Burt et al., Helping America's Homeless]; Christopher Jencks, The ... see Martha R. Burt, Homelessness: Definitions and Counts, in Home-lessness in America 15 (Jim Baumohl ed., 1996). ...
    This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a... more
    This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation no property. This paper seeks to describe the legal category no property. Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in...
    This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to... more
    This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to contrast literature, portrayed as textured, nuanced, and emotionally resonant, with law, portrayed as a dessicated, abstract world composed mainly of rules. Rhetorically, this contrast constructs and entrenches a highly contestable definition of law's boundaries even as it purports to describe them. Worse, by assuming that law is an independent space mostly bounded by rules, and that literature is a separate and contrasting space, the strategy suggests a rather impoverished view of interdisciplinarity. In this view, interdisciplinary work is work that crosses borders; if what is inside the realm of literature were already inside law, there would be nothing interdisciplinarity could accomplish. Although Weisberg inverts the usual rhetoric of opposit...
    Before long, the fragmented, uncoordinated, and geographically dispersed paper records in which our medical information is currently recorded will be replaced by integrated, longitudinal, networked electronic health records (“EHRs”).... more
    Before long, the fragmented, uncoordinated, and geographically dispersed paper records in which our medical information is currently recorded will be replaced by integrated, longitudinal, networked electronic health records (“EHRs”). Though nominally confidential, the information in EHRs, like other information collected about individuals in cyberspace, is as vulnerable as it is valuable. Health law, privacy, and intellectual property scholars have all suggested that the river of information created by EHRs and other data systems present a problem of “control,” and many of these scholars have proposed that “property” might provide the control individuals want and need. These arguments for control rights in personal information test contemporary understandings of what property is and reveal fault lines in modern property theory. If property rights exist at all in dephysicalized, digitalized information, those rights are unlikely to be consolidated in a single person, to operate in re...
    Research Interests:
    This Article examines the way in which courts have treated the requirement that a trust have as its subject a definite or ascertainable interest in property, that is, a res. In numerous instances, donors attempt to create relationships... more
    This Article examines the way in which courts have treated the requirement that a trust have as its subject a definite or ascertainable interest in property, that is, a res. In numerous instances, donors attempt to create relationships that resemble private express trusts, but inadvertently fail to specify precisely what property is to be held by the trustee. In such instances, the donor’s failure to delineate precisely the property which is to be held in trust makes it difficult to define either the beneficiary’s rights or the trustee’s duties, and yet the settlor’s donative intent, and the objects of that intent, may be quite clear. Even when that intent is clear, courts often hold that the alleged trusts fail for want of a res. Under these holdings, the requirement that a trust have a res operates as a covert formality analogous to the execution formalities required for wills and the delivery formality required for inter vivos gifts. This Article argues that the res requirement o...
    This Article examines the sometimes-vehement resistance to legal storytelling, a resistance reflected in Daniel Farber and Suzanna Sherry’s oft-cited article, Telling Stories Out of School: An Essay on Legal Narrative. Part I suggests... more
    This Article examines the sometimes-vehement resistance to legal storytelling, a resistance reflected in Daniel Farber and Suzanna Sherry’s oft-cited article, Telling Stories Out of School: An Essay on Legal Narrative. Part I suggests that, rather than focusing on who is telling stories in law, it is more important to ask why. The answer, put simply, is that stories are said to demonstrate how power can inhere invisibly in the most apparently neutral of standards. The focus on power helps explain why story-telling holds strong appeal for scholars especially interested in social change. Storytelling attempts to illustrate the inevitable partiality of all evaluative criteria, and this attempt suggests a counter-critique of Farber and Sherry’s appraisal. For the kinds of standards to which Farber and Sherry would hold storytellers — standards requiring “reason” and “analysis” — are exactly those the storytellers wish to question. Part II explores a dilemma within the storytelling movem...
    The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world... more
    The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, but this Article claims that this divide is not adequately understood.Debates between informational and progressive scholars currently center on whether the right to exclude is fundamental to property law. By contrast, this Article suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinct...
    Research Interests:
    Legal scholarship has increasingly borrowed from other, non-law, disciplines; as it has done so, legal scholars have taken increasing interest in the possibilities and limits of interdisciplinarity. Tellingly, virtually all discussions of... more
    Legal scholarship has increasingly borrowed from other, non-law, disciplines; as it has done so, legal scholars have taken increasing interest in the possibilities and limits of interdisciplinarity. Tellingly, virtually all discussions of interdisciplinary scholarship call upon two related metaphors. The first is a metaphor of border-guarding. This is an immigrant/emigrant scholarship, employing tropes of insiders and outsiders, residents and aliens; it relies on images of imperialism, scavenging, and parasitism. The second metaphor is one of fidelity. This metaphoric realm employs tropes of seduction, enchantment, betrayal, faithlessness and abandonment, calling on images of marriage, adultery, and divorce. The two metaphors are linked by a common theme, the theme of boundaries that can be respected or crossed. Border metaphors raise questions about the legitimacy of discipline-traversing scholarship. What does a scholar from one discipline need to know in order to 'employ'...
    For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy... more
    For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy or human flourishing, and those who focus on property’s means, i.e., its use of qualities such as modularity and exclusion to manage complexity in a cost-effective way. The bundle-of-rights conceptualization has been swept up into the controversy, becoming the particular target of means-focused theorists, who argue that the bundle conceptualization obscures critical features of the property system, most notably its use of strategies of exclusion, in rem rights, and indirectness. These theorists assert that, twentieth century wisdom notwithstanding, property is not a bundle of rights but rather is a law of things.Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normati...
    Research Interests:
    A set of common themes and concerns runs through three bodies of theory that might otherwise appear unconnected: environmental ethics, civic republicanism, and commodification. In very different contexts, authors in all three areas seem... more
    A set of common themes and concerns runs through three bodies of theory that might otherwise appear unconnected: environmental ethics, civic republicanism, and commodification. In very different contexts, authors in all three areas seem to ask some very similar questions. Collected together, these questions comprise a novel critique of the economic analysis of law - a "moral" critique that is quite different from technical and distributional critiques that have been offered in the past.The argument, in a nutshell, is that the choice whether to submit any "good" to market trading, and the related choice whether to think and speak of that good in cost-benefit terms, presuppose a controversial, and often submerged, moral choice. Markets, these theorists argue, maximize satisfaction of a limited range of the preferences we have - the preferences we have when we think only of, and act only for, ourselves. But we also have a range of preferences (and attributes and qua...
    Research Interests:
    ... In: MDA Freeman & ADE Lewis (Eds), Law and literature (pp. 687–727). New York: Oxford University Press. Rubin, EL (1997). Law and and the methodology of law. Wisconsin Law Review, 1997, 521–565. Sarat, A., & Hussein, N.... more
    ... In: MDA Freeman & ADE Lewis (Eds), Law and literature (pp. 687–727). New York: Oxford University Press. Rubin, EL (1997). Law and and the methodology of law. Wisconsin Law Review, 1997, 521–565. Sarat, A., & Hussein, N. (2004). ...
    ABSTRACT The role of lawyer is widely understood by law students and practitioners as the entry into a simplified ethical world, one in which ordinary moral principles are cleared away by the hegemony of doctrines unique to the practice... more
    ABSTRACT The role of lawyer is widely understood by law students and practitioners as the entry into a simplified ethical world, one in which ordinary moral principles are cleared away by the hegemony of doctrines unique to the practice of law. This understanding is supported by and may originate in a particular view of lawyers' professional responsibility, a view in which a lawyer's ethical obligations as a professional are defined largely (though not entirely) by specialized legal rules - principally the codes of ethics and other rules that regulate lawyer conduct - and the policies thought to underlie those rules. There is nothing natural or even intuitive about defining lawyers' ethical obligations primarily in terms of compliance with rules. Indeed, there has long been a debate about whether black letter codifications can possibly serve as an adequate platform for ethical deliberation. But to acknowledge this debate is not to argue that there is some alternative way of thinking about lawyers' professional responsibility that is truly or actually natural. All fields of law must be constructed somehow. What is worth consideration is how a field is constructed in one way rather than another, and the effects of any given construction. Our thesis embraces two claims. The first claim is that within the traditional law school curriculum, law is constructed as a relatively autonomous discipline distinguished from other disciplines, including philosophical ethics, and that the discipline of law is subdivided into relatively separate fields. Thus, notwithstanding more than a century of developments in legal education and claims of progress in our understanding of law - notwithstanding the academy's apparent absorption of influences ranging from legal realism to critical legal studies to feminist jurisprudence to critical race theory to a host of law and analyses - students continue to be educated into a relatively Langdellian world view. The second claim is that within the traditional law school curriculum, Professional Responsibility is constructed as its own field of law. As a consequence, law students learn to think of law generally, and Professional Responsibility specifically, as disengaged from moral considerations. Part One of the article takes up the questions how and why the Professional Responsibility field has been traditionally structured in the law school curriculum on a legalistic model, i.e., as but another field of law separated from ordinary moral concerns. In Part Two, we point out that there is nothing about the concept of law that requires its separation from ordinary moral reasoning. We suggest that when law is constructed so as to be saturated with moral considerations, then the professional work of lawyers, and hence their professional responsibilities, can be understood to be similarly saturated. In Part Three, we explore some of what is at stake in our decisions about how to construct Professional Responsibility. We consider both the powerful allure that the traditional construction has for law students and practitioners and the construction's remarkable resiliency in the face of repeated, multidimensional assaults on the legalistic model.
    ABSTRACT This Essay examines expressive theories of law. In two new books, property theorist Joseph Singer condemns the dominant, absolutist, conception of property for failing to express the full range of our values; he suggests its... more
    ABSTRACT This Essay examines expressive theories of law. In two new books, property theorist Joseph Singer condemns the dominant, absolutist, conception of property for failing to express the full range of our values; he suggests its replacement with a model, epitomized by the generous commitment of Malden Mills owner Aaron Feuerstein to rebuild his plant after a catastrophic fire, that expresses not just the powers but the obligations that flow from ownership. After questioning how we interpret what law says or expresses, the Essay asks how we should understand expressivist projects such as Singer's. Should we characterize expressivists as idealists, throwing one concept (ownership obligates) against another (ownership is freedom) in the naive hope that long-entrenched beliefs and understandings will be displaced by the simple demonstration that other beliefs and understandings are plausible? Or should we see them instead as meaning entrepreneurs, who cleverly trade on intuitively appealing images such as that of Aaron Feuerstein to disrupt conventional associations between, for example, property and selfishness?
    People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government's power under the Takings Clause to take title... more
    People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government's power under the Takings Clause to take title to, or significantly affect the value of, their property. Kelo v. City of New London has been seen as controversial while Lingle v. Chevron USA Inc. has received far less public attention. This Article argues that the significance of Kelo and of Lingle lies in the extent to which the two cases engage with, or fail to engage with, the cultural debate over the function of property in contemporary society.
    There is probably someone somewhere who would be willing to say that law is just rules and the techniques of rule manipulation, but in the academy, if not outside of it, this view has long been out of fashion. 1 Today, a description of... more
    There is probably someone somewhere who would be willing to say that law is just rules and the techniques of rule manipulation, but in the academy, if not outside of it, this view has long been out of fashion. 1 Today, a description of law as" a dazzlingly complex array of ...
    ... IN CONTEMPORARY AMERICA 21-33 (1991); Martha R. Burt, Homelessness: Definitions and Counts in HOMELESSNESS IN AMERICA 15 (Jim Baumohl, ed. 1996); B URT, HELPING AMERICA'S HOMELESS, supra note x, at 23-53; CHRISTOPHER JENCKS,... more
    ... IN CONTEMPORARY AMERICA 21-33 (1991); Martha R. Burt, Homelessness: Definitions and Counts in HOMELESSNESS IN AMERICA 15 (Jim Baumohl, ed. 1996); B URT, HELPING AMERICA'S HOMELESS, supra note x, at 23-53; CHRISTOPHER JENCKS, THE ...
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story,"... more
    Is every statement in or about the law a story? Is every explanation of the law a narrative? Is all legal argumentation rhetorical? Maybe, but maybe not. Surely the answer depends on what is meant by the terms "story," "narrative," and "rhetorical." In this article, we argue that terms such as these, and claims that rely on them, require definition and clarification. Questions such as "is law narrative?" or "is law rhetorical?" implicate the tricky business of how meaning is made in law. If that is the issue, we ought to face it directly. That is the aim of this essay. In Part I we illustrate the narrative character of a traditional law review article. Our point is to show that it is relatively simple to see even the most conventional scholarly writing as containing and comprising a story. In Part II we examine whether our analysis in Part I is "fair" to the article, or whether it distorts in important ways what the article...