In the early days of the pandemic, I read a tweet suggesting that public health authorities seeking to overcome conservative skepticism about the virus should heed the lessons of Cultural Cognition. Cultural cognition is a theory, coming out of Yale Law School, that perception of factual issues is shaped by normative commitments. In other words, our moral beliefs shape how we understand facts.
Around the same time I read that tweet, a conservative friend warned me about various Governors’ lock down orders and local officials’ enforcement of social distancing measures. He said that once government assumes a new power, it is unlikely to give it up. It seemed absurd to me to imagine governors and state health officials as crypto-fascists eager to control citizen’s lives. I have, however, ranted at and to my friends and family about federal government surveillance powers using the exact same argument.
About five years ago, I stumbled onto some Afrofuturist art in a market in northern Uganda. I was moving through a maze of kitenge stalls when I came to a makeshift gallery that a young artist had set up in a forgotten corner of the market. One of his pieces was of a dramatic skyline, with arched spires climbing into the sky, draped in tropical vegetation. In the foreground, people in stylized, angular kitenge clothes were walking through a bustling public square. I asked him what it was and he said, “It’s the Kampala of the future.”
In contrast to a lot of antiseptic and tech-centric futurism, his mix of sci-fi architecture, verdant ecology, traditional culture, and civic harmony suggested that the ideal future would incorporate a healthy dose of the past. It reminded me of an aphorism from the other side of the African continent, embodied in the adinkra symbol, Sankofa, which depicts a bird with its head turned backward, retrieving an egg. The Sankofa symbol and word convey the idea that in moving forward, it is important to bring along what is essential from the past.
When this year’s 1Ls sit down for their first Property Law class they are likely to discuss Pierson v. Post. The case concerns a dispute over who owned a wild fox killed during a hunt. Lodowick Post and his pack of hunting dogs were in pursuit of the fox, having chased it through a stretch of the town commons when Jesse Pierson suddenly intervened to kill and claim it. Post insisted that the fox was rightly his, as he and his pack of hounds had been in pursuit and were on the verge of capturing it. Pierson countered that a wild animal is no one’s property until it is definitively captured or killed.
Pierson is a 1L classic because it dramatizes the legal construction of ownership. The dividing line between the fox’s state of nature and its state as property is whatever the majority opinion says it is. More subtly, the case also dramatizes a key assumption driving much of Anglo-American property law: settling the question of ownership clarifies many of the rights and responsibilities that shape our relations as political subjects. Pierson can feel anachronistic, with the majority discussing obscure legal treatises and the minority perseverating on the noxiousness of foxes. But the case was not really about a fox.
It’s been 146 days since Breonna Taylor was killed. Kentucky’s Attorney General, Daniel Cameron, still has not filed any charges against the Louisville Police Department officers who killed her. Here are some statutes that deserve attention:
Murder (Ky. Rev. Stat. § 507.020):
A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third person.
Reckless Homicide (Ky. Rev. Stat. § 507.050):
A person is guilty of reckless homicide when, with recklessness he causes the death of another person.
First Degree Manslaughter (Ky. Rev. Stat. § 507.030):
A person is guilty of manslaughter in the first degree when: (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020; or
In Criminal Law, we were taught to break down and work through each element of a criminal statute. Essentially every class was devoted to identifying the elements of a crime, gathering the facts of the case, and analyzing the case by connecting elements to facts. Our professor was a practicing defense attorney so she kept us on our toes and we learned to take nothing for granted. For the sake of brevity, and at the risk of incurring her wrath, I am just going to say that the uncontested facts of this case easily satisfy the actus reus (guilty act) element of these statutes. No one is denying that these police officers caused Breonna Taylor’s death.
With abortion rights before the Supreme Court this term, I’ve been thinking about the metaphor that brought privacy—and by extension, reproductive health rights—under Constitutional protection. In Griswold v. Connecticut, Justice Douglas reasoned that enumerated individual rights “have penumbras, formed by emanations from those guarantees that help give them life and substance.” Douglas analyzed these penumbras to extend the zones of individual rights, frustrating dedicated textualists who saw no justification for them in the language of the Constitution.
It might be helpful to pause here and clarify exactly what a penumbra is. Hold an object up in front of a light source so that it casts a shadow on a nearby surface: at the center of the shadow will be its most focused darkness, its umbra; move your gaze out to the border of the shadow, to where it meets the light, and you will see a zone of unfocused shadow, a kind of half-light called the penumbra. In Douglas’s metaphor, a certain set of enumerated rights are the umbra and the unenumerated right to privacy is their penumbra, giving them life and substance.
“Go home. Be with your family. Live simply and with integrity. Consume only what you need. Be generous with each other.”
That is the gist of much of Leviticus 25, where God issues instructions for the Jubilee. The jubilee is a kind of year-long Sabbath, occurring after “seven weeks of years, seven times seven years”—i.e., every 50th year. But in addition to the typical Sabbath’s rest and worship, the Jubilee is also a time of mercy and compassion: enslaved people are freed, debts are forgiven, and economic relations are subordinated to fundamental human needs. God assures Moses that the land will be capable of feeding and sheltering the people and so they must, “observe my statutes and faithfully keep my ordinances, so that you may live on the land securely.”
In the first days of social distancing, my daughter kept asking about school. She had a vague understanding of how weekends typically broke up her daycare routine but eventually it became clear that this one had stretched on to an absurd degree. Every morning for the first couple of weeks of lockdown she asked, “Baby go to school?” Then she rattled off the names of her teachers and classmates. Those early days were tough. She’s very social. School is thrilling for her. I was not an adequate replacement for ten friends and two loving teachers.
All work spaces and readings are shared.
Editor’s note: due to the novel coronavirus outbreak, Boston College has moved all classes online and sent students home for the semester. The BC Law Impact blog has suspended its normal posting schedule, and bloggers are now focused on writing about the impact of the shutdown and the current state of the world on their academic and social experiences as law students. We are all in this together; let’s find our way through together.
Recently, I’ve been thinking about a night I spent in Panama trapping bats. More precisely, I was taking pictures of a team of German scientists who were trapping bats. I had been traveling in Latin America when a journalist friend asked me to meet him in Panama and tag along on a story he was doing for the Smithsonian Tropical Research Institute, which studies tropical ecosystems and their impact on human well-being. As the virulence of the coronavirus has shown, bats are especially potent and prolific reservoirs of disease due to their strong immune systems. So every night, this team of scientists would head out into the tropical forest, put nets up between trees, and catalog and take samples from all the captured bats.
The goal was to understand the dilution effect, which refers to the way that biodiversity in the natural world helps prevent the spread of disease from animals to humans. The theory is that when an ecosystem has high levels of biodiversity, it is more difficult for a disease to take hold in any one species. Without any species becoming a potent reservoir for that disease, it is more difficult for it to spill over into human populations. When biodiversity is low, however, a single species can serve as host to a critical mass of disease, facilitating its transmission to humans.
“This seems like a philosophical question.”
My classmate was trying to parse the Supreme Court’s reasoning in two cases with similar facts and different outcomes. Our professor did not seem enthusiastic about the prospect of a philosophical discussion. Some professors teach introductory law classes like a foreign language, immersing students in legal syntax and vocabulary until its functioning becomes intuitive and fluid. Imagine trying to teach French students to conjugate a verb while they’re working on a grand theory for the union of sound and thought. You would get further by just drilling, “Je vais à la plage. Tu vas à la plage. Il/Elle/On va à la plage.” So our professor responded with a pointedly practical answer spelling out the officially recognized legal rule at work in the two decisions.
But there was an interesting, philosophical issue beneath the surface of the Court’s reasoning, even if we didn’t have enough time to cover it. These are the two cases:
First days of school: daycare and law school.
In February, my daughter will turn two, so I’m thinking about her annual test of strength. This is a tradition we began on her first birthday, when she walked the last fifty meters up Peter’s Hill. A mentor of mine once told me he never understood why parents would give their child a car on their 16th birthday. He said it made more sense to give them a mountain to climb. The little one had only been walking for two months last February, so we went with the top of a hill instead of a mountain. But now that she runs and skips and climbs and emphatically stomps in puddles, the mountain doesn’t feel far off.
People often ask me what it’s like to have a kid while in law school. One obvious answer is that it places limits on my time. I am often a bit more sleep-deprived than my classmates and because of daycare drop-offs and pick-ups it’s difficult to participate in extra-curriculars. The time crunch can distract from both home life and school work. When I am in dad mode, I sometimes think about the fact that my classmates are likely reading case law while I’m reading Moo, Baa, La La La! for the 100th time.