Law,Culture and the Humanities

The state formation of neoliberal authoritarianism, and political subjects attached to this state, took shape in the wake of the 1968 presidential election in the United States. Now the state sought to manage inequality – if not enjoy it – rather than ameliorate it. Policing became more militarized, and police were encouraged to go beyond law enforcement to control the perception of disorder. Police were also encouraged to kick ass. The enjoyment of militarized policing of those poor and black, or the enjoyment of police kicking the asses of those poor and black with regard to minor violations, indicate the points of subjective affective attachment to neoliberal authoritarianism. The New York Police Department’s and the Ferguson Police Department’s disparate policing of those poor and black are institutional manifestations of these affective attachments. In the wake of the NYPD’s killing of Eric Garner, and the shooting of Michael Brown in Ferguson, the protests of the people have forced us to heed the call of justice: We Can’t Breathe!

Radical constitutional scholarship could make use of a concept of solidarity to enable a new engagement with concepts of welfare and political community. Rather than a welfare state, with all its attendant problems, it is possible to link the concept of solidarity to the notion of a welfare community. A welfare community asserts the importance of common life against capitalist market relationships. Conceiving of the welfare community requires insights from continental philosophy, as well as developments of co-production and core economy thinking. Most importantly, this approach grounds welfare in a political critique of free market capitalism, rather than a theory of rights, and requires a bold assertion of a constitution as a limitation of the socially and economically destructive effects of markets.

Constitutional theorists frequently take the constitutional arrangement as their primary focus of critique. Indeed, for many constitutional scholars, the constitution is presumed as the central place from which to navigate and negotiate political community. However, this approach neglects the ways in which imaginations of political community are also launched at other sites of meaning-making. This commentary reflects on the role of museums in the production of such imaginations. In it, I examine the relationship between museums, constituting, and constitution-making.

In the decades following the end of the Cold War, the process of producing state constitutions has transformed into a veritable industry. This commentary considers contemporary practices of constitution-making as a site for critical reflection. It takes up the provision of “expert” advice in constitution-making processes in relation to three tropes of how these processes are conceived. As an attempt at diagnosing the constitution-making present, this commentary focuses on constitutional “technicity,” though aspects of what I term constitutional “romanticism” and “civility” continue to inform this technical turn.

This article examines critical responses to the question of constituent power. Rather than a closed, meaning-giving moment, which originates the constitutional structure, the article looks at the various ways in which constituent power can be viewed as ‘‘open’’ and anti-underdetermined. It looks at two issues in particular: the ‘‘subject’’ of constituent power, and the nature of the ‘‘power’’ involved. The article concludes with the suggestion that we think of these works as a series of ‘‘strategic hypotheses’’ which might structure action, rather than a collection of ‘‘models’’ that would have to be applied faithfully to the world.

This article examines the logic of necessity in eminent domain cases in the United States. While much has been written about “public use” justifications as adjudicated by courts, less attention has been paid to necessity. In part this is because public use is an explicit part of Fifth Amendment limitations on “takings” while necessity is part of the buried logic of sovereignty that grounds its exercise. Readings of pivotal cases from McCulloch to Kelo lead us to question recent attempts to revive necessity as a legal standard for reining in eminent domain power.

After Emmett Till’s murder in 1955, African-Americans mobilized political mourning to oppose the status quo of white power. Till’s death and media coverage that followed generated an affective connection by white Northern liberals to the plight of African-Americans in the South; as a result, Till’s death and the mourning that followed contributed to subtle but important changes that enabled the burgeoning Civil Rights Movement to appeal to the white majority. This effort succeeded in generating white sympathy because it exposed the distance between formal law and law on the ground and expanded the audience to the conflict.

Following Foucault’s demystification of liberal rights, this article complicates narratives of cultural enclosure in intellectual-property regulation, and especially their central figure of a right-fully sovereign user constrained by copy protection. First, it problematizes the freedom imagined for the user, as a specific and ambivalent orientation to contemporary cultural transformation. Second, in a reading of the Federal Communication Commission’s proceedings on “broadcast flag” protection for digital television, it reconsiders apparent constraint as productive rather than simply repressive regulation, which goes to constructively map uses and users in new domains of digital media.

This paper argues that law and humanities scholarship as well as socio-legal studies can benefit tremendously by rethinking systematically the modes of expression of law. The force of law passes through a wide variety of media – to name only a few: spoken or written words, gestures, visual images, technical objects, human bodies. Intuitively, we may sense that each of these different sorts of mediators has some effect on the nature of the legality or normative force that it conducts and makes pass. The jurisprudential temptation is to reduce these media out of existence and to theorize, for instance, the essence of legal form apart from the substances that give it reality and materiality. The paper sketches the outlines of an anti-jurisprudence that shifts the focus to those forgotten but undeniable substances, asking how they inflect the force of law differently in each case. The paper’s most important resources are the concept of mediation in Bruno Latour’s actor-network theory and the theory of stratification worked out in the mid-20th century by Danish linguist Louis Hjelmslev, which offers a diagram of expression that can be converted for legal-theoretical application. The upshot of this reflection on the force of law, legal stratification, and the vincula juris through which law passes is that we are obliged to take seriously the media of law’s expression: it is there that law makes society and is itself made.