A Modest Memo

A Modest Memo is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Peña Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim to show how the rule of law may so easily buckle and splinter beneath the increasing tide of United States, as well as global, nationalism and racism. I take inspiration, of course, from Jonathan Swift’s A Modest Proposal (1729), as well as the legal-literary experiments found in Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism (1993) and Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411 (1989)

Pragmatism and Parity in Appointments

This review uses Carter\u27s two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter\u27s discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. Indecency in appointments, or what is known as borking in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments theories that have been advanced by scholars such as Carter, Laurence Tribe, and Judge Bork

Draft of a Letter of Recommendation to the Honorable Alex Kozinski, Which I Guess I\u27m Not Going to Send Now

This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to face impeachment or meaningful judicial censure, but that he should nevertheless resign because his maintenance of his judicial position was untenable. What occurred next proved a shocking installation in the annals of American judicial history: After hiring feminist icon Susan Estrich as counsel and asserting that the claims against him were “not true,” Judge Kozinski did retire on December 18, 2017, explaining that he could not “be an effective judge and simultaneously fight this battle. . . . Nor would such a battle be good for [his] beloved federal judiciary.” Beyond qualifying me, for the first time in my life, more as a baffled Hildegard von Bingen than as a grouchy Cassandra, the most notable aspect of my essay is its form. It is auto-fiction, composed in the style of a letter of recommendation that an unnamed U.S. law professor attempts to write for a student who seeks a clerkship with Judge Kozinski during those frenzied and confusing first weeks of December. The “letter” also contains editorial comment flags, written by an unidentified colleague. The “foul papers” style of this letter permits an expression of the intense emotion catalyzed by the allegations against Judge Kozinski, and also allows us to consider the double bind that law professors and law students find themselves in with regard to clerkship applications tendered within a legal culture shaped by male dominance and white supremacy. Further, the document’s footnotes denote the copious subtext that can lie beneath the surface of oppressed people’s sometimes strangled speech. The employment of the comment flags allows for a certain amount of “cross talk” to this outpouring, critiques that mainly express the position of the hegemonic power structure (except for some gadfly citations to Janet Halley, Jacob Gersen, and Jeannie Suk). In these comment flags, we can see how even the most basic aspects of legal discourse (Bluebook conventions; formatting;professionalism) encourage denial of the emotional disorganization and rage that flow from sexual harassment and other kinds of oppression. We also can discern how legal discourse’s obsession with “relevance” stymies the engagement of racial, class, and queer intersectionalities. Additionally, it is worth noting that some of these comment flags ask hard and valuable questions. Together, this contest of voices and perspectives interrogates why calls for Kozinski’s resignation were “off the wall” on December 8—that is, that they were so unthinkable that he could gleefully brush them off during that first week of the month—but legitimate on December 18. N.B.: The piece is written as if it is still December 11, just after the allegations of verbal harassment were reported, but before the complaints about physical touching came out in national news. That is, it is “written” in the moments before Judge Kozinski’s reputation suffered irreparable blows, and his remained a sought-after clerkship despite longstanding rumors and complaints of his misogyny. In my efforts to harness the legal-literary style to uncover the effects and constructions of oppression, I take inspiration from Derrick Bell\u27s Faces at the Bottom of the Well: The Permanence of Racism (1993), Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Michigan Law Review 2411 (1989), and Patricia Williams\u27 the Alchemy of Race and Rights (1992). I also build upon Kathryn Abrams and Hila Keren’s Who’s Afraid of Law and the Emotions? 94 MINN. L. REV. 1997 (1998)

Blights Out and Property Rights in New Orleans Post-Katrina

In 2018’s Saint Bernard Parish Government v. United States, Federal Appeals Judge Timothy Dyk reversed a lower court decision finding that the federal government had violated the Fifth Amendment’s Takings Clause rights cherished by home-owning New Orleanians. The lower court maintained that such taking occurred via the Army Corps of Engineers’ building, maintaining, and failing to maintain the seventy-six mile long navigational channel known as the Mississippi River-Gulf Outlet (MRGO), which increased the surge storms of Hurricane Katrina. Though MRGO helped turn Katrina into a superstorm that devastated thousands of properties, Judge Dyk determined that the lower court’s takings analysis proved fatally flawed because it pivoted on government omission and failed to consider the totality of circumstances. In line with my ongoing work in Community Constitutionalism, I study the art of a New Orleans-based collective called Blights Out, whose members have staged performances and actions that protest how people of color have been deprived of property post-Katrina. Through careful analysis of their billboards and engagements, I tease out two legal arguments made by the collective: First, that the government may wrongfully deprive the people of property through omission. Second, that the window of time within which such takings may be discerned proves much wider than that imagined by Judge Dyk’s description of the “totality of circumstances.” Depending on the work of popular constitutionalists and my previous study of the linkages between art and jurisprudence, I conclude that Blights Out’s legal thought offers a powerful rejoinder to Judge Dyk’s analysis, and offers important arguments for the future applications of takings law