Complexity in Property

This article illuminates the largely misunderstood relationship between complexity and the regulation of property interests Specifically the article presents the complexity thesis a novel explanatory account of the principle of numerus clausus The principle of numerus clausus is an ancient common law rule which prohibits the customization of property interests The complexity thesis holds that the primary function of numerus clausus is to prevent the proliferation of highly idiosyncratic property interests In so doing numerus clausus provides a bulkhead against the overwhelming complexity that would ensue if customized property interests were permitted For the last fifteen years numerus clausus has been the subject of a spirited colloquy in which property theorists of all methodological stripes have sought to unravel some of the mysteries that surround the principle This article carefully engages several prominent explanatory accounts of numerus clausus and demonstrates that while these competing accounts supply a number of important insights about the principle the complexity thesis does a better job of accounting for all of the salient features of the principle without sacrificing coherence or consilience Finally the complexity thesis is especially instructive today as the 2007 collapse of the housing market can largely be traced to a set of basic misapprehensions about the destructive power of complexity in the context of highly alienable interests The complexity thesis demonstrates that standardization serves an essential epistemic function Standardization makes it possible for us to better apprehend risk and thereby avoid catastrophic miscalculations such as those that led to the housing collaps

Fiduciary Injury and Citizen Enforcement of the Emoluments Clause

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent. This Article presents that broader theory. The Article argues that the Emoluments Clause imposes a fiduciary duty on officers of the United States. When that duty is breached, all Americans suffer an undifferentiated injury, which may serve as the basis for a private cause of action to enforce the Clause. Drawing on both the historical and textual context of the Clause, this Article concludes that enforcement of the Emoluments Clause is a tool that the Constitution reserves for “the People” as a means of policing the political branches. The Article then positions this fiduciary injury into the broader question of standing in constitutional cases. The Supreme Court’s paramount concern in the context of standing in constitutional cases is to avoid separation-of-powers conflicts. That goal is best served by a focus on primary versus collateral injuries, rather than the Court’s current (and unevenly applied) “concrete and particularized” standard. In constitutional cases, a focus on primary injuries is consistent with much of the Court’s existing standing doctrine and offers a more coherent, parsimonious, and elegant approach to standing. More importantly, a focus on primary injuries allows the Court to safeguard separation-of-powers principles while avoiding the absurd results that necessarily follow from the Court’s current posture

The Law of the Body

This Article posits that a law of the body is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot-at any point in our lives- own our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property. This Article supplies that piece of this byzantine puzzle. Specifically, the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body. Moreover, this Article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that they are predicated on a series of misunderstandings. These misunderstandings generally fall into three categories: misunderstandings about the nature of property ; conceptual misunderstandings about bodies and selves and the capacity to own oneself and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body. Once these misapprehensions are clarified, the intellectual path will be cleared for a law of the body to emerge, and legislators, courts, and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends

Gender Rules

Sex stereotypes are of perennial concern within anti discrimination law and theory, yet there is widespread disagreement about what constitutes a sex stereotype. This Article enters the debate surrounding the correct understanding of stereotype and posits that the concept is too thin to serve as a criterion for distinguishing discriminatory gender generalizations from non-discriminatory, probabilistic descriptions of behavior. Instead, stereotype is a heuristic that has been used by courts and commentators to crudely capture judgments about the justness of applying sex respecting rules. In this light, the Article argues that the stereotype heuristic should be abandoned in favor of a rule-centered analysis of sex-respecting generalizations. Arguing that courts and commentators have not objected to gender generalizations because they are descriptively inaccurate (as the stereotype heuristic suggests) but because they also exert unique prescriptive force, the Article provides a new understanding of the theoretical basis for subjecting gender generalizations to anti-discrimination scrutiny

The Concept of Property

This Article confronts the conceptualistnonconceptualist divide in property theory Specifically the Article addresses the primary normative objection to the conceptualist account of property In the course of addressing this criticism the Article bridges an important gap in the literature and provides a new way of understanding the legal concept of property as distinguished from other types of legal arrangementsThe conceptualistnonconceptualist divide centers on whether the legal concept of ˜property\u27 can be said to have criterial features “ that is features that make ˜property\u27 both unique and distinguishable from other legal concepts such as contract Conceptualists understand the concept of ˜property\u27 to include one or more criterial features Most commonly conceptualists understand ˜property\u27 to necessarily include the principle of numerus clausus a common law rule that imposes a restriction on the forms of ownership On the other hand some nonconceptualist scholars have criticized the conceptualist emphasis on numerus clausus as a misplaced and as unduly formalistThis Article demonstrates that the central normative concern raised by critics of the conceptualist account of property is unwarranted Concerns that fall within the realist critique of formalism do not obtain in the context of the specific type of formalism that contemporary property conceptualists embrace This is because the function of form restriction is not to arrive at a correct or even a substantively justifiable classification of interests in a given dispute but rather to arrive at a classification Numerus clausus is first and foremost a coordinating tool Rather than reflecting or directing deep normative commitments about the distribution of assets form restriction primarily serves to sort interests into a finite and therefore manageable set of categorie

Misogyny, Androgyny, and Sexual Harassment: Sex Discrimination in a Gender-Deconstructed World

Understanding sexual harassment as a form of discrimination because of sex has grown increasingly difficult as our understandings of both gender and sex have grown richer and more complex This piece offers a new descriptive model for understanding gender bias in the context of sexual harassment law The piece argues that two separate sets of ideas about gender have intersected to produce a new picture of gender equality one that is separated from a binary model of men and women but that nonetheless continues to disadvantage women as compared to men The paper refers to this idea as the androcentricassimilation model of female liberation and argues that the adoption of this particular model of female liberation has presented an assimilation option to women who wish to succeed while obfuscating the fact that our ideas about gender remain hierarchically arranged The paper suggests that this phenomenon may underlie some of the mystery surrounding gendered workplace outcomes and specifically that this descriptive framing provides a foundation for understanding sexual harassment an ostensibly genderneutral behavior when one considers that women can harass men as well as one another as a tool of discrimination that continues to disproportionately disadvantage women The piece concludes therefore that sexual harassment law is properly conceptualized within an antidiscrimination framewor