Property and Empire: The Law of Imperialism in Johnson v. M’Intosh

Chief Justice\u27s Marshall\u27s opinion in Johnson v. M\u27Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations between civilized nations, the other relations between civilized governments and the imperfect sovereigns of other nations. I then show how Marshall\u27s long dicta reflect the then-prevalent view of the hsitorical progress of societies from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions.This historical theory lent intelligibility to the legal distinctions between civilized and lesser or imperfect sovereigns by claiming that the latter occupied earlier stages of development and that civilized nations were legally permitted to overrride the property institutions of primitive societies in order to induce progress. The dicta, then, provide the frame for the reasoning of this case, just as the theory of historical progress framed the jurisprudence of colonialisn in general

What Has to Change for Forests to be Saved? A Historical Example From the United States

This article looks at the conservation of American forests in the nineteenth and twentieth centuries to cast light on the prospects for global forest conservation in the twenty-first. At the beginning of the nineteenth century, Americans understood their forests as good only for cutting. By the end of the century a national scheme existed for comprehensive and permanent forest conservation. This new scheme became possible thanks to changes in scientific knowledge, the ideological self-image of the country, political institutions, and the imagination and moral commitments of citizens and social movements. A look at the changes that laid the foundations of national forest conservation might help to show what would have to happen for international forest conservation to emerge. Alternatively, it might highlight differences between those past developments and present circumstances, showing how past is not prologue. In this case, the upshot is some of both

A Few Questions About the Social-Obligation Norm

Reponse to an article by Gregory S. Alexander, \u27The Social-obligation Norm in American Property Law,\u27 in a Special Issue of the Journal on Property Obligation

Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of the multifarious human heart, or, if you prefer, the many purposes we pursue in our projects and relationships. Each of these implies a way of regarding others – as arm’s length collaborators, joint venturers, or other halves whose purposes we have joined to ours; property’s default rules anticipate and confirm these various attitudes

Whose Lands? Which Public? Trump\u27s National Monument Proclamations and the Shape of Public-Lands Law

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. If President Trump’s shrinkages stand, they will be the largest removal of public lands from protected status in U.S. history, and will put the remaining national monuments on the chopping block. This article advances a novel theory showing that the President lacks the power to revise or revoke monuments. The Antiquities Act gives a power only to protect public lands, not to remove them from protection. Arguments developed so far in litigation and scholarship fail to recognize a general feature of public-lands law: It consistently denies the President the power unilaterally to remove lands from statutorily protected categories once they are placed within those categories. The Antiquities Act should be read to be consistent with this field-wide pattern. The article explicates the reasons for this pattern. Generally speaking, public-lands law has been very little theorized; but it needs a theory now. Public-lands law is a field defined by structured normative pluralism. It integrates a range of deeply conflicting public-lands purposes, from mining and drilling to wilderness preservation, across a range of statutes and agencies and acreage totaling nearly a third of the land area of the United States. The asymmetric premise against any Presidential power remove lands from protection is rooted in this structure, specifically the President’s obligation to preserve for Congress the option of protecting lands, and the dangers of hasty or corrupt Presidential action. The article traces these rationales across the history of statutory, executive, and judicial articulations of public-lands law and shows that they apply to the present Antiquities Act dispute. The article also highlights the political and cultural dimension of the dispute: a series of three-way conflicts among “public-lands populists” who seek increased use of and access to public lands (whose agenda the Trump Administration has incorporated into its economic and ethno-national populism), recreationists and environmentalists, and indigenous communities in the Bears Ears region. Conflicts among these groups amount to fights over collective identity--the nature of the “public” that public lands should serve. This dimension of the conflict does not fall outside the doctrinal analysis of the Antiquities Act. Rather, with a clear theoretical view of public-lands law, it is possible to see that these agendas are already integral to the field itself. They are central threads of its pluralism, and their competing claims fit within its structure. An account of the larger field of cultural conflict both enriches the theory of public-lands law and helps to show how the field should resolve the present fight

Whose Lands? Which Public? Trump\u27s National Monument Proclamations and the Shape of Public-Lands Law

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. If President Trump’s shrinkages stand, they will be the largest removal of public lands from protected status in U.S. history, and will put the remaining national monuments on the chopping block. This article advances a novel theory showing that the President lacks the power to revise or revoke monuments. The Antiquities Act gives a power only to protect public lands, not to remove them from protection. Arguments developed so far in litigation and scholarship fail to recognize a general feature of public-lands law: It consistently denies the President the power unilaterally to remove lands from statutorily protected categories once they are placed within those categories. The Antiquities Act should be read to be consistent with this field-wide pattern. The article explicates the reasons for this pattern. Generally speaking, public-lands law has been very little theorized; but it needs a theory now. Public-lands law is a field defined by structured normative pluralism. It integrates a range of deeply conflicting public-lands purposes, from mining and drilling to wilderness preservation, across a range of statutes and agencies and acreage totaling nearly a third of the land area of the United States. The asymmetric premise against any Presidential power remove lands from protection is rooted in this structure, specifically the President’s obligation to preserve for Congress the option of protecting lands, and the dangers of hasty or corrupt Presidential action. The article traces these rationales across the history of statutory, executive, and judicial articulations of public-lands law and shows that they apply to the present Antiquities Act dispute. The article also highlights the political and cultural dimension of the dispute: a series of three-way conflicts among “public-lands populists” who seek increased use of and access to public lands (whose agenda the Trump Administration has incorporated into its economic and ethno-national populism), recreationists and environmentalists, and indigenous communities in the Bears Ears region. Conflicts among these groups amount to fights over collective identity--the nature of the “public” that public lands should serve. This dimension of the conflict does not fall outside the doctrinal analysis of the Antiquities Act. Rather, with a clear theoretical view of public-lands law, it is possible to see that these agendas are already integral to the field itself. They are central threads of its pluralism, and their competing claims fit within its structure. An account of the larger field of cultural conflict both enriches the theory of public-lands law and helps to show how the field should resolve the present fight

Wealth and Democracy

The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and disable the political community from effectively pursuing distributive justice. This paper explains how the earlier assumptions arose, defined the boundaries of distributive justice for decades, and were undermined by developments from both the political left and the political right. At present, the dynamics of inequality appear to be self-perpetuating and self-accelerating, and much of earlier thinking on the topic has been rendered irrelevant by the erosion of its mistaken premises. Only a democratic effort to reconstitute a competent and legitimate state has any prospect of making inequality a tractable problem subject to effective intervention

Climate Change and the Limits of the Possible

Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features – how long it takes to unfold and the ways in which its effects are distributed across the globe – which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate about our prospects for success. That is, if we assume that economic and political decisions reflect the present distribution of self-interest within the existing structure of rules and institutions, we may be unable to see our way beyond the problem, because it so neatly frustrates the problem-solving power of our current arrangements. We may need, instead, to adopt a dynamic view of political econom

Questions About Quakerism

Quaker Lecture, Indiana Yearly Meeting of Friends, Richmond, Indiana. August 15, 1962. Excerpt: It is my purpose to raise and briefly answer some of the many questions asked about the Quakers both by outsiders and insiders, non-Friends and members of the Society. I am, of course, speaking only for myself and not in any official capacity. I shall, however, try to present a Quaker consensus rather than special points of view.https://digitalcommons.georgefox.edu/quakerbooks/1059/thumbnail.jp