Faculty Bibliography
-
Joseph W. Singer, How Property Norms Construct the Externalities of Ownership, in Property and Community (Gregory S. Alexander & Eduardo Peñalver eds., Oxford Univ. Press 2010).
Type:
Categories:
-
Type:
Categories:
Sub-Categories:
Links:
How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists. Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.
-
Type:
Categories:
Sub-Categories:
Is there any difference between a preference and a value? When we say that some course of conduct is wrong, do we have any basis for backing up our claim? Some skeptics insist that statements about right and wrong are merely expressions of preferences - strong preferences, perhaps, but preferences nonetheless. To the contrary, I want to argue that values are not the same as mere preferences. Efficiency theorists seek to maximize social welfare by satisfying preferences, whatever they happen to be. Postmodernists argue that all values are socially constructed and not founded in any supranatural order. If postmodernists and economists are right, then arguments based on considerations of justice and fairness are nothing more than rationalizations for power relationships. But I argue, in contrast, that no one really believes this. Critical analysis of skeptical arguments shows that we do make strong evaluations of human claims and that we reject certain preferences as illegitimate and not worthy of being considered in any moral calculus. This article argues that skeptical doubts about the foundation of value claims are based on the value judgment that it is wrong for some individuals to impose their values on others. To the contrary, I argue that deference to others, no matter what they think, is an interpretation of what it means to treat others with equal concern and respect, but it is a faulty interpretation of that moral value. It assumes that we are free to indulge in any preferences we like and that it is no one's business but ourselves what we choose to believe. But this again is false. The assertion of a preference is not a self-regarding act. While it may be true that holding a preference may be a self-regarding act, asserting it against another and demanding that others defer to one's preferences is anything but a self-regarding act. And actions that affect others require justification. Values are different from preferences because they entail claims we make on each other. Critical normativity requires acknowledgment that human beings cannot live without such claims but that we are obligated to be careful about them. What we need is an attitude of restraint and caution combined with a fierce belief in justice. This article illustrates this stance by telling three parables of justice, focusing on a town in Vichy France that saved thousands of Jews from the Nazis and the predicament of the main character in the movie Stranger than Fiction who sought to come to be the author of his own life.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
-
Type:
Categories:
Sub-Categories:
Do corporations have any social responsibilities? Those who have argued both sides of this debate have failed to focus their attention sufficiently on the common law rules governing market relations, especially the law of torts, contracts, and property. This article argues that these three foundational legal institutions are all premised on a fundamental obligation of attentiveness. Actors are obligated to attend to the likely consequences of their actions on others and refrain from actions that impose unreasonable risks of harm or which impose harms that individuals are entitled to be protected against. If this is so, then the argument that corporations cannot reasonably respond to vague duties of social responsibility becomes less powerful, given the pervasive duties of all market actors to consider whether they could justify their harm-producing conduct to an impartial decision maker - in other words, whether they could explain their actions as reasonable. We want clear rules to give us guidelines about what we are and are not allowed to do. But we also want a fuzzy edge of substantive standards to induce us to think before we act - to be attentive to the ways in which our actions affect others. Such fuzzy edges create appropriate incentives to think about the effects of one's actions on others and to consider the judgments that others would make about the justice or appropriateness of our own conduct, given the impact it will have on others who, after all, have equal rights. And we care so much about this that we have enshrined it in the basic law governing the market system.
-
Joseph W. Singer, Things that We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, 2 Harv. L. & Pol'y Rev. 139 (2008).
Type:
Categories:
Sub-Categories:
We live in an age that glorifies the free market, small government and freedom of contract. Regulations are viewed as interferences with liberty and mandatory terms in contracts are derided as paternalistic interferences with autonomy. This free market model fails adequately to describe either our settled social values or our law. If we recognize the truism that there is no liberty without law, we will see that even our most libertarian states have comprehensive networks of regulations that set minimum standards for economic relationships. Rather than asking, Why interfere with freedom of contract? We would do better to recognize that all contracts are subject to minimum standards regulations and ask, What are the minimum standards for transactions of this sort? Some minimum standards merely set rules of the road; others, however, shape the contours of our way of life. We impose minimum standards regulations, not because government officials know better than individuals what is in their own best interest, but because we live in a free and democratic society and such a society promotes social relations of a certain type; this means that certain contract terms are out of line and certain contract demands must be taken off the table. Mandatory contract terms do limit our freedom to agree to contrary terms but we as a society demand those mandatory terms to create the legal framework of a free and democratic society that treats each person with equal concern and respect. We cannot create such a society by deferring to preferences, whatever they happen to be; some preferences cannot be indulged in a free and democratic society. Identifying appropriate minimum standards requires us to go beyond economic and legal theory by using useful aspects of moral and political philosophy, in conjunction with law, to shape the contours of our way of life.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
As part of a symposium celebrating the publication of the 2005 edition of Cohen's Handbook of Federal Indian Law, this article examines the Supreme Court's recent opinion in City of Sherrill v. Oneida Indian Nation of New York, which held that the Oneida Nation is subject to local property taxation when it reacquires land from a non-Indian possessor even though the Oneida Nation had never lost the title to that land. A federal statute passed in 1790 and still in effect today (called the Nonintercourse Act) prohibits the alienation of Indian lands without the consent of the United States. In 1795, the State of New York illegally took lands belonging to the Oneida Indian Nation, and under the Nonintercourse Act, the transfer of title was not valid. When the Oneida Nation repurchased the land, it argued that it had united title and possession, that the land had been Indian country and that Congress had never extinguished the tribal title or diminished the Oneida Reservation, and that the land therefore was subject to tribal sovereignty and immune from local property taxation. The Supreme Court rejected the claim on the ground that the Oneida Nation had waited too long to sue and that reliance interests had developed on the part of non-Indian owners and the state, and these reliance interests must be protected to prevent the piecemeal loss of state sovereignty to the Haudenosaunee nations. This article criticizes the Supreme Court's ruling by arguing that it is wrong to blame the Oneida Nation for failing to sue to recover its lands until 1970 when more than half a dozen jurisdictional (and other) legal barriers barred suit until 1966 and would even bar the lawsuit today. Further, the Court adds insult to injury by blaming the Oneida Nation for the failure of the United States to act expeditiously to protect its rights under the Nonintercourse Act and under the trust obligation of the United States toward the Oneida Nation. The Supreme Court's ignorance of these jurisdictional barriers (or unwillingness to focus on them) suggests the importance of the publication of the new edition of Cohen's Handbook.
-
Type:
Categories:
Sub-Categories:
This comment responds to Professor Philip Frickey's excellent article, (Native) American Exceptionalism in Federal Public Law, - Harv. L. Rev. - (2005), in which Frickey reacts to the Supreme Court's increasing discomfort with the exceptional character of the federal rules governing Indian nations. He argues that the Court fails to recognize that the anomalous character of the rules governing the relations between Indian Nations and the United States arises out of the need to reconcile the irreconcilable premises of constitutionalism and colonialism. He argues that the Court must learn to live with ambiguity and appreciate that it is not possible to apply all the norms usually applied in federal public law to Indian nations without doing grave injustice. Although Professor Frickey is correct to argue that the Court must learn to live with inconsistencies and to appreciate the need for special rules associated with the special status of native nations, this comment argues that the Supreme Court also needs to pay better attention to granting Indian nations the same rights as non-Indians when Indian nations are similarly situated to non-Indians. In many ways, the Supreme Court has been denying justice to Indian nations both by denying them the special rights that adhere to their special status and by denying them rights and powers they would be granted if they were non-Indian owners or sovereigns. It is important to recognize when the Court accepts a reason for denying rights to Indian nations that it would reject if the case involved a non-Indian owner; the Court should refrain from doing this unless there is a compelling reason for treating the tribe differently.
-
Type:
Categories:
Sub-Categories:
Now that same sex marriages have been occurring in Massachusetts for almost a year, the issue of interstate recognition is no longer merely a theoretical issue. Most scholars have either argued that the full faith and credit clause does not mandate recognition of same sex marriages or that it does so for limited purposes or for marriages of Massachusetts residents but not nonresidents seeking to evade their restrictive home state marriage laws. This article argues that the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the "effects thereof" language of the full faith and credit clause. Rather than focusing on the rights of same sex couples to have their valid Massachusetts marriages recognized elsewhere, we should focus on the obligations inherent in the marriage relationship. Both Congress and the majority of states have passed so-called Defense of Marriage Acts (DOMAs). If these laws are constitutional, they effectively authorize partners in same sex marriages to relocate to other states and evade their obligations as spouses and parents under Massachusetts law. Those states have made themselves havens for fleeing debtors. Using traditional and modern choice-of-law analysis, as well as analogies to the law of divorce and corporate governance, this article argues that the full faith and credit clause should be interpreted to require recognition of marriages that are valid where celebrated to avoid inconsistent obligations, to allow free interstate travel and commerce, and to prevent the states from authorizing married partners to walk away from their concededly valid and persisting obligations under Massachusetts law.
-
Type:
Categories:
Sub-Categories:
-
Joseph W. Singer & Joseph P. Kallt, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian-Self-Rule (Harvard Project on Am. Indian Econ. Dev. & Univ. of Ariz. Native Nations Inst. for Leadership, Mgmt., & Pol'y 2004).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Joseph W. Singer, The Edges of the Field: Lessons on the Obligations of Ownership (Beacon Press 2000).
Type:
Categories:
Sub-Categories:
In The Edges of the Field Harvard law professor Joseph William Singer offers a cogent look at America's complex relation to property and ownership. Incorporating examples as far-reaching as the experience of Malden Mills owner Aaron Feuerstein, the Torah, and the musical Rent, Singer reminds us that ownership is a curious blend of security and vulnerability between owner and nonowner. He proposes that the manner in which property shapes social relations of power is as important as ownership rights.
-
Joseph W. Singer, Property and Social Relations: From Title to Entitlement, in Property and Values: Striking an Equitable Balance of Public and Private and Private Interests (Charles Geisler ed., 2000).
Type:
Categories:
Property and Values offers a fresh look at property rights issues, bringing together scholars, attorneys, government officials, community development practitioners, and environmental advocates to consider new and more socially equitable forms of ownership. Based on a Harvard Law School conference organized by the Equity Trust, Inc., in cooperation with the American Bar Association's Commission on Homelessness and Poverty, the book: explains ownership as an evolving concept, determined by social processes and changing social relations challenges conventional public-private ownership categories surveys recent studies on the implications of public policy on property values offers examples from other cultures of ownership realities unfamiliar or forgotten in the United States compares experiments in ownership/equity allocation affecting social welfare and environmental conservation The book synthesizes much innovative thinking on ownership in land and housing, and signals how that thinking might be used across America. Contributors - including David Abromowitz, Darby Bradley, Teresa Duclos, Sally Fairfax, Margaret Grossman, C. Ford Runge, William Singer and others - call for balance between property rights and responsibilities, between private and public rights in property, and between individual and societal interests in land.Property and Values is a thought-provoking contribution to the literature on property for planners, lawyers, government officials, resource economists, environmental managers, and social scientists as well as for students of planning, environmental law, geography, or public policy.
-
Joseph W. Singer, Entitlement: The Paradoxes of Property (Yale Univ. Press 2000).
Type:
Categories:
-
Type:
Categories:
Long considered one of the most important books on the role and operation of the law, The Politics of Law offers a provocative, intelligent critique of traditional jurisprudence.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Joseph W. Singer, Property and Equality: Public Accommodations and the Constitution in South Africa and the United States, 12 S. Afr. J. Pub. L. 53 (1997).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Proceedings of an international colloquium 'Property Law on the Threshold of the 21st Century', 28-30 August 1995, Maastricht.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Joseph W. Singer, Re-Reading Property, 26 New Eng. L. Rev. 711 (1992).
Type:
Categories:
Sub-Categories:
Symposium on Feminist Critical Legal Studies and Postmodernism: Part One: A Diversity of Influence.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories: