Abstract
This Essay uses scholarly debate about the U.S. Supreme Court’s September 2021 decision on the Centers for Disease Control’s pandemic eviction ban to argue that legal elites’ view of the law is useless as it fails to capture the law’s social reality. As a more accurate lens, the Essay uplifts and sketches an alternative perspective on law it calls, “The Jurisprudence of Trousered Apes.” It is the understanding that first-generation lawyers such as the author and those whom the author teaches uniquely contribute to legal analysis, capturing the law as experienced by those oppressed by it rather than contemplated by elites enveloped in its tutelary cocoon.
I. Diagnosis: The Legal Crisis as the Idleness of Elites
Serving first-generation lawyers at a public law school (and being one myself), I write to sketch the perspective on law informing the development of lawyers whom I have trained and now teach. It is a view critical to understanding how lawyers will contribute to the social change the present crisis demands.[1]
From my position as a law professor and former community attorney, I have had much occasion to reflect on the difference among each graduate of (i) a school like my current employer, (ii) the law school that I attended, and (iii) prestigious institutions like Harvard and Yale Law Schools. In a July 2020 post,[2] I referenced a line from a post about a poverty law book that one of my colleagues wrote with his spouse, both alumni of Harvard Law school.[3] The line quotes another Harvard Law man who observed, in effect, that Harvard and Yale Law folks are premium stock, so much so that using them to represent poor people is a waste. The basic spirit of this critique is conveyed with the speaker’s analogy that employing a Harvard or Yale graduate on poor people’s matters would be like using a small particle nuclear physicist to change a light bulb.[4]
Prescinding from the core question of whether, in some sense broader than the lawyering context, Harvard and Yale Law trained folks are cleverer, I concede that they are better lawyers. Or rather, the more accurate way of putting it for our purposes here is that they are unquestionably more devout. They are taught and also learn the law—and are socialized into the profession—in a manner that makes them better at persuading their peers, the high priests of our legal order. Through the initiation that they receive—they are overwhelmingly the children and grandchildren of elites[5] who are then taught by elites and groomed to work for and with elites as clerks, associates, and partners—they internalize the law as a coherent moral system with apodictically valid claims. They excel at persuading elites precisely because they share their worldview and experiences. They can draw upon these peculiar preferences, anxieties, references, and frameworks to deconstruct elites’ handiwork and craft arguments moving such folks to action.
I submit, then, that there can be no real debate about whether elite lawyers are better at the law game than others: they have been groomed to be. But saying this brings us to H.L.A. Hart’s famous point, and the one his detractors most often overlook in assessing his position: that description is not evaluation.[6] Whether this devotion is a good thing stands as an entirely different matter. And since my thesis here proceeds from this question, let me be out with my view immediately: I think that being a true believer is a bad thing, and generally lamentable. For such fervor is a dominant contributor to the modern malaise, or the sense, emerging even amongst elites, that the law has not helped to bring about a just social order and perhaps even enshrines injustice.[7] To make my point tartly, fervent lawyers are why the legal system is so dysfunctional. It is true belief that has left us with a legal system rife with racialized and gendered inequality and class-based disparities, so much so that one can predict the outcome of a legal dispute simply based on the parties’ identities.[8]
But a sharp critique of elite lawyers—the contention that, assuming the goal of a more perfect social order, they have not been effective—is not the end of my argument. Getting to the heart of this Essay, I further contend that the lawyers whom I have trained and now teach are manifestly superior in this respect. I shall spend the rest of this Essay defending this claim. To do so, I elaborate the difference in how elites and the lawyers whose development has been entrusted to me approach the law.
Two preliminary matters before getting to it. First, I set forward an important assumption. That our legal system should be just is a proposition I take to command universal agreement.[9] If this is not an operative premise—if we shall play Russell to Copleston and deny a specific aim[10]—then I suggest there is no need to read further. Still, I ask this: Why do educators insist that undergraduates (or elite high school students) study classics of political theory fixated on justice? Put differently, I should like to understand why educators seem to regard a person as benighted unless she has spent a considerable amount of time contemplating what constitutes an orderly and fair rule. Surely the demand that we all peruse the canon of Plato all the way to Rawls is about instilling this principle. Even if we wish to be cynical and suggest that educators prescribe these books so as to expose students to interesting ideas, it does not explain why institutions uniformly expose students to these specific interesting ideas. To defend this on the basis that such interesting ideas also are important simply returns us to the starting point by way of a simple secondary question: important for what? The answer—that these ideas are foundational to what our political order aspires to be[11]—remains unavoidable.
Second, a point about terminology. Since it is culturally dominant, the perspective underlying elite lawyering is readily familiar since it sets the term of law in public discourse and journalism. As a result, neither it nor its proponents really require a name: as far as we are concerned, the elite perspective is the law or standard jurisprudence and its proponents, mere lawyers. By contrast, dissenters and their perspective do, if for no other reason than to distinguish them from the dominant form, stand opposite to the elite perspective. For reasons that will become clearer later, let us call these dissenting community lawyers, “commoners” and their position, “the jurisprudence of trousered apes.”
II. Etiology: Crystallizing Idleness With the Pandemic Eviction Case
Now on to the main event. Because it is hard to appreciate the concrete implications of legal theory in a vacuum, let us try to draw out the distinction between the commoners and the elites by exploring a particular case. From this, we shall generalize characteristics. Let us take the situation at issue in the United States Supreme Court’s August 26, 2021 decision on an emergency request in Alabama Association of Realtors v. Department of Health and Human Services.[12] That matter deals with the legality of the Centers for Disease Control’s (CDC) regulation prohibiting, as a coronavirus control measure, residential evictions so as to keep people quarantined in place. As legal basis for this ban, the CDC relied on legislative language in Section 361 of the Public Health Service Act of 1944. The relevant text authorizes the head of the federal agency “to make and enforce such regulation as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”[13]
A group of landlords sued the federal agency responsible for the CDC regulation.[14] In their lawsuit, they filed a motion for summary judgment seeking to quash this regulation.[15] As a basis for this relief, they argued that the CDC lacks the legal authority to issue any eviction ban under this legislation because it is cabined to doing things listed in the sentence following the language quoted above. That sentence reads:
[f]or the purpose of carrying out and enforcing such regulations, the [agency] may provide for such inspection, fumigation, disinfection, sanitation, past extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.[16]
In June 2021, five justices of the United States Supreme Court had indicated that they agreed with landlords’ view of an earlier version of the CDC ban providing a blanket prohibition on evictions as a pandemic control measure. But one member of the court, Justice Kavanagh, indicated that the Court effectively allowed the ban to continue on the basis that the ban was scheduled to expire within a few weeks of the June decision.[17] Despite the indication that the majority agreed with landlords’ view, effective August 3, 2021, the federal government reissued a revised eviction ban limited to areas of high coronavirus transmission and imposing a series of conditions effectively limiting its effect to the deserving poor.[18] Given the ongoing state of things throughout the United States, the terms of the ban nonetheless covered 90 percent of counties throughout the nation.[19] On August 26, 2021, the United States Supreme Court eliminated any lingering ambiguity in its June 2021 order by clarifying that eviction bans are simply outside the scope of the legislation.[20]
The difference between elites and commoners is not the back and forth about how we should understand the two sentences from the Public Health Services Act at issue. Indeed, as I shall elaborate later, this is exactly how all lawyers go about their business. Rather, it emerges from how each side frames the case. Five days after the decision was issued, I attended a virtual panel discussion of the Court’s August 26, 2021 order, hosted at my alma mater, and led by two law professors, both graduates of Harvard and Yale who each had clerked for Supreme Court justices. It was framed as a debate between progressives who each accept the basic premise that the United States Supreme Court’s decision is a humanistic tragedy. But you would not have been able to tell that based on how one of the panelists described the situation.
That professor said that the story had three villains, one of whom was the Biden Administration. His criticism was that the Biden administration ostensibly pursued a policy in bad faith, debasing themselves and perpetuating Trumpian anomie. As evidence of the Administration’s bad faith, he cited a July 29, 2021 White House press release where the Administration conceded that an eviction ban was illegal without Congressional authorization.[21] But as I described above, the Administration went on to reissue a revised ban after consulting with a team of law professors. To the professor, this made the Administration look irresponsible before the court in espousing an unjustifiable position serving no other purpose than buying more time to distribute eviction-prevention aid. Lest we misunderstand his sympathies, the professor named Congress as another villain, lamenting their refusal to pass an eviction ban. But in his view, Congressional inactivity did not justify executive action.
There is no better illustration of the difference between commoners and elites. Speaking on behalf of commoners, I simply cannot understand this Professor’s criticism, try as I might. The federal government issued the regulation to manage a particular situation on the ground, not to contribute to some academic discussion about the limits of executive power. And the situation on the ground is this: it has long been the case that the United States’s poor are concentrated among renters,[22] the disparity in renting versus owning has long been racialized,[23] and wealth itself is disproportionately gendered and racialized.[24] Real property owners have been and are wealthier than renters.[25] States lacking any protections for such renters are precisely those marked by the traditional dynamics—a population of renters who do so out of their subordinate positions as racial subject subjected to exploitation[26] by wealthier, whiter interests. Those are the ones requiring that someone does something to protect the weak against the strong. And so the federal government did, issuing a measure targeted to protect the discrete and insular powerless who otherwise face premature death from state indifference,[27] the same contempt that left emancipated Black people terrorized and killed under the abstractions of “states’ rights” and “state action.”[28] The Biden Administration acted because, under current political reality, Congress would not. Under those circumstances, deferring to the abstraction called separation of powers amounts to abdication and, for renters, a death sentence.
In other terms, there is simply no way that a sensible person would regard the measure as something the government should eschew on ethical grounds. A legitimate criticism is that the government should try things better calculated to stick in view of the political reality, a bit of prudence illustrated by the fate of New York’s own eviction ban.[29] A more legitimate criticism is that it was perhaps too conservative in means-testing the benefit and limiting it to rent, to the detriment of many tenants.[30] But one cannot say that the government acted unethically in trying to save lives in view of U.S. social reality simply because of its tactics. The basic shape of U.S. society, as revealed in history, provides ample basis for dismissing abstract concerns about slippery slopes. In the U.S. political order, some folks’ property rights have always mattered more than other humans’, a clear and consistent precedent firmly established from enslavement down to the days of police brutality and the concept of criminality (defined as things that poor people do threatening wealthy folks’ property). Anyone aware of this social reality knows that concerns about good faith, precedent, and legal coherence are all hot air concealing that the CDC will only ever have to use the Public Health Service Act of 1944 to stop evictions. The reason for this is because evictions are things that happen to poor people of color,[31] most states do not care about poor people of color, and any other matter threatening the majority would simply be addressed by states with no need for federal intervention. This last point is illustrated by the many states that adopted quarantines in the earlier days of the pandemic when the Trump Administration declined the imposition.[32] Where white elites are impacted and stand to be harmed, then states will act to protect them. In light of this truism, no sensible lawyer should regard a practical measure meant to address a unique problem within the particular U.S. social context as the harbinger of Leviathan.[33]
But you would not know this from listening to two white elites discuss a social crisis. They treated it as some sort of abstract question of administrative law and civil procedure, indulging logic games that obscure the core value judgement at play. It is one betrayed by the Court’s majority itself in its legally superfluous but politically necessary discussion of why it intervened on emergency grounds: the claim of irreparable harm to landlords.[34] The Court had to draw upon moral abstractions to explain why, ultimately, it was affirming a course destined to result in some tenants’ death. And it drew upon a proposition that powerful elites regard as meaningful: the sanctity of federalism and separation of powers as well as property rights threatened by the “irreparable harm” of potentially never receiving rental arrears.[35] Of course, landlords do not see a cent of money by evicting someone, but judicial legerdemain can use one risk to leverage a non sequitur.
III.From Pathology to Remedy: Legal Reform as
the Way of Law’s Victim
The reason why this trick works gets to the root of the difference between commoner and elite practitioners of law. These ideals mean something to elites because they have been raised and socialized to regard them as meaningful. Removed from the harsh consequences of law and enveloped in its protective cocoon spun by contract and securities laws, elites have been taught to think of the law as a body of moral propositions expressing the genius of the U.S. order. So, it matters to elites that the Court had to resolve the case consistent with abstractions such as the constitutional role of appellate courts in providing general guidance. This is so even though the Court has had no qualms resolving specific national debates with narrow, context-specific decisions as the sole court with the last word.[36] By trying to defend the Court’s action by reference to legal abstractions, elites have provided cover for unprincipled cruelty in the form of evictions during a global pandemic.
Through this, we can discern how elites understand the process of becoming a lawyer. It is an initiation whereby one becomes a custodian of an order, ensuring the integrity of what one has received so that it can be passed on. Even elites who identity as progressives, or who otherwise profess awareness of the legal system’s sordid history, engage with the law in this manner. They do so because they too possess a slender reed: The New Deal, Warren Court, and Great Society.[37] But even accepting this history as elites would have us think about it, it is odd how thirty years of U.S. history overcomes 320 years of darkness.[38] It is odder still when the apparent lesson of the one bright spot is the impossibility of achieving or sustaining progress without obtaining and maintaining power. But still, even progressive elites maintain reverence of abstractions because they are still elites, and elites have been raised to believe in some tutelary arc of the legal universe to which they impute their success. It is an idiosyncrasy—almost a fetish—that amoral operators such as Lee Atwater can exploit.[39]
By contrast, the commoner approaches law as an outsider—as someone who understands the law as a force operating upon herself, families, or communities instead of as some grad ideal that is her patrimony.[40] This is the very thing that makes her a commoner. In her professional capacity, she holds a view in line with the lived experience of most people, where the law is how judges micromanage your parenting,[41] what bureaucrats have long imposed for paltry assistance,[42] when school board officials use their power to reinforce gender roles,[43] and where you are a constant suspect rather than a citizen.[44] In other terms, the law is a thing that happens to you, not out there in the ether of history or in some Hegelian dialectic about the “spirit of the world.” Where the elite regards law as a civilizational artifact, the commoner sees it as an instrument of power wielded against her own by some occupying force. She is keenly aware of the law in the way, as one old comedy routine goes, every older Black person is a qualified paralegal:[45] she knows it not as a hallmark of a great civilization, but as a landscape to be navigated for survival.
As a result, the commoner brings to law the genius of critical detachment. Understanding law as social fact, and having only briefly passed through, during law school, the intellectual country in which their elite colleagues have been raised, she devises solutions for obstacles to justice. To that end, and to generalize further from the debate about the eviction ban we considered, this sort of lawyer has two defining characteristics. Below, with each I summarize, illustrate, and relate each in terms of the elite perspective.
A. The Way of Positivism Illustrated by Tanzin v. Tanvir
First, she is a crude positivist. In my observation, the foremost commoners know an abundance of statutes and cases and can cite them by chapter and verse. They know this because such are the thicket to be navigated or puzzle to be solved toward helping the client out of oppression, almost like obstacles on the freedom trail. For this reason, the actual mechanics of argument in Alabama Association of Realtors[46] presents no problem. In law, the struggle occurs through rhetorical exchange, or through combat by semantics.
To illustrate this characteristic, I select a matter litigated all the way up to the U.S. Supreme Court by former CUNY Law students and argued by a colleague: Tanzin v. Tanvir.[47] The case involves Muslim New Yorkers Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari, who accuse Federal Bureau of Investigation (FBI) agents of having placed them on the No Fly List in retaliation for their refusal to act as informants against members of their religious communities.[48] To vindicate their rights, the plaintiffs sued the Department of Homeland Security as well as the government agents in the agents’ndividual capacities under the Religious Freedom Restoration Act (RFRA), seeking money damages from the agents.[49]
The U.S. Supreme Court has interpreted RFRA to prohibit the federal government from substantially burdening a person’s free exercise of religion.[50] As a remedy for such, the government allows the injured person to assert the violation as a claim or defense in a court case and “obtain appropriate relief against a government.”[51] The case before the U.S. Supreme Court focused on the question of whether the term “appropriate relief against a government” includes the right to sue individuals working for the government for money damages that can be assessed against the agents’ personal assets.
To argue that the Tanvir plaintiffs could sue individual agents for money, their attorneys made a simple two-part argument rigorously centered on legal texts. They first argued that RFRA defines “a government” to mean “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”[52] Then the plaintiffs’ counsel argued that the term “appropriate relief” includes money damages based on an array of statutes and precedents all showing that the term encompasses money damages against government officials.[53] Except in responding to policy arguments raised by Department of Justice attorneys representing the sued agents,[54] the plaintiffs’ argument sticks to promulgated law such as statutory text and judicial opinions. It does not get into whether they should be able to sue the government in some normative sense untethered to promulgated legislation.
The underlying facts of the case explain why commoners tend toward positivist argument over appeals to general public policy. The whole reason why FBI agents felt free to harass the plaintiffs is that they knew the public are behind them. Many members of American society agree that “patriotic Muslims” should spy on their potentially seditious friends,[55] a disloyalty suspected of the Chinese before them.[56] Many people also share the suspicion of practicing Muslims that supports dehumanizing surveillance: as January 6, 2021 reminds us, terrorism is defined as things all Brown people do with a complete disregard for Brown people’s humanity, let alone actual beliefs, practices, or ethnicities. To make this point from a different angle, the social view that tends to also defend qualified immunity—the sense, reified by judges, that police officers need freedom of liability to keep (an excluding) us safe[57]—is the vox populi that the agents heeded. This majoritarian sentiment often trammels over minority rights, branding such antithetical to the “common good.”[58] Since policy arguments often try to shoehorn legal texts into the popular sense of the law, a plane on which socially marginalized folks typically cannot win, there is no place to fight. The realm of promulgated law, with its general and broad language that can be crafted to serve people outside of the legislator’s intention, is the more promising space.
What have elites to say about this characteristic? This manipulation of actual laws is what elite lawyers call being “too clever by a half.”[59] By saying this, elites mean to deride legal arguments that make sense as a matter of language but disregard the spirit of the law. But, of course, the “spirit of the law” simply means what some lawyers—elites—have been told what the law means in some debating society sense, or shorn of its impact on actual human beings.[60] The lawyer that is intent on helping a client out of some ordeal could not care less about the abstract meaning of a law if it conspires to impede liberation. If such abstractions block the operation of the law—if they operate to ignore the words “other measures” of the Public Health Services Act and thus defeat a solution—then they should be disregarded. We should treat them in the same way the Court read the tradition of “adequate remedy at law” out of its irreparable harm analysis to alchemize a monetary injury into a basis for an injunction serving property rights.[61]
B. The Way of Pragmatism Illustrated by Odumn v. United States
Building upon the first point in knowing the law, the commoner will not internalize any presumption that the law is coherent or even just. Rather, she will regard the law as a set of prescriptions and prohibitions that are meaningful and valuable to the extent that they produce just outcomes: outcomes where people are fed, housed, educated, cared for, and generally helped to thrive. She will think of anyone who speaks of law as a syllogism rather than a social reality—who disregards the white supremacist tradition that provides the limiting factors for every slippery slope—as a proper fool. She will reject the idea of a lawyer as a person who prefers grasping for debating society straws in complete ignorance of the obvious real impacts of the law.
To appreciate the characteristic of consequentialism, let us turn a simpler matter: Odumn v. United States.[62] This criminal case involved the prosecution of a Black man named Nijae Odumn who had been in the common area of an apartment complex helping his aunt Wanda Pratt move in. Mr. Odumn was prosecuted for violating a District of Columbia (D.C.) ordinance that prohibits, on penalty of a misdemeanor, unlawful entry on property, where “unlawful entry on property” is defined as entering a space such as an apartment complex “against the will of the lawful occupant or of the person lawfully in charge thereof.”[63] The reason why he was prosecuted for unlawful entry simply for being in the common area is that a D.C. police detective working as a security guard at the complex had verbally barred him from entering the premises ten months earlier, when Mr. Odumn had helped his mother move in to the same building. Apparently, the detective doubling as a security guard barred Mr. Odumn because he had found him to be “‘loitering nonstop,’ hanging around the building and not visiting anyone.”[64] So when another police officer aware of this ban found the man at the premises, she arrested Mr. Odumn.
The case went to trial. After the presentation of the evidence, the judge agreed with the parties that the entire case turned on the question of whether Mr. Odumn had a reasonable belief of reason, or permission, to be at the complex.[65] Such reasonable belief would serve as a complete defense to unlawful entry.[66]
To establish that Mr. Odumn had this permission, his attorneys invoked the same common law property principles that the U.S. Supreme Court emphasized in Alabama Association of Realtors: the bundle of rights. Specifically, Mr. Odumn’s attorneys invoked the stick of possession from the property law bundle that is traditionally understood in the landlord-tenant context, to involve a transfer of a possessory estate rendering a tenant both owner and occupier of such during the terms of her lease. A practical consequence of such a transfer is that, under default common law principles, the landlord may not prevent or prohibit persons coming on to the leased property at a tenant’s invitation. And so, on this authority, they argued that since Ms. Pratt had invited Mr. Odumn onto her leased property, her leased property includes the right to enter and exit through the common area, and her lease did not limit this right to who she allowed on the property. As a result, Mr. Odumn had an absolute defense to the prosecution: his aunt’s common law right of quiet enjoyment based in the landlord’s covenant not to interfere with a tenant’s right of possession.[67] The appellate court agreed, adopting the argument and reversing the conviction and dismissing the case.[68]
Now, one cannot help but smirk at this argument in the light of U.S. history. For reasons amply set forth in Cheryl Harris’s Whiteness as Property,[69] reflected by the real property covenants at issue in Shelley v. Kraemer,[70] and illustrated by the pernicious effect of the right to exclude in Alabama Association of Realtors, common law property rights have not been allies of justice. Frankly, common law possessory rights—the notion of a person being “king in one’s castle”—informs the sort of Stand Your Ground legislation[71] whose intended operation is to empower white people to kill, with impunity, Black people whom they fear, as evidenced by the Trayvon Martin case.[72] The same bias of the system is also illustrated when the exact opposite problem arises, where poor people cannot avail themselves of these rights. The quintessential case of this is the Court’s decision in Department of Housing and Urban Development v. Rucker,[73] which upheld the denial of full common law possession rights to poor, federally assisted tenants through the imposition of lease terms obliging them to trade rights for shelter.[74] Thus, one has little basis to have predicted that the spirit of property law supports the result in Odumn, a clear “broken windows” type of prosecution colored by Rucker.[75]
At this point, the measured genius of the commoner comes in to ask: Who cares? The spirit of this approach can only be captured with simple-minded crudity: if it works, use it. We can be certain that none of Mr. Odumn’s lawyers have gone on to think any differently of property rights, let alone become their champion as means of racial justice. Nor should we suppose that the favorable outcome in their case meaningfully changed their view of U.S. social reality. But in one instance, common law property rights served to push back against police harassment. And so they were used, with no hesitation, shame, irrelevant sense of hypocrisy, or grand narrative aside from people’s freedom.
Elites lament this as rank consequentialism, as barbarism indicating a lack of culture. But to those insisting that consequentialism is crass, I raise the question of what political order has ever subordinated reality to ideology. Mark Mazower’s Dark Continent surely expresses the truer historical reality that western Europeans have understood “democracy” as whatever fulfills needs.[76] This is the sense in which law is not a “suicide pact.”[77] So, whatever the points to make about disparate impact as a legal concept, we must recognize that impact analysis—a look at what the law means on the ground for those whose interests it is intended to serve—has long been a part of ordinary lawmaking and legal interpretation.[78] Frankly, that is likely the reason why even conservatives consider evidence of disparate impact to be legally relevant:[79] It is impossible for people who imagine laws to be impartial, “neutral” and “generally applicable”[80] to make sense of legal burdens falling so overwhelmingly on certain populations. It questions the premise of fairness or causes cognitive dissonance.
IV. The Way Forward as a Departure From Tradition
All that remains is to explain this Essay’s title. In a 1943 series of lectures at the University of Durham published as an essay entitled The Abolition of Man: Reflections on Education with Special Reference to the Teaching of English in the Upper Form Schools,[81] the Oxford alumnus and professor C.S. Lewis assessed the nature of modern instruction. As the subtitle indicates, Lewis focused his remarks on the education of elite boys and girls. Indeed, to make his points, he critiques of an elementary textbook he pseudonymously called “The Green Book”.[82] But since his comments are a deep moral engagement with how educators socialize their charges, and since legal education shares this function, his comments are worth considering here.
Lewis criticizes The Green Book’s authors for teaching English composition in a manner that undermined the notion of objective value as framed in the great Western tradition.[83] In commenting on The Green Book’s debunking of an advertisement promising ticket purchasers “an adventure in the seasons where Sir Francis Drake of Devon sailed and treasures,” Lewis gets to the heart of what he regards as the problem:
From this passage [debunking the advertisement] the schoolboy will learn about literature precisely nothing. What he will learn quickly enough, and perhaps indelibly, is the belief that all emotions aroused by local association are in themselves contrary to reason and contemptible. He will have no notion that there are two ways of being immune to such an advertisement—that it falls equally flat on those who are above it and those who are below it, on the man of real sensibility and on the mere trousered ape who has never been able to conceive the Atlantic as anything more than so many million tons of cold salt water. There are two men to whom we offer in vain a false leading article on patriotism and honour: one is the coward, the other is the honourable and patriotic man. None of this is brought before the schoolboy’s mind.[84]
Fundamentally, Lewis’s problem with The Green Book is that it operates to produce trousered apes, whom he later denominates “Men Without Chests.” The characterization of them is again aided and simplified by lengthy quotation from the book:
It is an outrage that [Men Without Chests] should be commonly spoken of as Intellectuals. This gives them the chance to say that he who attacks them attacks Intelligence. It is not so. They are not distinguished from other men by any unusual skill in finding truth nor any virginal ardour to pursue her. Indeed, it would be strange if they were: a persevering devotion to truth, a nice sense of intellectual honour, cannot be long maintained without the aid of a sentiment which [the authors of The Green Book] could debunk as easily as any other. It is not excess of thought but defect of fertile and generous emotion that marks them out. Their heads are no bigger than the ordinary: it is the atrophy of the chest beneath that makes them seem so.[85]
I owe a great deal of my intellectual formation and inspiration to Lewis. To take a simple illustration, this Essay’s opening line is in the form of the opening to his inaugural lecture upon being appointed Chair of Medieval and Renaissance Literature at Cambridge University.[86] And I hope that his appreciation of the anger and malediction flowing from injustice found in Hebrew scripture[87] would allow him to understand part of what inspires the perspective developed here. But I refer to the commoner’s approach as the jurisprudence of trousered apes—the law according to the understanding, experience, and development of those outside the elite—because I suspect this is how elites perceive it. I submit that they do so in two senses.
A. The Jurisprudence of Trousered Apes Explained
At an immediate level, the provocative term—apes—reflects how Western European elites have spoken of outsiders, especially those of color. Under the white supremacist order, my ancestors and I would endure this simian reduction as a racial epithet with both aesthetic and noetic implications. And so, from this view, law done by Black and Brown people—rather than remaining the preserve of white elites—must be, in this hideous sense, a jurisprudence of apes in suits. But the term points to a second sense from Lewis’s argument in the Abolition of Man. The jurisprudence of trousered apes makes no pretense of initiating law students into a culture excluding commoners. Again, I return to the example of Tanvir. From a cultural standpoint—from the spirit of Western experience—it seems unavoidable that many in the United States would approve of the FBI agents’ behavior. The operative premises of this affirmation are that (i) Muslims (imagined as a Brown ethnicity or nationality) are particularly given to terrorism, and (ii) “good, patriotic” Americans who happen to be Muslims should want to help root out the bad.[88] If one accepts the view that Islam and democracy are incompatible,[89] then one will regard Tanvir as having been wrongly decided for chilling desired law enforcement. But to commoners, many of whom are Black and Brown Muslims themselves, the defended perspective is simply rebarbative. Indeed, the spirit of the law will be the genuine barbarism restoring some ethno-religious conception of belonging that U.S. society is supposed to have transcended.[90]
But to elites, law practiced by people outside of elite institutions and, therefore, estranged from reverence and abstraction, will be law by people without chests. They will possess the head of law, symbolized by law degree and license as well as the use of legal jargon. They will also have the limbs of the law adorned in professional raiment, suits, and all that. But having never been socialized into the elitist worldview—or having renounced it during the confrontation with brutality, cruelty, and violence—the commoner lacks the heart or soul of the law as high culture. She appears civilized, but, from the standpoint of preeminence, stands as no more than a brute for disregarding law as a noble abstraction and instead reckoning it a crude instrument of class, racial, and gender warfare. But so be it, I say. So much the better for being grounded.
B. A Final Word—Of Diverse Commoners
I mention the shades of difference among the commoners. There are hard commoners who maintain that the law is inherently and irreversibly oppressive, so much so that one can only hope to use law for resistance.[91] Advocacy for anarcho-social democracy is the natural end of this view.[92] There are also soft commoners who regard the present difficulties as the product of recent history, from the Nixon Administration or perhaps even the Reagan Administration forward through the Trump Administration.[93] They maintain hope that the dysfunction of law can eventually be overcome through the elevation of that radical egalitarianism bubbling beneath the surface of U.S. history.[94] By this I mean the alternative tradition illustrated by Radical Republicans, the labor movement of the early twentieth century, the Civil Rights Movements, and now, the Movement for Black Lives Coalition.[95] I claim a position in between both poles that I shall describe as the moderate commoner position. Officially agnostic about elites’ broader claims regarding our legal order, I am simply not interested in anything other than law’s impact. The inquiry must be what a legal position does for equality and access.[96] In stating my position, I must say a few words to the other poles. To those hard commoners who regard law as fundamentally oppressive and, therefore, deny that the master’s tools can ever erect a just order,[97] you have nothing but my general agreement. Still, the questions remain of how we should resist. I submit the jurisprudence of trousered apes as one method. And to soft commoners, I affirm the theoretical possibility of a neutral legal order defensible by reference to pluralistic values; it is possible that law can be enforced to advance the inclusion of all. Related to this view is a sense that the legal order is perhaps redeemable, even if that redemption is unimaginable during my lifetime. But the important thing to people in my middle position is that the law lives. So long as the law breathes—that is, so long as it is not merely dead tradition but also lived experience[98]—it can hope.[99]
[1]. See generally George Packer, The Last Best Hope: America in Crisis and Renewal (2021).
[2]. Gregory Louis, The Clean Sea Breeze of Bad Men, Yale L. & Pol. Econ. Blog, (July 13, 2021), https://lpeproject.org/blog/the-clean-sea-breeze-of-bad-men [https://perma.cc/3396-M7WH].
[3]. Helen Hershkoff & Stephen Loffredo, LPE in Practice: Why We Wrote Getting By, Yale L. & Pol. Econ. Blog (July 6, 2020), https://lpeproject.org/blog/lpe-in-practice-why-we-wrote-getting-by [https://perma.cc/4NMC-YWU4].
[4]. Id.
[5]. See Debra Cassens Weiss, Study Finds ‘Lopsided’ Concentration of Socioeconomic Elites at Law Schools, ABA Journal (Oct. 5, 2011, 11:00 AM), https://www.abajournal.com/news/article/study_finds_lopsided_concentration_of_socioeconomic_elites_at_law_schools [https://perma.cc/G2W5-5B5C] (summarizing an article by UCLA Law Professor Richard Sander as showing that “[m]ore than three quarters of the students at the nation’s top 20 law schools come from the top one-fourth of the socioeconomic population, and well over half of the students at these schools come from the top 10 percent.”); see also Pete Davis & Nino Monea, Policy Proposal: Measure Socioeconomic Diversity 3–4 (Apr. 23, 2016), https://orgs.law.harvard.edu/studentgovernment/files/2017/04/Policy-Report-Measuring-Economic-Diversity.pdf [https://perma.cc/BKB7-576G] (citing Professor Sander’s article as well as Harvard Law School data and observing that if true of Harvard and other top law schools, then elite institutions “are socioeconomically homogeneous and fail to help low-income students climb up the ladder”). Of course—and very much illustrative of the argument in this Essay—the data on the socioeconomic gap have been arrogated by elites to undermine racial justice. This is a point made in Deborah C. Malamud’s critique of Professor Sander’s use of these data to oppose race-based affirmative action. See Deborah C. Malamud, Class Privilege in Legal Education: A Response to Sander, 99 Denv. U. L. Rev. 729 (2011). Khiara M. Bridges observes the socioeconomic argument to be a favorite tactic of those intent on denying the United States’s sordid history with race. See, e.g., Khiara M. Bridges, Class-Based Affirmative Action, or The Lies That We Tell About the Insignificance of Race, 96 B.U. L. Rev. 55, 94–98 (2016).
[6]. See H. L. A. Hart, Law, Liberty, and Morality 3 (1963).
[7]. See Meagan Day & Bhaskar Sunkara, Think the Constitution Will Save Us? Think Again, N.Y. Times (Aug. 9, 2018), https://www.nytimes.com/2018/08/09/opinion/constitution-founders-democracy-trump.html [https://perma.cc/QN92-FV69]; See generally Andrea Flynn, Susan R. Holmberg, Dorian T. Warren & Felicia J. Wong, The Hidden Rules of Race: Barriers to an Inclusive Economy (2017) (describing a state of racial inequality, even for white Americans, and imputing this to the notion of neutrality).
[8]. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1382–83 (arguing that neutral, liberal rights rhetoric creates barriers to overcoming racial oppression by “creat[ing] the illusion that racism is no longer the primary factor for the condition of the Black underclass”); see also Vicki Lens, Poor Justice: How the Poor Fare in the Courts 4, 208 (2015) (observing that nine out of ten judges are white, with one in four female, and concluding that success and failure of poor litigants “is often a function of time, place, and the identity of the judge, rather than an appeal to sacred texts or lofty principles”).
[9]. See Lens, supra note 8, at xi, xiii–xv (assuming that courts should lead to justice, defining it as fair). Cf. Avital Mentovich, J. J. Prescott & Orna Rabinovich-Einy, Are Litigation Outcome Disparities Inevitable? Courts, Technology, and the Future of Impartiality, 71 Ala. L. Rev. 893, 895 (2020) (regarding impartiality as the central pillar of a just legal system).
[10]. I refer to Bertrand Russell and Frederick Copleston’s 1948 debate over BBC radio about the existence of God. During their discussion following the Socratic method, neither could agree on whether scientists observe nature intending to discover material causes or whether they simply observe nature. Not agreeing on this premise, they declared an impasse and moved on to another topic. For the relevant section of the debate where that impasse occurred, see Modern Introduction to Philosophy: Readings and Contemporary Sources 481 (Paul Edwards & Arthur Pap eds., 3rd ed. rev. 1972).
[11]. See Lens, supra note 8, at xiii.
[12]. 141 S. Ct. 2485 (2021).
[13]. 42 U.S.C. § 264(a).
[14]. The full procedural history of this saga is summarized in the Court’s August 26, 2021 decision. See Ala. Ass’n of Realtors, 141 S. Ct. at 2487–88.
[15]. Id. at 2487.
[16]. Id.
[17]. See Id. at 2320, 2321.
[18]. Temporary Halt in Residential Evictions in Communities With Substantial or High Transmission of COVID–19, 86 Fed. Reg. 43244 (Aug. 6, 2021).
[19]. Ala. Ass’n of Realtors, 141 S. Ct. 2485, 2490–91 (2021).
[20]. See id. at 2488–2490.
[21]. See Press Release, The White House, Statement by White House Press Sec’y Jen Psaki on Biden-Harris Admin. Eviction Prevention Efforts (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/statement-by-white-house-press-secretary-jen-psaki-on-biden-harris-administration-eviction-prevention-efforts [https://perma.cc/GX4G-5G4P].
[22]. Drew Desilver, As National Eviction Ban Expires, A Look At Who Rents And Who Owns In The U.S., Pew Rsch. Ctr. (Aug. 2, 2021), https://www.pewresearch.org/fact-tank/2021/08/02/as-national-eviction-ban-expires-a-look-at-who-rents-and-who-owns-in-the-u-s [https://perma.cc/PE8X-7BT7] (“One big disparity among renters is race and ethnicity. Nationwide, about 58% of households headed by Black or African American adults rent their homes, as do nearly 52% of Hispanic- or Latino-led households, according to Pew Research Center’s analysis of census data. By contrast, roughly a quarter of households led by non-Hispanic [w]hite adults (27.9%) are rentals, as are just under 40% of Asian-led households. . . . Renters skew to the lower ends of income and wealth distributions, according to data from the Federal Reserve’s 2019 Survey of Consumer Finances. About three-fifths of people in the lowest income quartile (60.6%) rent their homes, as do 87.6% of people with net worths below the 25th percentile. In both cases, as one goes up the income or net worth distribution scale, the share of people who are renters falls: Only 10.5% of people in the top income quartile, for example, are renters.”).
[23]. Kevin E. Jason, Dismantling The Pillars of White Supremacy: Obstacles in Eliminating Disparities and Achieving Racial Justice, 23 CUNY L. Rev. 139, 152–53 (2020). See also Matthew Desmond, How Homeownership Became the Engine of American Inequality, N.Y. Times (May 9, 2017), https://www.nytimes.com/2017/05/09/magazine/how-homeownership-became-the-engine-of-american-inequality.html [https://perma.cc/PK9M-D4WP] (“While most white families own a home, a majority of [B]lack and Latin[x] families do not. Differences in homeownership rates remain the prime driver of the nation’s racial wealth gap.”).
[24]. See Flynn et al., supra note 7, at 73–75 (describing wealth gap between Blacks and white and between Black women and white women).
[25]. See, e.g., Revisiting Rental Housing: Policies, Programs, and Priorities 1 (Nicholas P. Retsinas & Eric S. Blesky eds., 2008) (describing the perception of rental housing as “second class” because “America’s poor are concentrated in rental housing further degrading its status”); see also Desmond, supra note 23 (“America’s national housing policy gives affluent homeowners large benefits; middle-class homeowners, smaller benefits; and most renters, who are disproportionately poor, nothing.”); cf. MHANY Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 609–10 (2d. Cir. 2016) (upholding district court’s finding of discriminatory animus in housing discrimination case by citing research showing that people believe the majority of public housing renters to be people of color—specifically Black—and affordable housing to be low-income, minority housing).
[26]. See Matthew Desmond, Evicted: Poverty and Profit in the American City 306 (2016).
[27]. See Is Racism a Public Health Issue?, Ctr. for Stud. Racism, Soc. Just & Health (Oct. 9, 2017), https://www.racialhealthequity.org/blog/racism-is-a-public-health-issue [https://perma.cc/UZP7-TGH5] (defining racism as “the state-sanctioned and/or extralegal production and exploitation of group-differentiated vulnerability to premature death”) (quoting Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 28 (2007)).
[28]. See James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. C.R.-C.L. L. Rev. 385, 388–90 (2014) (discussing the role of the acquittal of a Ku Klux Klan member under U.S. v. Cruikshank, 92 U.S. 542 (1876) in the development of Fourteenth Amendment state action, privileges and immunities clause, intentional discrimination, and congruence and proportionality doctrines).
[29]. See Chrysafis v. Marks, 141 S. Ct. 2482 (2021) (enjoining enforcement of New York COVID Emergency Eviction and Foreclosure Prevention Act that awarded stay of eviction proceedings for any tenant who self-certified financial hardship without any right to a hearing for landlords).
[30]. See Tara Raghuveerin Amy Kapczynski, Nikolas Bowie, Tara Raghuveer, Katharine Jackson, John Whitlow, Blake Emerson & Ashraf Ahmed, Seven Reactions to the Eviction Moratorium Decision, Yale L. & Pol. Econ. Blog, (Sept. 2, 2021), https://lpeproject.org/blog/five-reactions-to-the-eviction-moratorium-decision [https://perma.cc/TEM3-UHN4].
[31]. See Mathew Desmond, Eviction and the Reproduction of Urban Poverty, 118 Am. J. Socio. 88 (2012); see also Peter Hepburn, Renee Louis & Matthew Desmond, Racial and Gender Disparities Among Evicted Americans, The Eviction Lab (Dec. 16, 2020), https://evictionlab.org/demographics-of-eviction [https://perma.cc/U964-NYZE].
[32]. See, e.g., Jessica Levinson, Trump’s Federal Coronavirus Quarantine Isn’t Happening (For Now). But What Can States Do?, NBC News (Apr. 2, 2020, 4:32 AM), https://www.nbcnews.com/think/opinion/trump-s-enforceable-coronavirus-quarantine-was-legally-dubious-what-can-ncna1174546 [https://perma.cc/A2S8-Q35Q] (describing diverse pandemic quarantine regulations imposed by states governed by both Democrats and Republicans).
[33]. This refers to Thomas Hobbes’s 1651 political treatise where Hobbes justifies vesting full political power in government to spare citizens from the state of nature. See generally Thomas Hobbes, Leviathan (Penguin Classics 1982) (1651). As one article points out, elites have not so much feared omnipotent government as they have feared government power being exercised by Black people, who are the Other; They conceive of themselves as, and seek the protection of, Leviathan as against that Other. Anthony Paul Farley, Lacan & Voting Rights, 13 Yale J.L. & Human. 283, 283–86 (2001).
[34]. See Ala. Ass’n of Realtors v. Dep’t Health & Hum. Servs, 141 S. Ct. 2485, 2489–90.
[35]. See id.
[36]. See, e.g., Bush v. Gore, 531 U.S. 98, 109 (2000) (“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”).
[37]. See Holes in the Safety Net: Federalism and Poverty 1–5 (Ezra Rosser ed., 2019) (illustrating the progressive tendency toward constitutionalist nostalgia by describing the U.S. welfare state as having its apex between the New Deal and the election of Nixon, with 1996 reform legislation bringing about its end).
[38]. See discussion infra accompanying note 91.
[39]. Rick Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, Nation (Nov. 13, 2012), https://www.thenation.com/article/archive/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy (discussing electoral strategy of abstracting racism as issues about states’ rights).
[40]. The use of she/her pronouns when referring to commoners is intentional, because the concept of the elite legal practitioner is a gendered person (the iconic white man of law).
[41]. See, e.g., Dorothy Roberts, Shattered Bonds: The Color of Child Welfare viii (2002) (describing the book as “a plea to call the child welfare system what it is: a state-run program that disrupts, restructures, and policies Black families”).
[42]. Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973, 9 (1993) (describing that under the deserving and undeserving poor policy paradigm, recipients had to comply with baroque reporting requirements merely to receive and remain on public benefits, and found that benefits were tied to seasonal work patterns and intrusions into their privacy).
[43]. See G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 716 (4th Cir. 2016) (describing public school board overriding public school official who allowed transgender student to use boys’ restroom).
[44]. U.S. Targeted Black Lives Matter Activists in Bid to Disrupt Movement, Report Finds, Guardian (Aug. 19, 2021, 6:30 AM), https://www.theguardian.com/us-news/2021/aug/19/black-lives-matter-policing-prosecutions-race-goverment.
[45]. See Jordan, Killin’ Them Softly – Dave Chappelle (2000) HD, YouTube (Apr. 3, 2013), https://www.youtube.com/watch?v=FclScfPoKes [https://perma.cc/3LSW-4ULC]. And she knows them better than even the comedian has proven to know them.
[46]. See supra, notes 12 through 20 and accompanying text.
[47]. 141 S. Ct. 486 (2020). CUNY School of Law Professor Ramzi Kassem argued the matter. See Amy Howe, Argument Analysis: Justice Divided on Money Damages for Religious Freedom Lawsuit, SCOTUSblog (Oct. 6, 2020, 4:48 PM), https://www.scotusblog.com/2020/10/argument-analysis-justices-divided-on-money-damages-for-religious-freedom-lawsuits [https://perma.cc/E9LX-HFY9].
[48]. Tanvir, 141 S. Ct. 47 at 491–92.
[49]. Id.
[50]. Id. at 492 (citing Flores v. City of Boerne, 521 U.S. 507, 511 (1997)).
[51]. 42 U.S.C. 2000bb-1(c).
[52]. Tanvir, 141 S. Ct at 490 (citing 42 U.S.C. § 2000bb-1(c)).
[53]. Id. at 491–92.
[54]. See Brief for Respondents at 42–47, Tanzin v. Tanvir, 2020 WL 583961 (2d. Cir. 2020).
[55]. For commentary on the constant scrutiny of Islam and skepticism of Muslims’ U.S. patriotism, see, for example, Devin Dwyer and Jacqueline Yoo, Muslim Americans Confront Legacy of 9/11 Islamophobia: “Unspoken Tragedy,” ABC News (Sept. 9, 2021, 5:10 AM), https://abcnews.go.com/US/muslim-americans-confront-legacy-911-islamophobia-unspoken-tragedy/story?id=79640032 [https://perma.cc/9TDQ-SCG5].
[56]. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 706, 730 (1893) (upholding the “[w]hite witness” requirement on the basis of racist generalization about a refusal to assimilate and a tendency toward perjury).
[57]. Why We Need Qualified Immunity, Nat’l Police Support Fund (Feb. 18, 2021), https://nationalpolicesupportfund.com/why-we-need-qualified-immunity [https://perma.cc/RYL5-EELU]. See also Jamison v. McClendon, 476 F. Supp. 3d 386, 403–04 (S.D. Miss. 2020) (criticizing modern reality of qualified immunity and observing that the doctrine is a public policy invention by the U.S. Supreme Court seeking to protect officials “who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority”).
[58]. See, e.g., Elisabeth Zerofsky, How the American Right Fell in Love with Hungary, N.Y. Times Mag., (Oct. 19, 2021), https://www.nytimes.com/2021/10/19/magazine/viktor-orban-rod-dreher.html [https://perma.cc/FNG3-AU8G](describing Adrian Vermeule’s “common-good originalism” as a proposal to correct liberalism’s “‘imperialist progressive’ force” that demands “ever-expanding . . . individual rights that upended social custom”). The tendency of Vermeule’s position to subordinate individual rights to a common good has been noted and criticized by self-identified conservatives, albeit not on individual rights grounds. See, e.g., Rod Dreher, What Do Integralists Want?, The American Conservative (Oct. 27, 2021, 11:00 PM), https://www.theamericanconservative.com/dreher/what-do-integralists-want-reactionary-catholicism [https://perma.cc/7W5K-KBB8] (classifying Vermeule’s position as Catholic integralism—or the view that civil society should be subordinate to Papal rule—and denouncing such as unworkable in the United States because of its Protestant tradition).
[59]. Galante v. Ocwen Loan Servicing LLC, 2014 WL 3616354 at 30 (D. Md. 2014) (deriding a mortgage servicer’s argument to dismiss a lawsuit brought under the Fair Debt Collection Practices Act).
[60]. Cf. Dahlia Lithwick, John Roberts Has Lost Control, Slate (Dec. 10, 2021, 2:21 PM), https://slate.com/news-and-politics/2021/12/texas-abortion-john-roberts-lost-control-supreme-court.html [https://perma.cc/FDV4-M6SL] (discussing the U.S. Supreme Court’s decision in Whole Women’s Health v. Jackson, 2021 WL 5855551, and observing that the majority has ignored real people’s suffering to instead reward an array of stratagems).
[61]. As discussed in Chrysafis v. Marks, 2021 WL 2405802 (E.D.N.Y. June 11, 2021), there is some federal circuit authority supporting the granting of injunctive relief to remedy monetary injuries where there are obligations owed by insolvents, on the theory that, even though money is at issue, without injunctive relief attaching the creditor’s property, the debtor plaintiff would not be made whole since the creditor would be penniless at the time of judgment. See Chrysafis v. Marks, 2021 WL 2405802, at *5 (E.D.N.Y. June 11, 2021), vacated, 15 F.5th 208 (2d Cir. 2021) (citing Brenntag Int’l Chemicals, Inc. v. Bank of India, 175 F.3d 245, 249–50 (2d Cir. 1999) (citations omitted)). But the U.S. Supreme Court had never clarified this matter, even casting the Brenntag exception into doubt in a 5–4 decision authored by Justice Scalia. Group Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 119 S. Ct. 1961 (1999). That is what makes the Court’s shadow docket endorsement of this exceptionally cynical.
[62]. 227 A.3d 1099 (D.C. App. 2020). Current CUNY School of Law Interim Assistant Dean for Academic Affairs Fareed Nassor Hayat litigated this matter at the trial level.
[63]. Id. at 1102.
[64]. Id. at 1101.
[65]. Id.
[66]. Id.
[67]. “[T]he right of common enjoyment includes, absent a lease clause to the contrary, a right to be free of the [landlord’s] intentional interference with full enjoyment and use of the leased premises[.]” American Dairy Queen Corp. v. Brown-Port Co., 621 F.2d 255, 258 (7th Cir. 1980).
[68]. Odumn, 227 A.3d at 1105–08.
[69]. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).
[70]. 334 U.S. 1 (1948).
[71]. Mark Randall and Hendrix DeBoer, Castle Doctrine and Stand-Your-Ground Law, Conn. Gen. Assemb. Off. of Legis. Rsch. (Apr. 24, 2012), https://www.cga.ct.gov/2012/rpt/2012-r-0172.htm [https://perma.cc/6NC8-DW5M].
[72]. See, e.g., Ta-Nehisi Coats, How Stand Your Ground Relates to George Zimmerman, Atlantic (July 16, 2013), https://www.theatlantic.com/national/archive/2013/07/how-stand-your-ground-relates-to-george-zimmerman/277829 [https://perma.cc/Y7N7-6E9E]. (summarizing jury instructions).
[73]. 535 U.S. 125 (2002) (upholding, on due process grounds, provision of Anti-Drug Abuse Act requiring that leases involving local public housing authorities (PHAs) in federally subsidized programs contain terms giving such PHAs discretion to terminate the lease of a tenant when a member of the household or guest engaged in drug-related activity, regardless of whether tenant knew, or should have known, of the drug-related activity).
[74]. Rachel Hannaford, Trading Due Process Rights for Shelter: Rucker and Unconstitutional Conditions in Public Housing Leases, 6 U. Pa. J. Const. L. 139 (2003).
[75]. It is ironic that property law aided Mr. Odumn to defend himself against such a prosecution. For broken windows policing has typically sought to reduce the incidence of crime by rigorously enforcing property laws and other low-level offenses. This has resulted in the criminalization of the very communities of color it was supposed to serve, expanding mass incarceration. See, e.g., Bench Ansfield, How A 50-Year-Old Study Was Misconstrued To Create Destructive Broken-Windows Policing, Wash. Post (Dec. 27, 2019), https://www.washingtonpost.com/outlook/2019/12/27/how-year-old-study-was-misconstrued-create-destructive-broken-windows-policing [https://perma.cc/UDZ6-EDLX].
[76]. Mark Mazower, Dark Continent: Europe’s Twentieth Century 26 (2000) (“[T]hose whose highest priority was national unity were increasingly tempted by more integral and authoritarian forms of government; liberal democracy had failed the Nation, and might have to be sacrificed if the Nation was to survive. ‘When a constitution proves itself to be useless,’ Hitler wrote to Cardinal Brüning in 1931, ‘the nation does not die—the constitution is altered.’”).
[77]. Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
[78]. See American Legal Realism xii–xiii (William W. Fisher III, Morton J. Horowitz & Thomas A. Reed eds., 1993) (describing consequentialist legal analysis as the dominant mode of legal analysis before U.S. Civil War that legal realists sought to restore in the early twentieth century).
[79]. See, e.g., Tex. Dept. of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 588 (Alito, J., dissenting) (rejecting disparate impact claims under the Fair Housing Act, but nonetheless conceding that disparate impact can be evidence of disparate treatment, a claim cognizable to all).
[80]. See Mentovich, Prescott & Rabinovich-Einy, supra note 9.
[81]. See The Essential C.S. Lewis 427 (Lyle W. Dorsett ed., 1997).
[82]. See id. at 429.
[83]. See id. at 437.
[84]. Id. at 430–32.
[85]. Id. at 437.
[86]. See id. at 471 (excerpt De Descriptione Temporum from They Asked For A Paper: Papers and Addresses (1962)).
[87]. See C.S. Lewis, Reflections on the Psalms 24 (1958) (describing resentment as the natural result of cheating a person, keeping them down, or neglecting them).
[88]. See, e.g., Judith Miller, How to Stop Terrorists Before They Kill, Wall St. J. (Apr. 24, 2013, 6:41 PM) https://www.wsj.com/articles/SB10001424127887324874204578440992247444754 [https://perma.cc/UJH5-AX84] (Praising the New York Police Department’s anti-terrorism surveillance program targeting Muslims and arguing that the program might have prevented the Tsarnaev brothers’ Boston bombing with the following remark: “Tamerlan Tsarnaev's mosque quarrel and his sudden behavioral changes might well have been reported by concerned worshipers, the imam himself, or other fellow Muslims. The NYPD maintains close ties to Muslim preachers and community leaders, as well as a network of tipsters and undercover operatives.”).
[89]. For this popular view, long associated with Samuel Huntington, see Richard W. Bulliet, The Case For Islamo-Christian Civilization 1–4 (2004).
[90]. Cf. Garrett Epps, On Race and Voter ID, John Roberts Wants It Both Ways, Atlantic (Oct. 24, 2014), https://www.theatlantic.com/politics/archive/2014/10/on-race-and-voter-id-john-roberts-wants-it-both-ways/381868 [https://perma.cc/T5NP-QT35] (discussing U.S. Supreme Court Chief Justice John Roberts’s view that, “‘The way to stop discrimination on the basis of race,’ . . . ‘is to stop discriminating on the basis of race.’”).
[91]. See, e.g., Derrick Bell, Racism is Here to Stay: Now What?, 35 How. L.J. 79 (1991); Derrick Bell, Faces of the Bottom of the Well: the Permanence of Racism (1992).
[92]. Cf. Dean Spade, Mutual Aid: Building Solidarity During This Crisis (and The Next) 153 (2020) (arguing that participation in mutual aid builds capacity for self-emancipation from illegitimate authority of dominant systems and device means of self-protection).
[93]. See supra, note 32.
[94]. Derrick Johnson, The George Floyd Uprising Has Brought Us Hope. Now We Must Turn Protest to Policy, Guardian (June 30, 2020), https://www.theguardian.com/commentisfree/2020/jun/30/black-lives-matter-protests-voting-policy-change [https://perma.cc/GF4B-R64G]. See also Ezra Klein, Why Ta-Nehisi Coates is Hopeful, Vox (June 5, 2020), https://www.vox.com/2020/6/5/21279530/ta-nehisi-coates-ezra-klein-show-george-floyd-police-brutality-trump-biden [https://perma.cc/Z6XY-FZXJ] (finding hope and progress in multiethnic solidarity evident in protests during the summer of 2020).
[95]. See The Radical Reader: A Documentary History of the American Radical Tradition xi–xii (Timothy Patrick McCarthy & John McMillian eds., 2003).
[96]. See Andrea Giampetro, How Antiracist Lawyers Can Produce Power and Policy Change, 24 J. Gender Race & Just. 237, 240–42 (citing Ibram X. Kendi, How to Be an Antiracist (2019) and proposing the use of integrated advocacy tools to produce change)).
[97]. See Audre Lorde, Sister Outsider: Essays and Speeches 110–14 (2007).
[98]. Cf. Thurgood Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document?, 40 Vand. L. Rev. 1337 (advocating for the celebration of a living constitution that advanced the life, liberty, and property of all persons against one that fixed meaning once and for all in the late eighteenth century).
[99]. The famous Dum spiro, spero! (“While I breathe, I hope”) of Hellenistic literature.
