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

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

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

Freedom’s New Fight

Reviewing, Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004

Roman Catholic Army Chaplains During the First World War : Roles, Experiences and Dilemmas

This dissertation examines the role and actions of the Roman Catholic clergy from Britain who served as military chaplains during the First World War, including the external influences and pressures that may have contributed to their behaviour. In doing so it looks at international themes relating to the Catholic Church as a transnational body as well as the more national and parochial issues that were unique to the status of the faith in the different combatant nations included in the study. While Catholicism was very much a minority religion in the British Isles during the 1914-1919 war, it has been argued that the faith came out of the conflict with its reputation enhanced. This has often been put down to the actions of the Catholic chaplains at the 'sharp end', or most dangerous part, of the battlefield. This dissertation re-examines a number of the themes that have been presented in previous academic works as having provided the evidence for such an assertion. While finding substantive evidence to support a number of the claims (including the advantages bestowed on the RC chaplains by the nature of the Catholic landscape in many of the key battlegrounds, as well as the importance of the delivery of the Sacraments), it also argues that the more aggressive attitude and role of the 'home' clergy in France and Belgium was to have a significant influence on the British chaplains. Furthermore, it is argued that some of the reasons previously given for the behaviour of the RC chaplains, and particularly those with regard to their class and ethnicity, are misleading and in need of further serious examination