We present this third “issue” of Unbound in a slightly less journal-like fashion. Continuing to resist the general form of the law review, our new site retains the citations and pagination necessary for law journal articles while laying the groundwork on which we may challenge the format of a single “book” for each year’s issue. By allowing our own editors to more easily update the website, we have the option to move to rolling publication, as well as integrate audio and video content—which we explore in this issue for the first time.
Though we do not present every panel, we hope these morsels will offer a taste of the themes that we gnawed upon over the course of the symposium. And though we acknowledge that the production value is not especially high, we hope that the videos will serve in some small way to make our events more accessible to those “readers” who are interested but could not join us for the live presentations.
Lastly, we’d like to note that certain (non-substantive) elements of the website are still being fine-tuned. We’ll make some minor tweaks over the coming months, as we get more dexterous with this novel (to us) technology.
In an essay called Politics, Identification, and Subjectivization, fancy theorist Jacques Rancière wrote that “The place for a political subject is … a gap: being together to the extent that we are in between.” I have always had a hunch that he’s right about this, even though I’m not quite sure I know what he means.At this conference we were asked to talk about our own activist work. Mine starts by listening to disadvantaged people talk with me about what they remember. Methodologically, I locate this work in a distinctive, once discredited but now resurgent style of “militant” ethnography. It’s tricky, this naïve work of heartfelt listening. A more cerebral style—making intricate maps of fields of practice, systems of social exchange, or labyrinths of microdistribution—seems a lot safer. Empathy, after all, offers slippery ground. Yet here I be—unable to drop my project even though I’m certain that the “voices” of the “poor” I claim to hear do not mark any thing but my own obsessively wounded desire. I’ll let Julieta psychoanalyze.
By Julieta Lemaitre
In 2002, when I left Colombia, human rights discourses were fighting words that invited threats and exile and bloodshed, and, even in the tamer area of women’s rights, where the war remained panting at margins, the defense of human rights located one to the left. When my father heard this was my professional field, he dreamt I ambushed him in his land, wearing military fatigues and guerrilla emblems.
That fall I arrived in Cambridge and found Harvard Law School, or at least the activist section of it, in a flurry over David Kennedy’s article on the human rights movement, where he wondered whether or not the movement was part of the problem and advocated for a pragmatic assessment of what he called “our most sacred” humanitarian tactics and tools.1 This was my introduction to the United States academy’s emphasis on cost/benefit analysis, perhaps the most illuminating aspect of a Harvard graduate education. I soon discovered it is the one thing most quarters apparently agree on: law is to be judged by its, preferably measurable, consequences, which are then spelled out, explicitly or not, as costs and benefits, or in any case as a matter of strategy, and above all, as a matter of winning.
Over the years, as the flame of my activism sputtered during the long winters in Cambridge, a particular intellectual curiosity about the law grew to replace it. I wondered about holding rights as “an object of devotion and not of calculation.”2 It seemed to me not only that in myself did rights indeed hold that place, or had, but that the phenomenon was in itself of interest, and not to be lightly discarded by the assumptions of consequentialism (i.e. that it was “bad faith,” or bad politics, or alternatively, “false consciousness” or even “slave morality”). I do not mean to say that there is no need to examine consequences, and thus, costs and benefits. My point is rather that desire for and enjoyment in law reform is not fully explained by actual benefits or the expectation of benefits, but that there is instead an excess of passion and pleasure that is only explained by enjoyment in the law as an end in itself.
The call for papers and the questions posed by Unbound’s members — some of which were answered, many of which remain open.
The docket for discussion, as originally planned. Because of a spring nor’easter, a number of speakers could not make it to Cambridge, and the actual schedule differed slightly from this version. [ pdf ]
(All clips require RealPlayer, available here.)
- Opening remarks by Nate Ela, Harvard Law School
- Panel — Activism Within and Without the Law
- Balakrishnan Rajagopal, MIT
- Julieta Lemaitre, Harvard Law School
- Lucie White, Harvard Law School
- J. Soffiyah Elijah, Harvard Law School (commentator)
- Richard Heppner, Harvard Law School (moderator)
- Panel — Politics of the Past: Imagining Legal Realities
- Anna di Robilant, Harvard Law School
- Havva Guney, Harvard Law School
- Duncan Kennedy, Harvard Law School (discussant)
- Christine Desan, Harvard Law School
- Hedayat Heikal, Harvard Law School (moderator)
- Panel — Whose Streets? Urban Spaces Resist
- Yishai Blank, Tel Aviv Law School
- Myrta Morales-Cruz, University of Puerto Rico School of Law
- Rick Su, University at Buffalo Law School
- Vaidya Gullapalli, Harvard Law School (moderator)
- Closing Remarks
- Duncan Kennedy, Harvard Law School
- Zinaida Miller, Harvard Law School
By James Oleson
It is an interesting hypothetical: if you could travel back in time, would you kill the struggling watercolor artist Adolf Hitler in order to avert the Holocaust? If it could prevent a looming nuclear apocalypse, would you murder an innocent scientist? Would you murder a president? These may seem like fanciful questions—they are, after all, the stuff of blockbusters and best sellers—yet at their roots are practical issues with real legal consequences. After all, people sometimes engage in actions, including criminal actions, in order to prevent greater social harms.
Within the sphere of the criminal law, crimes that are committed to avert a greater harm can be justified, thereby absolving the actor of punishment, under the doctrine of necessity. A driver can exceed the speed limit in order to rush someone to a hospital. A hiker, lost in a snowstorm, can break into a vacant cabin and take available food. A citizen can destroy someone else’s home in order to prevent a fire from spreading to other houses. Necessity, then, properly understood, is an extraordinarily radical legal principle.
By Saskia Sassen
My concern here is exploring the limits of power and the complexities of powerlessness—the direct or mediated resistances that the powerless can deploy knowingly or not. Immigration policy enforcement is one institutional domain for exploring these issues, especially in the case of powerful countries and undocumented workers, among the most vulnerable subjects in those same countries.
By Samuel R. Sommers
Upon being asked to contribute to a journal for the “Legal Left,” I immediately focused my cognitive energy on the effort to identify the basis for the invitation. This was an automatic response that I could not help. After all, as a psychologist I chronically seek attributions for others’ actions and ponder influences on social judgment. So why was I singled out and contacted for a submission? Is there something about my academic affiliation, my departmental website, or even my name that implies a particular ideological bent? Has the editorial board used my published work to draw inferences regarding my political beliefs? Or does my research focus on issues that are of particular interest to people who self-categorize as “on the left?”
As is often the case in with such attributional efforts, my sleuthing came to no definitive conclusions. But for the purposes of this article, I choose to endorse the final possibility above, namely that my work generates findings that intrigue the intended audience of this journal and are consistent with its priorities. Why? For one, this conclusion makes for a more interesting piece, as I can write about my research as opposed to myself. So, despite its informal and somewhat introspective style, this article does not follow the lead of some contributions to the debut volume of this journal, as it does not rely on personal anecdotes or reflections on, for example, how I became interested in studying race and legal judgment. This decision, I am quite sure, will disappoint few readers not related to me by blood or marriage. The other, more important reason for my decision to presume that this invitation was based on the topic of my work—and not on an inference about my personal politics—is that this conclusion allows me to maintain the belief that these two entities are distinct, or at the very least unidirectional in their causal relationship. Perhaps this is naïve or even deluded, the idea that a researcher’s conclusions can remain uninfluenced by his or her ideological beliefs. But this assumption is important to me as a scientist, and not—as a skeptic might suggest—as a mere façade to maintain the pretense of impartiality. My research conclusions are based on empirical data and interpreted through theory.
By Samuel R. Sommers
Immanuel Wallerstein delivers a talk at Harvard Law School on the waning power of the U.S. in the modern world system. Opening remarks by Lauren Coyle and Duncan Kennedy. Watch the Video
By Lauren Coyle, Nate Ela, and Zinaida Miller
In many ways, Unbound’s re-creation three years ago was an act of resistance: a call founded on the instinctual sense that “something is wrong” in popular discourse, relationships, society, and—most centrally for us—in the operations of law. That initial idea of pervasive wrong has been translated over the past few years into multiple moments in which our members and authors have explored in detail the egregious injustices of contemporary maldistributions of power and access to resources, whether economic, social, emotional, aesthetic or otherwise.
Despite—or perhaps because of—Unbound’s own success, we have come to grapple with the myriad issues surrounding and informing the concept and practice of resistance, which this year became the theme of our first symposium, “Resistance and the Law: Radicalism, Extremism, Legitimacy, Co-optation.” Curious how others’ views might inform our own thoughts concerning how one could or should resist certain pathological patterns in law, legal thought, and legal academia, and how legal scholars and practitioners may define the very forces we resist, we invited participants to explore in broad terms the idea of resistance within, without, and against the law.