Bernick on Horrifying Jurisprudence @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Horrifying Jurisprudence as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

This Essay uses the horror video game Alan Wake 2 as a jumping-off point to discuss and critique horrifying jurisprudence—accounts of law that evoke the emotion of horror. By centering on a horror writer whose storytelling shapes the real world, Alan Wake 2 invites analogies to legal interpretation. Legal interpretation often involves storytelling and produces real-life horrors. No legal philosopher captures the narrative and horrific elements of lawmaking as vividly as Robert Cover. Challenging Ronald Dworkin’s optimistic account of judges as chain-novelists who can creatively bend the arc of the law towards justice, Cover contends that judges are generally uncreative members of violence-dispensing organizations. They spend most of their time killing—physically and metaphysically, destroying bodies and entire worlds. More horrific still is the vision articulated by the most memorable character in Cormac McCarthy’s Blood Meridian, Judge Holden. The Judge embraces as inevitable the killing that Cover laments and denies a hope that Cover left open—that of messianic legal transformation from without the system. Although Alan Wake 2 isn’t about jurisprudence, it depicts transformative acts of democratic storytelling for which there are analogues in ongoing resistance to unjust legal systems. As horrific as legal systems can be, things are not so bad as Cover and McCarthy suggest. We can transform what might appear to be inescapable loops of domination into empowering spirals. We don’t have to create horrors.

Download the Essay from SSRN at the link.

Levine on Law and Redemption: Expounding and Expanding Robert Cover's Nomos and Narrative @TouroLawCenter

Samuel J. Levine, Touro University Law Center, has published Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative at 34 Yale J. L. & Human. 253 (2023). Here is the abstract.

The article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: Cover’s reliance on Jewish sources and his efforts to redeem American law and constitutionalism. These themes figure most famously, and in some ways most notably, in Cover’s groundbreaking Nomos and Narrative, published in 1983 and widely considered among the most significant law review articles ever written. Though less well-known, Cover’s unfinished and posthumously published book chapter, Bringing the Messiah Through the Law: A Case Study, expands upon these themes, relying more directly on Jewish law and legal history to illuminate Cover’s conceptions of legal redemption. The Article maintains that, taken together, these two pieces provide complementary views of Cover’s approach, demonstrating, at once, both the potential and the limitations of the redemptive power of law within the American legal system. The article begins with a close reading of Nomos and Narrative, noting Cover’s disappointment with American law’s failure to implement a redemptive response to the legal and societal wrongs of slavery and racial discrimination. The article then turns to Bringing the Messiah, which extends and applies Cover’s vision of law as a bridge to an alternative future, considered through the express lens of Jewish legal history. The article further examines the redemptive and transformative power of law in the context of both legal and narrative areas of Jewish tradition, suggesting that the law must acknowledge and respond to the faults of the past to allow for repentance and reconstruction toward a redeemed future. Finally, the Article closes with the proposition that perhaps Cover’s frustration with the redemptive failure of the American legal system reflects a failure of American law and society to undertake a full accounting of collective culpability for past wrongs, leaving unfulfilled a prerequisite for reconciliation, reconstruction, and redemption.

Download the article from SSRN at the link.

Levinson and Graber on Justice Accused at 45: Reflections on Robert Cover's Masterwork @TouroLawReview @UTexasLaw @mgraber_ @UMDLaw

Sanford Levinson, University of Texas Law School, and Mark Graber, University of Maryland School of Law, have published Justice Accused at 45: Reflections on Robert Cover's Masterwork at 37 Touro Law Review 1851 (2022). Here is the abstract.

We raise some questions about Robert Cover’s Justice Accused, not to criticize magnificent and audacious scholarship motivated by the most pressing moral concerns, but to consider the timeliness and timelessness of certain themes explored in that masterwork. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases played out in the antebellum United States, played out in the United States when Cover was writing, and play out in the United States today. Cover’s opus was a work of the Great Society, even if the text discusses the American judiciary of more than a century before. The moral-formal dilemma faced by the justices Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. As times change, so does the moral-formal dilemma. The civil rights movement and, for many, the anti-War movement, at least as viewed from the academy in the 1960s, presented the moral-formal dilemma in pure form. Jim Crow laws were unjust. Young men were being drafted to fight an immoral war. Every respectable ethicist and every decent lawyer, at least as defined by the bulk of the academy, understood that morality and law were opposed. The sole question in the academy was whether laws widely agreed to be immoral should be respected and obeyed. One feature of much contemporary civil disobedience—consider illegal protests at abortion clinics or a public willingness to disobey state bans on abortion—is that the moral debate is marked by good faith disagreement on both sides. Pro-choice and pro-life activists in this environment face the same more-formal dilemma, as each decides the extent to which the Constitution reflects the values they cherish and the extent to which they have obligations to respect the Constitution or official decisions interpreting the Constitution that either fail to protect all women from exercising their fundamental right to reproductive choice or fail to prevent the wholesale slaughter of the unborn. Donald Trump and the contemporary Republican party may be providing Americans with a new variation on the moral-formal dilemma grappled with by nineteenth century justices in fugitive slave cases and twentieth century justices in civil rights cases. The moral-formal dilemma many Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States even when following and maintaining the letter of the law threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.

Download the article from the Touro Law Review website at the link.

Dane on Robert Cover and Legal Pluralism--Redux @perrydane @RutgersLaw

Perry Dane, Rutgers, The State University of New Jersey, Rutgers Law School, has published Robert Cover and Legal Pluralism - Redux. Here is the abstract.

This short essay meditates on and reconsiders Robert Cover’s distinct vision of legal pluralism in the light of today’s political and legal environment. In a 2013 talk, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302988, I discussed three dimensions of Cover’s legal pluralism: its centering of narrative, its frank focus on state violence and non-state resistance in the encounter of legal orders, and its important insight that non-state communities could articulate and defend their own distinct accounts of the state’s legal order. Each of these ideas looks different today than it did even a few years ago. The narrative of the moment is a specific form of polarization that threatens to hollow out whatever nomos comes within its expanding orbit. The state today is no longer just an imperial ruler asserting its will over smaller scale, paedeic communities, but an increasingly fragile legal order that has become deeply vulnerable to a jurispathy from below. And the scholarly effort to chart the complex dynamics of legal encounter can verge on looking precious in the light of our current brokenness. Nevertheless, it remains vital to take up Robert Cover’s challenge and continue to try to search for an account of nomos and narrative that can make sense of both richly thick communities and atavistic teams, of both imperial states and fragile polities.

Download the essay from SSRN at the link.

Backer on Robert Cover and International Law--Narrative Nudges and Nomadic Nomos @BackerLarry @TouroLawReview

Larry Catá Backer, Penn State Law, is publishing Robert Cover and International Law -- Narrative Nudges and Nomadic Nomos in the Touro Law Review. Here is the abstract.

What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.

Download the article from SSRN at the link.

Dane on Robert Cover and Legal Pluralism @perrydane

Perry Dane, Rutgers, the State University of New Jersey, Rutgers Law School, has published Robert Cover and Legal Pluralism. Here is the abstract.

This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover's account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state's own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.

Download the essay from SSRN at the link.