Authors:Peter Margulies Abstract: Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a "mediating device." In immigration law, courts can serve this mediating function by reconciling the values of protection and enforcement. This Article considers the mediating devices that courts can employ on three salient immigration law issues: 1) the availability of habeas corpus in expedited removal, which the Supreme Court rejected in DHS v. Thuraissigiam; 2) judicial review of executive branch action, such as President Trump's ban on immigration from several majority-Muslim countries, which the Court upheld in Trump v. Hawaii, and President Trump's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program, which the Court invalidated in DHS v. Regents of the University of California; and; 3) procedural and substantive bases for challenges to immigration detention.In each context, the Article argues that courts should require more tailored government actions and acknowledge the need for workable enforcement. This approach preserves a measure of deference for the political branches while checking arbitrary government actions that put noncitizens at risk. PubDate: Thu, 12 May 2022 12:10:19 PDT
Authors:Larry Catá Backer 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 is grounded in quite distinct sacral foundations. Cover’s insights suggest 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. PubDate: Thu, 12 May 2022 12:10:15 PDT
Authors:Marie A. Failinger Abstract: Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference. PubDate: Thu, 12 May 2022 12:10:11 PDT
Authors:Kimberlianne Podlas Abstract: Today’s media landscape is wholly unlike that which existed when Cover first discussed narrative and the nomos; specifically, the status of television as both a cultural messenger and object of scholarly study has changed significantly. Accordingly, this article contemplates narrative in the contemporary media environment, specifically, television as an essential source of narratives. To enhance understandings of the roles television narratives play and which narratives play a role, this article employs an empirical perspective. Surveying Media Theory, it outlines research on television effects, including when and why television’s representations of law can impact audience attitudes, behaviors, perceptions, knowledge, and judgements. It then summarizes and explores recent changes in the media environment – digital platforms and streaming content, unprecedented audience selectivity and fragmentation, cable news differentiation, and Twitter – and considers what impacts these have on audiences and the nomos. PubDate: Thu, 12 May 2022 12:10:07 PDT
Authors:Itamar Rosensweig et al. Abstract: In this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first argument appeals to Hohfeld’s analysis that rights are correlative of duties. Our second argument contends that certain mitzvot are best understood as protecting individuals’ rights. In Section IV we discuss two ideas that underlie the “no rights in Jewish law camp.” The first idea is that the category of mitzvah is best interpreted as obligation. The second idea is that an obligation to obey God’s law implies a law comprised of obligations. We argue that both of these ideas are misguided. PubDate: Thu, 12 May 2022 12:10:04 PDT
Authors:Ariel Evan Mayse et al. Abstract: Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent in such comparative efforts. At the same time, it argues that Cover’s primary insight regarding the notion of a socially imbricated obligation as a core feature of Jewish jurisprudence and provides an important contribution. This theory is especially valuable in contexts in which contemporary policymakers and advocates have lacked success in locating a language or strategy sufficient to appreciate and address overwhelming modern problems at the juncture of individual and community. More specifically, drawing on our previous work exploring Jewish law lessons for information privacy and environmental ethics, this essay argues that a nuanced adaptation of Cover’s theory of “incumbent obligation” as the organizing feature of Jewish law, can provide contemporary policymakers with a set of conceptual tools to help develop alternative approaches to metastatic surveillance and environmental collapse.The notion of obligation as the heart of an ethical and jurisprudential system provides a powerful corrective to the post-Enlightenment West’s centering of the “individual moral adventure” and the privileging of individual rights that has gone hand-in-hand with this ethos. The pre-modern roots of halakhah (Jewish law) permit a powerful challenge to this paradigmatic hegemony, as the Jewish legal tradition precedes liberalism and thus predates conceptions of the individual that undergird much of modern thinking, even as Jewish jurisprudence embodies a deep commitment to protecting individuals. Engagement with this tradition need not supplant liberalism. Rather, it presents a complementary ethical framework that can work within and enrich post-Enlightenment Western discourse. Reflecting this opportunity, revisiting Cover’s work provides a conceptual frame that is sufficiently flexible and capacious to provide an additional legal vocabulary and set of jurisprudential values that can help confront the greatest challenges of our age. PubDate: Thu, 12 May 2022 12:10:00 PDT
Authors:John Valery White Abstract: Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by ascendent national groups. This need is underscored by the rise of populist nationalist movements that seek to capture the state to impose on their fellow citizens a particular vision of the nation. Such groups, like the segregationist Bob Jones University that Nomos and Narrative addressed, pose a problem for rights regimes by underscoring the limits of a state neutrality in the face of illiberal visions of the nation. This second dimension of rights builds on and ultimately revives the revolutionary elements of Cover’s seminal article – a fitting tribute to his brilliance. PubDate: Thu, 12 May 2022 12:09:56 PDT
Authors:Aviam Soifer Abstract: The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world. PubDate: Thu, 12 May 2022 12:09:52 PDT
Authors:Steven L. Winter Abstract: Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us to a destination; but sometimes, as when there are no crossings for miles, it can take us very much off course. Ideology is a bridge of that sort: It serves, Václav Havel explains, as a bridge of excuses between the individual and the system.Law lives in the traffic between these two bridges. Sometimes legal actors take up the burden of law’s ontology in a way that honors law as a social institution. Other times, they engage in artifice to obscure the interpretive decisions that arise from the changes in meaning and circumstance that inevitably occur. Close readings of Bostock v. Clayton County and Brnovich v. Democratic National Committee reveal the pathologies of contemporary textualist and formalist methodologies. Rather than orienting us to a better, more effective future, these approaches serve as rationalizations that mystify and mollify. The opinions in these cases distort law’s delicate ontology in a manner that—irrespective of the decisions on the merits— systematically subvert the functions and operations of law. They are, in a profound sense, jurispathic. PubDate: Thu, 12 May 2022 12:09:48 PDT
Authors:Richard H. Weisberg Abstract: The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of 1986. On each occasion, Bob wanted to spin out ideas we were developing together about Dostoevsky’s last masterpiece, The Brothers Karamazov (“The Brothers”), and in these pages, I want to engage the largest issues provoked in Bob’s mind by that text: law, religion, and the potential undermining of sound traditions through “revolutionary” interpretive distortions. PubDate: Thu, 12 May 2022 12:09:44 PDT
Authors:Tawia Ansah Abstract: This Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and not-law, of the state of exception. The Article suggests that this concept is key to understanding Cover’s theory of law’s violence. PubDate: Thu, 12 May 2022 12:09:37 PDT
Authors:Sanford Levinson et al. Abstract: We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that 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 instead defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. The moral-formal dilemma the justices of Cover’s own time faced when adjudicating cases arising out of the Civil Rights Movement and Vietnam War was whether they should interpret the law in light of the liberal moral values of their class, The moral-formal dilemma many contemporary 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 when doing so threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction. PubDate: Thu, 12 May 2022 12:09:33 PDT
Authors:Gabriel J. Chin Abstract: Professor Robert Cover is recognized as a leading scholar of law and literature; decades after his untimely passing, his works continue to be widely cited. Because of his interest in narrative, he is credited as a contributor to the development of Critical Race Theory. This essay proposes that in addition to narrative, some of his other, substantive works about race were also important precursors to a more sophisticated appreciation of U.S. race relations. Professor Cover is also entitled to credit for understanding racism as a pervasive system, and one which went beyond Black and White. PubDate: Thu, 12 May 2022 12:09:29 PDT
Authors:Laynie Soloman et al. Abstract: The role and function of “halakha” (Jewish law) in Jewish communal life is a divisive issue: while Orthodox Jews tend to embrace Jewish law, non-Orthodox Jews (here deemed “Heterodox”) generally reject Jewish law and halakhic discourse. We will explore the way in which Robert Cover’s work offers an antidote to categorical Heterodox distaste for halakha specifically, and law more broadly, providing a pathway into an articulation of halakha that may speak to Heterodox Jews specifically: one that is driven by creative “jurisgenerative” potential, that is informed by a paideic pluralism, and that is fundamentally democratic in its commitment to being shaped not by its authors or enforcers but by the people who imbue it with meaning.We explore four examples of Heterodox halakhists whose work is grounded in such a vision for law articulated by Cover: Rachel Adler, Tikva Frymer-Kensky, Mark Washofsky, and Gordon Tucker. These four scholars, responding to distinct cultural moments and emerging socio-political realities, develop attempts to transform halakhic life and discourse. Inspired by Cover, they each offer reflections of an approach to halakha as it could be, imagining alternative approaches to Jewish law-making.Our analysis builds on these frameworks, which are shaped by Robert Cover’s work. Through the incorporation of two core principles for Jewish law-making—”a judge has only what his eyes see,”and “the heart alone knows its bitterness”—we attempt to expand the analysis of these thinkers to articulate and illustrate a path to progressive psak among Heterodox Jews that dis-locates notions of authority and expertise in law-making, and embodies the well-known dictum created and popularized by disability justice activists: nothing about us without us, suggesting a framework for pluralist approaches to Jewish law that are liberatory and community-driven. PubDate: Thu, 12 May 2022 12:09:26 PDT
Authors:Randy Lee Abstract: As a teacher, Yale law professor Robert Cover never “dazzled,” “zinged,” nor “entertained”; he just engaged his students on a journey to the real and true that ultimately invited them to become the best version of themselves. As a Jew, Professor Cover wore an oversized skull cap, covered himself in a multicolored prayer shawl, and studied from a huge Talmud. He also, however, made everyone around him feel valued and welcomed and swept them up in a faith Professor Cover saw as wondrous and life-changing. This essay considers what the life of Robert Cover can teach us about what it means to be a teacher, a Jew, and an instrument of love. PubDate: Thu, 12 May 2022 12:09:22 PDT
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