Tuesday, May 20, 2014

Moving Beyond Conventional American Law Institute (ALI) Projects: Mae Kuykendall on "Restatement of Place"

At this time of year, when the American Law Institute, "the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law" (ALI About), holds its annual meeting in Washington D.C., to note the publication of a very interesting set of articles in a symposium, a "Restatement of. . . Symposium" recently published in the Brooklyn Law Review (Vol. 79(2)).

In the symposium introduction, Anita Bernstein, explains:
Throughout the near century of its existence, the ALI has been open to reassessing what it does, a stance that suggests stakeholders can—and I argue here should—opine on the possibility of both expansions and contractions in the Restatement agenda. Our authors were charged to consider the “restateability” of their fields of expertise and then recommend to the ALI and their fellow stakeholders whatever they saw fit. As gathered in this volume, their work product endorses new undertakings, new abstentions from established ALI projects, and particular responses to developments in varied corners of the law. (Anita Bernstein, "Onlookers Tell an Extraordinary Entity What to Do: 'Restatement of. . . ' Symposium Introduction," Brooklyn Law Review 79(2):381-396, at 382).
One of the most interesting contributions, and one especially unconventional given the scope of the ALI's past projects, was the contribution of Mae KuykendallRestatement of Place, Brooklyn Law Review 79(2):757-820). Professor Kuykendall seeks to reframe the formulation of legal re-statement, the core work of the ALI, from its conventional legislative silos grounded in substantive fields of law toward the core premises that serve as the structural foundations of law.  Again, Anita Bernstein:
Suggesting that the ALI prepare a Restatement of Place, Kuykendall sets out “to provide demonstrative examples of the presence of place in the construction of law; to suggest how a rigorous analysis of its presence across dimensions of law might proceed; and to suggest the manner in which principles might be shaped to guide law-making or the application of common law.” Restatement of Place defines place, distinguishes it from space and territory, and finds it ubiquitous as a legal classification. Place is restateable not as a “set of standard doctrines affecting an activity,” Kuykendall argues, but “the unstated premise of much of law. Places organize the operative parts of a legal question; locutions take forms of place metaphor, or they overtly use measurements of space, to define duties and rights.” (Bernstein, supra, at  396 (footnotes omitted)).

The article Introduction follows.

Mae Kuykendall,  
Brooklyn Law Review 79(2):757
Excerpt 757-764


This article will explore the possible fit for a Restatement project of a large domain of human perception that pervades legal reasoning as an unstated background assumption. The domain is that of place, a term that deserves clarification for this article by comparison with related terms, such as territory and space. Place as a legal subject brings forth thoughts of the nation-state, jurisdiction, sovereignty, and the norms in international law affecting the reach of a sovereign into the territory of another sovereign. Those concerns are necessarily touched upon in this article, but the chief objectives are to (1) illustrate, through a survey of place’s effect in several very different legal contexts, how ideas about place have influenced legal reasoning, and (2) evaluate the possibility of making place a topic around which Restatement principles could be fashioned. Place, as a factor that is present in law but often not fully seen, has not been recognized for its theoretical importance as a viewpoint from which to understand the functioning and implications of many areas of the law. For example, place may be present in a legal regime for transactions that have escaped the hold of any physical place, while the regime is still rationalized by an imaginary framework of physical location. Conversely, as place fades from importance in a given domain of law, place-based views of the subject of those domains can remain a source of moral framing or legal answers to ambiguous issues. The law of chattel slavery in the South exemplified the conceptual complications of place in a period of transition in cultural arrangements and modes of exchange of property.

Slavery, in particular the American version, was first rationalized in a place-anchored world, in which masters acting out purportedly feudal ideals exercised dominion over inferior beings to whom they provided direct care and the moral guidance owed by a master to a servant. Writings in support of slavery imagined personal connections between master and slave, with duties of stewardship justified in moral understandings drawn from ancient practices and Biblical precepts. The legal treatment of slaves wavered, however, because the legally abstract right of property, in ordinary cases, was absolute, and there could thus be no duties between a master and a slave who lacked legal personhood. Thus, some states imposed duties and prohibitions on slave owners, while others did not. Simultaneously, however, the law of commercial transactions made of the slave’s body an un-situated commodity, implicitly priced in the Liverpool trading market that set a going price of cotton and other slave-produced commodities and intensified the demand on the slave’s body for rapid production of commodities.

The struggle of the law to reconcile the claimed moral underpinnings of slavery with the concept of property, within a partly feudal society, existed alongside the full development of the laws underpinning these global commercial transactions. And the law of commerce ultimately rendered place, and the sentiments that can hold sway within conditions of proximity and community, a lost detail in a world of accelerated communication, market quotations, and the capacity to transmute a human life into a tradable commodity across distances. Thus, the logic and law of slavery was bifurcated within the South between the premises of a place-anchored order that drew upon fading paternalistic values and a fluid system of mobile capital that priced slaves as a mobile commodity, available for sale pursuant to impersonal market logic and with no humane regard for their embodiment in any place at all. The tension between human beings as property and as intrinsically human began to be unmanageable and irretrievably incoherent. The conceptual confusion could not be solved. Marriage procedure in the early twenty-first century exhibits a similar logical tension between the moral sway of physical proximity over a legal arrangement and the sweeping cultural transitions in marriage meaning and ceremonial practices that render the place-centered legal regime for marriage access flawed. As a presumed anchor for creating and regulating the marital status in law, geography has lost its grounding in the decisive effect on “community” of physical proximity and limited mobility. Yet marriage law continues to embrace a literalist approach to the claim of territorial jurisdiction over the solemnization of marriages. At the same time, the culture increasingly embraces marital connections arising from mobility, cross-cultural interactions, and marriage ceremonies severed from a local context. Despite the changing cultural context of marriage ceremonies, states fail to modify the tie of the marriage ceremony to physical presence by a couple. States fail to use their existing power to confer marital status remotely, which they possess to authorize marriages valid in their jurisdiction and in as many others as raise no policy objection to the marriage itself. Thus, any prudent procedure to grant marriage status remotely is as effective as the universal practice of allowing couples who make a brief visit to a state and who marry during that visit the benefit of that state’s marriage licensing law.

Yet the existing geography-based rule requires the use of a marriage license within the territorial limits of the issuing state. Exploring the nature of that literalism reveals other marriage literalisms, including the obsolete use of a creaky “state interest” in denying marriage comity. The Supreme Court’s recent rejection of a federal interest in denying recognition to same-sex marriages for federal law purposes reveals the thinness of any claimed interest by states in territorial control. The sense that requirements of physical presence in the state that issues a license somehow protect, for example, a local culture of marriage, or vulnerable individuals, ignores the widespread mobility associated with marriage ceremonies performed away from a home location of the couple.

A geographic skepticism, and awareness, queries the fading logic of state marriage procedure, which dates from the early twentieth century. With a skeptical view of stale procedures that tie marriage formalization to temporary physical presence in a specified locale, states might experiment with a marriage regime that lets couples choose their preferred marriage law, much as corporations elect a governing law for internal affairs at the time of incorporation. Yet there is little reason for states to innovate, given the current legislative incentives. States compete for marriage tourism, and have little motivation or guidance to devise procedures for their marriage law to be consumed remotely. Lawyers do not have practices connected with entry into marriage by couples, so there is no natural lobby to seek law improvement and efficiency. Thus, the assumption that place and marriage are tightly intertwined continues to be a default intuition, despite fading logic. An undertaking for general law improvement through examination of the role of place in generating legal procedures that do not achieve useful purposes and impose needless cost provides a template for innovation to benefit couples who may need access to marriage law from a distance. An antiquated, unreflective assumption about place could be removed from the framework of law with careful attention to the actual benefit of place-anchored marriage licensing law.

With these examples affecting slave law and marriage procedure, and as I develop in the body of this article, I maintain that much of law contains some element of place as either an overt topic (jurisdiction, justifiable use of deadly force, regulation of spontaneous roadside memorials), as an unnoticed intuition, or as a metaphor used without the rigor of close scrutiny for its capacity to bear analytic weight. First, however, a concession should be made for the hazards of attempting to organize and analyze for practical applications in law the domain claimed by “place” in the human imagination. I am also on warning of the risks of tautology.

Insofar as I claim a wide domain for place in law, I risk either triviality, by confirming something obvious, or analytic sprawl that defies organization or focus for failure to exclude any part of the universe. My effort might be thought the opposite of the originally announced ALI plan of restating the law as an attempt at simplification. But the material in which place is either an overt or unreflective topic in legal thought is broad, so the effort to recognize its reach into law, through a partial but broad set of examples, seems a reasonable effort at assessing its manageability as a feature of law that could be translated into a set of principles. In effect, the undertaking challenges the assumption that the common law is fundamentally sound as an empirical result of trial-and-error reasoning with cases, and that the restatement undertaking properly resists the creation of statutory free-hand abstractions or novel concepts which are necessarily subject to the cross currents of political contestation and untested by judicial application and refinement.Various topics that have not lent themselves to restatements and instead have fostered Principles or Model Codes exemplify the potential for producing principles of the law of place. Though often controversial, Principles projects create baselines for debate and norms for consideration as approved by ALI members after wide vetting. Saul Levmore has offered an excursion into the possibilities of new categorizations within common law by exploring whether “deception” might be distinguished as an area of the law, considering what utility there might be in developing a theory of deception, and discussing how “natural” categories of law could be identified.

So my task in this piece is to provide demonstrative examples of the presence of place in the construction of law; to suggest how a rigorous analysis of its presence across dimensions of law might proceed; and to suggest the manner in which principles might be shaped to guide law-making or the application of common law. To avoid the risks of rhetorical tautology, I will suggest an area of the law in which place is not a presence, and try to suggest the level of abstraction at which common principles might be articulated in certain domains of place to advance sound legal use of place logic. I will also propose a small number of articulations of principle in a concrete subject area to suggest how “place” principles might be given form.

Section I of this article will discuss the meaning of “place,” by juxtaposing it with similar terminologies: territory and space. In order to begin identifying place as a key component of legal reasoning, Section II will give a brief overview of place within a legal context. Section III examines buried assumptions that emerge over time as an overt category for legal management and classification and reviews some of the emerging scholarly interest in place as a background cultural assumption in flux. Section IV considers metaphors of place that orient perception, and then does a limited first cut at cataloguing specific uses of place in law. The cataloguing undertaken in Section IV will use relatively broad characterizations of legal applications of place reasoning, with tentative labels: micro-identity-intensifying settings, place-modified citizenship rights, and so forth. The initial listing is meant to invite further theoretical work, devising the most usable levels of abstraction for organization of a treatise on place as a legal topic and for further work on the viability of place assumptions in a world of increasing “displacement,” through remote communication and digital creations of physical settings and characters, of literal place as a grounding feature of lives. Sections V and VI of the article present examples of particular areas of legal reasoning in which place has figured particularly prominently, and Section VII provides some suggestions for statements of principle affecting these place topics.

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