Volume 21, Issue 2 (Spring 2024)
Attentive Reading: A South African Example of Law in Context
Kris Franklin and Sarah E. Chinn
Perhaps the time has finally come to acknowledge the usually subterranean battles in legal work over the deployment of historical and social context in law. Lawyers, judges, and legal scholars are always implicitly asking: what are we allowed to consider when we do legal analysis? How should we read and understand law? For too long, revanchist forces have succeeded in claiming ground to characterize the relevance (or, more often, irrelevance) of structural inequality and oppression in law. But tides can always turn.
Ongoing and continually active debates about textualism, Chevron deference, the role of science and expertise, and so forth make plain what has always been contested in legal interpretation: where do the boundaries of factual context reside, and what can/should readers focus on when reading and understanding legal texts? In many ways such questions remain perennial ones precisely because they defy easy resolution. We certainly cannot hope to settle them in one interdisciplinary essay. We can, however, note that queries about interpretive methodology are not trivial, and they are not neutral. Indeed, they go to the very heart of what it means to think about law. And consequently, what it means to think about our societies, and ourselves.
Robert L. Greenberg
Two particularly controversial topics in law are those around firearm rights and cannabis. Since its decision in District of Columbia v. Heller in 2008, the United States Supreme Court has taken a wider view of the Second Amendment as an individual right under the Fourteenth Amendment. Contemporaneously, the individual states have been legalizing and decriminalizing cannabis possession and use, while the federal government keeps cannabis—in the cannabinoid bearing form of marijuana—listed as a schedule I controlled substance. This means that there is no legitimate use for the plant under federal law.
Consequently, cannabis users—even if obeying their respective state laws and not convicted of any felonies—are unable to exercise their Second Amendment rights. This brings up two particularly interesting Constitutional issues for cannabis users. Firstly, do cannabis users have the rights under the Second Amendment to keep and bear arms? To date, courts have largely upheld firearm bans for those using controlled substances illegally, and that would include users of medical cannabis patients.
The Honorable Dr. Melissa Lin Jones
Law students studying torts for the bar exam see negligence in supermarket puddles. Probate attorneys see potential business in the obituaries. Workers’ compensation professionals see claims for benefits in the news – a customer disgruntled by cold french fries leaps over a counter and assaults a cashier, a recently-fired employee returns to the office and assassinates a supervisor, a gas leak at a factory causes a conflagration that injures a host of assembly line workers. The media did not report these stories as workers’ compensation cases, but workers’ compensation professionals see it.
Collin Schaffhauser
Contemporary American antitrust law finds itself constrained to a narrow conception of economics. Where the digital, data-driven, and service oriented economy grows increasingly ever-present in the American economy and our everyday lives, courts continue to utilize a purely economic theory of antitrust that is unable to deal with the dilemmas of our digital, information age economy: economic concentration in the hands of a few “Big Tech” companies and manipulation—both economic and political—of the vast quantities of data and opportunities said companies lord over. This information, and the control over its dissemination and use, has led to the undermining of the democratic process and small entrepreneurial enterprise in the United States.
Miranda Stafford
The 1954 Supreme Court decision Brown v. Board of Education dramatically altered the American public education system and, subsequently, the overall status of race relations in the United States. Brown, analyzing instances of educational segregation across the country, found that the segregation of students in the public school system on the basis of race violated the Constitution. More specifically, the Court determined that segregation in education improperly denied students their right to equal protection of the law under the Fourteenth Amendment. Segregation, they said, had “no place” in public education, as schooling presented “perhaps the most important function of state and local governments.”
Despite the clear unconstitutionality of segregation, many states, namely those which operated under the racial caste system of Jim Crow, failed to comply with the Brown decision in a timely matter. In the interest of enforcing desegregation, the Court handed down a judicial mandate a year later in Brown II, outlining the general mechanisms to be used to bring states into compliance and requiring that the desegregation of American public schools be conducted with “all deliberate speed”. In the aftermath of Brown
and Brown II, a slew of other cases tackling specific instances of segregation in educational settings helped to further shape the legal apparatus of desegregation. Brown, Brown II, and their legal progeny onerously made some practical progress towards their goal and led to better outcomes for students. Ideologically, Brown became encoded in the broader understanding of what America, and ultimately individual states, should strive for in a democratic society.