Death and Legal Scholarship: How an Era of Mass Carnage Affects the Substance of Our Work

Guest Blogger

Mary L. Dudziak

Introduction

We are living through an era of mass death. One feature of this historical moment is Covid-19, which in spite of public health efforts, keeps frustrating our desires to confine it within time boundaries. The Covid era emerged alongside the Black Lives Matter movement, which brought broader awareness to Black deaths in police custody. These events have led to a multidimensional and global, though fractured, experience of mass carnage.

That an era of crisis can affect the substance of legal thought has long been evident in works like Edward Corwin’s World War II era classic Total War and the Constitution, and Mark Tushnet’s post-9/11 edited volume The Constitution in Wartime. Writers and scholars across fields have been addressing the impact of our crisis era on ideas. This blog symposium builds upon these efforts. It began as an AALS 2022 Open Source panel on Death and Legal Scholarship: How an Era of Carnage Affects the Substance of Our Work. (A video of the panel will soon be posted on the AALS Conference website.) It is inspired by a project of the journal Diplomatic History which invited nearly two dozen scholars of international and foreign relations history to reflect on the impact of the Covid era on our scholarship. While some took up shifts of focus required when archives closed and travel shut down, for others substantive impacts derived from the social, cultural, and intellectual experience of living in a pandemic. My own contribution reflected on how this era of carnage on U.S. soil might impact the way we think about war-related solidarities along the lines of Drew Gilpin Faust’s history of Civil War death, This Republic of Suffering.

Participants in this blog symposium take up the ways this era of death and suffering matter to legal scholarship. Aziza Ahmed, Professor of Law at the University of California, Irvine School of Law, takes up the importance of the way data about public health crises is collected and mobilized, setting current inequalities in the context of past events, like the AIDS crisis. Catherine Powell, Professor of Law at Fordham Law School, Visiting Scholar at the NYU Law School Center for Human Rights & Global Justice, and Non-Resident Senior Fellow at the NYU Reiss Center on Law and Security, critically analyzes uses of a wartime metaphor for mobilizing efforts to address the pandemic. Brittany Farr, Sharswood Fellow at the University of Pennsylvania School of Law, uses the story of the murder of Emmit Till to explore the power of grief across time and space. In a moving final essay, Linda McClain, the Robert Kent Professor of Law at Boston University School of Law examines the scholarly lenses through which we think about the pandemic. Emphasizing that it is a mass death event, she illuminates its character by turning to one death that was quite personal. The symposium concludes with an Afterword and selected bibliography.