About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

33 Yale J.L. & Human. 1 (2022)

handle is hein.journals/yallh33 and id is 1 raw text is: Judicial Solidarity? Daniel Farbman* We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover's conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover's bleak view, I expose and examine one judge's contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau's theory of change work required sympathetic judges to enforce the law to expose its injustice. From * Assistant Professor, Boston College Law School. Nothing I write would be possible without Brook Hopkins. I am also in debt to Steven Mueller for his invaluable research assistance. I am grateful for the constructive help I received from the participants of Harvard Law School Public Law Workshop and the University of Chicago Public Law Workshop. I am also grateful for the comments and advice of Paulo Barrozo, Mary Bilder, Niko Bowie, Madison Condon, Dan Coquillette, Hiba Hafiz, Claudia Haupt, Dan Kanstroom, Steve Koh, Ben Levin, Judy McMorrow, Portia Pedro, John Rappaport, Daphna Renan, Blaine Saito, Joe Singer, and Susannah Barton Tobin. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most