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Restatement of Place

Kuykendall, Mae, Restatement of Place (May 2, 2014). Brooklyn Law Review, Vol. 79, 2014; MSU Legal Studies Research Paper No. 12-09. Available at SSRN:

“Images and intuitions of place are ubiquitous in human thought. Dominion over place is one of the first anchors of the conception of law, providing a rationale for sovereign control over defined land boundaries. Place is also embedded in attempts to define rights and regulate conduct. For example, in slave times in the United States, the rights of masters and the duties of slaves were conceived within an assumption of proximity, duties of obedience, and a return consideration of paternalism and care. At the same time, slaves’ bodies became a tradable commodity and their labor an input into commodity pricing on international markets, thereby combining a place-anchored rationale in the governing legal rationalization with faceless commerce in human bodies and forced labor. Ideas about place have increased in visibility in the regulation of the female body, with attempts to map the body and demarcate permissible, or public and observable parts of the body fairly subject to control over a place. With the increased mobility of people, both en masse and using modern travel for individual transit, and with the arrival of cyber reality, the importance of place is in transition. At the same time, place has mystical meanings, manifested in the impulse to claim as sacred sites of death by accident or by mass destruction. The demand is expressed by Improvised memorials such as road side crosses and designations of a site such as the World Trade Center for commemoration as well as commerce. Law must mediate the competing interests implicated by differing views of the social needs affecting such sites. This Article explores these and other contexts for the uncertain moral weight in law of place as guiding factor for rules and decisions. Place has no overarching theory in law. In light of its many contexts, place is a complex and subtle factor in law. The task of fashioning a Restatement of Place across many dimensions is by no means patently manageable, but a sustained effort should bear fruit. The ambiguities in our collective understanding of place an orienting feature of our legally relevant interactions merit close study and organizing theory.”

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