Argues that a refined concept of culture can be used by American courts to better analyze cases that cover the sense of community.
Supreme Court Justices frequently justify their opinions in terms of the traditions and customs of a community. Yet, the rights and interests of entities that fit neither with the state nor the individual are treated as fluid and subjective, often existing without clarity in the current legal framework. The Rights of Groups focuses on a series of specific examples to argue that a more refined concept of culture than has been employed by American courts could offer better ways to analyze a broad range of cases that employ the notion of community.
Through an original reading of the Ninth Amendment, Lawrence Rosen illustrates how a constitutional consideration for group protections might be applied to decisions arising before the Supreme Court, including the decision to overturn Roe v. Wade. Similarly, in other chapters, Rosen shows how a revised theory of culture can change the concepts—including those of “community”—that courts currently apply, whether it is the application of indigenous concepts of value to revise the statutes governing intellectual property, the importance to native peoples that burial remains be returned to the group, the role a community can play in the responsibilities attendant on the prudent investor rule, the cultural organization of Western states’ water resources, or the implementation of a new basis for group defamation suits. The book thus concludes with a call for a more sophisticated concept of culture that can sharpen our usage of the legitimate rights and interests of those entities that fit neither with the state nor the individual.
