Masks, Liberty, and Personhood (Assignment For Class Number 2)

Masks--both physical masks and the "masks of the law"-- are actually a big part of the law of property. This is a huge social justice issue because legal masks have been used (in both the past and the present) to treat persons as non-persons. Our law school's values encourage us to include social justice issues in our classes so... Let's talk about this issue on Day Two of class. 

There may be sound reasons for mask mandates during a pandemic, but there are costs as well as benefits to such mandates.

David Marcus has this article.

And here is a powerful quotation:

One way to describe societies that decide to scrub away individual liberty is faceless; people are identical cogs without unique features. Here we move from the symbolic to the literal as people hide their faces from the world. The most important thing about these people is now that piece of fabric and the compliance it indicates. There will be no smiling.

Mask mandates seriously (and literally) abridge the freedom of expression.

Imagine emoji faces—frowning, smiling, laughing, angry—now imagine if the law required all emoji faces to be covered by masks. If all emojis were required by law to be masked, there would be no emojis. Just identical, faceless ink blots. 

 

We used to say that a "face to face" meeting is an in person meeting (as opposed to a teleconference); but a zoom meeting without masks is much more face to face than is a masked (literally faceless) meeting.

There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.

These masks of the law are used to conceal the humanity of those the law wishes to treat harshly. Slaves were masked as "property" to conceal their humanity. Unborn babies are masked as "potential lives" by Roe v Wade and the abortion liberty. Masks--whether physical or legal--conceal the face (and thus the humanity and individual personhood) of the person behind the mask. 

Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:

https://use.vg/jQuD5e

 In this video (which I am assigning), I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons. Let's discuss these issues of "persons masked as property" on our second class in Property.

Also read Casebook p. 1-18 (for background) for this class.