Make space for public lands, right to recreate

Beaver Dam State Park

Different people feel differently the pinch of the federal government shutdown in the United States. 

(All photos from Nevada in August 2025, except T.R. Birthplace; all photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.) 

I'm fortunate not to depend on the federal government for my paycheck. I'm saddened for the steadfast government clerk trying to make ends meet, and nothing I write here means to diminish that anxiety. Professionally, I've been disappointed to see the work of the federal Freedom of Information Act Advisory Committee paralyzed. The committee comprises some heroic public servants in federal agencies.

Theodore Roosevelt Birthplace
National Historic Site,
N.Y., June 2025

On the purely personal front, what hits me hardest is to see the closure of public lands, such as parks and museums. I treasure these places where the public can find education, recreation, and respite. Maybe because I'm an academic, I don't much distinguish among the three. So much of our public dialog in America is preoccupied with how we work. But it's on public lands that Americans live.

As a libertarian, I'm wary of public lands. But I'm not a great, or "pure" libertarian. I have always been what I call a "moderate" libertarian—I've been called a "bad" libertarian—because I do not believe that the private sector is the answer to all problems. I rather believe that being a libertarian is about being thoughtful: making an informed decision at the threshold of any given problem as to whether the problem is better addressed by society as a composition of independent private actors—the presumption—or by society as a collective.

A vexing problem for libertarians is the tragedy of the commons, which arises when competing private individuals, acting in their own interests, will intolerably deplete a resource that the society as a collective requires. The environment is often raised as paradigmatic example. Any one private actor is incentivized only to cut down the trees, or use fresh water. But society needs there to be trees and fresh water, saved from depletion.

Selected public lands in Nevada, besides state parks

American society is heavy on libertarianism—the "Wild West" ethos has long outlived western settlement—but maintains its own delicate balance of liberty and collectivism. The duplexity was embodied by President Theodore Roosevelt, whose reconstructed childhood home I visited in New York in the summer. Roosevelt, a nature enthusiast, was a rugged individualist, and also is credited with founding the very notion of U.S. national parks, which today are widely regarded as a crown jewel of federal government purpose.

All 27 Nevada state parks

Pure libertarians respond to the tragedy of the commons by insisting that the private sector can handle it. The tree cutters ultimately will stop cutting trees, or farm more trees, because they want to keep cutting trees. Water consumers will not use all of the water, because eventually, they will suffer thirst. A slightly watered down take on pure libertarianism makes room for non-governmental public interest organizations to manage collective resources. But there's no place for government.

My Nevada drive
(excluding two national parks
I visited previously)

I find these responses strained and unconvincing. If we destroy the glaciers of Glacier National Park because corporations want to commodify the pure waters, or because wealthy people want to land helicopters on them and take home souvenirs, there's no restoring a natural glory that took 170 million years to form.

If the planet bakes while we wait for the trees to regrow, then the private-sector experiment has failed in a profound and irreversible way. If we run out of fresh water while we wait for innovation to perfect desalinization, then millions might die, and only a few persons with inherited wealth might survive. I wouldn't call that a socially optimal outcome. 

The problem with the purely individualist approach is that it assumes infinite time, perpetual capacity for resource renewal, and indifference to human suffering in the meantime. That sounds to me like a recipe for humanity's self-extinction.

"Citizen Science Station,"
Tule Springs Fossil Beds National Monument

Public lands are an easy call for me, even as a libertarian. I would like to live in a world in which everyone has access to recreational opportunities, and everyone has a chance to see the inexplicable glory of the creation that fills the earth.

Writing about nuclear weapons in September, I mentioned the time I spent in the summer exploring public lands in Nevada. I visited all 27 Nevada state parks, and a great many other public lands as well: local, state, and federal. Local and state parks fortunately carry on while the federal government is shut down.

I am grateful for all these places, local, state, and federal, and the people who steward them.

One fun thing I happened upon in Nevada was a "Citizen Science Station" at the Tule Springs Fossil Beds National Monument. There, a bracket is mounted on a pole, prepared to receive a smartphone, so that passersby can take a photograph of the terrain. Images can then be uploaded to Chronolog.io, which partners with the National Park Service. The collected images are then compiled into a time lapse series (below, at end), which users can enjoy and study. I contributed an image (Aug. 7, 2025).

Notwithstanding so much natural beauty and the participatory excitement of the Citizen Science Station, I found memorable something else I saw at Tule Springs, a different kind of socially minded contribution from the private sector:

Go see the natural wonders of Nevada, including fossils and fossil beds. See them before the pure libertarians cart them off to private museums, where no doubt they'll be best cared for.

Durango Loop Temporary Trail at Chronolog

Law student vets collect food for hurricane victims

VLA members
UMass Law photo

Massachusetts State Rep. Chris Markey (D-Bristol) presented a citation to the Veterans Law Association (VLA) at UMass Law yesterday in recognition of the group's collection of about 300 pounds of nonperishable food for residents of Florida and North Carolina impacted by recent hurricanes.

Timothy Trocchio, 3L and Army veteran, accepted the citation for the group, which also recognized the work of the Student Bar Association. It's my privilege to serve as faculty adviser to the VLA.

Rep. Markey and Trocchio
UMass Law photo

VLA student leaders have brimmed with initiatives this academic year to support veterans in the law school and in our state and local communities, besides coordinating service work such as the food drive. The organization board comprises Trocchio, president; Sean Pillai, vice president; Cameron Sweeney, treasurer; Bryce Mayo, secretary; and Morgan Richter, social media manager. Pillai and Mayo are vital contributors in my Comparative Law class this semester; they and Sweeney are alumni of my Torts I & II.

Hart, legislative counsel, talks public service career

Attorney Kevin Hart speaks to students today, Feb. 20, at UMass Law School about his career path in public service in Massachusetts state government, and earlier, in the Town of Bridgewater.

Hart is now chief counsel for the Joint Committee on Transportation in the Massachusetts legislature. He graduated from UMass Law in 2015. He came to UMass Law with a BA from Stonehill College and an MPA from the Sawyer Business School at Suffolk University.

Hart was the second teaching assistant I hired at UMass Law in Torts I and Torts II. (The first is doing well too.) He wrote a characteristically excellent research paper on the modern inutility of the historical negligent-delivery-of-telecommunication cause of action.

I'm not saying that my teaching causes meteoric career success. I'm just observing correlation.

UMass Law grads honor service tradition, will maintain top-3 Mass. bar pass rate with Harvard, BU

Photos and tweets from today's Commencement at UMass Law.

Photo of stage by UMassD_Alumni. Massachusetts Supreme Judicial Court Associate Justice Elspeth Cypher (read more), honorary degree recipient, at right, first row, second from left.  I'm three rows behind her.

Professor and former Dean Phil Cleary (who can count Mass. tort law among his many talents), respected faculty senior, hoods the youngest member of the class.  Thurgood Marshall-award-winning dad Jesse Purvis looks on.  Photo by UMassLaw.

My tweets in time sequence:

'With great power comes great responsibility,' Chancellor Johnson quotes of #lawschool degree, placing in top 3% of educated globally. So build civility, transform world, he admonishes @UMassLaw #Commencement pic.twitter.com/JlJjx8tQL6

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

'#TogetherWeRise,' @UMassLawReview #medialaw symp ed Casey Shannon reminds class of marriages, births, hurricanes, and deaths incl of her own two brothers, in course of #lawschool. 'Solidarity,' 'Resilience,' her message @UMassLaw #Commencement pic.twitter.com/tCnxusvGiC

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

UMass Law awards honorary degree to #Massachusetts Supreme Court Justice Cypher, first SJC judge from Bristol County in >100 years, will teach @UMassLaw in fall semester. See e.g. https://t.co/ImixldMizY

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

You hear there are too many #lawyers, but more people should be educated in #RuleOfLaw, #Massachusetts Supreme Court Justice Cypher tells @UMassLaw upon receiving honorary degree: we are steam, water that keep #justice pipes open. #lawschool pic.twitter.com/o2OFmtdvM6

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

Enemies of #socialjustice beware! Jalessa Almonacy _JD_ has been unleashed on your world. #ProBono award winner with 644 hours. And my frmr TA; JS, #KnowAWinnerWhenISeeHer. @UMassLaw #Commencement pic.twitter.com/Cn28cxHag8

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

@UMassLawReview editor extraordinaire and #WestWing expert Kayla V leaves @UMassLaw better than she found it. She wrought e.g. https://t.co/gd2LPbrcb3 pic.twitter.com/1ru87bOu33

— RJ Peltz-Steele (@RJPeltzSteele) May 13, 2019

Now it's off to a faculty committee meeting. The busy work is never done! 🐝

Right of publicity protects personality, not Warren-Brandeis privacy, explains new work among four by UMass Law faculty

Four recent and compelling publications from my colleagues at UMass Law examine privacy and the right of publicity, LGBTQ civil rights, legal pedagogy, and law librarianship in public service.

Prof. Marlan

Professor Dustin Marlan has done the hard work of building the philosophical foundation for a personality-based right of publicity, disentangled from Warren-Brandeis privacy.  "Unmasking the Right of Publicity" is available on SSRN and forthcoming in the Hastings Law Journal.

This Article examines the potential influence of psychoanalytic thought on the conception of publicity as a right distinct from privacy.

In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy?

Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works.

In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality—one divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social facade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.”

However, the law’s continued reliance on a dualistic metaphor of the personality—i.e., divided sharply into inner (private) and outer (public) subparts—appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights. The Article thus concludes by examining intersubjective personality theory, which might provide a useful conceptual update in its view of the personality as contextual, relational, and dependent on social interaction—rather than divided sharply between the public and private.

Prof. Ho

Professor Jeremiah Ho has authored a piece building on the Masterpiece Cakeshop case (U.S. 2018) and continuing his important work in LGBTQ civil rights.  "Queer Sacrifice in Masterpiece Cakeshop" is available on SSRN and forthcoming in the Yale Journal of Law and Feminism.  Here is the abstract:

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead. 

Prof. Flanagan

Professor Rebecca Flanagan has authored an article in legal pedagogy in which she endeavors to bring some clarity to the process of preparing law students for this rapidly evolving market. Better by Design: Implementing Meaningful Change for the Next Generation of Law Students was published at 71 Me. L. Rev. 103 (2019).  Here is the abstract:

This article presents a fictitious, utopian law school to challenge the assumption that legal education has met adequately the challenges of preparing law students for an evolving profession. By presenting the utopian ideal, the author highlights how adoption of best practices in learning and cognitive sciences could transform legal education from a highly criticized institution to a dynamic, self-transforming academy designed to meet the changing needs of students and the practicing bar.

Librarian Jessica Almeida has co-authored an article on law librarianship in public service, "Hosting a Successful Transcription Party," appearing in the AALL Spectrum, March/April 2019, at 42.  The work describes how New England law librarians and the Rhode Island State Archives used a transcription event to combine service and outreach to the community.