ELC 2025: Eschewing Exceptionalism: From Red Sky Fears to Blue Sky Legal Reform by Cinnamon Carlarne Hirokawa, Keith Hirokawa, & Jessica Owley
When we gathered as a community of scholars and concerned community members in the Summer of 2025 to engage in “blue sky thinking in a red sky world,” we began by confronting the red sky—those ominous threats gathering on our legal and social horizon. The metaphor proved apt: like sailors reading weather signs, we needed to acknowledge the storm clouds before charting a new course.
The Red Sky: Eroding Human Rights in an Age of Exceptions
Our collective fears centered on the degradation of human rights protections, broadly conceived. Human rights encompass not merely traditional civil and political liberties (i.e., core principles of a functioning democracy), but also economic, social, and cultural rights including the right to a healthy environment, freedom from discrimination and oppression, protection from arbitrary detention, and access to basic necessities for human dignity. These rights form an interconnected web—environmental degradation disproportionately affects marginalized communities, while economic inequality undermines political participation and social cohesion—such that the failure to uphold one right impedes our ability to uphold other rights.
What is most alarming is not just the erosion (or outright rejection) of these protections, but what appears to be a fundamental shift in our societal goals. In the United States, we believed our institutions were sufficiently resilient to underpin a robust democracy capable of preventing the backsliding witnessed elsewhere, yet we seem to have abandoned human flourishing as our North Star. Aristotle’s concept of eudaimonia—often translated as flourishing or the good life—emphasized that a just society enables all its members to reach their full potential through virtue, community engagement, and the cultivation of human capabilities. This vision underlies the idea of a healthy, thriving democracy—something that the United States has always prided itself on modeling to the rest of the world. Over time, however, this idealistic and justice-oriented vision of a just society has given way to a much narrower vision of society that prioritizes metrics of success centered in economic growth and property accumulation.
This shift manifests most clearly in rhetoric around property rights, which increasingly associates property with liberty and characterizes environmental protection and social needs as something more sinister, evil, and communistic. In the United States, property rights have been elevated to a supreme status that overrides other legitimate societal interests, creating what Lorna Fox O’Mahony and others might term “property maximalism.”
The Rise of Legal Exceptionalisms
The rise of property maximalism intersects with evolving understandings of American exceptionalism to create an increasingly narrow view of which rights and whose interests matter. American exceptionalism—the belief that the United States is inherently different from and superior to other nations due to its founding democratic principles and historical development—has long sustained the comfortable assumption that we had evolved beyond a society that tolerates serious human rights abuses.
This complicated vision of American exceptionalism always rested on shaky ground, but for decades was robust enough to convince domestic and international constituencies that there was some truth to our self-proclaimed democratic primacy. Gradually, however, the foundations of our exceptionalism have been eroded from the inside out. Even as we have loosened the hold on democratic primacy, we also have gradually embraced other forms of exceptionalism that undermine this (already shaky) foundation. Agricultural exceptionalism, as documented by scholars like J.B. Ruhl, Margot Pollans, and Jim Chen, creates special regulatory carve-outs for an industry responsible for significant environmental harm, from water pollution to greenhouse gas emissions. The Supreme Court’s major questions doctrine has spawned what might be called “economic exceptionalism,” requiring extraordinary congressional clarity before agencies can regulate large sectors of the economy—a standard that effectively shields powerful industries from necessary oversight. We are currently immersed in a type of executive exceptionalism driven by executive orders (rather than laws) and white nationalism (rather than human safety and constitutional rights).
Very troubling is the emergence of property law exceptionalism, where protecting property rights takes precedence over other legal rights and societal goals. This hierarchy places individual wealth accumulation above community welfare, environmental protection, and even basic human needs like food, water, housing, and healthcare access.
In a moment when our legal system seems intent on prioritizing property over people and where notions of flourishing focus on the few instead of the many, how do we envision a pathway forward towards a more robust vision of a healthy and functioning—a flourishing—American democracy?
Blue Sky Thinking: Resist, Restore, Reimagine
Amidst a very daunting red sky world, we embraced the idea of blue sky thinking. Blue sky thinking—creative, optimistic problem-solving unconstrained by current limitations—offers a tool for eschewing a narrow, property-centric vision of society and embracing the vision of a flourishing democracy. In this moment where we must simultaneously acknowledge the realities of the red sky world and the imperative of blue sky thinking, we embrace a framework of resist, restore, and reimagine. That is, we must simultaneously imagine how to resist further erosion of our democracy, of human rights, and of environmental protections, while we also restore basic rights, protections and services, even as we collectively seek to reimagine our society in a way that is vision-oriented, with that vision being one of human and ecosystem flourishing (the two being necessarily intertwined). To this end, we propose eschewing exceptionalism as both method and goal, while reinvigorating our collective power to maintain focus on human flourishing as law’s ultimate purpose.
So, what does this look like in its most basic (blog appropriate) form?
Resist the policy rhetoric that treats economic worth as a proxy for human well-being. Question the assumption that what benefits business necessarily benefits society. Challenge legal doctrines that create special protections for already-powerful interests while leaving vulnerable populations exposed. Assert the need to recognize and protect fundamental human rights that are necessary to achieve individual and collective flourishing. Support and emulate actions and movements that center care and community, such as the protests in Minneapolis, and reject the dehumanization of non-white neighbors.
Restore the foundational American ideal of promoting general welfare alongside individual liberty. This means returning to legal frameworks that recognize that the property system facilitates and accommodates individualization of rights, after balancing property rights with property duties and incorporating into the purpose of property the needs of community, environmental protection, and human dignity. We must revive the understanding that true prosperity requires broadly shared flourishing, not concentrated wealth.
Reimagine institutional roles to support this vision. Courts could recall that interpreting property rights does not begin with championing individual claims of injury, but instead by considering whether the visions of property proposed in individual claims would cause significant damage to society (especially those who are not fortunate enough to be vested with property claims), and where property rights themselves represent a particular (often problematic) vision of anti-social worth. Administrative agencies might adopt interpretive approaches that consider cumulative impacts on community welfare rather than isolated individual claims. Property law must systematically incorporate stewardship obligations alongside ownership rights. Environmental law should recognize nature’s intrinsic value rather than treating it merely as a resource for human exploitation.
Toward a Post-Exceptionalist Legal Framework
This transformation requires acknowledging that no sector, industry, or right—including property—deserves automatic precedence over human flourishing and the fundamental human rights that underpin our ability to flourish. Instead of fashioning laws so that they serve already powerful interests, we support a legal system that consistently prioritizes the conditions that facilitate human dignity, individual belonging, and thriving in communities.
Such a framework would assess laws and policies based on their contribution to genuine prosperity: clean air and water, stable communities, meaningful work, and opportunities for human development. It would recognize that environmental health and social justice are prerequisites for, not obstacles to, sustainable economic progress.
The red sky reminds us that current trajectories lead toward greater inequality, environmental collapse, and social fragmentation. Blue sky thinking calls us to chart a different course—one where law serves human flourishing rather than narrow interests, and where true exceptionalism lies not in exempting the powerful from responsibility, but in creating systems that enable everyone to reach their full potential.
In eschewing exceptionalism, we don’t abandon excellence. Rather, we pursue the more difficult but essential work of building legal frameworks that serve the common good while respecting individual dignity. This is the blue sky vision our red sky world desperately needs.
Cinnamon Carlarne Hirokawa is President and Dean of Albany Law School .
Keith H. Hirokawa is a Distinguished Professor of Law at Albany Law School.
Jessica Owley is a Professor of Law and Environmental Law Program Director at the University of Miami School of Law.