January 23, 2023

Connolly on Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen

John Connolly has published Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen. Here is the abstract.
Historical state laws regulating firearms have become relevant to modern firearms legislation after the Supreme Court’s decisions in Heller, McDonald, and Bruen. This article tries to catalog and analyze all historical firearms laws in one of the original 13 states, Maryland, and considers how those laws might affect modern legislative efforts to regulate firearms.
Download the article from SSRN at the link.

Behrens and Blocher on A Great American Gun Myth: Race and the Naming of the "Saturday Night Special" @DukeLawLibrary @DukeLaw

Jennifer L. Behrens, Duke University School of Law, J. Michael Goodson School of Law Library, and Joseph Blocher, Duke University School of Law, have published A Great American Gun Myth: Race and the Naming of the 'Saturday Night Special' as Duke Law School Public Law & Legal Theory Series No. 2023-02. Here is the abstract.
At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.” Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article and has been repeated in dozens of briefs and scholarly sources since. Advocates and scholars should stop invoking this unsupported origin story, which if anything serves as a cautionary example of how citations can cascade. The most plausible origin of the nickname as it related to cheap firearms stemmed from the turn of the century when the phrase “Saturday-night special” was already in common usage with connotations of cheapness and convenience.
Download the abstract from SSRN at the link.

January 22, 2023

Hrdy and Brean on The Patent Law Origins of Science Fiction @CamillaHrdy @AkronLaw

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project, and Daniel Harris Brean, Independent Scholar, have published The Patent Law Origins of Science Fiction.
This article uncovers the role of patents and patent law in shaping the literary genre of science fiction. Using unpublished primary sources, the article examines the views of Hugo Gernsback, the so-called “father” of science fiction. Gernsback, who was himself an inventor and frequent patentee, is known for his firm conviction that works of science fiction can give rise to the technologies of the future. This article reveals that, in espousing this thesis, Gernsback drew an explicit analogy between the inventions described in science fiction and the inventions described in patents. The culmination of Gernsback's theory was his proposal, in 1952, that “Provisional Patents” should be available for “feasible and technically sound” inventions depicted in works of science fiction—even if they were not yet possible to implement in practice. The history of patent law’s role in shaping science fiction has been largely ignored, or derided, by the science fiction community. It is wholly unknown to the patent law community. Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy. But investigating Gernsback’s views, and understanding his justifications for them, generates many surprising insights about patent law and policy, and about the genre of science fiction itself. Science fiction’s patent law origin provides a new and different justification for science fiction’s role in society. According to Gernsback, and other adherents of his philosophy like Arthur C. Clarke, science fiction is not just a form of entertainment. It is a legitimate component of innovation policy. Without science fiction, society would not have many of the innovations that surround us today—or at least would not have obtained them so quickly. This is extremely similar to the role that many commentators ascribe to patents. Gernsback’s philosophy of science fiction may seem naïve. But these beliefs, and their underlying reliance on patent theory, were nonetheless highly influential. They shaped the genre of science fiction as we know it. The patent law community, and not just those of us who are science fiction fans, also has a lot to learn from Gernsback’s views. The historical connection between science fiction and patent law forces us to take a hard look at one of patent law’s most deeply-held principles—that patents are only available for inventions that are currently possible. On the one hand, Gernsback’s extreme position reaffirms why this principle is important. It should not be easy to control the future. The law wisely incorporates doctrines that make it hard to patent inventions that are still so many years away that we call them mere science fiction. At the same time, however, Gernsback’s insistence that science fiction is important for innovation sheds light on the countless “non-enabled,” totally “incredible” visions of the future that patent law leaves out. Science fictional inventions, precisely because they are not yet possible, can impart useful information, and inspire future inventors, in ways that patents cannot. One of the most important differences between science fiction and patents, in fact, is that people actually read science fiction, and are deeply moved by it. Gernsback, as usual, put it best. Science fiction imparts “knowledge, and even inspiration, without once making us aware that we are being taught.” It “fires the reader’s imagination more perhaps than anything else of which we know.” Very few people can say that about reading patents. This matters. If Gernsback was right—and as we show, in some cases he certainly was—then science fiction has inspired some of the inventions we have today. And it did so precisely because it failed patent law requirements like enablement and operable utility, describing inventions which the author could imagine but had no idea how to put into practice. We cannot perform a meaningful empirical assessment of science fiction’s impact on innovation. But we do have evidence that some inventions, and many patents, were influenced to some degree by science fiction.
Download the article from SSRN at the link.

January 20, 2023

Coming Soon: Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press, April 2023) @sandbergrlaw @CardiffLaw @CUP_Law

Coming soon (April 2023):


Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press.

Here from the publisher's website is a description of the book's contents:


There are some stories that need to be told anew to every generation. This book tells one such story. It explores the historical origins of the common law and explains why that story needs to be understood by all who study or come into contact with English law. The book functions as the prequel to what students learn during their law degrees or for the SQE. It can be read in preparation for, or as part of, modules introducing the study of English law or as a starting point for specialist modules on legal history or aspects of legal history. This book will not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law.


Lahav on A Revisionist History of Products Liability @alahav @CornellLaw

Alexandra D. Lahav, Cornell Law School, has published A Revisionist History of Products Liability. Here is the abstract.
Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law — that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods — is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.
Download the article from SSRN at the link.

January 19, 2023

Stern on From Clapham to Salina: Locating the Reasonable Man @ArsScripta

Simon Stern, University of Toronto School of Law, has published From Clapham to Salina: Locating the Reasonable Man in Law & Literature (2023). Here is the abstract.
“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.
Here is a link to the online publication.

January 15, 2023

New American Studies Journal: A Forum, Vol. 73: Law, Literature, and the Idea of Justice @NASJ_org @Andrew_Majeske

 From Andrew Majeske, John Jay College of Criminal Justice:


The New American Studies Journal: A Forum (U. of Göttingen), announces the publication of its Vol. 73: Law, Literature, and the Idea of Justice. The issue was edited by Andrew Majeske (John Jay College (CUNY)), and features essays by Amartya Sen and George Anastaplo, and several articles and other matter related to them and their work. The issue also contains law and literature essays by Brook Thomas, James McBride, Dale Barleben, as well as an exchange between Greta Olson and Andrew Majeske regarding Olson’s new book From Law and Literature to Legality and Affect (Oxford UP, 2022)(Majeske’s review of Olson’s book precedes the exchange). The table of contents for the issue follows below, and contains links both to the issue and to the individual essays and other matter. The journal is open access.

 

 

Vol. 73 (2022): Law, Literature, and the Idea of Justice

Published: 2022-12-22

INTRODUCTION

ANDREW MAJESKE

 

AMARTYA SEN, GEORGE ANASTAPLO & THE IDEA OF JUSTICE

AMARTYA SEN

GEORGE ANASTAPLO

ANDREW MAJESKE

KOTARO SUZUMURA

JED S. RAKOFF

MIRIAM REDLEAF

ANDREW MAJESKE

 

LAW AND LITERATURE IN TEXT AND CONTEXT

BROOK THOMAS

JAMES MCBRIDE

DALE BARLEBEN

ANDREW MAJESKE, GRETA OLSON

MATTHEW MORAN

MARIANNA TORGOVNICK

 

POETRY

JOSHUA WEINER

JAMES DOWTHWAITE

DONNA STONECIPHER

DAVE SMITH

 

OCCASIONAL PAPERS

JORGE C. PEREIRA

HEINZ ICKSTADT

 

January 11, 2023

Corcos on Growing Up With Popular Culture in the Time of Title IX @LpcProf @lalawreview @LSULawCenter

Christine A. Corcos, LSU Law Center, has published Growing Up With Popular Culture In the Time of Title IX at 83 Louisiana Law Review 60 (2022). Here is the abstract.
Generally, while popular culture has reflected Title IX’s existence since its enactment, characters who discuss the impact of the law rarely mention the actual statute. Instead, they discuss its impact and its effects. The writers of these episodes and films might believe that the public cannot understand Title IX’s sophistication, but that might well not be the case. Nevertheless, what the writers do is clear away what they might think is unnecessary information—the name of the statute, the rulings, the procedures—and concentrate on the issues and the effects: the reasons that Title IX exists, the reasons that Congress enacted it, and the conflicts that endure. These issues include peer-on-peer sexual harassment and peer-to-peer bullying, supervisor harassment, inappropriate sexual relationships, and sexual assault. The other information that writers omit is in reference to other statutes and legal theories that might also support harassment or bullying claims.
Download the article from SSRN at the link.

January 9, 2023

Loeffler on The Religions of Human Rights @Jbloeffler

James Loeffler, University of Virginia, is publishing The Religions of Human Rights in the Harvard Theological Review. Here is the abstract.
The modern human rights movement arose during a moment of unprecedented encounter between global religions in the mid-twentieth century. Yet attempts to parse the historical relationship between human rights and religious thought have almost exclusively taken the form of case studies of individual religious traditions. This focus on intellectual genealogies obscures the fact that much of human rights doctrine emerged from interreligious contacts and conflicts between Judaism and Christianity, particularly in the context of the decolonizing Middle East. This article retraces this interreligious encounter through the writings of Amnesty International founder Peter Benenson, diplomat and theologian Charles Malik, and rabbi and activist Maurice Perlzweig. Together they represent three different theopolitical responses to the problem of rel.igious pluralism after global empire: minoritarian human rights, majoritarian human rights, and cosmopolitan human rights. Recovering these interrelated human rights conceptions exposes the frames of religious difference embedded in the modern Western human rights imagination.
Download the article from SSRN at the link.

Schroeder on A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism @cardozojersj

Joshua J. Schroeder, Schroeder Law, is publishing A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism Forthcoming, The Cardozo Journal of Equal Rights and Social Justice in the Cardozo Journal of Equal Rights and Social Justice. Here is the abstract.
Each of the four most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions of human rights. They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.” As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic Eugene V. Debs. The road to this state of affairs in American law was paved by an under-emphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Scalia’s originalism for being “content to play defensively within the procedural rules of the liberal order,” and that real conservatives should abandon the founding and embrace “illiberal legalism,” a form of progressive legal positivism that Vermeule swears “is not legal positivism.” Such defenders of Hobbes’ Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor’s foot only to measure Cromwell’s, Vermeule’s rejection of Scalia’s originalism and legal positivism is ‘aufhebung,’ rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sort of illogical Hegelianisms.
Download the article from SSRN at the link.

January 6, 2023

Stramignoni on Figuring Out Justice in Dark Times: On Law, History, and the Visual @law_humanities

Igor Stramignoni, LSE Law School, has published Figuring Out Justice in Dark Times: On Law, History and the Visual in Law and Humanities. Here is the abstract.
What happens when we approach certain objects heuristically as images? How is one to orient oneself through such images? Might those images challenge our existing knowledge of the history of modernisation and written rationalisation of law after the Middle Ages? In this essay, I begin with certain early modern European artworks - paintings, engravings, woodcuts, and drawings - as well as some other less obvious objects - a striking black background in the portrait of a little-known physician, a compelling account of a nocturnal attempt to figure out justice at critical times, the gripping intensity permeating Dürer’s allegories of justice, and so on - and investigate the force those objects may have as images. Overall, the intention is to go beyond treating such objects as impassive historical evidence of the particular effort to conceive law intellectually or, alternatively, as codes for certain preexisting messages to be subsequently decoded. On approaching them differently, we may discover that such objects can sometimes resist our analyses or interpretations forcing us to engage with them in unexpected ways.
Download the article from SSRN at the link.

January 5, 2023

New Initiative at the University of Helsinki: The Helsinki Legal History Series @CoCoLawProject @HelsinkiLaw @helsinkiuni @eurostorie

 

From Professor Airton Ribeiro, University of Helsinki, an announcement of an exciting new initiative:

 

 

During 2023, the CoCoLaw Project and EuroStorie Centre of Excellence will host the Helsinki Legal History Series. The initiative gathers both established scholars and younger researchers who all work at the intersection of law, society and history. The aim is to promote legal historical research and to illustrate the merits of historical approach in analyzing fundamental questions regarding law's embeddedness in society and the mechanisms of legal change. The seminar series consists of 9 lectures taking place at the University of Helsinki (and streamed online), according to the following program:

January 31st

National Styles beyond Boarders. A Travelogue of Migrating Legal Stories in the Nineteenth Century

Cristina Vano (Università degli Studi di Napoli Federico II)

 

February 28th

European Union and its founding values – a legal history autopsy

Tuuli Talvinko (University of Helsinki)

 

March 28th

From the university-based ius commune to a potentially universal law. A lecture in honour of Mireille Delmas-Marty (1941-2022)

Alain Wijffels (KU Leuven)

 

April 25th

Homesteading and the American Dream

K-Sue Park (Georgetown University)

 

May 30th

The English ‘Law of Succession’ as an expression of European Legal Culture: The Story of its Development

Reinhard Zimmermann (Max Planck Institute for Comparative and International Private Law)

 

September 26th 

Transnational Legal Transfers: the extraordinary life of JP Benjamin QC (1811-1884)

Catharine MacMillan (Kings College London)

 

October 31st  

The History of Cultural Heritage in International Law

Pauno Soirila (University of Helsinki)

 

November 28th

Usus Theologicus Pandectarum: The Civilian Tradition in a Theological Context

Wim Decock (UCLouvain)

 

December 12th 

Tombos: How registering the Past became Normative and Why it Faltered in the Nineteenth Century

Tamar Herzog (Harvard University)

 

 

CoCoLaw Project

https://www.helsinki.fi/en/researchgroups/comparing-early-modern-colonial-laws

EuroStorie Centre of Excellence

https://www2.helsinki.fi/en/researchgroups/law-identity-and-the-european-narratives)




 

January 4, 2023

Buzbee on Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules @GeorgetownLaw @UIllLRev

William W. Buzbee, Georgetown University Law Center, is publishing Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules in the University of Illinois Law Review. Here is the abstract.
This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why change and choice are the norm in law too. Rarely is law just about ferreting out some isolated, clear, but abstruse legal command. In jazz and legal settings, relative assessments of strength are more commonly apt than are expectations of a single correct answer or simple binary right-versus-wrong determinations. There is a world of difference between claims that law simply provides determinate answers, versus claims that law constrains and guides what remain choices. Much as jazz improvisers must be highly sensitive to the surrounding constrained choices of others, legal analysis of context and consequences of legal choices, with substantial attention to others’ roles and competence, should always be part of legal actions. This different way of thinking about law’s nature helps illuminate and critique both major methodological legal divides, enduring jurisprudential debates, and several cutting-edge case studies. Those case studies include standing law’s transformation, including the 2021 TransUnion standing decision, ongoing battles over what waters are protected by the Clean Water Act, debates over textualist methodology’s claims of constraint, and increasing judicial reliance on the “major questions doctrine” with shifts away from the familiar deferential Chevron framework. Improvising musicians must ensure their choices musically fit with governing forms, practices, and others’ choices. Similarly, the Article closes by illuminating why, to further rule of law values and check power abuses, legal actors should always assess the consequential congruence of their tenable choices with surrounding law, giving substantial weight to statutory policies and linked effects analysis by agencies.
Download the article from SSRN at the link.

December 14, 2022

Call For Proposals: Workshop on World Literature and Law

 

From Marco Wan, Professor of Law and Director, Law and Literary Studies Programme, University of Hong Kong: 


Workshop on World Literature and Law

Date: 13th and 14th August, 2023

Venue: Benjamin N. Cardozo School of Law, New York

Organized by the Benjamin N. Cardozo School of Law and the University of Hong Kong

 

How might we situate the interdiscipline of Law and Literature in a world where countries are increasingly connected through technological networks and trade ties on the one hand, and increasingly distant as geopolitical tensions and ideological differences become ever more apparent, on the other? In recent years, the ‘global turn’ has become a key term in the humanities, and scholars of international law and literature, human rights and literature, and postcolonial law and literature, amongst others, have investigated how we might analyze legal-literary relations beyond national or regional boundaries.

This workshop explores what it would mean to approach Law and Literature in a more expansive, global frame by bringing it into conversation with the study of World Literature, and by fostering international dialogue amongst jurists, literary scholars, historians, and other scholars in the interpretative humanities. It asks how legal ideas travelling into new environments become registered by literary texts, what legal-cultural consequences arise when texts cross national boundaries, in what ways emergent technologies might disrupt existing legal-literary relations, and how practices of translation might impact upon longstanding discussions about interpretation within Law and Literature.

We welcome proposals on the following (non-exhaustive list of) topics:

 

§  The role of literature and art in conceptualizing and challenging borders, asylum, and entrance

§  The circulation of legal ideas and texts into new literary contexts

§   Linguistic and cultural translations of law

§  Transnational writers and law

§   Literary citations in diverse judicial settings

§   Indigenous notions of literature and law

§  Overlaps and distinctions between cognate terms such as ‘the globe’, ‘the world’, ‘the planet’, and ‘the transnational’

§    Literary and legal cosmopolitanism

 

Proposals (max 150 words) should be sent to Marco Wan mwan@hku.hk and goodrich@yu.edu by or before April 1st. Papers on the Global South are especially welcome.

 

 

 

 

December 5, 2022

Newly published: Elizabeth S. Anker, On Paradox: The Claims of Theory (Duke University Press, 2022) @dukepress

Newly published:

Elizabeth S. Anker, On Paradox: The Claims of Theory (Duke University Press, 2022). Here from the publisher's website is a description of the book's contents.



In On Paradox literary and legal scholar Elizabeth S. Anker contends that faith in the logic of paradox has been the cornerstone of left intellectualism since the second half of the twentieth century. She attributes the ubiquity of paradox in the humanities to its appeal as an incisive tool for exposing and dismantling hierarchies. Tracing the ascent of paradox in theories of modernity, in rights discourse, in the history of literary criticism and the linguistic turn, and in the transformation of the liberal arts in higher education, Anker suggests that paradox not only generates the very exclusions it critiques but also creates a disempowering haze of indecision. She shows that reasoning through paradox has become deeply problematic: it engrains a startling homogeneity of thought while undercutting the commitment to social justice that remains a guiding imperative of theory. Rather than calling for a wholesale abandonment of such reasoning, Anker argues for an expanded, diversified theory toolkit that can help theorists escape the seductions and traps of paradox.

December 2, 2022

Rains on Lady Audley's Secret Crimes @DickinsonLaw

Robert E. Rains, Pennsylvania State University, Dickinson Law School, has published Lady Audley's Secret Crimes. Here is the abstract.
The great Victorian “sensation novel,” M. E. Braddon’s Lady Audley’s Secret (1862) is a complex tale of deception and worse by a seemingly innocent lady of society. The story raises many questions of class, loyalty, subterfuge, sexuality, etc. These questions have been deeply explored in literary criticism, but, until now, it appears that no one has directly addressed the numerous legal issues created by Lady Audley’s one-woman crime spree. This essay seeks to fill that void in a somewhat light-hearted manner.
Download the article from SSRN at the link.

November 29, 2022

Swain on Low-Value Civil Litigation in New Zealand 1841-1872

Warren Swain, University of Auckland Faculty of Law, has published Low-Value Civil Litigation in New Zealand 1841–1872. Here is the abstract.
The Court of Requests in New Zealand in the 1840s was described in one newspaper report as “the people’s court” which was “open to all”. The Court played an important role as a forum for low-level debt litigation. There were plenty of forerunners. A Court of Requests was well established for small claims litigation in England before it was replaced by the County Court in 1846. A version of the Court of Requests successfully operated in New South Wales. Official records of the Court have not survived in New Zealand, but it is nevertheless possible to trace its history in contemporary newspaper reports. In time, the Resident Magistrates’ Court and the District Court would take over as the main forums for small claims litigation. These courts were all vital on a practical level in the way that they contributed to the operation of the economy of the colony. They also illustrate the way that English legal institutions were both transplanted into colonies and modified to take account of colonial conditions and were part of a broader shift towards a more legalistic framework in place of a system of more informal justice.
Download the article from SSRN at the link.

November 28, 2022

Dedek on The Tradition of Comparative Law: Comparison and Its Colonial Legacies @LawMcGill @CambridgeUP

Helge Dedek, McGill University Faculty of Law, is publishing The Tradition of Comparative Law: Comparison and its Colonial Legacies in The Cambridge Handbook of Comparative Law (Mathias Siems and Po Jen Yap, eds., (Cambridge University Press, 2023). Here is the abstract.
Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge the role of comparison and the ‘innocence of method’ (Günter Frankenberg) so fundamentally. This chapter explores the role that a lack of disciplinary historical self-awareness plays in this hesitation. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth century comparative disciplines; and that absolves it from reflection on how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).
Download the essay from SSRN at the link.

November 27, 2022

Culver on The Rhetorical Profile @sjquinney

Leslie Culver, University of Utah College of Law, has published The Rhetorical Profile. Here is the abstract.
This essay is a pedagogical companion piece to my article (Un)Wicked Analytical Frameworks and the Cry for Identity. The Rhetorical Profile is a contemporary method for teaching legal analysis that pushes against IRAC’s rigidity and dominance. First, it teaches students to view and understand legal writing as genres (e.g., judicial opinions or motions) and conventions (e.g., governing rules, analogical and deductive reasoning). Second, it develops conscious decision-making to provide depth and effective legal analysis. Its hallmark feature is to situate and give space to the existing questions students should consider at each stage of legal analysis. The result is conscious and confident legal analysis.
The full text is not available from SSRN.

November 26, 2022

Kahn on The Mask Wars and Social Control: Lessons From the 1927 Unveiling Campaign in Soviet Uzbekistan @USTLawMN @cwsl_ilj

Robert Kahn, University of St. Thomas School of Law (Minnesota), is publishing The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan in the California Western International Law Journal (2022). Here is the abstract.
During the late 1920s Soviet authorities embarked on the hujum, a campaign to encourage women in Uzbekistan to unveil. As with the COVID mask wars, the hujum was highly politicized. For some, the hujum was a campaign of personal liberation; for others it was an attempt by the Soviet Union to impose imperial control over its Muslim subjects. To explore the relevance of the hujum for our mask wars, this essay looks at two accounts of the hujum. Douglas Northrop’s Veiled Empire: Gender and Power in Stalinist Central Asia views the hujum as a failed attempt to impose Soviet values on an unwilling Uzbek population. Has the COVID mask, like the veil, become a symbol of failed state overreaching? Marianne Kamp, in the New Woman in Uzbekistan: Islam, Modernity and Communism (2006), sees the hujum as trapping Uzbek women between supporting the Soviets and following patriarchal veiling norms. Have COVID masking campaigns likewise stripped us of our agency? Taken together, Northrop and Kamp’s accounts help shift the debate over COVID mask wearing away from mask authoritarianism toward a world where people should be free, most of the time, to decide whether or not to cover their face.
Download the article from SSRN at the link.

November 25, 2022

Davies on Precedential Piglet and Pooh @horacefuller @GB2d

Ross E. Davies, George Mason University Law School; The Green Bag, is publishing Precedential Piglet and Pooh in Re-Readings VII The Green Bag 1 (2022). Here is the abstract.
Defunct Supreme Court precedents should be called “Woozles” and decisions that followed those defunct precedents should be called “Wizzles.” Here's why. Note: "This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful."
Download the essay from SSRN at the link.

November 23, 2022

Janik on States Are Not Men: Traces of International Law's Creation Myth @RalphJanik

Ralph R. A. Janik, Sigmund Freud Private University; University of Vienna; Andrassy University Budapest; Webster University, Vienna Campus, is publishing States Are Not Men: Traces of International Law’s Creation Myth, in the Hague Yearbook of International Law (2022/2023), special edition. Here is the abstract.
The following pages will try to describe the evolution of the idea of states as moral persons in international law scholarship and how it has been perverted throughout the 20th century. It does not, however, attempt to describe the entire story or construe a logical, if not inevitable sequence of thinkers and ideas. Rather, several traces from the birth of sovereignty all the way to the UN Charter era shall be contrasted with more recent ideas emphasizing the separateness of states, peoples, and governments. The final part will then locate current legal thinking about statehood along the polar opposites of, on the one hand, states as idealized personifications of the common will of their people and, on the other, how a liberal understanding of limited sovereignty stands in contrast to anthropomorphic conceptualizations of statehood.
Download the article from SSRN at the link.

Owens and Coyne on Classical Liberals on War and Imperialism @ccoyne1 @GeorgeMasonU

Matthew Owens and Christopher J. Coyne, both of George Mason University, have published Classical Liberals on War and Imperialism: A Historical Survey. Here is the abstract.
This paper surveys the views of twenty key British and non-British figures in the classical liberal tradition on the issues of war, imperialism, and alternative paths to peace. These ideas are important both for purely historical reasons, and because they are relevant to contemporary conversations about the complexities and nuances of foreign relations. We identify common themes across these thinkers while noting that there is no single classical liberal position on these issues. In addition to identifying commonalities, we also summarize tensions and contradictions, both within the work of individual figures and across the thinkers surveyed. We include two appendices consisting of tables summarizing the views of each of the thinkers discussed throughout the survey.
Download the article from SSRN at the link.

November 19, 2022

McLay on The Removal of Justice Edwards and the Struggle Between the "Legal" and the "Constitutional" in Late Nineteenth-Century New Zealand @GeoffMcLay1

Geoff McLay, Victoria University of Wellington, Te Herenga Waka, Faculty of Law, has published The Removal of Justice Edwards and the Struggle between the 'Legal' and the 'Constitutional' in Late Nineteenth-Century New Zealand at 53 VUWLR 379 (2022). Here is the abstract.
This article examines an extraordinary episode in New Zealand's constitutional history: the 1892 removal of Justice Worley Bassett Edwards as a Supreme Court judge after having been invalidly appointed by the previous government. Edwards' case is important as the only time a New Zealand government has formally sought to remove a sitting judge of the Supreme or (as it is now) High Court. But the article argues that the Edwards controversy is also an example of how New Zealand politicians and lawyers thought about judges within the developing New Zealand state, and even more profoundly about what was constitutional, as opposed to just legal, within that state.
Download the article from SSRN at the link.

November 16, 2022

Swain on The Use and Misuse of Legal History in the High Court of Australia

Warren Swain, University of Auckland Faculty of Law, is publishing The Use and Misuse of Legal History in the High Court of Australia in The Impact of Law's History What's Past is Prologue (Sarah McKibben, Jeremy Patrick, and Marcus K Harmes, eds., Palgrave Macmillan, 2022). Here is the abstract.
Legal history is sometimes seen as little more than the study of ‘old, unhappy, far-off things’. This is reflected by the fact that the subject is no longer central to the undergraduate law curriculum. Yet this fact doesn’t tell quite the whole story. During the 1980s the High Court began to shift Australian private law in new directions. That the law has changed significantly in the last thirty years is not disputed. The precise manner in which the High Court have gone about changing the face of Australian private law, particularly through the use of historical sources is less well documented. At the heart of the process is a paradox. In reforming the common law arguments derived from history, sometimes quite ancient history, have played a vital role. This paper will explore the way in which the High Court have used historical arguments and seek to draw some lessons about what this tells us about the High Court in the post-colonial period. The doctrine of contractual penalties is used as an example.
Download the essay from SSRN at the link.

November 13, 2022

Atkinson on Telegraph Torts: The Lost Lineage of the Public Service Corporation @michlawreview

Evelyn Atkinson, University of Chicago Department of History, is publishing Telegraph Torts: The Lost Lineage of the Public Service Corporation in the Michigan Law Review (2023).
At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, a significant minority of rural state courts deviated from the common law to impose liability for mental anguish on negligent telegraph corporations. They did so on the basis that telegraph companies bore an affirmative duty to protect the emotional well-being and family connections of their customers. In this, courts gave voice to the popular view, voiced by telegraph users and promoted by the companies themselves, of the telegraph corporation as a faithful servant of individual families and communities. In so doing, they embedded the historical and popular perception of the corporation as “servant” into the definition of “public service.” This Article exposes the private law of the public service corporation and the non-economic dimension of the legal category of “public utility.” Current scholarship has focused on how turn-of-the-century jurists developed the category of “public utility” or “public service” corporation to justify state economic regulations that would otherwise infringe on corporations’ newfound constitutional rights. The telegraph cases reveal a concurrent and complementary development in tort law: the imposition of affective responsibilities on certain corporations as well. Illuminating this doctrine offers an example of how the public utility category could be mobilized to protect the emotional as well as economic well-being of the public today.
Download the article from SSRN at the link.

November 9, 2022

CFP: International Roundtables for the Semiotics of Law 2023

From Anne Wagner, Research Associate Professor Université du Littoral Côte d'Opale (CGU Calais)

Please find below another CFP for our IRSL in Roma. As you will see, there are other calls that are still open.

 

https://www.springer.com/journal/11196/updates/20249486

 


November 8, 2022

Yovel on What Lawyers Can Learn From Renaissance Drama

Jonathan Yovel, University of Haifa Faculty of Law, NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; Yale Law School, has published What Can Lawyers Learn from Renaissance Drama?. Here is the abstract.
What can lawyers, who are typically engaged in challenges of persuasion across the entire spectrum of practice, learn from the shift to normative language in drama? This study looks at the creative and restrictive roles of legal and normative language in two central dramas of the renaissance: "Bradamante" (1582) by Robert Garnier (who was also a high ranking judge), and John Milton’s passionately personal work, "Samson Agonistes" (1671). It compares the intensive reliance on legal metaphors and structures in the latter with the almost total lack of those in the former. Applying a linguistic lens, the article explores the role of legal language in the construction of argument and dispute in the renaissance's and early modernity's shift to normativity as the basis of relations: political, familial, romantic and obligatory. Wide ranging and intense, these dramas supply a laboratory for the construction of persuasive argument in thematic contexts of war, generational strife, romance, betrayal, and sovereignty. Normative -- and specifically legal -- language offers parties shared yet competing grammars and vocabularies for forming and organizing disputes. Dialogical and non-dominating, it offers an alternative to mere linguistic quarrel. The reach of legal language extends beyond the law, and its sources and uses extend far beyond legal textuality. Legal and normative languages are both restrictive and generative: like grammar, they present valid modes of expression while inviting speakers to challenge, explore, expand and create new ones. Normative language is relevant to argument since it responds to the latter's need to bridge different ideologies and supply effective persuasion. In the dramas explored here, legal and normative languages both succeed and fail to anchor communication in shifting discourse ethics, while speakers use and manipulate it to talk to friends, lovers, antagonists, political sovereignty and god -- as well as to themselves, forming a distinctive modern sense of subjectivity where the reflexive self must answer to itself. The article concludes with a systemazation of these findings in terms of the discourse ethics of persuasion, concerning consensus and persuadability, building on partly overlapping insights by Wittgenstein, Habermas, Perelman and Derrida.
Download the article from SSRN at the link.

November 7, 2022

Hargreaves on Taken as Read: Linguistic (In)Equality in Hong Kong's Jurisprudence @hargreaves_s

Stuart Hargreaves, The Chinese University of Hong Kong (CUHK), Faculty of Law, is publishing Taken as Read: Linguistic (in)equality in Hong Kong’s Jurisprudence in the Michigan State University International Law Review (2023). Here is the abstract.
Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’ functions of daily life and the use of English for the ‘high’ functions of law and government. This paper shows that significant linguistic inequality persists at the top end of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that not only has the Court failed to develop a fully bilingual jurisprudence, the availability of Chinese-language translations of its decisions is in fact declining over time. This means that roughly two-thirds to three-quarters of the population is unable to read for themselves the decisions of the Region’s apex court despite being fluent in an official language. The paper argues that beyond instrumental arguments (such as fairness to monolingual self-represented litigants), linguistic equality in the Court’s output is justified in normative terms. It is an assertion of the dignity of monolingual Chinese speakers within the community; a statement that they deserve equal access to the output of the Court given the significant role it plays. The paper concludes by arguing for an amendment to the relevant law in order to guarantee linguistic equality in the Court’s output and provision of the necessary resources to accomplish it. The problem is solvable with political will and a relatively small amount of money.
Download the article from SSRN at the link.

November 3, 2022

Shapira on Literary Means as a Tool for Halakhic Expression: Honouring Parents as a Case Study

Yaakov Shapira, Department o Jewish Law, Director, Ministry of Justice, Lecturer in Jewish Law, The Hebrew University of Jerusalem, has pbulished Literary Means as A Tool for Halakhic Expression: Honoring Parents As A Case Study at JLAS XXVII: Judaism, Law and Literature 279. Here is the abstract.
Many Talmudic discussions include a literary work in the course of the passage. These works focus on halakhic dilemmas; however they do not simply provide a ruling, but constitute full blown literary works. Usually halakhic examination and research ignore these stories. What is their purpose? Are they part of the halakhic discourse? Do they carry any weight in deciding the Halakhah? In this article I wish to clarify the unique character of these stories in the context of halakhic rulings, and I will discuss them as a case study for the essence of Halakhah as an event. I maintain that these stories reflect emotions and happenings that are an integral part of the halakhic event, and that they are meant to be a part of the considerations in making a halakhic ruling. Thus I wish to see a literary genre as a genre that expresses a halakhic happening, that is meant to be an integral part of the considerations for halakhic decision-making. Thus I shall consider the vitality of the Halakhah that operates not only as a normative apparatus with clear-cut and precise laws, but also as an apparatus aware of event narratives and sensitive to the changing contexts of the halakhic event. תקציר בעברית: האמצעי הספרותי ככלי ביטוי חברתי - תקציר / יעקב שפירא בסוגיות תלמודיות רבות מובאת במהלכה של הסוגיה יצירה ספרותית. מוקדן של יצירות אלה הוא דילמה הלכתית, אולם הן אינן סיכום פסק דין גרדא, אלא יצירה ספרותית, על כל המשתמע מכך. בדרך כלל, במסגרת העיון והמחקר ההלכתיים לא ניתנת הדעת לסיפורים אלה. מה מגמתם? האם הם חלק מהשיח ההלכתי? ואולי יש להם גם משקל בהכרעה הפסיקתית? במאמרי אבקש לברר מה ייחודם של סיפורים אלה בעולם הפסיקה ההלכתי, ואדרש אליהם כנקודת מבחן למהותה של ההלכה כהתרחשות. אבקש לטעון שסיפורים אלה משקפים רגשות והתרחשויות שהם חלק בלתי נפרד מהאירוע ההלכתי, ומגמתם להביא את שקלולם של אלה בפסיקה ההלכתית. דבריי יבקשו אפוא להצביע על הסוגה הספרותית כסוגה המבטאת את ההתרחשות ההלכתית, אשר אמורה להיות חלק בלתי נפרד משיקול הדעת של ההכרעה ההלכתית. בכך אתן את הדעת לחיוניותה של ההלכה, שפועלת לא רק כמערכת נורמטיבית שהלכותיה חתוכות ומדויקות, אלא גם כוללת בתוכה מודעות לנרטיביות ההתרחשותית ורגישות להקשרים המשתנים של האירוע ההלכתי.
Download the essay from SSRN at the link.

Kahn on The Mask Wars and Social Control: Lessons From the 1927 Unveiling Campaign in Soviet Uzbekistan @CWSL_News @cwsl_ilj

Robert Kahn, University of St. Thomas School of Law (Minnesota), is publishing The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan in California Western International Law Journal (2022) Here is the abstract.
During the late 1920s Soviet authorities embarked on the hujum, a campaign to encourage women in Uzbekistan to unveil. As with the COVID mask wars, the hujum was highly politicized. For some, the hujum was a campaign of personal liberation; for others it was an attempt by the Soviet Union to impose imperial control over its Muslim subjects. To explore the relevance of the hujum for our mask wars, this essay looks at two accounts of the hujum. Douglas Northrop’s Veiled Empire: Gender and Power in Stalinist Central Asia views the hujum as a failed attempt to impose Soviet values on an unwilling Uzbek population. Has the COVID mask, like the veil, become a symbol of failed state overreaching? Marianne Kamp, in the New Woman in Uzbekistan: Islam, Modernity and Communism (2006), sees the hujum as trapping Uzbek women between supporting the Soviets and following patriarchal veiling norms. Have COVID masking campaigns likewise stripped us of our agency? Taken together, Northrop and Kamp’s accounts help shift the debate over COVID mask wearing away from mask authoritarianism toward a world where people should be free, most of the time, to decide whether or not to cover their face.
Download the article from SSRN at the link.

October 29, 2022

Diver and Bradshaw on The Grapes of Wrath: An Artful Jurisprudence @alice_diver @qubschooloflaw

Alice Diver, QUB School of Law, and Jules Bradshaw, Liverpool John Moores University Faculty of Law, have published The Grapes of Wrath: An artful jurisprudence? in volume 2021 of the Steinbeck Review. Here is the abstract.
By documenting the harsh realities of the era, The Grapes of Wrath (‘GOW’) calls to mind those distressing UN Country Reports that both describe and denounce avoidable landscapes of poverty, hunger, homelessness, and dispossession. Steinbeck embeds the novel’s harrowing images within an unforgiving framework of human rights violations, most of which flow directly from human greed. The novel’s prescient yet timeless warnings speak not only to the various humanitarian crises brought about by climate change and unethical commercial practices, but also to many ongoing, perennial global atrocities: corrupt political regimes, gendered injustices, ethnic cleansing, and displacement of entire populations. It is landscapes such as these that still serve to both spark and underpin refugee existence: the need for a compassionate system of asylum-granting, firmly grounded in human rights law, clearly remains as urgent now as it was in Steinbeck’s time. As witnesses to such chronic disregard for human dignity, readers of the novel are not only tasked with judging those responsible: we must also evaluate the perennial failings of the various global and domestic systems that have enabled and perpetuated such egregious rights violations. The final scene, drenched in symbolism, still serves as a quasi-courtroom: before the bared breast of a Lady Justice figure we become jurists, and cannot help apportioning blame for all that has been witnessed over the course of the Joad’s journeying. A close reading now, almost a century later, serves as a timely reminder that similar atrocities continue: migrant and refugee populations remain especially vulnerable, not least where they have been displaced by poverty or political crises from all that was once familiar. This article argues that the novel’s central focus on “social realism” demands much in the way of “moral and emotional effort” (Benson, 9) from the reader: we should leave the book with nothing less than a highly “active compassion for the dispossessed” (Wyatt, 12).
Download the article from SSRN at the link.