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.

October 26, 2022

Hurst on Technology and the Law: The Automobile (edited by Ard and Novak) @bj_ard @WisLRev

James Willard Hurst, University of Wisconsin Law School (deceased), BJ Ard, University of Wisconsin Law School, and William J. Novak, University of Michigan Law School, have published Chapter Eight - Technology and the Law: The Automobile at 2022 Wisconsin Law Review 714. Here is the abstract.
In this chapter we are going to talk about some of the effects that the automobile has had upon the law and some of the effects that the law had upon the automobile. We could undoubtedly open up some worthwhile lines of thought if we talked about the automobile in relation to certain broader problems of which it is a part: for example, the effects of the internal combustion engine or the growth of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of this chapter we can discuss at any length only the relation of the law and the passenger car. This is not merely an arbitrary limitation, however. Of the 32 million registered motor vehicles in the United States in 1940, substantially over 27 million were passenger cars, and a little under four and one-half million were motor trucks. Until the middle 1920s the proportion of trucks to passenger cars was much lower than this. Not only was the passenger car the center of the auto problem as a matter of gross figures; it was likewise the main aspect of the problem that men saw and reacted to. We may properly focus on it when we try to retrace the unplanned paths of the law’s responses to the motor vehicle.
Download the chapter from SSRN at the link.

October 19, 2022

Roger and Sobecki, Geoffrey Chaucer, Cecily Chaumpaigne, and the Statute of Laborers: New Records and Old Evidence Reconsidered @SebSobecki @euanroger @ArsScripta @jj_mcgovern

 From The Chaucer Review:


Euan Roger and Sebastian Sobecki, Geoffrey Chaucer, Cecily Chaumpaigne, and the Statute of Laborers: New Records and Old Evidence Reconsidered, 57 The Chaucer Review 407-437 (2022).


This article introduces two records that clarify the relationship between Geoffrey Chaucer and Cecily Chaumpaigne. The new documents also demonstrate the relevance of a known Chaucer life-record that previously had not been associated with this case. Our findings offer a radically different understanding of the documentary evidence and establish that Chaucer and Chaumpaigne were not opponents but belonged to the same party in a legal dispute with Chaumpaigne’s former employer, Thomas Staundon, who had sued them both under the Statute of Laborers. Chaumpaigne’s quitclaims for Chaucer offered the most expedient legal path under the Statute of Laborers for both Chaucer and Chaumpaigne to demonstrate that she had left her employment with Staundon voluntarily, as opposed to being coerced or abducted (raptus), before commencing work for Chaucer.


October 17, 2022

American Society for Legal History and Institute For Legal Studies, Wisconsin Law School Invite Applications For Hurst Summer Institute @ASLHtweets @WisconsinLaw @dwlachance

 From Daniel LaChance, Winship Distinguished Research Professor in History, Emory University

 

The American Society for Legal History and the Institute for Legal Studies at the University of Wisconsin Law School are pleased to invite applications for the eleventh biennial Hurst Summer Institute in Legal History. The two-week program features presentations by guest scholars, discussions of core readings in legal history, and analysis of the work of the participants in the Institute.  

The 2023 Hurst Institute will take place June 18 – 30, 2023. The 2023 session will be chaired by Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania and Michelle McKinley, the Bernard B. Kliks Professor of Law at the University of Oregon Law School. 

Scholars in law, history and other disciplines pursuing research on legal history of any part of the world and all time periods are eligible to apply. Applicants with no formal training in legal history are encouraged to apply, and the selection committee welcomes applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations, and J.D. graduates). 

Applications for the eleventh Hurst Summer Institute will be available on December 1, 2022 and accepted until January 15, 2023

For more information on how to apply, see the Hurst Institute’s website

October 14, 2022

New Publication: Anat Rosenberg, The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity (Oxford University Press, 2022) @anat_rosenberg @OUPAcademic @ReichmanUni

Anat Rosenberg, Reichman University, is publishing The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity (Oxford University Press, 2022). Here is a description of the book's contents. 

The Rise of Mass Advertising is a first cultural legal history of advertising in Britain, tracing the rise of mass advertising c.1840-1914 and its legal shaping. The emergence of this new system disrupted the perceived foundations of modernity. The idea that culture was organized by identifiable fields of knowledge, experience, and authority came under strain as advertisers claimed to share values with the era's most prominent fields, including news, art, science, and religiously inflected morality. While cultural boundaries grew blurry, the assumption that the world was becoming progressively disenchanted was undermined, as enchanted experiences multiplied with the transformation of everyday environments by advertising. Magical thinking, a dwelling in mysteries, searches for transfiguration, affective connection between humans and things, and powerful fantasy disrupted assumptions that the capitalist economy was a victory of reason. The Rise of Mass Advertising examines how contemporaries came to terms with the disruptive impact by mobilizing legal processes, powers, and concepts. Law was implicated in performing boundary work that preserved the modern sense of field distinctions. Advertising's cultural meanings and its organization were shaped dialectically vis-à-vis other fields in a process that mainstreamed and legitimized it with legal means, but also construed it as an inferior simulation of the values of a progressive modernity, exhibiting epistemological shortfalls and aesthetic compromises that marked it apart from adjacent fields. The dual treatment meanwhile disavowed the central role of enchantment, in what amounted to a normative enterprise of disenchantment. One of the ironies of this enterprise was that it ultimately drove professional advertisers to embrace enchantment as their peculiar expertise. The analysis draws on an extensive archive that bridges disciplinary divides. It offers a novel methodological approach to the study of advertising, which brings together the history of capitalism, the history of knowledge, and the history of modern disenchantment, and yields a new account of advertising's significance for modernity.


Link to the book on the publisher's website. 

October 12, 2022

Levinson and Ericksen on The Betrayal of the Humanities under National Socialism @UMNews @iupress

Bernard M. Levinson, University of Minnesota, and Robert P. Ericksen have published The Betrayal of the Humanities under National Socialism in The Betrayal of the Humanities: The University During the Third Reich (Bernard M. Levinson and Robert P. Ericksen, eds., Indiana University Press, 2022).
How did the academy react to the rise, dominance, and ultimate fall of Germany's Third Reich? Did German professors of the humanities have to tell themselves lies about their regime's activities or its victims to sleep at night? Did they endorse the regime? Or did they look the other way, whether out of deliberate denial or out of fear for their own personal safety? The Betrayal of the Humanities: The University during the Third Reich is a collection of groundbreaking essays that shed light on this previously overlooked piece of history. The Betrayal of the Humanities accepts the regrettable news that academics and intellectuals in Nazi Germany betrayed the humanities, and explores what went wrong, what occurred at the universities, and what happened to the major disciplines of the humanities under National Socialism. The Betrayal of the Humanities details not only how individual scholars, particular departments, and even entire universities collaborated with the Nazi regime but also examines the legacy of this era on higher education in Germany. In particular, it looks at the peculiar position of many German scholars in the post-war world having to defend their own work, or the work of their mentors, while simultaneously not appearing to accept Nazism.
The text is not available from SSRN.

October 7, 2022

Tehranian on The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts @johntehranian @SouthwesternLaw @AmULRev

John Tehranian, Southwestern Law School, is publishing The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts in volume 71 of the American University Law Review. Here is the abstract.
The metaphor of the hunt pervades photography, exhorting those behind the camera to load, aim and shoot. But having long served as the proverbial prey whose ‘captured’ images form the subject matter of so many works, subjects have begun to strike back. From Jay-Z and Emily Ratajkowski to Taylor Swift and Naruto the crested macaque, subjects are pushing for greater control over the exploitation of their personae and representation of their bodies. The Subject Strikes Back identifies this significant moment and critically assesses the legal landscape related to subject rights, with a particular emphasis on the copyright, trademark and right-of-publicity issues at play. Bookended with two case studies from the world of modern art—the legal controversies surrounding Richard Prince’s New Portraits series and Andy Warhol’s iconic serigraphs of pop star Prince—the Article surveys the limited protection afforded to subjects under current copyright, trademark and right-of-publicity law, ascertains the key issues (including those related to race, gender and socioeconomic status) at stake in any potential expansion of subject rights, highlights obstacles presented by the extant jurisprudence, and analyzes the prospects for change. Although sympathetic to the plight of subjects, the Article raises significant concerns about attempts to vindicate their interests through right-of-publicity and trademark law. Specifically, the Article posits that the protection of subject rights through publicity rights presents underappreciated problems related to copyright pre-emption, the blurry line between actionable advertising/merchandising uses of a likeness and non-actionable artistic uses (a distinction that carries significant implications for expressive freedoms) and gamesmanship and forum shopping in exploiting the patchwork nature of publicity rights protected at the state level. Meanwhile, although subjects have enjoyed some limited success wresting control over the use of their images through the Lanham Act and related unfair competition laws, the public policy concerns animating federal trademark doctrine make such reliance problematic, especially in light of incongruity and unpredictability of the relevant jurisprudence governing threshold issues of trademarkability and likelihood of confusion and the serious interference that subject-friendly holdings in trademark law can pose to the exercise of exclusive rights reserved for copyright holders. In the end, the prospects for vindication of subject rights may be best served if copyright law expressly recognized the potential for authorial interests for subjects—an outcome currently precluded by copyright’s authorship-as-fixation doctrine. The Subject Strikes Back therefore highlights the significant work our intellectual property laws still have to do to properly align creative contributions with the reward of rights, recognize the economic value and dignitary interests of subjects and balance the rights of fixers and users with the rights of subjects.
Download the article from SSRN at the link.

October 5, 2022

Sherwin on Law's Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump @RKSherwin @NYLawSchool

Richard K. Sherwin, New York Law School, is publishing Law’s Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump in the International Journal for the Semiotics of Law. Here is the abstract.
In arguing their case for the impeachment of Donald J. Trump for inciting a violent insurrection, prosecutors made extensive use of video images of Trump supporters violently overtaking Capitol police and ransacking the Capitol building once they had forced their way inside. But the rally video that immediately preceded Trump’s January 6 speech was ignored completely. Should it have been brought into the prosecution’s case? If it had been, how might it have aided the prosecution’s contention that Trump was guilty of inciting violent insurrection? In this article, I contend that the prosecution team’s insufficient understanding of how, and with what predictable behavioral impact, Trump’s video helped to incite his supporters to violent insurrection plausibly accounts for their failure to make use of it. This lost opportunity provides a useful test case for exploring law’s operation in the tacit dimension of thinking with pictures and sounds – a mode of thinking that is resistant but not impervious to critical reflection and collective deliberation. It can hardly be gainsaid that thinking with sounds and images occupies an increasingly influential, if not dominant role in society. Given this reality, we can ill-afford to ignore the implications of such a massive blind spot when it comes to the strategic composition and critical assessment of such a pervasive form of communication. If the fate of liberal democracy turns on preserving modes of public communication that are indispensable to the discovery and dissemination of factual truth in the quest for justice, then jurists and lay citizens alike must strive for greater audiovisual literacy.
Download the article from SSRN at the link.

Heppner on Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia @RLHeppner @IndLRev

Richard L. Heppner, Jr., Duquesne University School of Law, is publishing Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia in volume 56 of the Indiana Law Review. Here is the abstract.
This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018). Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, Ginsburg’s majority opinion uses conventional, mechanistic metaphors to hold that. Gorsuch’s dissent uses more elaborate, agrarian metaphors to argue that Congress used a stricter “grace period” version of tolling because “[w]hen Congress replants the roots of preexisting law in the federal code, this Court assumes it brings with it the surrounding soil.” This article shows that Ginsburg’s mechanistic metaphors describe lawmaking like engineering and bespeak a mode of judicial interpretation based on purpose and precedent—while Gorsuch’s agrarian metaphors hark back to a pastoral conception of lawmaking and interpretation “rooted” in a mythical common-law history and tradition. It then compares Ginsburg’s more understated use of conventional metaphors to Gorsuch’s more performative metaphorical technique, arguing that their different rhetorical strategies reflect both their visions of lawmaking and their own interpretive philosophies. And it closes by showing how close attention to the metaphors they use can reveal the flaws in each approach.
Download the article from SSRN at the link.

October 4, 2022

Seigel on Memory Games: Dobbs's Originalism As Anti-Democratic Living Constitutionalism--and Some Pathways for Resistance @YaleLawSch @TexasLRev

Reva Siegal, Yale University Law School, is publishing Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance in the Texas Law Review. Here is the abstract.
This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways. To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
Download the article from SSRN at the link.

Vats and Keller on Critical Race Theory as Intellectual Property Methodology @raceip @FAMULaw @PittLaw

Anjali Vats, University of Pittsburgh School of Law and Department of Communication, and Deidre A. Keller, Florida A & M University College of Law, have published Critical Race Theory as Intellectual Property Methodology in Intellectual Property Research (Irene Calboli and Maria Lilla Montagnani, eds., Oxford University Press, 2021). Here is the abstract.
This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In accomplishing the latter, we use India's commitments to access to knowledge in the recent Delhi University copyshop case and controversy over Novartis's drug Gleevec to show how CRT's central insights can open possibilities for reading intellectual property law with attunement to structures of racial power.
Download the essay from SSRN at the link.

September 30, 2022

Andrew Majeske on Greta Olson, From Law and Literature To Legality and Affect (Oxford University Press) @NASJ_org @Greta_Olson_ @OxUniPress

Andrew Majeske, John Jay College of Criminal Justice, has published a review of Greta Olson, From Law and Literature to Legality and Affect (Oxford University Press) (forthcoming October 10, 2022), in the New American Studies Journal: A Forum.  


 

September 26, 2022

Crawford and Afield on How Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day @HaubLawatPace @ProfBCrawford @ProfAfield @GeorgiaStateLaw @nyulaw

Bridget J. Crawford, Pace University School of Law, and W. Edward "Ted" Afield, Georgia State Univeristy College of Law, are publishing Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day in the Tax Law Review. Here is the abstract.
When is the nonpayment of taxes justified by conscientious objections? Legendary Catholic social activist Dorothy Day refused to pay federal income taxes, because she was an avowed pacifist who also cautioned against government overreach into the lives of citizens. This article asks whether the tax system should accommodate those who have moral objections, and if so, how accomplish that. Through the lens of Dorothy Day, who devoted her adult life to workers’ rights, pacificism, and service to the poor, this article makes three contributions to the conversation about the administration of a fair tax system. First, the article examines Day on her own terms. It is difficult, but not impossible, to reconcile Day’s tax resistance with the Catholic social teaching on taxation that was emerging during her lifetime. Second, the article considers what insights Catholic doctrine offers into the structure and substance of a just tax system. Although there is not as much theological writing on taxation as there is on other social issues, Catholic social teaching does provide some guidance about the purpose, form and operation of a just tax system. From these insights, the article moves to suggest specific improvements to the tax system: formal mechanisms that bring conscientious objectors into tax compliance; enhanced communication about the tax system’s role in administering the country’s most effective anti-poverty programs; and enforcement priorities that do not disproportionately target the poor. While these proposals might not be sufficient to have caused a steadfast antiwar protestor like Day to pay taxes, they illuminate a path toward much-needed reforms of the federal income tax system.
Download the article from SSRN at the link.

September 22, 2022

Guerra-Pujol on Coase's Parable @PUCPR1

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase's Parable in the Mercer Law Review. Here is the abstract.
Some stories have heroes and villains. Others involve a voyage, a quest, or a monster to be defeated. The law is no exception. Broadly speaking, most legal stories are generally about identifying wrongdoers and vindicating the rights of victims, but what if harms are “reciprocal” or jointly-caused? In other words, what if victims are just as responsible as wrongdoers for their plight? It was Ronald Coase who first proposed this novel counter-narrative to the standard victim-wrongdoer narrative in law. Researching and writing in the late 1950s and early 1960s, Professor Coase--an obscure, middle-aged English economist at the time--plucked a number of leading cases from the English Law Reports and other sources. Coase then used these old cases to create a compelling but controversial legal counter-narrative: compelling because Coase’s parable forever changed the way many economists, lawyers, and judges see the law; controversial because it was Coase who first conceived of harms as a “reciprocal” problem. Simply put, whenever one party accuses another party of harming them, it is almost always the case that both parties are responsible for the harm--that is the essence of Coase’s novel and unorthodox parable.
Download the article from SSRN at the link.

September 21, 2022

Costello on Courtroom Dialogues and Feminist Legal Theory in Irish Literature

R. A. Costello, Dublin City University, School of Law and Government, has published Courtroom Dialogues and Feminist Legal Theory in Irish literature at 20 Irish Studies Review 370 (2020). Here is the abstract.
This article examines the use of courtroom dialogues in two of the leading works of Irish language literature, and how they acted, at the time of their writing, as a mechanism which permitted both author and audience to question societal attitudes to female agency and sexuality – and how they continue to facilitate such critical reflection contemporaneously. Specifically, the piece examines the use of courtroom dialogues in Cúirt an Mheán Oíche by Brian Merriman (CMO) written around 17802 and in An Triail by Máiréad Ní Ghráda (AT) originally performed in 1965 and published in 1978. Both pieces, written nearly two centuries apart, use courtroom dialogues, and the formal mechanisms of testimony and cross-examination to articulate and critique the social subordination of women portrayed in the texts, and to question the restraints on female agency and sexuality imposed by the societies in which their characters exist. Through the works’ use of judicial settings and dialogues both texts articulate a feminist theory of law which aligns with Catherine McKinnon’s dominance theory.
N.B. SSRN indicates the article is not available for download but the author indicates it is available open access. The website shows the content might be available for purchase or through institutional subscription.

Howe and Peterson on Law and Art In the Aftermath

Steven Howe, University of Lucerne, and Laura Petersen, University of Melbourne, have edited a special focus section of Pólemos: Journal of Law, Literature and Culture, on ‘Law and Art in the Aftermath’.

 

Aftermath is a “peculiar concept” (Frank Möller). Frequently invoked, in both popular and academic discourse, it is rarely theorised, or even explicitly considered. What is the aftermath? Where is it? When does it begin, when does it end? What comes after the aftermath – what endures and what passes, what is transformed and what emerges new? Does all life carry the “taint of aftermath” (Joseph O’Neill)? Are we ever not, in some sense, in the aftermath?

 

The contributions in this special focus section revisit the idea of aftermath as it relates to critical matters of law, justice and jurisprudence. They pose new questions of the concept, and look again at what it means to be in the aftermath – legally, politically and experientially. At the same time, they offer fresh takes on the resonances of law and art as they move alongside, through and against one another across distinct legal, political and critical aftermaths.

 

Featuring essays by: Eliza Garnsey, Paul Gough, Connal Parsley, Clotilde Pégorier and Lars Waldorf.

 

Access via the link above.

 

September 16, 2022

von Bernstorff and Mayer on The Historical School and German 19th Century Contributions to International Legal Thought

Jochen von Bernstorff, University of Tuebingen, Faculty of Law, and Max Mayer, University of Tuebingen, have published The Historical School and German 19th Century Contributions to International Legal Thought. Here is the abstract.
In the second half of the 19th century, European international law became what Western international lawyers up until the 1930s conceived of as international law. The transformative process during that time led to the establishment of a number of important concepts: the modern notion of the sovereign state as the foundational unit of an international legal order based on common consent; a dualist notion of customary law as an empirical emanation (state practice) of a common legal “consciousness”; post-natural law concepts of a ius ad bellum, sovereign equality, the balance of power, a (constitutive) recognition-doctrine; and the closely connected Eurocentric legal dichotomy of a “civilized” core of Western states and a non-Western periphery. The rise of these concepts was shaped by major political, ideological, jurisprudential and philosophical currents during the long 19th century.The contribution will disentangle some of the most important 19th century doctrinal developments and the associated German jurisprudential theories. In a first step we will describe the reception of the Historical School in international legal scholarship and its doctrinal implications for a modern theory of customary law. As a second step we will reconstruct the contribution of German theories of the sovereign will of the state as the formal basis of international law [Staatswillenspositivismus] leading to new theories of “common consent” and recognition. These two broader developments shaped the last decades of the 19th century and would have long lasting implications for modern international law. Despite the reformist rhetoric of our main scholarly protagonists, both the new historicist foundation of international law in custom and the late 19th century turn to multilateral treaties and common consent were regarded by late 19th century contemporaries as complementing each other. German Staatswillenspositivismus à la Jellinek or Oppenheim developed its theories on “common civilised consent” inside the new historicist foundation of European international provided by the reception of the Historical School in the mid-19th century.
Download the article from SSRN at the link.

September 15, 2022

Junde on Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar India @JIPLP

Akanksha Jumde, University of Tasmania Faculty of Law, is publishing Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India in the Journal of Intellectual Property & Practice (2022). Here is the abstract.
Using case studies of two of the oldest art forms practiced in Bihar, India, this article analyses challenges relating to the implementation of the law on Geographical Indications (GIs) in India, to better protect the rights and the craft of its most important stakeholders: the artists. This article is also a critique on the application of the current Indian GI regulatory framework to its traditional handicraft sectors. The findings derived with reference to handicrafts are also relevant to the broader question of whether GIs can protect the traditional knowledge or indigenous knowledge of the stakeholders. This article finds that lack of provisions related to quality control and monitoring mechanisms, discrepancies in the definition of ‘Goods’ and ‘GI’, the anomalous concept of authorized users and difficulties in the application for registration requirements, impose serious limitations. We, therefore, suggest that the extant regulatory framework needs to be strengthened by adequate support by the government to help artists to promote and market their work, and establishment of adequate regulations for quality control, post-GI registration.
Download the article from SSRN at the link.

September 11, 2022

Wolcher on Ronald Dworkin's Wittgenstein @routledgebooks

Louis E. Wolcher, University of Washington School of Law, is publishing Ronald Dworkin's Wittgenstein in Wittgenstein and Other Philosophers (A. Khani & G. Kemp, eds., Routledge) (forthcoming). Here is the abstract.
Wittgenstein’s influence on the legal theory of the late Ronald Dworkin (1931-2013) is an excellent illustration of the truth of the former’s statement, “The seed I’m most likely to sow is a certain jargon.” Dworkin, one of the most prolific and important legal philosophers of his era, developed a distinctly normative theory that links the rule of law, legal rights, and legal interpretation to the claimed objective unity of legal, moral, and political values, especially in the United States. In doing so he relied directly for support on the authority of Wittgenstein’s concepts “language-games” and “form of life,” and indirectly on the latter’s anti-metaphysical insight (in Dworkin’s words) that “the key to meaning is use.” This chapter discusses both the few points of contact and the large areas of divergence between the methods and goals of these two thinkers. It does so from two opposite yet complimentary perspectives, which it calls “Dworkin’s Wittgenstein” and “Wittgenstein’s Dworkin.” It concludes that Wittgenstein would not have recognized Dworkin’s writings as philosophy but would (perhaps) have respected them as expressions of a secular kind of religious faith – a Religion Without God as the title of Dworkin’s last book would have it.
Download the essay from SSRN at the link.

Soifer on Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore? @UHMLawSchool @TouroLawReview

Aviam Soifer, University of Hawaii, Manoa, School of Law, is publishing Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore? in volume 37 of the Touro Law Review. Here is the abstract.
The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters— but we should continue that task, with remembrance, even within our troubled world.
Download the article from SSRN at the link.

September 10, 2022

Tay on The Stories We Tell Ourselves: National Memories and Historical Narratives in International Legal Claims

Xuan W. Tay, University of Adelaide, has published The Stories We Tell Ourselves: National Memories and Historical Narratives in International Legal Claims. Here is the abstract.
“The universe is made of stories, not of atoms.” The social sciences recognize that States are motivated by their historical narratives. Narratives play a key role in shaping how States understand their world and their place in it. Scholars of nationalism crisply note, “no memory, no identity; no identity, no nation”. The emerging international relations tagline, Ontological Security Theory, asserts that the conduct of States is also motivated by their self-identity needs. Even so, there are unsettled questions about the motivational strength of historical narratives, the processes by which narratives gain salience, and how narratives are crafted. Contrastingly, the role historical narratives play in motivating international legal behavior is not well-studied in the international law (IL) scholarship. Most scholars employ rationalist assumptions to explain the international legal behavior of States. Whereas other scholars turn to constructivist explanations, the literature here predominantly focuses on how legal norms affect the general conduct of States, not how historical narratives motivate international legal behavior. This is peculiar, given that the practice of international law typically calls on lawyers to navigate the subjective historical narratives States perpetuate. The proposed thesis seeks to contribute to both the social science and IL scholarship by pursuing a comprehensive understanding of how a State’s historical narratives motivate the international legal claims it makes. This is done through a three-stage interdisciplinary inquiry. It first draws on social science insights to conjecture a theoretical model of how a State’s historical narratives may motivate a State’s international legal claims. Secondly, this model is tested against an empirical legal examination of China’s international legal claims from the period of the Unequal Treaties to present day. The hypothesis to be addressed here is whether the theoretical model provides an intelligible basis for explaining how and why China makes the international legal claims it does. The third stage takes into account the empirical findings to modify the conjectured theoretical model, and suggest implications therefrom for both the social science and IL scholarship. At a broader level, it is hoped the inquiry will spur readers to reflexively consider the degree to which the practice of international law is informed by the stories we tell ourselves.
Download the proposal from SSRN at the link.

September 3, 2022

Katz, Rozema, and Sanga on Women in U. S. Law Schools, 1948-2021 @elizabethdkatz @kyle_rozema @WashULaw @sarathsanga @NorthwesternLaw

Elizabeth D. Katz and Kyle Rozema, both of Washington University, St. Louis, School of Law, and Sarath Sanga, Northwestern University School of Law, have published Women in U.S. Law Schools, 1948-2021. Here is the abstract.
We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women occupy lower status faculty and deanship positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.
Download the article from SSRN at the link.

Keith on Richard Cockburn Maclaurin: 1870-1920 @WellingtonUni

Kenneth J. Keith, Victoria University of Wellington, Te Herenga Waka Faculty of Law, has published Richard Cockburn Maclaurin: 1870–1920 in Vincent O'Sullivan (ed) Eminent Victorians (Stout Research Centre, Wellington, 2000) at 49. Here is the abstract.
A lecture delivered as part of the Stout Research Centre's Eminent Victorians series. The series celebrates the contribution of a number of Victoria University of Wellington's distinguished scholars and gifted teachers of the past hundred years. In this lecture, Sir Ken Keith provides an insight into the work and legacy of Richard Cockburn Maclaurin, Victoria's first Dean of Law, first chairman of the Professorial Board, first Professor of Mathematics, and first and only Professor of Astronomy.
Download the essay from SSRN at the link.

September 1, 2022

Lloyd on Recasting Canons of Interpretation and Construction into "Canonical" Queries @LloydEsq @WFULawSchool @WFULawReview

Harold Anthony Lloyd, Wake Forest School of Law, is publishing Recasting Canons of Interpretation and Construction into 'Canonical' Queries in the Wake Forest Law Review. Here is the abstract.
This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes). As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time. Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.
Download the article from SSRN at the link.

August 31, 2022

Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.
Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.
Download the article from SSRN at the link.

Law and Humanities Workshop: Futurity Now? September 6-8, 2022

 From Professor Steven Howe, University of Lucerne:


Law and Humanities Workshop: Futurity Now?

6-8 September 2022

Online via Zoom

Convened by the Institute for Interdisciplinary Legal Studies, University of Lucerne & the Centre for Law, Arts and the Humanities, The Australian National University

 

It is not so long ago that Mark Fisher, in Ghosts of My Life (2013), pronounced the “slow cancellation of the future.” Riffing on a phrase of Franco ‘Bifo’ Berardi, Fisher identifies a cultural inertia that resides in a collective inability to “grasp and articulate the present.” The ubiquity of capitalism – and of a capitalist realism that presumes there is no alternative to the neoliberal global order – has, Fisher argues, given rise to a condition in which “life continues, but time has stopped.” The “slow cancellation of the future” thus becomes, in Fisher’s hands, a critical expression of this insidious creep that gradually but relentlessly corrodes the social imagination – and with it, the radical potential of the future. As Wendy Brown describes it, this loss of futurity and of forward momentum “makes the weight of the present very heavy: all mass, no velocity.” Or “in the terms of late modern speediness … all speed, no direction.”

 

Is, then, the future over? Not quite. Indeed, there is no greater critical concern in the contemporary moment than the future, and recent years have seen a marked resurgence of thinking about futurity. Fired by the urgency of our current condition, writers, theorists, artists and activists have turned anew to consider the possibilities of the future, both as a subject of theorization and as an orientation for practice in the world.

 

Against this background, the law and humanities workshop proposes a multi- and interdisciplinary discussion around the topic of “Futurity Now?” A joint venture of a global network of partner institutions, the workshop will offer a creative and stimulating space for exploring critical and theoretical perspectives on the future “as time, as event, as condition, as an orientation to the oncoming” (Saint-Amour).

 

The workshop programme will comprise the following three sessions (all online):

 

 

Please follow the links for workshop descriptions and registration details.

 

All enquiries to lucernaiuris@unilu.ch.

August 30, 2022

Katz on The Strange Case of Dr. Jekyll and Mr. Hyde, his English Wills and Scottish Law

Leslie Katz has published Strange Case of Dr Jekyll, his English Wills and Scottish Law. Here is the abstract.
In Robert Louis Stevenson’s Strange Case of Dr Jekyll and Mr Hyde, much of the action of the story is driven by the belief of Mr Utterson the lawyer that a will made by Jekyll leaving everything to Hyde was a valid will. That belief was caused in turn by Stevenson’s belief that, on a certain point, English and Scottish wills law were the same. Stevenson was mistaken; they weren’t. Although the will would have been valid under Scottish law, it wasn’t under English law. Much of Utterson’s conduct in the story is thus seen to have been unnecessary. The paper also includes background information about Mr Utterson, Dr Lanyon and Dr Jekyll, as well as a chronology of events in the story.
Download the paper from SSRN at the link.

August 27, 2022

Brady on Uses of Convention History in State Constitutional Law @mollyxbrady @WisLRev

Maureen E. Brady, Harvard Law School, is publishing Uses of Convention History in State Constitutional Law in the Wisconsin Law Review. Here is the abstract.
For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states? For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those rec Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources. This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context. Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.
Download the essay from SSRN at the link.

August 25, 2022

Frohock on Reading Lolita as a Sentencing Memorandum @frohock_c @AlbanyLawReview @MiamiLawSchool @umlawschool

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.
The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.
Download the article from SSRN at the link.

August 24, 2022

Davies on A Great Borrower and a Great Originator, and Also, Perhaps, a Great Lender @horacefuller @NeroWolfePack

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Great Borrower and a Great Originator, and  Also, Perhaps, a Great Lender, at The Gazette–The Journal of the Wolfe Pack, Fall 2021, at 3. Here is the abstract.
This is the full, annotated, original version of a paper that was delivered as a toast to Rex Stout at the The Wolfe Pack's Black Orchid Dinner (on Zoom) on December 5, 2020. The abbreviated toasty version was published (without footnotes), on pages 3 to 5 of the Fall 2021 issue of The Gazette — The Journal of the Wolfe Pack. The paper argues that contrary to conventional wisdom, Rex Stout did NOT borrow from Agatha Christie when he wrote his first Nero Wolfe detective story; rather, it was more likely Christie who borrowed from Stout.
Download the article from SSRN at the link.

August 22, 2022

Stevenson on Revisiting the Original Congressional Debates about the Second Amendment @STCL_Houston

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.
Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.
Download the article from SSRN at the link.