November 25, 2020

Barnes on Interrogating the Self-Told Narrative: Lord Lindley's Autobiography, His Life and His Legal Biography @maxplancklaw

Victoria Barnes, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for European Legal History, has published Interrogating the Self-Told Narrative: Lord Lindley's Autobiography, His Life and His Legal Biography at 41 Journal of Legal History 143 (2020). Here is the abstract.
Autobiographies are now popular forms of literature, but for those in the legal profession, this tradition has a much longer history. This article examines the memoir written by Lord Nathaniel Lindley (1828–1921). Lord Lindley is famed for his writings in company law and for his judgments in a considerable number of landmark cases in the court of appeal and in the house of lords. The article uses Lindley’s memoir alongside other archival records to shed some much-needed light on Lindley’s background, his relationships and his private life. In doing so, it raises points of note about his life but also some wider methodological concerns. Lindley’s memoir is key in unearthing new insights into Lindley’s life. In this document, he explains how he was able to reach the upper echelons of the legal profession. This article considers the way that autobiographies can be used to present certain narratives. The analysis shows how the evidence presented in these sources can be triangulated and combined with other sources to overcome natural biases and flaws in order to create a fuller and more balanced legal biography. Overall, the article considers the value of autobiographies and memoirs in the construction of a legal biography.


Download the article from SSRN at the link. 

November 20, 2020

Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.
When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.
Download the article from SSRN at the link.

November 16, 2020

Barrett on Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court @CornellPress @JohnQBarrett

John Q. Barrett, St. John's University School of Law, Robert H. Jackson Center, has published Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court as St. John's Legal Studies Research Paper No. 20-0014. Here is the abstract.
This essay is one of thirty-five in the book Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical(Cornell University Press, Lisa A. Tucker, ed., Oct. 2020). This essay considers the possibility that Hamilton: An American Musical, the sensation that has captivated so many, plus its soundtrack that plays on in our heads and on our devices, will stir and influence United States Supreme Court justices as they interpret the U.S. Constitution. Our Supreme Court justices have always been interested in the lives and the words of the Founding Fathers. For example, The Federalist essays of 1787-1788, most of them penned by Alexander Hamilton, have been cited in hundreds of Court decisions. So have other Founding-era materials, including many words from James Madison, the so-called Father of the Constitution. But as Justice Robert H. Jackson wrote in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), this judicial enterprise often is not illuminating—“a Hamilton may be matched against a Madison”; “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” When the musical Hamilton opened on Broadway in 2016, Hillary Clinton was on her way to being elected president. It was predictable that she would get to appoint new Supreme Court justices, and that they would be, as she is, inclined to read expansively the Constitution’s provisions defining national government powers. These newcomers would constitute a Supreme Court in the Hamilton era. They would see the musical, hear the songs, be stirred, and perhaps even quote from and cite to Hamilton. U.S. politics took a different path. Yes, many of the justices have seen Hamilton. More liberal, nationalistic, Alexander Hamilton-admiring justices have praised it. More conservative justices have had less to say about it. In Supreme Court decisions through June 2019, there is not much trace of Hamiltonian—forefather or modern musical—influence.
The full text is not available for download.

November 12, 2020

Cooney on Larry Potter and the Deathly Canon @WMUcooleylaw @jmarkcooney

Mark Cooney, Western Michigan University Cooley Law School, has published Larry Potter and the Deathly Canon at 99 Mich. B. J. 48 (Sept. 2020). Here is the abstract.
This Michigan Bar Journal column discusses the ejusdem generis canon of statutory construction, using a courtroom-based Harry Potter parody as its vehicle.
Download the article from SSRN at the link.

November 10, 2020

Schauer on Constructing Interpretation

Frederick Schauer, University of Virginia School of Law, is publishing Constructing Interpretation in the Boston University Law Review. Here is the abstract.
This paper, a substantially revised version of a paper previously entitled (and posted as) “A Critical Examination of the Distinction between Interpretation and Construction,” argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the “construction zone.” For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.
Download the article from SSRN at the link.

Whisner On When Douglas Hired a Woman To Clerk @marywhisner

Mary Whisner, University of Washington School of Law, has published Douglas Hires a Woman to Clerk 2020 Green Bag Almanac and Reader 297–310 (2020) at 2020 Green Bag Almanac and Reader 297 (2020). Here is the abstract.
The editors of the 2020 Green Bag Almanac and Reader mined Justices' papers held by the Library of Congress for handwritten documents to feature and invited essays about each one. This essay is a gloss on Vern Countryman's letter to Justice William O. Douglas (Jan. 12, 1944) recommending a law student from the University of Washington to serve as a clerk. The law student was Lucile Lomen, who became the first woman to clerk for a Supreme Court Justice. The essay offers biographical tidbits and historical context—including Lomen's childhood in Nome and Seattle life during World War II. Along with shipbuilding and troop movements, the Seattle experience included the internment of Japanese Americans (Gordon Hirabayashi was a student at the UW at the same time Countryman and Lomen were there), an issue that went East to the Supreme Court, as the young clerks did. As a Seattleite whose parents were born the same year as Lomen, I also weave in some personal history.
Download the essay from SSRN at the link.

November 9, 2020

ICYMI: Roman on Outsider Jurisprudence and Looking Beyond Imagined Borders @latinolawprof @fiulaw

ICYMI: Ediberto Roman, Florida International University College of Law, has published LatCrit VI, Outsider Jurisprudence and Looking Beyond Imagined Borders at 55 Florida Law Review 583 (2003). Here is the abstract.
The consequences of first-world globalization on people of color will often be pernicious and will not only affect the lives of Latinas/os in the Americas, the Caribbean, and other areas, but it will have an indirect impact on these groups within the United States. Latina/o communities within this country are pan-ethnic, with ties here and to their homelands. These groups directly affect, and are affected by Latinas/os throughout the world. This reality, among others, demonstrates that Latinas/os residing in this country exist, in many respects, in a transnational status "typically retaining strong material connections to, and cultural identifications with, their homelands' traditions, issues, concerns, hopes and aspirations." These characteristics have global effects that are not limited to trade, which includes the movement of capital to and from transnational regions and the migration of thousands of individuals, it will also affect perceptions of identity, nationality, and democracy.
Download the article from SSRN at the link.

November 6, 2020

Call For Submissions: Law and Society Association Meeting, 2021 @law_soc

 

The Law and Society Association has issued a Call For Submissions for its 2021 Meeting in Chicago and virtually. The dates are May 27-30,  and the theme is Crisis, Healing, Re-Imagining. Here is a link to LSA's website and information about the Call. 

November 5, 2020

Stern on Proximate Causation in Legal Historiography @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Proximate Causation in Legal Historiography in History and Theory (2020). Here is the abstract.
The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.
Download the article from SSRN at the link.

November 3, 2020

Bragagnolo on Crossing Temporal Boundaries: Muratori's Notetaking Practice and the Material Circulation of the Thinking on Law Between the 16th and 18th Centuries

Manuela Bragagnolo, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for European Legal History, is publishing Crossing Temporal Boundaries. Lodovico Antonio Muratori’s Notetaking Practice and the Material Circulation of the Thinking on Law between the 16th and 18th Centuries in Illuminismo di frontiera: riscrivere i limiti giuridici (Francesco di Chiara, Giacomo Demarchi, Elisabetta Fiocchi, Belinda Rodríguez Arrocha, eds., Madrid, Dykinson) (forthcoming). Here is the abstract.
In recent years more and more attention has been paid to the various implications of the so-called ‘material turn’ for legal history. While the ‘filing approach’ focused upon the role of ‘paperwork’ in the making of law, the legal historical methodology recently integrated the book history claim to look at the interconnection between form and content, considering legal books as material objects, especially dealing with the circulation of law and legal ideas. This article offers another approach to using materiality as a tool for doing legal history. It focuses on the interdependence between handwritten notebooks and legal thinking. In particular, I explore the notetaking and excerpting practices of one of the leading figures of the cultural, political and religious life of the first half of the Italian Settecento, Lodovico Antonio Muratori (1672-1750), showing how this practice had an impact on the production of Italian 18th-century legal thinking.
Download the essay from SSRN at the link.

Foster on Statutory Construction and Biblical Hermeneutics--Law in the Service of the Gospel? @NeilJamesFoster

Neil James Foster, Newcastle Law School, has published Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel? at 252 St. Mark's Review 106 (2020). Here is the abstract.
Explores similarities between statutory interpretation techniques used by courts, and principles of Biblical interpretation used by Bible scholars.
Download the article from SSRN at the link.

November 2, 2020

Women Lawyers on Film and in Television @UTexasLaw @LSULawCenter

A piece by my former student, Danielle Maddox Kinchen: Only the Best and the Brightest: No Room for the Average Female Lawyer in the 21st-Century Cinematic Legal Profession, 21 Tex. Rev. Ent. & Sports L. 55 (Fall 2020). Enjoy!

October 30, 2020

Balkin on How Lawyers and Historians Argue About the Constitution @jackbalkin @YaleLawSch

Jack M. Balkin, Yale Law School, is publishing Lawyers and Historians Argue About the Constitution in volume 35 of Constitutional Commentary. Here is the abstract.
Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do. According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions. To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either. The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.
Download the article from SSRN at the link.

October 22, 2020

Position Open: FRONTLINE Fellow, Documentary Film Legal Clinic @UCLA_Law




 The UCLA School of Law is accepting applications for a FRONTLINE Fellow for the Documentary Film Legal Clinic.


The Fellow will support the Clinic’s activities and supervise the work of the student-clinicians. This is a full-time position for a two-year term, and it is benefits eligible. The expected start date is flexible but anticipated to be late 2020. To ensure full consideration, applications should be received by 11/21/20 but will be considered thereafter until the position is filled.

More information about the posting is attached, and the application is available here. You are encouraged to share the announcement widely.

Below is the announcement from UCLA School of Law.

UCLA School of Law

FRONTLINE FELLOW,

DOCUMENTARY FILM LEGAL CLINIC

Job Description

 

UCLA School of Law is seeking a highly energetic and motivated individual with a significant interest in entertainment, media and intellectual property law to serve as the FRONTLINE Fellow for the Documentary Film Legal Clinic (Clinic) at the UCLA School of Law.

 

The FRONTLINE Fellow will work under the supervision of the Director (“Director”) of the Clinic, Dale Cohen, who is also Special Counsel to FRONTLINE, and collaborate closely with the Associate Director of the Clinic, Daniel Mayeda, and other administrators and faculty to develop clinical, experiential, and pro bono opportunities that ensure students receive high-quality educational experiences. The FRONTLINE Fellow will also take on substantial responsibility for the development and operation of a documentary filmmaker education program – tentatively titled “What Doc Filmmakers Should Know About the Law”. We anticipate this program will be offered will offered at documentary film festivals and other venues beginning in the Spring 2021 semester. 

 

About the Clinic:

The Clinic
launched in 2018 with a two-fold mission: 1) to prepare future media/entertainment lawyers by providing live-client clinical experience to UCLA law students; and 2) to provide pro bono legal services to independent filmmakers representing diverse viewpoints and telling important stories about our world. Approximately fifteen to twenty students work in the Clinic each semester, typically working in three or four-person teams.  Each clinical team provides counsel and services to several filmmakers each semester, covering a wide range of transactions and issues, including:  copyright law; newsgathering; libel, privacy and First Amendment issues; content licensing and business formation; insurance and liability issues and contract negotiation and drafting. The Clinic does not handle litigation for clients.

The Clinic has achieved notable success in its first few years. It has established partnerships with prominent film organizations, including the Sundance Institute, the International Documentary Association (“IDA”) and FilmIndependent (“FI”), each of which regularly refer filmmakers and grantees to the Clinic for legal support.  Students coming out of the Clinic have secured coveted positions at several of the best media/entertainment law firms in the country and applications for the Clinic far exceed the number of available slots. Application from documentarians have increased with each successive semester and the Clinic’s clients have achieved notable success, appearing at prestigious festivals, including the Sundance and South by Southwest film festivals, and airing on prestige networks, including HBO and PBS.  The Clinic has also worked closely with filmmakers and personnel responsible for producing films for the award-winning PBS series FRONTLINE.

The Clinic benefits from the many advantages offered by UCLA’s School of Law.  Through the Ziffren Institute for Media, Entertainment, Technology, and Sports Law and other programs, UCLA offers one of the nation’s most comprehensive and innovative approaches to the study of entertainment, media, and intellectual property law. UCLA Law is home to many leading scholars, alums and practitioners in these subjects and our programs, location and faculty therefore draw a student body with a strong interest in media, entertainment and intellectual property. The FRONTLINE Fellow will have the opportunity to join other leaders in these fields on the UCLA campus here in Los Angeles.

About the Position:

The Fellow will report to the Director and collaborate with the Associate Director of the Clinic to support the Clinic’s activities and supervise the work of the student-clinicians.  This is a full-time position for a two-year term, and it is benefits eligible. Salary
will be commensurate with qualifications and experience. Expected start date is flexible but anticipated to be late-year, 2020.

 

Key Responsibilities:

  • Provide supervision of students in the Clinic, including feedback and mentoring.
  • Assist in the management of ongoing client matters, ensuring that client counseling and services are provided in a timely and professional manner, including during transitions between semesters and over the summer.
  • Assist with the development of the Clinic’s legal training program for documentary filmmakers.
  • Work with the Director and Associate Director of the Clinic to develop and maintain relationships with documentary film organizations and festivals, including the International Documentary Association, the Sundance Institute and Film Independent, and coordinate education programs at diverse festivals and other venues, including the Sundance Festival, South by Southwest, AFI Docs, Hot Docs, Double Exposure and others.

 

Qualifications:

 

Candidates must have a J.D. from an ABA-accredited law school, plus admission to the California Bar or willingness to sit for the California Bar. Additional work experience, particularly in relevant areas of the law, the media industry or a judicial clerkship is desirable, but not required.

 

The successful candidate should demonstrate strong verbal and interpersonal communication skills, as well as the ability to communicate effectively in writing. The successful candidate should also demonstrate the ability to establish and maintain effective working relationships within the law school and university as well as with external partners. In addition, the Fellow should possess strong time management, organizational, planning skills and a commitment to educating our students and the documentary film community.

 

Applications:

 

Confidential review of applications, nominations and expressions of interest will begin immediately and continue until an appointment is made. To ensure full consideration, applications should be received by 11/21/20 but will be considered thereafter until the position is filled. Please apply online at https://hr.mycareer.ucla.edu/applicants/Central?quickFind=79422

 

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy, see: http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct

 




Sunstein on Textualism and the Duck-Rabbit Illusion @CassSunstein @Harvard_Law

Cass R. Sunstein, Harvard Law School, has published Textualism and the Duck-Rabbit Illusion. Here is the abstract.
Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.
Download the article from SSRN at the link.

October 21, 2020

Perez on Tolerance of Incoherence in Law, Graded Speech Acts, and Illocutionary Pluralism

Oren Perez, Bar-Ilan University Faculty of Law, is publishing Tolerance of Incoherence in Law, Graded Speech Acts and Illocutionary Pluralism in Legal Theory. Here is the abstract.
One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.
Download the article from SSRN at the link.

October 17, 2020

Tiersma on The Origins of Legal Language

ICYMI: The late Peter Tiersma, Loyola Marymount, University, published The Origins of Legal Language in The Oxford Handbook on Language and Law (L. Solan and P. Tiersma, eds., 2010). Here is the abstract.
This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.
Download the essay from SSRN at the link.

October 15, 2020

Dedek on Out of Site: Transnational Legal Culture(s) @LawMcGill

Helge Dedek, McGill University Faculty of Law, is publishing Out of Site: Transnational Legal Culture(s) in The Oxford Handbook of Transnational Law, P. Zumbansen ed., Oxford: Oxford University Press, Forthcoming. Here is the abstract.
Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) became more and more visible in the last decades of the twentieth century, “culture” has figured prominently in many literature that theorize the post-national condition. Yet despite studying similar phenomena of displacement, fragmentation and hybridization, in legal academia, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and trans-nationalization. Although some authors have indeed attempted to ope-rationalize the concept of culture in grappling with effects of legal globalization, the emerging field of transnational law never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of "culture" in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional legal pluralism also may limit its scope and create theoretical blind spots.
Download the essay from SSRN at the link.

October 14, 2020

Graphic Justice Discussions 2020, Call For Papers, Closes October 19, 2020 @LexComica

 

This is a reminder that the call for papers for Graphic Justice Discussions 2020, the annual conference of the Graphic Justice Research Alliance, is closing on 19 October 2020.

 

The event is being hosted online by Middlesex University on 8 December 2020, with the theme ‘Graphic Justice in Times of Crisis’. See full details here: https://graphicjustice.org/gjd-2020/.

 

The Graphic Justice Research Alliance is a research community at the intersections of law, comics, and justice.

October 13, 2020

Green on Erie and Constitutional Structure: An Intellectual History @TempleLaw

Craig Green, Temple University School of Law, is publishing Erie and Constitutional Structure: An Intellectual History in the Akron Law Review (2019). Here is the abstract.
This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers. The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.
Download the article from SSRN at the link.

October 11, 2020

Eskridge, Slocum, and Gries on The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning @EskridgeBill @PacificMcGeorge @YaleLawSch

William N. Eskridge, Yale Law School, Brian G. Slocum, McGeorge School of Law, and Stefan Gries, UC Santa Barbara Department of Linguistics, are publishing The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning in volume 119 of the Michigan Law Review. Here is the abstract.
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.
Download the article from SSRN at the link.

October 6, 2020

Call For Nominations: Harold Berman Award for Excellence in Scholarship

 

Call for Nominations: Harold Berman Award for Excellence in Scholarship 

 

The AALS Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2019 and July 15, 2020. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award.  

 

Nominations should be sent to Thomas C. Berg (TCBERG@stthomas.edu), Chair of the Berman Prize Committee, by October 9, 2020. The winner will receive an award plaque and be recognized at the section’s program at the AALS annual meeting in January 2021. Thanks to the members of the Prize Committee: Thomas Berg (St. Thomas-Minnesota), Chair and Nathan Chapman (Georgia), Marie Failinger (Mitchell Hamline), Rick Garnett (Notre Dame), Leslie Griffin (UNLV), and Mark Storslee (Penn State). 

 

October 4, 2020

Call For Proposals: 2021 AAIHS Conference on "The West" @AAIHS

The theme for the 2021 African American Intellectual History Society's Sixth Annual Conference is "The West." It will be a virtual conference. The society's conference committee is accepting individual proposals until October 15. Here's more about the conference.



“The West” is a significant, but ambivalent, concept in the diasporic Black experience. From a hegemonic perspective, imperial governments and white intellectuals have used the concept to demarcate the supposedly “civilized” from the “uncivilized,” and the modern from the pre-modern. Globally, it has been used to divide some ethnic and racial groups while coalescing others. “The West” is also a physical location, encompassing various regions, nations and states primarily in Europe, the Americas, Australia, New Zealand, and neighboring islands.

 

In the United States, “the West” includes a vast and diverse region, typically including the states west of the Mississippi River. By force or choice, voluntarily or involuntarily, Black people immigrated and migrated westward. For many Black people in the US South, especially during the era of Jim Crow, “the West” represented a new beginning. However, Black people migrating west soon learned the landscape offered a complex racial geography that both met and fell short of their expectations.

 

We invite scholars to think deeply about the complicated and often conflicted relationship between Blackness and “The West” (as a concept, imagined geography, and physical space). We encourage proposals that grapple with these and other questions: a) What does “The West” mean in the contemporary moment of Black life? b) From the early modern period until our contemporary reality, how have Black people in the Americas and around the world navigated “The West” in terms of principle, imagined geography, and physical space? c) What can interactions between Indigenous peoples and peoples of African-descent in the West do to enlighten us about the concept of the West? d) Can Black people, as a historically subjugated population, represent and embody “The West?” And, perhaps just as importantly, why would they want to?

 

AAIHS welcomes individual proposals for abbreviated presentations (5-6 minutes) that consider “The West” from a variety of perspectives, including, but not limited to, gender, sexuality, religion, digital humanities, politics, class, popular culture, art, literature, and environmental justice. Each proposal will be considered for inclusion in one of the featured conference sessions, which will be scheduled remotely on March 19 or March 20, 2021. Additionally, the conference committee will identify proposals to consider including in a forthcoming special forum AAIHS is organizing for Modern Intellectual History, a leading journal that publishes scholarship in intellectual and cultural history from 1650 to the present. Invited authors will submit a full draft of a journal article no later than December 30, 2021.

 

Finally, submitted proposals will also be considered for inclusion in a forthcoming AAIHS edited volume based on the 2021 conference theme. This year, AAIHS will not be accepting proposals for full panels. We are only accepting proposals for individual abbreviated presentations. The conference committee, in consultation with the AAIHS board, will select proposals to include in featured panels (and in the forthcoming special journal issue and edited volume). AAIHS invites scholars at various ranks and affiliations (from graduate students to senior faculty and independent scholars) to submit proposals for consideration. Each proposal should include a title and approximately 500 words, clearly explaining the paper’s argument; methods and methodologies; interventions; and engagement with the conference theme.

 

Submissions should also include a short CV (1-3 pages in length), highlighting previous publications and presentations, if applicable. Proposals should be submitted here no later than 11:59pm EST on October 15, 2020.

October 3, 2020

Barzun on Catharine MacKinnon and the Common Law @UVALaw

Charles L. Barzun, University of Virginia School of Law, has published Catharine MacKinnon and the Common Law as Virginia Public Law and Legal Theory Research Paper No. 2020-69. Here is the abstract.
Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power. This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.
Download the article from SSRN at the link.

September 24, 2020

Call For Submissions: Hedgehogs and Foxes Election Haiku Contest @HedgehogsFoxes

Call for Submissions

Hedgehogs and Foxes Election Haiku Contest

Hedgehogs and Foxes welcomes Haiku submissions from poets and from those who dabble, especially writers from among the legal academy. As you know a Haiku is a type of short form poetry that consists of three phrases. The first phrase contains 5 syllables, the second 7 syllables, and the final 5 syllables.

For example:

            Consider me
            As one who loved poetry
            And persimmons.

            By Masaoaka Shiki

The theme for this contest: Election 2020

Entries may be serious, emotional, spooky, snarky, or funny. We’re all on the 2020 rollercoaster, and anything could happen! What’s on your mind, and how might you express it in seventeen syllables?

H&F will publish the top-five Haiku submissions, as voted on by our Editorial Board. All submissions will receive grand applause from the Editorial Board, including the little hand claps in Zoom, and the winning submission will surely receive tremendous adulation from legal scholars, at least until the next election cycle.

Please email your Haiku submissions to Editorial Board Member, Joshua Aaron Jones: jj125@iu.edu. Submissions should be emailed no later than midnight on October 15. We hope to publish by Sunday, November 1. The email subject line should read “H&F Haiku Submission – Your Name.” Please upload your Haiku in Word format and without your identifying information, as we will judge the Haikus anonymously. For all questions, please email Joshua.

Hedgehogs and Foxes (HaF) is led by Editor in Chief Christine Corcos, Associate Professor of Law at Louisiana State University Law Center. HaF collects and integrates information and techniques that lend themselves to the interdisciplinary study of law and the humanities, including literature, film, television, art, music, drama, history, and related disciplines. We provide research tips, teaching materials, interactive materials, interviews, essays, research articles, news, book reviews, poetry, art, and other original publications of interest to scholars in the area. Submission of all relevant media are accepted on a rolling basis. For other submissions or queries, please email Christine Corcos at ccorcos@lsu.edu. For more information about HaF, please visit us at https://hedgehogsandfoxes.org/.

 

September 19, 2020

Smith on The Mid-Victorian Reform of Britain's Company Laws and the Moral Economy of Fair Competition Enterprise & Society @Laurier

David Chan Smith, Wilfred Laurier University, has published The Mid-Victorian Reform of Britain’s Company Laws and the Moral Economy of Fair Competition Enterprise & Society . Here is the abstract. 

This paper reconstructs the history of the reform of Britain’s company laws during the 1850s and makes three major arguments. First, the Law Amendment Society was the driving force for reform and organized the campaign for change. Second, the advancement of working-class interests and ideas of fairness were central to the conceptualization of these reforms and the course of their advocacy. Company law reform was broadly conceived to include the revision of the law of partnership, corporations, and cooperatives to create a level playing field in which smaller entrepreneurs could compete against established capitalists. Finally, central to this campaign was the institutional logic of “fair competition.” Socialists and liberals both used this logic, demonstrating how moral ideas can shape organizational change. 

Download the article from SSRN at the link.

September 17, 2020

Contributions Wanted: Popular Music and Criminal Justice @PopularMusicJnl

Seeking Contributions

Contributions are invited to a special issue of Popular Music on the complex interface between rap music (taken in its broadest sense to include mainstream rap, gangsta rap, activist rap, drill, grime, etc.) and criminal justice systems around the world.

 

Rap music is an international youth-cultural powerhouse and, while its spread has been celebrated, it has also been attended by mounting criminalisation. This special issue asks researchers to explore the policing and prosecuting of rap and how this has been framed in media reporting. It also considers what might make rap susceptible to such state criminalisation and how rappers, communities, civil liberties groups, defence lawyers, and scholars have come to challenge the state weaponisation of rap.

 

The use of rap music in criminal and civil proceedings has emerged as a well-documented issue of public concern in the US—dubbed ‘Rap on Trial’ (Nielson and Dennis; Nielson and Kubrin; Dennis; Dunbar, Kubrin and Scurich). However, outside the US, it is much less understood and there is a pressing need for more scrutiny and critique. This special issue is particularly interested in work that addresses case studies and trends in the global South; in Britain and other non-US parts of the global North; and in comparative work on the US in relation to other countries.

 

We welcome contributions from a range of disciplines (law, popular music, media studies, sociology, criminology, cultural studies, linguistics, socio-psychology, etc.). We believe this topic—situated at the intersection of law and culture—opens significant opportunities for ambitious interdisciplinary work. We’re keen on approaches that open outwards from concrete discourses, poetics, policies and practices to expose broader social trends, institutional processes, and critical concepts that lay bare state violence (racism; economic injustice; overpolicing, etc.) and that offer radical critiques. We are also keen on applied work, and contributions that engage with musicians, communities, activists, and criminal justice professionals.

 

Further details:

https://www.cambridge.org/core/journals/popular-music/prosecuting-and-policing-rap-cfp

 

DEADLINE FOR ABSTRACTS: 1ST OCTOBER 

 

Bandes and Feigenson on Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom @BandesSusan @DePaulLaw @QuinnipiacU

Susan A. Bandes, DePaul College of Law, and Neal Feigenson, Quinnipiac University School of Law, are publishingV Vrtual Trials: Necessity, Invention, and the Evolution of the Courtroom in volume 69 of the Buffalo Law Review. Here is the abstract.
Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.
Download the article from SSRN at the link.

September 16, 2020

Toussaint on Blackness as Fighting Words @EtienneT_Esq

Etienne Toussaint, UDC School of Law, is publishing Blackness as Fighting Words at 106 Va. L. Rev. Online (2020). Here is the abstract.
The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the era of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing? In response, much in the way Cheryl Harris revealed Whiteness as Property, this Essay suggests and defends Black identity itself, or Blackness – whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square – as “fighting words” in the consciousness of America, a type of public speech unprotected by the Constitution. The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media. Yet, the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the fire of righteous indignation burning in the hearts of minoritized citizens. This dynamic reflects unresolved tensions in the First Amendment’s treatment of race relations in America. Even more, it exposes the role of policing in smothering the Constitutional rights of Black and Brown citizens. This Essay provides three contributions to the ongoing discourse on policing in the United States. First, it reveals how unresolved racial tensions in the First Amendment – focusing specifically on ambiguities in the fighting words doctrine – perpetuate the racially biased, aggressive, and supervisory culture of American policing. Second, it analyzes how such unresolved racial tensions cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police officers, yet avoid acts of protest for fear of bodily harm or arrest. Third, it illuminates the embeddedness of racism in American policing culture, more generally; a culture that not only constructs and reconstitutes the racial social order, but also degrades the dignity of Black and Brown citizens. Collectively, these insights lend support toward demands for police abolition from BLM activists. As this Essay concludes, until we as a nation wrestle with the unresolved racial subtext of modern policing – a racist culture woven into law that not only silences the legitimate protests of minoritized citizens in violation of their First Amendment rights, but also rationalizes callous violence at the hands of law enforcement – Black America will remain a peril to the veil of white supremacy that looms over the American constitutional order.
The full text is not available from SSRN.

September 12, 2020

Italian Law Journal Releases Volume 6, Issue 1 (2020) and Issues Call For Submissions @theitalianlawjo

The Italian Law Journal has just released Volume 6, Issue 1 (2020), which you can view and download for free at www.theitalianlawjournal.it/current2/. We wish to thank our dedicated readership and all the authors for their valuable contributions.


We are delighted to announce that submissions are now open for Volume 6, Issue 2 (2020), which is scheduled to be published in January 2021. Articles complying with the editorial criteria and the cultural mission of the Journal (www.theitalianlawjournal.it) are welcome.

Please submit your article no later than 15 October 2020, or 31 October 2020 if you are a native English speaker and your article does not require editing for good English grammar and style.

We accept submissions through Scholastica and ExpressO, or you can reach out to us directly at info@theitalianlawjournal.it. Further information on the general topics and aims of our Journal, as well as on the submission guidelines and the double-blind peer-review process is available at www.theitalianlawjournal.it.


September 9, 2020

Call For Papers: Polemos: Journal of Law, Literature and Culture @degruyter_lit

 

We are delighted to announce a Call for Papers for the next volume of Pólemos: Journal of Law, Literature and Culture, thematised ‘JurisApocalyse Now!’ General submissions that do not address the theme are also welcome for our research section.
 
The forthcoming volume is scheduled for publication in April 2021.
 
If you have an interest in publishing in this edition of Pólemos, please submit your abstract (maximum 500 words) to polemos@scu.edu.au by 30 October 2020. Successful submissions will be notified by the editors shortly thereafter, with further details about submission timelines to be advised at that time.  
 
About Pólemos


Founded in 2007, Pólemos is a leading journal of the growing interdisciplinary research fields of law and literature, law and the humanities and cultural legal studies, showcasing in its issues groundbreaking themes such as ‘Law and Religion’, ‘Law and the Image’, ‘Law and Power’, ‘Law and Equity’ – to name a few. Originally started as an Italian-language journal, Pólemos was re-launched with De Gruyter, in conjunction with the School of Law & Justice, Southern Cross University (Australia), as an international journal with contributions in English that covers the full range of academic issues in law, literature and culture.
 
The aim of Pólemos is to call attention to, promote and provide a forum for developments in global scholarship dealing with the rich array of topics within the many cultures of law and the laws of culture – aesthetic, textual, semiotic - and to act as a sounding board for innovative critical ideas and new interpretive perspectives, connecting the diversity of scholars working around the world in these exciting and trailblazing fields.
 
An overview of our latest issue (and past issues) can be found here. 
We look forward to receiving your submission.
 
More about the journal here at its website. 

September 8, 2020

Plater on Poisoning, Women, and Murder in 19th Century Australia @Adel_Law_School

David Plater, South Australia Law Reform Institute, University of Adelaide Law School, is publishing 'Assuredly There Never Was Murder More Foul And More Unnatural'? Poisoning, Women And Murder In 19th Century Australia in volume 25 of the Canterbury Law Review (2019). Here is the abstract. 

This article examines crimes committed by women involving the use of poison, notably upon their husbands, in 19th century colonial Australia. It draws on the extensive press archives of the period to determine if the historical and British perceptions and experiences of female poisoners of the 19th century were translated to 19th century Australia. The notion of the supposedly devoted wife stealthily poisoning her unsuspecting husband aroused particular revulsion and was viewed as a threat to social order and as the ultimate betrayal of the female role. Women accused of poisoning their husbands might therefore expect an uphill task within the male dominated criminal justice system of the period in escaping conviction and, if convicted, were unlikely to be regarded with sympathy and as worthy of a grant of mercy. However, this article suggests that the reality in colonial Australia was subtler and more complex than the hostile and often exaggerated perception of female poisoners might indicate. Women accused of capital crimes (including murder) involving poison upon their husbands had every expectation of acquittal and, even if convicted, such offenders were still often regarded with sympathy and might even be spared the “last extremity of the law”. 

The full text is not available from SSRN.

September 7, 2020

Call For Submissions: Doctoral Forum In Law & Humanities

 Doctoral Forum in Law & Humanities

10 & 11 December 2020

University of Lucerne

 

The Institute for Interdisciplinary Legal Studies - lucernaiuris invites submissions for the third meeting of the Doctoral Forum in Law & Humanities to be held at the University of Lucerne, Switzerland, on 10 & 11 December 2020.

 

The forum is an interdisciplinary platform for PhD students and early career researchers working within and between law and the humanities. Its aim is to bring together a diverse group of young scholars for open discussion of current projects, urgent legal-political concerns, and wider theoretical and methodological issues raised by law and legal theory.

 

The title of this year’s meeting is Crossing Frontiers: The Law From Within and Without. We interpret the theme broadly and welcome contributions that (re-)think the law from diverse internal and external perspectives. Possible topics might include (but are certainly not limited to):

 

  • Artistic Representations and Iconography of Law and Justice
  • Narrative Negotiations of Law
  • Law and the Imagination
  • Metaphors in Law
  • Media Law as Technology Law
  • Diversity and Plurality in Law
  • Rights, Justice and Vulnerable/Disadvantaged Groups

 

Proposals for 15-minute presentations (300 word abstract plus short biographical note and contact details) should be sent to lucernaiuris@unilu.ch by 16 October 2020. Accepted applicants will be asked to submit a short working paper in advance of the meeting to encourage constructive discussion and feedback. Further details can be found in the flyer attached.

 

** COVID-19: We are planning on running the event in physical format, though virtual attendance may be possible for a limited number of participants. Should the situation with COVID-19 require it, the forum may switch entirely to a virtual mode.

 

--

Institute for Interdisciplinary Legal Studies - lucernaiuris

University of Lucerne

Faculty of Law

Frohburgstrasse 3 | Postfach 4466 | 6002 Lucerne, Switzerland

lucernaiuris@unilu.ch | www.unilu.ch | www.lucernaiuris.ch

September 4, 2020

Janet Malcolm On Learning To Be a Witness

From the New York Review of Books: Janet Malcolm writes about the assistance Sam Chwat gave her in preparing for her appearance in the famous retrial of Masson v. Malcolm. She says in part: 

The transformation had two parts. The first was the erasure of the New Yorker image of the writer as a person who does not go around showing off how great and special he or she is. No! A trial jury is like an audience at a play that wants to be entertained. Witnesses, like stage actors, have to play to that audience if their performances are to be convincing. At the first trial I had been scarcely aware of the jury. When Morgan questioned me, I responded to him alone. Sam Chwat immediately corrected my misconception of whom to address: the jury, only the jury. As Morgan had been using me to communicate to the jury, I would need to learn how to use him to do the same.


Link to the Supreme Court ruling here.  

More about the litigation in the selected bibliography below.

Kathy Roberts Forde, How Masson v. New Yorker Has Shaped the Legal Landscape of Narrative Journalism 10 Journal of Communication Law and Policy 101 (2010).

Kathy Roberts Forde, Literary Journalism on Trial (University of Massachusetts Press, 2008).

Judith Haydel, Masson v. New Yorker Magazine (1991),

September 3, 2020

Oseid on Judge John T. Noonan Jr. and Writing With Empathy to Prove That the Human Person Is Central to the Law

Julie A. Oseid, University of St. Thomas School of Law (Minnesota), is publishing I See You: Judge John T. Noonan, Jr. Writing with Empathy to Prove that the Human Person is Central to the Law in the University of St. Thomas Law Journal (2021). Here is the abstract.
Long before he became a judge, Judge John T. Noonan, Jr. recognized and highlighted “the central place of the human person in any account of the law.” One of his intellectual legacies as a federal circuit court judge was recognizing the persons, not masks, who appeared before him. How did he do it? Empathy. Judge Noonan’s capacity for empathy as a judge extended beyond his ability to step into the shoes of someone whose life was very different from his own—he was able to write about that person’s encounter with the law in a way that makes you, the reader, also relate to the person with empathy. This article focuses on Judge Noonan’s opinions in three areas of law spanning three decades: civil rights, employment, and criminal law. Judge Noonan believed that you cannot love someone you cannot see. I will focus on how the details of his judicial writing—word choice, concision, and narrative techniques—furthered his philosophy of respecting the dignity of every human. He saw them. We do, too.
Download the article from SSRN at the link.

Mootz on Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence @jaymootz

Francis Joseph Mootz, McGeorge School of Law, is publishing Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence in volume 20 of the Nevada Law Journal (2020). Here is the abstract.
The “new textualist” approach to legal interpretation, most closely identified with the late Justice Scalia, argues that the meaning of a legal text is just the ordinary meaning that the words would have had for an average competent speaker of the language at the time of their enactment as a statute. Too often, judges appear to be drawing on their vague intuitions about “ordinary meaning,” usually under the cover of citing to malleable and contradictory dictionary definitions. This poses a serious problem, because a primary justification for new textualist methods is the ability to discern legal meaning in an objective manner that rises above a particular judge’s subjective desires. Some legal theorists recently have turned to corpus analysis, claiming that this tool developed by professional linguists provides the empirical methodology capable of identifying the ordinary meaning of words used in a legal text by rigorously examining how the words generally were used at a given point in the past. Although not foolproof, legal scholars argue that corpus analysis often will be able to identify the ordinary meaning of words and phrases as they were used when the legal text was adopted, thereby providing an objective means to specify legal meaning under the new textualist approach. The lure of corpus analysis for legal theorists is the most recent in a long history of similar Siren calls. We are seduced by the promise of a methodology that claims to apply the law to a specific case in a manner that permits observers to monitor and assess whether that application of the law is objectively correct. But this allure inevitably founders on the rocks, leaving us unfulfilled, disappointed, and searching for the next promising suitor to lead us to a method for determining objectively correct answers. In this essay I argue against the deep impulse that motivates the contemporary turn to corpus linguistics precisely because this enticing “new” method re-inscribes the profoundly misguided theoretical premise of modern law that there are clear lines between “the law” and its “application to a specific case.” In his oration at the commencement of the 1708 term at the University of Naples, Giambattista Vico lamented the abandonment of rhetorical understanding and the misguided embrace of Cartesian analysis as the model of genuine knowledge. The past three centuries have borne witness to this slavish adherence to a focus on objective and empirical inquiry, neglecting the unavoidable role of rhetorical persuasion in legal meaning. My essay proceeds in the spirit of Vico’s great oration. I urge that, at long last, we should return to a conception of legal meaning as rhetorical knowledge.


Download the essay from SSRN at the link.