Davies on Spiro T. Agnew In His Own Words: 1973 and 1983 @horacefuller @GB2d

Ross E. Davies, George Mason Law School; The Green Bag, has published Spiro T. Agnew in His Own Words: 1973 and 1983 at 26 Green Bag 2d 327 (2023). Here is the abstract.

In 1983, Spiro T. Agnew inscribed a copy of his autobiography to a young recipient, with “the fervent hope that he will acquire a profound suspicion of the news media. History is only the accumulated perceptions of those in control of the machinery for its dissemination.” Agnew knew what he was talking about, having participated deeply — and profitably — in the dissemination of his own history. Oddly, a complete and accurate transcript of the nolo contendere proceedings that were an important part of that history is difficult to find. And so here it is, presented in the hope that its dissemination in the lowly but readily accessible Green Bag will contribute to a more complete and accurate accumulation of perceptions about Spiro T. Agnew, his words, and his deeds. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Download the article from SSRN at the link.

Litt on From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings @LucyJLitt @UMKCLawReview

Lucy J. Litt, Harvard Law School, has published From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings at 92 UMKC L. Rev. 121 (2023). Here is the abstract.

The use of rap lyrics as evidence in criminal proceedings distorts the art form and heightens the risk of wrongful prosecutions. Rap music is complex and sophisticated; it is an art form with its own history, norms, and conventions. Like other art forms (e.g., spy novels by John le Carré; ballets by George Balanchine; the Big Apple Circus; Shakespeare’s tragedies; Marvin Hamlisch and Edward Kleban’s “A Chorus Line;” or songs by Johnny Cash), 1 it serves as a creative outlet and can be a form of critical public commentary. Rap is an art form that often distorts or exaggerates reality. Unlike other fictional art forms (e.g., murder mysteries, TV crime show scripts), however, prosecutors increasingly introduce rap lyrics as evidence in criminal proceedings, where the real-life stakes can be very high. In 1987, the Washington Court of Appeals considered, and denied, the admissibility of violent writings as evidence; however, courts did not consider the specific question of rap lyrics until the United States Court of Appeals for the Seventh Circuit heard United States v. Foster in 1991 and concluded that the rap lyrics in question were admissible as evidence against the defendant rap artist. In the years since 1991, state and federal prosecutors have continued their practice of introducing rap lyrics and rap music videos in criminal proceedings against rappers(and even sometimes their friends and fans). Scholars and commentators who focus on these practices refer to the phenomenon as “rap on trial.” The courts vary in their decisions regarding rap on trial, with most courts and prosecutors having persistently failed to grapple with the complexity of the issues presented by its use. Troublingly, in the ensuing three decades, prosecutors, judges, and others in the legal profession have not sufficiently scrutinized the reliability of rap lyrics and the constitutional issues inherent in their misuse, in spite of studies that have shown that the introduction of rap lyrics as evidence infuses a heightened likelihood of unfair prejudice into the criminal legal process. Rap is a form of creative expression that was predominantly cultivated by Black and Brown men, and it has its origins in marginalized urban areas. The art form and its creators often invoke unsupportable negative stereotypes among jurors, and even judges. Prior legal and interdisciplinary scholarship, by experts such as Professors Andrea L. Dennis and Erik Nielson, has addressed the practice of, and problems presented by, “rap on trial.” Social science scholarship, such as Stanford University Sociology Professor Forrest Stuart’s Ballad of the Bullet, has explored the culture surrounding rap music and how that culture comes into tension with racially biased law enforcement and uninformed members of the general public. The scholarship that exists in this area tends to draw upon the convergence of these issues to propose holistic approaches to proposed reforms. This paper challenges prosecutors’ use of rap lyrics (and, by extension, rap music videos) as evidence against defendants in criminal legal proceedings: this practice often violates and undermines fundamental values of the United States justice system, the rules of evidence, and the Constitution; the practice also threatens to harm defendants, their loved ones, and their communities.

Download the article from SSRN at the link.

Morris on The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922-1930 @NomosVerlag

P. Sean Morris, University of Helsinki Faculty of Law, is publishing The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922 – 1930 in The Hope of Ages is in the Process of Realization: Establishing a World Court, 1920 – 1922 (Henri Waele and Christian Tams, eds., Nomos 2024). Here is the abstract.

This chapter examines the employment of international law as a concept in the early Advisory Opinions of the PCIJ (1922–1930). After a short review of the gradual evolution of the broader idea of the law of nations in the works of Christian Wolff and Jeremy Bentham, the central argument is that, even when the PCIJ invoked international law as a term or as an interpretative mechanism, this was often in relation to either the broader international legal environment of the 1920s, or general principles of international law. The majority of the Court’s early Advisory Opinions do not display any references to scholarship, and as such rarely invoked international law as a concept. This appears to reflect an effort to align with the shifting paradigms of the day concerning the law of nations, and the ‘new’ international law of the twentieth century. The analysis suggests further that the judicial practice consisted of a ‘jurisprudential mode’ which eventually gave way to one more closely premised on ‘mutual transactions’.

Download the essay from SSRN at the link.

Jewel on See[ing] That In a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing See That in a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee in the Georgetown Journal of Law & Modern Critical Race Perspectives (2023). Here is the abstract.

Jason Aldean’s music video for “Try That in a Small Town” aptly illustrates the thesis of this article, which is that when it comes to racism and the law, visual rhetoric has played and still plays an outsized role. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee. This is the same courthouse where, in 1918, a white mob violently lynched a young Black man. The song recounts a laundry list of dog whistle topics relating to urban crime, mentions a gun given to me by my grandfather, and then warns the audience “Well, try that in a small town.” The Country Music Network quickly took down the video after complaints that the subtext was undeniably racist and violent. Within Aldean’s video, the Maury County Courthouse stands as a warning of the lynching that occurred outside its doors and as a reminder that while the courthouse visually represents justice, that justice is not for everyone. When it comes to race, racism, and white supremacy, the United States is polarized about what we want to see and not see. Three recent Tennessee legal controversies illustrate how visual rhetoric, which carries so much persuasive power, has been deployed for evil, to staidly symbolize white supremacy, but also for good, to propel society toward racial justice and equity. The first controversy involves the display of Confederate memorabilia inside the jury deliberation room in a small Tennessee town. The second controversy illustrates how Tennessee’s heritage protection law prevents local citizens from removing Confederate monuments from public property. The third example explains how, under Tennessee’s divisive concepts acts, conservative parents censor truthful imagery depicting U.S. history regarding race. Just as Aldean’s video struck a chord nationally, the issues boiling up in Tennessee are broadly relevant because what is happening in Tennessee maps onto national jurisprudential and cultural trends. Many states have similar heritage protection acts that prevent the removal of Confederate monuments. And, many states have enacted anti-CRT, divisive concepts bills. This article will uniquely analyze these trends from a visual perspective. Drawing upon the disciplines of legal rhetoric and visual rhetoric, Part One explains the rhetorical concepts that apply to Confederate imagery in the courtroom, on the courthouse lawn, and in textbook illustrations. Part Two delves into the Confederate Jury Room cases, discussing the cases as well as interdisciplinary explanations for what these Lost Cause symbols mean historically and what they do to observers psychologically. Part Three will address Confederate monuments in Tennessee, explaining how Tennessee’s Heritage Protection Act (amended many times in a reactionary fashion) operates in a highly undemocratic fashion, preventing local citizens from exercising control over public spaces and reinforcing toxic and traumatic narratives that reinforce white supremacy and denigrate Black experiences. This Article argues that Congress should declare all Confederate monuments on public land to be a badge of slavery within the meaning of the Thirteenth Amendment. In so doing, various state heritage protection acts would be preempted by federal law, allowing local citizens to remove these statues. Finally, Part Four will address Tennessee’s anti-CRT, “divisive concepts” acts, particularly analyzing the role that visual rhetoric plays in these attempts to stifle truthful portrayals of history. This article will conclude by drawing together the threads and patterns contained within each scene.

Download the article from SSRN at the link.

Mosvick on Free Speech for None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War @nmosvick

Nicholas Mosvick, National Review Institute, Buckley Legacy Project, is publishing Free Speech for All or None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War as a Liberty & Law Center Research Paper. Here is the abstract.

Legal historians and First Amendment scholars have long appreciated the unique constitutional challenges of wartime conditions, from the questions of prosecuting seditious conspiracy and speech to interference with the military draft to public figures and newspapers calling to the public to oppose and obstruct the war effort. Unlike the major wars of the 20th century from World War I to the Vietnam War, the American Civil War saw no free speeches before the Supreme Court during the war and therefore, the constitutional battles on major free speech questions generally took place outside courtrooms and in the area of public discourse. The most significant wartime free speech case resulted from the military arrest and trial of one of President Abraham Lincoln’s greatest domestic political opponents during the war, Democratic Congressman Clement Vallandigham of Ohio. That particular case, along with many other instances of riots, attacks on presses, arrests, and antiwar speeches, brought about a public constitutional debate in the partisan press in which both Democratic and Republican papers claimed fidelity to the founding principles of free speech and accused their opponents of rank hypocrisy. This debate shows how constitutional principles and idea suffused the public discourse of antebellum and Civil War America.

Download the paper from SSRN at the link.

Moore on Salomon vs. Salomon @UCLLaws @hartpublishing

Marc T. Moore, University College London Faculty of Laws, is publishing Salomon vs Salomon in Landmark Cases in Company Law (V. Barnes and S. Wheeler, eds., Hart Publishing) (forthcoming ).

Salomon v Salomon is widely regarded as the most significant case in English and wider Commonwealth company law history. It is typically the subject of introductory company law lectures and textbook chapters throughout much of the common law world, and no proper account of the history of the business corporation is complete without it. Accordingly, few would disagree that Salomon is a landmark – if not the landmark – case in English company law. At the same time, though, Salomon is also one of the most misunderstood cases in English legal history, and even today I suspect that many students and even teachers of company law continue to labour under certain misapprehensions about the case. In this seminar, I will argue that, far from being a so-called “landmark” company law case, Salomon is a case that should never really have come to court in the first place, or at least that should never have had to proceed beyond the initial trial court stage. As such, the principal significance of Salomon’s case resides not on a doctrinal but rather on a factual level, in enabling the authoritative reputational redemption of the Jewish defendant Aron Salomon and his family in the face of a barrage of hostile, unfair and manifestly false imputations as to their perceived conduct, motives and character traits.

Download the chapter from SSRN at the link.

Call For Papers: University of Lucerne: In the Thick of Images: Law, History, and the Visual

From Steven Howe, University of Lucerne:

In the Thick of Images: Law, History, and the Visual 

Monday 10 & Tuesday 11 June 2024 
University of Lucerne 

CALL FOR PAPERS 

“Suppose that whatever we’ve done, felt, and thought has always happened in the thick of images.” (Anand Pandian, Reel Word: An Anthropology of Creation) 

The ‘visual turn’ has long been turning in critical and cultural studies of law (see Douzinas & Nead 1999). In the past twenty-five years, a growing body of scholarship has evolved that emphasises law’s “constitutive imbrication” (Crawley 2020) with an array of visual forms, and elaborates on the ways in which images “shape and transform legal life” (Sarat et al. 2005). Weaving together an eclectic set of theories, concepts, methods and materials, such studies refuse thin readings of images as merely illustrative of law, and invite us to think more deeply about their ideological and visual operations – about the meanings they carry and make available, about their material presence and affective effects, and about the cultural-political and cultural-legal work they perform across their multiple contexts of production, circulation and reception.

Much of this scholarship focuses on the contemporary conjuncture of law and visuality. Yet law’s imbrication with the visual is not exclusive to the present; law has always lived, happened and mattered “in the thick of images”. This is the starting point for our two-day conference, which seeks to explicitly foreground historical and historicist work on law and the visual. Situated at the disciplinary crossroads of law, history, visual cultural studies, art history, film and photography studies, In the Thick of Images invites multiple viewpoints and approaches to converge on ways of negotiating the entanglements of law, history and the visual – in various contexts, scales and timeframes.

Link to the full Call for Papers and other information

* Keynote speakers to be announced shortly

Proposals due by 19 January 2024 to laura.petersen@unilu.ch 

Convenors

Steven Howe (steven.howe@unilu.ch)
Laura Petersen (laura.petersen@unilu.ch)
Nicole Schraner (nicole.schraner@unilu.ch)

 

The conference forms part of the SNSF research project: Imagining Justice: Law, Politics and Popular Visual Culture in Weimar Germany

 

ICYMI: Contreras on Science Fiction and the Law: A New Wigmorian Bibliography @contreraslegals @sjquinney

ICYMI: Jorge L. Contreras, University of Utah College of Law, has published Science Fiction and the Law: A New Wigmorian Bibliography at 13 Harvard J. Sports & Ent. L. 63 (2022).

In 1908, Dean John Henry Wigmore compiled a list of novels that no lawyer could afford to ignore. Wigmore’s list, taken up by Professor Richard Weisberg in the 1970s, catalogs one hundred literary works from Antigone to Native Son, each of which offers insight into the legal system or the practice of law. This article undertakes a similar bibliographic exercise with respect to law and the literature of science fiction. While science fiction, as a literary genre, has its detractors, it cannot be denied that science fiction stories – whether in books, short stories, films or television shows – reach a vast audience and, for better or worse, influence popular perceptions and understanding of science and technology issues. This has been the case since the days of Jules Verne and H.G. Wells, but is especially true today. When we talk about genetic engineering, Brave New World, Gattaca and Jurassic Park are invariably mentioned. When we think about artificial intelligence, HAL, Skynet and other fictional depictions immediately come to mind. The surveillance society? Nineteen Eighty-Four, of course. These speculative fiction accounts inform the background intuition of judges, legislators and citizens when confronting novel legal issues that arise due to technological change. As such, it is important to understand the body of literature that forms these background intuitions. Accordingly, this article offers the first curated and categorized list of legal science fiction literature, following the model of Wigmore and Weisberg. It is classified according to doctrinal themes, and also includes a compilation of academic literature addressing issues of law in science fiction. It is hoped that the materials compiled here will serve as a useful resource for legal practitioners, policy makers and educators as they grapple with ever increasing legal challenges brought about by the rapid evolution of science and technology. [This is a draft - suggestions, comments and corrections are welcome]

Download the article from SSRN at the link.

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, is publishing Time and Tradition in Second Amendment Law in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Williams on American Exceptionalism as/in Constitutional Interpretation @BYULaw @GaLRev

Lucy Williams, Brigham Young University Law School, has published American Exceptionalism as/in Constitutional Interpretation at 57 Georgia Law Review 1071 (2023). Here is the abstract.

American exceptionalism—the idea that America is superior, chosen, and tasked with a unique mission—is a foundational part of America's political culture. Its themes regularly appear in political speeches, at campaign rallies, and at national celebrations. But exceptionalism also appears frequently in another, less obvious place: Supreme Court opinions. Scholars and pundits routinely scour these opinions to identify the jurisprudential theories and political leanings that drive case outcomes. But as yet, legal scholars have paid little attention to the exceptionalist themes in the Court's case law. Some legal scholars study the ways American constitutional law is distinctive, or exceptional, when compared to law in other countries, and many are eager to predict and explain the Supreme Court's behavior. But few analyze exceptionalism as a judicial ideology or worldview, and none consider whether exceptionalist commitments influence the Court's decisions. In this Article, I respond to this key omission by offering the first systematic study of American exceptionalism and Supreme Court jurisprudence. I argue that American exceptionalism is a powerful and important feature of Supreme Court decision making. Through close reading and rhetorical discourse analysis of five landmark Supreme Court decisions, I demonstrate that the Court frequently invokes and deploys exceptionalist themes when interpreting the Constitution. This Article also reveals that the Court relies on two distinct modes of exceptionalist rhetoric. The first, which I call accomplished exceptionalism, is self-celebratory and assumes that America will always be great. The second, which I call aspirational exceptionalism, is self-critical and treats American greatness as a contingent possibility. The Court's invocation of these modes is not random but instead correlates closely with the outcome in a case. Specifically, in cases upholding exercises of government power, the Court favors accomplished exceptionalism, but in cases affirming individual rights claims, it relies on the aspirational mode. These findings have important implications. The correlation between exceptionalism and case outcomes suggests that exceptionalism might have a causal effect on judicial decision making—that it, like judges' ideology or theories of statutory interpretation, might drive the Court to reach particular results. If this is so, exceptionalism has been hiding in plain sight—as neglected as it is ubiquitous—as an element in Supreme Court decision making. It is past time for scholars to give exceptionalism the same attention they have given to other outcome-determinative phenomena.

Download the article from SSRN at the link.

Casini on Addressing the Use of Rap Lyrics as Criminal Evidence @KCEsq @QuinnipiacLaw

Kevin Casini, Qiunnipiac University School of Law, has published Addressing the Use of Rap Lyrics as Criminal Evidence. Here is the abstract.

The judicial bias against rap music is a growing contributor to systemic racism that must be ended before it causes any more damage. Whether because of personally held beliefs, latent cultural insensitivity, or a win-at-all-costs prosecutorial approach to criminal trials that promotes an appeal to those traits in jurors, prosecutors should be bound from using the Constitutionally protected speech and expression in rap lyrics as evidence against criminal defendants. At an increasing frequency, courts across the country are making it known that they have no problem using a rapper’s lyrics against them in a criminal case. This practice is particularly egregious, not only because of its chilling effect on creativity but because it is specifically targeted against rap music and rap music alone; in other words, it is a practice targeted against Black defendants. Congress now needs to enact law expressly upholding, again, freedom of expression, and preventing that expressive speech from being weaponized against the communities that rely on it to express themselves, to tell the stories of their communities, and to create, and recreate, identity.

Download the article from SSRN at the link.

2024 Law and Humanities Workshop For Junior Scholars: Call For Participation

 2024 LAW AND HUMANITIES WORKSHOP FOR JUNIOR SCHOLARS

Call for Participation

Georgetown University Law Center, Stanford Law School, UCLA School of Law, the
University of Pennsylvania, and the University of Southern California Center
for Law, History, and Culture invite submissions for the 23d meeting of the
Law and Humanities Workshop for Junior Scholars, to be held at the UCLA School
of Law, on June 9-10, 2024.

ABOUT THE WORKSHOP

The workshop is open to untenured professors, advanced graduate students,
post-doctoral scholars, and independent scholars working in law and the
humanities. In addition to drawing from numerous humanistic fields, including
Black and Indigenous studies, history, literature, political theory, critical
race theory, feminist theory, and philosophy, we welcome critical, qualitative
work in the social sciences, including anthropology and sociology. While the
scope of the Workshop is broad, we cannot consider proposals that are focused
solely on quantitative social science research or that are limited to purely
doctrinal legal research. We are especially interested in submissions from
members of traditionally underrepresented groups and submissions touching on
themes of anti-racism and anti-subordination. We welcome submissions from
those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee,
between six and eight papers will be chosen for presentation at the Workshop.
At the Workshop, two senior scholars will comment on each paper. Commentators
and other Workshop participants will be asked to focus specifically on the
strengths and weaknesses of the selected scholarly projects, with respect to
subject and methodology. The selected papers will then serve as the basis for
a larger conversation among all the participants that may include themes
connecting all of the projects, as well as discussion of the evolving
standards by which we judge excellence and creativity in interdisciplinary
scholarship.

The selected papers will appear in a special issue of the Legal Scholarship
Network; there is no other publication commitment. (We will accommodate the
wishes of chosen authors who prefer not to have their paper posted publicly
with us because of publication commitments to other journals.) However, we
will only accept Workshop participants whose papers are true works in
progress; articles or chapters that are already in page proofs or are
otherwise unable to be revised by the time of the Workshop are ineligible.

The Workshop will pay the domestic travel and hotel expenses of authors whose
papers are selected for presentation. For authors requiring airline travel
from outside the United States, the Workshop will cover such travel expenses
up to a maximum of $1250.

SUBMISSION INSTRUCTIONS

Applications should include:
a 1500-2000 word summary of the paper (including footnotes or endnotes),
a 1-2 page bibliography,
in Microsoft Word (not PDF)
and, if your paper is a chapter in a book or dissertation, an optional 1-page
chapter outline of the larger project.

Applications are due on December 15, 2023.
If your application advances to the final stage of consideration, you will be
asked to submit the full paper on February 1, 2024. Please do not apply if you
will not have a full paper on February 1. The application is intended to be a
summary of existing, ongoing work rather than a proposal for new or planned
work.

Final paper submissions must be works-in-progress that do not exceed 10,000
words in length (including footnotes/ endnotes). A dissertation chapter may be
submitted, but we strongly suggest that it be edited so as to stand alone as a
piece of work with its own integrity. A paper that has been submitted for
publication is eligible for selection so long as it will not be in galley
proofs or in print at the time of the Workshop; it is important that authors
still be in a position at the time of the Workshop to consider comments they
receive there and to incorporate them as they think appropriate in their
revisions.

We ask that those submitting applications be careful to omit or redact any
information in the paper summary or the body of the paper that might serve to
identify them, as we adhere to an anonymous or “blind” selection process.
Applications (in Microsoft Word—no pdf files, please) will be accepted until
December 15, 2023, and should be sent by e-mail to:
Lawandhumanitiesworkshop@gmail.com. Please be sure to include your name,
institutional affiliation (if any), and phone and email contact information in
your covering email, not in the paper itself.

For more information, please send an email inquiry to
Lawandhumanitiesworkshop@gmail.com or visit 
our new website

Simon Stern, University of Toronto, Law & English, Chair
Martha Jones, Johns Hopkins University, History
Sherally Munshi, Georgetown University, Law
Riaz Tejani, University of Redlands, School of Business & Society
Nomi Stolzenberg, Law, University of Southern California
Martha Umphrey, Amherst College, Law, Jurisprudence, and Social Thought
Program Committee, 2024 Law and Humanities Workshop for Junior Scholars
The Law and Humanities Workshop for Junior Scholars is committed to anti-
racism both inside and outside the academy.

Gillmer on Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White @GonzagaLaw

Jason Gillmer, Gonzaga University School of Law, has published Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White. Here is the abstract.

This Article is a narrative history of a relationship between a white man named Richard and a Black woman named Laura that started in slavery and ended twenty-seven years later in a trial over whether they were husband and wife. The story follows some of the usual plotlines. Richard purchased Laura at a slave sale and brought her to his home in Missouri; he then married a white woman and they had a daughter together. Within a few years, however, that marriage fell apart, and soon after, Richard allegedly freed Laura and the two of them went to California and built a life together. Twenty years later, after Richard died, Richard’s long-lost daughter brought suit in a California courtroom. She sought to eject Laura from the home she shared with Richard on the theory she, rather than Laura, was Richard’s sole surviving heir and entitled to his large estate. This Article recreates the story of Richard and Laura to offer an intimate glimpse into the complexities of interracial relationships during slavery and the decades that followed. It is built out of the trial transcripts—which until now have remained hidden for 150 years—and relies heavily on the actual words of the lawyers, witnesses, and litigants to shape the narrative. The uniqueness of this approach is also what provides its value. Relying on their words and voices, this Article shines a light on how the parties and the participants saw their world, not on how others saw it for them. Richard and Laura’s story is also noteworthy in that it spans several decades and unfolds over several milestones—slavery, the Gold Rush, and westward expansion—creating the opportunity to expand our understanding of the individual experiences of people involved in Black-white relationships beyond what is typically found in the literature. Hearing about their story, and about the courtroom battle over the legitimacy of their relationship, provides context for why interracial families, even today, continue to suffer from minor indignities and open hostilities simply because they broke the norm.

Download the article from SSRN at the link.

Narechania on Hamilton's Copyright and the Election of 1800 @tnarecha @BerkeleyLaw @WisLRev

Tejas N. Narechania, University of California, Berkeley, School of Law, is publishing Hamilton's Copyright and the Election of 1800 in the Wisconsin Law Review. Here is the abstract.

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements—ads which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech? The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: Candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship—undermining protections for political speech. The historical record may help. In this Essay, I highlight an episode—overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of novel primary materials and secondary sources outside the legal literature, I tell the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared, if contested, understanding—shared by both Hamilton and his opponents—that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so I conclude by describing how the public governance interests in such political speech should trump copyright’s restraints[.]

Download the article from SSRN at the link.

Stern on Blackstone's Page and Trollope's Jurisprudence: From Doctrine to Fiction @ArsScripta @CambridgeUP

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone’s Page and Trollope’s Jurisprudence: From Doctrine to Fiction in A History of Punctuation in English Literature (Elizabeth M. Bonapfel, Mark Faulkner, Jeffrey Gutierrez, and John Lennard, eds., Cambridge University Press) (forthcoming, 2024). Here is the abstract.

This book chapter explores connections between law and literature by attending to print format, page layout, and typography. It considers William Blackstone’s use of the colon in his Commentaries on the Laws of England (1765-69), showing how he exploits the sign as a means of achieving the balance, rationality, and clarity that he seeks to attribute to the common law more generally. The chapter then turns to Anthony Trollope’s The Eustace Diamonds (1873). Chapter 25 provides Mr. Dove’s opinion letter as to the legal status of the diamonds that drive the plot. Trollope noted in his autobiography that this chapter was composed by the barrister Charles Merewether. What has not been recognized is that Merewether transcribed most of the letter from a leading work on inheritance and estate law, A Treatise on the Law of Executors and Administrators by Edward Vaughan Williams. It is hard to tell whether Trollope or Merewether (or both) were responsible for the differences in wording (though some are likely to be Trollope’s). However, the letter also features a very Trollopean use of the dash to signal hesitation and temporization, generally at Mr. Dove’s expense. These examples from Blackstone and Trollope show how the conjunction of the legal and the literary may present distinctive typographical features, in addition to more frequently studied features involving legal norms, analytical styles, and doctrinal questions.

Download the essay from SSRN at the link.

Hamann on "iudex non calculate": A Scavenger Hunt in Legal History @HanjoHamann @EBSuniversitaet

Hanjo Hamann, EBS Law School; Max Planck Institute for Research on Collective Goods, has published "iudex non calculat": A Scavenger Hunt in Legal History. Here is the abstract.

IUDEX NON CALCULAT is widely assumed to be an ancient Roman wisdom, but no evidence of its existence prior to 1850 has ever been presented. So where does it come from? This paper seeks to trace its origin and (failing to do so) documents its surprising prominence among European lawyers. Complementarily, the paper also focusses on the United States. It is a work in progress originally drafted for a workshop on “Social and Historical Perspectives on Calculation in the Law” at Harvard Kennedy School. Any feedback or additional historical material will be incorporated with grateful attribution.

Download the article from SSRN at the link.

Call For Proposals: ACA/PCA National Conference, Chicago, March 27-30, 2024

Just received: From Patricia Peknik, Department of Liberal Arts and Sciences, Berklee College of Music:

Call for Proposals: Sessions, Panels, Papers for ACA/PCA National Conference in Chicago – March 27-30, 2024 We invite papers and presentations on all aspects of law and American culture and law and popular culture, including but not limited to: representations of the Supreme Court, the Constitution, and current cases and controversies; pop culture depictions of civil and criminal law, attorneys, and the judicial process; cinematic representations of law and justice; papers that comparatively examine the way different literary texts, musical genres or works in art history depict law and outlaws; historic preservation law. We welcome submissions on all historical, interdisciplinary, and contemporary topics related to the justice system and legal practice. Submit your paper or presentation proposal to: https://pcaaca.org/page/nationalconference The proposal should include an abstract of more than 250 words, and complete contact information (name, presenter’s institutional affiliation, and e-mail address). Proposals must be submitted through the PCA website. Only current, paid members can submit proposals. The submission deadline is November 30.

 

Area Chair: Patricia Peknik, ppeknik@berklee.edu

McCall on The Differing Ground on Which Textualists and Classical Lawyers Stand @Vermeullarmine @thenewdigest @Caseyco231 @UofOklahomaLaw

Brian McCall, University of Oklahoma College of Law, has published The Differing Ground on which Textualists and Classical Lawyers Stand. Here is the abstract.

In this essay I respond to the essay of Conor Casey and Adrian Vermeule's essay “Judge Rao's Unintentional Surrender: On the Augustan Settlement of Our Law,” The New Digest 1 (23 August 2023). Although I agree with their overall argument, I offer two suggestions to an explanation of the apparent surrender of Textualists to Classical Common Good Constitutionalism. Yet, I conclude with a warning that the apparent settlement may not be permanent.

Download the essay from SSRN at the link.

Call For Papers: Facial Recognition Technologies and Monitoring Crowds at Public Events

From Claire Wrobel, MAÎTRE DE CONFÉRENCES EN LANGUES, Paris-Panthéon-Assas:

The "Law and Humanities" team at the Paris-Panthéon-Assas University in France is organizing a conference in December on the topic of "Facial Recognition Technologies and Monitoring Crowds at Public Events", from legal, ethical and aesthetic perspectives. The deadline for abstracts is October 28th, and contact emails are at the end of the CFP (attached to this email). Do not hesitate to contact me if you have any queries.

Faces in the Crowd: Facial Recognition Technologies and Monitoring Crowds at Public Events An international conference organized by the Law and Humanities team of the CERSA (UMR 7106, Paris-Panthéon-Assas University), ETHICS (EA 7446, Lille Catholic University) and ERC FACETS1. Date: December 7th and 8th, 2023 Venue: Université Paris-Panthéon-Assas, centre Panthéon, 12 place du Panthéon, 75005 Paris, France. Languages: English, French The interdisciplinary Law and Humanities team is pleased to announce their second international conference devoted to facial recognition and other surveillance tools monitoring crowds attending public events. The 2023 conference aims to take stock of surveillance theory and practice on the eve of the Paris 2024 Olympic Games, at a time when the surveillance camera is being superseded by, or perhaps rather combined with, other technologies such as FRTs. The stakes are high as the impact of the security arrangements made for major sporting events have wide-ranging consequences for the daily lives of ordinary citizens. Indeed, security practices tested and implemented at those events tend to be used in other settings and thus cause long-term security legacies (Boyle and Haggerty 2009; Lindsay 2013). Security has become an increasing concern in mega events since the Sunday Attacks on Munich 1972, 9/11 and 7/7 attacks, to the extent where the London 2012 Olympics have been called the ‘Security Games’ (Mason 2014). The latest incidents in France at the UEFA Champions League final at the Stade de France, which saw congestion, excessive police force and mugging of fans, adds screening and crime to terrorism as the main security concerns, and thus seeks to justify the use of intrusive monitoring systems and innovative technologies of surveillance. Any public debate on surveillance of these mega events is thus framed by these real or perceived security threats that facial recognition is meant to prevent, as explained by the rapporteur of the May 2022 recommendations by the French Senate for a three-year trial of these technologies. These recommendations form the basis of the current bill on the organization of the Olympic and Paralympic Games 2024. While to date the bill excludes any use of facial recognition per se, French ministers are toying with the idea of using ‘intelligent video-surveillance’, another type of FRT. The German federal constitutional court, on the other hand, stated in February 2023 that the Act on Data Processing by the Police for the Land of Hamburg violated the constitution, on the grounds that ‘when stored data is processed by means of automated data analysis or interpretation, this constitutes an interference with the informational self-determination of all persons whose personal data is used in such processing’ (1 BvR 1547/19, 1 BvR 2634/20). Across the Channel, as McGrath reminds us, the history of the surveillance camera is “inextricably tied up” with football hooliganism (McGrath 2004: 25). At a time when football- 1 This activity results from a project that has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No 819649–FACETS) related violence seemed to have reached epidemic proportions - with for instance Liverpool fans being held responsible for a wall collapse at the Heysel Stadium in Brussels in 1985, causing the deaths of thirty-nine people - Margaret Thatcher pledged to act, so that by the end of the 1980s crowd surveillance at football matches was routine. The straining of cameras on hooligans entailed a changed relation to space, which is explored in John King’s novel The Football Factory, adapted to the screen in 2004. Here, literature demonstrates how surveillance “changes the ways we feel and behave within the spaces which are surveyed” (McGrath 2004: 26). Cameras did not however prevent the tragedy at the Hillsborough stadium in 1989. In fact the interpretation of CCTV images by police officers, who feared a confrontation between supporter groups, led them to keep gates closed and caused the death of 96 people (Norris et al 1998: 129). In yet another turn of the screw, the evidence provided by the cameras made it possible to challenge the police version of events which was relayed in the media and which criminalized the victims. The English example shows how surveillance technologies developed to manage crowds - here in a sports context - then expand to other settings; how they shape subjective experiences of public space which can be rendered in literature and film; and how questions of interpretation, both by the authorities and in public discourse, remain crucial. Notwithstanding the timing of the conference, the conversation does not seek to be narrowly defined around the Games but wishes to include issues relating to crowd monitoring at public events more generally, such as concerts, festivals or any type of public performance. For instance, in France, FRTs were experimented by the Nice authorities to control access to a music festival. Surveillance is understood here as ‘the focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction’ (Lyon 2007: 14). Before the age of technology, states already implemented many strategies to control crowds during public events. More than four hundred years ago, a “culture of intelligence – and surveillance” (Bezio 2023) emerged under Elizabeth’s reign as a powerful network of spycraft was developed. In those days, riots were rather common, often starting around and even within playhouses, the most serious event being the 1597 riot at the Swan theatre. In the wake of a riot during the performance of The Isle of Dogs, the dramatists Ben Jonson and Thomas Nashe were sent to prison and the Privy Council threatened to close down all the London theatres. The authorities then described the play as “seditious” and the crowd as unruly, regarding drama as “encouraging rebellion” (Dunnum 2022:13). This particular historical example could lead to a broader reflection on public authorities’ persistent fear of the potentially subversive nature of any public events. In our contemporary societies, FRTs and other surveillance technologies aim at anticipating any type of disorder within the public space. The primary responsibility of ensuring a safe environment for spectators, officials, dignitaries and competitors depends on the event: it lies with the host cities, in the case of the Olympic Games (Coaffee and al. 2011), but with the organizing body jointly with local enforcement agencies, in the case of the UEFA (The Guardian, 13 Feb 2023). Surveillance, carefully planned, would include among others ticketing strategies, inclusion/exclusion policies based on profiling, monitoring of space for commercial and policing purposes, including crowd control and routes, managing spectators’ sporting and consumer experiences, etc. These strategies cannot but raise echoes of Foucault’s surveillance society paradigm (1975) and Agamben’s Homo Sacer (1995). The exponential development of technologies of surveillance involving ever more efficient algorithms, the use of AI or facial recognition technologies (FRT) implies that the literature in the field needs to be constantly updated. Indeed, while the conference draws on the 2014 Surveillance & Society special issue on ‘Surveillance and Sports’, it offers a unique perspective on the issue of FRT for the purposes of crowd monitoring in that it invites a cross- disciplinary approach to the theory and practice of surveillance. Indeed, as explained in Surveillance, Law and the Humanities (2023: 4-5), ‘the humanities are less interested in populations or forces than in stories and identities, subjective experiences and perspectives, individual lives and mentalities’. Hence this interdisciplinary conference seeks to explore the impact of FRTs or other surveillance technology monitoring and controlling crowds in public events under different perspectives. Among all the technologies used, FRT is probably the most contentious. While claiming to offer an almost instant and more efficient identification, location and screening system than other biometric technologies like fingerprints and retina scans, it impacts fundamental rights, among which the right to privacy, and raises fears of Orwell’s Big Brother society. The use of algorithmic video surveillance technologies raises ethical problems relating, in particular, to the protection of privacy; the processing, access and preservation of the data generated; biases generated by the very development of algorithms (Sereno, 2022; Bertail et al. 2019); the reduction of personal identity to digital data, but also the generation of an addiction to surveillance techniques whose potential for authoritarian drift cannot be overlooked. More fundamentally, the question that arises is that of the ethical conception of this type of technology: should it really be considered as axiologically neutral or as a simple decision-making tool? Finally, the question one has to face is: to what extent are we prepared to delegate our decision-making process on such issues and what are we prepared to accept in the name of the alliance between security (real or supposed, objective or subjective) and technology. The desire to control and manage crowds through their technological visibilization raises the esthetic and phenomenological questions of whether a crowd can be considered a collective and perceptive agent. The efficacy of statistical rationality, and more recently algorithmic rationality, has been linked to vision as the predominant form of perception (Tarde 1895; Pasquinelli 2016 ; Halpern 2014) often showing how this tends to reproduce a disembodied understanding of vision in which the maps of what one sees and what one is able to do are dissociated (Merleau-Ponty 1960), thus radically subverting our esthetic experiences. If the perception of space is always technologically mediated (Virilo 1988) then we must better understand how technologies of crowd control and surveillance shape the very space it is crowds are expected to perform (Lefebvre 2000) and question the spaces available for obfuscating or neutralizing these “programmed visions” (Hui 2011). Semiotically speaking, the implications of utilizing automated face recognition systems in public events extend beyond a mere factual account of these happenings. Rather, they require an inquiry into how the intersections between such events and their implied technologies can elicit a series of interpretants that, in their pragmatic effect, give rise to senses and meanings over time. These senses and meanings can significantly impact our comprehension of how the boundaries between the public and private are delineated and maintained within society, as well as how identification and othering are performed (Leone, Gramigna 2021). Moreover, shedding a semiotic light on the regimes of surveillance and control in public events, starting from the regulated administration of automated face recognition technologies, allows an understanding of how these practices increasingly shape the way in which society will be constructed in the future, at least in the near future (Gates 2011). Recognizing someone is one of the most significant and ingrained experiences in human life. It permeates our everyday activities, from social interactions to our digital lives. By definition, the most significant aspects of humanness are reflected in scientific progress, determining its development and evolution. The way technological change is shaped and structured is thus inherently grounded in societal norms and relations, which are themselves equally affected by technological transformations. In this sense, the relationship between technology and recognition can be considered as mutually constitutive. This relationship is leading to at least two main consequences: individuals increasingly encounter recognition experiences embedded in technology; machines are being trained to recognize and react to relevant traits (Chun 2021). Whether treated as a feature or as a result of the system, recognition is conventionally codified as a biological phenotype, and historically has been represented as a biometric, and therefore a quantitative and verifiable, fact (Leone 2022). This convention is still deeply rooted in automated face recognition design and is responsible for the vulnerability of non-hegemonic communities. The conference welcomes papers that would tackle the issues raised by the use of FRTs in public events from an interdisciplinary standpoint, studying literary, artistic responses, film or TV series productions, ethical controversies and legal debates. The organizers would also be interested in diachronic approaches to the broader subject of controlling crowds through other tools of surveillance so as to bring to the fore any continuity or disruption in the ways humans attempt to contain groups of individuals within the public space. We welcome contributions that address legal, ethical and aesthetic issues raised by the use of FRTs, but not limited to the topics discussed above. Provisional titles are expected by 30th September and abstracts (around 150 words) with a short bio-bibliography by 28th October 2023. Contact: Anne Brunon-Ernst (anne.brunon-ernst@u-paris2.fr), Armelle Sabatier (armelle.sabatier@u-paris2.fr), Claire Wrobel (claire.wrobel@u-paris2.fr) Bibliography Agamben, Giorgio (2016). Homo Sacer; L’intégrale 1997-2015. Paris: Seuil. Bertail, Patrice, David Bounie, Stéphan Clémençon, Patrick Waelbroeck (2019). Algorithmes: Biais, Discrimination et Équité. Bezio, Kristin M.S (2023). The Eye of the Crown. The Development and Evolution of Elizabethan Secret Services, London: Routledge. Boyle P, Haggerty KD (2009) “Spectacular security: Mega-events and the security complex”. International Political Sociology 3(3): 257–274. Brunon-Ernst, Anne, Jelena Gligorijevic, Desmond Manderson and Claire Wrobel, eds. (2023). Surveillance, Law and the Humanities. Edinburgh: Edinburgh University Press. Chun, Wendy (2021). Discriminating Data: Correlation, Neighborhoods, and the New Politics of Recognition. Cambridge MA: MIT Press. Coaffee, J., Fussey, P. and Moore, C. (2011) “Laminating Security for London 2012: Enhancing Security Infrastructure to Defend Mega Sporting Events” Urban Studies 48(15): 3311-3327. Dunnum, Eric (2020). Unruly Audiences and the Theater of Control in Early Modern London. London: Routledge. Foucault, Michel (1975). Discipline and Punish: the Birth of the Prison, trans. Alan Sheridan. London: Allen Lane (1977). Gates, Kelly (2011). Our Biometrics Future. Facial Recognition Technology and the Culture of Surveillance. New York: NYU Press. Halpen, Orit (2015). Beautiful Data. A History of Vision and Reason since 1945. Duke University Press. Hui Kyong Chun, Wendy (2011). Programmed Visions. Software and Memory. The MIT Press. King, John (1996). The Football Factory. London: Vintage. Lefebvre, Henri (2000). La production de l’espace. Anthropos : Paris. Leone, Massimo (2022). “Visage Mathematics: Semiotic Ideologies of Facial Measurement and Calculus”. In Danesi, Marcel, ed. Handbook of Cognitive Mathematics, Springer International Publishing, pp.1-26. Leone, Massimo & Remo Gramigna (2021). Cultures of the Face, special issue of Sign Systems Studies, 49, 3-4. Lindsay, I. (2013). “London 2012 : Securing Urban Olympic Delivery”. Sports in Society 16(2): 223-38. Lyon, David (2007). Surveillance Studies: An Overview. Oxford: Polity Press. Mason, Fred (2014). “Watching the Watchers: A Visual Sociology Essay on Control, Security and Surveillance at Olympic Women’s Soccer in Glasgow”. Surveillance & Society 11(4):405- 423. McGrath, John E. (2004). Loving Big Brother: Performance, Privacy and Surveillance Space. London and New York: Routledge. Norris, Clive, Moran, Jade and Gary Amrstrong (eds) (1998). Surveillance, Closed Circuit Television and Social Control. Aldershot: Ashgate. Pasquinelli, Virilio, “Anomaly Detection : The Mathematization of the Abnormal in the Metadata Society”, Transmediale 2015. Tarde, Gabriel (1895). Les lois de l’imitation. Félix Alcan: Paris.

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Basile on Ordinary Meaning and Plain Meaning @VirginiaLawRev

Marco Basile, Harvard Law School, is publishing Ordinary Meaning and Plain Meaning in the Virginia Law Review. Here is the abstract.

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally. Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way. This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Download the article from SSRN at the link.

Mutua on The Fraud of John Locke: Subnational Challenges to Democratic Theory @makaumutua

Makau W. Mutua, SUNY Buffalo Law School, is publishing The Fraud of John Locke: Subnational Challenges to Democratic Theory in Comparative Election Law (James A. Gardner, ed. Edward Elgar Publishing 2022). Here is the abstract.

In this chapter, I focus my attention on some of the most poignant limitations of the idea and practice of democracy. Democracy is challenged by some of its central imperatives—individualism, elections, anti-discrimination and equal protection norms, and nationalism, including subnational identities. Often, it can appear to be nonsense on stilts. I argue here that the very norms that make democracy attractive are its Achilles heel. In particular, I question the potential for democracy to contain certain identities, especially racial and ethnic, to create the society that embraces all—both majority and minority. In this context, I ask this question—is it time to revisit Locke’s and liberalism’s central theses? Is the political experiment of democracy on its deathbed because of the resilience of nationalism and sub-nationalism? In a word, was Locke’s genius an unwitting fraud on its theorists and practitioners? In the political furnace of these nativist cross-winds, democracy as expressed through open and free elections—the one essential and indispensable element of political democracy—is open to capture by the vilest of majorities. Suddenly, the pivot of the idea of democracy becomes its enemy. Majorities then use democracy itself to attack, or end, it. This chapter contends that there is no defense against the capture of the democratic state by hateful majorities. Not only can they use elections to gain and husband power, they can deploy their control to rewrite the character of the state while leaving a veneer—an empty husk—of the liberal state in place. In the circumstances, thinkers need to contemplate whether the clock of history has run out on liberalism. Can it be rescued from the clutches of fatigue and populist nativist, and often racist, uprising in the most advanced democracies? Are there any failsafe tools— normative and structural—that can snap democracy from the precipice?

Download the chapter from SSRN at the link.

Gardner on Why Law Isn't Jazz: A Response @UBSchoolofLaw @buffalolawrev

James A. Gardner, University at Buffalo Law School, has published Why Law Isn't Jazz: A Response, at 71 Buffalo Law Review The Docket D1. Here is the abstract.

In a recent article, Professor William Buzbee argues that “a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.” I argue here, from the perspective of someone who is both a lawyer and a jazz pianist, that jazz improvisation and law are best thought of as distinct practices, and that the analogy obscures more than it reveals. Both law and jazz demand that their practitioners make choices within disciplinary constraints, but the disciplinary boundaries of jazz impose far fewer constraints on its practitioners than the boundaries of legal practice. As a result, lawyers who try to incorporate techniques of jazz improvisation into their legal practice will likely be making a disciplinary mistake, and risk practicing law badly to the extent they do so. On the other hand, the fact that jazz musicians operate under fewer professional constraints does not mean that their work is any more creative or original than the work of lawyers, or that jazz’s loftiest artistic aspirations entitle it to be held in higher regard. The deflating truth is that what jazz improvisation principally shares with the practice of law is not so much the inherent possibility of disciplinary creativity, but the quotidian reality of professional drudgery. Most jazz, like most law, is plodding and mediocre, and the intentional production of novelty is exceedingly rare in both practices. In the end, I argue, criticisms of law and judicial decisions are best and most usefully launched from within the relevant disciplinary practice, not from the perspective of other disciplines.

Download the article from SSRN at the link.

Link to William W. Buzbee, Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules, 2023 Ill. L. Rev. 151 (2023).

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Law Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

Edmonds on Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration @UMichLaw @nulawreview

Mira Edmonds, University of Michigan Law School, is publishing Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration in the Northeastern University Law Review. Here is the abstract.

The movement to decarcerate risks foundering because of its failure to grapple with so-called “violent offenders,” who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent. Quantitative data about the low rates of recidivism for people released after serving long sentences for violent offenses will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of violent offenses and violent offenders by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse. This Article draws on insights from the literature on epistemic injustice and criminal law democratization, together with the legal storytelling literature. It explores the power of storytelling as an advocacy tool in the slow work of person-by-person decarceration during back-end processes like clemency, parole, and compassionate release, as well as part of the broader movement for systemic decarceration. Storytelling is an important tool for advocates working within the system, as well as for abolitionists seeking to end the system. In some contexts, advocates and activists are best situated to tell these stories, but ultimately people should be given the opportunity and tools to tell their own stories.

Download the article from SSRN at the link.

Baumgartner on The Meaning of "Reasonable": Evidence From a Corpus-Linguistic Study @UZH_ch @kneer @kevin_tobia @CambridgeUP

Lucien Baumgartner and Markus Kneer, both of the University of Zurich, Institute of Philosophy, are publishing The Meaning of ‘Reasonable’: Evidence From a Corpus-Linguistic Study in The Cambridge Handbook of Experimental Jurisprudence (Kevin P. Tobia, ed., Cambridge University Press, Forthcoming). Here is the abstract.

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room.

Download the essay from SSRN at the link.

Williams on Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood @BYULaw

Lucy Williams, Brigham Young University Law School, is publishing Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood in volume 102 of the North Carolina Law Review. Here is the abstract.

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently. These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

Download the article from SSRN at the link.

McMahon on Canada's Laws of White Supremacy

Thomas McMahon has published Canada’s Laws of White Supremacy: 1496-1791. Here is the abstract.

Is it permitted to say "white supremacy" when discussing Canada's foundational documents and archives? The purpose of this research paper is to identify the key legal documents establishing white supremacy as the foundational doctrine of Canada's legal history. If you refuse to name the problem, you can't begin to solve it.

Download the article from SSRN at the link.

Hylton on Originalism, Official History, and Perspectives versus Methodologies @BU_Law

Keith N. Hylton, Boston University School of Law, has published Originalism, Official History, and Perspectives versus Methodologies as Boston Univ. School of Law Research Paper No. 23-34. Here is the abstract.

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology.

Download the article from SSRN at the link.

Manning and Gayle on Enslavement in a Free Country: Legalized Exploitation of Native Americans and African Americans in Early California and the Post-Emancipation South @TheJLPE

Beth Rose Middleton Manning and Steven Gayle are publishing Enslaved in a Free Country: Legalized Exploitation of Native Americans and African Americans in Early California and the Post-Emancipation South in volume 3 of the Journal of Law and Political Economy (2022). Here is the abstract.

In 1850, California joined the United States as a free state. However, one of its first laws, the 1850 Law for the Government and Protection of Indians, legalized the enslavement of California Indians. Drawing comparisons between early Californian and Southern statutes that maintained racialized political economies, we argue that the institutionalized oppression perpetrated against Native Americans in California bears important legal similarities to that perpetrated against African Americans in the South, both before and after Reconstruction. This similarity is not a coincidence; the presence of both African and Native American populations in Southern legislation, the movement of Southerners to the West to participate in California’s development, the regional history of Mexican and Spanish systems of Indigenous enslavement, and a political economy reliant on racialized underpaid or unpaid labor, all created the conditions for California to legally retain de facto systems of slavery in a context of de jure freedom.

The full text is not available from SSRN.

(Note that the SSRN entry lists the co-authors as Middleton Manning, Beth Rose, and Steven Gayle.--Ed.)

ICYMI: Sherwin on The Narrative Construction of Legal Reality @RKSherwin @NYLawSchool @VTLawReview

ICYMI: Richard K. Sherwin, New York Law School, has published The Narrative Construction of Legal Reality at 18 Vt. L. Rev. 681 (1994). Here is the abstract.

If reality and meaning depend, to a significant extent, on perceptual and cognitive constructions, it becomes of no small interest to learn what interpretive frameworks are at work in specific legal contexts. One way to express this inquiry is to ask: what kinds of stories, and what modes of storytelling, are being used by lawyers, judges, and others within the legal system to construct and convey meaning? This path of inquiry leads to a heightened awareness of competing rhetorics and strategies of narration. Such awareness may operate on the plane of broad principle and decontextualized abstraction or on the level of local voices, proper names, and particularized dramas.

Download the article from SSRN at the link.

ICYMI: Williams on Blasting Reproach and All-Pervading Light: Frederick Douglass's Aspirational American Exceptionalism @BYULaw

ICYMI: Lucy Williams, Brigham Young University Law School, has published Blasting Reproach and All-Pervading Light: Frederick Douglass’s Aspirational American Exceptionalism at 9 American Political Thought 369 (2020). Here is the abstract.

Some scholars critique American exceptionalism as a proud, uncritical orientation. In this article, however, I argue that Frederick Douglass, an outspoken social critic, qualifies as an American exceptionalist thinker. I first identify and theorize two modes of exceptionalist rhetoric: accomplished exceptionalism, which is self-celebratory and largely uncritical, and aspirational exceptionalism, which is self-critical and reflective. I then provide a close reading of “What to the Slave Is the Fourth of July” to show how Douglass employs aspirational rhetorical techniques. Finally, I discuss the benefits of reading Douglass as an exceptionalist thinker and suggest that his aspirational rhetoric activates reflective and progressive modes of American citizenship.

The full text is not available for download from SSRN.

Call For Papers: International Conference on Constitutional Communities, KU Leuven, Belgium

 

CFP From Roger Ventura Cossin, KU Leuven:

Call for Papers

International conference on

Constitutional Communities

 

       When: 8-9 February 2024

       Where: KU Leuven (Institute of Philosophy and Faculty of Law), Belgium

       Deadline for abstract submissions: 25 October 2023 

 

Theme:

Today almost all countries are “constitutional communities” in a broad sense: their constitution provides the basic framework for their common life. This link between community and constitution is increasingly recognized and there is a growing awareness of the potential of constitutions for societal integration. Jürgen Habermas, with his notion of constitutional patriotism, made the case for a collective identity that does not rely on ethnic nationalism. At the same time, the belief that a constitutional document can be the source of a liberal collective identity has been criticized from various angles. A constitution is typically anchored at the national level, while in a globalized world social integration happens at many different levels. Moroever, courts have used the concept of “constitutional identity” to justify divergent interpretations of the rule of law and human rights and to uphold populist claims. Indigenous people sometimes see constitutional recognition as a new form of assimilation. And some critics have claimed that the concept is empty and abstract: constitutional principles are mostly the same across borders so how can they inspire a sense of community?

 

These developments raise important questions. How do constitutions create communities? Can they really do so? And should they? These questions can be answered from different disciplinary perspectives. Scholars in constitutional law and in the history of law have studied the working of constitutions since long. But legal and political philosophy should also weigh in, as philosophers from the past and the present have amply studied the relation between written laws and community. The issue of constitutional identity can also be approached from an empirical sociological perspective or even from a literary perspective, as it is ultimately the agency of a text that is at stake here. 

 

By engaging in an interdisciplinary dialogue about constitutions and community, this conference aims to explore the impact that constitutions have and can have in the functioning of communities, and to contribute to our understanding of the concept of constitutional identity.

 

Possible paper topics: 

- Constitutions and community building

- National and/or constitutional identity as legal instruments 

- The relation between constitutional identity and affiliated notions (sovereignty, constituent power, representation, …) 

- Constitutional recognition (of minorities, historically oppressed groups, rights of nature, …)

- Constitutional change 

- Specific philosophers on the role of constitutions 

- Constitutions as a literary genre

 

Submitting your abstract:

If you are interested in presenting your work at this conference, please submit an anonymized abstract (max. 400 words, in .doc, .docx or .pdf format) along with your name, title, and affiliation via e-mail to Ana Van Liedekerke (ana.vanliedekerke@kuleuven.be). The actual presentations can be 15 to 20 minutes long. Abstract should be submitted on 25 October 2023 (CET) at the latest. If accepted, you will be invited to develop your abstract into a full paper of around 5000 words; papers will be precirculated to all conference participants. We welcome submissions both from junior and from senior scholars. We especially encourage scholars from underrepresented groups to apply.

 

Conference Fee: There will be a registration fee of 75 euro to participate in the conference (40 euro for those attending just one day and reduced prices for KU Leuven students) and an additional fee of 75 euro for those wanting to attend the conference dinner.

 

Organizers: Raf Geenens, Stefan Sottiaux, Christophe Maes, Roger Ventura Cossin, Ana Van Liedekerke.

 

This conference is organized by RIPPLE (Research in Political Philosophy and Ethics Leuven) and the Leuven Centre for Public Law. It is part of an interdisciplinary research project on constitutional identity, jointly hosted by KU Leuven's Institute of Philosophy and KU Leuven's Faculty of Law and funded by FWO, the Research Foundation Flanders.

 

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