Brian Soucek, University of California, Davis, School of Law, has published Aesthetic Judgment in Law at 69 Alabama Law Review 381 (2017). Here is the abstract.
Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should. State actors — from judges and legislators down to customs officials and members of local zoning boards — make aesthetic judgments every day, in areas ranging from tax and tariff law to obscenity and public-funding decisions, from historic preservation and land-use regulations to copyright, trademark, and patent law. This Article details the breadth and surprising philosophical depth of the law’s engagement with aesthetic questions. And bucking conventional wisdom, it argues that in many areas of law, government should define artistic categories and promote aesthetic values. The usual reasons for treating aesthetic judgment as what Justice Holmes famously called a “dangerous undertaking” turn out to be bad ones. Arguments based on the expertise of judges or the subjectivity of aesthetic judgment are not just unconvincing, they are in tension with one another. And the one persuasive argument — derived from the First Amendment’s prohibition on government-imposed orthodoxies — applies only as far as the First Amendment itself does. This Article offers a framework for deciding when the First Amendment limits aesthetic judgment in law. And in doing so, it also identifies appropriate sites of aesthetic judgment — places where we need more open debate about the substantive aesthetic values we want the law to endorse.Download the article from SSRN at the link.