Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.

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

Download the article from SSRN at the link.

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

 From Professor Steven Howe, University of Lucerne:

Law and Humanities Workshop: Futurity Now?

6-8 September 2022

Online via Zoom

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

 

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

 

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

 

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

 

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

 

• Tuesday 6 September, 15.00 (CEST): Can Law Control the Future? (or it is just a Part of the Past?) (hosted by the Faculty of Law, University of Roma Tre)
• Wednesday 7 September, 10.00 (CEST) / 18.00 (AEDT): Colonial Legal Imaginaries / Southern Literary Futures (hosted by the Centre for Law, Arts and the Humanities, ANU & the University of Adelaide)
• Thursday 8 September, 10.00 (CEST): Organizing the Future (Or: How to Demand a Million More Years?) (hosted by the Institute for Interdisciplinary Legal Studies - lucernaiuris, University of Lucerne)

 

Please follow the links for workshop descriptions and registration details.

 

All enquiries to lucernaiuris@unilu.ch.

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

Leslie Katz has published Strange Case of Dr Jekyll, his English Wills and Scottish Law. Here is the abstract.

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

Download the paper from SSRN at the link.

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

Maureen E. Brady, Harvard Law School, is publishing Uses of Convention History in State Constitutional Law in the Wisconsin Law Review. Here is the abstract.

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

Download the essay from SSRN at the link.

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

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.

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

Download the article from SSRN at the link.

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

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Great Borrower and a Great Originator, and  Also, Perhaps, a Great Lender, at The Gazette–The Journal of the Wolfe Pack, Fall 2021, at 3. Here is the abstract.

This is the full, annotated, original version of a paper that was delivered as a toast to Rex Stout at the The Wolfe Pack's Black Orchid Dinner (on Zoom) on December 5, 2020. The abbreviated toasty version was published (without footnotes), on pages 3 to 5 of the Fall 2021 issue of The Gazette — The Journal of the Wolfe Pack. The paper argues that contrary to conventional wisdom, Rex Stout did NOT borrow from Agatha Christie when he wrote his first Nero Wolfe detective story; rather, it was more likely Christie who borrowed from Stout.

Download the article from SSRN at the link.

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

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.

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

Download the article from SSRN at the link.

John Witte on Back to the Sources? What's Clear and Not So Clear about the Original Intent of the First Amendment @EmoryLaw

John Witte, Emory University School of Law, has published Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment at 47 BYU L. Rev. 1303 (2022). Here is the abstract.

This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.

Download the article from SSRN at the link.

Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.

Download the article from SSRN at the link.

McMahon on The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism

Thomas McMahon has published The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism. Here is the abstract.

What is "modern" international law? This paper reviews the history of the development of modern international law, usually intended to mean the break between the leadership of role of the Roman Catholic popes into an international law decided by states without reference to the popes. In other words, papal bulls of discovery, enslavement and other topics stopped having influence. "Modern" international law was especially important to ensure that countries such as England, France, the Netherlands, Belgium, Germany and Italy could compete to steal the lands and resources of the rest of the world for themselves. In other words, modern international law was invented to give a legal vocabulary and justification for white supremacist colonialism without ever using the words "white supremacy."

Download the paper from SSRN at the link.

Epstein and Gulati on A Century of Business in the Supreme Court, 1920-2020 @USCGouldLaw @UVALaw

Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published A Century of Business in the Supreme Court, 1920-2020 as Virginia Public Law and Legal Theory Research Paper No. 2022-55 and Virginia Law and Economics Research Paper No. 2022-16. Here is the abstract.

A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

Download the article from SSRN at the link.

Wright on the Logic of History and Tradition in Constitutional Rights Cases @IUMcKinney

R. George Wright, Indiana University School of Law, has published On the Logic of History and Tradition in Constitutional Rights Cases. Here is the abstract.

Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute. It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.

Download the article from SSRN at the link.

Ryan on An Historical and Empirical Analysis of the Cy-Pres Doctrine

C. J. Ryan, University of Louisville School of Law; American Bar Foundation, is publishing An Historical and Empirical Analysis of the Cy-Près Doctrine in volume 48 of the ACTEC Law Journal. Here is the abstract.

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field. First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

Download the article from SSRN at the link.

Guerra-Pujol on Coase and the Corleones

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase and the Corleones in The Godfather and Philosophy: We’re Gonna Make‘em an Argument They Can’t Refute (Joshua Heter and Richard Greene, eds., Open Court, 2023). Here is the abstract.

My contribution to the new volume on The Godfather and Philosophy will explore the problem of reciprocal harms in the context of the famous wedding scene in the original Godfather movie. By way of background, one of the most influential ideas in legal, moral, and political philosophy is the harm principle or the notion that people should be free to do or say whatever they wish unless their actions or words cause harm to somebody else. The Godfather, however, shows us why the harm principle is logically incoherent. Aside from the difficulty of defining what counts as a harm, the main problem with the harm principle is that harms are often reciprocal in nature, a counterintuitive idea that can be traced back to the work of Ronald Coase. That is, most harms are, logically speaking, either the direct or indirect result of both the wrongdoer’s and the victim’s decisions. (This short paper is part of a larger series of works that I have written over the years using examples from popular culture to illustrate the problem of reciprocal harms.)

Download the essay from SSRN at the link.

Solum and Crema on The Original Meaning of "Due Process of Law" in the Fifth Amendment @lsolum @VirginiaLawRev @_rundnc

Lawrence B. Solum, University of Virginia School of Law, and Max Crema have published The Original Meaning of “Due Process of Law” in the Fifth Amendment at 108 Va. L. Rev. 447 (2022). Here is the abstract.

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Download the article from SSRN at the link.

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022) @EdinburghUP

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022). Here from the publisher's website is a description of the book's contents.

The first study of the representation of corporations in US law, literature, and culture Covers key topics in company law including the emergence of corporate personhood, the regulation of monopolies, the piercing of the corporate veil, agent-principal relationships and examines their literary and cultural manifestations Presents interdisciplinary readings of legal, literary and visual texts, including legal treatises, caricatures, novels, and magazine publications Draws on literary texts including Maria Amparo Ruiz de Burton’s The Squatter and the Don, James Fenimore Cooper’s The Bravo, Frank Norris’ The Octopus and Charles W. Chesnutt’s The Partners Draws on cases including Charles River Bridge v. Warren Bridge (1837), Munn v. The State of Illinois (1877) and Santa Clara County v. Southern Pacific Railroad (1886) This book examines the way the corporation – a legal concept of enduring and timely importance in the Anglo-American legal tradition – was imagined in the nineteenth century historical imagination. Stefanie Mueller traces the ways in which literary and cultural representations of the corporation in nineteenth-century America helped shift how the corporation was envisioned; from a public tool meant to serve the common good, to an instrument of private enterprise. She explores how artists and writers together with lawyers and economists represented this transformation through narrative and metaphor. Drawing on a range of legal, literary and visual texts, she shows how the corporation’s public origins as well as its fundamentally collective nature continued to be relevant much longer than previous scholarship has argued.

Jiménez on Private Law Legalism @fjimenez_c @USCGouldLaw

Felipe Jiménez, USC Gould School of Law, is publishing Private Law Legalism in volume 73 of the University of Toronto Law Journal (2023). Here is the abstract.

Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their “private rights”). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this paper, I offer an argument in favor of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance towards positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt.

Download the article from SSRN at the link.

ICYMI: Ian Ward, The Play of Law in Modern British Theatre (Edinburgh University Press, 2021) @EdinburghUP @UniofNewcastle

ICYMI: Ian Ward, Newcastle University, has published The Play of Law in Modern British Theatre (Edinburgh University Press, 2021). Here from the publisher's website is a description of the book's contents.

The first book to investigate the place of law in modern and contemporary drama Illustrates the role of contemporary theatre in articulating legal and political issues to a modern audience Analyses a range of different genres in contemporary drama, including historical, poetic, realist, documentary and ‘in-yer-face’ Each chapter focuses on a particular area of law alongside the work of a particular contemporary playwright Shows how modern playwrights engage with issues such as pornography, murder, terrorism, the function of Parliament, and the role of the monarchy Theatre, according to the prominent British playwright David Hare, is our most effective ‘court of justice’. This book assesses the credibility of this arresting claim in the immediate context of contemporary British theatre by investigating the place and purpose of law in a range of modern dramatic settings and writings. Each chapter focuses on a particular area of law and the work of a particular contemporary playwright, and in doing so illustrates the important role of contemporary theatre in articulating legal and political issues to a modern audience. Exploring a range of different genres in contemporary drama, including the historical, the poetic, realist, documentary and ‘in-yer-face’, this volume explores the capacity of modern playwrights to engage with issues such as pornography, murder, the contemporary experience of terrorism, the function of Parliament and the role of the monarchy.

Cohen on Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated For You, the Reader @UGASchoolofLaw @harlangcohen

Harlan Grant Cohen, University of Georgia School of Law, has published Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated for You, the Reader as University of Georgia School of Law Legal Studies Research Paper No. 2022-06. Here is the abstract.

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

Download the essay from SSRN at the link.

Metallic on Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation @NaiomiMetallic @SchulichLaw @unblawjournal

Naiomi Metallic, Dalhousie University School of Law, is publishing Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation in the University of New Brunswick Law Journal. Here is the abstract.

Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.

Download the article from SSRN at the link.