Swain on Low-Value Civil Litigation in New Zealand 1841-1872

Warren Swain, University of Auckland Faculty of Law, has published Low-Value Civil Litigation in New Zealand 1841–1872. Here is the abstract.

The Court of Requests in New Zealand in the 1840s was described in one newspaper report as “the people’s court” which was “open to all”. The Court played an important role as a forum for low-level debt litigation. There were plenty of forerunners. A Court of Requests was well established for small claims litigation in England before it was replaced by the County Court in 1846. A version of the Court of Requests successfully operated in New South Wales. Official records of the Court have not survived in New Zealand, but it is nevertheless possible to trace its history in contemporary newspaper reports. In time, the Resident Magistrates’ Court and the District Court would take over as the main forums for small claims litigation. These courts were all vital on a practical level in the way that they contributed to the operation of the economy of the colony. They also illustrate the way that English legal institutions were both transplanted into colonies and modified to take account of colonial conditions and were part of a broader shift towards a more legalistic framework in place of a system of more informal justice.

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Dedek on The Tradition of Comparative Law: Comparison and Its Colonial Legacies @LawMcGill @CambridgeUP

Helge Dedek, McGill University Faculty of Law, is publishing The Tradition of Comparative Law: Comparison and its Colonial Legacies in The Cambridge Handbook of Comparative Law (Mathias Siems and Po Jen Yap, eds., (Cambridge University Press, 2023). Here is the abstract.

Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge the role of comparison and the ‘innocence of method’ (Günter Frankenberg) so fundamentally. This chapter explores the role that a lack of disciplinary historical self-awareness plays in this hesitation. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth century comparative disciplines; and that absolves it from reflection on how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).

Download the essay from SSRN at the link.

Culver on The Rhetorical Profile @sjquinney

Leslie Culver, University of Utah College of Law, has published The Rhetorical Profile. Here is the abstract.

This essay is a pedagogical companion piece to my article (Un)Wicked Analytical Frameworks and the Cry for Identity. The Rhetorical Profile is a contemporary method for teaching legal analysis that pushes against IRAC’s rigidity and dominance. First, it teaches students to view and understand legal writing as genres (e.g., judicial opinions or motions) and conventions (e.g., governing rules, analogical and deductive reasoning). Second, it develops conscious decision-making to provide depth and effective legal analysis. Its hallmark feature is to situate and give space to the existing questions students should consider at each stage of legal analysis. The result is conscious and confident legal analysis.

The full text is not available from SSRN.

Kahn on The Mask Wars and Social Control: Lessons From the 1927 Unveiling Campaign in Soviet Uzbekistan @USTLawMN @cwsl_ilj

Robert Kahn, University of St. Thomas School of Law (Minnesota), is publishing The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan in the California Western International Law Journal (2022). Here is the abstract.

During the late 1920s Soviet authorities embarked on the hujum, a campaign to encourage women in Uzbekistan to unveil. As with the COVID mask wars, the hujum was highly politicized. For some, the hujum was a campaign of personal liberation; for others it was an attempt by the Soviet Union to impose imperial control over its Muslim subjects. To explore the relevance of the hujum for our mask wars, this essay looks at two accounts of the hujum. Douglas Northrop’s Veiled Empire: Gender and Power in Stalinist Central Asia views the hujum as a failed attempt to impose Soviet values on an unwilling Uzbek population. Has the COVID mask, like the veil, become a symbol of failed state overreaching? Marianne Kamp, in the New Woman in Uzbekistan: Islam, Modernity and Communism (2006), sees the hujum as trapping Uzbek women between supporting the Soviets and following patriarchal veiling norms. Have COVID masking campaigns likewise stripped us of our agency? Taken together, Northrop and Kamp’s accounts help shift the debate over COVID mask wearing away from mask authoritarianism toward a world where people should be free, most of the time, to decide whether or not to cover their face.

Download the article from SSRN at the link.

Davies on Precedential Piglet and Pooh @horacefuller @GB2d

Ross E. Davies, George Mason University Law School; The Green Bag, is publishing Precedential Piglet and Pooh in Re-Readings VII The Green Bag 1 (2022). Here is the abstract.

Defunct Supreme Court precedents should be called “Woozles” and decisions that followed those defunct precedents should be called “Wizzles.” Here's why. Note: "This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful."

Download the essay from SSRN at the link.

Janik on States Are Not Men: Traces of International Law's Creation Myth @RalphJanik

Ralph R. A. Janik, Sigmund Freud Private University; University of Vienna; Andrassy University Budapest; Webster University, Vienna Campus, is publishing States Are Not Men: Traces of International Law’s Creation Myth, in the Hague Yearbook of International Law (2022/2023), special edition. Here is the abstract.

The following pages will try to describe the evolution of the idea of states as moral persons in international law scholarship and how it has been perverted throughout the 20th century. It does not, however, attempt to describe the entire story or construe a logical, if not inevitable sequence of thinkers and ideas. Rather, several traces from the birth of sovereignty all the way to the UN Charter era shall be contrasted with more recent ideas emphasizing the separateness of states, peoples, and governments. The final part will then locate current legal thinking about statehood along the polar opposites of, on the one hand, states as idealized personifications of the common will of their people and, on the other, how a liberal understanding of limited sovereignty stands in contrast to anthropomorphic conceptualizations of statehood.

Download the article from SSRN at the link.

Owens and Coyne on Classical Liberals on War and Imperialism @ccoyne1 @GeorgeMasonU

Matthew Owens and Christopher J. Coyne, both of George Mason University, have published Classical Liberals on War and Imperialism: A Historical Survey. Here is the abstract.

This paper surveys the views of twenty key British and non-British figures in the classical liberal tradition on the issues of war, imperialism, and alternative paths to peace. These ideas are important both for purely historical reasons, and because they are relevant to contemporary conversations about the complexities and nuances of foreign relations. We identify common themes across these thinkers while noting that there is no single classical liberal position on these issues. In addition to identifying commonalities, we also summarize tensions and contradictions, both within the work of individual figures and across the thinkers surveyed. We include two appendices consisting of tables summarizing the views of each of the thinkers discussed throughout the survey.

Download the article from SSRN at the link.

McLay on The Removal of Justice Edwards and the Struggle Between the "Legal" and the "Constitutional" in Late Nineteenth-Century New Zealand @GeoffMcLay1

Geoff McLay, Victoria University of Wellington, Te Herenga Waka, Faculty of Law, has published The Removal of Justice Edwards and the Struggle between the 'Legal' and the 'Constitutional' in Late Nineteenth-Century New Zealand at 53 VUWLR 379 (2022). Here is the abstract.

This article examines an extraordinary episode in New Zealand's constitutional history: the 1892 removal of Justice Worley Bassett Edwards as a Supreme Court judge after having been invalidly appointed by the previous government. Edwards' case is important as the only time a New Zealand government has formally sought to remove a sitting judge of the Supreme or (as it is now) High Court. But the article argues that the Edwards controversy is also an example of how New Zealand politicians and lawyers thought about judges within the developing New Zealand state, and even more profoundly about what was constitutional, as opposed to just legal, within that state.

Download the article from SSRN at the link.

Swain on The Use and Misuse of Legal History in the High Court of Australia

Warren Swain, University of Auckland Faculty of Law, is publishing The Use and Misuse of Legal History in the High Court of Australia in The Impact of Law's History What's Past is Prologue (Sarah McKibben, Jeremy Patrick, and Marcus K Harmes, eds., Palgrave Macmillan, 2022). Here is the abstract.

Legal history is sometimes seen as little more than the study of ‘old, unhappy, far-off things’. This is reflected by the fact that the subject is no longer central to the undergraduate law curriculum. Yet this fact doesn’t tell quite the whole story. During the 1980s the High Court began to shift Australian private law in new directions. That the law has changed significantly in the last thirty years is not disputed. The precise manner in which the High Court have gone about changing the face of Australian private law, particularly through the use of historical sources is less well documented. At the heart of the process is a paradox. In reforming the common law arguments derived from history, sometimes quite ancient history, have played a vital role. This paper will explore the way in which the High Court have used historical arguments and seek to draw some lessons about what this tells us about the High Court in the post-colonial period. The doctrine of contractual penalties is used as an example.

Download the essay from SSRN at the link.

Atkinson on Telegraph Torts: The Lost Lineage of the Public Service Corporation @michlawreview

Evelyn Atkinson, University of Chicago Department of History, is publishing Telegraph Torts: The Lost Lineage of the Public Service Corporation in the Michigan Law Review (2023).

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, a significant minority of rural state courts deviated from the common law to impose liability for mental anguish on negligent telegraph corporations. They did so on the basis that telegraph companies bore an affirmative duty to protect the emotional well-being and family connections of their customers. In this, courts gave voice to the popular view, voiced by telegraph users and promoted by the companies themselves, of the telegraph corporation as a faithful servant of individual families and communities. In so doing, they embedded the historical and popular perception of the corporation as “servant” into the definition of “public service.” This Article exposes the private law of the public service corporation and the non-economic dimension of the legal category of “public utility.” Current scholarship has focused on how turn-of-the-century jurists developed the category of “public utility” or “public service” corporation to justify state economic regulations that would otherwise infringe on corporations’ newfound constitutional rights. The telegraph cases reveal a concurrent and complementary development in tort law: the imposition of affective responsibilities on certain corporations as well. Illuminating this doctrine offers an example of how the public utility category could be mobilized to protect the emotional as well as economic well-being of the public today.

Download the article from SSRN at the link.

CFP: International Roundtables for the Semiotics of Law 2023

From Anne Wagner, Research Associate Professor Université du Littoral Côte d'Opale (CGU Calais)

Please find below another CFP for our IRSL in Roma. As you will see, there are other calls that are still open.

 

https://www.springer.com/journal/11196/updates/20249486

 

Yovel on What Lawyers Can Learn From Renaissance Drama

Jonathan Yovel, University of Haifa Faculty of Law, NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; Yale Law School, has published What Can Lawyers Learn from Renaissance Drama?. Here is the abstract.

What can lawyers, who are typically engaged in challenges of persuasion across the entire spectrum of practice, learn from the shift to normative language in drama? This study looks at the creative and restrictive roles of legal and normative language in two central dramas of the renaissance: "Bradamante" (1582) by Robert Garnier (who was also a high ranking judge), and John Milton’s passionately personal work, "Samson Agonistes" (1671). It compares the intensive reliance on legal metaphors and structures in the latter with the almost total lack of those in the former. Applying a linguistic lens, the article explores the role of legal language in the construction of argument and dispute in the renaissance's and early modernity's shift to normativity as the basis of relations: political, familial, romantic and obligatory. Wide ranging and intense, these dramas supply a laboratory for the construction of persuasive argument in thematic contexts of war, generational strife, romance, betrayal, and sovereignty. Normative -- and specifically legal -- language offers parties shared yet competing grammars and vocabularies for forming and organizing disputes. Dialogical and non-dominating, it offers an alternative to mere linguistic quarrel. The reach of legal language extends beyond the law, and its sources and uses extend far beyond legal textuality. Legal and normative languages are both restrictive and generative: like grammar, they present valid modes of expression while inviting speakers to challenge, explore, expand and create new ones. Normative language is relevant to argument since it responds to the latter's need to bridge different ideologies and supply effective persuasion. In the dramas explored here, legal and normative languages both succeed and fail to anchor communication in shifting discourse ethics, while speakers use and manipulate it to talk to friends, lovers, antagonists, political sovereignty and god -- as well as to themselves, forming a distinctive modern sense of subjectivity where the reflexive self must answer to itself. The article concludes with a systemazation of these findings in terms of the discourse ethics of persuasion, concerning consensus and persuadability, building on partly overlapping insights by Wittgenstein, Habermas, Perelman and Derrida.

Download the article from SSRN at the link.

Hargreaves on Taken as Read: Linguistic (In)Equality in Hong Kong's Jurisprudence @hargreaves_s

Stuart Hargreaves, The Chinese University of Hong Kong (CUHK), Faculty of Law, is publishing Taken as Read: Linguistic (in)equality in Hong Kong’s Jurisprudence in the Michigan State University International Law Review (2023). Here is the abstract.

Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’ functions of daily life and the use of English for the ‘high’ functions of law and government. This paper shows that significant linguistic inequality persists at the top end of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that not only has the Court failed to develop a fully bilingual jurisprudence, the availability of Chinese-language translations of its decisions is in fact declining over time. This means that roughly two-thirds to three-quarters of the population is unable to read for themselves the decisions of the Region’s apex court despite being fluent in an official language. The paper argues that beyond instrumental arguments (such as fairness to monolingual self-represented litigants), linguistic equality in the Court’s output is justified in normative terms. It is an assertion of the dignity of monolingual Chinese speakers within the community; a statement that they deserve equal access to the output of the Court given the significant role it plays. The paper concludes by arguing for an amendment to the relevant law in order to guarantee linguistic equality in the Court’s output and provision of the necessary resources to accomplish it. The problem is solvable with political will and a relatively small amount of money.

Download the article from SSRN at the link.

Shapira on Literary Means as a Tool for Halakhic Expression: Honouring Parents as a Case Study

Yaakov Shapira, Department o Jewish Law, Director, Ministry of Justice, Lecturer in Jewish Law, The Hebrew University of Jerusalem, has pbulished Literary Means as A Tool for Halakhic Expression: Honoring Parents As A Case Study at JLAS XXVII: Judaism, Law and Literature 279. Here is the abstract.

Many Talmudic discussions include a literary work in the course of the passage. These works focus on halakhic dilemmas; however they do not simply provide a ruling, but constitute full blown literary works. Usually halakhic examination and research ignore these stories. What is their purpose? Are they part of the halakhic discourse? Do they carry any weight in deciding the Halakhah? In this article I wish to clarify the unique character of these stories in the context of halakhic rulings, and I will discuss them as a case study for the essence of Halakhah as an event. I maintain that these stories reflect emotions and happenings that are an integral part of the halakhic event, and that they are meant to be a part of the considerations in making a halakhic ruling. Thus I wish to see a literary genre as a genre that expresses a halakhic happening, that is meant to be an integral part of the considerations for halakhic decision-making. Thus I shall consider the vitality of the Halakhah that operates not only as a normative apparatus with clear-cut and precise laws, but also as an apparatus aware of event narratives and sensitive to the changing contexts of the halakhic event. תקציר בעברית: האמצעי הספרותי ככלי ביטוי חברתי - תקציר / יעקב שפירא בסוגיות תלמודיות רבות מובאת במהלכה של הסוגיה יצירה ספרותית. מוקדן של יצירות אלה הוא דילמה הלכתית, אולם הן אינן סיכום פסק דין גרדא, אלא יצירה ספרותית, על כל המשתמע מכך. בדרך כלל, במסגרת העיון והמחקר ההלכתיים לא ניתנת הדעת לסיפורים אלה. מה מגמתם? האם הם חלק מהשיח ההלכתי? ואולי יש להם גם משקל בהכרעה הפסיקתית? במאמרי אבקש לברר מה ייחודם של סיפורים אלה בעולם הפסיקה ההלכתי, ואדרש אליהם כנקודת מבחן למהותה של ההלכה כהתרחשות. אבקש לטעון שסיפורים אלה משקפים רגשות והתרחשויות שהם חלק בלתי נפרד מהאירוע ההלכתי, ומגמתם להביא את שקלולם של אלה בפסיקה ההלכתית. דבריי יבקשו אפוא להצביע על הסוגה הספרותית כסוגה המבטאת את ההתרחשות ההלכתית, אשר אמורה להיות חלק בלתי נפרד משיקול הדעת של ההכרעה ההלכתית. בכך אתן את הדעת לחיוניותה של ההלכה, שפועלת לא רק כמערכת נורמטיבית שהלכותיה חתוכות ומדויקות, אלא גם כוללת בתוכה מודעות לנרטיביות ההתרחשותית ורגישות להקשרים המשתנים של האירוע ההלכתי.

Download the essay from SSRN at the link.

Kahn on The Mask Wars and Social Control: Lessons From the 1927 Unveiling Campaign in Soviet Uzbekistan @CWSL_News @cwsl_ilj

Robert Kahn, University of St. Thomas School of Law (Minnesota), is publishing The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan in California Western International Law Journal (2022) Here is the abstract.

During the late 1920s Soviet authorities embarked on the hujum, a campaign to encourage women in Uzbekistan to unveil. As with the COVID mask wars, the hujum was highly politicized. For some, the hujum was a campaign of personal liberation; for others it was an attempt by the Soviet Union to impose imperial control over its Muslim subjects. To explore the relevance of the hujum for our mask wars, this essay looks at two accounts of the hujum. Douglas Northrop’s Veiled Empire: Gender and Power in Stalinist Central Asia views the hujum as a failed attempt to impose Soviet values on an unwilling Uzbek population. Has the COVID mask, like the veil, become a symbol of failed state overreaching? Marianne Kamp, in the New Woman in Uzbekistan: Islam, Modernity and Communism (2006), sees the hujum as trapping Uzbek women between supporting the Soviets and following patriarchal veiling norms. Have COVID masking campaigns likewise stripped us of our agency? Taken together, Northrop and Kamp’s accounts help shift the debate over COVID mask wearing away from mask authoritarianism toward a world where people should be free, most of the time, to decide whether or not to cover their face.

Download the article from SSRN at the link.