Stern on Omniscient Narrative Modes in Law: From Trial Strategy to the Fellow-Servant Rule @ArsScripta @Law_Cult_Huma

Simon Stern, University of Toronto Faculty of Law, is publishing Omniscient Narrative Modes in Law: From Trial Strategy to the Fellow-Servant Rule in Law Culture and the Humanities. Here is the abstract.

Research in law and literature often uses the term “narrative” as a shorthand for various kinds of motivated legal reasoning, indicating that facts, doctrines, and the relations among them have been chosen and arranged for a particular purpose. Alternatively, speaking of “narrative” may be a way of conveying that one is concerned with interpretation, and may be a signal that the discussion will focus on images, symbols, representations, or ideologies, even if their narrative features play little or no role in the analysis. This article shows how research on narrative might help to clarify aspects of trial strategy and legal doctrine. The first section considers omniscient narration as a way of understanding the effects of various defense strategies, in a criminal trial. The second section considers the role of omniscient narration in the development of the “fellow-servant” rule in the nineteenth century. The law of evidence provides an especially fruitful area for such investigations, but questions of narrative form and technique can help to clarify many other aspects of forensic argumentation and analysis, in both procedural and substantive contexts.

Download the article from SSRN at the link.

Connolly on Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen

John Connolly has published Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen. Here is the abstract.

Historical state laws regulating firearms have become relevant to modern firearms legislation after the Supreme Court’s decisions in Heller, McDonald, and Bruen. This article tries to catalog and analyze all historical firearms laws in one of the original 13 states, Maryland, and considers how those laws might affect modern legislative efforts to regulate firearms.

Download the article from SSRN at the link.

Behrens and Blocher on A Great American Gun Myth: Race and the Naming of the "Saturday Night Special" @DukeLawLibrary @DukeLaw

Jennifer L. Behrens, Duke University School of Law, J. Michael Goodson School of Law Library, and Joseph Blocher, Duke University School of Law, have published A Great American Gun Myth: Race and the Naming of the 'Saturday Night Special' as Duke Law School Public Law & Legal Theory Series No. 2023-02. Here is the abstract.

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.” Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article and has been repeated in dozens of briefs and scholarly sources since. Advocates and scholars should stop invoking this unsupported origin story, which if anything serves as a cautionary example of how citations can cascade. The most plausible origin of the nickname as it related to cheap firearms stemmed from the turn of the century when the phrase “Saturday-night special” was already in common usage with connotations of cheapness and convenience.

Download the abstract from SSRN at the link.

Hrdy and Brean on The Patent Law Origins of Science Fiction @CamillaHrdy @AkronLaw

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project, and Daniel Harris Brean, Independent Scholar, have published The Patent Law Origins of Science Fiction.

This article uncovers the role of patents and patent law in shaping the literary genre of science fiction. Using unpublished primary sources, the article examines the views of Hugo Gernsback, the so-called “father” of science fiction. Gernsback, who was himself an inventor and frequent patentee, is known for his firm conviction that works of science fiction can give rise to the technologies of the future. This article reveals that, in espousing this thesis, Gernsback drew an explicit analogy between the inventions described in science fiction and the inventions described in patents. The culmination of Gernsback's theory was his proposal, in 1952, that “Provisional Patents” should be available for “feasible and technically sound” inventions depicted in works of science fiction—even if they were not yet possible to implement in practice. The history of patent law’s role in shaping science fiction has been largely ignored, or derided, by the science fiction community. It is wholly unknown to the patent law community. Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy. But investigating Gernsback’s views, and understanding his justifications for them, generates many surprising insights about patent law and policy, and about the genre of science fiction itself. Science fiction’s patent law origin provides a new and different justification for science fiction’s role in society. According to Gernsback, and other adherents of his philosophy like Arthur C. Clarke, science fiction is not just a form of entertainment. It is a legitimate component of innovation policy. Without science fiction, society would not have many of the innovations that surround us today—or at least would not have obtained them so quickly. This is extremely similar to the role that many commentators ascribe to patents. Gernsback’s philosophy of science fiction may seem naïve. But these beliefs, and their underlying reliance on patent theory, were nonetheless highly influential. They shaped the genre of science fiction as we know it. The patent law community, and not just those of us who are science fiction fans, also has a lot to learn from Gernsback’s views. The historical connection between science fiction and patent law forces us to take a hard look at one of patent law’s most deeply-held principles—that patents are only available for inventions that are currently possible. On the one hand, Gernsback’s extreme position reaffirms why this principle is important. It should not be easy to control the future. The law wisely incorporates doctrines that make it hard to patent inventions that are still so many years away that we call them mere science fiction. At the same time, however, Gernsback’s insistence that science fiction is important for innovation sheds light on the countless “non-enabled,” totally “incredible” visions of the future that patent law leaves out. Science fictional inventions, precisely because they are not yet possible, can impart useful information, and inspire future inventors, in ways that patents cannot. One of the most important differences between science fiction and patents, in fact, is that people actually read science fiction, and are deeply moved by it. Gernsback, as usual, put it best. Science fiction imparts “knowledge, and even inspiration, without once making us aware that we are being taught.” It “fires the reader’s imagination more perhaps than anything else of which we know.” Very few people can say that about reading patents. This matters. If Gernsback was right—and as we show, in some cases he certainly was—then science fiction has inspired some of the inventions we have today. And it did so precisely because it failed patent law requirements like enablement and operable utility, describing inventions which the author could imagine but had no idea how to put into practice. We cannot perform a meaningful empirical assessment of science fiction’s impact on innovation. But we do have evidence that some inventions, and many patents, were influenced to some degree by science fiction.

Download the article from SSRN at the link.

Coming Soon: Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press, April 2023) @sandbergrlaw @CardiffLaw @CUP_Law

Coming soon (April 2023):

Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press.

Here from the publisher's website is a description of the book's contents:

There are some stories that need to be told anew to every generation. This book tells one such story. It explores the historical origins of the common law and explains why that story needs to be understood by all who study or come into contact with English law. The book functions as the prequel to what students learn during their law degrees or for the SQE. It can be read in preparation for, or as part of, modules introducing the study of English law or as a starting point for specialist modules on legal history or aspects of legal history. This book will not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law.

Lahav on A Revisionist History of Products Liability @alahav @CornellLaw

Alexandra D. Lahav, Cornell Law School, has published A Revisionist History of Products Liability. Here is the abstract.

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law — that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods — is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.

Download the article from SSRN at the link.

Stern on From Clapham to Salina: Locating the Reasonable Man @ArsScripta

Simon Stern, University of Toronto School of Law, has published From Clapham to Salina: Locating the Reasonable Man in Law & Literature (2023). Here is the abstract.

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

Here is a link to the online publication.

New American Studies Journal: A Forum, Vol. 73: Law, Literature, and the Idea of Justice @NASJ_org @Andrew_Majeske

 From Andrew Majeske, John Jay College of Criminal Justice:

The New American Studies Journal: A Forum (U. of Göttingen), announces the publication of its Vol. 73: Law, Literature, and the Idea of Justice. The issue was edited by Andrew Majeske (John Jay College (CUNY)), and features essays by Amartya Sen and George Anastaplo, and several articles and other matter related to them and their work. The issue also contains law and literature essays by Brook Thomas, James McBride, Dale Barleben, as well as an exchange between Greta Olson and Andrew Majeske regarding Olson’s new book From Law and Literature to Legality and Affect (Oxford UP, 2022)(Majeske’s review of Olson’s book precedes the exchange). The table of contents for the issue follows below, and contains links both to the issue and to the individual essays and other matter. The journal is open access.

 

 

Vol. 73 (2022): Law, Literature, and the Idea of Justice

Published: 2022-12-22

INTRODUCTION

• The Idea of Justice in Climates of Change

ANDREW MAJESKE

 

AMARTYA SEN, GEORGE ANASTAPLO & THE IDEA OF JUSTICE

• Law and Ideas of Justice

AMARTYA SEN

• Justice and Community, Ancient and Modern

GEORGE ANASTAPLO

• Amartya Sen & George Anastaplo on Literature, Law, and the Idea of Justice

ANDREW MAJESKE

• Amartya Sen on Economics and PhilosophyAn Introduction

KOTARO SUZUMURA

• In re Anastaplo Revisited - A Half Century Later

JED S. RAKOFF

• Letter of Miriam Redleaf (nee Anastaplo) about her father, George Anastaplo

MIRIAM REDLEAF

• Professor George Anastaplo: A Remembrance

ANDREW MAJESKE

 

LAW AND LITERATURE IN TEXT AND CONTEXT

• Defenders of Racial JusticeThe Law and Literature Partnership of Albion W. Tourgée and Samuel F. Phillips 

BROOK THOMAS

• Walter Benjamin’s Critique of ViolenceThe State, Police Violence, and Black Lives Matter

JAMES MCBRIDE

• Orwell, Jones and the New York Times:Conversations Shaping the Fundamental Rights of Privacy

DALE BARLEBEN

• Review of Greta Olson’s From Law and Literature to Legality and Affect Followed By a Question and Answer Exchange with Greta Olson

ANDREW MAJESKE, GRETA OLSON

• Cross/Borders: The Transcultural Poet as Counterwitness in Anthony Cody’s Borderland Apocrypha

MATTHEW MORAN

• Bomb and Climate Change in Fact and Fiction

MARIANNA TORGOVNICK

 

POETRY

• Birthright

JOSHUA WEINER

• Ode to Shamash, or on The Problem of Absolutism in the Case of the Law

JAMES DOWTHWAITE

• The Ruins of Nostalgia

DONNA STONECIPHER

• The Horses of Xian

DAVE SMITH

 

OCCASIONAL PAPERS

• Francis Augustus Silva - A Life

JORGE C. PEREIRA

• Review of Susanne Rohr, Von Grauen und Glamour: Repräsentationen des Holocaust in den USA und Deutschland

HEINZ ICKSTADT

 

Corcos on Growing Up With Popular Culture in the Time of Title IX @LpcProf @lalawreview @LSULawCenter

Christine A. Corcos, LSU Law Center, has published Growing Up With Popular Culture In the Time of Title IX at 83 Louisiana Law Review 60 (2022). Here is the abstract.

Generally, while popular culture has reflected Title IX’s existence since its enactment, characters who discuss the impact of the law rarely mention the actual statute. Instead, they discuss its impact and its effects. The writers of these episodes and films might believe that the public cannot understand Title IX’s sophistication, but that might well not be the case. Nevertheless, what the writers do is clear away what they might think is unnecessary information—the name of the statute, the rulings, the procedures—and concentrate on the issues and the effects: the reasons that Title IX exists, the reasons that Congress enacted it, and the conflicts that endure. These issues include peer-on-peer sexual harassment and peer-to-peer bullying, supervisor harassment, inappropriate sexual relationships, and sexual assault. The other information that writers omit is in reference to other statutes and legal theories that might also support harassment or bullying claims.

Download the article from SSRN at the link.

Loeffler on The Religions of Human Rights @Jbloeffler

James Loeffler, University of Virginia, is publishing The Religions of Human Rights in the Harvard Theological Review. Here is the abstract.

The modern human rights movement arose during a moment of unprecedented encounter between global religions in the mid-twentieth century. Yet attempts to parse the historical relationship between human rights and religious thought have almost exclusively taken the form of case studies of individual religious traditions. This focus on intellectual genealogies obscures the fact that much of human rights doctrine emerged from interreligious contacts and conflicts between Judaism and Christianity, particularly in the context of the decolonizing Middle East. This article retraces this interreligious encounter through the writings of Amnesty International founder Peter Benenson, diplomat and theologian Charles Malik, and rabbi and activist Maurice Perlzweig. Together they represent three different theopolitical responses to the problem of rel.igious pluralism after global empire: minoritarian human rights, majoritarian human rights, and cosmopolitan human rights. Recovering these interrelated human rights conceptions exposes the frames of religious difference embedded in the modern Western human rights imagination.

Download the article from SSRN at the link.

Schroeder on A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism @cardozojersj

Joshua J. Schroeder, Schroeder Law, is publishing A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism Forthcoming, The Cardozo Journal of Equal Rights and Social Justice in the Cardozo Journal of Equal Rights and Social Justice. Here is the abstract.

Each of the four most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions of human rights. They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.” As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic Eugene V. Debs. The road to this state of affairs in American law was paved by an under-emphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Scalia’s originalism for being “content to play defensively within the procedural rules of the liberal order,” and that real conservatives should abandon the founding and embrace “illiberal legalism,” a form of progressive legal positivism that Vermeule swears “is not legal positivism.” Such defenders of Hobbes’ Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor’s foot only to measure Cromwell’s, Vermeule’s rejection of Scalia’s originalism and legal positivism is ‘aufhebung,’ rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sort of illogical Hegelianisms.

Download the article from SSRN at the link.

Stramignoni on Figuring Out Justice in Dark Times: On Law, History, and the Visual @law_humanities

Igor Stramignoni, LSE Law School, has published Figuring Out Justice in Dark Times: On Law, History and the Visual in Law and Humanities. Here is the abstract.

What happens when we approach certain objects heuristically as images? How is one to orient oneself through such images? Might those images challenge our existing knowledge of the history of modernisation and written rationalisation of law after the Middle Ages? In this essay, I begin with certain early modern European artworks - paintings, engravings, woodcuts, and drawings - as well as some other less obvious objects - a striking black background in the portrait of a little-known physician, a compelling account of a nocturnal attempt to figure out justice at critical times, the gripping intensity permeating Dürer’s allegories of justice, and so on - and investigate the force those objects may have as images. Overall, the intention is to go beyond treating such objects as impassive historical evidence of the particular effort to conceive law intellectually or, alternatively, as codes for certain preexisting messages to be subsequently decoded. On approaching them differently, we may discover that such objects can sometimes resist our analyses or interpretations forcing us to engage with them in unexpected ways.

Download the article from SSRN at the link.

New Initiative at the University of Helsinki: The Helsinki Legal History Series @CoCoLawProject @HelsinkiLaw @helsinkiuni @eurostorie

 

From Professor Airton Ribeiro, University of Helsinki, an announcement of an exciting new initiative:

 

 

During 2023, the CoCoLaw Project and EuroStorie Centre of Excellence will host the Helsinki Legal History Series. The initiative gathers both established scholars and younger researchers who all work at the intersection of law, society and history. The aim is to promote legal historical research and to illustrate the merits of historical approach in analyzing fundamental questions regarding law's embeddedness in society and the mechanisms of legal change. The seminar series consists of 9 lectures taking place at the University of Helsinki (and streamed online), according to the following program:

January 31st

National Styles beyond Boarders. A Travelogue of Migrating Legal Stories in the Nineteenth Century

Cristina Vano (Università degli Studi di Napoli Federico II)

 

February 28th

European Union and its founding values – a legal history autopsy

Tuuli Talvinko (University of Helsinki)

 

March 28th

From the university-based ius commune to a potentially universal law. A lecture in honour of Mireille Delmas-Marty (1941-2022)

Alain Wijffels (KU Leuven)

 

April 25th

Homesteading and the American Dream

K-Sue Park (Georgetown University)

 

May 30th

The English ‘Law of Succession’ as an expression of European Legal Culture: The Story of its Development

Reinhard Zimmermann (Max Planck Institute for Comparative and International Private Law)

 

September 26^th 

Transnational Legal Transfers: the extraordinary life of JP Benjamin QC (1811-1884)

Catharine MacMillan (Kings College London)

 

October 31^st  

The History of Cultural Heritage in International Law

Pauno Soirila (University of Helsinki)

 

November 28^th

Usus Theologicus Pandectarum: The Civilian Tradition in a Theological Context

Wim Decock (UCLouvain)

 

December 12^th 

Tombos: How registering the Past became Normative and Why it Faltered in the Nineteenth Century

Tamar Herzog (Harvard University)

 

 

CoCoLaw Project

https://www.helsinki.fi/en/researchgroups/comparing-early-modern-colonial-laws

EuroStorie Centre of Excellence

https://www2.helsinki.fi/en/researchgroups/law-identity-and-the-european-narratives)

 

Buzbee on Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules @GeorgetownLaw @UIllLRev

William W. Buzbee, Georgetown University Law Center, is publishing Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules in the University of Illinois Law Review. Here is the abstract.

This Article 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. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why change and choice are the norm in law too. Rarely is law just about ferreting out some isolated, clear, but abstruse legal command. In jazz and legal settings, relative assessments of strength are more commonly apt than are expectations of a single correct answer or simple binary right-versus-wrong determinations. There is a world of difference between claims that law simply provides determinate answers, versus claims that law constrains and guides what remain choices. Much as jazz improvisers must be highly sensitive to the surrounding constrained choices of others, legal analysis of context and consequences of legal choices, with substantial attention to others’ roles and competence, should always be part of legal actions. This different way of thinking about law’s nature helps illuminate and critique both major methodological legal divides, enduring jurisprudential debates, and several cutting-edge case studies. Those case studies include standing law’s transformation, including the 2021 TransUnion standing decision, ongoing battles over what waters are protected by the Clean Water Act, debates over textualist methodology’s claims of constraint, and increasing judicial reliance on the “major questions doctrine” with shifts away from the familiar deferential Chevron framework. Improvising musicians must ensure their choices musically fit with governing forms, practices, and others’ choices. Similarly, the Article closes by illuminating why, to further rule of law values and check power abuses, legal actors should always assess the consequential congruence of their tenable choices with surrounding law, giving substantial weight to statutory policies and linked effects analysis by agencies.

Download the article from SSRN at the link.