Caton on Pluralism and Public Reason: An Entangled Analysis of Early Modern England @NDSU

James Caton, North Dakota State University, Department of Agribusiness and Applied Economics; American Institute for Economic Research; North Dakota State University, NDSU Center for the Study of Public Choice and Private Enterprise Department of AgriCommunity, is publishing Pluralism, and Public Reason: An Entangled Analysis of Early Modern England in Realism, Ideology, and the Convulsions of Democracy. Here is the abstract.

James Buchanan recognized that governing arrangements were certified by a constitutional moment. He also recognized that there existed a continual bargaining over these arrangements. There exists not a single constitutional moment, but an endless series of constitutional moments by which the social contract evolves. This work outlines a framework for interpreting the formation and transformation of the social contract and uses this framework to identify changes in the social fabric that enabled the development of pluralism in pre- and post-Reformation England. Proper framing of this transformation requires consideration of interaction between ideas and institutions across political, economic, legal, and religious spheres. Ideological diversity had enabled the English Reformation, an institutional shift that ultimately diminished the efficacy of cooperation between church and state. The development of a particularly liberal, English worldview reflecting growing autonomy for individuals and communities is evidenced by the growing use of language related to concepts of virtue, commerce, and liberty.

Download the essay from SSRN at the link.

Forthcoming: Justin Steinberg, Law and Mimesis in Boccaccio's Decameron (Cambridge University Press, 2023) @CambridgeUP @ArsScripta

Forthcoming from Cambridge University Press: Justin Steinberg, University of Chicago, Law and Mimesis in Boccaccio's Decameron (2023). Here from the publisher's website is a description of the book's content.

In Boccaccio's time, the Italian city-state began to take on a much more proactive role in prosecuting crime – one which superseded a largely communitarian, private approach. The emergence of the state-sponsored inquisitorial trial indeed haunts the legal proceedings staged in the Decameron. How, Justin Steinberg asks, does this significant juridical shift alter our perspective on Boccaccio's much-touted realism and literary self-consciousness? What can it tell us about how he views his predecessor, Dante: perhaps the world's most powerful inquisitorial judge? And to what extent does the Decameron shed light on the enduring role of verisimilitude and truth-seeming in our current legal system? The author explores these and other literary, philosophical, and ethical questions that Boccaccio raises in the Decameron's numerous trials. The book will appeal to scholars and students of medieval and early modern studies, literary theory and legal history.

Chapman on Slave Cases and Ingrained Racism in Legal Information Infrastructures @UMDLawLibrary @UMDLaw

Jennifer Elisa Chapman, University of Maryland School of Law, University of Maryland Thurgood Marshall Law Library, has published Slave Cases and Ingrained Racism in Legal Information Infrastructures in Antiracist Library and Information Science: Racial Justice and Community (K. Black and B. Mehra, eds., Emerald Publishing, 2023) (Advances in Librarianship; 52).

Present-day courts, practitioners, and scholars continue to cite to and rely upon cases involving slavery and enslaved persons to construe, interpret, and apply common-law principles of property, contract, family, tort, and other areas of the law. Often a case’s connections to slavery are not acknowledged in citations. This erasing of context causes institutional harms by both embedding slave-based legal analysis in American legal structures and condoning the detrimental impacts of slavery in society. The deleterious effects of slavery persist through citations to cases involving enslaved persons to support such prosaic present-day issues as warranties on window glass. Slavery may no longer be legal, but its long shadow persists in citations and, thereby, is embedded in the information systems informing the legal profession. The information infrastructures that categorize case law and inform legal research ingrain racism in the American legal system by perpetuating and masking case law connections to slavery and enslaved persons. The legal profession has recently been criticized for the continued citation to cases that state good law or persuasive authority but are rooted in the institution of slavery. This chapter builds on this important research and contributes a necessary element to the discussion – namely how legal information infrastructures contribute to continuing citation to slave cases and how the library and information science (LIS) field can help institute change and promote racial justice.

Download the essay from SSRN at the link.

Glushak on The Status of Loanwords in German @mgimo_en

Vasiliy Glushak, Moscow State Institute of International Relations (MGIMO), has published The Status of Loanwords in German. Here is the abstract.

The emergence of borrowed lexical units in legal texts is due to various factors. Borrowings are often synonyms for terms already used in legal discourse, or they denote a new phenomenon to which a German-language term is eventually chosen, which again leads to the existence of synonymous denotations. This phenomenon is also connected with the history of law. Borrowed elements were often components of paired expressions. Here are just a few examples that included borrowings: Erbschaft oder Succession - confirmieren und bestätigen - Contract oder Bündnis - contravenieren und zuwiderhandeln - Genehmigung und Approbation. The borrowed component was highlighted in writing and in print with a special font. The listing along with the borrowed component of an authentic, German word that reveals the meaning of the borrowing can be seen as a continuation of the tradition already described: fair und angemessen, fair und ausgewogen, fair und unparteiisch. Fair action is thus to be understood as action based on a reasonable, considered and impartial approach. A peculiarity of the German legal language is an active tendency to reject foreign-language terms imposed on it. This can be established by analysing the frequency of use of borrowed synonymous lexemes. The markers of the group of borrowed words are suffixes -tion, -tät, -ier. This table contains information about the use of these suffixes in the German legal texts: GG (Basic Law), BGB (Civil Code), the EU foundation documents (Treaty on European Union (VEU) and Treaty on the Functioning of the European Union (LISSABON), two important regulations (ROM I and ROM II) and one current regulation (VO2022/126) for comparison. The number of words with determinative borrowed vocabulary components -tät, -tion, -ieren in the EU documents is not comparable to the similar vocabulary in the German legal documents. On 412 pages of the Treaty on the Functioning of the European Union and 283 pages of the Treaty of Lisbon there are 503 and 278 words with -tät and over 1,000 words with -tion in both documents. Whereas in the 50 pages of the Basic Law and 422 pages of the GGU there are 44 and 122 words with -tion and 9 and 13 with -tät respectively. Verbs with -ieren are only 25 in the Fundamental Law and 64 in the GGU, while the EU texts mentioned above have between 200 and 300 examples of this. The use of loan words is probably intended to accelerate the unification of European law and to turn the language of legal documents into a kind of lingua franca that is generally understood by everyone working with the document, regardless of their nationality. EU law has a strong influence on the terminological system of German national law. Synonymous designations alternate in the texts of the law in similar contexts: in das Fahrzeug eingebaut, in ein Gerät eingebaut zu werden, im Anzeigegerät integriert, zusammengebaut, ineinander gebaut oder kombiniert. The frequency advantage of German-speaking terms allows us to conclude that the German language is resistant to borrowing. However, the trend towards a quantitative increase in the use of borrowed terms, often unwarranted when a native equivalent is available, makes the future of the terminological system of German language look with concern in view of the trend towards a globalised language of law.

Download the paper from SSRN at the link.

Dyzenhaus and Poole on The Old Commonwealth Model of Constitutionalism @LSEnews @UofTLaw

David Dyzenhaus, University of Toronto Faculty of Law and Department of Philosophy, and Thomas M. Poole, London School of Economics, Law School, have published The Old Commonwealth Model of Constitutionalism as LSE Legal Studies Working Paper No. 11/2023. Here is the abstract.

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ - the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

Download the text from SSRN at the link.

Kerr on When To Admit Art as Evidence @PKUSTL @WUSTL

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing When To Admit Art as Evidence in the Washington University Law Review Online. Here is the abstract.

Jeffery Lamar Williams, better known as Young Thug, is the latest high-profile rapper to have his rap “lyrics” potentially entered into evidence as part of a criminal trial. Young Thug himself faces several racketeering, drugs and weapons-related charges. The rap clique he co-founded, Young Slime Life (“YSL”), has been branded by Atlanta District Attorney Fani Willis as a street gang, whose affiliate members together face well over 60 separate criminal charges, ranging from car hijacking to aggravated assault and murder. The case is sprawling. As is Young Thug’s vast catalog, from which the District Attorney intends to isolate some snippets of vocalizations as evidence of YSL’s alleged gang-like ambitions. In this Article, I suggest why this is problematic. But given the practical reality facing Young Thug, I offer a compromise position that comports with how the Constitution thinks about art and evidence law, and that also does justice to Young Thug’s innovative form of music. In the first line of this abstract, I place “lyrics” in quotation marks not to express skepticism towards rap as a genre, but to question whether a form of music as daringly sonic as Young Thug’s can be legibly reduced to the supposed text that undergirds it. I argue, consistent with my prior work on constitutional art speech, that it cannot. Here I make the limited claim that in keeping with evidence rules like Ga. Code § 24-4-403 (whether probative value of evidence is substantially outweighed by the danger of unfair prejudice) that District Attorney Willis may enter tracks like “Eww” (2014) or “Slime Shit” (2018) into trial as she intends to do later this year, but only in their original audio form, in full (not as parsed snippets) and without subtitles or lyric sheets. As a corollary claim, I argue that the court need not invite experts (whether police or “rap scholars”) to try to make sense of Young Thug’s music. It doesn’t need any explanation. Like most all popular music, its only measure is whether it is enjoyable for an audience.

Download the article from SSRN at the link.

Graber on Copyright Insight Out: A Legal Sociologist's Perspective @cbgraber

Christoph B. Graber, University of Zurich Faculty of Law, is publishing Copyright Insight Out: A Legal Sociologist's Perspective in Kritika: Essays on Intellectual Property, Volume 6 (Peters Drahos, et al., Cheltenham, UK: Edward Elgar, 2023) (forthcoming).

In my work as a researcher and teacher of legal sociology, copyright issues have always played an important role. I have been particularly interested in studying how copyright has changed under the influence of technology. The start of my career as a law professor in 1998 coincided with the invention of file sharing. In the years that followed, I used file sharing in my teaching to illustrate how digital technology challenged the effectiveness of government sanctions as a means of copyright enforcement. In my research, exploring the relationship between materiality and sociality, or how technological infrastructure and law interact, has become central. It focuses on the concept of normative expectations and the related question of how the law can regulate norm-building processes in a social context. Overall, the law and society perspective has proved useful in analysing the social impact of a new technology and in incorporating the insights gained into legal practice in order to make concrete suggestions for improvement.

Download the article from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.

Albert on Multi-Textual Constitutions @RichardAlbert

Richard Albert, University of Texas at Austin, School of Law, Department of Government; Yale University; University of Toronto, Faculty of Law; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Ottawa, Faculty of Law; Universidad Externado de Colombia, Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University; Maharashtra National Law University Mumbai, is publishing Multi-Textual Constitutions in volume 109 of the Virginia Law Review. Here is the abstract.

Imagine the U.S. Constitution were a collection of several equally supreme constitutional documents rather than one single supreme constitutional document? In this alternative universe, speaking of “the Constitution” would no longer refer only to the official text written in 1787. It would now refer both to that document and to other official texts enacted and popularly recognized as comprising the essential documents of “the U.S. Constitution,” perhaps including the Declaration of Independence, the Emancipation Proclamation, and the Northwest Ordinance. This constitutional counterfactual opens our eyes to a long-standing error that has distorted our understanding of the constitutions of the world. Here is the problem: we have forever believed that constitutions come in two forms: “written” and “unwritten.” But this pervasive and omnipresent distinction is both incorrect and misleading. It is incorrect because all constitutions are in some way written, and it is misleading because all constitutions consist of unwritten rules. What is more, this traditional distinction between “written” and “unwritten” constitutions obscures a profound difference among written constitutions themselves. Some “written” constitutions—like the U.S. Constitution—consist of a single, supreme constitutional document of higher law while others consist of multiple constitutional documents with shared supremacy under law. Ubiquitous but unnoticed, constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions. In this Article, I offer the first comprehensive introduction to multi-textuality. My purpose is to explain, illustrate, and theorize the design and operation of multi-textual constitutions with reference to current and historical constitutions all around the world. I show how they may be created both by design and evolution. I explain their strengths in relation to how they may improve constitution-making, open new avenues for constitutional innovation and flexibility, and forestall the onset of constitutional veneration. I moreover identify some of the problems they raise in law and society: the difficulty of constitutional identification, the challenge of constitutional obsolescence, and the conundrum of constitutional conflict. What results is the first scholarly inquiry into multi-textuality, a deep analytical dive into this distinct constitutional form, and a fascinating counterfactual question: what would change in the operation of the U.S. Constitution if it were a multi-textual constitution consisting of several documents of equal legal force?

Download the article from SSRN at the link.

Grajzl and Murrell on A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions @CESifoNetwork

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, Department of Economics, have published A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions. Here is the abstract.

We combine unsupervised machine-learning and econometric methods to examine cultural change in 16th- and 17th-century England. A machine-learning digest synthesizes the content of 57,863 texts comprising 83 million words into 110 topics. The topics include the expected, such as Natural Philosophy, and the unexpected, such as Baconian Theology. Using the data generated via machine-learning we then study facets of England's cultural history. Timelines suggest that religious and political discourse gradually became more scholarly over time and economic topics more prominent. The epistemology associated with Bacon was present in theological debates already in the 16th century. Estimating a VAR, we explore the coevolution of ideas on religion, science, and institutions. Innovations in religious ideas induced strong responses in the other two domains. Revolutions did not spur debates on institutions nor did the founding of the Royal Society markedly elevate attention to science.

Download the article from SSRN at the link.

Coffee on Catharine Macaulay and Edmund Burke @KCL_Law @OxUniPress

Alan Coffee, King's College London, The Dickson Poon School of Law, is publishing Catharine Macaulay and Edmund Burke in Reconsidering Political Thinkers (Manjeet Ramgotra and Simon Choat, eds., Oxford: Oxford University Press, 2023). Here is the abstract.

This chapter examines the rival and contrasting political philosophies of Catharine Macaulay and Edmund Burke. The two were almost exact contemporaries in the eighteenth centuries and clashed on their understandings of the fundamental nature of political society and the correct the approach to take on reform. Macaulay and Burke were opposites in many ways. As a woman, Macaulay was a political outsider while Burke was a successful politician. Macaulay was a radical and revolutionary republican who based her ideas on a few clear, immutable philosophical truths, while Burke was a cautious and conservative thinker who valued stability and continuity, appealing to tradition rather than speculative principle. In the first section, I introduce Macaulay’s philosophy based around the core ideal of freedom as independence from arbitrary control. In the second, I present Burke’s contrasting organic, contextual and pragmatic approach. Finally, I consider some of the weaknesses in each philosopher’s work, particularly from the perspective of securing the equal citizenship rights of women and the members of minority social groups.

Download the essay from SSRN at the link.

Meese on The Constitutional Moment That Wasn't: 1912-1914 and the Meaning of the Sherman Act @NetworkLawRev @WMLawSchool

Alan J. Meese, William & Mary Law School, has published The Constitutional Moment that Wasn't: 1912-1914 and the Meaning of the Sherman Act in the Network Law Review (2022). Here is the abstract.

This short essay assesses and rejects Tim Wu’s contention that the period 1912-1914 was a Constitutional Moment that clarified the uncertain meaning of the Sherman Act. In the Curse of Bigness, Wu rejects the consumer-focused account of the Sherman Act articulated in Standard Oil v. United States, 221 U.S. 1 (1911) in favor of treating “Bigness” as an independent antitrust harm. Unlike other NeoBrandeisians, however, Wu does not claim that the original meaning of the Act dictates his preferred approach. Instead, he candidly concludes that determining the original meaning of the Sherman Act is an “impossible task.” Wu finds that meaning in the events of 1912-1914, namely the Presidential election of 1912 and subsequent passage of the Clayton Act and FTC Act in 1914. Taken together, Wu says, these events constituted “Antitrust’s Constitutional Moment.” Wu claims that the 1912 popular vote and 1914 legislation were a rejection of the Roosevelt-Debs support for national regulation of monopolies and thus “powerful democratic validation” for “the Wilson-Brandeis economic antitrust program.” This validation purportedly served as “democratic resolution of the uncertainty surrounding the purpose of the Sherman Act.” The classic Constitutional Moment occurred in 1937, when the Supreme Court acquiesced in repeated democratic responses to the Court’s protection for economic liberties. Wu offers a creative and thought-provoking interpretation of the events of 1912-1914. However, three distinct historical facts deprive these events of the sort of Constitutional status Wu proposes. First, President and candidate Taft rejected “anti-Bigness,” embracing Standard Oil’s consumer-focused Rule of Reason and safe harbor for reasonable conduct, i.e., normal industrial methods. Taft believed that “large aggregations of capital” were sometimes necessary to reduce production costs. Banning unreasonable conduct, he said, would prevent large firms from excluding their rivals and ensure low prices that shared efficiencies with the public. Presumably Taft’s voters — who supplied numerically decisive support for the popular majority Wu invokes — rejected anti-Bigness in favor of the consumer-focused Rule of Reason, depriving any Wilson-Brandeis approach of “democratic validation” at the polls. Second, as some have observed, Wilson did not mimic Brandeis’s anti-Bigness views. While campaigning, Wilson opined that “[t]he development of business upon a great scale, upon a great scale of co-operation, is inevitable, and, let me add, is probably desirable.” Wilson declared himself “not jealous of any process of growth, no matter how huge the result, provided the result was indeed obtained by . . . the processes of efficiency, of economy, of intelligence, and of invention.” These and similar statements rejected anti-Bigness and could not support any wholesale “democratic validation” of Brandeis’s views. Third, the Supreme Court did not acquiesce in any purported rejection of Standard Oil’s consumer-focused Rule of Reason. During the 1920s, the Court read Section 5 of the FTC Act narrowly and not as “stronger” than the Sherman Act, as Wu contends. The Court opined that “[i]f real competition is to continue, the right of the individual to exercise reasonable discretion in respect of his own business methods must be preserved.” The Court also held that Section 5 did not “interfere with ordinary business methods.” Thus, the Court assimilated Section 5 into Standard Oil’s Rule of Reason, with its safe harbor for “normal” and “ordinary” conduct, and not vice versa. Four years later the Court, per Chief Justice Taft, reiterated that Standard Oil had properly construed the Sherman Act. The Court’s post-1914 Sherman Act jurisprudence showed no sign of any legal change, constitutional or otherwise. Wu commendably concedes that the original meaning of the Sherman Act may not support his NeoBrandeisian vision. However, the Constitutional Moment he proposes did not occur. Proponents of a NeoBrandeisian Sherman Act must look elsewhere for legal authority to implement their vision.

Download the essay from SSRN at the link.

McGee on From Clair to Annalise: How To Get Away With Being a Black Woman Lawyer on Television @TheEthicsProf

Kellyn O. McGee has published From Clair to Annalise: how to get away with being a black woman lawyer on television in International Journal of the Legal Profession (available online here). Here is the abstract.

Clair Huxtable was the iconic mother, wife, and lawyer on The Cosby Show, an American television sitcom that premiered in September 1984. She appeared to be the perfect lawyer—partner in a law firm, prepared for every case, triumphant in every case, and never stepping over, or anywhere near, the boundary line of legal ethics—all while mothering children ranging in age from 5 to 20 years and supporting her equally successful obstetrician/gynecologist husband. In all her perfection, Clair presumably inspired young women to become lawyers during the middle 1980s through the early 1990s, and beyond. Clair Huxtable was a tough act to follow. The Black women lawyers who came after her on scripted television brought more realism to what it really means to be Black, woman, and a lawyer. These characters have helped direct the professional identities of their real counterparts in the decades since Clair entered our living rooms. This article explores the images of Black woman lawyer characters on scripted television since 1984 and how those images compare or contrast with Clair Huxtable and real-life Black women lawyers.

Cossman on #Metoo and the Corporation in Popular Culture @BrendaCossman @SULawRev

Brenda Cossman, University of Toronto Faculty of Law, is publishing #Metoo and the Corporation in Popular Culture in the Seattle University Law Review. Here is the abstract.

This paper considers #MeToo films and televisions shows that take place within corporations. Bombshell (2019), The Morning Show (2020), The Loudest Voice in the Room (2019) and The Assistant (2019) each explore the issue of sexual harassment and sexual assault within the corporation, loosely based on real storiesI consider the ways in which these films/shows focus on the corporation as the site of #MeToo events: sexual harassment and assault of female employees by powerful men. The representations are paradoxical. The corporate officers and directors are represented as culpable, as at best turning a blind-eye, at worst covering up the violence in the interest of their financial bottom line. Yet in most, the leadership of the corporation is ultimately called to action, if not account; powerful men are fired, the old boy network toppling (yet not). While initially part of the problem, they become part of the solution. Problems of sexual harassment and corporate governance are individualized, and the image of the corporation sanitized through the outcome.

Download the article from SSRN at the link. On a related issue, see Christine A. Corcos, Growing Up With Popular Culture in the Time of Title IX, 83 Louisiana Law Review 60 (2022).

Newly Published: Paul Raffield, Shakespeare's Strangers and English Law (Hart/Bloomsbury, 2023) @hartpublishing @BloomsburyBooks @uniofwarwick

Newly published: Paul Raffield, University of Warwick, Shakespeare's Strangers and English Law (Hart/Bloomsbury, 2023). Here from the publisher's website is a description of the book's contents.

Through analysis of 5 plays by Shakespeare, Paul Raffield examines what it meant to be a ‘stranger’ to English law in the late Elizabethan and early Jacobean period. The numbers of strangers increased dramatically in the late sixteenth century, as refugees fled religious persecution in continental Europe and sought sanctuary in Protestant England.

This is the third sole-authored book by Paul Raffield on the subject of Shakespeare and the Law. The others are Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (2010) and The Art of Law in Shakespeare (2017), both published by Hart/Bloomsbury.

Order online at www.bloomsbury.com – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off! Sign up to our email list to receive updates about our new titles.

 

Stern on Defining Obscenity Before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries in Literature on Trial (Sylvia Sasse and Matthias Meindl, eds.).

The “young person” has often served as one of the primary objects of solicitude for the regulation of obscenity, and while this figure was invoked often during the eighteenth and nineteenth centuries, it did not provide the only rationale; regulators were also concerned more broadly with public morals. This essay considers these rationales in English legal history, starting with late seventeenth century, which marks the earliest instances in which obscenity was expressly the basis for prosecution. The discussion shows how criminal prohibitions against obscenity were rejected in Read (1707) and resurrected in Curll (1727), and discusses the intermittent prosecution of obscene works in the later eighteenth century. The discussion also shows that the intent of the author or publisher had never provided a defense, even in the earliest cases. Although Hicklin (1868) is often characterized as the decision that eliminated intent from the analysis of obscenity, that decision merely reaffirmed what had always been the law.

Download the essay from SSRN at the link.

Sultany on Revolution in the Cambridge Handbook of Constitutional Theory @NimerSultany @CambridgeUP @rpbellamy1

Nimer Sultany, University of London, School of Oriental & African Studies, School of Law, is publishing 'Revolution', in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds, Cambridge University Press) (forthcoming).

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

Download the essay from SSRN at the link.

Watson on Metalinguistic Negotiation in Legal Speech @BWatson_theory

Bill Watson, Harvard Law School, is publishing Metalinguistic Negotiation in Legal Speech in Law & Philosophy. Here is the abstract.

This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and judges sometimes use key terms in legal interpretation – e.g., ‘plain’, ‘meaning’, or ‘holding’ – to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation.

Download the article from SSRN at the link.