Friedell on Judge Willam Marvin and the Law of Salvage

Steven F. Friedell, Rutgers Law School, has published Judge William Marvin and the Law of Salvage at 12 British Journal of American Legal Studies 2 (2023). Here is the abstract.

This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839-45; 1847-63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America’s leading authorities on maritime law. It discusses why Marvin continued to act as a Superior Court judge for over a year after Florida ceased to be a territory. Lastly, it recounts how Marvin superintended the city’s notorious wrecking industry.

Download the essay from SSRN at the link.

Hornby and Akrawi on History Lessons: Instructive Legal Episodes from Maine's Early Years--Episode 3: An Enslaved Man Suing in Federal Court @GB2d

D. Brock Hornby and Emma Akrawi have published History Lessons: Instructive Legal Episodes from Maine's Early Years — Episode 3: An Enslaved Man Suing in Federal Court at 26 Green Bag 2d 101 (2023). Here is the abstract.

In 1837, Lambert Bercier of French Guadeloupe engaged Captain Sylvanus Prince of North Yarmouth, Maine, to transport Bercier's 30-year-old slave Polydore and Bercier's 17-year-old son Eugene to Maine on board the brig Galen. On the voyage, the Captain repeatedly assaulted Polydore. Polydore brought a civil suit for damages in federal court in Portland, Maine. The outcome was Polydore v. Prince, an 1837 federal decision by Judge Ashur Ware that is often ignored and sometimes mischaracterized, holding an enslaved man could sue in federal admiralty court for floggings on the high seas. This article revisits the case, drawing from recently accessed archived court documents.

Download the article from SSRN at the link.

Goluboff on "Charlottesville" as Legal History @RisaGoluboff @UVALaw

Risa L. Goluboff, University of Virginia School of Law, is publishing “Charlottesville” as Legal History in volume 1 of the Journal of American Constitutional History (2023). Here is the abstract.

This article was originally a plenary lecture at the American Society for Legal History 2022 Annual Meeting. It offers a preliminary legal history of the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on August 11 and 12, 2017, as well as a meditation on the process of writing such a history. It explores questions of autobiography, legal history methodology, legal normativity, narrative framing, and the role of law in political protest and violence.

Download the essay from SSRN at the link.

Kopel and Greenlee on This History of Bans on Types of Arms Before 1900 @SturmCOL @HeartlandInst @gunpolicy @CatoInstitute

David B. Kopel, Independence Institute; Denver University College of Law; Cato Institute, and Joseph Greenlee, The Heartland Institute; Firearms Policy Coalition; Millenial Policy Center, are publishing This History of Bans on Types of Arms Before 1900 in volume 50 of the Journal of Legislation (2024). Here is the abstract.

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America. Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons. The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis. Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons. It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women. The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines. Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.

Download the article from SSRN at the link.

Brown on Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings @ColumbiaLaw @columbiajla

Joanna Brown, Columbia Law School, is publishing Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings in the Columbia Journal of Law & the Arts. Here is the abstract.

Supreme Court confirmation hearings serve a unique role in our government: they are the only instances where future Justices and their judicial philosophies are televised and subject to the scrutiny of not only the Senate, but also the public. Especially as judicial nominations become increasingly politicized and polarized, appearing trustworthy, likeable, and sensible becomes essential to nominees’ candidacy. Humor thus arms judges with the ability to volunteer positive information, appear humble, showcase values, lighten difficult topics and otherwise bond with Senators. Perhaps more saliently, it enables them to dodge, correct, or mock contentious or unflattering lines of questioning. By studying when, why, and how nominees use humor, we can get a glimpse into their future jurisprudence and decisions on the Bench: avoiding a topic or making light of a question may seem harmless in the hearing, but can actually reveal a nominee’s position on an issue and serve an important truth-telling role.

Download the article from SSRN at the link.

Cunningham and Roemer on Whether a President Can Be Impeached for Non-Criminal Conduct: New Linguistic Analysis Says Yes @ClarkGSULaw @uroemer @GeorgiaStateU @GeorgiaStateLaw

Clark D. Cunningham, Georgia State University College of Law, and Ute Roemer, Georgia State University, are publishing Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

Download the article from SSRN at the link.

Guerra-Pujol on Adam Smith and the Balliol College Conspiracy @PUCPR1 @UCF

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith and the Balliol College Conspiracy. Here is the abstract.

Did Adam Smith’s academic superiors at Balliol College, Oxford conspire to search his private rooms, and was the young scholar then reprimanded by them for the heresy of reading David Hume? Although this 18th-century conspiracy story has been retold many times, its veracity has never been corroborated. This paper thus contributes to the Adam Smith literature in three ways: by assembling in one place the original reports of the Oxford conspiracy, by showing how this oft-told Adam Smith conspiracy story has evolved over the years, and by subjecting these accounts to lawyerly scrutiny.

Download the article from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

Rosenthal on Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen @Chapman_Law @AmULRev

Lawrence Rosenthal, Chapman University School of Law, is publishing Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller To Bruen in volume 73 of the American University Law Review. Here is the abstract.

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis. Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

Download the article from SSRN at the link.

Call For Papers: 2023 Law, Literature, and Humanities Conference @lawlithum

From Professor Timothy Peters, University of the Sunshine Coast, the CFP for the 2023 LLHAA Conference:

It is our delight to share the call for papers for the 2023 Law, Literature and Humanities Association of Australasia Conference – “Deus Ex Machina: Law – Technology - Humanities”. This is going to be an excellent event and a wonderful opportunity to gather together as scholars across law and humanities.

 

The conference runs from 11-14^th December, hosted by Professor Kieran Tranter and the Human Technology Law Centre, QUT Law School (Brisbane, Australia) and will include a PhD/Research Student workshop on the 11th.

 

The conference team are organising a brilliant line-up, which includes:

• Keynote from Associate Professor Mitchell Travis, Director for the Centre for Law and Social Justice at the University of Leeds who will speak on “Dystopia Now”.
• Special Screening and discussion of Luis Gómez Romero and Desmond Manderson’s play “Twenty Minutes with the Devil”.

 

And more keynotes and plenaries will be announced soon!

 

Please see attached the call for papers flyer and further information is available at the conference website:

https://research.qut.edu.au/htlc/deus-ex-machina-law-technology-humanities/

 

CFP closes 4^th September – and you can submit either a general paper to the conference or to one of the numerous streams.

 

Please circulate amongst your networks and we look forward to seeing you in December!

 

 

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.

Pfander on Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World @NorthwesternLaw @FordhamLRev

James E. Pfander, Northwestern University School of Law, is publishing Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World in volume 92 of the Fordham Law Review. Here is the abstract.

For some time, the Supreme Court has used standing doctrine to limit the authority of federal courts to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation. In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the Republic. During the 1790s, Quakers and other anti-slavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Abolition Society, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Article recounts a history in which all three branches of the federal government – Congress, courts, and executive branch officials – viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Article II or III of the Constitution.

Download the article from SSRN at the link.

Laguardia on Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Debate @montclairstateu

Francesca Laguardia, Montclair State University, has published Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric at 9 Journal of Law and the Biosciences 1 (January/June 2022).

The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Download the article from SSRN at the link.

Newly Published: Haiyan Lee: A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press) @UChicagoPress

Newly published:

Haiyan Lee, A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press, 2023). Here from the publisher's website is a description of the book's contents.

To many outsiders, China has an image as a realm of Oriental despotism where law is at best window dressing and at worst an instrument of coercion and tyranny. In this highly original contribution to the interdisciplinary field of law and humanities, Haiyan Lee contends that this image arises from a skewed understanding of China’s political-legal culture, particularly the failure to distinguish what she calls high justice and low justice.

In the Chinese legal imagination, Lee shows, justice is a vertical concept, with low justice between individuals firmly subordinated to the high justice of the state. China’s political-legal culture is marked by a mistrust of law’s powers, and as a result, it privileges substantive over procedural justice. Calling on a wide array of narratives—stories of crime and punishment, subterfuge and exposé, guilt and redemption—A Certain Justice helps us recognize the fight for justice outside the familiar arenas of liberal democracy and the rule of law.

Forthcoming from Oxford University Press: Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 @stephen_bogle @OxUniPress

 Forthcoming from Oxford University Press:

Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 (OUP, 2023) (Oxford Legal History). Here from the publisher's website is a description of the book's content.

Contract Before the Enlightenment represents a fresh investigation of what was then a ground-breaking approach to the law of contract written by James Dalrymple, Viscount Stair (1619-1695), lauded by some as the founding father of Scots law.

As a judge and public figure, Stair was at the forefront of both political and legal developments in Scotland from the 1640s until he died in 1695. This study explores the development and reception of his ideas relating to the law of contract on the eve of the Scottish Enlightenment. It is here that Stair's legal legacy is most evident, and where the imprint of Calvinism, Aristotelianism, and Protestant natural law can be found within Scottish legal thought.

In his legal treatise, the Institutions of Law of Scotland you find a sophisticated, innovative, and novel synthesis of Roman law with Stair's own Calvinist variant of a Protestant natural law theory. Yet it is also possible to find, once the theistic premises of Stair's natural law theory are dropped, the beginnings of a form of Scottish moral philosophy that rose to prominence in the eighteenth century.

Undoubtedly, Stair is not only a key figure within Scottish legal history but also significant to how we understand the transition of Scottish intellectual life from the execution of Charles I to the emergence of the Scottish Enlightenment.