Call For Papers: Fourth Annual Symposium on Popular Culture and International Law @opiniojuris

 From OpinioJuris:

It’s that time of the year again! The editorial team at Opinio Juris is pleased to announce the call for papers for our Fourth Annual Symposium on Pop Culture and International Law. 

We welcome abstracts of up to 400 words on any topic relating to international law and popular culture (film, tv, books, video games, or more–get creative!). To be considered, please submit your pitch via email to Alonso Gurmendi and Sarah Zarmsky at s.zarmsky@essex.ac.uk by Friday 1 August 2024 at 17:00 UK time. Decisions will be communicated by 16 August 2024. 

If selected, the deadline for full pieces will be Monday 14 October. The symposium will take place on Opinio Juris the week of 28 October.

We are very much looking forward to reading your submissions! 

Conklin on The Admissiblity of Rap Lyrics in Court: A Review of As We Speak

Michael Conklin, Angelo State University; Texas A&M School of Law, is publishing The Admissibility of Rap Lyrics in Court: A Review of As We Speak in the Journal of Law & Social Deviance. Here is the abstract.

The use of rap lyrics at trial is a timely issue given the current confluence of events, including the Young Thug trial, the Black Lives Matter movement, a growing “tough on crime” sentiment due to rising violent crime, the introduction of the Restoring Artistic Protection (RAP) Act in Congress, and societal debate about separating the artist from the art. This review provides a critical analysis of the 2024 documentary As We Speak: Rap Music on Trial, a film that advocates against the use of rap lyrics as evidence in criminal trials. The cinematography is beautiful, creating an aesthetically pleasing experience. And it is engagingly structured as a road movie with the guide, rapper Kemba, taking the viewer to Chicago, Atlanta, Los Angeles, New York City, and London to interview rappers and legal experts. This results in a powerful documentary that has received glowing reviews from both film critics and audiences. Unfortunately, while the film’s subject is certainly a legitimate topic of discussion, the film suffers from significant shortcomings. This review will analyze how the leading study regarding rap on trial is deceptively presented, misrepresentations of the topic as a free-speech issue whereby rap lyrics are “criminalized,” ineffective attempts to analogize rappers to Shakespearian actors, and claims regarding race that are contrary to the evidence.

Download the article from SSRN at the link.

Forthcoming From Routledge Books: Culture, Secularization, and Democracy (Sophie van Bijsterveld and Hans-Martien ten Napel, eds., 2025)

 Forthcoming from Routledge Books:

Culture, Secularization, and Democracy: Lessons from Alexis de Tocqueville (Sophie van Bijsterveld and Hans-Martien ten Napel, eds., 2025). Here is a description of the book's contents from the publisher's website.

Following the approach developed by Alexis de Tocqueville, this volume views democracy as a cultural phenomenon. It starts from the assumption that if we are to adequately address concerns about the current state and future of modern Western democracies, we need first to tackle the cultural preconditions necessary for the functioning of a democracy. Since Tocqueville’s time, the book takes the most crucial change in the West to be ‘double secularisation’. Here, this concerns, first, the diminished influence of organised Christianity. Even though secularity was partly a product of Christianity, secularisation is highly significant in terms of the cultural underpinnings of Western democracy. Second, it involves a decreased interest in and knowledge of classical philosophy. Chapters on secularity, family life, civic life, and public spirit focus on central elements of the changed cultural foundation of democracy, exploring issues such as identity politics, the public space, and the role of human rights and natural law in a pluralistic and resilient democracy. The volume concludes with a closer look at the implications of current presentism, that is, the view that only the present counts for the legitimacy and effectiveness of democratic systems. Finally, it asks if double secularisation can also offer fresh opportunities for promoting the conditions of a viable democracy. The book will be of interest to academics and researchers working in the areas of law and religion, constitutional law, political science, history, and philosophy.

Call For Papers: Cultural Contours of Justice: Law and Crime Narratives in Popular Imagination

Call For Papers from Dr. Dimitris Akrivos, University of Surrey, and Dr. Alexandros Antoniou, University of Essex:

I am delighted to invite contributions to our interdisciplinary Special Issue Cultural Contours of Justice: Law and Crime Narratives in Popular Imagination for Laws, a high impact factor MDPI journal.

 

🛑All articles will be Open Access so everyone can join the conversation.

🛑There is a 100% article processing fee waiver for all contributions to this Special Issue.

 

For all the fine print and submission specifics, make your way to our special issue’s exclusive page here: https://www.mdpi.com/journal/laws/special_issues/GZQ60XH7QX.

 

Should further enlightenment be required, please drop a line to Dr Dimitris Akrivos at d.akrivos@surrey.ac.uk and Dr Alexandros Antoniou at a.antoniou@essex.ac.uk.

Harris on Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow @memlawschool

Lee Harris, University of Memphis School of Law, has published Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow at 2 Journal of American Constitutional History 297 (2024). Here is the abstract.

Before there was Rosa Parks, Ida B. Wells and women across the United States during the late nineteenth century were challenging discriminatory practices on the public transit system of their era: the railroads. In 1881, Wells, who would eventually become a history-making anti-lynching crusader, was just 19 years old. She was readying herself to leave Holly Springs, Mississippi, her hometown, for the first time and move to Memphis for a higher-paying teaching job. She planned to commute by train to and from her new position. Developers had laid train tracks around the city, and Memphis boasted seven rail lines. In those years of her youth, before she left the South for the national stage, Ida B. Wells was a regular train commuter in Memphis. Also, at the time of her young adulthood, racial segregation was still at its embryonic stage. However, principles of segregation had been spreading incredibly fast into multiple domains, including the nascent transit system. Soon enough, her usual train commute from Memphis set the backdrop for one of her most consequential legal changes taking place in the country and the arrival of Jim Crow. Before Rosa Parks, Ida B. Wells was one of the first women in America who refused to give up her seat and made a legal challenge to the segregationist system that was emerging around the nation. Although she did not win, her actions set the stage for the next several decades of the fight against segregation and Jim Crow.

Download the article from SSRN at the link.

Kent on Executive Power, the Royal Prerogative, and the Founders' Presidency @andrewkent33 @FordhamLawNYC

Andrew Kent, Fordham University School of Law, has published Executive Power, the Royal Prerogative, and the Founders' Presidency at 2 Journal of American Constitutional History 403 (2024). Here is the abstract.

The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.

Download the article from SSRN at the link.

Resnik on Seeing "The Courts": Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy from the 1980s to the 2020s @YaleLawSch

Judith Resnik, Yale Law School, has published Seeing "The Courts": Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy from the 1980s to the 2020s as Yale Law School Public Law Research Public Law Research Paper No. 43.2. Here is the abstract.

From some perspectives, litigation looks vibrant, with front-page coverage of the U.S. Supreme Court’s reconsideration of its precedents and high-profile civil and criminal lawsuits against government officials. Moreover, since the 1980s, the federal judiciary has had an ambitious building program producing dozens of courthouses designed to exemplify the “solemnity, stability, integrity, rigor, and fairness” of adjudication. Such edifices underscore courts’ place in narrations of the United States. Yet the challenges of legitimating government authority, of which judicial actions are a part, have become all the more acute since Managerial Judges was published forty years ago. The world of ordinary litigation is troubled and shrinking, and the disjuncture between judges’ stated goals and their practices has become vivid. Aside from a few aggregations of tens of thousands of cases in “mega” multidistrict litigations (MDLs), filings in the federal courts have flattened and declined to about 240,000 civil cases per year. At both trial and appellate levels, significant percentages of litigants proceed without lawyers; about one-quarter of civil filings and about half of the appeals come from individuals representing themselves. Most circuits have embraced norms of limiting oral arguments and of issuing eighty-five percent of their decisions as non-precedential rulings. Those practices, rendering their work less visible, parallel the lack of transparency of the many managerial decisions at the trial level, where hours on the bench are down to about 320 per year and fewer than one of 100 civil lawsuits ends with a trial. All the while, federal courts remain relatively rich in resources and staff as compared to both state and tribal courts and to agencies. Even as filings likewise have fallen, state courts continue to have tens of millions more cases and larger segments of their dockets in which lawyerless litigants are the norm. Many judges are ill-equipped to respond to disputants with limited resources, often in family conflicts or as debtors and tenants who face resourced adversaries. Further, as the focus shifts to web-based resolution mechanisms, little attention is paid to its privatizing features. Providers of online dispute resolution (ODR) have not seen enabling public access as part of the packet of services to promote. Thus, courtroom-based adjudication is becoming increasingly rare. One possibility is that this form of statecraft is failing and the time has come to abandon its aspirations. Yet, as an heir to a political tradition grounded in the due process ideology of governments obligated to make decisions that are not arbitrary, I am not willing to give up the public service of adjudication and on courts as one of many venues to put into practice commitments of equal treatment. To legitimate decisions, judges need to preside over cases in which litigants are able to provide adequate information. This article analyzes the federal judiciary’s function as an adjudicatory institution and as an “agency” with its own programmatic agendas. During the last few decades, the federal judiciary has successfully lobbied Congress to create and finance a host of projects, including authorizing judges to centralize cases through multidistrict litigation, to select and appoint adjunct magistrate and bankruptcy judges, and to oversee the design of dozens of new courthouses. Since the 1990s, the federal judiciary has also gathered statistics on and repeatedly raised concerns about the number of self-represented litigants. Yet the judiciary has not generated structural responses, such as a national database on the many district court “pro se” projects and new mechanisms to enlist lawyering and other resources, to enable judges to make principled decisions in those cases. Likewise, while the docket is heavily dependent on the cross-litigant subsidies generated through class actions and MDLs, judges have not crafted methods to mobilize the lawyering resources in those configurations to support litigants within or to shape a robust method of overseeing implementation of the resolutions reached. To date, the federal judiciary has not instituted a mechanism to buffer against allocating adjudicatory resources largely based on litigants’ economic wherewithal. Moreover, the federal judiciary, entwined with state and tribal court adjudication, has not joined its counterparts in pressing Congress to provide new streams of funding for all kinds of courts and the people using them. Navigating the political economy of courts producing a crisis of legitimacy requires reorienting the “process due” by revising statutes, doctrine, practices, and rules to respond to an eclectic set of claimants seeking to be heard. “Management” of the people in court does not suffice.

Download the article from SSRN at the link.

Shanks-Dumont on The Aesthetics is International Criminal Law

Daimeon Shanks-Dumont, University of California, Berkeley, is publishing The Aesthetics is International Criminal Law in volume 37 of the Temple International and Comparative Law Journal. Here is the abstract.

Randle DeFalco’s provocative book, Invisible Atrocities, argues that aesthetic perceptions condition what is considered an international crime through the deployment of a social constructivist model of norm development. However, DeFalco forecloses the more radical implications of his work by positing that aesthetic considerations remain anterior to international criminal law’s (ICL) identity; that is, the ontological status of law is understood by reference to Lon Fuller’s analytical essentialism, which insists that for law to be “law” it must conform to eight formal criteria of legality — significant deviation from these parameters and law is no longer “law,” but rather “some other, nonlegal form of rulemaking or social ordering.” The critical potential of Invisible Atrocities is frustrated because to flatten and de-historicize something like ICL (or any legal regime, for that matter), as Fuller does with his eight criteria, is to reify law as an ideal type that contradicts the hermeneutic approach to norm creation implied by the social constructivism model utilized in the rest of the book. This friendly critique of Defalco’s conceptualization of law’s identity follows the work of Pierre Schlag to argue that aesthetics are not merely an influence on law, but rather are constituted as law. This hermeneutic understanding of law as a historically-situated, contingent, and inter-subjective process of meaning creation opens a whole field of totalizing ICL critique, not least of which would be an unmasking of the ideological functions that aesthetics play in determining what (and more importantly, who) are subject to ICL’s attentions. Simply put, if aesthetic considerations are something outside of law, then legal relations that are determined in and through aesthetics may be concealed, but if aesthetics is law, no such closure is possible. Unmasking law’s aesthetic identity forces the issue. In asking why law’s aesthetic identity is used to include/exclude, define/underdetermine, proscribe/condone, or otherwise determine social reality (cui bono?), many other questions — such as the ontological status of “law” as an abstract analytical concept — drop away as rationally insoluble or otherwise uninteresting.

Download the article from SSRN at the link.

Bellin on Murder on the Hearsay Trail @BellinJ @WMLawSchool @TAMU_Law_Review

Jeffrey Bellin, William & Mary Law School, is publishing Murder on the Hearsay Trail in the Texas A&M Law Review. Here is the abstract.

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature – the hearsay prohibition. The problem is that hearsay is difficult to master and astonishingly dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that, “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own. That is just the visible aspect of the problem. Lawyers are no better at hearsay than judges. Yet for every trial, there are countless non-trial resolutions where no evidence is presented, much less ruled upon. When hearsay is involved, parties evaluate the wisdom of these dispositions (dismissals, settlements, and guilty pleas) with only a rough understanding of the evidence that would be admissible at trial. This Article attempts to remedy this unsettling state of affairs. First, to get around the dullness problem, it weaves hearsay analysis into a mystery in the spirit of a John Grisham novel. The fictional tale of intrigue and murder twists and turns while dropping clues that ultimately solve the case. Then, the Article tackles hearsay’s complexity by solving the evidentiary puzzles inherent in those clues, which represent key inflexion points in the doctrine. By explaining which clues can be presented to the jury, and how those answers evolved over time, the Article paints the modern American hearsay landscape and rehabilitates its (unfairly) reviled rules. Finally, the Article explains why – if we are going to have a hearsay prohibition – this is as good as it gets. Contrary to the complaints of a legion of critics, the current hearsay definition is the simplest of the alternatives and offers the best results.

Download the article from SSRN at the link.

Lind on Zensur und Fiktion: Von Fake News bis fiktionale Literatur (Censorship and Fiction: From Fake News to Fictional Literature)

Hans Lind, Yale University, has published Zensur und Fiktion: Von Fake News bis fiktionale Literatur (Censorship and Fiction: From Fake News to Fictional Literature) as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2024-15. Here is the abstract.

German Abstract: Der Beitrag beschäftigt sich mit der Zensur informationeller Falschnachrichten im westlichen Kulturkreis, einschließlich bewusster Lügen und Fake News. Weiterhin werden fiktionale literarische Werke und performative Kunstformen thematisiert – von Romanverbotsverfahren bis zur rechtlichen Sanktionierung von Rap und anderen autofiktionalen Literaturformen.

 

English Abstract: The handbook entry will address the censorship of counterfactual communication, including intentional lies and fake news. Furthermore, fictional literary works and performative art forms will be addressed, from banned books to the judicial sanctioning of rap/hip-hop and other auto-fictional forms of literature.

Download the essay from SSRN at the link.

CFP: Gikii 2024: Gikii's Existential Threat, Or Nerding Out-As-A-Service?

 From Michael Veale, Associate Professor of Law, University College London:

Please see below or at https://www.gikii.org/gikii-2024-call-for-papers/ for the CFP for Gikii London, 4-5 September 2024 at the Faculty of Laws, University College London.

Gikii’s Existential Threat, or Nerding Out–As–A–Service?

As the most powerful technologies companies in the world reorient their whole business models to automated fan-fiction production, we invite you to Gikii 2024, held at the Faculty of Laws, University College London 4-5 September 2024.

Gikii needs you. We are living in a world where most, if not all, previous Gikii papers over the last two decades are proving themselves more prediction than speculation. The arguable purpose of Gikii, using nerd culture to reason about the present and future of technology law and policy, is existentially threatened by contemporary events. Facebook is a zombie wasteland with users worshipping new shrimp-covered deities. Google has transformed from a neutral-claiming search engine to robotically telling users to drink their own urine. Far from learning the lessons from dystopian sci-fi blockbusters, today’s AI companies are actively and explicitly using them as blueprints for design.

Gikii cannot operate under these conditions. Unless you prove us wrong.

We welcome papers (for 10-12 minute presentations) at the interface/nexus/crossroads/hellportal between law, (un)popular culture and technology. The best Gikii presentations make you laugh, then make you think. Your abstract should be concise, flavourfilled and brimming with energy, bearing in mind the short presentation format Gikii favours. You can see previous presentation titles on the Gikii website for ideas.

The deadline is Friday 28 June, so we aim to give you good time to make travel arrangements.

Submit your abstract here: https://cloud.michae.lv/apps/forms/s/rSWScx7xDFeQ5QKRkYXgwMZr

 

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Pfeiffer and Hu on Deconstructing Code Words @ASUCollegeOfLaw @uarizonalaw @law_soc

Deirdre Pfeiffer, Arizona State College of Law, and Xiaoqian Hu, University of Arizona College of Law, are publishing Deconstructing Racial Code Words in volume 58 of Law & Society (2024). Here is the abstract.

Racism has become more covert in post-civil rights America. Yet, measures to combat it are hindered by inadequate general knowledge on what “colorblind” race talk says and does and what makes it effective. We deepen understanding of covert racism by investigating one type of discourse—racial code words, which are 1) indirect signifiers of racial or ethnic groups that contain 2) at least one positive or negative value judgment and 3) contextually implied or salient meanings. Through a thematic analysis of 734 racial code words from 97 scholarly texts, we develop an interpretive framework that explains their tropes, linguistic mechanisms, and unique roles in perpetuating racism, drawing from race, linguistic, and cultural studies. Racial code words promote tropes of White people’s respectability and privilege and Racial/Ethnic Minorities’ pathology and inferiority in efficient, adaptable, plausibly deniable, and almost always racially stratifying ways, often through euphemism, metonymy, and othering. They construct a “colorblind” discursivity and propel both “epistemic racism” (racism in knowledge) and systemic racism (racism in action). We further strengthen applications of Critical Race Theory in sociolegal studies of race by presenting a “racial meaning decoding tool” to assist legal and societal measures to detect coded racism.

Download the article from SSRN at the link.

Arvind and Puset on Partisan Legal Traditions in the Age of Camden and Mansfield @NDLaw

T. T. Arvind, York Law School, and Christian R. Puset, Notre Dame Law School, have published Partisan Legal Traditions in the Age of Camden and Mansfield at 20 Oxford Journal of Legal Studies 1 (2024). Here is the abstract.

The eighteenth century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late eighteenth century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law. Those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of eighteenth-century Whig politics, and argue that they have important implications for how we understand and use the common-law tradition today.

Download the article from SSRN at the link.

MacLeod and Hall on Foundations of the Right of Charitable Uses @StMarys_Law @RegentLaw

Adam MacLeod, St. Mary's University Law School, and Mark David Hall, Regent University, are publishing Foundations of the Right of Charitable Uses in the Mississippi Law Journal. Here is the abstract.

In recent years, municipalities around the United States have enacted ordinances that prohibit or restrict food-sharing in public places. These ordinances make it difficult for charitable souls to share food with those most in need. In one case, a town in Arizona arrested a woman under an ordinance that prohibits sharing food in public for charitable purposes. The closest analogs to these laws are the English anti-almsgiving acts of the fourteenth and sixteenth centuries. One must look that far back in history because infringements of the right of charitable uses of property are exceedingly rare. Indeed, throughout the history of our constitutional and legal tradition, the law has repeatedly and vigorously secured the right to make charitable uses of one’s property. An examination of the history and tradition of charitable uses leads to the conclusion that the right is deeply rooted in our fundamental law. This finding has widespread implications today because the right is at stake not only in the enforcement of food-sharing ordinances but also in other attempts to limit or regulate charitable activity, such as laws that constrain the freedom of charitable organizations to solicit funds, requirements that private charities serve governments’ purposes, and burdens on charities’ exercise of their right of association.

Download the article from SSRN at the link.

Frassetto on The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen" @MarkFrassetto

Mark Frassetto, Everytown for Gun Safety, is publishing The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's 'Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen' in volume 108 of the Marquette Law Review. Here is the abstract.

Recently, the Marquette Law Review published "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen" by Prof. F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms. This article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late-nineteenth century, the period which is most relevant to the Second Amendment analysis of state laws. Second, Francis’s piece fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s piece fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearms possession by intoxicated individuals.

Download the article from SSRN at the link.

Feliu on From the Fox to Onlyfans: The Changing Landscape of Property Law @NovaLawReview

Vicenç Feliú, Nova Southeastern College of Law, is publishing From the Fox to Onlyfans: The Changing Landscape of Property Law in the Nova Law Review. Here is the abstract.

This law review article traces the rich evolution of American Property Law from its origins in Roman Law, through the influence of English Common Law, to its current complexities in the digital age. It highlights the continuous adaptation of property concepts to the evolving socio-political landscape, from fundamental principles like ownership and possession to the protection of intangible assets. The legacy of Roman Law, emphasizing property rights and contracts, laid the foundation for legal systems worldwide. The impact of English Common Law, with its doctrines of real property and equity, shaped American legal frameworks regarding ownership, title, and dispute resolution. Historical events such as the American Revolution and industrialization spurred significant developments in property law, leading to the recognition of new rights like water rights, environmental protection, and intellectual property. In the modern era, technological advancements present unique challenges, especially in intellectual property. Copyrights, patents, trademarks, and trade secrets are crucial for safeguarding innovation in a globalized economy. Issues like digital piracy, data privacy, and artificial intelligence continue to shape property law debates, emphasizing fairness, efficiency, and innovation promotion. This article underscores the enduring legacy of legal traditions and the capacity of property law to adapt to changing circumstances. By understanding its historical foundations and ongoing developments, we gain insight into how property law safeguards individual rights, drives economic growth, and fosters innovation in the United States and globally.

Download the article from SSRN at the link.

Call For Papers: Washington University Law Review Symposium on the 150th Anniversity of Minor v. Happersett @WashULRev

From Hannah Keidan, Chief Diversity Editor, Law Review Lead on the Symposium, Washington University Law Review, h.f.keidan@wustl.edu

Kaitlyn Salyer, EIC, Washington University Law Review, kaitlynsalyer@wustl.edu

Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University School of Law, appleton@wustl.edu

Travis Crum, Associate Professor of Law, Washington University School of Law, crum@wustl.edu

Call for Papers:

On Friday September 27, the Washington University Law Review is hosting a Symposium on the 150th anniversary of Minor v. Happersett, the case in which the Supreme Court held that women were not enfranchised by the Fourteenth Amendment's Privileges or Immunities Clause. We're casting a wide net for potential paper topics, and they can range from Reconstruction-era history, 20th century history on women's civil/political rights, feminist theory, and post-Dobbs developments. Abstracts are due by Friday June 14. Please see below for the Call for Papers. This symposium is primarily run by the students, but Professor Susan Appleton and I are serving as faculty co-advisors, and I'd be happy to answer any questions that you may have. The 150th Anniversary of Minor v. Happersett: The Past and Future of Women's Rights Washington University School of Law September 27, 2024 Call for Papers Abstract Submission Deadline: June 14 The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review's Symposium edition as Volume 6 of Issue 102 the following spring.) In 1872, Virginia Minor challenged a St. Louis registrar's decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a "privilege" of American citizenship. In 1875, the Supreme Court unanimously rejected Minor's assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor's claim, this case remains an important historical moment in both American women's suffrage and the feminist movement at large. This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following: • The history and evolution of women's rights • Past or present voting rights and election law • Ballot initiatives post-Dobbs The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback. The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses-each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses. To apply, please submit an abstract of no more than 500 words to symposiums@wustllawreview.org by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue. Participants will also be invited to submit a paper for publication in the Washington University Law Review's Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract. Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the symposiums@wustllawreview.org address. Kaitlyn Salyer Editor-in-Chief Washington University Law Review kaitlynsalyer@wustl.edu Susan Frelich Appleton Lemma Barkeloo & Phoebe Couzins Professor of Law Washington University School of Law appleton@wustl.edu Travis Crum Associate Professor of Law Washington University School of Law crum@wustl.edu ------------------------------ Travis Crum Washington University in St. Louis School of Law ------------------------------

Amor on "They Willfully Themselves Exile From Light": Exile in Space, Stage and Metatheatre in William Shakespeare's A Midsummer Night's Dream

Zied Ben Amor, University of Sousse, has published “They willfully themselves exile from light”: Exile in Space, Stage and Metatheatre in William Shakespeare’s A Midsummer Night’s Dream at 1 Theatre Academy 93 (2023). Here is the abstract.

Exile runs throughout William Shakespeare’s A Midsummer Night’s Dream. Transformed characters are exiled from the human world when they change shapes. Others are forced to leave their countries and worlds to enter magical ones. Personalities and feelings shift because of magic. Examining the dichotomy between Athens and the forest and the theatrical transformations shows that exile is geographical, emotional and spatial. Exile is also endowed with a transmigrant dimension. The study of metatheatre in the play corroborates the presence of an exilic dimension. Finally, the application of Nathaniel C. Leonard’s and Robert Weimann’s fundamental notions of platea, locus, meta-platea, and meta-locus in A Midsummer Night’s Dream enables us to reach the finding that the Spectrum of Dramatic Layering hosts exilic manifestations. The research merges semantic investigations with the semiotics of theatre. Dealing with the matter of exile both from the lenses of literary and theatrical studies offers broader perspectives to understand the play’s nuances and complexities.

Download the article from SSRN at the link.

Schwartz on May 30, 1787 @WisconsinLaw

David S. Schwartz, University of Wisconsin Law School, has published May 30, 1787 as Univ. of Wisconsin Legal Studies Research Paper No. 1801. Here is the abstract.

In Federalist 39, James Madison characterized the proposed Constitution as "partly national, and partly federal." The federalism debates that have dominated constitutional law and politics from the beginning of the republic to the present play out the tensions between, and relative weights of, these "national" and "federal" elements. The history of U.S. constitutional politics is one in which the nationalism of the Philadelphia Convention was rhetorically downplayed in the ratification debates, and then significantly rolled back by erstwhile Anti-Federalists who became ascendant after the election of 1800. The dominance of the Anti-Federalist-influenced Jeffersonian Republican party after 1800 habituated our constitutional order to an ideology of federalism that, to this day, exaggerates the Constitution's original commitment to its "partly federal" character. Our understanding of U.S. federalism and its history is doomed to incompleteness, if not distortion, without a proper account of the evolution the word "federal" in our constitutional order, from its origin as a descriptor of the decentralized Confederation system to a descriptor of today's predominantly centralized national government. This essay offers a first step toward a semantic or etymological history of the word "federal," by describing and analyzing the first significant appearance of the words "national" and "federal" at the outset of the Philadelphia Convention. I argue that, to the Framers, "federal" referred to the Confederation system that they believed was a failure. On the first day of substantive debate "May 30, 1787" the Framers decisively rejected a "federal" constitution in favor of a "national" one. This decision guided their deliberations for the rest of the Convention, only to be swept under the rug by the rhetorical strategy of the pro-ratification "Federalists."

Download the article from SSRN at the link.

Delgado on The Utopian Liberal: Continuity and Change in the Thought of Charles Sumner

Sebastian Delgado, Cambridge University, is publishing The Utopian Liberal: Continuity and Change in the Thought of Charles Sumner in volume 6 of the Law and History Review (July 2023). Here is the abstract.

Charles Sumner cannot be accused of having an unwarranted consideration for the virtues of consistency. The New Englander Sumner of the 1840s advocated for sectionalist interests so long as they provided a strong counter to the Southern warmongering and slave-owning desires, while the nationalist Sumner of the 1850s championed the federal government as far as it committed itself to limiting slavery’s growth and then eradicating it. The strict constructionist Sumner of 1855 advocated for a narrow construction of the Constitution in discrediting the Fugitive Slave Act, while the Sumner of the 1860s and 1870s demanded an elastic construction for carrying out Reconstruction and ensuring equal rights. Despite these swings in his interpretive philosophy and party switches, Sumner’s thought was consistent, founded on an integral idealism that remained constant despite politics’ vicissitudes. “His partisanship … served as a means to advance moral ends."

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Davis on Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law

William Davis has published Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law. Here is the abstract.

In the literary classic The Count of Monte Cristo, the hero inherits a treasure after escaping the prison in which he was wrongly confined. The central question this comment seeks to answer is, “Was this inheritance transfer legal?” From this starting point, two different legal regimes are analyzed. Beginning with a discussion of the Napoleonic Code in force at the time of both the novel’s setting and publication, this comment then looks to modern Mississippi property law. In the end, the two legal systems are used individually to determine whether the treasure in Monte Cristo was legally transferred and possessed.

Download the comment from SSRN at the link.

Sherwin on Chorological Jurisprudence and Liberal Democratic Flourishing @RKSherwin @NYLawSchool

Richard K. Sherwin, New York Law School, has published Chorological Jurisprudence and Liberal Democratic Flourishing as NYLS Legal Studies Research Paper No. 4764287. Here is the abstract.

These days, it is difficult not to be preoccupied with calamity. Profound crises surround us on many fronts: climate change and ecological catastrophe, the dark shadow of viral pandemics, and dire threats to liberal democracy and the rule of law. In dark times, paralysis and despair can pull us further into the dark. To make our way back to the light we need to marshal every cultural, cognitive, affective, and spiritual resource at our disposal. Global challenges call for global responses. But are our resources sufficient? Is our collective moral imagination up to the task of renewing state and global institutions? Do we have the intellectual as well as the moral resources to build societies where governance is for the benefit of the governed, not the governors? Legal theory, doctrine, and practice presuppose basic assumptions about human nature as well as the nature of the social and natural world around us. We can only resolve conflicts within the horizon of our perception and knowledge, which is to say, within a universe of familiar categories and tools for thinking, feeling, and communicating with others. We create everyday tools for thinking and our tools, in turn, create us. Locked into habituated patterns of thought and feeling, we often forget not only that we can know more, but also that we can know differently.

The full text is not available for download from SSRN.

Sichelman on The Mathematical Structure of the Law @tedsichelman @USanDiegoLaw

Ted M. Sichelman, University of San Diego School of Law, has published The Mathematical Structure of the Law. Here is the abstract.

Scientific “law” and human-made law (“social law”) are both “laws” in a very general sense—scientific laws “govern” the workings of the material world and social laws govern the behavior of people. Beyond this superficial resemblance, do social laws partake of the same sorts of mathematical structures as scientific laws? Many theorists have proposed formal deontic-oriented logical models of legal rights and other entitlements. Here, leveraging the formalism of Wesley Hohfeld and related work, this article proposes a novel, mathematical model of legal entitlements. This model allows for physical and mathematical properties—such as entropy, indeterminacy, temperature, and modularity—to be adapted to provide for quantitative measures of the properties of legal systems. Moreover, previous logical models exhibit an important feature: if all relevant information is known, legal actors hold determinate sets of legal entitlements. Although theorists have modeled legal entitlements under conditions of incomplete information, which can effectively lead to indeterminacy, this article proposes a model in which—even with complete information—legal entitlements can exhibit indeterminacy. Unlike classical indeterminacy, which is of a stochastic nature, this sort of “inherent” indeterminacy is akin to—and can be readily modeled by—the notion of “indeterminacy” in quantum mechanical formalism. These results have important implications for the nature of legal rules, legal artificial intelligence, game theory and the law, and the ontology of rule-based systems more generally. Of particular note, the formalism suggests a novel approach to the quantum measurement problem, which proposes that measurement is a “second-order” physical process—fundamentally different from ordinary, “first-order” physical processes.

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Ryu on How Reasons Make Law

Angelo Ryu, University of Oxford, Saint John's College, is publishing How Reasons Make Law in the Oxford Journal of Legal Studies. Here is the abstract.

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

Download the article from SSRN at the link.

Bonadio and Khan on Remix, Reuse, and Reggae: Creativity and Copyright in Jamaican Music @CityUniLondon

Enrico Bonadio, City University, London, City Law School, and Bryan Khan, University of the West Indies, have published Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law (Enrico Bonadio and Chen Zhu eds., Hart Publishing 2023. Here is the abstract.

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century. And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond. Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

The text of the essay is not available from SSRN.

Brooks and Gamage on The Original Meaning of the Sixteenth Amendment @FordhamLawNYC @davidsgamage

John R. Brooks, Fordham University School of Law, and David Gamage, University of Missouri School of Law, are publishing The Original Meaning of the Sixteenth Amendment in the Washington University Law Review. Here is the abstract.

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property. In this Article we argue—based on the original meaning of the Sixteenth Amendment—that this approach to constitutional tax questions is wrong. The focus of the Sixteenth Amendment and of the Congressional income tax power is not “income” per se, but rather “taxes on incomes, from whatever source derived.” Thus, the question should not be whether the thing being taxed satisfies some isolated definition of “income,” but rather whether that tax in question comports with the original meaning of “taxes on incomes.” This is because, as we show here, the explicit and well-understood original meaning of the Sixteenth Amendment was to overrule the Supreme Court case of Pollock v. Farmers’ Loan & Trust Co. and restore the “complete and plenary power of income taxation” as it was understood at the time. The Amendment did not create Congress’s power to tax income, a power which it had been exercising since the Civil War; rather, it merely removed the impediment Pollock had introduced. This original meaning of the Amendment was communicated clearly at that time both in Congress and in the press. Thus, to understand the power the Sixteenth Amendment authorized, we should look at the practice and experience of income taxation at that time. Our examination shows that federal (and state) income taxes explicitly included many items of “unrealized” income, such as shareholders’ shares of undistributed corporate earnings (the issue in Moore). We also show—for the first time in the modern literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification incorporated elements of “mark-to-market” taxation—treating unrealized gain from the appreciation of assets as gross income for tax purposes. This historical review thus reveals that Congress’s power to tax income is broad and should not be limited by appeals to constrained definitions of “income” isolated from the historical context.

Download the article from SSRN at the link.

Ristuccia on "Dangerous to the Liberties of a Free People": Secret Societies and the Right to Assemble

Nathan Ristuccia, Institute for Free Speech, is publishing 'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble in volume 4 of the Journal of Free Speech Law. Here is the abstract.

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America’s founding and at the time the Fourteenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.

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Keay, Inwood, and Long on Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913 @kris_inwood

Ian Keay, Queen's University, Department of Economics, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Cape Breton University have published Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913. Here is the abstract.

In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin.

Download the article from SSRN at the link.

Syed on Legal Realism and CLS from an LPE Perspective @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Legal Realism and CLS from an LPE Perspective. Here is the abstract.

What is the role of law in political economy? And what is the role of political economy in law? And in both cases, when we speak of “law” and “political economy,” are we speaking of academic disciplines or social realities? This tangle of questions constitutes, I take it, the orienting research agenda of the emerging “law and political economy” movement in legal academia. Questions concerning not so much the interaction as the interrelation of law and political economy, with each of these understood simultaneously as fields of study and areas of social life. And within that agenda the legacy of two prior efforts at grappling with these questions—Legal Realism and Critical Legal Studies (CLS)—looms large. This Article seeks to take stock of that legacy, and to advance a critique of central aspects of the received traditions of Realism and CLS, for the sake of developing new foundations for the analysis of both law and political economy. The best way to understand Legal Realism and CLS, this Article contends, is along two dimensions: (1) the first concerns the critique of legal reasoning; (2) the second the role of law in society. After setting out the central Realist and CLS claims on both these fronts, I offer critiques on each, ones that seek to push further in the same direction as the Realist/Crit views but in ways that ultimately repudiate the premises underlying these views. The main lines of Realism and CLS are, I contend, hostage to formalist premises in legal theory and liberal ones in social theory. This owes to the posture of internal critique that both adopted as their dominant strategy. Yet a central claim of the present Article is that the method of critique is always already a method of construction, both in the critique of law and the critique of political economy. To think the two may be separated is perhaps the fundamental flaw in the dominant strands of Legal Realism and CLS. And so in that vein, the Article offers a set of contrasting ideas for the development of legal, political, and social theory.

Download the article from SSRN at the link.

Feigenson on Saying It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts v. Goldsmith

Neal Feigenson, Ouinnipiac University School of Law, has published Say It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Here is the abstract.

The majority and dissenting opinions in the Supreme Court’s recent case on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, feature an unprecedented number of pictures: seventeen separate illustrations, almost all color photographs, and all but one embedded in the opinions instead of being relegated to an appendix. Images have appeared in SCOTUS opinions before, but never like this. This paper explores the functions and deeper significance of this outburst of visuality. In the two opinions, Justice Sotomayor’s for the majority and Justice Kagan’s dissent, the selections and sequences of the images tell very different stories of the dispute. The Justices also use their pictures to present their divergent theories of the case. No SCOTUS opinions have come close to using pictures this purposefully before, so it’s worth examining how the Justices did it here. Those pictures, of course, are surrounded by words. The pervasive picturing invites us, as no previous SCOTUS cases have, to think about the relationships between images and text in judicial opinions. Justices Sotomayor and Kagan verbally frame our viewing in contrasting ways. Not surprisingly, the words they use to refer to and describe the pictures they show underscore their opposing narratives and arguments. More than that, their words conceive of looking at pictures differently. Justice Sotomayor implies that we should regard her pictures simply as visual support for and authentication of her verbal claims. Justice Kagan, in contrast, exhorts us to really look at the pictures, a more active engagement that may make us more responsive to what pictures, perhaps especially pictures like Warhol’s, can do. Relatedly, their opinions reflect different ideas about pictorial meaning in general. For Justice Sotomayor, pictures just are (or, in this case, who what) they depict. This is characteristic of a naïve realist stance toward pictures. For Justice Kagan, pictorial meaning is a more complicated matter, emerging not only from what can be seen in the picture but also from the picture’s contexts, including expert commentary and other pictures. This matters for two reasons. First, while the Justices’ contrasting stances on pictorial meaning may follow from their opposing interpretations of the first fair use factor, the converse may also be true: They may approach fair use as they do in part because they have different ideas about pictorial meaning. Second, and more broadly, as pictures of all kinds play an ever greater role in legal proof and legal argument, getting decisions right depends on getting pictures right. What judges think pictures mean, and when it should even be part of their job to figure out what they mean, become increasingly important. Andy Warhol Foundation tells us something about this.

Download the article from SSRN at the link.

Bernick on Horrifying Jurisprudence @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Horrifying Jurisprudence as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

This Essay uses the horror video game Alan Wake 2 as a jumping-off point to discuss and critique horrifying jurisprudence—accounts of law that evoke the emotion of horror. By centering on a horror writer whose storytelling shapes the real world, Alan Wake 2 invites analogies to legal interpretation. Legal interpretation often involves storytelling and produces real-life horrors. No legal philosopher captures the narrative and horrific elements of lawmaking as vividly as Robert Cover. Challenging Ronald Dworkin’s optimistic account of judges as chain-novelists who can creatively bend the arc of the law towards justice, Cover contends that judges are generally uncreative members of violence-dispensing organizations. They spend most of their time killing—physically and metaphysically, destroying bodies and entire worlds. More horrific still is the vision articulated by the most memorable character in Cormac McCarthy’s Blood Meridian, Judge Holden. The Judge embraces as inevitable the killing that Cover laments and denies a hope that Cover left open—that of messianic legal transformation from without the system. Although Alan Wake 2 isn’t about jurisprudence, it depicts transformative acts of democratic storytelling for which there are analogues in ongoing resistance to unjust legal systems. As horrific as legal systems can be, things are not so bad as Cover and McCarthy suggest. We can transform what might appear to be inescapable loops of domination into empowering spirals. We don’t have to create horrors.

Download the Essay from SSRN at the link.

Engstrom and Stone on Auto Clubs and the Lost Origins of the Access-to-Justice Crisis @StanfordLaw @YaleLJournal

Nora Freeman Engstrom and James Stone, both of Stanford Law School, are publishing Auto Clubs and the Lost Origins of the Access-to-Justice Crisis in the Yale Law Journal. Here is the abstract.

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput. Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all. Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.

Download the article from SSRN at the link.

Literature and Laws: Online Symposium, April 13, 2024: Bournemouth University

News of an interesting online symposium:

From Julia Round, Associate Professor of English and Comics Studies, Head of the Narrative, Culture and Community Research Centre, Bournemouth University

'Literatures and Laws' Online Symposium on April 13th, 10 am to 5.15 pm. 

 

The registration link is here:

https://www.eventbrite.co.uk/e/literatures-and-laws-online-symposium-tickets-873226523037?aff=oddtdtcreator

 

The Zoom link for the event should be in the confirmation email.

 

and the programme is available here:

https://www.bournemouth.ac.uk/research/centres-institutes/narrative-culture-community-research-centre —we will keep attendees posted regarding any changes.​

Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

Download the article from SSRN at the link.

ICYMI: Greenfield on Original Penumbras: Constitutional Interpretation in the First Year of Congress @Kentgreenfield1 @BCLAW @ConnLRev

ICYMI: Kent Greenfield, Boston College Law School, has published Original Penumbras: Constitutional Interpretation in the First Year of Congress at 26 Connecticut Law Reivew 79 (1993).

The records of the floor debates in the House of Representatives during 1789, the first year of Congress, are among the most revered historical sources for constitutional scholars. In 1789, the House was filled with men who had been instrumental in both the fight to gain independence from Britain and in the founding of the nation. Eight members of the House, including James Madison, had been delegates to the Constitutional Convention in Philadelphia two years earlier. The First Congress was charged with putting the new Constitution into effect. Its decisions on issues ranging from the creation of the executive departments to the establishment of the judiciary amounted to, in effect, the first institutionalized constitutional decision making of the new nation. The Supreme Court has used the records of the First Congress as the basis for numerous decisions on specific constitutional questions. Constitutional scholars have also looked to the First Congress for insight into substantive constitutional issues. Unfortunately, neither the Court nor scholars have looked to the records of the First Congress to guide or to inform the contentious debate over broad questions of constitutional interpretation. Taking advantage of the recent publication of a comprehensive record of the First Congress, this Article provides a review of the major debates that turned on constitutional issues and the interpretive methodologies Members used in reaching their conclusions. In addition, this Article sets out two important insights: (1) Members of the First Congress used an extraordinarily broad range of interpretive methodology to construe the Constitution, and (2) Members did not generally consider the intent of the Philadelphia Framers to be determinative. These insights have implications for how judges and scholars interpret the Constitution today. Part II of this Article describes in detail the six major debates in the House of Representatives in 1789 that turned on questions of constitutional interpretation. Part III demonstrates more fully the implications of these findings and suggests that the records of the First Congress should be used as a guide by judges and scholars as they grapple with modem constitutional interpretation.

Download the article from SSRN at the link.

Syed on Morty's Two Testaments @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Morty's Two Testaments. Here is the abstract.

Almost a half century after it was first launched, Morton Horwitz’s diptych on The Transformation of American Law remains a colossus on the landscape of American legal historiography. The reason lies not with any universal assent the books commanded, either then or now. Indeed, upon its publication, Book 1 was the target of more vociferous attacks than any work of American legal history since Charles Beard and today is often taken to have been decisively “refuted.” Book 2, meanwhile, although more respectfully received, has also had less of an impact, so muffled as to be muted. No, the reason for the Mt. Rushmore status of the two volumes lies in the virtuoso manner in which Horwitz combined in a single person two talents rarely brought together: the historian’s eye for deep context and the telling detail, and the theorist’s eye for large, even sweeping, themes. Yet three puzzles persist about the two volumes: First, has Book 1 really been refuted? Two, why has Book 2’s impact been so much more muted? Finally, can the two testaments be reconciled or must one choose between the Old and the New? The stakes of these questions are not limited to the reception and interpretation of Transformations. Rather, they go to some of the largest substantive and methodological issues in American legal history today: (1) the relation of legal doctrine to socioeconomic developments; (2) the relation of legal theory to social ideology; and (3) the relation of each to the other. The present Essay offers a revisionary account of Transformations that seeks to answer the three interpretive puzzles in a way shedding new light on the three substantive issues. It argues, first, that in contrast to commonly received wisdom, Book 1 was in fact less an exercise in Marxian than Beardian analysis, albeit one strongly inflected by Polanyi. So reconceived, its fundamental substantive and methodological lessons—regarding the relation of legal doctrine to socioeconomic transformations—still stand up quite well today, despite the dual onslaught of internalist legal scholars and externalists from law-and-economics. Second, and again in contrast to prevailing wisdom, Book 2 is in fact more, not less, Marxian than its predecessor, although here too with a Polanyian inflection. And so reconceived, its central substantive and methodological lessons—regarding the relation of legal thought to social ideology—now subject to the dual onslaught of critical legal scholars and those from law-and-society, also hold up well. Finally, not only can the central lessons of each book be integrated with the other, but such a synthesis is precisely what is needed to rejuvenate a critical legal historiography that, in the mode of law and political economy, seeks simultaneously to investigate law’s institutional with its ideological dimensions.

The article is not available for download from SSRN.