Katz on The Strange Case of Dr. Jekyll and Mr. Hyde, his English Wills and Scottish Law

Leslie Katz has published Strange Case of Dr Jekyll, his English Wills and Scottish Law. Here is the abstract.

In Robert Louis Stevenson’s Strange Case of Dr Jekyll and Mr Hyde, much of the action of the story is driven by the belief of Mr Utterson the lawyer that a will made by Jekyll leaving everything to Hyde was a valid will. That belief was caused in turn by Stevenson’s belief that, on a certain point, English and Scottish wills law were the same. Stevenson was mistaken; they weren’t. Although the will would have been valid under Scottish law, it wasn’t under English law. Much of Utterson’s conduct in the story is thus seen to have been unnecessary. The paper also includes background information about Mr Utterson, Dr Lanyon and Dr Jekyll, as well as a chronology of events in the story.

Download the paper from SSRN at the link.

Brady on Uses of Convention History in State Constitutional Law @mollyxbrady @WisLRev

Maureen E. Brady, Harvard Law School, is publishing Uses of Convention History in State Constitutional Law in the Wisconsin Law Review. Here is the abstract.

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states? For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those rec Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources. This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context. Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

Download the essay from SSRN at the link.

Frohock on Reading Lolita as a Sentencing Memorandum @frohock_c @AlbanyLawReview @MiamiLawSchool @umlawschool

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

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Davies on A Great Borrower and a Great Originator, and Also, Perhaps, a Great Lender @horacefuller @NeroWolfePack

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Great Borrower and a Great Originator, and  Also, Perhaps, a Great Lender, at The Gazette–The Journal of the Wolfe Pack, Fall 2021, at 3. Here is the abstract.

This is the full, annotated, original version of a paper that was delivered as a toast to Rex Stout at the The Wolfe Pack's Black Orchid Dinner (on Zoom) on December 5, 2020. The abbreviated toasty version was published (without footnotes), on pages 3 to 5 of the Fall 2021 issue of The Gazette — The Journal of the Wolfe Pack. The paper argues that contrary to conventional wisdom, Rex Stout did NOT borrow from Agatha Christie when he wrote his first Nero Wolfe detective story; rather, it was more likely Christie who borrowed from Stout.

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Stevenson on Revisiting the Original Congressional Debates about the Second Amendment @STCL_Houston

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

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John Witte on Back to the Sources? What's Clear and Not So Clear about the Original Intent of the First Amendment @EmoryLaw

John Witte, Emory University School of Law, has published Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment at 47 BYU L. Rev. 1303 (2022). Here is the abstract.

This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.

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Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.

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McMahon on The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism

Thomas McMahon has published The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism. Here is the abstract.

What is "modern" international law? This paper reviews the history of the development of modern international law, usually intended to mean the break between the leadership of role of the Roman Catholic popes into an international law decided by states without reference to the popes. In other words, papal bulls of discovery, enslavement and other topics stopped having influence. "Modern" international law was especially important to ensure that countries such as England, France, the Netherlands, Belgium, Germany and Italy could compete to steal the lands and resources of the rest of the world for themselves. In other words, modern international law was invented to give a legal vocabulary and justification for white supremacist colonialism without ever using the words "white supremacy."

Download the paper from SSRN at the link.

Epstein and Gulati on A Century of Business in the Supreme Court, 1920-2020 @USCGouldLaw @UVALaw

Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published A Century of Business in the Supreme Court, 1920-2020 as Virginia Public Law and Legal Theory Research Paper No. 2022-55 and Virginia Law and Economics Research Paper No. 2022-16. Here is the abstract.

A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

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Wright on the Logic of History and Tradition in Constitutional Rights Cases @IUMcKinney

R. George Wright, Indiana University School of Law, has published On the Logic of History and Tradition in Constitutional Rights Cases. Here is the abstract.

Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute. It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.

Download the article from SSRN at the link.

Ryan on An Historical and Empirical Analysis of the Cy-Pres Doctrine

C. J. Ryan, University of Louisville School of Law; American Bar Foundation, is publishing An Historical and Empirical Analysis of the Cy-Près Doctrine in volume 48 of the ACTEC Law Journal. Here is the abstract.

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field. First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

Download the article from SSRN at the link.

Guerra-Pujol on Coase and the Corleones

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase and the Corleones in The Godfather and Philosophy: We’re Gonna Make‘em an Argument They Can’t Refute (Joshua Heter and Richard Greene, eds., Open Court, 2023). Here is the abstract.

My contribution to the new volume on The Godfather and Philosophy will explore the problem of reciprocal harms in the context of the famous wedding scene in the original Godfather movie. By way of background, one of the most influential ideas in legal, moral, and political philosophy is the harm principle or the notion that people should be free to do or say whatever they wish unless their actions or words cause harm to somebody else. The Godfather, however, shows us why the harm principle is logically incoherent. Aside from the difficulty of defining what counts as a harm, the main problem with the harm principle is that harms are often reciprocal in nature, a counterintuitive idea that can be traced back to the work of Ronald Coase. That is, most harms are, logically speaking, either the direct or indirect result of both the wrongdoer’s and the victim’s decisions. (This short paper is part of a larger series of works that I have written over the years using examples from popular culture to illustrate the problem of reciprocal harms.)

Download the essay from SSRN at the link.

Solum and Crema on The Original Meaning of "Due Process of Law" in the Fifth Amendment @lsolum @VirginiaLawRev @_rundnc

Lawrence B. Solum, University of Virginia School of Law, and Max Crema have published The Original Meaning of “Due Process of Law” in the Fifth Amendment at 108 Va. L. Rev. 447 (2022). Here is the abstract.

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Download the article from SSRN at the link.

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022) @EdinburghUP

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022). Here from the publisher's website is a description of the book's contents.

The first study of the representation of corporations in US law, literature, and culture Covers key topics in company law including the emergence of corporate personhood, the regulation of monopolies, the piercing of the corporate veil, agent-principal relationships and examines their literary and cultural manifestations Presents interdisciplinary readings of legal, literary and visual texts, including legal treatises, caricatures, novels, and magazine publications Draws on literary texts including Maria Amparo Ruiz de Burton’s The Squatter and the Don, James Fenimore Cooper’s The Bravo, Frank Norris’ The Octopus and Charles W. Chesnutt’s The Partners Draws on cases including Charles River Bridge v. Warren Bridge (1837), Munn v. The State of Illinois (1877) and Santa Clara County v. Southern Pacific Railroad (1886) This book examines the way the corporation – a legal concept of enduring and timely importance in the Anglo-American legal tradition – was imagined in the nineteenth century historical imagination. Stefanie Mueller traces the ways in which literary and cultural representations of the corporation in nineteenth-century America helped shift how the corporation was envisioned; from a public tool meant to serve the common good, to an instrument of private enterprise. She explores how artists and writers together with lawyers and economists represented this transformation through narrative and metaphor. Drawing on a range of legal, literary and visual texts, she shows how the corporation’s public origins as well as its fundamentally collective nature continued to be relevant much longer than previous scholarship has argued.

Jiménez on Private Law Legalism @fjimenez_c @USCGouldLaw

Felipe Jiménez, USC Gould School of Law, is publishing Private Law Legalism in volume 73 of the University of Toronto Law Journal (2023). Here is the abstract.

Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their “private rights”). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this paper, I offer an argument in favor of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance towards positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt.

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ICYMI: Ian Ward, The Play of Law in Modern British Theatre (Edinburgh University Press, 2021) @EdinburghUP @UniofNewcastle

ICYMI: Ian Ward, Newcastle University, has published The Play of Law in Modern British Theatre (Edinburgh University Press, 2021). Here from the publisher's website is a description of the book's contents.

The first book to investigate the place of law in modern and contemporary drama Illustrates the role of contemporary theatre in articulating legal and political issues to a modern audience Analyses a range of different genres in contemporary drama, including historical, poetic, realist, documentary and ‘in-yer-face’ Each chapter focuses on a particular area of law alongside the work of a particular contemporary playwright Shows how modern playwrights engage with issues such as pornography, murder, terrorism, the function of Parliament, and the role of the monarchy Theatre, according to the prominent British playwright David Hare, is our most effective ‘court of justice’. This book assesses the credibility of this arresting claim in the immediate context of contemporary British theatre by investigating the place and purpose of law in a range of modern dramatic settings and writings. Each chapter focuses on a particular area of law and the work of a particular contemporary playwright, and in doing so illustrates the important role of contemporary theatre in articulating legal and political issues to a modern audience. Exploring a range of different genres in contemporary drama, including the historical, the poetic, realist, documentary and ‘in-yer-face’, this volume explores the capacity of modern playwrights to engage with issues such as pornography, murder, the contemporary experience of terrorism, the function of Parliament and the role of the monarchy.

Cohen on Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated For You, the Reader @UGASchoolofLaw @harlangcohen

Harlan Grant Cohen, University of Georgia School of Law, has published Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated for You, the Reader as University of Georgia School of Law Legal Studies Research Paper No. 2022-06. Here is the abstract.

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

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Metallic on Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation @NaiomiMetallic @SchulichLaw @unblawjournal

Naiomi Metallic, Dalhousie University School of Law, is publishing Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation in the University of New Brunswick Law Journal. Here is the abstract.

Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.

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Rabb on Metacanons: Comparative Textualism @intisarrabb @Harvard_Law

Intisar A. Rabb, Harvard Law School, has published Metacanons: Comparative Textualism as Harvard Public Law Working Paper No. 22-24. Here is the abstract.

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

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Mortenson and Gabley on Delegation at the Founding: A Response to the Critics @jdmortenson @nicholas_bagley @ColumLRev

Julian Davis Mortenson and Nicholas Bagley, both of the University of Michigan Law School, are publishing Delegation at the Founding: A Response to the Critics in the Columbia Law Review. Here is the abstract.

This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at http://ssrn.com/abstract=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was. As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.

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Meyer on Connecticut's Anti-Originalist Constitutions and Its Independent Courts

Linda Ross Meyer, Quinnipiac University School of Law, is publishing Connecticut's Anti-Originalist Constitutions and its Independent Courts in volume 40 of the Quinnipiac Law Review (2022). Here is the abstract.

In recent years, the United States Supreme Court has taken up originalist interpretive approaches to the U.S. Constitution. The Court has become convinced (wrongly, in my view) that a traditional common law-style interpretation of constitutional rights undermines the Court’s authority by overstepping its role, usurping the prerogatives of the democratic branches, and stifling legal development by the states. Instead of reasoning from case to case, treating like cases alike in the usual evolutionary way of the common law, a majority of the members of the Court has insisted that constitutional rights should be frozen by English common law practices or treatises extant during the colonial period, and/or framers’ intentions and/or public understandings of constitutional language in 1789 or 1791 or 1868-70. These various and varying originalist approaches are often justified as providing more certainty in constitutional adjudication. Critics claim, however, that these new “originalisms” have the effect of halting the evolution of constitutional rights at the federal level, eroding stare decisis, and calling into question the continuing validity of some rights and constitutional doctrines that had been generated through prior common law development -- like rights of privacy, qualified immunity, privileges and immunities clause interpretation, retroactivity rules, state action requirements, and sovereign immunity doctrines -- while potentially changing the nature of other constitutional rights to a balance set at an earlier time -- like rights of religious exercise, rights of free speech, and criminal procedural rights. Somewhat ironically, as the originalist reformation takes hold, rights at the federal level are becoming ever more unpredictable and unstable, as the Supreme Court revisits and reevaluates many of its prior decisions in light of the latest originalist theory, or the latest historical scholarship on the colonial or founding period. States, of course, must follow the constitutional decisions of the U.S. Supreme Court, but only as to federal constitutional baselines. State constitutions are free to give their citizens more rights than the federal constitution does, and indeed, a more restrained style of interpreting federal constitutional law is often promoted because of its merit in allowing states more constitutional room to develop their own state constitutional and statutory law. In order to provide a firmer foundation of support for a non-originalist approach to state constitutional adjudication in Connecticut, and to explain why the Connecticut courts should not borrow originalist approaches from federal constitutional cases, as some jurists have argued, this paper makes four assertions: 1) As a matter of Connecticut state constitutional history, it makes no sense to assume as a default rule that the Connecticut Constitution should track the U.S. Supreme Court’s interpretation of the U.S. Constitution (except, of course, where the U.S. Constitution preempts state law). 2) As a matter of Connecticut state constitutional history, it makes no sense to assume that a right not present in the state’s colonial period is not sufficiently deeply rooted in Connecticut history to be protected by Connecticut constitutional law. In other words, colonial or pre-colonial originalism was not the original constitutional methodology in Connecticut. Hence, the failure of a litigant to demonstrate an exactly similar colonial or pre-1818 practice, should not doom a state constitutional argument. 3) As a matter of Connecticut state constitutional history, pre-1818 English common law should also not function as a state constitutional default rule, because Connecticut judges never followed English common law as mandatory authority. 4) Finally, as a matter of Connecticut state constitutional history, Connecticut’s constitutional rights provisions should not be interpreted as merely “codifying” rather than “announcing” constitutional rights, because both the 1818 and 1965 Constitutions were explicitly forward-looking, not backward-looking. In short, a close look at Connecticut constitutional history reveals that the Connecticut Constitution should not be interpreted through an originalist lens, and certainly not through an originalist lens that preferences the colonial or English common law period in the manner of recent U.S. Supreme Court approaches. Instead, the Connecticut courts should reclaim their own essential and historical role as interpreters of Connecticut constitutional and common law on grounds of principle, and on the traditional, common-law-style judicial approach of treating like cases alike. This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.

Download the article from SSRN at the link.

Newly Published: Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge, 2022) @routledgepublishing @KatieEBarclay @AmyMilka

 Just published:

Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge Publishing, 2022). Here from the publisher's website is a description of the book's contents.

Cultural Histories of Law, Media and Emotion: Public Justice explores how the legal history of long-eighteenth-century Britain has been transformed by the cultural turn, and especially the associated history of emotion. Seeking to reflect on the state of the field, 13 essays by leading and emerging scholars bring cutting-edge research to bear on the intersections between law, print culture and emotion in Britain across the eighteenth and nineteenth centuries. Divided into three sections, this collection explores the ‘public’ as a site of legal sensibility; it demonstrates how the rhetoric of emotion constructed the law in legal practice and in society and culture; and it highlights how approaches from cultural and emotions history have recentred the individual, the biography and the group to explain long-running legal-historical problems. Across this volume, authors evidence how engagements between cultural and legal history have revitalised our understanding of law’s role in eighteenth-century culture and society, not least deepening our understanding of justice as produced with and through the public. This volume is the ideal resource for upper-level undergraduates, postgraduates and scholars interested in the history of emotions as well as the legal history of Britain from the late seventeenth to the nineteenth century.

Call For Applications: Post-Doctoral Research Positions in Legal History, University College Cork @LawUCC

From Dr. Patrick O' Callaghan, School of Law, University College Cork.

Job Vacancies: Two Post-Doctoral Researchers in Legal History Applications are invited for two Post-Doctoral Researcher/Senior Post-Doctoral Researcher posts based at the School of Law, University College Cork, Ireland for a period of 30 months (2.5 years). 

The researchers will collaborate on the Law and the Inner Self (LAWINSEL) Project, funded by the Irish Research Council. 

The project seeks to better understand the evolution and nature of the idea of the “inner self” in the liberal tradition by viewing it through the prism of legal change from the Middle Ages through to the digital transformations of the 21st century. A core focus of the research will be legal change in the field of personality rights. The researchers will conduct a specific programme of research under the supervision and direction of Dr Patrick O’Callaghan, Principal Investigator (PI) of the project. The ideal candidates will hold a PhD in legal history or a PhD with a substantial legal-historical component. They will have a publication record commensurate with their career stage. 

For one of the posts, an ability to read medieval Latin is desirable. For the other post, an ability to read German legal texts is desirable. A familiarity with the field of personality rights and proficiency in other major European languages are also desirable. Both candidates will have excellent communication, organisation and interpersonal skills. Further details can be found at this link. 

Call For Abstracts: LSU Law Journal for Social Justice and Policy @LSULawCenter @KenLevy2020

                                                                 Call For Papers

 

LSU Law Journal for Social Justice and Policy

November 11, 2022

Virtual

 

The LSU Law Journal for Social Justice and Policy is pleased to announce its Call for Papers for our upcoming symposium on the Industrial Prison Complex System. The Symposium will take place in a virtual format on November 11, 2022. 

 

Submissions can include but are not limited to the following topics:

·      Capital Punishment

·      The Business of Private Prisons

·      Hard Labor as Punishment

·      Implications of the 8^th Amendment

·      Federal v. State v. Private Prisons

·      The implications of the current prison system

·      Restitution for Innocent individuals imprisoned

·      Sentencing Guidelines and the impact on prisons

·      Alternatives to Prison for non-violent offenders

·      Economic Impacts of the Current Prison System

·      Two-Year Anniversary of George Floyd: Where are we at now?

·      Decriminalizing Marijuana

·      Privatization of Probation

·      No Cash Bail v. Cash Bail

 

LJSJP seeks to elevate underrepresented voices in legal academia and to confront pressing social justice issues of the day. Academics at all levels and in all disciplines (not just law) are encouraged to apply.

 

To apply, please submit an abstract of approximately 350-750 words through this form by August 29, 2022.

 

 

 

Choi on Computational Corpus Linguistics

Jonathan H. Choi, University of Minnesota Law School, has published Computational Corpus Linguistics. Here is the abstract.

Scholars and judges increasingly interpret legal text by studying word use in real-world documents, a method known as “corpus linguistics.” But the traditional approach to corpus linguistics encounters several problems. It focuses on word frequencies at the expense of subtler linguistic cues and presents no clear dividing line between correct and incorrect textual meanings. It also requires a variety of subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the method that supports their favored meanings. This Article proposes a new, computational approach to corpus linguistics. It uses machine learning and natural language processing to algorithmically evaluate word meaning. By measuring the semantic similarity between words, we can answer questions of legal interpretation—for example, by testing whether “judge” is similar to “representative,” and therefore whether judicial elections are governed by the Voting Rights Act. Computational approaches produce quantitative estimates of similarity that reflect the intuitive semantic relationships between words. This Article extracts qualitative implications from these quantitative estimates by benchmarking against a known scale of word similarity, based on H.L.A. Hart’s famous “vehicles in the park” hypothetical. Applying computational corpus linguistics, this Article finds that semantic questions in real-world legal cases rarely give clear answers. Borrowing Hart’s analogy, most cases are closer to asking whether a bicycle is a vehicle than whether a car is a vehicle. Moreover, estimates of similarity vary substantially between corpora, even large and reputable ones. This suggests that the choice of corpus matters more than previously recognized and that traditional corpus linguists must consult multiple corpora to decrease the risk of cherry-picking. These empirical findings have important implications for ongoing doctrinal debates outside of corpus linguistics, suggesting that text is less clear and objective than many textualists believe. The Article develops these implications with discussion on the nature of linguistic meaning in legal interpretation. Ultimately, the Article offers new insights both to theorists considering the role of legal text and to empiricists seeking to understand how text is used in the real world.

Download the article from SSRN at the link.

Dhondt on Bringing the Divided Powers of Europe Nearer One Another: The Congress of Soissons, 1728-1730 @HerakleitosMD @VUB_CORE @GRILI_Ugent

Frederik Dhondt, Research Group CORED (Contextual Research in Law); Legal History Institute/Gustave Rolin Jaequemyns Institute of International Law (GRILI), has published Bringing the divided Powers of Europe nearer one another: The Congress of Soissons, 1728-1730 at 2022 Nuova Antologia Militare III 535-642. Here is the abstract.

This contribution reconstructs the Congress of Soissons (1728-1730), a consequence of the Parisian Preliminaries (31 May 1727), an agreement that prevented the eruption of a general war in Europe between the League of Hanover (France, Britain-Hanover, Dutch Republic) and the League of Vienna (Emperor, Spain, Brandenburg-Prussia). The ‘sleeping’ congress did not generate a final peace agreement. Soissons was a congress of peacekeeping (Burkhardt), and in part contributed to the European culture of peace engineering (Ghervas). Besides the central commercial claims that opposed the Maritime Powers to Spain, the delegations reflected on geopolitical questions from the East Indies to Scandinavia, the Baltic and the Mediterranean. They were solicited by multiple actors of the European Society of Princes (Bély), down to the level of private individuals, who hoped for diplomatic intercession. France’s position as equidistant director of various bilateral and collective talks becomes clear through the itineraries of the delegates between Soissons, Fontainebleau, Compiègne and Versailles. The sociability of the congress is not purely curial or Parisian, but also includes life on the countryside. French archives highlight the material and logistical challenges of turning a regional hub as Soissons into an international one. The Hop Archives, which contain a synthesis of the daily reports of the Dutch delegation, and the British diplomatic archives (State Papers Foreign) are complemented by the press and the letters of George Lyttelton, who spent several months in Soissons on his Grand Tour. Not only this public circulation of news on the congress, but also the material culture of the print resources consulted by the diplomats allow to identify this eighteenth-century meeting place within the broader European republic of books, news and letters.

Download the volume from SSRN at the link. 

Rawlings on The Highwayman's Case: William Wreathocke--Lawyer, Robber, Spy and "Founder of the Present State of Perjury" @QMSchoolofLaw

Philip Rawlings, Queen Mary University of London, has publishing The Highwayman's Case: William Wreathocke - Lawyer, Robber, Spy and 'Founder of the Present State of Perjury'. Here is the abstract.

Of the six lawyers named as participating in The Highwayman's Case, only Wreathocke has left a significant impression, and the case was not the only unusual event in his life, nor the most important. Contemporary sources represent him as standing at the head of a formidable gang of robbers operating in London in the 1730s, and as developing a strategy by which perjured witnesses would provide alibis for any gang members brought to trial. His life contains many of the features that shaped criminal justice in the early eighteenth century, such as the panic over organised crime in London and the idea that lawyers were corrupting the justice system. A decade after The Highwayman's Case, Wreathocke was convicted of highway robbery and transported to the North American colonies for life. At this time, the allegations about perjured witnesses emerged. By the 1740s, he had returned from North America and was living in France and the Low Countries, where he worked as a merchant. When the Jacobite rebellion broke out in 1745, he saw an opportunity to provide information to the British government on the rebels' activities. Although he does not seem to have realised his objective of obtaining a formal pardon for the robbery, he eventually returned to England, where he rebuilt his fortune and died in 1764.

Download the article from SSRN at the link.

Call For Expressions of Interest: Digital Vulnerability in European Private Law (DiVE)

 

 

CALL FOR INTEREST

 

 

 

 

Digital Vulnerability in European Private Law

(DiVE)

 

 

 

In recent years, vulnerability has emerged in legal discourse, in dialogue with other disciplines, as a useful concept to capture the fluid and multilayered nature of the human condition and to question the adequacy of some foundational legal and policy norms. Yet, despite the potential of the notion of vulnerability as a key tool to overcome the limits of legal formalism and paternalism and to foster substantive equality, the legal status and effects of the notion under domestic and European laws are is still quite unclear. In particular, the notion of people’s vulnerability has only seldom been applied to the specific forms of exposure to harm that might arise from interaction with digital technologies. In our current and pervasively digitalized world, we believe it is increasingly important to analyze how digital technologies impact preexisting forms of vulnerability or create new ones, and to understand how the law can prevent or address unequal experiences of technology.

This is what we plan to do with our project ‘Digital Vulnerability in European Private Law’ (DiVE), financed by the Italian Ministry of University and Research from June 2022 to May 2025. The project aims to investigate the notion of digital vulnerability by exploring how this notion stands vis-à-vis traditional paradigms of protection of weaker parties (such as rules on incapacity, consumer protection, data protection, anti-discrimination, equality before the law) and to what extent it might properly capture risks and harms stemming from digital technologies.

Throughout the project, three international conferences will be organized.

·      A first conference will be held in April/May 2023 in Ferrara, to inquiry the very boundaries of the notion of digital vulnerability.

·      A second conference will be held in April 2024 in Rome, to examine how digital vulnerability matters in access to, identity construction and protection of health in the digital sphere.

·      A third conference will be held in March 2025 in Trieste, to scrutinize the impact of digital vulnerability on contractual and tortious remedies.

 

 

 

We are particularly interested in identifying the factual conditions in which digital technology – from the web to social media, from platforms to Artificial Intelligence and Distributed Ledger Technologies – might prove disruptive and challenging for people, and in assessing under what conditions, how and to what extent the notion of digital vulnerability might be translated into claims for special legal protection.

The conferences will be held in person and in English. A few speakers will be invited; the majority of contributors will be selected through calls for papers. In line with the scope of each conference, proposals might explore how digital technologies exacerbate pre-existing vulnerabilities or create new ones, and how the notion of digital vulnerability could be translated in legal terms. Our main field of the research is domestic and European private law, but proposals can come from a variety of disciplines (including political science, sociology, linguistics, philosophy, economics) and can be theoretical or empirical, descriptive or prescriptive, quantitative or qualitative, mono-jurisdictional, comparative or pan-European, or combine methods of analysis. Contributions dealing with areas other than Europe might be accepted as well, on a case-by-case basis.

Proposals for contribution will be evaluated by the project’s scientific committee, which is currently under construction. Besides members of the DiVE team, confirmed members of the Scientific Committee currently include Danielle K. Citron (University of Virginia), Hans-Wolfgang Micklitz (European University Institute), Frank Pasquale (Brooklyn Law School), Teresa Rodríguez de las Heras Ballell (University Carlos III of Madrid), Giovanni Sartor (European University Institute), Reiner Schulze (University of Münster), Gunther Teubner (Frankfurt University), Yingqin Zheng (University of London). The organizers of each conference will bear the cost of accommodation and meals for the participants whose proposals have been accepted. Selected conference papers will be published following successful peer review.

Each conference will be preceded by an autonomous call for papers; the call for papers for the Ferrara conference in May 2023 will be distributed soon.

Please feel free to share and spread the word about this call for interest. The project will soon have its own website, but for the time being, should you have any doubt or question or suggestion, please feel free to contact the Project Officer Giacomo Capuzzo at digital.vulnerability@gmail.com.

 

The DiVE Team

 

Claudia Amodio

(Ferrara University)

Amalia Diurni

(Rome Tor Vergata University),

 

 

 

 

 

Camilla Crea

(Sannio University)

Marta Infantino

(Trieste University)

Loredana Tullio

(Molise University)

 

 

Alberto de Franceschi

(Ferrara University)

Luca Perriello

(Marche Polytechnic University)

Archer on How Racism Persists In Its Power @DeborahNArcher @nyulaw @michlawreview

Deborah N. Archer, New York University School of Law, is publishing How Racism Persists in its Power in volume 120 of the Michigan Law Review (2022). Here is the abstract.

The current moment is not unprecedented. Every generation has experienced the rage, urgency, anger, and exhaustion that drive demands for change. Every generation has collectively and publicly grieved racialized brutality and the loss of Black lives. Every generation has been viscerally reminded of racism’s grinding pain and the systems designed to contain, isolate, and crush Black people, physically and psychologically. Every generation is reminded that our systems are still founded on the white-supremacist belief that Black people have “no rights or privileges” beyond those that white people “choose to grant them.” As this country is forced to confront, once again, the truth of who we are and how we got here, James Baldwin’s searing examination of the architecture and consequences of racism, The Fire Next Time, offers a framework for understanding how racism persists in its power. In many ways, Baldwin’s essays were prophetic, diagnosing the ways racism would continue to manifest, day after day, year after year, and generation after generation. It is a lens that connects the injustices of the past to those of today. The Fire Next Time can offer truth and comfort to those of us seeking to understand the cycles of resistance and retrenchment that allow racial inequality to not only persist but thrive.

Download the article from SSRN at the link.

Sheley and Rosen on The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters @zvisrosen @erin_sheley

Erin L. Sheley, California Western School of Law, and Zvi S. Rosen, Southern Illinois University School of Law, are publishing The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters in the Yale Journal of Law and the Humanities. Here is the abstract.

This Article represents the first interdisciplinary case study of the Poe bankruptcy as an inflection point in the legal and cultural history of debt. It shows both how the pitfalls of a short, debtor-focused chapter in bankruptcy history gave rise to the system of today, and how Poe’s indebtedness and bankruptcy helped shape the American Gothic literary forms he made famous. Part One compares bankruptcy law in Poe’s time to that of today, also explaining how bankruptcy came to be and why it was revolutionary. Part Two presents a brief life of Poe and collects evidence of the literal and intellectual impact of the law on his life and thought. Turning to his literary work, it argues that Poe’s fixation on the relationship between debt, degeneration, and official naming reflects the impact of the burgeoning bankruptcy system on individual identity in a Gothic framework. Part Three explores Poe’s bankruptcy case from a technical legal perspective, both in the context of the law at the time and hindsight, showing that there were serious conflicts of interest in the case. We conclude by arguing that Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-confessional process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.

Download the article from SSRN at the link.

Golia on The Critique of Digital Constitutionalism @AJrGolia @MPILheidelberg

Angelo Golia, Max Planck Institute for Comparative Public Law and International Law, has published The Critique of Digital Constitutionalism as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2022-13. Here is the abstract.

This article analyses the critical potential of digital constitutionalism using the instruments provided by societal constitutionalism. The central argument is that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace a more explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory. Digital constitutionalism could then be framed as a theory for the digital age and as an opportunity for a reckoning with the inner contradictions of modern constitutional theory. This article has three goals. First, linking different discourses within digital constitutionalism while highlighting its own critical potential. Second, offering some preliminary proposals based on such reflection. Third, bringing digital constitutionalism closer to the broader galaxy of global constitutionalism. After the introduction, section II offers an overview of societal constitutionalism, highlighting the elements of critique toward liberal, state-centred constitutionalism. Section III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter’s definition and three functionally differentiated systems: politics, economy, law. For each of them, it highlights analytical and normative gains and points at proposals to be further developed. Section IV concludes.

 

 

Download the article from SSRN at the link.

Swanson on The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass @KaraWSwanson @ConnLRev

Kara W. Swanson, Northeastern University School of Law, is publishing The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass in the Connecticut Law Review. Here is the abstract.

In my remarks today, I am focusing on this symposium’s subtitle: “What’s Law Got to Do with It?” In one sense, the answer to that question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address harms suffered during the Tulsa Race Massacre, largely unsuccessfully. This starting panel, though, is not about redress, as important as that topic is, but rather about the startling lack of recognition of the Massacre, that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. I want to focus on one space of non-recognition, law schools, and particularly, on the property law classroom. US lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Tulsa Race Massacre. Without knowledge of the Massacre, lawyers are ill-equipped to answer “what’s law got to do with it?” We cannot use law to change injustices that we cannot see. The costs of such ignorance on the part of lawyers reach beyond the bounds of Tulsa and “its search for justice,” however, as important as those localized discussions are. To explore these deeper costs, I have rewritten our starting question to ask: what might we learn if property law was taught with knowledge of the Tulsa Race Massacre? My short answer is that we all, as lawyers, would learn about race and property in ways that would not only better equip us to engage in the crucial on-going tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. The events in Tulsa on May 31 and June 1, 1921 offer new insights into how, as Professor Cheryl I. Harris demonstrated, “rights in property are contingent on, intertwined with, and conflated with race.” As my long answer, I invite you to follow me on a thought experiment into a lesson that is included early in most property courses, a lesson on the law of trespass. By adding the Tulsa Race Massacre to this lesson, we consider Black Americans as successful property owners, a role in which they seldom appear in a property course. I consider how, once students have learned the definition and purpose of trespass doctrine, often considered foundational to the very meaning of property, we could then review the lesson with attention to the events of the Massacre, asking who committed trespass against whose property and what the legal consequences were. The revised lesson encourages us as lawyers to be attentive to our roles in defining and enforcing property rights in racialized ways. By recognizing the conflation of property rights and race in US law, a truth grounded in history, we gain the power not just to address history – as important as that task is – but also to avoid repeating it, that is, to make a different future by disrupting historic relationships that have tied property and power to racial identity.

Download the article from SSRN at the link.

Risinger on The Welles of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries

D. Michael Risinger, Seton Hall University School of Law, has published The Wellses of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries. Here is the abstract.

The Wells family that is the subject of this article was a free Black family originating in Lancaster County, Pennsylvania in the early 19th Century.. This article follows the Wells family saga over the course of nearly a century and a half, including involvement in the bold act of resistance to the fugitive Slave act of 1850 which occurred in Christiana (Lancaster County) Pennsylvania in 1851, service in the U.S. Colored Troops in the Civil War, family separation and lost children in the period after the war, a surprising reunification after 20 years, an extended family exodus to Newark, New Jersey in the early 1880s, a further exodus as an extended family to Belleville, New Jersey, Newark’s neighbor to the north, in the late 1880s, and a variety of fraternal business and religious activities in New Jersey over 50 years, including the establishment of the first Black church in Belleville in 1886, It is the story of a Black family that persevered and found a way to flourish in the face of the social conditions it encountered over the course of a century and more.

Download the article from SSRN at the link.

Katz on Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment @UMichLaw

Ellen D. Katz, University of Michigan Law School, is publishing Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment in volume 20 of the Georgetown Journal of Law & Public Policy. Here is the abstract.

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that – contrary to the general understanding in the scholarly literature – the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote social hierarchies more generally, specifically those based on race and gender.

Download the article from SSRN at the link.

Ross on The Foundations of Criminal Law Epistemology @ErgoEditors

Lewis Ross, London School of Economics & Political Science (LSE), is publishing The Foundations of Criminal Law Epistemology in ERGO. Here is the abstract.

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology and suggest a way to vindicate it.

Download the article from SSRN at the link.

Zietlow on Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery @ProfessorRZ @utoledolaw @NotreDameLRev

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery in volume 97 of the Notre Dame Law Review (2022). Here is the abstract.

In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed. Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives form slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.

Download the article from SSRN at the link.