Gardner on Why Law Isn't Jazz: A Response @UBSchoolofLaw @buffalolawrev

James A. Gardner, University at Buffalo Law School, has published Why Law Isn't Jazz: A Response, at 71 Buffalo Law Review The Docket D1. Here is the abstract.

In a recent article, Professor William Buzbee argues that “a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.” I argue here, from the perspective of someone who is both a lawyer and a jazz pianist, that jazz improvisation and law are best thought of as distinct practices, and that the analogy obscures more than it reveals. Both law and jazz demand that their practitioners make choices within disciplinary constraints, but the disciplinary boundaries of jazz impose far fewer constraints on its practitioners than the boundaries of legal practice. As a result, lawyers who try to incorporate techniques of jazz improvisation into their legal practice will likely be making a disciplinary mistake, and risk practicing law badly to the extent they do so. On the other hand, the fact that jazz musicians operate under fewer professional constraints does not mean that their work is any more creative or original than the work of lawyers, or that jazz’s loftiest artistic aspirations entitle it to be held in higher regard. The deflating truth is that what jazz improvisation principally shares with the practice of law is not so much the inherent possibility of disciplinary creativity, but the quotidian reality of professional drudgery. Most jazz, like most law, is plodding and mediocre, and the intentional production of novelty is exceedingly rare in both practices. In the end, I argue, criticisms of law and judicial decisions are best and most usefully launched from within the relevant disciplinary practice, not from the perspective of other disciplines.

Download the article from SSRN at the link.

Link to William W. Buzbee, Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules, 2023 Ill. L. Rev. 151 (2023).

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Law Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

Edmonds on Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration @UMichLaw @nulawreview

Mira Edmonds, University of Michigan Law School, is publishing Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration in the Northeastern University Law Review. Here is the abstract.

The movement to decarcerate risks foundering because of its failure to grapple with so-called “violent offenders,” who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent. Quantitative data about the low rates of recidivism for people released after serving long sentences for violent offenses will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of violent offenses and violent offenders by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse. This Article draws on insights from the literature on epistemic injustice and criminal law democratization, together with the legal storytelling literature. It explores the power of storytelling as an advocacy tool in the slow work of person-by-person decarceration during back-end processes like clemency, parole, and compassionate release, as well as part of the broader movement for systemic decarceration. Storytelling is an important tool for advocates working within the system, as well as for abolitionists seeking to end the system. In some contexts, advocates and activists are best situated to tell these stories, but ultimately people should be given the opportunity and tools to tell their own stories.

Download the article from SSRN at the link.

Baumgartner on The Meaning of "Reasonable": Evidence From a Corpus-Linguistic Study @UZH_ch @kneer @kevin_tobia @CambridgeUP

Lucien Baumgartner and Markus Kneer, both of the University of Zurich, Institute of Philosophy, are publishing The Meaning of ‘Reasonable’: Evidence From a Corpus-Linguistic Study in The Cambridge Handbook of Experimental Jurisprudence (Kevin P. Tobia, ed., Cambridge University Press, Forthcoming). Here is the abstract.

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room.

Download the essay from SSRN at the link.

Williams on Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood @BYULaw

Lucy Williams, Brigham Young University Law School, is publishing Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood in volume 102 of the North Carolina Law Review. Here is the abstract.

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently. These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

Download the article from SSRN at the link.

McMahon on Canada's Laws of White Supremacy

Thomas McMahon has published Canada’s Laws of White Supremacy: 1496-1791. Here is the abstract.

Is it permitted to say "white supremacy" when discussing Canada's foundational documents and archives? The purpose of this research paper is to identify the key legal documents establishing white supremacy as the foundational doctrine of Canada's legal history. If you refuse to name the problem, you can't begin to solve it.

Download the article from SSRN at the link.

Hylton on Originalism, Official History, and Perspectives versus Methodologies @BU_Law

Keith N. Hylton, Boston University School of Law, has published Originalism, Official History, and Perspectives versus Methodologies as Boston Univ. School of Law Research Paper No. 23-34. Here is the abstract.

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology.

Download the article from SSRN at the link.

Manning and Gayle on Enslavement in a Free Country: Legalized Exploitation of Native Americans and African Americans in Early California and the Post-Emancipation South @TheJLPE

Beth Rose Middleton Manning and Steven Gayle are publishing Enslaved in a Free Country: Legalized Exploitation of Native Americans and African Americans in Early California and the Post-Emancipation South in volume 3 of the Journal of Law and Political Economy (2022). Here is the abstract.

In 1850, California joined the United States as a free state. However, one of its first laws, the 1850 Law for the Government and Protection of Indians, legalized the enslavement of California Indians. Drawing comparisons between early Californian and Southern statutes that maintained racialized political economies, we argue that the institutionalized oppression perpetrated against Native Americans in California bears important legal similarities to that perpetrated against African Americans in the South, both before and after Reconstruction. This similarity is not a coincidence; the presence of both African and Native American populations in Southern legislation, the movement of Southerners to the West to participate in California’s development, the regional history of Mexican and Spanish systems of Indigenous enslavement, and a political economy reliant on racialized underpaid or unpaid labor, all created the conditions for California to legally retain de facto systems of slavery in a context of de jure freedom.

The full text is not available from SSRN.

(Note that the SSRN entry lists the co-authors as Middleton Manning, Beth Rose, and Steven Gayle.--Ed.)

ICYMI: Sherwin on The Narrative Construction of Legal Reality @RKSherwin @NYLawSchool @VTLawReview

ICYMI: Richard K. Sherwin, New York Law School, has published The Narrative Construction of Legal Reality at 18 Vt. L. Rev. 681 (1994). Here is the abstract.

If reality and meaning depend, to a significant extent, on perceptual and cognitive constructions, it becomes of no small interest to learn what interpretive frameworks are at work in specific legal contexts. One way to express this inquiry is to ask: what kinds of stories, and what modes of storytelling, are being used by lawyers, judges, and others within the legal system to construct and convey meaning? This path of inquiry leads to a heightened awareness of competing rhetorics and strategies of narration. Such awareness may operate on the plane of broad principle and decontextualized abstraction or on the level of local voices, proper names, and particularized dramas.

Download the article from SSRN at the link.

ICYMI: Williams on Blasting Reproach and All-Pervading Light: Frederick Douglass's Aspirational American Exceptionalism @BYULaw

ICYMI: Lucy Williams, Brigham Young University Law School, has published Blasting Reproach and All-Pervading Light: Frederick Douglass’s Aspirational American Exceptionalism at 9 American Political Thought 369 (2020). Here is the abstract.

Some scholars critique American exceptionalism as a proud, uncritical orientation. In this article, however, I argue that Frederick Douglass, an outspoken social critic, qualifies as an American exceptionalist thinker. I first identify and theorize two modes of exceptionalist rhetoric: accomplished exceptionalism, which is self-celebratory and largely uncritical, and aspirational exceptionalism, which is self-critical and reflective. I then provide a close reading of “What to the Slave Is the Fourth of July” to show how Douglass employs aspirational rhetorical techniques. Finally, I discuss the benefits of reading Douglass as an exceptionalist thinker and suggest that his aspirational rhetoric activates reflective and progressive modes of American citizenship.

The full text is not available for download from SSRN.

Call For Papers: International Conference on Constitutional Communities, KU Leuven, Belgium

 

CFP From Roger Ventura Cossin, KU Leuven:

Call for Papers

International conference on

Constitutional Communities

 

       When: 8-9 February 2024

       Where: KU Leuven (Institute of Philosophy and Faculty of Law), Belgium

       Deadline for abstract submissions: 25 October 2023 

 

Theme:

Today almost all countries are “constitutional communities” in a broad sense: their constitution provides the basic framework for their common life. This link between community and constitution is increasingly recognized and there is a growing awareness of the potential of constitutions for societal integration. Jürgen Habermas, with his notion of constitutional patriotism, made the case for a collective identity that does not rely on ethnic nationalism. At the same time, the belief that a constitutional document can be the source of a liberal collective identity has been criticized from various angles. A constitution is typically anchored at the national level, while in a globalized world social integration happens at many different levels. Moroever, courts have used the concept of “constitutional identity” to justify divergent interpretations of the rule of law and human rights and to uphold populist claims. Indigenous people sometimes see constitutional recognition as a new form of assimilation. And some critics have claimed that the concept is empty and abstract: constitutional principles are mostly the same across borders so how can they inspire a sense of community?

 

These developments raise important questions. How do constitutions create communities? Can they really do so? And should they? These questions can be answered from different disciplinary perspectives. Scholars in constitutional law and in the history of law have studied the working of constitutions since long. But legal and political philosophy should also weigh in, as philosophers from the past and the present have amply studied the relation between written laws and community. The issue of constitutional identity can also be approached from an empirical sociological perspective or even from a literary perspective, as it is ultimately the agency of a text that is at stake here. 

 

By engaging in an interdisciplinary dialogue about constitutions and community, this conference aims to explore the impact that constitutions have and can have in the functioning of communities, and to contribute to our understanding of the concept of constitutional identity.

 

Possible paper topics: 

- Constitutions and community building

- National and/or constitutional identity as legal instruments 

- The relation between constitutional identity and affiliated notions (sovereignty, constituent power, representation, …) 

- Constitutional recognition (of minorities, historically oppressed groups, rights of nature, …)

- Constitutional change 

- Specific philosophers on the role of constitutions 

- Constitutions as a literary genre

 

Submitting your abstract:

If you are interested in presenting your work at this conference, please submit an anonymized abstract (max. 400 words, in .doc, .docx or .pdf format) along with your name, title, and affiliation via e-mail to Ana Van Liedekerke (ana.vanliedekerke@kuleuven.be). The actual presentations can be 15 to 20 minutes long. Abstract should be submitted on 25 October 2023 (CET) at the latest. If accepted, you will be invited to develop your abstract into a full paper of around 5000 words; papers will be precirculated to all conference participants. We welcome submissions both from junior and from senior scholars. We especially encourage scholars from underrepresented groups to apply.

 

Conference Fee: There will be a registration fee of 75 euro to participate in the conference (40 euro for those attending just one day and reduced prices for KU Leuven students) and an additional fee of 75 euro for those wanting to attend the conference dinner.

 

Organizers: Raf Geenens, Stefan Sottiaux, Christophe Maes, Roger Ventura Cossin, Ana Van Liedekerke.

 

This conference is organized by RIPPLE (Research in Political Philosophy and Ethics Leuven) and the Leuven Centre for Public Law. It is part of an interdisciplinary research project on constitutional identity, jointly hosted by KU Leuven's Institute of Philosophy and KU Leuven's Faculty of Law and funded by FWO, the Research Foundation Flanders.

 

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le Dret on Freedom of Testation in the Revolutionary and Napoleonic Legislation @MPIPRIV

Valentin Pinel le Dret, Max Planck Institute for Comparative and International Private Law, has published Freedom of Testation in the Revolutionary and Napoleonic Legislation at 140 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung (ZRG GA) 278 (June 2023). Here is the abstract.

Contrary to what one could have deduced from art. 2 and 17 of the Déclaration des droits de l’homme et du citoyen, where property had been elevated as a natural right, imprescriptible, inviolable, and sacred, and art. 537 and 544 of the Code civil, where the owners had been given the right to use in the most absolute way and dispose freely of their property, neither the Revolutionary nor the Napoleonic lawmakers thought of the right of disposing freely of one’s property upon death as self-evident. Although there had been a long tradition of testamentary succession in the South of France, the right to dispose freely of one’s properties by testament led to tensions as to its articulation with the pro-intestate customs of the Northern provinces – in 1789–1804 French private law(s) had indeed not yet been unified and the unification process had given rise to several rearguard arguments in favour of local idiosyncrasies –, but most importantly, it led to tensions as to its articulation with the institution of family, one of the pillars, along with property, of the new social order that had emerged from the ruins of the Ancien Régime: the bourgeois society. Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, De Gruyter. It is freely accessible on the basis of a licence with an OA-option funded by the MPG, Max-Planck-Gesellschaft.

Download the article from SSRN at the link.

Booth on Delegitimizing the Supreme Court: The Lessons of Dred Scott @JBooth_history @UCLaw_Quarterly

Jonathon Booth is publishing Delegitimizing the Supreme Court: The Lessons of Dred Scott in volume 51 of the UC Law Constitutional Quarterly. Here is the abstract.

This Article examines how anti-slavery Republicans delegitimized the Supreme Court in the aftermath of Dred Scott v. Sandford, 60 U.S. 393 (1857) and compares this history to contemporary attempts to reform the Court or resist its decisions, focusing particular attention on recent cases regarding abortion rights. After Dred Scott was decided, anti-slavery Northerners and Republican politicians immediately attacked the decision as illegitimate dicta, beginning a cycle of delegitimization. As Northerners denounced the decision, Southern states and the federal government began to implement its holdings that Black Americans were not citizens. Arkansas, for example, passed a law expelling all free Black residents of the state. The implementation increased the anger of Northerners and led Northern courts and legislatures to defy the decision openly. Opposition to Dred Scott propelled Abraham Lincoln to the presidency and his administration and the Republican Congress continued the cycle of delegitimization by passing a number of laws, including the Civil Rights Act of 1866 that blatantly contradicted Dred Scott’s holdings. The ratification of the Fourteenth Amendment completed the cycle by formally superseding Dred Scott. This history demonstrates that the Supreme Court’s legitimacy and authority is more tenuous than it appears. The Court’s current legitimacy crisis raises the prospect that a similar cycle of delegitimization could occur today and lead to the repudiation of recent decisions, most notably Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022).

Download the article from SSRN at the link.

Frazier on The Next Required Law School Course: History of America's Foundings @StThomasLaw

Kevin Frazier, St. Thomas University School of Law, is publishing The Next Required Law School Course: History of America’s Foundings in volume 54 of St. Mary's Law Journal. Here is the abstract.

The Supreme Court has cited the Federalist Papers hundreds of times to analyze the meaning of the Constitution. The Anti-Federalist Papers, on the other hand, receive few citations in the Court’s opinions. The prevalence of Federalist Paper citations and the dearth of Anti-Federalist references necessitate a similar response from law schools everywhere: a required history class that covers the Founding Era, among other periods. The Court’s citations to the Federalist Papers alone evidence the importance of this era to constitutional law. The prominent role of amicus briefs from historians confirms that importance. But law schools must do more than teach what the advocates for ratifying the Constitution believed it meant. They must also provide students with the tools of historical analysis needed to develop a nuanced understanding of what made the Constitution so revolutionary and how its ratification process revealed important hopes and fears. Law schools should also make the Reconstruction Era a part of that required course. Coined The Second Founding by Eric Foner and others, this era transformed the Constitution through the Thirteenth, Fourteenth, and Fifteenth Amendments and witnessed fundamental changes in the general understanding of “We, the People.” This era’s Congress has been called “the Congress of the Revolution” for its work on civil rights. Supreme Court opinions have hinged on channeling the spirit of these “Reconstruction Amendments” and their accompanying legislation. Similarly, many justices have leaned on the spirit and text of these transformational amendments to ensure their core is preserved. For example, in Maine v. Thiboutot, the Court held that laws from the Reconstruction Era “‘must be given the meaning and sweep’ dictated by ‘their origins and their language’—not their language alone.” It is those “origins” that are unacceptably absent from legal pedagogy. Students must also learn how to analyze and respond to legal arguments grounded in historical analysis. Though students necessarily master a narrow type of historical inquiry, identifying and evaluating precedent, too few students learn how to spot and challenge historically-oriented adjudication that activist judges have used to break from precedent. Fearful of being called out for “law-office history,” courts avoid attempting to ground their decisions in superficial historical analysis. This Article makes a case for the American Bar Association requiring law students to complete a history class on the nation’s two “Foundings.”

Download the article from SSRN at the link.

Rohde and Parra-Herrara on Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography @DanEricRohde @nicolasparrah @harvard_law @TheJLPE

Dan Rohde and Nicolas Parra-Herrara, both of Harvard Law School, are publishing Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography in volume 3 of the Journal of Law and Political Economy. Here is the abstract.

This article addresses the power of law to make historical change. We begin by charting a rich debate on law’s autonomy held over the course of the twentieth century, overviewing contributions by Classical Legal Thought, Law and Society, Marxism, the New Left, Critical Legal History, and what we term the “Millennial Consensus.” We then sketch an alternative view that we feel is implicit in much legal history, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others. We emphasize that it also has an existential dimension in that we can never foresee all the future uses particular legal institutions may be put to.

Download the article from SSRN at the link.

Aydin-Aitchinson on Victims, Perpetrators, and Bystanders: Atrocity and Its Aftermath in the Films of Jasmila Žbanić @UoELawSchool

Andy Aydin-Aitchinson, University of Edinburgh School of Law, has published Victims, perpetrators, and bystanders: Atrocity and its aftermath in the films of Jasmila Žbanić as Edinburgh School of Law Research Paper No. 2023/07. Here is the abstract.

Following cultural and visual criminologists, who explore cinematic representations of victimhood, gender, witnessing, and memory, I excavate the ‘implicit criminologies’ in four films by Bosnian director Jasmila Žbanić: Grbavica (2006); Na putu [On the path] (2010); Za one koji ne mogu da govore [For those who can tell no tales] (2013); and Quo Vadis, Aida? (2020). In criminological terms, Žbanić’s work is strongest as an example of cinematic victimology, but also poses important questions around perpetration and bystanders. By noting the films’ potential to encapsulate universal and particular elements and by casting cinematic knowledge as a collective project, I question the need to hold one film or one director to an overly rigid ethical standard of inclusivity.

Download the article from SSRN at the link.

MacDonnell on The 1922 Colorado River Compact at 100 @ColoLaw

Lawrence MacDonnell, University of Colorado Law School, is publishing The 1922 Colorado River Compact at 100 in volume 33 of Western Legal History (2023). Here is the abstract.

This article provides a recounting of the negotiation of the Colorado River Compact in 1922. It discusses the evolution of the negotiation process and the compromises and agreements. It provides a summary of key Compact provisions. It then briefly discusses the ratification process and final Congressional adoption. Finally it assesses the strengths and weaknesses of Compact provisions after 100 years.

Download the article from SSRN at the link.

Call For Abstracts, Law and Humanities Roundtable 2024 @DavidGurnham @law_humanities

From David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, School of Law, University of Southampton

I’m pleased to announce this Call for Abstracts for the sixth annual Law and Humanities Roundtable 2024: 'Kafka's imprint on law and the arts: 100 years since The Trial'. The event will be held in person, most likely at the University of Southampton in July 2024 (date & time tbc). We would be delighted to receive draft titles and abstracts (up to 200 words) for paper presentations responding to this theme by the deadline of Tue 2^nd Jan 2024. 

 

We welcome paper presentations on all topics and themes relating to the texts, performances, adaptations, translations, borrowings, of Kafka's work (including his novels and short fiction) and its influence and impact on law and legal studies.

 

Further details about this workshop, and publication plans in the journal Law and Humanities (a special issue to mark the centenary of The Trial's first publication in 1925) can be found in the CfA attached. Abstract submissions, as well as any informal queries, can be addressed to David Gurnham (d.gurnham@soton.ac.uk), or co-convenor Ekaterina Yahyaoui (ekaterina.yahyaoui@universityofgalway.ie).

 

Murray on The People of California vs. Juan de Dios Ramirez Villa @LoyolaLawSchool

Yxta Maya Murray, Loyola Law School, is publishing The People of California vs. Juan de Dios Ramirez Villa in the Yale Journal of Law and the Humanities. Here is the abstract.

James Boyd White’s 1972 book The Legal Imagination announced that law and literature share imaginative and intellectual practices. White also presented them as good, if quarrelsome, partners in legal education and the development of a humane legal system. Inspired by his vision and audacity, I set forth on an extended literary analysis of a 1997 California death penalty case. This exercise contemplates the relationship between the legal opinion and the essay, considering them not only cousins but also antagonists whose differences consist in their relative abilities to wander. The rules that limit the legal opinion do not fetter the essayist, and here I take that opportunity to more fully imagine the scenes and arrogations that led to the murder of a seventeen-year-old boy in the mid-1990s, and to contemplate that killing’s presence in a larger political and ecological landscape. The most pressing and literally questing inquiries this essay divulges concern the roles that the oil and pesticides industries played in a young man’s death, another man’s life sentence, and the criminal justice system generally.

Download the article from SSRN at the link.

Abrams on Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions at 79 Journal of the Missouri Bar 172 (July-August 2023). Here is the abstract.

This article surveys the indelible mark that the Beatles (Paul McCartney, John Lennon, George Harrison, and Ringo Starr) continue to leave on courts in the United States more than half a century after the quartet burst onto the American scene. By highlighting references to Beatles songs in state and federal judicial opinions, this article continues a theme that I have presented in several prior “Writing It Right” articles. The theme begins in some courts, which in recent years often accent their written opinions’ substantive or procedural rulings with references citing or quoting well-known cultural markers from sports, popular entertainment, or literature.

Download the article from SSRN at the link.

Blocher and Garrett on Originalism and Historical Fact-Finding @DukeLaw @GeorgetownLJ

Joseph Blocher and Brandon L. Garrett, both of Duke University School of Law, are publishing Originalism and Historical Fact-Finding in the Georgetown Law Journal. Here is the abstract.

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on. In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years. In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact. In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work. If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.

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Steilen on Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia @MJSteilen

Matthew J. Steilen, State University of New York at Buffalo Law School, has publlished Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia at 2023 Law and History Review 1. Here is the abstract.

This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state’s legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia’s leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe’s law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia’s constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers. Note: Creative Commons License This work is licensed under a Creative Commons Attribution 4.0 International License.

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DeLay on The Myth of Continuity in American Gun Culture @BrianDeLay @UCBerkeley

Brian DeLay, University of California, Berkeley, has published The Myth of Continuity in American Gun Culture. Here is the abstract.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun-rights advocates have responded with a wave of Second Amendment challenges, most employing a three-part argument: 1) X firearms-related issue has been around since the founding; 2) the Founders did little or nothing about it; 3) therefore we cannot do anything about it, either. Legal scholars are engaged in critical work on parts 2 and 3 of that argument. As a professional historian involved in several Second Amendment cases over the past year, I have the disciplinary expertise to offer a critique of part 1. This Article explains why the argument for continuity in American gun culture is largely a myth, and offers a case study in the role that historical research can play in Second Amendment cases in the Bruen era. It begins by arguing that whereas today’s gun culture is consumerist, state-phobic, and individualist, early America’s gun culture was utilitarian, state-led, and collective. The Article then presents detailed critiques of the iterations of the myth of continuity being deployed to overturn laws regulating assault weapons, large-capacity magazines, and ghost guns. It demonstrates that these were nonexistent or impractical technologies in the Founding era, no more likely to attract regulatory attention than jetpacks do in our own times. Once these products finally became reliable enough consumer items to cause societal problems in the twentieth and twenty-first centuries, regulation quickly followed. Put into proper historical context, then, assault weapons, large-capacity magazines, and ghost guns represented “dramatic technological changes” that provoked “unprecedented societal concerns.” Regulations addressing those concerns should be found constitutional under Bruen’s history-centric framework. Good history should help preserve some firearms laws in the Bruen era. More importantly, by forcing states to research Founding-era history in order to defend firearms regulation, the decision will inevitably bring renewed scrutiny to Heller’s ahistorical claim that the Second Amendment was crafted to protect an individual right to armed self-defense. The Article therefore concludes by predicting that Bruen will ultimately destabilize the very foundation of modern Second Amendment jurisprudence.

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Smitherman on History, Public Rights, and Article III Standing @Harvard_Law

Owen Smitherman, Harvard Law School, is publishing History, Public Rights, and Article III Standing in volume 47 of the Harvard Journal of Law & Public Policy. Here is the abstract.

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort. This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

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McNeill and Tucker on The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy @GeorgetownCPT

David N. McNeill, Independent Researcher, and Emily Tucker, Center on Privacy & Technology, Georgetown Law Center, have published The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy as a Georgetown University Law Center Research Paper. Here is the abstract.

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary—and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis. The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and ‘textualist originalism’ more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court’s recent ‘textualist’ jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates. This article begins, in Part One, with a consideration of the Roberts Court’s recent jurisprudence, focusing on three landmark opinions issued in June of 2022: Dobbs v Jackson Women’s Health Organization, Kennedy v. Bremerton School Dist. and West Virginia v EPA. The point of revisiting this recent history will not be—or will not only be—to decry these rulings as anti-democratic and constitutionally ill-founded. The point, rather, will be 1) to see these rulings as consolidations of the Court’s newly asserted constitutional authority, and 2) show how contemporary positivist constitutional theory has helped prepare the way for the Court’s manipulation of the constitutional order. Part Two begins to elaborate an anti-positivist alternative both to legal positivism and to natural law legal theory. In agreement with traditional natural law theorists, it is argued that the distinction between illegitimate and legitimate expressions of political authority depends on the degree to which a system of authority is directed toward a common good. In disagreement with those theorists, however, this article contends that the common good of a political community is determined by the communal deliberative activity of a political community, and that the deliberative determination of a common good is the normative foundation of that community. Part Three focuses on the First Amendment of the US Constitution with two aims in mind. First, to illustrate the account of constitutional law here advocated, it offers a reading of the First Amendment as an attempt to put into words a shared understanding among the ratifiers of the Bill of Rights of what this article calls ‘the shape of citizenship’ in our constitutional democracy. Second, it shows how the Court’s recent opinions have radically subverted the last vestiges of this original connection between constitutional rights and the foundational principles of constitutional self-government. In Dobbs v Jackson, in particular, the Court asserts an understanding of constitutional rights as merely a particular structural variant of positive law, and in so doing effectively makes the legal order a sovereign power over the people, rather than an expression of and vehicle for their common self-determination.

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Tsai and Ziegler on Abortion Politics and the Rise of Movement Jurists @robertltsai @BU_Law @maryrziegler @UCDavisLaw

Robert L. Tsai, Boston University School of Law, and Mary Ziegler, University of California, Davis, School of Law, are publishing Abortion Politics and the Rise of Movement Jurists in volume 57 of the UC Davis Law Review. Here is the abstract.

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena. In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists. Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty. We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

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Moyn on Reconstructing Critical Legal Studies @samuelmoyn

Samuel Moyn, Yale University, has published Reconstructing Critical Legal Studies. Here is the abstract.

It is an increasingly propitious moment to build another radical theory of the law, after decades of relative quiescence in the law schools since the last such opportunity. This essay offers a reinterpretation of the legacy of critical theories of the law, arguing that they afford useful starting points for any radical approach, and not merely cautionary tales of how not to proceed. The essay revisits the critical legal studies movement in particular and imagines its reconstruction. Critical legal studies extended the social theory of the law pioneered by legal realism, and framed law as a forceful instrument of domination, though one that is compatible with both functional and interpretative underdetermination. Legal order oppresses, and the way it does so is never accidental or random, while regularly accommodating alternative pathways of control and contestation. Analogously, law is often determinate, which is how it can so routinely serve oppression, even though it does so in and through processes of interpretation of elusive or vague legal meaning by courts and other institutions. The essay concludes by showing that the parameters of a radical social theory of the law—parameters we should reclaim critical legal studies for helping establish—apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent “law and political economy” movement. Had critical legal studies never existed, it would have to be invented today.

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Satta on Orwell's Conception of Free Speech @mark_satta @waynestate

Mark Satta, Wayne State University, is publishing What Was Orwell's Conception of Free Speech? in George Orwell Studies. Here is the abstract.

Orwell’s views on the nature of free speech are significantly more complex than is often recognised. This paper examines what he had to say about freedom of speech and intellectual freedom. It seeks to provide a philosophical analysis of his understanding and use of these concepts and to address some apparent tensions in his thought. In so doing, the paper identifies five dominant aspects of Orwell’s account of free speech. He viewed free speech as closely related to intellectual freedom, which he highly valued; he treated free speech as primarily about the ability to say what one believes to be true; he thought that both government and various kinds of private actors posed serious threats to free speech; he believed that free speech required social safeguards, in addition to legal protection; and he recognised that free speech was a right with limits. He wrote little about the freedom of speech for liars. The paper concludes with the observation that he, therefore, left us with a number of crucial questions to discuss and think about for ourselves.

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Webb on The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson @YaleLawSch

Derek Webb, Yale Law School, has published The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson at 12 British Journal of American Legal Studies 79 (2023). Here is the abstract.

This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a "great synthesizer" of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of "We the People" as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form "a more perfect union." And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutchinson, he made clear that the "blessings of liberty" were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and its flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787. Note: Creative Commons License This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

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Balkin and Levinson on Frederick Douglass as Constitutionalist @jackbalkin @UTexasLaw @YaleLawSch

Jack M. Balkin, Yale Law School, and Sanford Levinson, University of Texas Law School, are publishing Frederick Douglass as Constitutionalist in the Maryland Law Review. Here is the abstract.

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

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Toomey on Darwin's Reinach @profjamestoomey @HaubLawatPace @CambridgeUP

James Toomey, Pace University School of Law, is publishing Darwin's Reinach in Reinach and the Foundations of Private Law (Marietta Auer, Paul B. Miller, Hery E. Smith & James Toomey, eds., Cambridge University Press). Here is the abstract.

Reinach believed that basic legal concepts really exist, that their existence is independent of the positive law, and their existence is independent of morality. In this idiosyncratic juxtaposition of positions, Reinach is joined by contemporary theorists drawing on evolutionary psychology and cognitive science in jurisprudence. But Reinach emphatically insisted that his claims were ontological, not psychological. This Chapter explains why. For Reinach himself, the ontological status of legal concepts was one front in a broader debate over whether mathematical and logical concepts were true a priori or features of human psychology; a demonstrative project in the breadth of the a priori. But I suggest that today’s theorists need not be as pre-occupied with this distinction as Reinach was. Not only is the practical difference between ontological and evolutionary theories not as wide as Reinach seems to have assumed, but his own insistence on the possibility and desirability of descriptive analysis of legal concepts largely lets us sidestep the issue.

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Hooton and Murphy on Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada Max Planck Lawcast, Episode 3 @maxplancklaw @mpilhlt

Victoria Hooton, Max Planck Institute for Legal History and Legal Theory, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada Max Planck Lawcast, Episode 3. Here is the abstract.

In this episode Christopher Murphy travels back in time with Victoria Hooton to discuss the regulation of poverty in England and Wales in the early 17th century, with a specific focus on the 1601 Act for the Relief of the Poor. The Act reflected the prevailing moral sensibilities of the time, regarding who the worthy and the unworthy poor were and where the boundaries of welfare responsibility were to be drawn. After providing an overview of the legislation, the focus turns to the implementation of this welfare system in the Canadian provinces of Nova Scotia and New Brunswick during the mid-18th and 19th century.

Download the piece from SSRN at the link. Link to the Max Planck Lawcast here.

Tushnet on Varieties of Constitutionalism @Mark_Tushnet @Harvard_Law

Mark Tushnet, Harvard Law School, has published Varieties of Constitutionalism. Here is the abstract.

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course. It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact). Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.

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Tang on Lessons From Lawrence: How "History" Gave Us Dobbs--And How History Can Help Overrule It @AaronTangLaw @UCDavisLaw @YaleLJournal

Aaron Tang, University of California, Davis, School of Law, is publishing Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It in volume 133 of the Yale L. J. Forum (2023). Here is the abstract.

Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.” This Essay explores three important lessons that reproductive justice advocates can learn from how Lawrence used history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that 28 out of 37 states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

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Kirkby on Abysmal Jurisprudence: On the Genesis of John Finnis's Practical Guide to Statesmen @JSI_Sydney

Coel Kirkby, University of Sydney Law School, has published Abysmal Jurisprudence: On the Genesis of John Finnis’s Practical Guide to Statesmen. Here is the abstract.

John Finnis’s central role in Brexit was only the latest intervention in a long life of practical action that recommends a closer examination of the genesis of his distinctive philosophy. He always insisted that it was intended ‘primarily to assist the practical reflections of those concerned to act, whether as judges or as statesmen or as citizens.’ In this article, I argue that Finnis crafted his philosophy as a practical guide for conservative actors in the disenchanted Cold War world of the 1960-70s. My first aim is to excavate the theoretical foundations of his Thomist theory of natural law. While his turn to practical rather than speculative reason is well known, few if any appreciate how Finnis radically refounded Thomist natural law on an implicit theory of history. By accepting that the world was historically contingent and changing, he needed to show how we could know the timeless truth of practical reasonableness and the basic goods. In the final chapter of Natural Law and Natural Rights, Finnis introduced an ‘abysmal’ philosophy of history that explained how a spoudaios (wise man) could reason his out way out of the historical contingency of the human world to access the timeless moral truths that transcended it. My second aim is to show how Finnis used his Thomist theory of natural law as a practical guide for action in our contingent world. He followed Eric Voegelin in describing humanity as two ‘hostile camps’—the ‘transcendental’ Christians and their secular allies versus the ‘immanentist’ liberals, communists and fascists all committed to ‘consequentialist’ ideologies. In this eternal battle of good versus evil, Finnis saw his philosophy as a practical guide for this ‘creative minority’ of transcendentalists for collective action against the heretical faith of immanentist movements aiming to perfect mankind and build heavens on earth.

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Lloyd on Langdell and the Eclipse of Character @LloydEsq @WFULawSchool @PittLawReview

Harold Anthony Lloyd, Wake Forest University School of Law, is publishing Langdell and the Eclipse of Character in the University of Pittsburgh Law Review. Here is the abstract.

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. Readers wishing to explore virtues beyond those addressed in this Article might note my earlier examination of the role of virtue in good legal analysis found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4092075. This Article also calls out potential character issues with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle (from my Apology Box: https://haroldanthonylloyd.blogspot.com/p/blog-page_4.html) to supplement the prose. I hope such a cable can help lift Langdell and his follies from legal education and the world.

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Oman on Property and the Latter-day Saint Tradition @nate_oman @WMLawSchool

Nathan B. Oman, William & Mary Law School, is publishing Property and the Latter-day Saint Tradition as a William & Mary Law School Research Paper. Here is the abstract.

The Mormon tradition is marked by a deep engagement with the idea of property. The Latter-day Saints have not yet developed anything as systematic as a theory of property, but there are themes that emerge from their legal tradition. The first is a deeply ambivalent stance toward the idea of property. In contrast to optimistic Lockean stories, Mormon scripture has a darker vision of ownership as a dangerous and frequently corrupting moral force. Property is something in need of redemption. The second theme of the Latter-day Saint tradition is the effort to redeem property by transforming it from the frontier of communal obligation into a nexus of duties toward others. Third, Latter-day Saint efforts to reconceptualize property led to legal conflicts in the 19th century, conflicts that forced changes on not only Mormon practices but on the very text of Mormon scripture. Fourth, while Latter-day Saints’ aspiration for Zion is utopian, their institutional engagement with property has been intensely practical and in its own way pragmatically creative. Indeed, its traces can still be seen within some corners of American law. The final theme has been the effort to turn 19th-century Mormonism’s utopian experiments into a useable past that can continue to inform the thinking of contemporary Latter-day Saints. At the heart of this project is a process that began as early as the 1840s by which what began as sacred law was transformed into sacred history.

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Rutherford on Racism, Segregation, Acceptance: American Economics and Black Issues, 1890-1945 @uvic

Malcolm Rutherford, University of Victoria, Department of Economics, has published Racism, Segregation, Acceptance: American Economics and Black Issues, 1890-1945. Here is the abstract.

The American economics profession has a tortured relationship with the study of issues relating to Black Americans. This paper traces that history from overt racism in the period up to about 1910, the rejection of Du Bois' attempts to work with the American Economic Association, a long period during which Black scholarship on Black issues was simply ignored, to the gradual acceptance of work dealing with Black issues after World War II.

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Shugerman on Movement on Removal: An Emerging Consensus on the First Congress @jedshug @BU_Law

Jed H. Shugerman, Boston University School of Law, has published Movement on Removal: An Emerging Consensus on the First Congress. Here is the abstract.

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review). Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize statutory texts rather than legislative history (though the texts do not indicate an Article II removal power); that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (nevermind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescues the “Decision” myth. Perhaps most interesting was the unitary theorists' openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory.

Download the article from SSRN at the link.

Sanders on the Mystery of the Missing Babies @IJSanders

Anthony B. Sanders, Institute for Justice, has published Mystery of the Missing Babies. Here is the abstract.

This essay begins with my recently published book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters and then digs into a nuance I did not pursue there. The book demonstrates that Baby Ninth Amendments—state constitutional versions of the Ninth Amendment to the U.S. Constitution—grew in popularity across American history, especially after the Civil War. This was especially true in new states, with 13 of the 15 states to enter the Union since the war adopting “Baby Ninths.” But what about those other two states, namely North and South Dakota? Why did they not adopt Baby Ninths? At the beginning of the research I suspected it might have something to do with the judicial minimalism of James Bradley Thayer, the influential Harvard Law professor who had a “legendary” role in drafting the North Dakota Constitution. But what I find is nothing so conspiratorial and, instead, much more interesting. Thayer was apparently noncommittal or perhaps even supportive of including a Baby Ninth in a state constitution. Indeed, a Baby Ninth could have ended up in the constitutions of either state. Why one did not was due to a combination of the caprice of which existing states the drafters modeled their draft constitutions on, the happenstance of the lack of a “champion” for Ninth Amendment language among the delegates, and the defects of a Keystone Cops-seeming scheme involving Thayer and the Northern Pacific Railroad. The lesson to draw is not that the framers of the Dakota constitutions did not welcome unenumerated rights. It is a larger one: To remember the outsized role of founding effects, personality, and the vicissitudes of fortune on constitutional formation.

Download the article from SSRN at the link.

Treanor on Gouverneur Morris and the Drafting of the Federalist Constitution @GeorgetownLaw @GeorgetownJLPP

William Michael Treanor, Georgetown University Law Center, is publishing Gouverneur Morris and the Drafting of the Federalist Constitution in volume 21 of the Georgetown Journal of Law & Public Policy (2023). Here is the abstract.

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger Sherman. There is a lot to work with. Gouverneur Morris is the one “forgotten founder” who really shouldn’t be for-gotten. The classic picture of Gouverneur Morris is actually a joint picture painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and Robert Morris is on the right. They weren’t relatives, despite the shared last name, but they were very close. Gouverneur Morris and Robert Morris were business partners during the Revolutionary War. Robert Morris, who is kind of the Jeff Bezos of the 1780s, was as close as the United States had to a president during the Revolutionary War. He was the head of finance and Gouverneur Morris was his number two. I will be focusing today on Gouverneur Morris’s work on the Committee of Style at the end of the Federal Constitutional Convention. As the Federal Constitutional Convention is drawing to close, it’s hot and everybody’s tired. It has been four weeks since they had a draft of the Constitution, which was composed by the Committee of Detail. There has been a month of debate and votes up, votes down. There’s no draft constitution, even though the Convention is near the end of its work. So, the delegates together form a committee—the Committee of Style and Arrangement—and over three days this committee drafts the Constitution with Morris as the lead drafter. And then, very hurriedly, the Convention reviews it, almost completely adopts it, and goes home. The work of the Committee is supposed to be polishing the Constitution—taking what’s already been agreed to and putting it in a final document. But what I argue in a recently published article in the Michigan Law Review— the basis of this talk—is that, as the drafter on the Committee of Style, Morris made fifteen substantive changes. As you’ll see, most of them are very subtle, but they have incredible consequence: He carefully picked words to advance particular substantive ends. With the passage of time, we have lost the meaning of much of this text. But if we are going to read the Constitution clearly—and as it was ratified at the time—we must recover the meaning of the texts that, on fifteen occasions, he changed. This is particularly important at a time when four members of the Supreme Court are originalists and focus on the original meaning of these words. One part of this talk is about the changes he made. There were a number of basic causes Gouverneur Morris tried to advance during the Constitutional Convention, and he lost a lot of those battles in the months before he became the Committee of Style’s drafter. He was a big government person. He was probably, with the possible exception of Alexander Hamilton, the strongest nationalist at the Convention. He was a big protector of private property. He was a champion of the judiciary and judicial review, and he was unquestionably the fiercest opponent of slavery at the Convention. And he was, with James Wilson, the Convention’s leading champion of the Presidency. In each of those areas, on the Committee of Style, he made very subtle changes to advance his goals. If you read the text in accordance with the meaning of the words in 1787, you’ll see how it reflects his meanings, what he wanted to achieve. Taken all together, with these changes, Morris created the Federalist Constitution. That will be the subject of the first part of this talk. But most originalists today read the Constitution very differently. They see the Constitution as a Jeffersonian Republican Constitution, not as a Federalist Constitution. And the reason why that occurred is the topic of the final part of this talk. I will discuss how the Constitution’s original meaning was lost. My thesis here is a simple one, but an important one for constitutional law. At the Convention, the Federalists won the battle over the Constitution’s text. In the years that followed, however, they lost the battle over what that text means.

Download the article from SSRN at the link.

Berge on Phersu, Prosōpon, Persona: On Legal Personhood, Roman Sculpture and the Art of Law @berge_lukas

Lukas van den Berge, Utrecht University Faculty of Law, has published Phersu, Prosōpon, Persona: On Legal Personhood, Roman Sculpture and the Art of Law. Here is the abstract.

Many legal scholars and philosophers have recently embraced the idea of granting legal personhood and rights to entities other than human beings or their collective organisations. In search for effective innovations, however, it is also important to rethink the notions of legal personhood and rights themselves. This article aims to contribute to such a process of rethinking by examining the intellectual history of legal personhood. Tracing down the modern concept of the legal person not only to Latin persona, but also to Greek prosōpon and Etruscan phersu, it supplements (and partly also corrects) leading analyses of that concept’s history such as those of Hannah Arendt. Concurringly, it will not only connect (as Arendt and others have done) Roman legal personhood to ancient drama, but also to ancient sculpture. Finally, it will be argued that a deeper and broader understanding of the concept’s intellectual history may serve as a surprising source for future renewal.

Download the article from SSRN at the link.

Olasolo, Urueña, and Arévalo-Ramírez on Techniques for Conducting International Law Research from Critical Approaches @mario_uruena @Juris_urosario @WalterArevaloR1

Hector Olasolo, Universidad del Rosario; Iberoamerican Institute of The Hague (IIH); The Hague University of Applied Sciences, International Law, Mario Urueña, Universidad del Rosario, and Walter Arévalo-Ramírez, Universidad del Rosario have published Techniques for Conducting International Law Research from Critical Approaches in volume 32 of Díkaion (2023). Here is the abstract.

This article aims to construct a state-of-the-art resource regarding the theoretical foundations and methodological options for any researcher interested in working with critical international law perspectives. The four views chosen for this exercise (TWAIL, CILS, feminist theories, and social idealism) will be dissected regarding their theoretical foundations and relevant research methods and techniques. It establishes the framing of critical research in international law through monodisciplinary, multidisciplinarity, and inter-disciplinarity, depending upon the interaction between legal-international concepts and methods.

The full text is not available from SSRN.

Coan and Schwartz on Interpreting Ratification @uarizonalaw @WisconsinLaw

Andrew Coan, University of Arizona College of Law, and David S. Schwartz, University of Wisconsin Law School, have published Interpreting Ratification 1 J. Am. Con. Hist. 449 (2023). Here is the abstract.

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant. Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism. All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

Download the article from SSRN at the link.

Brady on Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor @Harvard_Law

Maureen E. Brady, Harvard Law School, is publishing Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor in the DePaul Law Review. Here is the abstract.

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters. The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear. Second, the story of the cottage illustrates the uneasy—and often, ineffective—ways that the state has deployed land use regulation to manage the poor. The story of the cottage evokes the old adage: “everything old is new again.” Cottages became targets because many sprung up informally on common property in an era in which the state was formalizing private title—not so different from the pressures on, and persistence of, informal settlements in some parts of the world today. Regulators sought to proscribe cottages to control the movement of labor while simultaneously limiting the accumulation of the poor, for a mix of seemingly legitimate and illegitimate reasons (compare the public health and safety risks of crowding to the notion that poverty and cohabitation leads to idleness). Centuries later, regulators and the citizens voting for them put forth a similar mix of motives to justify regulating apartment buildings and other forms of multifamily housing. The inclusion of cottages in Blackstone’s list illustrates the enduring appeal of land use law in all its forms—the tort law of nuisance, contract law, and regulation—as a means of defining and managing real and perceived social harms.

Download the essay from SSRN at the link.