Frampton on The First Black Jurors and the Integration of the American Jury @TFrampton @UVALaw @nyulawreview

Thomas Frampton, University of Virginia School of Law, is publishing The First Black Jurors and the Integration of the American Jury in the New York University Law Review for 2024. Here is the abstract.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Download the article from SSRN at the link.

Ollikainen-Read and Murphy on Law as a Means of Communicating Colonial Control in India: Max Planck Lawcast, Episode 8 @maxplancklaw @mpilhlt

Erica Ollikainen-Read, 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 Law as a Means of Communicating Colonial Control in India, as Max Planck Lawcast, Episode 8. Here is the abstract.

In this episode of the Lawcast, Erica Ollikainen-Read explains to Christopher Murphy that the British Empire was not just shipping, merchants, soldiers, cannon, and conquest. Rather, some of the most long-lasting parts of the British Empire are the ideas, laws, and symbols which Britain transplanted to their colonies, some of which remain to this day. One such case in point is India, where the British colonial presence and the nature of Britain’s priorities shifted over time. By viewing the law from the perspective of communication, we can see how colonial legal culture and the way in which it was used as a tool for control in India also changed

. Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

Teaching Materials on Comics, From Nick Sousanis @nsousanis on all the socials fwiw @SFSU

Newly available from Nick Sousanis:

Wonderful materials on how to make and use comics in the classroom at Spin, Weave, and Cut.

Nick is a professor at San Francisco State University and the author of the brilliant Unflattening (Harvard University Press, 2015). 

Davies on A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar @GB2d @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar at 25 The Gazette, a Journal of Detective Fiction 4 (Autumn 2023).

This paper presents a bit of speculation — actually, two speculations — about Rex Stout’s sixth Nero Wolfe / Archie Goodwin novel, Some Buried Caesar. I hope those speculations will inspire — or perhaps it would be better to say incite — discussion about Stout’s choice of title for the tale. First, the question: Where did the title for this story come from? Second, the answers: (a) Stout’s familiarity (during an early romance) with the bloody yet bucolic lines from a famous poem — Omar Khayyam’s Rubáiyát — made the titling of a bloody murder mystery with a romantic plot thread in a bucolic setting easy, and (b) the Rubáiyát was connected in Stout’s mind not only with fine poetic lines about bloodshed and bucolics, but also with fraud, which was also a plot thread in Some Buried Caesar.

Download the article from SSRN at the link.

Call For Participation, 2024 European Society for the Study of English Conference: Panel: What Do the Humanities Have to Say to Law? @Greta_Olson_

 Call for participation: The 2024 European Society for the Study of English conference.

The conference will take place at the University of Lausanne, Switzerland, 26-30 August 2024. Calls for participation still include call for individual papers and posters and participation in the doctoral symposium. Both close January 31, 2024. 

Seminar 56, convened by Professors Greta Olson (University of Giessen, Germany) greta.olson@anglistik.uni-giessen.de,  Armelle Sabatier (Paris-Panthéon-Assas University, France) armelle.sabatier@u-paris2.fr, and Claire Wrobel (Paris-Panthéon-Assas University, France), has the following subject:

What do the Humanities have to say to Law?

 

CALL FOR SEMINAR PAPERS

 

For an in person panel at the

 

Seventeenth European Society for the Study of English conference in Lausanne, Switzerland (26-30 August 2024)

https://wp.unil.ch/esse2024/

 

 

Seminar 56: What do the Humanities have to say to Law?

 

This seminar makes the claim that the Humanities have a great deal to say to Law, legal

training, and critical legal theory. We investigate Law and Humanities research from the

perspectives of legal actors as well as scholars working in English Departments, located in

Continental Europe, bringing their own literary and legal systemic traditions to common law

and Anglophone legal texts. The seminar investigates new directions in Law and the

Humanities, including – but not exclusively – how affect and metaphor theory change the

primarily narrative-based research that has dominated the past.

 

Please send 250-word abstracts and a brief bio to all of the convenors before February 10th.

 

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.

During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.

Download the article from SSRN at the link.

Zhang on The Private Law Influence of the Great Qing Code @ZhangTaisu @YaleLawSch @CambridgeUP

Taisu Zhang, Yale Law School, has published The Private Law Influence of the Great Qing Code in The Making of the Chinese Civil Code 249-268 (Hao Jiang & Pietro Sirena eds., Cambridge Univ. Press, 2023). Here is the abstract.

This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.

Download the essay from SSRN at the link.

van den Berge on Roman Dictatorship: Emergency Government and the Limits of Legality @berge_lukas @UniUtrecht

Lukas van den Berge, Utrecht University Faculty of Law, has published Roman Dictatorship: Emergency Government and the Limits of Legality as a Utrecht University School of Law Research Paper. Here is the abstrac

Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself, but also for current debates on the limits of legality in times of emergency.

Download the article from SSRN at the link.

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

Kathryn Stanchi, University of Nevada, Las 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.

Epps and Green on Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale @TempleLaw @TempleEpps

JoAnne Epps and Craig Green, both of Temple University School of Law, have published Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale as Temple University Legal Studies Research Paper No. 2023-21. Here is the abstract.

Almost no one knows that Yale had the first affirmative action policy of any elite law school in the country. Twelve Black students who were admitted in 1968 formed the largest nonwhite group to attend Yale Law School in 150 years. At the time, race-inclusive admissions were immediately condemned as an “explosive sociological experiment” in apartheid segregation that would damage Yale’s reputation while producing a sense of “intellectual superiority among the white students” and “intellectual inferiority among the Black students.” Critics endorsed a general aspiration for law schools to educate students from racial minority groups, but not at elite institutions like Yale: “There are many good regional and local law schools in Philadelphia, Boston, Los Angeles, and other metropolitan areas, where Black law students . . . can study law in competition with students of similar qualifications and aptitudes.” Despite those critiques and predictions, all of the twelve Black Yale students eventually became judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys. For more than fifty years—an “Affirmative Action Era”—elite law schools across the United States have admitted Black students who transformed the history of legal education, the legal profession, and society at large. To understand and document that phenomenon, we sought to contact every Black Yale law student from the entering classes of 1963 to 1978. Using oral history techniques, we interviewed forty-seven people in thirteen states, including one person from each class year. Such interviews offer unparalleled detail about Black students who attended Yale in this period, what law school was like at the time, professional opportunities that emerged afterward, and structural obstacles that individuals had to confront, overcome, or dismantle in law school and throughout their professional lives. This Article uses new historical materials and interpretations to challenge modern stereotypes and generalizations about affirmative action that have been endorsed by prominent critics including Justice Clarence Thomas. Specific historical narratives from former Yale students illustrate dramatic risks of colorblind constitutionalism across the country, and this Article’s multilayered history of affirmative action supports solutions that recognize the profound importance of Black law students in the past, present, and future. 

Download the article from SSRN at the link.

Hooton and Murphy on Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada @MPICSL @mpilhlt @maxplancklaw

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 as 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.

Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

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 School. 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.

Buffington on Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution's Second Amendment @AlbanyLaw

Joe Buffington, Albany Law School, has published Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution’s Second Amendment. Here is the abstract.

The Second Amendment of the US Constitution is ambiguous due to its subordination of one clause to another without the use of an overt subordinating conjunction. Many scholars have argued that the subordination is more or less similar, if not identical, to what is seen in because-clauses. One such scholar, Karen Sullivan, has recently used corpus linguistics to conclude that the likeliest interpretation of the Second Amendment’s subordination when the Amendment was written was one of “external causation,” where the militia clause is understood as the real-world reason why the right-to-bear-arms clause is true. This essay responds to Sullivan’s significant work by presenting three synchronic differences between being-clauses and because-clauses that suggest that external causation may not be an optimal interpretation of the Amendment’s structure, after all. An alternative analysis, where the missing conjunction is modeled as a covert proform, is proposed, and consequences of the analysis are considered – in particular, I present a novel argument that the US Supreme Court’s controversial decision in District of Columbia v. Heller was, in essence, correct.

Download the essay from SSRN at the link.

ICYMI: Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug @BU_Law

ICYMI: Jed H. Shugerman, Boston University School of Law, has published Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism at 33 Yale Journal of Law & the Humanities 125 (2022). Here is the abstract.

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists rely on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Download the article from SSRN at the link.

See also 

Jed H. Shugerman, The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory, Fordham Law Legal Studies Research Paper No. 4359596.

Logan on Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine @FSUCollegeofLaw @buffalolawrev

Wayne A. Logan, Florida State University College of Law, is publishing Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine in volume 77 of the Buffalo Law Review.

Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion. There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability. This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.

Download the article from SSRN at the link.

Tobia on Methodology and Innovation in Jurisprudence @kevin_tobia @kevintobia.bsky.social @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published Methodology and Innovation in Jurisprudence at 123 Columbia Law Review 2483-2516 (2023). Here is the abstract.

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.

Download the article from SSRN at the link.

(Reviewing Dickson, Elucidating Law, OUP, 2022).

Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

Download the article from SSRN at the link.

Annual Semiotics of Law Roundtable, Keele University, July 16-18, 2024

From Mark Featherstone, Professor of Sociology, Keele University:

I am writing to draw your attention to the upcoming 24th Annual Semiotics of Law Roundtable that will be held at Keele University from 16th to 18th July, 2024.

Law in an Age of Permacrisis

‘Permacrisis’ was the word of the year in 2022. By then it had become clear that several interconnected crises had, for decades, not shown any sign of abating. On all levels - local, regional and global - crises seem to have been caught in ever-intensifying spirals. In the spheres of international relations, politics, economics, environmental policy, energy and critical resource/infrastructure, demographic evolution, culture and ideological formation, unpredictability or the sheer unravelling of consistency seem to be spreading through linkages, nodes, and interlocked networks. Reactions and remedies often contributed to the overall instability, leading to a generalised sense of perpetual, unstoppable crisis.

Economic and ecological collapse is easier to imagine than before. This begs the question as to how law operates in an era marked by such a pervasive sense of ‘permacrisis’. Can law operate in what some might perhaps call an age of near entropy? Where and how does law manifest itself in times of continuous crisis? What is the future of law? Will law have to be re-imagined, or has it been re-imagined already? Where and how? The conference invites contributions to these and related questions and themes.

For further details and information relating to registration and fees, please visit the conference website at:

https://www.keele.ac.uk/law-age-permacrisis/

Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.

Download the article from SSRN at the link.

Rackstraw on When Reality TV Creates Reality: How "Copaganda" Affects Police, Communities, and Viewers @emmarackstraw

Emma Rackstraw, Harvard University, has published When Reality TV Creates Reality: How “Copaganda” Affects Police, Communities, and Viewers. Here is the abstract.

Television shows with police officer protagonists are ubiquitous on American television. Both fictional shows and reality shows portray a world where criminals are nearly always apprehended. However, this is a distortion of reality, as crimes mostly go unsolved and police officers infrequently make arrests. What does the omnipresence of this genre mean for the general public's conception of police, for the practice of policing, and for the communities being policed? I use department-level and officer-level arrest data to find that arrests for low-level, victimless crimes increase by 20 percent while departments film with reality television shows, concentrated in the officers actively followed by cameras. These arrests do not meaningfully improve public safety and come at the cost of the local public's confidence. I then document quasi-experimentally and experimentally that these shows -- particularly their overrepresentation of arrests -- improve non-constituent viewer attitudes towards and beliefs about the police. The results are consistent with "copaganda" shows inflating trust in police nationally while subjecting some to harsher but not more effective enforcement. I consider the implications for police reform.

Download the article from SSRN at the link.

CFP (Updated): In the Thick of Images: Law, History, and the Visual

From Laura Petersen, University of Lucerne, co-sponsor of the conference In the Thick of Images: Law, History, and the Visual, here is an updated version of the CFP and a list of the keynote speakers.

CALL FOR PAPERS
In the Thick of Images: Law, History, and the Visual 
Conference

Monday 10 + Tuesday 11 June 2024 
University of Lucerne 

“Suppose that whatever we’ve done, felt, and thought has always happened in the thick of images.” (Anand Pandian, Reel Word: An Anthropology of Creation) 

The ‘visual turn’ has long been turning in critical and cultural studies of law (see Douzinas & Nead 1999). In the past twenty-five years, a growing body of scholarship has evolved that emphasises law’s “constitutive imbrication” (Crawley 2020) with an array of visual forms, and elaborates on the ways in which images “shape and transform legal life” (Sarat et al. 2005). Weaving together an eclectic set of theories, concepts, methods and materials, such studies refuse thin readings of images as merely illustrative of law, and invite us to think more deeply about their ideological and visual operations – about the meanings they carry and make available, about their material presence and affective effects, and about the cultural-political and cultural-legal work they perform across their multiple contexts of production, circulation and reception.

Much of this scholarship focuses on the contemporary conjuncture of law and visuality. Yet law’s imbrication with the visual is not exclusive to the present; law has always lived, happened and mattered “in the thick of images”. This is the starting point for our two-day conference, which seeks to explicitly foreground historical and historicist work on law and the visual. Situated at the disciplinary crossroads of law, history, visual cultural studies, art history, film and photography studies, In the Thick of Images invites multiple viewpoints and approaches to converge on ways of negotiating the entanglements of law, history and the visual – in various contexts, scales and timeframes.

Link to the full Call for Papers and other information

Proposals due by 19 January 2024 to laura.petersen@unilu.ch 

Convenors

Steven Howe (steven.howe@unilu.ch)
Laura Petersen (laura.petersen@unilu.ch)
Nicole Schraner (nicole.schraner@unilu.ch)

 

The conference forms part of the SNSF research project: Imagining Justice: Law, Politics and Popular Visual Culture in Weimar Germany

 

Keynote speakers:

• Valérie Hayaert (University of Warwick)
• Desmond Manderson (Australian National University)
• Jolene Rickard (Cornell University)
• Frederic J. Schwartz (University College London)

 

Davies on Spiro T. Agnew In His Own Words: 1973 and 1983 @horacefuller @GB2d

Ross E. Davies, George Mason Law School; The Green Bag, has published Spiro T. Agnew in His Own Words: 1973 and 1983 at 26 Green Bag 2d 327 (2023). Here is the abstract.

In 1983, Spiro T. Agnew inscribed a copy of his autobiography to a young recipient, with “the fervent hope that he will acquire a profound suspicion of the news media. History is only the accumulated perceptions of those in control of the machinery for its dissemination.” Agnew knew what he was talking about, having participated deeply — and profitably — in the dissemination of his own history. Oddly, a complete and accurate transcript of the nolo contendere proceedings that were an important part of that history is difficult to find. And so here it is, presented in the hope that its dissemination in the lowly but readily accessible Green Bag will contribute to a more complete and accurate accumulation of perceptions about Spiro T. Agnew, his words, and his deeds. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Download the article from SSRN at the link.

Litt on From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings @LucyJLitt @UMKCLawReview

Lucy J. Litt, Harvard Law School, has published From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings at 92 UMKC L. Rev. 121 (2023). Here is the abstract.

The use of rap lyrics as evidence in criminal proceedings distorts the art form and heightens the risk of wrongful prosecutions. Rap music is complex and sophisticated; it is an art form with its own history, norms, and conventions. Like other art forms (e.g., spy novels by John le Carré; ballets by George Balanchine; the Big Apple Circus; Shakespeare’s tragedies; Marvin Hamlisch and Edward Kleban’s “A Chorus Line;” or songs by Johnny Cash), 1 it serves as a creative outlet and can be a form of critical public commentary. Rap is an art form that often distorts or exaggerates reality. Unlike other fictional art forms (e.g., murder mysteries, TV crime show scripts), however, prosecutors increasingly introduce rap lyrics as evidence in criminal proceedings, where the real-life stakes can be very high. In 1987, the Washington Court of Appeals considered, and denied, the admissibility of violent writings as evidence; however, courts did not consider the specific question of rap lyrics until the United States Court of Appeals for the Seventh Circuit heard United States v. Foster in 1991 and concluded that the rap lyrics in question were admissible as evidence against the defendant rap artist. In the years since 1991, state and federal prosecutors have continued their practice of introducing rap lyrics and rap music videos in criminal proceedings against rappers(and even sometimes their friends and fans). Scholars and commentators who focus on these practices refer to the phenomenon as “rap on trial.” The courts vary in their decisions regarding rap on trial, with most courts and prosecutors having persistently failed to grapple with the complexity of the issues presented by its use. Troublingly, in the ensuing three decades, prosecutors, judges, and others in the legal profession have not sufficiently scrutinized the reliability of rap lyrics and the constitutional issues inherent in their misuse, in spite of studies that have shown that the introduction of rap lyrics as evidence infuses a heightened likelihood of unfair prejudice into the criminal legal process. Rap is a form of creative expression that was predominantly cultivated by Black and Brown men, and it has its origins in marginalized urban areas. The art form and its creators often invoke unsupportable negative stereotypes among jurors, and even judges. Prior legal and interdisciplinary scholarship, by experts such as Professors Andrea L. Dennis and Erik Nielson, has addressed the practice of, and problems presented by, “rap on trial.” Social science scholarship, such as Stanford University Sociology Professor Forrest Stuart’s Ballad of the Bullet, has explored the culture surrounding rap music and how that culture comes into tension with racially biased law enforcement and uninformed members of the general public. The scholarship that exists in this area tends to draw upon the convergence of these issues to propose holistic approaches to proposed reforms. This paper challenges prosecutors’ use of rap lyrics (and, by extension, rap music videos) as evidence against defendants in criminal legal proceedings: this practice often violates and undermines fundamental values of the United States justice system, the rules of evidence, and the Constitution; the practice also threatens to harm defendants, their loved ones, and their communities.

Download the article from SSRN at the link.

Morris on The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922-1930 @NomosVerlag

P. Sean Morris, University of Helsinki Faculty of Law, is publishing The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922 – 1930 in The Hope of Ages is in the Process of Realization: Establishing a World Court, 1920 – 1922 (Henri Waele and Christian Tams, eds., Nomos 2024). Here is the abstract.

This chapter examines the employment of international law as a concept in the early Advisory Opinions of the PCIJ (1922–1930). After a short review of the gradual evolution of the broader idea of the law of nations in the works of Christian Wolff and Jeremy Bentham, the central argument is that, even when the PCIJ invoked international law as a term or as an interpretative mechanism, this was often in relation to either the broader international legal environment of the 1920s, or general principles of international law. The majority of the Court’s early Advisory Opinions do not display any references to scholarship, and as such rarely invoked international law as a concept. This appears to reflect an effort to align with the shifting paradigms of the day concerning the law of nations, and the ‘new’ international law of the twentieth century. The analysis suggests further that the judicial practice consisted of a ‘jurisprudential mode’ which eventually gave way to one more closely premised on ‘mutual transactions’.

Download the essay from SSRN at the link.

Jewel on See[ing] That In a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing See That in a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee in the Georgetown Journal of Law & Modern Critical Race Perspectives (2023). Here is the abstract.

Jason Aldean’s music video for “Try That in a Small Town” aptly illustrates the thesis of this article, which is that when it comes to racism and the law, visual rhetoric has played and still plays an outsized role. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee. This is the same courthouse where, in 1918, a white mob violently lynched a young Black man. The song recounts a laundry list of dog whistle topics relating to urban crime, mentions a gun given to me by my grandfather, and then warns the audience “Well, try that in a small town.” The Country Music Network quickly took down the video after complaints that the subtext was undeniably racist and violent. Within Aldean’s video, the Maury County Courthouse stands as a warning of the lynching that occurred outside its doors and as a reminder that while the courthouse visually represents justice, that justice is not for everyone. When it comes to race, racism, and white supremacy, the United States is polarized about what we want to see and not see. Three recent Tennessee legal controversies illustrate how visual rhetoric, which carries so much persuasive power, has been deployed for evil, to staidly symbolize white supremacy, but also for good, to propel society toward racial justice and equity. The first controversy involves the display of Confederate memorabilia inside the jury deliberation room in a small Tennessee town. The second controversy illustrates how Tennessee’s heritage protection law prevents local citizens from removing Confederate monuments from public property. The third example explains how, under Tennessee’s divisive concepts acts, conservative parents censor truthful imagery depicting U.S. history regarding race. Just as Aldean’s video struck a chord nationally, the issues boiling up in Tennessee are broadly relevant because what is happening in Tennessee maps onto national jurisprudential and cultural trends. Many states have similar heritage protection acts that prevent the removal of Confederate monuments. And, many states have enacted anti-CRT, divisive concepts bills. This article will uniquely analyze these trends from a visual perspective. Drawing upon the disciplines of legal rhetoric and visual rhetoric, Part One explains the rhetorical concepts that apply to Confederate imagery in the courtroom, on the courthouse lawn, and in textbook illustrations. Part Two delves into the Confederate Jury Room cases, discussing the cases as well as interdisciplinary explanations for what these Lost Cause symbols mean historically and what they do to observers psychologically. Part Three will address Confederate monuments in Tennessee, explaining how Tennessee’s Heritage Protection Act (amended many times in a reactionary fashion) operates in a highly undemocratic fashion, preventing local citizens from exercising control over public spaces and reinforcing toxic and traumatic narratives that reinforce white supremacy and denigrate Black experiences. This Article argues that Congress should declare all Confederate monuments on public land to be a badge of slavery within the meaning of the Thirteenth Amendment. In so doing, various state heritage protection acts would be preempted by federal law, allowing local citizens to remove these statues. Finally, Part Four will address Tennessee’s anti-CRT, “divisive concepts” acts, particularly analyzing the role that visual rhetoric plays in these attempts to stifle truthful portrayals of history. This article will conclude by drawing together the threads and patterns contained within each scene.

Download the article from SSRN at the link.

Mosvick on Free Speech for None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War @nmosvick

Nicholas Mosvick, National Review Institute, Buckley Legacy Project, is publishing Free Speech for All or None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War as a Liberty & Law Center Research Paper. Here is the abstract.

Legal historians and First Amendment scholars have long appreciated the unique constitutional challenges of wartime conditions, from the questions of prosecuting seditious conspiracy and speech to interference with the military draft to public figures and newspapers calling to the public to oppose and obstruct the war effort. Unlike the major wars of the 20th century from World War I to the Vietnam War, the American Civil War saw no free speeches before the Supreme Court during the war and therefore, the constitutional battles on major free speech questions generally took place outside courtrooms and in the area of public discourse. The most significant wartime free speech case resulted from the military arrest and trial of one of President Abraham Lincoln’s greatest domestic political opponents during the war, Democratic Congressman Clement Vallandigham of Ohio. That particular case, along with many other instances of riots, attacks on presses, arrests, and antiwar speeches, brought about a public constitutional debate in the partisan press in which both Democratic and Republican papers claimed fidelity to the founding principles of free speech and accused their opponents of rank hypocrisy. This debate shows how constitutional principles and idea suffused the public discourse of antebellum and Civil War America.

Download the paper from SSRN at the link.

Moore on Salomon vs. Salomon @UCLLaws @hartpublishing

Marc T. Moore, University College London Faculty of Laws, is publishing Salomon vs Salomon in Landmark Cases in Company Law (V. Barnes and S. Wheeler, eds., Hart Publishing) (forthcoming ).

Salomon v Salomon is widely regarded as the most significant case in English and wider Commonwealth company law history. It is typically the subject of introductory company law lectures and textbook chapters throughout much of the common law world, and no proper account of the history of the business corporation is complete without it. Accordingly, few would disagree that Salomon is a landmark – if not the landmark – case in English company law. At the same time, though, Salomon is also one of the most misunderstood cases in English legal history, and even today I suspect that many students and even teachers of company law continue to labour under certain misapprehensions about the case. In this seminar, I will argue that, far from being a so-called “landmark” company law case, Salomon is a case that should never really have come to court in the first place, or at least that should never have had to proceed beyond the initial trial court stage. As such, the principal significance of Salomon’s case resides not on a doctrinal but rather on a factual level, in enabling the authoritative reputational redemption of the Jewish defendant Aron Salomon and his family in the face of a barrage of hostile, unfair and manifestly false imputations as to their perceived conduct, motives and character traits.

Download the chapter from SSRN at the link.

Call For Papers: University of Lucerne: In the Thick of Images: Law, History, and the Visual

From Steven Howe, University of Lucerne:

In the Thick of Images: Law, History, and the Visual 

Monday 10 & Tuesday 11 June 2024 
University of Lucerne 

CALL FOR PAPERS 

“Suppose that whatever we’ve done, felt, and thought has always happened in the thick of images.” (Anand Pandian, Reel Word: An Anthropology of Creation) 

The ‘visual turn’ has long been turning in critical and cultural studies of law (see Douzinas & Nead 1999). In the past twenty-five years, a growing body of scholarship has evolved that emphasises law’s “constitutive imbrication” (Crawley 2020) with an array of visual forms, and elaborates on the ways in which images “shape and transform legal life” (Sarat et al. 2005). Weaving together an eclectic set of theories, concepts, methods and materials, such studies refuse thin readings of images as merely illustrative of law, and invite us to think more deeply about their ideological and visual operations – about the meanings they carry and make available, about their material presence and affective effects, and about the cultural-political and cultural-legal work they perform across their multiple contexts of production, circulation and reception.

Much of this scholarship focuses on the contemporary conjuncture of law and visuality. Yet law’s imbrication with the visual is not exclusive to the present; law has always lived, happened and mattered “in the thick of images”. This is the starting point for our two-day conference, which seeks to explicitly foreground historical and historicist work on law and the visual. Situated at the disciplinary crossroads of law, history, visual cultural studies, art history, film and photography studies, In the Thick of Images invites multiple viewpoints and approaches to converge on ways of negotiating the entanglements of law, history and the visual – in various contexts, scales and timeframes.

Link to the full Call for Papers and other information

* Keynote speakers to be announced shortly

Proposals due by 19 January 2024 to laura.petersen@unilu.ch 

Convenors

Steven Howe (steven.howe@unilu.ch)
Laura Petersen (laura.petersen@unilu.ch)
Nicole Schraner (nicole.schraner@unilu.ch)

 

The conference forms part of the SNSF research project: Imagining Justice: Law, Politics and Popular Visual Culture in Weimar Germany

 

ICYMI: Contreras on Science Fiction and the Law: A New Wigmorian Bibliography @contreraslegals @sjquinney

ICYMI: Jorge L. Contreras, University of Utah College of Law, has published Science Fiction and the Law: A New Wigmorian Bibliography at 13 Harvard J. Sports & Ent. L. 63 (2022).

In 1908, Dean John Henry Wigmore compiled a list of novels that no lawyer could afford to ignore. Wigmore’s list, taken up by Professor Richard Weisberg in the 1970s, catalogs one hundred literary works from Antigone to Native Son, each of which offers insight into the legal system or the practice of law. This article undertakes a similar bibliographic exercise with respect to law and the literature of science fiction. While science fiction, as a literary genre, has its detractors, it cannot be denied that science fiction stories – whether in books, short stories, films or television shows – reach a vast audience and, for better or worse, influence popular perceptions and understanding of science and technology issues. This has been the case since the days of Jules Verne and H.G. Wells, but is especially true today. When we talk about genetic engineering, Brave New World, Gattaca and Jurassic Park are invariably mentioned. When we think about artificial intelligence, HAL, Skynet and other fictional depictions immediately come to mind. The surveillance society? Nineteen Eighty-Four, of course. These speculative fiction accounts inform the background intuition of judges, legislators and citizens when confronting novel legal issues that arise due to technological change. As such, it is important to understand the body of literature that forms these background intuitions. Accordingly, this article offers the first curated and categorized list of legal science fiction literature, following the model of Wigmore and Weisberg. It is classified according to doctrinal themes, and also includes a compilation of academic literature addressing issues of law in science fiction. It is hoped that the materials compiled here will serve as a useful resource for legal practitioners, policy makers and educators as they grapple with ever increasing legal challenges brought about by the rapid evolution of science and technology. [This is a draft - suggestions, comments and corrections are welcome]

Download the article from SSRN at the link.

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

Jacob D. Charles, Pepperdine University School of Law, is publishing Time and Tradition in Second Amendment Law in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

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

Download the essay from SSRN at the link.

Williams on American Exceptionalism as/in Constitutional Interpretation @BYULaw @GaLRev

Lucy Williams, Brigham Young University Law School, has published American Exceptionalism as/in Constitutional Interpretation at 57 Georgia Law Review 1071 (2023). Here is the abstract.

American exceptionalism—the idea that America is superior, chosen, and tasked with a unique mission—is a foundational part of America's political culture. Its themes regularly appear in political speeches, at campaign rallies, and at national celebrations. But exceptionalism also appears frequently in another, less obvious place: Supreme Court opinions. Scholars and pundits routinely scour these opinions to identify the jurisprudential theories and political leanings that drive case outcomes. But as yet, legal scholars have paid little attention to the exceptionalist themes in the Court's case law. Some legal scholars study the ways American constitutional law is distinctive, or exceptional, when compared to law in other countries, and many are eager to predict and explain the Supreme Court's behavior. But few analyze exceptionalism as a judicial ideology or worldview, and none consider whether exceptionalist commitments influence the Court's decisions. In this Article, I respond to this key omission by offering the first systematic study of American exceptionalism and Supreme Court jurisprudence. I argue that American exceptionalism is a powerful and important feature of Supreme Court decision making. Through close reading and rhetorical discourse analysis of five landmark Supreme Court decisions, I demonstrate that the Court frequently invokes and deploys exceptionalist themes when interpreting the Constitution. This Article also reveals that the Court relies on two distinct modes of exceptionalist rhetoric. The first, which I call accomplished exceptionalism, is self-celebratory and assumes that America will always be great. The second, which I call aspirational exceptionalism, is self-critical and treats American greatness as a contingent possibility. The Court's invocation of these modes is not random but instead correlates closely with the outcome in a case. Specifically, in cases upholding exercises of government power, the Court favors accomplished exceptionalism, but in cases affirming individual rights claims, it relies on the aspirational mode. These findings have important implications. The correlation between exceptionalism and case outcomes suggests that exceptionalism might have a causal effect on judicial decision making—that it, like judges' ideology or theories of statutory interpretation, might drive the Court to reach particular results. If this is so, exceptionalism has been hiding in plain sight—as neglected as it is ubiquitous—as an element in Supreme Court decision making. It is past time for scholars to give exceptionalism the same attention they have given to other outcome-determinative phenomena.

Download the article from SSRN at the link.

Casini on Addressing the Use of Rap Lyrics as Criminal Evidence @KCEsq @QuinnipiacLaw

Kevin Casini, Qiunnipiac University School of Law, has published Addressing the Use of Rap Lyrics as Criminal Evidence. Here is the abstract.

The judicial bias against rap music is a growing contributor to systemic racism that must be ended before it causes any more damage. Whether because of personally held beliefs, latent cultural insensitivity, or a win-at-all-costs prosecutorial approach to criminal trials that promotes an appeal to those traits in jurors, prosecutors should be bound from using the Constitutionally protected speech and expression in rap lyrics as evidence against criminal defendants. At an increasing frequency, courts across the country are making it known that they have no problem using a rapper’s lyrics against them in a criminal case. This practice is particularly egregious, not only because of its chilling effect on creativity but because it is specifically targeted against rap music and rap music alone; in other words, it is a practice targeted against Black defendants. Congress now needs to enact law expressly upholding, again, freedom of expression, and preventing that expressive speech from being weaponized against the communities that rely on it to express themselves, to tell the stories of their communities, and to create, and recreate, identity.

Download the article from SSRN at the link.

2024 Law and Humanities Workshop For Junior Scholars: Call For Participation

 2024 LAW AND HUMANITIES WORKSHOP FOR JUNIOR SCHOLARS

Call for Participation

Georgetown University Law Center, Stanford Law School, UCLA School of Law, the
University of Pennsylvania, and the University of Southern California Center
for Law, History, and Culture invite submissions for the 23d meeting of the
Law and Humanities Workshop for Junior Scholars, to be held at the UCLA School
of Law, on June 9-10, 2024.

ABOUT THE WORKSHOP

The workshop is open to untenured professors, advanced graduate students,
post-doctoral scholars, and independent scholars working in law and the
humanities. In addition to drawing from numerous humanistic fields, including
Black and Indigenous studies, history, literature, political theory, critical
race theory, feminist theory, and philosophy, we welcome critical, qualitative
work in the social sciences, including anthropology and sociology. While the
scope of the Workshop is broad, we cannot consider proposals that are focused
solely on quantitative social science research or that are limited to purely
doctrinal legal research. We are especially interested in submissions from
members of traditionally underrepresented groups and submissions touching on
themes of anti-racism and anti-subordination. We welcome submissions from
those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee,
between six and eight papers will be chosen for presentation at the Workshop.
At the Workshop, two senior scholars will comment on each paper. Commentators
and other Workshop participants will be asked to focus specifically on the
strengths and weaknesses of the selected scholarly projects, with respect to
subject and methodology. The selected papers will then serve as the basis for
a larger conversation among all the participants that may include themes
connecting all of the projects, as well as discussion of the evolving
standards by which we judge excellence and creativity in interdisciplinary
scholarship.

The selected papers will appear in a special issue of the Legal Scholarship
Network; there is no other publication commitment. (We will accommodate the
wishes of chosen authors who prefer not to have their paper posted publicly
with us because of publication commitments to other journals.) However, we
will only accept Workshop participants whose papers are true works in
progress; articles or chapters that are already in page proofs or are
otherwise unable to be revised by the time of the Workshop are ineligible.

The Workshop will pay the domestic travel and hotel expenses of authors whose
papers are selected for presentation. For authors requiring airline travel
from outside the United States, the Workshop will cover such travel expenses
up to a maximum of $1250.

SUBMISSION INSTRUCTIONS

Applications should include:
a 1500-2000 word summary of the paper (including footnotes or endnotes),
a 1-2 page bibliography,
in Microsoft Word (not PDF)
and, if your paper is a chapter in a book or dissertation, an optional 1-page
chapter outline of the larger project.

Applications are due on December 15, 2023.
If your application advances to the final stage of consideration, you will be
asked to submit the full paper on February 1, 2024. Please do not apply if you
will not have a full paper on February 1. The application is intended to be a
summary of existing, ongoing work rather than a proposal for new or planned
work.

Final paper submissions must be works-in-progress that do not exceed 10,000
words in length (including footnotes/ endnotes). A dissertation chapter may be
submitted, but we strongly suggest that it be edited so as to stand alone as a
piece of work with its own integrity. A paper that has been submitted for
publication is eligible for selection so long as it will not be in galley
proofs or in print at the time of the Workshop; it is important that authors
still be in a position at the time of the Workshop to consider comments they
receive there and to incorporate them as they think appropriate in their
revisions.

We ask that those submitting applications be careful to omit or redact any
information in the paper summary or the body of the paper that might serve to
identify them, as we adhere to an anonymous or “blind” selection process.
Applications (in Microsoft Word—no pdf files, please) will be accepted until
December 15, 2023, and should be sent by e-mail to:
Lawandhumanitiesworkshop@gmail.com. Please be sure to include your name,
institutional affiliation (if any), and phone and email contact information in
your covering email, not in the paper itself.

For more information, please send an email inquiry to
Lawandhumanitiesworkshop@gmail.com or visit 
our new website

Simon Stern, University of Toronto, Law & English, Chair
Martha Jones, Johns Hopkins University, History
Sherally Munshi, Georgetown University, Law
Riaz Tejani, University of Redlands, School of Business & Society
Nomi Stolzenberg, Law, University of Southern California
Martha Umphrey, Amherst College, Law, Jurisprudence, and Social Thought
Program Committee, 2024 Law and Humanities Workshop for Junior Scholars
The Law and Humanities Workshop for Junior Scholars is committed to anti-
racism both inside and outside the academy.

Gillmer on Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White @GonzagaLaw

Jason Gillmer, Gonzaga University School of Law, has published Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White. Here is the abstract.

This Article is a narrative history of a relationship between a white man named Richard and a Black woman named Laura that started in slavery and ended twenty-seven years later in a trial over whether they were husband and wife. The story follows some of the usual plotlines. Richard purchased Laura at a slave sale and brought her to his home in Missouri; he then married a white woman and they had a daughter together. Within a few years, however, that marriage fell apart, and soon after, Richard allegedly freed Laura and the two of them went to California and built a life together. Twenty years later, after Richard died, Richard’s long-lost daughter brought suit in a California courtroom. She sought to eject Laura from the home she shared with Richard on the theory she, rather than Laura, was Richard’s sole surviving heir and entitled to his large estate. This Article recreates the story of Richard and Laura to offer an intimate glimpse into the complexities of interracial relationships during slavery and the decades that followed. It is built out of the trial transcripts—which until now have remained hidden for 150 years—and relies heavily on the actual words of the lawyers, witnesses, and litigants to shape the narrative. The uniqueness of this approach is also what provides its value. Relying on their words and voices, this Article shines a light on how the parties and the participants saw their world, not on how others saw it for them. Richard and Laura’s story is also noteworthy in that it spans several decades and unfolds over several milestones—slavery, the Gold Rush, and westward expansion—creating the opportunity to expand our understanding of the individual experiences of people involved in Black-white relationships beyond what is typically found in the literature. Hearing about their story, and about the courtroom battle over the legitimacy of their relationship, provides context for why interracial families, even today, continue to suffer from minor indignities and open hostilities simply because they broke the norm.

Download the article from SSRN at the link.

Narechania on Hamilton's Copyright and the Election of 1800 @tnarecha @BerkeleyLaw @WisLRev

Tejas N. Narechania, University of California, Berkeley, School of Law, is publishing Hamilton's Copyright and the Election of 1800 in the Wisconsin Law Review. Here is the abstract.

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements—ads which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech? The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: Candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship—undermining protections for political speech. The historical record may help. In this Essay, I highlight an episode—overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of novel primary materials and secondary sources outside the legal literature, I tell the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared, if contested, understanding—shared by both Hamilton and his opponents—that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so I conclude by describing how the public governance interests in such political speech should trump copyright’s restraints[.]

Download the article from SSRN at the link.