Kerr on The Perfect Opinion @GeorgetownLaw

Andrew Jensen Kerr, Georgetown University Law Center, has published The Perfect Opinion. Here is the abstract.

In this Article I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about *us*. So why do judges often select non-authoritative opinions (alternative concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine. Instead it seems that at least some judges share a critical perspective that citation is a “mask hiding other considerations” , and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on first principles reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we have to work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.

Download the article from SSRN at the link.

Damodaran on Resistance to Power as Depicted in the Hacker Wars

Saigopal AP Damodaran, Christ College, has published Resistance To Power as Depicted in the Hacker Wars at 7 IMPACT: International Journal of Research in Humanities, Arts and Literature 51 (June 2019). Here is the abstract.

The Hacker Wars(2014) is a documentary film directed by Vivien Lesnik Weisman. This documentary film focuses on hackers, specifically hacktivists and their battles against the US government over surveillance, privacy and who should hold information. The film tells the story of three prominent faces in the hacktivist movement. They are Andrew Aurenheimer, known by his hacker handle Weev, Barrett Brown, a journalist and propagandist for the hacker group, Anonymous and Jeremy Hammond who was known by his hacker handle, Anarchaos. There is the fourth character Sabu, a hacker who turned informant to the FBI and help nab these hackers. This paper will look at this documentary film and try to understand the way resistance to power is carried out in the cyberspace and what is the discourse these dissenters subscribe to and also briefly look at how these resistances are confronted. To do so, this paper will employ the ideas of Michel Foucault on power, discourse and resistance.

Download the essay from SSRN at the link.

Newly Published: The Media Method: Teaching Law With Popular Culture

Available August 16, 2019: The Media Method: Teaching Law With Popular Culture (Christine A. Corcos, ed., Durham, Carolina Academic Press, 2019). Here from the publisher's website is a description of the book's contents.

Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.

Here is a link to the table of contents.

Authors of the twenty-seven chapters are Michael Asimow, Cynthia D. Bond, Alex Glashausser, Cassandra Sharp, Deborah Ahrens, Susanna Frederick Fischer, Marybeth Herald, Stacey M. Lantagne, Richard J. Peltz-Steele, Jeffrey E. Thomas, Brandon Beck, Catherine Martin Christopher, DeLeith Duke Gossett, Brie D. Sherwin, Nancy Soonpaa, Sha-Shana Crichton, JoAnne Sweeny, Stephen Parks, Paul Bergman, Christine A. Corcos, Robert M. Jarvis, Madeleine June Kass, Kellyn O. McGee, Geraldine Szott Moohr, Jennifer L. Schulz, Kate Sutherland, 

Priya Baskaran, Laila Hlass, Allison Kron, Sarah Sherman-Stokes, Wendy-Adele Humphrey, Terri LeClercq, Kelly E. Collinsworth, and Rebecca Bratspies.

Newly published: Frank O. Bowman, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge, 2019)

Newly published: Frank O. Bowman, III, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press, 2019). Here from the publisher's website is a description of the book's contents.

For the third time in forty-five years, America is talking about impeaching a president, but the impeachment provisions of the American constitution are widely misunderstood. In High Crimes and Misdemeanors, constitutional scholar Frank O. Bowman, III offers unprecedented clarity to the question of impeachment, tracing its roots to medieval England through its adoption in the Constitution and 250 years of American experience. By examining the human and political history of those who have faced impeachment, Bowman demonstrates that the Framers intended impeachment to be a flexible tool, adaptable to the needs of any age. Written in a lively, engaging style, the book combines a deep historical and constitutional analysis of the impeachment clauses, a coherent theory of when impeachment should be used to protect constitutional order against presidential misconduct, and a comprehensive presentation of the case for and against impeachment of President Trump. It is an indispensable work for the present moment.

 

Sassoubre on Realism and Melodrama in American Film Since "Birth of a Nation"

Ticien Marie Sassoubre, Stanford Law School, is publishing Knowing It When We See It: Realism and Melodrama in American Film Since 'Birth of a Nation' in Trial Films on Trial: Law, Justice, and Popular Culture, Tuscaloosa: University of Alabama Press (Austin Sarat, Jessica Silbey & Martha Umphrey, Eds., Tuscaloosa: University of Alabama Press, (2019).

In American film, official law tends to be indifferent, bureaucratic, and corruptible, constantly threatening to produce injustice. In contrast, “justice” is individual, unambiguous and readily accessible. As a result, seeing justice done often requires extralegal intervention. Films offer alternate trials in which apparently realistic but emotionally charged representations of personal experience, rather than legal procedure and evidentiary standards, determine guilt or innocence. The fairness of the verdict in the filmic alternate trial is measured not by the standard of due process, but by the viewer’s moral sense. Nevertheless, as Carol Clover has observed, the narrative substructure of both the Anglo-American trial and mainstream film bear a striking resemblance. I argue that this resemblance arises from a common set of assumptions about narrative plausibility and the social world: the conventions that govern mainstream film are also the (largely unspoken) conventions of credibility and verifiability in legal discourse. Filmic alternate trials follow realist rules of evidence but articulates an underlying epistemology that is fundamentally melodramatic. They have done so at least since D. W. Griffith’s deeply influential “Birth of a Nation” (1915), and they continue to do so today. And these melodramatic trials of our social realities inform our perception in legal and non-legal settings in ways that are so familiar they have become invisible to us.

Download the essay from SSRN at the link.

Quinta Jurecic on the Mueller Report as Detective Story @qjurecic @lawfareblog @lawfarepodcast

Quinta Jurecic, managing editor of Lawfare, compares the Mueller Report to a detective story, here, for the New York Times. She writes in part,

When the Mueller report was released, commentators reviewed it not only as a political and legal work but also as another genre: literature. In The Washington Post, Carlos Lozada described the report as “the best book by far on the workings of the Trump presidency.” Michiko Kakutani wrote in The Columbia Journalism Review that it held “the visceral drama of a detective novel, spy thriller, or legal procedural.” Laura Miller of Slate found it to be a work of “palace intrigues.”

...

The theatrical focus is a little much. But the literary critics are onto something. The report tells what is probably one of the biggest stories of our lifetimes — and understanding that narrative as a narrative can help make sense of the confused political moment. Exploring the assassination of John F. Kennedy, the writer Don DeLillo described in his novel “Libra” the endless work of sleuthing new information on the president’s death as an effort to draft the “book of America” — the novel “in which nothing is left out.” The same might be said of the Mueller report.

Susan Hennessey also hosts a podcast for Lawfare: The Report.

Simard on Slavery's Legalism: Lawyers and the Commercial Routine of Slavery @WillametteLaw

Justin Simard, Willamette University College of Law; Northwestern University; American Bar Foundation; has published Slavery's Legalism: Lawyers and the Commercial Routine of Slavery at 37 Law and History Review 571 (2019). Here is the abstract.

Elite southern lawyers professed and demonstrated commitment to a vision of legal practice and decisionmaking that they shared with their northern colleagues, even as legal arguments over slavery and secession played out contentiously in politics and the courts. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather in legalism, characterized by commitment to legal rules and reasoning, and legal practice, distinguished by dedication to routine commercial work. Insulated from many of the political and economic conflicts of the antebellum era, a national legal culture allowed southern lawyers to serve as economic intermediaries between North and South. This article examines this culture through a study of the career of the Georgia lawyer E.A. Nisbet. During his legal education, time on the Georgia Supreme Court, and work as a private lawyer Nisbet demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.

The full text is not available for download.

Murray on Zero Tolerance @murrayyxta

Yxta Maya Murray, Loyola Law School, is publishing Zero Tolerance in the Texas Hispanic Journal of Law and Policy. Here is the abstract.

Zero Tolerance is a legal-literary work in which the author seeks to understand the motivations and thought processes of immigration detention agents who have participated in separating families at the border. It is a work of fiction, which is part of a collection of short stories titled Americas. Conventional legal scholarship, such as that written by Josh Chafetz, David E. Pozen, and Jennifer Nou, has addressed radical or troubling shifts in norms, which scholars describe as “norm destruction” and “norm decomposition.” This story treats norm destruction in the context of atrocities committed in immigrant detention centers in furtherance of the Attorney General’s “zero tolerance policy” against illegal immigration. It is part of a larger project that addresses the political and jurisprudential catastrophes of the past several years through the expressiveness permitted by art.

Download the article from SSRN at the link.

Belliveau on Law-and-Literature Workpiece: A Montage of the Law

S. Belliveau has published Law-as-Literature Workpiece: a Montage of the Law. Here is the abstract.

This paper depicts law through prosaic and photographic montage. In matters of law, every interpretation necessarily concerns a claim in right to administer violence through enforcement. Montage as form in writing about law gives a greater scope for interpretation to the reader, more so than traditional narrative. This work incorporates elements of literary and photographic montage as developed by John Heartfield and Walter Benjamin, and as described by Siegfried Kracauer and Walter Benjamin. The Frankfurt School's perspective on critical theory informs montage in this paper.

Download the article from SSRN at the link.

Donelson on Oliver Wendell Holmes as Nihilist @LSULawCenter

Raff Donelson, Louisiana State University, has published The Nihilist at The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019). Here is the abstract.

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Download the essay from SSRN at the link.

Baude and Sachs on Originalism and the Law of the Past @WilliamBaude @StephenESachs

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, are publishing Originalism and the Law of the Past in volume 37 of the Law and History Review (2019). Here is the abstract.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

Download the article from SSRN at the link.

Cavanagh on Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy @edward_cavanagh

Edward Cavanagh, University of Cambridge, has published Flowers of the Crown in English Legal Thought: Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy at 6 Royal Studies Journal 38 (2019). Here is the abstract.

This article connects legal history with cultural and intellectual approaches to the history of late medieval England by focusing on the expression, ‘flowers of the crown.’ Believed to have originated in the early Stuart period, this article locates its origins much earlier. After the Angevin kings showed a liking for floriated crowns, a number of poets, clerics, and common lawyers worked flowers into their appraisals of monarchy throughout the fifteenth century. Up to the Stuarts, this metaphor was sometimes helpful for reminding grantees that prerogative donations and delegations, like flowers, cannot be guaranteed to last forever, and indeed eventually die once plucked from their source. This is a finding that prompts consideration of the circumstances that have compelled jurists and politicians to invoke metaphors in their assessments of royal power more generally. In turn, new insights are generated about the crown in modern English thought.

The full text is not available for download from SSRN.

Lino on A. V. Dicey and the Rule of Law and the Rule of Empire

Dylan Lino, University of Western Australia Law School, has published The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context at 81 Modern Law Review 739 (2018). Here is the abstract.

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey. But for all of Dicey’s influence, very little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view. On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own.

Download the article from SSRN at the link.

Call For Editors: European Society for Comparative Legal History @esclh

The European Society for Comparative Legal History has issued a Call For Editors. Here is the Call.

The ESCLH is seeking applications for talented and dedicated scholars to join the editorial board of our flagship Journal, Comparative Legal History.

We are particularly interested in one or more Editor, Articles Editor and Copy-editor. Evidence of scholarly ability, experience in editing or a willingness to learn quickly, and membership (or a commitment to become a member if appointed) of the ESCLH are requirements, but full training in the journal's processes will be provided as needed.

You would become part of an outstanding tradition of scholars (for example, our first and excellent Editors, Sean Donlan and Heikki Pihlajamäki) and contribute to the advancement of comparative legal history as part of a warm, supportive and dedicated team.

Applications, with a brief cover letter and short CV (no more than 4 pages) should be sent to Matthew Dyson, matthew.dyson@law.ox.ac.uk (President of the ESCLH) by 15 October 2019.\

This position is not paid.

CFP: Volume on Law, Authorship, and Appropriation

Call for papers for a volume on law, authorship, and appropriation. We are seeking papers from 10,000 to 40,000 words on any aspect of law, authorship, and appropriation, including the intersection of freedom of expression and copyright, history of authorship, defenses to copyright infringement, appropriation vs. theft, plagiarism and originality in creation, cultural appropriation, digital sampling and the law, wearable technology and IP, and related topics. Do terms like "author" and "creator" continue to have meaning? Abstracts are due no later than September 30, 2019. Finished papers are due no later than January 1, 2020. If you are interested or have questions about the project, please contact Christine Corcos at ccorcos@lsu.edu.

Wells on Adolf A. Berle and the Modern Legal Profession

Harwell Wells, Temple University Beasley School of Law, has published 'All Lawyers are Somewhat Suspect': Adolf A. Berle and the Modern Legal Profession at 42 Seattle University Law Review 641 (2019). Here is the abstract.

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would be determined by that of the modern corporation.

Download the article from SSRN at the link.

VanderVelde on Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately After Its Enactment

Lea S. VanderVelde, University of Iowa College of Law, is publishing Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment in volume 27 of the William & Mary Bill of Rights Journal. Here is the abstract.

In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined. Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

Download the article from SSRN at the link.

Newly Published: A Cultural History of Law, edited by Gary Watt (Bloomsbury Publishing) @BloomsburyPub @warwickuni

Newly published: A Cultural History of Law (Gary Watt, ed., Bloomsbury Publishing, 2019) (The Cultural Histories Series). Six volumes.

How have legal ideas and institutions affected Western culture? And how has the law itself been shaped by its cultural context? In a work spanning 4,500 years, these questions are addressed by 57 experts, each contributing an authoritative study of a theme applied to a period in history. Supported by detailed case material and over 230 illustrations, the volumes examine trends and nuances of the culture of law in Western societies from antiquity to the present. Individual volume editors ensure the cohesion of the whole, and to make it as easy as possible to use, chapter titles are identical across each of the volumes. This gives the choice of reading about a specific period in one of the volumes, or following a theme across history by reading the relevant chapter in each of the six. The six volumes cover: 1 - Antiquity (2500 BCE-500 CE); 2 - Middle Ages (500-1500); 3 - Early Modern Age (1500-1680); 4 - Age of Enlightenment (1680-1820); 5 - Age of Reform (1820-1920); 6 - Modern Age (1920-present). Themes (and chapter titles) are: Justice; Constitution; Codes; Agreements; Arguments; Property and Possession; Wrongs; and the Legal Profession. The total page extent for the pack is approximately 1200 pages. Each volume opens with a Series Preface, an Introduction and Notes on Contributors and concludes with Notes, Bibliography and an Index.

Includes Volume 1, A Cultural History of Law in Antiquity (Julien Etxabe, ed.), Volume 2, A Cultural History of Law in the Middle Ages (Emanuele Conte, ed.), Volume 3, A Cultural History of Law in the Early Modern Age (Peter Goodrich, ed.), Volume 4, A Cultural History of Law in the Age of Enlightenment (Rebecca Probert, ed.), Volume 5, A Cultural History of Law in the Age of Reform (Ian Ward, ed.), and Volume 6, A Cultural History of Law in the Modern Age (Richard K. Sherwin and Danielle Celemajer, eds.).

Arlyck on The Founders' Forfeiture

Kevin Arlyck, Georgetown University Law Center, is publishing The Founders' Forfeiture in the Columbia Law Review (2019). Here is the abstract.

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears. As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent — which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law. Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

Download the article from SSRN at the link.

Zietlow on Slavery, Liberty, and the Right to Contract @ProfessorRZ

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Slavery, Liberty and the Right to Contract in volume 19 of the Nevada Law Journal (2019). Here is the abstract.

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract. Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract.

Download the article from SSRN at the link.