Sachs on Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles @StephenESachs @HarvardJLPP

Stephen E. Sachs, Harvard Law School, is publishing Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles in the Harvard Journal of Law and Public Policy. Here is the abstract.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Download the essay from SSRN at the link.

Sheikh on "Betty, I Won't Make Assumptions": The Narrative Jurisprudence of Taylor Swift @dsheikh726 @latrobelaw

Danish Sheikh, LaTrobe Law School, is publishing ‘Betty, I Won’t Make Assumptions’: The Narrative Jurisprudence of Taylor Swift in volume 26 of the Media and Arts Law Review. Here is the abstract.

In the early months of the pandemic, Taylor Swift released her 8th studio album. For a songwriter known for her diaristic body of work, Folklore was a notable stylistic departure. The album was marked by Swift’s attempt to incorporate other voices into her storytelling, written from the perspectives of figures both real and fictional. Amongst the most widely discussed elements of Folklore is a love triangle told over the course of three songs: ‘Cardigan’, ‘August’ and ‘Betty’. Each song is written from the vantage point of a different character, with intertextual references to the other songs filling in the gaps of the story and providing a connecting thread. In this article, I approach Folklore and its central love triangle for the jurisprudential lessons it might offer. A jurisprudent is someone who develops a persona which cares for the conduct of lawful relations. In this article, I ask what forms of training Swift might provide to those of us who care about law. In particular, I approach Swift as a narrative jurisprudent, focusing on how she goes about crafting different personae, how she attempts to take responsibility for each of these personae, how she trains herself through the act of writing other selves, and how she trains her audience to listen well. I place each of these lessons in the context of Swift’s broader oeuvre as a songwriter, while also making a case for how they teach us to better take responsibility for law.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournal

Andrew Willinger, Duke University School of Law; Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the Essay from SSRN at the link.

Sapienza University of Rome Hosts Fourth Summer School: The Cultural Heritage and Memory of Totalitarianism, June 16-June 27, 2025

The Department of Literature and Modern Cultures of Sapienza University of Rome will host the fourth edition of the Summer School The Cultural Heritage and Memory of Totalitarianism between June 16 and June 27, 2025. The in-person summer course provides a unique opportunity for graduate students and early career junior professionals to explore the cultural, visual and literary legacy of totalitarian regimes and their transnational heritage and memory. This year’s edition will have a special focus on memory and postmemory.

The School combines lectures and seminars with in situ visits to the many sites of the memory of fascism and colonialism in the city of Rome. All activities are led by international experts in fields such as Comparative History, Postcolonial Literature, Visual Arts, Diaspora, Conservation and Museum Studies. You can find the program here.

For further information, please visit the website of the Summer School or write to summerschoolculturalheritage.lcm@uniroma1.it.

Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

Download the essay from SSRN at the link.

Rubin and Elinson on Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958 @LSI_Journal @NIU_Law @UChicagoPoliSci

ICYMI: Ruth Bloch Rubin, University of Chicago, and Gregory Elinson, Northern Illinois University College of Law, have published Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958 at 43 Law & Soc. Inquiry 944 (2018). Here is the abstract.

Exploiting a range of archival materials, we argue that state-level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region’s white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region’s response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South’s embrace of popular constitutionalism post-Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.

Download the article from SSRN at the link..

Stipanowich on Malice Toward None; Charity For All: Lincoln's Vision of Reconciliation For All Americans @PeppLaw

Thomas Stipanowich, Pepperdine University School of Law, has published Malice Toward None; Charity for All: Lincoln’s Vision of Reconciliation for All Americans as Pepperdine University Legal Studies Research Paper No. 2024/19. Here is the abstract.

The towering rhetoric of Lincoln’s second inaugural address, delivered in the final months of our country’s bloodiest conflict, framed a vision of the future focused on mutual healing and understanding. However, the achievement of Lincoln’s vision was complicated by the centuries-old common heritage that had divided the nation: Black slavery. Due in large part to Lincoln’s leadership, millions of enslaved Black Americans were now free, and Lincoln’s vision of reconciliation included them all. The premise of this article is that in the course of piloting the ship of state through treacherous waters, Lincoln balanced and juggled a trio of priorities--restoration of the Union, limiting Black slavery, and reconciling his fellow Americans—priorities that, depending on the circumstances, might be mutually reinforcing or in tension. Although Lincoln had long believed that slavery was a great moral wrong, it was not until the second year of his presidency that he decided that in order to restore the integrity of the Union he had to proclaim the emancipation of slaves in the Southern Confederacy—a decision driven by moral as well as pragmatic considerations, and paralleled by his own spiritual journey. The Emancipation Proclamation transformed the character of the Civil War, altering the playing field and dramatically raising the stakes for the slaveholding interests and causing many in the South to see Lincoln as the symbol of an oppressive North, a tyrant who by freeing Black slaves was effectively enslaving Southern whites. Yet throughout the war, paradoxically, Lincoln harbored hopes of promoting reconciliation. For Lincoln, this ultimately meant acknowledging the truth that slavery was the tragic joint inheritance of Americans North and South and that justice demanded its abolition whatever the cost; with this goal accomplished, the way could be open for all Americans to extend mercy to one another and live in peace. Lincoln understood that these goals might not be achieved in his lifetime, but strove mightily nonetheless. The same challenge remains for us today.

Download the essay from SSRN at the link.

Cui on False Idols in the Early History of International Taxation @AllardLaw

Wei Cui, University of British Columbia Faculty of Law, has published False Idols in the Early History of International Taxation. Here is the abstract.

A careful reading of recent scholarship on the early history of international taxation, especially on the League of Nations' work on "double taxation," ought to have dislodged many myths about this history. But more often than not, such scholarship is taken to offer mere details without altering our fundamental understanding. This paper suggests that this reception reflects a longstanding pattern in discourses about international taxation: participants perpetuate or cling onto narratives that are easily seen to be false. The paper exposes this pattern by summarizing evidence for four rarely-acknowledged conclusions about the League's output on international taxation. First, rather than advancing any agreed proposal, the 1923 "Four Economists Report" reflected fundamental disagreements (in both theory and practice) between the world's then two leading capital exporters, the U.S. and Britain. Second, the League's 1925 Technical Experts Report substantially changed the topic from the Four Economists Report. By focusing on coordination conventions among countries imposing only source-based taxation, it offered little of interest to the U.S. and Britain, and rendered international agreement even more difficult by conflating distinct policy issues. Meanwhile, it launched an institutional narrative that, whatever the problems of international taxation were, the League offered relevant solutions. Third, this narrative began to allow lobbyists like Mitchell Carroll to advance business interests under the League's disguise in the 1930s. Fourth, by the time of the Mexico Model, "the League's" double taxation work served little more than narrow institutional and personal interests. In each of these last three stages of the League's work, despite the lack of genuine intellectual continuity, parties appealed to earlier League outputs to legitimize their own (often questionable) pursuits. This practice continued in the activities of the Organisation for European Economic Cooperation in the 1950s, and one suspects that it is even more significant today. The paper suggests that the durability of this practice may be attributable to both ambiguous principal-agent relationships in the context of weak international organizations sponsoring informal norm setting, and persistent intellectual confusion about the subject of international taxation.

Download the article from SSRN at the link.

Reid on Good Policing Practices Are Difficult, Even For the Avengers @LMUtweets

Melanie Reid, Lincoln Memorial University Duncan School of Law, has published Good Policing Practices Are Difficult, Even for the Avengers.  Here is the abstract.

Policing, as a topic, is complicated. Many have strong views as to what police should or should not be doing and how effectively they are doing it. Too often policing has become polarized with various perspectives disagreeing as to the future of policing. Black Lives Matter, Defund the Police, and Policing Abolition movements are on one spectrum compared to the Blue Lives Matter Movement or other mayoral or police union initiatives. This is clearly a time to collaborate and learn from the various perspectives to bring hope and change in the future. Lawyers, academics, community members, and police officers alike are all asking the same question: how can we contribute to the national effort to examine and address issues in policing and public safety, including conduct, oversight, and the evolving nature of police work? This Article seeks to explore the realities of policing in a novel way and make overall suggestions to support effective policing. The Article will examine several policing practices by evaluating the Avengers as a police department in the Marvel Cinematic Universe (“MCU”) and look to the various perspectives in policing to do so. The Article will utilize (and criticize) this fictitious police department in order to touch upon several themes relevant to policing today: the concept of policing (the importance of structure and its leadership team), the community policing philosophy, police training, strategies and tactics used to reduce crime, the policing culture problem-oriented policing (hots spots and predictive policing), police oversight, implicit bias, use of force, and current recruitment policies in place. Our perspectives on policing are shared in part by our opinions about what the police are supposed to do and how police go about doing their job. Using one of the highest grossing media franchises of all time to compare and contrast police department practices will allow the reader to get a sense of where we are currently as it relates to current practices and police culture and where we want to be in the future. The infinity stones displayed in Avengers’ Infinity War and Endgame serve as a perfect catalyst to explore the types of changes the readers, as future lawmakers and policymakers, might want to think about in the future. The structure and values of society itself (through the lens of the Avengers’ movies) can shape what police do and how the policing institution is organized. Most importantly, policing is all about relationships—relationships with the community, with other players in the criminal legal system, and within their own departments. The characters in the MCU display those relationships in every aspect and remind us of our own flaws and hope for the future when we collaborate and work together toward positive solutions to an incredibly complicated problem—fixing the criminal legal system.

Download the article from SSRN at the link.

Stolzenberg on The Legal Imagination and the Protestant (Dis) Establishment @nomideplume1 @USCGouldLaw

Nomi Maya Stolzenberg, University of Southern California School of Law, has published The Legal Imagination and the Protestant (Dis) Establishment. Here is the abstract.

The Legal Imagination is a quintessentially liberal imagination–or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern Establishment or, more significantly, the Protestant Establishment. In this essay, I take seriously the Protestant dimension and the intellectual dimension of “the Establishment” and the broader Protestant intellectual culture of which, I argue, White’s book is a part. I locate the book in the transformations that were taking place in American intellectual and political culture in the turbulent years of its birth (the 1960s and early 1970s), and in the longer history of religious disestablishment and of liberal Protestantism’s battles with non-mainline Protestantism, on the one hand, and Catholicism, on the other. Focusing on a pivotal event that took place on the Cambridge Common, whose phantom hovers entre les lignes of one of the readings that appears in the book—an anti-war protest that turned violent—this essay considers the extent to which the conservative legal movement has been shaped by the conservative attack on the liberal establishment that emerged in this time period, in particular, conservative Catholic and fundamentalist Protestant attacks on the liberal establishment and on the liberal (Protestant) imagination so beautifully rendered in James Boyd White’s instructional book.

Download the essay from SSRN at the link.

Marmor on How Art Is Like Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published How Art is Like Law as Cornell Legal Studies Research Paper No. 24-13. Here is the abstract.

What makes something a work of art? Can we answer this question in a philosophically satisfactory way? I think that we can, as long as we understand the question as one about metaphysical grounding. One of the main arguments of this paper is to show that any plausible metaphysical grounding of artworks is going to pull in the direction of an institutional theory of art: An artifact is a work of art in virtue of its being identified and engaged with as such by the relevant community. Now, to legal philosophers this should sound very familiar, and that is really the main point of this essay. In jurisprudence we call this view legal positivism, and the point is that from a metaphysical perspective, the views are basically the same: certain types of artifact are art, or law, respectively, solely in virtue of an intricate convergence of conduct and attitudes that obtain in a certain population. The argument proceeds in three main stages: First it aims to show that the question about what makes things works of art, just like the very similar question about law, is best understood in terms of metaphysical grounding. Second, it argues that from this philosophical perspective -- asking in virtue of what, metaphysically speaking, an object is a work of art -- the answer of the institutional theory is eminently plausible: The gist of it is that something is an artwork, when it is, in virtue of the fact that it is considered to be art by a certain population, an artworld community. Finally, the paper argues that the grounding account can help us to answer some of the objections to the institutional theory, both in art and at least indirectly, by analogy, in law as well. Eventually, I hope to show that thinking about ways in which art is like law tells us something interesting about the nature of both.

Download the article from SSRN at the link.

Lively on Historical Custom and the Custom House: How Custom House Governance From 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine

Matthew Lively, University of Chicago Law School, has published Historical Custom and the Custom House: How Custom House Governance from 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine in the University of Chicago Business Law Review Online Edition '24. Here is the abstract.

The nondelegation doctrine, that Congress cannot delegate its legislative powers or lawmaking abilities to other entities, is front and center as the Supreme Court readies to weaken or dismantle the modern administrative state. This article provides a historical argument that the nondelegation doctrine did not enjoy pre-eminence during the Founding, as some originalists, including the respondents in Securities and Exchange Commission v. Jarkesy, claim. Federal custom house governance from 1789 to the early 1800s, which nearly unilaterally funded the government, was largely nominally directed by both Congress and the executive and was characterized by broad discretion.

Download the essay from SSRN at the link.

Kerr on Reckless Speech in the Shadow of the Constitution @PKUSTL @SHULawReview

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing Reckless Speech in the Shadow of the Constitution in volume 55 of the Seton Hall Law Review. Here is the abstract.

In this Article, I explore the question of whether and to what extent a seeming threat may be justified by its potential social utility. This past summer, in Counterman v. Colorado, the U.S. Supreme Court held for the first time that the First Amendment requires a threats statute to include at minimum a “recklessness” mental state. This clarification was long overdue. However, Justice Kagan’s majority opinion ignored an important sense of how and why people express themselves, so as to make art. In concurrence, Justice Sotomayor observes how rap (in constitutional terms, “art speech”) can be misinterpreted when a speaker does not share the same cultural background as her audience. I connect this art speech dilemma to an undertheorized aspect of criminal law: how to interpret the normative component of our recklessness mens rea test that evaluates whether an actor took an unjustified risk of causing harm. Missing from Counterman, and the broader literature, is an analysis of whether making provocative art, or attempting to make provocative art, is at all justified by the constitutional status of the speech act and how it may further the underlying value system of the First Amendment. The rub for the First Amendment is that one of its basic purposes is to protect speech that we don’t like very much. This creates a very complicated analysis for the juror who is tasked with resolving whether, in my terms, a superficial threat is not-so-unjustified so that the speaker does not merit punishment. Delegating this kind of loaded question to a lay juror invites legal process concerns, like those framed by constitutional fact doctrine. But, in the end, I suggest that these academic concerns may have negligible consequence. Jurors can still rely on their folk sense of criminal responsibility when making culpability evaluations in the shadow of the Constitution, where speech crimes like true threats reside.

Download the article from SSRN at the link.

Nicastro on Redefining Women's Subjectivity Between Law and Revolution: A Foucauldian Analysis of Olympe de Gouges' 1791 Declaration of the Rights of Woman and Female Citizen @alessia_ncs @GVAGrad

Alessia Nicastro, Geneva Graduate Institute, has published Redefining Women's Subjectivity Between Law and Revolution: A Foucauldian Analysis of Olympe de Gouges' 1791 Declaration of The Rights of Woman and Female Citizen. This paper has been accepted and presented by the author at the 11th International Conference on Gender and Women's Studies held on 13th July 2024 online, organized by the University of Mumbai, the International Center for Research and Development (ICRD), and Unique Conferences Canada. Here is the abstract.

This contribution investigates how Olympe de Gouges' "Declaration of the Rights of Woman and of the Female Citizen” (1791) contributed to reshape women’s subjectivity in international law and to advance a feminist vision of this field. Drawing upon Foucault's notions of subject, power, and resistance, this paper analyses how De Gouges' Declaration functioned as a political and discursive tool that disrupted the dominant gender relations of power embedded in legal discourses of the time. By claiming women's equality and citizenship, de Gouges’ work paved the way to the recognition of women as both political and legal subjects. The author concludes that de Gouges' Declaration was pivotal for revealing the androcentric character of the embryonic human rights law (which were only les droits de l'homme) and for highlighting the inherent contradictions in the Revolutionary ideals of equality, citizenship, and freedom.

Download the paper from SSRN at the link.

Wieboldt on Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 @DennisWieboldt @NotreDame

Dennis J. Wieboldt, III, University of Notre Dame, has published Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 at U. S. Catholic Historian 41 (2023). Here is the abstract.

Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.

Download the article from SSRN at the link.

ICYMI: The Cabinet of Imaginary Laws (Routledge Publishing, 2021) @routledgebooks

ICYMI: The Cabinet of Imaginary Laws: (Peter Goodrich and Thanos Zartaloudis, eds., Routledge, 2021) (Discourses of Law). Here from the publisher's website is a description of the book's contents.

Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Progressive legal and political thinking has for long lacked a positive, let alone a bold imaginary project, an account of what improved institutions and an ameliorated environment would look like. And where better to start than with the non-laws or imaginary legislations of a realm yet to come. The Cabinet of Imaginary Laws is a collection of fictive contributions to the theme of conceiving imaginary laws in the vivid vein of jurisliterary invention. Disparate in style and diverse in genres of writing and performative expression, the celebrated and unknown, venerable and youthful authors write new laws. Thirty-five dissolute scholars, impecunious authors and dyspeptic artists from a variety of fields including law, film, science, history, philosophy, political science, aesthetics, architecture and the classics become, for a brief and inspiring instance, legislators of impossible norms. The collection provides an extra-ordinary range of inspired imaginings of other laws. This momentary community of radial thought conceives of a wild variety of novel critical perspectives. The contributions aim to inspire reflection on the role of imagination in the study and writing of law. Verse, collage, artworks, short stories, harangues, lists, and other pleas, reports and pronouncements revivify the sense of law as the vehicle of poetic justice and as an art that instructs and constructs life. Aimed at an intellectual audience disgruntled with the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system.

Sciullo on Defending Critical Race Theory @nickjsciullo

Nick J. Sciullo, Texas A&M University, has published Defending Critical Race Theory. Here is the abstract.

Recent attacks on Critical Race Theory (CRT) have caused wide-ranging discussions about CRT in a diverse number of disciplines, throughout all grade levels, and around the world in media. While CRT adherents have long wished for more engagement with CRT, the recent firestorm of attacks has been surprising at best, and horribly worrisome and frightening at worst. Efforts to ban CRT in schools, while likely not having much effect given the improbability that CRT is taught in any K-12 schools, have politicized CRT in new ways (though like all education, it was always political). Moreover, this engagement is clearly not in ways that many of us writing in or about this tradition imagined, yet the increasing politicization of CRT has raised interest in the theory well beyond the colleges, universities, and graduate and professional schools where it was, at best, occasionally taught. Arguably, conservatives created a debate where there is none and was none. Or, as Donald Earl Collins puts it, this is a discussion not about CRT, but rather about “critical race fact.” This Article sets out to defend CRT from the criticisms levied by conservative and Republican politicians in the United States as well as other pundits and pontificators. These criticisms have always existed, but they have now been taken up in popular media in a confusing menagerie of political fervor. Of course, the criticisms of CRT are almost always based on a misunderstanding of the idea. Each Part below takes up a different criticism and presents evidence that the criticism is simply not true by using both what critical race theorists have written, as well as what others who have experience teaching it in the United States’ schools, colleges, and universities have claimed. It is possible, one supposes, that the country’s alleged critical-race-teaching kindergarten teachers are covertly inserting CRT into our five-year-olds’ lessons on colors, but this seems unlikely.

Download the article from SSRN at the link.

Law, Culture, and the Humanities Conference, 2025: Call For Papers @Law_Cult_Huma

Call For Papers: Law, Culture, and the Humanities Conference, 2025

Every year, the Association holds it annual conference, usually a two-day affair, as well as a graduate student workshop, usually held on the day before the annual conference. The 2025 annual meeting will be held at Georgetown Law from June 17-18th. The theme of the conference, our call for papers, and submissions guidelines can be found below:

 

Speech Matters We live in a golden or an iron age, depending on one’s point of view, for laws regulating speech. The COVID-19 pandemic forced governments around the world to reckon with floods of dis- and misinformation. The global rise of the far right has brought with it a need for new legal tools to combat threats, harassment, and hate speech. And in the United States, state and local governments have attempted to suppress speech by or about unpopular subjects through means ranging from book bans to felony prosecutions. For this year’s Law, Culture, and Humanities Annual Conference, we invite papers on how the law conceptualizes, regulates, commodifies, or instrumentalizes speech (broadly defined not just as language but as expressive activity). In particular, we welcome papers that use humanistic tools for making sense of speech and expression—concepts from rhetoric, narrative theory, aesthetics, genre studies, and more—to tackle new or persistent legal puzzles.

 

Submission Guidelines We encourage the submission of fully constituted panels, as well as panels that reimagine or experiment with models for academic presentation, such as roundtables, author meet reader sessions (which may include multiple books and their authors in conversation), collaborative presentations, multi-panel streams, etc. Individual proposals should include a title and an abstract of no more than 250 words. Please note that online presenters should organize a full panel (we will not be accepting individual papers for online presentations this year) and that, though we traditionally accept most papers, we may need to limit the number of online panels we accept, depending on demand. Panels, whether virtual or in-person, should include three papers (or, exceptionally, four papers). Please specify a title and designate a chair for your panel. The panel chair may also be a panel presenter. It is not necessary to write an abstract or proposal for the panel itself. To indicate your pre-constituted panel, roundtable, or stream, please ensure that individual registrants provide the name of the panel and the chair in their individual submissions on the registration site. All panel, roundtable, or stream participants must make an individual submission on the registration site. When submitting a proposal, we also ask that registrants identify two keywords to help us align sessions with each other.

 

Mode The twenty-seventh annual conference will emphasize the LCH tradition of in-person conversation. While we encourage participants to join us in Washington, D.C., we recognize that in-person attendance may be prohibitive for some. To that end, we will also accept the submission of virtual panels. Since we will not be providing technical support for virtual participants, panel chairs will be responsible for providing Zoom links that will be listed in the program. All plenary sessions will be available streaming online as well as in person.

 

How to Submit? Submissions may be made through our website: https://lawculturehumanities.com/event/2025-twenty-seventh-annual-confer...

 

Creating a Panel: Contact Our Graduate Coordinators Early While participants may submit individual paper proposals that the Program Committee will later combine into full panels, we strongly encourage applicants to create full panels prior to submission. Pre-formed panels may cohere better, and allow collaborators to craft focused scholarly exchanges. Panels comprising a diversity of institutions, academic ranks, disciplines, and identities are often the most rewarding. If you would like support in finding others who might be interested in forming a panel, please contact our Graduate Coordinators, Aditya Banerjee (adityabanerjee@g.harvard.edu) and Jack Quirk (john_quirk@brown.edu) with “LCH panel” in the subject line. The Graduate Coordinators will act as intermediaries, and may be able to put you in contact with others working on related topics. We especially encourage graduate students and those new to LCH to consider reaching out to the Graduate Coordinators if they’re struggling to identify potential co-panelists. Please contact them well before the submission deadline, to allow time for follow-up.

 

Submission Deadline The deadline for all conference submissions is January 31, 2025. Contact Information Please email lch@lawculturehumanities.com with any queries. categories

Call For Papers: Hugo and the Law, Maastricht University Faculty of Law, May 8, 2025

Call for Papers; Hugo and the Law, Maastricht University Faculty of Law, Masstricht, the Netherlands, May 8, 2025.

On the occasion of the 150th anniversary of the publication of the first volume of Actes et Paroles, the collection of Victor Hugo’s political speeches, the UM Law and Popular Culture Research Network organizes a Workshop on 8 May 2025 dedicated to the author’s conceptualization of several legal issues. The Workshop will take place at the Faculty of Law of Maastricht University (The Netherlands), with a fully in-person program.

Goal and Background of the Workshop.  In his several works, Victor Hugo has often delved into profound perspectives into the relationship between humanity and the law. Hugo was not merely a renowned novelist but a visionary thinker who engaged with multiple societal issues, including the intricacies of the legal system, the condition of women, the rise of socialism, and the future of Europe. On the 150th anniversary of the publication of Actes et Paroles – which perfectly captures such themes– this Workshop aims to examine Hugo’s conception of the law.

Hugo’s conception of the law is multifaceted, encompassing both its theoretical foundations and its practical implications. His writings often reflect a deep concern for the struggle for power and the ethical responsibilities of institutions. Through an examination of Hugo’s literary corpus, the Workshop will explore how his books’ characters grapple with the complexities of law and its impact on individuals and society. One key aspect of the Workshop is Hugo’s emphasis on the moral dimension of the law. His characters navigate questions of morality, duty, and conscience by their interactions with legal systems. At the same time, the Workshop will address Hugo’s critique of the legal machinery, shedding light on his observations regarding the potential for injustice and the abuse of power. Furthermore, this Workshop will investigate the historical context in which Hugo lived and wrote, considering the political and social upheavals that influenced his views on the law. From the aftermath of the French Revolution to the establishment of the Second French Republic, through the rise and fall of the Empire of Napoleon III, until the experience of the Commune, Hugo’s observations of the evolving legal landscape are integral to understanding his perspective on the nature of power, the State and the foundations of Europe, and the condition of women.

By examining the philosophical, historical, and theoretical underpinnings and practical implications of Hugo’s thoughts on law, the Workshop aims to illuminate the enduring relevance of his insights and their potential to inspire contemporary discussions on law and justice.

Abstract Submissions.  The “Hugo and the Law” Workshop will feature panel sessions. Submissions should relate to the overarching theme of the Workshop.

Submissions should indicate the title of the contribution, an abstract (max. 400 words), and the contact information and a short biography of the speaker (max. 150 words). Fully written papers are not required. We encourage submissions in English, and co-authored papers will be also considered.

Who Can Participate in this Workshop?  The “Hugo and the Law” Workshop is not restricted to lawyers. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in e.g. the humanities and other social sciences (e.g. history, economics, political science, sociology) with an interest in the Workshop’s theme. We welcome submissions from senior and junior scholars (including doctoral students) and interested practitioners.

How and When to Submit?  Send your submission to agustin.parise@maastrichtuniversity.nl.  The Call for Papers closes on 22 December 2024. Shortly after that, the authors will be informed whether their papers are selected for a presentation during the Workshop.

Conference Organizing Committee.  Should you have any questions please do not hesitate to contact a member of the Workshop Organizing Committee:

Eline Couperus(e.couperus@maastrichtuniversity.nl)
Agustín Parise (agustin.parise@maastrichtuniversity.nl)
Franco Peirone (franco.peirone@maastrichtuniversity.nl)
Livia Solaro (l.solaro@maastrichtuniversity.nl)
Arthur Willemse (arthur.willemse@maastrichtuniversity.nl)

ICYMI: Dees on Great Trials and the Law in the Historical Imagination @routledgebooks

ICYMI: Russell L. Dees, University of Copenhagen, Denmark, has published Great Trials and the Law in the Historical Imagination: A Law and Humanities Approach (Routledge, 2024). Here from the publisher's website is a description of the book's contents.

Great Trials and the Law in the Historical Imagination: A Law and Humanities Approach introduces readers to the history of law and issues in historical, legal, and artistic interpretation by examining six well-known historical trials through works of art that portray them. Great Trials provides readers with an accessible, non-dogmatic introduction to the interdisciplinary ‘law and humanities’ approach to law, legal history, and legal interpretation. By examining how six famous/notorious trials in Western history have been portrayed in six major works of art, the book shows how issues of legal, historical, and artistic interpretation can become intertwined: the different ways we embed law in narrative, how we bring conscious and subconscious conceptions of history to our interpretation of law, and how aesthetic predilections and moral commitments to the law may influence our views of history. The book studies well-known depictions of the trials of Socrates, Cicero, Jesus, Thomas More, the Salem ‘witches’, and John Scopes and provides innovative analyses of those works. The epilogue examines how historical methodology and historical imagination are crucial to both our understanding of the law and our aesthetic choices through various readings of Harper Lee’s beloved character, Atticus Finch. The first book to employ a ‘law and humanities’ approach to delve into the institution of the trial, and what it means in different legal systems at different historical times, this book will appeal to academics, students and others with interests in legal history, law and popular culture and law and the humanities.

Leclair on L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et regression pour les autres (peoples autochtones)

Jean Leclair, University of Montreal Faculty of Law, has published L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et régression pour les autres (peuples autochtones) [Constitutional evolution from 1760 to 1867: progress for some (French Canadians) and regression for others (Aboriginal peoples)] as a University of Montreal Faculty of Law Research Paper. Here is the abstract.

French abstract: Ce texte vise à présenter à un large public, et non uniquement aux experts, un récit de l’évolution constitutionnelle du Canada, et plus précisément du Québec, avant l’avènement de la fédération canadienne. Le sort des peuples autochtones dans le territoire qui deviendra le Québec est également abordé.

 

English abstract: This manuscript aims to provide a broad audience, not just experts, with an account of the constitutional evolution of Canada, and more specifically Quebec, before the advent of the Canadian federation in 1867. The fate of the aboriginal peoples in the territory that was to become Quebec is also addressed.

Download the paper from SSRN at the link.

Stanley-Ryan on Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law @ashstanleyryan

Ash Stanley-Ryan, Graduate Institute of International and Development Studies (IHEID); Victoria University of Wellington; Te Herenga Waka - Faculty of Law, is publishing Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law in Law & History. Here is the abstract.

This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatiratanga o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Māori voices and Te Reo Māori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pākehā stories of he whakaputanga as act to secure Imperial interests; and Māori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Māori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’. NB: typos, including the use of the term "te re rangatira" rather than "te rangatiratanga", are not corrected in this preprint.

Download the article from SSRN at the link.

Sprigman on The Jeffersonian Model of U.S. Cultural Property Law @CJSprigman @nyulaw

Christopher Jon Sprigman, NYU School of Law; NYU Engelberg Center on Innovation Law & Policy, is publishing The Jeffersonian Model of U.S. Cultural Property Law Forthcoming 2024, in Tutela & Restauro (the annual journal of the Soprintendenza archeologia belle arti e paesaggio per la città metropolitana di Firenze e le province di Pistoia e Prato). Here is the abstract.

This article, the published version of a closing keynote talk given at a conference on Italian cultural heritage and cultural property law held in 2022 at the University of Florence, describes the loosely-constituted, largely uncodified "Jeffersonian" model of cultural heritage law that operates in the U.S. The Jeffersonian model understands cultural heritage not primarily as a thing to be protected, but as a thing to be used. This model is concerned primarily with the interests of the living – specifically, our collective interest in producing today’s culture, drawing on the past but also reworking it in ways that may preserve or may destabilize the past. This model is largely indifferent to and perhaps in practice even hostile to cultural particularism and to the stability of any particular culture. The role of IP rights, in this model, is not to preserve old culture. It is to encourage people to make new culture. The differences between the Jeffersonian model and the more protectionist cultural heritage and cultural property models that hold sway in Italy and across Europe grow out of deep differences in how different cultures understand what leads to human flourishing. The European model situates individuals within a particular culture; it is based on the notion that some well-defined group identity is central to an individual’s flourishing. On the other hand, the Jeffersonian model is both more cosmopolitan and more present-focused. The logic of these models rests on differing beliefs about the relative importance of individual autonomy versus group identity, and about the virtues of more rapid cultural change versus relative cultural stability.

Download the essay from SSRN at the link.

Bruyas and Perrin on What's Law Got to Do With It? Language and Gender Equality in Law

Pierrick Bruyas, University of Strasbourg, and Caroline Perrin, Utrecht University, have published What's Law Got to Do with it? Language and Gender Equality in Law. Here is the abstract.

Certain languages require speakers to grammatically acknowledge and indicate gender, while others do not impose such requirements. Recent research indicates that this linguistic distinction correlates with gender-based variations in economic outcomes. This study delves into the connection between gender marking in language and gender equality in law. Utilising the ‘Women, Business and the Law’ database, our findings reveal a positive association between the degree of gender marking in language and the legal rights granted to women. Our results remain robust under various sensitivity tests.

Dowload the article from SSRN at the link.

Cultures of Legality in Weimar Germany, University of Lucerne (Imagining Justice: Law, Politics and Justice in Weimar Germany: SNSF Project)

From Laura Peterson, University of Lucerne:

We’re pleased to announce the next three talks in our online seminar series on Cultures of Legality in Weimar Germany:

 

Wednesday 30 October, 10am-11am (Switzerland) Javier Samper Vendrell (Pennsylvania), A Film for Children? Autonomy and Vulnerability in Emil and the Detectives (1931)

 

Wednesday 6 November, 10am-11am (Switzerland) Lucy Byford (Bremen), From Imperial Sanctum to Cradle of Democracy: Site and Semantics in Dada Interventions at the Berlin Cathedral and the National Assembly in Weimar (1918-1919)

 

Wednesday 20 November, 9am-10am (Switzerland) Nicole Schraner (Lucerne), Visual Representations of the 1924 Hitler-Ludendorff Trial in the Context of Law and Media NB.

 

Please note start times refer to Swiss local time: Time Zone Converter. The sessions are open to all and we warmly invite you to join us.

Bandes on The Sense of an Ending @BandesSusan @DePaulLaw

Susan A. Bandes, DePaul University College of Law, has published The Sense of an Ending at 73 DePaul Law Review 751 (2024).

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development. These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending. As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.” One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying. This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged. This Essay will first examine the notion of a satisfying ending as it applies to Succession. It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not—and could not be—emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew. The Essay will then pose the question: What lessons can the notion of narrative closure—the need for a satisfying ending—convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish. Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts. I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

Download the essay from SSRN at the link.

Peterson on The Fourteenth Amendment and the Venus Noire @UChicagoLaw @WMLawReview

Farah Peterson, University of Chicago Law School, has published The Fourteenth Amendment and the Vénus Noire at 66 William & Mary Law Review 191 (2024). Here is the abstract.

This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.

Download the essay from SSRN at the link.

Brown, Epstein, and Gulati on The Constraining Efect of "History and Tradition": A Test

Rebecca L. Brown, USC School of Law, Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published The Constraining Effect of "History and Tradition": A Test as Virginia Public Law and Legal Theory Research Paper No. 2024-63, Virginia Law and Economics Research Paper No. 2024-28, and USC Law Legal Studies Paper No. 24-33. Here is the abstract.

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

Download the article from SSRN at the link.

Call For Contributions, Cambridge Handbook on Law, History, and the Visual @CambridgeUP

From Steven Howe, Desmond Manderson, and Laura Peterson: Call For Contributions for the Cambridge Handbook on Law, History, and the Visual:

The Cambridge Handbook on Law, History and the Visual aims to collate cutting-edge scholarship on key topics in a vibrant and growing space of academic inquiry. We are seeking original contributions that explore the myriad ways in which we experience law visually – and the visual lawfully – in and across diOerent times and places in history. Gathering the expertise of scholars working within and between diOerent disciplines, the collection aspires to reflect the current state-of-the-art, to prompt new agendas, and to provide an up-to-date point of reference for students, researchers and teachers alike. We are soliciting proposals for essays of approximately 5,000-8,000 words, from established and emerging scholars, on any topic that fits within the scope of the volume (see below). The Handbook will be published in English, but we seek to provide a broad geographical coverage. We particularly welcome contributions from the Global South. Please note that manuscripts must be original and not be published elsewhere. All submissions will be peer-reviewed. If accepted, the deadline for full essays will likely be June 2026. Please submit proposals (title, abstract of approx. 250 words, biography of approx. 150 words) to Laura Petersen: laura.petersen@unilu.ch by Tuesday 10 December 2024. Please also indicate which theme or themes listed below you consider most relevant for your contribution. Scope of the Volume In the interests of focusing the Handbook coherently, we have identified the following lead themes: 1. Methods: creating the field of visual legal history We invite contributors to reflect on what it means to do scholarship on and in law using visual objects from the past. How might the study of images cultivate new routes into legal history? What stakes are involved when we think law with images in (and beyond) their time and place? 2. Standpoints: scholarly encounters with law and the visual We urge contributors to think directly about standpoint and the limitations and possibilities of undertaking scholarship in this field, including who is part of the encounter, who is not in the picture, and where, when and what is the address of the image? 3. Sources: mediums, archives, materialities We encourage critical engagement with the sources and institutional repositories of historical enquiry, and invite contributions that consider carefully the medium, materiality and provenance of specific images, including the role of potential ‘counterarchives’. 4. Times: from the epochal to the everyday We ask for analysis which considers explicitly how a chosen image(s) sits within time and changes or stays static throughout a particular time/legal period. We encourage diversity in thinking about the scale, period, background and futurity of specific images and their relations with law. 5. Places: place-making and visual jurisdictions We encourage analysis that focuses on a particular site, place, border-land, or country, and for contributors to investigate the strata of relations between the natural or built environment, legality, authority and visual objects. 6. Cross-sections: shifting legal and visual cultures We invite contributions that consider the traOic of images at specific sites and moments, and which locate these flows within visual legal histories. Such inquiries may connect legal images with historical shifts in visuality, or link visual objects with shifts in legal regimes or theories.

The deaadline for the call for contributions is December 10, 2024.

Rabanos on Back to (Law as) Fact: Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words @Univerzitet_BG @julesrabanos

Julieta A. Rabanos, University of Belgrade, has published Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words at Materiali per una storia della cultura giuridica 205 (2023).

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central legal concept – that of “authorityµ – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6).

Download the article from SSRN at the link.

Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @reillysteel @ColumbiaLaw @Princeton @PennJCL

Reilly Steel, Columbia Law School; Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsvylvania Journal of Constitutional Law. Here is the abstract.

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Lloyd on Recasting Canons of Construction Into "Canonical" Queries: Canons and Queries of Meaning, Spirit, Letter, and Text @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Recasting Canons of Construction Into “Canonical” Queries: Canons and Queries Of Meaning, Spirit, Letter, and Text. Here is the abstract.

This article builds upon my two prior articles addressing deficiencies in the canons of construction and the need to convert such canons to “canonical” queries. Focusing on canons, presumptions, and queries of speaker meaning, spirit, letter, and text, this article explores: General Queries of Speaker Meaning, Ordinary-Meaning Queries, Consistent Usage Queries, Signifier Drift Queries, Sense Fixation Queries, Reference Fixation Queries, General/Specific Queries, Prospectivity/Retroactivity Queries, and Purpose or “Spirit” Queries. In addressing such queries, this article: (1) continues to recast “canons of construction” into an expanding list of common or “canonical” queries and related tools; (2) addresses necessary steps of distinguishing interpretation (addressing linguistic meaning) from construction (addressing legal meaning); (3) explores the importance of querying speaker meaning including legislative intent; (4) debunks claims that legislative intent is a problematic concept; (5) addresses the necessary step of exploring all available evidence (including legislative history) when performing interpretation and construction; and (6) addresses essential linguistic and semiotic frameworks for such “canonical” queries and related tools. In addressing these essential linguistic and semiotic frameworks, this article also: (7) explores why queried text is a semiotic co-relation of signifier(s) and signified(s); (8) debunks illusory conflicts between text, letter, and spirit of the law; (9) calls out needs to define the meaning of “meaning” presupposed by theories of interpretation and their semantic queries; (10) explores the necessarily experiential and thus temporal nature of such meaning; (11) addresses how meaning’s experiential and thus temporal nature undermines strict fixation theses without also undermining meaning otherwise anchored by concepts or conceptions acknowledged to be temporal; (12) otherwise highlights the essential role of time and experience in legal hermeneutics and semantic queries; and (13) underscores hermeneutics’ essential role not only in rule of law but also in the genesis of lifeworlds so ruled. Any plausible textualism must be consistent with all the above. In that vein, this article is written with hopes of adding its explorations (along with those of my two prior canons to queries articles) to a planned book countering Scalia and Garner’s Reading Law: The Interpretation of Legal Texts. I am happy to share the most current outline of this planned work upon request.

Download the article from SSRN at the link.

Stern on From Clapham to Salina: Locating the Reasonable Man @ArsScripta @LawLitJournal

Simon Stern, University of Toronto Law, has published From Clapham to Salina: Locating the Reasonable Man at 36 Law & Literature 391 (2024). Here is the abstract.

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

The full text is available by subscription.

Davies on Casey Meets the Court @horacefuller @GB2d

Ross E. Davies, George Mason University Antonin Scalia Law School; The Green Bag, has published Casey Meets the Court at 27 Green Bag 2d 169 (2024). Here is the abstract.

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Download the article from SSRN at the link.

Phelan on The Promise of Judicial Biography for the Study of the European Court of Justice @tcddublin

William Phelan, Trinity College, Dublin, has published The Promise of Judicial Biography for the Study of the European Court of Justice. Here is the abstract.

This chapter sets out the promise of judicial biography for research on European Union law, with a particular emphasis on historical research on the birth and early development of the European legal order. It demonstrates that there has been little engagement with the biography of the judges of the Court of Justice in previous scholarship, whether in law, social science, or history. It argues that explanations for behaviour of the Court of Justice often rely on implicit assumptions about the personalities and goals of the judges who make up the Court’s decision-makers. It demonstrates how drawing on the materials of judicial biography can improve our understanding of the texts of the Court’s famous judgments, of the politics of appointments and removals from the Court, and of the Court’s relationship with national constitutional courts. It concludes with a detailed agenda for future research, including explicit testing of legal, social science, and historical claims about the Court’s behaviour against available materials relating to judicial biography, as well as an intensification of data gathering on the lives, activities, and legal commitments of its early judges.

Download the essay from SSRN at the link.

Moving Online Symposium: Call For Proposals: Symposium, January 30, 2025, Coventry University, UK @covcampus

Symposium Announcement and Call for Proposals

Moving Online Symposium: Call for proposals 

Ontology and Ownership of Internet Dance

Symposium 30th January 2025 

Coventry University, UK 

 

Full details here: https://movingonline.coventry.domains/symposium/

Deadline for abstracts 13^th October 2024

 

It will be free to attend and a limited number of bursaries will be available to support travel and participation by freelance artists. More information is available here: https://movingonline.coventry.domains/symposium-bursaries/

 

 

In recent years, there has been increased attention paid to the ownership of dance. There has been important work done in the area of dance and copyright1 as well as the examination of the way ownership is managed via social norms through the ‘commons’2 and as a form of ‘gift’.3 The increased circulation of dance online through archives, video platforms and social media sites has led to multiple debates about the copying and re-embodiment of dances,4 reigniting important conversations about appropriation, acknowledgment and credit.5 

 

At the same time, there has been a flourishing of work on dance and performance ontology. For example, long-standing debates about the ephemerality of dance and performance have been reframed through discussions about the ‘post-ephemeral’6and materiality.7 There have also been new perspectives offered on questions about the nature of dances and the way in which they exist.8,9 

 

In this symposium, we are interested in exploring how these two areas intersect in the context of online dance and performance. The event builds on and shares the findings from Moving Online: Ontology and Ownership of Internet Dance https://movingonline.coventry.domains  (funded by the Arts and Humanities Research Council [grant number AH/W01002X/1]). We invite proposals that explore the ownership and/or ontology of dance or performance on the internet. We welcome consideration of dance and performance in all of their forms, genres and online contexts. Suggested themes include, but are not limited to: 

 

• Ownership disputes and resolutions 
• Acknowledgment and credit 
• Non-legal forms of ownership 
• Appropriation, copying and/or commodification 
• Copyright, licensing and/or NFTs 
• Materiality, (post) ephemerality and/or ontology 
• Dance challenges, reworking or reenactment 
• Remediation 
• Ownership, economics and online circulation 

 

Proposals should be for 20, 60 or 90 minute sessions and might include: academic papers, curated discussions and/or online performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024 

performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024
• Bursary application outcome: 11 November 2024
• Symposium: 30 January 2025 

   

  Follow the project on X: @MovingOnlineCU and/or Instagram: @movingonlinecu 

   

  Please contact Hetty Blades with any questions: hetty.blades@coventry.ac.uk  

  For the notes and references please see: https://movingonline.coventry.domains/notes-and-references/